When land claimants take matters into their own hands

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Land claims are regulated by Restitution of Land Rights Act, Land Reform Act & Labour Tenants Act with several currently outstanding claims.
Land claims are regulated by Restitution of Land Rights Act, Land Reform Act & Labour Tenants Act with several currently outstanding claims.

Estimated reading time: 4 minutes

Land claims are currently regulated by the Restitution of Land Rights Act, 1994 (Act 22 of 1994), or the Restitution Act, and the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996), or the Labour Tenants Act. Both pieces of legislation make provision for cut-off dates for the submission of claims before/on 31 December 1998 and 31 March 2001, respectively.

An estimated 5 000 claims under the Restitution Act and 11 000 claims under the Labour Tenants Act are currently outstanding.

When claimants intervene

The time that has lapsed since the cut-off dates for filing claims until now has resulted in landowners increasingly being confronted with attempts by land claimants who resort to other methods of enforcing claims.

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These efforts to date have included claimants who, directly and without involving the state, have instituted claims against landowners, or have occupied the land, without the courts or state intervening, in an attempt to put pressure on the state to expedite the settlement of the claim.

Despite our courts’ open criticism in their rulings on the manner in which land reform, and land claims in particular, have been handled since the enactment of the aforementioned legislation, none of the stated methods are currently legally permitted.

In principle, the legislation governing land claims makes provision for all land claims to be instituted against the state. Private property only comes into play when the state, in the case of valid claims, must acquire the land or portions thereof from private owners in order to settle the claim.

HJ Moolman, Moolman & Pienaar Incorporated

What does the law say?

In principle, the legislation governing land claims makes provision for all land claims to be instituted against the state. Private property only comes into play when the state, in the case of valid claims, must acquire the land or portions thereof from private owners to settle the claim.

In addition to the fact that claims are instituted against the state, this legislation makes it possible for private owners, through a legal process, to dispute the validity of the claim. Until the court has ruled in favour of the claimants, they are not entitled to exercise their rights to occupy the private land.

Even if the land claim is valid (conceded or ruled on by a court), the state or the claimants will still not be entitled to exercise any rights on the land in question, until the landowner receives fair and equitable compensation in terms of section 25(2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) from the state.

Court rulings

In recent rulings pertaining to cases where land claimants attempted to enforce claims against private landowners, without the intervention of the state and outside the legally prescribed process, such steps were rejected by the Land Claims Court.

In one such case, the lawyer who instituted the claim on behalf of the plaintiffs was ordered to pay the landowner’s legal costs out of his own pocket. The cost order handed down by the Land Claims Court clearly showed their rejection of this wrongful action.

Read more about land claims here.

Where does that leave us?

In the foreseeable future, more landowners will be confronted with this type of wrongful action. The existence of land claims (regardless of the fact that the claims were not settled in the prescribed manner) is occasionally used as a reason or excuse not to act against people who occupy land illegally.

In addition to the provisions contained in the applicable legislation, it is vital to remember that section 25(1) of the Constitution prohibits any legislation that allows unilateral (without the intervention of the courts) deprivation of property. This prohibition applies to the state’s actions towards citizens, as well as actions between citizens.

At the same time, it is also important to keep in mind that the frustrations that result from the aforementioned wrongful actions are mostly due to the inadequate manner in which land reform is handled in South Africa.

This means that landowners are often on the receiving end of these frustrations, and that these frustrations can in most cases be channelled, with the help of proper legal representation, to the institutions legally responsible for managing land claims.

Read more about old and new land claims.

It is imperative that the legal mechanisms created to protect the interests of landowners and claimants remain accountable to make sure the rule of law is respected.

For more information, contact HJ Moolman on 018 297 8799, 018 297 0397 or hj@mmlaw.co.za.