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Land Restitution

In 1867 the Sixth Municipal District of Cape Town was proclaimed, not far from the docks. Within about 20 years it had become home to almost a tenth of the city’s population, and a lively community of former slaves, artisans and merchants. By the 1950s, District Six was a vibrant cosmopolis, populated mostly by Coloureds, but also by Xhosas and smaller numbers of Afrikaners and Indians.1

On 11 February 1966 that all changed. With virtually no whites there at all, District Six was nevertheless declared by the Government a ‘whites-only area’, under the Group Areas Act, and the bulldozers moved in. Forced removals started in 1968 and, before long, more than 60 000 people2 had been relocated, forcibly, to the Cape Flats township some 25 kilometres away. Only religious buildings remained.

The District Six forced removal is amongst South Africa’s most famous, but it is not alone. From 1960 to 1983, the apartheid government forcibly removed 3,5 million black South Africans off their ancestral and/or current land, and away from their homes, to suit the apartheid policies.3 South Africa is not alone, by the way.

The westward frontier expansion, and legislation such as the 1887 Dawes Act,4 saw Indian tribes dispossessed in 19th Century North America of 370 000 square kilometres of ancestral land. That is an area bigger than the whole of Germany.5 In Australia, similar forced removals of Aboriginal peoples took place. The policy was so contentious that the biggest hit of Australia’s biggest ever rock band is precisely about land restitution.6

As a result of South Africa’s past racially discriminatory laws, a process of land restitution was implemented. This is the purpose of the Restitution of Land Rights Act 1994,7 and it established not only a Commission on Land Rights Restitution, but also a Land Claims Court, to deal with the various issues involved. The Act falls under the authority of the Minister of Rural Development and Land Reform.

A. Land claims

Once a land claims commissioner for a region has received a claim about land restitution, and is satisfied about its basic inherent attributes8 he advertises notice of the claim in the Government Gazette. Thereafter, certain things may not happen.

  1. It is an offence to obstruct the passage of any claim in an improper manner.9

  2. It is an offence to sell, exchange, donate, lease, subdivide, rezone or develop the land in question without having given the regional commissioner one month’s written notice of the intention to do so.10

  3. If you evict a claimant who occupied the land in question as at 2 December 1994,11 without written authority of the Chief Land Claims Commissioner, you commit a criminal offence.12

  4. It is an offence to remove, destroy or damage any improvements upon the land (or cause this) without the written authority of the Chief Land Commissioner.13

  5. By the same token, no claimant (or other person) may enter upon and occupy the land without the permission of the owner or lawful occupier and commits an offence if he does.14

B. The Commission and its powers

The Act established the Commission on Restitution of Land Rights.15 It performs various functions, including advising and assisting claimants, investigating the merits of their claims, mediating disputes, and the like.

  1. Any person who hinders or obstructs the Commission in the performance of its functions commits an offence.16

  2. If you have been directed to appear before a member of the Commission, at a specified time and place, and fail to do so, you commit an offence.17

  3. If you are directed to produce documents or objects to the Commission and fail to do so, it is also an offence.18

  4. The Commission has ‘officers’ seconded in terms of the Public Services Act 1994, and it is also has persons or organisations appointed on an ad hoc basis to assist from time to time. If you prevent any such officer, person or organisation from performing any function in terms of the Act, you commit an offence.19

C. The Land Claims Court

There is a Court, equivalent to a High Court, specially designated to hear all issues concerning land claims: the right to restitution, compensation, the validity and enforceability of agreements settling disputes, and so on. The Land Claims Court has the power to refer any particular matter which arises in its proceedings (usually of a scientific, technical or peculiarly local nature) to a referee.

  1. If you are summoned to appear and give evidence, or produce any document or thing before a referee and you fail to do so, it is a crime.20

  2. If you fail to remain in attendance until the conclusion of the enquiry, or until you are excused by the referee it is also an offence.21

  3. If you refuse to be sworn or to make an affirmation as a witness, it is an offence.22

  4. It is also an offence if, having been sworn (or having made affirmation as a witness) you fail to answer fully and satisfactorily any question put to you.23

  5. If you fail to produce any document or thing in your possession or under your control which you were summoned to produce, it is an offence.24

  6. Any person who gives false evidence before a referee at any enquiry, or gives evidence not knowing or believing it to be true, commits an offence.25

  7. The Land Claims Court can also direct that the evidence of a person who is outside the jurisdictional area of the Court be taken by way of what is called interrogatories. This is a list of questions, put to the person by a designated commissioner of the Court, and the answers are recorded. This then forms part of the evidence in the particular proceedings. If you are summonsed to appear as a witness for the purpose of interrogatories, you commit an offence if you fail to do so.26

  8. As with normal High Court proceedings, the sheriff27 has duties to perform concerning the process of the Land Claims Court: serving and executing summonses, judgments, units of execution, directions of the Court, and so on. It is an offence28 to do any of the following in regard to the Sheriff (or his deputy):

    • obstruct him in the execution of his duty;
    • being aware that goods are under interdict or attachment destroy or dispose of them in a manner not authorised by law;
    • knowingly permit those goods (if under your control) to be destroyed or disposed of in such a manner;
    • being a judgment debtor, and being required to point out property to satisfy a warrant of execution, falsely declare that you possess no property (or insufficient property) to satisfy the warrant; or, although knowing of such property, fail to point it out or to deliver it to the sheriff when requested to do so.
    • being a judgment debtor, refuse or neglect to comply with any requirement of a sheriff in regard to the delivery of documents in your possession or under your control relating to the title of the immovable property under execution.
  1. See, in general on District Six: www.districtsix.co.za; www.overcomingapartheid.msu.edu – ‘Forced Removals’; and Wikipedia – ‘District Six’. 

  2. That is, the entire population of Grahamstown – see www.citypopulation.de/SouthAfrica

  3. www.overcomingapartheid.msu.edu loc cit. 

  4. Wikipedia – ‘Land reforms by country’. A lot of countries are referenced. 

  5. Germany is 357 000 square kilometres. 

  6. ‘Beds are Burning’ (1987) by Midnight Oil: the song’s refrain is a famous protest anthem (and caused the song to be banned in South Africa): ‘The time has come, a fact’s a fact, it belongs to them, let’s give it back’. 

  7. As amended; the latest amendment was effected by Act 15 of 2014. 

  8. See section 11(1) of the Act. 

  9. Section 11(7)(a) read with section 17(a). 

  10. Section 11(7)(aA) read with section 17(a). 

  11. That is the date of commencement of the Act. 

  12. Section 11(7)(b) read with section 17(a). 

  13. Section 11(7)(c) read with section 17(a). 

  14. Section 11(7)(d) read with section 17(a). 

  15. The Head Office of the Commission is at 184 Jeff Masemola Street, Pretoria. Contact: Tel. 012 312 9244/9146 Fax. 012 321 0428 

  16. Section 17(c). 

  17. Section 17(b). 

  18. Section 17(b). 

  19. Section 17(d). 

  20. Section 28C(5)a. 

  21. Section 28C(5)a. 

  22. Section 28C(5)b. 

  23. Section 28C(5)c. 

  24. Section 28C(5)d. 

  25. Section 28C(6). 

  26. Section 28H(5). 

  27. See ‘Superior Courts’ 

  28. See section 28L of the Act, read with section 46 of the Superior Courts Act 2013.