Submitted by the National Employers Association of South Africa (Neasa)
The Portfolio Committee on Justice and Correctional Services, on May 26, 2021, invited public comments from stakeholders and interested persons on the draft Land Court Bill.
According to Parliament’s explanatory summary, the Land Court Bill aims to resolve the challenges that were experienced under the Restitution of Land Rights Act, including backlogs in land claims and dispute resolution mechanisms, and will also contribute to the government’s implementation of its Land Reform Programme. This Court may be inclined to view the applications within the context of the ANC’s Land Reform Programme, which ultimately may have an undue and inappropriate impact on the outcome.
The intended purpose of the Bill is to provide for the establishment of a Land Court and a Land Court of Appeal; further, to make provision for the administration and judicial functions of the Land Court and Land Court of Appeal; provide for budgetary matters; provide for the exclusive jurisdiction of the Land Court and Land Court of Appeal for all land-related matters; provide for mediation and arbitration procedures; amend certain laws relating to the adjudication of land matters by other courts, and provide for all matters connected therewith.
Neasa’s submission highlights the contentious aspects and provisions of the Bill relating to the sole/exclusive jurisdiction of the court in land matters, and the laws amended in terms of the Bill concerning the court’s role in matters regarding the eviction of unlawful occupiers of land on farms. Neasa also comments on the admissibility of evidence in terms of the Bill, and the legislative process used in the creation of the Bill. Below, in summary, these aspects are expanded on.
The sole/exclusive jurisdiction of the court provided for in the proposed Bill, entails that the Land Court will have both wide and exclusive jurisdiction over land disputes. The Court will likely be inundated with an enormous number of matters regarding land, including those dealing with expropriation, across wide geographical areas. The Court will consequently not be able to assist in the existing backlog and cause further delay in the finalisation of land disputes. This wide exclusive jurisdiction will therefore curtail the court’s effective functionality.
Furthermore, in terms of these amendments, jurisdiction will vest exclusively in the Land Court in respect of, inter alia, matters pertaining to the eviction of occupiers of agricultural land. The Land Court may not have the capacity to deal with these issues, speedily or at all, in all magisterial districts. This will invariably deny farmers easy access to courts for these purposes. The concurrent jurisdiction of the Court and the Magistrates’ Courts, in matters regarding evictions on agricultural land must therefore be maintained. This is a matter of great concern to farmers and therefore prioritised by NEASA in its submission on the Bill.
Neasa submits that the normal, widely accepted rules of evidence must be used in the proposed court and that the provision allowing a discretion by the Court to permit any evidence, which would normally be inadmissible, must be rejected, as relaxed rules of evidence leave room for much abuse. More stringent rules of evidence must be applied by the Court in order to protect property rights.
The legislative process employed, culminating in the formal introduction of the Bill in Parliament, was devoid of the traditional departmental consultative process which requires the Department to invite public comments on proposed draft laws in support of participatory constitutional democracy. No such comments were invited and the consultation process which will now follow is solely with Parliament and not with the Department. Public participation in the law-making process, at all stages, is pivotal in a free and democratic country. The circumvention of the departmental public consultation process sets a dangerous precedent as to the manner in which laws are made.
To view Neasa’s submission, click here.