South Africa: Land Claims Court

Macleantown is a small town approximately 40km northwest of East London. Black people previously owned and occupied erven in Macleantown. They also had rights to a commonage, from which they used to obtain firewood and water, and where they grazed cattle.

During 1970 the town was declared a white group area. Erven owned by black persons were expropriated, and some of the black residents were moved to the Mpongo location at Chalumna. Others chose to settle more nearby at Tshabo. After the black residents were removed, the state sold some or all of the erven to white owners.

The erstwhile black residents who were removed from Macleantown formed the Macleantown Residents’ Association, and the Macleantown Residents’ Association lodged a restitution claim with the office of the Regional Land Claims Commissioner for the Eastern Cape and Free State. A settlement of the claim was negotiated, and a settlement agreement was signed on behalf of the Macleantown Residents’ Association, the Macleantown Ratepayers’ Association (representing the ratepayers in Macleantown) and the Amatola Regional Services Council (the local authority then responsible for the administration of the area). The settlement agreement demonstrates a common sense approach to the restitution claim, and provides that erven within the town which are currently unregistered and new erven which have been surveyed on the commonage, will be made available to the dispossessed households. It seems unlikely that any household will receive the same erf previously occupied by it, because the previously occupied erven (or most of them) now belong to private persons. It is intended that those persons will retain ownership of their erven. According to the settlement agreement, the allocation of the unregistered and newly surveyed erven will be done by a negotiating forum, which is constituted by the Macleantown Residents’ Association, the Macleantown Ratepayers’ Association and the Amatola Regional Services Council.

The displaced persons fall into three categories: previous erf owners, occupiers who had apparently bought erven but had not yet received title at the time of removal, and tenants. At the time of their removal, a total amount of R28 198,00 was paid out to black Macleantown residents as compensation for improvements on the erven. According to the Report, the residents were not compensated for the land they lost and received no title to the land at Chalumna and Tshabo where they were resettled. It is not explained why no compensation was paid for the expropriated

land. Approximately 200 households were removed, and a typical amount of compensation for improvements was R150,00 per household. More about this point later.

The settlement agreement reads as follows :

“Noting :

1 That the black residents of Macleantown Local Area as defined in the Divisional Council’s Ordinance No 18 of 1976 (hereinafter referred to as the “claimants”) lived in the area prior to their removal, and that they held rights both to the residential erven which they occupied, and to the commonage; and

2 That they were divested of the rights defined under paragraph 1 above, as a result of the declaration of the Macleantown Local Area as a white Group Area in terms of the Group Areas Act of 1966; and

3 That the Amatola Regional Services Council has identified unregistered sites in Macleantown, and created and surveyed some additional sites on the commonage for the purpose of restitution;

We, the undersigned hereby agree :

1 That all claimants who lived at Macleantown immediately prior to the removal in 1970, and who were dispossessed of their land rights, have a right to restitution; and that this includes those who had quitrent title, those who did not take transfer of their title by the time of the removal, and tenants; and

2 That the claimants are not requiring restitution of particular residential erven, but that instead there should be an allocation of one site per household removed; and that it is further agreed that those residential erven within the town which are currently unregistered, and those residential erven which have been surveyed on the commonage to accommodate those claimants whose erven are now occupied, will be part of the restitution claim; and

3 That the aforesaid claimants shall be entitled to use the commonage in accordance with the currently applicable regulations; and that any disputes over use of the commonage should be settled through the Negotiating Forum; and

4 That it will be the responsibility of the Negotiating Forum, which is constituted by the claimants, the ratepayers and the Regional Services Council or their successors, to determine subject to the provisions of the Restitution of Land Rights Act (No. 22 of 1994) which families qualify for the allocation of a site on an equitable basis in terms of the restitution process, and in accordance with the principles outlined above; and

5 That the parties concerned request the Minister of Land Affairs to pay the Amatola Regional Services Council the amount required as nominal payment for freehold title to the sites, and the necessary transfer costs.

