IN THE LAND CLAIMS COURT OF SOUTH AFRICA

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					         IN THE LAND CLAIMS COURT OF SOUTH AFRICA
Held at RANDBURG on 19-20 June 2002                               CASE NUMBER: LCC 16/97
before Bam AP and Meer AJ, Zybrands (assessor)

Decided on: 26 August 2002

In the case between:

THE MINISTER OF DEFENCE                                                            First applicant

THE PREMIER OF THE NORTHERN CAPE PROVINCE                                       Second applicant

and

KHOSIS COMMUNITY AT LOHATLA                                                      First respondent

GATLHOSE COMMUNITY                                                            Second respondent

MAREMANE COMMUNITY                                                              Third respondent

MINISTER OF AGRICULTURE AND LAND AFFAIRS                                       Fourth respondent

MINISTER OF PUBLIC WORKS                       Fifth respondent

REGIONAL LAND CLAIMS COMMISSIONER NORTHERN                                      Sixth respondent
CAPE PROVINCE

In re:

Claims by the Gatlhose, Maremane and Khosis Communities concerning the farms known
as Gatlhose Native Reserve and Maremane Native Reserve, Lohatla, Kuruman.


                                          JUDGMENT



MEER AJ:

Introduction

[1]      This is an application by the Minister of Defence and the Premier of the Northern Cape in
terms of section 34 of the Restitution of Land Rights Act1 (“the Act”) for an order declaring that
when any claim for restitution of rights in land in respect of the former Maremane and Gatlhose

1        Act 22 of 1994, as amended.
                                                         2

Reserves (“the Reserves”), now a part of the South African National Defence Force Battle School
(“the Battle School”), is finally determined, no part of the Reserves shall be physically restored to
any claimant. Such a restoration, the application contends, would be both against the public
interest and prejudicial to the public or a substantial part thereof. The Reserves take up some 62
000 hectares of the Battle School, the largest military training base in the country, situated at
Lohatla, in the Northern Cape. The land is held by the fifth respondent, the Minister of Public
Works, on behalf of the State, and is reserved for defence purposes under the jurisdiction of the
first applicant, the Minister of Defence. It is also in the area of jurisdiction of the second applicant,
the Premier of the Northern Cape.2 The Battle School base with all its improvements is estimated
to have a replacement cost in excess of R800 million.3


[2]      Three communities, the Khosis, Gatlhose and Maremane (the first, second and third
respondents respectively, hereinafter referred to as “the Claimants”) have lodged claims for
restitution of rights in land in respect of the Reserves in terms of section 2 of the Act. They seek




2       The Premier has jurisdiction over the relevant provincial departments responsible for provincial duties and
        obligations in the Northern Cape Province.

3       The first applicant's founding affidavit, page 16, pleadings bundle at para 14.3.
                                                         3

physical restoration of the Reserves.4 The Reserves were formerly known as the Maremane and
Gatlhose Reserves, 49 778.9225 hectares and 12 175.5658 hectares in extent respectively, of
which the claimants allege they were dispossessed. All three claimant communities oppose this
application.




4      As opposed to equitable redress. Section 1 of the Act defines “restitution of a right in land” as

       “(a)     the restoration of a right in land; or
       (b)      equitable redress;”

       “equitable redress” is defined as:

       “any equitable redress, other than the restoration of a right in land, arising from the dispossession of a right
               in land after 19 June 1913 as a result of past racially discriminatory laws or practices, including-
       (a)     the granting of an appropriate right in alternative state-owned land;
       (b)     the payment of compensation;”
                                                         4

[3]     Section 34 of the Act states:

                “(1) Any national, provincial or local government body may, in respect of land which is owned by it
                or falls within its area of jurisdiction, make application to the Court for an order that the land in
                question or any rights in it shall not be restored to any claimant or prospective claimant.

                (2) Notice of any such application shall be given to the Commission, which shall investigate and
                submit a report to the Court on the desirability of making an order referred to in subsection (1):
                Provided that the provisions of sections 12 and 13 shall not be so construed that it prohibits the
                Commission from exercising the powers conferred by those sections for the purposes of such
                investigation.

                (3) Any party making an application to the Court in terms of subsection (1) shall, at its own expense,
                take such steps as the relevant regional land claims commissioner (or in the case of proceedings in
                terms of Chapter IIIA, the Court) may direct in order to bring the application to the attention of other
                persons who may have an interest therein, in order that they may make submissions to and appear
                before the Court on the hearing of the application.

                (4) The regional land claims commissioner concerned shall take such further steps as he or she deems
                appropriate to bring the application to the attention of persons who may have an interest.

                (5) After hearing an application contemplated in subsection (1), the Court may-
                          (a)      dismiss the application;
                          (b)      order that when any claim in respect of the land in question is finally determined,
                                   the rights in the land in question, or in part of the land, or certain rights in the
                                   land, shall not be restored to any claimant;
                          (c)      make any other order it deems fit.

                (6) The Court shall not make an order in terms of subsection (5)(b) unless it is satisfied that-
                         (a)      it is in the public interest that the rights in question should not be restored to any
                                  claimant; and
                         (b)      the public or any substantial part thereof will suffer substantial prejudice unless an
                                  order is made in terms of subsection (5) (b) before the final determination of any
                                  claim.

                (7) ......

                (8) Any order made in terms of subsection (5)(b) shall be binding on all claimants to the rights in
                question, whether such claim is lodged before or after the making of the order.

                (9) Unless the Court orders otherwise, the applicant shall not be entitled to any order for costs against
                any other party.”

Section 34 vests the Court with the extraordinary power to order in advance under section
34(5)(b) that, when a claim for the restitution of a right in land is finally determined, the remedy
afforded to the claimant will not include restoration of the land itself. The effect of such an order
is to exclude in advance the remedy of restoration whatever the fate of the claim might otherwise
be, where the public interest requires that it be done, rather than to decide on restoration in the
final determination of the claim in the ordinary course. It is clear from section 34 that the two
threshold requirements for an order in terms of section 34(5)(b) are those set out at section
                                                     5

34(6)(a) and (b). The former requirement is that it is in the public interest that the rights in
question shall not be restored. The latter is that the public or any substantial part thereof will
suffer substantial prejudice unless an order is made in terms of section 34(5)(b) before the final
determination of the claim. Once these threshold requirements are established the Court has a
discretion under section 34(5) and may grant an order in terms of section 34(5)(b).


Background to the application


[4]    A proper consideration of this application in terms of section 34 requires that it be located
within the context of the land claims by the claimants and the preceding forced removals. What
follows is a brief account of the history of the occupation of the former Maremane and Gatlhose
Reserves, the forced removals therefrom, the subsequent establishment of the Battle School and
the attempts to settle the land claims, culminating in this application.


[5]    It is the claimants’case that their forefathers, who were of the Batlharo tribe and mainly of
Griqua and Tswana origin, occupied the Reserves from the mid-nineteenth century as a single,
wholly integrated community and organised their lives as such. In 1885, during the British rule of
the Cape, the British government granted the Reserves to the Batlharo tribe. Over time they were
distinguished into the Gatlhose, Maremane and Khosis communities by the authorities who
referred to groups of people on the Reserves with reference to their places of residence.
According to the claimants, however, the communities continued to be integrated and lived as
such until their dispossession, when divisions were imposed upon them by apartheid legislation.


[6]     The termination of British rule and the establishment of the Union brought with it the
notorious Land Acts5 of 1913 and 1936 and the Population Registration Act,6 all of which made
an impact on the inhabitants of the Reserves. The forced removals occurred as a consequence of
the operation of the 1936 Act. Prior to this, in terms of the 1913 Act, the Reserves had become a


5      The Natives Land Act 27 of 1913 and the Native Trust and Land Act 18 of 1936 (“the 1913 Act” and “the
       1936 Act” respectively). These Acts both subsequently underwent various name changes; I refer to them by
       their original names.

6      Act 30 of 1950.
                                                          6

“scheduled native area” in which only “natives”could acquire land.7 With the passing of the 1936
Act,8 the Reserves, as a scheduled “native” area, vested in the South African Native Trust9 under
                                                                                 s
the ultimate trusteeship of the Governor General and was registered in the Trust’ name in
September 1961. Thereafter, through the workings of the 1936 Act, the Reserves were identified
as a “black spot” which had to be removed to give effect to the policy of apartheid and was
excised from the land held by the trust.10 As the Reserves were no longer reserved for the
occupation of “blacks”, those inhabitants classified as “black” had to be removed. The Gatlhose
and Maremane communities had, by that time, come to be classified “black”11 and the Khosis



7      Section 1(2) of the 1913 Act provided that nobody other than a “native” could acquire land in a “scheduled
       native area” from a “native” except with the approval of the Governor General. A “scheduled native area” was
       an area listed in the schedules to the 1913 Act as a native area.

8      Section 1 of the 1936 Act provided that, subject to the modifications to the 1913 Act made by the 1936 Act,
       the two Acts had to be “construed as if they formed one Act”.

9      Section 4 of the 1936 Act established the South African Native Trust. Land in scheduled “native”areas such as
       the Reserves became vested in the South African Native Trust in terms of section 6(1) of the 1936 Act. Section
       4(2) and 18(1) of that Act made it clear that the Trust was to “hold and administer the land for the ... exclusive
       use and benefit of natives”.

10     In terms of section 3(1)(b) of the 1936 Act. The excision was achieved by Proclamation 64 of 1969, 28 March
       1969.

11     The Population Registration Act created the machinery for the race classification of people and the ultimate
       substitution of the definition of “black” for the definition of “native” in section 49 of the 1936 Act.
                                              7

community “coloured” in accordance with the Population Registration Act12, although according
to the claimants the communities continued to maintain a single identity. The Gatlhose and
Maremane Communities were removed from the Reserves late in 1976 and early in 1977, to an
area known as the Shipton Farms some 200 kilometres north of the Reserves, in the homeland of
Bophuthatswana. According to the claimants the land to which they were moved was not of
comparable agricultural or pastoral value to the Reserves and the communities endured terrible
hardship.




12     See n 6 above.
                                                       8

[7]    At the time of the removals the “coloured” Khosis community were apparently told they
could move with the “blacks” by taking Bophuthatswana citizenship. The Khosis community
chose not to do this and remained on the Reserves. Over time, they were confined to some 14 000
hectares which came to be located in the centre of the battlefield, which was established after the
then South African Defence Force13 (“the Defence Force”) took over the Reserves.


