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07 April 2021 | Story Dr Marda Horn and Anthea-Lee September-Van Huffel | Photo Pixabay
The Minister of Justice, Constitutional Development and Correctional Services, together with the Minister of Agriculture, Rural Development and Land Reform announced on 1 March 2021 that the Land Court Bill (“the Bill”) has been approved by the cabinet for submission to parliament. Although the Bill has not been published, the announcement made reference to a number of important provisions in the Bill in as far as it could impact on the effective determination of disputes around land in our country.

Should the Bill and specifically the proposed provisions in the Bill be properly implemented, this may prove to be an important step towards increasing the effectiveness of land reform and the alleviation of socioeconomic challenges that are closely linked with the unequal distribution of land and land resources. The Bill originates from the recommendations of the Presidential Advisory Panel on Land Reform and Agriculture (“the advisory panel”). This panel delivered a thought-provoking and sometimes scathing report on the current state of land reform in South Africa. It recommended that the Land Claims Court should become the Land Court, with added powers and functions. An inter-ministerial committee was consequently tasked to oversee the implementation of the recommendations of the advisory panel, which has culminated in the proposed Bill. The Bill seeks to address the backlog of land claims still to be heard by the Land Claims Court and to accelerate the land reform programme as a whole. Although the land reform process showed a promising start initially, only modest progress has been made thus far. It is therefore evident that the role and effective functioning of the proposed Land Court and Land Court of Appeal, as set out in the Bill, could be central to the future success of the land reform programme. 

The Bill must still follow the parliamentary process

At this stage it should be noted that the Bill has only been approved by the cabinet and must still follow the usual parliamentary process for the processing and adoption of draft legislation. The Bill is to be tabled before parliament by the Executive, represented by the Minister of Justice, Constitutional Development and Correctional Services, Ronald Lamola, and the Minister of Agriculture, Rural Development and Land Reform (“DALRRD”) Thoko Didiza, as the Bill affects both ministries. Parliamentary portfolio committees will be afforded the opportunity to be briefed on the Bill by the ministers, and will advertise the Bill for public comments, followed by the first round of public participation which ordinarily includes oral representations. The relevant government departments must then respond to the public representations made during the public participation process. The Bill will then be amended as required by the committee/s and adopted. This is called the B version of the Bill. The Bill will then serve before the National Assembly for voting. If approved by the National Assembly, the Bill will then be submitted to the National Council of Provinces (“the NCOP”) and possibly be subjected to a second round of public participation at provincial level. If the NCOP makes further amendments to the Bill it will be referred back to the National Assembly which may either approve or reject it. If the Bill is approved by Parliament it will then be sent to the President of the Republic of South Africa (‘the President”) who is expected to sign (assent to) the Bill in approval of its enactment and indicate a date on which it is to come into operation. The President, however, may also refer the Bill back to parliament if he deems it to be partially or wholly unconstitutional. Therefore, although announced by the ministers in the beginning of March – the Bill still has a long road ahead before it comes into operation. It seems, however, as if the ministries wish to fast-track the Bill by arguing that it is only an amendment to current land claims legislation. It is unclear whether this argument will be accepted by parliament. 

A specialist Land Court of Appeal is an exciting prospect 

Nonetheless, the changes proposed in the Bill to the existing Land Claims Court are encouraging and amount to an entire overhaul in the approach to land matters by the Land Claims Court, the jurisdictional structure and the policy framework that informs courts adjudicating land matters. The Bill proposes the establishment of a specialist Land Court and Land Court of Appeal, the former having the status equivalent to a high court and the latter equivalent to that of the Supreme Court of Appeal. The creation of a specialist Land Court of Appeal is an exciting prospect for legal practitioners, because this will mean the development of land specific jurisprudence that can be relied upon as precedent. This will hopefully foster a greater uniformity, consistency and quality in court decisions on land-reform matters, which in turn should promote the expediency in the adjudication process. In contrast, while the existing Land Claims Court has the same status as a high court, any appeal against decisions of the Land Claims Court is referred to the Supreme Court of Appeal which does not specialise in land-reform matters and is therefore often guided by the decision of the Land Claims Court. The Land Court will be comprised of one permanent judge president and four permanent judges. Presently the Land Claims Court has one judge president and three judges. The idea behind the advisory panel’s recommendations is that a permanent sitting of judges dedicated to land-related matters will result in stronger judicial oversight, reduce corruption and improve settlement agreements that reflect equitable and just compensatory outcomes. 

