Press Release: Labour tenants case goes to the Constitutional Court in May

For Immediate Release

08 March 2019

On 23 May 2019, the LRC will present arguments in the Constitutional Court for the reinstatement of the Land Claims Court (LCC) order to appoint a special master.  In 2016 the Land Claims Court found the Department of Rural Development and Land Reform (DRDLR) to be in contempt of numerous court orders and in contravention of the provisions of the Labour Tenants (Land Reform) Act of 1996. The court found in favour of labour tenant’s application to have a special master appointed to oversee the processing of labour tenant claims, some 11 000 of which remain incomplete since the closing date in 2001.

The Department opposed the appointment of a special master and in 2018 the Supreme Court of Appeal (SCA) set aside the Land Claims Court (LCC) judgment, but had a piercing dissenting judgment by Judge Mocumie. In her judgment she noted:

“…the LCC had tried ordinary court supervision which had failed, there was a need for effective relief for the many thousands vulnerable labour tenants as the Department has thus far experienced grave difficulties in providing this…The size and complexity of the task alone supports the appointment of a special master to assist this court to meaningfully monitor implementation”

The case was brought to court by AFRA and the Legal Resources Centre (LRC) in 2013 as a class action on behalf of labour tenants whose claims have not been processed. It sought structural relief to ensure that the Department implemented the Labour Tenant Act (LTA). The Department’s continuing failure to meet court deadlines over many years proved that ordinary court supervision was ineffective and so a special master would assist the LCC, the Department and the applicants to ensure the implementation of LTA.

We believe that the Land Claims Court (LCC) acted within it powers to appoint a special master to assist it. Judge Mocumie holds the same view as the applicants that without interventions such as the one taken by the LCC, labour tenants would be back before it and the SCA in the next 10 years still seeking the same relief they sort in the first instance: access to land and security of land tenure.

Judge Mocumie’s dissenting judgment confirms the view of AFRA & Labour Tenants that specialised and extraordinary court supervision is required to ensure the efficient processing of labour tenant claims.  This view needs to be confirmed by the Constitutional Court and so an application for leave to appeal the SCA judgment was made by AFRA and the Legal Resources Centre (LRC).

We believe that a special master is vital for speedy and effective realisation of labour tenant rights. We strongly believe that the SCA failed to afford the LCC the deference owed to a specialist court exercising a true remedial discretion on an issue directly concerning its own processes. And that the SCA failed to adequately grasp the scale and complexity of the problem, and the multiple ways in which attempted court supervision had failed.

We hope that the constitutional court will correctly acknowledge the constitutional imperatives and urgency underlying the LTA and its promise to labour tenants to end the cruelty and suffering of African people. That it will acknowledge the scale of the constitutional breaches in systemically failing to address the constitutional and statutory claims of labour tenants and acknowledge the appropriateness of the remedy of appointing a special master by agreement of all parties who will act as a neutral and independent expert in the area of land restitution and reform in order to ensure implementation of the relevant legislation.

 

ENDS.

The CC court papers and lower court judgments can be found here:

https://collections.concourt.org.za/handle/20.500.12144/36597

For more information, contact

 

 

 

 

 

Deeper conversations needed to advance land reform

The Joint Constitutional Review Committee has now adopted a resolution that Section 25 of the Constitution be amended to allow expropriation without compensation. If undertaken correctly structural change in the architecture of the legislation and its institutions, as proposed by the High Level Panel, and testing the current Constitution, may together produce far greater results than if undertaken separately or in a disconnected process.

The question that the Constitutional Review Committee wanted answered was whether Section 25 of the South African Constitution – known as the property clause – is an impediment to land reform.

Provincial hearings across the country, written submissions and further Parliamentary hearings have been held in a search for answers, or at least to allow the public to speak to the question. The Association for Rural Advancement (AFRA) has availed itself of all these opportunities, most recently in Parliament before the Committee.

Having engaged with a range of stakeholders, most notably people residing on commercial farms (farm dwellers) and labour tenants, it was widely recognised that as it stands Section 25(8) of the Constitution provides that “[no] provision of this section may impede the state from taking legislative measures to achieve land, water and related reform”.

The view from the ground is that deep-seated failures on the part of the state in the implementation of legislation and Constitutional rights, rather than the Constitution itself, has created the problems now faced in land and agrarian reform.

Institutional weaknesses, in the Land Claims Court, Commission on Restitution and the Department of Rural Development and Land Reform, have all contributed to the slow pace of land reform. Disdain on the part of various Ministers and successive administrations for legislation and the Constitutional protections to vulnerable groups such as labour tenants, has been coupled with suspicions of corruption, to the extent that the DRDLR became dysfunctional.

This complex set of factors need to be better understood and comprehensively addressed, as proposed in the recommendations of the High Level Panel (HLP) headed by former President Kgalema Mothlanthe. The Joint Constitutional Review Committee has now adopted a resolution that Section 25 of the Constitution be amended to allow expropriation without compensation. If undertaken correctly structural change in the architecture of the legislation and its institutions, as proposed by the HLP, and testing the current Constitution, may together produce far greater results than if undertaken separately or in a disconnected process.

A simplified approach to amending Section 25 will leave many of the other, very real challenges untouched.

