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- The Land Court Act, 2023, which came into effect on 5 April, replaces the former Land Claims Court and repeals Chapter III of the Restitution of Land Rights Act, 1994, in its entirety.
- The Land Court Act emphasizes mediation and arbitration as the primary methods for resolving disputes before proceeding with litigation.
- If a judge determines that a case can be resolved through mediation, they can suspend court proceedings and refer the matter to a mediator in accordance with the regulations of the Land Court Act.
- If mediation fails or one party requests, the mediator must refer the case back to the court, and discussions during mediation remain privileged unless agreed otherwise.
- The Land Court generally avoids granting cost orders against unsuccessful parties, prioritizing mediation and arbitration to minimize litigation costs.
The Land Court Act, 2023 (Act 6 of 2023), or the Land Court Act, came into effect on 5 April this year and brought about significant changes, much like the amendments to the Extension of Security of Tenure Act, 1997 (Act 62 of 1997) or Esta, which came into effect on 1 April this year.
The Land Court, established by the Land Court Act, replaces the former Land Claims Court which was established by the Restitution of Land Rights Act, 1994 (Act 22 of 1994), or the Restitution Act. The Land Court Act, among others, repeals Chapter III of the Restitution Act in its entirety, which dealt with, inter alia, the powers, jurisdiction, and composition of the Land Claims Court.
Any proceedings initiated in the former Land Claims Court must continue in the Land Court, unless the court considers this to not be in the interest of justice, in which case the court must conclude the proceedings in the manner done prior to the Land Court Act coming into effect.
Read more about ‘Reside’ tested in Land Claims Court.
Court or mediation
The provisions set out in the new Land Court Act, as well as certain amendments to Esta, place considerable emphasis on first engaging in mediation and arbitration to settle disputes. When proceedings are instituted in terms of the Land Court Act, the registrar of the Land Court must refer the matter to the judge president of the court. The judge president must then decide whether the matter should be heard in the Land Court or referred for mediation.
If, during the proceedings (but prior to judgment), the presiding judge does find that the matter can be resolved through mediation, he or she can order that the parties mediate the issue(s) in order to try and resolve it, and can suspend the proceedings pending the mediation process.
If the judge president or judge refers the matter for mediation, an order must be granted in terms of which:
- The registrar of the Land Court is ordered to transfer the matter to a mediator in terms of the regulations of the Land Court Act.
- The time, date and place of the mediation process must be specified.
- A suitable person is appointed as mediator to preside over the first meeting between the parties. The Land Court Act stipulates that the parties may, if agreed upon and at any stage of the mediation process, appoint another person as mediator.
The regulations pertaining to some aspects of the mediation process, including the matter of appointing a mediator and the procedure for referring matters for mediation in terms of the Land Court Act, have yet to be published. Once the matter has been referred to a mediator, he or she must act swiftly and in accordance with the regulations of the Land Court.
An unsatisfactory outcome
If the matter cannot be resolved satisfactorily, or if one or more of the parties lodges a request, the mediator must refer the case back to the court in accordance with the prescribed regulations. All discussions, disclosures, and submissions made during the mediation process are privileged, unless the parties agree otherwise.
If the parties do reach a settlement, the court may choose to make this agreement a court order. If the court were to propose technical amendments, the parties must be notified thereof and comments from the parties must be received and considered before any amendments are made.
If negotiation or mediation leads to the matter being settled out of court and all parties agree to the settlement agreement, the registrar of the court must present the agreement to the court for ratification or rejection. The court must consider the settlement agreement and can either ratify and make it a court order, or refer it back to the parties for reconsideration.
Only in exceptional cases will the Land Court grant cost orders against unsuccessful parties. When the Land Court determines whether to grant a cost order in a particular case, one of the factors considered is whether the matter should instead have been referred to mediation or arbitration, and what the cost would have been if the matter was referred directly to the Land Court instead of mediation.
The Esta also contains certain provisions regarding the granting of eviction orders in cases where attempts have been made to settle the dispute through mediation or arbitration, and the court is satisfied that the circumstances pertaining to the eviction order cannot be resolved this way.
In some cases, peaceful solutions are possible through mediation, but in others not. Time will tell how the new Land Court Act and its rules and regulations will be implemented, and to what extent it will lead to speedy land reform and peaceful dispute resolution. – Clarissa Pienaar, Moolman & Pienaar Incorporated
For more information, contact Clarissa Pienaar on 033 032 0241 or clarissap@mmlaw.co.za.
