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the News |
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Farmers
lose appeal on land claim process
- 24 March |
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The Supreme Court of Appeals has
dismissed an appeal by the Transvaal Agricultural Union against a
2002 Land Claims Court judgment that approved government’s
procedure to deal with land restitution claims.
The judgment means government is now in a position to accelerate its
land restitution programme, which has been slowed down by
litigation.
In December last year, the land affairs department indicated that it
had settled 56719 claims out of 79696 claims that had been lodged to
recover dispossessed land.
There are 22977 unsettled claims remaining.
The farmers’ union was aggrieved about the events preceding the
publication of a notice in the Government Gazette by the Land Claims
Commission that a land claim had been lodged.
It felt that the actions taken by the Commission on Restitution of
Land Rights before the publishing of a claim were not favourable to
farmers or landowners.
Some of the actions by the commission include checking whether a
claim complies with the formal requirements of the Restitution of
Land Rights Act, and whether it has historical grounds.
In its application to the court, the union asked for an order that
would entitle the landowner to participate in the investigation of a
land claim before a notice was published.
"It is clear that (the union) mistakenly viewed the steps taken
at an early stage by the commission as adjudicative rather than
investigative," Judge Mohamed Navsa said in his judgment.
The agricultural body had complained that the land affairs
department, the minister and the commission adopted policies and
behaved in a manner that prejudiced their members and favoured
claimants.
The appeal court said the order sought by the union would affect
five claimants mentioned, but these were not joined in the
proceedings in the Land Claims Court.
"There is no question that farmers and/or owners and claimants
had a direct and substantial interest in the subject matter and
outcome of the application by (the union) and should have been
joined.
"More importantly, their involvement in the litigation might
have provided a proper factual basis upon which a decision could be
made. We might very well have had the benefit of their submissions
on some of the legal issues raised," Navsa said.
The judge said courts of appeal had congested court rolls and did
not give advice gratuitously. They decided on real disputes and did
not speculate. The explanation by the commission and the ministry as
to why they withheld information before publishing a notice was
persuasive, he said.
"They provided detailed explanations of the painstaking steps
taken by officials of the commission to process and expedite claims
against a background of attendant complexities. The phase before the
publication of the notice is investigative and not
adjudicative".
Business
Day website
see link to Judgment above
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Unlucky
118 : |
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Pauline Larson
The number 118 is fast becoming
unlucky for sellers of property in SA cities. First, the section 118
ruling by the constitutional court last year made landlords
responsible for their tenants' municipal accounts. And section 118
(1a) of the Municipal Systems Act (MSA) stipulates that clearance
certificates must be valid for 120 days, instead of the previous six
to eight weeks.
Clearance certificates are issued
to confirm that the seller is up to date with rates and other
municipal charges. A property cannot be transferred without a
clearance certificate.
As a result of the MSA clause, the
city of Johannesburg has recently introduced policy requiring
sellers to provide a deposit equal to six months' worth of municipal
charges. This seems to have been put in place to compensate for
inefficient billing systems.
For a typical suburban household,
six months' worth of charges can be as much as R15 000. Last week, a
seller of a R1m house was told to produce R200 000. And though the
sum is a deposit, sellers had better not want their money back in a
hurry. "It's hard to say when these amounts will be refunded,
given the council's appalling track record," says the
Democratic Alliance's Johannesburg leader, Mike Moriarty.
Some sellers have had to wait 12
months to be refunded by the city. Delays are particularly bad in
Johannesburg, but lawyers say the same inefficiencies are cropping
up in Pretoria.
The MSA also says that to get your
clearance certificate, your municipal account must be up to date for
two years. But the Johannesburg council reserves the right to pursue
landlords for any balance that is older than two years.
Some argue that the longer the
transfer of accounts takes, the better for the council.
"They've got six months' income in advance," says Knowles
Husain Lindsay Inc senior associate Fanie du Preez. "So they
don't have to collect."
In other words, there is little
incentive for the council to expedite matters.
Moriarty suggests the commercial
and buy-to-let property sectors will suffer because the sale of
property has become more complicated, expensive and time-consuming.
As usual, it's those sellers with
the least income that are the worst affected. "It appears the
municipality expects the property owner to take out a loan for the
amount if they don't have the cash on hand," says Moriarty.
Some analysts predict an upsurge in
class actions against the council, but there are mixed views about
the efficacy of this approach.
Mandy Woods, a spokesman for the
city of Johannesburg's revenue department, concedes its systems are
weak and that fraud has had a significant impact. "This is of
concern to us. If it is left to get out of control, the city will
not be able to collect the money due and at present 75% of the
city's budget comes from the payment of municipal services."
But there is a move to bring sanity
back to the property-sale process. "The council asked us for
assistance and we are now trying to work together to find
solutions," says Sophia de Klerk, an attorney with Young Davis
who also represents the Johannesburg Attorneys' Association.
