Historic judgement awaits

Labour tenants and AFRA, represented by the Legal Resources Centre (LRC), finally had their day in court as Judge Thomas Ncube heard arguments for the appointment of a Special Master on the 10th and 11th October 2016. The highly anticipated landmark judgement could set legal precedent in South Africa, and is expected to be announced soon.

A small group of dedicated labour tenants travelled through the night to Randburg, Johannesburg, to arrive at the Land Claims Court on the 10th October. They listened to the proceedings over two days with an intensity and exhaustion that accentuated the long wait they have endured for a resolution to the land claims they and many others made under the Land Reform (Labour Tenants) Act.

Both AFRA staff and labour tenants were relieved to finally have their arguments heard in court after a long wait convoluted by delays, missed deadlines and squandered opportunities by the Department of Rural Development and Land Reform (the Department).

A long wait

While the plight of labour tenants began long before the Labour Tenants (Land Reform) Act of 1996, the signing of the Act by then President Nelson Mandela on March 22 formally acknowledged Labour Tenants as a class of people with a very specific set of legal rights.

In terms of the Act, people could be classified as labour tenants if they had in the past worked on a farm, without financial compensation, in exchange for rights to live on the farm and usually being allowed to work that small portion of that farm themselves through grazing and/or cropping. This arrangement allowed white farmers access to free labour where no wages were paid.

As with many laws that were signed after 1994, the Labour Tenants Act looked to redress past inequalities. It aimed to do this by transferring ownerships of the portion of land that labour tenants who made claims had lived on, or alternative compensation by mutual agreement. By the cut-off date of the 31st of March 2001, around twenty two thousand labour tenants had lodged claims with the Department.

However, twelve years after the cut-off date AFRA came to the firm conclusion that little or no action was being taken by the Department to implement the Labour Tenants Act.

A Class Action

A particularly large group of labour tenants who live in the back yard of the richest schools in South Africa, Hilton College, had been working with AFRA around the settlement of their claim. AFRA took up their case in 2011, when it was realised that their plight was no different from that of thousands of other labour tenant applicants. It was thus decided to bring a class action on behalf of all outstanding claimants, and in July 2013 AFRA – with the assistance of the LRC – filed a class action lawsuit.

From 2013 onwards, the Department repeatedly failed to comply with court ordered deadlines, provide adequate progress reports or provide statistics pertaining to the current status of labour tenant claims. The ongoing and persistent failure to process or refer to labour tenant applications was not only breaching the court orders but directly contrary to the South African Constitution.

A Special Master

The Department’s continuous systemic failure spurred AFRA to seek further redress, believing that a Special Master would be the only mechanism powerful enough to oversee the implementation of the Labour Tenants Act. A Special Master is an independent person appointed by, and reporting to, the Court. Their role is to assist in the implementation of a complex order, and they are not an advocate for the claimants or for Government, but an agent of the court. They are in essence “A problem solver, a solution finder,” arguably providing the surest route to the relief sought: the full implementation of the Labour Tenants Act and secure tenure for those whose claims are upheld in accordance with the criteria laid down by the legislation.

During the course of 2015 and 2016, AFRA mobilised labour tenants from across the country to attend all hearings related to case held at the Land Claims Court. Despite a variety of logistical challenges, the #LabourTenants movement became widely publicised in print, radio and televised media as well as social media.

Finally, an answer

After much persistence, deliberation and adjustment to a constantly shifting case, we hope that history can be made in this difficult decision Judge Ncube will have to make. The appointment of a Special Master will not only set legal precedent in the country, but we believe that it will more importantly fast-track the process that will finally see closure for labour tenants that have been made to wait too long.