[8]    The claimants accordingly claim that they were dispossessed of rights in land in the
Reserves as a result of the operation of the 1936 Act, when the former Maremane and Gatlhose
Reserves were declared a “black spot” and excised from those lands set aside for occupation of
“natives”. The applicants accept that the Gatlhose and Maremane communities were dispossessed
and have a valid claim for restitution of rights in land in terms of the Act. They do not accept,
however, that the Khosis community was dispossessed and dispute the validity of that claim.


Establishment of the Battle School




13     The South African Defence Force became part of the South African National Defence Force (“the SANDF”)
       which was established by section 224 of the Constitution of the Republic of South Africa Act 200 of 1993 (the
       Interim Constitution).
                                                        9

[9]     In about early 1978, after the removal of the Gatlhose and Maremane communities, the
Government decided to establish a Battle School on the former Reserves for training of the
Defence Force, and the Reserves were allocated for this purpose. The Khosis community was
consequently moved from the different parts of the Reserves over which they were scattered and
confined to an area of some 14 000 hectares. As the Defence Force extended the Battle School,
the Khosis area came to be encircled by it and the community found itself increasingly restricted.
The army placed constant pressure on the community to vacate the Khosis area and negotiations
for their relocation ensued for more than a decade. These culminated in the greater part of the
community voluntarily moving to the township of Jenn Haven in 1992, where farms and grazing
land were allocated to them. However, a small part of the Khosis community,14 lead by one
Joseph Free, refused to move. Despite increasing pressure to force them out of the Khosis area,15
they have managed to continue in occupation in the middle of the Battle School. The “Free
Group”, as they have come to be called, is steadfast in its determination to remain in the Khosis
area.


[10]    There have been various attempts to resolve the claimants’claims. Unfortunately, these
have come to nought. Initially, at a meeting in 1996 with the State President, the Minister of Land
Affairs, the Minister of Defence and others, it was decided that the Reserves would be restored,
but this did not occur. Since then there have been various unsuccessful attempts to negotiate a
settlement. From the negotiations, it would appear that the Gatlhose and Maremane communities
may well have accepted that restoration is not possible. It also appears that it is only that part of
the Khosis community, which is said to number approximately 127 persons, who reside within the
Battle Field, that insists on restoration. This notwithstanding, all three communities are opposed
to the present application. During negotiations, an offer to the Free Group to move to 10 000
hectares in the south eastern part of the Battle School was rejected, and that land has since been
leased to farmers. Attempts by the fourth respondent, the Minister of Land Affairs, to secure
alternative land for restitution have likewise been unsuccessful. Due to the impasse in settlement


14      According to the SANDF this group currently numbers some “127 souls”.

15      An application for the eviction of the Khosis community is pending in the Northern Cape Division of the High
        Court, but has been postponed pending the outcome of the proceedings in this Court pertaining to the
        restitution claims.
                                                   10

negotiations, the fourth respondent is in support of the section 34 application, as is the sixth
respondent, the Regional Land Claims Commissioner.


Application by the claimants to file supplementary affidavits


[11]    The claimants applied for leave to supplement their initial answering affidavits with a
second set of answering affidavits, which sought to clarify some of their initial responses. They
explained that the supplementary information was not included in their initial answering affidavits
as their attorney, who had been involved in this matter from the outset, was on sabbatical leave
when these answering affidavits were drafted and filed. The applicants opposed the application,
contending that the further evidence sought to be adduced was irrelevant, and some of the
allegations were matters for argument. They did, however, file affidavits in reply to the second set
of answering affidavits, and the hearing commenced with the application for leave to supplement.


[12]    Rule 33(6) of the Land Claims Court rules permits the delivery of a supplementary set of
affidavits at the discretion of the Court. In this case, the determining factor guiding the proper
exercise of the discretion is the relevance of the supplementary affidavits to this application. The
supplementary affidavits seek to clarify various aspects of the answering affidavits and further
contextualise the section 34 application against the backdrop of the claimants’ land claims and
their protracted negotiations, factors which in my view are both pertinent and relevant to a
consideration of whether restoration of the Reserves should be excluded for the purposes of this
application. It is in addition necessary to have all relevant facts before us in the adjudication of this
matter. Moreover, given that the applicants have already replied to the supplementary affidavits,
they would suffer no prejudice if the supplementary affidavits were admitted. Importantly, given
that the approach of this Court is to shy away from unnecessary formalism in favour of a full
ventilation of all the issues before it, I am of the view that our discretion would be properly
exercised in terms of rule 33(6) if we were to admit the supplementary affidavits. The application
for leave to supplement is accordingly granted.


The section 34 application
                                                         11

Submissions in terms of section 34(6)(a)


[13]     The applicants made comprehensive submissions for the purposes of section 34(6)(a) as
to why it was in the public interest that land rights in the Reserves should not be restored. These
incorporated considerations ranging from the status of the Battle School as a national asset, and
its function in fulfilling training needs, to the degree of its contamination, danger to life, the socio-
economic-developmental factors militating against restoration and the economy of the Northern
Cape. Their submissions also included analyses of expert reports16 from three sources, the
Mechem reports by Mechem Consultants17 and the Royal Ordnance Reports by British Aerospace
Defence,18 both on the degree of contamination of the Battle School and costs of
decontamination, as well as the Heitman Report19 on the extent of the training area required by the
Battle School. The applicants’ submissions and the claimants’ responses thereto are dealt with
below.


The Battle School as a national asset



16       The expert reports comprise the document bundle.

17       There are four Mechem reports in the document bundle:

         1        Preliminary Survey and Cost estimate for the clearance and rendering safe of 10 000 hectares of
                  ground at SA Army Battle School at Lohatla dated 20 August 1995, at pages 1-8 of the document
                  bundle;
         2        Report on Preliminary Study Regarding the clearance and rendering safe of Grounds at SA Army
                  Battle School at Lohatla, (“the second Mechem report”) dated 20 January 1996, at pages 21-27 of the
                  document bundle, within the Royal Ordnance report in note 18 below;
         3        The final report dated 27 November 1997, at page 64-90 of the document bundle; and
         4        The second final report dated 8 January 1998, at pages 91-116 of the document bundle.

         There is also a price quote obtained by the Chief of the SANDF from Mechem Consultants dated 18 June
         1998, for R2.8 million (R311 per hectare) for clearance of unexploded military ordinance from the Khosis
         area, at pages 117-119 of the document bundle.
         Mechem Consultants is a division of Denel (Pty) Ltd.


18       At pages 9 - 63 of the document bundle. Royal Ordnance, an entity experienced in Explosive Ordnance
         Disposal, was approached by the British High Commission in Pretoria to offer technical assistance to the South
         African government by providing an independent assessment of the risk posed by unexploded munitions and
         contamination on the Lohatla training area.

19       “SA ARMY BATTLE SCHOOL Assessment of Training Area Needs”, by Helmoed-Römer Heitman, dated 3
         April 1998, at pages 120-171 of the document bundle.
                                                        12

[14]    The applicants contended that the Battle School is a national asset. In order to fulfill its
constitutional duties the SANDF relies heavily on the facilities available at the Battle School for its
training needs. To be effective, the SANDF has to be thoroughly trained in both normal war
fighting skills and the additional skills required for peace support operations. Only the Battle
School can provide effective training on the scale required. It would be well-nigh impossible and,
at the very least, impractical to replace it with a similar training area elsewhere in the country for
the following reasons:
        -        the prohibitive costs of re-establishing the infrastructure and improvements. The
                           current replacement cost of the improvements on the building area of the
                 Battle School complex situated in the south west corner of the former Maremane
                 reserve, 488 hectares in extent, is in excess of R800 million;
        -        the costs of purchasing or expropriating other land;
        -        the undesirability of contaminating a large new area; and
        -        the impossibility of economically decontaminating areas which are already
                 contaminated at the current Battle School firing ranges.


[15]    The applicants argue that, due to the status of the claimed land as a national asset, the
interests of all citizens of South Africa are affected by a possible order of restoration in respect of
any part of the Reserves which now forms part of the Battle School. The claimants do not dispute
the status of the Battle School as a national asset. Their view is, however, that the White Paper on
National Defence for the Republic of South Africa has prioritised addressing the socio-economic
inequalities resulting from apartheid as the pinnacle of national policy and consequently defence
policy. The right to restitution, they point out, is aimed at addressing socio-economic inequalities
resulting from apartheid. The need for a battle school, they argue, must therefore be considered in
                        s
terms of the government’ stated primary objective of correcting socio-economic injustices
                                                                          s
created by apartheid on the one hand, and the objective of the government’ security policy, the
defence of the political independence, sovereignty and territorial integrity of the Republic of South
Africa on the other.20




20      The first applicant's founding affidavit at pages 73-75 of the pleadings bundle.
                                                13

The Heitman report


[16]   The applicants contend that the current training area, including the Khosis area (also
known as the “Free Area”), is just adequate to conduct the requisite practical live fire, field and
manoeuvre training. The contention is based on the conclusions of the Heitman report,21 that the
SANDF needs the whole of the Battle School including the Khosis area for training.




21     At n 19 above.
                                                        14

[17]    The applicants point out that the presence of the Khosis community restricts the
effectiveness of the Battle School and has done so since the inception of the Battle School.
According to the Heitman report, the Khosis area places a serious constraint on manoeuvre and
live fire exercises. Lying at the heart of the training area, it effectively forces most training into the
corners and outer edges of the area, seriously impairing the effectiveness of training and placing
severe limitations on realistic live fire training.22 A restoration of the Khosis area, they argue,
would cause a densification of population in that area and increase the problems of proper training.
This is not disputed by the claimants, who argue instead for the restoration of the Khosis area and
the acquisition instead of additional land by the army, on the basis of the following extract from
the Heitman report:

        “ The only alternative to full use of the “Free Area” would be to acquire additional land adjacent to the Army
        Battle School to give the space needed for realistic training. That land would have to be larger than the “Free
        Area” to allow adequate safety distances during mechanised operations training. Merely adding an equivalent
        area would not give sufficient depth to allow safe training”23

The claimants argue that there is additional land adjacent to the Battle School which the State
could acquire to compensate for the restoration of the Khosis area to the claimants. They point out
that the State has the legal power to obtain such land, and contend that the application in respect
of the Khosis area must fail on this basis alone.24 The applicants counter that it is not practically or
financially feasible to expropriate further land surrounding the Battle School for inclusion into the
School and, even if this should be done, the applicants would still be faced with the totally
unacceptable situation, given the security and safety risks to civilians occupying the middle of the
Battle School. They add moreover that the land adjacent to the Battle School is farm land which
the fourth respondent, the Minster of Land Affairs, has unsuccessfully tried to obtain for the
purposes of resettling the second and third respondents. The applicants also argue that the
claimants quote selectively from the Heitman report and ignore the conclusions reached.25




22      The Heitman report, at pages 126-127, 153, 159-160.

23      The Heitman report, at page 127.

24      The supplementary affidavit of J Gasehete, page 374 of the pleadings bundle at para 5.

25      The applicants' reply to the supplementary affidavit, page 477 of the pleadings bundle at para 14.
                                                           15

[18]   The conclusions of the Heitman report are detailed and comprehensive, including the
following:
       “The Army needs a training area of this type and size if it is to train effectively. Without effective training it will
       not be able to perform its missions effectively, and it will suffer unnecessary casualties.