Several groups have petitioned the
department of provincial & local government to have the 120 days
reduced. And, says De Klerk, they have agreed to amend the
requirement to 60 days.
"The problem is that sellers
just pay the council to expedite matters," she adds. "They
don't always take the time to sort out discrepancies." This
perpetuates the inefficiencies.
The effect of both the
constitutional court's section 118 ruling and the MSA clause could
be to discourage property ownership. Especially where, as Moriarty
points out, "the landlord is forced to become an underwriter of
last resort".
But the upside is that these
measures should make landlords more vigilant and property managers
more professional.
Financial
Mail website
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Law
will rein in crooked sheriffs
- 12 March |
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Mpumelelo Mkhabela
The government will
draft new legislation to prevent the sale of houses at
below market prices in execution to recover small debts.
This was said by
Justice Minister Brigitte Mabandla in response to a
question in Parliament about corrupt sheriffs involved
in executions.
She said the draft
legislation was intended to prohibit the disposal of
immovable property of poor people like low-cost houses.
This follows a
recurrence of cases which were dealt with in the
Constitutional Court where houses of individuals were
sold in execution well below their market value for
"insignificant debts".
Steps would also be
taken to transform the predominantly white sheriff's
profession, she said.
A code of conduct would
be introduced to prevent corruption and collusion when
execution orders are carried out.
Meanwhile, a joint team
of the departments of justice and correctional services
is probing whether to extend the minimum sentence
legislation, which has been partly blamed for
overcrowding in prisons.
The legislation is
applicable until April 30.
Inspector of Prisons,
Judge JJ Fagan, wants the legislation, which prescribes
long sentences, to be scrapped and to reduce the number
of years a prisoner can serve before parole is
considered.
Mabandla and De Lange
told Parliament that prison overcrowding would be a
subject of investigation by the review commission. It
will be established to investigate the entire criminal
justice system.
City
Press website
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Biggest
boom is in vacant land
- 16 March |
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Dirk De Vynck
The price of vacant land is growing faster than that of houses in
some areas, a trend that could make housing within city limits
unaffordable for many.
A recent study by property economists and valuers Rode &
Associates in the Camps Bay/Bakoven area on Cape Town's Atlantic
seaboard showed that the price of serviced vacant erven grew at a
compound rate of 70 percent a year between July 2001 and January
this year.
During the same period, house prices in this area grew at 37 percent
a year, while Rode's house price index for upper-priced homes in
Cape Town grew by "only" 29 percent a year.
Chief executive Erwin Rode said this trend was likely to continue,
making serviced vacant land a particularly attractive investment
option.
Camps Bay/Bakoven was a special case because the supply of erven was
extremely limited while demand was growing apace, but the trend
probably applied in the wider Cape Town metropolis.
Rode said he suspected that similar trends were found in other
metropolitan areas. Jacques du Toit, a senior economist at Absa,
said indications were that prices of vacant stands in major cities
were growing faster than prices of houses.
He said the scarcity of serviced stands was becoming a structural
rather than a cyclical phenomenon.
One of the underlying causes of the rally in the price of vacant
erven, Rode said, was the fact that metropolitan municipalities had
in recent years drawn "urban edges" on their borders.
"The aim was to limit urban sprawl and encourage greater
density of development within the current metropolitan
boundaries."
And although municipal authorities probably intended to provide
cheaper, densely developed housing to lower-income groups closer to
the city centre, the move might be having the opposite effect.
"The property boom has resulted in demand for land far
outstripping supply, creating a sharp upsurge in land prices.
Combined with inefficiencies in delivery of infrastructure, this has
created a long lag time for land to be subdivided and
serviced."
If delivery did not improve, he said, rising land prices could make
housing within current metropolitan boundaries unaffordable to
lower-income groups.
Rode said the cost of land was also leading to a decline in the size
of erven for new housing developments, a trend he welcomed as it
helped with the densification process.
Du Toit said other infrastructure constraints, such as traffic
congestion and the absence of an adequate public transport system,
as well as increasing urbanisation, added to the demand for
residential properties in metropolitan areas.
Andrew Golding, the chief executive of the Pam Golding Property
Group, said as a generalisation he agreed that prices of serviced
vacant stands were rising faster than house prices, especially in
highly sought-after areas.
Of the group's annual sales of about 15 000 properties, about 5 000
were serviced empty stands
Business
Report website
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Price
of land claim farms inflated, report
- 14 March |
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Details from damning investigative
reports on alleged profiteering in multimillion rand land
restitution deals in Mpumalanga have been revealed by Agriculture
and Land Affairs Minister Thoko Didiza.
They include the recommendation
that criminal proceedings be instigated against those officials and
others involved in the deals.
The two-prong investigation,
involving a forensic audit and a
report by an independent land valuer, was instigated by the minister
last year after media reports of alleged manipulation of the sales
prices of 21 farms in the Badplaas area.
