Properties by Wiltinnet

Land rights issues .

Commission on restitution of Land Rights

In 1995, Government opened its doors for people who had lost their land rights during the days of apartheid. Since then, the Land Claims Commission has played an important role in facilitating and processing land claims, making sure that valid land claims are successful.
In the first three years, the Commission on Restitution of Land Rights received 63 455 claims from individuals, families and communities that were forcibly removed from land because of racial laws. As a service to the claimants, the Commission offices throughout the country do the work of validating claims. They have access to government records showing where people were forcibly removed and the racial laws under which they were removed. Claimants also get the opportunity to tell their stories.

In total, it is estimated that the claims will benefit 3,9 million people. This is certainly an overwhelming endorsement of the restitution process by the public.

THE RESTITUTION OF LAND RIGHTS ACT

In 1994, Government passed the Restitution of Land Rights Act, 22. The Act protects the rights of legitimate claimants to restitution. It also lays down the rules for acceptance of claims.

Claims that are acceptable are those of individuals, families and communities who were forcibly removed from land due to racial laws.
Only people who were forcibly removed from land after 19 June 1913, have a right to restitution.
Even the rights of people who did not have title deeds are respected. These can be tenancy rights, the right to have access to ancestral graves, the right to graze stock, etc.
For a claim to be valid, it must have been lodged on or before 31 December 1998.

Claims which are not acceptable are those of people who received fair and equitable compensation at the time of removal.

WHERE LAND RESTORATION IS NOT POSSIBLE

The aim of restitution is to give land back to the claimants. But sometimes it is not possible to restore the original land that claimants have lost.

This could be due to major buildings being erected or other development activity happening on the claimed land. In such cases it would not be possible to remove the developments without causing social and economic disruption to the country.

Sometimes the land claimed is part of a conservation area or a national forest. Claimants have needs for housing, for farming and to make a living on land. A conservation area cannot meet these needs and preserve its status as a national heritage. The nation would also lose the revenue that is generated by these tourism sites.

Sometimes it is risky to the health and safety of claimants to have them restored to the original land. For example, where the land has become a mining site or military base.

OTHER RESTORATION OPTIONS

The land Claims Commission assists claimants in making informed choices on available restitution options.

Where original land cannot be restored, claimants can negotiate the following:

To be allocated alternative land
To be paid financial compensation
To be given priority to benefit from planned developments on the land claimed, and share in the financial benefits arising from the development.

The circumstances surrounding each claim, determine how that claim will be settled. The Land Claims Commission facilitates negotiations between parties concerned, to ensure amicable solutions and to safeguard the rights of claimants.

THE PROCESS OF SETTLING RESTITUTION CLAIMS

PHASE 1: LODGEMENT
The closing date for lodging claims was 31 December 1998. Once claims have been received they are registered on the Commission’s database.

PHASE 2: SCREENING
The commission checks claims for acceptance in terms of the criteria set by the Restitution Act. Co-operation from claimants is vital, as sometimes only they can supply the information to support their claim.

PHASE 3; PUBLICATION OF NOTICE
If the claim is accepted, the Commission publishes it in the Government Gazette and the newspaper. This is to inform other parties who may have a stake or interest in the claim.

Extraction fromRestitution of Land Rights Act, 1994 (Act 22 of 1994)

If the original land claims commissioner having jurisdiction is satisfied that

the claim has been lodged in the prescribed manner;
the claim is not precluded by the provisions of section 2 (1) or (1a); (Para. (b) Substituted by s. 5 (a) of Act 78 of 1996.1
the claim is not frivolous or vexatious; and
no order has been made by the Court in terms of section 35 in respect of rights relating to that land, he or she shall cause notice of the claim to be published in the Gazette and shall take steps to make it known in the district in which the land in question is situated.

The regional land claims commissioner concerned may, on such conditions as he or she may determine, condone the fact that a claim has not been lodged in the prescribed manner.

A frivolous or vexatious claim may be dismissed by the regional land claims commissioner concerned.

If the regional land claims commissioner decides that the criteria set out in paragraph (a), (b), (c) and (d) of subsection (1) have not been met, he or she shall advise the claimant accordingly, and of the reasons for such decision.

If an order has been made by the Court as contemplated in section 35 in respect of a right or rights in land, no person may lodge a claim in respect of that land without the leave of the Court.

(Sub-s.(5) substituted by s 5 (b) of Act 78 of 1996 and by s. 7(a) of Act 63 of 1997.)

Immediately after publishing the notice referred to in subsection (1), the regional land claims commissioner shall by notice in writing –

advise the owner of the land in question and any other party which, in his or her opinion, might have an interest in the claim of the publication of the notice; and
refer the owner and such other party to the provisions of subsection (7).

(Sub-s. (6)substituted by s5 © of Act 78 of 1996.)

Once a notice has been published in respect of any land-

no person may in an improper manner obstruct the passage of the claim;

No person may sell, exchange, donate, lease, subdivide, rezone or develop the land in question without having given the regional land claims commissioner one month’s written notice of his or her intention to do so, and, where such notice was not given in respect of-
any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision or rezoning or grant any other order it deems fit;
any development of land and the Court is satisfied that such development was not done in good faith, the court may grant any order it deems fit;
- no claimant who occupied the land in question at the date of commencement of this Act may be evicted from the said land without the written authority of the Chief Land Claims commissioner;
- no person shall in any manner whatsoever remove or cause to be removed, destroy or cause to be destroyed or damage or cause to be damaged, any improvements upon the land without the written authority of the Chief Land Claims commissioner’
- no claimant or other person may enter upon and occupy the land without the permission of the owner or lawful occupier.