       The Army Battle School training area is large enough to carry out effective battalion and combat group level
       field training to meet the demands of operations in a very large theatre, if it includes full use of the “Free Area”.
       At 50km x 35km the area is, however, not large enough to allow fully realistic training....

       The introduction of new weapons systems, [with extended firing ranges] ... will result in the Army Battle School
       training area becoming too small. The G6 [gun], for instance, will not be able to fire to its full range within the
       Battle School perimeter, the Rooivalk [attack helicopter] will find it difficult to manoeuvre effectively and the
       Air Force will find it difficult to exercise the standoff attack techniques...

       The “Free Area” is a very serious constraint on manoeuvre and live-fire exercises. Lying at the heart of the
       training area, it effectively forces most training into the four corners and outer edges of the area. That seriously
       impairs the ability to conduct effective training in the operational style that the size of the theatre demands, and
       also places quite severe limitations on realistic live-fire training.


       ...

       More specifically, the “Free Area” prevents full use being made of the training area. Mechanised units are only
       allowed to drive through the area, and the artillery may shoot over it in certain circumstances. Units may not:
                 *Fire into;
                 *Fire across;
                 *Fight through;
                 *Manoeuvre through; or
                 *Deploy tactically in the “Free Area”.
       Lying in the centre of the training area, the “Free Area” turns it into what is effectively a 'doughnut'. Realistic
       manouevre and live-fire training is only possible along the sides and in the corners of the training area. That
       greatly reduces the areas and distances that can be utilised effectively.”26


[19]   The report also notes that there exists a social contract between the Government and its
soldiers, who undertake to fight for their country in return for the Government undertaking to
ensure they are equipped and trained to do so at the lowest possible risk to their lives. A
comparison of the size of the Battle School with those of other countries reveals that it is
considerably smaller, being 1 580 km² as opposed to Britain which has a training base of 2 500 km²
in Canada, Germany with a base of some 2 000 km², also in Canada, Israel which has a base of 2
500 km² in the Negev Desert and the USA with a base 2 600 km² for tactical and live-fire training

26     The Heitman report, at pages 126 and 157-8.
                                             16

which is to be enlarged by 1 250 km². The United States Marine Corps' Air-Ground Combat
Centre has a training area of some 2400 km².27




27     The Heitman report, at page 127.
                                                          17

[20]    The Heitman report therefore concludes that the SANDF needs the whole area of the Battle
School including full use of the Khosis area. The report states that, looking to the longer term,
consideration will need to be given to ways of enlarging the training area to accommodate new
weapon systems and the tactics that accompany them.28


[21]    The applicants, with reference to the Heitman report, highlighted the live fire danger to the
Khosis who run the risk of being hit during live fire exercises. They show how the Khosis area
would lie in the “safety arc”, namely the area which for safety reasons must be kept clear of troops
whilst various weapons are being used during a training exercise.29 They point also to the risk of
danger from artillery projectiles fired to extreme range,30 as well as the possibility of missiles and
guided bombs not always going where they are supposed to:

        “... as was tragically illustrated in an air attack ... during the 1991 Gulf War, when two laser guided bombs failed
        to home on the laser ‘  dot’on the target bridge and fell among civilians instead. Aerodynamic failures, such as a
        winglet not deploying or breaking off, can also cause wide deviation from the intended flight path. A bomb
        released in a “toss” bombing profile some 9 km from a target can fall as much as 3 km off target due to a fin
        failure. Yet it is essential to practise such stand-off attack techniques to avoid anti-aircraft defences.”31


The Mechem report and contamination

28      The Heitman report, at page 159.

29      The Heitman report, at page 142, map 7 on page 143, map 9 on page 149.

30      The Heitman report, at page 144.

31      The Heitman report, at page 145.
                                                      18



[22]    The parties referred to the Mechem reports which deal with the degree of contamination of
the Battle School, and the cost of clearing and rendering it safe from unexploded ordnance, prior to
the relocation of people in the area. Based on the reports, the applicants contend that major portions
of the Battle School, including the Reserves, have been contaminated with unexploded ordnance to
such an extent that they cannot be effectively decontaminated and consequently cannot be used for
any purpose other than that of a military training area.32 It is, they say, common cause that for all
practical purposes it is impossible to clear the largest portion of the claimed land of unexploded
ordnance due to the long period of time it has been used for active training with live ammunition. It
is the applicants’view that a resettlement of people in those areas will be impractical, dangerous and
          s
in no-one’ interest. Whilst the claimants do not dispute this, they emphasise the low level of
contamination in the south and south eastern areas of the Battle School as well as in the Khosis area
where they claim the level of contamination is to all intents and purposes non-existent.33


[23]    I note that the applicants' submissions on the Mechem reports are substantially borne out in
the first and second final Mechem reports. These reports emerged after investigations were
conducted into the degree of contamination with the participation of a task team on which the
respondent communities,34 the Department of Land Affairs, the SANDF and two non-governmental
organisations, GEM and ANCRA,35 were represented. The first final Mechem report concludes that
the northern area (which includes the former Gatlhose area), with extremely high levels of
contamination, will require extreme measures to be cleared to a satisfactory level of safety. It will,
according to the report, be extremely difficult for any clearance agency to deliver certification of a
clearance level of 99.6%, which is the United Nations accepted standard for humanitarian
clearance.36 The second final Mechem report concludes that the area to the immediate north and
east of the Khosis area should not be considered for settlement, pastoral and grazing activities as


32      The full Mechem reports, note 17 above.

33      The claimants’answering affidavit, page 76 of the pleadings bundles, at para 22.2.

34      First final Mechem report, at page 67.

35      The Group for Environmental Monitoring and the Association for Community and Rural Advancement.

36      Note 17 above, page 72 at para 69.
                                                       19

clearance costs will be too exorbitant.37 The first final report indicates that a southern area of 100
km², which can be described as having low to extremely low levels of contamination, can be cleared
to the 99.6% standard.38 However, as is pointed out in the first applicant’ replying affidavit, the
                                                                           s
level of contamination in the south and south eastern areas is irrelevant for the purposes of this
application as these areas fall outside the claimed land.39 I note that these areas may of course well
be relevant in exploring alternative land for restoration in the main restitution claim.




37      Second final Mechem report at pages 100-102.

38      First final Mechem report at page 72; second final Mechem report at page 102.

39                      s
        First applicant’ replying affidavit, page 323 at para 23.3.
                                                         20

[24]      In addition to the southern areas, the first final Mechem report indicates that areas within
1000 metres from the borders and the power line, within which no firing has occurred, could be
classified as having extremely low levels of contamination.40 The report indicates also that the area
presently occupied by the Khosis community was found to have extremely low levels of
contamination,41 as opposed to contamination being non-existent, which is asserted by the
claimants. This was reported to be a very large area, and random spot checks were conducted in the
southern, central and northern regions. The report stated that:

           “Evidence was found of troop movements but no evidence was found of ammunition and explosives. On the
 basis of this evidence it is therefore determined that extremely low levels of contamination exist in the entire
 area presently occupied by the Khosis community.... The area is suitable for settlement, pastoral and grazing
 purposes as is presently being conducted on a small scale. A more detailed inspection of the entire area needs   to
be conducted in order to determine clearance methods and costs. Clearance must be conducted before a
 99.6% clearance certification can be issued and large scale occupation can be allowed.”42


Costs of decontamination of the Khosis area




 40       First final Mechem report at page 72.

 41       The definition of “extremely low” is set out at page 96 of the second final Mechem report: “No UXO’ or   s
          shrapnel need to have been identified in the area under evaluation. Due to the fact that the specific area is
          within the borders of the Army Battle School and therefore been subjected to some form of training, it can be
                                                     s
          expected that some small amount of UXO’ could be found should the entire area be cleared physically”.

 42       Second final Mechem report, page 100 at para 19.
                                                         21

[25]     A quotation from Mechem consultants estimated the cost for decontamination of the
Khosis area to 99.6% clearance at R2.8 million.43 The quotation also suggests that, were any area to
be restored, it should be demarcated, fenced off to prevent human and animal infiltration into the
“dangerous areas”, and decontaminated.44 The applicants submit that, whilst the Mechem report
indicates that the Khosis area is the least contaminated area of the claimed land, it also indicates that
the costs of clearing that area would be between R300 and R350 per hectare.45 If, argue the
applicants, this is compared to the current uncontaminated value of the Reserves, estimated at some
R400 per hectare, it cannot be said that it is either feasible or in the public interest, to “restore this
portion to the Khosis”.


Costs of decontamination generally


[26]     The Mechem report estimated the cost of clearing 15 500 hectares of the Battle School
training grounds of unexploded ordnance,46 and surface clearing of a further 26 850 hectares,47 to
be a minimum of R42 million as at January 1996. The time scale envisaged for initial clearance was
two years. The report, in giving these figures, does not specify precisely which parts of the land the
figures pertain to. The Royal Ordnance report cites a provisional cost of clearing the Lohatla ranges
of dangerous munitions at £7.9 million over a 20 month period.48 From the reports it would appear
that the quotes relate to the same operations.


43       For clearance of 9 000 hectares within 90 days, at about R311 per hectare, the second final Mechem report at
         page 119.

44       Second final Mechem report, page 104 at para 30(d).

45       It is noted that the cost estimation from Mechem Consultants at note 8 above quotes this figure of R311 per
         hectare, see also the second final Mechem report at page 103.