Signed

Mr M Ngxata Mr T Njikelana

on behalf of the Macleantown Residents’ Association

Mr C D Richter

on behalf of the Macleantown Ratepayers’ Association

Mr C J van den Berg

on behalf of the Amatola Regional Services Council

witnessed by :

Dr P G Mayende

Regional Land Claims Commissioner Date : 23 October 1995"

If the settlement agreement is made an order of court, the Court would, if our reading of the settlement agreement is correct, be ordering the transfer of land rights either to dispossessed black families or to a community (the settlement agreement, read with the Report is ambiguous in this regard   a matter which is discussed below). It is necessary to examine the legislation under which the Court is entitled to make such an order, and to determine whether all requirements imposed by such legislation have been met³. The Court’s power to make any settlement an order of court is implied in section 14(3), which reads as follows :

“A referral made as a result of an agreement contemplated in subsection 1(c) shall be accompanied by a document setting out the results of the Commission’s investigation into the merits of the claim and a copy of the relevant deed of settlement together with a request signed by the parties concerned and endorsed by the Chief Land Claims Commissioner requesting that such agreement be made an order of Court.”

The Court can only make a settlement agreement an order of the Court if it is a competent order of the Court in terms of the Act.

1. HAVE THE CLAIMANTS BEEN DISPOSSESSED AFTER 1913 UNDER RACIALLY DISCRIMINATORY LEGISLATION?

Section 121(2) of the Constitution of the Republic of South Africa, 1993 (Act No 200 of 1993) (herein referred to as “the Interim Constitution”) reads as follows :

“A person or a community shall be entitled to claim restitution of a right in land from the state if -

(a) such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (1); and

(b) such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2) had that section been in operation at the time of such dispossession.”

Section 8(2) provides as follows :

“(2) No person shall be unfairly discriminated against, directly or indirectly, and without derogating from the generality of this provision, on one or more of the following grounds in particular : race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, conscience, belief, culture or language”

The date contemplated in section 121(2)(a) of the Interim Constitution is 19 June 1913⁴. The information gathered by the Regional Land Claims Commissioner and set out in his report clearly establishes that the requirements of section 121(2) have been met. These are :

a) the dispossession took place after 19 June 1913; and

b) the dispossession was effected for the purpose of furthering the object of the Group Areas Act 1966 (Act No 36 of 1966), an Act which clearly offends the provisions of section 8(2) of the Interim Constitution.

2. WHO ARE THE CLAIMANTS, AND ON WHAT BASIS DO THEY CLAIM?

Under section 121(2) of the Interim Constitution, a person or a community is entitled, under given circumstances, to claim restitution of rights in land. Although, in the present case, the claim form⁵purports to be lodged on behalf of a community, the settlement agreement points towards restitution claims by individual persons who have formed themselves into a residents’ association. The distinction is important.

If the restitution claim is by a community, the erven will be restored to the community and not to its individual members. The Court may then determine the manner in which erven are to be held⁶. The erven could, for example, be registered in the name of a communal property association established under the Communal Property Associations Act, 1996 (Act No 28 of 1996). The Court will, in the event that the erven are restored to a community, have to be satisfied that all the dispossessed members of the community will have access to the erven on a basis which is fair and non-discriminatory, and which will ensure the accountability to the community of the person who, or body which, holds the erven on behalf of the community⁷.

If the restitution claims are by individual persons (as the settlement agreement seems to contemplate), each individual claimant will receive title to a separate erf. The papers submitted to the Court do not contain a list of claimants⁸, nor any particulars as to which claimant will receive which erf. Although it is quite appropriate for the Macleantown Residents’ Association to negotiate and settle the claim on behalf of its members, it is necessary for the efficacy of any court order which will follow upon the settlement agreement that the allocation of erven to the individual claimants be made before the Court Order is issued, so that it can be contained in the order. It cannot be left to an outside body (in this case the negotiating forum) to determine how a court order will be implemented, especially where there is no mechanism to resolve dead-locks.

