297 See section13 of the Restitution of Land Rights Act 22 of 1994.
298 See section13 of the Restitution of Land Rights Act 22 of 1994.
certain proposal made, the parties will then have a settlement agreement based on the suitable proposal. After the mediation process, if the commissioner is of the opinion that it is not feasible that the claim may be resolved by mediation or with the consent of the parties, the commissioner certify accordingly and refers the matter to Land Claims Court for adjudication.298
However, the land claims court does not necessarily have inherent jurisdiction to hear all land disputes, the land claims court jurisdiction is not extended to land matters in which disputes arise from the administration of monetary compensation by claimants, administration and functioning of CPA’s. The court jurisdiction is limited to the disputes arising from land claims and counter claims.
In the case of Saziso Mndiyataand and Others vs Umgungundlovu Communal Property Association and Others (LCC10/2018) the community of Mgungundlovu (the claimant community) which is situated at Bizana Administrative District in the Eastern Cape Province, was forcefully removed from their ancestral land in the 1980’s after the former Transkei homeland government signed a lease agreement over their land with Transkei Sun International Limited (Transun) for a development of a resort, casino and a golf course.
The claimant community instituted a claim with the regional commissioner on the 25th of September 1995, in terms of the Restitution of land Act, 22 of 1994. The land being claimed was saved for the wild coast sun, largely undeveloped. The claim was referred to Land claims court in terms of Section 38B of the Restitution of Land Act in 2011. After the exchange of pleadings, the parties eventually entered into a settlement agreement. The settlement agreement was made an order of the court on the 10th November 2014.The claimant was paid a sum of R50 million by the Minister as part of their settlement.
In 2015 the claimant community (Umgungundlovu community) registered the CPA on the 26th September 2015 in accordance with the CPA Act, subsequent to that the claimant community had an election for appointment of the CPA’s management committee; twelve people were elected. Prior to the election, there were other two committees that represented the claimant community in the land claim matter. An urgent application seeking to interdict the respondent from utilising funds held in the CPA was brought before the Land claims court. The application alluded issues relating to misusing of the CPA’s funds and other
300 See section 22 of the Restitution of Land Rights Act 22 of 1994.
governance related issues. It was held that the Land claims court has no jurisdiction to hear matters related to CPA’s governance conduct. The matter was dismissed with no order to costs.299
The scope and jurisdiction of Land claims court is in relation with determining the following:
person entitled to the title to land, endorsement of reimbursement allocated with regard to land owned by or in possession of the private person upon expropriation and whether compensation received by a person at the time of dispossession of right in the land was just and equitable.300 When determining whether the compensation was just and equitable at the time of dispossession, the court will check the market value of the land at the time and the actual compensation made in respect of that land in order to arrive at the conclusion whether the compensation was just and equitable or not. In determining what is just and equitable in expropriation, a balance must realise between the interest of the private owner and that of the public interest, thus, to weigh the interest of the private owner and that of the public and decide which interest is more significant. Hence, compensation that is below market value can be compliant to the constitution if it qualifies as just and equitable.
However, the question of just and equitable compensation as contemplated in Section 25(3) may no longer be interpreted to mean compensation that is equivalent to property that is expropriated, taking into account the state’s intention to expropriate land without compensation. and the proposed amendment of Section 25 of the Constitution. The effect of the proposed expropriation will do away with the question of determining a just and equitable compensation in terms of the appreciation value of the property to be expropriated, that is inclusive of land in question. This will consequently ensure balance of just compensation for developments made and expropriation without compensation of the land that was forcefully taken away from black people. This will instead lead to state not wasting money in expropriating land. However, the state would expropriate land without spending money for compensating the private owner, although the state will not unduly enrich itself with developments made on the land in question. Instead, the state will compensate for developments made on the land and such development evaluation would not be calculated with the value of the land in question. This will ensure a speedy acquisition of land by state.
