Moloto Community v Minister of Rural Development and Land Reform and Others (LCC 204/2010) [2022] ZALCC 4 (11 February 2022)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Land Claims Court South Africa: Land Claims Court You are here: SAFLII >> Databases >> South Africa: Land Claims Court >> 2022 >> [2022] ZALCC 4 | Noteup | LawCite sino index ## Moloto Community v Minister of Rural Development and Land Reform and Others (LCC 204/2010) [2022] ZALCC 4 (11 February 2022) Moloto Community v Minister of Rural Development and Land Reform and Others (LCC 204/2010) [2022] ZALCC 4 (11 February 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALCC/Data/2022_4.html sino date 11 February 2022 IN THE LAND CLAIMS COURT OF SOUTH AFRICA HELD AT RANDBURG CASE NO: LCC 204/2010 DELETE WHICHEVER IS APPLICABLE (1) REPORTABLE: YES (2) OF INTEREST TO OTHER JUDGES: YES (3) REVISED: YES DATE: 11/2/2022 Before: Cowen AJ and Assessor T Maodi In the matter between: MOLOTO COMMUNITY Plaintiff and MINISTER OF RURAL DEVELOPMENT AND LAND REFORM First Defendant LUMO BELEGGINGS TRUST Second Defendant JOHANNES STEPHANUS GERHARDUS VENTER Fifth Defendant COLLIN LAI Sixth Defendant PIETER JACOBUS STEPHANUS ROBERTS Ninth Defendant JAMES ANDRE ROBERTS Tenth Defendant RENTIA KEMP Twelfth Defendant PIETER MATHYS BEUKES Fifteenth Defendant JAKKALSDANS BOERDERY CC Sixteenth Defendant PIETER JOHANNES STRYDOM Seventeenth Defendant JUDGMENT COWEN J (assessor T Maodi in agreement) Introduction [1] This Court is called upon to determine the amount of just and equitable compensation the First Defendant, the Minister of Rural Development and Land Reform (the Minister) must pay various landowners to acquire their properties in terms of the Restitution of Land Rights Act 22 of 1994 (the Restitution Act) for purposes of land reform. [2] The Moloto Community lodged a land restitution claim in terms of section 2 of the Restitution Act prior to 31 December 1998.  Amongst the claimed property is land referred to as Jakkalsdans 243 in Mpumalanga, located approximately 120km from Witbank in the Greater Nkangala District Municipality.  Over time, Jakkalsdans 243 has been subdivided into multiple parts.  In the result, the affected portions are owned by multiple landowners under separate title deeds. [3] From an early stage in the land restitution process, multiple affected landowners indicated their willingness to sell their properties to the Minister for purposes of land reform.  Some affected landowners reached agreement with the Minister regarding compensation payable; some at an early stage and others more recently.  Other affected landowners did not, including those landowners participating in the current proceedings, being the Second, Fifth, Sixth, Ninth, Tenth, Twelfth, Fifteenth, Sixteenth and Seventeenth Defendants.  For convenience, I refer in this judgment to these defendants as the Landowner Defendants.   I refer to their properties collectively as the “subject properties”. [4] The Minister is pursuing a process of acquisition of the subject properties in terms of the Restitution Act pursuant to a consent order granted by this Court on 5 June 2017.  In terms of section 22(1)(b) of the Restitution Act, this Court has the power to determine compensation payable in respect of land owned by a private person upon acquisition of such land under the Act. [1] Pursuant to the 5 June 2017 order and a subsequent order of this Court of 24 May 2018, also granted by consent, any dispute in respect of the compensation payable to the Landowner Defendants is to be determined by this Court.  There is no dispute that on the facts of this case, this Court must, for this purpose, determine what is just and equitable compensation as contemplated by section 25(3) of the Constitution of the Republic of South Africa, 1996 (the Constitution). [2] [5] Section 25(3) of the Constitution provides as follows: “ (3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including— (a)  the current use of the property; (b)  the history of the acquisition and use of the property; - the market value of the property; the market value of the property; - the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e)  the purpose of the expropriation.” [6] The Landowner Defendants seek compensation determined as the market value of the subject properties.  Save in respect of the Sixteenth Defendant’s property, the parties have reached agreement about market value. The Minister disputes that market value should be paid for the subject properties and contends, on the advice of the Valuer-General, that, on the facts of this case, just and equitable compensation should be determined by considering both the market value of the properties and what is referred to as ‘the current use value’ of the properties.  The ‘current use value’ is described as the value which the owner derives from the property by virtue of its beneficial use.  The Minister contends that these two values (market value and current use value) should be added together and divided by two to arrive at a just and equitable capital amount.  This ‘formula’ gives these two capital values equal weight.  Where applicable, adjustments can then be made in light of other relevant considerations, such as direct state investment and subsidy as contemplated by section 25(3)(d) of the Constitution.  As it is common cause that no such considerations arise in this case, the Minister contends that just and equitable compensation should be arrived at simply by adopting the formula. [7] The following main issues arise for decision in this case: (a) Whether, properly interpreted, section 25(3)(a) of the Constitution, permits a numerical value to be attached to the “current use” of property, in this case representing the value an owner derives from the beneficial use of the property, referred to as a “current use value”. (b) If the Constitution permits a quantitative assessment of “current use”, what role should “current use value” play in determining just and equitable compensation?  This requires consideration whether the Court should accept that the formula the Minister adopted on the advice of the Valuer-General, which gives market value and current use value equal weight, would yield a just and equitable amount of compensation on the facts and in the circumstances of this case.  It also requires consideration of what has become known as the two step approach in determining just and equitable compensation which uses the market value of property as a starting point from which adjustments can be made with reference to other relevant considerations. (c) If the Court concludes that there is a role for “current use value” in determining just and equitable compensation in this case, is the Court able to determine the “current use value” of the relevant Landowner Defendants’ properties on the evidence before it and if so, what is it? (d) If the Court is unable to determine the “current use value”, how should just and equitable compensation be determined on the facts of this case? (e) Costs including various reserved costs. [8] It is important to note upfront that the Property Valuation Regulations 2018 [3] made under the Property Valuation Act 17 of 2014 (the PVA) require the application of the formula as an initial step in the process of valuing a subject property for purposes of land reform.   These Regulations are not applicable to these proceedings as these proceedings were referred to this Court before the Regulations came into force. [4] This judgment thus does not concern their validity or interpretation, which was not before me and was not addressed by the parties at any stage. [9] Before turning to the above questions, I deal with the following issues:  the history of the matter, the broad approach to be followed in interpreting section 25 of the Constitution, the onus or duties of proof, the agreed facts and the salient features of the trial proceedings and expert evidence. The history of the matter [10] The Moloto land claim has a long and complex history.  This Court has not been fully apprised of the historical detail.  Nevertheless, a brief overview identifying certain features is warranted. [5] [11] The Moloto land claim was published in the Government Gazette on 27 August 2004 in terms of section 11 of the Restitution Act. [6] After investigating the claim, the Regional Land Claims Commissioner: Mpumalanga (the Regional Commissioner) embarked on a process of negotiation with the affected landowners with a view to purchasing the affected properties on behalf of the Minister. It appears that written offers were made to some affected landowners whose properties were valued in 2007.  Some of these offers were accepted and the relevant properties were then transferred to the State but the Regional Commissioner was not able to reach consensus with all affected landowners.  At a point in October 2009, it appears that the Regional Commissioner informed the affected landowners that the State no longer intended to restore the properties to the land claimants.  This stance apparently led various affected landowners to institute an application to compel a referral of the land claim to this Court for adjudication, which succeeded before Andrews AJ. [12] On 2 September 2010, Andrews AJ granted an order compelling the Regional Commissioner to issue a certificate in terms of section 14 of the Restitution Act that the Moloto land claim cannot be resolved and to refer it to this Court for adjudication. [7] The Regional Commissioner did so on 8 November 2010.  The Moloto Community thereafter pleaded to the referral as did various landowners. Following the referral, a process of case management ensued, the details of which need not be traversed save to note that the matter has faced many hurdles, taken many turns and come before multiple judicial officers over the course of a decade.  The need for finality in these proceedings is clear. [13] As indicated above, the Minister is acquiring the subject properties in terms of the Restitution Act pursuant to a court order of 5 June 2017 granted by consent. Following the grant of that order, the Minister tendered to purchase the properties at amounts based on valuation reports issued by the Valuer General in terms of section 12 of the PVA.  The Landowner Defendants rejected the offers and a dispute has emerged regarding the compensation payable.  It thus falls on the Court to determine the just and equitable amount payable. [14] After various delays, the matter was due to proceed in November 2018. However, it was postponed in circumstances explained in a reported judgment of Canca AJ. [8] The matter was thereafter set down for hearing in October 2019 but was again delayed until April 2020, when it could still not proceed. [15] On 6 July 2020, Canca AJ issued directives that a meeting of expert witnesses must take place and joint minutes prepared.   At that stage three expert witnesses were to be called.  The State Attorney had appointed Professor M Mooya and the Landowner Defendants had appointed Dr JM Laubscher and Mr JF du Toit.  A minute dated 6 July 2020 of these expert witnesses held on 13 March 2020 is before the court.  It records that “a consolidated view is not possible” despite a lengthy discussion, “consensus could not be reached on any substantive points”.  In short, Professor Mooya disagrees fundamentally with Dr Laubscher and Mr du Toit on the interpretation and, in turn, the application of section 25(3) of the Constitution to the case. [16] On 18 October 2019, the parties filed a statement of agreed facts, which I deal with below.  The parties have not filed any pleadings in respect of the dispute about what constitutes just and equitable compensation, rather, the scope of the dispute emerges from the divergent opinions of the expert witnesses and the agreed statement of facts.  Materially, there are disputes about the nature of a valuation for “current use value” and how it relates to a determination of market value and about the valuations themselves. [17] The matter was allocated to me, and assessor Mr Maodi, for hearing on 9 November 2020.   By that stage, the Minister was represented by Mr Mtsweni (with him Ms Maleka) and the Landowner Defendants were represented by Mr Roberts SC (with him Ms Roberts). [18] I convened a pre-trial conference on 29 October 2020 at which various matters were canvassed.  I highlight two.  First, the parties alerted the Court to the existence of a dispute about the duty to begin and the onus of proof.  As matters transpired it was unnecessary for the Court to determine those issues upfront as the Minister (without concession) thereafter agreed to begin.  I deal with the issue of onus or duties of proof in this judgment.  Secondly, I requested the parties to confirm whether the three expert witnesses whose summaries had been supplied were the only anticipated witnesses.  In response to a resultant query from Mr Roberts about whether a valuer responsible for preparing the valuations on behalf of the Minister would be testifying, Mr Mtsweni advised that he would confirm the position by 3 November 2020.  No confirmation was forthcoming on that date. [19] The trial proceeded on 9 November 2020.  In the final result, four experts testified – two for each party –  Professor Mooya, Mr Ntjie, Mr du Toit and Dr Laubscher. The evidence was ultimately completed on 17 December 2020.  To the extent necessary, I set out salient features of the trial proceedings when setting out the expert evidence. Interpreting section 25(3) of the Constitution [20] The Constitution must be interpreted purposively. [9] The Constitutional Court has, on various occasions, been called upon to interpret section 25 of the Constitution. [10] It is trite that any interpretation of section 25 must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. [11] And “[p]re-constitutional expropriation law must be approached circumspectly.” [12] The Constitutional Court has held that the purpose of section 25 is to protect existing property rights and to serve the public interest, mainly in but not limited to the sphere of land reform:  courts must strike a proportionate balance between these two functions. [13] The Constitutional Court has also held that whenever a court interprets section 25 of the Constitution, the broader context of section 25, and specifically the redressive imperatives that underlie subsections (4) to (9), must be borne in mind, being “redressing one of the most enduring legacies of racial discrimination in the past, namely the grossly unequal distribution of land in South Africa.” [14] Importantly, under section 25, the protection of property as an individual right “is not absolute but subject to societal considerations”. [15] [21] In Du Toit , the Constitutional Court interpreted and applied section 25(3) of the Constitution holding that it is the Constitution, and not legislation (in that case the Expropriation Act 63 of 1975) which “provides the principles and values and sets the standards to be applied whenever property … is expropriated.” [16] It held: “… the amount of compensation … must adhere to the standards of justice and equity.  It must also reflect an equitable balance between the interests of the public and of those affected by the expropriation.  These standards, provided for in section 25(3) of the Constitution, are peremptory and every amount of compensation agreed to or decided upon by a court of law must comply with them.  … [S]ection 25(3) provides an open-ended list of relevant circumstances to be taken into account, including the market value of the property.” [17] The Court held further: “ Section 25(3) does not make it peremptory that all factors listed be applied.  The list is open-ended.  Factors listed there will apply only insofar as they are relevant or applicable.  Factors other than those listed may also be taken into account if they are relevant or applicable.  The outcome reached must, however, be just and equitable, and it must reflect an equitable balance between the interests of the public and of those affected by the expropriation. ” [18] Moreover, the Constitution does not give any of the listed factors any particular prominence or significance greater than the others. [19] This applies to market value too.  Thus, the Constitutional Court held: “ Section 25(3) indeed does not give market value a central role.  Viewed in the context of our social and political history, questions of expropriation and compensation are matters of acute socio-economic concern and could not have been left to be determined solely by market forces. ” [20] [22] Courts have however generally adopted what has become known as a two-step or two staged approach to determine just and equitable compensation in terms of which market value is first ascertained, whereafter deductions or additions are made to market value as other relevant circumstances may require. [21] At first blush, the formula adopted by the Minister in this case, and which underlies Professor Mooya’s opinion, may appear difficult to reconcile with this approach.  