Restitution of Land Rights Act
This section defines key terms used in the Act.
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This section defines key terms used in the Act. A person may claim title in land if the claim meets the stated historical-dispossession and proof conditions. If the Chief Land Claims Commissioner is absent or unable to act, the Deputy Land Claims Commissioner must act in that role. A regional land claims commissioner may refer a matter to the Commission instead of handling a particular case. This provision sets out how the Commission’s administrative work is carried out, who may be appointed to assist it, and how land restitution claims are lodged and processed. After notice is published, the regional land claims commissioner must notify interested parties and tell the Registrar to record the claim; certain interference, eviction, damage, and occupation are restricted, and the Commission has investigation powers.
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Provisions of Restitution of Land Rights Act
Showing 34 of 34
Part
CHAPTER I
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In this Act, unless the context indicates otherwise-
AI-assisted research summary: This section defines key terms used in the Act.
1. In this Act, unless the context indicates otherwise- (i) "claim" means any application lodged with the Commission in terms of this Act; (iii) (ii) "claimant" includes a community; (iv) (iii) "Commission" means the Commission on Restitution of Land Rights established by section 4; (ix) (iv) "community"· means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group,· and includes part of any such group; (v) (v) "Court" means the Land Claims Court established by section 22; (vii) (vi) "direct descendant" of a person includes the spouse or partner in a customary union of such person whether or not such customary union has been registered; (ii) (vii) "Minister" means the Minister of Land Affairs or an officer in his or her department designated by him or her; (x) (viii) "person" includes a community or part thereof; (xii) (ix) "prescribed" means prescribed by or under this Act; (xiv) (x) "public land" means all land owned by any organ of state as defined in section 233 of the Constitution, and includes land owned by a local authority, the Land Bank and any institution in which the State is the majority or controlling shareholder; (xi) (xi) "right in land" means any right in land whether registered or unregis tered, and may include the interest of a labour tenant and sharecrop per, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question; (xiii) 10 15 20 25 30 GOVERNMENT GAZETIE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGHTS ACf, 1994 No. 16106 5 Ac:t No. 22, 1994 (xii) "Supreme Court" means the Supreme Court of South Africa referred to in section 101 of the Constitution; (viii) (xiii) "the rules" means the rules made under sections 16 and 32; (i) (xiv) "this Act" includes the rules and the regulations made under section 40. (vi) Enforcement of claim for restitution 2. (1) A person shall be entitled to enforce restitution of a right in land if (a) he or she is a person or community contemplated in section 121(2)of the Constitution or a direct descendant of such a person; and (b) the claim for such restitution is lodged within three years after a date fixed by the Minister by notice in the Gazette; (2) The date contemplated in subsection (1}, shall be a date not earlier than the earliest of the dates contemplated in section 43. 5 10 (3) The date contemplated in section 121(2)(a) of the Constitution is 19 June 15 1913. . Claims against nominees 20 25 - 3 Verify source ↗
Subject to the provisions of this Act a person shall be entitled to claim title
AI-assisted research summary: A person may claim title in land if the claim meets the stated historical-dispossession and proof conditions.
3. Subject to the provisions of this Act a person shall be entitled to claim title in land if such claimant or his, her or its antecedent- ( a) . was prevented from obtaining or retaining title to the claimed land because of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2) of the Constitution had that subsection been in operation at the relevant time; and (b) proves that the registered owner of the land holds title as a result of a transaction between such registered owner or his, her or its antecedents and the claimant or his, her or its antecedents, in terms of which such registered owner or his, her or its antecedents held the land on behalf of the claimant or his, her or its antecedents. CHAPTERD 30 Commission on Restitution of Land Rights Establishment of Commission on Restitution of Land Rights 4. (1) There is hereby established a commission to be known as the Commission on Restitution of Land Rights. (2) The Commission shall have a head office and such other offices, with such 35 areas of jurisdiction, as the Minister may determine. (3) The Commission shall consist of a Chief Land Claims Commissioner appointed by the Minister, after inviting nominations from the general public, a Deputy Land Claims Commissioner similarly appointed and as many regional land claims commissioners as may be appointed by the Minister. 40 ( 4) The Chief Land Claims Commissioner, the Deputy Land Claims Commis- 45 sioner and a regional land claims commissioner, shall ( a) be fit and proper persons to hold such offices; (b) be South African citizens; and (c) have skills and knowledge relevant to the work of the Commission or such legal knowledge or qualifications as the Minister may deem necessary. (5) The Minister may terminate any appointment made under subsection ' (3}-- (a) if he or she is satisfied that such appointed person no longer complies 50 with the requirements of subsection (4); or (b) if the appointed person requests the Minister in writing to terminate the appointment. GOVERNMENT GAZETIE; 25 NOVEMBER 1994 RESTITUTION OF LAND RIGHTS ACf, 1994 No. 16106 7 Act No. 22, 1994 Meetings of Commission 5. (1) The Commission shall meet at least three times each year. (2) Meetings of the Commission shall be held at the time and place determined by the Chief Land Claims Commissioner. (3) The majority of the members of the Commission shall form a quorum for 5 a meeting of the Commission. (4) The decision of the majority of the members of the Commission present at any meeting thereof shall be a decision of the Commission: Provided that, in the event of an equality of votes, the Chief Land Claims Commissionet shall have a 10 casting vote in addition to his or her deliberative vote. General functions of Commission 6. (1) The Commission shall, at a meeting or through the Chief Land Claims Commissioner, a regional land claims commissioner or a person designated by any such commissioner:- · (a) subject to the provisions of section 2, receive and acknowledgereceipt of all claims for the restitution of rights in land lodged with it in terms .·of this Act; ' (b) take reasonable steps to ensure that claimants are assisted in the · (c) advise claimants of the progress of their claims at regular intervals and preparation and submission of claims; ·. · upon reasonable request; (d) subject to the provisions of section 14, report to the Court on the terms of settlement in respect of successfully mediated claims; (e) define any issues which may still be in dispute between the claimants and other interested parties with a view to expediting the hearing of claims by the Court; (f) at regular intervals, take appropriate steps to make public information regarding the persons entitled to claim restitution of rights ·in land in terms of section 121 of the· Constitution, the limitations imposed by section 2, and the manner in which claims may be lodged with the Commission. 