Press Release: Speaker of the National Assembly and Others v Land Access Movement of South Africa and 21 others Matter argued in the Constitutional Court on 6 November 2018

 

 

The proceedings set down in the Constitutional Court on 6 November 2018, flow from Constitutional Court’s judgment in Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and others 2016 (5) SA 635 (CC) [LAMOSA Judgment].

In the LAMOSA judgment the court held that  the Restitution of Land Rights Amendment Act 15 of 2014, allowing for the reopening of land claims to be declared unconstitutional.

 

The processing of the new claims would mean that the  processing and finalisation of the old claims would be delayed. The Constitutional Court found that it would not immediately determine the fate of the new claims but would instead afford Parliament 24 months to decide:

i. whether it would re-open the window of new claims;  

ii.what to do about the new claims;

iii.how to regulate old and new claims that competed for the same land.

 

The Court ordered that in the interim, new claims be kept in stasis and the Commission for the Restitution of Land Rights (Commission)  be prohibited from processing the new claims and focus on finalising the old land claims.

 

The Court’s order, in terms of paragraph 7 provided that if Parliament failed to implement legislation  within  24 months; the Constitutional Court would then decide the manner in which the new land claims would be processed.

 

 

 

The 24 months from the initial case of the LAMOSA judgment, has now expired  and Parliament failed to pass the new legislation. The Legal Resources Centre represents four of the original applicants ie. Association for Rural Advancement (AFRA), Nkuzi Development Association, Moddervlei Communal Property Association and Popela Communal Property Association. Parliament has since approached the Court after the expiration of the 24 month period, asking the Court to vary its original order, by extending the original period for another 8 months. The LRC acting on behalf of its clients, have opposed Parliament’s application and have asked the Court in a Counter application to  decide the fate of the new claims, ie. enforce the original LAMOSA order. The basis of the opposition is that by Parliament failing to seek an extension before the 24 month period expired, Parliament accepted that the LAMOSA order must be implemented. Further there is a real risk that Parliament will not pass new legislation even within the requested extended deadline.

 

The legal issues that the Court  will have to decide is:

1.Whether the Constitutional Court has the power to vary the original order, as now sought by Parliament?;

2.If so; whether there are exceptional circumstances that justify the varying of the final order?;

3.Whether the relief sought by the ‘LAMOSA applicants are just and equitable?

 

The significance and public interest in this matter is that the relief sought by the LRC:

1.Recognises the additional delays suffered by the old claimants in having their land claims finalised;

2.Provides an efficient way to process all land claims in light of the Commissions limited resources;

3. Does not deny the new land claimants redress, but merely postpones this.