Press Release: Prof Richard Levin, Special Master for labour tenants

09 December 2019

On Tuesday, 10 December 2019, Prof Richard Levin will be sworn in as the Special Master for labour tenants at the Land Claims Court in Randburg. This follows the Constitutional Court judgment in the matter between, Bhekindlela Mwelase and others vs Department of Rural Development on 20 August 2019 to reinstate the Land Claims Court order of 2016, to appoint a Special Master for labour tenants because of government’s failure to fully implement the Land Reform (Labour Tenants) Act.

AFRA welcomes Prof Richard Levin’s appointment. Prof Levin is an experienced public service leader with a demonstrated history of leading public service reform since the advent of democracy in South Africa. He was appointed as Director General of the Department of Public Service and Administration in 2004 and again in 2018, also since headed Economic Development, The Office of the Public Service Commission and the National School of Government. He has managed numerous Department of Agriculture, Land Reform and Rural Development provincial offices in the past and has a proven track record of managing complex programmes. He was elected Secretary General of the African Management Development Institutes Network in 2017. He is a strong advocate of people-centred development and holds a PhD focused on Political Theory and Institutions from the University of Liverpool. The full extent of his wealth of knowledge and experience will be invaluable as he establishes the Special Master Office.

In accordance with the order, Prof Levin (Special Master) will be an agent of the court. His task will be to assist the court to realise the ultimate remedial goal, namely ensuring that the Land Reform Labour Tenant Act is fully implemented. He will operate between the Court, the Department and labour tenants. He will interact with all parties in a problem-solving way that a court cannot. He will mediate between the parties to avoid adversarial and time wasting litigation, and will work with the parties to achieve the remedy and reports to the court on the progress. He can also approach the court for additional assistance if required.

We would like to thank the Legal Resource Centre (LRC) and Labour Tenant representatives for all the hard work that has got us this far. We look forward to being an active role-player in the implementation of the Labour Tenant Project and will offer all possible support to the Special Master’s office and the Department of Agriculture, Land Reform and Rural Development.

The beginning of the new year will see the Special Master working with the Department to develop an implementation plan that will expedite the processing of over 10 000 outstanding land acquisition claims lodged by labour tenants. The plan needs to be delivered by 31 March 2020 and the court will reconvene on 30 April 2020 to consider and approve the plan.

 

Issued by the Association For Rural Advancement (AFRA)

For more information, please contact AFRA Communications Officer Nokuthula Mthimunye on 033 345 7607 / 076 754 7110 or email nokuthula@afra.co.za

Qina Mbokodo – Be Strong Like a Rock, was recently screened at Maritzburg Social Justice Festival

The 10th annual Maritzburg Social Justice Film and Arts Festival, hosted by PACSA in collaboration with the Association for Rural Advancement (AFRA), the University of KwaZulu-Natal Alan Paton Centre and Struggle Archives, The Witness, the Gay and Lesbian Network, the KZN Language Institute, and Groundwork, took place on Saturday, 28 September 2019.

The festival is a platform for activists and community members to imagine new ways of activism and to strengthen local struggles. It was held at the Msunduzi Museum in Pietermaritzburg, under the theme “Unleashing the Power Within”.

The festival is a celebration of our differences in the context of our joint humanity. The AFRA documentary Qina Mbokodo – Be Strong, Like a Rock was screened at the festival amongst other films.

The screening was followed by a discussion session, led by Qina Mbokodo women (a women structure that gives voice to issues women farm dwellers are confronted with) which delve deeper into how gendered super exploitation is secured and maintained on farms.

This year’s programme included drama, poetry, comedy and authentic cultural food, cultural artefacts, and book reviews.

DIALOGUE ON THE PROVISION OF ACCESS TO BASIC SERVICES TO FARM OCCUPIERS AND LABOUR TENANTS

Farm occupiers and labour tenants standard of living is appalling. They have limited and at times no access to the basic resources necessary for human survival, self-actualisation, or dignity. They struggle to access water, they have awful ablution facilities, and their refuse is not removed by their municipalities. They also struggle with adequate housing, access to medical services, education, and electricity.

Do municipalities have a responsibility to provide basic services to farm occupiers and labour tenants?

