6. Land Claims
6.1 GENERAL BACKGROUND
Prior to 1994 the registered owner of an immovable property (in other words the person that held the title to the land) had almost exclusive rights to his property provided he abided by the by-laws (of a municipality), agricultural laws (in terms of farm land) and environmental laws. Since 1994 title to land did not guarantee the owner absolute rights in terms of such immovable property as existed prior to 1994.
The Government’s focus since 1994 has been on land reform and to grant individuals, who were dispossessed of a right in land after June 1913 (and a result of past racially discriminatory laws or practices) the right to restoration of such land or equitable redress (monetary compensation).
6.2 LEGISLATION
The mechanism for land reform (commonly referred to as land claims) appears in the Restitution of Land Rights Act of 1994 (hereinafter ‘the Restitution Act’) and incidental legislation such as the Land Reform (Labour Tenure) Act, Act 3 of 1996 (hereinafter the ‘Labour Tenants Act’) and the Extension of Security of Tenure Act 62 of 1997, commonly referred to as ‘ESTA’.
6.3 CLAIMS AGAINST THE STATE
The evolution and interpretation of the aforementioned legislation has been quite extraordinary and in some instances rather dramatic. Without a doubt it has become a much specialised area of law in South Africa.
A claim for restoration or compensation in terms of the Restitution Act is not a claim against the owner of the farm but a claim against the State. Should a court under normal circumstances find that a claimant is entitled to restitution (that is the right to have the land returned to a claimant), the State has the obligation in terms of the current legislation and the aforementioned Section 25 to pay reasonable compensation to the land owner.
6.4 COMPENSATION PAYABLE BY THE STATE
The State envisioned to transfer approximately 25 million hectares in terms of its restitution programs by 2015, but had by 2015 only managed approximately 30% of that target, providing as a reason for its failure to meet the target, the willing-buyer-willing seller method to establish the price payable for land as the main culprit. This is not true and one of the main reasons for the slow progress is the ineffective Department of Rural Development and Land Reform (DRDLR), also adding to the problem are unqualified staff and more often than not, claims being accepted as valid which should not have been gazetted.
Often these claims cost the State millions of Rand to prosecute where the claim, on an objective interpretation should have been dismissed after lodgement. Approximately eighty five percent (85%) of land claims dealt with by our firm appear to have no merits at all and should never have gone beyond the investigation stage by the DRDLR.
The introduction of the Property Valuation Act 17 of 2014 is the method by which the State tries to do away with the willing seller willing buyer method. It will not be effective. This Act is, in our view, not a law of general application as provided for in the Constitution and only aims to negatively impact one specific group of our society. There can be no other method other than the arm’s length willing buyer willing seller, where such price is ‘adjusted’ (as already found in various decided cases) with the other four factors referred to in Section 25(3) of the Constitution.
Should the South African Government continue down this path the effect will only later become apparent to the State by which time it will be too late and by which time South Africa would have slid down the deep pit of anarchy.
6.5 ASPECTS TO CONSIDER BEFORE BUYING LAND
Traditionally
Traditionally, and specifically with regard to farmland, a potential buyer would in the past have considered all the elements of a farming operation i.e. climate, rain fall, soil type, farming activities in the area, legislation applicable to that particular area, water rights, servitudes over the land, etc.
After 1994 your diligent potential farmer must, in addition to the aforementioned aspects, also have regard for the ‘human factor’ associated with farm land. It is therefore necessary to consider whether any land claim has been registered on a farm before you purchase it. Similarly it is necessary to establish who is occupying the farm and what the rights of those occupiers are or were. Very often we are confronted with scenarios where ‘new buyers’ have considered everything else except the human factor and, after registration of transfer has taken place and they are the proud new owners, are then confronted with problems in this regard.
Disputes over ownership or aforementioned rights may result in expensive, drawn out and lengthy legal battles that may cost millions of Rand. In the majority of cases land claimants under all three of the aforementioned Acts receive, in one form or another, funding from the State to pay for their legal costs and we often find that the battles are carried forward to the Appellate division and the Constitutional Court.
You also have to consider who has been buried on the land as, in terms of ESTA, everybody in South Africa may also now visit gravesites. This is a right that has to be exercised also with regard to the existing owner’s rights.
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