/ 14 September 2018

Legal land battle looms for Pretoria East

What is now Pretoria was once the place of the Bakgatla ba Lekhuleni but for various reasons over time
What is now Pretoria was once the place of the Bakgatla ba Lekhuleni but for various reasons over time, including forced removals during apartheid, they ‘lost’ their land. (Delwyn Verasamy/M&G)

A protracted legal battle stands in the way of the Bakgatla ba Lekhuleni clan’s attempt to lay claim to large parts of the country’s capital, Pretoria.

The clan lodged a claim, which includes farms, schools, businesses and more than 500 residential properties, mostly on prime land in the suburbs of Pretoria East, such as Hatfield, Colbyn, Garsfontein and Moreleta Park, in the Tshwane municipality.

The claim, lodged by Chief Victor Velaphi (VV) Lekhuleni in October 1996, is one of thousands made to urban land in South Africa.

Lekhuleni was murdered by an unknown assailant in Mamelodi in 2015. He was succeeded by his brother, Happy Stephens Lekhuleni, who is now the applicant in the legal battle involving the clan, business lobby group Sakeliga, the land claims court and the regional land claims commissioner responsible for Gauteng and North West.

The regional commissioner published the claim in the Government Gazette on December 12 2014 and February 6 2015. This followed an order by the court after the clan had brought the case to it over the long delays in publishing the claim.

But Sakeliga is challenging the validity of the claim and wants the 2014 order declared invalid.

Sakeliga’s law and policy analyst, Armand Greyling, said the organisation “believe[s] that the land claim is frivolous and vexatious as defined in section 11 of the Restitution of Land Rights Act, 22 of 1994 as amended”.

He added that the claim was devoid of merit and that Lekhuleni had no authority to pursue it because he is not a traditional leader.

Furthermore, Greyling said: “It will be impossible for the state to provide them with the land claimed as most of it is already densely populated and developed. This means the state will in all likelihood have to pay vast amounts of compensation to the claimants and, because of the vast amount of tax funds that would be paid out, it is of paramount importance that such funds are not paid out to claimants who attempt to make money out of the state by abusing the restitution process for personal gain.

“Where legitimate restitution claims are concerned, the state should redress the injustices of the past,” Greyling added.

But Lekhuleni’s lawyer, Vivien de Klerk, said the clan was “of the respectful view that Afrisake’s [Sakeliga’s] claims are unfounded and without any merit”.

The clan has also approached the court after the regional land claims commissioner gave notice of his intention to “de-gazette” their land claim because it was challenged and had yet to be decided by a court.

The clan said they were forcibly removed from their land between 1958 and 1960 after having settled there in the 1800s. Historians (NJ van Warmelo, D Ziervogel and PB Skhosana)identify in various studies the Southern Ndebele under Chief Musi ka Mhlanga as some of the early occupants (around 1610) of what is now known as Pretoria.

Not to be confused with the Mzilikazi-led Ndebele, who settled in Pretoria (then known as Kwa-Mnyamana) 200 years later, the southern Ndebele were descendants of the amaHlubi, who were one of the largest Nguni groups in Southern Africa, occupying parts of present-day KwaZulu-Natal, Free State and Mpumalanga from about 1300.

The clan is believed to be descendants of Mhwaduba, one of Musi ka Mhlanga’s six sons. Studies and oral history say, after Musi ka Mhlanga’s death, a power struggle forced his sons to move to other parts of Pretoria and present-day Limpopo, Mpumalanga and North West.

(Delwyn Verasamy/M&G)

But Sakeliga is arguing the Lekhuleni never occupied the land in question as a community and also say such a community never existed.

De Klerk said the clan was severely affected by the forced removal and dispossession that happened under apartheid. He said it was one of the factors that led to the scattering of their people around the country.

It is estimated that between 1960 and 1983 more than 3.5-million people were forcibly removed from their ancestral land to racially segregated residential areas. Some of the Bakgatla ba Lekhuleni were resettled in Mamelodi.

The Lekhuleni claim was marred by controversy after another group challenged Velaphi’s legitimacy as chief. It was also alleged that the two Lekhuleni factions had lodged two separate claims on the land but this has since been dismissed as untrue.

De Klerk said, after the death of VV Lekhuleni, his brother, Happy Stephens Lekhuleni, was appointed as his successor.

Happy Stephens confirmed this in an affidavit, saying he was appointed by the Bakgatla ba Lekhuleni royal family on April 25 2015.

He said “the second so-called ‘Lekhuleni group’ was a different group of Lekhulenis who stem from Bushbuckridge in Mpumalanga” and who seemingly were not part of the traditional groups represented by him.

Leaders of the faction behind the dispute over VV’s chieftaincy could not be reached for comment.

De Klerk said initial estimations were that the Lekhuleni clan numbered more than 2 000 people, but the final number “has not been determined due to the fact that the communities are so scattered following their forceful dispossession and removal”.

“The biggest landmark connected to the Bakgatla ba Lekhuleni communities, which currently remains under their land claim, is the Magalies[berg] mountain range situated on the northern side of the Mamelodi township,” said De Klerk.

He said the Lekhuleni had had their initiation schools there since the 1940s and that some of the sites are still visible, sacred and maintained by the clan’s leaders.

Greyling said, if the claim was considered valid by a court, then the land claims commission should address the issue of compensation by either awarding the claimants alternative state-owned property or financial compensation, or a mixture of both.

“The social disruption [of transferring densely populated land] would be immense and it is practice for the commission and department to ensure that, when settling a claim, the outcome creates as little social disruption as possible,” he said.

Sakeliga is also opposing a land claim by the Bakwena ba Mare a Phogole, which includes suburbs in southern Johannesburg, commercial property and state-owned land.

Greyling said Sakeliga believed the two cases were not legitimate. — Mukurukuru Media

Land claims settled

The Commission on Restitution of Land Rights said in its 2016-2017 annual performance plan that, as of November 31 2015, 78 483 claims had been settled, of which 59 758 had been finalised.

The settlement of claims had resulted in 3 290 685 hectares, at a cost of almost R19.3-trillion, being awarded to claimants.

The commission said the restitution programme had benefited 1.94-million people, who were members of 390 621 households.

It also said there were 7 584 land claims lodged by December 31 1998 that were awaiting finalisation and were at various stages in the business process.— Lucas Ledwaba, Mukurukuru Media

This article has been edited for accuracy. In the previous version, it read that Sakeliga was affiliated to AfriForum. However it is an independent business body. The Mail & Guardian regrets the error.