Land matters and rural development : 2014 (2) : journal

• Record Number: sapr1_v29_n2_a19
• Date: 01 January 2014
• Pages: 573-607
• DOI: 10.10520/EJC-7978f7616
• Published date: 01 January 2014

In this note the most important literature, legislation and court decisions are discussed for the

1

period 2014-04-30 to 2014-10-15.

Land matters and rural development:

2014 (2)

1 General

In this note on land, the most important measures, court decisions and literature

pertaining to restitution, land redistribution, land reform, housing, land use

planning, deeds, sectional titles, agriculture and rural development are

discussed.1

2 Land restitution

The Annual Report of the Commission on Restitution of Land Rights 2013 – 2014,

entitled ‘Reversing the Legacy of the 1913 Native’s Land Act’

(http://www.pmg.org.za/report/20140702-land-reform-sector-budget-process-and-

audit-process-analysis-committee-staff-audit or-general-department-rural), states

that 77 610 claims were settled by 31 March 2014; 3.07m hectares were acquired

at R17b, and 1.8m restitution beneficiaries opted for financial compensation

(R8b); R4.1b was provided as development assistance to successful beneficiaries

who opted for land, bringing the total expenditure of the restitution programme to

R29.3b (Annual Report 5). During the Department’s reporting period 270 new

claims (47 rural and 223 urban) claims were settled, and 292 claims which were

previously settled were finalised (Annual Report 6). The 997 outstanding land

claims submitted prior to the initial closing date (31 December 1998) will be

prioritised in 2014 (Annual Report 7; 12). With the reopening of restitution (until

30 June 2019, as determined by the Restitution of Land Rights Amendment Act

15 of 2014), a new electronic lodgement procedure (information in respect of

which will be accessible to the public), as well as fourteen lodgement sites and

nine provincial mobile lodgement units, have been established, and a

communication campaign is to be rolled out (Annual Report 7; see also Citizen’s

Manual: How to Lodge a Land Claim (30 July 2014)).

The Strategic Plan of the Commission on Restitution of Land Rights (CRLR)

2014–19, submitted to the Portfolio Commission on Rural Development and Land

Reform on 2 July 2014 (http://www.pmg.org.za/report/20140702-land-reform-

574 (2014) 29 SAPL

sector-budget-process-and-audit-process-analysis-committee-staff-auditor-

general-department-rural), indicates that the National Development Plan (NDP)

is the guiding framework, whilst sustainable land reform will be a priority also for

restitution initiatives.The strategy of the Commission for Restitution of Land

Rights (CRLR) has three foundations, namely (a) the restoration of land rights

with the view to supporting land reform and agrarian transformation; (b) enabling

the lodgement of claims for the restitution of land in cases where the 31

December 1998 cut-off date was not met; and (c) ‘organisational changed

management’. In terms of the Annual Performance Plan 2014/15 of the

Department of Rural Development a nd Land Re form (DRDLR)

(http://db3sqepoi5n3s.cloudfront.net/files/140702stratplan.pdf), the Minister

indicated that government is not ‘chasing statistics with regards to land restitution

anymore but quality. The four issues that we are concerned about are the

restitution, reform, development, and security of land tenure’ (Annual

Performance Plan 4). The emphasis will be on ensuring that all land reform farms

will be 100% productive, through the implementation of the Recapitalisation and

Development Progr amme (RADP). Inter-sect or and inter-sphere cooper ation and

collaboration will be facilitated, and the service delivery model will be adapted

(Annual Performance Plan 6).

Despite the positive reports and plans of the DRDLR, the South African

Human Rights Commission conducted an investigative hearing into land

restitution matters at the end of 2013 (SAHRC Report of the SAHRC:

Investigative hearing: Monitoring and investigating systemic challenges affecting

land restitution in South Africa (30 July 2014) 45-50). The main findings include

amongst others that there ‘are a significant number of problems’ associated with

the land restitution process that are not related to the Constitution or the legal

framework. The Commission indicated that the roles of the DRDLR and the CRLR

are not clearly defined. They also indicated that the CRLR indicated that one of

the factors that they take into account is that food production should not be

disrupted, but that this factor is not taken into account where mining is involved.