According to reports at the time,
land speculators, allegedly working with officials from the
provincial land claims commission, fraudulently inflated prices on
21 gazetted land-restitution scheme farms.
Last year, Land Affairs suspended
land claims commissioner Nceba Nqana and project manager Linda
Mbatha.
Didiza, briefing Parliament's land
affairs portfolio committee on the progress of investigations last
week, told members that among the report's findings were that market
valuation principles and standards had not been adhered to, or were
misconstrued by the valuers.
"The findings also indicate
there was incorrect application of valuation methods, which resulted
in flagrant overstatement of market value."
Further, it was very evident there
had been "misrepresentation of market conditions".
"No competent sales analyses
were carried out, and the guidelines supplied by the valuers could
not be supported by the listed sales.
"No adequate or relevant
research seems to have been carried out ... (and) misconstruction
and application of the correct valuation principles, or comparable
sales, indicate miscomprehension, lack of knowledge, experience and
competency in accordance with standards or best valuation practices
by the valuers."
Highlighted in the report was
"that motivation of judgment was absent or unsupported or
unconvincing when the interviews were held with the valuers
concerned".
"Clearly, there were many
mistakes ... that demonstrated sloppiness of an unacceptable
standard," Didiza said.
It was also found that the lands
claim commission project officer "processed payment, despite
having been cautioned by the deputy director-general finance of the
calculation errors in the claim".
The report also showed grant money
was used to buy "moveable properties".
One "interesting
scenario" uncovered was that one of the farms was leased back
at a price of R6 700 a month to the seller (the original landowner)
by the beneficiary, and the original landowner, instead of using the
land, actually sub-let the farm to a third party, "at a price
of R75 000 a month".
Among the report's recommendations
were that a criminal investigation "should be considered by the
department regarding fundamental irregularities identified in the
processing of the claims".
This was "in terms of the
manipulations of valuations and the use of grants in a manner which
is contrary to decisions".
On disciplinary action against
"those officials that were working on this claim", Didiza
said charge sheets had been finalised, and an
advocate appointed to preside over a disciplinary hearing.
An advocate had also been appointed
to look at "civil action against valuers, landowners and,
possibly, some of the commission's staff".
"We are also identifying areas
that may require criminal action, as such we have actually engaged
the Commercial Crime Unit of the SA Police Service.
"We have also appointed
high-level staff in the Mpumalanga regional land claims commission
to beef up our capacity to deal with some of the issues."
The department also planned to hold
talks with the Institute of Valuers to raise concerns about
"some flouting of the code of ethics" by some of their
members with regard to the Badplaas sales.
Didiza told members she could not
yet release the report, "because of the charges and further
investigation that has to be done by the Commercial Crimes
Unit".
Pretoria
News website
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Judge
blocks order to evict forest settlers
- 4 March |
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Jeff Otieno And Joseph Kimani
Nairobi
The planned eviction of
more than 20,000 squatters from Mau Forest will not take
place after all.
Narok district
commissioner Hassan Farah said he had been served with a
court order stopping it.
"I have been
ordered to halt the exercise and so it will not take
place," he said, but warned that the Government
would not allow illegal activities in forests.
Judge Milton Makhandia
granted the order when seven people applied to the High
Court to squash Lands and Housing minister Amos
Kimunya's cancellation of 10,000 squatters' title deeds.
The judge said he was
satisfied the seven had a case. His order means no one
will be evicted and no title deed will be cancelled
until the suit is determined.
Representing Mr
Nayieyie Olole Sirma, Mr Fredrick Kiptanui Cheres, Mr
Eric Kiplagat, Mr Joseph Kipyegon, Mr Olonana Kirinkol,
Mr Joseph Mutai and Mr Leonard Langat, lawyer Kioko
Kilukumi said the minister had no power to cancel titles
to land occupied by about 40,000 people.
The title deeds had
been issued under the Lands Act, they said, and accused
the minister of cancelling their titles without giving
them a hearing before The group has 21 days to file the
main suit.
The squatters were to
be moved today expressly to save the forest from further
destruction.
Mr Farah said before
the court order that the operation was complex and aimed
at flushing out illegal settlers and stopping activities
threatening the forest.
"The Government
only wants to save the catchment area from wanton
destruction because more than 10 million Kenyans rely on
it for their daily livelihood," he said.
Top security officials
yesterday toured the targeted areas to establish the
legal boundaries ahead of the operation.
They told the squatters
to move out, citing charcoal burners and illegal loggers
as some of the unscrupulous individuals who would be
targeted in the 10-day operation.
Residents continued to
flee the affected areas yesterday to avoid confrontation
with the police. Some were seen on the Mulot-Olenguruone
road carrying their belongings on donkeys.
Environmentalists have
praised the planned eviction, saying it is wise to
conserve forests.
The chairman of the
Narok branch of the Kenya National Chamber of Commerce
and Industry, Mr Jackson ole Kamoye, said: "The
evictions must go on if Mau is to be saved from
extinction."
AllAfrica website
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