46       With metal detectors applied by personnel on foot, the second Mechem report at page 23 read with the
         preliminary survey, page 4.

47       By visual inspection and sniffer dogs, the second Mechem report at page 23.

48       The report refers to 15 500 hectares to be cleared and rendered safe from unexploded ordnances [UXOs] and
         26 850 hectares to be surfaced cleared mainly by visual inspection and sniffer dogs in order to render the
         remaining area of the ranges involved safe. The Royal Ordnance report had as its basis the Mechem reports of
         August 1995 and January 1996. It confirmed the general conclusions of the Mechem reports about there being
         significant surface contamination by munitions in the target areas. The Royal Ordnance report states at para 6.4
         on page 17 that the United Nations accepted standard for clearance for surface contamination of a 99.6%
         confidence level could be achieved with the use of enhanced technology. It goes on to state that with currently
         available techniques and technology it is impossible to guarantee 100% clearance levels. Royal Ordnance also
                                                         22


Danger to life from contamination


[27]    The applicants contend that the sanctity of human life militates strongly against any civilian
presence in the middle of a battle training area where live ammunition is used. Mistakes and
accidents are bound to happen during training, and the presence of the Khosis community creates an
unacceptable danger to civilian life and property. According to the applicants, a number of civilians
living in the Khosis area have been killed in explosions during their attempts to illegally recover
parts of unexploded ammunition to sell for their own gain. Inquisitive children have also been killed
whilst tampering with unexploded ordnance and a number of cattle have been killed during military
exercises. In addition, livestock roams over the area of the Battle School proper, adding to the
danger to herders and animals. The claimants attempt to counter this by stating that no accidents
have occurred within or near the Khosis area.




        quotes, at page 23, a provisional cost of £7.9 million for the clearance of the total area over 20 months given in
        the Mechem report of 20 January 1996.
                                                         23

[28]     I note it to be common cause that accidents and fatalities have occurred. This is borne out
by affidavits in a prior application in this matter49 as well as in newspaper reports.50 The affidavit of
Brigadier Cordier informs that, in February 1995, two illegal occupants of the Khosis area died in an
explosion when they were attempting to illegally remove copper from unexploded ammunition
found in the training area, and that another death occurred in December 1997 in the training area
due to a similar explosion. Newspapers report two children dying and four others receiving shrapnel
                                                                                     s
wounds when a 50 millimetre mortar shell they were playing with exploded at the army’ Rooiberg
training site in February 1989,51 and point to similar explosions elsewhere52 in the country. Against
this the affidavit of Joseph Free in the application mentioned states:
         “... in the past 20 years of its existence there have been only some 5/6 fatal accidents as a result of presumably
         unexploded ordnance being tampered with by local community members”.




49       The application to determine the validity of the Khosis community's claim, instituted by notice of motion on 9
         June 1998. See the affidavit of SANDF Brigadier Cordier at page 351 and the replying affidavit of Joseph Free
         at page 748 of the bundle for that application.

50       Press clippings, the first final Mechem report at page 87.

51       Cape Times, 6 February 1989, page 1, the first final Mechem report at page 87.

52       Citizen, 1 April 1997, page 11; Beeld, 14 July 1997, page 5, the first final Mechem report at pages 88-89.
                                                        24

The affidavit emphasises that none of the fatalities have occurred in the Khosis area and denies that
contamination and risk in the Khosis area represent serious obstacles to continued occupation.53 The
claimants themselves suggest that risks can be acceptably contained by fencing off the Khosis area,
and by the ongoing education of the community about any dangers. The claimants even propose that
a contribution fund be established to compensate victims for loss or injury arising out of accidents
involving unexploded ordnance. The fund, they say, would afford the communities legal and
financial protection against the risks posed by the activities of the Battle School.54


[29]    The applicants state that there is no effective way of preventing the inhabitants of the
Khosis area from gaining access to the rest of the Battle School. They also say that during large
exercises all access to and from the Khosis area necessarily has to be closed. This not only
inconveniences the occupants of the Khosis area, but also creates an unacceptable situation from a
humanitarian point of view. They argue that the human right to freedom of movement cannot be
ensured for any small community living in the middle of the Battle School. The inherent danger to a
small civilian community in the middle of a battle training area, they assert, simply cannot be
eliminated. Public interest, they say, demands that such a situation should not be tolerated or
prolonged. From a public interest point of view it is a total “anachronism” to maintain an isolated
small civilian community in the middle of the Battle School with all its related danger to life and
interference with effective training.


General factors militating against restoration




53      The replying affidavit of Joseph Free in the application referred to at n 49 above, at page 748.

54      The affidavit of Joseph Free in the application referred to at n 49 above, at para 27.4.
                                                         25

[30]     The applicants highlight the problems associated with the total isolation of the Khosis
community in the middle of the Battle School. These are the impossibility of providing proper
educational and health facilities for them, of creating a proper infrastructure and other amenities, as
well as the impossibility of promoting their safety, security, development, freedom of movement and
their interaction on a social level with the rest of their communities. All these factors, the applicants
contend, militate against both a restoration order and the continued occupation by the small Khosis
community of the middle of the Battle Field, in the interest of the public and the communities. An
affidavit by second applicant55 confirms the factual situation as regards these circumstances and fills
in the details. The claimants, whilst unable to dispute these difficulties, suggest that these are
matters for planning, once rights in land are restored. They say also that many of the services
mentioned are presently being supplied to the members of the SANDF and can easily be extended to
include members of the respondent communities.


The Battle School plays an important part in the economy of Northern Cape


[31]     Finally, there is the undisputed assertion by the first applicant that the Battle School plays
an important part in the economy of the Northern Cape Region and that its closure or downscaling
would have detrimental consequences to the whole area and its inhabitants.56
.
Assessment of submissions


Danger to Life


    55   The pleadings bundle at pages 45-50.

    56                        s
         The first applicant’ founding affidavit, pages 21-22 at para 14.14-14.17. It is submitted that the Battle School
         has a substantial influence in the economic well-being of towns and villages stretching as far as Kimberley and
         Upington, such as Glosam, Dibeng, Dingleton, Olifantshoek, Kathu, Postmasburg, Danielskuil and Kuruman
         stretching as far as Kimberley and Upington.
                                                    26



[32]     The main factual allegations in the founding affidavits to the effect that it is not in the public
interest that the Reserves be restored, are not seriously contested by the claimants. There is a
dispute about whether lives have been lost as a result of accidents within the Khosis area, and how
many fatalities there have been. What is not disputed is that lives have been lost and that there is a
chance that lives may continue to be lost, hence the claimants’proposal about a compensatory fund.
The “only 5-6 lives lost since the establishment of the Battle School” referred to by Mr Free, are, in
my view, 5-6 lives too many. Nor, in my view, does the decontamination to a standard of 99.6%
and the fencing off of the Khosis area at a present day cost considerably in excess of the R2.9
million quoted in 1996, guarantee that danger to life can be eliminated, for there would still be a
0.4% margin, which cannot be ignored. The scenario contemplated by the claimants, of the Khosis
community living in the centre of an active Battle School upon decontamination, goes no further in
posing a solution. There is still the undisputed danger from overhead missiles and training in the
vicinity, as comprehensively tabled in the Heitman report, and of course the real possibility that
civilians will continue to stray into the Battle Field area, and expose themselves to danger. The
likelihood of these unfortunate events materialising poses the awkward question as to where liability
will then lie, a responsibility which the first applicant seeks to avoid at all costs.


[33]     It is necessary to weigh up the danger inherent in the exposure of civilians to these risks
against their desire to be in the land of their forbears, notwithstanding the risk to life, and their deep
rooted attachment to the land, an attachment which I fully acknowledge and respect. In conducting
this exercise, I am of the view that this Court simply cannot tip the scales in favour of the latter. To
do so would be to jeopardise the right to life of the community. It is clearly neither in the interest of
the Khosis community themselves nor that of the SANDF that the Khosis community remain in the
Khosis area. I am accordingly unable to find that the inherent danger to life of a civilian community
in the midst of a battle field can be eliminated.


[34]     Given my finding, the claimants’other point of departure, namely that the Khosis area as a
training area for the Battle School can be replaced by other adjacent land, thereby allowing the
Khosis to remain in the midst of the Battle School, cannot be sustained. This would not represent a
long-term solution, either to the problem of finding suitable land for the Khosis community or of
                                                  27

ensuring that the Battle School can effectively conduct necessary training exercises. Instead, the
safety and other problems currently faced by the Khosis community would remain, while the Battle
School would effectively be deprived of the use of its land around the Khosis area and be forced to
expand in an inefficient manner.


[35]                                                                    s
         When evaluating the need for a Battle School against the State’ policy of correcting socio-
economic injustices of the past and the reference thereto in the White Paper on Defence, I am not
able to find that the latter should prevail against the former. Important though the Government’s
objective of correcting the legacy of apartheid may be, it cannot compromise the all important issue
of national defence and the need for an effective battle school. In this respect, it must be said that
the legacy of apartheid can, of course, also be corrected by equitable redress as opposed to
restoration.


[36]     The following undisputed allegations by applicants also clearly militate against restoration:


-        that the Battle School is a national asset, that it is virtually impossible to replace it
         elsewhere and that this would entail formidable costs;
-        that decontamination would incur huge expenses, as estimated by the Mechem and Royal
         Ordnance reports;
-        that a certain extent is required for the battle field training area, as projected in the Heitman
         report;
-        that socio-economic, developmental and social factors militate against an isolated civilian
         community being settled in the area; and
-        that the Battle School is important to the economy of the Northern Cape.


I agree unreservedly with the applicants’ arguments against restoration based upon these
allegations. The fact that they are not seriously disputed by the claimants makes their acceptance all
the easier, for as the applicants point out, it is trite law that in application proceedings a court will
                    s
accept an applicant’ allegations as correct if these are not disputed by claimants in reply.
                                                 28

The public interest


[37]    I now turn to consider all of the above within the context of the “public interest”. The
applicants and claimants each in turn dealt succinctly with the concept “public interest”. The
applicants properly contended that an enquiry as to whether something is in the public interest
entails a weighing of private interests as against those of the public. It is essentially a discretion,
requiring the Court to exercise a value judgment. For the purposes of section 34 the Court would
have to enquire whether a fair-minded and reasonable person would conclude it to be in the public
interest that rights should not be restored to a claimant and that the public or any substantial part
thereof will suffer substantial prejudice unless an order in terms of section 34(5)(b) is made.


