A step closer to the re-opening of land restitution claims in South Africa

On 25 February 2014, the national assembly passed the Restitution of Land Rights Amendment Bill, which will in its current form allow for new land restitution claims to be lodged until 30 June 2019. Many of those who were dispossessed of land missed the original deadline of 31 December 1998, and thus were denied redress. The Department of Rural Development’s assessment of the original process identified shortcomings, resulting in the recommendation to reopen the process. 

The Bill will now be considered by the National Council of Provinces, before it can become law.

While the passing of the Bill is an exciting development for the many who were shut out of the process owing to lack of information or poor support in the 1990s, it is noteworthy that the budget of the Commission which handles land restitution claims has been repeatedly cut in recent years. The Commission currently sits with a backlog of claims, many of which appear to be stuck, with claimants and the Commission unable to agree upon a resolution. With an influx of new claims likely, it is hoped that the Commission will be empowered with a suitable budget, and that mechanisms will be adopted to finalise outstanding claims, some of which date back as far as 1995.

Claims arising from dispossessions that occurred after 19 June 1913 are currently the only ones considered. This is due to a provision in the Bill of Rights which entitled people to redress for racial dispossessions after that date only. The Department of Rural Development has noted that this has excluded claims by Khoi-San communities who were dispossessed in earlier times, and has undertaken to make efforts to address this matter.

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What does the South African attorneys’ profession look like in 2013?

 

The extent to which South Africans of all races and genders are equally able to enter the attorneys’ profession has long been a matter of concern. The Justice Portfolio Committee of Parliament recently quizzed the Law Society of South Africa on the demographics of the profession, and the extent to which it has become increasingly representative of the population.

The Law Society furnished Parliament with the following statistics:

In 2013, South Africa has 21 463 practising attorneys. Of these, 41% are white men. Black men and white women come in with considerably lower figures, almost tied for second place at 24% and 23% respectively. Black women come in with much lower figures, representing only 12% of practising attorneys in this country.

Five years ago, in 2008, South Africa had 17 922 practising attorneys. Nearly half of these, at 47%, were white men. 22% were black men and following closely, 21% were white women. A mere 10% of practising attorneys were black women.

The statistics show a very gradual shift towards representivity, however with official statistics indicating that black women make up nearly 47% of the population, it seems highly improbable that the demographics of the profession will match those of the population in our lifetimes unless something changes rather drastically.

Much focus has been placed on the admissions policies of universities as a solution to the challenges, however mere possession of a law degree is insufficient to guarantee entry into and sustained, successful practice in the legal profession. More soul-searching within the profession is needed to explore why, in 2013, the profession does not attract and maintain greater numbers of women and black professionals.

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Race-based charitable bequests

The Supreme Court of Appeal recently handed down judgment in a matter concerning a deceased woman’s wish to set up bursaries to be available to white students only (amongst other criteria).

The other criteria specified the universities at which the students should be studying, their field of study, and the level at which they should be studying. The bursaries would help them further their studies overseas, on condition that they returned to South Africa to put their new skills into practice.

The trustees tasked with putting the deceased’s wishes into effect, approached the universities which the deceased had identified. They all indicated that they could not accept any bursary unless it was open to students of all races. The trustees then approached first the High Court and later the Supreme Court of Appeal, asking the courts to remove the race criterion from the deceased’s bequest, on the basis that it was discriminatory and therefore against public policy.

Both courts refused to remove the race criterion.

The High Court suggested (without making a finding) that the deceased’s intention was not necessarily unfairly discriminatory, as it appeared to be directed at limiting the “brain drain” in the identified field of expertise. The court found that it could only vary the provision in the deceased’s will if it had consequences which she had not foreseen – that is, if the discriminatory nature of the bequest meant that it could not be carried out and her will thus failed to dispose of her estate. The evidence in the specific case was clear that the deceased had foreseen that her wishes might not be given effect to, and she had indicated certain charities which should in that event receive the funds that would have been used for the bursaries. There was no need to tinker with the deceased’s will as it could still be put into effect, albeit on an alternative basis. If the universities would not accept the bursaries, then the charities would benefit in their place.

In upholding the High Court’s ruling, the Supreme Court of Appeal pointed out that this case differed from another similar case decided in the intervening period, in which the racial criterion had indeed been removed by the court. In the other case, there had been no alternative to cater for the possibility that the racial bequest would not be carried out. In order to avoid a situation whereby the deceased’s wishes were completely frustrated, in the other case the racial criterion had been removed. In this case, on the other hand, the deceased had set up an alternative which she had clearly intended to follow in the event that her racial bequest failed. The court found that it was possible in this case to give effect to the deceased’s intentions without amending her will, and so this was what should be done. The deceased had, in general, the freedom to frame her will and dispose of her assets as she wished. It was not for the trustees or the court to decide that it would be preferable to amend her will to make the bursaries acceptable to the universities, instead of simply applying the alternative provision she had put in place.

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