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Land lawyer writes to Zuma • The Mercury • 9 Sep 2009 • COLLEEN DARDAGAN BERTUS van der Merwe, a lawyer from Vryheid, who has specialised in land rights cases for the past 15 years and has more than 1 500 landowners, commercial farmers, corporate organisations and private companies on his books, has written an open letter to President Jacob Zuma, begging him to intervene to rescue land reform in the country. In the letter, he highlights the following issues: ● Failure by the regional Land Claims Commission to investigate and research claims properly and timeously. ● Refusal by the regional offices to respond to court orders. ● Claimant communities not having access to legal representation. ● Farmers have unfairly been blamed for causing delays in land reform. ● The question of the “ lack of budget on such a highpriority issue. Van der Merwe stated that the programme was on the verge of failure, and the manner in which it had been handled infringed on the constitutional rights of both claimants and landowners alike. Hundreds of thousands of hectares of highly productive agricultural land in mainly KwaZulu-Natal, Mpumalanga, Limpopo and the Eastern and Western Cape are under claim. In his letter, Van der Merwe said it was in the national interest that the president got involved to assist in finding solutions. “Most of the land claims were lodged more than 10 years ago. It took the Land Claims Commission more than five years to complete investigations into claims before they were published in the Government Gazette and in almost all cases disputes arose on their validity. It is also important to understand that the commission was not empowered to adjudicate on the validity of a claim – that was the responsibility of the Land Claims Court.” In light of this, Van der Merwe wrote that after many years of fruitless correspondence with the commission on behalf of his clients, he had to resort to expensive litigation to compel the government to complete its investigations and refer the claims to the court. According to statistics released by the Department of Rural Development and Land Reform, more than 60 000 restitution claims were lodged countrywide after 1994. The majority of those claims were in urban areas. “These were investigated first. For many years, the department neglected its duty to even start with the process of investigating the more important rural claims. “When it eventually did, the lack of competent staff and the absence of strong and capable leadership soon became apparent. Because of this, thousands of invalid claims have been validated and wrongly gazetted, while no proper research was done into the true merits of most of the claims. “Almost all our clients had to eventually approach the court with applications for orders to compel the various regional land claims commissioners to refer the land claims for adjudication. But because of the neglect by the staff in the regional offices, these processes were delayed for years on end. Numerous court orders, most of which were issued by consent between the state attorneys and ourselves, were ignored. Various applications for contempt of court orders against the regional land claims commissioners, and against the Chief Land Claims Commissioner, Blessing Mphela, are still pending. “The state attorney in Durban has repeatedly explained to us that her hands are tied because she cannot prepare the referral documentation to be issued by the registrar of the Land Claims Court because she has not received proper instructions fromthe staff at the regional commissioner’s office.” Van der Merwe said delays were also as a result of failure by the commissioners to provide legal representation for claimants. He said these inefficiencies had resulted in farmers being wrongly blamed for the slow pace of land reform. “These allegations are totally unfounded.We invite you, Mr President, to visit our offices where we will make our numerous files available to you so that you can see for yourself that to the contrary, landowners have never had any motive or inclination to delay processes.” According to a recent statement by the Minister of Rural Development and Land Reform, Gugile Mkwinti, more than R70 billion was required to conclude only the restitution process. “Can it be that the government really saw its way clear to only allocate R3.6bn to a priority issue?” wrote Van der Merwe. “All of us respect the constitutional rights of claimants to claim restitution. Hopefully, all of us also respect the right of landowners to dispute the validity of their land claims and that they have the right to be compensated when their properties are awarded to claimants.” Lack of competent staff has resulted in thousands of invalid claims being validated and wrongly gazetted -BERTUS VANDER MERWE