Ultimately it will ensure speedy process of redistributing land to the people. However, it may
299 Saziso Mndiyataand and Others vs Umgungundlovu Communal Property Association and Others (LCC10/2018).
have a negative impact on food security, expropriation of land that is used productively; it will stop or slow the pace of production and this will have a great impact on the gross domestic products (GDP), unless measures of securing food security are taken before hand.
South Africa depends on domestic products for food; farming for agricultural purposes is the main source of food for South Africans. Tempering, or rather slowing the pace of agricultural activities would have an adverse effect on the supply of food within the country. When land that is used for agricultural purposes is expropriated there must be a way of continuing business on that land or the expropriation will serve no purpose in alleviating poverty amongst black people. Hence, the need to have policy drafts in place prior to expropriating land without compensation to address the threatened food security, agricultural activities and investors’ confidence. Furthermore, ensure that the expropriation without compensation does not have a negative effect on the food security, agricultural activities and other developmental activities from continuing their normal business.
4.4.1 Land redistribution
The purpose of the land redistribution programme is to “provide people with land for housing in urban and rural areas as well as land for farming purposes”.301 This is in terms of Section 10 (1) of the Provision of Certain Land for Settlement Act 28 of 1996. The state identified that the normal or market value prices for land are not accommodating to poor people.
Hence, the state opted to assist less privilege people to buy land using the land grants provided for by the state as a quicker way to facilitate land reform. The state has made land brought from willing buyer and willing seller initiative available to people, however such land was brought with a hefty price by the state. Costing the state, a lot of money which resulted in state failing to balance availing land for redistribution and providing post-settlement support services to land reform beneficiaries. This regrettable initiative has extorted a lot of money from the state and consequently failed to meet the needs of land reform beneficiaries and thus possession of land and economic status that enables land reform beneficiaries to fund their projects and utilise the land productively. The willing buyer and willing seller (is a principle where by state bought land from willing sellers on market value price for purposes of redistribution) is different from expropriation yet have almost similar outcomes of costing hefty amounts. Expropriation is, where the state obliges the owner to sell or cede their
301 Wandile Sihlobo and Tinashe Kapuya, Special report the truth about Land ownership in South Africa.23 July 2018.
property for the benefit of the public. Expropriation is applicable as the last option.302 Where land is obtained for land reform by purchasing or expropriating, the state is duty-bound by the Constitution to pay for a fair compensation.303As a result, those who have their land expropriated have the states guarantee for compensation. However, this position may not be relevant in the near future as per the state proposed expropriation without compensation.
Land redistribution programme is focused on providing landless people with land to better themselves. This is in terms of Section 10 of the Provision of Land and Assistance Act 126 of 1993. Thus, to actively utilise land to generate income and combat hunger and starvation.
The standard procedure for any person who wishes to acquire land under the Land Redistribution Programme is that the applicant must communicate his intentions with the office of the Department of Land Affairs within the province concerned. The applicant must provide personal information including, where the applicant is looking for land and clarify of what the land is to be used for. If the request for assistance is made in accordance with the required information and appropriate, the applicant will be required to complete a Registration-of-Interest Form. A request for a Settlement Planning Grant will then be prepared, on their behalf, by the official concerned and submitted to the relevant Provincial Director.304
The grant may be obtained by under-resourced, poor or rural local authorities for use in preparing Land Development Objectives in terms of the Development Facilitation Act (DFA).305 This required local authorities to outline a development vision for their respective areas and to engage with local stakeholders and other relevant parties in the preparation of the application. In order to ensure that the proposed developments are in line with the needs of the community. When the Department of Land Affairs funded the preparation of Land Development Objectives, a condition of the grant was that land reform planning was undertaken as part of the exercise. Therefore, it necessitated for proper compliance with the DFA provisions. This initiative was intended to encourage a harmonised land reform programme with the development plans.306
