Land Claims

With the re-opening of the land claim process in terms of the Restitution of Land Rights Act; the period for lodging land claims has been re-opened for a further five years until 30 June 2019.

 

The initial period for lodging land claims closed on 31st December 1998 at which point thousands of claims were lodged and, 16 years later; there are still approximately 7 000 claims which have not been finalised.

 

In order to give individuals or communities who missed the initial cut-off date an opportunity to lodge their claims the amendment to the Act has resulted in the re-opening of the process which will obviously result in a further period of investigation and publication of such claims.

 

Whereas there was some level of certainty as to whether or not a claim had been lodged; there is, once again, complete uncertainty with regard to whether or not one’s property may or may not be claimed and, even after the five year period, it will take some time for the investigation and publication process to be finalised before a land owner will become aware of a potential land claim.

 

The most significant complication is claims which have already been lodged; published and either subject to pending litigation; alternatively already finalised. New claims will obviously impact on those claims if there is any overlap on the same property or properties. There is a particular concern with regard to matters which are pending before the Land Claims Court as the court requires the Land Claims Commission to produce a certificate that there are no competing claims prior to the matter being adjudicated finally. It seems likely that all pending matters may well be placed on hold until there is certainty with regard to any potential competing claims.

 

A landowner is required to receive written notification once a claim has been gazetted. The landowner is then given 60 days to indicate whether or not he or she is of the view that the claim is valid or whether the landowner objects to the claim. 

 

The reason why it is likely that this will take longer than the five year period is that only claims which the Commission considers to be valid are published and this is supposed to occur after a validation process has been undertaken. The publication of a “valid” claim takes place in the Government Gazette at which point a landowner’s rights are immediately affected in that the Act requires a landowner to give the Land Claims Commission one month’s prior written notice in the event that the landowner intends to sell, exchange, donate, lease, sub-divide, re-zone or develop any portion of the property. The Act does not require the consent of the Land Claims Commission to proceed with any of those steps; however it is a pre-requisite that such written notification be provided to the Commission.

 

Although the Land Claims Commission conducts a validation process; very often it is up to the landowner to do research in order to make submissions to the Land Claims Commission on whether or not the landowner is of the view that the claim is valid and/or to set out facts which place the claim in dispute.

 

The Restitution of Land Rights Act sets out the basis for a valid claim and the following factors must be present:

 

1.    The Claimants must have been deprived of rights in land after 1913. It is important to note that this right does not mean ownership but any right in land;

2.    The dispossession must have been as result of racially motivated laws or practices;

3.    Those dispossessed of the right must not have received just and equitable compensation at the time of the loss.

 

It is often the case that before a landowner is in a position to comment on whether or not a claim is valid such landowner requires information from the Land Claims Commission. It is often the case that a landowner was not the owner at the time when the dispossession took place and has no independent knowledge of whether or not the dispossession occurred and whether or not it was as a result of racially discriminatory laws or practices.

 

A landowner is entitled to request copies of the claim form completed by the claimant and any documentation relied upon by the Commission in validating the claim.

 

As such, a landowner that becomes aware of a land claim should make use of an attorney who is au fait with land claim matters to ensure that the correct information is obtained and the correct submissions are made to the Land Claims Commission; whether the claim is valid or not.

 

Ultimately, it is important to bear in mind that it is not the Commission that determines validity and if there is a dispute with regard to validity it must ultimately be determined by the Land Claims Court, if the issues cannot be resolved on any other basis.

 

Even if the landowner is of the view that the claim is valid or decides not to oppose the claim, the landowner would still benefit from legal advice to ensure that, in the event that the land is acquired for the Claimant/s that the landowner does receive fair compensation.

 

The Land Claims Court has very specific rules and procedures which are unlike those which govern other courts and, as such, it is vital that landowners appoint a legal team with experience in such matters.                                           

 

 

 

 

Written by:                             Warren Andrew Smith (Director)

  • Added 19 September 2014

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