Land claims rul­ing

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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.”

Photo: Sup­plied

Po­lice in­spect­ing an area near Ped­die, where two bod­ies were found on Mon­day .

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