On reflection, I have concluded that the formula is not irreconcilable with the approach nor precluded by the applicable authorities, and I explain this conclusion below. The onus and duties of proof [23] Both parties made submissions about the onus of proof in proceedings of this sort.  In view of the shortcomings in the evidence before me, it is necessary for me to consider this. [24] In short, Mr Mtsweni submitted that in compensation proceedings the issue of onus does not arise as there is no lis between the State and the landowner, rather, the duty to determine compensation simply resides with the Court itself, which acts as the ultimate valuer.  Mr Mtsweni relied centrally on the authority of Pentree Limited. [22] Mr Roberts submitted that the Minister bears the onus to prove what is just and equitable compensation and that while there is no lis between a claimant and a landowner in a restitution case, a lis arises once the issue of the quantum of compensation the State must pay a landowner arises for determination.  He relied centrally on the authority of Kusile. [23] To the extent that the issue is res nova , Mr Roberts relied on the general principle articulated in The South African Law of Evidence [24] that “[a]ny rule of law which annexes legal consequences to a fact must as a necessary corollary provide which party is supposed to prove that fact.”  I accept that this general principle as articulated is of assistance and it has informed my consideration of the correct approach below.  However, beyond this, after considering the authorities, neither argument captures the correct approach. [25] In Kusile, this Court had to consider whether costs should be awarded against the Commission in favour of a landowner (the Ingonyama Trust) which had successfully opposed a claim insofar as its interests were affected.  This Court held that a claim for restoration of land under the Restitution Act is a claim by a claimant against the State and that there is no lis between the claimant and the landowner.  It held that “where a landowner opposes a land-restoration claim on its property, it opposes a demand by the claimant that the State acquire or expropriate the property in order to transfer it to the claimant.” [25] The Court did not go on to consider the nature of a legal dispute between the State and the landowner in which the State has a legal duty to pay the landowner just and equitable compensation which is to be determined by this Court through legal proceedings.  In short, Kusile does not hold that there is a lis between the parties in a case of the present sort nor does it explain how any such lis may or may not determine the nature or incidence of any onus or duties of proof. [26] The contention Mr Mtsweni advances, on the other hand, is partly supported by authority decided in context of compensation disputes in which the Expropriation Act 63 of 1975 (Expropriation Act) is applicable about the quantum of property’s market value.  In this specific context, there are a number of dicta to the effect that there is no real lis between the parties and no onus in the ordinary sense on the party claiming compensation. [26] Rather, the Court is said to assume the role of ‘valuer’ and “has to do the best it can with the evidence before it”. [27] [27] In Khumalo , [28] this Court was called upon to determine compensation for an owner whose land had been acquired under the Land Reform (Labour Tenants) Act 3 of 1996.  Meer J (as she then was, Dodson J concurring) noted that the function of a Court determining market value has often been described as similar to that of a valuer: [29] “ Although the determination of value is to a large extent a matter of estimate, the court must, on the evidence placed before it, make a finding in much the same manner as a valuator would.  The finding is one of fact, a logical deduction from factual data.  In making its determination of value, the Court is not tied either to the claim or the offer, and it may award more than the amount claimed, or less than the amount offered.” [28] At times the term ‘super-valuer’ is used when describing the Judge’s function but the courts have cautioned against that notion as what courts are in fact doing is applying the applicable rules of procedure and evidence (often in the nature of expert opinion evidence) to determine market value quantum. [30] [29] The dicta which hold that there is no onus of proof in compensation proceedings are moreover neither uncontroversial [31] nor unqualified.  The dicta are qualified firstly in that they are asserted specifically when a court is dealing with a determination of market value.  Secondly, they are qualified in that they only apply to a determination of its quantum. Thus, addressing the onus of proof when dealing with the potentiality of property, the then Appellate Division held in Port Edward Town Board v Kay [32] that: “ A party who asserts that a property has a particular potential must prove it.  By potential is meant a use, additional to its current use, for which the property is suited and reasonably capable of being put in the future.  Such proof has three components: (a) that the potential exists; (b) that a willing buyer and seller would have taken it into account in fixing the price … and (c) the quantum.  Component (a) must be shown as a reasonable possibility … Component (b) must be proved on a balance of probabilities … Once (a) and (b) have been conceded or established there is no onus in the narrow sense in respect of component (c).” (citations omitted). [30] Both parties’ submissions assume that a lis between the parties must exist for any onus or duties of proof to arise.  Most simply, a ‘ lis ’ is a piece of litigation or a controversy; [33] “a dispute, controversy; action at law, suit.” [34] Viewed in this way, I find it difficult to understand how there cannot be a lis between the State and a landowner in legal proceedings where a Court must determine compensation payable by the State to the landowner under the Restitution Act because a dispute has arisen in that regard.  But I cannot overlook the authorities which hold that there is no such lis in comparable circumstances.  Fortunately, it is not necessary for me to decide whether or not there is a lis between the parties in order to address the onus and duties of proof in this case as I am of the view that these must arise irrespective.  The question rather is what approach this Court should follow with regard to the onus and duties of proof in proceedings of this sort and mindful of the general principle articulated in The South African Law of Evidence . [31] In my view, this Court is vested with the duty to determine what is just and equitable compensation based on admissible evidence duly placed before it and information the Court may obtain via the exercise of its inquisitorial powers.  In doing so, the Court will have to arrive at its own assessment of disputed values such as market value (in this case agreed).   Proceedings in this Court differ in some measure from proceedings in the High Court as this Court is vested with inquisitorial powers.  This Court can call for information and evidence, not least where the interests of justice demands that such information is obtained in order for the Court objectively to determine just and equitable compensation. [35] In some, possibly many instances, this will obviate any possible need to decide a case with reference to the “useful instrument of onus”.  But ultimately, the Court must arrive at a value by doing the best that it can with the information to hand. [32] This does not mean, however, that where a party asserts that compensation should be paid on a certain basis and in a certain amount, that that party does not carry any risk of non-persuasion if it fails to prove, via admissible evidence, either the suitability of the basis or the value contended for.  The assertion may (and preferably should) be made in pleadings, [36] or as in this case, by the parties’ experts, or both.  In this case, the Landowner Defendants assert that compensation should be paid on the basis of market value.  In this case, the Minister has tendered expert evidence and her experts assert that the capital amount to be attached to property in arriving at just and equitable compensation should be quantified by giving equal weight to market value and what is termed its ‘current use value’.  The Minister has also supplied evidence of valuations done on this basis in circumstances where there is agreement that no other adjustments should be made in light of section 25(3)(b) and (d) of the Constitution. [37] In my view, the risk of non-persuasion rests on the respective parties in respect of the contentions so advanced.  Material for present purposes is the risk the Minister carries if the Court rejects the evidence advanced on her behalf, which is that just and equitable compensation will have to be arrived at without the Court having regard thereto or having regard only to such facts as are in fact established, or features of the expert opinion which the Court accepts.  This is not a case where the Court would then be left with nothing to base its decision on in a manner consistent with the Constitution.  In these circumstances, it is not necessary for me in this judgment to go further and deal with some of the more difficult questions that may arise when a Court may have to resort to the useful instrument of onus to determine the matter. The agreed facts [33] The parties filed a statement of agreed facts on 18 October 2019.  The Court has also been supplied with details of the purchase prices and dates of acquisition and/or registration of the subject properties.  Save for the Sixteenth Defendant’s property, the market value of the subject properties has been agreed and is not in dispute.  The remaining Landowner Defendants, the description of their properties, the purchase price and date of acquisition or registration of the property, the agreed market value of the property [38] and the amount of the state offer (also recorded in the statement of agreed facts) [39] are set out in Table A. TABLE A DEFENDANT & OWNER PROPERTY DESCRIPTION PURCHASE PRICE AND DATE AGREED MARKET VALUE STATE OFFER 2 nd Def Lumo Beleggings Trust IT12644/1996 Portion 5, Jakkalsdans 21 4133 ha Title deed no T11866/2005 R91 000.00 1 Feb 2005 R2 450 504.00 R1 675 000.00 5 th Def Johannes Venter Portion 12, Jakkalsdans 21 4139 ha Title Deed no T37383/1988 & Portion 49, Jakkalsdans, 21 4190 ha Title Deed no:  T62531/1998 R0.00 17 June 1988 9 June 1988 R140 000 R5 487 000.00 R3 644 000.00 6 th Def Collin Lai Portion 13, Jakkalsdans 21 4143 ha Title Deed no T85535/1994 R80000.00 27 Oct 1994 R3 355 000.00 R2 200 000.00 9 th Def Pieter Roberts substituted by Executor of deceased estate Portion 18 Jakkalsdans 21 4136 ha Title Deed no T05033278/2005 R57 000 18 March 2005 R1 818 046.00 R1 170 000.00 10 th Def James Roberts Portion 19 Jakkalsdans 21, 4139 ha Title Deed no T102987/2002 R130 000 27 Aug 2002 R2 474 548.00 R1 690 000.00 12 th Def Rentia Kemp Portion 36, Jakkalsdans 21,4133 ha Title Deed no T131501/1998 R237 000 10 Nov 1998 R4 054 000.00 R 2552 000.00 15 th Def Pieter Beukes Portion 63, Jakkalsdans 21 4138 ha Title Deed no T32001/2004 R130 000 15 March 2004 R1 381 121.00 R880 000.00 17 th Def Pieter Strydom Portion 75 of Jakkalsdans measuring 21.5 ha and held by virtue of Title Deed no T29675/1993 21 April 1993 R39 000 R3 227 000.00 R2 064 000.00 [34] The parties’ statement of agreed facts expressly records that for purposes of section 25(3)(e) of the Constitution, the purpose of the acquisition of the properties is land reform. [40] Notably, it also records the following:  “The factors referred to section 25(3)(b) and (d) of the Constitution are not relevant for purposes of determining the just and equitable compensation to which the [Landowner Defendants’] are entitled.” [41] At the commencement of the proceedings, I requested the parties to address the Court on the relevance of section 25(3)(b) and (d) of the Constitution and whether an agreement by the parties that these provisions were not relevant to a case – as reflected in the statement of agreed facts – binds the Court or whether the Court was required to satisfy itself in this regard.   It is not necessary for me to decide this as the parties thereafter tendered and provided information the Court sought which satisfied me that, on the information to hand and the facts of this case as agreed, these factors are neutral as regards the determination of just and equitable compensation. [35] The Court raised certain further queries on 21 July 2021, including three matters arising from Table A.   First, it appears from Table A that the date of purchase or registration of some of the subject properties postdates the lodgment of the land claim and/or its gazetting in August 2004.  The question that would then arise is whether any of the parties knew or ought to have known that there was a land claim on the property which they purchased and whether that may impact on what is just and equitable compensation in their case.  The affected parties clarified their position on affidavit and on the information to hand, including the Minister’s response, I have satisfied myself that none of the Landowner Defendants were aware or ought to have been aware of the land claim at the time of purchase of the subject properties.   Second, it is apparent that Portion 12 and Portion 49 are valued together and owned jointly and the question is whether this is appropriate in the circumstances.  The responses provided, considered with the evidence, clarify that these are contiguous properties owned by the same party and operated as one agricultural unit, and there is no dispute amongst the parties or experts that on the facts of this case the valuation of the property yielding a single value is in accordance with valuation practice.  Third, the Court requested clarification why the purchase price for Portion 12 is reflected as R0.00, which, absent an explanation, may materially affect what is just and equitable compensation in light of the history of its acquisition.  The responses provided, considered with the evidence, clarify that the property was transferred in June 1998 to the Fifth Defendant in terms of an endorsement made under section 45bis(1)(a) of the Deeds Registry Act 47 of 1937 in circumstances of a divorce.  Until then the property had been owned jointly by the Fifth Defendant and his ex-wife, purchased by them on 17 June 1988 for R39 000 in an open market transaction.  This is, in my view, a neutral factor in this case. [36] In the result, this case centrally concerns, narrowly, whether the Landowner Defendants’ or the Minister’s contentions can and should be accepted on a proper interpretation of section 25(3) of the Constitution and on the evidence. The manner in which I address these contentions is by considering the issues for decision identified in paragraph [7] above.  While a narrow dispute, the issues are complex.  It is against this background that the trial proceedings and expert evidence must be understood. Salient features of the trial proceedings and the expert witnesses’ evidence [37] On 9 November 2020, Mr Mtsweni indicated he would first lead the evidence of Professor Mooya.  Professor Mooya is an academic in the higher education sector, currently an Associate Professor at the University of Cape Town and the Programme Convenor for its BSc (Honours) in property studies.  Since 2015, Professor Mooya has served as an ad hoc consultant for the Office of the Valuer-General.  He testified that he has been extensively involved with assisting the Office of the Valuer-General to devise its mechanism for arriving at a just and equitable compensation for the purpose of land redistribution and land reform.   That mechanism informed both the Minister’s assessment of just and equitable compensation for purposes of this case and, while not applicable to these proceedings, the Property Valuation Regulations 2018.  In essence, Professor Mooya expresses the opinion that, for purposes of determining just and equitable compensation and when assessing the capital value of a property, a value should be placed both on what the property would command in the market-place (its market value or value in exchange) and on its current use (its current use value or value in use).  As mentioned above, the current use value represents the value attached to the beneficial use the owner derives from the property and Professor Mooya contends that this is a well-known and accepted concept in valuation theory.  Professor Mooya opines that it would be just and equitable to give these values equal weight:  this entails the adoption of a simple formula whereby market value and current use value are added together and divided by two.  Thereafter, adjustments can be made in respect of any acquisition benefit or other relevant consideration.  In this regard, he is of the view that the items listed in sections 25(3)(b) and (d) of the Constitution are all capable of quantification, but – he is advised – do not arise on the facts of this case. [38] Mr Roberts objected to Professor Mooya’s evidence relying on the principle that interpretation of legal instruments is a matter for the Court and contending that his evidence amounts to inadmissible opinion evidence on the proper interpretation of the Constitution.  