/ 2 February 2023

Evaton is a rich example of everything that is wrong with the land claims process


“The government knows about Evaton!” This sentiment is clearly conveyed by those who have been at the coal face of the Evaton/Wildebeesfontein land claim since 1998 to date. 

Evaton is part of the Wildebeesfontein farm, a freehold area that lies South of Johannesburg. The Evaton case, in its intricate and multifaceted nature, is crucial in understanding the shortcomings of national institutions constituted to address land restitution. The situation is further exacerbated by bureaucratic bungling and political myopia — the inclination towards short-term self-interest and the failure to realise the true meaning of land justice.  

In this flawed system, it is the older generations fighting to reclaim their land and youth whose lives are compromised by the injustices that fall victim to what can only be described as secondary dispossession — a post-apartheid land capture. 

In many ways, the Evaton case shows that land dispossession is not a single event but is being repeated. In trying to “solve” the land question through a complex legal process in democratic South Africa, the onus of claiming and resulting litigation costs fall onto the dispossessed and more dilemmas arise. 

The case of Evaton, it can be argued, is a reminder that the broader question of land restitution, while anchored in human rights, is implicated in a capitalistic, legal form. Moreover, the protracted claims processes lead to obfuscation, confusion, indignation, betrayal, desperation and unnecessary conflict between claimant groups and communities. It is important, therefore, to set the record straight.

Just recently, on 12 May 2022, Newzroom Afrika reported evictions resulting from “the illegal sale of land” in Evaton. Amid disturbing scenes of people’s brick houses being bulldozed, evoking apartheid-era forced removals, a man named Andrew Molefe confidently confirms that he is “legally approved by the National Department of Human Settlements (NDHS) to work with them to bridge the gap for people who do not qualify for RDP houses and also for bond houses”. 

Families were charged R22 000 each in what the media terms an “illegal sale” but what Molefe calls an allocation fee. Molefe points out that the money goes to the Wildebees Properties and Project Co-operative, which belongs to the Wildebees community. Those who paid to be allocated stands received no title deed. Asked about whether the land is privately owned, Molefe agreed but stated that it is community-owned. He also acknowledges that although the claim “is still in court”, it has been gazetted and “is not yet finalised”. 

NDHS reported that it distances itself from the Wildebees Properties and Project Co-operative while Molefe faces charges of fraud. In this situation, one can begin to see how flawed the government’s approach to land restitution is. The design of the restitution system in South Africa — state institutions and how they position the Communal Property Associations (CPA) and co-operatives model — creates situations that have an adverse effect.  

In Evaton, this unsettling situation has a century-old history that when disentangled shows how there has been continued systematic dispossession by the state during apartheid and in the post-1994 democratic era. Furthermore, private interests by developers and those prospecting for mineral wealth and recognising the agricultural production potential of the area also decelerate the broader quest for land justice and, in Evaton, for the return of land to the descendants of freehold title holders. 

Since freehold titles grant the owner what is above and below the ground, the situation faced by Evaton stand-owners can be characterised as a “resource curse”. 

The dimension of mineral wealth in Evaton has not only drawn the attention of the government but also the world’s mining houses. The latter fact has been perceived as the key reason for the recurring dispossession which opens a plethora of questions related to the municipality, its relations with the mineral houses and its scant regard of people, even where there are documented, legally binding agreements. All this shows how government institutions are failing people. 

In her Mail and Guardian article, “Urge for Action on Land Reform”, Bulelwa Mabasa argues that South Africa is “faced with an urgent and dire need for land justice”. The fact that the “dwindling” budget allocation for the Department of Land Reform, Rural Development and Agriculture has led to what Mabasa refers to as “the castration of the effectiveness of key institutions such as the Commission of Restitution of Land Rights”, is further cause for concern. 

Issues that are resurfacing in Evaton today are rooted in land acquisitions dating back to the late 19th and early 20th centuries. The area known today as Evaton is part of a much larger tract of land called “Wildebeesfontein” farm. It was home to local Nguni, BaSotho and BaTswana who were displaced by the 1840s when the region was occupied by the Dutch Voortrekkers and became part of the Zuid-Afrikaansche Republiek, one of the Boer republics. 