In addition, the Bill, if implemented, provides the Land Court and Land Court of Appeal with greater jurisdiction than that presently enjoyed by the Land Claims Court. The rules of the Land Claims Court, as a creature of the Land Restitution Act which predominantly deals with restitution matters, only allows for arbitration as an alternative dispute resolution mechanism. The Land Court on the other hand will enjoy extensive jurisdiction in that it is empowered to address all three legs of land reform, namely: Restitution, redistribution and security of tenure. This extension of jurisdictional scope also includes a wide range of non-judicial powers such as mediation, which could very well lessen instances of unnecessary or frivolous litigation. It is not clear from the current information whether the idea is that the judges should act as mediators in disputes. In foreign jurisdictions such as Germany this is allowed, provided that the same judge then does not adjudicate a matter in which he played a role as mediator. This aspect should be carefully considered before finalisation of the Bill. 

The Bill is welcomed as a step in the right direction

Other non-judicial powers of the Land Court would include the discretion to review settlement agreements. Seemingly this would then include matters related to expropriation without compensation in terms of the amendment to the Constitution and the Expropriation Bill also under consideration by parliament, since compensation forms part of the content of settlement agreements. Furthermore, the position of claimants could be greatly improved by the allocation of earmarked funding intended for the legal representation of claimants through the Legal Aid Board, as envisaged by the terms of the proposed Bill. In the media statement by the minister, it was indicated that Legal Aid South Africa should take over the role of the Land Rights Management Facility and will be responsible for the legal representation of claimants. Minister Didiza has indicated that the objective behind the financial support is to provide speedy resolution of land-related matters and crucial financial support to indigent claimants. It is not clear from the information currently available whether legal representation by Legal Aid will also be made accessible to defendants. A situation where defendants are not able to exercise their rights due to financial constraints could also hamper the attainment of land justice and the speedy resolution of disputes.

Although it is too early in the process to pronounce on the success of this proposed legislation, the Bill is welcomed as a step in the right direction to address the culminating land-reform crisis. The reality is that the current land-reform system is intrinsically flawed and untenable. There are too many land-related disputes for the existing Land Claims Court in its present form to adjudicate on. Furthermore the complexity of the legal disputes is overburdening the administrative function, and the capacity of the DALRRD. More than half of the recommendations made by the advisory panel are related to the functions of DALRRD. It is therefore no surprise that it appears that the proposed specialist land courts will assume control of certain functions that have been crippling the department’s administration.

In our opinion, the Bill will therefore enhance the jurisdictional powers of the court to successfully deal with all three processes related to land reform and consequently jurisprudence on land-reform matters could be strengthened whilst the application of sound legal and economic principles can be ensured.
                        
Anthea-Lee September-Van Huffel is a lecturer in the Department of Private Law in the Faculty of Law.
Anthea-Lee September-Van Huffel is a lecturer in the Department of Private Law in the Faculty of Law.
Dr Marda Horn is a senior lecturer in the Department of Private Law in the Faculty of Law.
Dr Marda Horn is a senior lecturer in the Department of Private Law in the Faculty of Law.

News Archive

UFS awards degrees at autumn graduation ceremony
2009-04-28

The University of the Free State’s (UFS) autumn diploma and graduation ceremony took place this week in the Arena on the South Campus in Bloemfontein (formerly known as the Vista Campus). This arrangement has been made because of the large-scale renovations to the Callie Human Centre on the Main Campus.

Friday, 24 April 2009
Faculties of Health Sciences, Law and Theology Diploma ceremony

Law student’s achievement excels 80%
Four Law students obtained the LLB degree at this year’s autumn graduation ceremony of the University of the Free State (UFS) summa cum laude and were awarded the Moritz Bobbert Medal. They are from the left: Lezelle Olivier (80%), Albert Nell (91%) and Amanda du Toit (83%). LiFeng Chien were absent during the photo.




UFS awards degrees at autumn graduation ceremony
Today 331 students and five doctorates in the Faculties of Health Sciences, Law and Theology received their qualifications at this year’s autumn graduation ceremony of the University of the Free State (UFS). Michael Molahloe (left) and Mamokete Ntholeng both received their LL.B. degrees in the Faculty of Law.
Photo: Leonie Bolleurs




This year’s autumn graduation ceremony of the University of the Free State (UFS) was held on the South Campus. From the group of students that received their qualification from the Faculty of Law, is from the left: Janine Jonson, Anneska van der Spoel, Andrea Coetzer, and Jo-Mari Visser.
Photo: Leonie Bolleurs



Students in Nursing receive their degree
A group of students from the Faculty of Health Sciences received their B.Soc.Sc. degree at this year’s autumn graduation ceremony of the University of the Free State (UFS). At the occasion were, from the left: Ruth Beukes, Basetsana Panana, and Dipontsheng Tsolo.
Photo: Leonie Bolleurs



