OFFICE
OF THE PRESIDENT
-
- No. 2011 25 November 1994
-
- NO. 22 OF 1994:
RESTITUTION OF LAND RIGHTS ACT, 1994.
-
- It is hereby notifiee that
the President has assented to the following Act, which is hereby
published for general information:
-
ACT
-
- To provide for the
restitution of rights in land in respect of which persons or
communities were dispossessed under or for the
purpose of furthering
the objects of any racially based discriminatory law; to establish a
Commission on Restitution of Land
Rights and a Land Claims Court;
and to provide for matters connected therewith.
-
- WHEREAS the Constitution
of the Republic of South Africa, 1993 (Act No. 200 of 1993),
provides for the restitution of a right
in land to a person or
community dispossessed under or for the purpose of furthering the
objects of any racially based discriminatory
law;
-
- AND WHEREAS legislation
for this purpose is to be designed to promote the protection and
advancement of persons, groups or categories
of persons
disadvantaged by unfair discrimination, in order to promote their
full and equal enjoyment of rights in land:
-
(Afrikaans
text signed by the President.) (Assented to 17 November 1994.)
-
- NOW THEREFORE BE IT
ENACTED by the Parliament of the Republic of South
-
Africa, as follows:-
CHAPTER I Introductory
Provisions
Definitions
-
- 1. In this Act, unless the
context indicates otherwise-
-
- (i) "claim"
means any application lodged with the Commission in terms of this
Act; (iii)
-
(ii)
"claimant" includes a community; (iv) -
- (iii) "Commission"
means the Commission on Restitution of Land Rights established by
section 4; (ix)
-
- (iv) "community"
means any group of persons whose rights in land are derived from
shared rules determining access
to land held in common by such
group, and includes part of any such group; (v)
-
(v) "Court" means
the Land Claims Court established by section 22; (vii) (vi) "direct
descendant" of a person
includes the spouse or partner in a
-
customary union of such person whether or not
-
such customary union
-
has been registered; (ii)
-
- (vii) "Minister"
means the Minister of Land Affairs or an officer in his or her
department designated by him or
her; (x)
-
(viii) "person"
includes a community or part thereof; (xii)
-
- (ix) "prescribed"
means prescribed by or under this Act; (xiv)
-
- (x) "public land"
means all land owned by any organ of state as defined in section
233 of the Constitution, and
includes land owned by a local
authority, the Land Bank and any institution in which the State is
the majority or controlling
shareholder; (xi)
-
- (xi) "right in
land" means any right in land whether registered or
unregistered, and may include the interest of
a labour tenant and
sharecropper, a customary law interest, the interest of a
beneficiary under a trust arrangement and beneficial
occupation
for a continuous period of not less than 10 years prior to the
dispossession in question; (xiii)
-
- (xii) "Supreme
Court" means the Supreme Court of South Africa referred to in
section 101 of the Constitution; (viii)
-
(xiii)
"the rules" means the rules made under sections 16 and 32;
(i) -
(xiv)
"this Act" includes the rules and the regulations made
under section
-
40. (vi)
-
Enforcement
of claim for restitution
-
- 2. (1) A person shall be
entitled to enforce restitution of a right in land if-
-
- (a) he or she is a person
or community contemplated in section 121(2) of the Constitution or
a direct descendant of such a person;
and
-
- (b) the claim for such
restitution is lodged within three years after a date fixed by the
Minister by notice in the Gazette.
-
- (2) The date contemplated
in subsection (1), shall be a date not earlier than the earliest of
the dates contemplated in section
43.
-
- (3) The date contemplated
in section 121(2)(a) of the Constitution is 19
-
June 1913.
-
Claims
against nominees
-
- 3. Subject to the
provisions of this Act a person shall be entitled to claim title in
land if such claimant or his, her or its
antecedent-
-
- (a) was prevented from
obtaining or retaining title to the claimed land because of a law
which would have been inconsistent
with the prohibition of racial
discrimination contained in section 8(2) of the Constitution had
that subsection been in operation
at the
-
relevant time;
-
and
-
- (b) proves that the
registered owner of the land holds title as a result of a
transaction between such registered owner or his,
her or its
antecedents and the claimant or his, her or its antecedents, in
terms of which such registered owner or his, her
or its antecedents
held
-
the land on behalf of the
claimant or his, her or its antecedents.
-
CHAPTER
II
-
Commission
on Restitution of Land Rights
Establishment of Commission
on Restitution of Land Rights
-
- 4. (1) There is hereby
established a commission to be known as the
Commission on
Restitution of Land Rights.
-
- (2) The Commission shall
have a head office and such other offices, with such areas of
jurisdiction, as the Minister may determine.
-
- (3) The Commission shall
consist of a Chief Land Claims Commissioner appointed by the
Minister, after inviting nominations from
the
general public, a Deputy Land
Claims Commissioner similarly appointed and as many regional land
claims commissioners as may
be appointed by the Minister.
-
- (4) The Chief Land Claims
Commissioner, the Deputy Land Claims
-
Commissioner and a regional
land claims commissioner, shall- (a) be fit and proper persons to
hold such offices;
-
(b) be South African
citizens; and
-
- (c) have skills and
knowledge relevant to the work of the Commission or such legal
knowledge or qualifications as the Minister
may deem necessary.
