Land matters and rural development : 2016(2)

• Published date: 01 January 2016
• Pages: 1-29
• Record Number: sapr1_v31_n2_a6
• Author: Nic Olivier,Willemien Du Plessis,Juanita Pienaar
• DOI: 10.10520/EJC-c6c36645d
• Date: 01 January 2016

1

https://doi.org/10.25159/2522-6800/3377

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

© Unisa Press 2017

Southern African Public Law

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

Volume 31 | Number 2 | 2016 | #3377 | 29 pages

COMMENTARY

LAND MATTERS AND RURAL DEVELOPMENT:

2016 (2)

Juanita Pienaar

Stellenbosch University

jmp@sun.ac.za

Willemien du Plessis

North-West University, Potchefstroom

willemien.duplessis@nwu.ac.za

Nic Olivier

North-West University, Potchefstroom

oliviern@mweb.co.za

GENERAL

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

to restitution, land redistribution, land reform, unlawful occupation, housing, land-use

planning, deeds, surveying, rural development and agriculture are discussed.1

LAND RESTITUTION

Notices

The number of notices published in terms of the Restitution of Land Rights Act 22

of 1994 (Restitution Act) increased substantially during the reporting period. It is not

possible to distinguish whether the claims are new claims due to the amendment of

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

31 May 2016 to 30 November 2016.

2

Pienaar et al. Land Matters

the Act and submitted before the Constitutional Court’s (CC) decision (see section 2.2

below) or whether the Commissioners are still trying to nalise outstanding claims. On

31 March 2016 there were still 7 419 old land claims (of which 2 763 required research)

outstanding.2 It is disconcerting that such a large number of claims has never been

published previously in the Government Gazette since the claims were submitted eighteen

years ago. The Deputy Chief Commissioner of the Commission on the Restitution of

Land Rights (CRLR) informed the Portfolio Committee that no new claims would be

received or processed after 27 July 2016. By 13 July 2016, 161 052 new claims had

been lodged in accordance with the provisions of the Amendment Act.3 The CRLR

submitted its Annual Report 2015/16 to the Portfolio Committee on 12 October 2016.4 It

indicated that a policy had been drafted to ensure that the non-nalised claims lodged by

31 December 1998 would be prioritised for processing, settlement and implementation.

Case Law

In Land Access Movement of South Africa v Chairperson of the National Council

of Provinces5 the Restitution of Land Rights Amendment Act 15 of 2014, which

commenced on 1 July 2014, was found to be unconstitutional. The necessity of the

restitution programme and its aims and objectives are alluded to in the introductory

paragraphs of the unanimous judgment handed down by Madlanga J. This background

is relevant, because it underlines the importance of the restitution programme generally

and the Amendment Act in particular. While the submission date for lodging claims

was set at 31 December 1998, the Amendment Act provided for a second wave of land

claims to be lodged, with a new deadline set at 30 June 2019.6 The constitutionality

challenge deals with procedural defects, namely (a) that the re-opening of land claims

would gravely prejudice claimants who had led their claims by the original date but

whose claims remained unresolved; and (b) that section 6(1)(g) of the Amendment Act,

which provides that ‘priority will be given’ to claims lodged in 1998, was impermissibly

vague and thus failed to protect the interests of existing claimants.7

2 Parliamentary Monitoring Group (PMG), ‘Portfolio Committee on Rural Development and Land

Reform Meeting: Communal Property Associations Performance; Constitutional Court Judgment:

Implications for Commission on Restitution of Land Rights; with Deputy Minister’ (PMG, 7 September

2016) <https://pmg.org.za/committee-meeting/23228/> accessed 7 October 2017.

3 PMG (n 2).

4 Commission on the Restitution of Land Rights, ‘Annual Report 205/16’ (PMG, 12 October 2016)

<http://pmg-assets.s3-website-eu-west-1.amazonaws.com/crlr_annual_report_2015-16_cd.pdf>

accessed 7 October 2017.

5 Land Access Movement of South Africa v Chairperson of the National Council of Provinces 2016 (5)

SA 635 (CC).

6 Land Access Movement of South Africa (n 5) at paras 8–11 regarding the reopening of a land claims

process.

7 Land Access Movement of South Africa (n 5) at para 4.