3 August, 2016
All land claims after ’98 on hold
ALL land restitution claims made after December 1998 have been put on hold by the Constitutional Court, after the court found that Parliament did not properly consult the public before deciding to reopen the window for claims.
The Restitution of Land Rights Amendment Act - which reopened the window for claims - was rushed through Parliament in 2014 ahead of national and provincial elections.
At the time, concerns were raised that the government had not sufficiently taken into account the huge budgetary burden it would place on the state to deal with an anticipated huge number of new claims.
Critics said the new claims would affect the capacity to finalise the old claims, some of which had been languishing for more than a decade.
Some viewed the legislation as a last-minute effort to ingratiate the government with the electorate on an emotive issue.
In a unanimous judgment, the Constitutional Court found that the "truncated timeline" for public consultation was inadequate, particularly given the importance of the legislation.
Justice Mbuyiseli Madlanga found that, while the National Assembly's consultation process was constitutional, the timeline of process undertaken by Parliament's second house, the National Council of Provinces, was "inherently unreasonable".
The National Council of Province's failure "taints the entire legislative process and is a lapse by Parliament as a whole", he said.
The court invalidated the new amendment and interdicted the Commission on Restitution of Land Rights from processing "in any manner" any new claim made after the amendment came into force.
But claims that have already been lodged under the new law do not disappear: they can be dealt with if and when Parliament re-enacts the legislation.
The court's order also allows for the new claims to be processed once all the old ones - those made before the original closing date of December 31 1998 - have been finalised.
If Parliament does nothing to revive the legislation within two years, the Constitutional Court may be approached once again "for an appropriate order".
Madlanga said no cogent reason was given for the rush to pass the bill - besides the desire to finalise it before the end of term. The timeline was the root cause of all the deficiencies in the process, he said.
Madlanga was scathing about some of the public participation efforts undertaken by the provincial legislatures.
The Northern Cape process was a "complete disaster" he said. He also criticised the fact that seven provinces accepted the timeline set by the National Council of Provinces "without demur".
Madlanga said the importance of the right to restitution could "not be overstated".
"Restitution of land rights equals restoration of dignity," he said.
This was why the reopening of the land claims process was of paramount public interest.
The Department of Rural Development and Land Reform said Minister Gugile Nkwinti and the Commission on Restitution of Land Rights had "noted" the judgment.
The Legal Resources Centre, which brought the case to court on behalf of the Land Access Movement of SA, Nkuzi Development Association, the Association for Rural Development and three communal property associations welcomed the judgment.
Source: Business Day
FSA Comment - Michael Peter
FSA has for the last
two years, reported on the hastily and poorly considered process which
government ran, in bringing the RLRA Act into effect. We expressed the
view that this was done for a number of reasons, including to gain
political favour with the rural electorate, delay the settlement of
existing claims, thereby relieving the financial burden which settlement
places on the State and lastly to prevent any more land from becoming
unproductive through failed land reform.
the Constitutional Court found the Act to be invalid and interdicted
the Commission on Restitution of Land Rights from processing any of the
new (over 200 000) claims which have already been submitted under the
(now invalid) Act.
the Constitutional Court also found that the CRLR should prioritise the
settlement of claims prior to the 1998 cut-off date, FSA remains of the
view that this will still be highly unlikely. This is because any
competing claimants, in claims submitted under the (now invalid) Act,
will object strongly during the settlement process on the grounds that
they submitted their claims in good faith under legislation which was in
effect at the time. The Land Claims court will find it difficult to
settle old claims, with the full knowledge that there are already
competing claims, which may become valid again, as and when the
legislation is revised in line with the Constitutional Court's decision.
these reasons we do not believe that government will be overly
concerned about the judgement, as it makes the settlement of land claims
that much more intractable and as we have said previously, this may
have been their intention all along or was at least a welcome outcome,
because it reduces the risk of food insecurity and further collapse of
the rural economy.