ConCourt to rule on farm tenant claims

Constitutional Court (Oupa Nkosi/M&G)

Constitutional Court (Oupa Nkosi/M&G)

Zabalaza Mshengu died last year without seeing the resolution of a lengthy court battle affecting more than 11 000 outstanding land claims by farm tenants.

It appears that thousands of labour tenants like Mshengu, who have endured a frustrating two-decades wait for the settlement of their claims, have much longer to wait for justice. Even if the Constitutional Court rules in their favour, the claims must still be settled.

The Legal Resources Centre (LRC) is due to present arguments in the Constitutional Court for the reinstatement of a 2016 land claims court order to appoint a special master — an independent person to assist in the processing and adjudication of labour tenant claims.

The case was initially lodged by the Association for Rural Advancement (Afra) and the LRC in 2013 on behalf of 35 families, including Mshengu’s. The families were living on land owned by the Hiltonian Society in KwaZulu-Natal on which the prestigious Hilton school is built.
They have claimed restitution of the land, saying it is their ancestral home.

The applicants — Bhekindlela Mwelase, Jabu Agness Mwelase, Bazibile Gretta Mngoma, Mndeni Sikhakhane and Afra — asked the court to appoint a special master, arguing that the 11 000 claims, such as the one lodged by Mshengu in 2000, were getting nowhere because of the bureaucracy around the claims made by labour tenants.

They won in the land claims court, which ordered the department and its director general to appoint a special master. But in August last year the Supreme Court of Appeal overturned this, instead ordering the department of rural development’s director general to develop and implement a plan, which is subject to approval by the Land Claims Court.

The LRC says its appeal to the highest court is based on a “piercing dissenting judgment” by Judge Baratang Constance Mocumie.

In her judgment, Mocumie said the Land Claims Commission had tried ordinary court supervision but it had failed. There was a need for effective relief for the many thousands of vulnerable labour tenants and the department of rural development had thus far experienced grave difficulties in providing this.

She said the size and complexity of the task of settling the land claims alone supported the appointment of a special master to assist the court with monitoring implementation.

The applicants said in a statement they believe the land claims court acted within it powers to appoint a special master to assist it.

They further added that Mocumie holds the same view as theirs — that without interventions such as the one taken by the land claims court, labour tenants would be back before it and the supreme court in the next 10 years still seeking the same relief they sought in the first instance: access to land and security of land tenure.

“Judge Mocumie’s dissenting judgment confirms the view ... that specialised and extraordinary court supervision is required to ensure the efficient processing of labour tenant claims. This view needs to be confirmed by the Constitutional Court,” said the applicants.

The matter is set down for May 23. But it has come too late for claimants like Mshengu. —Mukurukuru Media

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