On 29 July 2019, the Pietermaritzburg High Court delivered a judgment against the uMsunduzi, uMshwathi and uMgungundlovu municipalities directing them “to provide farm occupiers and/or labour tenants within areas of their jurisdiction with access to basic services”

https://drive.google.com/…/1_8uq1dJ0YvRmK0vgaAp4PHLym…/view…

Join AFRA and the Legal Resources Centre in unpacking and understanding the judgment; it impact on all municipalities; and in designing or proposing strategies that will assist in ensuring that the constitutional rights of farm occupiers and labour tenants’ access to basic services are realised.

When: 2 October 2019 at Centenary Complex, Department of Agriculture, Cedara at 09:00

 

Settlement agreement reached in the Hilton land claim matter.

On Tuesday, 03 September 2019, a settlement agreement was reached in the Hilton land claim matter and was made an order of the Land Claims Court sitting in Durban High Court.

In terms of the agreement the state “agreed to make an offer of alternative land … that shall be transferred to the claimants to be held communally by them through a legal entity of their choice.” The alternative land shall be “located within approximately 40 km from Hilton and sufficiently close to schools [and] it shall be sufficiently large, and of an adequate quality, to permit cropping, grazing and the continuation of a rural lifestyle.”

Once the alternative land is identified the Department of Agriculture, Land Reform and Rural Development “shall procure the assistance of the three spheres of government to facilitate the provision of basic services, infrastructure and housing for the Claimants.”

In terms of the settlement agreement, the Hiltonian Society undertakes to assist the claimants to erect houses, provide transport from the alternative land to Hilton and assist the families to transport their cattle and goods to the alternative land. The families will only be required to move to the alternative land once the houses have been built there and there is provision of water, electricity and sanitation on the alternative land.

Read: Hilton Colleage land claimants will finally become landowners – http://www.702.co.za/articles/360326/hilton-college-land-claimants-will-now-finally-become-landowners?fbclid=IwAR2CrbHrecfCgDPTiBRjYypAictPL7htZHTfwMwB4Q1iAy7Uw4jGffrEb5Y

 

State’s failures impede land reform

Too late: Bhekindlela Mwelase died in November last year, six months before the Constitutional Court dignified his claim to the land that he had worked on as a labour tenant for most of his life. (Max Bastard/African Eyes Photography)
Too late: Bhekindlela Mwelase died in November last year, six months before the Constitutional Court dignified his claim to the land that he had worked on as a labour tenant for most of his life. (Max Bastard/African Eyes Photography)

LAND

Last week the Constitutional Court handed down a crucial judgment in Mwelase vs Director-General for the Department of Rural Development and Land Reform relating to the critical debate on “the land question”.

The decision shows an increasing acknowledgment by the court that justice delayed is justice denied to dispossessed, disenfranchised and landless black South Africans. It also signals the court’s willingness to intervene to correct this state of affairs by exercising its own constitutional powers to the hilt.

Bhekindlela Mwelase, Jabu Agness Mwelase and Bazibile Gretta Mngoma were the applicants. Mwelase and Mngoma’s applications were launched on behalf of Xhegwana Mwelase and Ndoda Mngoma respectively.
Such is the slow place of the litigation process that both died prior to the launch of the court application in 2013.

Bkhekindlela Mwelase himself died on November 7 last year, six months before the Constitutional Court would dignify his claim to the land he had worked on for years with a hearing.

The applicants’ claims were supported by the nongovernmental organisation the Association for Rural Advancement.

The Land Reform Act, which came into effect on March 22 1996, is designed to contribute to the restitution of land to those deprived of land by racial subordination in the form of apartheid and colonialism.

The specific role of the Land Reform Act at issue in the Mwelase case was the protection of security of tenure of labour tenants. Labour tenants are people who work on farms they do not own in exchange for the right to live on and work a portion of the farm for their own benefit. The definition provided by the Act includes the children and grandchildren of such labour tenants.

The Act gives important rights to any person who was a labour tenant on June 2 1995, including the right to “with his or her family members to occupy and use that part of the farm” and provides for protection against unlawful eviction.