15 20 25 30 (2) The Commission may, at a meeting or through the Chief Land Claims Commissioner, a regional land claims commissioner or a person designated by any such commissioner- · · · 35 (a) monitor and make recommendations concerning the implementation of 40 orders made by the Court under section 35; · (b) make recommendations or give advice to the Minister regarding the most appropriate form of alternative relief, if any, for those claimants who do not qualify for the restitution of rights in land in terms of this Act; (c) refer questions of law and interpretation to the Court; (d) ensure that priority is given to claims which affect a substantial number of persons, .or persons who have suffered substantial losses as a result of dispossession or persons with particularly pressing needs; " (e) generally, do anything necessarily connected with or reasonably inci: 45 dental to the expeditious finalisation of claims. Delegation of powers and performance of functions. 7. (1) The Commission may delegate any power conferred upon it by or under this Act to a subcommittee of the Commission or to · a member of the Commission or to a person contemplated in section 8 or 9 subject to such 50 directions or conditions as the Commission may give or determine from time to time: Provided that the powers referred to in section 6(2)(b), (c) and (d) may not be delegated. (2) The Chief Land Claims Commissioner may delegate any power conferred upon him or her by or under this Act except the power of delegation to the - 55 Verify source ↗
Deputy Land Claims Commissioner or any regional land claims commissioner~
AI-assisted research summary: If the Chief Land Claims Commissioner is absent or unable to act, the Deputy Land Claims Commissioner must act in that role. A regional land claims commissioner may refer a matter to the Commission instead of handling a particular case.
55 Deputy Land Claims Commissioner or any regional land claims commissioner~ either generally or with regard to a specific claim. (3) If the Chief Land Claims Commissioner is absent or unable to perform any or all of his or her functions, the Deputy Land Claims Commissioner shall act in GOVERNMENT GAZETTE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGHTS Acr, 1994 No. 16106 9 Act No. 22, 1994 his or her stead and whilst the Deputy Land Claims Commissioner so acts, he or she shall perform all the functions of the Chief Land Claims Commissioner. (4) A regional land claims commissioner may, instead of performing any function in any particular case, refer the matter to the Commission for the - 5 Verify source ↗
Commission to perform such function at a meeting contemplated in section 5.
AI-assisted research summary: This provision sets out how the Commission’s administrative work is carried out, who may be appointed to assist it, and how land restitution claims are lodged and processed.
5 Commission to perform such function at a meeting contemplated in section 5. Performance of administrative work of Commission . 8. (1) The administrative work incidental to the performance ofthe functions of the Commission shall be performed by officers appointed in terms of the provisions of section 15(3)(a) of the Public Service Act, 1994 (Proclamation No. 10 103 of 1994), and designated in general or for a specific purpose by the Minister after consultation with the Commission. (2) In making a designation in terms of subsection (1), the Minister and the Commission shall seek to ensure that the staff of the Commission shall be broadly representative of the South African population. 15 20 25 30 {3) Designated officers shall perform their functions under the control and supervision of the Chief. Land Claims Commissioner or regional land claims commissioner, as the case may be. · - Appointment of persons to assist Commission on ad hoc basis 9. (1) The Chief Land Claims Commissioner may from time to time- . (a) appoint one or more persons with particular knowledge or specific expertise relevant to the achievement of the Commission's objects to advise the Commission regarding any matter connected with the . performance of its functions; (b) appoint one or more persons with specific expertise in relation to dispute resolution to facilitate meetings of interested parties, mediate and settle disputes, and report to the Commission in writing on the outcome of such negotiations; (c) request any government department, provincial administration, local authority or person in the service of the State; a province or local authority who has particular knowledge or specific expertise to advise the Commission regarding any matter connected with the performance of its functions. · (2) A person appointed in terms of subsection (1) who is not in the full-time service of the State may, from moneys appropriated by Parliament for this 35 -purpose, be paid such remuneration and allowances in respect of the services performed by him or her as may be determined by the Minister in consultation with the Minister of Finance. Lodgement of claims 45 10. (1) Any person or the representative of any community who is of the 40 opinion that he or she or the community which he or she represents is entitled . to claim restitution · of a right in land as contemplated in section 121 of the Constitution, may lodge such claim, which shall include a description of the land in question and the nature of the right being claimed, on the form prescribed for this purpose by the Chief Land Claims Commissioner under section 16. (2) The Commission shall make claim forms available at all its offices. (3) If a claim is lodged on behalf of a community the basis on which it is contended that the person submitting the form represents such community, shall be declared in full and any appropriate resolution or document supporting such contention shall accompany the form at the time of lodgement: Provided that the 50 regional land claims commissioner having jurisdiction in respect of the land in question may permit such resolution or document to be lodged at a later stage. Procedure after lodgement of claim 11. (1) If the regional land claims commissioner having jurisdiction is satisfied that- · GOVERNMENT GAZEITE, 25 NOVEMBER 1994 No. 16106 11 RESITTIJTION OF LAND RIGHTS ACf, 1994 Act No. 22, 1994 the claim has been lodged in the prescribed manner; (a) (b) the claim is not precluded by the provisions of section 2(1); (c) (d) no order has been made by the Court in terms of section 35 in respect the claim is not frivolous or vexatious; and . of rights relating to that land, 5 he or she shall cause notice of the claim to be published in the Gazette and shall take steps to make it known in the district in which the land in question is situated. (2) The regional land claims commissioner concerned may, on such conditions 10 as he or she may determine, condone the fact that a claim has not been lodged in the prescribed manner. (3) A frivolous or vexatious claim may be dismissed by the regional land claims commissioner concerned. · ( 4) If the regional land claims commissioner decides that the criteria set 15 out in paragraphs (a); (b), (c) and (d) of subsection (1) have not been met, he or she shall advise the claimant accordingly, and of the reasons for such decision. (5) If an order has been made by the Court as contemplated in section 35 the claimant may, subject to the provisions of section 2(1), make application to the - 20 Verify source ↗
Court for permission to lodge a claim in respect of that land.
