Land matters and rural development : 2017 (2)

• Author: Nic Olivier,Juanita M. Pienaar,Ebrezia Johnson,Willemien Du Plessis
• DOI: 10.10520/EJC-13bd8f20d0
• Published date: 01 December 2018
• Date: 01 December 2018
• Record Number: sapr1_v33_n2_a8
• Pages: 1-26

Southern African Public Law

https://doi.org/10.25159/2522-68 00/3600

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

ISSN 2522-6800 (Online)

Volume 33 | Number 2 | 2018 | #3600 | 26 pages

© Unisa Press 2018

Commentary

Land Matters and Rural Development: 2017 (2)

Juanita M Pienaar

University of Stellenbosch

jmp@sun.ac.za

Ebrezia Johnson

University of Stellenbosch

ebrezia@sun.ac.za

Willemien du Plessis

North-West University

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

willemien.duplessis@nwu.ac.za

Nic Olivier

North-West University

oliviern@mweb.co.za

General

The Gauteng High Court declared section 2(1) of the Upgrading of Land Tenure Rights

Act 112 of 1991 unconstitutional, predating the unconstitutionality from 1994.1 The

Court found that the upgrading excluded women from the upgrading process. However,

Jacobs argues, such a declaration may have unintended consequences because this

judgment, although laudable for its intent to protect a women against eviction, may

result in tenure insecurity for thousands of people who had gained tenure security since

1991.2 She states that

it throws into question the already upgraded land titles, previously issued in terms of t he

above-mentioned proclamation, of vast urban areas within what were the segregated

townships of the apartheid era. This would have immediate effects on property sales,

eviction proceedings and banking finance, to name just a few. Many of the already

upgraded properties have been sold and resold and the historical circumstances of each

property will vary.

1 Rahube v Rahube (101250/2015) [2017] ZAGPPHC 651 (26 September 2017).

2 Nathaniah Jacobs, ‘Rectifying Women’s Land Title Rights’ Mail & Guardian (6 October 2017)

<https://mg.co.za/article/2017-10-06-00-rectifying-womens-land-title-rights> accessed 2 December

2017.

2

This case illustrates but one of the many difficulties that land reform faces in South

Africa and the inadequacy of the courts to deal with tenure issues.3 Legislation, policy

considerations or court decisions with a seemingly correct outcome to rectify the

injustices of the past may have unintended consequences for others, causing more

hardship, or may have policy and financial implications.4 New and old legislation as

well as policy must always be scrutinised for its possible outcomes, however laudable

they may seem at first glance, as is also indicated in this note.

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

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

planning, deeds, surveying, rural development and agriculture are discussed.5

Land Restitution

The Human Rights Commission, the Foundation of Human Rights and three universities

established a National Land Forum in 2017 to develop a ten-point plan to expedite land

restitution.6 The plan deals, among other things, with a human-rights approach to land

reform to reduce red tape, to make the Land Claims Court (LCC) more efficient and to

establish a Land and Economy Convention to address land-reform issues. The forum

addressed many of the issues which have been raised over the years by various non-

governmental organisations (NGOs) and academics, actually since the first Green Paper

on Land Reform was published and which have never been sufficiently addressed. The

critique and comments of the forum must also be seen against the budget constraints of

the Department of Rural Development Land Reform (DRDLR) and its predecessors. In

this regard it can be said that the Commission on the Restitution of Land Rights (CRLR)

has already adopted a new approach to balance ‘the rights of land claimants against

urban land use and development imperatives’ in the light of spatial transformation.7 The

DRDLR continues to introduce novel practices to assist land-reform beneficiaries: for

example, by requesting proposals to help communities not only with their agricultural

practices but also to access agricultural markets.8

3 Also see Mnisi v Chauke & Others: Chauke v Provincial Secretary, Transvaal 1994 (4) SA 715 (T);

Willemien du Plessis, ‘Mnisi v Chauke and Others; Chauke v Provincial Secretary, Transvaal and

Others 1994 4 SA 715 (T)’ (1995) De Jure 453–457.

4 Du Plessis (n 3). Also see Anon, ‘Legislation: Land Right Laws Still Discriminate against Rural

Women’ Legalbrief Today (9 October 2017).

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

March 2017 to 30 November 2017.

6 Quinton Johnson, ‘A 10-point Plan to Accelerate Orderly Land Reform in South Africa’ The

Conversation (25 July 2017) <http://bit.ly/2zDUZUj> accessed 26 July 2017.

7 Anon, ‘Policy: Land Restitution a Tool for Spatial Transformation?’ Legalbrief Today (16 October

2017).

8 GG 41164 (6 October 2017) GN 801.