Land Matters and Rural Development: 2020

• Author: Willemien Du Plessis,Ebrezia Johnson,Juanita M. Pienaar
• DOI: 10.25159/2522-6800/10469
• Published date: 01 December 2021
• Date: 01 December 2021
• Pages: 1-21

Commentary

Southern African Public Law

https://doi.org/10.25159/2522-6800/10469

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

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

Volume 36 | Number 2 | 2021 | #10469 | 21 pages

© Unisa Press 2022

Land Matters and Rural Development: 2020

Juanita M Pienaar

http://orcid.org/0000-0002-7671-0821

University of Stellenbosch

jmp@sun.ac.za

Willemien du Plessis

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

North-West University

willemien.duplessis@nwu.ac.za

Ebrezia Johnson

University of Stellenbosch

ebrezia@sun.ac.za

Abstract

Covid-19 had a profound impact on South Africa, not only in relation to its

health system but also in relation to matters such as access to land and adequate

housing. This note discusses, amongst other, the case law focusing on evictions

and housing reported during 2020. The note also indicates that restitution

remains a complex matter that is not going to be resolved soon. The proposed

2020 amendments to the Constitution of the Republic of South Africa, 1996 and

the proposed Expropriation Bill are further analysed. The proposed amendment

legislation in relation to upgrading of land rights to give effect to Constitutional

Court decisions is referred to. This note includes the most important 2020 land

reform developments pertaining to section 25 of the Constitution and

expropriation, land restitution, land reform legislation, unlawful occupation,

housing, deeds, sectional titles land redistribution and rural development.

Keywords: Land reform; redistribution; tenure reform; restitution; Khoi-San and

African customary law; land rights; unlawful occupation of land and

eviction; access to housing

Pienaar, Du Plessis and Johnson

2

General

The year 2020 will be remembered for the devastating effects of the Covid-19 virus and

the eventual lockdown. However, the virus also brought to the fore the inequalities still

existing in South African society. During this period, the courts had to deal with

evictions that were undertaken in the lockdown period and the right to housing. The

expropriation debate and the amendment of section 25 of the Constitution of the

Republic of South Africa, 1996 (Constitution) continued. The complexity of land claims

is illustrated where overlapping claims of communities led to the revoking of former

formal restitution of land. A traditional council and community were barred from

allocating claimed land to non-claimants, and in another case, it was made clear that a

court cannot amend an existing land claim to add new claimants.

An Upgrading of Land Tenure Rights Amendment Bill [B6B-2020] (Upgrading Bill)

was introduced in parliament to give effect to two court decisions that declared some of

the sections of the Upgrading of Land Tenure Rights Act 112 of 1991 (Upgrading Act)

unconstitutional. In the meantime, the courts still had to deal with issues raised in terms

of the 1991 Act.

The Traditional and Khoi-San Leadership Act 3 of 2019 was put into operation.

However, the Act is silent on how traditional leaders and their councils have to deal

with land matters.

The aim of this note is to highlight some of the land-related issues that emerged in 2020.

In this note, section 25 of the Constitution and expropriation, restitution, land reform

legislation, the Extension of Security of Tenure Act 62 of 1997 (ESTA), unlawful

occupation and eviction, housing, and land redistribution are discussed.

Section 25 of the Constitution and Expropriation

The review process that was embarked on in 2018 relating to section 25 of the

Constitution continued throughout 2020, specifically focusing on the expropriation of

land with nil compensation. In December 2019, the Draft Constitution Eighteenth

Amendment Bill

1

was published for comment. However, due to the onset of the Covid-

19-pandemic and the corresponding regulations issued under section 27(2) of the

Disaster Management Act 57 of 2002, various processes were suspended, including

public hearings. The term of the review committee furthermore expired, necessitating

the committee to be re-constituted on 1 July 2020. Public hearings resumed in the

second half of 2020, aiming to reach the deadline of 31 December 2020 to table a revised

section 25. As it happens, that deadline was again extended to 31 May 2021 and again

to 30 August 2021. At the time of writing, the process had not been concluded yet.

1

GG 42902 (13 December 2019) GN 652.