Press Release: LRC welcomes ConCourts LAMOSA judgment and call for Expediting the Processing of Land Claims

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Press Release: LRC welcomes ConCourts LAMOSA judgment and call for Expediting the Processing of Land Claims

Press Release: LRC welcomes ConCourts LAMOSA judgment and call for Expediting the Processing of Land Claims

Published by the Legal Resources Centre 20 March 2019

Press Release: Speaker of the National Assembly and Others  v Land Access Movement of South Africa and 21 others
Judgment  handed down on 19 March 2019
 
For Immediate Release: 20 March 2019
 
 
The Legal Resources Centre represented four of the original applicants ie. Association for Rural Advancement (AFRA), Nkuzi Development Association, Moddervlei Communal Property Association and Popela Communal Property Association.
 
1.Parliament had 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, opposed Parliament’s application and asked the Court in a Counter application to decide the fate of the old and new land claims.
 
2.The main  issue that the Constitutional Court had to determine was whether the Court may grant the extension sought by Parliament and, if so, whether it is just and equitable to do so. 
 
3.Parliament approached the Court three days after the expiry of the 24-month period.  The Court in its judgment found that “Parliament knew in March 2018 that it would not be able to meet the 24-month deadline and finalise the process for the enactment of a new Amendment Act.  Yet it only brought an application after the 24-month period had expired”.
The Court further found that Parliament took no action for almost 11 of the 24 months provided by this Court.  When Parliament did act, the process was very slow.  The tardiness of Parliament  was deemed by the Court to be unacceptable.
 
4.The second factor that the Court took into account was whether the process for the enactment of a new Amendment Act will be finalised by 29 March 2019. The Court correctly found that the prospects of enacting a new Amendment Act within the proposed timeframe, if the extension was granted, is unlikely. The Court accordingly dismissed the application by Parliament. 
 
5.The Court noted that nothing prevents Parliament from enacting the legislation if the extension is not granted.
 
6.In light of the dismissal of Parliament’s application, the  Court was then tasked with providing a just and equitable remedy in respect of the interdicted claims.
The Chief Land Claims Commissioner was a Respondent in the Application, however, the Commission did not provide the Court with insight into the peculiarities and challenges that it encounters.  Nor did it indicate how those should inform this Court’s decision on the processing of the interdicted claims. 
 
 
The following order was handed down by the Constitutional Court:
 
1. The application by the applicants for an extension is dismissed.
 
2. The counter-application by the first to sixth respondents is upheld to the following extent, subject to the Parliament of the Republic of South Africa legislating otherwise:
 
(a) The Commission on Restitution of Land Rights (Commission) is prohibited from processing in any way any claims lodged in terms of section 10 of the Restitution of Land Rights Act 22 of 1994 (Restitution Act) between 1 July 2014 and 28 July 2016 (interdicted claims) until the earlier of the dates when—
 
(i) it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998 (old claims) by way of a referral of the claim in terms of section 14; or
 
(ii) the Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing interdicted claims, whether in respect of the whole or part of the Republic of South Africa and whether in respect of part or all of the process for administering an interdicted claim.
 
(b) Until the date referred to in paragraph (a), no interdicted claim may be adjudicated upon or considered in any manner whatsoever by the Land Claims Court in any proceedings for the restitution of rights in land in respect of old claims, provided that interdicted claimants may be admitted as interested parties before the Land Claims Court solely to the extent that their participation may contribute to the establishment or rejection of the old claims or in respect of any other issue that the presiding judge may allow to be addressed in the interests of justice.
 
(c) Notwithstanding the provisions of section 11(5) and 11(5A) of the Restitution Act, no interdicted claimant shall be entitled to any relief having the effect of—
 
(i) altering or varying—
 
(a) the relief granted to any claimant in terms of section 35 of the Restitution Act in respect of a finalised old claim;
 
(b) the terms of an agreement concluded in terms of section 42D of the Restitution Act; or
 
(c) an award in terms of section 42E(1)(a) or (b) of the Restitution Act, unless the Land Claims Court in exceptional circumstances orders otherwise; and / or
 
(ii) awarding to such interdicted claimant land or a right in land that is subject to a pending claim for restoration by an old claimant.
 
(d) The Chief Land Claims Commissioner must file a report with the Land Claims Court, to be dealt with as the Judge President of that Court may deem fit, at six-monthly intervals from the date of this order, setting out—
 
(i) the number of outstanding old claims in each of the regions on the basis of which the Commission’s administration is structured;
 
(ii) the anticipated date of completion in each region of the processing of the old claims, including short-term targets for the number of old claims to be processed;
 
(iii) the nature of any constraints, whether budgetary or otherwise, faced by the Commission in meeting its anticipated completion date;
 
(iv) the solutions that have been implemented or are under consideration for addressing the constraints; and
 
(v) such further matters as the Land Claims Court may direct;
 
until all old claims have been processed.
 
(e) The Land Claims Court may make such order or orders as it deems fit to ensure the expeditious and prioritised processing of old claims.
 
3. The applicants are jointly and severally ordered to pay the costs of the first to sixth respondents, including the costs of two counsel.
 
The judgment is welcomed by the Legal Resources Centre, we have no doubt that this judgement will expedite the processing of the old land claims, as the Chief Land Claims commissioner  now is obliged to file a report every six months to the Judge President of the Land Claims Court, setting out the progress of the old land claims, including the nature of constraints faced by the Commission, until all old land claims have been processed.
 
The importance of this judgment was beautifully summed up in the Concluding comments by the Constitutional Court: “The link between land and dignity and the realisation of other constitutional rights, as highlighted in LAMOSA 1, is indicative of the magnitude of the restitution process and what could be achieved.  Any further delays in this process will hinder the realisation of constitutional rights.  We cannot afford to jeopardise the practical and symbolic outcomes of land restitution.  The land reform process, if administered appropriately and expeditiously – and with the guiding lights of our Constitution – can still have the potential to be a catalyst for structural change in our society.
 
The continued delay in the proper processing of land claims is having a debilitating effect on the land reform project.  An expeditious land restitution process will not only increase the number of claims settled, but could also contribute to a wider, more striking consciousness that centres on the constitutional values of equality and dignity, and give rise to ideals of social justice, identity, the stimulation of economic activity, the promotion of gender equality and a contribution towards the development of rural livelihoods.”
 
The full judgment can be found on the Southern African Legal Information Institute (SAFLII) website : https://t.co/8jQddxqRoH
ENDS
 
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NOTE: For more information or media queries, please contact:
  • Mrs. Anneline Turpin (LRC attorney): anneline@lrc.org.za
  • Mr. Tad Khosa (LRC National Communications Officer) tad@lrc.org.za or 0813460180
The LRC is an independent, non-profit, public interest law clinic, which uses law as an instrument of justice to provide legal services for the vulnerable.
 
 
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