OPINION | Land Court Bill: A step in the right direction for land reform

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Land reform continues to be a contentious issue in South Africa. (iStock)
Land reform continues to be a contentious issue in South Africa. (iStock)

It is evident that the role and effective functioning of the proposed Land Court and Land Court of Appeal, as set out in the Land Court Bill, could be central to the future success of the land reform programme, writes Marda Horn and Anthea-Lee September-Van Huffel.

The Minister of Justice, Constitutional Development and Correctional Services, together with the Minister of Agriculture, Rural Development and Land Reform announced on 1 March 2021 that the Land Court Bill (“the Bill”) has been approved by the Cabinet for submission to Parliament.

Although the Bill has not been published, the announcement made reference to a number of important provisions in the Bill in as far as it could impact on the effective determination of disputes around land in our country.

Should the Bill, and specifically the proposed provisions in the Bill be properly implemented, this may prove to be an important step towards increasing the effectiveness of land reform and the alleviation of socioeconomic challenges that are closely linked with the unequal distribution of land and land resources.

The Bill originates from the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture (“the advisory panel”).

This panel delivered a thought-provoking and sometimes scathing report on the current state of land reform in South Africa.

It recommended that the Land Claims Court should become the Land Court, with added powers and functions.

An inter-ministerial committee was consequently tasked to oversee the implementation of the recommendations of the advisory panel, which has culminated in the proposed Bill. The Bill seeks to address the backlog of land claims still to be heard by the Land Claims Court and to accelerate the land reform programme as a whole.

Although the land reform process showed a promising start initially, only modest progress has been made thus far.

It is therefore evident that the role and effective functioning of the proposed Land Court and Land Court of Appeal, as set out in the Bill, could be central to the future success of the land reform programme. 

The Bill must still follow the parliamentary process

At this stage it should be noted that the Bill has only been approved by the Cabinet and must still follow the usual parliamentary process for the processing and adoption of draft legislation.

The Bill is to be tabled before Parliament by the Executive, represented by the Minister of Justice, Constitutional Development and Correctional Services, Mr Ronald Lamola, and the Minister of Agriculture, Rural Development and Land Reform (“DALRRD”), Thoko Didiza, as the Bill affects both ministries.

Parliamentary portfolio committees will be afforded the opportunity to be briefed on the Bill by the ministers, and will advertise the Bill for public comments, followed by the first round of public participation which ordinarily includes oral representations.

READ | Land court bill will address systemic hurdles in land claims process -Lamola

The relevant government departments must then respond to the public representations made during the public participation process. The Bill will then be amended as required by the committee/s and adopted. This is called the B version of the Bill.

The Bill will then serve before the National Assembly for voting.

If approved by the National Assembly, the Bill will then be submitted to the National Council of Provinces (“the NCOP”) and possibly be subjected to a second round of public participation at provincial level. If the NCOP makes further amendments to the Bill it will be referred back to the National Assembly which may either approve or reject it.

If the Bill is approved by Parliament it will then be sent to the President of the Republic of South Africa (‘the President”) who is expected to sign (assent to) the Bill in approval of its enactment and indicate a date on which it is to come into operation.

The President, however, may also refer the Bill back to Parliament if he deems it to be partially or wholly unconstitutional.

Therefore, although announced by the ministers in the beginning of March – the Bill still has a long road ahead before it comes into operation.

It seems, however, as if the ministries wish to fast-track the Bill by arguing that it is only an amendment to current land claims legislation. It is unclear whether this argument will be accepted by Parliament. 

A specialist Land Court of Appeal is an exciting prospect 

Nonetheless, the changes proposed in the Bill to the existing Land Claims Court are encouraging and amount to an entire overhaul in the approach to land matters by the Land Claims Court, the jurisdictional structure and the policy framework that informs courts adjudicating land matters.

The Bill proposes the establishment of a specialist Land Court and Land Court of Appeal, the former having the status equivalent to a high court and the latter equivalent to that of the Supreme Court of Appeal.

