January 28, 2004

Disputed land bill to face court challenge

The Communal Land Rights Bill is now certain to face a Constitutional Court challenge for giving the minister sweeping powers to grant constitutionally enshrined land
rights. Last year the land affairs department obtained legal opinion on the constitutionality of the bill, following suggestions that the constitutional right to security of tenure was effectively being granted to the land affairs minister as a discretionary power. The committee approved the bill without substantially changing the powers previously granted to the minister or the way in which they could be exercised. Legal head at the land affairs department Colin Brocker said that there was a framework in the bill within which the minister would act, and this meant the bill was not unconstitutional.
Aninka Claassens, a consultant for the Programme for Land and Agrarian Studies at the University of the Western Cape, said that approval of the bill in its present form meant there would be Constitutional Court challenges. "The heart of the challenge is that the constitution requires a law to provide for security of tenure, and this bill allows (for) ministerial discretion in matters of security of tenure," Claassens said. According to her, the bill had gone through in a great rush, and the fundamental issue of enhanced powers for traditional leaders had not been fully debated. The bill gives traditional councils the authority of land administration committees. This would allow chiefs to administer land bought by individuals and communal property associations. The bill was also not clear on whether the land administration committees or the tribal councils took precedence, and under what circumstances. (Business Day, Johannesburg)


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