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LAND CLAIMS - BACKGROUND

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THE ACT

The Restitution of Land Rights Act 22 of 1994 provides for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practices.

Claims for restitution had to be lodged by not later than 31 December 1998.

"Right in land means any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question"

"Restitution of a right in land means the restoration of a right in land; or equitable redress."

"Restoration of a right in land means the return of a right in land or a portion of land."

"Equitable redress means any equitable redress, other than the restoration of a right in land, including the granting of an appropriate right in alternative state-owned land; and/or the payment of compensation" by the State.

THE CLAIMS

Two community claims of tenancy (beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question) were lodged in respect of land between the tribal authorities in the west; the Mbizane River in the north; the Tongazi River in the south; and the Admiralty reserve in the east.  This area includes the municipal townships of Southbroom, Marina Beach, San Lameer, Trafalgar, Palm Beach and Munster. 

GAZETTED NOTICE

On 14 November 2003, those portions of the claims that related to rural land, together with three urban erven within the Southbroom municipal boundary that still have title deed descriptions that refer to farm portions, were published in the Government Gazette.  Those portions of the claim that related to land within municipal townships were omitted from the public notice. 

AFFECTED TITLE HOLDER'S ACTION

Affected title holders formed the Lower South Coast Claims Group (LSCCG) and are currently validating the claim collectively. The majority have each remitted R3,000 to the LSCCG to cover the costs of investigation and validation.   The LSCCG has employed the services of an attorney and senior council, and has engaged with the Regional Land Claims Commissioner. 

AMENDMENT TO THE GAZETTED NOTICE

Aerial photographs taken in 1937 show settlements within the municipal township boundaries.  Based on this evidence, the Commissioner advised the LSCCG that it had been an omission to exclude municipal township titles from the government notice of November 14, 2003 and that she would be amending the notice to include the original area claimed.

Amending notices appeared as Notice 516 and Notice 517 in the Government Gazette of 26 March 2004.

The Act requires the Regional Land Claims Commissioner to advise each owner in writing immediately after the publication of any notice.  To date, affected titleholders within the urban areas have not received such notice. 

SOUTHBROOM RATEPAYER'S ASSOCIATION (SRA) ACTION 

As the amendments affect all Southbroom ratepayers as well as business confidence on the Hibiscus Coast, the SRA met with:

  • representatives of the Hibiscus Coast Municipality (HCM) and the LSCCG.  Amongst others, the HCM Speaker and the LSCCG Chairman were present; and subsequently with  

  • representatives of the ratepayer's associations of Marina Beach, Trafalgar, Palm Beach and Munster and the home-owners association of San Lameer.  

It was agreed that:

  • all affected ratepayers and home-owners be encouraged to validate the claims collectively, together with the LSCCG;

  • written communication of the land claims, setting out the process, financial implications, and likely outcome, be mailed to each and every ratepayer;

  • a general meeting of ratepayers be called during the Easter holidays (2004);

  • the Southbroom Ratepayers Association Chairman be the ratepayer group's spokesperson; and that

  • meaningful representation be sought on the LSCCG Executive Committee.

HIBISCUS COAST MUNICIPALITY (HCM) ACTION

The HCM recognised the need for continued business confidence and economic growth in the region, as well as  the product of uncertainty.

 The HCM committed itself to:

  • invite the Regional Land Claims Commission to address a meeting of the HCM Land & Housing Portfolio Committee and to invite representatives from the community to attend; 

  • to communicate with ratepayers through the local press; and to

  • engage with those authorities necessary to bring about swift finalisation of the claims. 

HOW DO THE GAZETTED LAND CLAIMS AND THE ACT AFFECT RATEPAYERS?

In terms of Section 11 Sub-section 7 of the Act:

  • no person may in an improper manner obstruct the passage of the claim;

  • no person may sell, exchange, donate, lease, subdivide, rezone or develop the land in question without having given the Regional Land Claims Commissioner one month's written notice of his or her intention to do so;

  • no claimant who occupied the land in question at the date of commencement of the Act may be evicted from the said land without the written authority of the Chief Land Claims Commissioner;

  • no person shall in any manner whatsoever remove or cause to be removed, destroy or cause to be destroyed or damage or cause to be damaged, any improvements upon the land without the written authority of the Chief Land Claims Commissioner;

  • no claimant or other person may enter upon and occupy the land without the permission of the owner or lawful occupier.

