The Alliance for Rural Democracy welcomes the judgement handed down by the Constitutional Court yesterday declaring the Restitution of Land Rights Amendment Act 15 of 2014 invalid.
The case, brought by civil society and community-based organisations including affiliates of the ARD, concerned Parliament’s obligation to facilitate public participation in its legislative process. In finding that the National Council of Provinces had failed to allow enough time for proper consultation on this Amendment Act, the Court said:
“Given the gravitas of the legislation and the thoroughgoing public participation process that it warranted, the truncated timeline was inherently unreasonable. Objectively, on the terms stipulated by the timeline, it was simply impossible for the NCOP – and by extension the Provincial Legislatures – to afford the public a meaningful opportunity to participate.”
The Court ordered that all claims lodged after 1 July 2014 should be put on hold until earlier claims are settled. This is an important victory for rural people who have been kept waiting for a decade and more to take ownership of land awarded to them in terms of the orginal Restitution of Land Rights Act 22 of 1994.
By preventing renewed claims for land already claimed under the original Restitution Act, the Constitutional Court has put an end to continued contestation over the same small parcels of land.
This important judgement must now encourage the government to use other means to achieve land reform and justice, without relying only on restitution.
The Constitutional Court’s orders should also encourage the Department of Rural Development and Land Reform to redirect resources that were diverted to handle new claims after 2014 back to the original purpose of settling the backlog of claims already in process.
The people and offices set up to manage the expected flood of new claims should be used to fast-track the delivery to those who have already waited so long. The Department must use the people and the money it has to finish the job it started in 1994 before it takes on any new restitution claims. This would show a true commitment to making the promise of restitution real in the lives of the communities who lodged their claims around twenty years ago.
The court’s order included:
- The Land Restitution Amendment Act 15 of 2014, which allowed a further five years in which to lodge claims, is invalid;
- Claims lodged before the December 1998 deadline set in the original Act must be settled; and
- Claims lodged after the window was reopened in July 2014 will remain on record, but will not be processed.
Hope for the marginalised population living on communal land
This process will strengthen and hopefully fast-track land redistribution in South Africa. Dispossessed communities that have been waiting for their claims to be fully resolved can look forward to accelerated action from the Department to return them to the land they lost. As the Court said:
“(this case) touches nerves that continue to be raw after many decades of dispossession. The importance of the right to restitution, therefore, cannot be overstated. Restitution of land rights equals restoration of dignity.”
The ruling puts an end to “cherry picking”
Faced with a backlog of claims from the first round and an avalanche of new claims under the second round, the under-funded Commission on Restitution of Land Rights was vulnerable to pressure to “cherry pick” and prioritise claims by politically connected individuals, including Traditional Leaders seeking to trump claims already in the pipeline.
After the enacting of the Restitution of Land Rights Amendment Act, President Jacob Zuma encouraged Traditional Leaders to hire lawyers and to lodge large claims to land that they would hold on behalf of the people. We have been against that view. The government cannot give land that rightfully belongs to people with historical linkages to it to Traditional Leaders.
The Constitutional Court’s ruling will ensure tenure rights for the rural population for both men and women, without giving priority to claims by Traditional Leaders.
Furthermore the ruling requires that the Commission proves itself capable of resolving the outstanding existing claims before opening up further opportunities for new claims. This is an assurance to both existing and prospective claimants of a real commitment to restitution and a rejection of restitution as an empty promise.
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