​Elders cry over land court setback

Bhekindlela Mwelase is one of the labour tenants who have been trying to get their land claim processed for 18 years. His family has been there for more than 150 years. (Lucas Ledwaba/Mukurukuru Media)

Bhekindlela Mwelase is one of the labour tenants who have been trying to get their land claim processed for 18 years. His family has been there for more than 150 years. (Lucas Ledwaba/Mukurukuru Media)

When 104-year-old Zabalaza Mshengu died three weeks ago, he had not seen justice. His comrades, with whom he had been fighting a protracted legal battle to force government to speed up their land claim, began to worry that they too might never live to see justice.

“We are deeply affected [by his death] because our brothers are going and we are not seeing any change happening soon,” a weary Bhekindlela Mwelase said in a telephonic interview this week.

The land in KwaZulu-Natal that Mshengu claimed in 2000 is owned by the Hiltonian Society. Built on it now is the elite Hilton College boys’ school.

In 2013, Mwelase was among five applicants who brought court action against the department of rural development and land reform, the department’s director general and the Hiltonian Society in a bid to speed up land claims made by labour tenants for the land on which they worked.

But their victory in the Land Claims Court was reversed last month by the Supreme Court of Appeal. Following the judgement, the Legal Resources Centre (LRC), which represents the applicants, said it will lodge a Constitutional Court appeal against the judgement.

The Mail & Guardian understands that the Association for Rural Advancement (Afra), a KwaZulu-Natal land rights nongovernmental organisation, the LRC and labour tenant representatives were this week holding lengthy consultations about the appeal. Afra spokesperson Nokuthula Mthimunye said consultations were continuing and more details would be announced later in the week.

The 2013 case was filed before the Land Claims Court as a class action involving an estimated 19 000 labour tenants as well as their family members.

The case was initially lodged by Afra on behalf of 35 families — including Mshengu’s family — who were living on land owned by the Hiltonian Society.

The applicants — Mwelase, Jabu Agness Mwelase, Bazibile Gretta Mngoma, Mndeni Sikhakhane and Afra — asked the court to appoint a special master, an independent person who would assist in the processing and adjudication of labour tenant claims like the one lodged by Mshengu in 2000, because the bureacracy around land claims meant labour tenants were getting nowhere.

They won in the Land Claims Court, which ordered the department and its director general to appoint a special master.

But last month the appeal court overturned this, instead ordering the department’s director general to develop and implement a plan, which is subject to approval by the Land Claims Court.

Among other things, the plan must include the names of senior department managers responsible for it, the number of labour tenant applications lodged and those outstanding, the targets for processing claims, the budget required and the plan for coordinating adjudication and arbitration of claims.

The appeal court also ordered the director general to provide the total number of labour tenant applications lodged, and the number of which have not been processed and finalised in all nine provinces within 21 days of the order made on August 17.

It must also provide an assessment of the skills pool and other infrastructure required to process labour tenant claims, and to what extent such a skills pool and infrastructure is available within the department.

In its judgement in December the Land Claims Court found that figures provided in an August 2016 report by the department and its director general’s office indicated that there were 10914 claims brought by labour tenants under section 16 of the Land Reform (Labour Tenants) Act (No 3 of 1996) that had not been settled.

Labour tenants were not protected by law until the passing of the Land Reform Act and the Extension of Security of Tenure Act (No 62 of 1997).

While lawyers are mulling over an appeal that may result in another lengthy legal battle, Mwelase, 87, is worried.

“I don’t know how long this [appeal] will take. People are crying. [They] are wondering what will happen to their grandchildren [if they die before the matter is finalised],” said Mwelase.

He said in his last days, Mshengu also lamented the fact that the case was dragging for too long. He said they sat together following the news around the land debate and the public hearings on the radio and television.

“He was always talking about land and this case. It feels bad. People are crying, said Mwelase.

“Even Sikhakhane is crying, saying what would happen to us because we want to leave something for our grandchildren.”

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, by providing their labour, on the land that had been handed to white people.

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 bargain. —Mukurukuru Media

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