-
(5) The Minister may terminate
any appointment made under subsection (3)- (a) if he or she is
satisfied that such appointed person
no longer
complies with the
requirements of subsection (4); or
-
- (b) if the appointed
person requests the Minister in writing to terminate the
appointment.
-
Meetings
of Commission
-
- 5. (1) The Commission
shall meet at least three times each year.
-
- (2) Meetings of the
Commission shall be held at the time and place determined by the
Chief Land Claims Commissioner.
-
- (3) The majority of the
members of the Commission shall form a quorum for a meeting of the
Commission.
-
- (4) The decision of the
majority of the members of the Commission present at any meeting
thereof shall be a decision of the
Commission:
Provided that, in the event
of an equality of votes, the Chief Land Claims Commissioner shall
have a casting vote in addition
to his or her deliberative vote.
-
General
functions of Commission
-
- 6. (1) The Commission
shall, at a meeting or through the Chief Land Claims Commissioner,
a regional land claims commissioner
or a person designated by any
such commissioner-
-
- (a) subject to the
provisions of section 2, receive and acknowledge receipt of all
claims for the restitution of rights in land
lodged with it in
terms of this Act;
-
- (b) take reasonable Steps
to ensure that claimants are assisted in the preparation and
submission of claims;
-
- (c) advise claimants of
the progress of their claims at regular intervals and upon
reasonable request;
-
(d) subject to the provisions
of section 14, report to the Court on the terms of settlement in
respect of successfully mediated
claims;
-
- (e) define any issues
which may still be in dispute between the claimants and other
interested parties with a view to expediting
the
-
hearing of
-
claims by the Court; at
regular intervals, take appropriate steps to make public
information regarding the persons entitled
to claim restitution of
rights in land in terms of section 121 of the Constitution, the
limitations imposed by section 2, and
the manner in which claims
may be lodged with the Commission.
-
- (2) The Commission may,
at a meeting or through the Chief Land Claims Commissioner, a
regional land claims commissioner or a
person designated by any
such commissioner-
-
- (a) monitor and make
recommendations concerning the implementation of orders made by the
Court under section 35;
-
- (b) make recommendations
or give advice to the Minister regarding the most appropriate form
of alternative relief, if any, for
those claimants
- who do
-
- not qualify for the
restitution of rights in land in terms of this Act;
- (c) refer questions of
law and interpretation to the Court;
-
- (d) ensure that priority
is given to claims which affect a substantial number of persons,
or persons who have suffered substantial
losses as
-
a result of dispossession or
persons with particularly pressing needs;
-
- (e) generally, do
anything necessarily connected with or reasonably incidental to
the expeditious finalisation of claims.
-
- Delegation of powers
and performance of functions
-
- 7. (1) The Commission
may delegate any power conferred upon it by or under this Act to a
subcommittee of the Commission or
to a member of the Commission or
to a person contemplated in section 8 or 9 subject to such
directions or conditions as the
Commission may give or determine
from time to time: Provided that the powers referred to in section
-
6(2)(b), (c) and (d) may not
be delegated.
-
- (2) The Chief Land
Claims Commissioner may delegate any power conferred upon him or
her by or under this Act except the power
of delegation to the
Deputy Land Claims Commissioner or any regional land claims
commissioner, either generally or with regard
to a specific claim.
-
- (3) If the Chief Land
Claims Commissioner is absent or unable to perform any or all of
his or her functions, the Deputy Land
Claims Commissioner shall
act in his or her stead and whilst the Deputy Land
-
Claims Commissioner so acts,
he or she shall perform all the functions of the Chief Land Claims
Commissioner.
-
- (4) A regional land
claims commissioner may, instead of performing any function in any
particular case, refer the matter to
the Commission for the
Commission to perform such function at a meeting contemplated in
section 5.
-
- Performance of
administrative work of Commission
-
8. (1)
The administrative work incidental to the performance of the
functions of the Commission shall be performed by officers
appointed in terms of the provisions of section 15(3)(a) of the
Public Service Act, 1994
- (Proclamation No. 103 of
1994), and designated in general or for a specific purpose by the
Minister after consultation with
the Commission.
-
(2) In
making a designation in terms of subsection (1), the Minister and
the Commission shall seek to ensure that the staff
of the
Commission shall be broadly representative of the South African
population.
-
(3)
Designated officers shall perform their functions under the control
-
and supervision of the Chief
Land Claims Commissioner or regional land claims commissioner,, as
the case may be.
-
Appointment
of persons to assist Commission on ad hoc basis
-
- 9. (1) The Chief Land
Claims Commissioner may from time to time-
-
- (a) appoint one or more
persons with particular knowledge or specific expertise relevant to
the achievement of the Commission's
objects to advise the
Commission regarding any matter connected with the performance of
its functions;
-
- (b) appoint one or more
persons with specific expertise in relation to dispute resolution
to facilitate meetings of interested
parties, mediate and settle
disputes, and report to the Commission in writing on the outcome of
such negotiations;
-
- (c) request any
government department, provincial administration, local authority
or person in the service of the State, a province
or local
authority who has particular knowledge or specific expertise to
advise the Commission regarding any matter connected
with the
-
performance
-
of its functions.
