Submitted by the National Employers Association of South Africa (Neasa)
The Portfolio Committee on Justice and Correctional Products and services, on Would possibly per chance per chance well also 26, 2021, invited public comments from stakeholders and fervent persons on the draft Land Court Invoice.
According to Parliament’s explanatory summary, the Land Court Invoice goals to resolve the challenges that had been skilled under the Restitution of Land Rights Act, together with backlogs in land claims and dispute resolution mechanisms, and can beget to additionally contribute to the govt’s implementation of its Land Reform Programme. This Court will also unbiased be inclined to be conscious the applications inside the context of the ANC’s Land Reform Programme, which in the raze will also unbiased beget an undue and wrong impact on the consequence.
The intended motive of the Invoice is to provide for the establishment of a Land Court and a Land Court of Attraction; further, to create provision for the administration and judicial functions of the Land Court and Land Court of Attraction; provide for budgetary issues; provide for the exclusive jurisdiction of the Land Court and Land Court of Attraction for all land-associated issues; provide for mediation and arbitration procedures; amend sure guidelines concerning to the adjudication of land issues by other courts, and provide for all issues connected therewith.
Neasa’s submission highlights the contentious aspects and provisions of the Invoice concerning to the sole/exclusive jurisdiction of the court docket in land issues, and the guidelines amended when it comes to the Invoice concerning the court docket’s position in issues relating to the eviction of unlawful occupiers of land on farms. Neasa additionally comments on the admissibility of proof when it comes to the Invoice, and the legislative route of utilized in the creation of the Invoice. Below, in summary, these aspects are expanded on.
The sole/exclusive jurisdiction of the court docket provided for in the proposed Invoice, entails that the Land Court can beget both large and exclusive jurisdiction over land disputes. The Court is commonly inundated with a huge selection of issues relating to land, together with those coping with expropriation, all over large geographical areas. The Court will consequently no longer be in a position to wait on in the existing backlog and motive further extend in the finalisation of land disputes. This large exclusive jurisdiction will therefore curtail the court docket’s effective functionality.
Furthermore, when it comes to these amendments, jurisdiction will vest solely in the Land Court in admire of, inter alia, issues pertaining to the eviction of occupiers of agricultural land. The Land Court will also unbiased no longer beget the skill to take care of these considerations, quickly or in any admire, in all magisterial districts. It would invariably philosophize farmers easy obtain steady of entry to to courts for these applications. The concurrent jurisdiction of the Court and the Magistrates’ Courts, in issues relating to evictions on agricultural land have to therefore be maintained. That is a matter of mammoth concern to farmers and therefore prioritised by NEASA in its submission on the Invoice.
Neasa submits that the customary, extensively permitted guidelines of proof ought to be utilized in the proposed court docket and that the provision allowing a discretion by the Court to permit any proof, which would possibly per chance per chance on the complete be inadmissible, ought to be rejected, as relaxed guidelines of proof leave room for loads abuse. More stringent guidelines of proof ought to be utilized by the Court in direct to provide protection to property rights.
The legislative route of employed, culminating in the formal introduction of the Invoice in Parliament, became once devoid of the traditional departmental consultative route of which requires the Department to invite public comments on proposed draft guidelines in increase of participatory constitutional democracy. No such comments had been invited and the consultation route of which is in a position to now apply is fully with Parliament and no longer with the Department. Public participation in the legislation-making route of, in any admire phases, is pivotal in a free and democratic nation. The circumvention of the departmental public consultation route of objects a harmful precedent as to the formulation whereby guidelines are made.
To be conscious Neasa’s submission, click on here.