After hearing argument on the matter, I made a ruling allowing the evidence on a provisional basis and indicating that its admissibility would be finally determined after hearing all the evidence.  Professor Mooya testified that day.  Having considered the totality of the evidence given in light of the expert summary, which was confirmed, I have concluded that Professor Mooya’s evidence is relevant and admissible only in part.  This is for purposes of providing the Court with an explanation that a property valuer can, as a matter of fact and opinion, quantify or give monetary value to the current use of property, what this means and how such a valuation relates to market value. [42] As Mr Mtsweni submitted, viewed in this way, the evidence is relevant and has probative force primarily in assisting the Court to apply, rather than to interpret, section 25(3).   To the extent that the expert summary and the explanatory evidence went further than this and sought to proffer an opinion on the proper interpretation of section 25(3) of the Constitution – which it did – I agree with Mr Roberts that it is inadmissible. [39] Mr Roberts also ultimately objected to Professor Mooya’s testimony on the grounds that Professor Mooya did not satisfy the requirement of being an independent or objective witness.  In my view, this complaint was not sufficiently substantiated and I am unable to accept that Professor Mooya does not satisfy the requirement of independence.  Professor Mooya, like his counterparts, is addressing an issue which is divisive and emotive: compensation for land acquired for land reform.   That experts may hold strong and divergent views is inevitable.  Professor Mooya was wholly candid with this Court about the fact that he has been instrumental in the drafting of policies and laws governing valuations and he sought to assist the Court to understand the basis for the approach adopted.  In doing so, he expressly sought to balance considerations he regarded as germane to the application of section 25(3) of the Constitution: giving equal weight to market value and what he describes as current use value. [40] Mr Roberts objected further to Professor Mooya’s evidence on the basis that his summary, and in turn his evidence, did not comply with the requirements for expert testimony.   In Coopers, [43] and having regard to the purpose of Rule 36(9) of the Uniform Rules of Court, which is to remove the element of surprise, the then Appellate Division emphasized that a bald statement of opinion is not of any real assistance and a summary should at least state the sum and substance of the facts and data which lead to the reasoned conclusion (i.e. the opinion), and where scientific principles are applied rather than ordinary logic, the reasoning process should be summarised. [44] In Massmart , [45] the SCA restated the principle that: “An expert’s opinion must be underpinned by proper reasoning in order for a court to assess the cogency of that opinion.  Absent any reasoning the opinion is inadmissible since it cannot be said to be an expert opinion.” [46] Rule 36(9) is similarly worded to Rule 49(1)(a) of the Rules of this Court which requires the advance provision of a summary of an expert’s opinions and the reasons therefore.  In light of the purpose of Rule 36(9), and Rule 49(1) being to remove the element of surprise, I indicated upfront that Professor Mooya should not testify materially beyond what his summary, in substance, foreshadowed.  Because the summary, and resultant evidence, was limited in its content (both as regards the facts and data which underpin it and the reasoning for the opinions expressed), the evidence given was not ultimately of great assistance.  Nevertheless, it did shed some useful light on important issues of principle.   More specifically, it shed light on the broad basis upon which the valuations were conducted and it provided an explanation of the broad principles upon which the approach was based and its purpose, as set out above in paragraph [38]. [41] That it did not go much further than it did is unfortunate, and ultimately a lost opportunity, as the issues raised are matters of constitutional importance.  Specifically, and by way of example, there was insufficient information to allow a sensible comparison between what he describes as a current use value and an assessment of market value or indeed to understand the detailed methodology that must be applied in order to arrive at a current use value, what it represents and its place in accepted valuation theory. [42] At the end of the proceedings on the first day – 9 November 2020 – Mr Mtsweni informed the Court that he intended then to lead the evidence of Mr Ntjie, the valuer, as an expert witness.  Mr Roberts objected in circumstances where there had been no notice to call Mr Ntjie in terms of Rule 49. [43] The issue was dealt with the following morning, on 10 November 2020.  The result was a further brief postponement of the matter until 12 November 2020 to permit the Minister to file an expert summary in respect of Mr Ntjie’s proposed expert evidence.  An expert summary was filed on 11 November 2020.  However, the matter was again postponed until 7 December 2020 to run until 16 December 2020 (save for 8 December 2020).  This postponement was to enable the Landowner Defendants to request discovery and trial particulars in respect of the proposed evidence.  I also made an order regulating the postponement by setting time-frames for discovery, responding to the request for trial particulars and providing for a further joint meeting of experts, specifically Mr Ntjie and Mr du Toit.  To the extent necessary, I deal with the costs occasioned by these postponements below. [44] On 7 December 2020, the matter could still not proceed as the Minister did not comply with the time-frames regulating the adjournment.   The matter was then postponed until 9 December 2020, primarily to enable Mr Ntjie and Mr du Toit to finalise their discussions and to ensure a response to the request for discovery and trial particulars.   A minute of the discussions between Mr Ntjie and Mr du Toit identifying their points of agreement and disagreement was then supplied to the Court. [47] I refer to these engagements as the December 2020 joint expert meetings.  It warrants emphasis that in engaging with the process of dialogue, neither the Landowners nor Mr du Toit conceded that the methodology Mr Ntjie applied is an appropriate one:  they consistently maintained that market value amounts to just and equitable compensation on the facts of this case. [45] Mr Ntjie’s testimony finally commenced on 9 December 2020.  Mr Ntjie is currently a Managing Director of A & Sons Property Valuers, whom the Minister appointed to compile the valuation reports that formed the basis of the Minister’s offers.   He is a qualified and registered valuer, since 2002.  The relevant valuations were done using the formula referred to above.  Where the Landowners’ expert Mr du Toit had initially taken issue with multiple features of the valuation of current use value of the subject properties, the issues in dispute regarding the assessment of these values narrowed substantially pursuant to the joint minute.  There was and is no dispute that a current use value is arrived at by multiplying the net income derived from the properties by a suitable capitalization rate.  Ultimately, the pivotal material issue that remained in dispute is:  What is the suitable capitalization rate for the subject properties? [46] Mr Roberts contends that Mr Ntjie’s evidence should be wholly rejected as unreliable and lacking in credibility.  While there are features of Mr Ntjie’s valuations and evidence that were unsatisfactory, I do not reject his evidence as lacking in credibility or wholly unreliable. Mr Ntjie readily accepted and corrected any errors that he made and conceded that features of his valuations should, in future, be more carefully attended to, notably correctly dating drafts.   And he was willing to adapt his approach during the December 2020 expert meetings where new information came to hand.  I deal with other objections to his evidence below when dealing with its details.  After Mr Ntjie’s evidence, the Minister closed his case. [47] Mr Roberts commenced the Landowner Defendants’ case on 10 December 2020 with Mr du Toit’s evidence.   Mr Du Toit is a valuer with some 39 years of experience and the past President of the South Africa Council of Property Valuers.  Mr du Toit opines that, if properly applied, the market value and the current use value of a property will be the same.  Moreover, he expresses the opinion that the current use valuation methodology finds no application in context of residential small holdings, which are in issue in this case.  Rather, the methodology finds application in context of industrial or commercial properties.  Much of Mr du Toit’s evidence, however, constituted a critique of Mr Ntjie’s valuations. The substance of the critique is that the current use values are artificially low.  This was based on two initial central contentions, but the first ultimately fell away after his meeting with Mr Ntjie. [48] The remaining contention, as indicated above, is that the capitalization rate used is incorrect.  Initially it was contended that the capitalization rate used (12%) was artificially high, which reduces the assessed current use value.   Mr du Toit expresses the opinion that a capitalization rate of 3.5 to 5.5% is usual for residential properties/small holdings of this nature and that a range of 3.76% to 5.12% is suitable in this case.   Ultimately, the difference between Mr Ntjie and Mr du Toit narrowed.  Mr Ntjie accepted a reduced capitalization rate of 7.5% and Mr du Toit increased his range between 0.5% and 1% resulting in a new range of 4.2% and 6.12%.   During his testimony, Mr du Toit critiqued Mr Ntjie’s new rate of 7.5%, in my view persuasively, as I explain below. [48] Dr Laubscher testified on 16 and 17 December 2020.  He is an agricultural economist. Dr Laubscher’s evidence focused on the economic impact of equity erosion for landowners.  He also offered a critique of the formula used by the Valuer-General and applied in this case, and similarly to Mr du Toit, critiqued any artificial inflation of deductible costs and capitalization rates.   Dr Laubscher agrees with Mr du Toit that when properly applied, a current use value should equate to a market value. [49] I point out upfront that to the extent that Mr du Toit and Dr Laubscher (like Professor Mooya) opined on the proper interpretation of section 25(3) of the Constitution – which they both did – I am of the view that such evidence is inadmissible.  Moreover, Mr Mtsweni contended that their evidence should be rejected as lacking in independence and objectivity, centrally because their approaches, he says, are aimed at advocating for market value compensation for land acquired for land reform.   I do not agree.   Similarly to Professor Mooya, both witnesses were candid about what underpinned their views and approaches in what is a divisive an emotive debate.  In the case of Dr Laubscher, this did translate into a very strongly held view that material deviations from market value compensation should be avoided.  Mr du Toit adopted a more balanced and nuanced approach.  Neither witness, however, failed to give cognizance to the Constitution’s requirement that market value is only one factor relevant to just and equitable compensation.   Thus, while their opinions can indeed be regarded as ultimately favouring market value compensation, they were not proffered in a biased fashion. Mr du Toit’s evidence was, however, more detailed on relevant matters and thus of greater assistance to me.  Moreover, to the extent that Mr du Toit erred in a way that may, if unexplained, suggest a leaning in favour of the Landowner Defendants’ cause, like Mr Ntjie, he readily accepted correction and adjusted his approach where necessary. [50] Mr Mtsweni also contended that Dr Laubscher is not qualified to testify, inter alia because his qualifications are not directly related to valuing properties and he has only been involved in one restitution case.  I do not agree that his limited involvement in restitution cases to date renders him unqualified. Furthermore, Mr Mtsweni complained that Dr Laubscher’s testimony ventured into matters of economic policy which are beyond the purview of the Court.  While I agree that it is not for this Court to determine economic policy – and the evidence as tendered might be understood as such a call – it must be appreciated that matters concerning just and equitable compensation are steeped in social and economic issues that may ultimately implicate policy.  Ultimately, I do not think that in this case, this Court is called upon to navigate this issue because of a related but different difficulty with much of the testimony of Dr Laubscher, which is that the primary economic issue raised does not appear to me to be relevant to the facts and circumstances of the case. Most notably, concerns were raised about the systemic economic impact of deviating from market value compensation in circumstances where banks secure their loans on the strength of such valuations and play a critical role in South Africa’s economic stability. But there is no evidence that any of subject properties is subject to a mortgage or that compensation below a certain amount will result in any prejudice to any bank in this case.   In these circumstances, the views expressed on this topic and the related broader economic issues, are abstracted from the facts of the case and appear rather to be an abstract economic debate.  I accordingly do not consider the evidence on this issue nor Professor Mooya’s responses thereto to be relevant.   Different considerations may apply in a case where a bank has secured a loan with a mortgage over a subject property. [51] The evidence was completed on 17 December 2020. The parties then requested that the matter be postponed sine die until the transcript of the proceedings was available, whereafter, they would approach the Court for a date for the hearing of argument.  After receipt of the transcript, the parties then filed heads of argument and the matter was argued on the arranged date being 12 May 2021.  I provisionally reserved judgment, on the basis that the Court may request further information from the parties and their experts, whose further assistance was tendered.  As matters transpired, on 21 July 2021, the Court requested further information and submissions, which the parties supplied on 27 August 2021.   This assisted me both with queries arising from Table A and other matters affecting the expert testimony. [52] I now turn to deal with the five main issues that arise for decision in this case as set out in paragraph [7] above. The first issue:  can a numerical value be attached to ‘current use’ of property as contemplated in section 25(3)(a) of the Constitution? [53] The first issue for decision is whether, on a proper interpretation of section 25(3)(a) of the Constitution, a numerical value can be attached to ‘current use’ of property as contemplated by that sub-section (a quantitative approach) – as the Minister contends – or whether the sub-section requires or requires only a contextual consideration of the current use of property (a contextual approach). If the latter, then the Minister’s contentions must be rejected as inconsistent with the Constitution.  If the former the second issue arises. [54] Mr Roberts submitted that the plain language of section 25(3) precludes a quantitative approach in that it is only subparagraph 25(3)(c) which refers to a ‘value’, that being market value: section 25(3)(a) refers to current use of property not a current use value .   Mr Roberts submitted further that a proper consideration of the case law in which courts have applied section 25(3) and specifically considered section 25(3)(a), shows that a contextual approach is required when determining just and equitable compensation.   No authority was cited to me that states such a principle in those precise or similar terms, but it is correct that courts, including the Constitutional Court, the Supreme Court of Appeal and this Court, have – as a matter of fact – frequently applied section 25(3)(a) contextually. [55] That much is apparent from an analysis of Du Toit. In that case, the Constitutional Court determined just and equitable compensation in terms of the Expropriation Act.  The portion of land in question was located on a farm on which a borrow pit was created to excavate gravel.  When considering the current use of the property, the Constitutional Court considered contextual factors, such as evidence that the land and gravel in the expropriated portion had lain dormant and that extensive gravel deposits remained notwithstanding the expropriation. [49] In Haakdoornbult , [50] the SCA also adopted a contextual approach.  At issue was whether a land claimant under the Restitution Act had received just and equitable compensation for dispossessed land.  