-- >From A.M.Tettenborn@exeter.ac.uk Thu Sep 02 10:52:07 1999 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11MTXL-0000TY-00 for restitution@maillist.ox.ac.uk; Thu, 2 Sep 1999 10:52:07 +0100 Received: from pc0274.ex.ac.uk [144.173.75.19] by hermes via SMTP (KAA00861); Thu, 2 Sep 1999 10:51:24 +0100 (BST) Message-Id: <3.0.5.32.19990902105123.007b3810@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk (Unverified) X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Thu, 02 Sep 1999 10:51:23 +0100 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: free acceptance, etc Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Devotees of the arguments related to free acceptance, incontrovertible benefit, and those who have nothing better to do than stand by watching hopeful window cleaners may like to look at Becerra & Page v Close Bros, Thomas J, 25/6/99. Considerable discussion of the whole area, tho' the claim failed n the facts Andrew Tettenborn Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England >From swh10@cus.cam.ac.uk Thu Sep 02 13:57:37 1999 Received: from ursa.cus.cam.ac.uk ([131.111.8.6] ident=cusexim) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11MWQr-00017C-00 for restitution@maillist.ox.ac.uk; Thu, 2 Sep 1999 13:57:37 +0100 Received: from swh10.christs.cam.ac.uk ([131.111.219.51] helo=swh10.cam.ac.uk) by ursa.cus.cam.ac.uk with smtp (Exim 3.03 #1) id 11MWQB-0006TQ-00 for restitution@maillist.ox.ac.uk; Thu, 02 Sep 1999 13:56:55 +0100 Message-Id: <3.0.1.32.19990902135633.007a7d20@pop.cus.cam.ac.uk> X-Sender: swh10@pop.cus.cam.ac.uk X-Mailer: Windows Eudora Light Version 3.0.1 (32) Date: Thu, 02 Sep 1999 13:56:33 +0100 To: restitution@maillist.ox.ac.uk From: Steve Hedley Subject: free acceptance, etc In-Reply-To: <3.0.5.32.19990902105123.007b3810@pop.ex.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Many thanks to Andrew for bringing Becerra v Close Bros (Commercial Court,= =20 25 June 1999) to our attention. I've put the full judgment on my website= =20 (http://www.law.cam.ac.uk/restitution/restitution.htm), and no doubt=20 it is available elsewhere too. =20 The case concerns the sale of William Hill (bookies) by a limited auction run by Close Bros (defendants). The claimant had the bright idea of inviting Nomura to bid (which hadn't occurred to anyone else), and talked Nomura into showing an interest. Hill was eventually knocked=20 down to Nomura for =A3700m, with the defendants receiving =A35.3m=20 for their services. The claimant sued for 10% of this latter sum. The case is a very good demonstration of the obsolescence of unjust enrichment in this area. Most of Thomas J's judgment is about nailing down a claim in contract. Thomas J rejects it, because while the=20 claimant had talked to the defendants a great deal about what they=20 were planning to do, neither side had suggested that the claimant=20 should do any work for which defendants should pay him. There was=20 no express or implied understanding for payment, and so no contract. When we look at Thomas J's treatment of the claim in restitution, we see that his reasons are identical. The restitution claim fails for exactly= =20 the same reason that the contract claim does : that CB never expressly=20 or impliedly asked the claimant to do anything; the claimant "was neither=20 offering a service nor expecting to be paid"; he was acting for himself=20 and not offering to act for CB. I can see why *claimants* sometimes like being able to put the same claim more than one way, especially if they can dress it up in so much jargon that it is not obvious that they are doing that. But why do=20 some jurists want to encourage them ? =20 At 10:51 02/09/99 +0100, Andrew Tettenborn wrote: >Devotees of the arguments related to free acceptance, incontrovertible >benefit, and those who have nothing better to do than stand by watching >hopeful window cleaners may like to look at Becerra & Page v Close Bros, >Thomas J, 25/6/99. Considerable discussion of the whole area, tho' the >claim failed n the facts =20 Steve Hedley =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE telephone and answering machine : (01223) 334931 e-mail : steve.hedley@law.cam.ac.uk messages : (01223) 334900 fax : (01223) 334967 Christ's College Cambridge CB2 3BU =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D >From mcclean@law.ubc.ca Wed Sep 08 18:24:02 1999 Received: from curtis.law.ubc.ca ([137.82.108.220] helo=law.ubc.ca) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 11OlRy-0006dF-00 for restitution@maillist.ox.ac.uk; Wed, 8 Sep 1999 18:24:02 +0100 Received: from UBCLAW-Message_Server by law.ubc.ca with Novell_GroupWise; Wed, 08 Sep 1999 10:24:53 -0700 Message-Id: X-Mailer: Novell GroupWise 4.1 Date: Wed, 08 Sep 1999 10:24:25 -0700 From: Bertie McClean To: faye.woodman@dal.ca,lionel.smith@Law.oxford.ac.uk, restitution@maillist.ox.ac.uk Subject: Mime-Version: 1.0 Content-Type: text/plain Content-Disposition: inline Faye, I got your telephone message. The material left here Friday by courier. Even allowing for the Labour day holiday, I would have thought it should get to you by today at the latest. There were a number of corrections I made, and I would be loath to see them omitted. I will track from this end. If it arrives could you let me know. Bertie. >From lionel.smith@law.oxford.ac.uk Thu Sep 09 10:13:19 1999 Received: from oxmail1.ox.ac.uk ([129.67.1.1] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11P0Gd-00001N-00 for restitution@maillist.ox.ac.uk; Thu, 9 Sep 1999 10:13:19 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11P0Fu-0002y0-00 for restitution@maillist.ox.ac.uk; Thu, 9 Sep 1999 10:12:34 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11P0Fu-0007Ik-00 for restitution@maillist.ox.ac.uk; Thu, 9 Sep 1999 10:12:34 +0100 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Thu, 9 Sep 1999 10:12:03 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Judicial Discretion Content-Type: text/plain; charset="us-ascii" ; format="flowed" Neil Andrews of Clare College, Cambridge has asked me to disseminate the following information. He is the regional reporter for common law jurisdictions for a conference on "The Discretionary Power of the Judge" in Ghent, 22-25 April 2000. He is seeking national reporters for Ireland, Canada, the US and Australia. The reporter does not need to attend the conference but needs to write a short paper, hopefully by 1 October. There is a framework for the paper below. Anyone who is interested should contact Neil directly at . Lionel what is the nature of judicial discretion? (Why it it a good/bad thing, at least potentially, and what sfaeguards exist or should exist, in your opinion?) what is the role of appeal courts to first instance discretion? how closely do appeal courts scrutinise/moderate first instance exercises of discretion? is this appellate regulatory approach the same across all types of claim and proceeding? what are the main foci of judicial discretion (here invent your own typology), but my suggestions are: THE DRAMATIS PERSONAE selection of judges (judge/judge/jury); one assumes the parties appoint their own counsel COMMENCEMENT AND ACCESS Discretion can seep in perhaps at the commencement of proceedings: leave/allocation of case to particular level of court etc; limitation rules, eg, do they contain any discretionary elements? the international element, forum non conveniens, and lis alibi pendens PRE-TRIAL PROCEDURE framing of the case and case-management through to trial discovery/disclosure rules and orders TRIAL AND ENFORCEMENT conduct of trial: notably sequence of issues; applicaiton of evidence (notably hearsay reforms?); selection of remedy; costs (including any discretion to impose punitive or quasi-punitive costs against parties or lawyers) enforcement of the judgment. >From A.M.Tettenborn@exeter.ac.uk Thu Sep 16 09:59:12 1999 Received: from hermes.ex.ac.uk ([144.173.6.14] helo=exeter.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11RXNo-00081r-00 for restitution@maillist.ox.ac.uk; Thu, 16 Sep 1999 09:59:12 +0100 Received: from pc0274.ex.ac.uk [144.173.75.19] by hermes via SMTP (JAA12519); Thu, 16 Sep 1999 09:58:21 +0100 (BST) Message-Id: <3.0.5.32.19990916095821.007cf760@pop.ex.ac.uk> X-Sender: amtetten@pop.ex.ac.uk X-Mailer: QUALCOMM Windows Eudora Light Version 3.0.5 (32) Date: Thu, 16 Sep 1999 09:58:21 +0100 To: restitution@maillist.ox.ac.uk From: Andrew Tettenborn Subject: restitution for expense saved Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Atlantic Shipping v Finagrain, Toulson J, 15/1/99 (not reported in WLR, unless I missed it) may be of interest, in that it effectively rubbishes Phillips v Homfray nd confines it to leases of land. A stored F's grain. The contract provided for various rates of payment up to 60 days, but (it was held) said nothing about what happened after 60 days. Surprise, surprise, F allowed their grain to overstay its welcome beyond the 60 day period. A sued for restitution, but (remarkably) failed to plead a cause of action for restitutionary damages in tort, which would have been unanswerable. F argued, pettifoggingly, that this meant A had to lose: their cause of action was in tort or not at all, because of Phillips. Toulson treated this plea with the contempt it deserved, holding that A had an independent restitionary claim. AMT Andrew Tettenborn Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England >From ivan_shopov@yahoo.com Thu Sep 16 13:20:24 1999 Received: from web1501.mail.yahoo.com ([128.11.23.179]) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 11RaWW-000063-00 for restitution@maillist.ox.ac.uk; Thu, 16 Sep 1999 13:20:24 +0100 Message-ID: <19990916122942.16173.rocketmail@web1501.mail.yahoo.com> Received: from [195.24.54.2] by web1501.mail.yahoo.com; Thu, 16 Sep 1999 05:29:42 PDT Date: Thu, 16 Sep 1999 05:29:42 -0700 (PDT) From: Ivan Shopov To: restitution@maillist.ox.ac.uk MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Dear Sir or Madam, The Bulgaria Human Rights Association is dealing with violation of human rights caused by the restitution in Bulgaria. A brief analysis follows, that spots the major deficiencies in the Bulgarian restitution law and its application. We would appreciate your opinion on this subject and any related information concerning this issue. Thank You in advance. In 1992, the Parliament adopted a restitution law, with full title Restoration of ownership of expropriated real property (ROERP). Article 7 of the law regulated the restitution of property sold to private owners, herein called third parties. According to Article 7, the first owners may file a claim against the third parties in order to restore ownership, if “the property was appropriated in violation of statutes, and/or through misuse of political or official status.” The disputed property was sold, taken in exchange or received in compensation about 20-30 ago. Therefore, it is almost impossible to find out any proof positive of misuse of political or official status. Due to the lack of such evidence, the court makes decisions solely on the basis of the discrepancies between the existing documents of ownership and the relevant statutes. The court decided whether the discrepancies constitute a breach of the statues. The category of statutes includes all state decrees, regulations and rules, concerning the operation of the state administration and the municipalities, and various decisions of the executive body of the municipalities. There are two types of statues - statues regulating the rights and the obligations of the citizens and statues regulating the rights and obligations of the municipalities. The law makes no distinction as to the type of statue. Moreover, the law requires no identification of the originator of the breach of the statute. As a result, hundreds of owners were deprived of their property solely due to inaccuracies caused by the state and municipality administration officers. Even in - depth knowledge of all the statutes, concerning the operation of the municipalities, on behalf of the third parties, would not enable them to forestall such inaccuracies. In these cases, although formally complying with the provisions of the law, the court decisions violate the Bulgarian Constitution that holds the state “liable for any damages caused by illegitimate rulings or acts on the part of its agencies and officials.” The most logical explanation for these corrupt judgements is that the court has acted under influence, abandoning its constitutional obligation to be impartial in its decisions. The roots of the vulnerability of the court lie in the bipolar political system of the country. 10 years after the transition to democracy, the high level of corruption is an indicator that political power is a tool for obtaining personal gains rather than for promoting democratic changes. In this situation, every ambiguous law definition creates opportunities for corruption and interference in the judicial system. SIncerly Yours, Ph.D. Ivan Shopov / Chairman / __________________________________________________ Do You Yahoo!? Bid and sell for free at http://auctions.yahoo.com >From jerrym@mweb.co.za Fri Sep 17 20:53:04 1999 Received: from cpt-proxy1.mweb.co.za ([196.2.48.247]) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11S440-0006Or-00 for restitution@maillist.ox.ac.uk; Fri, 17 Sep 1999 20:52:59 +0100 Received: from jerrym (cpt-dial-196-2-56-237.mweb.co.za) by cpt-proxy1.mweb.co.za (Sun Internet Mail Server sims.3.5.1999.05.24.18.28.p7) with SMTP id <0FI700B18Z6D1Q@cpt-proxy1.mweb.co.za> for restitution@maillist.ox.ac.uk; Fri, 17 Sep 1999 21:52:00 +0200 (GMT-2) Date: Fri, 17 Sep 1999 21:54:08 +0000 From: J MARGO Subject: Fw: BULGARIAN RESTITUTION To: ivanshopov@yahoo.com, restitution@maillist.ox.ac.uk Message-id: <006901bf0157$2b791000$ed3802c4@jerrym> MIME-version: 1.0 X-Mailer: Microsoft Outlook Express 5.00.2314.1300 Content-type: multipart/alternative; boundary="----=_NextPart_000_0066_01BF0157.2AC80F80" X-MSMail-Priority: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2314.1300 X-Priority: 3 This is a multi-part message in MIME format. ------=_NextPart_000_0066_01BF0157.2AC80F80 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable ----- Original Message -----=20 From: J MARGO=20 To: ivan_shopov@yahoo.com=20 Cc: margo@appraise.co=20 Sent: Friday, September 17, 1999 9:49 PM Subject: BULGARIAN RESTITUTION Dr Ivan Shopov I was pleased to receive your article. I am President of the South African Institute of Valuers. For the past four years, I have consulted with the South African = Government in respect of land restitution and compensation. I have had = much difficulty in trying to communicate with other parties who are = experiencing similar problems to our Country. In particular, the = restitution of land rights lost during the apartheid era. The following is an address that was presented by me some time ago. = While it may NOT apply to your countries specific problems, we may be = able to share some ideas on common problems. Please visit our Institutes Website www.saiv.org.za I look forward to hearing from you. =20 Regards Jerry Margolius SA Valuer magazine 01/99 article 01 The procedures to be followed by = Valuers when dealing with Valuation for land restitution purposes = by Jerry Margolius, FIVSA =20 =20 The solution to the problem is not so simple and I view one of the main = problems=20 as being the lack of jurisprudence to enable us to follow the guidelines = laid down by our Land Claims Court. Yes, the process is slow=20 but, when operating within the system of restitution, you begin to=20 understand why, and as Valuers, we will have an important role to=20 play. We will need to assist the Government Departments in ensuring=20 that cost effective valuations are undertaken and where possible,=20 suggest the batching of claims within an area be included in your=20 brief. Clearly, it is not cost effective for single valuations to=20 be performed.