11 June 2013 by Cliffe Dekker Hofmeyr

Avalanche of new land claims expected

The Restitution of Land Rights Amendment Bill, 2013 (Bill) was published for comment on 23 May 2013, with comments due by 23 June 2013.  The Bill proposes certain significant amendments to the Restitution of Land Rights Act 22 of 1994 (Act), most notably allowing for land claims to again be submitted, despite the current cut-off date having long expired almost 15 years ago.   The new period for lodging claims will be until 31 December 2018. 

Sandra Gore, Director in the Environmental Practice at Cliffe Dekker Hofmeyr explains, “The proposed amendment was timed to mark the centenary of the Natives Land Act 27 of 1913 (NLA), which proclaimed 87 per cent of South Africa’s land for white ownership only.     

Verusha Moodley, a Candidate Attorney in the Environmental Practice explains that, “Section 25(7) of the Constitution provides any person or community dispossessed of property after 19 June 1913, due to past racially discriminatory laws or practices, is entitled to restitution of that property or equitable redress.  The Act contains the enabling framework for this constitutional right, entitling parties to submit land claims for dispossession of rights in land in the circumstances set out in the Constitution, if it was lodged before 31 December 1998.

“According to the Department of Rural Development and Land Reform's (Department) Strategic Plan (2010–2013), 96% of the 79, 696 land claims that were lodged by the cut-off date have been settled.  It conveyed land acquired by the State for restitution of land rights, since the inception of the programme, is 1.443-million hectares.  A total of R16 billion has been spent on the programme thus far for settling 77,148 claims (R10 billion for land acquisition and R6 billion for 71 292 financial compensation claims),” explains Moodley. 

She notes that despite a reported success rate at settling land claims, the Department identified numerous limitations in the process. 

“These included poor research methodology; inadequate verification systems; and insufficient procedures used to inform affected citizens about requirements to lodge claims. The Land Reform Policy Document, compiled by the African National Congress in 2012, highlighted the process was plagued by issues such as an ineffective monitoring system, advertising of claims and response to complaints,” Moodley says. 

Gore says that the Department has indicated these limitations resulted in several claimants being unable to submit land claims by the original cut-off date and thus being excluded from the process.  This has led to the proposed extension of the period within which to submit a claim.  Claims will also need to be advertised nationally and not just in the district of the property.

The Deputy Minister of the Department, Lechesa Tsenoli has acknowledged that during the previous land claims process non-legitimate claims were processed based on false information.  The Hawks and Special Investigation Unit is therefore currently investigating fraudulent claims.  The Bill also includes a proposed amendment that lodging fraudulent claims will be a criminal offence.

Tsenoli has announced a memorandum of understanding would be signed with the Human Sciences Research Council.  It is intended that the Council will assist in enhancing the system by making it more accurate and expedient.

“If enacted, the additional period for submission of claims may create a possible resurgence of new restitution claims, with the Department expecting an "avalanche" of new claims.  Restoration of land is however likely to be limited by the proposed amendments that claimants must be able to use the land productively, with the feasibility of restoration being dependent on the costs.  Sustainable use of land was noted to be another concern in the previous land claims process, with Tsenoli concluding that many "farms fell apart soon after being returned to their previous owners," explains Gore. 

Gore says that these amendments are in line with the case of Mhlanganisweni Community v the Minister of Rural Development and Land Reform and Others, where the Court refused to restore the land on which the MalaMala Game Reserve, a renowned luxurious eco-tourism destination, is situated to the Community, as there was no proof they could productively run the business and maintain the conservation status of the property. It was also found it would not be just and equitable for the State to pay the property's high market value of R791 million, which had increased substantially since the Claimants were disposed of the land. The Claimants have proceeded to the Constitutional Court, with the matter to be heard in August. Their challenge centres on what is just and equitable compensation for the land being claimed. A ruling on the matter would determine the extent to which a court could deviate from market value in determining just and equitable compensation.

“The Constitution excludes dispossessions that occurred before 19 June 1913.  This cut-off date was chosen as it is the date when the NLA was promulgated. There has been continuous pressure on Government to amend this cut-off date to include pre-1913 claims.  Zuma has publicly announced the 1913 date would be amended to an earlier date, so that descendants of the Khoi and San could claim for their land dispossessed in the 1800s.  Such extension would however require an amendment to section 25(7) of the Constitution, which is a protracted process.  The Department has indicated in the interim research is being undertaken to determine the numbers of persons dispossessed prior to 1913,” she notes. 

“Due to the possibility of a further period for lodging claims, developers seeking to acquire and develop property should ensure proper investigations are undertaken to establish whether potential land claims exist over the property,” Gore adds.

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