Con Court Finds the Extension of Land Claims Deadline Unconstitutional

Written by Tanya Bailey, Karen Mare and Whitney Setswe

(Property & Mining Department)

1. INTRODUCTION 

On the 28th July 2016 the Constitutional Court made a decision on the extension of the application of land claims through the Restitution of Land Rights Amendment Act No 15 of 2014 (the “Amendment Act”). This article will discuss the court decision and order handed down by the Constitutional Court in the Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others [2016] ZACC 22 (the “Land Access case”). 

2. BACKGROUND

The issue of land reform and claims has been a hot topic for South Africa over the past 22 year’s post-apartheid era. Land claimants who were previously dispossessed of their land due to apartheid laws have been fighting a battle to regain their land.

3. COURT DECISION 

In terms of the Land Access case the court highlighted key parts of the history of land restitution. The Act provided that the deadline for land claims was 31 December 1998. The concern raised was that once the deadline date arrived there were still outstanding land claims which could not be lodged timeously.

The court was faced in determining the constitutionality of the Amendment Act which provides that the lodgement of land claims would be extended to 2019.

The applicants challenged the validity of the Amendment Act on the basis that firstly, the National Council of Provinces did not follow the correct procedure in enacting the Amendment Act which involved public participation in terms of section 72(1)(a) and 118(1)(a) of the Constitution. Secondly, that section 6(1) (g) of the Amendment Act is invalid and unconstitutional.

On the 28^th July 2016 the Constitutional Court decided that Parliament failed to satisfy its obligation to facilitate public involvement before making the decision to re-open land claim applications and declared the Amendment Act invalid.

4. ORDER

Following the judgment given by the Constitutional Court the following order was set:

1. It was declared that Parliament failed to satisfy its obligation to facilitate public involvement in accordance with section 72(1) (a) of the Constitution.
2. The Amendment Act is declared invalid.
3. The declaration of invalidity in paragraph 2 the Land Access case takes effect from the date of this judgment.
4. Pending the re-enactment by Parliament of an act re-opening the period of lodgement of land claims envisaged in section 25(7) of the Constitution, the Commission on Restitution of Land Rights, represented in these proceedings by the Chief Land Claims Commissioner, is interdicted from processing in any manner whatsoever land claims lodged from 1 July 2014.
5. The interdict in paragraph 4 of the Land Access case does not apply to the receipt and acknowledgement of receipt of land claims in terms of section 6(1)(a) of the Act.
6. Should the processing, including referral to the Land Claims Court, of all land claims lodged by 31 December 1998 be finalised before the reenactment of the Amendment Act, the Commission may process land claims lodged from 1 July 2014.
7. In the event that Parliament does not re-enact the act envisaged in paragraph 4 within 24 months from the date of this order, the Chief Land Claims Commissioner must, and any other party to this application or person with a direct and substantial interest in this order may, apply to this Court within two months after that period has elapsed for an appropriate order on the processing of land claims lodged from 1 July 2014.
8. The National Council of Provinces must pay the applicants’ costs, including costs of two counsel.

5. CONCLUSION

Due to the failure of Parliament to follow the correct procedures and facilitate the correct public participations, the Amendment Act was declared invalid by the Constitutional Court.

This does not prevent the commission from receiving or acknowledging any new land claims.

Should the processing of all of claims, including referral to the Land Claims Court lodged by 31 December 1998 be finalised before the reenactment of the Amendment Act, the Commission may start processing the land claims lodged from 1 July 2014 failing which an application to the court may be made.

If you require any further information regarding land claims contact the Inlexso Property Department.