=20 The maintaining and most importantly, sharing of information amongst=20 your colleagues must be ensured. Compassion must be shown to the = claimants,=20 yet objective valuations must be performed at all times. We will divide=20 this paper into two sections. Firstly, we will need to understand=20 land restitution, to whom it is applicable and the functions of the=20 statutory bodies. Thereafter, we will discuss the valuation process, what can be expected=20 and the problems you are likely to encounter.=20 UNDERSTANDING RESTITUTION Since 1913 and in fact prior thereto, rights to land have been = controlled=20 by some form of racial discriminatory laws and practices. Why do we need to understand this process from such early days? Well,=20 the valuation of land set aside by the Queen Victoria (Sir George=20 Cathcart) by means of Land Grant to little Namaqua Hottentots in about=20 1854 may very well have been part of your valuation research. This=20 would have resulted in extensive Deeds Office search and land knowledge=20 in order to perform what is inevitably an historical valuation. We are all familiar with the term Group Areas which will form the=20 basis in the majority of urban valuation briefs. You would be required=20 to acquaint yourself with this legislation and many other discriminatory = laws in order to understand the process. These Acts could include: Native Land Act of 1913 Native Administration Act of 1927 Development Trust and Land Act of 1937 Asiatic Land Tenure Act of 1946 Group Areas Act 1950 & 1966 Rural Coloured Areas Act of 1963 Community Development Act of 1966 In particular, the 1950 Group Areas Act addressed the provisions on=20 how to control ownership and occupation of land. However, it did not=20 adequately address the aspect as to how people were to be removed,=20 as the Act simply provided the title of disqualified persons and = disqualified=20 company for those who resided in demarcated areas. Disqualified persons were able to retain ownership of their property=20 in their lifetime but their heirs would be required to dispose of=20 the inherited property to a member of the applicable race group. = Properties=20 owned by disqualified companies were required to be disposed of within=20 ten years. The Group Areas Development Act of 1955 was subsequently passed. This=20 Act dealt with the disposing and acquiring of disqualified properties=20 now termed affected property. The Act could apply to any group but=20 its application was not mandatory. However, once applicable all affected = property would at first have to be offered to the Group Areas = Development=20 Board. Only when the Board waived its rights could a sale take place. The State refused to acknowledge that disqualified owners were entitled=20 to compensation. The Board placed a basic value on the property. If=20 the property was sold below the basic value, the Board would pay 80%=20 of the difference between the basic value and the selling price. = However,=20 in the event of the selling price being higher, an appreciation levy=20 of 50% was payable. The first group area proclamation after the Group Areas Development=20 Act was Proclamation No.190 of 1957. The Department of Local Government=20 and housing has advised that the basic values prescribed by regulation=20 (Community Development Act, 1966 (Act 3/1966 Government Notice R734=20 dated 11th May 1962) required this value to be the market value as=20 at 9th February 1961. The introduction and legislated provisions of the Group Areas = legislation=20 could certainly not support the existence of an open market. But,=20 it must also be understood that sales of property owned by other race=20 groups were also controlled and therefore, the sales of all property=20 in South Africa until the 1990s were controlled. WHO IS ENTITLED TO RESTITUTION The Constitution of the Republic of South Africa, 1993 (Act No. 200=20 of 1993), provides for the restitution of a right in land to a person=20 or community dispossessed under or for the purpose of furthering the=20 objects of any racially based discriminatory law S25(7) A person=20 or community dispossessed of property after 19 June 1913 as a result=20 of past racially discriminatory laws or practices is entitled, to=20 the extent provided by an Act of Parliament, either to restitution=20 of that property or to equitable redress.=20 The Land Restitution Act 1994 provides for the restitution of rights=20 in land in respect of which persons or communities were dispossessed=20 under or for the purpose of furthering the objects of any racially=20 based discriminatory law; to establish a Commission on Restitution=20 of Land Rights and a Land Claims Court and to provide for matters=20 connected therewith.=20 This legislation promotes the protection and advancement of persons,=20 groups or categories of persons who are disadvantaged by unfair=20 discrimination, in order to promote their full and equal enjoyment of=20 rights in land. THE TASK OF THE LAND CLAIMS COMMISSION The Land Restitution Act provides for the establishment of a Land=20 Claims Commission.=20 The task of the Commission for the Restitution of Land Rights (CRLR)=20 is to investigate and mediate land claims. It has drawn up guidelines,=20 procedures and requirements for the lodging of land claims and other=20 related matters. All land claims were to be lodged by 31 December=20 1998. No one will be able to claim land without substance. A claimant will=20 have to prove that he or she was dispossessed after 1913 without = adequate=20 financial compensation or alternative land. Where legitimate claims=20 are lodged for dispossessions that took place before 1913, the Minister=20 of Land Affairs will consider giving preference to such claimants=20 in terms of the redistribution programme. THE LAND CLAIMS COURT The Land Claims Court was set up in 1995, in terms of the Restitution=20 of Land Rights Act, 1994 (Act 22 of 1994). Where the CRLR fails for=20 whatever reason to successfully mediate a claim, it will be referred=20 to the Land Claims Court for a ruling.=20 The Court has the status of the High Court, and any appeal on a Land=20 Claims Court decision will be handled by the Constitutional Court.=20 The Government will not be able to interfere with the workings of=20 the Court.=20 The Land Claims Court will be responsible for determining restitution=20 and compensation to those who lost land as a result of forced removals.=20 Requirements of the Court are that it must be accessible to the poor=20 and illiterate, and it must establish processes that will enable it=20 to make speedy decisions. In order for the court to function = effectively,=20 constitutional rights to restitution must be guaranteed.=20 In all cases of restitution, the State, usually the Department of=20 Land Affairs is the respondent. The Department of Land Affairs also=20 has a mandate to enter into negotiations with the Claimants in order=20 to reach a settlement on the issue of compensation before proceeding=20 with the matter to Court. PROPERTY CLAUSE A brief understanding of the property clause is essential. = Unfortunately,=20 little jurisprudence has in fact been made and therefore, the = negotiation=20 process will still continue.=20 Of particular importance to valuers will be S25 (3), which deals with=20 the circumstances relating to the compensation that was paid and other=20 factors which need to be taken into account when dealing with this=20 issue. You will note that the market value of property is only one=20 of the factors which needs to be taken into account. Property Clause 25 (1) No one may be deprived of property except in terms of law of general = application, and no law may permit arbitrary deprivation of property.=20 (2) Property may be expropriated only in terms of law of general = application (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and=20 manner of payment of which have either been agreed to by those affected=20 or decided or approved by a court.=20 (3) The amount of the compensation and the time and manner of payment=20 must be just and equitable, reflecting an equitable balance between=20 the public interest and the interests of those affected, having regard=20 to all relevant circumstances, including=20 (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) 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. (4) For the purposes of this section=20 (a) the public interest includes the nations commitment to land reform,=20 and to reforms to bring about equitable access to all South Africas=20 natural resources; and (b) property is not limited to land.=20 (5) The state must take reasonable legislative and other measures,=20 within its available resources, to foster conditions which enable=20 citizens to gain access to land on an equitable basis.=20 (6) A person or community whose tenure of land is legally insecure=20 as a result of past racially discriminatory laws or practices is = entitled,=20 to the extent provided by an Act of Parliament, either to tenure which=20 is legally secure or to comparable redress.=20 (7) A person or community dispossessed of property after 19 June 1913=20 as a result of past racially discriminatory laws or practices is = entitled,=20 to the extent provided by an Act of Parliament, either to restitution=20 of that property or to equitable redress.=20 (8) No provision of this section may impede the state from taking=20 legislative and other measures to achieve land, water and related=20 reform, in order to redress the results of past racial discrimination,=20 provided that any departure from the provisions of this section is=20 in accordance with the provisions of section 36(1). (9) Parliament must enact the legislation referred to in subsection=20 (6).=20 In addition, Section 33 of the Restitution of Land Rights Act, 1994=20 (Act 22 of 1994) provides for the Land Claims Court in addition to=20 relevant provisions of the Constitution, to have regard to the following = factors:=20 (a) The desirability of providing for restitution of rights in land=20 or compensation to people who were dispossessed of their rights in=20 land as a result of or in pursuance of racially based discriminatory=20 laws;=20 (b) the desirability of remedying past violations of human rights;=20 (c) the requirements of equity and justice;=20 (d) the desirability of avoiding major social disruption;=20 (e) any provision which already exists, in respect of the land in=20 question in any matter, for that land to be dealt with in a manner=20 which is designed to achieve the goals contemplated in section 8(3)(a)=20 of the Constitution; any other factor which the Court may consider=20 relevant and consistent with the spirit and objects of the Constitution=20 and in particular the provisions of section 8 of the Constitution.=20 DEPARTMENTAL RESEARCH Once a claim has been received and researched, it will be validated=20 by the Commission. Researchers will conduct a research into the ownership of the property=20 and the dispossessed parties. This will usually include obtaining=20 copies of Title Deeds and meeting with the claimants to discuss their=20 individual claims. They may identify the problems in the area but=20 will almost certainly confirm the racially based legislation that=20 gave rise to the claim and dispossession of the property. Documentation which is likely to be available in the research reports,=20 although not essential will include: Title Deed of the dispossessed party prior to dispossession; Transfer to the relevant purchaser which could be the Department of=20 Community Development; Subsequent sales (if available); A research report including an interview with the claimant Details of the property prior to dispossession. I have endeavoured to arrange that the original GC 169 valuations=20 indicating how the basic value was determined etc. to be included=20 in the research. =09 VALUATION TENDERING AND THE BRIEF The brief that you will receive will set out exactly what is required=20 from you. If there is any uncertainty at this stage you should discuss=20 this with the instructing party.=20 I would suggest that should you feel that the brief falls beyond your=20 expertise, that you decline to accept it. Remember you will always=20 be respected for declining a brief due to the complex nature thereof=20 rather than accepting one that could be to your detriment and that=20 of our profession. This must also be borne in mind when tendering.=20 On the issue of tendering, the Department maintains a database using=20 a Props system. You should ensure registration with the Department=20 and I refer you to the September 1998 issue of the SA VALUER which=20 possibly lies unopened on your desk, for further information. = Incidentally=20 there is also an article on Land Reform. VALUATION RESEARCH & SUGGESTED PROCEDURES Having accepted your brief, you should endeavour to obtain a copy=20 or at the very least peruse the applicable files pertaining to your=20 valuation assignment. These files are either with the Land Claims=20 Commission or the Department of Land Affairs. The first item you need to confirm is the effective date of the = valuation.