Land Court Bill threatens property rights, IRR warns NCOP

16 November 2022

Economic freedom indices consistently show that countries that respect property rights experience less poverty, lower infant mortality, higher life expectancy, more gender equality, and higher levels of happiness.

And yet, as the Institute of Race Relations (IRR) warns in its submission on the Land Court Bill to the National Council of Provinces, the Bill forms part of a broad anti-property-rights agenda in government.

For this reason, the IRR persists in its opposition to the Bill.

The IRR recommends that the Land Court Bill be abandoned, and replaced with a commitment by government to uphold private property rights by limiting the confiscatory power of the state.

The Bill has been revised since its journey through the National Assembly. Among the changes is the abandonment of the creation of a ‘Land Appeal Court’. The new Bill also gives concurrent jurisdiction to the Land Court and Magistrates’ Courts, as opposed to the initial idea for the Land Court to have exclusive jurisdiction on land-related matters. The flawed provisions relating to court-ordered arbitration have similarly been removed.

Despite these welcome revisions, the Land Court Bill remains deeply misguided.

Martin van Staden, IRR Deputy Head of Policy Research, explains:

‘The Bill is part of the ANC government’s malicious agenda to water down constitutionally entrenched private property rights. The Bill, read alongside the Expropriation Bill, represents a clear scheme to make it significantly easier for government to seize property. With the establishment of the Land Court, government hopes to have a judicial branch that is sympathetic to this agenda, and which will not frustrate it in the name of protecting ordinary South Africans’ property rights.’

This sympathy is likely to be gained through two dangerous provisions in the Bill: lay assessors who can override the judge on questions of fact, and the watering down of the rules of evidence.

The Bill provides for the appointment of two assessors to assist Land Court judges. These assessors do not need to be legally qualified, but must merely be ‘fit and proper’ and comply with ministerial regulations. When cases are heard by a judge and two assessors, the two assessors would be able to override the presiding judge on all questions of fact – which could include such issues as the amount of compensation to be paid.

There is a risk that land activists could be appointed as Land Court assessors.

Additionally, the Bill allows the Land Court to admit oral evidence, ‘whether or not such evidence would be admissible in any other court of law’. The Court may additionally take account of hearsay evidence.

Given the fraught, politicised discourse around land in South Africa, it is unlikely that land cases – particularly that relate to expropriation, redistribution, and land claims – will be given hearings that adhere to the tried and tested principles of fairness and due process.

Dr Anthea Jeffery, IRR Head of Policy Research, writes in the Institute’s initial submission:

‘The Expropriation Bill, along with the Land Court Bill itself, are aimed at undermining private property rights, reversing the home- and other ownership that millions of black people have gained since 1970s, and confining all South Africans over time to uncertain rights of “access” to state land that will be far less valuable to them than individual title.’

The IRR has additionally requested that the Bill be reclassified. At present, it is classified, or ‘tagged’, as a section 75 bill, whereas it is more appropriately dealt with as a section 76 bill. Section 75 of the Constitution concerns the adoption of bills that do not affect the provinces, whereas section 76 bills do concern the provinces. Because of the manifest constitutional interest provinces have in land reform, it is clear to the IRR that the Land Court Bill affects the provinces.

Reclassification is not merely cosmetic.

Depending on how a bill is tagged, a different process must take place in the National Council of Provinces. For section 75 bills, delegates in the National Council vote as 90 individuals, whereas for section 76 bills, delegates vote as nine provincial delegations. Different procedures also apply where the National Council makes amendments to section 76 bills.

Furthermore, the public consultation process is tainted if the public are misled into believing that a particular bill does not affect provinces when in fact it does. Public participation is predicated on the public having been properly informed on the nature of the bill to which they are responding.

The IRR’s submission, drafted by Dr Anthea Jeffery and revised by Martin van Staden, may be accessed here.

Issued by Martin van Staden, Deputy Head of Policy Research, 16 November 2022