[38]    In Ex parte North Central and South Central Metropolitan Substructure Councils of the
Durban Metropolitan Area and Another57 this Court stated that in assessing the public interest one
must compare “the deprivation of some private convenience with the benefit that is likely to result
therefrom for the general public or part thereof”.58 What is involved is a weighing or balancing of
private interests on the one hand and public interests on the other.


[39]    The claimants contended that the determining of the public interest does not simply involve
                                s
a comparison between a claimant’ private interest in the restoration of the Reserves on the one
hand and the public interest in not having the Reserves restored to the claimant on the other. That is
because the public also has an interest in restoration as a means of redressing the injustices of the
past. In other words, they argue that what has to be taken into account in favour of restoration, is
                    s
not only a claimant’ private interest in it but also the public interest in restoration as a means of


57      1998 (1) SA 78 (LCC).

58      At para [13].
                                                         29

redressing the injustices of the past. Against those interests must be weighed the public interest in
the use of the Reserves for purposes other than restoration to a claimant.


[40]     After a careful consideration of the submissions by both the applicants and the claimants for
the purposes of section 34(6)(a), I have arrived at the view that in weighing up the interests of the
respondent claimant communities in the physical restoration of the Reserves, together with the
public interest in restoration as a means of redressing the injustices of the past, against the public
interest in the use of the Reserves by the SANDF as a Battle School, the scale must be tipped in
favour of the use of the land by the Battle School. When comparing the deprivation of restoration to
the claimants (which appears to be tantamount to depriving some 127 members of the Khosis
community of continued occupation of the Khosis area, given that the Gatlhose and Maremane
communities appear to be amenable to accepting alternative land), against the advantage of the
Reserves remaining as part of the Battle School and the benefit thereof to the SANDF and to the
wider South African community, one cannot but determine that it is in the public interest that the
Reserves should not be restored to the claimants. All South Africans have a vested interest in a
well-trained army and a Battle School operating to its maximum capacity.59 The odds, I find, are
overwhelmingly in favour of non-restoration, more so given that restoration would perpetuate the
danger to life. I accordingly find that it is in the public interest that the land claimed should not be
restored to the claimants in terms of section 34(6)(a).




59       The Constitution of the Republic of South Africa, Act 108 of 1996, provides for the existence of the defence
         force at sections 198 and 199(2). Section 200(2) identifies the primary object of the defence force as being “to
         defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and
         the principles of international law regulating the use of force.”
                                                 30

Submissions in terms of section 34(6)(b)


[41]    The second threshold requirement for an order that the Reserves will not be restored in
terms of section 34(5)(b) is that the public or a substantial part thereof will suffer substantial
prejudice unless an order is made before the final determination of the claims, or as claimants aptly
put it, “unless the possibility of restoration is excluded in advance before the final determination of
any claim”. The claimants argue that, in order to satisfy this threshold requirement, the applicants
must show that there are compelling reasons why the public or a substantial part thereof will suffer
substantial prejudice if an order that the Reserves shall not be restored is not granted at this stage,
but rather at the conclusion of a trial of the claims for restitution of rights in land. The claimants
argue that the issue of restoration can only properly be determined at the conclusion of such a trial
and not at this stage.


Submissions by the applicants for the purposes of section 34(6)(b)


[42]    The applicants offered the following submissions for the purposes of section 34(6)(b) as to
why restoration should be excluded at this stage:
(1)     It has become clear during protracted negotiations that a settlement of the land claims is
        impossible for as long as the claimants, and in particular Mr Joseph Free and his group,
        believe that there is a reasonable prospect that some part of the claimed land will be
        restored. An order in terms of section 34(5) will force the claimant communities to
        reconsider their position and will undoubtedly assist in reaching an amicable settlement. It
        is in the public interest that land claims should be finalised as speedily as possible. Under
        circumstances where the major and large claimant communities have accepted that
        restoration is not possible, and are desirous of settling their claims as soon as possible on
        the basis of equitable redress, the attitude of the small Free Group is contrary to the general
        public interest. It is also not in the public interest to prolong the ever present danger to life
        as a result of the continued occupation of the Khosis area. Whilst I acknowledge the value
        of settlement, I cannot accept that an order in terms of section 34 would be in the public
        interest for the reason that it would force the parties to consider settlement.
                                                    31

(2)    The prolonging of total isolation of a small group of people in the middle of the Battle
       School is against the public interest.
(3)    It is in particular in the public interest that the proper and full functioning of the Battle
       School be achieved as soon as possible. This, in my view is one of the overriding factors in
       the public interest.
(4)    It is in the public interest that the efficient use of scarce resources should be prioritised.
                                                           s
       This is severely prejudiced by the small Free Group’ insistence on carrying on with a claim
       for restoration. Continuation of protracted hearings will not only detrimentally affect the
       interests of the Gatlhose and Maremane communities and those members of the Khosis
       community who do wish to move, but will also waste the time and money of the fourth
       respondent. The fourth respondent does not have the resources to be dragged into
       unnecessary disputes about restoration and regards an order in terms of section 34 to be in
       the public interest. Similarly, the Regional Land Claims Commissioner for the Free State
       and Northern Cape views the section 34 application as the only viable route to break the
       impasse in the negotiation process.60


[43]   There is merit in most of the above submissions.


Submissions by the claimants for purposes of section 34(6)(b)




60     The confirmatory affidavit at pages 339-342 of the document bundle.
                                                       32

[44]     The claimants say that none of the applicants' submissions satisfy the requirement of
compelling reasons which the applicants are required to advance in order to show why it is in the
public interest that the issue of restoration be decided upon now rather than at the end of the case in
the ordinary course. They say the applicants have not made out a case that the public interest
demands that the possibility of restoration be excluded in advance before the Court has heard any
evidence in the restitution case or applied its mind to the selection of the appropriate remedy under
section 35 of the Act.61 They are further of the view that the applicants have failed to show any
compelling circumstances pointing to the requisite public prejudice, which would warrant the
exclusion of restoration at this stage. Mr Trengove, for the claimants, submitted that an example of
compelling circumstances would be a situation where there was some urgency in obtaining certainty
about the Reserves for purposes of public administration. In this case, he said, the applicants had
not established such circumstances, and it would not be prejudicial to the public if the question of
restoration were held over until the end of the trial rather than being decided now. I cannot agree.


[45]     There is, I believe, a degree of compulsion in most of the submissions forwarded by the
applicants above. I am of the view, that an enormously compelling reason is one which impacts on
the public fiscus: this Court has already been able to make a finding from the evidence before it in
this application, that it is in the public interest that the Reserves not be restored in terms of section
34(6)(a) for the reasons stated above. The reasons advanced by the applicants in this regard will still
be valid at a fully-fledged trial and there is nothing to indicate that the claimants will be able to rebut
those reasons at that stage. The public will be prejudiced if, in the circumstances, a lengthy and
costly trial were to ensue to deal with the issue of restoration as well as equitable redress, as public
funds would be used to significantly finance such a trial, given that the respondents in such a trial
would mainly be representatives of the State62 or financed by the State. The saving of considerable
public funds is in my view a compelling reason why restoration should be excluded at this stage
given my finding in terms of section 34(6)(a). It would serve little purpose for this Court to make a
finding in terms of section 34(6)(a) that it is in the public interest that land claimed should not be
restored, and thereafter for a trial to ensue on this very issue because the reasons given in terms of

61       Section 35 sets out the orders which the Court may make in a restitution claim.

62       The Minister of Land Affairs, the Minister of Defence, the Premier of Northern Cape, the Regional Land
         Claims Commissioner, and possibly even the Minister of Public Works.
                                                       33

section 34(6)(b) were not compelling to the point of urgency, which would happen if the claimants'
submissions are accepted. In the circumstances I find that the requirements of section 34(6)(b) have
been satisfied.


The granting of an order in terms of section 34(5)(b)


[46]    Having found that the two threshold requirements for an order in terms of section 34(5)(b)
have been met, it now falls upon this Court to exercise the discretion vested in it under section 35.
In terms of this discretion the Court “may” dismiss the application, make the order sought or make
any other order it deems fit. As the claimants correctly intimate, in order for this Court to make the
order sought under section 34(5)(b), it must be persuaded that such an order should be made in the
exercise of its discretion in terms of section 34(5), something which the claimants claim the
applicants seem not to have addressed. As is also properly stated by claimants, in the exercise of this
discretion the Court must be guided by the factors described at section 33 of the Act.63 These are
factors which the Court must have regard to in considering its decision in any particular matter.


[47]    The claimants argue that the extraordinary order which applicants seek in terms of section
34(5)(b) should not be granted at this stage but should be determined only upon the conclusion of

63      Section 33 reads:
        “Factors to be taken into account by Court
        In considering its decision in any particular matter the Court shall have regard to the following factors:
          (a)    The desirability of providing for restitution of rights in land to any person or community
                 dispossessed as a result of past racially discriminatory laws or practices;
          (b)    the desirability of remedying past violations of human rights;
          (c)    the requirements of equity and justice;
          (cA) if restoration of a right in land is claimed, the feasibility of such restoration;
          (d)    the desirability of avoiding major social disruption;
          (e)    any provision which already exists, in respect of the land in question in any matter, for that land
                 to be dealt with in a manner which is designed to protect and advance persons, or categories of
                 persons, disadvantaged by unfair discrimination in order to promote the achievement of equality
                 and redress the results of past racial discrimination;
          (eA) the amount of compensation or any other consideration received in respect of the dispossession,
                 and the circumstances prevailing at the time of the dispossession;
          (eB) the history of the dispossession, the hardship caused, the current use of the land and the history
                 of the acquisition and use of the land;
          (eC) in the case of an order for equitable redress in the form of financial compensation, changes over
                 time in the value of money;
          (f)    any other factor which the Court may consider relevant and consistent with the spirit and objects
                 of the Constitution and in particular the provisions of section 9 of the Constitution.”
                                                34

the trial on the restitution claims because the issue, whether the claimant communities should be
afforded restoration or some other form of equitable redress, can probably not be determined on
paper for the following reasons:
-       The question requires the Court to exercise a value judgment and strike a balance between
        a range of countervailing considerations which include:
        ??      Whether and if so, how much, of the claimed land the Battle School can afford to
                shed to the claimants without compromising its value.
        ??      Whether it may well be appropriate to afford restoration to the claimants at the
                expense of the Battle School if the impairment of its value is overshadowed by
                considerations mentioned at section 33(eB) namely “the history of the
                dispossession, the hardship caused, the current use of the land and the history of
                the acquisition and use of the land”, and section 33(c), the requirements of equity
                and justice.
-       Restoration is by far the most satisfactory remedy as it is the only one that recognises the
        deep emotional bond between the claimant communities and their ancestral land. The Court
        will ultimately have to strike a balance between this sentimental value of restoration on the
        one hand and the utility of the Battle School on the other
-       The appropriateness of restoration cannot be judged in isolation. It depends vitally on
        alternative remedies that are available and the extent to which they satisfy the need for just
        and equitable redress. There are at the moment no feasible alternatives on the table. This
        Court cannot begin to judge whether it is possible to obtain alternative land, and if so to
        what extent it would constitute satisfactory equitable redress.
-       Deciding an appropriate remedy will be a most complicated task and will require
        “Solomonic” wisdom. It will be most difficult at best even after the Court has heard all the
        evidence exploring the various options, the evidence has been tested in cross examination,
        and the Court has had full submissions by all interested parties on the options open to it. It
        is impossible or in any event most unwise to require the Court to make an order in terms of
        section 34(5)(b) at this stage.


