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Land claims backfire as courts rule against communities

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By Carmel Rickard

Topics Property Law

13 Jun 2018

For everyone involved in or affected by land claims in SA, May 2018 must go down as one of the most disastrous months yet in the history of attempted restitution: in every one of the decisions by the Land Claims Court during that month those who brought cases to court lost out. Carmel Rickard, in her A Matter of Justice column on the Legalbrief website, takes a closer look at why claimants lost out.

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MANY thousands of land claims are still unresolved, and they come very slowly to court. So it is a striking statistic that of the four cases in which judgment was given last month, the land claims court should, in all of them, find the claimants on the wrong side of the law.

The land claims court plays a crucial role in SA’s land reform initiative. It usually adjudicates disputes between landowners and people who claim they are entitled to have land returned to them after it was taken away under apartheid laws or even further back as a result of the Native Land Act of 1913.

The first case decided in May involves a community given compensatory land, who have grossly overstocked their new farm, ignoring the arrangement in terms of which they accepted to keep only as many animals as the land could support. The stock has been straying into neighbouring farms and highly sensitive eco-reserves, and the owners have now been ordered to remove the excess animals. If they fail to do so the animals will be impounded and sold.

The next case, that of Joseph Makubo and his family, was brought against farmer JS Uys, along with the Director General of the Department of Rural Development and Land Reform and the Lekwa local municipality. The Makubo family wanted an urgent hearing to have themselves declared ‘long-term occupiers’ of the farm and to interdict the farm owners from intimidating and assaulting them. They also wanted an order that their cattle should be allowed to access water ‘from the main river on the farm’. Makubo said he needed to access water from the ‘main river on the farm’ as the dam to which his cattle now have access might run dry. After an inspection of the property by all parties, however, it was agreed that the dam was ‘90 % full at the moment’. All parties also agreed that there was no ‘main river on the farm’. And despite wanting an interdict against threats of eviction and assaults, Makubo does not say that he or any other members of his family was ever assaulted by the farmer or his family.

There was further agreement by all the parties that, despite any claims, Makubo was not ‘a long term occupier’ of the land. In fact, said the judge ‘this is a matter which should not have seen the light of day’.

The third case was an application for leave to appeal against an earlier decision of the land claims court. Again, the original case involved a dispute that unravelled as the court dealt with it, at least partly because of the poor way in which the application had been put together.

Most serious of the problems in the original case was that the claimants, including Fifteen John Makhuva who chairs the royal council of the Mathebula tribal authority, did not list all the land to which they made claim. Instead they expected the court to do so. The claim by Makhuva caused considerable interest as it included sections of the Kruger National Park, but the land specified on the land claim form was not the same as the list of land included in the government gazette as under claim, while Makhuva’s affidavit mentions yet other areas that were claimed but not officially listed on his form.

The grounds on which Makhuva intended to appeal ‘gave the impression that (he) wanted the court to give its own interpretation to the claim form’, said the court. But it was not the court’s duty to interpret the form. Judge TM Ncube said the court was not allowed to ‘add property or land which is not claimed’. Nor may the regional land claims commission, while investigating the claim, add land which is not claimed. And it was not permissible for the applicants to submit a map showing land that was not claimed in the official claim form, but which according to the map, was claimed.

Given this background, all dealt with in the original decision, there was no reasonable prospect of success on appeal, said the judge.

The last decision of the month, given by the acting president of the Land Claims Court, Yasmin Meer, began by noting that this claim for restitution was made by ‘the Elambini community’, a group of people who no longer persisted in their individual claims, but now made their claim as ‘members of a community’. The land they claim involves about 30 coastal sugar farms on the KZN south coast and covers about 1 380 hectares.

It is the most complex of the four cases, and shows how the court would normally go about the task of judging the validity of a community’s claim to land, examining evidence of oral or written history for example. In this case, however, the court was particularly critical of the state because it had persisted in backing the community’s claim, even after the community’s own expert witness’s report disputed the validity of the claim. The court analysed the evidence of all the witnesses before finding that the claim could not be sustained, and ordered the state to pay the costs of the farmers involved in the matter because the farmers had had ‘substantial success’ against the state.

When the state read the expert’s report that very clearly did not support the community’s claim, it should have reported the contents of the report to the court, said the judge, and it should have conceded that ‘the claims were no longer considered valid or good, or with prospects of success’. Doing nothing except noting that it would ‘abide the decision of the court’ was ‘simply untenable’.