But the “gold” in the Act, according to the Constitutional Court, is that it gives labour tenants the right to acquire ownership of such of land through a detailed, complex process spearheaded by the department of rural development and land reform. This legislative enactment the court describes as a “colossal statutory promise” with potentially “life-changing importance”.

For labour tenants, the initial requirement was to enter an application by March 31 2001. By this date 19 416 such applications were lodged. The department, in turn, was required to notify the landowner of the application and publish a public in notice in this regard.

If the claim is contested, which is likely, and mediation attempts fail, the department is then empowered to refer the dispute to the land claims court for adjudication.

Here, according to the court, is the rub in Mwelase. “If the department fails to do this, there is an irreversible hold-up: the claim becomes inextricably snagged.”

Fail the department has over the nearly two decades that elapsed since the claims were lodged in 2001. The claims of Mwelase and his co-applicants have still not even been referred to the land claims court for adjudication.

Still more outrageously, the court noted that the evidence before it suggested that Mwelase is in the same position as about 11 000 other such land claims that remain unsettled. This is more than half of the number of claims submitted in 2001.

The department’s glib response to the applicants’ claim in the Mwelase case was initially to admit that, because its record keeping was “non-existent” and “shambolic”, it would take two years merely to capture the details of these outstanding applications.

The Constitutional Court noted that it could take the department between 24 to 40 years to settle the remaining claims given its own descriptions of its processes.

The applicants had asked the court to exercise a power it had never exercised before, namely to appoint a special master to supervise and direct this process and expedite the department’s finalisation, assessment and referral of claims.

The Constitutional Court has broad powers to grant just and equitable “relief” or “remedy” to those who prove their constitutional rights have been violated.

The department told the court that the appointment of a special master, under the auspices of the judiciary, would amount to a usurpation of the powers of the executive in violation of the separation of powers.

In response, the court noted that none of the cases it had decided “quite match the sustained, large-scale systemic dysfunctionality and obduracy that is evidenced here”. The court goes on to describe the department as a whole as displaying an “obstinate misapprehension of its statutory duties”, “unresponsiveness” and “a refusal to account to those dependent on its co-operation”.

The court accepts that the department has a “patent incapacity or inability to get the job done”.

It is hoped that this judgment may provide a crucial turning point in the debate about land reform and redistribution for several reasons.

First, the court engages directly with the “intensity and bitterness of our national debate about land reform”. With more far-reaching implications than for the case at hand, the court places the blame for the turgid progress on land reform squarely on the shoulders of the executive.

“It is not the Constitution, nor the courts, nor the laws of the country that are at fault … It is the institutional incapacity of the department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis”, proclaims the court.

This leaves the Cabinet with nowhere to hide, and no “sell out” constitutional property clause to hide behind. It also signals to Julius Malema’s Economic Freedom Fighters, which has increasingly attacked the courts for their transformation-inhibiting conservatism, that whatever amendment of the Constitution or legislation is achieved, in the court’s view, the primary obstruction to land redistribution and reform is to be found elsewhere.

Second, the court warns that, despite its sensitivity towards the need for the department to have a free hand at performing its constitutional mandate without undue interference, systemic failure to perform may justify, and require, muscular intervention by a court. This is of relevance far beyond the facts of this case and the land issue more generally.

Systemic failures in the other key “service delivery” oriented departments such as education, healthcare, housing and social security are well known.

The court warned that, because the separation of powers does not “imply a rigid or static conception of strictly demarcated functional roles” and “the mythical spell must be broken” to ensure the protection of Mwelase and his co-applicants’ constitutional rights, “court control of the remedial process” may be warranted.

In this case it required the appointment of a special master, reporting to the judiciary with “temporary, supervised oversight of administration”.

In such circumstances, the court considers the appointment of a special master to be not a violation of the separation of powers but an “extension of judicial independence” necessary for the execution of its mandate as the ultimate guardian of constitutional rights.

The government should expect that more and more litigants ask for such “supervisory” remedial action in the face of systemic failures.

Third, the court’s tone, acknowledgments and emphases signal to advocates for land redistribution that the court is sympathetic to the urgency and importance of the resolution of the land question.

Moreover, describing the situation as a “constitutional near-emergency” and a “colossal crisis”, the court is warning the government that it must endeavour to ensure that, as the Constitution requires, its obligations are performed diligently and without delay.

