Cape Town land court rejects Bishopscourt land restitution challenge

The land Claims Court has dismissed an application by Bishopscourt and Fernwood residents who challenged decisions relating to a land claim by former Protea Village residents removed under apartheid.

The land that is the subject of the case consists of two erven, Erf 212 and 242, and a farm. The applicants' properties surround the land.

While they did not object to Erf 242 and the farm being restored to the claimants, the applicants took issue with other aspects.

They argued that they had servitude rights in respect of Erf 212, known as the arboretum, which is a designated green public space with a spring, and is held in trust by the City of Cape Town.

They submitted that the restoration of that erf would lead to an invasion of their privacy, and increase noise levels. In addition, they claimed that the value of their properties would be negatively affected.

Adding to their objections relating to Erf 212, the applicants also raised concerns about the manner in which the claim was submitted, and the minister of Land Affairs and the land claims commissioner's decisions to hand the land to the claimants as part of a settlement.

They asked the court to review the minister's and commissioner's decisions not to admit them, the Bishopscourt Residents Association (BRA) or the Fernwood Residents Association (FRA), as interested parties to a settlement.

They also wanted the memorandum of agreement and minister's approval of the agreement set aside.

They asked the court to direct the commissioner to refer any final settlement agreement to the court.

In a judgment last week, Judge Shanaaz Mia said the residents' interests and their rights of access to the arboretum must be weighed up against the rights of the claimants.

"The national commitment to redress the wrongs of the past, in this instance the racially discriminatory laws and practices which resulted in the forced removal of the Protea Village community as provided in Section 33 of the Restitution Act, must be considered to ensure restitution occurs in an appropriate form," she said.

There was no indication that the minister did not weigh up these factors when determining that the BRA and FRA should not be parties to the restitution agreement, or that the land should be restored.

"There is no evidence before me that the decision taken by the minister, the commissioner or the municipality pertaining to Erf 212 was without authority, or that the decision was unreasonable," Judge Mia said.

In addition, she said there was no evidence that the decision and the process adopted in deciding to restore the erven or farm was unreasonable, or that there was any bias. She said she also could not fault the minister's or commissioner's conclusion that a community had existed in Protea Village.

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