Land claims are probably one of the most contentious issues facing South Africa’s 22 year old democracy, writes LP Baartman Attorneys.
They involve sentimental family heritage for both the claimant and landowner. South Africans who were forcibly removed from their land, in terms of the Native Land Act 1913, were given until 31 December 1998 to lodge a land claim.
However, this first period for lodgment was a PR crisis because many legitimate claimants missed the deadline. Since the adoption of The Restitution of land Rights Amendment Act in June 2014 – extending the deadline for claims until June 2019 – 57,300 new land claims have been lodged at the Commission on Restitution of Land Rights (The Commission).
This window of opportunity is not a free-for-all solicitation.
A legitimate land claimant must be:
• An individual disposed of a land right after 1913;
• A direct descendant of a person with a land right;
• A juristic person;
• An executor of an estate of a deceased person.
So what happens if your land falls within the pool of new claims? According to the Land Claims Act, a valid claim is published every Friday in the Government Gazette. The landowner is notified of the claim in writing and has 60 days to consent or oppose it.
The process of contesting a land claim:
• The Commissioner may withdraw the claim if the landowner decides that it is invalid. If he or she does not withdraw it, the owner can appeal to the Chief Land Claims Commissioner. If this fails, he or she can take the matter to court.
• If the land owner decides not to oppose the claim, the Commissioner will transfer the land in terms of just and equitable compensation. A valuer will value the land and if the land owner is not satisfied with the compensation amount, he or she can appoint their own valuer to conduct a second valuation. The state and landowner’s valuers compare their amounts and try reach an agreement.
• Before a landowner signs the final agreement he or she must consult an attorney.
New cases and stats:
Western Cape’s Ebenhaeser community faces 22 farmers supporting the R350 million claim and restitution process and 22 who are against it. Besides this unsettled claim, the Western Cape settled the largest number of claims – 194 to the tune of R 1.5 billion.
KwaZulu-Natal’s Roosboom community was compensated with R 55 million by 11 July 2015.
Eastern Cape’s 16, 726 land claims were settled by March 2015.
Gauteng’s Land Claim Commission handed over 32 title deeds and paid over R 50 million in compensation by March 2016.
The land claim process is clearly ongoing and seems sustainable, albeit with a massive backlog. The Restitution of Land Rights Act can impose a 5 month imprisonment punishment for a claimant or landowner that attempts to unlawfully prevent, obstruct or unduly influence another party from exercising his rights. In order for there to be a fair outcome, it is important for all parties involved to follow the restitution process with patience, respect and dignity.