-
- (2) A person appointed in
terms of subsection (1) who is not in the full-time service of the
State may, from moneys appropriated
by Parliament for this purpose,
be paid such remuneration and allowances in respect of the services
performed by him or her
as may be determined by the Minister in
consultation with the Minister of Finance.
-
Lodgement
of claims
-
- 10. (1) Any person or the
representative of any community who is of the opinion that he or
she or the community which he or
she represents is entitled to
claim restitution of a right in land as contemplated in section 121
of the Constitution, may
lodge such claim, which shall include a
description of the land in question and the nature of the right
being claimed, on the
form prescribed for this purpose by the Chief
Land Claims Commissioner under section 16.
-
(2) The
Commission shall make claim forms available at all its offices. -
- (3) If a claim is lodged
on behalf of a community the basis on which it is contended that
the person submitting the form represents
such community, shall be
declared in full and any appropriate resolution or document
supporting such contention shall accompany
the form at the time of
lodgement: Provided that the regional land claims commissioner
having jurisdiction in respect of the
land in question may permit
such resolution or document to be lodged at a later stage.
-
Procedure
after lodgement of claim
-
- 11. (1) If the regional
land claims commissioner having jurisdiction is satisfied that-
-
(a) the claim has been lodged
in the prescribed manner;
-
- (b) the claim is not
precluded by the provisions of section 2(l); (c) the claim is not
frivolous or vexatious; and
-
(d) no order has been made by
the Court in terms of section 35 in respect of rights relating to
that land, he or she shall cause
notice of the claim to be
published in the Gazette and shall take steps to make it known in
the district in which the land
in question is situated.
-
- (2) The regional land
claims commissioner concerned may, on such conditions as he or she
may determine, condone the fact that
a claim has not been lodged in
the prescribed manner.
-
- (3) A frivolous or
vexatious claim may be dismissed bv the regional land claims
commissioner concerned.
-
- (4) If the regional land
claims commissioner decides that the criteria set out in paragraphs
(a), (b), (c) and (d) of subsection
(1) have not
-
been met, he or she shall
advise the claimant accordingly, and of the reasons for such
decision.
-
- (5) If an order has been
made by the Court as contemplated in section 35 the claimant may,
subject to the provisions of section
2(l), make application to the
Court for permission to lodge a claim in respect of that land.
-
- (6) Immediately after
publishing the notice referred to in subsection (1), the regional
land claims commissioner shall-
-
- (a) advise any other
party which, in his or her opinion, might have an interest in the
claim; and
-
- (b) direct the relevant
Registrar, as contemplated in section 102 of the Deeds Registries
Act, 1937 (Act No. 47 of 1937), for
the area in which the land in
question is situated to note in his or her records the
-
fact that
-
a claim for restitution
of a right in the land has been instituted in
- (7) Once a notice has
been published in respect of any land and a temporary note has
been made in the records as contemplated
in subsection (6)(b)-
-
(a) no person may in an
improper manner obstruct the passage of the claim; (b) no claimant
who was resident on the land in question
at the date of
-
commencement of this Act may
be evicted from the said land without the written authority of the
Chief Land Claims Commissioner;
-
- (c) no person shall in
any manner whatsoever remove or cause to be removed, destroy or
cause to be destroyed or damage or
cause to be damaged, any
improvements upon the land without the written authority of the
Chief Land Claims Commissioner;
-
- (d) no claimant or other
person may enter upon and occupy the land without the permission
of the owner or lawful occupier.
-
- (8) The regional land
claims commissioner may, at any time after the publication of a
notice contemplated in subsection (1),
if he or she has reason to
believe that any improvement on the land is likely to be removed,
damaged or destroyed or that any
person resident on such land may be adversely
- affected as
-
a result of the
publication of such notice, authorise any person contemplated in
-
section 8 or 9 to enter
upon such land for the purpose of drawing up an
-
inventory
-
of any assets on the land, a
list of persons employed or resident on the land, or
-
a report on the agricultural
condition of the land and of any excavations, mining
-
or prospecting thereon.
-
- Commission's power of
investigation
-
- 12. (1) The Commission
may, through a member of the Commission or any person authorised
thereto in writing, in order to carry
out its functions-
-
- (a) conduct an
investigation;
-
- (b) demand from any
person including any government department such particulars,
documents and information as may be necessary
in connection with
any investigation;
-
- (c) by notice in writing,
addressed and delivered by a member of the staff of the
Commission or a sheriff to any person, direct
such
-
person, in
-
relation to an investigation, to appear before a member of
the to or to
-
- Commission at a time and place mentioned in
such notice and produce to such member all documents or objects
in the possession
custody or under the control of
such person and which are relevant that investigation.
-
(2) Any person directed to
produce documents or objects in terms of subsection (1)(c) shall
not be compelled to produce any
document or object which could be
used in evidence against him or her in a criminal trial.
-
- (3) If a claimant is not
able to provide all the information necessary
-
for the adequate submission
or investigation of a claim, the regional land claims commissioner
concerned shall direct an officer
contemplated in section 8 to take
all reasonable steps to have this information made available.