=20 Beware, researchers have often used the date of registration as the=20 date of dispossession. Secondly, an area map would need to be obtained. Some Local Authorities=20 would be able to assist you with the old historical cadastral maps=20 will prove most helpful. I usually try and make tracing copies thereof.=20 Aerial photographs, zonings and town- planning schemes in place at=20 the time of dispossession will prove useful. Municipal records including field forms or building records as well=20 as building plans should be obtained. If not available from the = Authorities,=20 try the Archives where you will usually find the old valuation records.=20 You may also try and view some of the old photos that they have in=20 their files. Familiarise yourself with the legislation that was applicable at the=20 time. A visit to the Surveyor Generals office will enable you to note=20 the Group Area boundaries that were applicable. You may also need=20 to locate the properties you are valuing and therefore, noting sheets=20 and site diagrams will be included in your research. Inspect the property, hopefully it still exists. If not try and locate=20 similar properties in the vicinity to enable you to appreciate the=20 buildings that existed at the time. Peruse the research report and=20 obtain a description of the property therefrom. At this stage, you may like to interview the claimant. Prepare yourself=20 for what could be a very emotional interview. The Claimant is likely=20 to be extremely subjective, understandably so. I usually ask the = claimant=20 to draw a rough sketch of the property which I feel often helps. = Ascertain=20 the condition of the property as at date of dispossession and whether=20 there was any other potential highest and best usage that needed to=20 be considered. It is my opinion that cities usually have a natural growth. Certainly,=20 superstores, shopping malls, sectional title schemes etc., were not=20 the norm of development in the 1960s. As such, the site potential=20 or plottage that may have followed 10 years later should be pursued=20 with caution. VALUATION METHODS & CALCULATIONS=20 The purpose of this item is not to teach you how to value property=20 merely to highlight some of the pitfalls when carrying out the valuation = and applying the method which you have selected. Comparable method is always the first prize. Beware of selecting sales=20 of property that may not have been at arms length transactions. Sales=20 between the same and different race groups should be carefully analyzed=20 especially when utilising sales within the affected areas. Although the comparable market method of valuation approach has wide=20 implications as a method of estimating value and is of primary = importance=20 where applicable, there are factors that may limit its usefulness. Examples of these are the following: No provision is made for arriving at an estimated value in cases where=20 there are no current sales or comparable properties or where there=20 is no active market. No two properties are identical since they vary in location even if=20 they are alike in other respects. All differences must be considered. The more factors to be compared=20 and adjusted the greater the number of decisions and judgements = necessary.=20 Minimal adjustments tend to increase reliability.=20 Intangible qualities are difficult to compare. Ascertaining the exact conditions applicable to each sale is essential=20 so that the validity of the sale as comparative data may be established. = In this regard we would need to establish if at the time the owners=20 were informed sellers or the buyer an informed buyer, either being=20 aware of the current market value.=20 Many motivations lead to the transfer of real property at figures=20 unrelated to the property market value. Tax situations may affect=20 the sale price. Transfers between relatives or even auctions may not=20 give a true indication of market value.=20 The adjustment process is subject to many inter-relationships among=20 the factors considered and may over or under account for dis-similarity. = (Source: Appraisal of Real Estate). We will need to deal with the exceptional circumstances that affect=20 the property. Prices are affected by the abundance of property becoming=20 available on the market and sales taking place within the period of=20 dispossession. Therefore, it remains extremely difficult when = investigating=20 into the circumstances of utilising comparable sales to ascertain=20 whether there were any voluntary sales that were made or sales made=20 under or within normal or usual terms and conditions.=20 One assumes that a valuation in the open market is conducted under=20 the normal or usual terms and conditions. Prices are however affected=20 by exceptional circumstances. Justice Rosen in Groenewald and others=20 versus Van Rooyen en andere (1960 (1) 244 C.P.D) held that the = circumstances=20 of exceptional nature would only relate to events such as war or major=20 political unrest. Therefore, we consider properties which are affected=20 by exceptional circumstances should not be used as comparable sales.=20 Certainly, the dispossession of property in my mind under the then=20 Group Areas Act could fall into this category. The Judge did however=20 point out that price fluctuations caused by normal economic cycles=20 would not be treated as exceptional circumstances. In the case of Todd vs. The Administrator of the Transvaal (1972 (2)=20 S.A.876.A.D on page 881H: It is obvious that when the situation arises where there is only one=20 potential purchaser that is the expropriating authority itself, there=20 can hardly be seen to be open -market in which the value of the property = can be determined. On page 882 The only possible answer it seems to me is that the = arbitrator=20 who determined the value of the property, with such potential as it=20 has, did so in the same way as he would have done had there been several = possible purchases Bearing the above in mind, I am clearly of the opinion that where=20 exceptional circumstances exist and clearly certainly no open market=20 from which suitable comparable sales could be obtained alternative=20 methods will have to be investigated. I have found the replacement cost method less depreciation a good=20 guideline in calculating values in areas where the properties have=20 all been demolished e.g. District 6 in Cape Town and/or the area has=20 changed identity. In establishing land values, work on the outer = boundaries=20 and try to establish a range within which the values will fall. When=20 calculating the depreciation, work to tables such as McMichaels which=20 is internationally accepted. You will exclude all the political = influences=20 that existed in South Africa. If you are likely to have to adjust,=20 adjust in favour of the claimant. Historical building cost indices are of great assistance. Even housing=20 price sales may help you in your calculations. Based upon the construction of a solid house, the following table=20 based on the expected life of say 75 years, the recommended depreciation = factors would be as follows: AGE RECOMMENDED DEPRECIATION FACTOR 1 2% 2 3.8% 3 5.6% 4 7.4% 5 9.1% 6 10.7% 7 12.3% 8 13.9% 9=20 15.5% 10 17.0% 11 18.5% 12 20.0% 13 21.4% 14 22.8% 15 24.2% 20 30.8% 25 = 36.8% 30 42.49% 35 49.5% 40 52.2% 45 56.5% 50 60.5% 55 64.1% 60 67.3% 65 70.3% 70 73.0% 75 75.0%=09 The above table is estimated structural depreciation for a building=20 kept in an ordinary state of repair. Buildings still in use are not=20 depreciated more than 75% of the cost of present day reconstruction.=20 Allowances for obsolescence are not included in the schedule. McMichaels = Appraising Manual is an international valuers handbook and used for=20 the purpose of endeavouring to ignore political influences on = depreciation=20 factors. COMPENSATION Compensation must be based on the principles of justice and equity.=20 Where land is expropriated the Claimant should not profit at the expense = of the public but should instead be fairly compensated for what was=20 paid and invested in the property. Special benefits will be taken=20 into account and this could include low interest loans, rates exemptions = etc. Certain guidelines were contained in the 1995 Ministerial report = regarding=20 the determination of Land Values. The following may apply in particular=20 circumstances: the actual prices paid by the present owner at time of acquisition; market value of the land at time of acquisition; present day value of the land, excluding the improvements made by=20 the owner; the contribution value of beneficial improvements (i.e which adds=20 to the value of the property) made to the property by the owner since=20 time of acquisition; the value of any special benefits which the owner received from the=20 State (e.g low interest rates, subsidies etc) VALUATION REPORT In concluding the following are some of the data you may consider=20 including in your report. CONTENTS Instructions Date of Valuation =09 Format, Procedure & Technique used in the Appraisal of the Property =09 Details of Claimant =09 Title Deed Description Deed of Transfer =09 Details pertaining to property as at date of Dispossession =09 Surveyor General Information Local Authority Information =09 Physical address =09 Property Reference Number =09 Map Numbers =09 The Municipal Valuation =09 Historical Background Recorded Municipal Valuation Determination of Site and Building Values: Site Value and Building=20 Value Zoning Locality and Physical Description Locality =09 Physical Description =09 Highest and Best Use =09 Commentary on Group Areas Act in relation to subject property =09 Market Value =09 Methods of Valuation =09 The Market Data Approach =09 The Income Approach Method =09 Application of Market Data =09 The Use Of Comparable Properties The Application of Municipal Valuation vs Market Valuation =09 Sales Record =09 Approach and Adjustment of Market Data=09 Summary & Conclusion =09 Valuation, List of Annexures, References Lastly, remember that your valuation is likely to be reviewed by other=20 valuers and your peers needless to say, the Land Court Judges and=20 Commissioners will also peruse same. Most importantly ensure that=20 your work is of an acceptable standard.=20 Jerry Margolius Back to publications index page =A9 1999 The South African Institute of Valuers. All rights reserved =20 Dear Sir or Madam, > > The Bulgaria Human Rights Association is dealing with violation of > human rights caused by the restitution in Bulgaria. A brief analysis > follows, that spots the major deficiencies in the Bulgarian = restitution > law and its application. We would appreciate your opinion on this > subject and any related information concerning this issue. Thank You = in > advance. > > In 1992, the Parliament adopted a restitution law, with full title > Restoration of ownership of expropriated real property (ROERP). = Article > 7 of the law regulated the restitution of property sold to private > owners, herein called third parties. According to Article 7, the first > owners may file a claim against the third parties in order to restore > ownership, if "the property was appropriated in violation of statutes, > and/or through misuse of political or official status." The disputed > property was sold, taken in exchange or received in compensation about > 20-30 ago. Therefore, it is almost impossible to find out any proof > positive of misuse of political or official status. Due to the lack of > such evidence, the court makes decisions solely on the basis of the > discrepancies between the existing documents of ownership and the > relevant statutes. The court decided whether the discrepancies > constitute a breach of the statues. > > The category of statutes includes all state decrees, regulations and > rules, concerning the operation of the state administration and the > municipalities, and various decisions of the executive body of the > municipalities. There are two types of statues - statues regulating = the > rights and the obligations of the citizens and statues regulating the > rights and obligations of the municipalities. The law makes no > distinction as to the type of statue. Moreover, the law requires no > identification of the originator of the breach of the statute. As a > result, hundreds of owners were deprived of their property solely due > to inaccuracies caused by the state and municipality administration > officers. Even in - depth knowledge of all the statutes, concerning = the > operation of the municipalities, on behalf of the third parties, would > not enable them to forestall such inaccuracies. > > In these cases, although formally complying with the provisions of = the > law, the court decisions violate the Bulgarian Constitution that holds > the state "liable for any damages caused by illegitimate rulings or > acts on the part of its agencies and officials." The most logical > explanation for these corrupt judgements is that the court has acted > under influence, abandoning its constitutional obligation to be > impartial in its decisions. The roots of the vulnerability of the = court > lie in the bipolar political system of the country. 10 years after the > transition to democracy, the high level of corruption is an indicator > that political power is a tool for obtaining personal gains rather = than > for promoting democratic changes. In this situation, every ambiguous > law definition creates opportunities for corruption and interference = in > the judicial system. > > > SIncerly Yours, > > Ph.D. Ivan Shopov > / Chairman / > > > __________________________________________________ > Do You Yahoo!? > Bid and sell for free at http://auctions.yahoo.com > > _________________________________________________________________________= ___ ____ > This message was delivered through the Restitution Discussion Group, = an > international internet LISTSERV devoted to all aspects of the law of unjust > enrichment. To subscribe, send "subscribe restitution" in the body of = a > message to . To unsubscribe, send "unsubscribe > restitution" to the same address. To make a posting to all group = members, > send to . The list is run by Lionel = Smith of > St. Hugh's College, Oxford, U.K., tel. (0)1865 274 966, email > . > ------=_NextPart_000_0066_01BF0157.2AC80F80 Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable
 
