We take a closer look
Land reform is a much-debated issue in South Africa. No one (well, almost no one) disputes the urgent need to right some of the wrongs of the past regarding land ownership, to advance transformation. However, the ways and means of achieving this reform are not always full agreed upon. We’ve written extensively in the past on expropriation and related compensation. There have been multiple attempts at legislation to try to effect land reform in a way that is fair and equitable to all parties, including the Land Court Bill, which was gazetted on 23 April, 2021 and is currently before Parliament.
The Land Court Bill was designed to accelerate the country’s land reform programme and resolve backlogs and disputes around land claims. The new bill seeks to give effect to recommendations of the 2019 Report by the Presidential Advisory Panel on Land Reform and Agriculture.
Aims of the Land Court Bill
In a nutshell, the Land Court Bill aims to:
- Provide for the establishment of a Land Court and a Land Court of Appeal
- Make provision for the administration of the courts and the judicial functions of the courts
- Make provision for administrative and budgetary matters relating to the courts
- Provide the courts with exclusive jurisdiction to adjudicate disputes arising from certain Acts of Parliament
- Provide for referral by Court for mediation or arbitration in respect of certain matters
- Amend certain laws relating to the adjudication of land matters by courts
- Provide for matters connected therewith
Rationale behind the Land Court Bill
“The Bill seeks to address the systemic hurdles that make it difficult for land claimants to obtain land restitution,” said Justice and Correctional Services minister Ronald Lamola in an explanatory statement. “It creates a policy framework to ensure that land reform is guided by sound legal and economic principles and contributes to the country’s investment objectives and job creation initiatives,” he said. “This Bill gives effect to the mandate of the sixth administration, namely, to ensure our approach to land reform is based on three elements — increased security of tenure, land restitution and land redistribution.” These are noble objectives. Does the Bill promise to fulfil them?
The Land Court Bill grants legislative powers in several critical areas, described below.
Much of South African history is oral, and passed down the family line in a traditional manner. The Bill acknowledges these cultural traditions of oral and family records. According to Lamola, “The Bill allows for hearsay evidence for most families, who have to rely on oral history and the existence of elders with knowledge of description, location, and extent of land which their descendants previously occupied.” The Bill also allows for expert evidence regarding historical and anthropological facts relevant to any particular land claim.
Alternative dispute resolution
An important innovation is the Bill’s emphasis on alternative dispute resolution (ADR). For instance, one clause empowers the Judge President to elect to resolve a case via mediation or arbitration and not in open court. Judges will also be empowered to suspend a hearing at any time and refer a case to mediation or arbitration if it is deemed appropriate. This will facilitate a speedier and most cost-effective alternative for case resolution, avoiding the usual court process, which tends to be costly and adversarial.
However, the Judge President can decide that a case should come before the court if the outcome of the case could contribute to the development of the law. In such uncharted territory, it is important to build a repository of appropriate case law.
The Bill places a significant emphasis on making the Land Court accessible to the public. The Bill will allow the Minister of Justice (in consultation with the Chief Justice) to designate places for hearings to be held, like community centres or schools, to make the court more accessible for people located in rural areas. This will align the process with traditional methods of determining fairness and dispensing justice.
Judges will be empowered to refer cases to Legal Aid so that an unrepresented party can access legal counsel. The Bill states that Legal Aid must provide a lawyer if substantial injustice would result otherwise. Parliament must also provide Legal Aid with sufficient funding to ensure that unrepresented people can receive legal representation in appropriate cases.
The Bill proposes that the Land Court be given the power to order the Commission for the Restitution of Land Rights to conduct an investigation and provide a report on any case referred to the Court. When a case is taken on appeal to the Land Court of Appeal, the Land Court can make any appropriate order, which will operate until the appeal has been finalised.
The Bill retains several provisions that already regulate proceedings in the Land Claims Court. For example, the Land Court (like the Land Claims Court) can accept evidence that would not normally be admissible in court, such as hearsay evidence or expert evidence by anthropologists or historians on land dispossession. The Land Court retains the power to order the state to pay a land claimant compensation or to set conditions that must be fulfilled before dispossessed land can be restored.
Existing Land Claims Court
Currently, the Land Claims Court has exclusive jurisdiction to decide various issues regarding claims for the restitution of dispossessed land in terms of the Restitution of Land Rights Act. When the Land Claims Court was created in the 1990s, the idea was that most land claims would be finalised relatively quickly. It was therefore meant to be a temporary court with temporary judges.
The reality is that restitution processes are taking far longer than anticipated. The Land Claims Court is struggling to settle the increasing backlog of land claims. These delays have caused significant frustration for land claimants.
According to a memorandum on the Bill and the Advisory Panel Report, a major cause of the backlog is the lack of permanent judges on the Land Claims Court and insufficient capacity and staff to process land claims efficiently and timeously.
Furthermore, an appeal against a judgment of the Land Claims Court can only be decided by the Supreme Court of Appeal (SCA). An appeal to the SCA is a lengthy process.
Potential benefits of the Land Court Bill
The Bill proposes that the Land Claims Court be abolished and replaced with a specialised Land Court and Land Court of Appeal. If the Bill is enacted, these two courts will deal almost exclusively with all issues relating to land rights and land claims.
According to the Advisory Panel Report and the Memorandum on the Bill, the establishment of a specialised and permanent Land Court and Land Court of Appeal will help contribute to the development of case law on land restitution and land rights. The Bill also allows for future legislation to give the Land Court jurisdiction to deal with other issues relating to land rights and land claims if the need arises in future.
Structure of the Land Court
According to the Bill, the Land Court will have similar status and powers to the High Court. The Land Court of Appeal will have similar status and powers to the Supreme Court of Appeal. Both courts will be headed by a Judge President and Deputy Judge President who must both be judges of the High Court at the time of their appointment.
Significantly, every judge on the Land Court and Land Court of Appeal will be permanent. Judges will be appointed by the President on the recommendation of the Judicial Service Commission and must have experience or expertise in land rights matters. The judges of the court must also be representative of the race and gender demographics of the country.
Our concerns about the South African Land Court
Corruption Watch (a chapter of the global coalition against corruption, Transparency International, which is working to fight corruption in South Africa) has raised the following concerns:
- The Land Court Bill does not contain adequate mechanisms to reduce the scope for corruption. This could significantly impact effective determination of disputes regarding land in our country.
- The Bill fails to illustrate clearly the manner in which the existing systemic hurdles that make it difficult for land claimants to obtain land restitution will be dealt with in adjudication processes and in the implementation of the Bill.
- Introduction of an adjudication body must take into consideration the lived realities of the people it seeks to assist, as access to public resources is usually implicated in various social divisions, which include wealth and economic status, gender, generation and political affiliation.
- The situation is complicated by large-scale corruption in administrative institutions tasked with facilitating land reform policies, while the legislative backdrop is increasingly targeted towards limiting the procedural and substantive rights of communities under traditional authorities.
While we applaud the intentions behind the LCB, SD Law has some reservations about its implementation. We are concerned that it lacks sufficient provisions to ensure key parts of its objectives are achieved. We are not confident that the noble aims of the Bill will not be derailed by the inherent corruption and misconduct so often demonstrated by our government officials.
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- Expropriation bill 2015 – compensation, the vexed question
- Expropriation Bill unconstitutional in the absence of a constitutional amendment
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.