The Regional Land Claims Commissioner raised the question whether it is necessary to specify a list of individual claimants and he obtained legal opinion thereon⁹. The opinion correctly points out that if the claim is by a community, the land will be transferred to the community (to be held in a manner as the court order may direct), and a list of members of the community will not be necessary. It will, however, be necessary to establish which erven the community lost, in order to determine the number of alternative state-owned erven to be transferred to the community. On the other hand, if the claim is made by individuals, a list of the individual claimants must be submitted.

The claimants must make it clear on what basis they are bringing their claim (i e as a community or as individuals), and in each case submit the requisite particulars.

3. PARTIES TO THE SETTLEMENT AGREEMENT AND AUTHORITY TO ACT

According to the Report the claimant is the Macleantown Residents’ Association and interested parties are the Macleantown Ratepayers’ Association and the Amatola Regional Services Council. The Amatola Regional Services Council was, at the time of signing the settlement agreement, the responsible local authority and apparently administered the unregistered erven on behalf of the Eastern Cape Provincial Government. The Amatola Regional Services Council may have been replaced, after the settlement agreement was signed, by a different local authority in terms of the Local Government Transition Act No 209 of 1993. This aspect needs to be investigated by the Regional Land Claims Commissioner and the necessary documents placed before the Court to show which body, if any, is the successor to the Amatola Regional Services Council.

For the Residents’ Association and Ratepayers’ Association to properly represent their respective principals, proper authority from the principals authorising the associations to represent them must be filed with the settlement agreement¹⁰. Also required are proper resolutions by the Associations authorising the signatories to the settlement agreement to sign the agreement on their behalf. The Residents’ Association must pass a resolution authorising Messrs M Ngxata and T Njikelana to act and the Ratepayers’ Association must pass a resolution authorising Mr C D Richter to act and the resolutions must be filed with the Report.

The Regional Land Claims Commissioner states that the Amatola Regional Services Council administers the Macleantown Local Area. It is not clear whether authority to administer includes authority to alienate the erven to be transferred under the settlement agreement. Unless there is evidence of some statutory provision empowering the Amatola Regional Services Council (or its successor body`) to alienate the erven, authority from the Provincial Government (or other organ of state controlling the land, if it is not the Provincial Government) authorising such alienation must be submitted with the Report. Then there must be a resolution by the Amatola Regional Services Council authorising Mr C J van den Berg to act on its behalf, unless it can be shown that he has the power to act by virtue of some law.

4. INVOLVEMENT OF THE RELEVANT STATE DEPARTMENT

Under the settlement agreement, the claimants will not be likely to receive the same erven of which they were dispossessed, but other state-owned erven. This is permissible under section 123(3)(a) of the Interim Constitution¹¹.

The parties to the settlement agreement should include the claimants and the relevant state department. The Report should make it clear which state department has control over the state-owned erven to be transferred to the claimants. There are indications that it is the provincial government of the Eastern Cape Province, but this is by no means sufficiently established and must be investigated further¹². If the Amatola Regional Services Council (or its successor body) acts on behalf of the relevant state department, it should be so recorded and (as stated above) its authority so to act should be established.

5. HAS EACH CLAIMANT BEEN DISPOSSESSED?

The papers submitted to the Court indicate that rights in respect of individual erven were taken from individual owners, occupiers and tenants. These dispossessed individuals, or their direct descendants¹³, are entitled to relief under the Act. They can form themselves into a community and claim as a community, or they can claim on an individual basis. Whether they claim as a community or as individuals, they must list the erven on the dispossession of which they rely, and they must prove that the dispossession which took place in respect of those particular erven entitle them to the relief which they claim under the Act¹⁴. The forced removal during 1970 is clearly established, but not the involvement of each of the claimants¹⁵.

6. DEEDS OFFICE DESCRIPTIONOF LAND`

Every restitution claim relates to a right in land¹⁶. If satisfied that all legislative requisites have been met, the Court will order the state to transfer the relevant erven to the claimants. For a proper formulation of such order, a full and complete deeds office description of each erf to be transferred to the claimants is necessary and should be submitted to Court, where obtainable. There appears to be no reason why such descriptions would not be available in the present case¹⁷.

