The Commission on Restitution of Land Rights has received numerous appeals, complaints as well as requests to review the situation with regard to the validity of some of the land claims that have been published in the government gazette as part of the restitution business process. Contestations regarding some of the gazetted claims include disagreements on the actual extent of the land being claimed on some of the properties as well as the issue of whether the removal actually occurred as a result of racial discrimination against individuals or communities, by the state.
Section 11A of the Restitution of Land Rights Act makes provision for a Regional Commissioner to take corrective action upon the discovery of e.g. an instance where either an incorrect land parcel has been gazetted or an area which is far bigger than the actual land parcel affected by a valid claim has been gazetted by the commission erroneously. The commission is currently taking action to assess some of the cases that have been brought forward by affected parties where there is cause for concern that some of the claims might have been frivolous.
There are other instances like in the case of the Makgoba claim in which a portion of land affected by a valid claim was not included when the claim was gazetted, where the commission has in line with the provisions of the Restitution Act taken appropriate action to amend the relevant gazette notice once the error was discovered.
In line with Section 11 of the Restitution of Land Rights Act the Regional Land Claims Commissioner may cause claims to be gazetted at the same time, based on prima facie evidence. The challenge in this regard is that the gazetting of claims generally has a major implication on issues of optimal food production as it serves as an incentive against investment and development of land. The situation presents an undesired effect which goes against the development objective of the restitution process.
The Hlaneki judgment decided that the commission does not have the powers to adjudicate on the merits of a claim, ruling that even if there is a one percent prima facie evidence that a claim is valid, the claim must be published in the government gazette as a valid claim. The implication is that Regional Commissioners must deal with land claims cases on the basis of anecdotal evidence. It is a thin line upon which the commission must manoeuvre in order to ensure that our legal technical interpretation is not solely for the sake of intellectual soundness, to the exclusion of more fundamental objectives of rural development. The ultimate goal of the restitution process is for communities to access land for optimal production. It is important that the commission guards against vexatious claims. Remedies for individuals and communities to access land to address other forms of land rights which are not provided for in Section 3 of the Restitution Act are available through Section 3, Section 6 (2) b as well as Section 42E of the Act.
The commission is reviewing several cases where there might be a need for the withdrawal or amendment of the gazette regarding certain land claims, particularly in the KwaZulu Natal, Mpumalanga and Limpopo provinces. In line with Restitution Act, any affected party will be notified accordingly by the Regional Land Claims Commissioner should there be a need for either a withdrawal or amendment to any gazette that has been published.
