Land matters and rural development : 2018

• Record Number: sapr1_v34_n1_a6
• Published date: 03 December 2019
• Author: Willemien Du Plessis,Ebrezia Johnson,Juanita M. Pienaar
• Pages: 1-32
• DOI: 10.10520/EJC-19c168d982
• Date: 03 December 2019

Commentary

Southern African Public Law

https://doi.org/10.25159/2522-6800/5640

https://upjournals.co.za/index.php/SAPL

ISSN 2219-6412 (Print) | 2522-6800 (Online)

Volume 34 | Number 1 | 2019 | #5640 | 32 pages

© Unisa Press 2019

Land Matters and Rural Development: 2018

Juanita M Pienaar

University of Stellenbosch

jmp@sun.ac.za

Willemien du Plessis

http://orcid.org/0000-0002-0907-5063

North-West University

willemien.duplessis@nwu.ac.za

Ebrezia Johnson

University of Stellenbosch

ebrezia@sun.ac.za

General

The year 2018 will be known as a period of emotionally loaded debates on the

expropriation of land without compensation. The public were invited to submit

comments on the amendment of section 25 of the Constitution of the Republic of South

Africa, 1996, and public hearings were held all over the country.

1

There were allegations

that the public hearings were hijacked by political parties and that the ordinary people

never really had a chance to voice their concerns, but reports seem to differ in this

regard.

2

The Constitutional Review Committee of Parliament, at the request of the

National Assembly and National Council of Provinces, released a ‘Draft Report on the

Possible Review of Section 25 of the Constitution’ on 15 November 2018. This report

summarised the views that emerged from the public hearings and the written comments.

The president subsequently appointed a committee to draft an amendment to section 25

and to the Expropriation Act 63 of 1975.

There was not much time left for parliament to pass new Bills before the elections in

2019; accordingly, second versions of Bills on land-related issues were also published

in 2018. If the Bills were not passed before the elections, they would have to be dealt

with from scratch by the newly elected parliament and its committees. The courts also

1

Draft Report on the Possible Review of Section 25 of the Constitution, released 15 November 2018,

para 1. See the discussion of expropriation later in this note.

2

See eg C Collison, ‘“Yes to Expropriation” the General Feeling at Upington Public Hearings’ Mail &

Guardian (28 June 2018); Anon, ‘Land Reform: Farmers Warn of Econo mic Collapse’ Legalbrief

Today (29 June 2018); M Dayimani, ‘“The Land was Stolen”: Derek Hanekom Backs “Justified”

Expropriation’ TimesLive (16 August 2018).

2

dealt with various issues pertaining to land, land legislation and customary law—

including the remnants of pre-1994 land legislation—with the courts generally siding

with the most vulnerable members of society.

In this note, the most important legal measures and court decisions pertaining to the

three legs of land reform (restitution, redistribution and tenure reform), as well as

unlawful occupation, housing, land-use planning, deeds and sectional titles are

discussed.

3

Land Restitution

The land-restitution process embodied in the first round of claims has been nearing

finalisation. Most provinces published approximately 60 notices in the preceding year.

4

It seems that the more complex land claims that still need finalisation. In Cape Town,

the District Six issue has still not been finalised and new notices are still being

published.

5

The budget to give effect to the restitution process in District Six was given

to the Western Cape government.

6

In Limpopo, North West and Mpumalanga, claims

pertain to mining land,

7

while in these provinces, KwaZulu-Natal and the Eastern Cape,

land has been claimed in game and nature reserves.

8

In North West, a land claim notice

refers to Kroondal, a German missionary station that was established in 1843. In 1858

the land was registered in the name of Van Helsdingen.

9

Such a land claim will fall

outside the 1913 cut-off date. It is not clear whether the Gauteng–North West office

entertains claims that originated before 1913 or whether the research into the claim has

been completed.

The Restitution of Land Rights Amendment Bill (B19B-2017), introduced in parliament

during September 2018, will repeal the Restitution of Land Rights Amendment Act 15

3

This note includes a selection of literature, legislation and court decisions published in the period 31

March 2018 to 30 November 2018.

