Justice delayed for fallen labour tenant Con Court applicants

11 April 2018.

Mndeni Sikhakhane sits in his hut in Hilton Valley village in the KwaZulu Natal midlands. He rests on a bed in his grass thatched rondavel. Outside his family go about their daily chores around the homestead. The rondavel is one of several built around a square shaped white brick house identical to many in the village.

Sikhakhane is blind. He is 88 years old. His grey cataract eyes wander around the hut. He appears in relatively good physically shape – except for his feet which appear slightly swollen.

He is in good spirits. Yet there’s an important matter weighing heavily on his mind. Age is no longer on his side and he fears that if he were to die now, he would leave behind an important matter unresolved.

“I want to see cows roam free and I want to farm for my family on the land of my birth and not have to explain myself to anyone. That is all we want,” he says.

5 August 2019.

A WhatsApp message drops on my phone in the late afternoon. Sikhakhane passed on the day before. He was the last surviving applicant in two important court cases affecting farm labour tenants.

One of his lasting wishes was that he could live long enough to see the finalisation of the two cases, one in which the Constitutional Court finally ruled in his favour this week; and another upcoming in the Land Claims Court in September.

In 2013, together with Bhekindlela Mwelase, Jabu Agness Mwelase and Bazibile Gretta Mngoma, Sikhakhane was one of four applicants who asked the Land Claim Court to force the department of rural development and land reform to appoint a special master to process and adjudicate over thousands of land claims lodged by farm labour tenants.

The Legal Resources Centre (LRC) and the Association for Rural Advancement (AFRA) which brought the case on behalf of the applicants argued that the estimated 11 000 and 22 000 land claims lodged by labour tenants labour tenants who filed them between 1996 and 2001 – were getting nowhere because of bureaucracy.

The case was filed as a class action before the Land Claims Court on behalf of an estimated 19 000 labour tenants and their family members who live in their homes in KwaZulu-Natal, Mpumalanga and Limpopo. Judgment on the matter by the Constitutional Court is pending.

Sikhakhane was also expected to testify in a separate matter in the Land Claims Court next month – in which The Hiltonian Society is disputing that the claimants had been or were labour tenants. But Sikhakhane will appear in no court anymore.

On the first Sunday in August, surrounded by family in his hut on the grounds of the village – the octogenarian took his final breath.

Sikhakhane’s granddaughter Manunu Sikhakhane said his health had been failing him for quite some time. He could not even travel to the Constitutional Court hearing in May due to ill health.

“He was always worried about this case. He would ask us if he would die before he saw it finalised,” Manunu told Mukurukuru Media.

AFRA spokesperson Nokuthula Mthimunye said Sikhakhane’s passing leaves a big question mark around the Land Claims Court case to be heard next month. Sikhakhane was the last of the surviving original four claimants.

“We assume that he might have been stressed with this process considering his age. He had to go stand before the court and testify and prove that he was indeed a labour tenant. That could have been one of the things that stressed him,” said Mthimunye.

She said they have tried to apply for a postponement of the matter after learning of Sikhakhane’s death but this was not successful.  Mthimunye said it was now unclear what would happen given that Sikhakhane was the last surviving applicant in the matter.

Sikhakhane and his family together with 35 other families lived on a portion of the farm owned by The Hiltonian Society, which owns the prestigious Hilton College. The families, descendants of the original occupants of the land have lived here all their lives.

“We are people of this land. God made us to look like the soil of this land because we belong to it. We were born to farm on our land and trade livestock among ourselves. Money was never our thing as Africans,” he told me in an interview in April last year.

20 August 2019.

Constitutional Court Judge Edwin Cameron rules in favour of Sikhakhane and his fellow applicants. Sikhakhane has been buried just a week earlier. Bhekindlela Simelane died in November 2018. All the four original applicants are gone – justice delayed, justice denied.

