Land claims finally withdrawn in government gazette
13 May 2009
On 22 July 2008 the Land Claims Court declared the Mountainlands land claims “unlawful, invalid and of no force or effect” and ordered the Mpumalanga Land Claims Commissioner to to publish a notice in the government gazette to withdraw the claims within 14 days (See articles below). Nearly ten months later this withdrawal was finally published, only after the landowners obtained another court order which would have seen the land claims commissioner sent to prison for contempt of court.
Despite having been reminded and warned to comply with the initial court order several times, the commissioner still failed to comply with the order. She only published the withdrawal in government gazette no 32212 of 15 May 2009 (notice 466 of 2009). This was a mere three days after the landowners obtained another court order and a rule nisi for contempt of court against the commissioner for failing to comply with the initial order. Contempt of court is a criminal offence which would have had serious consequences for the commissioner in her personal capacity. It could also have led to her disbarment.
The landowners still have the three interdicts against the minister and the national and regional land claims commissioners to prevent further gazetting of the claims on their land (see below). Added to this they now also have two costs orders for the costs incurred in both the initial application as well as the contempt of court application.
Mountainlands is now finally free of any land claims but it is yet to be seen to what lengths the landowners will have to go to recover the costs awarded to them by the court.
Land claims on Mountainlands overturned by court
8 August 2008
The Mountainlands Nature Reserve can no longer be affected by land claims.
While a spurious “community” claim was created by the Mpumalanga Land Claims Commissioner and gazetted on the reserve in April 2007, it was successfully overturned by the landowners in the Land Claims Court on 22 July 2008. The court found the claim to be unlawful, invalid and of no force or effect. There is no longer any possibility of appeal so the ruling is final. The commissioner was ordered to publish a withdrawal of the land claim in the government gazette within 14 days.
The positive side of going through the onerous process of fighting the bogus claim is that the land claims commissioner‘s office had to reveal their files to the landowners of the reserve. In doing so the landowners were able to verify that there were no other known or as yet unknown claims on the reserve. This verification, together with the certificates issued by the commissioner to certify that there are no other claims as well as the court order, which prevents the five known claims from ever being gazetted on the landowners’ property, now creates certainty.
Only one possibly valid claim for five hectares of the state land section of the reserve now remains a prospect. This claim affects only a very small portion of the state land and has no impact on the private landowners or the future of the reserve. Through the Land Claims Court process, this claimant has further agreed that their family wish to receive monetary compensation rather than the land and that they further wish for the land to remain protected in the reserve.
The end result of this all is that the private landowners in the reserve are now the first in South Africa to have a court order protecting them from land claims being gazetted on their land. This is stipulated by three interdicts which the court issued against the Minister of Agriculture and Land Affairs and both the regional and national land claims commissioners, which also serves to protect the land owners against further incompetence of the minister or the commissioners.
For Mountainlands, this concludes the final chapter on land claims or the possibility of any such claims arising in future, and adds significantly tothe security of private investment on the reserve.
Judge Meer berates Mpumalanga land claims office
Desireé Rorke, Lowvelder, 8 August 2008
NELSPRUIT – A group of private and community landowners east of Barberton was last week vindicated in a ruling by the Land Claims Court, after their land were incorrectly gazetted by the Mpumalanga land claims commissioner.
Judge Yasmin Meer berated the regional land claims commissioner in frustration for his conduct and typified this application as being unnecessary and a waste of time and money for legitimate landowners.
Some of the farms gazetted belong to the Lomshiyo Trust, which it acquired through a land reform project and although the errors were brought to the commissioner’s attention by the land owners, he refused to rectify the mistake.
Attorney for the land owners, Mr Richard Spoor said in a media statement that the Land Claims Court made an order declaring the gazetted notices to be unlawful and of no force on July 22.
The court also ordered the land claims commission and the minister of agriculture and land affairs to pay the applicants costs. The application was unopposed.
In her closing comments, Judge Meer said that the landowners are forced to expend time, money and energy in bringing applications to court simply because the commissioner concerned failed to take the appropriate steps when matters such as this is brought to his attention. According to Meer there is an increase of unnecessary applications of this nature.
“In this case the commissioner consolidated five claims that, save for two which are actually by the same family, had no relation to each other.
He then compounded the error by gazetting land other than that claimed, in some instances land as much as 20 kilometres removed” Spoor said.
