The Minister for Agriculture and Land Affairs intends to introduce the Restitution of Land Rights Amendment Bill, 2003 in the National Assembly in 2003. The Biil as it is to be introduced together with a Memorandum Bill, are hereby published on the Objects of the in terms ofRule 241(1) of the Rules of the National Assembly.
[ ] Words in bold type in square brackets indicate omissions from existingenactments. Words underlined with a solid line indicate insertions in existing enactments.
To amend the Restitutionof Land Rights Act, 1994, so as to empower the Minister of Land Affairs, to purchase, acquire in any other manner or expropriate land, a portion of land ora right in land forthe purposes of the restoration or awardof such land, portion of land or right in land toa claimant orfor any other land reform purpose and to provide for matters connected therewith.
Amendment of section 35 of Act 22 of 1994, as amended by section 20 of Act 78 of 1996, section 25 of Act 63 of 1997 and section9 of Act 18 of 1999 1. Section 35 of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994) (hereinafter referred to as the principalAct), is hereby amended by the deletion of subsections (5) and (5A).
Amendment of section 42A of Act 22 of 1994 as inserted by section 30 of Act 63of 1997 2.
"(I) Where, in termsof this Act, [the Cowrt orders the State to acquire or expropriate] land is acquired or extxowiated in order to restore or award the land to a claimant, [the claimant shall become owner or thereof on the date of such acquisition expropriation] such land vests in the State which must transfer it to the claimant.".
Amendment of section 42Dof Act 22of 1994,as inserted by section 30 of Act 63 of 1997 and substitutedby section 12 of Act 18 of 1999 3. Section 420 of the principal Actis hereby amended by the deletion of paragraph (d)of subsection (1).
Insertion of section 42E in Act 22of 1994 4.
portionof land or a riqht in land for the purposes of the restoration or awardof such land, portion of land or riqht in land to a claimant in terms of this Act and for any other land reform purpose.
Subject to this Act, the Expropriation Act, 1975 (Act 63 of 1975) shall with the -necessary chanaes applvto an expropriation under this Act and anv reference to the Minister of Public Works in that Act must be construed asa reference to the Ministerfor the purposes of such expropriation.
4)The rules of the Court made under section32 shall aovern the procedure of the Court in the determination of comDensationin terms of subsection (3).
The provisionsof section 42D (3)to (6) shall with the necessarv chanaesapply in respect of the acquisition of land.
This Act shall be called the Restitution of Land Rights Amendment Act,2003.
In terms of the Presidential directive, the Commission on Restitutionof Land Rights hastill the end of 2005 to finalise all land claims. Up to now the emphasis has been on the settlement of urban claims. It is now however imperative that the processof settling rural claims must be accelerated.
In 1999 the present procedure whereby land claims could be resolved by way of settlement agreements outside the Court in terms of section 42D of the Restitutionof Land Rights Act, 1994 (Act22 of 1994)("the Restitution Act") was introduced by the Land Restitution and Reform Laws Amendment Act, 1999 (Act 18 of 1999). The present insufficient provisions granting the Minister with the agreement of all interested parties, powers to acquire or expropriate land for the purposes of restitution of rights in land without the necessity of a Court Order, were created in sections35(5A) and 42D(l)(d) of the Restitution Act.
The provisions of the Restitution Act regarding acquisition or expropriation of land without recourse to the Court are unsatisfactory and delay the restitution process.
It isclearfromsection 42D(l)(d) of the RestitutionAct that in the absence of a Court Orderthepower of the Minister to acquire or expropriate(andforrestitutionpurposes is limited to circumstances where an agreement had been reached between "the parties who are interested in the claim" (see the introductory portion of section 42D(1)). In a case where a landowner is therefore not willing to sell it means in effect that in the absence of a Court Order the Minister will only be able to expropriate if agreement is reached with the landowner as one of the interested parties that the land is to be expropriated.
There is no reasonwhytheMinistershould be forced to obtain the agreement of all the interested partiesin terms of section 42D(1) ifland is needed for restitution purposes.
The aim of the Restitution of Land Rights Amendment Bill, 2003, is to address the above-mentioned issues outlined in paragraph 1.
In terms of the newsection 42E of the Restitution Act, inserted by clause 4 of the Bill, the Minister of Land Affairs may purchase, acquire subsection (1)).
(Act 63of 1975), will, with the necessary changes, applyto all expropriations under the Restitution Act.
The constitutional rights of the land owner or holder of the right in land section 42E(3) of the RestitutionAct. It is expressly provided that section 25(3) of the Constitution of the Republic of South Africa, 1996 compensation paid for the land and the time and manner of payment must therefore be just and equitable.
It is not possible at this stage to determine the exact financial implications for the State. The amendments may have additional financial implications should the Minister decide to expropriate.
4.1 The following instanceslpersons were consulted.
The Commission onRestitution of Land Rights will inform relevant stakeholders, through a concertedpublicrtydrive of theamendment, once enacted.
The State Law Advisers and the Department of Land Affairs areof the view that this Bill must be dealt with in accordancewith the procedures established by Section 75 of the Constitution, since it cohtainno provisions to which the procedures as set out in Section 74 or Section 76 of the Constitution apply.