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Can a settled land claim ever be considered as finalised? | South Africa | Norton Rose Fulbright

Can a settled land claim ever be considered as finalised?

12 October 2009

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In many instances, land claims are settled by the restitution of land to the claimants by the State either through agreement with the previous land owner or by order of the Land Claims Court. Once this has been achieved, one would like to assume that the matter has now been finally resolved and the claimant community is now free to deal with the land as it deems fit, subject of course to any restrictions imposed by the Land Claims Commission. Such restrictions may include the restriction of on-selling the property for profit.

However this may not necessarily be the end of the matter as other claimants who have filed a claim may still show that they have a claim against the same property and would be entitled to approach the Land Claims Court for an order setting aside or varying the existing agreement or court order and to effectively upset the previous settlement. This is in terms of Section 11(5) of the Restitution of Land Rights Act 1994 (“the Act”) which provides as follows:

  • If after an order has been made by the court as contemplated in Section 35 or an agreement has been entered into as contemplated in Section 14(3) or 42D, it is shown that another claim was lodged in terms of the Act in respect of the land to which the order or agreement relates, any interested party may apply to the court for rescission or variation of such order or setting aside or variation of such agreement.
  • The Court may grant such application subject to such terms and conditions as it may determine, or make any other order it deems fit.

This creates a huge practical difficulty in that the community now owning the land (through a Trust or a Communal Property Association) may well have developed the land, entered into agreements with third parties, and even distributed land or portions of land to their beneficiaries only to see a new claimant arise who may indeed also have a valid claim. Settlement of a claim is no barrier to another overlooked claimant community approaching the Court for relief as set out in S11(5) of the Act.

Bearing in mind that the period applicable to a land claim based on the dispossession of a right in land is from 19 June 1913 to 31 December 1998, it is certainly feasible that more than one community may have a claim on the same piece of land.

By law all claims had to be filed by 31 December 1998 so that all claims must have been in possession of the Commission when it settled a claim of a property in favour of a particular community. Failure to consider all claims at the time of settlement can only be due to administrative oversight on the part of the Commission.

However rights of other claimants with a valid claim to that land cannot be shut out due to any such inefficiency of the Commission.

This creates a real difficulty the Land Claims Court will have to deal with. It is therefore imperative that before the Commission enters into agreements in terms of the Act in settlement of a land claim or a court makes an order as contemplated in Section 14(3) of the Act, that all competing land claims for a particular property are properly dealt with at the same time.

Norton Rose South Africa (incorporated as Deneys Reitz Inc) joined Norton Rose Group on 1 June 2011.