How to defend yourself against a Land Claim

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- Featured article by LAWYERS-ONLINE.CO.ZA - September 2019

You don’t need to invest in a private army and most importantly, and as the law stands now, you are not at risk of losing your rights to your property. There has been a lot of fear -mongering in the news regarding land claims, illegal occupations and land distribution and therefore we would like to offer some light on the subject.

Inform and Stay Informed

Should you see an act of illegal occupation, it is vital to report to this to SAPS immediately in order for them to take the necessary legal action against this. Secondly, always stay in the loop with your community and know what’s happening with the land surrounding you – in case a piece of land that has been marked for distribution becomes occupied and you panic for no reason.

It is Trespassing

An illegal land occupation on your property can still be prosecuted as an act of trespassing, as long as you the owner have informed the necessary authorities and the occupier that what they are doing is illegal.

If you have not made this clear, it could fall under the umbrella of undisturbed occupation, which does require a court order in order to evict the person/s.

Also note that in terms of the Fencing Act, if your fence or property has been damaged this is a crime and you have to right to report it and insist on an investigation.

Eviction

As much as our government is working to ensure that everyone in the country has access to land and housing, it still carries a responsibility to protect the rights of private land owners in the case of a large scale invasion.

In fact there is legislation set in place to guard against this in the form of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act, 1998, which currently falls under the administration of the Department of Rural Development and Land Reform.

Under this act, you as a private land owner may:

• Contact a lawyer to approach the court for an eviction.
• Contact the Department of Rural Development and Land Reform in the case where it involves access to agricultural land.
• Work with the department to find suitable alternative land for the occupiers.

The Constitution Works for You

We’ve all heard about our constitutional rights, and this also applies to your property rights. Section 25(1) clearly states that “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”, therefore that no one may expropriate land but the state as determined by the Expropriation Act of 1975.

As you can see your property is still firmly protected by the laws of our land, and you have access to the highest law in the land to prove that.

But What About Land Claims?

The issue of land claims is not as scary as it sounds, and at its core, redistribution of land only seeks to return the land to those persons who had their land illegally taken from them during Apartheid or through the Native Land Act of 1913.

It is also worth noting, that it is not as easy as walking up to the current owner claiming the land back. As with most land disputes, the courts have the final say a land must be brought to the Land Claims Court, where both parties can argue their cases.

And these courts do not adjudicate land claims easily, in fact, they have on many occasions ruled in favour of the current land owner. Secondly this is a very slow process due to the enormous importance placed on due diligence in these matters, and as a result, thousands of claims are currently unresolved.

So what should you do if someone brings a land claim against your property? Well, don’t panic, and work with your legal team, the courts and the claimant to settle the matter. Yes in some cases land may be returned to the rightful owners, but the judiciary is not in the business of arbitrarily stripping people of their property rights.

If you would like help with property matters, we would love to hear from you.