The Makuleke Community

The Makuleke Community occupied approximately 23,700 hectares of land in the northern section of what is now the Kruger National Park for between 150 and 200 years. In 1969, the community was forcibly removed from the land as part of a transaction whereby the land was excised from the area administered by the South African Development Trust established under the Native Trust and Land Act 18 of 1936. The biggest part of the land was incorporated into the Kruger National Park, with the remainder incorporated into the Madimbo Corridor (used for border defence) and the homeland of Venda. The community was relocated to a portion of the farm Ntlhaveni 2 MU against their will. The removal was a result of racially discriminatory legislation and practices. On 20 December 1995, the Makuleke Community lodged a claim for restoration of the land under the Restitution of Land Rights Act 22 of 1994. It was common cause that the community complied with all requirements of section 2 of the Restitution Act. The claim was complex because the land had conservation importance, strategic border significance, mineral deposits, and public interest as part of a national park. The community claimed ownership of the land, not just the rights they held before removal. After mediation and negotiation involving multiple parties (including the Makuleke Community, South African National Parks, and various Ministers), the parties reached a settlement agreement.

• Whether the Court should make the settlement agreement an order of court when a matter is referred to it in terms of section 14(3) of the Restitution of Land Rights Act
• What is the Court's function and discretion when considering such a referral
• Whether the Makuleke Community is entitled to restitution in the form of full ownership of State land set aside for conservation purposes
• Whether section 35(4) of the Restitution Act permits adjustment of the nature of rights previously held by the claimant
• Whether the Court has jurisdiction to impose the specific restrictive conditions of title agreed by the parties
• Whether a resolution of Parliament excluding the land from the Kruger National Park is required before restoration can occur
• Whether all members of the community will have fair and non-discriminatory access to the land as required by section 35(3)
• Whether the settlement is consistent with the public interest and the factors listed in section 33 of the Restitution Act

The Court ordered that: (1) Subject to conditions, the State must restore the land (approximately 22,733 hectares) to the Makuleke Communal Property Association in full ownership after: registration of the Association, its ratification of the settlement agreement, and Parliamentary resolution excluding the land from Kruger National Park; (2) Restoration to be effected by Deed of Grant; (3) The Deed must be subject to restrictive title conditions regarding conservation use (no residential or agricultural use, land to be used solely for conservation and associated commercial activities, environmental impact assessments required for development, and pre-emptive rights in favour of South African National Parks); (4) The constitution of the Association must provide for membership of individuals forcibly removed in 1969 or their descendants who apply before 15 December 2003; (5) The order lapses if conditions are not fulfilled by the determined date. The settlement agreements were annexed to the order but the Court did not make the agreements themselves orders of court.

The binding legal principles established are: (1) When a settlement agreement is referred to the Land Claims Court under section 14(3) of the Restitution of Land Rights Act, the Court has discretion whether to make the agreement an order of court and is not obliged to do so merely because the parties request it; (2) The Court must apply a two-stage enquiry: first, whether the agreement and Regional Land Claims Commissioner's report entitle the claimant to the restitution provided for in the agreement; and second, whether the Court should adopt the precise terms of the agreement or make its own order based on the agreement and report; (3) The Court may refuse to make a settlement agreement an order of court where: it conflicts with public interest; cannot be justified under section 33 factors; the Court lacks jurisdiction; the agreement is invalid; interested parties have been excluded; or adopting the precise terms is undesirable for other reasons; (4) Section 35(4) of the Restitution Act permits the Court to adjust the nature of rights previously held by a claimant, including granting ownership to a community that did not have ownership before dispossession; (5) Restitution in the form of ownership of State land set aside for conservation can be ordered where appropriate restrictive conditions ensure the land continues to be used for conservation purposes, access is fair and non-discriminatory, and the public interest is protected; (6) In determining whether to order restitution and in what form, the Court must consider all factors in section 33 of the Restitution Act, including the desirability of remedying past human rights violations, requirements of equity and justice, feasibility, avoiding social disruption, and other relevant factors consistent with the Constitution.

The Court made several non-binding observations: (1) The Court expressed (without deciding) that it "seems" that compliance with section 35(3) (fair and non-discriminatory access) can be achieved through the requirements for communal property associations under the Communal Property Associations Act, whose constitutions must comply with principles of fairness, democracy, non-discrimination, transparency and accountability; (2) The Court specifically declined to decide whether a Parliamentary resolution under section 2(3) of the National Parks Act is always required before land forming part of a Schedule 1 park can be restored under section 35 of the Restitution Act read with section 25(7) of the Constitution - the Court imposed this as a suspensive condition only because the parties agreed to it; (3) The Court noted that the agreement provided a "win-win" situation and that the approach was "in keeping with the modern trend whereby it is recognised that a national park's human neighbours should share in the management of, and the benefits properly derived from, that park, rather than being excluded from it"; (4) The Court observed that making the full agreement an order of court could create undesirable consequences including making breach potentially contempt of court and creating jurisdictional confusion, particularly given the Land Claims Court's potentially limited duration; (5) The Court declined to express any view on the validity and registerability of the mineral rights conditions (clause 1 of the schedule), not because they were problematic but simply because full argument had not been heard and they were not material to the Court's decision - the Court stated this should not be taken by the Registrar of Deeds as reason not to register those conditions.

This case is significant in South African land restitution jurisprudence as it: (1) Clarifies the Land Claims Court's approach to settlement agreements referred under section 14(3) of the Restitution Act, establishing that the Court has discretion whether to make such agreements orders of court and may fashion its own orders based on settlements; (2) Confirms that section 35(4) permits adjustment of the nature of rights previously held, allowing a community that did not have ownership before dispossession to be granted ownership as restitution; (3) Demonstrates that restitution in the form of ownership can be granted even for State land set aside for conservation, provided appropriate restrictive conditions ensure continued conservation use; (4) Establishes an innovative model for balancing land restitution with conservation imperatives, recognizing the modern trend of involving communities neighbouring national parks in their management and benefits rather than excluding them; (5) Shows how the section 33 factors should be applied to achieve outcomes that simultaneously meet demands for restitution, conservation and development; (6) Addresses the intersection between land restitution rights under the Constitution and existing conservation legislation requiring Parliamentary approval for changes to national parks. The case represents a landmark "win-win" approach to resolving competing claims of historical justice and environmental protection.