Agri-Villages Will Do Nothing To Secure Our Tenure On Farms

I’m a labour tenant on Jericho farm in Utrecht, under the Emadlangeni Local Municipality. I have lived here with my family for many years. There is talk that the municipality wants to move us to an agri-village. For me this is just another way of evicting us. No one has asked us if we want to move.

We submitted a claim over this land under the Labour Tenant Act years ago and are still waiting. We asked the Department of Rural Development about our claim and were sent from pillar to post. We are living in limbo and cannot plan a meaningful future for ourselves. 

Over the years the land owner has curtailed our rights to graze our livestock, access to water and other resources that we depend on to survive. 

An official from Madlangeni Municipality told us recently that we will never get the title deed. Instead, they want to move labour tenants like us to an agri-village where, they say, they will bring development. We were not asked, we were told  this. 

We belong on this land. Our ancestral graves are here, our history, our heritage. If we are moved, we will lose it all, all that makes us who we are. We have worked this land for several generations of land owners, we have learnt our rights as labour tenants. We want secure tenure and development support here on this land where we belong. We don’t want to move to an agri-village with a promise of development. We call on the municipality to listen to our plea and not take decisions without us. 

We are saying  “Nothing for us, without us”!

Phansi ngama agri-village, Muwubuye Umhlaba Wethu!

11 June 2015

by Ntombi Makhubu, Labour Tenant, Utrecht KwaZulu Natal

A Struggle In Vain

His name means Struggle, and despite turning 101 in January, Zabalaza Mshengu is still struggling to get government to process his legal claim to the land where he hopes to live out the time he has left.

From his derelict home on a commercial farm near Ashburton, Mshengu points across the N3, shaking with emotion at his memory of a precarious life. “This all used to be one farm before the highway came. My mother and father worked there for no wages, and when I was old enough I also worked on that farm. In return, the farmer gave us land to graze our cattle and grow our crops. My father’s grave is there – I don’t know if that owner even knows it is there.” 

 

Mshengu had reason to hope in 1996 when a new law promised to secure his rights to the land he had grown up on. The Land Reform (Labour Tenants) Act derives from the Constitution, which guarantees tenure to people deprived of it in terms of racially discriminatory laws. The act addressed the plight of labour tenants who, like Mshengu, had clung to land and the remnants of independent farming by working for land owners without receiving wages despite attempts by successive apartheid laws to destroy this way of life. It provided for labour tenants to claim ownership of the land they and their fathers had lived on and used. By the closing date for the lodging of claims in March 2001, about 19,000 labour tenants had applied for land ownership. Mshengu was one of them.

 

But 14 years later, the Department of Rural Development and Land Reform has once again failed to comply with a Land Claims Court order that it explain how it will resolve these land claims. The application was brought in July 2013 on behalf of all labour tenant claimants by the Legal Resources Centre acting for the Association for Rural Advancement (AFRA) and four labour tenants who reside on land belonging to Hilton College. The Department has, on at least five occasions, either failed to respond to Court orders or has submitted affidavits late. A report on the case by AFRA’s director, Mike Cowling, a former professor of law, states: “The bottom line is that the Department has comprehensively and systematically failed to carry out its basic mandate in respect of labour tenant applications.” 

 

Cowling’s conclusion was once again confirmed last week when the Department failed to provide the information the Court required. Once again, the Department failed to show the courtesy of informing the Court or the applicants that it was unable to comply with its orders. And once again, the applicants’ lawyers have had to request that either the information is provided or that the Department is found to be in contempt of Court. It has until Friday to respond.

Mshengu, understating his exhausted patience, says simply: “Land affairs is taking far too long to settle my claim.” 

By Donna Hornby 

3 April, 2015 

Government cocks a snook at the courts over labour tenants

South Africans disagree sharply about who should own the land. They disagree too about who should be the country’s future farmers and food providers. But few South Africans would disagree that our future as a peaceful, if not prosperous, country depends on respect for the judiciary and the Courts. And yet the sorry case of four labour tenants and an NGO indicates a government happy to push judicial parameters to the extreme in order to avoid implementing the law.