The SCA had regard to the use the affected family had put to the land (irrigation, dry land cultivation, homes, livestock and traditional family purposes) to conclude that the family lost more than the market value of the farm.   Similarly, this Court adopted a contextual approach in Khumalo , [51] in which a contextual consideration of the current use of the property, where the farmer could not in fact use the grazing farms due to others’ use of them, resulted in an upward adjustment in the amount of compensation payable.  And there are other cases where a contextual approach was followed. [52] [56] In my view, a contextual approach serves the purposes of section 25(3). Context always matters and a consideration of the circumstances in which expropriated land is used can facilitate an understanding of the balance of public and private interests.  Moreover, the current use of a particular property may be integrally linked with constitutionally supported values, such as environmental, social or cultural values, that may bear little or no relation to financial value, as appears from Haakdoornbult . [53] And as Mr Roberts submitted, the plain language of the section supports a contextual approach. [57] However, it does not follow that it is impermissible, in an appropriate case, to quantify, or attach a financial value to the current use of property which represents, for example, its beneficial use, and also have regard thereto, when seeking to determine just and equitable compensation in terms of section 25(3).  Indeed, to do so may well be of assistance in an appropriate case.   Most obviously, it may be of assistance if seeking to quantify the difference between the potential of a property – for which the market may be willing to pay – and its actual use (or lack thereof).  Provided one does not forego a contextual consideration of current use, this approach can also further the purposes of section 25 by balancing public and private interests, recognizing that property ownership entails social responsibility and furthering its redressive imperatives.   And I can see nothing in the wording of section 25(3)(a) which precludes this in an appropriate case. [58] In arriving at this conclusion, I have considered case authorities and satisfied myself that there is no authority that binds me that precludes it and rather, I understand the conclusion to be consistent with existing authority.  There are however two views in case law on the issue of quantification in terms of section 25(3) which are apparently in tension with each other and that warrant consideration in this context and I briefly turn to these now. One view is that valuers and in turn Courts have regard to current use when quantifying the market value of property, which shows that the current use of property is often instrumentally and integrally connected to how market value is quantified. For example, the current use of property may inform which recent sale transactions in the open market will be identified as comparable sales.  Also, where appropriate, market value may be arrived at by capitalising net income, a valuation methodology that uses the current use of property as its framing premise. Two examples are the decisions of this Court in Mhlanganisweni Community [54] and Msiza. [55] In light thereof, it thus cannot be suggested that current use (and thus section 25(3)(a) has no bearing on quantification of just and equitable compensation.  I accept that it is a step further to say that current use can and should be independently quantified, as the Minister and her witnesses contend. [59] The other view is that market value (section 25(3)(c)) and the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property (section 25(3)(d)) are the only factors in section 25(3) which are readily quantifiable.   The origin of the statement is Ex Parte Former Highlands Residents [56] : “ except for factor (d) (which is about the extent of State investment and subsidy), it [market value] is the only factor listed in section 25(3) of the Constitution which is readily quantifiable. That makes it pivotal to the determination of compensation.” [57] In Du Toit, Mokgoro J paraphrased this comment as suggesting that market value is “one of the few factors in the section which is readily quantifiable.” [58] In Haakdoornbult, Harms ADP concluded that “market value was, in the context of that case the only factor listed in section 25(3) capable of quantification”. [59] None of these statements are, however, unqualified, and it would seem deliberately so. [60] Nor do they appear to be based on evidence placed before the respective Courts as to what is and what is not capable of quantification by suitably qualified valuers. Accordingly, in my view, while it may well be that the factors listed in section 25(3)(c) and (d) are most readily capable of quantification, there is nothing in the Constitution, nor have I located any precedent, which precludes a party from seeking to persuade a Court that a numerical value should be attached to another relevant factor, specified or not. [61] [60] I have concluded that a proper interpretation of section 25(3)(a) requires a contextual analysis of the current use of the property, but does not preclude a Court also from attaching a numerical value thereto either as an instrument in determining market value or independently.  Whether a value can sensibly be so attached will depend on the evidence before the Court.  Such a value and what it represents can then be considered as relevant in arriving at just and equitable compensation. The second issue:  what role should a “current use value”, representing the beneficial use of property, play in arriving at a determining of just and equitable compensation [61] Having determined that the Constitution permits a quantitative assessment of “current use”, the second issue arises, namely: what role should a “current use value”, representing beneficial use of property, play in the determination of just and equitable compensation?  And does the formula adopted by the Minister on the advice of the Valuer-General yield a just and equitable determination of a capital value to be attached to the subject properties? [62] If Professor Mooya is correct that valuers can sensibly arrive at two capital values of property, one reflecting value in exchange (or market value) and the other value in use (current use value or value of beneficial use) then there would seem to be inherent balance in an approach which seeks to place equal weight on these two capital values. This is how Professor Mooya explained the logic and purpose of the formula.  My difficulty with accepting a formulaic approach, however, is that it precludes contextual factors from determining how these values should be balanced justly and equitably in a given case: some cases may warrant greater (or full) emphasis be given to market value and others may warrant greater (or full) emphasis be given to current use value or to some other amount.  Ultimately the weight to be given to each factor, and whether they should be given equal or different weight, or no weight at all, would thus need to be considered in each case having regard to its facts, context and circumstances. [63] I now turn to whether the formula (or an adjusted weighting as contemplated in paragraph [62] above) can be reconciled with the two-stage approach whereby courts first ascertain market value and then make an upward or downwards adjustments with reference to other relevant factors to determine a just and equitable amount.   In this regard, some conceptual clarity is warranted and in achieving this, a distinction should be drawn between two uses or contexts in which the terminology of a “two-stage approach” is used. 63.1       The one use finds its source in Du Toit and is mandatory: This is when section 12 of the Expropriation Act is applicable.  In such a case, a court must first consider the compensation payable under the Expropriation Act and then consider if that amount is just and equitable under section 25(3) of the Constitution. [62] Absent any legislative amendment to the Expropriation Act, the two-stage approach in this sense is obviously mandated for the determination of just and equitable compensation when the Expropriation Act applies. [63] This is not such a case. 63.2       The second context in which a two-stage approach is adopted is where no statutory parameters are set for determining compensation and here, the two-stage approach is not mandatory.  It finds its origin in in Ex Parte Highlands Residents : “… . the equitable balance required by the Constitution for the determination of just and equitable compensation will in most cases best be achieved by first determining the market value of the property and thereafter by subtracting from or adding to the amount of the market value, as other relevant circumstances may require.” [64] This approach has been endorsed and used regularly by this court as a salutary and practical approach in context of the Restitution Act beyond the purview of the Expropriation Act and to date has received the endorsement of the SCA, at least in the circumstances of the cases which have come before it. [65] Importantly, however, the approach is always subject to section 25(3) of the Constitution.  When applying section 25(3) to the facts of a case, must always promote the spirit, purport and objectives of the section and the Bill of Rights as a whole.  And in doing so, this Court must not unduly privilege market value in that process. [66] [64] It is the second way the term “two-stage approach” is used that is relevant to this case. While at first blush it may seem that the formula (or an adjusted weighting as contemplated in paragraph [62] above is precluded by it, on reflection, I have concluded that it is not for the following three reasons.   First, conceptually, the formula (or adjusted weighting) can be regarded as consistent with the two-stage approach as what it effectively posits is that where a current use value is less (or in the rarer case more) than market value, an upwards or downwards adjustment can then be made to arrive at a capital value. Second, and in any event, the two-stage approach is not a hard and fast rule, rather it is a practical approach to determine just and equitable compensation in most cases.   Third, the authorities do not preclude the production of evidence with a view to persuading a Court to attach a numerical value to or to quantify factors other than market value or section 25(3)(d), including current use. [67] [65] The question that then arises is what the evidence demonstrates about the nature and meaning of a current use value and how it relates, conceptually and methodologically, to market value.  I accordingly turn to the evidence of Professor Mooya, on the one hand, and Dr Laubscher and Mr du Toit on the other and related historical precedent and authority.   I have set out the broad import of these witness’ testimony above.  The real points of contention is the true relationship between market value and current use value and what methodology underpins a determination of the latter. [66] Professor Mooya explains that the market value of a property will be different to its current use value only in circumstances where the property is not currently being put to its highest and best use.   Where property is being put to its highest and best use, the difference between the two should be marginal, if anything.  It is this, he says, that justifies placing equal weight on the two values because on the one hand, the public benefits from not compensating the full potentiality of property in circumstances where it is not used optimally and on the other, owners are still fully compensated for their actual loss. [67] Dr Laubscher critiques this approach.  He has analysed the State offers in light of the agreed market value and ascertained that on average the reduction from market value was some 33.7%. [68] He views this reduction as generating a loss to the affected landowners to benefit the State without justification. [68] Mr du Toit opines that determining the value of property by capitalizing net income is merely one of four primary well known methods for determining the market value of a property [69] and if properly applied should yield the same value as market value.  According to his testimony these four primary methods can be described as a) the market data approach of direct comparison, known as the comparable transaction approach; b) the market data approach of indirect comparison, known as the income approach or capitalisation of income approach; c) the land residual approach and d) the cost approach. [70] We are concerned with the second approach: I refer to it as the income approach. [69] The income approach, Mr du Toit testified, can be a useful method to arrive at market value when valuing investment properties in cities and towns. [71] When valuing smallholdings and agricultural property, he explains, one needs to understand what the residential and agricultural properties mean to the users of the components.  Mr du Toit explains that valuers, when valuing agricultural and smallholding properties, give preference to the comparative sales method.  In this regard, he drew my attention to Wollach , in which Canca AJ observed that the “other three methods are, generally speaking, not applicable to agricultural land”. [72] In Mostert, [73] cited in Wollach , Wessels JA held as follows as regards the comparative transaction approach and the income approach in a case concerning compensating agricultural property: “ Comparable transactions, particularly where the sales are concluded after objective and impersonal bargaining, afford the most satisfactory evidence of a fair market value because it demonstrates how circumstances have affected the minds of purchasers and sellers. ….  Where such evidence is not available or, not satisfactory, the valuer would normally have regard to evidence which indicates what the fair market value probably would be in the light of the income which may be derived from the land.” Canca AJ also relied on White v Union Government , [74] in which Van Zyl JP dismissed an appeal against a decision of the Water Court which had to value agricultural land.  In doing so, the Water Court had rejected an income based approach.  Van Zyl JP held that while evidence as to profit made by a farmer made out of farming certain land “might often be an element of great importance in determining the value of such land, I do not think there can be any doubt that such evidence might sometimes be very misleading for the purpose of arriving at the value of land if the share which the particular farmer, through his skill and ability as a farmer, had in producing the profit is not taken into account.”  In that case there was uncontradicted evidence that the appellant was an outstanding farmer ably assisted by his wife and that he was able to produce more from his farm than an average farmer would be able to do.  There was no evidence of sales of land from which the Water Court could obtain an idea of the market value of the land and in those circumstances, had arrived at a reasonable estimate of market value by considering the evidence of witnesses who from practice and experience as farmers or land valuers or agricultural experts could testify as to the value of the land viewed from various points of view.  The appeal court upheld the decision of the Water Court. [70] In Union Government v Jackson and others [75] the Appellate Division considered an appeal against a determination of the Water Court which valued two farms expropriated for an irrigation scheme.  The Court agreed with the Water Court that the properties’ market value was not ascertainable “by a mere capitalization of the annual profits” [76] and increased the compensation award having concluded that it had erred in disregarding the fact that the farm had yielded a handsome profit over two successive seasons.  This conclusion was considered to inform what would influence a willing buyer and seller.  The good use to which the property had recently been put thus served to increase a determination of market value. [71] In Onteieningsreg , [77] Gildenhuys deals with the income approach, explaining that the valuation method proceeds from the premise that a purchaser will not pay more for a property with a certain income level than an amount the investor can obtain a similar income level elsewhere for the same risk. [78] This method of valuation is suitable for investment properties including housing, office blocks, petrol stations and some industrial buildings but is ordinarily not suitable for a home, a business or a farm, although the author notes that it had been used in some Australian courts to value grazing land.  Gildenhuys emphasizes that a distinction must be drawn between income resulting from the specific attributes of a property which is relevant to its value and income that derives from the owners’ personal business on the property which may not be. [79] [72] When regard is had to the historical authorities to which I have referred, the income method of determining market value which has historically been relied upon may, as Mr du Toit testified, appear to be much the same as what Professor Mooya describes as the manner of determining current use value.  