----- Original Message -----=20
From: J MARGO =
Sent: Friday, September 17, 1999 9:49 PM
Subject: BULGARIAN RESTITUTION

Dr Ivan Shopov
 
I was pleased to receive your=20 article.
 
I am President of the South = African Institute=20 of Valuers.
 
For the past four years, I have = consulted with the=20 South African Government in respect of land restitution and = compensation. I have=20 had much difficulty in trying to communicate with other parties who are=20 experiencing similar problems to our Country. In particular, the = restitution of=20 land rights lost during the apartheid era.
The following is an address that was presented =

by me some time ago. While it may NOT apply to =

your countries specific problems, we may be able to share some ideas on =

common problems.
Please visit our =

Institutes Website www.saiv.org.za
I look forward to hearing from =

you.
 
Regards
Jerry =

Margolius
SA =

Valuer magazine 01/99 article =

01    
The procedures to be =

followed by Valuers when dealing with  
Valuation for land restitution purposes =

    
by Jerry =

Margolius, FIVSA   
 
The solution to the =

problem is not so simple and I view one of the main problems=20

as being the lack of jurisprudence to enable us to follow the guidelines =



laid down by our Land Claims Court. Yes, the process is slow=20

but, when operating within the system of restitution, you begin to=20

understand why, and as Valuers, we will have an important role to=20

play. We will need to assist the Government Departments in ensuring=20

that cost effective valuations are undertaken and where possible,=20

suggest the batching of claims within an area be included in your=20

brief. Clearly, it is not cost effective for single valuations to=20

be performed. 
The maintaining and most =

importantly, sharing of information amongst=20

your colleagues must be ensured. Compassion must be shown to the =

claimants,=20

yet objective valuations must be performed at all times. We will divide=20

this paper into two sections. Firstly, we will need to understand=20

land restitution, to whom it is applicable and the functions of the=20

statutory bodies.
Thereafter, we will =

discuss the valuation process, what can be expected=20

and the problems you are likely to encounter.=20




UNDERSTANDING =

RESTITUTION
Since 1913 and in fact prior =

thereto, rights to land have been controlled=20

by some form of racial discriminatory laws and =

practices.
Why do we need to understand =

this process from such early days? Well,=20

the valuation of land set aside by the Queen Victoria (Sir George=20

Cathcart) by means of Land Grant to little Namaqua Hottentots in about=20

1854 may very well have been part of your valuation research. This=20

would have resulted in extensive Deeds Office search and land knowledge=20

in order to perform what is inevitably an historical =

valuation.
We are all familiar with the =

term Group Areas which will form the=20

basis in the majority of urban valuation briefs. You would be required=20

to acquaint yourself with this legislation and many other discriminatory =



laws in order to understand the process. These Acts could include:




Native Land Act of =

1913
Native Administration Act of =

1927
Development Trust and Land Act of =

1937
Asiatic Land Tenure Act of =

1946
Group Areas Act 1950 & =

1966
Rural Coloured Areas Act of =

1963
Community Development Act of 1966




In particular, the 1950 Group Areas Act =

addressed the provisions on=20

how to control ownership and occupation of land. However, it did not=20

adequately address the aspect as to how people were to be removed,=20

as the Act simply provided the title of disqualified persons and =

disqualified=20

company for those who resided in demarcated =

areas.
Disqualified persons were able to =

retain ownership of their property=20

in their lifetime but their heirs would be required to dispose of=20

the inherited property to a member of the applicable race group. =

Properties=20

owned by disqualified companies were required to be disposed of within=20

ten years.
The Group Areas Development =

Act of 1955 was subsequently passed. This=20

Act dealt with the disposing and acquiring of disqualified properties=20

now termed affected property. The Act could apply to any group but=20

its application was not mandatory. However, once applicable all affected =



property would at first have to be offered to the Group Areas =

Development=20

Board. Only when the Board waived its rights could a sale take =

place.
The State refused to acknowledge =

that disqualified owners were entitled=20

to compensation. The Board placed a basic value on the property. If=20

the property was sold below the basic value, the Board would pay 80%=20

of the difference between the basic value and the selling price. =

However,=20

in the event of the selling price being higher, an appreciation levy=20

of 50% was payable.
The first group area =

proclamation after the Group Areas Development=20

Act was Proclamation No.190 of 1957. The Department of Local Government=20

and housing has advised that the basic values prescribed by regulation=20

(Community Development Act, 1966 (Act 3/1966  Government Notice R734=20

dated 11th May 1962) required this value to be the market value as=20

at 9th February 1961.
The introduction =

and legislated provisions of the Group Areas legislation=20

could certainly not support the existence of an open market. But,=20

it must also be understood that sales of property owned by other race=20

groups were also controlled and therefore, the sales of all property=20

in South Africa until the 1990s were controlled.





WHO IS ENTITLED TO RESTITUTION
The =

Constitution of the Republic of South Africa, 1993 (Act No. 200=20

of 1993), provides for the restitution of a right in land to a person=20

or community dispossessed under or for the purpose of furthering the=20

objects of any racially based discriminatory law S25(7)  A person=20

or community dispossessed of property after 19 June 1913 as a result=20

of past racially discriminatory laws or practices is entitled, to=20

the extent provided by an Act of Parliament, either to restitution=20

of that property or to equitable redress. 
The Land Restitution Act 1994 provides for the restitution of =

rights=20

in land in respect of which persons or communities were dispossessed=20

under or for the purpose of furthering the objects of any racially=20

based discriminatory law; to establish a Commission on Restitution=20

of Land Rights and a Land Claims Court and to provide for matters=20

connected therewith. 
This legislation =

promotes the protection and advancement of persons,=20

groups or categories of persons who are disadvantaged by unfair=20

discrimination, in order to promote their full and equal enjoyment of=20

rights in land.


THE TASK OF THE LAND CLAIMS =

COMMISSION
The Land Restitution Act =

provides for the establishment of a Land=20

Claims Commission. 
The task of the =

Commission for the Restitution of Land Rights (CRLR)=20

is to investigate and mediate land claims. It has drawn up guidelines,=20

procedures and requirements for the lodging of land claims and other=20

related matters. All land claims were to be lodged by 31 December=20

1998.
No one will be able to claim land =

without substance. A claimant will=20

have to prove that he or she was dispossessed after 1913 without =

adequate=20

financial compensation or alternative land. Where legitimate claims=20

are lodged for dispossessions that took place before 1913, the Minister=20

of Land Affairs will consider giving preference to such claimants=20

in terms of the redistribution programme.





THE LAND CLAIMS COURT
The Land Claims =

Court was set up in 1995, in terms of the Restitution=20

of Land Rights Act, 1994 (Act 22 of 1994). Where the CRLR fails for=20

whatever reason to successfully mediate a claim, it will be referred=20

to the Land Claims Court for a ruling. 
The Court has the status of the High Court, and any appeal on a =

Land=20

Claims Court decision will be handled by the Constitutional Court.=20

The Government will not be able to interfere with the workings of=20

the Court. 
The Land Claims Court will =

be responsible for determining restitution=20

and compensation to those who lost land as a result of forced removals.=20

Requirements of the Court are that it must be accessible to the poor=20

and illiterate, and it must establish processes that will enable it=20

to make speedy decisions. In order for the court to function =

effectively,=20

constitutional rights to restitution must be guaranteed. =


In all cases of restitution, the State, =

usually the Department of=20

Land Affairs is the respondent. The Department of Land Affairs also=20

has a mandate to enter into negotiations with the Claimants in order=20

to reach a settlement on the issue of compensation before proceeding=20

with the matter to Court.
PROPERTY =

CLAUSE
A brief understanding of the =

property clause is essential. Unfortunately,=20

little jurisprudence has in fact been made and therefore, the =

negotiation=20

process will still continue. 
Of =

particular importance to valuers will be S25 (3), which deals with=20

the circumstances relating to the compensation that was paid and other=20

factors which need to be taken into account when dealing with this=20

issue. You will note that the market value of property is only one=20

of the factors which needs to be taken into =

account.
				Property Clause =

25
(1) No one may be deprived of =

property except in terms of law of general=20

application, and no law may permit arbitrary deprivation of property.=20



(2) Property may be expropriated only in terms of law of general =

application
(a) for a public purpose or =

in the public interest; and
(b) subject =

to compensation, the amount of which and the time and=20

manner of payment of which have either been agreed to by those affected=20

or decided or approved by a court.=20





(3) The amount of the compensation and the time and manner of payment=20

must be just and equitable, reflecting an equitable balance between=20

the public interest and the interests of those affected, having regard=20

to all relevant circumstances, including 
(a) the current use of the property;
(b) the history of the acquisition and use of the =

property;
(c) the market value of the =

property;
(d) the extent of direct state =

investment and subsidy in the acquisition=20

and beneficial capital improvement of the property; =

and
(e) the purpose of the =

expropriation.





(4) For the purposes of this section 
(a) the public interest includes the nations commitment to land =

reform,=20

and to reforms to bring about equitable access to all South Africas=20

natural resources; and
(b) property is =

not limited to land.=20


(5) The state must take reasonable =

legislative and other measures,=20

within its available resources, to foster conditions which enable=20

citizens to gain access to land on an equitable basis.=20


(6) A person or community whose tenure =

of land is legally insecure=20

as a result of past racially discriminatory laws or practices is =

entitled,=20

to the extent provided by an Act of Parliament, either to tenure which=20

is legally secure or to comparable redress. 
(7) A person or community dispossessed of property after 19 =

June 1913=20

as a result of past racially discriminatory laws or practices is =

entitled,=20

to the extent provided by an Act of Parliament, either to restitution=20

of that property or to equitable redress.=20



(8) No provision of this section may impede the state from taking=20

legislative and other measures to achieve land, water and related=20

reform, in order to redress the results of past racial discrimination,=20

provided that any departure from the provisions of this section is=20

in accordance with the provisions of section 36(1).


(9) Parliament must enact the =

legislation referred to in subsection=20

(6).=20



In addition, Section 33 of the Restitution of Land Rights Act, 1994=20

(Act 22 of 1994) provides for the Land Claims Court in addition to=20

relevant provisions of the Constitution, to have regard to the following =



factors: 
(a) The desirability of =

providing for restitution of rights in land=20

or compensation to people who were dispossessed of their rights in=20

land as a result of or in pursuance of racially based discriminatory=20

laws; 
(b) the desirability of remedying =

past violations of human rights;=20


(c) the requirements of equity and =

justice; 
(d) the desirability of =

avoiding major social disruption; 
(e) =

any provision which already exists, in respect of the land in=20

question in any matter, for that land to be dealt with in a manner=20

which is designed to achieve the goals contemplated in section 8(3)(a)=20

of the Constitution; any other factor which the Court may consider=20

relevant and consistent with the spirit and objects of the Constitution=20

and in particular the provisions of section 8 of the Constitution.=20





DEPARTMENTAL RESEARCH
Once a claim has =

been received and researched, it will be validated=20

by the Commission.
Researchers will =

conduct a research into the ownership of the property=20

and the dispossessed parties. This will usually include obtaining=20

copies of Title Deeds and meeting with the claimants to discuss their=20

individual claims. They may identify the problems in the area but=20

will almost certainly confirm the racially based legislation that=20

gave rise to the claim and dispossession of the =

property.
Documentation which is likely =

to be available in the research reports,=20

although not essential will include:



Title Deed of the dispossessed party prior to =

dispossession;
Transfer to the relevant =

purchaser which could be the Department of=20

Community Development;
Subsequent sales =

(if available);
A research report =

including an interview with the claimant
Details of the property prior to dispossession.