The Land Reform (Labour Tenants) Act 3 was passed in 1996 to give effect to a clause in the Bill of Rights of the Constitution that a person who had insecure land tenure as a result of discriminatory laws is entitled to secure tenure or comparable redress. It made provision for labour tenants to apply to have the land they lived on and used transferred to them in ownership. By the cut-off date of March 31, 2001, about 19,000 labour tenants had applied for land ownership. But, 14 years later, on March 31, 2015, the Department of Rural Development and Land Reform had not only failed to process many of these claims, it had, true to form, ignored yet another order of the Land Claims Court. The story, which began in 2011 when four claimants who live on the Hilton College Estate approached the Association for Rural Advancement (AFRA), a KwaZulu-Natal land NGO, for help to compel the Department to process their claim, constitutes a case of the most blatant disregard for the Courts and the law.

When the Hilton College claimants approached AFRA, AFRA realized that their plight was no different from that of thousands of other labour tenant claimants across the country, and decided to bring a class action against the Department on behalf of all labour tenants in the form of a structural interdict. To this end, it approached the Land Claims Court in 2013 to compel the Department to explain how it intended to process the claims. The Department failed to respond within the time set by the court rules, and applied for an extension, which it subsequently failed to comply with. AFRA and the Hilton College claimants, represented by the Legal Resources Centre (LRC), then advised the Department to explain this failure to adhere to the time frames. Again the Department failed to comply and the matter was set down for the unopposed roll in November 2013.

A week before the court date, the Department filed its affidavit explaining why it had been late and applied at the same time for condonation. AFRA and the claimants opposed the condonation and the Court ordered the Department to respond to the objection by a certain date, failing which the Director-General would have to explain why he should not be held in contempt of Court. Once again, the Department failed to comply, and instead wrote a letter to say it would file its response a month later. Again AFRA and the claimants objected, and asked that the Department comply. Again it failed, and the matter was again set down for hearing. A week before the hearing about the condonation, the Department filed its response. In an attempt to bring the focus back to the central concern, namely the Department’s failure to implement labour tenant land claims, AFRA and the claimants agreed to drop the condonation case. A court date for September, 2014, was thus secured to hear the case.

Prior to the hearing, a number of high-ranking Departmental officials contacted AFRA to settle the matter of the Hilton College claimants out of court. At various meetings, the officials agreed to provide AFRA with a list of claimants, the status of the claims and an action plan on how it intended to process the claims. The information was never provided, and AFRA and the claimants decided the only possible remedy would be once again to secure the help of the Court.

On 19 September, 2014, the application was heard in the Land Claims Court in Randburg, and the Department agreed that AFRA and the claimants’ request for information on how labour tenant claims would be processed should be made an order of the court. The Department agreed to provide the information by 31 March, 2015. That was last Tuesday, exactly 14 years after the closing date for the lodging of land claims in terms of the Act. The Department failed again to provide the information. Again, the LRC, on behalf of AFRA and the claimants, has issued a notice requesting the information or an explanation why the Department should not again be held in contempt of court.

For AFRA, and the 19,000 labour tenants waiting for resolution of their land claims, the wait continues. But there are other costs, perhaps more important than the land claims of labour tenants: if the Department, as an arm of Government, can consistently and systematically disregard the rules and orders of a Court that has the same status as a High Court, how can ordinary South Africans be certain that their Constitutional rights will be protected if government chooses to disregard them?

By Donna Hornby 

3 April, 2015 

Shaping a new legacy: Tshintsha Amakhaya discussion at the Land Divided 2013 Conference

Tshintsha Amakhaya, an alliance of NGOs in land and agrarian reform,hosted a workshop at the Land Divided 2013 Conference which was held at the University of Cape Town between 24 and 27 March 2013. Participants at the conference ranged from civil society actors and activists, to interested and affected community members; but strongly comprised of the academic community who presented their research on various aspects of the land debate. 

 

Although the conference gave participants the opportunity to experience a range of unique and compelling arguments, as well as top quality research on the issue of land in South Africa and across the world, there was a dearth of opportunities to actively engage in debate about the issues. The workshop hosted by Tshintsha Amakhaya provided an opportunity to explore new ways to tackle land and agrarian reform. 

