NCOP must ditch deeply flawed Land Court Bill – IRR
28 September 2022
The Institute of Race Relations (IRR) calls on the National Council of Provinces to turn down the deeply flawed Land Court Bill, approved with record haste by the National Assembly this week.
In its formal submissions, the IRR has shown why the Bill is a direct attack on the independence of the judiciary, and identified the draft law’s multiple deficiencies, including some that render it unconstitutional. This Bill will have a wide-ranging impact, as the Land Court will preside over land disputes and all eviction challenges in urban, semi-urban and rural situations.
Yesterday the National Assembly voted on and passed the Land Court Bill, just a week after having received the Bill from Parliament’s Committee on Justice and Correctional Services.
The IRR has highlighted six major deficiencies:
No proper Socio-Economic Impact Assessment (SEIA) was conducted and made available to the public, even though this is required to legitimize the public participation process;
The Bill requires that judges “must…be representative in terms of race and gender”. This is inconsistent with Section 174 of the Constitution’s requirement that, first and foremost, judges must be “appropriately qualified” people who are “fit and proper” to serve on the Bench. Demographic considerations for the judiciary are, constitutionally, considered as secondary and to be applied in a “broad” manner, which the Bill transgresses;
Two “assessors” may be present in any case and may overrule judges in adjudicating “upon any question of fact”. “Assessors” are appointed through an unspecified process which is left up to the Minister of Justice and Correctional Services in a manner that is inconsistent with the standing requirements for securing judges in an independent judiciary. This undermines the rule of law, the supremacy of which is guaranteed by Section 1(c) of the Constitution. It also makes a mockery of Section 34 of the Constitution, which gives everyone the right to have legal disputes decided by independent and impartial courts or similar tribunals;
Evidence can be admitted to the Land Court that would not “be admissible in any other court of law”, according to Section 22(1) of the Bill. In addition, “hearsay evidence” can be given whatever “weight” the Land Court “deems appropriate”;
The Bill establishes a Land Court of Appeal that will be, except for the Constitutional Court, the final court of appeal for Land Court judgments. This excludes the Supreme Court of Appeal, despite its expertise. The Bill also says the Constitutional Court may only hear an appeal “if such an appeal is allowed by national legislation”, giving the legislature a blank check to lock out the Constitutional Court too; and
Section 53(2)(e) of the Bill states that the relevant Minister can pass regulations to “facilitate the resolution of disputes through mediation” that revoke “the right of any party to be represented” legally in those proceedings. This undermines the Rule of Law, which is meant to be guaranteed by Chapter 1 of the Constitution.
Said IRR Head of Campaigns Gabriel Crouse: “The Land Court Bill may as well be called the Kangaroo Court Bill. Think of the way the EFF acts in Parliament, then imagine that each red overall had a gavel to crack down on the heads of his or her enemies. This Bill comes very close to doing exactly that.”
There is no doubt that land reform is in trouble. Something is in the way of efficiently handling the last remaining land restitution cases involving those who were directly dispossessed by apartheid decades ago. Moreover, something is in the way of black farmers developing a growing rural economy. The “Motlanthe Commission” explicitly rejected the thought that this “something” was the Rule of Law or the Constitution. However, since the elevation of President Cyril Ramaphosa, the ANC has either insisted that the Constitution must be changed, or has attempted to transgress the Constitution without amendment, as the Land Court Bill does.
The IRR has proposed a credible alternative to existing land policy without corrupting basic human rights, including property rights. Its rural land plan is called “Ipulazi” and has been available since 2019. https://irr.org.za/reports/
To start with, the government should privatise the vast majority of state-owned land, most of which is currently squalid and dilapidating, and grant title deeds to individual owners. Second, cheap credit must be extended to the state’s preferred beneficiaries. Third, extension services and training should be commissioned from genuine industry experts. The state’s primary focus should be on improving infrastructure, which includes allowing the private sector to buy in where state incapacity has already been proven.
Essential to a peaceful and prosperous rural South Africa is a zero tolerance policy towards land grabs. The Land Court Bill is the opposite of that.
Issued by Gabriel Crouse, IRR Head of Campaigns, 28 September 2022
