- Restitution officials published dozens of privately owned farms as claimed land, despite there being no valid land claim in existence at all.
- The unlawful gazette notice froze owners’ rights for years, preventing sales, development, and transfers without any lawful authority.
- The Land Claims Court later forced the State to undo the publication, declared the process illegal, and ordered the government to pay high legal costs.
The State committed a serious restitution blunder when it published dozens of privately owned farms as claimed land, even though no lawful land claim existed to justify the intrusion.
Through a government gazette notice issued in October 2020, restitution officials listed multiple farms as subject to land claims on behalf of the Maphalala Community, immediately placing private owners under legal restriction and prolonged uncertainty.
From the moment the notice appeared, lawful owners were no longer free to sell, mortgage, develop, or transfer their land without official consent, their property rights frozen through no fault of their own, and without any valid claim ever having been lodged against their farms. For years, the affected landowners lived under the shadow of a restitution process that had no lawful foundation, until the Land Claims Court was eventually called upon to intervene.
Judge MT Ncube ruled that the publication had no legal basis, and that the State had acted outside its statutory powers when it gazetted the applicants’ farms and referred the matter to court. The gazette notice was declared a nullity from the outset, and the State was ordered to undo the publication and remove all the affected farms, restoring the owners’ full control over property that had been unlawfully placed under restriction for years.
How an unlawful notice suspended lawful ownership
The blunder originated when the Regional Land Claims Commission decided to publish an alleged claim by the Maphalala Community in the Government Gazette, listing dozens of farms belonging to 18 different owners across the Bergville area.
Yet, the court found that there was never any valid restitution claim capable of supporting the publication, because the documents relied upon by the Commission failed to meet the most basic statutory requirements of the Restitution of Land Rights Act.
The Commission relied on two documents, the first being a faxed letter sent on 31 December 1998, the final day for lodging restitution claims, and the second a formal claim form completed only in October 1999, nearly 10 months after the statutory deadline had expired. Crucially, the faxed letter contained no description of any land at all, while the later claim form was completed after the cut-off date and was never properly stamped as received by the Commission.
“The description of the land claimed appeared for the first time on annexure GJ2, dated 12 October 1999,” Judge Ncube recorded, adding that “the claim form, annexure GJ2, was completed after 31 December 1998.” Under the Restitution of Land Rights Act, a claim must include a description of the land and must be lodged before the deadline, and without those elements, the court held that there was simply no lawful claim on which the State could act.
The consequence was stark. By publishing the notice in the absence of any valid claim, the State had interfered with property rights, suspended ownership freedoms, and placed farms under restriction without any lawful authority. Lawful owners were subjected to years of limitation and uncertainty, not because their land had been properly claimed, but because officials had acted on documents that could never establish a restitution process in law.
A stinging rebuke to restitution officials
Against that background, the Land Claims Court delivered a stinging rebuke to restitution officials for publishing private land without any lawful foundation. “Publication of land in the Government Gazette as a claimed land has serious consequences for the owner,” Judge Ncube wrote, emphasising that “he can no longer deal with the claimed land as he pleases and without the consent of the Regional Land Claims Commissioner.”
The judgment makes clear that publication is not a neutral administrative step, but a profound interference with property rights that reshapes ownership overnight, and that where no lawful claim exists, publication is not merely irregular, but irrational and unlawful.
The scale of the failure was further exposed by the concession that one of the farms listed in the Gazette, Vaal Bank 1266, had never been claimed by the community at all, yet had still been included in the notice and subjected to years of unlawful restriction. “The publication of farms not claimed is not rationally justifiable and should be set aside,” the court held, confirming that listing land never claimed under the statute was indefensible and destructive of property rights.
Gazette notice and referral wiped away
In a sweeping order, the court declared that the inclusion of the applicants’ farms in the Gazette “is declared to be a nullity,” and that the decision to publish them “is reviewed and set aside.” The referral of the claim to the Land Claims Court was likewise declared illegal and removed from the roll, bringing an end to proceedings that should never have been launched in the first place.
Even the Commission’s own attempt to withdraw the referral and restart the investigation process was rejected, with Judge Ncube making clear that “no amount of investigation will validate such an invalid claim.” The State has now been ordered to publish a corrective notice, removing every affected farm from the Gazette and formally undoing the unlawful publication.
Costs follow the State’s mistake
Applying the constitutional principle that private litigants should not bear the cost of defending themselves against unlawful state action, the court ordered the Minister, the Chief Land Claims Commissioner, and the Regional Land Claims Commissioner jointly and severally to pay the applicants’ costs.
The order includes the costs of two counsel, extensive consultations, archival research, and the opposed hearing, reflecting the heavy burden imposed on landowners who were forced to defend their rights against a restitution process that should never have existed. “These restitution claims are not authorised,” Judge Ncube observed, finding no justification for shielding the State from the financial consequences of its own conduct.
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