AI-assisted research summary: After notice is published, the regional land claims commissioner must notify interested parties and tell the Registrar to record the claim; certain interference, eviction, damage, and occupation are restricted, and the Commission has investigation powers.
20 Court for permission to lodge a claim in respect of that land. (6) Immediately after publishing the notice referred to in subsection (1), the regional land claims commissioner shall- ( a) advise any other party which, in his or her opinion, might have an interest in the claim; and 25 · (b) direct the relevant Registrar, as contemplated in section 102 of the Deeds Registries Act, 1937 (Act No. 47 of 1937), for the area in which the land in question is situated to note in his or her records the fact that a claim for restitution of a right in the land has been instituted in terms of this Act. 30 (7) Once a notice has been published in respect of any land and a temporary note has been made in the records as contemplated in subsection (6)(b)- (a) no person may in an improper manner obstruct the passage of the claim; 35 40 (b) no claimant who was resident on the land in question at the date of commencement of this Act may be evicted from the said land without the written authority of the Chief Land Claims Commissioner; (c) no person shall in any manner whatsoever remove or cause to be removed, destroy or cause to be destroyed or damage or cause to be damaged, any improvements upon the land without the written author- ity of the Chief Land Claims Commissioner; (d) no claimant or other person may enter upon and occupy the land without the permission of the owner or lawful occupier. (8) The regional land claims commissioner may, at any time after · the publication of a notice contemplated in subsection (1), if he or she has reason to· 45 believe that any improvement on the land is likely to be removed, damaged or destroyed or that any person resident on such land may be adversely affected as a result of the publication of such notice, authorise any person contemplated in section 8 or 9 to enter upon such land for the purpose of drawing up an inventory of any assets on the land, a list of persons employed or resident on the land, or 50 a report on the agricultural condition of the land and of any excavations, mining or prospecting thereon. Commission's power of investigation 12. (1) The Commission may, through a member of the Commission or any person authorised thereto in writing, in order to carry out its functions- (a) conduct an investigation; (b) demand from any person including any government department such particulars, documents and information as may be necessary in con nection with any investigation; (c) by notice in writing, addressed and delivered by a member of the staff of the Commission or a sheriff to any person, direct such person, in 55 60 GOVERNMENT GAZETTE, 25 NOVEMBER 1994 _ No. 16106 13 RESTITUTION OF LAND RIGHTS ACf, 1994 Act No. 22, 1994 relation to an investigation, to appear before a member of the Commission at a time and place mentioned in such notice and to produce to such member all documents or objects in the possession or custody or under the control of such person and which are relevant to that investigation. _ 5 (2) Any person directed to produce documents or objects in terms of subsection (1)(c) shall not be compelled to produce any document or object which could be used in evidence against him or her in a criminal trial. (3) If a claimant is not able to provide all the information necessary for the 10 adequate submission or investigation of a claim, the regional land claims commissioner concerned shall direct an officer contemplated in section 8 to take all reasonable steps to have this information made available. ( 4) If at any stage during the course of an investigation by the Commission, the Chief Land Claims Commissioner is of the opinion that the resources of the - 15 Verify source ↗
Commission or the Court would be more effectively utilised if all claims for
AI-assisted research summary: Claims must be lodged within the notice period, but the Commission may permit late lodgement on good cause shown, up to three years after the section 2(1)(b) date.
15 Commission or the Court would be more effectively utilised if all claims for restitution in respect of the land, or area or township in question, were to be investigated at the same time, he or she shall cause to be published in the Gazette and in such other manner as he or she deems appropriate, a notice advising potential claimants of his or her decision and inviting them, subject to 20 the provisions of section 2(1), to lodge claims within a period specified in such - notice. (5) No claim in respect of a matter contemplated in subsection (4) shall be lodged after the expiry of the period specified in the said notice: Provided that the Commission may allow a claimant on good cause shown, to lodge a claim 25 after the expiry of such period, but not later than three years after the date fixed in terms of section 2(1)(b). Mediation 13. (1) If at any stage during the course of the Commission's investigation it becomes evident that- 30 35 (a) there are two or more competing claims to a particular right in land; . (b) in the case of a community claim, _there are competing groups within the claimant community making resolution of the claim difficult; (c) where the land which is subject to the claim is not state-owned land, the owner or holder of rights in such land is opposed to the claim; or (d) there is any other issue which might usefully be resolved through mediation and negotiation, the Chief Land Claims Commissioner may direct the parties concerned to attempt to settle their dispute through a process of mediation and negotiation. (2)(a) A direction contemplated in subsection (1) shall be made in a written 40 notice specifying the time when and the place where such process is to start. (b) The Chief Land Claims Commissioner shall appoint a mediator to chair the first meeting between the parties: Provided that the parties may at any time during the course of mediation or negotiation by agreement appoint another person to mediate the dispute. · (3) A person appointed by the Chief Land Claims Commissioner in terms of subsection (2)(b) shall either be an officer contemplated in section 8 who is a fit and proper person to conduct such a process of mediation and negotiation or an independent mediator contemplated in section 9(1)(b). 