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01 Apr 2016 00:00
Bhekindlela Mwelase is part of a class action by 19 000 labour tenants to claim land that forms part of the Hilton College Estate. (Max Bastard)
Labour tenants fighting to claim land they have worked for generations must wait even longer, but all hope is not lost.
Last Thursday, Bhekindlela Mwelase’s extended battle was supposed to enter the final stretch. Instead, his struggle to claim the land he believes is rightfully his was postponed again, leaving the 68-year-old – and tens of thousands of other labour tenants – in limbo once again.
Mwelase’s land claim is filled with symbolism.
He worked as a cook at Hilton College and the land he is laying claim to belongs to Hilton College Estate in KwaZulu-Natal, a residential section attached to the most expensive private school in the country.
Under the Land Reform (Labour Tenants) Act of 1996, Mwelase and his legal team believe he can claim ownership based on the fact that his family has been living and working on that land for generations.
“My grandparents and great-grandparents were using that land. They were staying there, and I was born there. I can’t just leave from there, because I have no place to go,” he says.
“We can’t leave that place because all the graves are on that space.”
Before 1994, labour tenants were not paid in cash; they worked on a farm in exchange for the right to live there and use part of the land to, for example, run their own livestock and bury deceased family members.
Now that’s all being undone. Without owning the land and no guarantee of tenure, labour tenants live in dire conditions and they fear being evicted.
Mwelase, who has been fighting for his land rights since 2001, is desperate – he has to ensure that he can carry on making a living to supplement his pension.
“We were farming there. We had our own gardens, and our own livestock, but the owners now, they don’t want that, so all we have is the house where we stay,” Mwelase says.
Government dragging its heels
March 31 2001 was the cut-off date for labour tenants to apply to the department of rural development and land reform to claim their land. Abruptly, in 2007, the department stopped processing land claims, leaving thousands in no man’s land.
“What the Labour Tenants Act is supposed to be doing is buying that land and giving it back to them – and it’s often very small patches of land,” says Tom Draper, the communications officer of the Association for Rural Advancement (Afra).
“By not owning the land, what issues it causes is that they don’t have the right to own livestock, farm the land, have basic services like electricity and water – and they’re not guaranteed tenure, so they could be evicted at any moment.”
Mwelase first went to court in 2001, after the department showed, in his opinion, little progress on his claim. He had little success.
But Afra and the Legal Resources Centre (LRC) took on the case in 2013, combining it into a class action that includes 19 000 labour tenants and family members in their households.
Altogether, Afra estimates that 100 000 people could, one day, find themselves owners of the land on which they were born.
The claimants are from KwaZulu-Natal, Mpumalanga and Limpopo, and most of them are still living on farms. But it has been terribly slow going.
Hilton College has said that reports of eviction threats are “absolutely incorrect”.
Draper says of Hilton College: “It hasn’t been progressed far enough where there’s even negotiations between the government and Hilton College with that land. In the meantime, they have been dragging their heels.”
For 70-year-old Mzongathenjwa Myaka, who lives on a sugarcane farm near Marina Beach in KwaZulu-Natal, owning the land could help his children out of a situation in which they are vulnerable.
“My family graves are there. Everything about me, even my history, I can’t get it anywhere without there,” Myaka says. “He [the farm owner] forces my children to work for him. If they don’t he chases us from the farm.”
Towards the end of March, a ruling was meant to be made on whether the courts should appoint a special master to oversee the department of rural development and land reform and to ensure they handle the labour tenants’ claims correctly. The appointment of a special master is their last hope.
But the case for a special master was postponed after the judge arrived four hours late because of car trouble, and department argued for a postponement, saying they have new evidence and information.
About 70 labour tenants from the various provinces had travelled to the Land Claims Court in Johannesburg hoping for victory, but left with a judgment that the case will only be heard on May 12.
“All our hopes are just in these days,” says Themba Dlamini (27), the youngest claimant. “Only the courts can give us direction on this matter. We can’t decide it according to our hearts.”
Thabiso Mbhense, an LRC attorney representing the claimants, has accused the department of delay tactics. The department says it does not have the money to process the 19?000 land claims.
Although labour tenants have been threatened with evictions, the Labour Tenant Act protects them from removals during the land claims application process. But some farmers aren’t aware of the battle that has unfolded.
“Some of the landowners are not even aware there are these applications on their farms,” Mbhense says. “The department has not notified them.”
The department says it cannot respond to questions at this time, because they are waiting for court papers from the case to be processed.
Only a few claimants successfully claimed land between 2001 and 2007. It is unclear exactly how many land tenant claims have been made, and how many have been successfully processed.
With the appointment of a special master, labour tenants (and their legal teams) are trusting the case will be fast-tracked and their applications processed so that they can finally have some security.
After 15 years of waiting, Mwelase hopes he will be alive to walk on the land as its owner.
Hilton College has responded to allegations that four families living on the estate have lodged labour tenant claims. Iain McMillan, director of development at the estate, said that all labour tenant homes “are electrified and potable water is readily available at no cost to the residents”.
He added that it was “absolutely incorrect” that there had been threats of eviction. McMillan also said that certain families who have historically grown crops and reared livestock continue to do so.
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