Amend the Constitution

One of the consistent objections to Section 25 is that there is no mention of the words “expropriation without compensation (EWC)”. The view is that in amending Section 25, the option of EWC must be made explicit. While land is a form of property, the stated objective of the current process is to ensure Land Reform is not unduly hindered by general protection granted to the ownership property. We may want to look at separating the right to land from the right to property to ensure that people’s land rights are realized, protected and they have secure tenure. Delinking property in general from land reform in particular provides the necessary safeguards to the intent of the Constitution, and satisfies the need to make restitution, redistribution and land reform more explicit.

Test the current Constitution and other Land Reform policies and legislation

It is evident that there has been a heavy reliance on the market value when determining the amount of compensation, which is only one factor in terms of s25(3) of the Constitution, and that there has been no application of the other factors, which are: current and historical use of property, its acquisition, the extent of state subsidy and the purpose of expropriation.

Therefore, it has been argued that if one had to apply all of these above factors in this subsection one can actually arrive at zero compensation. This is because section 25 (3) talks to a just and equitable amount, and zero rand can be that amount. Section 25 as it stands needs to be tested by applying all of the factors in section 25 (3) to see if zero compensation can be reached.

A practical example would be the case of labor tenants in relation to the land that they are currently occupying, and we are of the view that in applying the above factors one can arrive at zero compensation. The main reason is because labour tenants currently live on and use the land, and transferring it to them will not affect food security, destabilize the agricultural sector or undermine the economy because labour tenants already occupy and use this land. Moreover, the land owner does not derive any direct benefit from that piece of land.

We are therefore of the view that these types of occupiers can be a test case for Expropriation Without Compensation in the current Constitution. But this is a starting point, and we are by no means suggesting that this is the total amount of land that should get redistributed or that labour tenants and farm dwellers are entitled to. As they will be cases where Labour Tenants would want more land and, in these cases, AFRA proposes the compensation to be paid will depend on different circumstances.

The Extension of Security of Tenure Act 3 0f 1996 as well as Labour Tenant Act 62 OF 1997 forms part of a process which is aimed at achieving land reform. However, as per the High Level Panel findings, this process has been slow. In order to fast track this, process some ground work need to be done, starting with structural change in the architecture of the legislation and it institutions meant to support land and agrarian reform.

As the process of amending the Constitution unfolds, the Association for Rural Advancement calls for: the testing of the Constitution in its current form to allow for EWC. Furthermore, it calls for Parliament and leaders in their respective organisations to initiate and facilitate a process that will allow long-term, sustainable solutions to be reached in order to achieve land reform. In finding these solution much deeper conversation on this issue need to be held as all of these processes initiated by the Constitutional Review Committee have only begun to open up the conversation. What people on the ground need is the implementation of land reform policy and legislation, and for this to happen there needs to be an inclusive and constructive process.

This process should encompass multiple stakeholders, which will include people on the ground, all relevant government departments, academics as well as other experts.

In conclusion, the Association for Rural Advancement believes that this inclusive process should pick up from where the High Level Panel left off.

By Nompumelelo Kubheka is Association for Rural Advancement Research and Policy Co-ordinator

Improving farm dweller access to services on farms

Access to services for farm dwellers living on commercial farms has been one of our focus areas in the Pathways Project during 2018.  We undertook some qualitative research interviews on access to water and sanitation with farm dwellers in August and September and we held a second multi-stakeholder Services Dialogue in October. The first dialogue took place in December 2017.

The purpose of the Services Dialogue was to engage a range of stakeholders in conversation about how to improve farm dweller access to services on farms. An independent facilitator held the space in which identified stakeholders from three critical interest groups – farm dwellers, farm owners and government – could make inputs and respond across the themes of water, sanitation and electrification.

Two sources provided context for the dialogue. The first, ground-up context was the findings of our survey and the qualitative research that we undertook to supplement it. AFRA conducted an extensive survey of farm dwellers in 2016 and 2017. The farm dweller interviews supplemented the quantitative findings. Most farm workers have access to water, although the sources and quality vary. Land owner discretion is evident in reports of selective cut-offs to people who no longer work on the farm, for example. Sanitation access is more diverse, with a range of experiences from open defecation to self-dug pit latrines and, in some cases, ventilated improved pit latrines (VIPs).

We also situated the dialogue was in relation to the law. We considered the basic rights contained in the Constitution and the minimum standards for access to basic services contained in sector specific laws and policy frameworks.

The right to water is contained in Section 27(1) of the Constitution: “Everyone has the right to have access to -… (b) sufficient food and water …”.  Section 27(2) requires that state to take reasonable steps to progressively realise this right within available resources.

The minimum standard for basic water supply services is a minimum of 25 litres per person per day of potable water or 6 kilolitres per household per month, at a minimum flow rate of not less than 10 litres per minutes, within 200 metres of a household. No consumer should be without a supply of water for more than seven full days in any year.

The right to sanitation is enshrined in section 24 of the Constitution as a right to an environment that is not harmful to health and well-being. Municipalities must ensure the realisation of this right. In addition, Section 26 of the Constitution specifically grants everyone “the right to have access to adequate housing” which has been interpreted to include sanitation.

The minimum standard for basic sanitation services is a toilet which is safe, reliable environmentally sound, easy to keep clean, provides privacy and protection against the weather, is well ventilated, keeps smells to a minimum and prevents entry and exit of flies and other disease-carrying pests. This standard is further prescribed as being one well-constructed VIP toilet per household.