The court was, however, even more critical of the community. It had commissioned the report, but when it received the document the community complained about it because it ‘very clearly did not support (their) claim’. The community then tried to commission another expert report.

For some time, the community had even refused to give a copy of the report to the other side. ‘If any side was remiss, it was (the community),’ said the court. It was obliged to disclose the existence of the report but instead ‘blatantly prevented it from surfacing for some two years’. Relentlessly pursuing the claim in the face of the expert report that did not support the claim, incurred ‘considerable cost to the taxpayer’.

The community also rejected one settlement offer after another, despite all the efforts of the state and the landowners to broker a settlement. ‘They rejected the last offer of 100 hectares which the parties made known to the court, despite the court repeatedly warning (the community) of the risk of going away empty handed if they did not prove their case.’

See also: Why failing to revise land policy will fail aspiration of millions

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

EXPROPRIATIONFARMINGLAND CLAIMSLAND REFORM

Carmel Rickard

Carmel Rickard is a journalist and specialises in writing about the intersection of law and politics.

Death Rehearsal 101

Death Rehearsal 101 – It’s never too early to get your affairs in order

Provided By Bregman Moodley Attorneys

By Roy Bregman

Topics Family Law | Wills, Estates & Trusts

18 Feb 2017

My uncle, who just turned 95, recently invited me to his death rehearsal. Despite what may immediately come to mind, a death rehearsal is not a staged funeral with the soon to be deceased attending. In fact, it is a full run through of everything your loved ones will need to know upon your death.

My uncle showed me where he stored his will, title deed to his property and bank information. He even has a list of people to invite to his funeral complete with names and addresses. Although it may seem morbid, it is a practical exercise to go through.

When you’ve reached my uncle’s age, preparing for death seems pretty standard. Surely, it’s irresponsible to die without having your affairs in order?

However, so few of us are as practical as my uncle, at any age.

When we are young, we are immortal. Drawing up a will is conceding that we are going to die, so let’s avoid it, right?

Wrong!

Whether you are 25 or 95 there are many benefits to being organised, and the task is neither as daunting nor as macabre as you might think. Most of the tasks are easy enough to do alone as long as you have a checklist in mind, but the more technical aspects of dying require a professional degree of preparation.

So how do you get started? Here are 10 simple steps to prepare for your death rehearsal.

• This first step is the easiest and perhaps also the hardest – Set up an appointment with your bank or lawyer to prepare a valid will. If you don’t have a valid will when you pass away, your belongings might not be distributed according to your desires.

• If you and your partner are living together but not married, conclude a life partnership (or cohabitation) agreement. Despite common assumptions, living together for a long period of time does not guarantee that you and your partner receive the same rights and benefits as married couples. Drafting a contract will help ensure that your partner is protected upon your passing or if the relationship ends

• Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information, and any other important papers;

• List your creditors and how to reach them (credit card, loans, mortgages, store accounts,);

• List important numbers for your executors, such as the name of your broker, lawyer, doctor, dentist, financial advisor…;

• Leave a list of family and friends to be contacted upon your death, it’s common courtesy to give your life contacts one more chance to say goodbye.

• List what happens to your DSTV, armed response, personal and home insurance, etc.. You don’t want your estate to be billed for services you can no longer use.

• List codes for your security system, and where to find keys for your safe deposit box, post office box and anything else that may not be easily accessible.

• Describe where you want to be buried or cremated, and your funeral wishes in general;

• Inform your executors and loved ones what you wish to be done with your email and social networking profiles. If you want to have your Facebook and Twitter turned into memorials then list all your virtual accounts, user names and passwords and retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death.

This process is never an easy one, but following these basic steps can make a huge difference for the people you care about. Being assured that all your wishes are clearly articulated and that your loved ones are taken care of, is a practicality that’s well worth the effort. The right attorney can guide you through this process and make sure you get it correct the first time around.

Drafting a valid Will in South Africa

Requirements for drafting a valid will in South Africa

By Dean Raviv

Topics Wills, Estates & Trusts

13 Dec 2016

Why do I need a will?

When you kick the bucket, chances are that your estate won’t matter much to you, but do you want your life’s work to be distributed amongst unworthy heirs? Everything that remains of your assets after all debts and administrative costs have been subtracted, will be inherited through the laws of succession by your qualified beneficiaries. If you fail to draft a valid will, the assets in your deceased estate will be distributed in accordance with the Intestate Succession Act 81 of 1987. This could result in your least favourite child or an estranged spouse receiving a portion of your assets which you may have preferred to donate to the SPCA.