The remaining extent of Erf 1 Macleantown presumably contains the commonage and also the unregistered erven, a list whereof is contained in a certificate given by Mr R A Kruger, director in the Department of Local Government and National Housing, which accompanied the Report¹⁸. It is not clear whether this list includes the newly surveyed erven, nor is it clear whether the establishment process of the newly surveyed erven has reached a stage where it is possible to transfer such erven to the claimants¹⁹. This should be clarified.

7. NOTICE TO REGISTRAR OF DEEDS

An order given under section 123 of the Interim Constitution that the state must transfer erven to the claimants involves the performance of acts in a deeds registry. In terms of section 35(7) of the Act, an order of the Court has the same force as an order of the Supreme Court for purposes of the Deeds Registries Act, 1937 (Act No 47 of 1937). Section 97(1) of the Deeds Registries Act reads as follows :

“(1) Before any application is made to a court for authority or an order involving the performance of any act in a deeds registry, the applicant shall give the registrar concerned at least seven days’ notice before the hearing of such application and such registrar may submit to the court such report thereon as he may deem desirable to make.”

There is no indication in the papers that notice of the application to have the settlement agreement made an order of the Court, has been given to the relevant Registrar of Deeds. Particularly where there may be doubt concerning the correct title deed description of the

erven, or the transferability of the newly surveyed erven, or the identity of the state department responsible for the erven, a report from the Registrar of Deeds concerned is desirable.

8. FEASIBILITY CERTIFICATES

Most, if not all of the claimants will receive erven which will not be the same erven from which they were removed. In the words of the Interim Constitution, they will be receiving alternative state-owned land²⁰. In this respect, section 15(2) of the Act provides as follows:

“(2) Upon referral of a claim for an order contemplated in section 123(3)(a) of the Constitution to the Court in terms of section 14, the Chief Land Claims Commissioner shall request the Minister to certify whether it is feasible to designate alternative state-owned land.”

To the extent that any of the claimants may receive the original erf from which he or she was removed, a feasibility certificate from the Minister of Land Affairs is also required, but in terms of section 15(1) of the Act²¹.

It does not appear from the papers submitted to the Court that any of the above certificates have been obtained. In this regard, the Regional Land Claims Commissioner reports as follows :

“A formal certificate of feasibility will, of course, be requested by the Chief Land Claims Commissioner from the Minister of Land Affairs in terms of section 15 of the Restitution of Land Rights Act (No 22 of 1994). Prima facie there is no reason known to the RLCC why the restoration of land should not be feasible.”

Evidence that there is no reason why the restoration of the erven will not be feasible is not sufficient to overrule the legal requirement of a certificate. The Chief Land Claims

Commissioner will have to apply for a feasibility certificate from the Minister of Land Affairs under section 15(1) or 15(3) of the Act. The procedures prescribed in section 15 of the Act must be followed.

The feasibility certificate need not be a separate document. If the Minister or his duly authorised representative signs the settlement agreement, a statement of feasibility can be included in the agreement²².

9. TEMPORARY NOTE

In terms of section 35(8) of the Act, the Court must direct the Registrar of Deeds concerned to remove any temporary note entered into his or her records in respect of the land concerned under section 11(6)(b) of the Act. The Report from the Regional Land Claims Commissioner should indicate whether any such temporary note has been entered into the records of the Registrar of Deeds.

10. COMPENSATION AT TIME OF DISPOSSESSION

.

When the Court orders the state to restore land to a claimant, the Court must take into account and, where appropriate, make an order with regard to, any compensation that was paid to the claimant upon the dispossession of the right in question²³. Included in the papers submitted to the Court by the Regional Land Claims Commissioner is a document entitled “Bylae E”²⁴, which seems to be a document issued by some government department, the relevant portion of which reads as follows :

“Verder blyk dit dat die swartes verontreg voel omdat hulle glo te min vergoeding ontvang het tydens die uitverkoping van die grond in 1971. Die bedrag van R28 198,00 is aan hulle uitbetaal vir verbeterings.”

