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COSATU

COSATU welcomes the National Assembly’s passage of the Land Court Bill

The Congress of South African Trade Unions(COSATU) supports the Land Court Bill, which will allow for the establishment of a dedicated Land Court to judge land cases. This will ensure that courts designated to land related matters have the necessary expertise and understanding. The Federation hopes this Bill will help alleviate the perennial delays countless land claimants, farm workers, labour tenants and their families face when lodging land restitution or farm evictions cases.

For this Land Court to achieve its progressive objectives, government must sustainably provide it with proper resources. Furthermore, it is imperative that it does not sit solely in Johannesburg. These facilities should be established across all provinces, particularly in rural areas.

The Bill will now be referred to the National Council of Provinces for consideration. We urge the NCOP to guarantee the Bill’s provisions to sufficiently empower the Land Court to attend to all land cases, especially farm evictions.

When Parliament adopts the Bill and it is assented into law by the President, it will be critical for the Departments of Justice; Agriculture, Rural Development and Land Reform; as well as GCIS, to work with COSATU and its Affiliates; as well as the SABC and civil society to undertake mass education campaigns to create awareness among farm workers, labour tenants and land claimants about the court’s accessibility and its services.

Issued by COSATU

For further information please contact:
Matthew Parks-COSATU Parliamentary Coordinator
0827850687

NEASA

The attack on property rights: Land Court Bill:
Bill by Bill the noose tightens around the necks of property owners

On 20 September 2022, the Portfolio Committee on Justice and Correctional Services (‘the Committee’) adopted the report on the Land Court Bill (‘the Bill’).

The adoption comes as no surprise following the Portfolio Committee on Public Works and Infrastructure’s adoption of the Expropriation Bill on 7 September 2022.

The Bill is supposedly expected to resolve challenges under the Restitution of Land Rights Act, and was affirmed in a media statement issued by the Parliamentary Communication Services on behalf of the Committee’s Chairperson, Mr Bulelani Magwanishe, which stated that:

“… the Restitution Act never envisaged a permanent court with permanent judges. Instead the Land Claims Court was established as a dedicated court with a limited lifespan to deal with claims for restitution of land. However, the restitution process became protracted and is still not completed. A lack of permanency of judges presiding over matters before the Court and the absence of a permanent seat has contributed to the slow processing of and backlogs in land restitution claims to the dissatisfaction of land claimants,

The Bill proposes to establish a specialist Land Court, with its judgements appealable to the full bench of that Court, to deal with all land-related matters as regulated by legislation. This in order to facilitate the speedy disposal of cases and contribute towards the development of appropriate jurisprudence in relation to land matters.”

NEASA reaffirms its position in its commentary on the Bill; that land restitution is supported where those who were historically or are currently deprived of their assets by the State, are compensated. Further, that where a government has stolen property from an individual or community (historically or currently) compensation must be made.

However, the Court, with its expected wide and exclusive jurisdiction, in view of this current dispensation and progression of the Expropriation Bill, will do everything but facilitate the speedy disposal of cases and/or contribute towards the development of appropriate jurisprudence in relation to land matters. Instead, the most probable outcome is the anticipation of an increase in backlogs in land claims, the undermining of landowners’ rights and suffering of equitable processes which will project its unavoidable flaws.

The Bill will be sent to the National Assembly for adoption, after which it will be referred to the National Council of Provinces. We will continue to keep employers abreast of developments in this regard.

Chanté du Preez is a Policy Advisor at the National Employers’ Association of South Africa (NEASA).

For more information:
NEASA Media Department
media@neasa.co.za

IRR

NCOP must ditch deeply flawed Land Court Bill – IRR

The Institute of Race Relations (IRR) calls on the National Council of Provinces to turn down the deeply flawed Land Court Bill, approved with record haste by the National Assembly this week.

The Institute of Race Relations (IRR) calls on the National Council of Provinces to turn down the deeply flawed Land Court Bill, approved with record haste by the National Assembly this week.

