In September 2023, President Cyril Ramaphosa assented to the Land Court Act 06 of 2023 (the“Act”). The Act was introduced by the Minister of Justice and Correctional Services, Ronald Lamola, in May 2021. The Act was introduced to channel unresolved disputes and problems relating to land claims and speed up the nation’s land reform initiative. The Act establishes a specialist Land Court and a Land Court of Appeal which will deal solely with issues concerning land rights and claims to eliminate the structural obstacles that land claimants face in their pursuit of land restitution and to provide stronger judicial monitoring of claims.
The Act abolishes and replaces the Land Claims Court with a Land Court and Land Court of Appeal.
However, it preserves key provisions that already govern proceedings in the Land Claims Court. For example, Section 21 of the Act authorises the Land Court to:
- Admit hearsay evidence of the circumstances surrounding the dispossession of land rights,
- Admit expert evidence of historical and anthropological facts relevant to the land claim, and
- To order the state to compensate the land claimant or impose conditions before dispossessed land can be returned.
The Act provides for the administration and judicial functions of the courts. It assigns the Land Court similar status and power to the High Court, as well as the Land Court of Appeal to the Supreme Court of Appeal, and confers the courts numerous legislative powers. The Act provides the Land Court with a greater jurisdiction than that enjoyed by the Land Claims Court. Section 7 of the Act stipulates that the Land Court has jurisdiction in the jurisdiction of each division of the High Court. This means that there will be two Land Courts in KwaZulu-Natal, one in Durban and one in Pietermaritzburg. The Act also provides that the Land Court has jurisdiction to address the land reform pillars: restitution, redistribution, and security of tenure.
The Land Court has the power to make any appropriate order, including but not limited to any other appropriate order that a High Court is competent to make, and which relates to a matter under the jurisdiction of the Court according to Section 26 of the Act. Section 17 of the Act grants the Land Court of Appeal authority to hear appeals against any land-related order or judgment. Therefore, if a person feels aggrieved by the order or judgment of the Magistrate’s court, that person can lodge an appeal with the court in line with any land- related laws, and the court may then hear more evidence, revise the judgment, or set it aside.
When a case is appealed to the Land Court of Appeal, the Land Court can order the Commission for the Restitution of Land Rights to conduct an inquiry and report on any case presented to it and to issue any appropriate order that will remain in effect until the appeal is resolved. The Act allows the court to refer to specific matters for arbitration or mediation. It promotes a quicker and more affordable alternative for case resolution. Section 29 gives the Judge President the power to refer a case to mediation or arbitration rather than open court and the authority to suspend a hearing at any time and refer a case to either process. If the resolution of a matter could further legal advancement, the Judge President may also elect to have it heard.
The Act permits the public to have access to the Land Court. For instance, if a party cannot afford legal representation, Section 16 of the Act allows judges to refer cases to Legal Aid so that the unrepresented party can have legal assistance. Parliament must give Legal Aid SA enough funding to ensure that unrepresented people obtain legal aid in appropriate cases and Legal Aid SA must provide legal representation if there is grave injustice in any other case.
The formation of a specialist Land Court and the Land Court of Appeal may be a key factor in the success of land reform. It will be interesting to see this Act practically unfold as these courts will allow for the development of land-specific jurisprudence that can be used as precedent. We hope that the Land Court and Land Court of Appeal will be resourceful enough to carry out their mandate efficiently.