302 Paralegal Manual 2016, <paralegal.org.za>last accessed 27/03/21.
303 White Paper (n10).
304 Ibid note 303.
305 White Paper (n10).
306 Ibid note 305.
The sustainability of the land reform programme in both rural and urban areas requires support services such as skills and training programmes, funds, mentoring and monitoring programmes and infrastructure such as industrial firms that allow people to use the land productively. Land reform also exerts additional pressure for the provision of water services, sanitation, infrastructure, housing, agricultural extension and so on.307 The long-term success of land reform is closely linked with the degree at which it is a pivotal part of regional and provincial level planning.308 Land reform is intended to make available land to blacks and ensure that tenure security systems of communal land is updated to the expected policy requirements as per by laws and regulations of local and provincial government.
The land financial allowance is to help extremely poor communities to plan of the acquirement, usage and improvement of acquired land and the deployment of resources needed to achieve this. The grant could also be utilised to empower reform initiatives assumed by other institutions; for instance: local or traditional leadership, NGOs (such as churches) who desire to utilise their land but do not have adequate resources to achieve implementation of land reform projects. Moreover, the grant makes it possible for those operating in land reform initiatives to select and assign Department of Land Affairs accredited planners and other professional planners from private firms and NGOs, with whom they will collaborate with on a strategy for land reform. The services that the grand can cover include financial and legal planning assistance, infrastructure planning, land usage planning, land valuation and assistance with land procurement deliberations, which also includes legal entity formation.309
4.4.2 Land restitution
Land claims were generally lodged against the state. In light of this, any community or any person that was formerly deprived of a right to land after 19 June 1913 as a result of the discriminatory practices on basis of race, and who were not offered any fair and equitable compensation at the time they were dispossessed, were advised to lodge a claim for the restoration of such a right, or equitable redress. Individuals who have lodge a claim before, however have not as yet received any compensation, can follow up their claims by issuing
307 White Paper (n10).
308 Ibid note 307.
309 White Paper (n10).
inquiries with their respective provincial departments to confirm that the offices have their first claim, before another claim, before relodging a claim.310
There were 14 lodgement offices situated across the nine provinces in the country. Claims were lodged at a designated lodgement office on a prescribed form, which is captured electronically during lodgement. A Commission on Restitution of Land Rights official assists the claimants to complete the claim form. Claim forms are not distributed to the public.
Hence, prospective claimants visit the offices of lodgement and physically submit their claim.
Once all required documents have been submitted, the Commission investigates the merits of each claim. If there are disputes, the Commissioner conducts an arbitration to resolve disputes and inform the claimants about the progress on the claim at regular intervals or on request.311 Should the matter still not be resolve, the Commissioner was required to direct the matter to land claims court for hearing. However, claims against specific portions of land are no longer filed, this was the position before end of 1998. Recently, people rely on application of grants to buy land on market; although, the grant amount is usually not enough to buy land. Hence, most of the people would be required to add on grant amount in order to satisfy the purchase price. But with the new proposed expropriation without compensation, perhaps acquisition of land could be of affordable price to everyone. The proposed expropriation without compensation could positively contribute to speedy delivery of land to land reform beneficiaries. Consequently, assist the state to use the funds budgeted for compensation to increase the grant amount and enable Black people to buy land on market individually than in groups, simply because they had no choice but to partner due to insufficient grant amounts.
Restitution of land to Black people does not only mean restoration of land or compensation where restoration of land is not feasible, but it also means restoration of livelihoods. Before land was dispossessed from Black people it was their only source of livelihood. Black people relied on farming for food crops, however when Black people were forced to relocate from arable land to non-arable, they could no longer farm but had to find other means to fend for their families. Hence restoration of arable land to Black people will encourage continuation of farming and restoration of way of living to black people. Therefore, the need for restoring
310 Department of rural development and land reform,
<http://www.ruraldevelopment.gov.za/component/content/article/347-land-claim/re-opening/771- faq#.VaisNo6_TK8>, last accessed 26/03/2021.
