02 March 2021
- The Land Court Bill follows recommendations by the Presidential Advisory Panel on Land Reform and Agriculture.
- It will establish two courts – a High Court and Land Court of Appeal.
- It is intended to improve the country’s jurisprudence in relation to land.
Cabinet recently approved a bill intended to improve South Africa’s land jurisprudence.
“Ultimately the bill seeks to ensure stronger judicial oversight over claims, and this must lead to better settlements, reduce the scope for corruption and avert the bundling of claims into dysfunctional mega-claims that lead to conflict,” Justice and Correctional Services Minister Ronald Lamola said on Monday when he presented the bill to the media.
He added that the bill will assist in developing South Africa’s jurisprudence and seeks to address the systemic hurdles that make it difficult for land claimants to obtain land restitution.
Where does this bill come from?
The Land Court Bill is the outcome of the work done by the Inter-Ministerial Committee (IMC) on Land Reform, chaired by Deputy President David Mabuza.
This IMC has been seized with implementing the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture, which presented its report to President Cyril Ramaphosa in June 2019. Cabinet approved the recommendations of the report in December 2019.
The panel proposed the following:
The Land Claims Court be conferred into a new Land Court to adjudicate on all land-related matters, and not only restitution.
This Land Court must be given additional responsibilities, both judicial and extra functions such as conflict resolution and mediation.
The court must have a functional approach that is modelled on negotiation before litigation on matters such as expropriation without compensation, which is proposed to Parliament in the Expropriation Bill.
The panel recommended that a permanent judge president and four permanent judges be appointed for the Land Court.
The Land Court should also be required to check that settlement agreements give just and equitable compensation to landowners in line with section 25 and the new Expropriation Act, when enacted.
Apart from this, the bill will also address the following:
What are the bill’s objectives?
- To facilitate the expeditious disposal of cases and contribute towards the development of appropriate jurisprudence on land matters.
- Create a cheaper and speedier alternative dispute resolution mechanism in the form of mediation and arbitration.
- Enhance and promote the ideal of access to land on an equitable basis.
- Promote land reform as a means of redressing the results of past discrimination.
- Establish a Land Court with the jurisdiction to grant any order, appropriate relief or impose any sanction, as provided for in the bill or any other law that confers jurisdiction on the court.
How will it work?
The bill establishes two courts – a High Court and Land Court of Appeal. The Land Court of Appeal will have a similar status to the Supreme Court of Appeal to hear and determine appeals emanating from the judgments and orders of the court.
The Judge President can decide to refer matters for mediation or arbitration.
The court will be entitled to admit evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law.
The court can admit hearsay evidence for families who rely on oral history and the existence of elders with knowledge of the description, location and extent of land which their descendants previously occupied.
What provision does the bill make for legal representation?
A party to the proceedings may represent themselves or be represented by their own legal practitioner at their own costs. However, if a party cannot afford legal representation and if it is in the interest of that party to be legally represented, the court must refer the matter to Legal Aid South Africa to consider granting legal representation.
Expenditure for the provision of legal aid must be defrayed from money appropriated by Parliament for this purpose and monies appropriated by Parliament for this purpose constitute earmarked funds on the vote of Legal Aid South Africa and may not be used for any other purpose. These funds are currently managed by the Land Rights Management Facility.