(Sub-s.(7) substituted by s. 5 (d) of Act 78 of 1996 and by s. 7(b) of Act 63 of 1997.)

The regional land claims commissioner may, at any time after the publication of a notice contemplated in subsection (1), if he or she has reason to believe that any improvement on the land is likely to be removed, damaged or destroyed or that any person resident on such land may be adversely affected as a result of the publication of such notice, authorize any person contemplated in section 8 or 9 to enter upon such land for the purpose of drawing up an inventory of any assets on the land, a list of persons employed or resident on the land, or a report on the agricultural condition of the land and of any assets on the land, a list of persons employed or resident on the land, or a report on the agricultural condition of the land and of any excavations, mining or prospecting thereon.

(a22y1994s11A)11A Withdrawal or amendment of notice of claim

Any person affected by the publication of the notice of a claim in terms of section 11 (1) may make representations to the regional land claims commissioner having jurisdiction for the withdrawal or amendment of that notice.
Where during the investigation of a claim by the Commission the regional land claims commissioner having jurisdiction has reason to believe that any of the criteria set out in paragraphs (a), (b), (c) and (d) of section 11 (1) have not been met, he or she shall publish in the Gazette and send by registered post to-
- The claimant;
- The owner; and
- Where applicable, a person who has made representations in terms of subsection (1) and any other party, who to his or her knowledge, may have an interest in the claim,

        A notice stating that at the expiry of the period mentioned in the notice, the notice of the claim published in terms of that section will be withdrawn unless cause to the contrary has been shown to his or her satisfaction.
      3.     At the expiry of the period contemplated in subsection (2), the regional land
              Claims commissioner shall, unless cause to the contrary has been shown to his or
              Her satisfaction, withdraw the notice of claim and –

advise the persons mentioned in the subsection by notice sent by

registered post;

cause notice of his or her decision to be published in the Gazette; and
take other steps to make his or her decision known in the district in which the land in question is situated.

4.     The regional land claims commissioner having jurisdiction may, during the
        investigation of a claim by the Commission and after following the procedure
       set out in subsection (2), unless cause to the contrary has been shown to his or her
       satisfaction, amend the notice published in terms of section 11 (1), where after
       the provisions of paragraphs (a), (b) and (c) of subsection (3) shall apply mutatis
       mutandis; Provided that the regional land claims commissioner may, without
       following the procedure set out in subsection (2), amend the notice to correct any
       obvious error in it, and cause notice of his or her decision to be published in the
       Gazette.

PHASE 4: PREPARATION FOR NEGOTIATIONS.
The Commission produces a case report on the claim. Options are presented to help claimants make informed choices. The land is valued and the valuation is used to help parties agree on just and equitable compensation.

PHASE 5: NEGOTIATION.
The Commission brings parties together to negotiate the settlement of a claim. Parties can be current landowners, developers, local councils or any other party that may be affected by the claim.
Where necessary, the Commission uses mediation to help parties resolve disputes. If mediation fails, the Commission refers disputes to the Land Claims Court.

PHASE 6: SETTLEMENT OF CLAIMS
Once agreement on how to settle a claim has been reached, the Commission refers the agreement to the Land Claims Court to have it made a Court ruling. To avoid delays, the Restitution Act was amended so that parties could settle claims out of court. Now the Minister of Land Affairs can make awards for restitution without having to refer the agreement to court. This can be done where parties have reached an amicable solution on how to settle a claim. Many more claims will now be settled through this administrative method.

CONTACT DETAILS OF THE LAND CLAIMS COMMISSION:

The Land Claims Commission has offices in the following location throughout the country:

CHIEF LAND CLAIMS COMMISSIONER                        REGIONAL LAND CLAIMS
COMMISSION
HEAD OFFICE                                                  EASTERN CAPE
184 Jacob Mare Street                                           Caxton House
Private Bag x833                                                        Caxton Street
Pretoria                                                                  P.O. Box 1375
0001                                                                        East London, 5200
Telephone number: (012) 312-9146                                Telephone number: (043)
                                                                                743-3824
Fax Number: (012) 312-9240                                                Fax Number: (043) 743-3687

REGIONAL LAND CLAIMS COMMISSION             REGIONAL LAND CLAIMS
                                                                                COMMISSION
GAUTENG AND NORTH WEST                            KWAZULU NATAL
9 Bailey Street                                                      2nd Floor, African Life
Private Bag x03                                                  200 Church Streett
Arcadia                                                                  Private Bag x9120
0007                                                                        Pietermaritzburg, 3200
Telephone Number: (012) 310-6500                                Telephone Number: (033)
                                                                                342-6955
Fax number: (012) 324-5812                                                Fax Number: (033) 342-3409

REGIONAL LAND CLAIMS COMMISSION             COMMISSION OFFICE
WESTERN AND NORTHERN CAPE                             FREE STATE
Matrix House                                                        SA Eagle Building
73 Stand Street                                                            Cnr Maitland and Aliwal Streets
Private Bag x9163                                                      Bloemfontein
Cape Town, 8000                                                        9300
Telephone number: (021) 426-2930                         Telephone number: (051)
                                                                                430-3730
Fax number: (021) 424-5146                                                Fax number: (051) 430-2392