With the dismantling of apartheid and the birth of a democratic South Africa in 1994, much effort has been made by government to address the scars and inequality left by apartheid. One such effort was to enact legislation to entitle those who had been dispossessed of property through racist laws or practices after 19 June 1913, to receive their original land back or to receive state land; alternatively to receive financial compensation.
To this end the 1994 Restitution of Land Rights Act was passed. People who had been dispossessed of their land had until December 1998 to lodge a claim for the restoration with the Land Claims Commission. According to a Western Cape Government website post, it is estimated that a total of 67 531 claims were lodged before the deadline.
The 1994 Restitution of Land Rights Act was amended late last year to, amongst other things, extend the cut-off date for the lodgment of restitution claims. The initial cut-off time date of 31 December 1998 is now changed to 30 June 2019.
The South African Constitution gave people and communities who had been dispossessed of land after 19 June 1913 as a result of racially discriminatory laws or practices the right to restitution of that property or to fair compensation.
The restitution process is managed by the Land Claims Commissioner and broadly follows the following steps:
Phase 1 Lodgment and registration of a claim
Phase 2 Screening and categorization
Phase 3 Determination of qualification in terms of section 2 of the Restitution Act
Phase 4 Negotiations
Phase 5 Settlement
Phase 6 Implementation of settlement
The Land Claims Court hears disputes arising from the Restitution of Land Rights Act (1994), the Land Reform (Labour Tenants) Act (1996) and the Extension of Security of Tenure (1997).
RESIDENTIAL PROPERTY PURCHASES AND POSSIBLE LAND CLAIMS
It appears that a majority of the claims relate to agricultural land. However, not exclusively so and many Cape Town suburbs, including properties in Harfield Village, were the subject matter of land claims.
One cannot predict the future and guess whether or not your current property in Harfield Village will become subject to such a claim; or if standing in the shoes of a purchaser, whether the home you are so interested in buying, may shortly become the subject of such a claim.
As such, parties who are concerned should obtain legal advice regarding the likelihood and impact of such a claim.
In areas where land claims are likely, purchasers often include specific safeguards in their sale agreements, under the clause dealing with guarantees and warranties, requiring a seller to guarantee that no claim for the restitution of the property has been made and that the Regional Land Claims Commissioner has not issued any notice in respect of a land claim under the Restitution of Land Rights Act 22 of 1994.
The notice referred to above is the notice that the Commissioner is obliged to publish in the Government Gazette to confirm that a claim meeting the administrative requirements has been received. (It does not yet mean the claim has been accepted or investigated.) However, once such notice has been published, -
(a) no person may in an improper manner obstruct the passage of the claim;
(b) 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, and, where such notice was not given in respect of -
(i) any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision or rezoning or grant any other order it deems fit;
(ii) any development of land and the Court is satisfied that such development was not done in good faith, the court may grant any order it deems fit”.
The warranty that deals with the Regional Land Claims Commissioner is the key aspect of which few prospective, often seasoned farmers or land owners are aware. Thus, whilst a property cannot be developed or sold once such claim has been lodged, such sale or development of the property can happen if written notice in the required format is provided to the Regional Land Claims Commissioner one month before such intention is realized. After such notice to the Regional Land Claims Commissioner the seller can continue to sell the property.
Accordingly, it is vitally important that you as a buyer take the necessary precautions to ensure that sufficient guarantees and warranties are provided by the seller in terms of the purchase agreement. This will help avoid later regret and the suspension of development on the newly purchased property and ensure that the expansion of your farm and legacy is the asset it deserves to be.
It is possible to determine with a fair degree of accuracy whether a piece of land is subject to a claim by a community through enquiry at the local land claims office or by reviewing claims published in the Government Gazette.