Land Matters and Rural Development: 2021

• Jurisdiction: South Africa
• Date: 01 December 2022
• Pages: 1-23
• Author: Juanita M Pienaar,Willemien Du Plessis,Ebrezia Johnson
• Published date: 01 December 2022
• DOI: 10.25159/2522-6800/12375

Commentary

Southern African Public Law

https://doi.org/10.25159/2522-6800/12375

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

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

Volume 37 | Number 2 | 2022 | #12375 | 23 pages

© Unisa Press 2023

Published by Unisa Press. This is an Open Access article distributed under the terms of the

Creative Commons Attribution-ShareAlike 4.0 International License

(https://creativecommons.org/licenses/by-sa/4.0/)

Land Matters and Rural Development: 2021

Juanita M Pienaar

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

Stellenbosch University

jmp@sun.ac.za

Willemien Du Plessis

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

North-West University

willemien.duplessis@nwu.ac.za

Ebrezia Johnson

https://orcid.org/0000-0002-1685-6140

Stellenbosch University

ebrezia@sun.ac.za

Abstract

While the report period was dominated by the review process of the property

clause, aimed at enabling the expropriation of land for land reform purposes at

nil compensation, various other important developments occurred in 2021,

dealing with land. Included herewith was the publication of various bills,

dealing inter alia, with the Land Court and housing-related matters; the

publication of the long-awaited Upgrading of Land Rights Amendment Act, as

well as the handing down of critical judgments within the domains of

redistribution, tenure reform and restitution respectively. Given that the review

process did not result in an amended property clause, the underlying difficulties

in land reform continue to be addressed holistically under the extant, unchanged

section 25 of the Constitution.

Keywords: land reform distribution; tenure reform; section 25 of the Constitution;

Land Court Bill; housing; rural development and land reform; unlawful

occupation of land and eviction

Pienaar, Du Plessis and Johnson

2

General

In 2021 the amendment to section 25 of the Constitution of the Republic of South Africa,

1996 (Constitution) did not pass parliamentary muster. However, a Land Court Bill was

introduced to provide for a permanent land court that could adjudicate matters on land

and hopefully expedite land restitution matters, amongst others. Land restitution

remains a contentious issue and various challenges marred the process. The land claims

court had to deal with the interpretation of just and equitable compensation and provides

valuable input in this regard.

Various land reform matters came to the fore. The Interim Protection of Informal Land

Rights Act 31 of 1996 was extended for another year. The Upgrading of Land Tenure

Rights Amendment Act 6 of 2021 gives effect to a Constitutional Court judgment in

relation to permissions to occupy. The mismanagement of communal property

associations hampers this instrument to effect land reform, while the High Court limited

the powers of the Ingonyama Trust. The court had to interpret the interrelationship

between the Extension of Security of Tenure Act 62 of 1997 and the Prevention of

Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Similarly, the

definition of ‘labour tenant’ was re-investigated. The interpretation of these Acts

remains an issue. The courts criticised land grabbing but protected the rights of the

vulnerable that were evicted during Covid-19 as well as living in the inner City of Cape

Town. In relation to housing, regulations, policies and strategies were published, while

the Minister of Rural Development and Land Reform announced additional land reform

programmes.

The aim of this note is to highlight the most important land-related developments in the

course of 2021. In this article, the review process of section 25 of the Constitution, as

well as the Land Court Bill, restitution, matters linked to the Extension of Security of

Tenure Act 62 of 1997 (ESTA), unlawful occupation and eviction, housing, land

redistribution and other relevant land reform legislation, are discussed.

1

Review of Section 25 of the Constitution, the Property Clause

The Draft Constitution Eighteenth Amendment Bill

2

was published for comment in

December 2019, aimed at enabling the expropriation of land at nil compensation for

land reform purposes. Bogged down by the Covid-19 pandemic, the review process took

roughly three years, during which time various amendments to section 25 were put

forward. Apart from the obvious amendment to enable nil compensation in some

instances, further amendments included placing all land under state custodianship (the

1

The word limitation of the journal does not allow an exposition of all applicable 2021 case law. The

note will therefore focus on the discussion of a few notable cases only and provide references to

others.

2

GG 42902 (13 December 2019).