Failing which, and irrespective of the success of the mooted constitutional amendments of the property clause, courts may begin to act to the embarrassment of a government whose legitimacy is questioned within and outside of its own political ranks.

Bhekindlela Mwelase, Jabu Agness Mwelase, Bazibile Gretta Mngoma, Xhegwana Mwelase and Ndoda Mngoma deserve better. The Constitution and legislation enacted by Parliament promise them as much.

The court has drawn a line in the sand and insisted that the executive perform its constitutional obligations, failing which it might have take action to guide and direct it in doing so. What happens next will, one way or another, affect and change the lives of millions of poor, black, landless South Africans whose pleas for justice cry out for resolution.

Tim Fish-Hodgson works for the Africa team of the International Commission of Jurists

Court judgment to restore farm dwellers’ dignity

Musawenkosi Cabe, NewFrame A Pietermaritzburg High Court ruling has found that municipalities were in breach of the Constitution in not providing labour tenants and farm occupiers with essential and basic services.

The recent high court judgment declaring that three municipalities in Pietermaritzburg must provide water, sanitation and waste collection on farms has been hailed as a victory for farm dwellers across the country.

“The judgment will have implications to the broader South Africa, in that it will be used as a precedent by the farm dwellers to demand municipalities in their areas provide them with basic services,” explained senior attorney Thabiso Mbhense from the Legal Resources Centre (LRC).

Labour tenants and farm dwellers brought an application against various local and district municipalities in and around Pietermaritzburg, including the Msunduzi and uMshwathi local municipalities and the uMgungundlovu district municipality, to provide them with sufficient water, basic sanitation and collection of refuse on farms.

Among the applicants was labour tenant Zabalaza Mshengu, 104, who died on 13 August 2018 before this year’s court ruling in July. The centenarian was born and had lived his whole life on Edmore Farm, under the jurisdiction of Msunduzi municipality. His father before him was also a labour tenant on this farm. Mshengu lived with his family in what Judge Bhekisisa Jerome Mnguni described as an “old, dilapidated, hand mud structure” on the farm’s hilltop.

Distant water source

Mnguni wrote in his judgment that the house’s nearest water source was 100m away, but it contained water that was “stagnant and not suitable for consumption or any other use”.

The only viable source of water for the Mshengu family and other occupiers is a communal tap about 500m away, on a neighbouring farm. Mshengu’s family and others living on Edmore Farm “have to push 25-litre cans down the hill on wheelbarrows, through the bush, and haul them back up a gruelling upward ascent on their return”, according to the judgment.

In Pietermaritzburg, labour tenants on Greenbranch Farm do not have ablution facilities in their homes. The farm’s owner thwarted attempts to build pit toilets.

The farm owner “advised them that they were not allowed to construct pit toilets on the settlement and were to use the sugar cane plantation as their toilets. Mr Meyer [the owner] told them that human waste is a form of manure that assists with fertilising his crop,” says Mnguni’s report. “The plantation is unsafe, unhygienic, smelly and attracts flies and other health hazards … Women in particular suffer great hardship, humiliation and impairment of their dignity as they do not have a proper place to dispose of their used sanitary towels.”

The Greenbranch Farm lack toilet facilities and the labour tenants working on the farm, more than 60 people, have to share two taps.

At times, people have to queue for hours. Some days, they cannot get water as the farm owner switches the water off willy-nilly and without notice.

Attempts at engaging the municipal councillor failed to resolve the matter. They said the landowner had blocked the municipality from providing basic services.

Afra gets involved

This led to non-governmental organisation the Association for Rural Advancement (Afra) taking the matter, along with the labour tenants, to the local government. They wrote several letters to the various municipalities involved, but got only one vague and short response.

The LRC represented the farm dwellers in a class action suit against the three municipalities involved on the basis that a number of constitutional rights were violated.

Farm tenants relied on Section 27 of the Constitution, which states that they have the right to water, sanitation, refuse collection and a clean environment. The municipalities have an obligation to provide these essential services.

The municipalities argued that farms were the private property of farm owners and, as such, the responsibility of providing water and sanitation fell to them.