Any person affected by the publication of the notice of a claim may make representations to the Regional Land Claims Commissioner for the withdrawal or amendment of that notice.

Unless cause to the contrary is shown, the Regional Land Claims Commissioner may withdraw the notice of the claim published should he or she have reason to believe that:

  • the claim has not been lodged in the prescribed manner; 

  • the claim should be precluded in terms of the Act; or that

  • the claim is frivolous or vexatious.

Should the notice of the claim not be withdrawn, where the owner or holder of rights in land is opposed to the claim, or there is any other issue which might usefully be resolved through mediation and negotiation, the Chief Land Claims Commissioner may direct the parties concerned to attempt to settle their dispute through a process of mediation and negotiation.  Should the parties to any dispute arising from the claim agree in writing that it is not possible to settle the claim by mediation and negotiation, the Regional Land Claims Commissioner shall refer the matter to the Land Claims Court.

The Land Claims Court will:

  • determine the right to restitution;

  • determine and approve compensation (market value) payable in respect of land owned by or in the possession of a private person upon expropriation or acquisition of such land;

The Land Claims Court may order:

  • the restoration of land

  • the State to grant the claimant an appropriate right in alternative state-owned land;

  • the State to pay the claimant compensation;

  • the State to include the claimant as a beneficiary of a State support programme for housing or the allocation and development of rural land.

MOST LIKELY OUTCOME - BUSINESS CONFIDENCE

Apparently, the land claim for the entire Richard's Bay area (including ALUSAF) was gazetted 5 years ago.  Due to its complexities, the claim has not yet been settled.

Yet, for Richards Bay it is "business as usual" and the area is said to be enjoying good economic growth.

MOST LIKELY OUTCOME - EQUITABLE REDRESS

Legal opinion is that the claims seem “highly fruitless” as it already appears that they would not be able to stand the procedural and substantive tests that the Act requires.

Should the claims be validated in whole or in part, equitable redress - a grant of an appropriate right in alternative State-owned land, and/or a payment of compensation by the State - would be the most likely compensation.

This opinion is based on the Act requiring the Land Claims Court to have regard to:

  • the feasibility of restoration of a right in land

  • the requirements of equity and justice

  • the desirability of avoiding major social disruption

  • the current use of the land

  • the history of the acquisition and use of the land

Feasibility - No government would pay the price, nor would it displace, the residents of Southbroom to return rural grazing land to tenants.

Equity and justice - No court would order the State to pay for the acquisition of Southbroom when the claimants rights are to beneficial occupation of rural grazing land.

Major social disruption would result if Southbroom were to be awarded to the claimants.

Current use of the land - Southbroom is now a well-developed municipal township that bears no resemblance to rural grazing land.

History of acquisition and use of the land - Prior to 1896, missionary Alfred Eyles purchased the 557 acres extending from the Imbezane to the Umkobi River from the Natal Government for 10 shillings an acre.  It was farmed to enable his mission to become self-supporting.  In 1907 the Swedish Zulu Mission took over when Eyles retired and Eyles provided land for the construction of a new mission and homestead located off Bushy Vales Road.  In 1933, two of Eyles' sons formed a partnership and set about planning a township on the land acquired by their father before the turn of the century. Due to Eyles' profession and the fact that he had caused the land to be farmed, the claimant's ancestors may well have enjoyed tenancy for a continuous period of 10 years.  However, it is unlikely that their dispossession was as a result of past racially discriminatory laws and practices.  The more likely reason for their dispossession or relocation would have been the change of land use from farmland to township land.

MOST LIKELY OUTCOME - TIME FRAME

A representative of the Regional Land Claims Commissioner  indicated that the claims should be settled in little over a year. 

WEBSITES OF INTEREST

http://www.land.pwv.gov.za/restitution/default.htm

http://www.lawlibrary.co.za/southcoast/index.htm

http://www.acts.co.za