45 (4) All discussions taking place and all disclosures and submissions made 50 during the mediation process shall be privileged, unless the parties agree to the contrary. Referral of claims to Court 14. (1) If upon completion of an investigation by the Commission- ( a) the parties to any dispute arising from the claim agree in writing that it is not possible to settle the claim by mediation and negotiation; (b) the regional land claims commissioner certifies that it is not feasible 55 GOVERNMENT GAZETIE, 25 NOVEMBER 1994 No. 16106 15 RESTITUTION OF LAND RIGliTS ACT, 1994 Act No. 22, 1994 to resolve any dispute arising from such claim by mediation and negotiation; the parties to any dispute arising from such claim reach agreement as to how the claim should be finalised and the regional land claims commissioner is satisfied that such agreement is appropriate; or . the regional land claims commissioner is of the opinion that the claim is ready for hearing by the Court, (c) (d) 5 the Chief Land Claims Commissioner shall certify accordingly and refer the matter to the Court. (2) Any claim referred to the Court as a result of a situation contemplated in 10 subsection (1)(a), (b) or (d) shall be accompanied by a document- (a) setting out the results of the Commission's investigation into the merits of the claim; 15 (b) reporting on the failure of any party to accede to mediation; (c) containing a list of the parties who ought to have the right to make representations to the Court in respect of the claim; and (d) setting out the Commission's recommendation as to the most appro priate manner in which the claim can be resolved. (3) A referral · made as a result of an agreement contemplated in subsection 20 (1) (c) shall be accompanied by a document setting out the· results of the Commission's investigation into the merits of the claim and a copy of the relevant deed of settlement together with a request signed by the parties concerned and endorsed by the Chief Land Claims Commissioner requesting that such agreement be made an order of Court. . 25 (4) If the Chief Land Claims Commissioner is not satisfied that a settlement referred to in subsection (1)(c) is appropriate, he or she shall refer the matter to the Court for a hearing in accordance with subsection (1)(d). (5) Any interested party shall be entitled, upon payment of the prescribed fee, to copies of the documents contemplated in this section, including the submis- 30 sions of other interested parties in relation to any matter contemplated in this section. (6) The Court shall not make any order in terms of section 35 unless the Commission has, in respect of the claim in question, acted in accordance with the provisions of this section. (7) If a claim has not been referred to the Court within nine months from the date of its lodgement, the regional land claims commissioner concerned shall report in writing to the Commission, giving the reasons for the delay. 35 Certificate of feasibility 15. (1) Upon referral of a claim contemplated in section 121(2) of the - 40 Verify source ↗
Constitution to the Court in terms of section 14, the Chief Land Claims
AI-assisted research summary: The Chief Land Claims Commissioner must ask the Minister to certify feasibility in specified land-claims cases.
40 Constitution to the Court in terms of section 14, the Chief Land Claims Commissioner shall request the Minister to certify whether- ( a) In the case of land contemplated in section 123(1)(a) of the Constitu tion, restoration of the right in question is feasible; (b) in the case of land contemplated in section 123(1)(b) of the Constitu- 45 tion, acquisition of the right in question is feasible . (2) Upon referral of a claim for an order contemplated in section 123(3)(a) of the Constitution to the Court in terms of section 14, the Chief Land Claims Commissioner shall request the Minister to certify whether it is feasible to designate alternative state-owned land. (3) If the Minister certifies under subsection (1) that restoration or acquisition is not feasible, the Chief Land Claims Commissioner shall forthwith request the Minister to certify whether it is feasible to designate alternative state-owned land. 50 (4) When submitting a request contemplated in subsections (1), (2) or (3), the - 55 Verify source ↗
Chief Land Claims Commissioner shall advise the Minister as to whether or not
AI-assisted research summary: The Chief Land Claims Commissioner must advise the Minister on feasibility, interested parties must be allowed to make submissions, and the Minister must consider specified factors and decide on the certificate within 30 days of a request.
55 Chief Land Claims Commissioner shall advise the Minister as to whether or not restoration, acquisition or designation is feasible in the case in question. (5) All interested parties shall be given the opportunity to make submissions to the Minister on the question of feasibility. · (6) In considering whether restoration or acquisition by the State is feasible in 60 terms of subsection (1), the.Minister shall, in addition to any other factor, take into account- · GOVERNMENT GAZETIE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGHTS ACf, 1994 No. 16106 17 Act No. 22, 1994 (a) whether the zoning of the land in question has since the dispossession been altered and whether the land has been transformed to such an extent that it is not practicable to restore the right in question; (b) any relevant urban development plan; (c) any other matter which makes the restoration or acquisition of the right · 5 in question unfeasible; and (d) any physical or inherent defect in the land which may cause it to be hazardous for human habitation. (7) In considering whether designation of alternative state-owned land is 10 feasible in terms of subsections (2) and (3), the Minister shall, in addition to any other factor, take into account- (a) what land is owned by the State, in particular land which is situated in the area in which the dispossession took place; and (b) the suitability of such land to meet the needs of the claimant. 15 (8) Nothing in this section shall be construed to mean that the Minister shall be required or entitled to consider whether restoration, acquisition or designa tion is just or desirable. (9) The Minister shall issue the relevant certificate-of feasibility, or refuse to do so, within 30 days of receipt of a request, and the Chief Land Claims - 20 Verify source ↗
Commissioner or the regional land claims commissioner concerned shall com
AI-assisted research summary: The commissioner or regional land claims commissioner must communicate the Minister’s decision to affected persons. The Minister’s decision on feasibility and alternative state-owned land can be reviewed by the Court, and the Court may hear that review at the same time as the claim. If the Minister certifies feasibility, the Minister may designate alternative state-owned land then or later.
20 Commissioner or the regional land claims commissioner concerned shall com municate the Minister's decision to every person affected by it. (10) The decision of the Minister shall be subject to review by the Court, the hearing of which review may, at the discretion of the Court, be conducted at the same time as the hearing of the claim in question. 25 (11) The decision of the Minister in respect of the issue of a certificate of feasibility, and the reasons for such decision, shall be public documents. (12) If the Minister certifies in terms of subsection (2) or (3) that it is feasible to designate alternative state-owned land he or she may make such designation at the same time or at any time thereafter. - 30 Verify source ↗
Rules regarding procedure of Commission
AI-assisted research summary: The Chief Land Claims Commissioner may make rules about claims and related notice, meeting, mediation, and other procedural matters after consulting the Minister.
