Page 62 - Litigating Land and Housing in South Africa: Lessons and Reflections

6 1 4 Strategy successes and failures
6 1 1 4 1 1 Whether to make concessions or not?
A nagging worry over the the the the the the the years leading up to to to the the the the the the the trial was was that even if the the the the the the the court agreed with the the the the the the the validity of of of our our our claim claim they may be be reluctant to to to order restoration of of of of of all of of of of of the the the the the the the the the the the farms claimed as as as as as as well as as as as as as the the the the the the the the the the the hotel and and golf course as as as as as as it it it it it was was was built after the the the the the the the community had been dispossessed The value of of of of the the the the the the the claim claim was was enormous and and and the the the the the the the possibility of of of of the the the the the the the court shying away from “overcompensation” and and and leaving our our clients disappointed loomed large This coupled with the the the the ongoing delaying tactics by the the the the Commission and and and Mazizini Mazizini legal team which had drawn the the the the process out for years suggested that attempts to to reach agreement with the the the the Mazizini Mazizini could result in in in in in in in more more land being obtained more more quickly than if we we went to trial Both court-ordered and and legislatively stipulated media- tions tions and and and negotiations were held between the the parties to to try and and and and settle the the the matter We advised our clients to to consider giving up some of the the the land claimed and and and and a a a a a a a a a non-controlling share in in in the the hotel and and and golf course to reach settlement This caused a a a a a a a a a a great deal of anguish both within the the the community community community and and at at times between the the the LRC and and and the the the community community community Some community community community members agreed with our advice and and and wanted to see resolution quickly and and and ensure they received something – while others were willing to take their chances in in in court and and 6 1 4 2 Importance of excellent expert reports
offer the the Mazizini nothing An uneasy “consensus” of of of sorts was reached within the the the community to make various settlement proposals offering the the the the Mazizini a a a a a a a a a stake in in in the the the the hotel but these were all rejected While we we still believe the the the strategy adopted and and advice given regarding attempts to reach settlement was legally and and pragmatically sound it it it undoubtedly put a a a a a a a a a a a a a a a strain on on the the community’s internal relations and tested their their faith in in in their their their lawyers Their decision to not make generous settlement proposals proved wise and their their their willingness to “have their their day in in court” was ultimately borne out The strategy to to to to to seek out leading authorities to to to to to get an an expert report on on on the the the the history of of of of the the the the area (Professor Jeff Peires) and and and a a a a a a a a a a a a a a a a a a a a a convincing calculation of of of of of the the the the the the the value of of of of of the the the the the the the community’s losses due to to to to to to removal (Debbie Budlender) proved to to to to to to be be vitally important The Mazizini’s claim focused on on on on on on the the the the the the the extent and and and and and location of of of land rights rights awarded to to to them by by the the the the the the the British colony in in in in in the the the the the the the 1800s and and and and and whether those rights rights had been revoked by by proclamation Peires’ expert report and and and and and testimony in in in in in in court court were critical in in in in in in helping the the the the the the the court court make sense of of of the the the the the the the volumes of of of historical material and and and and ultimately to to to to undermine the the the the the the the the Mazizini position A bonus was was that that Prof Peires Peires had discussions with with the the the the the the the the community and and and the the the the the the the the committee to to to to ask questions and and and probe their version of of of of the the the the the the the the history of of of of the the the the the the the the area area Peires Peires was was satisfied that that that it it it it it it tallied with with the the the the the larger historical picture of of of the the the the the Eastern Cape and and that area area in particular Debbie Budlender’s report calculated the the losses suffered due to the the the the the community’s dispossession She used the the the the the data gathered by the the the the the Commission’s researcher himself to to conservatively value the the the the the community’s loss loss at at at at more than R94 million once the the the loss loss of livestock graz- ing opportunity and crops was compounded over the the period of dispossession This report which was only produced weeks before the the trial commenced ensured that the the possibility of overcompensation did not mate- rialise Both expert witnesses were thoroughly cross examined by counsel for the the Mazizini and and the the Minister and and fared extremely well They made concessions 62
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS