….…article dated 7 March 2022……
Debate coupled to Expropriation Bill ….
On the backburner for a number of years but now under the parliamentary microscope is a long-awaited mechanism to provide assistance with the long backlog of land claims in terms of government’s land reform programme – the Bill for which is now in the process of being gazetted for comment and then introduced to Parliament.
The Land Court Bill will establish a dedicated Land Court in South Africa and a Land Court of Appeal, a combination to handle all claims and disputes under the Land Rights Act of1994, the historic addition to South Africa’s statute book which covers the return of rights to land for those dispossessed by past race laws.
Let’s get going
The outstanding claims in this context must be resolved so that the country can move on beyond its troubled past and focus clearly on the future, it has been stated. Comment from the legal profession is the sooner the better, as the issue is becoming to fester.
The court to be established will have a more “functional” approach to cases that come before it – the hope of the Department of Justice and Correctional Services. Minister Jeffries says the proposals are modelled on a “negotiation before litigation” principle on matters such as expropriation without compensation under the proposed Expropriation Bill, currently before Parliament.
Breaking the log jam
Representing what most legal commentary considers is the main part of President Ramaphosa’s intent to handle the stumbling blocks in the way of meeting the targets set out by Ramaphosa upon his inauguration, acting minister in the presidency, Khumbudzo Ntshavheni, said, “The Bill will establish a specialist land court which will seek to resolve the challenges that have been experienced up until now “.
The new Bill proposes that the existing Land Claims Court is converted into the new Land Court and will adjudicate on all land-related matters, including those which have the prime purpose of restitution. “It will also deal with the backlogs in land claims and dispute resolution mechanisms when disputes arise,” she said. The court is to be given additional responsibilities such as conflict resolution and mediation.
The acting Minister said on appeal matters, “All judgements, orders and decisions will be appealable at a proposed specialist Land Court of Appeal,” adding that the new court structure will be “beefed up” in terms of personnel and IT facilities. This will include the appointment of a permanent judge president and four permanent judges.
Minister of Justice and Correctional Services, Ronald Lamola, has also given his views on the Land Court Bill, stating that it will deal with issues including expropriation and outstanding claims. “The efficacy of the procedures and arrangements proposed in the Bill will assist to develop our land jurisprudence with regards to the Land Court and the land question,” he said.
The Bill is also aimed at addressing the “systemic hurdles” that make it difficult for land claimants to obtain land restitution, he said.
According to Lamola, anyone could give evidence, oral or otherwise, before such a court which it considers in its wisdom relevant to the matter in question. “For instance, the Bill allows for hearsay evidence for families who have to rely on oral history and the existence of elders with knowledge of the description, location and extent of land which their descendants previously occupied.”
“Whilst the Bill on its own may not be the silver bullet which can help us undo the effects of colonialism, it is a major step which can enable land reform, a subject which is inextricably linked to rural development, and addresses the socioeconomic challenges that plague us,” said Lamola
The Bill also allows for expert evidence regarding historical and anthropological facts which are relevant to any land claim, he stated, adding “it is most important to establish efficient and alternative dispute resolution mechanisms as part of mediation and arbitration processes.”