30 Rules regarding procedure of Commission 16. (1) After consultation with the Minister, the Chief Land Claims Commis sioner may make rules regarding- ( a) any matter which, in terms of this Chapter, is required or permitted to be prescribed; (b) the filing of claims; (c) any steps which may be taken to give public notice of claims and notice to persons who have an interest in any matter under investigation by the Commission; (d) the giving of notice to parties to attend a meeting for the purpose of (e) mediating or negotiating the settlement of disputes; the giving of notice to parties and public notices giving notice that the Commission will consider any related claims in respect of specific land, a neighbourhood or township within a stipulated period; the order of preference to be given to claims or categories of claims in order to achieve the result contemplated in section 6(2)(d); and (g) generally, with regard to any other matter which he or she considers it necessary or expedient to prescribe in order to achieve or promote the objects of this Act. (/) 35 40 45 (2) The generality of subsection (1) shall not be limited by the preceding 50 sections of this Chapter. (3) Rules made under the provisions of subsection (1) shall be published in the Gazette. Offences and penalties - 17 Verify source ↗
Any person who-
AI-assisted research summary: A person commits an offence if they disobey the listed Commission-related requirements, obstruct the Commission, or stop authorised officers from doing their work.
17. Any person who- 55 (a) contravenes the provisions of section 11(7)(a), (b), (c), or (d); (b) having been directed to appear before a member of the Commission GOVERNMENT GAZETIE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGHTS ACf, 1994 No. 16106 19 Act No. 22, 1994 and to produce documents or objects in terms of section 12(1)(c), fails to appear at the specified time and place or to produce such documents or objects; (c) hinders or obstructs the Commission in the performance of its func- 5 . tions; . (d) prevents or attempts to prevent a duly authorised officer contemplated in section 8, or a person appointed in terms of section 9, from performing a function in terms of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment 10 for a period not exceeding three months. Limitation of liability - 18 Verify source ↗
The Commission, members of the Commission, any person appointed
AI-assisted research summary: The listed Commission-related people are not liable for good-faith acts or omissions while doing functions under the Act, and the Minister may determine remuneration and allowances for certain appointed persons with the Minister of Finance’s consultation.
18. The Commission, members of the Commission, any person appointed under section 9 or any officer contemplated in section 8, shall not be liable in respect of any act or omission in good faith while performing a function in terms 15 of any provision of this Act. Expenditure of Commission 20 19. (1) All expenditure in connection with the performance of the Commis sion's functions shall be defrayed from moneys appropriated by Parliament for such purpose. (2) A person appointed in terms of section 4(3) who is not in the full-time service of the State may, from moneys appropriated by Parliament for such purpose, be paid such remuneration and allowances in respect of services performed in connection with the functions of the Commission, as may be determi~ed by the Minister in consultation with the Minister of Finance. - 25 Verify source ↗
Annual estimates of expenditure
AI-assisted research summary: This section concerns annual estimates of expenditure.
25 Annual estimates of expenditure - 20 Verify source ↗
The estimates of expenditure in respect of each financial year shall, after
AI-assisted research summary: The Chief Land Claims Commissioner, or a designated official, must prepare and submit the estimates of expenditure to the Director-General of Land Affairs by the first day of August of the preceding financial year.
20. The estimates of expenditure in respect of each financial year shall, after being prepared by the Chief Land Claims Commissioner or an official contemplated in section 8(1) and designated by the Chief Land Claims Commissioner, be submitted, not later than the first day of August of the preceding fmaricial year to 30 the Director-General of Land Affairs, who shall be the accounting officer. Annual report - 21 Verify source ↗
The Commission shall annually not later than the first day of June submit to
AI-assisted research summary: The Commission must submit an annual report to Parliament by 1 June covering its activities for the previous year up to 31 March. The Land Claims Court is given powers to decide restitution, compensation, ownership in certain claims, other constitutional matters, and ancillary orders.
21. The Commission shall annually not later than the first day of June submit to Parliament a report on all itsactivities during the previous year, up to 31 March. 35 40 · CHAPTER III The Land Claims Court Land Claims Court 22. (1) There shall be a court of law to be known as the Land Claims Court which, in addition to the powers contemplated in section 123 of the Constitution, shall have the power- to determine restitution of any right in land in accordance with this Act; (a) (b) to determine compensation in terms of this Act; (c) in respect of a claim in terms of section 3, to determine the person entitled to ownership; · (d) to determine all other matters which require to be determined in terms 45 of sections 121, 122 and 123 of the Constitution. (2) The Court shall have jurisdiction throughout the Republic and shall have all the ancillary powers necessary or reasonably incidental to the performance of its functions, including the power to grant interlocutory orders and interdicts. (3) There shall be a President of the Court, who shall be appointed by the - 50 Verify source ↗
President of the Republic, acting on the advice of the Judicial Service Commission.
AI-assisted research summary: The President of the Republic may appoint additional judges of the Court after consulting the President of the Court and the Judicial Service Commission.
50 President of the Republic, acting on the advice of the Judicial Service Commission. (4) The President of the Republic may, after consultation with the President of the Court and the Judicial Service Commission, appoint additional judges of the Court. GOVERNMENT GAZEITE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGIITS ACf, 1994 No. 16106 21 Act No. 22, 1994 (5) The President of the Court and the additional judges of the Court may be appointed for a fixed term. (6) A judge of a provincial or local division of the Supreme Court may be seconded to serve as a judge of the Court. - 5 Verify source ↗
Qualifications of judges of Court
AI-assisted research summary: Section 5 is titled “Qualifications of judges of Court.”
5 Qualifications of judges of Court - 23 Verify source ↗
No person shall be qualified to be appointed President of the Court or a
AI-assisted research summary: A person may be appointed President of the Court or a judge only if they meet citizenship, fitness, and experience or expertise requirements.