Moreover, the authorities do appear to hold that at least generally, the income method will not be used when valuing residential or agricultural property. [73] Professor Mooya in this regard explained, however, that the current use value he is referring to and which assists in applying section 25(3) of the Constitution, is focused on the actual position of the landowner whereas the income method of determining market value is focused on the hypothetical.  It must thus be regarded, he explained, as a distinct concept of value which attaches value in respect of a specific landowner, not hypothetical market players.  The method thus requires that a valuer considers actual income received when arriving at current use value.  The purpose of determining market value and current use value, he explains, is different: the former establishes the hypothetical selling price of a property where the latter quantifies the ongoing actual benefits of using or owning a property.   Professor Mooya further maintained that the concept is well established in international valuation standards and systems, but did not cite these. [74] Mr du Toit, in turn, critiqued this approach indicating that it effectively rewards or punishes the particular owner rather than focusing on the value of the land itself.  In my view and at face value, there may be some traction in this critique because the reasons why some owners are likely to be able to use land optimally or well and others less so will be contextual, and importantly, at times they will be steeped in our colonial and apartheid history. [75] Yet this still does not mean that there is no room for consideration of a current use value of a sort which Professor Mooya contends for, in other words, which reflects value in use as opposed to value in exchange provided it is considered contextually, rather than formulaically. [76] On an evaluation of the evidence, however, a consideration of current use value cannot assist the Minister in the circumstances of this case for three reasons. 76.1       First, on the evidence before the Court, there is insufficient information to explain, and in turn understand the implications of any methodology which might be applied to arrive at a determination of a current use value which represents value in use.  Indeed, on the limited information to hand, it is not possible sensibly to differentiate how any such methodology would be rationally distinguished from the income approach to determining market value compensation.   Moreover, there is insufficient information to permit a rational or just and equitable consideration of whether the principles can sensibly be applied in context of residential and agricultural or smallholding properties.  As a result, where Professor Mooya has usefully advanced a valuation principle which may well have value, it cannot be given practical effect in this case to arrive at a just and equitable determination. 76.2       The second difficulty is that there is no evidence before me dealing with how, contextually, the affected owners’ current use of the subject properties should be weighted. Indeed, there is no real dispute between the parties that the subject properties, which are all smallholdings, are being put to their highest and best use: being residential and agricultural, which suggests that any current use value should be the same or similar to market value. 76.3       Third, I have concluded, that the current use values which the Minister has placed before the Court cannot be accepted, as I now explain. Third issue: The current use value of the properties [77] To arrive at current use values, the Minister relies squarely on the valuations conducted by Mr Ntjie and his evidence.  The valuations and the underlying evidence were the subject of criticism from Mr du Toit including pertinent criticism about the absence of detail in the valuation reports.   However, after the process of requesting further particulars and discovery and following the December 2020 joint expert meetings, the differences between the two experts had, in substance, narrowed to two main issues:  the amounts of comparable gross rentals and the appropriate capitalization rate.   In turn, Mr Ntjie increased his assessment of current use value. [78] The current use values of the properties determined by Mr Ntjie after the December 2020 joint expert meetings are depicted in Table B, which depicts the original calculations of current use value and the adjusted calculations.  It also depicts the subject properties’ market value, and in turn the Minister’s assessment of what is just and equitable compensation. [80] This is notably significant less than the agreed market value. TABLE B DEFENDANT & PORTION AGREED MARKET VALUE CURRENT USE VALUE PER VALUATION CAP RATE: 12% STATE OFFER AJUSTED CURRENT USE VALUE CAP RATE: 7.5% ADJUSTED JUST & EQUITABLE AMOUNT EXH G 2 nd Def Portion 5 R2 450 504 R   900 000 R1 670 000.00 R1 258 560 R1 855 000 5 th Def, Portions 12 and 49 R5 487 000 R1 800 000 R3 644 000.00 R3 076 480 R4 281 740 6 th Def Portion 13 R3 355 000 R1 050 000 R2 200 000.00 R1 678 080 R2 516 540 9 th Def Portion 18 R1 818 046 R  600 000 R1 170 000.00 R  978 880 R1 398 463 10 th Def Portion 19 R2 474 548 R  900 000 R1 690 000.00 R1 538 240 R2 006 394 12 th Def Portion 36 R4 054 000.00 R1 050 000 R 2552 000.00 R1 678 080 R2 866 040 15 th Def Portion 63 R1 381 121.00 R375 000 R880 000.00 R   879 880 R1 180 000 17 th Def Portion 75 R3 227 000.00 R900 000 R2 064 000.00 R 1538 240 R2 380 000 [79] Mr Ntjie commenced his analysis of the current use values by determining the nature of the benefit derived by the owners of the property, which was mainly residential and limited agricultural purposes.   The value of the use was then determined with reference to a net rental income arrived at by determining a notional market rental for the property and deducting monthly expenses. [80] A market rental was determined by interviewing property owners of similar properties and managing agents as well as other agents dealing with similar properties, and by analyzing the rentals of various properties as set out in his reports. [81] Mr Ntjie was unable to identify properties in the immediately proximity to the subject properties which were being rented out.  Accordingly, he used similar properties situated outside of but within a radius of 54km to the Pretoria city centre.   The analysis yielded that the rentals ranged from R5000 and R20 000 per month.   Mr Ntjie then adjusted the rental for each subject property after comparing property size, condition and location.  Mr du Toit opined that these rates were overstated by R1000 to R2000 per month. [81] After the December 2020 joint expert meetings, there was no dispute that the properties were suitable for purposes of comparison. [82] The experts also narrowed their differences in rental rates to between R500 and R1000.  The potential rentals would then range between R5000 and R13 000 per month. [82] To determine monthly expenses, Mr Ntjie took into account rates and taxes, maintenance costs, insurance costs for each property and management and audit fees.  After analyzing the expenses, he initially obtained an average of 25% of the gross income in respect of the subject properties.  He testified that the best way to determine expenses was to obtain access to an owners’ actual expenditure.  In this case, he took into account actual rates and taxes based on municipal valuations.  Thereafter, his analysis entailed assessing maintenance at 0.6% of the insurance value, insurance at 0.3% of the insurance value, a management fee at 5% of gross income and audit fees at R2160 per annum based on what he described as industry norms.  This approach is patently not based on actual expenditure, as Mr du Toit remarked.  However, after the November 2020 joint meeting, at which information regarding actual expenditure was shared by Mr du Toit, Mr Ntjie and Mr du Toit agreed that the average rate of expenditure should be reduced from 25% to 12.6% as a percentage of gross income. [83] Mr Ntjie initially calculated a capitalisation rate of 12% which he applied to all of the subject properties.  He arrived at this amount by dividing the notional net income with a purchase price he identified from analyzing comparable sales in the vicinity of the subject properties. Current use value was then determined by taking the net rental income and multiplying it by the capitalization rate of 12%. [84] In Mr Toit’s experience, residential property generally trades at between 3% and 5%, this being the norm in the market place. And he opines that based on his experience that is the range within which the subject properties should trade.  Mr du Toit did a high level estimate on the capitalisation rates of the properties that Mr Ntjie used as the rental proxies, relying on market values in the area.  He arrived at a capitalisation rate in the range he expected.  Mr du Toit opined that the correct way to arrive at a capitalization rate for the subject properties would be to analyse the purchase price of the properties identified as comparable sales in section 2.8 of his reports (being those used to determine market value).  Mr du Toit regarded only 4 of these 8 properties as relevant [83] and arrived at a capitalization rate between 3.10% and 6%, in other words, an average of 5.08%.   He ultimately opined that a reasonable rate would be within the parameters of 3.5 to 5.5%. [85] After the December 2020 joint expert meetings both witnesses adjusted their capitalization rates.  In Mr du Toit’s case, he adjusted the rates in part as a result of the agreed drop in expenses from 25% to 12.6% of gross income.  He also included in his consideration one of the properties which he had omitted to include but which yielded a 7.5% capitalisation rate.  Mr du Toit considered his capitalization rate range (3.76 to 5.12) should increase between 0.5% and 1% resulting in a new range of between 4.2% and 6.12%. [86] Mr Ntjie on the other hand considered that the capitalization rate should be reduced from 12% to 7.5%. The property that he ultimately used as a proxy for a purchase price and from which this figure is derived is known as Portion 35.  In my view, his reliance on this properly is misplaced, as Mr Roberts contends relying on Mr du Toit’s critique.  According to the evidence, the property was purchased in November 1999 from a bank.  The owner on-sold the property on 12 January 2017 in urgent circumstances after her husband’s death.   Mr Ntijie testified that he understood that the property had at that stage been purchased by someone cheaply and that the purchaser wanted to sell it to the government at market value.   He considered the purchaser to be well informed. Mr du Toit on the other hand regards the sale as precluded from consideration by the Pointe Gourde principle.  This principle, as accepted in our law, holds that when determining compensation for compulsorily acquired land, no regard should be had to any increase or decrease in value of the land which is attributable to the scheme underlying the acquisition. [84] While somewhat sparse, the information supplied to the Court does suggest that the purchase price paid was lower than it might have been as a result of a land acquisition scheme and I am not satisfied in these circumstances that the price for this property can be used as a proxy for purchase price.   In any event, in my view, this sale cannot be used as a proxy for purchase price because the factors which influenced price were distinct and unusual. [87] I pause to deal with an objection which Mr Mtsweni raised in respect of the Mr du Toit’s evidence about the circumstances of the sale of Portion 35, which I provisionally allowed.  The objection was levelled on the basis that the issues ought to have been foreshadowed in Mr du Toit’s expert summaries.  In this regard, Mr Mtsweni submitted that the same rules apply to both the Minister and the Landowner Defendants’ summaries and must be applied equally to both parties.  I agree with Mr Mtsweni’s latter submission.  But in my view it is misplaced in this context.   It was Mr Ntjie not Mr du Toit who relied so materially and centrally upon Portion 35 for this purpose, and the information about the property came to light during the exchange between the experts in the December 2020 joint expert meetings.  Moreover, Mr Ntjie himself testified about it in material ways. [88] As appears from the above, the only two real points of contention that remained between Mr Ntjie and Mr du Toit after the December 2020 joint expert meetings were the capitalization rate and the rental income amounts.  On the latter, while the witnesses were unable to reach agreement, the difference between them was reduced to between R500 and R1000 per month, a difference that may be capable of resolution.  But the former disagreement on the capitalization rate is material and in my view cannot be resolved in the Minister’s favour. [89] There are further difficulties with the valuations.  First, save insofar as expenses were ultimately agreed based on actual expenses, the valuations are prepared with reference centrally to comparable property yields and prices rather than information germane to the specific owner.   That forefronts the evidential issues that I have raised above, namely the sparse evidence supplied about the correct methodology to arrive at a current use value reflecting value in use or beneficial use or that enables me to reconcile differences between a current use value representing value in use or beneficial use or market value determined via an income approach.  In turn this means that the valuations do not provide an adequate basis upon which I can sensibly conclude that they reflect the actual beneficial use to the current owners.  Secondly, and as already noted, although there are some differences in detail between the expert witnesses, there is no dispute that the properties are being put to their highest and best use.  There was no dispute that in such circumstances a current use value should equate to market value.   In this regard, Mr Ntjie contended that while that is so, the owners in this case are not in fact using their properties optimally even within their current and best use (for example for farming activities).  But I am unable to accept this contention on the evidence before me.   For the most part there is no such evidence and such evidence as there is suggests either that the properties are being so used or the uses beyond residential uses were not factored into the valuations.  Thirdly, I have considered whether any benefit may be gained from using Mr du Toit’s calculations to arrive at a current use value.  But this exercise would be fruitless as Mr du Toit’s valuations default to market value because the purchase price he uses to arrive at a capitalization rate is reflective of the market value of the subject properties. While not expressly stated, this appears to be the basis upon which his view rests that if correctly applied, the income approach (which this is in substance) should yield the same value as a current use value.  Moreover, save for the divergent approaches, there is insufficient information before me about the principles and procedures underpinning the valuation methodology for me to arrive at a sensible value. [90] In the result I have concluded that the Court is unable to rely on the valuations supplied to determine any current use values in the sense mooted by Professor Mooya.  In the result, the fourth question arises:  how just and equitable compensation can be determined on the information supplied and whether the Landowner Defendants’ contention that market value is just and equitable compensation on the facts of this case should be accepted. [91] Before turning to that issue I must deal briefly with a series of credibility attacks levelled by Mr Roberts against Mr Ntjie which, it was submitted, render his evidence wholly unreliable.  The attacks were varied.  One critique, already mentioned, is an alleged failure to provide detailed substantiated valuation reports which are necessary both for the court to perform its own function and to enable expert witnesses to engage as required under the rules of court. Importantly, it was only through the provision of further particulars and discovery (which ensued during the above mentioned adjournments) which enabled sensible engagement between the parties.  Without these processes, it is indeed difficult to see how the Court could have sensibly engaged with the reports. Another concerned the state of the valuation documentation and Mr Ntjie’s failure to produce documents under subpoena or requested in discovery or reports referred to in e-mail correspondence that had not been produced and which suggested the Court had not been apprised of the full information and that other, different valuations, were in circulation.   