The Concerned Land Claimants' Organisation of Port Elizabeth v The Port Elizabeth Land and Community Restoration Association and Others

PELCRA, a community organization formed in 1993, represented land claimants dispossessed of residential land in Fairview and Salisbury Park areas of Port Elizabeth under the Community Development Act 3 of 1966. In February 2000, PELCRA entered into a framework agreement with the Minister of Land Affairs and other government respondents under section 42D of the Restitution of Land Rights Act 22 of 1994. The agreement provided for collective community restitution through development of the earmarked land into commercial and residential erven with bulk services, residential dwellings and community facilities, with each claimant entitled to approximately R30,000 compensation or equivalent in a plot and dwelling. The total development cost was R41.92 million. Initially all claimants welcomed the terms. However, in July 2001, when a layout plan was displayed, some claimants became concerned that much of undeveloped land was allocated for commercial purposes and high-density housing, leaving less than half for residential allocation to claimants, with stands much smaller than original properties. In August 2001, aggrieved claimants formed a breakaway group (the applicant) and sought to have the framework agreement set aside. After unsuccessful attempts with the Minister, Commissioner, and Development Tribunal, they approached the Land Claims Court in July 2003. The Land Claims Court dismissed the application and refused leave to appeal. The Supreme Court of Appeal also refused a petition for leave to appeal.

• Whether the framework agreement is inconsistent with section 25(7) of the Constitution, which provides that persons dispossessed of property are entitled to restitution of that property or equitable redress
• Whether a person or community dispossessed of land is entitled to insist on restitution of the original property as against other equitable redress
• Whether the framework agreement unfairly discriminates between claimants whose land remained available and those whose land had been developed, in violation of section 9(3) of the Constitution
• Whether it is in the interests of justice to grant direct access to the Constitutional Court under Rule 18
• Whether the application should be treated as an application for leave to appeal under Rule 19 against the Land Claims Court decision
• Whether the Minister's decision to conclude the framework agreement is susceptible to judicial review
• Whether members of the applicant have standing to challenge the framework agreement

The application was dismissed. No order as to costs was made, as although the applicant misconceived its remedy, it sought to enforce admitted constitutional rights to land restitution.

Section 25(7) of the Constitution does not confer an absolute right on dispossessed persons or communities to insist on restoration of their original land. The right is to restitution or equitable redress, with the form and manner to be determined by legislation. The Restitution of Land Rights Act gives the Minister wide discretion in concluding settlement agreements with claimants, providing for land, compensation, or both, with terms the Minister considers appropriate. Neither claimants nor communities may demand return of original land as of right. Individual claimants who do not subscribe to community framework agreements under section 42D remain entitled to pursue individual claims for equitable redress under the Act. A section 42D agreement does not confer or deny the right to restitution but merely creates an additional mechanism for restitution once the Minister is satisfied that a claimant is entitled to restitution under section 2 of the Act.

The Court expressed the view that the applicant and its members likely had sufficient interest to establish standing, notwithstanding that they represented a splinter group from PELCRA, as they were genuine land claimants whose names appeared on the list of claimants in the framework agreement. The Court did not definitively determine this issue as it was unnecessary given the dismissal on other grounds. The Court noted it could not determine on the papers the extent to which members of the applicant have claims for equitable compensation or whether any had waived rights by agreeing to the framework agreement, indicating these matters would need to be determined by another forum in accordance with the Act. The Court assumed in the applicant's favor that the agreement concluded by the Minister was susceptible to judicial review, without definitively deciding this issue.

This case clarifies the scope and nature of the constitutional right to land restitution under section 25(7) of the Constitution. It establishes that dispossessed persons or communities do not have an absolute right to insist on restoration of their original land, but rather a right to restitution or equitable redress in the form and manner provided by legislation. The judgment affirms the wide discretion given to the Minister and claimants in negotiating settlement agreements under section 42D of the Restitution of Land Rights Act, subject to the requirement that community agreements provide fair and non-discriminatory access. It confirms that individual claimants are not bound by community agreements and may pursue individual claims. The case also provides guidance on when direct access to the Constitutional Court is appropriate, emphasizing the importance of utilizing specialist courts like the Land Claims Court. The judgment recognizes the practical realities of land restitution, acknowledging that patterns of land ownership, use and development have changed drastically over the 80+ years since 1913, requiring flexible and context-specific approaches to restitution.