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.
Peter Leon, Partner at Herbert Smith Freehills South Africa discusses the implications for property rights in SA, following the Constitutional Court's decision to strike down the Restitution of Land Rights Amendment Bill