The compensation for improvements is minimal²⁵, and does not justify any special order, particularly as the claimants will be getting unimproved erven.

It should, however, be investigated why no compensation for the land was paid. Were the claims for such compensation possibly set off against the grant of substitute land at Chalumna and Tshabo? The rights under which the claimants occupied land at Chalumna and Tshabo and also elsewhere in the Ciskei should be investigated and reported on by the Commissioner²⁶, as it may be appropriate for the Court to make an order in terms of section 35(2)(f) which provides that the Court may  

“make an order in respect of compensatory land granted at the time of the dispossession of the land in question.”

11. SOME CLAIMANTS TO RECEIVE MORE THAN THEY HAVE LOST

The Report states that there are three categories of claimants, namely quitrent title holders, tenants and those who bought erven but had not yet received transfer.

The settlement agreement provides that each household from the claimant community will be entitled to allocation of an erf. Those households who were tenants at the time of dispossession and those who had not yet received title of the erven of which they were dispossessed would, if the settlement agreement is implemented, receive more than they had lost, namely full ownership of an erf instead of mere tenancy or the right to receive transfer in due course²⁷. This will not prevent the Court from making the settlement agreement an order of court²⁸, provided the relevant state department (which presently owns the erven) is aware of the position and agrees. This aspect must be addressed by the Regional Land Claims Commissioner in his report.

12 THE COMMONAGE

While living in Macleantown, the claimants used the commonage for obtaining wood and water and for grazing cattle. Neither the Report nor any of the papers before the Court give any indication of the legal nature of the rights to the commonage which the claimants allege they lost.

If the right to use the commonage is a condition of title applicable to all erven in Macleantown, the transfer of erven in Macleantown to the claimants would restore their rights to the commonage²⁹. No court order would be needed to achieve this.

If the rights of the claimants to use the commonage emanate from municipal regulations (as the settlement agreement seems to suggest), those rights would in all probability revert to them once they become owners of erven in Macleantown. In such event, a court order would also not be necessary.

Before the Court can make any order relating to rights which the claimants may have had in respect of the commonage, the Court will have to be satisfied that such rights are rights in land³⁰of which the claimants were dispossessed³¹. The legal nature of the claimants’ alleged rights to the commonage must be indicated. The Report and the accompanying documents do not contain the requisite particulars³².

13. NOMINAL PAYMENT FOR FREEHOLD SITES

The last paragraph of the settlement agreement contains a request to the Minister of Land Affairs to pay the Amatola Regional Services Council “the amount required as nominal payment for the freehold title to the sites, and the necessary transfer costs”. This paragraph has obviously been inserted pursuant to a letter written on 17 May 1995 by the acting Regional Director of the Regional Office for Housing and Local Government (Eastern Cape Province) to the Chief Director of, presumably, the Amatola Regional Services Council³³. The relevant portion of the letter reads as follows :

“The Minister of Housing and Local Government has approved your application in terms of section 123 of the Divisional Councils Ordinance, 1976 (Ordinance 18 of 1976) for the sale of the erven, as indicated in red on the attached locality plan at the proposed price subject to the following conditions :

- all erven exceeding the average erf size be sold at a proportionately higher price (please note that certain erven are larger than others);

- persons with valid proof of displacement be given first option to purchase;

- the balance of the erven be sold on a first come first serve basis, provided sales are RDP related;

- no erf shall be resold within a period of five years from the date of first sale without the prior permission of the Premier (to prevent profiteering).”

There is no indication of what the “proposed price” is. That is, however, irrelevant for purposes of this judgment.

In the event that the Court orders transfer of the erven to the claimants, there is, on the information before the Court, no basis for requiring any purchase price to be paid for the erven³⁴. An order for the transfer of a right in land under the Act does not constitute a sale of the right by the state to the claimant. The request to the Minister of Land Affairs to make the payments referred to is out of place. It will be inappropriate for the Court to order that such a “request” be made. The above does not, however, imply that the Court will never order payments to be made before a right in land is transferred to a claimant³⁵. Before any payment can be ordered, there must be a proper basis for it, which was not put forward in the present case.