4

Western Cape (65 notices); KwaZulu-Natal (50 notices, 6 amendment notices and 2 withdrawals);

Mpumalanga (103 notices and 7 amendment notices); Mpumalanga (67 notices); Limpopo (65 notices

and 5 amendment notices); Eastern Cape (67 notices); Northern Cape (3 notices and 4 amendment

notices); Gauteng and North West (22 notices and 2 withdrawals).

5

See eg GG 41887 (7 September 2018) GN 539. In August 1 000 of 70 000 claims were still

outstanding—see D Chambers, ‘District Six Restitution Logjam Broken‚ Says Gleeful DA’ TimesLive

(21 August 2018). There is, however, still confusion as to who represents the District Six community—

Anon, ‘Litigation: Confusion over District Six Claimants' Representatives’ Leg albrief (10 September

2018).

6

ibid.

7

See eg GG 42053 (23 November 2018) GN 1289; GG 41473 (2 March 2018) GN 167; GG 41903 (14

September 2018) GN 946; GG 42037 (16 November 2018) GN 1250.

8

See eg claim for land in the Addo Elephant Park ( GG 41667 (1 June 2018) GN 550; Nylsvley ( GG

42068 (30 November 2018) GN R1311; Mkambathi Nature Reserve (GG 41456 (23 February 2018)

GN 133; Game reserves KwaZulu-Natal (eg GG 42068 (30 November 2018) GN 740, 749.

9

GG 41903 (14 September 2018) GN 946. See also SAHistory Online, ‘Kroondal, Rustenburg’

<https://www.sahistory.org.za/places/kroondal> accessed 15 December 2018.

3

of 2014 that was declared unconstitutional in 2016. The Court found that the National

Council’s public-participation process had been unreasonable and was therefore

invalid.

10

The Bill proposes to amend the cut-off date for the lodging of claims, by proposing a

date five years after the commencement of the Amendment Act.

11

This will enable

claimants who did not make the cut-off date in 1998 and those who were subjected to

betterment schemes and homeland consolidations also to lodge claims.

Section 6(1A) of the Act, which provides for a National Land Restitution Register has

been amended to refer to land-restitution claims lodged from 1 July 2014, the previous

commencement date of the 2014 Amendment Act. In terms of the amendment, the

register will be open to the public and subject to the Promotion of Access to Information

Act 2 of 2000; land claims will be published in the Government Gazette as well as in

provincial and national media.

12

Section 16A now provides for the processing of claims to ensure that ‘old claims’ are

finalised before any new claims are submitted. The Chief Land Claims Commissioner

will have to certify in writing that a claim has been finalised or referred to the Court.

They must also publish the date on which the Commission will start to process land

claims lodged from 1 July 2014 until 28 July 2016 in terms of the Restitution of Land

Rights Amendment Act of 2018. In this investigation the Commission may also consider

the merits of claims lodged before or on the 1998 cut-off date. The undue influence of

a person not to lodge a claim or the institution of a fraudulent claim are now offences

under the Act.

13

The amendment will also allow for claims to be prioritised.

Furthermore, the amendment aims to regulate the appointment, tenure of office,

remuneration and conditions of service of judges of the Land Claims Court. The

Minister’s power of delegation has also been extended.

Court Decisions

A critical judgment providing guidelines regarding historical or oral evidence in

restitution cases was handed down by the Constitutional Court in Salem Party Club v

Salem Community.

14

The application was for leave to appeal against a judgment of the

Supreme Court of Appeal (SCA), Salem Party Club v Salem Community.

15

The first

applicant, Salem Party Club, is a voluntary association that governs the recreational

facilities of Salem, whereas the first respondent is the Salem community, the claimants,

10

Land Access Movement of South Africa & Others v Chairperson of the National Council of Provinces

& Others 2016 (5) SA 635 (CC).

11

Section 2(1)(e) amended by clause 1.

12

Section 11(1) to be amended.

13

Section 17(1)(e) and (2) to be amended.

14

(CCT26/17) [2017] ZACC 46 (11 December 2017).

15

[2017] 1 All SA 712 (SCA)