Mnguni dismissed this, saying: “As state, the first respondent is the water services authority and, as such, the obligation to provide water and sanitation for farm occupiers and labour tenants rests on it, not on the landowners.

“The landowners have no direct statutory obligation to provide such services unless contracted to do so by the water services authority in terms [of Section] 19 of the Water Services Act (WSA). Even in instances where landowners are to provide water services to another in terms of a contract, [Section] 26(3) of the WSA authorises the water services to authority, if the intermediary fails to perform its obligations in terms of the agreement to ‘take over the relevant functions of the water services intermediary’.”

The municipalities claimed that the right to private property was preventing the labour tenants from fulfilling their duties.

Mnguni refuted this claim, saying that a “landowner cannot unreasonably deny the municipality access to his farm in order to install necessary infrastructure to ensure the provision of the services”.

Forgotten citizens

Farm dwellers call themselves “forgotten citizens” because of how the state has neglected them. The court concurred, saying: “It seems apparent from the perusal of the Integrated Development Plans that the first respondent has not prioritised the farm occupiers and labour tenants that are particularly vulnerable and in need, by providing an actual plan for how their rights will be realised.”

The high court directed municipalities to comply with regulations by installing “a sufficient number of water user connections to supply a minimum quantity of potable water of 25 litres per person per day or six kilolitres per household.”

The flow rate in water user connections should, it recommends, not be less than 10 litres per minute. And most importantly, these water user connections must be within 200m of the farm dwellers’ households.

The court went further, ordering the municipalities to install, as per regulations, a Ventilated Improved Pit toilet in each household. It also directed municipalities to provide farm dwellers with refuse collection, for a cleaner and healthier environment.

With municipalities having demonstrated a lack of responsiveness on issues affecting farm dwellers, the high court opted to supervise the order, so that it would be implemented timeously.

To this effect, Mnguni ordered the municipalities to file a report with details of all farm dwellers in their jurisdictions, indicating if they have access to water, sanitation and a refuse collection service. The order instructs that an action plan be filed with the report, detailing how the municipalities will provide these essential services.

Mbhense said the judgment had “restored the dignity of farm dwellers”.

Nokuthula Mthimunye of Afra agreed, saying that the association “believes that the judgment will reinforce and strengthen the rights of farm dwellers and labour tenants, but more than anything, that it will restore the dignity of the many farm occupiers and labour tenants who have to use the bushes as ablutions/toilets, who have to carry 25-litre cans ±200m to get their water, who do this every day because they are not visible and therefore are not included in Integrated Development Plans.”

Justice delayed for fallen labour tenant Con Court applicants

11 April 2018.

Mndeni Sikhakhane sits in his hut in Hilton Valley village in the KwaZulu Natal midlands. He rests on a bed in his grass thatched rondavel. Outside his family go about their daily chores around the homestead. The rondavel is one of several built around a square shaped white brick house identical to many in the village.

Sikhakhane is blind. He is 88 years old. His grey cataract eyes wander around the hut. He appears in relatively good physically shape – except for his feet which appear slightly swollen.

He is in good spirits. Yet there’s an important matter weighing heavily on his mind. Age is no longer on his side and he fears that if he were to die now, he would leave behind an important matter unresolved.

“I want to see cows roam free and I want to farm for my family on the land of my birth and not have to explain myself to anyone. That is all we want,” he says.

Mndeni Sikhakhane who was one of the last surviving applicants in two important court cases involving labour tenants has died. He was part of court action to force the department of rural development and land reform to appoint a special master of the court to help process and adjudicate thousands of outstanding land claims brought by labour tenants. Photo: Lucas Ledwaba/Mukurukuru Media

5 August 2019.

A WhatsApp message drops on my phone in the late afternoon. Sikhakhane passed on the day before. He was the last surviving applicant in two important court cases affecting farm labour tenants.

One of his lasting wishes was that he could live long enough to see the finalisation of the two cases, one in which the Constitutional Court finally ruled in his favour this week; and another upcoming in the Land Claims Court in September.

In 2013, together with Bhekindlela Mwelase, Jabu Agness Mwelase and Bazibile Gretta Mngoma, Sikhakhane was one of four applicants who asked the Land Claim Court to force the department of rural development and land reform to appoint a special master to process and adjudicate over thousands of land claims lodged by farm labour tenants.

