Special Master Judgement Tomorrow

by Yves Vanderhaeghen

A ruling by the Land Claims Court on Thursday is likely to ensure that labour tenants are no longer forgotten in the dispensing of rights.

For 15 years, 19 000 labour tenant claims have been gathering dust in filing cabinets at the Department of Rural Development and Land Reform. That’s the optimistic scenario, because it’s likely that at least some of the claims have not only been forgotten, but lost. Labour tenants have not always been so low a priority. In 1964, in his “I am prepared to die” speech from the dock, Nelson Mandela included them among the groups most oppressed by Apartheid, and appealed for justice for the “labourers, labour tenants, and squatters on white farms [who] work and live under conditions similar to those of the serfs of the Middle Ages”. Decades later, after jail, after democracy, he had not forgotten these people: “We remember the farm workers and labour tenants uprooted from the land,” he said at a meeting in Howick in 1996.

In the honeymoon years of Mandela’s presidency, the future looked promising for labour tenants. The Constitution, given force by the 1996 Labour Tenants Act, sought to give security of tenure to these families scattered across the country on land owned by others, and whose fortunes were therefore precarious.

The case before Judge Mokotedi Mpshe of the Land Claims Court is a class action case technically called the Mwelase case, after Bhekindlela Mwelase, the first applicant. It is more commonly referred to as the Hilton College case, after the private school in the KZN midlands on which Mwelase, who is 86, was born and where parents and grandparents before him lived. In 2001 he lodged a labour tenant claim, which was opposed. By 2012 there had been no progress in either his claim, or in about 19 000 others. In 2013, Mwelase, supported by the Legal Resources Centre (LRC) and the Association for Rural Advancement (AFRA), went to court to force the Department to explain why it had not implemented the Act by referring the claims to the Land Claims Court for a ruling on whether the claimants were indeed Labour Tenants and if so, for the Department to grant them their land or negotiate an alternative.

The case since then has been characterised by delays and broken undertakings, forcing the applicants first to obtain a structural interdict to force the Department to show what it is doing to honour its obligations, and now to ask the court to appoint a Special Master to supervise the Department in its functions.

The LRC notes in its heads of argument that “the many years of disregard have created serious problems. Applicants have moved away or died. The land has changed hands. Files have been lost. In many ways, the Department is required to start the entire process from scratch. It needs to collect information that was lost or never obtained originally. It needs to verify information that has changed over 15 years. It then needs to send and gazette thousands of notices, conduct settlement negotiations, arrange transfers of rights and prepare applications for referral to this Court. That is a massive administrative burden.”

It is a burden the Department has not shouldered, partly due to lack of staff, budgets and skills, but also, some argue, because it doesn’t have the interest and knows that the longer it delays, the greater the chances that the claimants will just give up or die.

It is to ensure that this doesn’t happen that the applicants have asked for the appointment of a Special Master, in acknowledgment that it is beyond the scope of a court to keep tabs on the process.

A Special Master is a novel position in South African law, envisaged as an independent person appointed to be an “an agent of the court” who will monitor compliance, propose solutions, resolve disputes and report back to the court.

In essence, the Special Master will take proceedings out of the adversarial domain of ongoing court applications, and provide flexibility and mutual support to the Department, the applicants and the court.

The Special Master should, the applicants argue, be able to set out an implementation plan, monitor the Department’s compliance, update the plan if necessary, and recommend changes to the order if circumstances change. Even though the title of Special Master may be novel, it is argued that his or her functions embrace those of other recognised court-appointed functionaries, such as referees or commissions, claims administrators, amicus curiae and family advocates.

Judge Mpshe hinted, during the last court session on January 29, that he was not averse to the idea, but it seems likely that he will favour the appointment of a “monitor” rather than a Special Master, which implies a bossy function that could be seen to encroach on the Department’s authority and blur the separation of functions. He also cautioned that a Special Master will not be a silver bullet, and that claims will be concluded “not this year, not in 2017, not in 2018” but maybe by 2020 there will be progress.

Director of AFRA, Laurel Oettlé, said, “We return to Court on Thursday with determination and hope. The powerful symbolism of this week is hard to ignore – it is the week within which we celebrate not only both Human Right’s Day and the central event of the Christian faith – the celebration and commemoration of the resurrection of Jesus Christ – but the twentieth anniversary of Mandela signing the Labour Tenant’s Act into law. It is a week when one of the most marginalised and vulnerable communities in South Africa seeks the wisdom of South Africa’s legal system to uphold their most basic rights, enshrined in our Constitution and Bill of Rights, for which so many fought and died. We stand strong and united in our continued fight for justice to ensure the realization of these rights, after twenty years of unacceptable delays. We firmly believe that the appointment of a Special Master is the most effective means by which to achieve this.”