The creation of a specialist Land Court of Appeal is an exciting prospect for legal practitioners, because this will mean the development of land specific jurisprudence that can be relied upon as precedent. This will hopefully foster a greater uniformity, consistency and quality in court decisions on land-reform matters, which in turn should promote the expediency in the adjudication process.

In contrast, while the existing Land Claims Court has the same status as a high court, any appeal against decisions of the Land Claims Court is referred to the Supreme Court of Appeal which does not specialise in land-reform matters and is therefore often guided by the decision of the Land Claims Court.

The Land Court will be comprised of one permanent judge president and four permanent judges. Presently the Land Claims Court has one judge president and three judges.

The idea behind the advisory panel’s recommendations is that a permanent sitting of judges dedicated to land-related matters will result in stronger judicial oversight, reduce corruption and improve settlement agreements that reflect equitable and just compensatory outcomes.  

In addition, the Bill, if implemented, provides the Land Court and Land Court of Appeal with greater jurisdiction than that presently enjoyed by the Land Claims Court. The rules of the Land Claims Court, as a creature of the Land Restitution Act which predominantly deals with restitution matters, only allows for arbitration as an alternative dispute resolution mechanism.

The Land Court on the other hand will enjoy extensive jurisdiction in that it is empowered to address all three legs of land reform, namely: Restitution, redistribution and security of tenure. This extension of jurisdictional scope also includes a wide range of non-judicial powers such as mediation, which could very well lessen instances of unnecessary or frivolous litigation.

It is not clear from the current information whether the idea is that the judges should act as mediators in disputes. In foreign jurisdictions such as Germany this is allowed, provided that the same judge then does not adjudicate a matter in which he played a role as mediator. This aspect should be carefully considered before finalisation of the Bill. 

The Bill is welcomed as a step in the right direction

Other non-judicial powers of the Land Court would include the discretion to review settlement agreements. Seemingly this would then include matters related to expropriation without compensation in terms of the amendment to the Constitution and the Expropriation Bill also under consideration by Parliament, since compensation forms part of the content of settlement agreements.

Furthermore, the position of claimants could be greatly improved by the allocation of earmarked funding intended for the legal representation of claimants through the Legal Aid Board, as envisaged by the terms of the proposed Bill.

In the media statement by the minister, it was indicated that Legal Aid South Africa should take over the role of the Land Rights Management Facility and will be responsible for the legal representation of claimants.

Minister Didiza has indicated that the objective behind the financial support is to provide speedy resolution of land-related matters and crucial financial support to indigent claimants.

It is not clear from the information currently available whether legal representation by Legal Aid will also be made accessible to defendants. A situation where defendants are not able to exercise their rights due to financial constraints could also hamper the attainment of land justice and the speedy resolution of disputes. 

READ | Explainer: What is the land court bill about?

Although it is too early in the process to pronounce on the success of this proposed legislation, the Bill is welcomed as a step in the right direction to address the culminating land-reform crisis. The reality is that the current land-reform system is intrinsically flawed and untenable. There are too many land-related disputes for the existing Land Claims Court in its present form to adjudicate on.

Furthermore the complexity of the legal disputes is overburdening the administrative function, and the capacity of the DALRRD. More than half of the recommendations made by the advisory panel are related to the functions of DALRRD. It is therefore no surprise that it appears that the proposed specialist land courts will assume control of certain functions that have been crippling the department’s administration. 

In our opinion, the Bill will therefore enhance the jurisdictional powers of the court to successfully deal with all three processes related to land reform and consequently jurisprudence on land-reform matters could be strengthened whilst the application of sound legal and economic principles can be ensured.

Dr Marda Horn is a senior lecturer in the Department of Private Law in the Faculty of Law. 

-Anthea-Lee September-Van Huffel is a lecturer in the Department of Private Law in the Faculty of Law.

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