UFS Faculty of Health Sciences awards degrees
Liezl Swanepoel (left) and Heide van der Merwe received their BSocSC degrees at the University of the Free State’s (UFS) autumn graduation ceremony.
Photo: Leonie Bolleurs

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Thursday, 23 April 2009
Faculty of Natural and Agricultural Sciences & Chancellor’s Dinner



UFS awards unique doctorate
Dr Rodney Douglas, who had never obtained any formal undergraduate qualification, this week received a Ph.D. in Geography and Geology during the autumn graduation ceremony of the University of the Free State (UFS). The name of his thesis is “A new perspective on the geohydrological and surface processes controlling the depositional environment at the Florisbad archaeozoological site”. He had four papers published in journals that were related to his thesis. He obtained his South African Museums Association Diploma in Biology in 1988 and his M.Sc. in Environmental Biology at the University of Natal, Durban in 1992. He was accepted as a Master's degree student at that university based on research that he had conducted on, amongst others, the diets of reptiles. He has been working at the Department of Herpetology at the National Museum, Bloemfontein since 1984, where he holds the post of Principal Museum Scientist and Head of Department.
Photo: Leonie Bolleurs



Chancellor’s Dinner: UFS honours doctoral students
Last night, the University of the Free State (UFS) honoured students who had received their Ph.D. degrees at the autumn graduation ceremony this past week, at the Chancellor’s Dinner. A total of 25 doctorates were awarded during the respective ceremonies. Attending the occasion were, from the left: Dr Annemarie Kühn, Ph.D. in Chemistry, Prof. Jeanet Conradie, Department of Chemistry at the UFS and Dr Kühn’s promoter, Prof. Teuns Verschoor, Acting Rector of the UFS, Prof. Corene de Wet, Department of Comparative Education and Education Management at the UFS, and Dr Mafu Rakometsi, Chief Executive Officer of Umalusi and former head of the Free State Department of Education who received a Ph.D. in History. Prof. De Wet is Dr Rakometsi's co-promoter and the late Prof. Leo Barnard, former Head of the Department of History at the UFS, who passed away at the beginning of April 2009, was his promoter.
Photo: Leonie Bolleurs



Mrs Annemarie Kilian, Mr Willem Kilian (BSc. Hons) and Prof Stephanus Kilian
Photo: Mangaliso Radebe



Mr Jaco van der Merwe, Mr Renico Pretorius and Mr Rion Terblanche (all BSc. Quantity Survying)
Photo: Mangaliso Radebe



Ms Mamakoanyane Amelia Shata (BSc. Genetics and BSc. Hons. Plant Molecular Biology) and Mrs Maente Adelinah Shata.
Photo: Mangaliso Radebe



Mr Maurice Ambrose and Mr Owen Monk (both BSc. Quantity Survying).
Photo: Mangaliso Radebe



Ms Tobeka Mehlomekhulu (Lecturer: Department of Geography), Mr Neo Mokgosi (BSc. Hons. Genetics) and Ms Nwabisa Mehlomekhulu (BSc. Hons. Food Science).
Photo: Mangaliso Radebe



Mr John Mdane, Mr Fana Mdane (BSc. Information Technology) and Mrs Agnes Mdane
Photo: Mangaliso Radebe



Mr Kevin Vermaak (BSc. Hons. Geohydrology) and Ms Michelle Steenkamp (BSc. Hons. Geology).
Photo: Mangaliso Radebe

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21 April 2009
Faculty of Economic and Management Sciences



Prof. Magda Fourie's daughter graduates
Nadia Fourie, daughter of Prof. Magda Fourie, former Vice-Rector: Academic Planning at the UFS and now Vice-Rector: Teaching at Stellenbosch University, received the B.Com. Law degree.
Photo: Lacea Loader



724 degrees were awarded during the ceremony of the Faculty of Economic and Management Sciences. Here are, from the left: Simon Serutla, B.Com. Accounting, Lourencia Hamuaka, B.Com. Honours in Financial Economics and Investment Management, Sunet Opperman, B. Accounting, and Yolandi Greyling, B. Accounting.
Photo: Lacea Loader



Students in the Faculty of Economic and Management Sciences graduated this week during the University of the Free State's (UFS) autumn graduation ceremony. Altogether 724 degrees were conferred. Here are, from the left: Marie-Louise Lombard, B.Com. Law, Adriaan van der Merwe, B.Com. Law and member of the Student Representative Council (Legal and Constitutional Affairs), Basanio Ncike, B.Com. Economics, and Richard Schooling, B.Com. Banking.
Photo: Lacea Loader



