By Duncan Wild on 23 March 2014
The primary question in this case is whether it is appropriate to use the consumer price index (“CPI“) to adjust past loss into present day monetary value for the purposes of financial restitution under the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act“). A secondary question relates to whether a court can order the State to pay for construction of a memorial plaque as a form of symbolic relief. Continue reading
By Michael Mbikiwa on 10 February 2014
This case concerns the meaning of “feasibility” in section 33(cA) of the Restitution of Land Rights Act 22 of 1994 (the “RLRA”) and, in particular, the circumstances in which restoration is a feasible method of restitution. Restitution of land rights under the RLRA can occur either by actual restoration of land, or by equitable redress. Equitable redress comprises the granting of a right in alternative state-owned land, the payment of compensation, or a combination of both. Continue reading
||Lower Court Judgments
|Land Claims Court, 14 Dec. 2010
SCA, 1 Jun. 2012
|13 Nov. 2012
||28 Mar. 2013
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. Continue reading