23. No person shall be qualified to be appointed President of the Court or a judge of the Court unless he or she- (a) is a South African citizen; (b) is a fit and proper person to be a judge of the Court; and (c) (i} is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least ten years, practised as an advocate or an attorney or lectured in law at a university; or . (ii) by reason of his or her training and experience, has expertise in the . fields of law and land matters relevant to the application of this Act and the law of the Republic. 10 15 Law of procedure and rules - 24 Verify source ↗
Until such time as rules of Court are made in terms of section 32, the rules
AI-assisted research summary: Until rules of Court are made under section 32, the civil-procedure rules for actions and applications in a provincial division of the Supreme Court apply, as far as appropriate, to proceedings in the Court.
24. Until such time as rules of Court are made in terms of section 32, the rules of procedure applicable in civil actions and applications in a provincial division 20 of the Supreme Court shall apply mutatis mutandis in respect of any proceedings in the Court. Holding of office - 25 Verify source ↗
The provisions of section 104 of the Constitution with regard to the making
AI-assisted research summary: Section 104 of the Constitution applies to judges and assessors of the Court for oaths or solemn affirmations and for removal or suspension.
25. The provisions of section 104 of the Constitution with regard to the making of an oath or solemn affirmation and the removal or suspension of judges shall 25 apply to judges and assessors of the Court. · Remuneration and conditions of employment of judges - 26 Verify source ↗
A judge of the Court shall receive such remuneration and shall, subject to
AI-assisted research summary: Judges must be paid and keep their pay while in office, and assessors are appointed and compensated under specified conditions.
26. A judge of the Court shall receive such remuneration and shall, subject to section 22(5), be appointed subject to such conditions of employment as may be prescribed by or under the Judges' Remuneration and Conditions of Employ- 30 ment Act, 1989 (Act No. 88 of 1989), and his or her remuneration shall, subject to the provisions of section 7( 4) of the said Act, not be reduced during his or her continuance in office. Appointment of assessors 27. (1) The Court shall be assisted by assessors appointed by the Minister after 35 inviting nominations from the general public . . (2) No person shall be appointed as an assessor of the Court unless he or she, in the opinion of the Minister, has skills and knowledge relevant to the work of the Court: Provided that it shall not be a requirement of appointment that an assessor shall have any legal qualifications. (3} An assessor shall receive such . remuneration and be entitled to such vacation and other benefits as may be determined by the Minister of Justice in consultation with the Minister of Finance and the President of the Court. 40 Seat and hearings of Court 28. (1) The seat or seats of the Court shall be determined by the Minister of - 45 Verify source ↗
Justice in consultation with the President of the Court.
AI-assisted research summary: The Court may hold hearings at another place in the Republic to make the Court more accessible to claimants.
45 Justice in consultation with the President of the Court. (2) The Court may notwithstanding the provisions of subsection (1) conduct hearings at any other place in the Republic with a view to making the Court accessible to claimants. (3) Hearings of the Court shall be presided over by a single judge unless the - 50 Verify source ↗
President of the Court or in his or her absence the most senior available judge
AI-assisted research summary: A disputed case must have at least one assessor at the hearing, and a participating assessor normally has a vote equal to a judge’s vote.
50 President of the Court or in his or her absence the most senior available judge decides to the contrary. (4) At least one assessor shall participate at the hearing of any disputed case. GOVERNMENT GAZETIE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGHTS ACf, 1994 No. 16106 23 Act No. 22, 1994 (5) At every hearing, a participating assessor shall have a vote equal to that of a judge hearing the matter, except in relation to questions of law: Provided that decisions in respect of the matters referred to in sections 33 and 34(6) shall be deemed not to be questions of law: Provided further that in the event of an 5 equality of votes the presiding judge shall have a casting vote in addition to his or her deliberative vote. Locus standi and legal representation 29. (1) Any party listed in the document referred to in section 14(2), or any interested party in relation to an application in terms of section 34, may appear 10 before the Court, either in person or represented by an advocate or attorney: Provided that the State shall have the right to be heard in all cases and that a person or community not listed in the document referred to in section 14(2) may apply to the Court for permission to appear before it. (2) Where a party can not afford to pay for legal representation itself, the - 15 Verify source ↗
Chief Land Claims Commissioner may take steps to arrange legal representation
AI-assisted research summary: The Chief Land Claims Commissioner may arrange legal representation for a party, using State legal aid or, if needed, Commission funds.
15 Chief Land Claims Commissioner may take steps to arrange legal representation for such party, either through the State legal aid system or, if necessary, at the expense of the Commission. Admissibility of evidence 30. (1) The Court may admit any evidence, including oral evidence, which it 20 considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law. (2) Without derogating from the generality of the aforegoing subsection, it shall be competent for any party before the Court to adduce- 25 ( a) hearsay evidence regarding the circumstances surrounding the dispos- session of the land right or rights in question and the rules governing the allocation and occupation of land within the claimant community concerned at the time of such dispossession; and (b) expert evidence regarding the historical and anthropological facts relevant to any particular claim. 30 (3) The Court shall give such weight to any evidence adduced in terms of subsections (1) and (2) as it deems appropriate. Pre-trial conference 31. (1) The Court may, at its own instance or at the request of any party before it, at any stage prior to the hearing of a matter convene a pre-trial conference of 35 the parties with a view to clarifying the issues in dispute, identifying those issues on which evidence will be necessary and, in general, expediting a decision on the claim in question. (2) The Court may, after the holding of such a pre-trial conference, issue such orders and directions as to the procedure to be followed before and during the 40 trial as it deems appropriate. Rules governing procedure 32. (1) The President of the Court may make rules to govern the procedure of the Court, including rules providing for the circumstances under which oral evidence may be submitted to the Court. (2) The rules contemplated in subsection (1) shall be published in the Gazette. (3) Notwithstanding anything to the contrary in this Act or in the rules contemplated in subsection (1)- , (a) the Court may,'at any stage after a claim has been referred to it, refer the claim back to the Commission with directives as to matters which are to be investigated and reported on by the Commission; and (b) the Court may conduct any part of any proceedings on an informal or 45 50 inquisitorial basis. (4) The rules contemplated in subsection (1) shall make provision for the expeditious hearing of an application in terms of section 34. GOVERNMENT GAZElTE, 25 NOVEMBER 1994 No. 16106 25 RESTITUTION OF LAND RIGHTS ACf, 1994 Act No. 22, 1994 Factors to be taken into account by Court - 33 Verify source ↗
In considering its decision in any particular matter, excluding the review of
AI-assisted research summary: The Court must consider listed factors when deciding a matter, except for review of a decision under section 15. In land-restoration applications, government bodies may apply for non-restoration orders, the Commission must report, and the Court may dismiss the application or order non-restoration if strict public-interest and prejudice conditions are met.
