The Land Claims Court will rule on what will happen to the undeveloped land claimed by communities.
Strict public interest conditions have to be met for a court to order that vacant and undeveloped government land that forms part of a restitution claim must not restored to the claimants, the Constitutional Court ruled last week.
This was also the case for land leased from the government and used by private entities for commercial use that benefited the broader public.
In a unanimous judgment penned by Deputy Chief Justice Dikgang Moseneke, the court reaffirmed that, when applications are made in terms of section 34 of the Land Restitution Act, which allows courts to order that the restoration of land under claim by communities be excluded as a possible resolution of that claim, the twin threshold requirements of "public interest and substantial pre-judice" must be met on "an assessment of all the facts".
The judgment further noted that, for a non-restitution order to be granted, "it must bring to account 'the desirability of avoiding major social disruption'".
In setting aside earlier judgments by the Land Claims Court and the Supreme Court of Appeal, which had granted non-restitution orders against two Eastern Cape communities in Mthatha, Moseneke's judgment also found it necessary to "dispel the suggestion that a right to claim restoration of rights in land under the [Land] Restitution Act is not an existing right".
Pointing to previous jurisprudence and the "scheme" of the Act, Moseneke, noted that "whilst a claimant for restitution of land rights is not always entitled to restoration of rights in the land claimed, restoration of the land claimed must enjoy primacy when feasible … A non-restitution order is invasive of restitution rights and, for that reason, the statute requires that it may be made only when the threshold requirements have been met," he wrote.
The judgment was in the matter of the Kwalindile Community vs King Sabata Dalindyebo Municipality and Others and the Zimbane Community vs King Sabata Dalindyebo Municipality and Others.
Compensation
The municipality runs the town of Mthatha in the Eastern Cape. The two communities have lodged claims to land around the town's central business district that had been held by the national government until 1997 when it authorised the Eastern Cape provincial government to use it. Later that year, the provincial government transferred ownership to the then municipality of Umtata with a deed of transfer passed in 1999. The two communities lodged separate claims to the land in 1998.
The municipality had also, between 2005 and 2006, signed long leases with private companies to develop portions of the land being claimed.
One of the major questions the court grappled with was whether the lower court had "properly exercised its statutory power" and not acted capriciously, or "was not moved by a wrong principle of law or an incorrect appreciation of the facts, or had not brought its unbiased judgment to bear on the issue, or has not acted for substantial reason".
The court also ruled on parts of the disputed land that the municipality had leased to private companies, Cape Gannet Properties 118 (Pty) Ltd and Whirlprops 46 (Pty) Ltd.
Noting that Whirlprops, which signed a 30-year lease with the municipality for some of the land, had built a shopping mall that was in "daily use by members of the public", Moseneke held "it would not be in the public interest and would be substantially prejudicial to the public to order restoration of that land".
In cases like these, claimant communities are likely to receive compensation when the claims are settled by the Land Claims Court.
On the land Cape Gannet Properties had leased from the municipality but had not developed, the court found it was unable to uphold the company's opposition to the communities' appeal "because the land has been neither surveyed and sub-divided nor developed". Moseneke left the fate of the land up to the Land Claims Court.
Henk Smith, a senior attorney at the Legal Resource Centre, said the judgment was significant "politically" because "the Constitutional Court has ruled that the Constitution says government should put a higher premium on land restoration and that only in extreme cases should land be immunised" from being restored to claimants.
Smith added that the judgment also stressed the importance "of commonage land and the obligation of municipalities to use commonage land, not to promote private and entrepreneurial interests but for the benefit of communities, especially poor ones".