Judge Mpshe to make landmark “Special Master” judgement

On the 22nd of March 1996 President Nelson Mandela signed into law the Land Reform (Labour Tenants) Act (LTA). He did so the day after the South Africans celebrated Human Rights Day for only the second time, symbolically marking our young democracy’s journey away from discrimination towards universal human rights. The Act signed by Mandela guaranteed the security of tenure for a unique class of persons, known as labour tenants, who had survived the worst ravages of Apartheid by providing labour, over generations, to white land owners in exchange for cropping, grazing and residency rights on the farms they worked.

Image 1 - Labour Tenant Ninety-four year old Mndeni Skhakhane Hilton College Labour Tenant Class Action, Hilton College Farm, KwaZulu Natal. Credit Max Bastard B&W
Ninety-four-year-old Mndeni Skhakhane, a labour tenant on the Hilton College Farm. Photograph: Max Bastard

Twenty years later that promise, broken by the Department of Rural Development and Land Reform (the Department), is about to be tested in the Land Claims Court in Randburg before Judge Mokotedi Mpshe, who on Thursday 24th March will decide the fate of 19 000 claimants representing approximately 100 000 South African farm dwellers. The landmark class action case was brought by the Association for Rural Advancement (AFRA), a land rights NGO working with farm dwellers, seeking to compel the Deparment to implement its own law. Judge Mpshe will make a decision about whether to appoint a Special Master to oversee the full implementation of the Act.

A Special Master is a person with a detailed understanding of both the legal and land reform contexts, who will enable the Court to more effectively and efficiently exercise its supervisory role. It will ensure the Department fully executes the terms of the Act and in so doing expedite the processing and settlement of the outstanding claims. Not only will this reduce the need for further litigation, it will also allieviate the burden of a difficult and lengthy supervisory process for the Court.

The case has faced numerous delays and has been to court several times. The last court hearing was on the 29 January 2016 when Labour Tenants arranged a mass picket outside the Land Claims Court to voice their anger at the continued failure of the Minister and the Department to implement the court orders agreed before Judge Mpshe in September 2014.

“By failing to comply with court orders and submission dates, the Department has proven time and time again that they are incapable of implementing their own Act and need closer supervision,” said Glenn Farred, Programme Manager for AFRA. The appointment of a Special Master will at last recognise the rights of thousands of the country’s most marginalised and vulnerable communities, and sort out a convoluted process bogged down in denial and delay.”

The anger and frustration amongst labour tenants has grown since 2001, which was the cut-off date for labour tenants to lodge their claimant status. During this time, many individuals and families have found themselves forced off the land they have lived on for generations, or have faced imposed restrictions on their livelihoods, resulting in loss of income and severe hardship.

One such tenant is 94 year old Mndeni Skhakhane, who was born on the farm which is now owned by the most expensive High School in South Africa, Hilton College, and lives there with his grandchildren. He is one of the labour tenants who is taking the Department to court.

“They (Hilton College) have ignored us and now I have nothing to pass on to my grandchildren,” said Mndeni. “I now have nothing to show for all my work. My great-grandparents lived on this land and my father was born here; I worked for Hilton College as a cleaner in the dormitories. Apart from a severance pay of R3000 which I hoped to invest in this land, and a small pension which has risen to just R400 a month since I retired in 1994, I have received nothing. I have waited for so long for land title but now I have lost hope and have started to spend the money.”

Mndeni’s 16 year old granddaughter said, “If I could stand in court next week and tell the Government my mind, I would tell them this is not good at all; this land is the life of my grandfather and us; we are fighting for what is our right. They (Hilton College) restrict us in many things – they want us to leave. They closed our school here so many of us didn’t get the chance to finish our schooling; they give the jobs on the farm to outsiders, so most of the people in our community have no work, yet we have skills they could use. You [the Government] must do something about this otherwise we have no future”.

Image 2 - Labour tenant Mndeni Skhakhane with his two granddaughters, Hilton College Labour Tenant Class Action, Hilton College Farm, KwaZulu Natal. Credit Max Bastard B&W
Mndeni Skhakhane with his two granddaughters. Photo credit: Max Bastard

It is an absolute moral and legal travesty that so many people have had to wait for this moment for so long”, said AFRA Director, Laurel Oettle. “While we acknowledge and are grateful that the Department has finally stopped defending its previous failures and started to take the plight of labour tenants more seriously, their consistent failures to submit timely and adequate reports or make significant progress show that they are not up to the task and require improved supervision before we can expect to see any real change in the harsh realities of labour tenant’s lives. Tragically, some of the most elderly claimants who were so full of hope when the Act was signed, have since passed away, denied – first by an Apartheid Government, and subsequently by a Democratic one – the chance to own the land on which they and their families have lived out their lives. In the week when we celebrate Human Rights Day and think of all that Mandela stood for when he signed the LTAwe stand firm and will not rest until these injustices are redressed and the LTA is fully implemented.”

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