Entrance to the Constitutional Court. Photo: Wikipedia user André-Pierre (CC-BY-2.0).
1 August 2016
Parliament has two years to pass a new act to open the window for new land claims, and all new claims will be considered.
Last week, the Constitutional Court handed down a unanimous judgement invalidating the Restitution of the Land Rights Amendment Act of 2014.
The amendment was designed to re-open the window for the lodging of land claims under the Restitution of Land Rights Act, 1994. Under the first Act, the deadline for claims was 31 December 1998. The amendment gave those forcefully evicted from their land until 30 June 2019 to lodge claims.
But grassroots organisations argued that there had not been enough time for public comment on the amendment act.
The National Council of Provinces had referred the bill to the provincial legislatures which had to complete the public participation process in two weeks.
The Constitutional Court found that given the importance of land claims against the backdrop of forced removals under apartheid, this time period was “objectively unreasonable” and ruled that the amendment act was invalid.
In particular, the Court said, members of the public had not had the opportunity to voice their views on the amendment act in the limited number of hearings held in select municipalities. In this way, the NCOP had failed to discharge its constitutional obligation to facilitate public participation, the Constitutional Court said.
The decision is a victory for the Land Access Movement of South Africa and other applicants.
But the question of how land claims already lodged under the Amendment Act will be dealt with remains unanswered.
All applications lodged under the amendment act remain valid and can be still be considered by the Commission on Restitution of Land Rights. But the Constitutional Court has stopped the Commission processing any claims lodged after 1 July 2014 until it has processed all land claims lodged before 31 December 1998.
As a result, claims under the amendment act will not be processed unless all the previous claims have been dealt with.
Following the decision, Parliament has been given 24 months to pass a new Act which will re-open the window for lodging land claims and people who want to lodge a land claim will have an opportunity for their claim to be considered. This new Act will not affect any of the claims lodged under the now invalid amendment Act.
The Constitutional Court has ordered that the Chief Land Claims Commissioner must apply to the Court for an ‘appropriate order’ if Parliament fails to pass a new Act within the 24 months.