I have endeavoured to arrange that the =

original GC 169 valuations=20

indicating how the basic value was determined etc. to be included=20

in the research.
	=09

VALUATION  TENDERING AND THE BRIEF
The =

brief that you will receive will set out exactly what is required=20

from you. If there is any uncertainty at this stage you should discuss=20

this with the instructing party. 
I =

would suggest that should you feel that the brief falls beyond your=20

expertise, that you decline to accept it. Remember you will always=20

be respected for declining a brief due to the complex nature thereof=20

rather than accepting one that could be to your detriment and that=20

of our profession. This must also be borne in mind when tendering.=20


On the issue of tendering, the =

Department maintains a database using=20

a Props system. You should ensure registration with the Department=20

and I refer you to the September 1998 issue of the SA VALUER which=20

possibly lies unopened on your desk, for further information. =

Incidentally=20

there is also an article on Land Reform.




VALUATION RESEARCH & SUGGESTED =

PROCEDURES
Having accepted your brief, =

you should endeavour to obtain a copy=20

or at the very least peruse the applicable files pertaining to your=20

valuation assignment. These files are either with the Land Claims=20

Commission or the Department of Land Affairs.
The first item you need to confirm is the effective date of the =

valuation.=20

Beware, researchers have often used the date of registration as the=20

date of dispossession.
Secondly, an area =

map would need to be obtained. Some Local Authorities=20

would be able to assist you with the old historical cadastral maps=20

will prove most helpful. I usually try and make tracing copies thereof.=20

Aerial photographs, zonings and town- planning schemes in place at=20

the time of dispossession will prove useful.
Municipal records including field forms or building records as =

well=20

as building plans should be obtained. If not available from the =

Authorities,=20

try the Archives where you will usually find the old valuation records.=20

You may also try and view some of the old photos that they have in=20

their files.
Familiarise yourself with =

the legislation that was applicable at the=20

time. A visit to the Surveyor Generals office will enable you to note=20

the Group Area boundaries that were applicable. You may also need=20

to locate the properties you are valuing and therefore, noting sheets=20

and site diagrams will be included in your =

research.
Inspect the property, =

hopefully it still exists. If not try and locate=20

similar properties in the vicinity to enable you to appreciate the=20

buildings that existed at the time. Peruse the research report and=20

obtain a description of the property therefrom.
At this stage, you may like to interview the claimant. Prepare =

yourself=20

for what could be a very emotional interview. The Claimant is likely=20

to be extremely subjective, understandably so. I usually ask the =

claimant=20

to draw a rough sketch of the property which I feel often helps. =

Ascertain=20

the condition of the property as at date of dispossession and whether=20

there was any other potential highest and best usage that needed to=20

be considered.
It is my opinion that =

cities usually have a natural growth. Certainly,=20

superstores, shopping malls, sectional title schemes etc., were not=20

the norm of development in the 1960s. As such, the site potential=20

or plottage that may have followed 10 years later should be pursued=20

with caution.




VALUATION METHODS & CALCULATIONS =


The purpose of this item is not to =

teach you how to value property=20

merely to highlight some of the pitfalls when carrying out the valuation =



and applying the method which you have selected.
Comparable method is always the first prize. Beware of =

selecting sales=20

of property that may not have been at arms length transactions. Sales=20

between the same and different race groups should be carefully analyzed=20

especially when utilising sales within the affected =

areas.
Although the comparable market =

method of valuation approach has wide=20

implications as a method of estimating value and is of primary =

importance=20

where applicable, there are factors that may limit its =

usefulness.
Examples of these are the =

following:



No provision is made for arriving at an estimated value in cases where=20

there are no current sales or comparable properties or where there=20

is no active market.
No two properties =

are identical since they vary in location even if=20

they are alike in other respects.
All =

differences must be considered. The more factors to be compared=20

and adjusted the greater the number of decisions and judgements =

necessary.=20

Minimal adjustments tend to increase reliability. =


	Intangible qualities are difficult to =

compare.
	Ascertaining the exact =

conditions applicable to each sale is essential=20

so that the validity of the sale as comparative data may be established. =



In this regard we would need to establish if at the time the owners=20

were informed sellers or the buyer an informed buyer, either being=20

aware of the current market value. 
Many =

motivations lead to the transfer of real property at figures=20

unrelated to the property market value. Tax situations may affect=20

the sale price. Transfers between relatives or even auctions may not=20

give a true indication of market value. 
The adjustment process is subject to many inter-relationships =

among=20

the factors considered and may over or under account for dis-similarity. =


(Source: Appraisal of Real Estate).



We will need to deal with the exceptional circumstances that affect=20

the property. Prices are affected by the abundance of property becoming=20

available on the market and sales taking place within the period of=20

dispossession. Therefore, it remains extremely difficult when =

investigating=20

into the circumstances of utilising comparable sales to ascertain=20

whether there were any voluntary sales that were made or sales made=20

under or within normal or usual terms and conditions. =


One assumes that a valuation in the =

open market is conducted under=20

the normal or usual terms and conditions. Prices are however affected=20

by exceptional circumstances. Justice Rosen in Groenewald and others=20

versus Van Rooyen en andere (1960 (1) 244 C.P.D) held that the =

circumstances=20

of exceptional nature would only relate to events such as war or major=20

political unrest. Therefore, we consider properties which are affected=20

by exceptional circumstances should not be used as comparable sales.=20


Certainly, the dispossession of =

property in my mind under the then=20

Group Areas Act could fall into this category. The Judge did however=20

point out that price fluctuations caused by normal economic cycles=20

would not be treated as exceptional =

circumstances.
In the case of Todd vs. =

The Administrator of the Transvaal (1972 (2)=20

S.A.876.A.D on page 881H:
It is obvious =

that when the situation arises where there is only one=20

potential purchaser that is the expropriating authority itself, there=20

can hardly be seen to be open -market in which the value of the property =



can be determined.
On page 882  The only =

possible answer it seems to me is that the arbitrator=20

who determined the value of the property, with such potential as it=20

has, did so in the same way as he would have done had there been several =



possible purchases





Bearing the above in mind, I am clearly of the opinion that where=20

exceptional circumstances exist and clearly certainly no open market=20

from which suitable comparable sales could be obtained alternative=20

methods will have to be investigated.
I =

have found the replacement cost method less depreciation a good=20

guideline in calculating values in areas where the properties have=20

all been demolished e.g. District 6 in Cape Town and/or the area has=20

changed identity. In establishing land values, work on the outer =

boundaries=20

and try to establish a range within which the values will fall. When=20

calculating the depreciation, work to tables such as McMichaels which=20

is internationally accepted. You will exclude all the political =

influences=20

that existed in South Africa. If you are likely to have to adjust,=20

adjust in favour of the claimant.
Historical building cost indices are of great assistance. Even =

housing=20

price sales may help you in your calculations.
Based upon the construction of a solid house, the following =

table=20

based on the expected life of say 75 years, the recommended depreciation =



factors would be as follows:




AGE	RECOMMENDED
	DEPRECIATION		FACTOR




1	 2%	 2	 3.8%	3	 5.6%	4	 7.4%	5	 9.1%	=

6 	10.7%	7 	12.3%	8 	13.9%	9=20

	15.5%	10	17.0%	11	18.5%	12	20.0%	13	21.4%	14	22.8%	15	24.2%	20	30.8%	25	=

36.8%	30	42.49%
35	=

49.5%
40	52.2%	45	=

56.5%
50	60.5%	55	=

64.1%
60	67.3%
65	70.3%	 70	73.0%	75 	75.0%=09





The above table is estimated structural depreciation for a building=20

kept in an ordinary state of repair. Buildings still in use are not=20

depreciated more than 75% of the cost of present day reconstruction.=20


Allowances for obsolescence are not =

included in the schedule. McMichaels=20

Appraising Manual is an international valuers handbook and used for=20

the purpose of endeavouring to ignore political influences on =

depreciation=20

factors.




COMPENSATION
Compensation must be based on the principles of justice and =

equity.=20

Where land is expropriated the Claimant should not profit at the expense =



of the public but should instead be fairly compensated for what was=20

paid and invested in the property. Special benefits will be taken=20

into account and this could include low interest loans, rates exemptions =



etc.
Certain guidelines were contained =

in the 1995 Ministerial report regarding=20

the determination of Land Values. The following may apply in particular=20

circumstances:



the actual prices paid by the present owner at time of =

acquisition;
market value of the land at =

time of acquisition;
present day value =

of the land, excluding the improvements made by=20

the owner;
the contribution value of =

beneficial improvements (i.e which adds=20

to the value of the property) made to the property by the owner since=20

time of acquisition;
the value of any =

special benefits which the owner received from the=20

State (e.g low interest rates, subsidies etc)




VALUATION REPORT
In concluding the following are some of the data you may =

consider=20

including in your report.




CONTENTS
Instructions
Date of Valuation		=

			
Format, Procedure & Technique =

used in the Appraisal of the Property			
Details of Claimant						
Title =

Deed Description
Deed of Transfer						=


Details pertaining to property as at =

date of Dispossession						
Surveyor =

General Information
Local Authority =

Information					
Physical address						=


Property Reference Number				=


Map Numbers						=


The Municipal Valuation					=


Historical =

Background
Recorded Municipal =

Valuation
Determination of Site and =

Building Values: Site Value and Building=20

Value
Zoning
	Locality and Physical Description
Locality							
Physical =

Description					
Highest and Best Use				=

		
Commentary on Group Areas Act in =

relation to subject property							
	=

Market Value							
Methods of Valuation	=

				
The Market Data Approach			=


The Income Approach Method			=


	Application of Market Data				=


The Use Of Comparable =

Properties
The Application of Municipal =

Valuation vs Market Valuation						
	=

Sales Record								
Approach and =

Adjustment of Market Data	
	Summary =

& Conclusion					
	Valuation, List =

of Annexures, References





Lastly, remember that your valuation is likely to be reviewed by other=20

valuers and your peers needless to say, the Land Court Judges and=20

Commissioners will also peruse same. Most importantly ensure that=20

your work is of an acceptable standard.