The Legal Resources Centre (LRC) and the Association for Rural Advancement (AFRA) which brought the case on behalf of the applicants argued that the estimated 11 000 and 22 000 land claims lodged by labour tenants labour tenants who filed them between 1996 and 2001 – were getting nowhere because of bureaucracy.

The case was filed as a class action before the Land Claims Court on behalf of an estimated 19 000 labour tenants and their family members who live in their homes in KwaZulu-Natal, Mpumalanga and Limpopo. Judgment on the matter by the Constitutional Court is pending.

Sikhakhane was also expected to testify in a separate matter in the Land Claims Court next month – in which The Hiltonian Society is disputing that the claimants had been or were labour tenants. But Sikhakhane will appear in no court anymore.

On the first Sunday in August, surrounded by family in his hut on the grounds of the village – the octogenarian took his final breath.

Sikhakhane’s granddaughter Manunu Sikhakhane said his health had been failing him for quite some time. He could not even travel to the Constitutional Court hearing in May due to ill health.

“He was always worried about this case. He would ask us if he would die before he saw it finalised,” Manunu told Mukurukuru Media.

AFRA spokesperson Nokuthula Mthimunye said Sikhakhane’s passing leaves a big question mark around the Land Claims Court case to be heard next month. Sikhakhane was the last of the surviving original four claimants.

“We assume that he might have been stressed with this process considering his age. He had to go stand before the court and testify and prove that he was indeed a labour tenant. That could have been one of the things that stressed him,” said Mthimunye.

She said they have tried to apply for a postponement of the matter after learning of Sikhakhane’s death but this was not successful.  Mthimunye said it was now unclear what would happen given that Sikhakhane was the last surviving applicant in the matter.

Sikhakhane and his family together with 35 other families lived on a portion of the farm owned by The Hiltonian Society, which owns the prestigious Hilton College. The families, descendants of the original occupants of the land have lived here all their lives.

“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,” he told me in an interview in April last year.

The department of rural development and land reform has endorsed a Land Claims court ruling that ordered the department of rural development and land reform to appoint a special master to help process thousands of land claims lodged by labour tenants. Photo: Lucas Ledwaba/Mukurukuru Media

20 August 2019.

Constitutional Court Judge Edwin Cameron rules in favour of Sikhakhane and his fellow applicants. Sikhakhane has been buried just a week earlier. Bhekindlela Simelane died in November 2018. All the four original applicants are gone – justice delayed, justice denied.

Cameron’s judgment reinstated Ncube’s December 2016 ruling that a special master be appointed to help the department process the land claims by labour tenants.

‘…the Department has jeopardised not only the rights of land claimants, but the constitutional security and future of all.  South Africans have been waiting for more than 25 years for equitable land reform,’ Cameron said in his judgment.

‘More accurately, they have been waiting for centuries before.  The Department’s failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly exacerbated the intensity and bitterness of our national debate about land reform.

‘It is not the Constitution, nor the courts, nor the laws of the country that are at fault in this.  It is the institutional incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis.’

Ncube’s judgment ordered the department to submit suitable names for a special master and an implementation plan within 30 days of the ruling. Cameron’s judgment means the department now has to comply with this.

Labour tenant Bhekindlela Mwelase died before the case in which he was an applicant was resolved by the Constitutional Court. Photo: Lucas Ledwaba\Mukurukuru Media

Background

Labour tenants had very little legal protection until the passing of the Land Reform (Labour Tenants) Act of 1996 and the Extension of Security of Tenure Act of 1997. 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 through 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 deal.

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 more than 200 years — found their land claims frustrated by government bureaucracy.

In their application Sikhakhane and the three applicants said they had approached the court 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 of rural development and land reform and the Hiltonian Society submitted to the court that settling the applications would be an enormous task.

In December 2016 the Land Claims Court ruled in favour of the applicants, exposing the many structural and operational failures within the system and the department in the process.

“It is apparent from the Act that if the First and Second Respondents fail to process applications for awards in land by labour tenants, the noble goals of the Constitution at Section 25 (6) echoed in the Act, of granting security of tenure and ownership of land to labour tenants, will not come to pass. This regrettable state of affairs has, unfortunately, 20 years after the promulgation of the Act in 1996, actually come to pass,” Judge Thomas Ncube said in his judgment delivered on 8 December 2016.

