Land battle back in court

Published by The Star  19 October 2018

THE battle over the state’s bid to process new land claims while it has not settled those brought 20 years ago is headed for a fresh round at the Constitutional Court.

Admitting to have failed to comply with the court’s order to re-enact legislation within 24 months to enable processing of new claims, Parliament has pleaded for an extension of deadline.

The state sought to be allowed to process the 163 383 new claims it accepted between 2014 and 2016.

Justice Mbuyiseli Madlanga’s 2016 ruling interdicted processing of these claims, saying they were accepted based on and invalid legislation.

“This matter concerns the painful, emotive subject of colonial and apartheid-era land dispossession”, Madlanga said at the time.

The ruling went in favour of the Land Access Movement of South Africa (Lamosa), which sought to have the state ordered to settle all old claims.

These land restoration applications were lodged up until December, 1998.

The Land Claims Commission revealed 5 757 old claims remained unprocessed by March this year.

An estimated 20 000 communities were still waiting for transfer of land they successfully claimed.

The land commission fell short of the R35 billion required to buy the land from its wrongful holders. It was allocated just about R10bn for this purpose.

Phumzile Ngwenya-Mabila, chairperson of the portfolio committee on rural development and land reform, asked the Constitutional Court to grant Parliament eight more months to finalise the Restitution of Land Rights Amendment Act.

“The delay in finalising the legislative process within a period of 24 months was not a result of dilatoriness. The period of 24 months was simply not adequate for Parliament to conclude the legislative process,” Ngwenya-Mabila said.

She said Lamosa and other opposing parties would not be prejudiced.

But in her papers, Lamosa’s Constance Mogale hit back against Ngwenya-Mabila’s arguments.

Mogale said the plea was tantamount to “asking this court to do nothing for eight months”.

She brought a counter-application which asked the Constitutional Court to order the state settle old claims before processing the new ones.

“(We) submit that the appropriate remedy is for this court to rule finally that old claims will be prioritised over new claims,” said Mogale.

“A mere extension of the 24-month period is not the appropriate remedy.

“The appropriate remedy is to rule on the status of new claims, and the priority to be afforded to old claims, and for this court to end its supervisory role,” Mogale said.

The Constitutional Court will hear the matter on November 6.

Bongani Nkosi – the Star

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