 

Jerry Margolius

 

Back to publications index=20 page

=A9 1999 The South = African=20 Institute of Valuers. All rights reserved 

 
 
Dear Sir or = Madam,
>
>=20 The Bulgaria Human Rights Association is dealing with violation = of
> human=20 rights caused by the restitution  in Bulgaria. A brief = analysis
>=20 follows, that spots the major deficiencies in the Bulgarian = restitution
>=20 law and its application. We would appreciate your opinion on = this
>=20 subject and any related information concerning this issue. Thank You = in
>=20 advance.
>
>  In 1992, the Parliament adopted a = restitution=20 law, with full title
> Restoration of ownership of expropriated = real=20 property (ROERP). Article
> 7 of the law regulated the restitution = of=20 property sold to private
> owners, herein called third parties. = According=20 to Article 7, the first
> owners may file a claim against the = third=20 parties in order to restore
> ownership, if "the property was = appropriated=20 in violation of statutes,
> and/or through misuse of political or = official=20 status." The disputed
> property was sold, taken in exchange or = received=20 in compensation about
> 20-30 ago. Therefore, it is almost = impossible to=20 find out any proof
> positive of misuse of political or official = status.=20 Due to the lack of
> such evidence, the court makes decisions = solely on=20 the basis of the
> discrepancies between the existing documents of = ownership and the
> relevant statutes. The court decided whether = the=20 discrepancies
> constitute a breach of the = statues.
>
> The=20 category of statutes includes all state decrees, regulations and
> = rules,=20 concerning the operation of the state administration and the
>=20 municipalities, and various decisions of the executive body of = the
>=20 municipalities. There are two types of statues - statues regulating = the
>=20 rights and the obligations of the citizens and statues regulating = the
>=20 rights and obligations of the municipalities. The law makes no
>=20 distinction as to the type of statue. Moreover, the law requires = no
>=20 identification of the originator of the breach of the statute. As = a
>=20 result, hundreds of owners were deprived of their property solely = due
> to=20 inaccuracies caused by the state and municipality administration
> = officers. Even in - depth knowledge of all the statutes, concerning = the
>=20 operation of the municipalities, on behalf of the third parties, = would
>=20 not enable them to forestall such inaccuracies.
>
>  In = these=20 cases, although formally complying with the provisions of the
> = law, the=20 court decisions violate the Bulgarian Constitution that holds
> = the state=20 "liable for any damages caused by illegitimate rulings or
> acts = on the=20 part of its agencies and officials."  The most logical
> = explanation=20 for these corrupt judgements is that the court has acted
> under=20 influence, abandoning its constitutional obligation to be
> = impartial in=20 its decisions. The roots of the vulnerability of the court
> lie = in the=20 bipolar political system of the country. 10 years after the
> = transition=20 to democracy, the high level of corruption is an indicator
> that=20 political power is a tool for obtaining personal gains rather = than
> for=20 promoting democratic changes. In this situation, every ambiguous
> = law=20 definition creates opportunities for corruption and interference = in
> the=20 judicial system.
>
>
> SIncerly = Yours,
>
>=20 Ph.D. Ivan Shopov
> / Chairman /
>
>
>=20 __________________________________________________
> Do You=20 Yahoo!?
> Bid and sell for free at http://auctions.yahoo.com
><= BR>>
______________________________________________________________= ______________
____
>=20 This message was delivered through the Restitution Discussion Group, = an
>=20 international internet LISTSERV devoted to all aspects of the law=20 of
unjust
> enrichment. To subscribe, send "subscribe = restitution" in=20 the body of a
> message to <majordomo@maillist.ox.ac.uk>.=20 To unsubscribe, send
"unsubscribe
> restitution" to the same = address.=20 To make a posting to all group members,
> send to <restitution@maillist.ox.ac.= uk>.=20 The list is run by Lionel Smith
of
> St. Hugh's College, = Oxford, U.K.,=20 tel. (0)1865 274 966, email
> <lionel.smith@law.ox.ac.uk&g= t;.
>
------=_NextPart_000_0066_01BF0157.2AC80F80-- >From Entrepeneur@netcom.com Sat Sep 18 23:14:15 1999 Received: from hse-ott-ppp30091.sympatico.ca ([209.226.112.16] helo=MAIL.NETCOM.COM) by bagpuss.oucs.ox.ac.uk with smtp (Exim 2.02 #2) id 11SSjn-0008Lr-00; Sat, 18 Sep 1999 23:13:45 +0100 From: Subject: Entrepreneurs Date: Sat, 18 Sep 1999 13:35:41 Message-Id: <663.275368.232329@MAIL.NETCOM.COM> Bcc: This is a one time message, if it reached you by mistake please accept my apologies, disregard and delete. Thank you. Dear Entrepreneur: Please take the time to read this. It can start you on the road to an easier life as an internet businessman/woman. Thank you. EBIZ = 1,2,3...4 CASH! 1. READ THIS ALL THE WAY THROUGH! 2. FOLLOW THE INSTRUCTIONS! 3. GO BUY A BIG BAG... 4. ALL THE CASH! THE PROGRAM $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ INCREDIBLE $0 to $50,000 in 90 days!!! Dear Friend, You can earn $50,000 or more in next the 90 days sending e-mail. Seem impossible? Read on for details. "AS SEEN ON NATIONAL TV" Thank you for your time and interest. This is the letter you've been reading about in the news lately. Due to the popularity of this letter on the Internet, a major nightly news program recently devoted an entire show to the investigation of the program described below to see if it really can make people money. The show also investigated whether or not the program was legal. Their findings proved once and for all that there are absolutely no laws prohibiting the participation in the program. This has helped to show people that this is a simple, harmless and fun way to make some extra money at home. The results of this show have been truly remarkable. So many people are participating that those involved are doing much better than ever before. Since everyone makes more as more people try it out, it's been very exciting to be a part of it lately. You will understand once you experience it. HERE IT IS BELOW: *** Print This Now For Future Reference *** The following income opportunity is one you may be interested in taking a look at. It can be started with VERY LITTLE investment and the income return is TREMENDOUS!!! $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ If you would like to make at least $50,000 in less than 90 days ! Please read the enclosed program...THEN READ IT AGAIN!!! $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ THIS IS A LEGITIMATE, LEGAL, MONEY MAKING OPPORTUNITY. It does not require you to come into contact with people, do any hard work, and best of all, you never have to leave the house except to get the mail. If you believe that someday you'll get that big break that you've been waiting for, THIS IS IT! Simply follow the instructions, and your dreams will come true. This multi-level e-mail order marketing program works perfectly...100% EVERY TIME. E-mail is the sales tool of the future. Take advantage of this non-commercialized method of advertising NOW!!! The longer you wait, the more people will be doing business using e-mail. Get your piece of this action!!! MULTI-LEVEL MARKETING (MLM) has finally gained respectability. It is being taught in the Harvard Business School, and both Stanford Research and the Wall Street Journal have stated that between 50% and 65% of all goods and services will be sold through multi-level methods by the mid to late 1990's. This is a Multi-Billion Dollar industry and of the 500,000 millionaires in the U.S., 20% (100,000) made their fortune in the last several years in MLM. Moreover, statistics show 45 people become millionaires everyday through Multi-Level Marketing. You may have heard this story before, but over the summer Donald Trump made an appearance on the David Letterman show. Dave asked him what he would do if he lost everything and had to start over from scratch. Without hesitating, Trump said he would find a good network marketing company and get to work. The audience started to hoot and boo him. He looked out at the audience and dead-panned his response: "That's why I'm sitting up here and you are all sitting out there!" The enclosed information is something I almost let slip through my fingers. Fortunately, sometime later I re-read everything and gave some thought and study to it. My name is Johnathon Rourke. Two years ago, the corporation I worked at for the past twelve years down-sized and my position was eliminated. After unproductive job interviews, I decided to open my own business. Over the past year, I incurred many unforeseen financial problems. I owed my family, friends and creditors over $35,000. The economy was taking a toll on my business and I just couldn't seem to make ends meet. I had to refinance and borrow against my home to support my family and struggling business. AT THAT MOMENT something significant happened in my life and I am writing to share the experience in hopes that this will change your life FOREVER FINANCIALLY!!! In mid December, I received this program via e-mail. Six month's prior to receiving this program I had been sending away for information on various business opportunities. All of the programs I received, in my opinion, were not cost effective. They were either too difficult for me to comprehend or the initial investment was too much for me to risk to see if they would work or not. One claimed that I would make a million dollars in one year...it didn't tell me I'd have to write a book to make it! But like I was saying, in December of 1997 I received this program. I didn't send for it, or ask for it, they just got my name off a mailing list. THANK GOODNESS FOR THAT!!! After reading it several times, to make sure I was reading it correctly, I couldn't believe my eyes. Here was a MONEY MAKING PHENOMENON. I could invest as much as I wanted to start, without putting me further into debt. After I got a pencil and paper and figured it out, I would at least get my money back. But like most of you I was still a little sceptical and a little worried about the legal aspects of it all. So I checked it out with the U.S. Post Office (1-800-725-2161 24-hrs) and they confirmed that it is indeed legal! After determining the program was LEGAL and NOT A CHAIN LETTER, I decided "WHY NOT." Initially I sent out 10,000 e-mails. It cost me about $15 for my time on-line. The great thing about e-mail is that I don't need any money for printing to send out the program, and because all of my orders are fulfilled via e-mail, my only expense is my time. I am telling you like it is I hope it doesn't turn you off, but I promised myself that I would not "rip-off" anyone, no matter how much money it made me. In less than one week, I was starting to receive orders for REPORT #1 By January 13, I had received 26 orders for REPORT #1. Your goal is to "RECEIVE at least 20 ORDERS FOR REPORT #1 WITHIN 2 WEEKS. IF YOU DON'T, SEND OUT MORE PROGRAMS UNTIL YOU DO!" My first step in making $50,000 in 90 days was done. By January 30, I had received 196 orders for REPORT #2. Your goal is to "RECEIVE AT LEAST 100+ ORDERS FOR REPORT #2 WITHIN 2 WEEKS. IF NOT, SEND OUT MORE PROGRAMS UNTIL YOU DO. ONCE YOU HAVE 100 ORDERS, THE REST IS EASY, RELAX, YOU WILL MAKE YOUR $50,000 GOAL." Well, I had 196 orders for REPORT #2, 96 more than I needed. So I sat back and relaxed. By March 1, of my e-mailing of 10,000, I received $58,000 with more coming in every day. I paid off ALL my debts and bought a much needed new car. Please take time to read the attached program, IT WILL CHANGE YOUR LIFE FOREVER!! ! Remember, it won't work if you don't try it. This program does work , but you must follow it EXACTLY! Especially the rules of not trying to place your name in a different place. It won't work and you'll lose out on a lot of money! In order for this program to work, you must meet your goal of 20+ orders for REPORT #1, and 100+ orders for REPORT #2 and you will make $50,000 or more in 90 days. I AM LIVING PROOF THAT IT WORKS!!! If you choose not to participate in this program, I am sorry. It really is a great opportunity with little cost or risk to you. If you choose to participate, follow the program and you will be on your way to financial security. If you are a fellow business owner and are in financial trouble like I was, or you want to start your own business, consider this a sign. I DID! Sincerely, Johnathon Rourke A PERSONAL NOTE FROM THE ORIGINATOR OF THIS PROGRAM: By the time you have read the enclosed program and reports, you should have concluded that such a program, and one that is legal, could not have been created by an amateur. Let me tell you a little about myself. I had a profitable business for 10 years. Then in 1979 my business began falling off. I was doing the same things that were previously successful for me, but it wasn't working. Finally, I figured it out. It wasn't me, it was the economy. Inflation and recession had replaced the stable economy that had been with us since 1945.I don't have to tell you what happened to the unemployment rate... because many of you know from first hand experience. There were more failures and bankruptcies than ever before. The middle class was vanishing. Those who knew what they were doing invested wisely and moved up. Those who did not, including those who never had anything to save or invest, were moving down into the ranks of the poor. As the saying goes, "THE RICH GET RICHER AND THE POOR GET POORER." The traditional methods of making money will never allow you to "move up" or "get rich", inflation will see to that. You have just received information that can give you financial freedom for the rest of your life, with "NO RISK" and "JUST A LITTLE BIT OF EFFORT." You can make more money in the next few