Other challenges include the valuation of land where the historical value of land

is taken into account and not the current value of the land (see also the

discussion of cases that deal with this matter under the Restitution Act). The loss

of mineral rights and the benefits that would have accrued to the community are

also not considered. The Commission raised their concern about the number of

claims outstanding as well as bureaucratic failure in determining the initial number

of claims lodged. It seems that the CRLR experienced capacity problems in doing

the necessary research to finalise the land claims and had to outsource this

function. The Commission stressed the need to expedite the CRLR’s access to

information in government archives and systems. It is also difficult to establish

what a ‘community’ is and who the persons would be that belong to such a

‘community’. The CRLR also has to take post-settlement issues and compen-

Land matters and rural development: 2014 (2) 575

sation into account which make their task even more difficult. It is stressed that

the CRLR will need additional resources to complete the existing land claims

before they would be able to embark on the new land claims process that is re-

opened. The SAHRC also raised concerns about the new land restitution process

and how it may influence existing land claimants (even the successful ones).

To illustrate the complications of the existing land claims, eight beneficiaries

of a group who received land in Sea Point want ‘to reverse its approval of the

R51m sale of their prime Sea Point land.’ The beneficiaries would have divided

the money of the sale amongst them but due to a dispute amongst the

beneficiaries it seems that the deal could be jeopardised (Legalbrief Today 11

November 2014).

2.1 Notices

Various notices were published in terms of the Restitution of Land Rights Act 22

of 1994 for land claims that are still not finalised as set out above (KwaZulu-Natal:

Umlazi and Umbumbulo 1 eac h, Camperdown 2; E astern Cape: Lady Gr ey,

Grahamstown, Stutterheim, Middelburg, Alice, Keiskammahoek, Cala and

Amathole 1 each, East London 7; King Williams Town 3; Stockenstrom 9; Umtata

2; Sterkspruit 10; Humansdorp 18; Western Cape: Vanrhynsdorp, Sandvlei

Macassar, Houtbay/Fish Hoek, Prince Albert, Grabouw, Clanwilliam, Grassy Park,

Kensington, Mossel Bay 1 each, Paarl and Cape Town 2 each, Retreat and

Goodwood 4 each; Limpopo: Sekhukhune, Waterberg, Mopane and Vhembe 1

each; Mpumalanga: Nkangala 9, Gert Sibande 7, Ehlanzeni 2; Northern Cape:

Holpan, Pixley Ka Seme, Gasegonyana, no district 1 each, ZF Mgcawa 2; Free

State: Brandfort 1; Gauteng/North-West: Ekurhuleni 1, Tshwane 2. A few

withdrawals (KwaZulu-Natal 3, Eastern Cape 11, Gauteng/North-West 1 and

Mpumalanga 3) and amendment notices (KwaZulu-Natal 9, Limpopo 5 and

Mpumalanga 12) were published.

Due to all the numerous claims in the Camperdown and Richmond areas in

KwaZulu-Natal and subsequent claims that arose from the amendment to the

Restitution Act two notices were published in the Government Gazette. GN 604

(in GG 37889 of 2014-08-08) stated that all claims in these areas should be

lodged before 14 November 2014 – several existing claims are also listed. GN

605 (in GG 37889 of 2014-08-08) urged claimants to in tervene in land claim

cases that deals with matters pertaining to claims in these two districts and that

are currently before the courts.

2.2 Restitution of Land Rights Amendment Act 15 of 2014

The Restitution of Land Rights Amendment Act 15 of 2014 (Restitution Act),

assented to on 29 June 2014, was published for general informa tion on 1 July

2014 (GN 526 in GG 37791 of 2014-07-01).The land claims process stands to be