The Constitution does not include a provision that expressly entitles people to electricity. However, case law has established that municipalities are under an obligation to provide electricity to those within its area of jurisdiction. The Constitutional Court ordered in Mkontwana that local government bears a responsibility to provide electricity “as a matter of public duty” and in Joseph that “electricity is an important basic municipal service which local government is ordinarily obliged to provide”.

These provisions are bolstered by other sections of the Constitution such as 152(1) and 153 which set out an overarching set of obligations for local government to “ensure the provisions of services to communities” and to “promote social and economic development” in communities in their area. Section 139(5) requires access to at least a minimum level of basic services, and Section 195(1) provides that “people’s needs must be responded to”.

From these provisions, it is clear that access to basic services has the backing of the Constitution, the law and policy frameworks. However, despite these constitutional and legal requirements, farm dwellers have yet to attain access at the most basic level.

Some of the constraints to access to services are the significant resource and capacity constraints of district municipalities, which is where responsibility for water services resides; district municipalities not planning for the provision of services on farms;  perceptions that the state cannot provide services on land that is privately owned as is the case with the commercial  farms on which farm dwellers live; and in some cases the reluctance of private owners to permit access to farms for municipalities who wish to provide services, especially electricity.

The dialogue identified that some important initiatives exist of farm owner provision of services, as is the case on Hillerman Farm in uMshwathi local municipal area. Participants included farm dwellers in Limpopo and the Western Cape who were able to share their experiences. Given the experiences of many farm dwellers in our province, as well as others, that farmers are unwilling to provide access to services, it was important to hear about farmers who do. One of the workshop recommendations was that willing farmers should encourage other farmers to provide at least a basic level of water and sanitation on their farms. The exploration of incentives, such as rates rebates, was identified as a possible strategy.

Farm dwellers were wary however, of relying on the notion of “the good farmer” for access to services and of being dependent on the discretion of farmers who may, or may not, provide access to water and toilets.

The requirements in the law, that municipalities are the duty bearers when it comes to the provision of water services and electricity, were emphasised. This obligation is currently being tested in court in the case against uMshwathi and Msunduzi local municipalities. Obtaining land owner consent was identified as a significant obstacle in municipal provision, especially in electrification. The dialogue discussed the difference between consultation and consent and that a land owner cannot unreasonably withhold consent for municipal access to a farm.

The question of land rights came up in the dialogue in several ways. For example, some participants saw settling land rights as a pre-requisite for access to services, while others expressed the view that farm dwellers who were no longer employed should not expect farmer provision of access to services. Farm dwellers explained that some farmers use water access as a form of control. Cutting off supply was identified as a way of evicting a family that the farmer no longer wanted to live on the farm.

Some of the balances that need to be struck were debated including access to a diminishing resource in the case of water and protection of that resource, the cash flow requirements and financial constraints of less profitable farmers and meeting a minimum access standard, water quality when live-stock use the same water source as farm dwellers, and participation in government led consultation processes when budget decisions seems to be opaque.

Participants identified that water tankers should make way for a priority municipal bore-hole programme. They indicated that progressive land owners should take the lead in advocating to other farmers to provide services.

Most people agreed on the importance of participation in IDP meetings to raise their needs for access to basics services. However, some farm dweller representatives said that they can attend as many IDP meetings as they wish but their needs never get prioritised.

Good will and mutual respect emerged as important principles for improved relationships around such issues as water wastage when taps are left running. As a result of this strand in the dialogue, improved communication was identified many times as an important way of overcoming obstacles. Some people were not invested in more processes however, and pushed for solutions of substance, that are concrete in nature.

The practical orientation of the dialogue meant that the participants could push toward a concrete action to take the workshop forward. The facilitator had to hear the voices of frustration at the idea of creating more talking spaces where little practical is achieved, while acknowledging that stakeholders needed to come together to improve access to services. To these ends, the workshop mandated a small group of people to convene around communicating the most important messages of the workshop: farm dwellers have rights of access to basic services and practical experiences exist of municipal and land owner provision. The legal requirements and the good practices need to be shared by different stakeholders in multiple structures and processes that already exist.  A common message will assist participants to press for the changes they want to see.

Services case set down for hearing in Pietermaritzburg High Court on the 2 November 2018

The Legal Resources Centre (LRC) is in Pietermaritzburg High Court on the 2 November 2018 representing two farm occupiers and the Association for Rural Advancement (AFRA) who are acting in terms of Section 38 of the Constitution on behalf of the class of farm occupiers and labour tenants residing under the jurisdiction of Mshwathi, Msunduzi and uMgungundlovu municipalities in Kwa-Zulu Natal.  This case is against Mshwathi, Msunduzi and Mgungundlovu municipalities.

The municipalities have failed to take reasonable measures to achieve progressive realisation of the farm occupiers and labour tenants’ right to water, in breach of Section 27 (1) (b) of the Constitution.  Moreover, the municipality has failed to meet its obligations under Sections 152 (1) (a) and 153 (1) of the Constitution to promote social and economic development and to manage their administration and planning processes to give priority to the basic needs of communities, and to promote the social and economic development of the communities.  The municipalities are also in breach of the Water Services Act, Regulations Relating to Compulsory National Standards and Measures to Conserve Water (Government Notice R509 in Government Gazette 22355 of 8 June 2001) (“the Regulations”),  White Paper on Water Supply and Sanitation Policy 1994 (“White Paper”), the Extension of Security of Tenure Act as well as the Promotion of Administrative Justice Act No. 3 of 2000, in that the municipality failed to take an action of providing the farm occupiers and labour tenants with access to sufficient water, basic sanitation and collection of refuse.