He added that no proper investigations were conducted by the commissioner’s office to validate the claims, some of which did not comply with requirements of the Act.
Despite repeated representations by the affected landowners, highlighting the gross errors, the commissioner failed for nearly a year to take any steps to correct the matter.
Spoor stated that this was an important victory and he hopes that it will assist in bringing some much needed direction to the way that land claims are handled in Mpumalanga. He went on to say, “In this case the commissioner’s failures not only prejudices the landowners who had to fight a patently bogus situation created solely by the commissioner’s office, but also jeopardised those claimants whose claims were actually valid if only they were dealt with properly and gazetted in the correct location.”
The final court order not only declared the commissioner’s decision as unlawful, but also prevents his office from ever again gazetting the claims on the present farms.
Three other interdicts were also issued, including against the minister of agriculture and land affairs to protect the landowners against future improper steps by the commissioner or the minister.
Despite several attempts by the Lowvelder to solicit such, the office of the land claims commissioner in Mpumalanga refrained from commenting.
Landowners had to conduct the research which the Mpumalanga commissioner failed to do. Here a witness is pointing out a site while landowners use their own GPS equipment to record the location.
Landowners’ case vindicated by court
Barberton Times, 6 August 2008
A group of private and community landowners east of Barberton in the Sheba siding area were this week vindicated in a ruling by the Land Claims Court.
According to Richard Spoor who represented the landowners, a land claim was incorrectly gazetted in respect of several farms by the Mpumalanga claims commissioner in April 2007. Some of these farms belong to the Lomshiyo Trust which it acquired through a land reform project. Although the errors were brought to the commissioner’s attention by the landowners, he refused to rectify the mistake.
On July 22, 2008 the Land Claims Court made an order declaring the gazetted notice to be unlawful, invalid and of no force or effect. The court also ordered the land claims commission and the minister of agriculture and land affairs to pay the applicants’ costs. The application was unopposed.
In her closing comments, Judge Yasmin Meer berated the Mpumalanga commissioner for his conduct in this case when she said: “It is extremely unfortunate that in this case, like so many others before this court, landowners and other affected persons are forced to expend time, money and energy in bringing applications to this court, simply because the regional land claims commissioner concerned, has not taken appropriate steps at the outset when letters are written and problems are brought to his attention. And increasingly applications like this one are being brought to court, in my view rather unnecessarily”.
The basis upon which the application was made was that:
- The Restitution of Land Rights Act does not provide for the commissioner to expand a claim beyond the land stipulated in the claim form. Inadequate research was done by the commissioner to validate claims.
- The practice of the commissioner to consolidate divergent claims into a single “community” claim and thereby to effectively expand the land size, number of beneficiaries or include other invalid claims under the auspices of such a consolidated claim, is unlawful.
- The Act provides a precise definition of what constitutes a “community” and this was again ignored by the commissioner despite several court cases having clarified the position in the past.
In this case the commissioner consolidated five claims that, save for two which are actually by the same family, had no relation to each other. The commissioner then compounded the error by gazetting land other than that claimed, in some instances land as much as 20 kilometres away.
No proper investigations were conducted by the commissioner’s office to validate the claims, some of which do not comply with the requirements of the Act.
Despite repeated representations by the affected landowners to the commissioner, highlighting all the errors, the commissioner failed for nearly a year to take any steps to correct the matter despite numerous undertakings to do so.
Spoor indicated afterwards that this was an important victory and he hopes that it will assist in bringing some desperately needed direction to the way that land claims are handled in Mpumalanga. “In this case the commissioner’s failures not only prejudiced the landowners who had to fight a patently bogus situation created solely by the commissioner’s office, but also jeopardised those claimants whose claims were actually valid if only they were dealt with properly and gazetted in the correct location.”
This was confirmed at court by Vusi Mabuza, one of the claimants, who supported the landowners’ application. He complimented the landowners for their constructive approach and exposing the failures of the commissioner’s office which has undermined the Mabuza family’s five hectare claim.
The final court order in the case not only declares the commissioner’s decision as unlawful, instructing them to withdraw the notice but also interdicts the commissioner, preventing his office from ever again gazetting the claims on the present farms. Three other interdicts were also issued, including against the minister of agriculture and land affairs to protect the landowners against future improper steps by the commissioner or the minister.
FURTHER INFORMATION
Download the contempt of court order and rule nisi – 12 May 2009 …