Land claims ruling
The Land Claims Court handed down a judgment on 17 November that has brought clarity to adjudicating competing land claims, and new urgency to the resolution of existing land claims by the Department of Land Reform and Rural Development and the Commission on Restitution of Land Rights.
The Land Claims Court said: “The need to dispose of old claims as expeditiously as possible… is manifestly indisputable.”
The court found that, in the instance of competing land claims where one land claim was made before the end of 1998 under the Restitution of Land Rights Act 22 of 1994, and the other under its Amendment of 2014, which re-opened the land claims process, the court cannot adjudicate or consider the new claim at all.
Parliament or, after two years, the Constitutional Court, must produce the legislation that will deal with new claims preserved under the ruling of the Constitutional Court on 28 July this year.
The Land Claims Court found that new claimants who are contesting old claims can be admitted as interested parties only to the extent that their participation may contribute to the establishment of rejection of the old claim. New claimants cannot get compensation or land before there is new legislation.
The Legal Resources Centre represented the amici curiae: Land Access Movement of South Africa (Lamosa), Nkuzi Development Association (Nkuzi) and the Association for Rural Development (Afra), as well as three communal property associations, Makuleke, Moddervlei and Popela: “We had been invited by the court to make applications to be admitted as amici curiae. We are pleased to note that the submissions made by our clients assisted the court to come to its conclusion,” said the LRC in a statement.
This ruling comes after the Constitutional Court declared the Restitution of Land Rights Amendment Act 2014 invalid on 28 July this year. The challenge to the Amendment Act was brought by the organisations and bodies represented by the LRC.
The Amendment Act was challenged on the basis that Parliament and the Provincial Legislatures had failed to comply with their constitutional obligation to facilitate public involvement before passing the Amendment Act.
When declaring the Amendment Act invalid, the Constitutional Court found that extinguishing land claims made under the Amendment Act would be prejudicial and unfair to new claimants. It allowed new claims to continue to exist pending action by Parliament to re-enact the Amendment Act, or for the Constitutional Court to do so, if Parliament does not.
The Constitutional Court order did not expressly deal with the powers of the Land Claims Court in relation to the pending new order claims, but the ruling in the Land Claims Court today has brought clarity to this.
The Amaqamu and Emakhasaneni communities had both lodged land claims for land in Camperdown. This competing land claim, in which one community lodged a land claim under the old act and the other under the Amendment Act, presented an opportunity for the Land Claims Court to decide how it should proceed with adjudicating land claims in the future.
The court found that, “(t)he (Constitutional Court) Order preserves the priority that should be given to the finalisation of old claims, as set out in the judgment in par [89]*.
The intention is obvious that old claims must be dealt with before the new claims are considered. This express intention is correctly relied upon by the Lamosa amici to support the argument that this Court cannot adjudicate new claims until Parliament or the Constitutional Court has addressed the problem. The need to dispose of old claims as expeditiously as possible, which the amici underlined, is manifestly indisputable”.
“The LRC is pleased with the findings of the Land Claims Court which brings certainty to the process of dealing with competing old and new land claims.
“This ruling will assist in ensuring that those land claimants who have been waiting since 1998 for their land claims to be processed, will not be prejudiced by the increased burden that was placed on the existing institutions tasked with processing land claims by the reopening of the land claims process.
“There is now no excuse for the commission and the department not to finalise the 6000-odd old land claims that have not as yet been researched or gazetted. Nor can there be valid excuses for not finalising about 20 000 partially settled claims, or where there are outstanding purchases or land transfers.”
* Paragraph 89 states that it is just and equitable to “interdict the settlement, and referral to the Land Claims Court, of all new claims, whether competing with the old or not.”