So if you want to ensure that your preferred people (or animals) benefit from the delicious fruits of your creation when you finally pass on, make sure to draft a valid Last Will and Testament.

Freedom of Testation

The formalities of drafting a will are rather strict in order to avoid fraud and impersonations. The principal of freedom of testation however is rather liberal. It grants a testator extensive power to draft a will and testament which directs how the estate’s assets must be distributed upon death.

There are several common law limitations to the freedom of testation. For example, a provision of a will cannot be exercised where it is unlawful, against good morals, too vague or impossible to perform. Additionally, the minor children of the deceased have a common law claim to maintenance. Specific legislation may also limit one’s freedom of testation, for example, in cases where pension funds, trust property or spousal maintenance are concerned.

Requirements for drafting a valid will?

The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. They are relatively straight forward, but even a seemingly meaningless oversight may invalidate the entire document. The court is given a power to condone a will that does not comply with all the formalities in order to try and avoid situations which may invalidate a will and frustrate the testator’s good intentions. Nevertheless, it is always advisable to abide by all the requirements in order to avoid any complications and delays. Here are some of the basic requirements for drafting a valid will:

1. The testator must be older than 16 years of age.
2. The testator must be mentally capable of understanding the consequences of his or her actions at the time that the will was drafted. Wills or provisions that are proven to be drafted under duress, undue influence or mistake will be invalid. Convincing your father-in-law to add you to his will after 9 whiskeys is generally frowned upon, and the relevant provisions may be challenged in court. The onus of proof to show mental incapacity or lack of intention of the testator rests on the person making such allegation.
3. The will must be in writing. It can be handwritten or printed – just makes sure it’s clear. And don’t forget to put your name on it.
4. The testator must sign at the end of the will. While the act is not clear in this regard, it is recommended that the signature be placed just below or as near as possible to the last line of the will. A significant gap between the last line of the will and a testator’s signature maybe cause a will be declared invalid. Furthermore, the following methods of signature are sometimes necessary when the testator is paralyzed or is too feeble to sign:
   • A testator may request a person to sign on his or her behalf. In such event, the signature must be made in the presence of the testator, at least two competent witnesses, and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages.
   • A testator may sign a will by making a mark or a thumbprint in the presence of at least two competent witnesses and a commissioner of oaths. The commissioner of oaths must certify the will and sign each of its pages. Witnesses may not sign by making a mark or thumbprint.
5. If the will is longer than one page, the testator (or someone on his behalf) must also sign every other page of the will, anywhere on the page.
6. The testator’s signature on the last page must be made or acknowledged in the presence of 2 competent witnesses who are present at the same time. According to section 1 of the Wills Act, a competent witness is anyone over the age of 14 who is of sound mind and capable of understanding the consequences of his or her actions and can testify in court.
7. The witnesses must sign the last page of the will. The signatures can be made anywhere on the last page, but it is recommended that they are made below or as near as possible to the last line of the will. The witnesses’ role is to witness the signature of the testator or the person signing on the testator’s behalf. It is therefore not necessary for the witnesses to read the will. For additional evidential value, it is recommended that the witnesses add an attestation clause along the following lines: “We, X and Y, hereby confirm the signature of testator Z and declare that we have signed the will of Z on DATE in the presence of one another and of Z.
8. Although it is not a legal requirement, it is recommended that the witnesses also sign every other page of the will.
9. A beneficiary or executor should not sign a will as a witness. If they do, they may be disqualified from inheriting under the will. The validity of the will however will not be affected.
10. While it is not a formal requirement for validity, it is highly recommended to date your last will and testament to avoid any confusion in case more than one will is found.

Amending your Will

The freedom of testation implies that a testator may revoke or alter his or her will at any time before their death, so if you’re expecting an inheritance, make sure to play nice until the end. And remember, no one has a fundamental right to inherit.

Amendments to a will are regulated by section 2(1)(b) of the Will Act. Amendments include any deletion, addition, alteration or interlineation. An amendment made via a codicil, which is a schedule or annexure to an existing will, must follow the same rules as those for drafting a valid will. The witnesses to a codicil do not have to be the same as the witnesses of the will.