In its formal submissions, the IRR has shown why the Bill is a direct attack on the independence of the judiciary, and identified the draft law’s multiple deficiencies, including some that render it unconstitutional. This Bill will have a wide-ranging impact, as the Land Court will preside over land disputes and all eviction challenges in urban, semi-urban and rural situations.

Yesterday the National Assembly voted on and passed the Land Court Bill, just a week after having received the Bill from Parliament’s Committee on Justice and Correctional Services.

The IRR has highlighted six major deficiencies:

No proper Socio-Economic Impact Assessment (SEIA) was conducted and made available to the public, even though this is required to legitimize the public participation process;
The Bill requires that judges “must…be representative in terms of race and gender”. This is inconsistent with Section 174 of the Constitution’s requirement that, first and foremost, judges must be “appropriately qualified” people who are “fit and proper” to serve on the Bench. Demographic considerations for the judiciary are, constitutionally, considered as secondary and to be applied in a “broad” manner, which the Bill transgresses;
Two “assessors” may be present in any case and may overrule judges in adjudicating “upon any question of fact”. “Assessors” are appointed through an unspecified process which is left up to the Minister of Justice and Correctional Services in a manner that is inconsistent with the standing requirements for securing judges in an independent judiciary. This undermines the rule of law, the supremacy of which is guaranteed by Section 1(c) of the Constitution. It also makes a mockery of Section 34 of the Constitution, which gives everyone the right to have legal disputes decided by independent and impartial courts or similar tribunals;
Evidence can be admitted to the Land Court that would not “be admissible in any other court of law”, according to Section 22(1) of the Bill. In addition, “hearsay evidence” can be given whatever “weight” the Land Court “deems appropriate”;
The Bill establishes a Land Court of Appeal that will be, except for the Constitutional Court, the final court of appeal for Land Court judgments. This excludes the Supreme Court of Appeal, despite its expertise. The Bill also says the Constitutional Court may only hear an appeal “if such an appeal is allowed by national legislation”, giving the legislature a blank check to lock out the Constitutional Court too; and
Section 53(2)(e) of the Bill states that the relevant Minister can pass regulations to “facilitate the resolution of disputes through mediation” that revoke “the right of any party to be represented” legally in those proceedings. This undermines the Rule of Law, which is meant to be guaranteed by Chapter 1 of the Constitution.

Said IRR Head of Campaigns Gabriel Crouse: “The Land Court Bill may as well be called the Kangaroo Court Bill. Think of the way the EFF acts in Parliament, then imagine that each red overall had a gavel to crack down on the heads of his or her enemies. This Bill comes very close to doing exactly that.”

There is no doubt that land reform is in trouble. Something is in the way of efficiently handling the last remaining land restitution cases involving those who were directly dispossessed by apartheid decades ago. Moreover, something is in the way of black farmers developing a growing rural economy. The “Motlanthe Commission” explicitly rejected the thought that this “something” was the Rule of Law or the Constitution. However, since the elevation of President Cyril Ramaphosa, the ANC has either insisted that the Constitution must be changed, or has attempted to transgress the Constitution without amendment, as the Land Court Bill does.

The IRR has proposed a credible alternative to existing land policy without corrupting basic human rights, including property rights. Its rural land plan is called “Ipulazi” and has been available since 2019. https://irr.org.za/reports/atLiberty/files/liberty-issue-44-reaching-the-promised-land-18-09-2019.pdf

To start with, the government should privatise the vast majority of state-owned land, most of which is currently squalid and dilapidating, and grant title deeds to individual owners. Second, cheap credit must be extended to the state’s preferred beneficiaries. Third, extension services and training should be commissioned from genuine industry experts. The state’s primary focus should be on improving infrastructure, which includes allowing the private sector to buy in where state incapacity has already been proven.

Essential to a peaceful and prosperous rural South Africa is a zero tolerance policy towards land grabs. The Land Court Bill is the opposite of that.

* Afrikaans-language media are requested to retain the abbreviation ‘IRR’, rather than using ‘IRV’.

Media contacts: Gabriel Crouse, IRR Head of Campaigns – 082 510 0360; gabriel@irr.org.za

Mlondi Mdluli, IRR Campaign Manager- 071 148 2971; mlondi@irr.org.za

Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za

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