In view of the conclusions which I have reached above, and while the issues raised were concerning, it is not necessary for me to consider each of these attacks in any detail.  On the information to hand, and in light of his demeanour in what were tense and emotive proceedings, I have no reason to believe that Mr Ntjie was acting other than in good faith and any errors he may have made can probably be put down to his current and relative inexperience as a witness in High Court proceedings.  That said, litigants must be mindful that their cases may stand or fall on whether the valuations proffered comply with the requirements for expert evidence or valuation standards.  Moreover the documentation supplied to the Court must be correctly compiled so as not to waste judicial resources and time.  Requests for discovery duly made and subpoenas must be complied with.  These are matters which require the attention not only of expert witnesses but of legal representatives for the parties who engage them and indeed the parties themselves. Fourth issue:  how should just and equitable compensation be determined on the facts of this case? [92] In light of the above conclusions, the only substantive issue that remains is how just and equitable compensation should be determined on the facts of this case and whether the court, in doing so, should accept the landowners’ assertion that market value is just and equitable compensation.   In this regard, the primary information upon which this Court can rely is the agreed market values.   Moreover, the parties have agreed that in view of the delays from the date of valuation to the date of hearing, the amounts as valued should be increased by CPI to the date of judgment. [93] As regards the listed factors in section 25(3), only (a), (c) and (e) are relevant as explained above.   As regards section 25(b), I have satisfied myself (as I explain above in paragraphs [34] and [35]) that this is a neutral factor in this case and (d) does not apply.    As regards section 25(3)(a) It is common cause that the properties are currently being put to their highest and best use:  smallholdings for residential and agricultural use.  No affected landowner is claiming any additional value for their potential use.   As regards section 25(3)(c), the market values are known and agreed and this Court must consider them.  As regards section 25(3)(e), the acquisition is for the important purpose of land reform and the redressive purposes of the Constitution generally and section 25 specifically. [94] The factors in section 25(3) are not exhaustive.  During the course of the hearing, Mr Roberts sought to develop a case based on an additional consideration, being that the right to equality protected in section 9 of the Constitution demanded that the affected landowners are paid market value compensation for the subject properties (adjusted by CPI as agreed).    In this regard, the evidence established that prior offers to some landowners affected by the Moloto land claim were made based on valuations which used market value as a benchmark.  In short, the State had valued these properties at market value and made offers at prices lower than market value and which were ultimately accepted at least in the range offered.   In my view, it is neither necessary or appropriate to consider whether the right to equality demands that the affected landowners in this case be treated similarly.   It is not necessary because I have concluded that the basis the Minister contends for cannot be accepted in this case.  It is not appropriate because the issue was not pleaded upfront and in the result, the issues ordinarily germane to an analysis about unfair discrimination were not adequately canvassed. [95] Mr Mtsweni contended, on the other hand, that the evidence that has come to the fore as a result shows that if regard is to be had to thereto, it should serve to adjust compensation downwards from market value.  As Mr Mtsweni contended, the evidence shows that where offers have been made and agreement reached in context of this land claim using market value as the benchmark for a reduced offer, offers were made and parties have reached consensus at an amount below market value.   The question is whether some settlement factor should be applied in this case.  In principle it may well be just and equitable to do so, but there is a similar difficulty to the difficulty that Mr Roberts faces:  there is insufficient information upon which this Court can arrive at a rational settlement factor.  While there is information to hand about the extent to which the prior settlements reflected in the documents supplied departed from the determined market value, there is insufficient information upon which it can be safely concluded that the prior settlements before the Court should be used as a sample.  The fact that they all concern the Moloto land claim on its own is not enough given the protracted history of this matter and one is left to speculate about what the negotiation climate may have been had offers been made on the basis of market value at the relevant times. [96] In the absence of any other information and satisfactory evidence upon which just and equitable compensation can be assessed, this Court is constrained to conclude that market value is, in the circumstances of this case, just and equitable compensation as the landowners’ contend.  That this is so is in some measure the result of the parties’ joint approach to this matter being that the material issue for adjudication is whether the formula adopted by the Minister should be accepted or not:  little attention was, in the result, given by the parties to other potentially relevant considerations.  I highlight this because in Du Toit, the Constitutional Court emphasized that section 25(3) does not give market value a central role.  But if courts are helpfully to engage the vexed questions relating to the place of market value in an assessment of just and equitable compensation, they need to be supplied with information and evidence upon which they can do so rationally.  Parties should co-operate to ensure that courts are given adequate information in this regard on all relevant factors – whether in their favour or against them – and if need be, parties should not hesitate to resort to the applicable rules of discovery or subpoena to do so. [97] In the result, I have concluded in this case that just and equitable compensation is the agreed market value.  Given the limited information to hand, there is no other consideration applicable in this case which yields any upward or downward adjustment thereto and given the contextual information to hand about current use, I can accept that this market value is just and equitable compensation on the facts of this case. As agreed between the parties, the value should be adjusted by CPI to the date of judgment. The adjusted values as at February 2022 have been supplied by Mr du Toit and I make provision in my order for the parties to approach the Court should any dispute arise as regards this calculation. [98] As the market value of the subject property of the Sixteenth Defendant is not yet agreed and it is not known whether any dispute will arise in connection therewith, the determination of compensation in its case is postponed sine die. Fifth issue: costs and reserved costs [99] There was no dispute between the parties that if the landowners are successful they should be awarded their costs.  I agree.  The question is whether costs should be awarded on a party and party or punitive scale.   I can see no reason why costs should be awarded on a punitive scale. [100] The remaining question is reserved costs.  There are three points of contention.  The first is the scale at which I awarded costs against the Minister in favour of the landowners when the matter was initially postponed on 10 November 2020 until 12 November 2020 to enable Mr du Toit to provide an expert summary.   The second is the costs occasioned by the postponement from 12 November 2020 until 7 December 2020 to enable further discovery, the provision of trial particulars and a further expert meeting between Mr Ntjie and Mr du Toit.  The third is the postponement from 7 December 2020 until 9 December 2020 to enable that expert meeting to be finalized and a joint minute filed. Costs occasioned by the postponement on 10 November 2020 [101] The first issue can be disposed of briefly.  When I made my order awarding costs against the Minister that day, I considered the correct scale of costs.  That I did so was apparent from my exchanges with the parties, as Mr Mtsweni pointed out.  On the information available to me then, I was of the view that the correct scale was the party and party scale but omitted to say so expressly:  I was aware of no reason to award costs on a punitive scale.   While I have subsequently become apprised of further relevant information, I do not consider myself entitled to disturb that order nor is it of such a nature that persuades me that my order would have been different. [102] However, three other issues were raised regarding the first costs order.  The first two can be dealt with together and are whether it covers the costs of two counsel and the wasted costs occasioned by the attendance of expert witnesses.   These matters stand on a different footing as it was my intention when I made the order that these be included.  To the extent that it is necessary to specify these, it is appropriate that I clarify or correct my order to reflect its intended ambit and I accordingly do so.   Mr Roberts further requested the Court to reflect in its decision that the Court adjourned at about noon on 10 November 2020.  This is indeed correct and at least half a day of court time on 10 November 2020 was lost as a result of the postponement.  It should be noted too that a significant portion of court time in the morning was spent dealing with the belated notice given by the Minister to call Mr Ntjie.  Some time was, however, also spent dealing with other issues raised by the court relating to the merits of the matter, specifically the parties’ recorded agreement that the history of use and acquisition of the property were of no relevance to the matter.  The apportionment of time spent on matters germane to the adjournment will appear from the transcript and these are matters than can appropriately be drawn to the attention of the taxing master. Costs occasioned by the postponement from 12 November to 7 December 2020 [103] Secondly, I must deal with the scale at which the Minister should pay the costs occasioned by the postponement from 12 November until 7 December 2020.  Without conceding any liability to do so, the Minister tendered the costs occasioned by the postponement.  However, the parties remained in dispute about the scale of costs and that issue was argued on 13 November 2020.  The Landowner Defendants sought an order that costs be paid on an attorney and client scale and the Minister submitted that the tender to pay on a party and party scale was not only unnecessary but adequate in the circumstances.   It thus becomes necessary for me to determine both whether the State’s tender was appropriate made and if so, as I conclude, the scale of costs. [104] This Court, which deals with social legislation, does not award costs save in special circumstances, and subject to the principles articulated in Affordable Medicines Trust [85] and Biowatch. [86] When dealing with postponements, this Court will in an appropriate case award costs when the conduct of one party results in a postponement to the wastage of others.  The cause of the postponements, both on 10 and 12 November 2020, was the Minister’s decision to call Mr Ntjie as an expert witness and the State’s failure timeously to provide a summary of his evidence as required by Rule 49 of the Rules of this Court.   In my view, it was incumbent on the Minister, timeously, to comply with Rule 49.  It did not suffice, as Mr Mtsweni contended, that the Landowner Defendants were in possession of the valuation reports.  In support of this contention, Mr Mtsweni submitted that it is material that Rule 49 does not expressly require a separate notice of intention to call any expert witness; only a summary is required.  But it would make a mockery of Rule 49 if parties were not obliged, at least when providing a summary, to identify the person to be called and their expertise as is customary in the High Court.  And the Minister at no stage submitted a summary even indicating that the expert testimony would be in accordance with the valuation reports.  At the very least this would have been required. Moreover, as matters transpired, the summary that was produced extended well beyond the valuation reports themselves, and both discovery and particularity was then sought.   This is unsurprising as the valuation reports on their own did not comply with the requirements for expert summary, either generally as laid down in Coopers [87] case, or specifically as required in respect of property valuations.  While the valuation reports may have sufficed to enable the Landowner Defendants to assess whether to accept the offers the Minister made relying on them, they were insufficiently explained, by either fact or reason, fairly to enable trial preparation or for purposes of trial. [105] Furthermore, quite apart from Rule 49, the pre-trial process in this matter specifically contemplated that notice of expert testimony be specifically given.  As indicated above, during the pre-trial conference of 30 October 2020, I specifically requested the parties to indicate whether the anticipated witnesses were limited to the three experts whose summaries had been supplied to the Court.  At that time, Mr Roberts queried whether the State intended to call a witness from the Office of the Valuer-General.  Mr Mtsweni advised that he had no instructions at that time and that he would inform the parties and the Court by Tuesday 3 November 2020 if he would be.  He regrettably omitted to do so.  Indeed, Mr Mtsweni confirmed that the Minister’s representatives had only taken a decision to call Mr Ntjie on 10 November 2020.   And on 12 November 2020, Mr Roberts informed me that there had in fact been a prior directive given by Canca AJ (to whom this matter was previously allocated) requiring parties to file any expert summaries.  The directive is dated 19 October 2019 and paragraph 7 records that the Minister is ordered to file all expert notices and summaries of the evidence of those witnesses on or before 15 November 2019.  Mr Mtsweni submitted that this directive did not apply to Mr Ntjie as the valuation reports had already been supplied to the Defendants.  I disagree for the reasons set out above. [106] Mr Mtsweni submitted that any cause for postponement occasioned by the failure to comply with Rule 49 had been cured by 12 November 2020 as the summary had been filed on 11 November 2020.  But that is not so.  Not only was the summary filed late on 11 November 2020 without explanation, but the Landowner Defendants expressly reserved their rights as regards the limited time available to deal with it.  As matters unfolded, the time was inadequate and the Landowner Defendants reasonably required further time to deal with what was provided.  This included the last minute supply of a technical guidance manual and the supply of materially different valuations to what had previously been supplied (albeit ultimately explained as an error).  Even though the Landowner Defendants may have previously been in possession of the valuations and notionally could have sought further discovery and trial particulars in light thereof, they cannot in my view be faulted for preparing for trial on the assumption that no valuer was going to be called.  This is all the more so in circumstances where the leave of this Court to obtain discovery is required.   In my view it should have been no surprise to the Minister that the last minute decision to call Mr Ntjie as an expert witness would likely result in a postponement of more than two days, with an attendant wastage of costs. [107] Mr Mtsweni submitted further that the Landowner Defendants in fact anticipated that Mr Ntjie would be called as a witness as their own experts dealt with his valuations in their reports.  It is correct that the Landowner Defendants’ experts, in some measure, address the reports.  However, they do so primarily to point out what is not motivated in the reports.  A very different response can be expected once the reports are motivated.  Accordingly, this submission does not assist the Minister. [108] In these circumstances, I conclude that the Minister caused the postponement through non-compliance with the Rules and case management requirements, and I would have held the Minister liable for the occasioned costs even in the absence of the tender.  Mr Mtsweni submitted that even if the Court were to reach this conclusion, there was no basis upon which to order costs on an attorney and client scale.  He submitted that the authorities on attorney and client costs orders are clear that they should only be awarded in exceptional circumstances. Mr Roberts contended that an award on an attorney and client scale was justified for two reasons:  first, the Minister’s conduct at this stage, which warrants censure, and second, the history of the matter.  