Land Claims / Restitution Claims

Restitution of Land Rights Act, Act 22/1994, the Restitution Act.

The Restitution Act sometimes has certain points of contact with other legislation that must be taken into account. E.g. with the Extension of Security of Tenure Act – tenure rights act (abbreviated as "Esta") – which governs occupation rights on farms. Before buying or selling potentially affected land we strongly recommend a comprehensive land rights audit.

The Criteria of Whether or Not a Restitution Claim is Valid

1. Is the claimant a person or community (a family does not qualify)? It must be a bona fide community that existed on date of dispossession. Not a newly formed or fabricated community.
2. Did the claimant have "rights in land"? A "right in land" is a broad concept and is usually NOT determined by a title deed. In other words, these are unregistered "rights" and may include: • the rights of a sharecropper • rights of a labour tenant • a customary interest • as beneficiary under a trust agreement • beneficial occupation for a continuous period of 10 years or more.
3. "Dispossession" is not just a formal eviction of a person or community by some government body. Dispossession is a broad concept and also includes a downgrading of rights.
4. The "dispossession" had to occur based on race-based legislation or practices. If the person was dispossessed because a dam had to be built, for example, it is not race-based.
5. The right in land should have been dispossessed between 19 June 1913 and 1994.
6. The Claimant/s must prove all above mentioned 5 criteria on a preponderance of probability in order to succeed with their claim.
7. Must have filed a claim prior to December 31, 1998 (1st batch of claims), or between June 2014 and July 2016 (2nd batch of claims).
8. The 1st batch of claims must first be settled before the 2nd batch of claims can be dealt with in terms of a decision of the Constitutional Court.
9. Claims are likely to be reopened.

A Restitution Claim Proceeds More or Less as Follows

Lodging of Claim and Investigation

1. A Claim form is received by the commission. A claim number is assigned.
2. Verification (of the claim form) is done to determine whether the claim is legally valid, i.e. whether sufficient information is stated in the claim form to establish a valid claim if it is proved. If not, further documents/information from claimants are requested.
3. It is the Commission's statutory duty to assist claimants in investigating and handling the claim – at taxpayers' expense.
4. Only claims that are clearly and obviously invalid are rejected. Minor defects in the claim or claim form are corrected and/or condoned by the commissioner. However, the claim may not be expanded.
5. Further investigation into the merits of the claim is conducted to determine whether the claim complies with the requirements of the Act – section 2. The Commission's investigations are often extremely flawed.
6. A valuation of the claimed land is done – often prematurely as the merits of the claim can still be disputed.

Notice to Stakeholders and Negotiations

1. Notice in Government Gazette – known in layman's language as "gazette".
2. Current owner and other stakeholders need to be informed of the claim – does not always happen.
3. Owners/other stakeholders must formally indicate whether the claim is recognized or opposed.
4. Report is made by Commission to Claimant on progress on the claim and the Claimant/s must at this stage indicate whether they want the claimed land or want alternative land, or be compensated with money – compensation (taxpayer paid) or a combination of the abovementioned 3 possibilities.

Landowner May Admit to Validity or Oppose Claim

1. Oppose claim – make representations and try to convince Commission/claimants to withdraw claim or if claim is valid, not claim claimed land and instead accept compensation or alternative land. Where the parties are willing, mediation is often used to settle the matter before the Land Court is approached. If representations fail and checkmate is reached in the negotiations, the Commission must issue a certificate and refer the claim to the Land Court for adjudication, where we provide specialist land litigation representation. Then follows a hearing in the Land Court.
2. Claim admitted – if the claim is recognised by the Landowner, the next logical step is to negotiate a purchase or be expropriated. The land is then bought or expropriated and transferred to the state or the claimants.

Possible Outcomes

Claims can be settled in one of the following 4 ways but only if claim is found to be valid:

1. Commission (State) buys the land from the landowner according to agreed price & if cannot agree on price, refer to court for determination of the price.
2. Claimants are compensated in cash by the state (taxpayers' money) – i.e. the landowner retains his land even though the claim is valid.
3. Claimants are granted alternative land if the claimants agree to it or if it is ordered by court – i.e. the landowner retains his land even though the claim is valid.
4. Claimant gets combination of the above – i.e. even if the claim is valid, the landowner retains his land (except for part awarded to Claimants).

If the Claim is Published in the Government Gazette

It has the following consequences:

1. The Land Claims Commissioner must give the owner and other stakeholders in the land notice of the claim. This does not always happen.
2. The land in question may be sold, exchanged, donated, leased, subdivided, developed, rezoned but only after the Commissioner has been given one month's written notice. It is not asking permission, just giving notice.
3. No person without the written consent of the Chief Land Claims Commissioner may remove or cause any improvements of the land to be removed, destroyed, or damaged, except in the ordinary course of business. Otherwise, only notice of it should be given to the Commission.
4. No claimant or other person may enter and occupy the land without the written consent of the owner or rightful occupier.
5. A person affected by the publishing of a land claim may make representations to the commissioner for withdrawal or amendment of the claim.

Who Are the Relevant Institutions?

1. The administrative process, including the investigation of the claims, is handled by the Commission on the Restitution of Land Rights – hereinafter referred to as "the commission". The commission is a subdivision of the Department of Agriculture, Land Reform and Rural Development ("DALRRD") and has its own procedures, staff, budget, offices, etc.
2. The relevant court is the Land Claims Court (renamed to the Land Court in 2025), which is based in Randburg. The Land Court has jurisdiction over South Africa and deals with not only restitution claims, but also labour tenant claims and tenure rights.
3. The Land Court determines the validity of claims – not the Commission.
4. Land Court procedures differ in certain respects from other courts' procedures, but the dispute must also go through a trial / testimony like any other lawsuit.