New Land Court will not deal with expropriation bill yet

By Silindile Nyathikazi Time of article published Mar 2, 2021

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Durban - MINISTER of Justice and Correctional Services Ronald Lamola said that the new Land Court would only deal with matters under current legislation.

This follows Cabinet’s approval of the Land Court Bill Amendment Act for submission to Parliament last week.

Matters relating to land expropriation without compensation would only be included under the new court’s mandate and operations after the law comes into effect.

Speaking during a media briefing yesterday, Lamola said the new Land Court would operate like a high court and would also include a Court of Appeal.

“We have adopted a narrow approach for now for the cause to gradually start with some of the current laws, but as time goes on, the legislations will be increased. We are currently only dealing with matters already under the Land Claims Court with a few exceptions,” said Lamola.

Lamola said it was his intention to further capacitate the Land Commission to deal with arbitration and mediation before matters got to court, much like the Department of Labour’s Commission for Conciliation, Mediation and Arbitration (CCMA).

“The court will also be charged with developing clear jurisprudence and guidelines on compensation and all other aspects related to the land question, hence we have also established the Court of Appeal,” said Lamola.

Minister of Agriculture, Land Reform and Rural Development Thoko Didiza said her department was “very pleased with government’s policy decision” and was hopeful that the Land Court would “address the systematic challenges faced by the Land Claims Court and capacitate it to ensure that permanent judges were appointed to speed up the resolution of land claims”.

Didiza said the Land Claims Court has cases dating as far back as 1998 that had still not been resolved.

The Alliance for Rural Democracy (Ard) said the government's decision to appoint permanent judges for the new court was a step in the right direction.

“We welcome the minister’s decision to appoint permanent judges as there were none before and this was a high level recommendation previously made by our panel. For us it is a victory and a step in the right direction and the fact that it will no longer fall under the Rural and Land Reform Department because of their failure to deal with land restitution claims and land reform issues as a whole,” said land activist and Ard’s c-oordinator, Constance Mogale.

The Lawyers for Human Rights (LHR) also congratulated the “long overdue” appointment of permanent judges but “was not so sure if an appeals court is appropriate for a land claims court and if that is going to add to speeding up the land claims process“, said Louise du Plessis - Head of land and Housing Unit at LHR.

“If they think they now have the capacity and resources to create a new appeals court, I doubt that it’s a good thing,” she said.

Opposition parties also reacted with skepticism to the decision with the IFP saying there was no need to set up a new structure to deal with land claims.

“We already have a well-established Land Claims Court and tribunals etc. We should build structures on top of structures without having fixed what we already have. This is unnecessary duplication and borders on wasting money,” said its national spokesperson, Mkhuleko Hlengwa.

The DA deputy Shadow Minister of Justice Werner Horn said there would be a conflict of interest for the judges.

“The proposal that the Land Court is to be tasked with mediation and arbitration before formal litigation also needs careful consideration. If judicial officers of the court are to be involved in the mediation and arbitration, this could lead to a conflation between pre-litigation and litigation processes and create a situation where the role of the judiciary is undermined in an unconstitutional manner. Judges cannot be involved in mediation and then act as presiding judges on similar matters.”

The Land Court will have its seat in Johannesburg and parties can now seek legal representation from Legal Aid on land disputes.

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