 

A presentation by Dr Stephen Greenberg on the outcomes of research by Tshintsha Amakhaya partners into the agrarian rural household economy, which was followed by the screening of community videos, set the tone of the discussion to come. Participants then discussed in groups what could be done to reverse the legacy of the 1913 Native Land Act, under which many South Africans suffer today. They were asked to consider the shape and substance of a new legacy, 100 years from now. 

 

Responses varied. One group felt that a continuous and systematic commitment to land reform must take place which goes beyond the 30% of the land which government seeks to redress. Furthermore, the kind of agriculture which is pursued by land owners must be reassessed and other ways of farming, including other land uses, must be considered; with a focus on future generations. Another group felt that in 100 years we must no longer be talking about dispossession of land; but rights and ownership. Legal instruments may have a place in future land reform efforts because the recognition of people’s customary rights to land may assist with securing access and use. 

 

Furthermore, South Africa must question the modern economy and the fact that agriculture is based on the corporate model of farming. A move towards smallholder and family farms might be the answer to equitable and sustainable land use, yet this must be grounded in solid research. Lastly, planning for land reform and agricultural development must be situated within people’s complex and dynamic livelihoods. The negotiations about land and decisions about land use should recognize geographical and social difference, and may generate multiple development trajectories to strengthen people’s livelihoods across the rural-urban spectrum. 

Claire

26 March 2013 

Mwelase, AFRA and Others vs The Director-General of the DRDLR and Others

The Land Reform (Labour Tenants) Act 3 of 1996 came into effect on the 22^nd of March 1996 and was designed to provide security of tenure to labour tenants. In particular, s 16 of the Act enabled labour tenants to apply for acquisition of ownership of the land they were entitled to occupy in their capacity as labour tenants.

On the strength of this provision literally thousands of labour tenants lodged claims with the Department of Rural Development and Land Reform (the Department) before the cut off date of the 31^st of March 2001.

Thereafter chapter 3 of the Act creates certain obligations that must be carried out by the Department in order to expedite this process. Thus, s 17(1)(a) requires the Department to notify landowners that such an application has been made whereas s 17(2)(c) stipulates that the Department must publish notice of such applications in the Government Gazette. Thereafter, should the parties fail to settle the question of acquisition of land by the labour tenants, the Department must refer this matter to the Land Claims Court.

It is clear from these provisions that the Department is authorised (and obliged) to play a proactive role in resolving the issue of acquisition of land by labour tenants. Thus, this is not merely an issue between landowner and the labour tenant. This is particularly since only the Department can refer the matter to court and hence it acts as a gatekeeper in this particular respect.

This raises the issue of what happens when the Department fails to carry out its obligations? This can either take the form of failing to process notices in terms of s 16 or failing to refer cases to court. Unfortunately this has proved to be a fairly common practice with the result that literally thousands of labour tenant applications throughout the country have not been processed or referred to court by the Department. And this is almost 14 years after the cut-off date!

The case of Mwelase & AFRA and Others vs the Director- General (DRDLR) is a good example in this regard. The applicants in this case occupy land on the Hilton College Estate and lodged claims for acquisition of land on the land they occupy in June 2000. After certain preliminary negotiations the process ground to a halt. The effect of this is that the applicants are literally living in limbo since their status as labour tenants is disputed by Hilton College.

AFRA took up their case in 2011 but it was realised that their plight was no different from that of thousands of other labour tenant applicants and hence it was decided to bring a class action on behalf of all outstanding claimants. This is on the basis that all of these labour tenants together create an identifiable class of persons with a common course of action confronted by substantially similar issues of fact and law.

To this end AFRA and the Hilton labour tenants launched a class action application against the Director-General of the Department in July 2013. The Department failed to respond within the timeline set by the court rules and then instead applied for an extension which it subsequently failed to comply with.

After further delays, AFRA and the applicants through the Legal Resources Centre, who acted as legal representative in this matter, delivered a notice of bar advising the Department to file an Answering Affidavit within 5 days. The Department failed to do so and hence the matter was enrolled for hearing on the unopposed roll for the 25^th of November 2013.

