LRC WELCOMES CONSTITUTIONAL COURT JUDGMENT AND ITS CALL FOR EXPEDITING LAND CLAIMS – March 20, 2019

In 1994, South Africa’s Parliament passed the Restitution of Land Rights Act, establishing a system allowing people and communities who had lost their land due to racially discriminatory laws to claim restitution of that land or equitable redress. Approximately 80,000 claims were lodged by the deadline of 31 December 1998 established by the Act, but by 2014 – sixteen years later – over 20,000 claims still had not been finalized.

In 2014, Parliament enacted the Restitution of Land Rights Amendment Act, which re-opened the restitution process, allowing new land claims to be lodged until 30 June 2019. However, the Land Access Movement of South Africa (LAMOSA) challenged the procedures used to pass the Amendment Act, arguing that public involvement had not been facilitated and that Section 6 of the Act regarding the priority of claims was incurably vague.

On 28 July 2016, the Constitutional Court held that re-opening land claims, which the Amendment Act sought to do, was of paramount importance, but the Court declared the Amendment Act to be invalid because the public participation process had been unreasonable. The Court prohibited the Commission on Restitution of Land Rights from processing any new claims in order to ensure that old claims were not superseded. And the Court ordered Parliament to facilitate the enactment of a new Amendment Act within 24 months to deal with the issue of re-opening land claims. The Court noted that the Commission could proceed with new claims if all old claims were finalized before Parliament enacted a new Amendment Act.

The South African Parliament failed to enact a new Amendment Act within the 24 month period. Two days after the expiration of the 24 month period, Parliament applied to the Constitutional Court for an extension until 29 March 2019. The Court granted an interim extension, pending the outcome of the application.

Representing four of the original applicants, the LRC opposed the application, arguing that the Court’s order in 2016 was final and the matter should now be determined by the Court. They argued, as well, that the older land claims should be prioritized over the newer claims.

In its judgment on 19 March 2019, the Constitutional Court noted that Parliament was aware that it would not be able to meet the 24 month deadline but did not approach the Court for an extension until after the deadline had expired. The Court noted, too, that Parliament took no action for nearly one year during the 24 month timeframe. The Court concluded that the prospect of enacting a new Amendment Act by the proposed timeframe of 29 March 2019 was unlikely. Therefore, the Court dismissed the application by Parliament.

The Court upheld the counter application filed by the LRC on behalf of the respondents, ruling that, subject to the Parliament legislating otherwise, the Commission on Restitution of Land Rights is prohibited from processing in any way any claims lodged between 1 July 2014 and 28 July 2016 until it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998, or the Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing new claims.

The Court also ruled that the Chief Land Claims Commissioner must file a report to the Judge President of the Land Claims Court every six months, reporting progress with finalizing the old land claims, including the nature of constraints faced by the Commission, until all old land claims have been processed.

The LRC welcomed this important judgment, noting the crucial link between land, dignity, and the realization of rights guaranteed by South Africa’s democratic Constitution.

The full judgment can be found on the Southern African Legal Information Institute (SAFLII) website at https://t.co/8jQddxqRoH

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