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RESTITUTION OF LAND RIGHTS ACT
1.MOST IMPORTANT PROVISIONS OF THE ACT
The Restitution of Land Rights Act, 1994 (Act No. 22 of 1994) came into effect on 2 December 1994 and is intended to give effect to the provisions of section 25 of the Constitution which deals with land reform.
The preamble to the Restitution of Land Rights Act spells out the objective of the legislation, namely to make provision forthe restitution of land rights to people who were dispossessed in terms of or to promote the objectives of discriminatory race-based legislation.
The Act makes provision for the creation of a Commission for the Restitution of Land Rights as well as a Land Claims Court. The composition and activities of the Commission and Court are defined in the act. Regulations were also promulgated thatgovern the Commission’s activities.
The Act sets a cut-off date for claims, namely 19 June 1913, and stipulates that a person or community may lodge a claim if such person or community had, after 19 June 1913, been dispossessed of a land right in terms of legislation that ignored the equality principle.
The provisions of the Act do not apply in cases where people had received just and equitable compensation as calculated at the time of expropriation.
2.MODUS OPERANDI OF THE COMMISSION
In practice the process for the restitution of land rights is as follows:
2.1The claim is submitted on the prescribed claim form atthe relevant regional land claims commissioner’s office. At present there is a chief land claims commissioner with an office in Pretoria, while regional land claims commissioners have offices in the provinces. The cut-off date for submitting claims was initially 31 December 1998. The Restitution of Land RightsAmendment Bill currently tabled inParliament will amend this cut-off date. Should the Amendment Bill be accepted in its present form, the restitution claims process will be reopened, with the cut-off date shifting to 31 December 2018. Individuals or communities who missed the initial deadline of 31 December 1998 or claimants whose claims had been incorrectly denied because, for example, they were based on the so-called “betterment schemes”,will again have a chance until 31 December 2018 to lodge claims with the Commission. Claims that are submitted are registered on a central computer system. Each claim is allocated a number, and receipt thereof is acknowledged. Claims may be submitted in person or per ordinary or registered post.
2.2Since so many claims were received before the initial cut-off date, theregional land claims commissioner had to decide which claims should enjoy priority. The criteria applied here include the number of claimants involved and the socio-economic circumstances of the claimants concerned. Apparently the land owner’s interests did not play a role in determining these priorities. The finalisation of outstanding claims will be further complicated by the AmendmentBill. New claimants may come forward, which will make it impossible for the commissioner to accurately determine the number of claimants up to and including 1 December.
2.3After prioritisation, a pre-investigation must be conducted by the regional land claims commissioner to determine whether the claims meet the criteria set in the legislation, namely:
(i)Is it a land right that is claimed and what is the nature of such right?
(ii)Has the claim form been properly completed?
(iii)Did the deprivation take place in terms of or for the purpose of promoting discriminatory race-based legislation?
(iv)Did such deprivation occur on or after 19 June 1913?
(v)Werethe claimant community or their predecessors fairly and equitably compensated when they were deprived of the land?
(vi)Is it a frivolous or vexatious claim?
(vii)Was the claim submitted in time, i.e. before 31 December 1998or, should the Amendment Bill become effective in its current form, between the reopening date and December 2018?
2.4This pre-investigation is not an in-depth inquiry but merely an attempt to determine whether the relevant claim should indeed be dealt with under this legislation. If the regional land claims commissioner is satisfied that this is the case, the claim will be published in the Government Gazette so that interested parties can take note thereof. The main purpose of such publication is apparently to inform other potential claimants of the claim and not primarily to advisethe land owner thereof. In the media statement issued by the chief land claims commissioner, he emphasised that although the notice mentioned a specific timeline within which commentary must be submitted, it did not mean that further representations in respect of the claim may not be submitted after that date. He added: “In fact, the Act states clearly that an intensive and extensive investigation should be conducted into the history and use ofthe relevant land and that all parties, including private land owners in cases where the land is not owned by the state, should, through a process of negotiation and mediation under the auspices of the commission, attempt to reach an acceptable settlement regarding the claim.”
Section 11 of the Act also requires that further steps be taken to disclose the fact that a claim was pending in the district where the land is situated. Item 13 of the commission’s rules states that steps referred to in section 11 could include the following:
(i)Notice in a newspaper or magazine or on radio or television
(ii)Notice per registered post
(iii)Oral notification
(iv)Display of notice on the land in question
(v)Display of notice in a public building.
Agri SA had asked that the notice be served (e.g. summons) on the land owner personally, but this method is not used.
Once the claim is published, the owner may not sell, exchange, donate, lease, sub-divide or rezone it without giving one month’s notice of such intention to theregionalland claims commissioner. If such notice is not given to the regional land claims commissioner, he/she may request the court to set aside the transaction.