On behalf of the farm dwellers and AFRA, the LRC will argue that the municipalities’ administrative action or failure to provide the farm occupiers and labour tenants with access to sufficient water and basic sanitation and collection of refuse on the grounds that this is unlawful, unreasonable and procedurally unfair.

LRC will ask the Court to grant the following order:

  1. Declaring that the municipalities ongoing and persistent failure to provide the farm occupiers and labour tenants who are residing within areas of their jurisdiction with access to basic sanitation, sufficient water and collection of refuse is inconsistent with the Constitution of the Republic of South Africa, 1996, particularly Sections 9, 10, 24, 27(1)(b), 33, 152, 153, 195 and 237;
  2. Directing the municipalities, forthwith, to comply with Regulation 3 of the Regulations Relating to Compulsory National Standards and Measures to Conserve Water (GN R509 in GG 22355 of 8 June 2001) by:-
    • Installing a sufficient number of water user connections to supply a minimum quantity of portable water of 25 litres per person per day or 6 kilolitres per household per month to farm occupiers and labour tenants residing within areas of their jurisdiction;
  • Ensuring that the water user connections supply water at a minimum flow rate of not less than 10 litres per minute; and
  • Ensuring that the water user connections supplied are within 200 meters of the farm dwellers’ households;
  1. Directing the municipalities to provide farm occupiers and/or labour tenants with access to basic sanitation by:-
    • Installing Ventilation Improved Pit (“the VIP”) toilets per each household. (The VIP toilets should conform to SANS 10365-1: 2003 specifications);
  2. Directing the municipalities to provide the farm occupiers and/or labour tenants with refuse collection services;
  3. Directing the municipalities to ensure that the farm occupiers and labour tenants have access to basic municipal services, more specifically water, sanitation and refuse removal; and
  4. Directing the municipalities to prioritise the rights of farm occupiers and labour tenants in their Integrated Development Plans (“the IDP’s”).
  5. Within one (1) month of the date of the order, the municipalities are directed to file the reports under oath (the reports) and the plans (the plans) with Pietermaritzburg High Court.
  6. The reports shall identify all the farm occupiers and labour tenants who are residing within the areas of their jurisdiction.
  7. For each farm occupier and labour tenants, indicate whether he/she has access to water, sanitation and collection of refuse.
  • If he/she has access to water, sanitation and collection of refuse:
  • Indicate the type of water source, type of sanitation and collection of refuse.
  • Indicate the quality and the quantity of water, sanitation and collection of refuse.
  • Indicate the distance from the water source, sanitation and collection of refuse, to each farm occupier and labour tenant’s house.
  • If he/she does not have access to water, indicate how long he/she does not have access to water, sanitation and collection of refuse.
  1. The Plan shall:
    • Explain the steps the municipalities will take in order to provide farm occupiers

and labour tenants with access to water, sanitation and the collection of refuse.

  • Explain the steps and criterion the municipalities will take in order to ensure that all farm occupiers, labour tenants and farm owners within their jurisdiction are aware of this case.
  • Set measurable, periodic deadlines for progress.
  1. The reports and the plans will be served on the applicants and be made available on the municipalities’ website.
  2. The applicants, and any other interested parties, will be entitled to comment on the reports and the plans within one (1) month of the date on which they are filed.
  3. The municipalities will file to this Court, and serve on the applicants, monthly reports indicating their progress with regard to provision of access to water, sanitation and the collection of refuse to farm occupiers and labour tenants living within the areas of their jurisdiction.
  4. The applicants, and any other interested parties, will be entitled to comment on these monthly reports within 30 days after the date on which they are filed.
  5. The Court may, at any stage and of its own accord, after having heard submissions by the parties, make any further directions or orders it deems fit.
  6. Thereafter, the matter is to be enrolled on a date to be fixed by the Registrar in consultation with the presiding judge for consideration and determination of the aforesaid reports, plans, commentary and replies.

 

Using the justice system to promote international best practice in South Africa

In October 2017, AFRA submitted to the ILC Africa it best practice on how it promotes and advances people-centred land governance. We are happy that of the 35 entries submitted for the 2018 ILC Award Competition, AFRA’s submission is amongst the top 10 good practices.
The winner of the ILC Award competition will be announced in May 2018 and presented with their award during the 2018 Global Land Forum in Bandung, Indonesia in September.

The case study is about Association For Rural Advancement (AFRA) and the Legal Resources Centre class action lawsuit against the Department of Rural Development and Land Reform on behalf of labour tenants.Under the 1996 Land Reform (Labour Tenants) Act, labour tenants were granted rights to apply for ownership of the land they occupied. However, the government failed to implement this law, and 19,000 labour tenant claims remain pending. AFRA and LRC sought to use international best practices to create a new legal mechanism, through the appointment of a “Special Master” to oversee the implementation of this legal provision by the Department of Rural Development and Land Reform.