Amendments made on the will itself must be identified by the signature of the testator or such person signing on his behalf. The signature must be made as close as possible to the amendment in the presence of two witnesses who are present at the same time. The witnesses must also sign as close as possible to the amendment. If the amendment is signed via a mark, thumbprint or a delegated person, then the commissioner of oaths must also satisfy himself as to the intentions and identity of the testator, and must certify the amendment.

Should a testator wish to delete his or entire will, this will amount to a revocation, and the requirements of section 2(1)(b) of the Wills Act will not apply. A will may be revoked by the execution of a new will which expressly revokes the former, or through the destruction of a will with the accompanying intention of revoking it.

Should you amend your will after a divorce?

If you don’t want your ex to inherit, then definitely. The Wills Act gives the newly divorced testators a three month grace period in which they assume that the divorced parties no longer like each other. Accordingly, if the testator dies within 3 months of the date of the divorce, the will is interpreted as if the surviving party has died before the deceased, and the estate will be distributed accordingly. If however a divorced testator fails to amend their will or draft a new one within three months from the date of divorce, it will be assumed that the testator wishes his or her ex-spouse to benefit as per the will.

And finally, seek professional legal advice

The information contained in this article is aimed at informing and guiding the reader, but may not be suitably geared for a person’s unique circumstances. There are numerous technicalities which have not been discussed in this article and may be important when considering the administration of one’s estate and the requirements for drafting a valid will.

Is your Will valid?

Provided By Abrahams & Gross

Topics Wills, Estates & Trusts

15 Jun 2018

Two things in life are certain – death and taxes. When we die, we have one last chance to do what we want with our belongings (our Estate), but only if a valid Will is in place.

Let’s look at the requirements of a valid Will and other related aspects like competency, amendments and signatures.

Will or codicil?

A codicil can only exist in relation to an already existing valid Will. It is an annexure or attachment and must survive the same requirements as a Will in order to be valid.

Who is competent to write a Will?

A person of 16 years and older is competent to make or write a Will, unless at the time of making the Will he or she is mentally incapable of appreciating the consequence of his or her actions.

If the Will is handwritten, the person who writes the Will is not allowed to be a beneficiary in that Will.

Who is competent to be a witness to a Will?

A person of 14 years and older and who at the time of witnessing the Will is not incompetent to give evidence in a court of law, is competent to be a witness to a Will.

A beneficiary of a Will cannot sign as a witness to the Will. A beneficiary who signs a Will as a witness will be disqualified from inheriting any benefit and therefore should not witness the Will.

Witnesses must sign in the presence of each other and of the testator/testatrix (person making the Will) or in the presence of the signing party in the instance where someone signs on behalf of the testator/testatrix.

What are the requirements of a valid Will?

The Wills Act 7 of 1953 and Regulations thereof, as well as various case law sets out the requirements for a Will to be valid, as follows:

1. A Will must be in writing (typed or handwritten);
2. A Will must be signed by the testator/testatrix anywhere on the page, except the last page where the testator/testatrix should sign at the end of the text of the last page of the Will (more on signature formalities below);
3. A Will must be witnessed by two competent witnesses. We recommend that the witnesses sign each page;
4. If the Will is more than one page, the testator/testatrix must sign every page. A witness is not legally required to sign every page, only at the end, but we recommend that they sign every page; and
5. It is not a legal requirement to date a Will, however, it is HIGHLY advisable that a Will is dated to determine which Will is the latest (take it as a requirement).

Signing a Will

If the testator/testatrix cannot sign the Will for whatever reason, the following options are available:

1. The Will may be signed by someone else in the presence of the testator/testatrix at the former’s direction, who acknowledges the signature, and in the presence of two competent witnesses; and
2. The testator/testatrix may sign by making a mark.

In both scenarios, a commissioner of oaths must satisfy him/herself as to the testator/testatrix’s identity and that the Will belongs to them. The commissioner signs every page and must supply his certificate at the end of the last page.

Amendments to a Will or codicil

Any amendment to a Will or any codicils (annexures) relating to the Will must be identified by the signature of the testator/testatrix or by the person who made it in his/her presence and direction and in the presence of two witnesses. The amendment must also be identified by the signatures of these witnesses.

Should the amendment be identified by the making of a mark by the testator/testatrix or the signature by some other person in their presence and direction, a commissioner of oaths has to certify and sign as set out above.

Conclusion

In the absence of a Will, or worse yet, a valid Will, a person’s estate will devolve according to the laws of intestate succession as governed by the Intestate Succession Act 81 of 1987. It is imperative that one has a valid Will to avoid unintended devolution.