2.5After the claim has been investigated and notice given, the regional land claims commissioner must submit a detailed report to the chief land claims commissioner, possibly together with a recommendation in respect of the claim. The regional land claims commissioner may also at any time during the investigation recommend to the chief land claims commissioner that a dispute should be settled through mediation, as well as who should act as mediator.
2.6After completion of the commission’s investigation, the matter is referred to the Land Claims Court. Also, in the event of a settlement,theLand Claims Court must still ratify such settlement.
2.7If the parties cannot reach an agreement, the court may hear the case. The court may hear any testimony, including hearsay evidence which is normally not allowed in court cases. Expert witnesses, such as historians and anthropologists, may also be called. If the court decides to allow expropriation, such expropriation must take place in accordance with the provisions of the Expropriation act. The Expropriation Act is currently under review, with expectations that the new Expropriation Bill will be tabled in Parliament before the end of 2013. Unlike the old legislation which currently governs expropriation, the new Expropriation Bill does not make provision for compensation based on market value, but instead forjust and equitable compensation as stipulated in the Constitution. The Expropriation Bill does not expressly make provision for the addition of amounts such as moving costs, but such amounts may be seen as “any other factors” in terms of section 25 of the Constitution. Compensation for non-patrimonial loss such as pain and suffering is expressly excluded from the new legislation. These additional amounts will probably not be awarded by the Land Claims Court.
Section 25(3) of the Constitution is cited in the Expropriation bill and states that the court should, when determining the amount of compensation, consider the following:
(i)Current use of the property
(ii)History of the acquisition and use of the land
(iii)The market value of the land
(iv)The extent of direct state investment and the subsidy in the acquisition and beneficial capitalimprovement of the property
(v)The purpose of expropriation.
2.8The Department of Rural Development and Land Reform is responsible for ensuring that the instructions of the Land Claims Court are carried out.
2.9The land owner must be aware that any attempt to unlawfully influence or prevent/hinder another party from exercising their rights in terms of theRestitutionof Land Rights Act, shall be an offence in terms of the new Amendment Bill. If a land owner, claimant or any other person is found guilty of this, the court may impose a prison sentence of a minimum of five months or an appropriate fine.
3.STEPS THAT THE LAND OWNER CAN TAKE TO PROTECT HIS INTERESTS
3.1It is important that land owners familiarise themselves with the provisions of the Restitution of Land Rights Act and how the process works in practice.
3.2Land owners must be aware that they have the right to register objection to a claim on their land. Such objection must be properly motivated.
3.3Objections can be made at various times:
*As soon as a claim is published, the land owner may register objection.
*After a claim is accepted, a regional land claims commissioner also has a duty to establish whether or not the land owner is opposed to the claim.
*After a claim is accepted, consultation takes place with all parties and the land owner must also get an opportunity to statehis case.
*If the parties cannot reach an agreement and theLand Claims Court must decide in the matter, the land owner will, of course, also have an opportunity to argue his case in court.
In order to motivate his/her objection and to be able to negotiate from a strong position, proof to substantiate the land owner’s case needs to be obtained. Since claims as a rule are not instituted in respect of individual farm but usually cover an area consisting of several farms, it is advisable that the relevant land owners apply collectively (see 3.5, 3.6 and 3.7 below) to avoid unnecessary duplication.
3.4The first step is to find out what information the relevant regional land claims commissioner already has because, in terms of the Constitution, land owners are entitled to information that they needs to protect their rights. The regional land claims commissioner can decide what information should be made available to the land owner. Should he/she refuse without good reason to provide relevant information, the land owner may firstly appeal to the chief land claims commissioner and thereafter the decision can be reviewed by a court if necessary.
3.5In light of this information, farmers themselves must try to assess the validity of the relevant claim. If a farmer comes to the conclusion that it is indeed a valid claim, he/she can still try to make out a case that it is not viable to return the land to the claimants, for example because the land had been developed into an extremely profitable farming operation which makes an enormous contribution to the economy of the particular region. If the farmer can present a strong case, the regional land claims commissioner may instead consider alternative land or financial compensation for the claimants.
If farmers reach the conclusion that the claim is in fact valid, however, their only option is to negotiate for the best compensation possible. It may be necessary for the land owner to appoint a valuator to value their land at a reasonable cost. First-generation owners will undoubtedly be penalised by the formula for compensation as per the Constitution. Later owners will probably be penalised to a lesser extent.
3.6Additional to the information received from the regional land claims commissioner, the land owner can also if necessary access information as follows:
(i)The relevant deeds office: Description of title, etc.
(ii)Home Affairs or the local magistrate’s office, with reference to records of the old Native Affairs and Bantu Affairs, and birth certificates of people born on the land, etc.
(iii)Information that may relate to the viability of the claim, for example expenses incurred in respect of the land, profitability of the farming operation, the number of people employed, rainfall figures, erosion, scarce animal species found on the land, mineral rights, etc.
3.7Historical information and evidence, affidavits, etc. to show who had lived on the land at what time.
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AC-005
17/3/98
AC-005
17/3/98