The case study is available in English, French and Spanish on the ILC Database of Good Practices. Click link below for more details:

http://www.landcoalition.org/en/regions/africa/goodpractice/using-justice-system-promote-international-best-practice-south-africa

Why labour tenants and farm dwellers are a good case for Expropriation without compensation

The proposal supports President Ramaphosa’s view that labour tenants and farm dwellers are a good case for expropriation without compensation. The case is based on six arguments:

  1. The expropriation of the land labour tenants and farm dwellers currently live on and use will not affect food security, destabilise the agricultural sector or undermine the economy because labour tenants and farm dwellers already occupy and use this land.
  2. The legal rights of labour tenants and farm dwellers to land is consistent with key provisions in the Constitution on property rights, namely, sections 25 (6) redress of legally insecure tenure as a result of racial discrimination and 25 (5), equitable access to land.
  3. The compensation for land labour tenants and farm dwellers exclusively occupy and use can be zero or nominal under certain conditions. This is consistent with just and equitable compensation in so far as:
    • Labour tenants historically provided free labour in return for land with the material benefits of their labour accruing to the owners.
    • Farm owners converted labour tenants into farm dwellers, partly to avoid land claims.
    • The statutory protection of labour tenants and farm dwellers to the land they occupy and use constitute statutory property rights, which have a value that is deductible from the value of the ownership.

The Constitution does not require that market value in the case of land reform

  1. Settling labour tenants’ land claims with additional land (redistributive tenure) will radically transform the profile of ‘the farmer’ in KwaZulu-Natal and Mpumalanga with 75% being black emerging farmers farming 12% of the available commercial farmland.
  2. A district approach to settling labour tenant claims will enable a quick land reform win.
  3. Large numbers of youth living on farms are disaffected and unemployed. They urgently need a stake in growing the rural economy. Redistributive tenure can achieve this.

See full proposal: Why labour tenants and farm dwellers are a good case for Expropriation without Compensation

 

Labour tenants to be first in line

Labour tenants, who work for a landowner in exchange for the right to use a portion of the land for their sustenance, could be the first beneficiaries of the government’s policy to expropriate land without compensation.

Following his State of the Nation address earlier this year, President Cyril Ramaphosa explained that labour tenants would be one of the three groups that land expropriation without compensation would target as its beneficiaries.

Ramaphosa noted that the much-debated expropriation process would help the department of rural development and land reform to expedite labour tenants’ claims.

He said this formed part of his plan to increase agricultural productivity and employment opportunities in rural areas by bringing more producers into the sector.

“Expropriation without compensation is envisaged as one of the measures to be used to accelerate redistribution of land to black South Africans,” he said. “We need to determine collectively how we can implement this measure in a way that promotes agricultural production, improves food security, advances rural development, reduces poverty and strengthens our economy.”

Ramaphosa, who is on an investment roadshow in London this week, told Bloomberg TV that land reform would expand the economy and “unlock levers of growth around land”.

Reform measures to benefit labour tenants have had a limited effect to date. A class-action suit involving 19 000 such tenants in three provinces — KwaZulu-Natal, Limpopo and Mpumalanga — to force the government to implement a 1996 Act that protects labour tenants and makes provision for them to claim the land they live on, is underway.

A land advocacy group, the Association for Rural Advancement (Afra), with the help of the Legal Resources Centre (LRC), launched the class-action case against the department of rural development and land reform in July 2013.

A director at Afra, Laurel Oettle, told the Mail & Guardian that the success of land expropriation without compensation would depend on the political will and intentions of the ANC.

“If the ANC genuinely has its heart behind effective redress, then labour tenants should be at the forefront of cases on which expropriation without compensation is tested,” she said.

An attorney at the LRC, Thabiso Mbhense, agreed that expropriating land without compensation would speed up land reform and ensure that labour tenants get to own the land they occupy.

Mbhense said that expropriation would ensure that land was transferred to individual labour tenants and would resolve issues such as price inflation claimed by land owners.

Oettle said the class action lawsuit was not an attack on the land reform department, but if it succeeded, it would ensure that labour tenants were acknowledged by the government.

“It is to restore faith, hope and a sense of dignity — and, more importantly, for citizens to feel that they matter and that the government that promised to return their land and protect their ancestry is taking this seriously enough to implement new measures to make sure their claims are finally processed,” she said.

The Land Reform (Labour Tenants) Act of 1996 allows for labour tenants to claim ownership.

Although the Act was signed in 1996, the government has moved sluggishly in processing labour tenants’ claims.

Department spokesperson Linda Page told the M&G that “9 747 out of a total of 20 324 applications that were submitted by March 31  2001” had been processed. Page attributed the slow pace to the complex procedure for pursuing claims set out in the Act.

“There were disputes with owners of land to which the application relates, and the adversarial court processes often produced disappointing results for labour tenants as owners took every technical legal point in opposition to the applications,” she said.

Arbitration efforts, provided for in the Act, did not work and in some instances, when a land owner was issued with a notice of a pending land claim, labour tenants and their associates would be threatened with eviction from the properties concerned, Page added.

She said that generally, labour tenants preferred being accommodated on larger and more viable portions of land offered by the alternative land reform programmes, and to be incorporated in restitution settlements where there were overlapping restitution and labour tenancy rights.

But Afra’s Oettle said it believed the reason for the delays in processing the tenant farmers’ claims was the result of a lack of will by the department. It appeared that the department did not have the capacity to manage the thousands of applications and had failed to issue title deeds, she said.

The LRC’s Mbhense added that there had been “negative consequences in that the state refuses to buy such land for labour tenants. This forces the state to look for alternative means of settling labour tenant claims, like forcing labour tenants to take alternative land instead of the land that they have claimed.”

