Balancing land restitution and public interest in South African socio-economic development: A critical appraisal of the restitution of land rights act

Abstract

The Restitution of Land Rights Act 22 of 1994 has thrown into sharp and uncomfortable focus competing claims from several traditional communities for the restitution of their rights, often over the same piece of land, situated within the environs of peri-urban and urban municipalities. Section 34 of the Restitution Act authorises a court, on application by a government body, and provided that set requirements are met, to direct that when a land claim is finally determined, the rights in the land or in part of the land shall not be restored to a claimant. If an order for non-restoration was made, a successful claimant would be entitled only to monetary or other equitable redress but not to the actual restoration of the land. The core contest between the claimant communities and the municipalities is whether it is in the public interest that the land the communities claim should not be restored to them, or whether the public would suffer substantial prejudice should a court refuse to make a non-restoration order ahead of the final determination of the claim. The extent to which public interest considerations operate to bar actual restoration of land has become a thorny issue in land reform. This contribution subjects Section 34 of the statute to a sustained appraisal in the light of trilogy of cases: Khosis, Community, Lohatla v Minister of Defence 2004 (5) SA 494 (SCA); Nkomazi Municipality v Ngomane of Lugedlane Community 2010 (3) All SA 563 (LCC) and Kwalindile Community v King Sabata Dalindyebo Municipality 2013 (6) SA 193 (CC).