Page 23 - Litigating in the Land Claims Court: Training Manual

LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL LITIGATION IN IN IN THE LAND CLAIMS COURT TRAINING MANUAL enacted to to to give effect to to to the right in in s s s s 25(7) 33 It was
passed by Parliament on on 17 November 1994 1994 and came into force on 2 June 1994 60 The Restitution Act
creates the the the Commission Commission which is is is is is is primarily responsible for processing restitution restitution claims It is is is is is is only when the the the Commission Commission is is is is is is unable to to resolve a a a a a a restitution restitution claim that it it it it is is is is is is referred to to the the the LCC Who is covered by the Restitution Act?
61 Section 2 of the the Restitution Act
provides that the the following people can lodge an an application for restitution:
61 1 1 1 1 1 A person dispossessed of of a a a a a a a a a a a right in in land after 19 19 June 1913 as as a a a a a a a a a a a result of of past racially discriminatory laws or practices 61 2 The estate of a a a person who was
dispossessed 61 3 The direct direct descendant descendant of of of a a a a a a a a a a a a person person person who who was
dispossessed dispossessed if no ascendant of of of that person person person (who is is is also a a a a a a a a a a a a direct direct descendant descendant of of of the dispossessed dispossessed person) has lodged a a a a a a a a a a a a restitution claim or 61 4 A community community or part of a a a a community community that was
dispossessed 62 Initially the the the window window to to lodge lodge claims for restitution closed on on on 31 December 1998 However in in in 2014 2014 Parliament enacted the the the Restitution of of of of Land Rights Amendment Act
15 of of of of 2014 2014 2014 which reopened the the the window window to to to lodge lodge restitution claims for five years from 1 1 1 1 1 June June 2014 2014 to to 30 June June 2019 Tens of of of of thousands of of of of applications were lodged when the window opened 63 However it it it it was
closed prematurely on on on on on on on 28 July 2016 when the the the Constitutional Court declared the the the Amendment Act
unconstitutional in in in LAMOSA I on on on on on on on the the the the basis that Parliament had not facilitated public participation 34 While it it it it it it it suspended the the the order of invalidity for for two years it it it it it it it prohibited any new new claims claims from being lodged Parliament has not to to date passed new new legislation to to again open the the possibility for for claims claims 64 What is is is the the the status of of those claims claims lodged in in in 2014 to to 2016? The Constitutional Court was
called to to determine this question in in in LAMOSA II 35 It held that the the the the the the Commission could not process process any of of the the the the the the “new” claims claims claims until it it it had either settled all the the the the the “old” claims claims claims lodged before 1998 or or or the the the the the LCC granted it it it permission to to to process process new new claims claims It also made clear that a a a a a a a a a a a a a a a a a a a a a a a a new new claim claim claim claim would not ordinarily be be able to to to to affect an an an an an award to to to to an an an an an old old claimant unless there were exceptional circumstances to to to to to justify it it it Lastly the the the the Constitutional Court ordered the the the the Commission to to to report regularly to to to the the the the LCC on on on on its progress in in processing old claims 65 Like the the the the the LTA the the the the the government is is is effectively under under the the the the the supervision of the the the the the LCC to to demonstrate that it it it it is is is making progress in in performing its obligations to to restitution claimants under under the the the the the Restitution Act
33 Defined as “any right fin in in in in in in in land whether registered registered or or or unregistered and and and and may include the the the the interest interest interest of of of a a a a a a a a a a a a a a a a a a a a a a a a labour tenant and and and and sharecropper a a a a a a a a a a a a a a a a a a a a a a a a customary law interest interest interest the the the the interest interest interest of of of a a a a a a a a a a a a a a a a a a a a a a a a beneficiary under a a a a a a a a a a a a a a a a a a a a a a a a trust arrangement and and and and beneficial occupation for a a a a a a a a a a a a a a a a a a a a a a a a continuous period of of of not less than 10 years prior to to the the the the dispossession fin in in in in in in in question 34 Land Access Movement of of of South Africa and and and Others Others v v v Chairperson of of of the the the National Council of of of Provinces and and and Others Others [2016] ZACC 22 2016 2016 2016 (5) SA 635 (CC) (CC) 2016 2016 2016 (10) BCLR 1277 (CC) 35 Speaker of of the the the National Assembly and and and Another v v Land Access Movement of of South Africa and and and Others [2019] ZACC 10 2019 2019 2019 (5) BCLR 619 (CC) (CC) 2019 2019 2019 (6) SA 568 (CC) PAGE PAGE 23