33. In considering its decision in any particular matter, excluding the review of a decision in terms of section 15, the Court shall, in addition to the matters referred to in sections 121, 122 and 123 of the Constitution, have regard to the 5 following factors: (a) The desirability of providing for restitution of rights in land or compensation to people who were dispossessed of their rights in land as a result of or in pursuance of racially based discriminatory laws; 10 15 the requirements of equity and justice; (b) the desirability of remedying past violations of human rights; (c) (d) the desirability of avoiding major social disruption; (e) any provision which already exists, in respect of the land in question in any matter, for that land to be dealt with in a manner which is designed to achieve the goals contemplated in section 8(3}(a) of the Constitu· tion; (f) any other factor which the Court may consider relevant and _consistent with the spirit and objects of the Constitution and in particular the provisions of section 8 of the Constitution. Ruling by Court on restoration before final determination of claim 20 34. (1) Any national, provincial or local government body may, in respect of land which is owned by it or falls within its area of jurisdiction, make application to the Court for an order that the land in question or any rights in it shall not be restored to any claimant or prospective claimant. (2) Notice of any such application shall be given to the Commission, which 25 shall investigate and submit a report to the Court on the desirability of making an order referred to in subsection (1). (3) Any party making an application to the Court in terms of subsection (1) shall, at its own expense, take such steps as the relevant regional land claims commissioner may direct in order to bring the application to the attention 30 of other persons who may have an interest therein, in order that they may make submissions to and appear before the Court on the hearing of the application. (4} The regional land claims commissioner concerned shall take such further steps as he or she deems appropriate to bring the application to the attention of 35 persons who may have an interest. (5) After hearing an application contemplated in subsection (1), the Court may- 40 ( a) dismiss the application; or (b) order that when any claim in respect of the land in question is finally determined, the rights in the land in question, or in part of the land, or certain rights in the land, shall not be restored to any claimant. (6) The COurt shall not make an order in terms of subsection (5)(b) unless it is satisfied that- (a) it is in the public i~terest that the rights in question should not be 45 restored to any claimant; and (b) the public or any substantial part thereof will suffer substantial prejudice unless an order is made in terms of subsection (S)(b) before the final determination of any claim. (7) If the Court makes an order in terms of subsection (S}(b), the regional land 50 claims commissioner shall direct the relevant Registrar to remove any note made in his or her records in terms of section 11(6)(b). (8) Any order made in terms of subsection (S)(b) shall be binding' on all claimants to the rights in question, whether such claim is lodged before or after the making of the order. - 55 Verify source ↗
Court orders
AI-assisted research summary: The Court can set conditions, payment terms, time limits, costs, and other directions for restitution orders; the Minister must expropriate land or rights when ordered; and the owner is entitled to just and equitable compensation.
55 Court orders 35. (1) A person in whose favour an order contemplated in section 123(3)(c) of the Constitution has been made may, instead of accepting such alternative GOVERNMENT GAZETIE, 25 NOVEMBER 1994 No. 16106 27 RESTITUTION OF LAND RIGHTS ACT, 1994 Act No. 22, 1994 relief, within 30 days after the date on which the order was made, apply in writing to the Minister to be registered as a preferential claimant to benefit from any State support programme for housing and the allocation and development of rural land. 5 (2) The Court may in addition to the orders contemplated in section 123 of the Constitution- ( a) determine conditions which must be fulfilled before a right in land can 10 15 20 be restored or granted to a claimant; (c) (b) if a claimant is required to make any payment before the right in question is restored or granted, determine the amount to be paid and the manner of payment, including the time for payment; if the claimant is a community, determine the manner in which the rights are to be held or.the compensation is to be paid or held; (d) recommend to the Minister that a claimant be given priority access to State resources in the allocation and development of housing and land in the appropriate development programme; (e) give any other directive as to how its orders are to be carried out, including the setting of time limits for the implementation of its orders; (f) make an order in respect of compensatory land granted at the time of the dispossession of the land in question; (g) make such orders for costs as it deems just. (3) An order contemplated in subsection (2)(c) shall be subject to such conditions as the Court considers necessary to ensure that all the dispossessed members of the community concerned shall have access to the land or the 25 compensation in question, on a basis which is fair and non-discriminatory towards any person, including a woman and a tenant, and which ensures the accountability of the person who holds the land or compensation on behalf of the community to the members of such community. ( 4) The Court's power to order the restitution of a right in land or to grant a 30 right in alternative state-owned land shall include the power to adjust the nature of the right previously held by the claimant, and to determine the form of title under which the right may be held in future. - (5) If the Court orders the State to expropriate land or a right in land in order to re~tore it to a claimant, the Minister shall expropriate such land or right in 35 accordance, mutatis mutandis, with the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975): Provided that the owner of such land or right shall be entitled to the payment of just and equitable compensation, determined either by agreement or by the Court according to the principles laid· down in section 28(3) of the Constitution: Provided further that the procedure to be followed by 40 the Court in the determination of such compensation shall be as provided in sections 24 and 32 of this Act. - 45 Verify source ↗
No. 119 o£1993).