The court also found that both the director-general and minister of the department of rural development and land reform and the department itself had been unable to provide statistics of exactly how many labour tenant claims had been lodged throughout the country.

Ncube said both the director general and the minister [first and second respondents] did not deny that they had failed to process labour tenant applications adequately and that many claims remain unattended to.

Furthermore the director general had admitted that labour tenant applications had not been proactively managed for a number of years and had admitted in an April 2015 report that the process of collating outstanding information could take between 12 to 24 months.

Ncube said the admission that the processing of labour tenant claims had been effectively neglected and were at that time in a chaotic state had prompted the applicants to ask the court to appoint a special master to process land claims brought by labour tenants.

The court ruling was rather damning and exposed the inefficiencies and almost lax attitude of the department in dealing with land claims by labour tenants, a view expressed by claimants.

Ncube was understandably scathing in his judgment, saying that the court now had to deal with ‘the serious problems that have been created due to the many years of disregard and neglect of labour tenants’ claims.’

But he went further to touch on a sensitive view expressed by many frustrated land claimants, who believe the state is deliberately delaying settling land claims so that the many of the older generation dies. This, they say, will lead to a decline in interest in the issue of land claims.

“It is common cause that many applicants for awards in land have either moved away or died, that land has changed hands and disturbingly, that files have been lost by the Department [of Rural Development and Land Reform].

“It also appears to be common cause that in many ways the department is required to start the entire process from scratch. It needs to collect information that was lost or never obtained originally and to verify information that has changed hands over many years. The applicants allege that the department has shown that it is not up to the task.”

The Land Claims Court ruled in favour of the applicants, ordering that a special master be appointed to assist labour tenants to make claims for portions of the land they had worked and lived on. A special master is an independent person who is appointed by, and reports to, the court.

However the department took the matter on appeal and in August last year the Supreme Court of Appeal (SCA) overturned the earlier ruling to appoint a special master. AFRA and the LRC took the matter to the Constitutional Court citing a dissenting judgment by Judge Baratang Constance Mocumie.

In her judgment, Mocumie said the Land Claims Commission had tried ordinary court supervision but it had failed. She said there was a need for effective relief for the many thousands of vulnerable labour tenants and the department of rural development had thus far experienced grave difficulties in providing this. Mocumie said the size and complexity of the task of settling the land claims alone supported the appointment of a special master to assist the court with monitoring implementation.

In May the Constitutional Court heard arguments from the applicants who were challenging the SCA appeal.

In reaction to Cameron’s judgment this week Siyabonga Sithole land program co-ordinator at the Association for Rural Advancement [AFRA] which is also an applicant in the matter, hailed it as a historic victory as it was the first time government had been ordered to appoint a special master.

But although the case is a victory for labour tenants, they may still have much longer to wait as Ncube’s judgment exposed serious lack of capacity by the department in handling the claims and also that many records had been lost and did not provide a time frame by when the claims should be processed. Sithole said they will wait for the department to submit its implementation plan.

Sikhakhane and his fellow claimants would have probably found comfort and justification for their persistence with the court action in these words by Cameron: ‘The very course of this litigation, right up to the proceedings in this Court, has shown the Department’s inability, in colloquial but apposite terms, to get its act together.  While the good faith and good intentions of its promises and undertakings may be accepted, they have repeatedly failed to translate into effective, rights-affirming practical action.’ – © Mukurukuru Media

ConCourt reinstate Land Claims Court order to appoint a Special Master for Labour Tenants.

Today we celebrate an important victory for some of the most neglected citizens of our country in the penultimate Court in our land. Judge Cameron, in his final judgement handed down today in the Constitutional Court, finds that the Land Claims Court acted within its remit when it ordered that a Special Master be appointed to oversee the implementation of the Land Reform (Labour Tenants) Act, after Government failed since the dawn of democracy to fully implement this important legislation. Labour Tenants have been waiting far, far too long to have their claims to land settled, and now a new legal instrument will provide greater capacity for the Court to oversee the effective implementation of this Act, to realise the Constitutional rights of labour tenants.