The department has now appointed a senior official to manage the processing of labour tenant applications as part of speeding up the claims process, Page told the M&G.

A project plan has been developed with detailed tasks and timelines, which include tracing labour tenant applicants, issuing notice of these applications to land owners and publishing them in the Government Gazette by September 30.

Thulebona Mhlanga is an Adamela Trust financial reporter at the Mail & Guardian

https://mg.co.za/article/2018-04-19-00-labour-tenants-to-be-first-in-line

‘White man said he found our land to build a school’

Mndeni Sikhakhane is old and blind but he loves his ancestral land too much to allow this to deter him from joining his people’s ongoing struggle to keep it.

“We are people of this land. God made us to look like the soil of this land because we belong to it. We were born to farm on our land and trade livestock among ourselves. Money was never our thing as Africans,” says Sikhakhane (88).

In 2013 he was one of five applicants who brought court action against the department of rural development and land reform and the Hiltonian Society.

The action was brought on behalf of 35 families, descendants of labour tenants who had lodged claims on their land, which is now owned by the Hiltonian Society.

Labour tenants were not protected by law until the passing of the Land Reform (Labour Tenants) Act of 1996 and the Extension of Security of Tenure Act of 1997.

Some of the land’s occupants have accepted offers of between R6 000 and R12 000 to move from their land to townships near Howick in KwaZulu-Natal’s Midlands.

The case was filed before the Land Claims Court as a class action on behalf of an estimated 19 000 labour tenants, as well as family members who live in their homes. Most of the claimants were from KwaZulu-Natal, Mpumalanga and Limpopo.

The labour tenant system is a colonial remnant that forced black African land-owners to become tenants on their own land. Families had to earn their tenure, by their labour, on the land that was handed to whites. This meant, in most cases, that children of labour tenants were destined to become farm labourers as soon as they could to help their families meet their part of the bargain.

But, with the promulgation of the Restitution of Land Rights Act in 1994, labour tenants like Sikhakhane — whose ancestry on the land can be traced back for more than 200 years — found their land claims frustrated by government bureaucracy.

In December 2016 the Land Claims Court ordered that a special master be appointed to assist labour tenants to make claims for portions of the land they have worked and lived on.

Sikhakhane and the four other applicants — Bhekindlela Mwelase, Jabu Agness Mwelase, Bazibile Gretta Mngoma — and the Association for Rural Advancement contended that the application was launched because of clear evidence of the department’s failings.

They asked the court to appoint a special master, an independent person who would assist in the processing and adjudication of labour tenant claims.

The department and the Hiltonian Society submitted to the court that settling the applications would be an enormous task.

Despite the court ruling in their favour more than a year ago, life in the Hilton Valley village, which borders the prestigious Hilton College, remains a struggle for residents who still have not had their claims settled.

Residents say the labour tenant system destroyed their old way of life, in which they could live off the land and keep livestock. They are now subjected to restrictions on the ownership of livestock and their movement. They live in four-room brick houses, which were built as labour dormitories but are inadequate for extended families to share.

As tenants on the land where their forefathers once lived in large traditional Zulu homesteads, families are now crammed into structures resembling township matchbox houses.

“If you want to make any extensions you need to apply [to the Hiltonian Society],” says 33-year-old preschool teacher Mpume Dlamini.

[Mpume Dlamini says she doesn’t want to live anywhere else but in the Hilton Valley village where she, her parents and her grandparents were born. (Lucas Ledwaba)]

She is among the younger generation who are refusing to move, preferring the familiarity, relative safety and community spirit of the village.

“I was born here. My mother was born here. Her parents were also born here and their parents too. I know no other home,” she says.

One restriction stipulates that a visitor may not stay in the village for more than two weeks, a regulation that in the African family context is deemed ridiculous.

[A cemetery near Hilton College proves that the current residents come from generations of labour tenants and have a right to portions of the land they lived and worked on. (Lucas Ledwaba)]

“We are a social people. If my uncle wants to visit we cannot tell him to go,” says Vumokwakhe Kunene (33).

One of his great-grandparents, Skei Kunene, was the first security guard at the college and a revered baboon hunter in the 1870s.

Kunene says the issue of remaining on his ancestral land is non-negotiable. He says, though some families accepted the paltry cash offer to move from the land to townships, they now regret their decision and often express a wish to return.

“This place is different. We have no issues of drugs or crime. It is home in the true sense of the word,” he says of the Hilton Valley community.

Bhekindlela Mwelase (87) says, by the time Hilton College was established in the picturesque valley in the 1870s, the Mwelase, Sikhakhane, Dlamini, Kunene and others had been living there under the Zondi chieftaincy for many years.

[The father, grandfather and great-grandfather of Thanda Mwelase are buried on the land. (Lucas Ledwaba)]

“The white man came to us and said he had found land to build a school. He didn’t buy it from us,” Mwelase says.

Sikhakhane says the owners of the school asked them to help in building and taking care of the college, which is now one of the most expensive boys’ schools in the country.

“It was our hands, our blood, sweat and tears that made the very foundation of that school,” says Sikhakhane.

“They came down to where we lived and offered us work and then houses as we lived far down in the valley. This offer came with free houses that they built for us up here, and that is where we are now.”

In exchange for taking up jobs at the college, the community was made to agree to keeping only a limited number of livestock and to give up their agricultural lands.

In addition, they were supplied with regular rations of samp, maize meal, sugar, beans, salt and tea, among other benefits. In time, the community became reliant on the college.

