This blog was drafted by: Tameez Casoo, candidate attorney

The Constitutional Court judgment in the case of Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others 2016 (10) BCLR 1277 (CC) (LAMOSA) has had an effect on restitution claims lodged between 1 July 2014 and 27 July 2016.

The South African Government established the Commission on Restitution of Land Rights in 1994 to ensure that any person who had been dispossessed of their land and their rights therein due to previous racially discriminatory laws or practices after 19 June 1913, was able to enforce their right to restitution as envisaged in the Constitution of the Republic of South Africa, 1996. Parliament enacted the Restitution of Land Rights Act, 1994, which grants powers to the Commission to, inter alia, investigate the merits of restitution claims and mediate and settle disputes arising from such claims. Those persons who were dispossessed after 19 June 1913 were required to lodge their restitution claims by 31 December 1998. The South African Government attempted to go one step further to allow for the re-opening of land claims by virtue of the promulgation of the Restitution of Land Rights Amendment Act, 2014 which  re-open the period for lodgement from 1 July 2014 until 30 June 2019.

Unfortunately, the Amendment Act was short-lived due to the fact that the Constitutional Court, held in the LAMOSA judgment, that the law adversely affected existing land claims lodged in terms of the Restitution Act, and because the public participation process was not adequately followed. Therefore, the Amendment Act was held to be unlawful and unconstitutional.  The effects of the judgment were felt by more than just those who had lodged land claims in terms of Restitution Act.  In the light of the he Commission having been interdicted from processing restitution claims that were lodged in terms of the Amendment Act. The interdict also has the effect of precluding a company looking to establish a business, which is not related to mining, on the affected area of land by virtue of the fact that there was an unprocessed land claim over the desired property. The Constitutional Court provided for a timeline in which Parliament was required to Promulgate a new Amendment Act and follow the due public participation process, however, Parliament failed to meet the deadline. This resulted in the Constitutional Court judgment in the case of Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others 2019 (6) SA 568 (CC) in which it was held that the Commission could begin processing the land claims lodged in terms of the Amendment Act only once all restitution claims lodged in terms the Restitution Act had been processed.

The consequences of the above are that companies are unable to contribute towards the improvement of the South African infrastructure on such land, and willing land claimants cannot benefit from such developments. For example foreign and/or local companies which have an interest in renewable projects in South Africa help alleviate the country’s electricity generation deficit, is effectively prevented from doing so.  In order for a company to be able to apply for a surface right, there can be no existing land claims on that desired area. If there are any land claims, it is the duty of the Commission, upon a written application, to provide the details of the land claim and the form of compensation required but that will not lead to development of disputed land

Therefore, these companies are prevented from entering into arrangements with whoever is the rightful owner of the land to carry out business operations which contribute to the local and national economy. Aside from contributing to the South African economy, these companies also create much-needed work and provide infrastructure that will bring business activity to areas far outside the economic hubs of South Africa.