It is presumed that the area was transferred to WJ Viljoen in 1864 and then to the Jouberts in 1894. After the Boers lost the South African war (Anglo-Boer war) in 1902, the area was annexed for British settlement and the return of Boers who had lost their farms during the war. The British colonial administrator, Lord Alfred Milner regarded the Dutch as “rural” and “agriculturally unprogressive”, arguing, “I wish to place on record my profound conviction that unless, in raising these loans, we provide a substantial sum for the purchase of land and the settlement thereon of farmers of British race, an opportunity will be lost which will never recur”.

Milnerism, however, would also lead to the stripping of the rights of black people. Although black participation in the war was on both sides (British and Boer), some had fought voluntarily “to regain the land they had lost to the Voortrekkers much earlier and at the end of the war, black people resisted leaving their farms” (Gilliomee and Mbenga 2007). The signing of the Vereeniging peace agreement was also met with scepticism by black leaders. It was in this interregnum that British soldiers Thomas Adams and Charles John Easton, who had fought in the South African war, acquired this vast area. 

Around 1904–1905, Adams and Easton subdivided the land into plots and sold them to Africans and Europeans at £20–£25 per acre (about 4 000m²) under freehold title.

It is, of course, remarkable that these acquisitions that made it possible for Africans to rightfully possess land with freehold title deeds, took place at a time when the Volksraad Resolution in 1855 and 1857 excluded Africans from privately owning land, which they could only register in the name of a public official through an “in trust” system and during the build-up to the 1913 Land Act that would later restrict African land ownership. 

Scholars attribute these early acquisitions to the famed victory of Reverend Edward Tsewu who won the case where the Transvaal Supreme Court ruled that “the Registrar of Deeds must allow the transfer of land to Africans in their own names” (Feinberg 2009). It is argued that Adams and Easton sold land to Africans motivated by the role they played in the South African war. It could also be surmised agricultural productivity motivated the sale of land to skilled African farmers. 

The name “Evaton” was coined when Thomas Adams’s adopted child, Eva Adams, inherited a portion of the Wildebeesfontein farm, which was referred to as “Eva’s Township”. In the 1930s, a further portion of the Wildebeesfontein farm was made available to Africans when Thomas Adams’s widow, Elizabeth Frances Ligertwood, referred to as MaAdams, received permission from the government to sell 400 acres to Africans at an inflated price of £50 per acre. These smaller stands are known today as Small Farms, where Ligertwood’s grave is.

The area became dynamic and cosmopolitan in the early 20th century. The cosmopolitan nature of Evaton became a beacon of hope, attracting political leaders and activists throughout the continent and globally.

Not only was it agriculturally prosperous but also became an intellectual and cultural hub with pan-African institutions. Schools like St. Lukes and Methodist Missionary Schools were established. It is also where the renowned prophetess Christina Mokutuli Nku and her husband Lazarus Mosioa Nku built the pan-African Africa Independent Church St. Johns, and established schools, horse-riding stables and soccer clubs in the area. 

African intellectuals and African-American missionaries who came to the area built institutions, one of them being the prominent Wilberforce college. It was built on land purchased by Reverend Jantjie Zacharia Tantsi and with the backing of the African Methodist Episcopal (AME) church. This is where Marshall and Charlotte Makgomo Manya-Maxeke came to teach after completing their studies in the US. 

Political figures like Dr Alfred Bathini Xuma, president-general of the ANC in the 1940s, were on the board of trustees. The leading communist militant and Wilberforce teacher Albert Nzula lived in Evaton and taught at Wilberforce. He joined the Communist Party, became its general secretary and died in Moscow in 1933 after his sympathies for Trotsky’s ideas became evident and he was told by Stalin’s henchmen that he could never return to South Africa. 

In the 1950s, Evaton was the centre of the bus boycotts catalysed by activists such as Levai Mbatha, Joseph Sallie Poonyane Molefi and Vusimuzi Make who led the boycott and were later arrested for treason, becoming “treason” trialists. 