Mwelase reckons this was a big mistake, one he believes led to the problems they currently face.

“Our fathers should never have accepted this. One could say they gave away the land in exchange for samp and salt,” he says.

In a different time many from the community worked at the school, but changing times brought large-scale lay-offs and the Hiltonian Society opted to use independent service providers.

Gone too were the food rations, which, together with salaries from the college, had for many years lessened the need for the villagers to work the land and keep livestock.

And with the families in the village growing, the loss of jobs and food rations led to a renewed hunger for land. Now many in the village are unemployed and spend their days loitering hopelessly.

Sikhakhane pours scorn on attempts to coerce the villagers with cash offers to move from the land.

“Money is what the white man came with. But the land is ours. We want to live freely on our land, to be able to farm, have our cattle grazing in our land and be able to live off our land without being restricted.

“I grew up on this land with the cattle roaming free and we were able to farm together as a community. Those were good times,” says Sikhakhane, his voice rising animatedly in his thatch-roofed bedroom.

Mwelase yearns for the days of old where he cultivated the land. Until the land claim is settled, all he has is a small vegetable patch.

“We were farmers. We had lots of cattle and ploughed the land. We had amadumbe, potatoes, maize and kept lots of goats and cattle. That’s the only thing that will make us happy now,” he says. — Mukurukuru Media 

https://mg.co.za/article/2018-04-13-00-white-man-said-he-found-our-land-to-build-a-school

 

Why the President is now talking about labour tenants

Government says there are 20,324 labour tenant claims waiting to be processed. Of these, 11,000 are in KwaZulu-Natal and most of the remainder in Mpumalanga. President Cyril Ramaphosa stated in his responses to questions about his SONA that labour tenants would be one of three categories targeted for expropriation without compensation. Dr Donna Hornby provides context in a series of four articles on why labour tenants were selected.

Hundreds of cases have gone before the courts. Their definition, their right to land, their history have been fought over and courts have made decisions.  Which land, what value, how much compensation? Now President Ramaphosa wants the land they are claiming expropriated without compensation. But what is a labour tenant and why are they suddenly so central to the land question?

In a Supreme Court of Appeal ruling in 2008, Judge Belinda Van Heerden describes labour tenants as “a vulnerable section of society and almost always impecunious, unsophisticated and unschooled”.  The impact of this vulnerability on actual relations on farms, the Judge says, raises questions about consent: “One should not lose sight of the power imbalance in the relationship between the farm owner and the labour tenant and the truism that only free men and women can meaningfully negotiate.” Constitutional Court Judge Dikgang Moseneke makes a similar point in 2007 when he states that “it must however be recognised that despite the fiction of the common law in regard to the consensual nature of labour tenancy, on all accounts, the labour tenancy relationships in apartheid South Africa were coercive and amounted to a thinly veiled artifice to garner free labour”.

Strong words for an institution known to be cautious. Perhaps they arise from seeing bent over, elderly people, hats being twisted in their hands, hoping someone will intervene on their side. Perhaps they arise from reading endless Land Claims Court accounts of the R3 paid for six month work rotations. Google Land Claims Court judgments. See for yourself what the judges hear and what they say about it. Is it possible that all labour tenants decided to tell the same story about their labour conditions? Isithupha. Six. Endraai. Rotation. It meant other work was impossible since urban businesses wouldn’t employ labour knowing it was already committed for six months of every year. It meant children didn’t go to school, because if their fathers failed to fulfill the tenancy contracts that demanded the labour of their children and wives in addition to their own, then the family was told to go. Hambani. The polite way to say ‘evicted’.

I imagine many readers are now thinking “why keep bringing this up? Let history be history”. My challenge as a researcher and writer on these issues over the years has been how to tell the same story, the same violent, heart wrenching story, over and over again to a society increasingly inured to the pain of others. Too many whites dismiss the stories as exaggeration, and they do so as a way to distance themselves from historical culpability. Too many Black politicians promise farm dwellers and others whose citizenship is defined by racial exclusion despite democracy a total solution to counter their own helplessness in the face of realpolitik.

So let us pause and ask how did labour tenancy come about and what has happened since 1994? The story begins in 1843 when the British government intended annexing Natal, and established the Cloete Commission to determine the land claims of Boers before annexure could proceed. Of the 1800 Boer claims, Commissioner Henry Cloete was only able to submit 198 that met the legal conditions that the claimants had to have been in occupation of the land for at least a year prior to the Commission’s determination. A major reason for this poor success rate was that the Boers had been unable to take possession of the land they said was theirs because it was already occupied by Africans who were living on it and using it productively.

Some 70 years later, by 1913, Africans had been effectively dispossessed of their de facto ownership. Those who wanted to access productive land were compelled to enter labour tenancy contracts. The contracts involved the patriarchal head of house entering agreements with white land owners to provide the labour of his children and his wives for free, in return for which he was provided land to build a home on, fields to plant crops on and grazing land for livestock. When farmers argue today that they make an important contribution to the country’s economy, that food security for the growing cities depends on them, it is fitting to recall that the unpaid labour of children and women is inextricably woven into, and is the bedrock of what is today ‘the farm’.