The settlement agreement also provides that the Minister of Land Affairs be requested to pay the transfer costs. The Minister of Land Affairs is entitled to direct that transfer duty and other fees payable by a claimant in respect of any transfer of land in terms of the Act be defrayed in full or in part from money appropriated by Parliament for those purposes³⁶, or that no transfer duty, stamp duty or other fees shall be payable in respect of a particular transaction under the Act³⁷. Any request by the claimants to the Minister relating to transfer duty and fees must be considered by the Minister of Land Affairs on its merits. The Court will, in ordinary circumstances, not make any order in respect thereof.

It was possibly the intention of the parties to the settlement agreement that the claimants must buy the erven allocated to them, hoping that the Minister of Land Affairs can be persuaded to pay the purchase prices and transfer costs. If this is so, it is not necessary for the implementation of the settlement agreement that it be made an order of court. The Court could, however, recommend to the Minister of Land Affairs that the claimants be given priority access to state resources for the implementation of the settlement agreement³⁸. If this is the intention, it should be so stated.

14 ENDORSEMENT OF REQUEST TO MAKE THE SETTLEMENT AGREEMENT AN ORDER OF COURT

A settlement agreement can only be made an order of court if the Regional Land Claims Commissioner is satisfied that such agreement is appropriate³⁹. Furthermore, the settlement agreement must be signed by the parties thereto and endorsed by the Chief Land Claims Commissioner before it can be made an order of Court⁴⁰. An endorsement does not seem to have been obtained in this case. It is necessary and important that the Chief Land Claims Commissioner endorses the request as required by section 14(3) of the Act. By so doing, the Chief Land Claims Commissioner declares that he is satisfied that all pre-requisites have been complied with which will enable the Court to make the settlement agreement an order of court⁴¹.

To summarise, if a settlement agreement is to be made an order of court, it must clearly set out on what basis the order is sought, preferably with reference to the appropriate sections of the legislation concerned. If it is an order for the transfer of state-owned property, the settlement agreement should, at the very least, contain particulars of each property to be transferred, particulars of the person or community to whom it will be transferred, and particulars of the relevant state department which must be ordered to effect the transfer. The claimants and the state department concerned (acting on their own or through agents) should be parties to the settlement agreement⁴². In addition, all other applicable provisions of the Interim Constitution and the Act must be complied with, where appropriate by adding suitable clauses to the settlement agreement.

For the above reasons, we cannot make the settlement agreement in its present form an order of court. The parties remain free to make appropriate amendments to the settlement agreement along the lines suggested in this judgment.

We make the following further observations arising from the Report and documents submitted to us :

(i) It is not indicated in the Report whether the claimants (as represented by the Macleantown Residents’ Association) include all persons dispossessed of erven in Macleantown⁴³. There is, in the papers annexed to the Report, a reference to 300⁴⁴dispossessed families (as opposed to 200 families referred to in the Report itself), and also a reference to removals during 1955/1956⁴⁵. The resources of the Commission and of the Court will be more effectively utilised if all claims relating to Macleantown are investigated at the same time. We recommend that a notice be published in the Gazette and brought to the attention of potential claimants (particularly at Chalumna, Tshabo and the Ciskei) in an appropriate manner, to the effect that the Commission is investigating claims relating to erven in Macleantown, and inviting them to lodge their claims within a period specified in such notice⁴⁶.

(ii) The Commission has wide powers under section 9 of the Act to solicit assistance from both the public and private sectors. Such powers can and should be used to seek legal assistance in the drafting of the deed of settlement in particular and the investigation of claims in general.