311 Ibid note 310.
land to Black people is closely associated with the need for Black people finding their ways of living, and thus restoring Black people to their stable social and economic status.
However, this will require the state to support land reform beneficiaries to utilise their land productively. In order to achieve this the state will need to provide comprehensive post- settlement support services, and thus support service that takes into consideration the lack of funds, skills, Knowledge and resources for the current modernised farming. However, in as much as land reform beneficiaries need state assistance to utilise their land productively, the state is also experiencing challenges regarding available resources to assist land reform beneficiaries. The state needs to try other alternatives of minimising cost whilst providing satisfying services to land reform beneficiaries. One of the alternatives that the state is exploring currently is Expropriation without compensation. Although the process does not come with solutions only but have its fair share of notable challenges that can affect food security. However, with a well drafted policies challenges such as food security and other agriculture related problems could be avoided whilst expropriation without compensation relieves the state from financial burdens of acquiring land. Consequently, reserve such funds for a comprehensive post-settlement support services to land reform beneficiaries.
4.4.3 Land tenure reform
The vision of a land policy and land reform programme contributes to reconciliation, stability, growth and development in an equitable and sustainable way. It is suggestive of an active land market underpinned by an effective and attainable institutional framework.312 If in an urban context this was be applicable, the poor would have secured access to well-located land for the provision of shelter. The focus of land reform programme on poverty is targeted at accomplishing a better quality of life for the extremely poor citizens. Accordingly, land reform targets to make meaningful contribution to economic advancement, by giving families the opportunity to get involved in profitable usage of land and by generating more employment opportunities by encouraging greater investment. White Paper envisages a land reform which creates a rural landscape consisting of small, medium and large farms;
one which promotes efficiency and equity through a conclusive agrarian and industrial plan in which land reform is the core of economic and development growth.313
312 Department of Rural Development and Land Reform, www.ruraldevelopment.gov.za, last accessed 01/09/2020.
313 White Paper (n10).
The productive and residential land usage in rural areas is included in the governmental vision.314 This includes a well-balanced mix of farming systems and rural enterprises (livestock, annual and perennial crops as well as farm-forestry) with land held under a different systems of landowning by persons, communities and organisations.315 The objectives are to establish prosperous rural landscapes consisting of large, medium and small farms and enterprises created by full-time and part-time farmers. An equitable balance allocation of land and resources, partnerships between farm workers and farm owners aimed at increasing productivity, as well as the provision of secure tenure for all rural people are all part of the state vision of progressive land reform programme.316
4.4.4 Insecurity of tenure
People residing in communal areas experience insecure land rights as a result of several issues. Firstly, the differences in the application of the land rights in communities across the Republic, the legal interpretations which are interchangeably used concerning land ownership and the conflicting conceptual understandings thereof, cause confusion around land rights.317 Secondly, the challenge of undemocratic land governance, lack of clarity and the disputes surrounding the land rights that cause weakness in the land rights which are held under the conflicting local land administration institutions such as Trusts, Communal Property Associations (CPAs) and traditional leadership structures.318 The misconception that the public has about the responsibilities of the land administrator results in the hindrance of development in rural areas. Such as the conflicting duties and responsibilities of local government and traditional leaders and the lack of clarity if which tenure system applies to which land classification. This results in people failing to acquire access to land due to uncertainty of the information they have pertaining access to such land.
In the case of Herber N.O and Others vs Senqu Municipality and others (CCT 308/18) [2019]
ZACC 31 (22 August 2019), in 2016 Teba Property Trust approached High court alleging to be the holder of a small piece of land in Sterkpruit, but only through “permission to occupy”
(PTO) which was granted to its predecessor in 1949. The Trust sought to convert the permission to take occupancy into a full landowning. However, the Municipality argued that
314 Ibid note 313.
315 White Paper (n10).
316 Ibid note 315.
317 White Paper (n10).
318 Ibid note 317.