months than you have ever imagined. I should also point out that I will not see a penny of this money, nor anyone else who has provided a testimonial for this program. I have already made over 4 MILLION DOLLARS!I have retired from the program after sending thousands and thousands of programs. Follow the program EXACTLY AS INSTRUCTED. Do not change it in any way . It works exceedingly well as it is now. Remember to e-mail a copy of this exciting report to everyone you can think of. One of the people you send this to may send out 50,000...and your name will be on everyone of them! Remember though, the more you send out the more potential customers you will reach. So my friend, I have given you the ideas, information, materials and opportunity to become financially independent. IT IS UP TO YOU NOW! "THINK ABOUT IT" Before you delete this program from your mailbox, as I almost did, take a little time to read it and REALLY THINK ABOUT IT. Get a pencil and figure out what could happen when YOU participate. Figure out the worst possible response and no matter how you calculate it, you will still make a lot of money! You will definitely get back what you invested. Any doubts you have will vanish when your first orders come in. IT WORKS! Jody Jacobs, Richmond, VA HERE'S HOW THIS AMAZING PROGRAM WILL MAKE YOU THOUSANDS OF DOLLAR$ INSTRUCTIONS: This method of raising capital REALLY WORKS 100% EVERY TIME. I am sure that you could use up to $50,000 or more in the next 90 days. Before you say "BULL... ", please read this program carefully. This is not a chain letter, but a perfectly legal money making opportunity. Basically, this is what you do: As with all multi-level businesses, we build our business by recruiting new partners and selling our products. Every state in the USA allows you to recruit new multi-level business partners, and we offer a product for EVERY dollar sent. YOUR ORDERS COME BY MAIL AND ARE FILLED BY E-MAIL, so you are not involved in personal selling. You do it privately in your own home, store or office. This is the GREATEST Multi-Level Mail Order Marketing anywhere. This is what you MUST do: 1. Order all 4 reports shown on the list below (you can't sell them if you don't order them). * For each report, send $5.00 CASH, the NAME & NUMBER OF THE REPORT YOU ARE ORDERING, YOUR E-MAIL ADDRESS, and YOUR NAME & RETURN ADDRESS (in case of a problem) to the person whose name appears on the list next to the report. MAKE SURE YOUR RETURN ADDRESS IS ON YOUR ENVELOPE IN CASE OF ANY MAIL PROBLEMS! * When you place your order, make sure you order each of the four reports. You will need all four reports so that you can save them on your computer and resell them. * Within a few days you will receive, via e-mail, each of the four reports. Save them on your computer so they will be accessible for you to send to the 1,000's of people who will order them from you. 2. IMPORTANT DO NOT alter the names of the people who are listed next to each report, or their sequence on the list, in any way other than is instructed below in steps "a" through "f" or you will lose out on the majority of your profits. Once you understand the way this works, you'll also see how it doesn't work if you change it. Remember, this method has been tested, and if you alter it, it will not work. a. Look below for the listing of available reports. b. After you've ordered the four reports, take this advertisement and remove the name and address under REPORT #4. This person has made it through the cycle and is no doubt counting their $50,000! c. Move the name and address under REPORT #3 down to REPORT #4. d. Move the name and address under REPORT #2 down to REPORT #3. e. Move the name and address under REPORT #1 down to REPORT #2. f. Insert your name/address in the REPORT #1 position. Please make sure you COPY ALL INFORMATION, every name and address, ACCURATELY! 3. Take this entire letter, including the modified list of names, and save it to your computer. Make NO changes to the instruction portion of this letter. Your cost to participate in this is practically nothing (surely you can afford $20). You obviously already have an Internet connection and e-mail is FREE! There are two primary methods of building your downline: METHOD #1: SENDING BULK E-MAIL Let's say that you decide to start small, just to see how it goes, and we'll assume you and all those involved send out only 2,000 programs each. Let's also assume that the mailing receives a 0.5% response. Using a good list the response could be much better. Also, many people will send out hundreds of thousands of programs instead of 2,000. But continuing with this example, you send out only 2,000 programs. With a 0.5% response, that is only 10 orders for REPORT #1. Those 10 people respond by sending out 2,000 programs each for a total of 20,000. Out of those 0.5%, 100 people respond and order REPORT #2. Those 100 mail out 2,000 programs each for a total of 200,000. The 0.5% response to that is 1,000 orders for REPORT #3. Those 1,000 send out 2,000 programs each for a 2,000,000 total. The 0.5% response to that is 10,000 orders for REPORT #4. That's 10,000 $5 bills for you. CASH!!! Your total income in this example is $50 + $500 + $5,000 + $50,000 for a total of $55,550!!! REMEMBER FRIEND, THIS IS ASSUMING 1,990 OUT OF THE 2,000 PEOPLE YOU MAIL TO WILL DO ABSOLUTELY NOTHING AND TRASH THIS PROGRAM! DARE TO THINK FOR A MOMENT WHAT WOULD HAPPEN IF EVERYONE, OR HALF SENT OUT 100,000 PROGRAMS INSTEAD OF 2,000. Believe me, many people will do just that, and more! By the way, your cost to participate in this is practically nothing. You obviously already have an Internet connection and e-mail is FREE!!! REPORT #2 will show you the best methods for bulk e-mailing, tell you where to obtain free bulk e-mail software and where to obtain e-mail lists. METHOD #2 - PLACING FREE ADS ON THE INTERNET Advertising on the internet is very, very inexpensive, and there are HUNDREDS of FREE places to advertise. Let's say you decide to start small just to see how well it works. Assume your goal is to get ONLY 10 people to participate on your first level. (Placing a lot of FREE ads on the Internet will EASILY get a larger response.) Also assume that everyone else in YOUR ORGANIZATION gets ONLY 10 downline members. Follow this example to achieve the STAGGERING results below: 1st level-your 10 members with $5.......................................$50 2nd level--10 members from those 10 ($5 x 100)..................$500 3rd level--10 members from those 100 ($5 x 1,000)...........$5,000 4th level--10 members from those 1,000 ($5 x 10,000).....$50,000 THIS TOTALS ---------->$55,550 Remember friends, this assumes that the people who participate only recruit 10 people each. Think for a moment what would happen if they got 20 people to participate! Most people get 100's of participants! THINK ABOUT IT! For every $5.00 you receive, all you must do is e-mail them the report they ordered. THAT'S IT! ALWAYS PROVIDE SAME-DAY SERVICE ON ALL ORDERS! This will guarantee that the e-mail THEY send out with YOUR name and address on it will be prompt because they can't advertise until they receive the report! AVAILABLE REPORTS *** Order Each REPORT by NUMBER and NAME *** Notes: * ALWAYS SEND $5 CASH (U.S. CURRENCY) FOR EACH REPORT. CHECKS NOT ACCEPTED. * ALWAYS SEND YOUR ORDER VIA FIRST CLASS MAIL. * Make sure the cash is concealed by wrapping it in at least two sheets of paper. On one of those sheets of paper, include: (a) the number & name of the report you are ordering, (b) your e-mail address, and (c) your name & postal address. PLACE YOUR ORDER FOR THESE REPORTS NOW: REPORT #1 "The Insider's Guide to Advertising for Free on the Internet' ORDER REPORT #1 FROM EBIZ PH2-45 Grenoble Drive Toronto, Ontario Canada M3C 1C5 REPORT #2 "The Insider's Guide to sending Bulk E-Mail on the Internet. ORDER REPORT #2 FROM: C. Alexander 2315 Lava Dr. San Jose, CA 95133 REPORT #3 "The secrets of Multilevel Marketing on the Internet. ORDER REPORT #3 FROM: P.G. 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If you have any questions of the legality of this program, contact the Office of Associate Director for Marketing Practices, Federal Trade Commission, Bureau of Consumer Protection in Washington, DC. >From lionel.smith@law.oxford.ac.uk Wed Sep 22 10:28:46 1999 Received: from oxmail3.ox.ac.uk ([163.1.2.9] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11Tihi-0003QV-00 for restitution@maillist.ox.ac.uk; Wed, 22 Sep 1999 10:28:46 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11Tigs-0002Lc-00 for restitution@maillist.ox.ac.uk; Wed, 22 Sep 1999 10:27:54 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11Tigs-0007Pk-00 for restitution@maillist.ox.ac.uk; Wed, 22 Sep 1999 10:27:54 +0100 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: Date: Wed, 22 Sep 1999 10:27:13 +0000 To: restitution@maillist.ox.ac.uk From: Lionel Smith Subject: Commercial Law Workshop Content-Type: text/plain; charset="us-ascii" ; format="flowed" There will be a Restitution panel at the 29th Annual Workshop on Commercial and Consumer law, to be held this year at McGill law school in Montreal, 14-15 October 1999. The panel is chaired by John Swan and the papers will be given by Robert Chambers (University of Alberta) and Mitchell McInnes (University of Western Ontario). Other sessions include international business law, and recent developments in real security, in commercial law, in tax law, and in corporate and securities law. For details please contact Prof David Stevens, . Lionel >From charles.mitchell@kcl.ac.uk Fri Sep 24 15:31:37 1999 Received: from mail.kcl.ac.uk ([137.73.66.6] ident=root) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11UWNt-0006s4-00 for restitution@maillist.ox.ac.uk; Fri, 24 Sep 1999 15:31:37 +0100 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.3/8.9.3) with SMTP id PAA08079 for ; Fri, 24 Sep 1999 15:30:31 +0100 (BST) Message-Id: <1.5.4.32.19990924142008.00684284@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk (Unverified) X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Date: Fri, 24 Sep 1999 15:20:08 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Bank of America v Arnell, 28 July 1999, Commercial Ct, Aikens J, contains several points of interest. A counterfeit cheque for US$97K made payable to a company controlled by D1 was presented to the claimant bank, which cleared the funds through the Bankers' Trust New York, and the company's bank then credited its account to the tune of =A356K. D1 then caused the company to transfer this money through CHAPS to his personal account, withdrew =A330K= in cash from this account, and instructed his bank to credit the D4's account with her bank with the remaining =A326K, which was done, again through= CHAPS. D4 was a social acquaintance of D1 who had agreed without enquiry to help him 'clear' a sum through her bank account. She then withdrew =A325K in= cash and handed it over to him. He then absented himself from the scene. (D2 and D3 were the banks who were joined to obtain disclosure of documents, but against whom no substantive claims were made) The claimant applied for summary judgment against D1, who did not appear and was not represented in the proceedings, for the whole =A356K, and for= judgment against D4 for =A326K. So far as the claim against D1 was concerned, Aikens J was not satisfied that D1 had no arguable defence to a common law claim for MHR, because 'the Bank's "money" or, more accurately, its right to a credit ... became mixed with other funds before it reached his account ...' as it passed through the Bankers' Trust New York and CHAPS clearing systems. Following AGIP, therefore, its claim at common law would inevitably fail. In other words, Aikens J - in an application for summary judgment at any rate - had no desire to engage either with Lionel Smith's argument that both in principle and on authority the common law actually has no problem with mixed accounts - or with his argument in Restitution and Banking Law Chap 8 that there is no need to trace through bank clearing systems in EFT cases because all one needs is a causal connection between a debit to P and a credit to D. Take a bow, Lionel, and drop a line (or two) to counsel. Except that he won't be interested, because the prospects of an appeal seem pretty remote, and the Bank won on its second argument - namely, that D1 had no arguable defence to a proprietary claim. This was put in 3 ways - the first relied on Chase Manhattan for the proposition that 'if a claimant paid away money by mistake then any recipient (subject to defences) held the money or its product or substitute on trust, whether or not he knew of the mistake at the time that he received it' - this was rejected as 'on a summary judgment application where I have not had argument from D1, who might well have submitted that Chase Manhattan was wrongly decided, I am not prepared to accept, in the light of Lord B-W's critique [in Westdeutsche], that it is still good law.' The second argument relied on was - you've guessed it - that D1 knew of the clamant's mistake when his account was credited and that following Lord B-W's 'explanation' of Chase Manhattan in Westdeutsche he therefore held the funds on trust for the claimant. Aikens J accepted this, as although there was no direct evidence of D1's state of mind to work with, the only possible inference to be drawn from his behaviour on the facts was that he had been dishonest, with the result that his conscience was affected and a trust= arose. The third argument, which also succeeded, was that D1 had acted in breach of fiduciary duty to the company when he caused it to transfer the funds out of its account and into his personal account. I am quite unable to see why a breach of fiduciary duty to the company should have been capable of generating a proprietary interest in favour of the bank, and Aikens J does not explain the thought processes which led him to this conclusion. So far as D4 was concerned, the bank lost. She was not a constructive trustee of the money simply because it was paid by mistake and she ultimately received it, and she had no knowledge of the bank's mistake sufficient to bring a trust into being before she paid it over to D1. Nor could she be liable for MHR, because of the tracing problem which kiboshed the MHR claim against D1 as well. Nor was she a knowing recipient, as following Twinsectra v Yardley (CA, 28 April 1999) the test for liability nowadays is dishonesty, and on the facts she was not dishonest. The move here and in Twinsectra (which is also an interesting case) towards dishonesty as the test for recipient liability seems to strengthen the hand of those who prefer to see this type of liability as wrong-based. Aikens J seems to have had no trouble with the idea that it is possible to trace in equity through bank clearing systems with a view to asserting a proprietary claim to traceable proceeds at the end of the process, but as was discussed at the recent SPTL Restitution section meeting, it would be nice if the courts would spell out for us in cases like this why they think that a claimant such as the bank in the present case starts off with a proprietary right sufficient to form the basis of a proprietary claim, when all it had at the beginning of the story was a personal right of action against Bankers' Trust New York. ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 King's College London Strand LONDON WC2R 2LS tel: 0171 848 2290 fax: 0171 848 2465 e-mail: charles.mitchell@kcl.ac.uk >From charles.mitchell@kcl.ac.uk Mon Sep 27 10:01:37 1999 Received: from mail.kcl.ac.uk ([137.73.66.6] ident=root) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11VWfA-00064L-00 for restitution@maillist.ox.ac.uk; Mon, 27 Sep 1999 10:01:36 +0100 Received: from pc231.kcl.ac.uk (pc187.law.kcl.ac.uk [137.73.78.187]) by mail.kcl.ac.uk (8.9.3/8.9.3) with SMTP id KAA19939 for ; Mon, 27 Sep 1999 10:00:22 +0100 (BST) Message-Id: <1.5.4.32.19990927084956.006a2bb0@law-mail.kcl.ac.uk> X-Sender: stty2277@law-mail.kcl.ac.uk X-Mailer: Windows Eudora Light Version 1.5.4 (32) Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 27 Sep 1999 09:49:56 +0100 To: restitution@maillist.ox.ac.uk From: Charles Mitchell Subject: Bank of America v Arnell In response to my last e-mail, Paul McGrath, counsel for the bank, has written to say that the case is to be reported in the Lloyds Law Reports: Banking, October edition. Leave to appeal is currently being sought from CA, only (at present) on the question of what is the proper level of knowledge for knowing receipt (ie claims against D4). However, since Aikens J dismissed the MHR claim against D4 on the basis of the same tracing argument which formed the basis of his dismissal of the MHR claim against D1 (a point on which counsel did not have the opportunity to address him), it might perhaps be worth raising Lionel Smith's arguments on this issue as against D4 as well - although I would imagine that a claim for MHR against D4 (assuming the tracing point was got out of the way) would be met either by a defence of ministerial receipt, or a Portman v Hamlyn Taylor Neck-type non-enrichment argument. Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 0171 848 2290 fax: 0171 848 2465 e-mail: charles.mitchell@kcl.ac.uk >From lionel.smith@law.oxford.ac.uk Tue Sep 28 09:32:20 1999 Received: from oxmail4.ox.ac.uk ([163.1.2.33] helo=oxmail.ox.ac.uk) by bagpuss.oucs.ox.ac.uk with esmtp (Exim 2.02 #2) id 11VsgO-0002NN-00 for restitution@maillist.ox.ac.uk; Tue, 28 Sep 1999 09:32:20 +0100 Received: from sable.ox.ac.uk ([163.1.2.4]) by oxmail.ox.ac.uk with esmtp (Exim 2.10 #1) id 11VsfV-0004Pc-00; Tue, 28 Sep 1999 09:31:25 +0100 Received: from fellow22.sthughs.ox.ac.uk ([163.1.228.82]) by sable.ox.ac.uk with esmtp (Exim 2.12 #1) id 11VsfU-0006mx-00; Tue, 28 Sep 1999 09:31:24 +0100 Mime-Version: 1.0 X-Sender: lawf0014@sable.ox.ac.uk Message-Id: In-Reply-To: <1.5.4.32.19990924142008.00684284@law-mail.kcl.ac.uk> References: <1.5.4.32.19990924142008.00684284@law-mail.kcl.ac.uk> Date: Tue, 28 Sep 1999 09:30:29 +0000 To: restitution@maillist.ox.ac.uk, simon.gardner@law.ox.ac.uk From: Lionel Smith Subject: Trusts proliferate? Content-Type: multipart/alternative; boundary="============_-1273611465==_ma============" --============_-1273611465==_ma============ Content-Type: text/plain; charset="us-ascii" ; format="flowed" Charles Mitchell wrote, of the judgment in Bank of America v Arnell, >The third argument, which also succeeded, was that D1 had acted in breach of >fiduciary duty to the company when he caused it to transfer the funds out of >its account and into his personal account. I am quite unable to see why a >breach of fiduciary duty to the company should have been capable of >generating a proprietary interest in favour of the bank, and Aikens J does >not explain the thought processes which led him to this conclusion. A similar mode of proprietary recovery has recently appeared or been confirmed (although I don't think it solves the mystery alluded to by Charles). In Jyske Bank (Gibraltar) Ltd v Spjeldnaes (29 July 1999) the CA, interpreting the Rolled Steel case [1986] Ch 246, considered the effect of a disposition by a company brought about by its managing director in breach of fiduciary duty (assuming that the disposition is not ultra vires). It was held (as I understand it) that such a transaction cannot be voidable. It may be valid if the outsider can rely on ostensible authority, or if the company ratified the excess of authority. But it was said that in a case where the outsider knew of the want of authority in the md, not only was the transaction void but the property transferred under it was held in trust for the company by the outsider. So a fortiori where (as in Charles' case) the outsider transferee and the insider director were the same person. (It still does not solve Charles' mystery because the Jyske claim benefits the company.) Of course the voidness of the contract does not logically entail the voidness of the conveyance (Westdeutsche), but if (quite unlike Westdeutsche) the voidness of the contract arises through the combination of (a) lack of authority in the agent to make it and (b) knowledge by the other party of that lack, then it kind of makes sense that the conveyance should be void as well, since the same features apply to it (assuming of course what is almost certainly true, that there is as much lack of authority for the conveyance as for the contract). If this is correct then (at least as to the asset initially transferred, rather than its proceeds) we are not in the realm of unjust enrichment but of the retention by the company of its pre-existing rights. Personally I would want to ask whether, if the conveyance is to be void, the original asset transferred might actually be held at law by the company; but in most cases the transfer will be converted into proceeds, which would then be held in trust. In payments of money via banks this will happen in the initial transfer itself. Both Twinsectra and Jyske Bank consider whether one can sue to enforce an agreement (or security given thereunder) while still maintaining against another party that the transaction is void (and not ratified) or voidable. Both seem to say it is possible, taking a strong view of the power of election between remedies. In Jyske Bank, enforcing security for transactions in the form of loans was said not to amount to ratifying them as loans, so that the plaintiff could still sue in knowing receipt and knowing assistance, and could claim the traceable proceeds as trust money. In Twinsectra it was said (para 99) "the distinction of importance here is that between non-consensual transfers and transfers pursuant to contracts which are voidable for misrepresentation. In the latter case, the transferor may elect whether to avoid or affirm the transaction and, until he elects to avoid it, there is no constructive (resulting) trust; in the former case, the constructive trust arises upon the moment of transfer. The result, so far as third parties are concerned, is that, before rescission, the owner has no proprietary interest in the original property; all he has is the "mere equity" of his right to set aside the voidable contract." but then at para 113 it was said, as I read it, that you can keep open your election as to avoidance even after you have sued to judgment in contract on the transaction. Finally the judgment in Jyske Bank can be seen as supporting Simon Gardner's argument ((1996) 112 L.Q.R. 56) that despite the attempt along these lines in Royal Brunei, it is impossible to decide whether a defendant has been dishonest without considering the defendant's knowledge. Less certain on this point was the CA in Three Rivers DC v Bank of England (1999) 11 Admin LR 281, applying Royal Brunei to the dishonesty element of one way of committing the tort of misfeasance in public office. There it was said that dishonesty and knowledge are in a relationship like unto chicken and egg. But surely while you need knowledge for dishonesty, you do not need dishonesty to have knowledge ... Lionel --============_-1273611465==_ma============ Content-Type: text/enriched; charset="us-ascii" Charles Mitchell wrote, of the judgment in Bank of America v Arnell, The third argument, which also succeeded, was that D1 had acted in breach of fiduciary duty to the company when he caused it to transfer the funds out of its account and into his personal account. I am quite unable to see why a breach of fiduciary duty to the company should have been capable of generating a proprietary interest in favour of the bank, and Aikens J does not explain the thought processes which led him to this conclusion. A similar mode of proprietary recovery has recently appeared or been confirmed (although I don't think it solves the mystery alluded to by Charles). In Jyske Bank (Gibraltar) Ltd v Spjeldnaes (29 July 1999) the CA, interpreting the Rolled Steel case [1986] Ch 246, considered the effect of a disposition by a company brought about by its managing director in breach of fiduciary duty (assuming that the disposition is not ultra vires). It was held (as I understand it) that such a transaction cannot be voidable. It may be valid if the outsider can rely on ostensible authority, or if the company ratified the excess of authority. But it was said that in a case where the outsider knew of the want of authority in the md, not only was the transaction void but the property transferred under it was held in trust for the company by the outsider. So a fortiori where (as in Charles' case) the outsider transferee and the insider director were the same person. (It still does not solve Charles' mystery because the Jyske claim benefits the company.) Of course the voidness of the contract does not logically entail the voidness of the conveyance (Westdeutsche), but if (quite unlike Westdeutsche) the voidness of the contract arises through the combination of (a) lack of authority in the agent to make it and (b) knowledge by the other party of that lack, then it kind of makes sense that the conveyance should be void as well, since the same features apply to it (assuming of course what is almost certainly true, that there is as much lack of authority for the conveyance as for the contract). If this is correct then (at least as to the asset initially transferred, rather than its proceeds) we are not in the realm of unjust enrichment but of the retention by the company of its pre-existing rights. Personally I would want to ask whether, if the conveyance is to be void, the original asset transferred might actually be held at law by the company; but in most cases the transfer will be converted into proceeds, which would then be held in trust. In payments of money via banks this will happen in the initial transfer itself. Both Twinsectra and Jyske Bank consider whether one can sue to enforce an agreement (or security given thereunder) while still maintaining against another party that the transaction is void (and not ratified) or voidable. Both seem to say it is possible, taking a strong view of the power of election between remedies. In Jyske Bank, enforcing security for transactions in the form of loans was said not to amount to ratifying them as loans, so that the plaintiff could still sue in knowing receipt and knowing assistance, and could claim the traceable proceeds as trust money. In Twinsectra it was said (para 99) Geneva"the distinction of importance here is that between non-consensual transfers and transfers pursuant to contracts which are voidable for misrepresentation. In the latter case, the transferor may elect whether to avoid or affirm the transaction and, until he elects to avoid it, there is no constructive (resulting) trust; in the former case, the constructive trust arises upon the moment of transfer. The result, so far as third parties are concerned, is that, before rescission, the owner has no proprietary interest in the original property; all he has is the "mere equity" of his right to set aside the voidable contract." but then at para 113 it was said, as I read it, that you can keep open your election as to avoidance even after you have sued to judgment in contract on the transaction. Finally the judgment in Jyske Bank can be seen as supporting Simon Gardner's argumentGeneva ((1996) 112 L.Q.R. 56) that despite the attempt along these lines in Royal Brunei, it is impossible to decide whether a defendant has been dishonest without considering the defendant's knowledge. Less certain on this point was the CA in GenevaThree Rivers DC v Bank of England (1999) 11 Admin LR 281, applying Royal Brunei to the dishonesty element of one way of committing the tort of misfeasance in public office. There it was said that dishonesty and knowledge are in a relationship like unto chicken and egg. But surely while you need knowledge for dishonesty, you do not need dishonesty to have knowledge ... Lionel --============_-1273611465==_ma============--