Land matters and rural development : 2014(1) : journal

• Author: Willemien Du Plessis,Nic Olivier,Juanita Pienaar
• DOI: 10.10520/EJC162988
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 219-256

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

1

period 2013-09-15 to 2014-04-30.

Land matters and rural development:

2014(1)

1 General

Leading up to the 2014 pre-election period, land reform matters received more

attention than in the preceding two years. The centenary of the 1913 Land Act

also drew attention to the plight of many people who are still living in dismal

conditions (see eg Nxumalo ‘Children who don’t see the sky’ Mail & Guardian

2013-08-23-29) 20). New Bills to speed up the land reform process were

introduced and Parliament approved the Restitution of Land Rights Amendment

Bill [B35B-2013] to allow additional land claims to be lodged until 30 June 2019

(see the discussion infra). The courts also delivered important decisions

pertaining to land restitution, tenure reform and land use planning.

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

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

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

discussed.1

2 Land restitution

Disputes are rife amongst communal property associations (CPAs) and

communities who received land based on restitution claims. One example of such

a dispute is that between the Mameroste and Dikgatlhong communities in North

West who received their land in 2006. The community accuses the CPA of

maladministration and corruption and contends that most of the land earmarked

for agriculture and tourism is unproductive or destroyed. Previously, however, a

commission appointed by the Department of Rural Development and the Public

Protector found that there was no mismanagement of public funds – these

findings are disputed by the community. The case came before the North West

High Court in August 2013 (Dipa ‘Ruined lodge spark s community ire’ Mail &

Guardian (2013-08-23-29) 16).

220 (2014) 29 SAPL

2.1 Notices

Only a few land restit ution notices were publish ed (Wester n Cape: District Six,

Retreat, Goodwood, Worcester, Delft and Mossel Bay 1 each; Claremont 2;

Eastern Cape: Lady Frere, Bizana and Butterworth 2 each, Queenstown and

Matatiele 1 each; Mpumalanga: Nkangala 10, Ehlanzeni 1; Gauteng-North West:

Bojanalo 2, Waterberg 1, Tshwane 17, Mafikeng 1; KwaZulu-Natal: Lower

Umfolozi 2, Pinetown and Shelley Beach 1 each, Rural claims without district

mentioned 4). A number of withdrawal and amendment notices were also

published (amendment notices: KwaZulu-Natal 1, Free State 1, Gauteng-North

West 2, Mpumalanga 6, Western Cape 2, Limpopo 4; withdrawal notices;

KwaZulu-Natal 3, Gauteng-North West 1, Mpumalanga 6, Free State 2, Western

Cape 1).

2.2 Restitution of Land Rights Amendment Bill

Various attempts to amend the Restitution of Land Rights Act 22 of 1994 were

published, which included the first attempt in May 2013 (GN 503 in GG 36477 of

23 May 2013), followed by the Restitution of Land Rights Amendment Bill [B35

of 2013] on 13 September 2013 and the final version [B35B-2013] that was

passed by the National Assembly on 12 March 2014. While the initial Draft Bill

suggested numerous amendments to the formal and legal requirements for

lodging land claims, provided a detailed set of provisions dealing with the

appointment, role and function of judg es in the Land Claims Court (LCC), as well

as suggested amendments to section 33 of the Land Rights Amendment Act 22

of 1994, the September 2013 version of the Bill was watered down rather

drastically. To that end the legal requirements contained in section 2 and the

factors to be considered under section 33 of the Act remained unchanged. The

main amendments incorporated in the September 2013 version dealt with the

appointment, role and function of judges in the LCC and adjusting the formal

requirement for the lodging of land claims. The latter entailed that the deadline

of 31 December 1998 was substituted by a new date constituting 31 December

2018. The latest 2014 version is identical to the September 2013 version except

that an additional period of six months had been added to the submission

deadline. Therefore, the deadline has been substituted to read 30 June 2019. The

main importance of the amendment therefore lies in the reopening of the land

claims process. Concerns raised in the previous discussions regarding the

uncertainty that coincides with the reopening of the claims process, the

administrative and other burdens caused by such an Act and the legal

complexities regarding claims already finalised, though not repeated here, remain

equally valid.

Land matters and rural development: 2014(1) 221

2.3 Case law

Malewa Communal Property Association v Khombindlea Trading 1 CC (Case no

7392/13, delivered on 28 February 2014, North Gauteng High Court, Pretoria)

concerned a lease agreement and its implications for land restitution. In 2010 the

respondent and the second applicant, the Minister of Rural Development and

Land Reform entered into a written lease agreement f or a period of 5 years, until

July 2015. The rental was set at R30 000 per annum, payable before the 7th

month of each year, failing which interest would be charged (para [4]). The first

applicant, the Malewa CPA, lodged a claim on the leased property which was

settled successfully. The property, including the portion leased by the respondent,

was transferred in the names of the first applicant. This all occurred after the

lease agreement, alluded to above, was entered into. At some point the

respondent was in arrears with the rent. After receiving a letter, the respondent

paid the outstanding capital amount, but refused to pay the interest, calling

instead for a breakdown of how the interest was calculated (paras [6]-[7]). While

refusing to pay the interest, the money was indeed deposited in the respondent’s

attorney’s trust account. Instead of providing the required explanation of how

interest was charged, the present application was lodged.

Essentially, the applicants wanted to evict the respondents and on the basis

that the lease agreement was breached, resulting in its cancellation (para [8]).

From the correspondence it became clear that the applicants, (the new

landowners who were successful with the land claim) were never in favour of the

lease agreement and wanted to cancel it. They therefore linked it to the breach

of contract. However, if a breach was not the real problem, then other procedures

would have to be followed. It was clear that the respondents paid all the arrears

and that the only issue outstanding, was the breakdown on how the interest was

calculated. It was thus clear that the respondents intended to respect the lease

agreement and wanted it to remain intact (para [16]) . The respondents could only

be in breach of the contract after the breakdown of the interest calculation had

indeed been provided and they thereafter still refused to pay the interest (para

[18]). In the alternative, the applicants relied on section 11(7) of the Restitution

of Land Rights Act 22 of 1994. This entails that, once a notice had been

published with respect to a parcel of land, no sale, donation, exchange or contract

may be entered into without having informed the Commissioner of the intention

to do so in writing. Even if section 11(7) was breached, the good faith of the

parties would still be considered. At the time the lease was entered into the

respondent had occupied the property with the consent of the then landowner, the

Minister (para [20]). By entering into the lease agreement the Minister wanted to

preserve the value of the property so that the beneficiaries could find it in good

condition. That, according to the court per Kganyago J, was done in good faith.