Over the course of the 20th Century, competition between mining, industry and agriculture for cheap African labour led to attempts to outlaw labour tenancy, which were only partially successful. It was only once land became more valuable than the increasingly abundant unemployed labour of farm tenants that labour tenants were evicted on scale. Nearly four million lost their land under apartheid and a million more have lost it since 1994.The democratic era dispossessions have taken place despite the Labour Tenants Act of 1996 that is supposed to protect the land rights of labour tenants and which allows them to claim ownership of the land they live on and use.

These recent dispossessions have been the result of land owners changing labour tenants into farm workers, partly to pre-empt land claims, partly because capital intensive farming requires less labour. This has had the complicating effect of blurring legal differences between farm workers, farm occupiers and labour tenants on farms, legal distinctions that don’t fit the social realities on farms. More shamefully, the dispossessions are the result of failure of the Department of Rural Development and Land Reform to process the legal claims of labour tenants and to ensure their Constitutional entitlement to tenure security.

A lengthy class action court case brought by labour tenants living at Hilton College, the elite private boys’ school in the KwaZulu-Natal midlands, with the support of the land rights NGO, AFRA, to force the Department to recognise its legal duties to labour tenants is currently before the Supreme Court of Appeal. The Land Claims Court had ordered the establishment of a Special Master answerable to the Court to oversee the implementation of the Act. The Appeal Court will give its judgement in April.

Whatever the outcome, it’s important to remember that this history plays itself out today. The effects of the slave conditions of labour tenancy and disrupted children’s education reach into present day South Africa. There are many disaffected, unemployed and angry children of labour tenants living on farms and challenging the power distribution over land and university education. They are better educated than their parents and grandparents, they know their rights and they assert them. The ‘farm’ is today a troubled space and without tenure security and significant land redistribution, young people living on farms have no future in the cities or on farms.

President Ramaphosa recognises this disaffection. Can he hold firm on his public commitments to ensure labour tenants get back their land?

Donna Hornby is a land activist with AFRA and post-doctoral researcher at PLAAS.

 

[Press Release] Is a new era for Land Reform beginning?

In a case that encapsulates the issues currently gripping South Africans, the Supreme Court of Appeal (SCA) heard arguments yesterday in the ongoing class action lawsuit between labour tenants and the Department of Rural Development and Land Reform (DRDLR). The country as a whole is looking to see if the promises made by our new President, of an accountable Government that will uphold the rule of law and finally take land reform forward, will be matched by decisive action.

In this latest round of court battle, a judgement handed down by Judge Ncube in the Land Claims Court on 8th December 2016 ordering the swift appointment of a Special Master of Labour Tenants to oversee the DRDLR’s implementation of the Land Reform (Labour Tenants) Act of 1996 was being appealed by the DRDLR, who were found to be in contempt of numerous Court Orders and in contravention of the provisions of the Labour Tenants Act.

The Land Claims Court found that not only had the Minister, the Director General and the DRDLR failed to protect the rights of labour tenants, but that they had also proved to be incapable of adhering to the necessary remedies prescribed by the Court. In an unprecedentedly bold step the Court found in favour of the labour tenants’ application to have a Special Master appointed to oversee the processing of labour tenants’ claims, some 11,000 of which remain incomplete since the closing date in 2001.

Yesterday, the SCA also heard arguments on whether the now former Minister of Rural Development and Land Reform, Gugile Nkwinti, should be held in contempt of court because of his unilateral decision to establish a forum of Labour Tenants without consultation with the parties in the case, despite the premise of a court order being that the establishment of this forum would be negotiated.

All five of the judges in the SCA were deeply concerned about the unconscionable delays in the processing of Labour Tenants claims, which undermines the fundamental rights guaranteed to them within South Africa’s Constitution. Their concern was that, while effective relief is undoubtedly required, the Land Claims Court may have overstepped its mandate in granting the Special Master as many powers as they did.

The judges suggested that the original applicants in the case, namely labour tenants, working with Pietermaritzburg-based NGO the Association for Rural Advancement (AFRA) and represented by the Legal Resources Centre (LRC) sit down and see whether they can come to an agreement with the State regarding the concrete application of the concept of the Special Master to oversee the process. If, however, the parties fail to reach agree in the coming four weeks, the court will proceed to give its judgment on the Appeal.

On the matter of holding the former Minister in contempt of court, the court pointed out that there is now a new minister and questioned if, given that the parties are trying to find each other, an order that says the minister was in contempt of the court might indeed be helpful at this stage.

Speaking to Labour Tenants outside the court following the proceedings, Advocate Alan Dodson, who had led the LRC’s legal team, reassured the Labour Tenants present: “Let me give you absolute assurance – the interests of Labour Tenants are paramount and we will make sure that with any settlement negotiations the rights of Labour Tenants are adequately protected. We want Labour Tenants to be absolutely clear that whatever is either ruled in by the court or settled, Labour Tenant claims must be processed. The beauty of a settlement is that it will bring the court case to an end and the focus would move to the processing of claims.”

The next four weeks will reveal the extent to which the new leadership of our country is willing to address the errors of the past, take accountability for their duties towards fulfilling the promises made to our most vulnerable citizens, and bring clear, constructive proposals to the table to effectively take land reform forward.

AFRA and labour tenants remain willing to contribute to a constructive, effective, speedy and well-resourced framework within the parameters of the law which will finally process all outstanding claims and create a better life for all.

End.

Issued by the Association For Rural Advancement (AFRA). For more information contact Nokuthula Mthimunye on ‪nokuthula@afra.co.za or ‪076 764 7110. Twitter @AFRAKZN