(iii) The settlement agreement in this matter is dated 23 October 1995 and the Report of the Regional Land Claims Commissioner is dated 26 October 1995. The papers in the matter were sent to the Registrar of the Court under cover of a letter from the Chief Land Claims Commissioner, dated 23 May 1996. It reached the Registrar of the Court on 6 June 1996. There is no apparent reason for this seven month delay, which must be very frustrating for the claimants. If a claim has not been referred to the Court within nine months of date of its lodgment, it must be reported to the Commission⁴⁷. It is not apparent from the papers before us what has been done in this connection.

An order is accordingly made as follows :

(a) the request to make the settlement agreement an Order of Court, is not acceded to;

(b) the matter is referred back to the Commission;

(c) the matter may again be referred to the Court on the same Report appropriately amended and supplemented with such further reports and documents as may be necessary.

______________________________

J MOLOTO

Judge : Land Claims Court

______________________________

A GILDENHUYS

Judge : Land Claims Court

4 July 1996

1The Rules are contained in Notice R703 dated 12 May 1995

2Rule 5 which is of particular importance, reads as follows :

“On acceptance of a claim for investigation, the Regional Land Claims Commissioner or a person designated by him or her, shall -

(a) ensure that the outstanding information required in respect of the claim is obtained;

(b) establish if the land is state-owned and, if not, obtain particulars of the owner, and the history of the acquisition of the land by the owner;

(c) establish the purpose for which the land is used at that stage and the conditions of such use;

(d) establish the date and circumstances of the dispossession of the right in such land;

(e) establish whether any compensation or compensatory land has been received, the amount of such compensation, the basis on which such amount was calculated, and whether the compensation was properly determined and comparable to the value of the land dispossessed;

(f) establish which Government Department or institution dealt with the dispossession, and under which law or for the purposes of furthering the objects of which law, such dispossession occurred;

(g) investigate the nature of the right in land claimed, and obtain proof thereof;

(h) establish whether or not the claimant is a person or community, as contemplated in section 2(1)(a) of the Act, or a direct descendant, or successor of such a person, and obtain particulars and proof thereof;

(i) establish whether there is more than one claim in respect of a specific area or property;

(j) see to it that a topographical or compilation map indicating the location of the land is obtained from the Government Printer or the Surveyor General;

(k) establish factors which could give rise to priority treatment as contemplated in section 6(2)(d) of the Act;

(l) establish the need and appropriateness for dealing with claims as provided for in section 12(4) of the Act;

(m) investigate options and make recommendations to the Minister in terms of section 6(2)(b) of the Act for appropriate alternative relief in respect of claimants who do not qualify for the restitution of land rights;

(n) establish in terms of section 13(1)(c) of the Act whether the current owner or holder of rights in land claimed is opposed to the claim;

(o) where applicable, investigate, obtain reports and request claimants to supply information relating to the factors mentioned in section 15(6)(a) to (d) of the Act to facilitate the report of the Chief Land Claims Commissioner to the Minister, with regard to feasibility; and

(p) obtain information regarding any other matter which is deemed to be necessary or desirable to be investigated in order to facilitate the task of the Regional Land Claims Commissioner.”

3Section 14(6) of the Act

4Section 2(3) of the Act

5Annexure B to the Report

6Section 35(2)(c) of the Act

7Section 35(3) of the Act

8There are several lists contained in Annexure “N” to the Report, some of them in very rough form. None of the lists seems to be authorative.

9Mr Peter Mhangwani of the Department of Land Affairs gave an opinion, the relevant portions whereof reads as follows :

“It is not a requirement of the Restitution Act that where a claim is lodged by a community a definitive list of the members of such community or the beneficiaries in that claim be obtained. In actual fact in terms of section 10 the representative of a community is entitled to institute a claim on behalf of a community.

The claimant in a case like the above stated one will be the community in question (note that claimant includes a community in terms of section 1(ii) of the Restitution Act). When land is restored after the claim has gone through all the stages as required by the Restitution Act and the Rules it is restored to the claimant. It must be borne in mind that the claimant in a case where a claim is by a community is not the individual members of that community but the community as a whole.

In most cases it will be extremely difficult to draw up a list of individual members or beneficiaries of a community and that cannot be what was intended. It is therefore concluded that it is not a legal requirement that the Commission obtain a definitive list of claimants.”