It is also rarely known that the protests called by the PAC against pass laws and culminated in the Sharpeville massacre on 21 March 1960 were initially organised in Residensia, Evaton, led by ZB Molete, David Sibeko, Gabriel Sandamela and Vusi Linda Make. Many celebrated boxers, tennis players, equestrians and other famed personalities such as talk show host Felicia Mabuza-Suttle and singer Rebecca Malope once called Evaton home. 

With this layered and valuable heritage, the Evaton restitution case should no longer be ignored. 

The land claim in Evaton also needs to be understood against the backdrop of persistent struggles by Evaton stand owners and tenants against the apartheid regime which sought to destroy Evaton because it was an anomaly. Evaton had landowners of different “races” until the 1950s when the Group Areas Act assigned people to racial groups and to separate areas. 

Residensia in Evaton was declared a white area but given its proximity to predominantly black residents of Evaton and clashes over grazing land, white residents were later moved to areas such as Meyerton and about 200 African families who resided in Meyerton were forcibly removed and re-settled in Residensia and Sebokeng.

The apartheid state initially refused to recognise black land ownership and withheld municipal services. In the 1960s, the establishment of development boards set in motion another attempt to expropriate land. In Evaton, the development board introduced a lodgers permit fee and resumed unfairly charging double the rent to freehold title holders. 

These gross measures unjustly turned freeholders into tenants on their own property. A report by Iso Lomuzi (“The Eye of Evaton”), an organisation that fought against the usurping of freehold title deeds by local apartheid structures, shows how development boards set up these charges, forcing freehold title holders into debt that would lead to a sale in execution, stripping the title holder of their property. 

In 1965, the Sebokeng management board served as a pilot scheme for other township administration boards. It was succeeded by the Vaal Triangle administration board and, given its “powers” to expropriate land, it set to purchase the land on which Evaton was built. In many cases, no or little reimbursement was offered to African property owners — some were, instead, offered leased houses while others were dumped in places like Hammanskraal.

By 1984, the rent increase and levy of R5.90 (increasing it from R62 to R67.90 monthly) were announced. Residential permits for stand-holders were raised by R6. Furthermore, the electricity levy and unit price was increased, inciting a rent boycott and stay away. A year later, development boards were abolished and Mojapelo challenged parliament on the question of freehold land. The context of the rent boycott defined the struggle to be that of land, and parliament in 1986 then responded with a document recognising the freehold status of Evaton/Wildebeesfontein.

In response to the forced removals, which increased exponentially, Iso Lomuzi became an authentic organ of resistance together with the liberation movement, converging on the perspective that “land is freedom”. They challenged the levies charged by the Orange-Vaal development board and other similar strategies aimed at invalidating the freehold status of Evaton. Legally represented by Phosa and Mojapelo Attorneys, Iso Lomuzi and its subsequent iterations, like the Wildebeesfontein Evaton Standowners Association (WESA), highlighted the importance of a legal route and vocal opposition. 

After the fierce combined resistance of 1984–1985 against the apartheid government, the state conceded and acknowledged expropriated land in Evaton. This explicit recognition that Evaton was bequeathed to Africans was announced in parliament in March 1986 and in a letter written to Phosa and Mojapelo attorneys. This announcement was rejected by Afrikaner nationalists (Die Verkrampte). Two years later, on 29 September 1988, the announcement was defied. Evaton was rezoned, its status of freehold changed to leasehold and stand numbers were changed. All this was done without drawing the attention of the public.

It is in this context — a democratic post-1994 South Africa haunted by its past — that a land claim was lodged. In the media, a few articles have been published about the land claim that was filed in 1998, but those articles seem to leave out many details and, as such, can be misleading. For example, in 2008, the Mail and Guardian published an article which focuses on the Wildebeesfontein Evaton Community Organisation (WECO) which claimed to have been “the only entity capable of negotiating a [R48 million] settlement with the government.” 

Another article, first published in GroundUp and later by Daily Maverick, notes that although Evaton appears to have “nothing particularly noteworthy”, but it “has an interesting legal claim for land restitution that could run into billions of rands”. It is perhaps the question of what is at stake that has intensified the land claim struggle and obscured the socio-economic and political significance of land, which is eclipsed by monetary compensation. 