-
- (4) If at any stage
during the course of an investigation by the Commission, the Chief
Land Claims Commissioner is of the opinion
that the resources of
the Commission or the Court would be more
-
effectively utilised if all
claims for restitution in respect of the land, or area or township
in question, were to be investigated
at the same time, he or she
shall cause to be published in the Gazette and
-
in such other manner as he or
she deems appropriate, a notice advising potential claimants of his
or her decision and inviting
them, subject to the provisions of
section 2(l), to lodge claims within a period specified in such
notice.
-
- (5) No claim in respect
of a matter contemplated in subsection (4) shall be lodged after
the expiry of the period specified
in the said notice: Provided
that the Commission may allow a claimant on good cause shown, to
lodge a claim after the expiry
of such period, but not later than
three years after the date fixed in terms of section
-
2(1)(b).
Mediation
-
- 13. (1) If at any stage
during the course of the Commission's investigation it becomes
evident that-
-
(a) there are two or more
competing claims to a particular right in land; (b) in the case of a
community claim, there are competing
groups within the
-
claimant community making
resolution of the claim difficult;
-
- (c) where the land which
is subject to the claim is not state-owned land, the owner or holder
of rights in such land is opposed
to the claim; or
-
- (d) there is any other
issue which might usefully be resolved through mediation and
negotiation, the Chief Land Claims Commissioner
may direct the
parties concerned to attempt to settle their dispute through a
process of mediation and negotiation.
-
- (2) (a) A direction
contemplated in subsection (1) shall be made in a written notice
specifying the time when and the place
where such process is to
start.
-
- (b) The Chief Land Claims
Commissioner shall appoint a mediator to chair the first meeting
between the parties: Provided that
the parties may at any time
during the course of mediation or negotiation by agreement appoint
another person to mediate the
dispute.
-
- (3) A person appointed by
the Chief Land Claims Commissioner in terms of subsection (2)(b)
shall either be an officer contemplated
in section 8 who is a fit
and proper person to conduct such a process of mediation and
negotiation or an independent mediator
contemplated in section
-
9(l)(b).
-
- (4) All discussions taking
place and all disclosures and submissions made during the mediation
process shall be privileged, unless
the parties agree to the
contrary.
-
Referral
of claims to Court
-
- 14. (1) If upon completion
of an investigation by the Commission-
-
- (a) the parties to any
dispute arising from the claim agree in writing that it is not
possible to settle the claim by mediation
and negotiation;
-
- (b) the regional land
claims commissioner certifies that it is not feasible to resolve any
dispute arising from such claim by
mediation and negotiation;
-
- (c) the parties to any
dispute arising from such claim reach agreement as to how the claim
should be finalised and the regional
land claims commissioner is
satisfied that such agreement is appropriate; or
-
- (d) the regional land
claims commissioner is of the opinion that the claim is ready for
hearing by the Court, the Chief Land Claims
Commissioner shall
certify accordingly and refer the matter to the Court.
-
- (2) Any claim referred to
the Court as a result of a situation contemplated in subsection
(1)(a), (b) or (d) shall be accompanied
by a document-
-
- (a) setting out the
results of the Commission's investigation into the merits of the
claim;
-
- (b) reporting on the
failure of any party to accede to mediation;
-
(c) containing a list of the
parties who ought to have the right to make representations to the
Court in respect of the claim;
and
-
- (d) setting out the
Commission's recommendation as to the most appropriate manner in
which the claim can be resolved.
-
- (3) 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.
-
- (4) If the Chief Land
Claims Commissioner is not satisfied that a settlement referred to
in subsection (1)(c) is appropriate,
he or she shall refer the
matter to the Court for a hearing in accordance with subsection
(1)(d).
-
- (5) Any interested party
shall be entitled, upon payment of the prescribed fee, to copies of
the documents contemplated in this
section, including the
submissions of other interested parties in relation to any matter
contemplated in this section.
-
- (6) The Court shall not
make any order in terms of section 35 unless the Commission has, in
respect of the claim in question,
acted in accordance with the
provisions of this section.
-
- (7) If a claim has not
been referred to the Court within nine months from the date of its
lodgement, the regional land claims
commissioner concerned shall
report in writing to the Commission, giving the reasons for the
delay.
-
Certificate
of feasibility
-
- 15. (1) Upon referral of
a claim contemplated in section 121(2) of the Constitution to the
Court in terms of section 14, the
Chief Land Claims Commissioner
shall request the Minister to certify whether-
-
- (a) in the case of land
contemplated in section 123(1)(a) of the Constitu- tion,
restoration of the right in question is feasible;
-
- (b) in the case of land
contemplated in section 123(l)(b) of the Constitu- tion,
acquisition of the right in question is feasible.
-
(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.
-
- (3) If the Minister
certifies under subsection (1) that restoration or acquisition is
not feasible, the Chief Land Claims Commissioner
shall forthwith
request the Minister to certify whether it is feasible to designate
alternative state-owned land.
-
- (4) When submitting a
request contemplated in subsections (1), (2) or (3), the Chief Land
Claims Commissioner shall advise the
Minister as to whether or not
restoration, acquisition or designation is feasible in the case in
question.
-
- (5) All interested
parties shall be given the opportunity to make submissions to the
Minister on the question of feasibility.
