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Restitution uncertainty amid Constitutional Court ruling

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There is uncertainty about the restitution process following yesterday’s Constitutional Court ruling that Parliament had failed to meet its obligations when passing legislation on land rights.

Ruling that that the Restitution of land Rights Amendment Act was invalid, the court found that the National Council of Provinces and provincial legislatures’ process for public participation in the law was inadequate.

Provincial legislatures were given less than two weeks to advertise and hold public hearings, consider oral and written submissions from the public, and provide negotiating and final mandates.

According to Ben Cousins, emeritus professor at the University of the Western Cape’s Institute for Poverty, Land and Agrarian Studies, the impact that the judgment will have on restitution depended on how quickly Parliament rectified the situation.

Whether there will be another consultation process or whether there will be people who are unhappy with the bill, the real question is what the government is going to do, he said.

“There is a lot of uncertainty.”

The law took effect on July 1 2014. It gave South Africans whose land had been taken in terms of the Natives Land Act of 1913 another opportunity to submit restitution claims. The previous deadline for claims was 1998.

According to the department of rural development and land reform, by Sunday 162 767 new claims had been submitted since the amendment was enacted.

The Constitutional Court ruled that claims lodged by the date of the judgment would continue to exist. But the court interdicted the Land Claims Commission from considering, processing and settling new claims for 24 months, pending Parliament’s re-enactment of the amendment act or finalisation of those claims filed by December 31 1998, whichever occurred first. 

According to the department, 79 696 claims had been lodged before the end of 1998. Of these, 78 750 had been finalised by Sunday.

“The remaining backlog is mainly due to claims where disputes arise or competing claims have been established,” it said.

The legislative processes which resulted in the act becoming law needed to include comprehensive public participation.

Cousins said it appeared that the government was worried about processes, because on Monday President Jacob Zuma asked Parliament to explain what processes were followed for the Expropriation Bill, following complaints.

“The decisions of the Constitutional Court are positive,” Cousins said.

“The government should have been more vigilant, but had had its fingers burnt.”

Parliament’s spokesperson, Luzuko Jacobs, said yesterday that Parliament was still studying the ruling.

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