I am disinclined to take into account the history of the matter, albeit admittedly troubling.  This is because prior conduct has already been addressed in previous proceedings by Judges steeped in those proceedings who have made costs orders appropriate to the circumstances.  In my view the conduct does, on the other hand, invoke concern not least given this court is established to facilitate access to land justice.  However, I do not think that the conduct reaches the level set for the imposition of a punitive order.  In this regard, I have considered the standard set for the imposition of such an order referred to in the Public Protector v SARB [88] and I do not think that the conduct, while regrettable, manifests such disregard for the court process that warrants a costs award on the punitive scale:  the award of costs, which were tendered, suffices. [109] The postponement from 7 to 9 December 2020 was occasioned by a failure on the part of the Minister to comply with the order regulating the further conduct of the proceedings made on 12 November 2020, specifically the provision of trial particulars and compliance with the discovery order. Moreover, and as a result, Mr Ntjie and Mr du Toit still needed to finalise their exchanges and compile a joint minute.   While I am satisfied that costs occasioned by this postponement should be borne by the Minister,  have no information to hand upon which a punitive order is justified, as sought by Mr Roberts. Order [110] The following order is made: 1. The First Defendant is hereby ordered to acquire the following properties in terms of Section 35(1)(a), read with Section 42A of the Restitution of Land Rights Act No 22 of 1994 for the benefit of the Moloto Community and to pay just and equitable compensation to the following Defendants, as follows: 1.1 Remaining Portion of Portion 5 (a portion of Portion 3) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng (in extent, 21,4133 (Twenty-One Comma Four One Three Three) hectares held by Deed of Transfer No T11866/2005 in favour of the Second Defendant, in the amount of R2,989 244.00; 1.2 Portion 12 (a portion of Portion 1(ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in  extent 21,4139 (Twenty-One Comma Four One Three Nine) Hectares held by Deed of Transfer No T37383/1988 in favour of the Fifth Defendant, and Portion 49 (a portion of Portion 1 (ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in extent 21,4190 (Twenty-One Comma Four One Nine Zero) hectares held by Deed of Transfer No T62531/1998 in favour of the Fifth Defendant, in the amount of R6,693,308.00 for both the aforesaid properties; 1.3 Portion 13 (a portion of Portion 1(ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in extent 21,4143 (Twenty-One Comma Four One Four Three) Hectares held by Deed of Transfer No T85535/1994 in favour of the Sixth Defendant, in the amount of R4,092,592.00; 1.4 Portion 18 (a portion of Portion 1(ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in extent 21,4136 (Twenty-One Comma Four One Three Six) hectares held by Deed of Transfer No T33278/2005 in favour of the estate of the late P.J. S Roberts, Estate No 6599/2021 registered with the Master of the High Court Gauteng (the Ninth Defendant), in the amount of R2,217,741.00 which amount will be paid to the executor of the estate of the late P.J. S. Roberts (to be appointed by the Master of the High Court) upon date of registration of the said property. 1.4.1. The First Defendant c/o the State Attorney Pretoria is hereby ordered and directed to pay 90% (ninety percent) of the aforesaid amount into the trust account of Messrs Cox & Partners Attorneys, Vryheid, within 30 (thirty) calendar days of the granting of the order.  The said attorneys, who will be attending to the conveyancing and registration of transfer will deposit the said amount into a special interest earning investment account to be held by them in trust until date of registration of transfer.  All interest earned on the said investment account will accrue for the benefit of the State. 1.4.2. Once the appointment of an executor in the estate of the late P.J. S. Roberts have been made by the Master of the High Court Gauteng and once Letters of Executorship have been issued, the said conveyancers will forthwith proceed with the conveyancing process to ensure that registration of transfer of the property will be effected in the Deeds Office Gauteng as soon as reasonably possible thereafter. 1.4.3. The First Defendant, c/o the State Attorney, Pretoria, is hereby ordered and directed to pay the balance of the 10% (ten percent) of the compensation payable to the Estate Late P.J. S. Roberts into the trust account of the conveyancers Cox & Partners Vryheid within 5 (five) calendar days from date of registration of transfer of the said property into the name of the State. 1.5 Portion 19 (a portion of Portion 1(ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in extent 21,4139 (Twenty-One Comma Four One Three Nine) hectares held by Deed of Transfer No T102987/2002 in favour of James André Roberts and Elizabeth Christina Roberts, married In Community of Property, in the amount of R3,018,574.00; 1.6 Portion 36 (a portion of Portion 1(ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng, in extent 21,4133 (Twenty-One Comma Four One Three Three) hectares held by Deed of Transfer No T131501/1998 in favour of the Twelfth Defendant, in the amount of R4,945,266.00; 1.7 Portion 63 (a portion of Portion 1(ELIM) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in extent 21,4138 (Twenty-One Comma Four One Three Eight) hectares held by Deed of Transfer No T32001/2004 in favour of the Fifteenth Defendant in the amount of R1,684,759.00; 1.8 Portion 75 (a portion of Portion 5) of the farm Jakkalsdans 243, Registration Division J R, Province Gauteng in extent 21,4133 (Twenty-One Comma Four One Three Three) hectares held by Deed of Transfer No T29675/1993 in favour of the Seventeenth Defendant in the amount of R3,936,451.00. 1.9 Should any dispute arise between the parties regarding the correctness of the calculations whereby the agreed market value of the properties have been adjusted with reference to the CPI to date of judgment either party may approach this Court for a variation of this order. 2. The First Defendant c/o the State Attorney, Pretoria, is hereby ordered and directed to pay 90% (ninety percent) of the amounts of just and equitable compensation payable in respect of all the properties referred to in paragraphs 1.1, 1.2, 1.3, 1.5, 1.6, 1.7 and 1.8 into the trust account of Messrs Cox & Partners Attorneys, Vryheid, within 30 (thirty) calendar days of the granting of the order.  Messrs. Cox & Partners’ Conveyancers will attend to the registration of transfer of each of the respective properties into the name of the State. 3. The First Defendant, c/o the State Attorney, Pretoria, is hereby ordered and directed to pay the balance of the 10% (ten percent) of the compensation amounts payable in respect of the properties referred to in paragraph 2 above into the trust account of Messrs Cox & Partners Attorneys, Vryheid, within 5 (five) calendar days from the date of registration of transfer of each of the respective properties into the name of the State. 4. Cox & Partners, who will be attending to the conveyancing and registration of transfer will deposit all the said amounts into special interest earning investment accounts to be held by them in trust until the respective dates of registration of transfer of the respective properties.  All interest earned on the said investment accounts will accrue for the benefit of the State. 5. The registration costs payable to Cox & Partners conveyancers in respect of the registration of transfer of all the above-mentioned properties will be paid for by the respective Landowner Defendants. 6. The determination of just and equitable compensation in respect of the Sixteenth Defendant’s property is postponed sine die. 7. The First Defendant is directed to pay the wasted legal costs of the Second, Fifth, Sixth, Ninth, Tenth, Twelfth, Fifteenth, Sixteenth and Seventeenth Defendants (Landowner Defendants), occasioned by the three postponements of the trial set down from 9 – 13 November 2020 (10 th to 12 th November 2020, 12 th November 2020 to 7 th December 2020 and 7 -9 December 2020) on the scale as between party and party such costs to include, but not limited to: 7.1 The wasted trial fees and expenses of the Landowner Defendants pursuant to the employment of their attorney and two counsel (hereinafter jointly referred to as “counsel” ) including time wasted when the matter stood down at several occasions during the week of 9 to 13 November 2020, and including all wasted travelling time, traveling costs, accommodation costs and all other expenses.   [ It is recorded that the appointment by the Landowner Defendants of their attorneys from Vryheid and of counsel from Pietermaritzburg, is in the circumstances fully justified and appropriate with due regard to the specialised nature of the litigation in question, the country wide jurisdiction of the Land Claims Court - which is a court with special jurisdiction -  and the fact that the court operates from its seat in Randburg and as a circuit court across all Provincial and Local boundaries throughout the Republic of South Africa]; 7.2 The wasted costs occasioned by the said postponements to the attorney and two counsel attending to preparation for the said trial dates, and consultations with the Landowner Defendants such to include the wasted reasonable travelling time and expenses as well as accommodation costs (where applicable); 7.3 The wasted travelling and accommodation costs of the Landowner Defendants who attended the trial from 10 to 13 November 2020, where applicable; 7.4 The wasted costs occasioned by the postponement of the trial from 10 to 13 November 2020 relating to the employment of the experts Prof Kobus Laubscher - Agricultural Economist and Mr. Saul du Toit - professional valuer, which costs include but shall not be limited to the costs relating to: 7.4.1 Their wasted preparation for the trial set down for 9 – 13 November 2020; 7.4.2 Their attending wasted consultations with the attorney and counsel in preparation for the trial set down from 9 – 13 November 2020, including travelling time and expenses, and accommodation costs to attend such consultations; 7.4.3 The wasted attendance fees in respect of the said experts including the reasonable travelling costs and time and traveling expenses as well as wasted accommodation costs to attend the trial in Randburg from 9 to 13 November 2020. 7.5 The wasted costs occasioned by the postponement of the trial from 10 to 13 November 2020 relating to the Landowners’ counsel and attorney consulting with the experts and the costs of such experts attending such consultations, such to include (where applicable) the wasted reasonable travelling time and expenses as well as wasted accommodation costs of counsel, the attorney and the experts; 7.6 The wasted costs occasioned by the  postponement of the trial from 9 to 13 November 2020 incurred by the Landowner Defendants’ attorney and two counsel  pertaining to time spent sorting, arranging, indexing, paginating and compiling  bundles in preparation for the said trial dates, including attending meetings on virtual platforms and telephonically, and attending to the copying of  bundles for the State Attorney and transmitting it by drop box and by courier - which costs the State Attorney has tendered to pay; 7.7 The wasted costs of arranging, preparing for and attending pre-trial conferences (including such conferences conducted on virtual platforms and/or telephonically) relating to the trial set down from 9 to 13 November 2020. 7.8 Any further wasted costs, including where applicable of the sort referred to in paragraphs 7.1 to 7.7, occasioned by the postponement from 7 to 9 December 2020. 8. In addition to the abovementioned costs and to the extent that it would not constitute any duplication of the costs awarded above, t he First Defendant is directed to pay the other costs of the Landowner Defendants pertaining to the matter including but not limited to the costs of the trial during the period of 7 to 17 December 2020: 8.1 The costs pursuant to the employment of an attorney and counsel including the costs of two counsel (hereinafter jointly referred to as “counsel” ) -  junior counsel as from date of appointment; 8.2 The costs pursuant to the attorney and counsel preparing for and attending all consultations with the Landowner Defendants and also other necessary persons/witnesses consulted for purposes of conducting the case of the Landowner Defendants and to prepare for trial, such costs to include the reasonable travelling time and expenses as well as accommodation costs of the attorney and counsel; 8.3 The costs of the Landowner Defendants’ counsel and attorney preparing for and consulting with experts including travelling time and expenses as well as accommodation costs to enable them to attend such consultations; 8.4 The costs incurred by the Landowner Defendants’ legal representatives (attorney and counsel) pertaining to time spent sorting, arranging, drawing indexing, paginating and compiling of trial bundles and in preparation for trial, including attending meetings on virtual platforms in this regard and attending to make copies of bundles for the other parties and the court; 8.5 The costs of arranging, preparing for and attending pre-trial conferences including, telephone conferences and conferences on virtual platforms, relating to the case and the trial; 8.6 Preparing for trial and trial fees of the Landowner Defendants’ attorney and counsel including reasonable travelling time and accommodation costs and expenses incurred by them to attend trial; 8.7 The costs relating to the employment of the experts Prof Kobus Laubscher - Agricultural Economist, and Mr. Saul du Toit - professional valuer, which costs will include but shall not be limited to the costs relating to: 8.7.1 The fees and reasonable expenses including travelling time and traveling costs as well as accommodation costs (where applicable) in respect of all consultations, including consultations by telephone or virtual platforms and other such deliberations with the Landowner Defendants, with or without their attorney and counsel, as well as consultations and deliberations with other persons as sources of information and also with one another, as well as deliberations with opposing experts, to enable them to acquaint themselves with the case and to prepare their reports and summaries of their evidence; 8.7.2 The costs of preparing for and attending consultations with the Landowner Defendants and their attorney and counsel in the process of preparing their reports and summaries of their evidence as well as in preparation for trial including travelling time and expenses and accommodation to enable them to attend such consultations; 8.7.3 The attendance fees and expenses of the said experts to attend the trial in Randburg, including their reasonable travelling costs and expenses as well as accommodation costs; 8.7.4 The costs of preparing for and attending consultations and meetings between the experts as well as the cost of preparing minutes of meetings between the experts, including all relevant costs such as attending to arrange such meetings, travelling costs and expenses and accommodation costs. ___________________ COWEN J Judge Land Claims Court APPEARANCES For the Minister of Rural Development and Land Reform: D Mtsweni and E Maleka instructed by the State Attorney For the Second, Fifth, Sixth, Ninth, Tenth, Twelfth, Fifteenth and Seventeenth Defendants: MG Roberts SC and K Roberts instructed by ABT Van der Merwe [1] More fully, section 22(1)(b) of the Restitution Act confers on the Land Claims Court the power “to determine or approve compensation payable in respect of land owned by or in the possession of a private person upon expropriation or acquisition of such land in terms of this Act.” [2] Du Toit v Minister of Transport 2006 (1) SA 297 (CC) ( Du Toit ) at para 26. [3] Regulation 1321 published in GG 42064 of 30 November 2018. [4] Emakhasaneni Community and others v Minister of Rural Development and Land Reform and others 2019 (4) SA 286 (LCC) at paras 31 and 32. [5] For purposes of this background, the primary sources of information to which I have had regard are the various pleadings in the referral.  The parties agreed that reference should be made thereto for background purposes.  