In a case that encapsulates the issues currently gripping South Africans, the Supreme Court of Appeal (SCA) heard arguments yesterday in the ongoing class action lawsuit between labour tenants and the Department of Rural Development and Land Reform (DRDLR). The country as a whole is looking to see if the promises made by our new President, of an accountable Government that will uphold the rule of law and finally take land reform forward, will be matched by decisive action.
In this latest round of court battle, a judgement handed down by Judge Ncube in the Land Claims Court on 8th December 2016 ordering the swift appointment of a Special Master of Labour Tenants to oversee the DRDLR’s implementation of the Land Reform (Labour Tenants) Act of 1996 was being appealed by the DRDLR, who were found to be in contempt of numerous Court Orders and in contravention of the provisions of the Labour Tenants Act.
The Land Claims Court found that not only had the Minister, the Director General and the DRDLR failed to protect the rights of labour tenants, but that they had also proved to be incapable of adhering to the necessary remedies prescribed by the Court. In an unprecedentedly bold step the Court found in favour of the labour tenants’ application to have a Special Master appointed to oversee the processing of labour tenants’ claims, some 11,000 of which remain incomplete since the closing date in 2001.
Yesterday, the SCA also heard arguments on whether the now former Minister of Rural Development and Land Reform, Gugile Nkwinti, should be held in contempt of court because of his unilateral decision to establish a forum of Labour Tenants without consultation with the parties in the case, despite the premise of a court order being that the establishment of this forum would be negotiated.
All five of the judges in the SCA were deeply concerned about the unconscionable delays in the processing of Labour Tenants claims, which undermines the fundamental rights guaranteed to them within South Africa’s Constitution. Their concern was that, while effective relief is undoubtedly required, the Land Claims Court may have overstepped its mandate in granting the Special Master as many powers as they did.
The judges suggested that the original applicants in the case, namely labour tenants, working with Pietermaritzburg-based NGO the Association for Rural Advancement (AFRA) and represented by the Legal Resources Centre (LRC) sit down and see whether they can come to an agreement with the State regarding the concrete application of the concept of the Special Master to oversee the process. If, however, the parties fail to reach agree in the coming four weeks, the court will proceed to give its judgment on the Appeal.
On the matter of holding the former Minister in contempt of court, the court pointed out that there is now a new minister and questioned if, given that the parties are trying to find each other, an order that says the minister was in contempt of the court might indeed be helpful at this stage.
Speaking to Labour Tenants outside the court following the proceedings, Advocate Alan Dodson, who had led the LRC’s legal team, reassured the Labour Tenants present: “Let me give you absolute assurance – the interests of Labour Tenants are paramount and we will make sure that with any settlement negotiations the rights of Labour Tenants are adequately protected. We want Labour Tenants to be absolutely clear that whatever is either ruled in by the court or settled, Labour Tenant claims must be processed. The beauty of a settlement is that it will bring the court case to an end and the focus would move to the processing of claims.”
The next four weeks will reveal the extent to which the new leadership of our country is willing to address the errors of the past, take accountability for their duties towards fulfilling the promises made to our most vulnerable citizens, and bring clear, constructive proposals to the table to effectively take land reform forward.
AFRA and labour tenants remain willing to contribute to a constructive, effective, speedy and well-resourced framework within the parameters of the law which will finally process all outstanding claims and create a better life for all.
Issued by the Association For Rural Advancement (AFRA). For more information contact Nokuthula Mthimunye on firstname.lastname@example.org or 076 764 7110. Twitter @AFRAKZN