[Summary of Arguments] The Rights of Labour Tenants Tested in the Land Claims Court

A Long Wait – Not Yet Over

The Association for Rural Advancement, on behalf of 19 000 labour tenants, has finally been able to place its arguments for the appointment of a Special Master to oversee the processing of outstanding labour tenant application before Judge Ncube at the Land Claims Court.

The court proceedings took place on the 10 & 11^th October 2016, as a small group of twenty labour tenants gravely watched and listened to the proceedings, the outcome of which will directly affect their future and those of the many thousands of labour tenants still left in limbo. The case for AFRA and the labour tenant claimants was presented by Advocate Alan Dodson and the Legal Resources Centre’s team, who have worked on the case for more than three years. Advocates Notshe and Jansen represented the Minister and the Director General of the Department of Rural Development and Land Reform respectively.

The AFRA team and labour tenants present were visibly relieved that they have had their day in court, after many years of delays, missed deadlines and squandered opportunities. At the end of the two proceedings an adjournment was announced, with the outcome expected to be handed down by Judge Ncube within approximately five weeks. A historic verdict will be rendered at that time, finding either for the victims of decades of neglect of their legal rights, the labour tenants, or in favour of a bureaucracy and Minister who claim that, while they may have been the cause of these violations, they are still best placed to fix them.

Advocate Dodson and the team clearly and logically set out the case for labour tenants.  In short this restated the previous lengthy submission, Court papers and Court orders, showing that the Department, to the detriment of claimants, had abandoned the implementation of the Labour Tenants Act. It was further argued that the Court ordered deadlines and undertakings by the Department were not met, pointing to a chronic and systemic failure on the part of the Department. This mountain of evidence required Court intervention for supervision of the implementation of the Act, in such a manner as to expedite the provisions of the law.

The applicants explained that a Special Master is an independent person who is appointed by, and reports to, the court. Her duty is to assist the court to implement a complex order. The Special Master is not an advocate for the claimants or for the government, but an agent of the court. It was shown that a Special Master “would be a problem solver, a solution finder” to the seemingly intractable failures of the Department, thus providing the surest route to the relief sought by labour tenants: full implementation of the Act and secure tenure for those whose claims are upheld in accordance with the criteria laid down by the legislation.

The applicants also further argued their reasons for asking the Court to find the Minister in contempt of court, a matter related to his unilateral disregard of the spirit and letter of a Court Order framing a negotiation process between the parties earlier in 2016.

“Idealistic Cry-Babies” with a Hidden Agenda

The Director General’s legal counsel responded to these arguments with a number of assertions which seem to indicate a reversal of the previous positions taken on the matter. The Department, its was argued, was best placed to resolve the issue of Labour Tenants, and thus the appointment of the Special Master was not warranted. Advocate Jansen appeared willing to have a renewal of the previous Court Order (2015) which required regular reports to AFRA and the Court, saying that given another year, great progress would have been made. He further stated that the all the obstacles and challenges facing Labour Tenants were well understood by the Director General and that his expertise far exceeded that of any external party, again stating that a Court appointed Special Master would lack this expertise. For the Department, it was clear that AFRA and the Labour Tenant claimants, have “idealistic” view of the Act, which has led to a serious misunderstanding of the finer intricacies and nuances of the Act and its implementation.

These arguments were largely expected and easily refuted by AFRA’s counsel pointing out that those who had caused the problem, and repeatedly failed to fix the problem, could not now claim they are the only ones capable of actually resolving the problem. The absence of an effective plan and the lack of diagnosis and resource assessment reflected that lack of preparation on the Department part, reinforcing the need for the Court to take steps to intervene on behalf of Labour Tenants.

The view advance by the Director General’s legal counsel that was unexpected was the assertion that unlike restitution, labour tenants rights were in fact not derived from the Constitution. The Department advanced that view that a distinction was needed between rights based land reform and policy based land reform. The former is based on the Constitution, the latter is at the discretion of the Minister and the Department, which may or may include legislation. If Labour Tenants are to assisted, then such assistance is then formulated by policy-based land reform, and these policy are discretionary to the Minister.

The view advance by AFRA is clearly that legislation cannot be trumped by policy and that Labour Tenants rights are not to be determined by arbitrary decision-making on the part of the Minister or the Director General.

Arguments were also heard in respect of the AFRA application to find the Minister in contempt of Court as a result of his failure to negotiate with the parties in good faith, and despite repeated requests from AFRA for him to desist from actions which violated the letter and spirit of the Court-regulated negotiations. The Minister legal representative insisted that the Minister acted in good faith and that AFRA, not the Minister, sought to scupper the negotiations.

Awaiting An Historic Decision by the Land Claims Court

The Court proceedings were adjourned and judgement is expected in the next five weeks. The Director of AFRA, Laurel Oettle, stated that:

“We have waited a long time to have our case heard before Court and we are relieved that it has finally happened. We are confident that our legal team and everyone involved in the case have represented that views of AFRA and Labour Tenants, and we believe that our arguments have been really well represented.

Naturally we are disappointed that it has taken so many years to get to this point but now that we are here we look forward, with cautious optimism, to the judgement. We must thank our Labour Tenant communities and their families for never giving up hope and remaining so steadfast. We also extend our heartfelt thanks to our many partners and friends who have shown solidarity with us over the years.”