[48]    I am unable to agree with the claimants’ submissions as to why the Court's discretion in
terms of section 34(5) cannot be exercised at this stage. Full, comprehensive and adequate
                                                 35

submissions have been made by all interested parties in this application. The parties have deftly set
out their cases and countered that of their opponents in founding, answering, replying and even a
further set of answering and replying affidavits. They have dealt extensively with the history of the
dispossession, the hardship caused, the current use of the Reserves, the history of the acquisition
and use of the Reserves, the section 33(eB) factors the claimants took pains to highlight, as well as
the requirements of equity and justice set out in section 33(c). Importantly, the evidence also
enables me to have regard to the equally relevant aspects of section 33, such as the feasibility of
restoration and the desirability of avoiding major social disruption referred to at sections 33(c)(A)
and 33(d) respectively. Neither of these considerations favour restoration as must at this point be
evident from my findings as to why restoration would not be in the public interest. It needs perhaps
to be emphasised that the socio-economic developmental issues referred to, as well as the effect of
moving the Battle School, were this to be contemplated, would be sufficiently socially disruptive to
rule out restoration.


[49]     In addition, the expert reports of Mechem, Royal Ordnance and Heitman have informed us
comprehensively on matters within their expertise and the parties have responded to these. The
claimants have not seriously contested the contents, nor have they countered them with other
reports. At the two day hearing in response to questions from the Court, the Mechem and Heitman
reports were dissected and the parties made further submissions on the reports. The evidence which
the claimants indicated they wished to test in cross-examination pertained to these reports. At the
hearing I gained the impression that the claimants were not of a mind to obtain their own expert
witnesses to testify against these reports in the event of the matter proceeding to trial, but wished to
cross-examine on the reports themselves. The claimants could have availed themselves of the
opportunity to request that oral evidence be led on these matters at the hearing of the section 34
application and thereby satisfied their need to cross-examine thereon, but chose not to. I am of the
view that these reports have been sufficiently dealt with by the parties. Given that the claimants have
not thus far countered them, I do not believe that an opportunity for cross-examination would take
the matter any further.


[50]     The claimants argue that the appropriateness of the remedy of restoration cannot be judged
in isolation. I cannot agree. The appropriateness of such a remedy can most certainly be judged in
                                                 36

isolation and this is precisely what section 34 provides for. The alternative remedies which may be
available as equitable redress are not factors which have to be considered in the granting of an order
in terms of section 34(5). Nor is the possibility of obtaining alternative land an issue which falls to
be considered in a section 34 application, as is suggested by the claimants. I note my concern that
settlement negotiations pertaining to alternative land have reached an impasse, and
                                                 37

recommend that these be renewed with the aim of resolving this matter as expeditiously as possible.


[51]        For all of the above reasons and from the evidence before me forming part of this
application, which the parties have had the opportunity to fully respond to, I am of the view that it
is possible and, I believe, advisable for a decision to be made at this stage on restoration in terms of
34(5)(b).


[52]      I accordingly make the following order:


(1)       It is ordered in terms of section 34(5)(b) of the Restitution of Land Rights Act 22, 1994
          that when any claim in respect of the former Maremane and Gatlhose Reserves, including
          the part of the Reserves now known as the Khosis area, is finally determined, no part of the
          land in question shall be restored to any claimant, including the first to third respondents.


(1)       There is no order as to costs.




_________________________
ACTING JUDGE Y S MEER


I agree



____________________________
A ZYBRANDS
ASSESSOR

For the applicants:
Adv P R van Rooyen SC, Adv H S Havenga instructed by State Attorney, Pretoria.


For the first to third respondents:
Adv W Trengove SC, Adv A Cockrell instructed by Legal Resources Centre, Johannesburg.

BAM AJP:
                                                       38

Introduction


[53]    This is an application in terms of section 34 of the Restitution of Land Rights Act1 (“the
Restitution Act”). The Restitution Act provides for the restitution of rights in land to persons or
communities, dispossessed of such rights after 19 June 1913, as a result of past racially
discriminatory laws or practices. Section 34, on the other hand, makes a serious inroad to this
principle and allows for the imposition of a restriction to the restoration of the rights in land, in
certain circumstances, upon application by a State organ. It does so in these terms:

“34     Ruling by Court on restoration before final determination of claim

        (1)     Any national, provincial or local government body may, in respect of land which is owned by it or falls
                within its area of jurisdiction, make application to the Court for an order that the land in question or
                any rights in it shall not be restored to any claimant or prospective claimant.

                         ....

        (5)     After hearing an application contemplated in subsection (1), the Court may-

                (a)      dismiss the application;

                (b)      order that when any claim in respect of the land in question is finally determined, the rights in
                         the land in question, or in part of the land, or certain rights in the land, shall not be restored
                         to any claimant;

                (c)      make any other order it deems fit.” (my emphasis)


[54]    The applicants come before us seeking an order against the first, second and third
respondents in the following terms:

        “1      That it is ordered in terms of section 34(5)(b) of the Restitution of Land, 1994, that, when any claim in
                respect of the former Maremane and Gatlhose Reserves, including that part of the Reserves now
                known as the Khosis Area, is finally determined, that no part of the land shall be restored to any
                claimant including the first to the third respondents;

        2       That no order as to costs shall be made, save in the even of this application being opposed.”(my
                emphasis)


1       Act 22 of 1994
                                                            39



[55]       The fourth, fifth and sixth respondents are all cited in their representative capacities but are
otherwise peripheral to the present application.


[56]       Section 34 of the Act sets up two main hurdles to be scaled by the applicant before this
restrictive order can be made. These are to be found in sections 34(6)(a) and section 34(6)(b) and
read as follows:

“(6)       The Court shall not make an order in terms of subsection (5)(b) unless it is satisfied that-

           (a)      it is in the public interest that the rights in question should not be restored to any claimant; and

           (b)      the public or any substantial part thereof will suffer substantial prejudice unless an order is made in
                    terms of subsection (5)(b) before the final determination of any claim.”


[57]       Furthermore, at the behest of section 33 of the Act, the Court is enjoined to take certain
factors into account in considering its decision in any particular matter. The section reads as
follows:

           “33      Factors to be taken into account by Court

                    In considering its decision in any particular matter the Court shall have regard to the following factors:

                    (a)       The desirability of providing for restitution of rights in land to any person or community
                              dispossessed as a result of past racially discriminatory laws or practices;

                    (b)       the desirability of remedying past violations of human rights;

                    (c)       the requirements of equity and justice;

                    (cA)      if restoration of a right in land is claimed, the feasibility of such restoration;

                    (d)       the desirability of avoiding major social disruption;

                    (e)       any provision which already exists, in respect of the land in question in any matter, for that
                              land to be dealt with in a manner which is designed to protect and advance persons, or
                              categories of persons, disadvantaged by unfair discrimination in order to promote the
                              achievement of equality and redress the results of past racial discrimination;

                    (eA)      the amount of compensation or any other consideration received in respect of the
                              dispossession, and the circumstances prevailing at the time of the dispossession;

                    (eB)      the history of the dispossession, the hardship caused, the current use of the land and the
                              history of the acquisition and use of the land;
                                                        40


                 (eC)      in the case of an order for equitable redress in the form of financial compensation, changes
                           over time in the value of money;

                 (f)       any other factor which the Court may consider relevant and consistent with the spirit and
                           objects of the Constitution and in particular the provisions of section 9 of the Constitution.”


[58]    The Court, then, still has the discretion in terms of section 34(5) to dismiss or grant the
order sought or make any other order it deems fit. This discretion is not unfettered but must be
exercised judiciously as it pertains to an issue or request that amounts to a restriction of a
fundamental right under the Constitution.


[59]    It is also my view that, for reasons to be advanced later, to the extent that the section is a
restriction or limitation of a fundamental constitutional right, the criteria evolved by the
Constitutional Court when considering the legitimacy of limitations should be taken into account.


Background and history


[60]    The background to the application has been fully set out in the judgment of Meer AJ which
I have had the advantage of reading. The briefest of résumés will therefore suffice.


[61]    The land in question is situated in the Northern Cape near Kuruman in the village of
Lohatla. It was jointly occupied, from the 19th century, by the first, second and third respondent
communities ie the Khosis, the Gatlhose and the Maremane.


[62]    The area was scheduled as a Native Reserve in terms of the 1913 Natives Land Act2 (“the
1913 Act”) and is, to this day, still referred to as the Gatlhose and Maremane Reserves, which
measure 12 175.5658 hectares and 49 778.9225 hectares in extent respectively. The 1913 Act did
not have any effect on the manner in which the community on the Reserves organised and




2        Act 27 of 1913.
                                                   41

administered their lives in general or their occupation and use of the land in the Reserves in
particular.


[63]     In 1936 the Native Trust and Land Act3 (“the 1936 Act”) came into effect and during this
period the Reserves were vested in the South African Native Trust, subject to the 1936 Act. The
Gatlhose and Maremane Reserves were excised from the Trust by proclamation.4 They had been
identified as a “black spot” and those classified as “blacks” were ultimately forcibly removed to the
former Bophuthatswana during 1976. The Khosis community was allowed to remain since they had
been classified as “coloured”.


