The Land Reform (Labour Tenants) Act 3 of 1996 came into effect on the 22nd 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 31st 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 25th 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 25th of November 2013 where the Department was granted a final extension by the court in order to file an Answering Affidavit by the 31st of January 2014 – failing which the DG must then file an Affidavit within 5 days of the expiry of that time period (ie 31st 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 31st 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 2nd of May 2014. This was duly done and the hearing has now been set down for the 19th 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
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