I have also had regard to the litigation history as appears from the court papers and prior judgments where parties have drawn attention thereto and the factual matter is uncontroversial. [6] Notice 1795 in GG 26693 of 27 August 2004. [7] Jakkalsdans Boerdery CC and others v Regional Land Claims Commissioner:  Mpumalanga and others [2010] JOL 26093 (LCC). [8] Moloto Community v Minister of Rural development and Land Reform and others 2019 (3) SA 523 (LCC), see specifically paras 1 to 17. [9] Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12 ; 2007 (6) SA 199 (CC) at para 51 with reference to fn 46 and 48. [10] Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa , [1996] ZACC 26 ; 1996 1996 (4) SA 744 (CC) ( Certification 1 ); First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance [2002] ZACC 5 ; 2002 (4) SA 768 (CC) ( FNB ) ; Du Toit above n2 and Haffejee NO and others v Ethekwini Municipality and others 2011 (6) SA 134 (CC) ( Haffejee ). [11] Section 39(1)(a) of the Constitution and Haffejee above n10 at para 29. [12] Haffejee above n10 at para 29, relying on FNB above n10 at para 59. [13] Haffejee above n10 at para 31, relying on FNB above n10 at para 50 . [14] FNB above n10 at para 49. See also Certification 1 above n10 at para 72. [15] FNB above n10 at para 49 ; Haffejee above n10 at para 30. [16] Du Toit above n2 at para 26. [17] Id at para 28. [18] Id at para 33. [19] Id at p ara 34. [20] Id at para 37. [21] The approach is usually attributed to the Constitutional Court’s decision in Du Toit and this Court’s decision in Ex Parte Former Highlands Residents; In re: Ash and others v Department of Land Affairs [2000] 2 All SA 26 (LCC) ( Ex Parte Former Highlands Residents ). [22] Pentree Limited v Nelson Mandela Bay Municipality 2017 (4) SA 32 (ECP). [23] In re Kusile Land Claims Committee: Land Restitution Claim, Midlands North Research Group and others 2010 (5) SA 57 (LCC) ( Kusile ) at para 23. [24] DT Zeffertt and AP Paizes The South African Law of Evidence 3 ed (2017) at 495. [25] Kusile above n23 at para 23. [26] Lornadawn Investments (Pty) Ltd v Minister van Landbou 1977 (3) SA 618 (T) at 626A-G; Southern Transvaal Buildings (Pty) Ltd v Johannesburg City Council 1979 (1) SA 949 (WLD) ( Southern Transvaal Buildings ) at 952D-E.  That the concept of onus in a ‘narrow sense’ finds no application when determining quantum is supported by the decision of the then Appellate Division in Port Edward Town Board v Kay 1996 (3) SA 664 (A) at 674J-675D. [27] Southern Transvaal Buildings n26 above at 952D-E. [28] Khumalo and others v Potgieter and others 2000 [2] All SA 456 (LCC). [29] Id at para 24 . [30] In Davey v Minister of Agriculture 1979 (1) SA 466 (NPD) Kumleben J held the following at 475C-F in response to a submission that in an expropriation case a judge acts as a “super valuator” and as such is not bound by any of the rules of evidence: “ This term ‘super valuator’, which I find more flattering than definitive, has been used to describe the function of the Court when in certain circumstances it has to make its own assessment of the value of property in issue on the facts before it.   This term cannot serve as a basis for this far-reaching submission.  I have no authority to preside over any tribunal other than that of a Supreme Court constituted in terms of the Supreme Court Act … and in so presiding I am quite obviously bound to apply the law of evidence …” (footnotes omitted). [31] Thus in Jacobs v Minister of Agriculture 1972 (4) SA 608 (W) , Colman J remarked obiter at 628C-E: “ I have always had difficulty with the concept that there is no burden of proof on either of the parties to a suit in which compensation for expropriation is claimed ….  Even if the claim relates to the value of the land alone, I do not see how a Court can discharge its duty in all cases if the useful instrument of onus is unavailable to it:  What it there is conflicting evidence and it is equally balanced?  What if both parties attend the trial, but neither elects to present any evidence?  A valuer can go in search of information, and apply his expert knowledge to it; but a Court is not expected to the former; and is not qualified to do the latter.” [32] Above n26 at 674J-675D. [33] B Garner A Dictionary of Modern Legal Usage 2 ed (1995) at 530. [34] VG Hiemstra & HL Gonin Trilingual Legal Dictionary 1ed (1981) at 215.  In Maske v The Aberdeen Licensing Court, Gilbert v The Aberdeen Licensing Court 1930 AD 30 at 36-37 and Dreyer & Macduff v New Marsfield Collieries Ltd 1935 AD 318 at 319, Curlewis JA regards a lis as akin to civil proceedings or a suit – at issue was whether certain decisions were appealable.  The rules applicable to pending proceedings similarly use the term in this way: lis alibi pendens. [35] See Mlifi v Klingenberg 1999 (2) SA 674 (LCC) at para 112. [36] Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 (W) at 259G-J. [37] I deal with this agreement in the next section. [38] Paragraph 4 of the statement of agreed facts. [39] Paragraph 7 of the statement of agreed facts. [40] Paragraph 6 of the agreed statement of facts. [41] Paragraph 5 of the agreed statement of facts. [42] In Helen Suzman Foundation v President of the Republic of South Africa and others 2015 (2) SA 1 (CC) at fn 30, the Constitutional Court held: “ Any opinion, whether from a lay person or expert, which is expressed on an issue the court can decide without receiving such opinion is in principle inadmissible because of its irrelevance.  Only when an opinion has probative force can it be considered admissible.” [43] Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Fûr Schädlingsbekämfung MBH 1976 (3) SA 352 (A) at 371F-372A ( Coopers ). [44] See too Bee v Road Accident Fund [2018] ZASCA 52: “ Expert witnesses are required to lay a factual basis for their conclusions and explain their reasoning to the Court.  The Court must satisfy itself as to the correctness of the expert’s reasoning.  …. An expert’s opinion must be underpinned by proper reasoning in order for a Court to assess the cogency of that opinion.” [45] Massmart (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2016 (2) SA 586 (SCA). [46] Id at para 15. [47] It is entered as Exhibit D in the proceedings. [48] This was that in the course of calculating the present value of an income stream, deductible costs have been assessed as artificially high, which reduced the present value of an income stream and in turn reduces value.  During discussion with Mr Ntjie, the witness reached agreement on deductible costs. [49] Du Toit above n2 at para 48. [50] Haakdoornbult Boerdery CC and others v Mphela and others ( Haakdoornbult ) 2007 (5) SA 596 (SCA). [51] Khumalo above n28 at para 14. [52] For example, Iqbal Kazi Allie NO & Another v The Department of Land Affairs & 3 Others [2000] ZALCC 1. [53] Above n51. [54] Mhlanganisweni Community v Minister of Rural Development and Land Reform and Others [2012] ZALCC 7 ( Mhlanganisweni Community ) in which Gildenhuys J considered the fact that the current use of the property was eco-tourism noting that the valuers took that into account (at paragraph 60).  An appeal before the Constitutional Court in Mhlanganisweni Community did not proceed as the matter became settled. [55] Msiza v Director-General for the Department of Rural Development and Land Reform and Others [2016] ZALCC 12 ( Msiza ) at paras 39 to 52 where the Court accepted that the market value be determined based on the current use of the property, being agricultural, and not its potential use (township development), which the Court regarded as far-fetched and speculative (para 45). The Supreme Court of Appeal overturned Msiza in part on appeal but not on this issue: See Uys N.O and Another v Msiza and Others [2017] ZASCA 130. [56] Ex Parte Former Highlands Residents above n21. [57] Id at paragraph 34. [58] Du Toit above n2 at para 37. [59] Haakdoornbult above n51 at para 36: “Market value is in the context of this case the only factor listed in section 25(3) capable of quantification.  Once the market value has been determined an upward or downward adjustment, having regard to the other relevant factors, can be made.” [60] The only unqualified statement I have come across is a statement of Harms JA in City of Cape Town v Helderberg Park Development (Pty) Ltd 2007 (1) SA 1 (SCA) at para 19 where the following is stated: “The problem is, however, that apart from State investment, the market value of the property is the only factor listed in s25(3) that is capable of qualification.”  Harms AJ refers in turn to Ex Parte Former Highlands Residents above n21 to support this, in which the statement made is “readily quantifiable”.  He also refers to I Currie and J de Waal’s The Bill of Rights Handbook 5 ed (2005) at 556, where the authors reflect Ex Parte Former Highlands Residents to say that section 25(3)(c) and (d) are the only factors which are ‘objectively quantifiable’.  But this is not what the judgment observes.  Moreover, it is significant that shortly after City of Cape Town v Helderberg Park Development, Harms JA limited his statement of the position to the facts of the case to hand and there is no suggestion in the prior case that the statement was made with reference to any evidence, legislative or adjudicative in nature. [61] Notably in Msiza above n56, this Court commented obiter at paragraph 38 that: “ I believe that other factors in section 25 of the Constitution can also be easy to quantify. For instance, it is easy to work out the history of acquisition, and reference may also be had to historical records to determine the value of the land over time.” [62] Du Toit above n2. Notably, the Expropriation Act has still not been amended despite the majority clearly remarking that the approach is not ideal and urging Parliament to do so.  Thus, at paragraph 36, the majority (per Mokgoro J) held: “ This two stage approach to determine a constitutionally compliant amount of compensation is not ideal.  It would have been more expedient if the Legislature had made provision in the Act itself for complying the constitutional standards of just and equitable compensation and ensuring that an equitable balance between the interests of the State and those of the individual is reflected.  Whatever the case may be, it is important that the provisions of this Act be brought in line with the Constitution.  While that is not the case, the approach that I take in this matter permits us not to ignore the applicable legislation and more importantly to give cognizance to the imperative nature of s25(3) as required by section 39(2) of the Constitution.” The minority was heavily critical of this approach, finding at para 84 that it would “continue to privilege market value at the expense of other considerations relevant to justice and equity which are expressly advocated by the Constitution.” [63] The approach was followed in City of Cape Town above n61 at paras 19 to 21. [64] Ex Parte Highlands Residents above n21 at para 35.  In Du Toit above n2 , Mokgoro J referred to the decision to remark that the approach the Constitutional Court whereby market value is first determined and then giving broader consideration to whether that is just and equitable compensation was not novel. See paragraph 37. ## [65]InEx Parte Highlands Residentsabove n21, section 2(2) of the Restitution Act was in issue, which provides that a person shall not be entitled to restitution of a right in land under that Act if just and equitable compensation as contemplated by section 25(3) of the Constitution calculated at the time of any dispossession of such right was received in respect of such dispossession.  The same section was considered inHaakdoornbultabove n51at para 36.  In following the two-stage approach, Harms ADP was astute to note that market value wasin context of that casethe only listed factor capable of quantification. See tooAbrams v Allie NOand others2004 (4) SA 534 (SCA) at para 15, in which, after citingEx Parte Former Highland Residentsabove n21, Scott JA held: “It was not contended in this Court that the approach was incorrect and on the facts of the present case there would appear to be no reason for holding otherwise.”  The approach has also been applied when seeking to arrive at an amount for equitable redress where restoration of property is not claimed or ordered under the Restitution Act. See tooIqbal Kazi Allien53 above at paras 45 to 47.SeeWollach N.O. and Another v Government of the Republic of South Africa and Others[2018] ZALCC 1 at para 22 for an application of the principle to a determination of equitable redress.  InKhumaloabove n28 at para 24 and following, this Court applied a similar approach in determining compensation payable to a landowner for land awarded to labour tenants under the Land Reform (Labour Tenants) Act 3 of 1996. [65] In Ex Parte Highlands Residents above n21, section 2(2) of the Restitution Act was in issue, which provides that a person shall not be entitled to restitution of a right in land under that Act if just and equitable compensation as contemplated by section 25(3) of the Constitution calculated at the time of any dispossession of such right was received in respect of such dispossession.  The same section was considered in Haakdoornbult above n51at para 36.  In following the two-stage approach, Harms ADP was astute to note that market value was in context of that case the only listed factor capable of quantification. See too Abrams v Allie NO and others 2004 (4) SA 534 (SCA) at para 15, in which, after citing Ex Parte Former Highland Residents above n21, Scott JA held: “It was not contended in this Court that the approach was incorrect and on the facts of the present case there would appear to be no reason for holding otherwise.”  The approach has also been applied when seeking to arrive at an amount for equitable redress where restoration of property is not claimed or ordered under the Restitution Act. See too Iqbal Kazi Allie n53 above at paras 45 to 47. See Wollach N.O. and Another v Government of the Republic of South Africa and Others [2018] ZALCC 1 at para 22 for an application of the principle to a determination of equitable redress.  In Khumalo above n28 at para 24 and following, this Court applied a similar approach in determining compensation payable to a landowner for land awarded to labour tenants under the Land Reform (Labour Tenants) Act 3 of 1996. [66] Du Toit above n2 at para 37. [67] I have dealt with this above. [68] After the December 2020 joint meetings, this variance was les s. [69] As set out in Wollach above n66 at para 25 with reference to Sher and others NNO v Administrator, Transvaal [1990] ZASCA 77 ; 1990 (4) SA 545 (A) at 547J-548B. [70] Referred to respectively in Sher id as the comparative or market data approach, income investment or economic approach, the land residual technique and the cost method respectively. [71] I have noted that in Jacobs v Minister of Agriculture 1972 (4) SA 608 (W), a comparative sales method was used to value investment properties which were undeveloped and one had a dilapidated building on it. [72] Wollach above n66 at paragraph 26. [73] Minister of Water Affairs v Mostert and others 1966 (4) SA 690 (A) at 723E-G cited in Wollach above n66. [74] 1937 CPD 225 at 228. [75] 1956 (2) SA 398 (A). [76] Id at 428. [77] A Gildenhuys Onteieningsreg 2 ed (2001). [78] Id at 134: “Die metode van waardebepaling deur indirekte vergelyking gaan van die veronderstelling uit dat n koper nie meer vier n eiendom met n bepaalde inkomstevloei sal betaal as die bedrag waarvoor hy n soortgelyke inkomstevloei met dieselfde risiko elders kan verkry nie.” [79] Id at 135. [80] The latter is arrived at by adding the current use value to the market value and dividing the amount by two. [81] Specifically, paragraph 3.1.7.3 of the reports. These were Guinea Fowl Crescent in Riverside View Country Estate, renting at R20 000; Mooiplaats AH, Pretoria, renting at R18 000; a cottage in Bonkhorstspruit renting at R3500; a plot in Donkerhoek, in Pretoria East renting at R9500; a plot in Montana, Pretoria North, renting at R4000, a plot in Bashewa renting at R9000; a cottage in Woodlands AJ renting at R5 500; a property in Mnand AH, Centurion renting at R12 000; a plot in Donkerhoek, Pretoria East renting at R9500; a property in Donkerhoekd, Pretoria East renting at R15 000, and two properties in the Moloto area renting at R10 000 and R6500.  His confirmed summary confirmed further that he considered the following properties:  Portion 46, Rietfontein, 375JR in Rietvlei; Portion 412 in Mooiplaats 367JR and Portion 26, Mooiplaats 367JR in Donkerhoek, which he regarded, on information supplied to him, as similar properties to the subject properties. [82] Mr du Toit initially criticised the reports for failing to specify the properties adequately – which is indeed a requirement – but this criticism is no longer material. [83] Mr du Toit inspected these properties from which important information was derived.   He disregarded as irrelevant properties subject to forced sale (insolvent estate), a family to family member sale and an estate transfer. [84] See for example Khumalo above n28 at para 25 and 26. ## [85]Affordable Medicines Trust and Others v Minister of Health and Others2006 (3) SA 247 (CC) at paras 138 and 139. [85] Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at paras 138 and 139. ## [86]Biowatch Trust v Registrar, Genetic Resources and Others2009 (6) SA 232 (CC). [86] Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC). [87] Coopers above n43. [88] With reference to Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at para 8. sino noindex make_database footer start