MalaMala land claim case heads for Constitutional Court

One of South Africa’s most expensive land claim cases, involving the world-renowned ecotourism MalaMala Game Reserve, is to be considered by the Constitutional Court.

The current landowners value the land, which covers about 13,000ha, at just over R900m, or R70,000 per hectare.

The Mhlanganisweni community wants an order to return the land to them, and for the rural development and land reform minister to pay the game reserve owners R460m.

The Constitutional Court challenge centres on what is just and equitable compensation for the land being claimed.

A ruling on the matter by the highest court in the country would determine the extent to which a court could deviate from market value in determining just and equitable compensation.

The Mhlanganisweni community, which consists of about 2,000 people, has been trying for years to return to the land, which is located in Mpumalanga.

The regional land claims commissioner, in an attempt to settle the claim, made a written offer to the landowners in May 2008 to purchase the MalaMala land for R741m.

The offer was subject to the approval of the rural development and land reform minister, who refused to approve the offer.

In April last year, the Land Claims Court ruled that the restoration of the land to the community would not be feasible.

The government’s stance in that case was that should the Land Claims Court find that the state was required to pay compensation to the landowners of more than R30,000 per hectare, it would not be feasible to restore the MalaMala land to the claimants.

But the community argued before the Constitutional Court that considering the fact that in 2011 unimproved agricultural land generally varied between R5,000 per hectare and R15,000 per hectare, it was of the view that the government’s offer of R30,000 per hectare was a reasonable one and that the fiscus could not be expected to pay more than this.

In his founding affidavit before the Constitutional Court, Perry Mzamane, who represents the community, said the parties agreed that the claimants had been dispossessed of the land as a result of historical racially discriminatory laws and practices.

"The only dispute between the parties was whether the restitution award should take the form of restoration, in other words the return of the land actually lost, or whether it should take some other form of equitable redress," Mr Mzamane said.

Mr Mzamane said the correct approach to be taken by the court should not be what the "correct" compensation should be.

He said the correct approach would be to assess whether the government’s offer was just and equitable.

"Government’s offer, after all, is a good starting point," he said.

However, David Evans, business manager of MalaMala Ranch, the owner of the MalaMala Game Reserve, said the finding by the Land Claims Court last year that it was not feasible to restore the MalaMala properties had brought an end to the decade-long uncertainty as to the future of the game reserve.

Mr Evans said the government had never made an offer to pay the landowners R460m.

He said the landowners did accept an offer from the land claims commissioner to purchase the properties for an amount of R741m in May 2008, but the offer was not approved by the land affairs minister. The claimant community is expected to submit heads of argument before the Constitutional Court on or before May 3.