Several other articles point out the protracted struggles between the Wildebeesfontein Evaton Community Association (WECA) and WECO, but very few mention Tuis September (founding chair of WECA) and the poet and activist Thamsanqa Zondo (deputy chair of WECA), both of whom have been at the coalface of the land claim struggle among others.

September and D Qupe initiated the original claim of the Wildebeeste farm through the Land Commissioner in December 1998. Qupe claimed Evaton in the district of Vereeniging. September claimed a couple of individual stands and the entire Wildebeesfontein freehold. Both applications were ignored for 16 years.

It was only in 2014 when the attorney Sundeep Singh filed an application for the restitution of Wildebeesfontein farm at the Randburg land claims court, that the claim received attention. The application was opposed by the land commissioner and three municipalities who later retreated from the opposition. The land commissioner was taken to court and when asked by the judge why it had taken so long to address the application, the land commissioner claimed that the application had not been filled correctly, even though the onus is on the commissioner’s office to advise claimants.

September, limited by the level of literacy, relied on Themba Mthwalo of Sebokeng (Zone 13) in drafting the founding affidavit for the claim. September was acting on behalf of WESA, an organisation that was formed with the aim to protect the freehold rights of Evaton residents and led by John Nhlapo, Gilmon Nkuta, Baba Simelane and Baba Shabangu (Mabechu). 

It was formed after the Evaton Ratepayers Association (ERPA), led by Mr Kabi and Oupa Olifant, was established in 1978 to prevent the sub-division of Evaton and the stripping of freehold titles. The formation of these associations was indicative of the pressures faced by black landowners in South Africa during the apartheid years, and both were the products of Iso Lomuzi.

September was swayed by the argument put forward at the land commission that a claim under a body formed by stand owners, the Evaton Standowners Association, would exclude tenants. This led to the claim being registered under the Wildebeesfontein Evaton Community Association (WECA), as opposed to Standowners, a change that would dilute the pursuit of those in possession of freehold title deeds. Compounding this was the delineation on mineral rights, which differentiated the ownership of what is above ground and below. Ciaran Ryan points out that “the terms of the title also vest surface and mining rights with the community” yet “the Minerals Act vests all surface mineral rights with the state”. This positions the claim against seven mining companies.

With so much at stake, breakaway groups were formed, such as WECO (established by Mthwalo, who helped September with the original claim, the Evaton Land Claimants Community (ELCC), Evaton Heritage Trust Council and the Community Functionary Team (CFT), the latter of which were founded with information from September but are now in opposition to him. 

WECO sought to place itself as the original claimant. As the WECO chairperson at the time, Mthwalo, stated that “the regional land claims commissioner accepted the merits of the claim over [the entire] farm” but “the applicant community was surprised to see an article in Sowetan newspaper on 23 August stating the Wildebeesfontein community was compensated to the tune of R48 million in settlement of their land claim action, but the applicant community knows of no such settlement”. 

Sello Alcock noted that “the settlement offer presented in 2004, agreed to by the former minister of land affairs Thoko Didiza in 2006, and seen by the Mail & Guardian, shows that the majority of the 293 claimants accepted monetary compensation”. WECO’s claims were dismissed and they opened a case against September where they claimed to be claimants and lost. In addition, Mthwalo was expelled later, during the leadership of Joseph Mahlaba. Sundeep and his brother Minesh Singh were both attorneys of WECA but interacted with most stakeholders for the sake of unity.

During this time, WECA had progressed in the case and following the February 2014 judgment, the court ordered for September’s claim to be gazetted. After the land commissioner failed to act upon this order, an application for the contempt of a court order was filed against the commissioner in December 2014. Represented by Singh attorneys, WECA won and the claim was gazetted. The gazetting was seen by some as approval of the land claim and release of the land to claimants. 

Given the confusion and misunderstanding, mistrust settled among members. Some felt betrayed while others took the gazette as an indication of the finalisation of the claim and, without awaiting the necessary verification, moved into some of the areas and began developing, jeopardising the legal process. 