-
- (6) In considering whether
restoration or acquisition by the State is
-
feasible in terms of
subsection (1), the Minister shall, in addition to any other
factor, take into account-
-
- (a) whether the zoning of
the land in question has since the dispossession been altered and
whether the land has been transformed
to such an extent that it is
not practicable to restore the right in question;
-
- (b) any relevant urban
development plan;
-
- (c) any other matter
which makes the restoration or acquisition of the right in question
unfeasible; and
-
- (d) any physical or
inherent defect in the land which may cause it to be hazardous for
human habitation.
-
- (7) In considering whether
designation of alternative state-owned land is feasible in terms of
subsections (2) and (3), the Minister
shall, in addition to any
other factor, take into account-
-
- (a) what land is owned by
the State, in particular land which is situated in the area in
which the dispossession took place;
and
-
(b) the suitability of such
land to meet the needs of the claimant. (8) Nothing in this section
shall be construed to mean that
the Minister
-
shall be required or
entitled to consider whether restoration, acquisition or
-
designation is just or
desirable.
-
- (9) The Minister shall
issue the relevant certificate of feasibility, or refuse to do so,
within 30 days of receipt of a request,
and the Chief Land Claims
Commissioner or the regional land claims commissioner concerned
shall communicate the Minister's decision
to every person affected
by it.
-
- (10) The decision of the
Minister shall be subject to review by the Court, the hearing of
which review may, at the discretion
of the Court, be conducted at
the same time as the hearing of the claim in question.
-
- (11) The decision of the
Minister in respect of the issue of a certificate of feasibility,
and the reasons for such decision,
shall be public documents.
-
- (12) If the Minister
certifies in terms of subsection (2) or (3) that it is feasible to
designate alternative state-owned land
he or she may make such
designation at the same time or at any time thereafter.
-
- Rules regarding
procedure of Commission
-
- 16. (1) After consultation
with the Minister, the Chief Land Claims
-
Commissioner may make
rules regarding-
-
- (a) any matter which, in
terms of this Chapter, is required or permitted to be prescribed;
-
- (b) the filing of claims;
-
- (c) any steps which may
be taken to give public notice of claims and notice to persons who
have an interest in any matter under
investigation by the
Commission;
-
- (d) the giving of notice
to parties to attend a meeting for the purpose of mediating or
negotiating the settlement of disputes;
-
- (e) the giving of notice
to parties and public notices giving notice that the Commission
will consider any related claims in
respect of specific
-
land, a neighbourhood or
township within a stipulated period; the order of preference to be
given to claims or categories of
claims in order to achieve the
result contemplated in section 6(2)(d); and
-
- (g) generally, with
regard to any other matter which he or she considers it necessary
or expedient to prescribe in order to
achieve or promote the
objects of this Act.
-
- (2) The generality of
subsection (1) shall not be limited by the preceding sections of
this Chapter.
-
- (3) Rules made under the
provisions of subsection (1) shall be published in the Gazette.
-
Offences
and penalties
-
- 17. Any person who-
-
(a)
contravenes the provisions of section 11(7)(a), (b), (c), or (d); -
- (b) having been directed
to appear before a member of the Commission and
to produce documents or
objects in terms of section 12(l)(c), fails to appear at the
specified time and place or to produce
such documents or objects;
-
- (c) hinders or obstructs
the Commission in the performance of its functions;
- from
-
- (d) prevents or attempts
to prevent a duly authorised officer contemplated
in section 8, or a person appointed in terms of section
9,
-
- performing a function in
terms of this Act, shall be guilty of an offence and liable on
conviction to a fine or to imprisonment
for a period not exceeding
three months.
-
- Limitation of
liability
- 18. The Commission,
members of the Commission, any person appointed under section 9 or
any officer contemplated in section 8,
shall not be liable in
respect of any act or omission in good faith while performing a
function in terms of any provision of
this Act.
-
Expenditure
of Commission
-
- 19. (1) All expenditure
in connection with the performance of the Commission's functions
shall be defrayed from moneys appropriated
by Parliament for such
purpose.
-
- (2) A person appointed
in terms of section 4(3) who is not in the full-time service of
the State may, from moneys appropriated
by Parliament for such
purpose, be paid such remuneration and allowances in respect of
services performed in connection
with the
-
functions of the
Commission, as may be determined by the Minister in consultation
with the Minister of Finance.
-
Annual
estimates of expenditure
-
- 20. The estimates of
expenditure in respect of each financial year shall, after being
prepared by the Chief Land Claims Commissioner
or an official
contemplated in section 8(l) and designated by the Chief Land
Claims Commissioner, be submitted, not later than
the first day of
August of the preceding financial year to the Director-General of
Land Affairs, who shall be the accounting
officer.
Annual
report
-
- 21. The Commission shall
annually not later than the first day of June submit to Parliament a
report on all its activities during
the previous year, up to 31
March.
-
CHAPTER
III
-
The
Land Claims Court
-
Land
Claims Court
-
- 22. (1) There shall be a
court of law to be known as the Land Claims Court which, in
addition to the powers contemplated in
section 123 of the
Constitution, shall have the power-
-
- (a) to determine
restitution of any right in land in accordance with this
-
Act;
-
- (b) to determine
compensation in terms of this Act;
-
- (c) in respect of a claim
in terms of section 3, to determine the person entitled to
ownership;
-
- (d) to determine all
other matters which require to be determined in terms of sections
121, 122 and 123 of the Constitution.