[64]     In January 1978, the South African Defence Force (the predecessor to the current Defence
Force) took occupation of the former Gatlhose and Maremane Reserves and established the Lohatla
Battle School. The Battle School expanded and ultimately encircled the Khosis area.


[65]     The principal actors in this application are therefore the applicants and the first, second and
third respondents. The roles played by the other parties cited are not material for purposes of this
application but it should be noted that they have been involved in settlement negotiations, and that
the fourth and sixth respondents support the application.


[66]     When the Khosis area became encircled by the Battle School, increasing pressure was put
on that community to relocate. Ultimately a majority of the members of the community were
persuaded to relocate to Jenn-Haven in September 1992, but another group, under the leadership of



3        Act 18 of 1936

4        Proclamation 64 of 1969, 28 March 1969.
                                                42

Mr Joseph Free, steadfastly refused to move. It is this group that is the first respondent in these
proceedings and the central target of the application.


 [67]   During 1993, the applicant instituted eviction proceedings in the then Supreme Court
against this group in an attempt to get them to move to Jenn-Haven. The Khosis community
resisted until the passing of the Restitution Act of 1994 in terms of which they and the Gatlhose and
the Maremane communities lodged claims for the restitution of the Reserves. That introduced a new
and more serious element in the sequence of events in that the continued existence of the Battle
School itself seemed threatened. This development led the parties to agree that the eviction
litigation be stayed, pending the outcome of the restitution claims.


 [68]   There followed protracted rounds of settlement negotiations among the parties involving all
those cited in the present proceedings and facilitated, in large measure, by the Regional Land Claims
Commissioner. These negotiations did not bear fruit and in the end, broke down because of the
inability to secure alternative land acceptable to the respondents and the Khosis community in close
proximity to their traditional territory within Lohatla. The farmers who owned such land refused to
sell.


The Heitman and Mechem reports


 [69]   The applicants have mounted a formidable case for the continued existence of the Lohatla
Battle School as being in the public interest, and assert that this requires the exclusion of human
habitation on any part of it. Some parts of the land formerly occupied by the Gatlhose and
Maremane communities have become heavily contaminated as a result of the training sessions. But
the Khosis community still inhabits and exercises rights on some of the land in Lohatla which has
become encircled by the Battle School. In support of their application, the applicants rely on expert
reports which the first applicant commissioned to determine the extent of territory required by the
army within the Reserves and the cost of clearing areas contaminated with explosives to suit human
habitation. The reports are respectively called the Heitman and Mechem reports.


The Heitman report
                                                        43



[70]     The terms of reference of the Heitman report were framed so as to elicit an answer to the
question “whether the South African Army needs to have the whole area of the Army Battle School
at Lohatla”.5 The report found that the army did, in fact, need the whole area it was currently using
and that it further needed the addition of the full use of the “Free Area” occupied by the Khosis
community. However, as the respondents pointed out in argument, the report conceded that an
alternative to full use of the “Free Area” would be to acquire additional land adjacent to the Army
Battle School to give the space needed for realistic training.6


[71]     The Heitman report makes for very interesting and thought-provoking reading and a fuller
summary of it appears at paragraphs 13-18 of the judgment of Meer AJ. As a lay person in matters
military, I was bedazzled by it and felt that there was a need for a countervailing expert report to
form a balanced view. For all that, the report itself is not dogmatic in its postulates nor is it cast in
categorical imperatives. Its recommendations are precisely that and not commandments. Above all,
the report does not set any time frames in respect of the implementation of any of its
recommendations. In the main the recommendations appear to contemplate, sometimes the
immediate future, at other times the near future and even the long term. Two salient paragraphs of
its conclusion are worth quoting as representing the highest admonition against restoration of rights
in land to the Khosis.


         “The existence of the ‘                                                                            s
                                 Free Area’presents a real problem for the effective training of the Army’ mechanised
         forces. It places severe restrictions on manoeuvre and live-fire training, thereby seriously impairing the Army
                         s
         Battle School’ ability to conduct effective training.




5        The Heitman report, at page 126.

6        The Heitman report, at page 127.
                                                      44

      The conclusion, is therefore, that the Army needs the whole area of the Army Battle School including full use of
      the ‘          .
           Free Area’ Looking to the longer term, consideration will need to be given to ways of enlarging the training
      area to accommodate new weapon systems and the tactics that accompany them.”7


The Mechem reports




7     The Heitman report, at page 159.
                                                    45

[72]    The point of departure of the Mechem reports was initially to determine the cost of de-
contaminating the whole area of the Battle Field of unexploded ordnance and the “rendering safe of
the said area prior to the relocation of people in the area”.8 A subsequent team’ terms of reference
                                                                                 s
were somewhat different: to investigate the levels of contamination in certain areas of the Battle
School.9 As far as the levels of contamination were concerned, the report identified two distinct
areas: a northern area with high and extremely high levels of contamination, and a southern area
with low to extremely low levels of contamination. It was not able to declare any area as a “no
contamination” area as that could only be done when military authorities had given the assurance
that no firing exercises or tactical military movement had taken place in the area. In respect of the
area occupied by the Khosis community, the report found that extremely low levels of
contamination existed and recommended the area to be suitable “for settlement, pastoral and
grazing purposes as is presently being conducted on a small scale”.10 The areas formerly occupied
by the second and third respondents formed part of the areas of high to extremely high
contamination levels and were not recommended for settlement, grazing or pastoral purposes since
the decontamination costs would be exorbitant.


Summary of the expert reports


[73]    A fair summary, on the basis of the Heitman report and the Mechem reports, is that a
strong case has been made out in the Heitman report that it is in the public interest to keep and
indeed expand the Battle School; and that, if the Battle School is to be expanded, the presence of a
civilian community would be an impediment to training, unless additional land were to be acquired
adjacent to the school to give the space needed for full manoeuvres during training. The Heitman
       s
report’ recommendations do not require the immediate removal of the Khosis community, i.e the
status quo can be maintained for the time being.




8       The first Mechem report, at page 3.

9        The final Mechem report, at page 67.

10       The second final Mechem report, at page 100.
                                                            46

[74]      As far as the Mechem report is concerned, it establishes that the level of contamination of
the Khosis area is extremely low and that the area is suitable for settlement, pastoral and grazing
purposes on the present scale. Furthermore, it does not suggest that decontamination of the Khosis
area to universally accepted standards would be exorbitant or that the process would necessarily
imply the closing down of the Battle School.


Socio-economic factors


[75]      The applicants also canvassed several other possible deleterious effects upon the Khosis
community should they not be allowed to continue to live in the Free Area in any form. I will
attempt to show soon that beneficial occupation is not the only right in the land implied in the
concept of “restoration”. For now I deal briefly with these other factors (not identified in the
Heitman and Mechem reports ) arguing against restoration. They are summed up in the affidavit of
Premier of the Northern Cape in the following terms:

“Save for the continuous danger to life affecting all the occupants of the Khosis area, which in itself already unacceptable,
their total isolation in the middle of the Battle School also have [sic] serious implications to the ability of the Province to
provide proper educational facilities, health facilities, proper infrastructure and other amenities. I will deal with each of
these below.”


The Premier then proceeds to elaborate on the impossibility of providing proper educational
facilities, on how the living conditions of the Khosis community poses serious health risks and how
housing and other infrastructure could not be provided economically to such a small and isolated
community. The reality is that the degree of contamination within the Khosis area is minimal and the
Battle School and the Khosis community have managed to coexist since 1979.


[76]      Accordingly, the case of the applicants is launched from three bases. The first base is the
Heitman report to establish that the Battle School is a national asset to be preserved and expanded
(at the cost of restoration) in the public interest. Restoration, it is maintained, would be a hindrance
to the maximum development of the school. The second base is the use of the Mechem report to
establish that the cost of decontamination would be outrageous and the danger to life galore. The
third base is the general socio-economic needs of the community, the advancement of which would
be hampered by restoration and community misery prolonged. For the rest, we are urged to adopt a
                                                           47

“robust and common sense” approach connecting these bases to the pegs of the section 34
requirements


[77]     On this approach, it seems that once having been persuaded that the Battle School is an
important and indispensable State asset (as I have been) then the rest must follow. The rest being
that the respondents be told, forthwith, that it is in the public interest they should be denied
restoration. The robust part of the approach does not work for me because I am unable to make this
connection without further ado, given the statutory and discretionary bridges still to be crossed.


The behests of the empowering statute


Definitions


[78]     Fulfillment of the statutory requirements begins with a proper understanding of the
definitions of “restoration of a right in the land” read in context with the definition of the
“restitution of a right in land” and the definition of a “right in land”. They appear one after the other
in section 1 of the Act as follows:

         “'restitution of a right in land' means-

         (a)      the restoration of a right in land; or

         (b)      equitable redress;

         'restoration of a right in land' means the return of a right in land or a portion of land dispossessed after 19
         June 1913 as a result of past racially discriminatory laws or practices;

         'right in land' means any right in land whether registered or unregistered, and may include the interest of a
         labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement
         and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in
         question;” (my emphasis)


[79]     There is a clear distinction contemplated in the legislation, therefore, between the
restoration of land on the one hand and the restoration of any rights in it on the other. This is rightly
so because a “right in land” means, as the definition states, any right in land whether registered or
unregistered, and may include a customary law interest or the interest of a beneficiary under a trust
arrangement. A customary interest would, in turn, include the recognition of a bundle of rights in
                                                         48

respect of the land. The bundle represents a number of separate excisable rights to land such as
servitudinal rights, the right to extract water and minerals from the land, to plough, to graze, to
gather wood and soil et cetera. It may well be the case, therefore, that there exist other rights to the
land, other than beneficial occupational rights, that the respondents are able to exercise without
detriment to the continuation of the Battle School or to the respondents’ welfare, safety, health,
education and development.


[80]     The onus is on the applicant to satisfy the Court that it is in the public interest that each of
these other rights in the land should not be restored to the claimants. The applicants have not
identified any of these other “rights in question” but have confined themselves to just the right to
occupy. The applicants have accordingly not demonstrated how it is in the public interest to declare,
at this stage, that such other rights should not be restored. It was not alleged, by the applicants, that
any of the respondents, and particularly the Khosis community, had confined their claim to
restoration only to the right to beneficial occupation.


[81]     It should therefore be noted that the definitions deal only with “a right in land” and not with
anything else such as “restoration of the land”. It should also be noted that, except in 34(1), the
other sections in terms of which the application is launched also do not deal with “restoration of
land”. Section 34(5)(b) states that,
         “(5) After hearing an application contemplated in subsection (1), the Court may-

                           ....