With most people not understanding the processes of the Restitution Act which restricts the sale, exchange, donation, leasing, subdivision, rezoning and development of claimed land, the areas stated in the gazette were apportioned and sold by sections of the community and by the government. This was reported to the land commissioner, but the lack of response was taken as an indication that there was nothing wrong with the apportioning. 

The reluctance of the land commissioner to address this case adequately also caused delays and obfuscated the original objectives. After the failure to follow the court order, the land commissioner instrumentalised Section 10(4) of the Restitution Act to question the validity of the claim by questioning whether the claimant was the real community representative, forcing after-the-fact elections that subordinated the claimant, September, creating internal divisions that would further protract the claim. After delays, on 19 November 2019 in the Randburg land claims court, WECA was given a list of areas which needed to be verified. 

It transpired later that the land commissioner did not gazette all the land parcels stated in the 2014 court order. Again, the commissioner was taken to court and lost. The claimant was required to verify his claim through an expert historical report. The land commissioner proposed a meeting on 5 December 2019 with the objective to discuss the scale of the land under question. The meeting did not materialise. At the time, the commissioner had positioned himself as a claimant. Towards the end of that year, the attorneys were not paid, and when Covid-19 struck, they were eventually fired.

September instructed his spokesperson to investigate the complexities of the case and to find out what was to be done in the absence of lawyers. When members of WECA met with the land commissioner in Pretoria, the Court Order of 19 November 2019 and the reinstatement plea about the attorneys were sidelined. 

This was considered to be part of a strategy to push for an out-of-court settlement — a diversion from the court settlement that has been pursued by WECA. The relationship would also deteriorate when a CFT lawyer was invited to a meeting between the commissioner and WECA, where the commissioner insisted that he does not address associations but claimants. The spokesperson, who insisted on not deviating from the court order, was threatened. Letters from WECA seeking to address these issues have been sent to parliament and the president of the land claims court. 

On 11 June 2021, a forced out-of-court settlement was imposed on WECA by the land commissioner. Given the Covid-19 lockdown restrictions of 2020 and 2021, the lack of legal representation and the worsening health condition of September, WECA’s position was weakened. 

The land commissioner re-established the Land Claims Committee (LCC) as the sole authentic representative of the claim, side-lined WECA lawyers and imposed the CFT lawyer on the claim. This also contributed to the divisions. Consequently, there were further break-ups within the LCC and CFT. Within the CFT, now involving September’s son, the critically ill September was pulled from his sickbed and made to rubber-stamp CFT perspectives in Pretoria. 

The CFT lawyer also drafted a memorandum of agreement that removed the power of the people of Evaton or Wildebeesfontein from their hands, placing it in the structures established by CFT lawyers. Notably, the Wildebeesfontein claim, in terms of the MOA, was being removed under the Restitution Act and placed under the Khoisan and Traditional Leadership Act which dilutes the freehold right of Evaton. 

So far, the land commissioner has not publicly announced his legal land offer to Wildebeesfontein as would be expected. What was discovered during 2020 was that the land commissioner had apportioned Wildebeesfontein 536 IQ despite the court order of 19 November 2019 which required verification by claimants. 

This secondary land capture has created a situation where developers can sell to other people the land belonging to title holders. In other words, developers are among the first beneficiaries of land capture. Likewise, the local government is implicated in similar acts, where a municipality will apportion to itself claimed land and devise its own project. 

This is the precarity of land claims in South Africa. It is a major blind spot of the South African government where post-1994 neoliberal democracy co-exists with apartheid legacies. 

A place like Evaton and the struggles for restitution serve as an example of the injustices of recurrent land dispossession. 

Significant to this matter is how the state has handled it, leading to the intensified struggle between many associations, creating paranoia, and effectively fracturing the collective voice of the Evaton community, leaving it divided by the politicking that has derailed the claim. 

The intergenerational injury endured in the loss and reclaiming of land remains unaccounted for. Given its rich heritage, Evaton/ Wildebeesfontein should be considered a historically important site in which black landowner rights are integral. For these, and many other reasons, Evaton can no longer be ignored.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.