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Against whom

is a land claim really made?

By HJ Moolman, Moolman & Pienaar Incorporated

and claims are part and parcel The fact, however, is that land claims amendment to the Constitution to allow
of South Africa’s land reform are filed against the state within the for expropriation without compensation
programme, authorised by framework of existing legislation. Because under certain circumstances, is currently
Section 25 of the Constitution the state is the respondent in respect of such a contentious one.
L of the Republic of South Africa, land claims, it must meet or settle the
1996 (Act 108 of 1996, or the Constitution). claims, depending on their scope and Obstacles during negotiations
The primary purpose of land claims is to validity. This duty resting on the state, is a In the case of claims lodged under the
bring about recovery or compensation for constitutional and statutory one. Restitution Act, in addition to acquiring
persons who, on the one hand, have been private land to settle claims, the state
deprived of land-related rights as a result also has the right to offer alternative state
of race-based legislation and practices. The fact is that land claims land and/or cash compensation. There are
On the other hand, it is aimed at securing are being filed against the several court cases in which the courts
tenure or achieving a balance in the racial have clarified the circumstances in which
composition of people who own land state within the framework of the state, rather than acquiring private
and/or have access to land through a existing legislation. land, should settle claims by making
programme of land redistribution. alternative state land available or by
paying a cash compensation.
Applicable legislation The state’s fulfilment of the One of the main reasons why private
The most important legislation permitting abovementioned obligation only has land would not be considered an
land claims is the Restitution of Land Rights consequences for private land and private appropriate method of settlement, is the
Act, 1994 (Act 22 of 1994, or the Restitution landowners in such cases where the state underlying principle that claimants should
Act) and the Land Reform (Labour Tenants) must use specific private land to meet its not benefit more from the settlement of a
Act, 1996 (Act 3 of 1996, or the Labour obligation to pay or settle a claim. This also claim than what they lost when they were
Tenants Act). applies where the limited rights of tenant deprived of their rights in the past.
Claims under the Restitution Act must labourers on private land are converted into Private landowners need to be extremely
have been filed with the Commission full-title rights because the tenant labourers cautious when conducting any settlement
on Restitution of Land Rights on or occupied, cultivated and grazed the land. negotiations in cases where their land
before 31 December 1998. Claims under may be compromised as a result of the
the Labour Tenants Act must have been Compensation vs expropriation abovementioned circumstances. Currently,
filed with the Department of Rural In cases where private land is compromised several pieces of legislation have an influence
Development and Land Reform as during the settlement of land claims, on the manner in which the state should
prescribed, on or before 31 March 2001. the state must acquire the land from the proceed in dealing with such matters.
existing private owner. The Constitution In most cases, it will be wise to be
Against the state or the landowner? places an obligation on the state to accompanied by a legal representative at
A question that often arises during compensate the owner fairly and equitably. all times during negotiations with the state.
discussions about land reform is who is, The state’s obligation to pay fair and It should preferably be someone who has
in fact, the party against whom a land equitable compensation for private a good basic knowledge of the relevant
claim is being lodged? The perception land causes the state, for the purposes legislation and the legal environment in
and probably the first response to this of settling a claim, to acquire the land which these claims are handled.
question, is that it is a claim against the through a negotiated purchase agreement
existing owner of the claimed land. In or, alternatively, a more forced process For more information, contact
practice, this is also the experience of many known as expropriation. This is also why HJ Moolman on 018 297 8799,
a landowner. the issue surrounding the proposed 018 297 0397 or hj@mmlaw.co.za.

48 Oilseeds ocus June 2020
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