By Duncan Wild on 23 March 2014

The primary question in this case is whether it is appropriate to use the consumer price index (“CPI“) to adjust past loss into present day monetary value for the purposes of financial restitution under the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act“). A secondary question relates to whether a court can order the State to pay for construction of a memorial plaque as a form of symbolic relief.

The Florence family had bought and lived in a home in Rondebosch, Cape Town for twenty years, until they were forced to leave that home in 1970 as the area was classified a “white” area under the Group Areas Act.  In 1995, Ms Isabel Florence (“Ms Florence“) instituted a claim in relation to the home under the Restitution of Land Act, first seeking restitution and later settling for financial compensation.

The Land Claims Court (“LCC“) found that the requirements for restitution were met, and that the Florence family should be compensated. In addition, in an agreement with the current owner, it was agreed that a memorial plaque would be erected on the property as a form of symbolic relief. The LCC found that the appropriate amount was the agreed market value of the property when the Florence family left the property in 1970. The LCC held that it would be appropriate to adjust the figure, using the CPI, in order to ascertain the present day value of that amount.

The LCC found that it did not have the jurisdiction to compel the State to pay for the construction of the memorial plaque, but did order that Ms Florence be paid R10,000 as compensation for the indignity and hardship caused by forced removal.

The SCA agreed that the CPI was an appropriate method for calculating the present value of the compensation to be paid, and also found that the LCC had a broad jurisdiction that would cover compelling the State to pay for the construction of the memorial plaque.

In the Constitutional Court Ms Florence argues that the use of CPI does not achieve equitable redress as it would not amount to a remedy that it equivalent to restoration i.e. the amount reached through the CPI would not allow the claimants to purchase the land in question or similar land in the present, and would not therefore properly put the claimants in the position they would have been in had the dispossession not occurred. In addition, Ms Florence argues that it is competent for the LCC to order the State to pay for the construction of a memorial plaque as this would be consistent with the broad purpose of the Restitution Act to redress the hurt and indignity of the racial dispossession of land rights.

The State, however, argues that the CPI is an appropriate method to calculate the change in the worth of money over the passage of time, and would be an appropriate measure of compensation under the Restitution Act. The State argues that the SCA’s finding on the issue of the memorial plaque cannot be sustained by the facts and was not appropriate in the circumstances.