Court case could hold the key to land reform: could new political will for land reform provide renewed hope?

 

Arriving B&WBy Laurel Oettle

First published in the The Witness on Monday 19th March 2018.

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Our collective consciousness in South Africa has been gradually consumed in the past few months by the increasingly solid spectre of land expropriation without compensation. From the debates around whether it is necessary to amend the Constitution when it already explicitly allows for “just and equitable” compensation, which can very reasonably in some cases be argued to be extremely low or indeed zero, to the uncertainly about whether this means an opportunity to finally heal our past and secure our most vulnerable citizens or will give the State too much power which may well be abused, we all have our own opinions, fears, and hopes.

The Supreme Court of Appeals heard arguments on Tuesday (March 13, 2018) in a case that speaks to the heart of some of these concerns, and we should all be keeping a watchful eye on how the new leadership will respond to cases such as this one, which offer us immediate and keen insight into what kind of change might be on the horizon, and whether we should allow ourselves renewed hope. The case is a long-running class action battle between the Department of Rural Development and Land Reform and a class of citizens known as Labour Tenants. Labour Tenants historically provided unpaid labour to commercial farmers in return for rights to live, crop and graze their animals on small portions of land, as their parents and, in many cases, grandparents did before them.

More than 20 years after an Act of Parliament specifically written to protect the rights of Labour Tenants was passed, and opened the door for them to apply for ownership of the land on which they live, the lack of implementation of this Act has meant that Labour Tenants have continued to live with insecure tenure and limited access basic services because of lack of ownership and control.

Although this case has dragged on since 2013, it has risen higher and higher in national debates and consciousness over the past couple of years for a number of reasons. One of these is that it highlights the very visible failures of land reform to bring either historical redress or begin to change the current highly unequal and racialized relationships between predominantly white land owners and their poor, black tenants. Secondly, the case introduced, in 2017, an innovative new legal mechanism to hold Government to account when it fails repeatedly to adhere to Court orders and implement legislation. Known as a ‘Special Master,’ this would be an independent person who is appointed by, and reports to, the court. Their 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.

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Furthermore, as more and more labour tenant claimants die each year with their claims unprocessed, the time delays begin to take a very human, and deeply haunting, toll. One of the icons of the Labour Tenant struggle has become the humble figure of Zabalaza Mshengu, who is now 104 years old and continues to live in dire poverty in Ashburton, just outside Pietermaritzburg. While his story has been told and re-told in local and national media, from Noseweek to Special Assignment on SABC3, and despite being declared a Labour Tenant in Court in 2007, and the Court ordering yet again in 2011 that the land on which he lives must be transferred to him, he remains an ill, tired old man hanging on to life in a hut that is crumbling around him, hoping day after day that he will receive his title deed before he dies.

What, then, are we to make of the each of the many thousands of stories we can tell that show that legal processes, ongoing advocacy by non-governmental organisations, media coverage and public outcry have not been enough to bring the change so many dream of? If we pull ourselves through the quagmire of organisational dysfunction and limited land reform budgets, the looming darkness of political will always awaits us.

In Court on Tuesday Justice Willis noted that, “Any reasonably informed person in South Africa knows of the failures of Land Reform,” and Justice Mocumie followed this up by stating that, “We need to say to ordinary people that we do understand their impatience  that as Government we did take responsibility to give you your land back.” When Advocate Alan Dodson delivered his responding arguments on behalf of Labour Tenants later in the day, he picked up this theme and pointed out to the panel of judges that this case represents “A legal crisis, a human crisis, but perhaps in a secondary way a political crisis.” This theme became more explicit as the Court proceedings continued, with Justice Willis reaching the heart of the matter when he said, “Ultimately it’s a political problem that needs to be solved politically.”

Given that a critical analysis is likely to lead any objective observer to the conclusion that changing South Africa’s Constitution is unnecessary to advance progressive land reform, and given that the findings and recommendations of Parliament’s High Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change released in late 2017 indicate that it is certainly not any failures within the Constitution that have been holding back the effective implementation of pro-poor land reform, what indications do we have that there has truly been the shift in political will needed to bring the fundamental change required to bring us into a new era?

An opportunity has opened for us to begin to see if the murmurings of change that are being whispered in the corridors of power can bring about real change in the daily lives of South Africans. The Supreme Court judges concluded on Tuesday by suggesting that the original applicants in the case, namely labour tenants and the Pietermaritzburg-based NGO the Association for Rural Advancement (AFRA), 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 a Special Master to oversee the processing of Labour Tenant claims. If, however, the parties fail to reach agreement in the coming four weeks, the court will proceed to give its judgment on the Appeal. This has opened an opportunity for the State to show its willingness to work with and not against its citizens, and civil society, as our new President has indicated he wishes to do. Let us all eagerly watch what unfolds, and hope that there might, indeed, be a new dawn on the horizon for South Africa.

Laurel Oettle is the Director at the Association for Rural Advancement (AFRA)

Author: AFRA

AFRA is a South African land rights non-governmental organisation (NGO) working with marginalised people on farms to advance the realisation of their rights.

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