Dealing with land claims

The pending reopening of the land claims window for a further five years could see a flood of claims being lodged on South African farms. With more than 7 000 land claims yet to be researched and gazetted by government, farmers are advised to familiarise themselves with the process and their rights. Lindi van Rooyen spoke to Annelize Crosby, legal advisor for Agri SA.

Dealing with land claims
Annelize Crosby
Photo: Courtesy of Agri SA

There are two possible types of claim that can be made on land: a restitution claim and a labour tenant’s claim.  According to Annelize Crosby, legal advisor for Agri SA, labour tenant claims are mostly limited to Mpumalanga and KwaZulu-Natal, while restitution may be claimed anywhere in the country. She stresses that the two types should be dealt with differently.

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Restitution claims
Because of the research that must be conducted to determine the validity of a claim, it takes time to investigate and publish it.
“The reopening of the claims process will further frustrate the finalisation of investigations on existing claims,” explains Crosby. “This means that a farmer may not be aware of a claim lodged against his property, or any future claims that may be lodged before the amended cut-off date.” She adds that the Land Claims Commission will publish only those claims that it considers valid.

“This means that not all claims which were lodged will necessarily be published. The valid claims are printed in the Government Gazette, published every Friday.” In terms of the Land Claims Act, the landowner must be notified of the claim in writing as soon as it has been gazetted. The landowner will then have 60 days to indicate whether he or she agrees it is a valid claim, or wishes to oppose it.

“To decide whether or not the claim is valid, the landowner will have to do a bit of homework, and establish independently whether the claim is valid and not simply accept the Land Claims Commissioner’s evaluation in this regard,” Crosby advises. A claim will be deemed valid if the claimants were deprived of their land rights (not necessarily ownership) after 1913, if the purpose of the deprivation was racial discrimination, or if the claimants did not receive just and equitable compensation when they lost the land.

“In many cases, the claimants or their ancestors were given compensatory land. If this was the case, the quantity and quality of the land they lost must be compared to that of the compensatory land, to decide whether it was just and equitable,” says Crosby. It is important to note that the landowner is entitled to all information held by the Land Claims Commission or the Department of Rural Development and Land Reform. To gain access to this information, the landowner needs to prove that it is required to protect or exercise his rights.

If the landowner decides that the claim is not valid, the Land Claims Commissioner should be notified and the basis for the objection should be set out in brief. “The Land Claims Commissioner may then decide to withdraw the claim. If he decides not to do so, the owner can appeal to the Chief Land Claims Commissioner,” explains Crosby.

If he too decides that the claim should proceed, the landowner can then take the matter to court. This could cost in excess of R200 000, but Crosby points out that if a number of landowners are affected, they can pool their resources and pay the legal fees jointly. She advises landowners to select their legal team carefully, making sure they have prior experience in restitution matters.

If the landowner decides not to oppose the claim, the commissioner must be informed that the land will be transferred on the condition of fair compensation. The state will then send a valuer to value the land and the constitutional formula will be applied to calculate just and equitable compensation. Crosby says that first- generation owners who bought land directly from the state will be prejudiced in this way. Any soft loans and the fact that the price paid might have been below market value would therefore be taken into account.

If the landowner is dissatisfied with the amount of compensation offered, he can appoint his own valuer to do a second valuation. If the valuations or the calculation of just and equitable compensation differ greatly, the state can be requested to arrange a meeting for the two valuers in an attempt to reach consensus. If they are unable to do so, the court will have the final say. Once again the landowner will have to incur legal costs in an attempt to prove his case.

If an agreement on compensation is reached with the state, landowners are urged not to sign any agreement without making sure that their rights are properly protected. Crosby adds that a number of problems have been experienced with the payment of compensation. “In one case, the farmers only received their compensation a year after the agreed date. Farmers should therefore insist on a clause guaranteeing the payment of interest. Other penalty clauses can also be built into the agreement in case the state does not fulfil the terms of the agreement. It’s advisable to have an experienced attorney go through the agreement before signing,” she says.

Although it has not yet been confirmed by the Land Claims Court, landowners will in all likelihood be entitled to compensation for financial losses resulting from the expropriation or loss of land, according to Crosby. This would include the cost of moving and resettlement.

“Remember, any attempt to unlawfully prevent, obstruct, or unduly influence another party from exercising his rights in terms of the Restitution of Land Rights Act, is regarded as an offence in terms of the new amendment bill,” she points out. “Should a landowner or claimant be convicted of this offence, a court may impose a period of imprisonment not less than five months or an appropriate fine.”

Labour tenant claims
Crosby explains that labour tenant claims are normally the result of some kind of dispute between the landowner and labour tenants. “But a claim can be lodged even where no dispute exists between the owner and labour tenants.” A labour tenant can lodge a claim with the land reform and rural development director-general (DG) who is obliged to inform the landowner of such a claim without delay. The owner can be notified by registered mail or the sheriff of the court can serve a notice.

In the notice, the owner will be requested to supply the DG with information about the land. The owner must then notify the DG in writing, within 30 days, whether the person concerned is a labour tenant. If the landowner denies that the claimant is a labour tenant, he must motivate his answer.

Should the landowner fail to do so within the 30 days, the person will be deemed to be a labour tenant. If the landowner denies that the person is a labour tenant, any of the parties may request that the matter be referred to court. If the owner admits that the person is a labour tenant, he may propose alternative ways to settle the matter. For example, he can propose that the labour tenant obtains rights on another part of the farm, or in the same area.

Such a proposal must be made within a month of the date on which the owner acknowledged that the person was a labour tenant. A mediator can then be appointed by the land reform department to assist the parties with negotiations and reaching an agreement. If no agreement can be reached, the claimant may proceed with his original claim. An agreement will only be valid if the DG certifies that it is fair. If no agreement can be reached the matter can either be decided by a court, or an arbitrator can be appointed.

Crosby notes that if the court or arbitrator decides to award the land claimed to the labour tenant, the landowner will be compensated. “The court or arbitrator will determine the amount, timing and nature of the compensation. If the compensation is not paid as agreed, the labour tenant will be issued with a notice to pay. If he still has not paid after three months, the owner may apply to the court to nullify the order awarding the land to the labour tenant.”

When is a person a labour tenant?

A person who resides on a farm and qualifies in terms of the definition is a labour tenant. The definition contains three elements and a person must satisfy all three to qualify as a labour tenant:

  • The person must reside on the land, or at least have the right to reside there.
  • The person must have the right to use cropping or grazing land on the farm, and in consideration of such right, provide labour to the owner or lessee of the farm (or have done so in the past).
  • The person’s parent or grandparent must have resided on a farm where he had cropping or grazing rights and provided labour to the owner or lessee. Labour tenancy is most prevalent in Mpumalanga and KwaZulu-Natal. The definition specifically excludes farm workers. If the landowner can prove that the person is a farm worker, he cannot also be a labour tenant. 

A farm worker is defined as a person employed on a farm in terms of a contract of employment, which provides that he must render his services personally, and is compensated mostly in cash and kind, and not predominantly with right to occupy and use the land. The definition implies that the value of the cash and ‘kind’ payment must be balanced against the value of the rights of residence, grazing and cropping. It is very difficult to value the right of residence, cropping and grazing.

Contact Agri SA on 012 643 3400.

This article was originally published in the 11 October 2013 issue of Farmer’s Weekly.