This seems to have spurred the Department into action and one week before the hearing date the latter filed its Answering Affidavit together with an application for condonation for the late filing of the Affidavit. This was opposed by the applicants on the basis that the Department had failed to show any good cause as to why condonation should be granted.

The matter duly came before the court on the 25^th of November 2013 where the Department was granted a final extension by the court in order to file an Answering Affidavit by the 31^st of January 2014 – failing which the DG must then file an Affidavit within 5 days of the expiry of that time period (ie 31^st of January) explaining why he should not be held in contempt of court.

Once again the Director-General failed to comply and instead sent a letter to the applicant’s legal representatives stating that it was unable to comply with the court’s deadline and that the Affidavit will be filed during the course of February 2014. Thereafter a notice was served on the Department giving the Minister and the Director-General 5 days to comply with the order to file the Answering Affidavit failing which an application will be made for an order striking out the Department’s defence or compelling the Department to comply with the order.

The Department persisted in its failure to so comply and hence remained in breach of the court order. The applicants applied for the matter to be set down for hearing on the 31^st of March 2014. Less than a week prior to this the Director-General filed the required Answering Affidavit. In a spirit of attempting to resolve this matter through co-operation the applicants consented to the matter being removed from the roll and agreed to file a Replying Affidavit by the 2^nd of May 2014. This was duly done and the hearing has now been set down for the 19^th of September 2014.

Judging from the conduct of the Department it seems clear that it has done everything in its power to avoid the central issue in this case. In addition it also seems to have attempted to draw out this matter for as long as possible by failing to comply with deadlines and raising technical issues. However the bottom line appears to be that, owing largely to incompetence, corruption, arrogance and a whole host of other unspecified reasons, the Department has comprehensively and systematically failed to carry out its basic mandate in respect of labour tenant applications by processing and finalising labour tenant claims for acquisition of land.

It has also become clearly apparent during interaction between the Department and NGO’s working in this sphere that the Department has failed to maintain accurate records which means that thousands of applications have been lost or cannot be traced.

The present matter is a case in point where the Department has no record of the applicants’ s 16 applications and yet it is common cause between the parties that the landowners (ie Hilton College) were served with notices by the Department in terms of s 17 of the Act. The issuing of a s 17 notice to the landowners must have been preceded by an application made by the applicants as labour tenants in terms of s 16 as this is the very rationale for the issuing of notices to landowners in terms of s 17.

This illustrates the type of confusion and chaos that currently reigns within the Department and it needs to be multiplied several thousand times over in order to engage the effect that this is having on thousands of labour tenants and their families throughout the country.

Thus, the class action that is being brought on behalf of all outstanding labour tenants is a genuine attempt to elicit the assistance of the court in order to remedy this situation. In essence the relief requested in this class action is a form of systemic relief commencing with a declaration by the court to the effect that the Department’s ongoing and persistent failure to process or refer labour tenant applications to court is inconsistent with the Constitution. Thereafter the court is requested to direct the Department to process all outstanding labour tenant applications within 1 year.

However, this process will be constantly monitored by the court (assisted by relevant NGO’s and other interested parties involved in this type of work) since the Department will be directed to file a Report and a Plan with the court. The Report will detail the status of all previous applications that have not been finalised whereas the Plan will chart a way forward in the form of the Department outlining how it intends processing the outstanding claims and bringing them to finalisation.

The Report and Plan will be circulated amongst all interested parties who will be entitled to comment thereon. In addition, the court will evaluate the Department’s performance when measuring the latter against the Report and the Plan and issue monthly compliance orders.

It is hoped that this results in the development of a process that will have the effect of finalising the outstanding labour tenant claims. In addition, given the endemic delays that have bedeviled this scheme from its inception, it is important that outstanding claims are fast-tracked. Numerous attempts to engage with the Department in the past have generally failed to realise any positive results. This is not to say that all claims are valid but the finality is desperately needed – from the perspective of the claimants as well as landowners. It is hoped that the intervention of the courts will compel the Department to achieve this finality.

By Mike Cowling