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Joburg South land claim: Why it’s business as usual for most homeowners

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A land claim that affects hundreds of individuals and companies in the South of Johannesburg and Ekurhuleni, lodged in 1995 by the Bakwena Ba Mare a Phogole tribe, was gazetted on November 4th 2016.

The affected parties, which include entities such as The SA National Roads Agency Limited, the Rand Water Board, and Glenvista Country Club and multiple private individuals, all have until February 2 2017 to submit their representations.

When reading about land claims of this scale happening on your doorstep the first reaction as a homeowner is to become anxious for your property and your future. This is especially true when a lack of information and understanding of the process and what it means for homeowners and what they can and cannot do while the claim is underway is rife.

As a homeowner you want to be able to build the patio braai that you’ve been saving for, you want to complete the garden flat and start making an income from leasing it, but now you’ve read that you may be under a land claim and need to send a letter somewhere before you can start your December reno-project, what’s more, you’re not even sure if you will be able to proceed as planned.

Making sense of it all

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Mike Fontes, senior partner at MSF Attorneys, who is representing some of the affected property owners, says that although entire residential suburbs are potentially affected (Kibler Park, Brakendowns, Naturena as an example) he does not know of any affected land owners who has been prevented from selling, leasing, or rezoning of their land as a result of the on-going land claim.

“The Regional Land Claims Commissioner of Gauteng is in the process of sending every individual or affected land owner a letter informing them of the claim. That should help that all affected land owners are aware of the claim,” he says. “Regardless, as far as my knowledge goes, no land owners have been unable to sell or renovate on their property as a result of the claim.”

According to Fontes it is important to make a distinction between a homeowner wanting to sell, exchange, donate, lease, subdivide or rezone their land and a property owner intending to remove or destroy/damage any improvement upon the land. In the first instance only a notice is required, while a property owner will need actual consent from the Commissioner before being able to remove/destroy any improvements on the land.

To use the example given previously, if you want to build a patio braai you simply need to submit the notice a month in advance but if a farmer, affected by  a land claim, wants to remove a dam on the farm he will need to submit a request and cannot do anything before this is approved by the Commissioner.

The relevant law is section 11(7) of the Restitution of Lands Right Act 22 of 1994:

11(7) Once a notice has been published in respect of any land –

(a)   no person may in an improper manner obstruct the passage of the claim;

(aA) no person may sell, exchange, donate, lease, subdivide, rezone or develop the land in question without having given the regional land claims commissioner one month’s written notice of his or her intention to do so, and, where such notice was not given in respect of – 

(i) any sale, exchange, donation, lease, subdivision or rezoning of land and the Court is satisfied that such sale, exchange, donation, lease, subdivision or rezoning was not done in good faith, the Court may set aside such sale, exchange, donation, lease, subdivision or rezoning or grant any other order it deems fit; 

(ii)(ii) any development of land and the Court is satisfied that such development was not done in good faith, the court may grant any order it deems fit;

(b)   no claimant who occupied the land in question at the date of commencement of this Act may be evicted from the said land without the written authority of the Chief Land Claims Commissioner; 

(c)    no person shall in any manner whatsoever remove or cause to be removed, destroy or cause to be destroyed or damage or cause to be damaged, any improvements upon the land without the written authority of the Chief Land Claims Commissioner;

(d)   no claimant or other person may enter upon and occupy the land without the permission of the owner or lawful occupier.”

The bottom line is that you do not need permission from the Commissioner to build your patio braai or sell your home. If a homeowner has given the required 30 days’ notice and has not heard from the commissioner then the proposed transaction may go ahead as planned.

Fontes reminds that the Commissioner does have powers of inspection if it believes any improvement on the land is likely to be removed, damaged or adversely destroyed as a result of the publication of such notice.

See Section 11(8) of the Act:-

 11(8) The regional land claims commissioner may, at any time after the publication of a notice contemplated in subsection (1), if he or she has reason to believe that any improvement on the land is likely to be removed, damaged or destroyed or that any person resident on such land may be adversely affected as a result of the publication of such notice, authorise any person contemplated in section 8 or 9 to enter upon such land for the purpose of drawing up an inventory of any assets on the land, a list of persons employed or resident on the land, or a report on the agricultural condition of the land and of any excavations, mining or prospecting thereon.”

“Generally only if landowners receive a communication from the Commissioner in those 30 days should they have any reason to stay the transaction,” explains Fontes. “The Commissioner seldom will oppose normal commercial transactions by land owners. The Commissioner will only take an interest in a transaction if it believes, or has information, it is intended to obstruct the passage of a claim or is otherwise mala fide {undertaken in bad faith to obstruct the claim}”

Affected and want to still transact on your property?

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Building your home? Make sure you have these ducks in a row. Click the pic

If you are leasing, in the process of developing or subdividing your land, you can continue as normal provided you have given the Commissioner the required 30 days’ written notice in advance of the intended transaction.

If a property owner is in the process of selling should be able to complete the transaction, provided of course the 30 days’ notice is given. However, in addition to the written notice it is important that you disclose the existence of the land claim; failure to do so may entitle the purchaser to void the contract on the grounds of a material non-disclosure.

Written notice of any intended transaction can be given to:

The Regional Land Claims Commissioner: Gauteng

Private Bag X03

ARCADIA

0007

Or hand delivered to No.09 Bailey Lane, Arcadia, Pretoria 0007

Or emailed to Bakwena.Claim@drdlr.gov.za

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ungerermariette@gmail.com

Mariette Steynberg is a qualified economist with a post-graduate diploma in financial planning. She has enjoyed working on holistic financial plans for clients in various stages of life, as well as a development economist assessing the socioeconomic impacts of new developments. When she is not working, Mariette enjoys parenting her quirky, delightful toddler girl. Cloth diapering, Eskimo kisses and the importance of reading to your child are all causes close to her heart. Mariette is passionate about financial education and hopes to use the experience she has gained to share knowledge with HomeTimes’ readership. Her goal is to provide information that is implementable by everyone.

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