South Africa to set up new land court – which will allow ‘hearsay’ evidence on land claims

A draft copy of the new Land Court Bill has been published, detailing the government’s plans to establish a specialist Land Court as well as a Land Court of Appeal.

The new courts are specifically aimed at accelerating the country’s land reform programme as well as resolving such as backlogs and disputes around land claims.

Justice and Correctional Services minister Ronald Lamola said that the bill seeks to address the systemic hurdles that make it difficult for land claimants to obtain land restitution.

However, the bill is likely to face some controversy as it will allows potential claimants to present evidence, including oral evidence, which it considers relevant and cogent, whether or not such evidence would be admissible in any other court of law.

This includes ‘hearsay evidence’ regarding the circumstances surrounding the dispossession of a land right or rights, and the rules governing the allocation and occupation of land within a claimant community at the time of such dispossession.

Lamola said that this will allow families to rely on oral history and the existence of elders with knowledge of description, location, and extent of land which their descendants previously occupied.

The bill also allows for expert evidence regarding historical and anthropological facts relevant to any particular land claim.

The minister said that the bill will also create a policy framework to ensure that land reform is guided by sound legal and economic principles and contributes to the country’s investment objectives and job creation initiatives,

Other issues which are set to be covered by the bill include:

  • The Land Claims Court be conferred into a new Land Court to adjudicate on all land-related matters, and not only restitution;
  • The court must be given additional responsibilities, both judicial and extra functions, such as conflict resolution and mediation;
  • The court must have a functional approach that is modelled on negotiation before litigation on matters such as Expropriation Without Compensation, which is proposed to Parliament in the Expropriation Bill;
  • The panel recommended that the Land Court include the appointment of a permanent judge president and four permanent judges;
  • The Land Court should also be required to check that settlement agreements give just and equitable compensation to landowners, in line with Section 25 and the new Expropriation Act, when it is enacted.

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South Africa to set up new land court – which will allow ‘hearsay’ evidence on land claims