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
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