Know your rights about land claims, their implications and the process

Besides e-tolls and the Rand-Dollar exchange rate, this is probably the next most contentious subject especially in South Africa.

Land claims are a very personal subject and something that most people that have been affected by them, take very seriously. Family and history are fundamentally at the core of South African culture. Many pieces of land have been in families for generations only to find out that maybe, they actually don’t have a right to ownership thereof.

This cannot be easy for all concerned – not the current owners nor the “dispossessed”.

But what exactly are land claims, how does one claim and check for claims? In this discussion we will address all the salient aspects of this contentious subject.

Background (courtesy of the Commission on Restitution of Land Rights – The Citizens Manual)

The Restitution Act provides for restitution or equitable redress to persons and communities

who were dispossessed of land rights, after 19 June 1913, as a result of past racially discriminatory laws or practices, and who have lodged a claim with the Commission on Restitution of Land Rights. The Restitution of Land Rights Amendment Act, 2014 extends the date for lodgement of land claims for those who did not claim by the initial deadline of 31 December 1998. The new deadline for the lodgement of land claims is 30 June 2019.

  • The right to restitution is one of the rights in the Bill of Rights of the Constitution of South Africa. The restitution process is regulated by the Restitution of Land Rights Act, 1994.
  • The Restitution of Land Rights Act established the Commission on Restitution of Land Rights and the Land Claims Court. The Commission is required to solicit claims, assist those who want to lodge claims, investigate the claims and attempt to resolve them through negotiation and mediation. The Land Claims Court is a specialist court that adjudicates disputes on issues relating to land claims and rights of farm dwellers.
  • The Restitution of Land Rights Act in its original form required that land claims be lodged by no later than 31 December 1998.
  • The Restitution of Land Rights Act has now been amended to allow those who missed the initial deadline to lodge their claims.

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What is a land claim?

It’s a written request lodged with the Commission of Restitution of Land Rights from a person or descendants of that person , an estate or community in respect of land or right of land or other forms of redress made in the prescribed manner to the Commission.

Who can put in a claim?

Any person or community who was dispossessed of land after 19 June 1913 and did not receive just and equitable restitution for that land due to unfair or discriminatory practises – can now claim for restitution in that regard.

How can you check if there is an existing land claim?

As all these claims need to be lodged with the Commission and the Land Claims Court, this would be the right place to start. Full details of the relevant piece of land needs to be supplied for the Commission to ascertain if any land claim on that property exists.

If a land claim exists against a property, what happens at the time of a sale?

As with any sale of property the buyers should perform their due diligence and make sure that there is nothing preventing the sale from going through. It is not illegal to sell land that has a claim on it, but this MUST be disclosed to the buyer by the seller. The seller must also inform the Regional Land Claims Commissioner of the intention to sell the land. The RLCC has 30 days to decide whether they are going to apply for an interdict to stop the sale.

In conclusion – it is best to educate yourself about this subject and make sure that you have a specialist on your team who can advise you if it does transpire that there is a land claim on a piece of land that you want to purchase.

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