Land Rights Act declared invalid by Constitutional Court

Private Property South Africa
Jackie Gray-Parker

New land claims have been put on ice for now after the Constitutional Court declared the Restitution of Land Rights Amendment Act of 2014 invalid. The ruling may well signal the beginning of a new and protracted debate on the matter.

What the Act is about

The Restitution of Land Rights Amendment Act of 2014 reopened the land claims process in 2014 after the first window for land claims closed in 1998. Approximately 79 696 claims were lodged during the first claims window, of which approximately 78 750 have reportedly been settled. As per the Amendment Act, the window for restitution claims was extended until the 30th of June 2019. Approximately 75 000 – 80 000 land claims have since been lodged.

Why the ConCourt declared it invalid

The Constitutional Court ruled that a lack of adequate public consultation took place in respect of the Amendment Act. The ruling effectively puts a stop to new land claims and puts on ice the land claims submitted after July 2014.

According to reports, the Amendment Act was “rushed” through parliament in 2014 ahead of the national and provincial elections. Concerns were raised at the time that government had not sufficiently taken into account the massive cost the Amendment Act would place on the state to deal with a raft of new claims. Critics also said the new claims would affect the state’s capacity to finalise old claims, some of which hadn’t been dealt with for more than a decade. Others suggested that the legislation was pushed through with a view to garnering support for government ahead of the elections.

Whatever the case, the Amendment Act seemingly no longer applies – at least in its current form that is. The Constitutional Court’s Justice Mbuyiseli Madlanga found that while the National Assembly’s consultation process was constitutional, the “timeline of process” undertaken by the National Council of Provinces was (NCOP) “inherently unreasonable.” Indeed, Madlanga stated that the NCOP’s failure “taints the entire legislative process and is a lapse by parliament as a whole.”

What happens with land claims now?

While new claims can no longer be processed, claims that were lodged under the Amendment Act won’t just disappear. These claims can be dealt with if and when parliament re-enacts the legislation. The Constitutional Court’s order also allows for new claims to be processed once all the old ones 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.

Due to the possibility of a land claim, the majority of farmers are not expanding their agricultural activities at present.

It’s clear the matter needs to be dealt with sooner rather than later which would offset further uncertainty for all those concerned. That said, it needs to be dealt with in a balanced manner. In 2015, Freedom Front Plus (FF Plus) MP Pieter Groenewald shared his thoughts on the matter which are worth considering in the overall context of the land restitution debate.

He said: “The FF Plus has already warned that the re-opening of land claims will create great uncertainty in the agricultural sector. New claims will result in claims taking many years to finalise.

“Due to the possibility of a land claim, the majority of farmers are not expanding their agricultural activities at present. Currently, the South African commercial agricultural sector needs certainty about the future to ensure, through new investments and developments, that enough food is produced for everybody in the future.

“What South Africa needs at present is [to know] that agricultural land which has already been transferred to new black farmers, [will] produce food successfully. South Africa needs more successful commercial farmers. Nine out of ten successful land claims have resulted in failure, according to figures provided by Minister Nkwinti. We cannot afford [to let] fertile land [to] become unproductive while the population is growing and more food is needed daily.”

Be prepared for the "biggest land claim"

When the land claim process re-opens (which in all likelihood will happen), Zulu King Goodwill Zwelithini said he would lodge the “biggest land claim” for all the land in KZN, as it had once belonged to the Zulu Kingdom. Needless to say it will be interesting to see how that claim and the other claims will be handled going forward and what impact they will have on South Africa both individually and as a whole.

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