The implications of the Constitutional Court ruling on the Restitution of Land Rights Amendment Act, 2014 on the operations of the Commission
Introduction
This media briefing therefore serves to update the people of South Africa, land claimants and our land reform stakeholders on the implications of the judgment on the operations and mandate of the Commission.
The Restitution of Land Rights Amendment Act, 2014, inter alia, reopened the lodgement of land claims for a period of five years, calculated from 1 July 2014 to 30 June 2019. The validity of the Amendment Act was challenged by civil society organisations on the basis that Parliament failed to conduct public participation in the manner required by the Constitution. The Constitutional Court upheld the challenge, and declared the Amendment Act invalid effective from 28 July 2016.
Implications
The implications of the judgement to the Commission are as follows:
- The immediate effect of the order is that (subject to the important qualifications set out below) from 28 July 2016 the Restitution Act must be read as though the Amendment Act was never enacted.
- Potential claimants who had not lodged claims by 27 July 2016 may therefore no longer do so. For them, the claims lodgement deadline of 31 December 1998 has been reinstated.
- Already pending new order claims (those lodged prior to 27 July 2016) are protected (validly lodged) and remain claims for the purposes of the Restitution Act. The Commission is however interdicted from processing those claims until Parliament passes a new law that reopens the lodgement of claims, or if the Commission settles or refers to the Land Claims Court all claims lodged by 31 December 1998.
- If Parliament does not re-enact legislation re-opening lodgement of claims by 27 July 2018, the Chief Land Claims Commissioner is required to approach the Constitutional Court for directions on how the Commission is to process the already pending new order claims.
- The order does not expressly deal with the powers of the Land Claims Court in relation to the pending new order claims. In this regard, the Land Claims Court will, in the Amaqamu and Emakhasaneni court cases that will be heard on 19 to 23 September 2016 the Land Claims Court will determine:
- The status of new order competing claims in light of the Judgment;
- The effect of the Judgment on the adjudication of pending land claims lodged by 31 December 1998 in cases where competing land restitution claims have been lodged on 1 July 2014.
The Commission shall shift the resources that were meant for the lodgement of claims to the research and settlement of claims. The Commission shall prepare for settlement all claims lodged by 31 December 1998. Their settlement will depend on the resources to be allocated.
Before the invalidation of the Amendment Act the Commission had received 166, 560 claims nationally and 17 638 in our Province. The Commission is presently conducting an audit to determine whether there are no duplicates claims and will be issuing a report at a later stage on the final lodgement that took place by 27 July 2016.
Status on Claims
Presently, there are 7419 old land claims that have not yet been settled nationally. There are 822 outstanding claims in the Eastern Cape Province.
16 816 claims have been settled cumulatively as at 31 March 2016 in our Province.
The settlements have resulted in the award of 143795 hectares and payment of R2 161 071 382.13 financial compensation in our Province.
A total of 75350 households (305546 individuals) have benefitted from the restitution programme as at 31 March 2016 in our Province
Way forward
The re-opening of lodgement of claims remains a policy of Government. The Portfolio Committee is finalising its discussions regarding the way forward on a Bill reopening the lodgement of claims.
