Land matters and rural development: 2015 (1) : case note

• DOI: 10.10520/EJC197696
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 237-265

Land matters and rural development: 2015

(1)

1 General

Government has increased its focus on land reform and several redistribution

programmes have been launched. The re-opening of the land restitution process

in July 2014 has resulted in several new claims being instituted. By 30 January

2015, more than 46 058 claims have been received by the Commission on

Restitution of Land Rights (CRLR) (Department of Rural Development and Land

Reform (DRDLR) ‘Annual Performance Plan 2015/16’ http://bit.ly/1dWfLDT

accessed 3 June 2015). The work of the CRLR has been severely criticised by the

Human Rights Commission and in several court decisions. The annual reports of

the DRDLR to parliament, however, all promise a new dispensation for the CRLR

that would solve several of the challenges that the Commission is experiencing (see

2).

A new land use planning dispensation is foreseen with the introduction of the

Spatial Planning and Land Use Management Act 16 of 2013 that came into

operation on 1 July 2015. The intricacies of the Act and its regulations and its

interaction with other land use and environmental legislation will most probably

lead to interesting litigation (see 5.1). Land use may be complicated further with

the possibility of the introduction of the Preservation a nd Development of

Agricultural Land Framework Act (see the discussion on the draft bill 9.2).

In this note, 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 during the period

April 2014 to May 2015 are discussed.2

2 Land restitution

In November and December 2013 the South African Human Rights Commission

(SAHRC) undertook an investigation into the implementation of the Restitution Act

In this note the most im portant literature, l egislation and court decisions are discussed for the

2

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

238 (2015) 30 SAPL

since 1994 (http://bit.ly/1KO6U1d accessed 3 June 2015). In its presentation

(‘Findings on Systemic Challenges Affecting Land Restitution in South Africa’) to

the Portfolio Committee on Rural Development on 19 November 2014, the

SAHRC emphasised that it did not agree with the submission by the DRDLR that

the CRLR was one of the Department’s branches or units: ‘this is a concern for

the SAHRC as it suggests that the CRLR will not construct its work in a manner

that is impartial to and independent of t he DRDLR’. On 27 May 2015 the CRLR

responded to the SAHRC’s findings and recommendations (http://bit.ly/1HfoBHW;

http://bit.ly/1dos36X accessed 3 June 2015): The CRLR is understaffed, lacks

technical skills, and has inadequate research capacity. In res pect of claims

lodged before the 31 December 1998 cut-off date, there were still 6 691 claims

outstanding in the f inancial year 2014/2015 (of which 1 445 claims were

supposed to have been finalised). On 27 May 2015 there were 8 035 claims that

had not been finalised, of which the 5 152 claims were outstanding (ie, screening

and categorisation had not yet been completed: Eastern Cape – 5; Gauteng –

192; KwaZulu-Natal – 1 134; Limpopo – 254; Mpumalanga – 1976; Nort hern

Cape – 40; North West – 5, and Western Cape – 1034.Of these 5 152 claims, 2

660 would be investigated in 2015/2016.)

The CRLR also indicated that complex claims will have to be outsourced as the

Commission does not have the capacity to deal with these claims, that some files

pertaining to claims lodged before 1998 are lost and that mining rights, although

allocated to communities, did not accrue to those communities despite court

decisions such as the Alexkor Ltd v The Richtersveld Community and Others (2004

5 SA 460 (CC)). The CRLR also raised its concern that the amendments to the

Restitution Act (Restitution of Land Rights Amendment Act 15 of 2014) may

influence the finalisation of the pre-1998 claims as it is foreseen that an additional

397 000 new claims may be lodged. The CRLR will initially only process new claims

that overlap with existing claims. Other challenges include the ‘calculation and

determination of the value of dispossessed land ... following the 2014 Constitutional

Court decision in Florence v Government of the Republic of South (2014 ) SA 456

(CC); 2014 10 BCLR 1137 (CC))’. The Chief Surveyor General’s office also does

not have the capacity to ‘perform historical research work’ and it is not possible to

determine which land is owned by the state despite the state land audit. The

Restitution of Land Rights Amendment Act of 2014 determines that communal

property institutions (CPIs) will no longer be able to own ‘redistributed’ land. The

CRLR argues that the 2014 Act does not intend to have such an effect, and that the

DRDLR minister is obliged to see to it that the land is restored to the community

concerned, with equal access to all community beneficiaries. The CRLR statement

that ‘new claims are only processed with the old if they overlap’ seems strange as

the period for lodgement of new claims only closes on 30 June 2019, and no

determination has been made as yet for the prioritisation of the submission of new

claims in respect of specific geographic areas.