AI-assisted research summary: The Court may direct how land rights are determined, must tell the Registrar to remove a temporary note after making an order, and an affected lawful occupier may be entitled to compensation or seek review-related relief.
45 No. 119 o£1993). (6) In making any award of land, the Court may direct that the rights of individuals to that land shall be determined in accordance with the procedures set out in the Distribution and Transfer. of Certain State Land Act, 1993 (Act _ (7} An ·order of the Court shall have the same force as an order of the Supreme Court for the purposes of the Deeds Registries Act, 1937 (Act No. 47 of 1937) . . (8) Upon making an order, the Court shall direct the Registrar concenied to remove any temporary note entered in his or her records in respect of the land · . · · 50 in terms of section 11(6)(b). - (9) Any state-owned land which is held under a lease or similar arrangement shall be deemed to be in the possession· of the State for the purposes of section 123(1)(ti) of the Constitution: Provided that, if the Court orders the restitution of a right in such land, the lawful occupier thereof shall be entitled to just and 55 equitable compensation determined either by agreement or by the Court according to the principles laid down in section 28(3) of the Constitution. · (10) An interested party which is of the opinion that an order of the Court has not been fully or timeously complied with may make application to the Court for further directives or orders in that regard. GOVERNMENT GAZETIE, 25 NOVEMBER 1994 RESTITUTION OF LAND RIGIITS ACT, 1994 No. 16106 29 Act No. 22, 1994 Review of decisions of Commission 36. (1) Any party aggrieved by any act of or decision · · of the· Commission or any functionary acting or purportedly acting in terms of this Act may apply to have such act or decision reviewed by the Court.· (2) The Court shall exercise all of the Supreme Court's powers of review with regard to such matters, to the exclusion of the provincial and local divisions thereof. 5 Appeals from Court 37. (1) Appeals against decisions by the Court shall lie either to the - 10 Verify source ↗
Constitutional Court or to the Appellate Division of the Supreme Court.
AI-assisted research summary: The Court must decide, in each case, which court an appeal should go to.
10 Constitutional Court or to the Appellate Division of the Supreme Court. (2) The Court shall in each case determine the court to which an appeal shall . ~. Decisions of Court a matter of public record - 38 Verify source ↗
The decisions of the Court shall be a matter of public record on the same
AI-assisted research summary: The Court’s decisions must be public records, on the same basis as Supreme Court decisions.
38. The decisions of the Court shall be a matter of public record on the same 15 basis as decisions of the Supreme Court. CHAPTER IV Miscellaneous Provisions Register of public land
Part
CHAPTER IV
- 39 Verify source ↗
In order to facilitate the work of the Commission and the Court, the
AI-assisted research summary: This section says it is intended to facilitate the work of the Commission and the Court.
39. In order to facilitate the work of the Commission and the Court, the - 20 Verify source ↗
Minister may take all necessary steps to compile a register of public land, which
AI-assisted research summary: The Minister may take steps to compile a public land register, and claimants and prospective claimants may inspect it.
20 Minister may take all necessary steps to compile a register of public land, which register shall be open to inspection by claimants and prospective claimants. ·Regulations 25 - 40 Verify source ↗
The Minister may make regulations regarding-
AI-assisted research summary: The Minister may make regulations about matters this Act requires or allows to be prescribed, and more generally about anything needed to achieve the Act’s objects.
40. The Minister may make regulations regarding- ( a) any matter required or permitted to be prescribed in terms of this Act; and (b) generally, all matters which in his or her opinion are necessary or expedient to be prescribed in order to achieve the objects of this Act. Repeal or laws, and savings 41. (1) Sections .88A up to and including 96A of the Abolition of Racially - 30 Verify source ↗
Based Land Measures Act, 1991 (Act No. 108 of 1991), and the Abolition of
AI-assisted research summary: This provision repeals two named land measures Acts and starts a rule for applications lodged before this Act commenced.
30 Based Land Measures Act, 1991 (Act No. 108 of 1991), and the Abolition of Racially Based Land Measures Amendment Act, 1993 (Act No. 110 of 1993), are hereby repealed. (2) If an application was, before the commencement of this Act, lodged with the Commission on Land Allocation established in terms of section 89 of the - 35 Verify source ↗
Abolition of Racially Based Land Measures Act, 1991 (Act No. 108 of 1991),
AI-assisted research summary: The Minister may cover or waive transfer duty and certain fees for land transfers under this Act, and the regional land claims commissioner may require more information or waive procedures for certain applications.
35 Abolition of Racially Based Land Measures Act, 1991 (Act No. 108 of 1991), and that Commission has, before the commencement of this Act- ( a) made a recommendation in respect of such application, such applica tion shall on request of any interested party; or (b) not made any order or recommendation in respect of such application 40 such application shall, 45 subject to the provisions of subsection (3), be deemed to have been lodged with the Commission in accordance with the provisions of section 10(1). (3) The regional land claims commissioner having jurisdiction may- (a) direct any applicant in respect of an application referred to in subsec- tion (2) to provide the Commission with any further information relevant to the application; and · (b) in respect of an application referred to in subsection (2}, waive compliance with any or all of the procedures prescribed by or under this Act. GOVERNMENT GAZE1TE, 25 NOVEMBER 1994 RESliTUTION OF LAND RIGHTS ACI", 1994 No. 16106 31 Act No. 22, 1994 Transfer duty and fees · 42. (1) The Minister may direct that any transfer duty or other fees payable by a claimant in respect of any transfer of land or of a right in land in terms of this Act shall be defrayed in full or in part from money appropriated by Parliament 5 for that purpose. (2) The Minister may, in consultation with the Minister of Finance, direct that no transfer duty, stamp duty or other fees contemplated in subsection (1) shall be paid in respect of a particular transfer under this Act. Short title and commencement 10 43. (1) This Act shall be called the Restitution of Land Rights Act, 1994, and shall come into operation on a date fixed by the President by proclamation in the Gazette. (2) Different dates may be fixed in respect of different Chapters of this Act.
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