Page 7 - 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 II OVERVIEW OF OF SECTION 25 OF OF THE CONSTITUTION
9 Sections 25 (1) – (3) of of the the Constitution provide for the the protection of of existing property rights However sections 25 (2) and (3) recognise that expropriation for a a a a public public purpose or or in in the public public interest is is constitutionally acceptable provided it it it is effected in accordance with the requirements of subsections (1) – (3) 10 Section 25 (4) provides the the the bridge to the the the subsections which follow it It expressly recognises that “the public interest includes the nation’s commitment to land reform ” Juxtaposed with section 25 (1) – (3) are subsections (5) – (9) of of section section 25 which together constitute the the land reform provisions The inclusion of of subsections (4) – (9) was designed to ensure that the the apartheid era spatial distribution of land occupation and ownership was not frozen upon coming into force of the Constitution 11 Section 25(6) constitutes a a a a a a a a crucial component of that transformative constitutional guarantee It provides that: “A person or or community whose tenure of of land is is legally insecure as as a a a a a a a a a result of of past racially discriminatory laws or practices is is entitled to to the the extent provided by an Act of Parliament either to to tenure which is is legally secure or to comparable redress ” Section 25(9) makes it clear that Parliament must enact the envisaged legislation legislation In fulfilment of of that obligation Parliament has passed the following pieces of of legislation legislation to give effect to this right:
11 1 1 1 1 Land Reform (Labour Tenants) Act 3 of 1996 (LTA) 11 2 2 Extension of of of Security of of of Tenure Act 62 of of of 1997 (ESTA) and 11 3 3 Interim Protection of of Informal Land Rights Act 31 of of 1996 (IPILRA) 12 Section 25(7) of of the Constitution provides that: “A person or community dispossessed of of property after 19 June 1913 as as a a a a a a a a a result of past racially discriminatory laws or or practices is is entitled to to the extent provided by an Act of of Parliament either to to restitution of of that property or to to equitable redress ” 13 The Restitution Restitution of of Land Rights Act Act 22 of of 1994 (Restitution Act) was promulgated to to give effect to to the rights in in section 25(7) of the the the Constitution It promised an an end to the the the cruelty and suffering bought about by the the the racially divisive laws and practices of of the the apartheid regime It promised those who were dispossessed of of land land or or or the rights in in land land after 19 19 June 1913 as as a a a a a a a a a a a a result of past racially discriminatory laws or or or practices that they would see the the the the land and and their rights restored As we discuss below the the the the window for making restitution claims was was initially closed on 31 December 1998 It was was re-opened for a a a a a a brief period between 2014 and 2016 It is currently not possible to lodge new restitution claims PAGE PAGE 7