-
- (2) The Court shall have
jurisdiction throughout the Republic and shall have all the
ancillary powers necessary or reasonably
incidental to the
performance of its functions, including the power to grant
interlocutory orders and interdicts.
-
- (3) There shall be a
President of the Court, who shall be appointed by the
President of the
Republic, acting on the advice of the Judicial
-
Service Commission.
-
- (4) The President of the
Republic may, after consultation with the President of the Court
and the Judicial Service Commission,
appoint additional judges of
the Court.
-
- (5) The President of the
Court and the additional judges of the Court may be appointed for a
fixed term.
-
- (6) A judge of a
provincial or local division of the Supreme Court may be seconded
to serve as a judge of the Court.
-
Qualifications
of judges of Court
-
- 23. No person shall be
qualified to be appointed President of the Court or a judge of the
Court unless he or she-
-
- (a) is a South African
citizen;
-
- (b) is a fit and proper
person to be a judge of the Court; and
-
- (c) (i) is a judge of
the Supreme Court or is qualified to be admitted as an advocate or
attorney and has, for a cumulative
period of at least ten years,
practised as an advocate or an attorney or lectured in law at a
university; or
-
(ii) by
reason of his or her training and experience, has expertise in the
fields of law and land matters relevant to the
application of this
Act and the law of the Republic.
Law of procedure and
rules
-
- 24. Until such time as
rules of Court are made in terms of section 32, the rules of
procedure applicable in civil actions and
applications in a
provincial division of the Supreme Court shall apply mutatis
mutandis in respect of any proceedings in the
Court.
-
Holding
of office
-
- 25. The provisions of
section 104 of the Constitution with regard to the making of an oath
or solemn affirmation and the removal
or suspension of judges shall
apply to judges and assessors of the Court.
-
Remuneration
and conditions of employment of judges
-
- 26. A judge of the Court
shall receive such remuneration and shall, subject to section 22(5),
be appointed subject to such conditions
of employment as may be
prescribed by or under the Judges' Remuneration and Conditions of
Employment Act, 1989 (Act No. 88 of
1989), and his or her
remuneration shall, subject to the provisions of section 7(4) of the
said Act, not be reduced during his
or
-
her continuance in office.
-
Appointment
of assessors
-
- 27. (1) The Court shall
be assisted by assessors appointed by the Minister after inviting
nominations from the general public.
-
- (2) No person shall be
appointed as an assessor of the Court unless he or she, in the
opinion of the Minister, has skills
and knowledge relevant to the
work of the Court: Provided that it shall not be a requirement of
appointment that an assessor
shall have any legal qualifications.
-
- (3) An assessor shall
receive such remuneration and be entitled to such vacation and
other benefits as may be determined by
the Minister of Justice in
consultation with the Minister of Finance and the President of the
Court.
-
Seat
and hearings of Court
-
- 28. (1) The seat or
seats of the Court shall be determined by the Minister of Justice
in consultation with the President of
the Court.
-
- (2) The Court may
notwithstanding the provisions of subsection (1) conduct hearings
at any other place in the Republic with
a view to making the Court
accessible to claimants.
-
- (3) Hearings of the
Court shall be presided over by a single judge unless the
President of the Court or in his or her absence
the most senior
available judge decides to the contrary.
-
- (4) At least one
assessor shall participate at the hearing of any disputed case.
-
- (5) At every hearing, a
participating assessor shall have a vote equal to that of a judge
hearing the matter, except in relation
to questions of law:
Provided that decisions in respect of the matters referred to in
sections 33 and 34(6) shall be deemed
not to be questions of law:
Provided further that in the event of an equality of votes the
presiding judge shall have a casting
vote in addition to his or
her deliberative vote.
-
Locus
standi and legal representation
-
29. (1) Any party listed in
the document referred to in section 14(2), or any interested party
in relation to an application
in terms of section 34, may appear
before the Court, either in person or represented by an advocate or
attorney:
-
Provided that the State shall
have the right to be heard in all cases and that a person or
community not listed in the document
referred to in section 14(2)
may apply to the Court for permission to appear before it.
-
- (2) Where a party can not
afford to pay for legal representation itself, the Chief Land
Claims Commissioner may take steps to
arrange legal representation
for such party, either through the State legal aid system or, if
necessary, at the expense of
the Commission.
-
Admissibility
of evidence
-
- 30. (1) The Court may
admit any 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.
-
- (2) Without derogating
from the generality of the aforegoing subsection, it shall be
competent for any party before the Court
to adduce-
-
- (a) hearsay evidence
regarding the circumstances surrounding the dispos- session of the
land right or rights in question and
the rules governing the
allocation and occupation of land within the claimant community
concerned at the time of such dispossession;
and
-
- (b) expert evidence
regarding the historical and anthropological facts relevant to any
particular claim.
-
- (3) The Court shall give
such weight to any evidence adduced in terms of subsections (1) and
(2) as it deems appropriate.
-
Pre-trial
conference
-
- 31. (1) The Court may, at
its own instance or at the request of any party before it, at any
stage prior to the hearing of a
matter convene a pre-trial
conference of the parties with a view to clarifying the issues in
dispute, identifying those issues
on which evidence will be
necessary and, in general, expediting a decision on the claim in
question.