In handing down judgement to a full court this morning, Judge Cameron said,

“The outer limits of a remedy are bounded only by justice and equity. It may come in various shapes and forms dictated by the many and varied manifestations of what kind of remedy may [be] called for. In that case the court should be wary not to self-censor. It should do justice in the court of equitable remedy to those before it, as it is empowered to do.

In the view of the majority of this court, the land claims court directed itself properly and scrupulously to the facts before it, in appointing the special master. These show failing institutional functionality of an extensive and sustained degree. That cried out for a remedy.

It recognises our joint responsibility, as a country, for sustaining and growing and strengthening our institution. It acknowledges our judicial complicity in institutional and systemic dysfunction that continues to impede our attainment, of our shared constitutional aspirations and goals.”

Here is the copy of the judgment: https://drive.google.com/…/1j6NWpm6LvA06QAqIs_EEpw3Hl…/view…

Watch Justice Cameron hand over judgment: https://www.youtube.com/watch?v=iFSz1DmIrOA&fbclid=IwAR09Ar8cimgOEzXrf9xp5hgI-evUrYuUNUl3mmIJrk9VYjNTv3Zz-BUu4yI

 

 

Court ordered municipalities to provide farm occupiers and labour tenants with basic services

Today the Pietermaritzburg High Court handed down a precedent setting judgment on the case against local municipalities: Umshwathi, Msunduzi and uMgungundlovu District Municipality for their failure to provide farm dwellers and labour tenants with access to water, adequate sanitation and refuse collection, as well as their failure to prioritise the rights of occupiers and labour tenants in their Integrated Development Plans (IDPs).

In his judgment, Judge Mnguni acknowledged the municipalities ongoing and persistent failure to provide farm occupiers and labour tenants residing within areas of their jurisdiction with access to basic sanitation, sufficient water and collection of refuse as being inconsistent with the Constitution and ordered that the municipalities provide farm dwellers and labour tenants with basic services.

The case was brought to court by AFRA and the Legal Resources Centre (LRC) in 2017 as a class action on behalf of farm occupiers and labour tenants residing under the jurisdiction of uMshwathi, Msunduzi and uMgungundlovu District Municipality in Kwa-Zulu Natal.  It sought structural relief to ensure that Municipalities provide farm occupiers and labour tenants with access to sufficient water, basic sanitation and collection of refuse.

Prior to the legal application, AFRA had received nearly two hundred farm dwellers and labour tenants claiming no access to basic services. In many cases, when they approach their municipalities to raise their concerns, municipal officials would inform them that farm owners prevent them from gaining access to their farms, thereby obstructing them from providing basic municipal services to farm dwellers.

We are happy that this court has correctly acknowledged the constitutional breaches by these Municipalities in failing to address the constitutional rights of farm occupiers and labour tenants and we welcome the remedy that has been ordered by the court. We will be monitoring the reports and plans that the court has ordered explaining how the municipalities will provide farm dwellers and labour tenants with their constitutional rights.

We believe that this judgment will reinforce and strengthen the rights of farm dwellers and labour tenants, but more than anything, that it will restore the dignity of the many farm occupiers and labour tenants who have to use the bushes as ablutions/ toilets, who have to carry 25 litre cans +/-200 metres to get their water, who do this, every day because they are not visible and therefore are not included in Integrated Development Plans (IDPs).

We hope the municipalities will not oppose the order but will work to improve the lives of people living on farms in accordance with the constitution.

Please find link to the full judgment.
https://drive.google.com/…/1Ix1KmxCTCqcGXEp8NUO-zJ5DYH…/view

For more information on the judgment, please contact.
Thabiso Mbhense – Legal Resources Centre Attorney – 071 109-9340
Or
Nokuthula Mthimunye – AFRA Communications – 076 754-7110.

 

AFRA PATHWAYS PROJECT: TENURE REVIEW

Read about the review of AFRA’s interventions to strengthen land tenure for ESTA rights holders (farmdwellers & labour tenants) with particular reference to the household survey and land records, report by Rosalie Kingwill.

The review looks at the implications for durable tenure security and land administration institutions.

Click link to read the report AFRA PATHWAYS PROJECT: TENURE REVIEW