MEDIA RELEASE: LHR to set precedent in post-settlement support with Baphiring land claim

Lawyers for Human Rights is pushing to set a land reform precedent in post-settlement support by which future land claims will follow.

LHR on Thursday made submissions in the Supreme Court of Appeal in a bid to have an earlier decision overturned relating to the Baphring community that is trying to have tribal land returned.

The Baphiring case was punted by the SCA as one of the first to set a precedent for how communities will be settled in the future on land restored to them through the restitution process. It is LHR’s hope that this case will set the precedent so that future land claims will not be settled without a proper plan in place. The Baphiring community led evidence in the Land Claims Court about the requirements and standard of such plans, which differ remarkably from what the Department of Rural Development and Land Reform is currently offering. As it stands, expert evaluators have estimated necessary post-settlement support at R40-million while the Department is only offering R2.6-million.

The North West community is trying to appeal a 2010 decision that found land restoration unfeasible because the state attorney claimed they could not afford it. The community is fighting to have their land returned to them after being forced from their property over 40 years ago. They had originally paid for the land in the 1880s, giving them the strongest claim to the land.

At the heart of this legal bid is the issue of the feasibility of restoration. The SCA must decide whether the land is too expensive to be bought back from the current landowners and whether the State can afford post-settlement support.

A Business Day article this week highlighted that the government has spent R69-billion on land reform since 1994, with only 8% of the targeted land being redistributed. Government’s original plan was to redistribute 30% of the land by next year. This move has since been abandoned. This flies in the face of President Jacob Zuma’s promise during his State of the Nation Address this year to focus efforts on post-settlement support. The justices acknowledged that nearly all restoration cases failed due to a lack of support and planning once land had been returned.

LHR and the State must now conduct a preliminary meeting to discuss issues which must be addressed in post-settlement planning. This will be submitted to the court at the beginning of August. The judges sent a strong message to the State that the country is sitting on a “time bomb” because of settlement failures and that the court would step in if the state did not start to deliver. The justices further remarked about the “appalling manner” in which the State had dealt with the Baphiring case.

LHR has argued that restoration is feasible because the market value of the land doesn’t post an obstacle to the affordability of restoration. There is also no evidence that the restoration will cause social disruption. Another R65-million is being asked for post-settlement support.

The Department has been put in a tight spot over its continual delays and filing of incomplete documents.