-
- (2) The Court may, after
the holding of such a pre-trial conference, issue such orders and
directions as to the procedure to
be followed before and during the
trial as it deems appropriate.
-
Rules
governing procedure
-
- 32. (1) The President of
the Court may make rules to govern the procedure of the Court,
including rules providing for the circumstances
under which oral
evidence may be submitted to the Court.
-
- (2) The rules contemplated
in subsection (1) shall be published in the
-
Gazette.
-
- (3) Notwithstanding
anything to the contrary in this Act or in the rules contemplated
in subsection (1)-
-
- (a) the Court may, at any
stage after a claim has been referred to it, refer the claim back
to the Commission with directives
as to matters which are to be
investigated and reported on by the Commission; and
-
(b) the Court may conduct
any part of any proceedings on an informal or inquisitorial basis.
-
- (4) The rules
contemplated in subsection (1) shall make provision for the
expeditious hearing of an application in terms of
section 34.
-
Factors
to be taken into account by Court
-
- 33. In considering its
decision in any particular matter, excluding the review of a
decision in terms of section 15, the Court
shall, in addition to the
matters referred to in sections 121, 122 and 123 of the
Constitution, have regard to the following
factors:
-
- (a) The desirability of
providing for restitution of rights in land or compensation to
people who were dispossessed of their
rights in land as a result of
or in pursuance of racially based discriminatory laws;
-
- (b) the desirability of
remedying past violations of human rights; (c) the requirements of
equity and justice;
-
(d) the desirability of
avoiding major social disruption;
-
- (e) any provision which
already exists, in respect of the land in question in any matter,
for that land to be dealt with in
a manner which is designed to
achieve the goals contemplated in section
-
8(3)(a) of the Constitution;
any other factor which the Court may consider relevant and
consistent with the spirit and objects
of the Constitution and in
particular the provisions of section 8 of the Constitution.
-
- Ruling by Court on
restoration before final determination of claim
-
- 34. (1) Any national,
provincial or local government body may, in respect of land which
is owned by it or falls within its
area of jurisdiction, make
application to the Court for an order that the land in question or
any rights in it shall not
be restored to any claimant or
prospective claimant.
-
- (2) Notice of any such
application shall be given to the Commission, which shall
investigate and submit a report to the Court
on the desirability
of making an order referred to in subsection (1).
-
- (3) Any party making an
application to the Court in terms of subsection (1) shall, at its
own expense, take such steps as
the relevant regional land claims
commissioner may direct in order to bring the application to the
attention of other persons
who may have an interest therein, in
order that they may make submissions to and appear before the
Court on the hearing of
the application.
-
- (4) The regional land
claims commissioner concerned shall take such further steps as he
or she deems appropriate to bring
the application to the attention
of persons who may have an interest.
-
- (5) After hearing an
application contemplated in subsection (1), the
-
Court may-
-
- (a) dismiss the
application; or
-
- (b) order that when any
claim in respect of the land in question is finally determined, the
rights in the land in question,
or in part of the land, or certain
rights in the land, shall not be restored to any claimant.
-
(6) The Court shall not make
an order in terms of subsection (5)(b)
-
unless it is satisfied that-
-
- (a) it is in the public
interest that the rights in question should not be restored to any
claimant; and
-
- (b) the public or any
substantial part thereof will suffer substantial prejudice unless
an order is made in terms of subsection
(5)(b) before the final
determination of any claim.
-
(7) If the
Court makes an order in terms of subsection (5) (b), the regional
land claims commissioner shall direct the relevant
Registrar to
remove any note made in his or her records in terms of section
11(6)(b).
-
(8) Any order
made in terms of subsection (5)(b) shall be binding on all claimants
to the rights in question, whether such claim
is lodged before or
after the making of the order.
-
- Court orders
-
- 35. (1) A person in
whose favour an order contemplated in section 123(3)(c) of the
Constitution has been made may, instead
of accepting such
alternative relief, within 30 days after the date on which the
order was made, apply in writing to the
Minister to be registered
as a preferential claimant to benefit from any State support
programme
-
for housing and the
allocation and development of rural land.
-
- (2) The Court may in
addition to the orders contemplated in section 123 of the
Constitution-
-
- (a) determine conditions
which must be fulfilled before a right in land can be restored or
granted to a claimant;
-
- (b) if a claimant is
required to make any payment before the right in question is
restored or granted, determine the amount
to be paid and the manner
of payment, including the time for payment;
-
- (c) if the claimant is a
community, determine the manner in which the rights are to be held
or the compensation is to be paid
or held;
-
(d)
recommend to the Minister that a claimant be given priority access
to State resources in the allocation and development
of housing and
land in the appropriate development programme;
-
- (e) give any other
directive as to how its orders are to be carried out, including the
setting of time limits for the implementation
of its orders; make
an order in respect of compensatory land granted at the time of the
dispossession of the land in question;
-
- (g) make such orders for
costs as it deems just.
-
- (3) An order contemplated
in subsection (2)(c) shall be subject to such conditions as the
Court considers necessary to ensure
that all the dispossessed
members of the community concerned shall have access to the land or
the compensation in question, on
a basis which is fair and
non-discriminatory towards any person, including a woman and a
tenant, and which ensures the accountability
of the person who holds
the land or compensation on behalf of
-
the community to the members
of such community.