                  (b)      order that when any claim in respect of the land in question is finally determined, the rights in
                           the land in question, or in part of the land, or certain rights in the land, shall not be restored
                           to any claimant;”(my emphasis)


Section 35(6)(a) also relates to “the rights in question”.


[82]     The applicants request that no part of the land in question shall be restored to any claimant
including the first to third respondents. The judgment of Meer AJ reiterates this language, stating
that when any claim in respect of the former Reserves is determined, “no part of the land shall be
restored to any claimant, including the first to third respondents”. Both the applicants requesting the
order and the judgment, however, fail to meet the specificity required of an order that “the rights in
                                                  49

the land in question, or in part of the land, or certain rights in the land, shall not be restored to any
claimant.” Section 34(6)(b), in other words, contemplates four distinct orders that the court may
give:
         (1)      No restoration of any rights in any of the land.
         (1)      No restoration of any rights in part of the land.
         (2)      No restoration of certain rights in any of the land.
         (3)      No restoration of certain rights in part of the land.


There are thus two axes along which the court may divide its orders: the first a horizontal axis
referring the geographical division of the land in question, and the second a vertical axis referring to
the bundle of rights that may be possessed in land. Both the applicants and the court are clear that
there is to be no horizontal or geographical distinction to be made in the final determination of the
claim in respect of the land. Neither the applicants, nor the court in its judgment, however, specify
whether the order refers to any rights in land or certain rights in land. The applicants have,
accordingly, requested and have been granted an order not contemplated by the section.


[83]     The next statutory requirement is section 33, which I have cited and quoted at paragraph
[57] of this judgment. As pointed out by the respondents’counsel none of these factors to be taken
into account by the Court were considered in the applicants’ case. It is really for the Court, in
exercising its discretionary powers that the section becomes relevant and I will return to it at
paragraph [89].


Section 34(1)


[84]     Section 34(1) itself has been fulfilled save that the applicants did not address the part that
states “any rights in it” as I have pointed out in paragraphs [81] and [82] above.


Section 34(5)


[85]     Section 34(5) follows and deals with what the Court may do after hearing the application.
It has nothing to do with the applicants’case save to note, once again, that the prayer requested by
                                                         50

the applicants, in their notice of motion, is one which the Court cannot give in terms of section
34(5)(b). The Court may, of course, make any other order it deems fit in terms of section 34(5)(c).
Such other order has not, however, been canvassed by the applicants.


Section 34(6)


[86]     Section 34(6) states that :

         “(6) The Court shall not make an order in terms of subsection (5)(b) unless it is satisfied that-

                  (a)       it is in the public interest that the rights in question should not be restored to any claimant;
                            and

                  (b)       the public or any substantial part thereof will suffer substantial prejudice unless an order is
                            made in terms of subsection (5)(b) before the final determination of any claim.”


It is in respect of the two parts of this section that the full artillery of the applicants was focused. I
have not been able to make the necessary connections required in both parts. Both parts relied
upon, what one might call the damning evidence that would emanate from the reports and from the
recitation of the harmful socio-economic effects any form of restoration would bring. I have not
been persuaded on all fronts: the reports made tentative recommendations and not prophecies of
doom. Those emanating from the Heitman report were future-orientated and nowhere ever came to
the point which clearly sent the message: “Refuse restoration to all respondents of all the rights in
the land in question in the public interest. Do it now before the final determination of the claim,
otherwise a substantial part of the public will suffer substantial prejudice!” Even if this was their
import, immediate implementation thereof, would for any number of reasons, not be possible
“before the final determination of the claim.” What, then, would be the compulsion for obtaining the
section 34 order now?


[87]     At first glance, it appeared that the answer was to be found in the Mechem report. But that
report clearly does provide an answer to the question posed. It does not establish an imminent
danger to lives. The second and third respondents have been moved out of the area and their return
for settlement is clearly not an option. The first respondent was not living in the area with a high
risk of accidents as a result of unexploded ordnance. It is certainly no higher than it had been for the
                                                         51

number of years that they have coexisted with the army at Lohatla. There is a factual dispute in the
papers as to whether, during that time, any accidents occurred within the Khosis area. In any event,
the report states that the area is safe for habitation.


[88]     The serious issues relating to socio-economic needs could not, in my view, be made
blameworthy upon the Khosis community for refusing to be squeezed out of their land by the first
applicant. These are problems needing to be addressed in respect of numerous other rural and
resource-poor communities throughout the land. There is no innate conflict in the pursuit of socio-
economic rights and the restoration of rights in land. There is indeed often room for synergy such as
was expressed by Moloto AJ11 in the following terms:

         “There is no doubt that both restoration and the proposed development are in the public interest and that any
         arrangement which accommodates both, with the consent of all the parties, would be eminently in the public
         interest. The settlement agreement signed by the parties, accommodating as it does the idea of restoration where
         this is feasible and development in which those respondents who do not get restoration are given a stake, is just
                                                                                                      12
         such an arrangement. I am therefore satisfied that the settlement is in the public interest”.


                                s
Factors in exercising the Court’ discretion


[89]     The applicants did not deem it necessary to address us on the factors to guide us in the
exercise of our discretion either in terms of section 33 or in general terms relevant to the case. The
respondents, on the other hand, made some very pithy submissions and at some length in this
regard. These have been of great assistance to me in coming to the decision that the application
should be dismissed.

11       In Ex parte North Central and South Central Metropolitan Substructure Councils of the Durban
         Metropolitan Area and Another 1998 (1) SA 78 (LCC).

12       Note 12 above at para [26].
                                                        52



[90]    I will not enumerate each of those submissions. Suffice it to say that their overall approach
recognised that, when weighing up the public interest served by the restitution of a right in land as
against the public interest to be served by the further development of the Battle School, the history
of dispossession, hardships suffered and emotional and subjective relations of claimants to their land
were important considerations. This accords with the general approach of this court as articulated in
the Ex Parte North case13 and also in the Highlands case.14 It also accords with the behests of
section 33 which lay much emphasis on the emotional and subjective factors. On top of the list is the
desirability of providing for restitution of rights in land. This is followed by the desirability of
remedying past violation of human rights, the requirements of equality and justice, the feasibility of
restoration, the history of dispossession and hardships caused. This is in sharp contrast to the
applicants’“robust” approach where the emphasis is on the expediency of the section to achieve the
potential goals of the South African National Defence Force at the expense of the very people the
legislation was intended to redeem.


[91]    More importantly, section 33 enjoins the Court to have regard to
        “any other factor it may consider relevant and consistent with the spirit and objects of the Constitution and in
        particular the provisions of section 9 of the Constitution.”

This is a further clear indication, to my mind, that in approaching any particular matter under this
legislation, we are to adopt a human rights rather than a robust approach. The Bill of Rights is a
user-friendly tool for the protection of human rights. The spirit and values of the constitutional
approach, when considering what may be necessary to those human rights is captured in a nutshell
by the authors of the “Bill of Rights Handbook”15 in the following terms:

        “ Rights are not absolute. They may be infringed, but only when the infringement is for compellingly good
        reason. A compellingly good reason is that the infringement serves a purpose that is considered legitimate by all
        reasonable citizens in a constitutional democracy. The infringement must however not impose costs that are


13      Note 12 above at para [25].

14      Former Highlands Residents concerning area formerly known as the Highlands, Pretoria; Ash and Others v
        Department of Land Affairs [2000] 2 All SA 26 (LCC) at para [75] - [77].


15       De Waal et al The Bill of Rights Handbook 4th ed (Juta, Cape Town, 2001).
                                                           53

         disproportionate to the benefits that it obtains. This will be the case where a law infringes rights that are of great
         importance in the constitutional scheme in the name for achieving benefits that are of comparatively less
         importance. It will also be the case where the law does unnecessary damage to fundamental rights, damage
         which could be avoided or minimised by using other means to achieve the same purpose”.16



[92]     The National Defence Force also has constitutional responsibilities to defend and protect
the Republic, its territorial integrity and its people. However, I find it untenable that the realisation
of its developmental aspirations should obviously trump the aspirations of the respondents to
restoration.




16       Note 16 above at page 162.
                                                 54

[93]     I am not oblivious to the many meritorious insights that were canvassed and brought to our
attention by the applicants. These include the well researched findings in the Heitman and Mechem
reports. There is, for instance, no gainsaying that the South African Battle School is a national asset
nor that the continued and permanent presence of families in the middle of the Battle School is not
ideal. What is not acceptable is the pre-emptive effect such order would have on the fate of the
                 s
Khosis community’ claim. Applications on affidavit, though expeditious and economical in suitable
cases, generally justify interim rather than final orders. What has been done cannot be undone and
so a full ventilation of all issues is necessary especially when having regard to the desirability of
remedying past violations of human rights and in searching for “the requirements of equity and
justice”.17


[94]     The restitution process is not easy. It involves reconciling multiple different interests and
managing inevitably complex processes. It involves law and development, justice and nation
building. There must, in every case, be extensive consultations in order for people to be able to
                                                                    s
make informed choices between viable alternatives. It is this Court’ duty, in my view, to facilitate
these processes rather than guillotine them on impulse.


[95]     The granting of this order will, furthermore, permanently rob the Khosis community of an
important bargaining position. As stated above restoration is not only about occupation. The Khosis
community are currently in a stronger position to bargain for other rights in the land such as
ploughing, gathering wood soils, seasonal grazing, access and to from graveyards and other places
of worship and entertainment. This will, of course, not be possible once an order is issued that no
rights in the land shall be restored.


[96]     A final reality to be considered is that policies of governments change and, sometimes, in an
amazingly short space of time. The role of the military in modern democracies is an issue in constant
debate. There is no conventional enemy threatening to invade us and therefore a policy of reduction
rather than expansion of the Battle School is possible within the near future. If that should happen,
restoration of the rights in the land for the Khosis would have been placed out of reach in terms of a


17        Section 33(c).
                                              55

section 34 order. For all the above considerations, and in the exercise of my discretion, I would
dismiss the order.
                                             56

Order


[97]    I would therefore have made the following orders:


        (1)    The application is dismissed with costs.


        (1)    The applicants are ordered to pay the respondents’ costs including the cost
               consequent upon the employment of the two counsel.




____________________________________
ACTING JUDGE PRESIDENT F C BAM

				
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