Monday, October 3, 2022

Old- and new-order land claims: What to expect

Estimated reading time: 4 minutes

  • The Restitution of Land Rights Act, 1994 (Act 22 of 1994), or the Restitution Act, was enacted to govern the land reform process in South Africa and to provide for the restitution of land rights.
  • The Constitutional Court declared the Amendment Act of 2014 unconstitutional and invalid.
  • According to the minister of agriculture, rural development and land reform, approximately 163 383 new land claims were submitted between 1 July 2014 and 28 July 2016.
  • Landowners are advised to take steps to determine whether land claims have indeed been registered against their land.

The Restitution of Land Rights Act, 1994 (Act 22 of 1994), or the Restitution Act, was enacted to govern the land reform process in South Africa and to provide for the restitution of land rights. It stipulated that people or communities that were deprived of ownership of property after 19 June 1913 due to race-based legislation could, before 31 December 1998, submit restitution claims for the relevant property to be returned or for fair compensation to be paid.

According to the Commission on Restitution of Land Rights, land claimants submitted approximately 80 000 land claims before the cut-off date of 31 December 1998 (the so-called ‘old-order claims’).

On 1 July 2014, the Restitution of Land Rights Amendment Act, 2014 (Act 15 of 2014) came into effect. This act re-opened the restitution process and extended the deadline for submitting restitution claims to 30 June 2019.

Read more about land reform here.

Settlement of old-order claims

However, on 28 July 2016, in the case of Land Access Movement of South Africa and Others vs the Chairperson of the National Council of Provinces and Others 2016 (5) SA 635 CC, the Constitutional Court declared the Amendment Act unconstitutional and invalid, pending the re-enactment by Parliament of legislation that re-opens the period for the submission of land claims.

In addition, the Commission was prohibited by way of a Constitutional Court interdict from processing any land claims that had been submitted since 1 July 2014 (date on which the Amendment Act came into force) and before 28 July 2016 (date of the declaration of unconstitutionality of the Amendment Act) until the claims submitted before 31 December 1998 had not been settled.

According to the minister of agriculture, rural development and land reform, approximately 163 383 new land claims were submitted between 1 July 2014 and 28 July 2016 (the so-called ‘new-order’ claims). The interdict applies to the handling of these new-order claims.

The minister recently had to answer certain questions raised by the Economic Freedom Fighters (EFF) regarding the status of old-order claims and the intended handling of new-order claims. The first pertained to confirmation of when the old-order claims will be finalised, to which the minister replied that the Commission had developed a five-year plan to settle all old-order claims, depending on the availability of resources.

Read more about the socio-political and economic factors affected by land reform here.

The minister also provided an outline of the status of outstanding old-order claims per province (Table 1).

Table 1: Number of outstanding old-order land claims (submitted before 31 December 1998).

ProvinceOutstanding land claims
Eastern Cape657
Free State5
Gauteng379
KwaZulu-Natal2 124
Limpopo1 349
Mpumalanga1 588
Northern Cape37
North West208
Western Cape338
Total:6 685

Preparing for new-order claims

The minister also confirmed that the 163 383 new-order claims will only be processed once Parliament has enacted legislation that provides for the processing of new-order claims and, of course, once all old-order claims have been settled.

Landowners are advised to take steps to determine whether land claims have indeed been registered against their land, and to be on the lookout for the publication of notices of land claims by the Commission.

If so, landowners must take proactive steps to familiarise themselves with the historical occupation and user rights of people in their area and, along with that, as far as possible gather and store data pertaining to the historical ownership/occupation or uses of their own land for when the land claim can be handled, as intended by the minister, within the next five years. – Clarissa Pienaar, Moolman & Pienaar Incorporated

For more information, contact Clarissa Pienaar on 033 032 0421 or clarissap@mmlaw.co.za.