-
- (4) The Court's power to
order the restitution of a right in land or to grant a right in
alternative state-owned land shall include
the power to adjust the
nature of the right previously held by the claimant, and to
determine the form of title under which the
right may be held in
future.
-
(5) If the Court orders the
State to expropriate land or a right in land in order to restore it
to a claimant, the Minister shall
expropriate such land or right in
accordance, mutatis mutandis, with the provisions of the
Expropriation Act, 1975 (Act No. 63
of 1975): Provided that the
owner of such land or right shall be entitled to the payment of just
and equitable compensation,
determined either by agreement or by the
Court according to the principles laid down in section 28(3) of the
Constitution: Provided
further that the procedure to be followed by
the Court in the determination of such compensation shall be as
provided in sections
24 and 32 of this Act.
-
- (6) In making any award of
land, the Court may direct that the rights of individuals to that
land shall be determined in accordance
with the procedures set out
in the Distribution and Transfer of Certain State Land Act, 1993
(Act No. 119 of 1993).
-
- (7) An order of the Court
shall have the same force as an order of the
Supreme Court for the purposes
of the Deeds Registries Act, 1937 (Act No. 47 of
-
1937).
-
- (8) Upon making an order,
the Court shall direct the Registrar concerned to remove any
temporary note entered in his or her records
in respect of the land
in terms of section 11(6)(b).
-
- (9) Any state-owned land
which is held under a lease or similar arrangement shall be deemed
to be in the possession of the State
for the purposes of section
123(1)(a) of the Constitution: Provided that, if the Court orders
the restitution of a right in such
land, the lawful occupier thereof
shall be entitled to just and equitable compensation determined
either by agreement or by the
Court according to the principles laid
down in section 28(3) of the Constitution.
-
- (10) An interested party
which is of the opinion that an order of the Court has not been
fully or timeously complied with may
make application to the Court
for further directives or orders in that regard.
-
- Review of decisions of
Commission
-
- 36. (1) Any party
aggrieved by any act of or decision of the Commission or any
functionary acting or purportedly acting in
terms of this Act may
apply to have such act or decision reviewed by the Court.
-
- (2) The Court shall
exercise all of the Supreme Court's powers of review with regard
to such matters, to the exclusion of
the provincial and local
divisions thereof.
-
Appeals
from Court
-
- 37. (1) Appeals against
decisions by the Court shall lie either to the Constitutional
Court or to the Appellate Division of
the Supreme Court.
-
- (2) The Court shall in
each case determine the court to which an appeal shall lie.
-
Decisions
of Court a matter of public record
-
- 38. The decisions of the
Court shall be a matter of public record on the same basis as
decisions of the Supreme Court.
-
CHAPTER
IV Miscellaneous Provisions
Register of public land
-
- 39. In order to facilitate
the work of the Commission and the Court, the Minister may take all
necessary steps to compile a register
of public land, which register
shall be open to inspection by claimants and prospective claimants.
-
Regulations
-
- 40. The Minister may make
regulations regarding-
-
(a) any
matter required or permitted to be prescribed in terms of this
-
Act; and
-
- (b) generally, all
matters which in his or her opinion are necessary or expedient to
be prescribed in order to achieve the objects
of this Act.
-
Repeal
of laws, and savings
-
- 41. (1) Sections 88A up
to and including 96A of the Abolition of Racially Based Land
Measures Act, 1991 (Act No. 108 of 1991),
and the Abolition of
Racially Based Land Measures Amendment Act, 1993 (Act No. 110 of
1993), are hereby repealed.
-
- (2) If an application
was, before the commencement of this Act, lodged with the
Commission on Land Allocation established
in terms of section 89
of the Abolition of Racially Based Land Measures Act,
-
1991 (Act No. 108 of
1991), and that Commission has, before the
-
commencement of this Act-
-
- (a) made a recommendation
in respect of such application, such application shall on request
of any interested party; or
-
- (b) not made any order or
recommendation in respect of such application such application
shall, subject to the provisions of
subsection (3), be deemed to
have been lodged with the Commission in accordance with the
provisions of section 10(l).
-
(3) The regional land claims
commissioner having jurisdiction may- (a) direct any applicant in
respect of an application referred
to in
-
subsection (2) to
provide the Commission with any further information
-
relevant to the
application; and
-
- (b) in respect of an
application referred to in subsection (2), waive compliance with
any or all of the procedures prescribed
by or under this Act.
-
Transfer
duty and fees
-
- 42. (1) The Minister may
direct that any transfer duty or other fees payable by a claimant
in respect of any transfer of land
or of a right in land in terms
of this Act shall be defrayed in full or in part from money
appropriated by Parliament for
that purpose.
-
- (2) The Minister may, in
consultation with the Minister of Finance, direct that no transfer
duty, stamp duty or other fees
contemplated in subsection (1)
shall be paid in respect of a particular transfer under this Act.
-
Short
title and commencement
-
43. (1)
This Act shall be called the Restitution of Land Rights Act, 1994, -
and shall come into operation
on a date fixed by the President by proclamation in the Gazette.
-
- (2) Different dates may be
fixed in respect of different Chapters of this Act.
|