Center for Accounting honours top achievers
The Centre for Accounting at the University of the Free State (UFS) honoured the top ten students in the third-year B.Com. and B.Com. Hons. programmes respectively during this week's autumn graduation ceremony. Here are, from the left: Prof. Ronell Britz, Chairperson of the centre, Nils Kotze, first place in the B.Com. third-year group, and Madri Victor, first place in the B.Com. Hons. group; back: Prof. Hentie van Wyk, Programme Director: Accountant Training.
Photo: Stephen Collett



Accounting firms in Free State help with recognition of top achievers
Accounting firms in the Free State have contributed to a fund at the University of the Free State’s (UFS) Centre for Accounting to give recognition to top achievers in the third-year programme for the B.Com. and B.Com Hons. degrees respectively this week. It is evidence of the good relationship that exists between the Centre and the South African Institute for Chartered Accountants (SAICA), Free State. Here, from the left, are: Mr Pieter Clase, CoetzeeSmit Chartered Accountants, Mr Oswald Wentworth, KPMG, Mr Ettienne van Niekerk, PricewaterhouseCoopers, Herman Leach, Gobodo Inc. Chartered Accountants, and Mr Stefan Strydom, Havenga, Rossouw & Viljoen; front: Mr Ian Smit, Enslins Bloemfontein, Ms Thelma Crossman, Mazars, and Ms Daphline O'Brien, Ernst & Young.
Photo: Stephen Collett

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20 April 2009
Faculty of Education, Faculty of the Humanities.



CHESD awards 15 masters degrees
A group of 15 students received the Structured M.A. (Higher Education Studies) of the Centre for Higher Education Studies and Development (CHESD) at this year’s autumn graduation ceremony of the University of the Free State (UFS). This is the biggest group in the centre's history to be awarded master’s degrees, while four of the students received distinctions. Also of interest is that six of the 15 students already have doctoral degrees. At the occasion were, from the left: Dr Dipane Hlalele, Qwaqwa Campus, Ms Liesl Hoare, Central Univeristy of Technology, Welkom Campus (best achiever), and Dr Fanus van Tonder, Programme Director: Higher Education Studies and Research, CHESD. Ms Hoare received the Deans medal in the Faculty of the Humanities as the best master’s graduate student at the graduation ceremony. At the faculty’s prize function she also received the Kovsie-Alumni Trust award as the best M.A student in the faculty. She also received the CHESD Prize for the best achievement in the Structured M.A. (Higher Education Studies).
Photo: Leonie Bolleurs



UFS awards degrees at autumn graduation ceremony
Five hundred and eighty six degrees and nine doctorates were awarded this week during this year's autumn graduation ceremony on the South Campus of the University of the Free State (UFS) to students in the Faculty of the Humanities. At the occasion were, from the left: Nicola Bekker, Madré van der Merwe and Esté Scholtz. All three the ladies received the qualification B.A. Language Practice.
Photo: Lacea Loader



This year’s autumn graduation ceremony of the University of the Free State (UFS) is held on the South Campus in Bloemfontein. Today a group of students from the Programme: Governance and Political Transformation in the Faculty of the Humanities received their qualification. From the left, front are: Dr Tania Coetzee, Head of the Programme: Governance and Political Transformation, and Mr Itumeleng Liba, Chief Operation Officer at CENTLEC; back: Mr Kennett Sinclair, Vice-Chairperson of COPE in the Northern Cape, Ms Nicole Joannou, Goldfields Business and Catering, and Mr Tembeni Lobe from Bloemfontein.
Photo: Lacea Loader



Some of the students who received their qualifications during this week's graduation ceremony of the Faculty of the Humanities were, from the left: Shu-Jung Chan, B.Mus. Hons., Brian Gxavu, B.Mus., and Mpolokeng Lepote, B.A. Media Studies.
Photo: Lacea Loader



UFS’s CHESD awards doctoral degree
Ms Mardi Delport (middle), Assistant Director: Media and Communications at the Central University of Technology received her Doctoral degree at this year’s autumn graduation ceremony of the University of the Free State (UFS). The title of her thesis is: “An internal communication model for the Central University of Technology, Free State as a multi-campus institution”. With her are her promoter Prof. Driekie Hay (left), Vice-Rector: Academic Planning, and her co-promoter, Prof. Annette Wilkinson (right) from the Centre for Higher Education Studies and Development (CHESD) at the UFS.
Photo: Leonie Bolleurs 

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