Published by the Business Day, 24 May 2019
After trying for 22 years to lay claim to a portion of SA’s most expensive and prestigious school, labour tenants from KwaZulu-Natal have taken their fight to the Constitutional Court.
On Thursday, the Legal Resources Centre presented arguments to the top court for the reinstatement of a Land Claims Court order to appoint a special master to oversee claims by families who laboured on farms in lieu of payments and permission to live on a portion of the farm. At the heart of the arguments at the Constitutional Court will be a portion of Hilton College’s 1,762ha property, which includes farmland, plantations and a game reserve. This portion of land has been the subject of a land claim by labour tenants for 22 years. But the private school is disputing the claim that excludes the school buildings and sports fields.
In 2016, the Land Claims Court found the department of rural development and land reform to be in contempt of court orders and in contravention of the provisions of the Labour Tenants Act of 1996, and found in favour of the labour tenants’ application to have a special master appointed to oversee the processing of labour tenant claims, about 11,000 of which remain incomplete since the closing date in 2001.
However, the department opposed the appointment of a special master, and in 2018 the Supreme Court of Appeal set aside the Land Claims Court’s judgment in favour of the appointment of a special court master. The case for the appointment of a special master was brought to court by the Association for Rural Advancement (Afra), a Pietermaritzburgbased land rights advocacy nongovernmental organisation, and the Legal Resources Centre in 2013 as a class action on behalf of labour tenants whose claims have not been processed.
In a joint statement by Afra and the Legal Resources Centre in March 2019, they said: “We believe that the Land Claims Court acted within its powers to appoint a special master to assist it. We believe that a special master is vital for speedy and effective realisation of labour tenant rights. We strongly believe that the Supreme Court of Appeal failed to afford to the Land Claims Court the deference owed to a specialist court exercising a true remedial discretion on an issue directly concerning its own processes. And the Supreme Court of Appeal failed to grasp the scale and complexity of the problem and the multiple ways in which attempted court supervision has failed.”
When the Legal Resources Centre approached the Constitutional Court on Thursday, it was armed with the dissenting judgment from the Supreme Court of Appeal’s judge Connie Mocumie and her colleagues, judges Ashton Schippers and Willie Seriti.
In her dissenting judgment, Mocumie said the effect of the Supreme Court of Appeal order, invalidating the appointment of a special master, was that the same department of rural development & land reform that “has failed labour tenants for over 22 years should still continue with the role of developing an implementation plan on the application of labour tenants”.
“Parliament enacted legislation for persons whose tenure of land was insecure as a result of the past discriminatory laws and practices. In the environment of such discriminatory laws, and in the wake of legislative instruments enacted to address the effects of such discriminatory laws, gross and continuous failure by bodies charged with the implementation of such corrective legislative measure effectively retains the status quo of the applicants in unjust historical positions,” she argued.
Mocumie went further: “The Land Claims Court had tried ordinary court supervision which had failed, there was a need for effective relief for the many thousands of vulnerable labour tenants … [as] the department has thus far experienced grave difficulties in proving this … The size and complexity of the task alone supports the appointment of a special master to inter alia assist this court to meaningfully monitor implementation.”
Other media coverage on the case:
- ConCourt to rule on farm tenant claims, Mail and Guardian (15 March 2019) https://mg.co.za/article/2019-03-15-00-concourt-to-rule-on-farm-tenant-claims
- Rural Development Department says it never disregarded any court orders, SABC (23 May 2019) http://www.sabcnews.com/sabcnews/rural-development-dept-says-it-never-disregarded-any-court-orders/
- This is our land, labour tenants tell Hilton College, Timeslive , (23 May 2019https://www.timeslive.co.za/news/south-africa/2019-05-23-this-is-our-land-labour-tenants-tell-hilton-college/
- It is our land, labour tenants tell Hilton College, Business Live (23 May 2019) https://www.businesslive.co.za/bd/national/2019-05-23-its-our-land-labour-tenants-tell-hilton-college/
- Farm workers march to Constitutional Court over land and working conditions (24 May 2019) https://www.groundup.org.za/article/farm-workers-march-constitutional-court-over-land-and-working-conditions/
- Labour tenants take Hilton dispute to top court (23 May 2019) https://www.southafricanlawyer.co.za/article/2019/05/labour-tenants-take-hilton-dispute-to-top-court/
- The Promised Land, Part II. Special Assignment (14 April 2019) https://www.youtube.com/watch?v=udG4cAhzNV4
- Land claimants take fight to ConCourt, eNCA (23 May 2019) https://www.enca.com/news/land-claimants-take-fight-concourt
- Land Claimants at ConCourt, eNCA (23 May 2019) https://www.youtube.com/watch?v=AKrTVH8jM-0
- ConCourt reserves judgment in land claims processes case, eNCA (23 May 2019) https://www.youtube.com/watch?v=V9rSFBMXzBM
- A group of land activists protested in Joburg, SABC (24 May 2019) https://www.youtube.com/watch?v=SyXKbDNDWWw