10See section 10(3) of the Act

11Section 123(3)(a) of the Interim Constitution reads as follows :

“(3) If the state certifies that any restoration in terms of subsection (1)(a) or any acquisition in terms of subsection (1)(b) is not feasible, or if the claimants instead of the restoration of the right prefers alternative relief, the court may, subject to subsection (4), order the state, in lieu of the restoration of the said right  

(a) to grant the claimant an appropriate right in available alternative state-owned land designated by the state to the satisfaction of the court, provided that the state certifies that it is feasible to designate alternative state-owned land;

(b) .....

(c) .....

(d) .....”

12The Report on page 4 thereof, also refers to the Cape Provincial Administration as the owner

13Section 2(1)(a) of the Act

14For example, if the claim is brought by a community and if it is established which erven members of that community lost through forced removals, the community would, under the settlement agreement, be entitled to receive the same number of unregistered or new erven.

15Rule 5(h) of the Rules requires the Regional Land Claims Commissioner to establish whether each claimant is a person or community as contemplated in section 2(1)(a) of the Act, or a direct descendant, or successor of such person and obtain particulars and proof thereof

16Section 121(2) of the Interim Constitution

17The annexures to the Report include many lists of erven; it is, however, not clear which of these will be transferred to the claimants

18Annexure K to the Report

19The provisions of section 46 of the Deeds Registries Act, 1937 (Act No 47 of 1937) dealing with the subdivision of land into lots or erven must be complied with. Provincial Ordinances often require municipal services to be available and prescribed legal procedures to be concluded before newly established erven may be transferred.

20Section 123(3) of the Interim Constitution

21The erven will be land envisaged in section 123(1)(a) of the Interim Constitution

22It must be borne in mind that feasibility certificate is required from the Minister of Land Affairs, and not from the state department responsible for the land. See section 15 of the Act

23Section 123(4)(b) of the Interim Constitution

24Annexure “J” to the Report

25According to the Regional Land Claims Commissioner (page 5 of the Report), approximately R150,00 per family

26See rule 5(e) of the Rules

27They will, in effect, be receiving a right in alternative state-owned land as envisaged in section 123(3)(a) of the Interim Constitution

28The Court may, in terms of section 35(4) of the Act, adjust the nature of a right previously held by a claimant

29Regulation 35 of the Deeds Regulations published under the Deeds Registries Act, Act No 47of 1937

30See the definition of “rights in land” in section 1 of the Act

31Section 121(2) of the Interim Constitution

32Rule 5(g) of the Rules require the Regional Land Claims Commissioner to investigate the nature of the right in land claimed

33Annexure P to the Report

34The causa of the transfer will be the Court Order, and it must be reflected as such in the transfer documents. See Jones, Conveyancing in South Africa (fourth edition) on page 99

35Section 35(2)(b) of the Act

36Section 42(1) of the Act

37Section 42(2) of the Act

38Section 35(2)(d)

39Section 14(1)(c) of the Act

40Section 14(3) of the Act

41The letter under cover of which the Chief Land Claims Commissioner submitted the matter to the Court reads as follows :

“In terms of section 6(1)(d) of the Restitution of Land Rights Act, 1994 the relevant documentation herewith for your attention please.

A settlement has been reached in this matter and is forwarded to be made an order of Court should the court agree.

A copy of the agreement has been forwarded to the Department of Land Affairs.”

This letter can, in no manner, be interpreted to be an endorsement as envisaged in section 14(3) of the Act

42If the state department concerned is not a party to the settlement agreement, it should, at least, give its consent to the transfer of the rights in land.

43In terms of rule 5(i) of the Rules, the Regional Land Claims Commissioner must investigate whether there are other claims in respect of the area

44In the document entitled “Bylae E”, Annexure J to the Report

45In a letter to the Regional Representative of Community Services, Cape Provincial Administration, Annexure “I” to the Report

46Section 12(4) of the Act

47Section 14(7) of the Act