Section 25(7) of the Constitution provides “a person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of property or to equitable redress.”

The Restitution of Land Rights Act 22 of 1994 (“the Act“) is the Act of Parliament that delineates the scope of this right.  It provides in section 34 that upon the application of a “national, provincial or local government body” the court may make an order that, “when any claim in respect of the land in question is finally determined, the rights in the land in question, or in part of the land, or rights in the land, shall not be restored to any claimant“.

In this case the Land Claims Court made such an order in respect of land claims by the Zimbane Community and Kwandile Community to land falling within King Sabata Dalindyebo Municipality (previously the Umtata Municipality) (“the Municipality“) and which is a mostly urbanized and developing area.  The Land Claims Court found that it was in the public interest for the land rights not to be restored and that the public (or a substantial part thereof) would suffer substantial prejudice unless a section 34 order was granted.  An order was therefore granted that no land within the Municipality’s jurisdiction could be restored to either of the claimants.  The SCA effectively upheld this order.

The Constitutional Court, in a judgment authored by Deputy Chief Justice Moseneke, found the key issue to be whether the Land Claims Court had correctly determined the threshold of “public interest” and “substantial prejudice“.  The Constitutional Court found that both the Land Claims Court and the SCA had erred in this evaluation.  Of primary concern to the Constitutional Court was that the the Municipality had not put up sufficient evidence of what land, over which the claims where made, was in fact developed and urbanized.  The land claims were explicitly limited to undeveloped land, and the Constitutional Court found that there was evidence that much of the land subject to the claims was not developed at all, but no evidence of what was developed and what was not.  The Constitutional Court noted that the Municipality had not provided a survey of the physical limits and features of Mthatha, nor had it indicated what land contained key infrastructure or was ear-marked for development.

In the absence of this type of information, and given that the land claims in question were limited to undeveloped land, the Constitutional Court found that the lower courts erred in considering it to be in the public interest for the land rights not to be restored due to the development and urbanization of the land subject to the claims. The Constitutional Court held that it would be possible to restore certain land that was not developed, and that the lower courts could have tailored the order accordingly.

Importantly, two entities had joined the case arguing in respect of specific land within the Municipality. One entity, Whirlprops 46 (Pty) Ltd (“Whirlprops“) held a lease of land on which it had erected a shopping complex.  The Constitutional Court held that it would not be in the public interest and would be substantially prejudicial to the public to order the restoration of the land on which this development had taken place.

The second entity, Cape Gannet Properties 111 (Pty) Ltd (“Cape Gannet“) had certain land ear marked by the Municipality for a lease in its favour. The Constitutional Court held that, as the land had not been surveyed, subdivided or developed, it could not hold that this land should be exempt from restoration to a Community following a successful land claim. 

The final order the Constitutional Court made then was to replace the Land Claims Court order with an order dismissing the Municipality’s application for a section 34 order. It did, however, make a section 34 order of its own, ordering that the land on which Whirlprops had built its shopping complex shall not be restored to any claimant or prospective claimant.

Download the judgment here.