Cameron’s judgment reinstated Ncube’s December 2016 ruling that a special master be appointed to help the department process the land claims by labour tenants.

‘…the Department has jeopardised not only the rights of land claimants, but the constitutional security and future of all.  South Africans have been waiting for more than 25 years for equitable land reform,’ Cameron said in his judgment.

‘More accurately, they have been waiting for centuries before.  The Department’s failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly exacerbated the intensity and bitterness of our national debate about land reform.

‘It is not the Constitution, nor the courts, nor the laws of the country that are at fault in this.  It is the institutional incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis.’

Ncube’s judgment ordered the department to submit suitable names for a special master and an implementation plan within 30 days of the ruling. Cameron’s judgment means the department now has to comply with this.

Background

Labour tenants had very little legal protection until the passing of the Land Reform (Labour Tenants) Act of 1996 and the Extension of Security of Tenure Act of 1997. The labour tenant system is a colonial remnant that forced black African land-owners to become tenants on their own land.

Families had to earn their tenure through their labour on the land that was handed to whites. This meant, in most cases, that children of labour tenants were destined to become farm labourers as soon as they could to help their families meet their part of the deal.

But, with the promulgation of the Restitution of Land Rights Act in 1994, labour tenants like Sikhakhane — whose ancestry on the land can be traced back more than 200 years — found their land claims frustrated by government bureaucracy.

In their application Sikhakhane and the three applicants said they had approached the court because of clear evidence of the department’s failings.

They asked the court to appoint a special master, an independent person who would assist in the processing and adjudication of labour tenant claims. The department of rural development and land reform and the Hiltonian Society submitted to the court that settling the applications would be an enormous task.

In December 2016 the Land Claims Court ruled in favour of the applicants, exposing the many structural and operational failures within the system and the department in the process.

“It is apparent from the Act that if the First and Second Respondents fail to process applications for awards in land by labour tenants, the noble goals of the Constitution at Section 25 (6) echoed in the Act, of granting security of tenure and ownership of land to labour tenants, will not come to pass. This regrettable state of affairs has, unfortunately, 20 years after the promulgation of the Act in 1996, actually come to pass,” Judge Thomas Ncube said in his judgment delivered on 8 December 2016.

The court also found that both the director-general and minister of the department of rural development and land reform and the department itself had been unable to provide statistics of exactly how many labour tenant claims had been lodged throughout the country.

Ncube said both the director general and the minister [first and second respondents] did not deny that they had failed to process labour tenant applications adequately and that many claims remain unattended to.

Furthermore the director general had admitted that labour tenant applications had not been proactively managed for a number of years and had admitted in an April 2015 report that the process of collating outstanding information could take between 12 to 24 months.

Ncube said the admission that the processing of labour tenant claims had been effectively neglected and were at that time in a chaotic state had prompted the applicants to ask the court to appoint a special master to process land claims brought by labour tenants.

The court ruling was rather damning and exposed the inefficiencies and almost lax attitude of the department in dealing with land claims by labour tenants, a view expressed by claimants.

Ncube was understandably scathing in his judgment, saying that the court now had to deal with ‘the serious problems that have been created due to the many years of disregard and neglect of labour tenants’ claims.’

But he went further to touch on a sensitive view expressed by many frustrated land claimants, who believe the state is deliberately delaying settling land claims so that the many of the older generation dies. This, they say, will lead to a decline in interest in the issue of land claims.

“It is common cause that many applicants for awards in land have either moved away or died, that land has changed hands and disturbingly, that files have been lost by the Department [of Rural Development and Land Reform].

“It also appears to be common cause that 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 and to verify information that has changed hands over many years. The applicants allege that the department has shown that it is not up to the task.”

The Land Claims Court ruled in favour of the applicants, ordering that a special master be appointed to assist labour tenants to make claims for portions of the land they had worked and lived on. A special master is an independent person who is appointed by, and reports to, the court.

However the department took the matter on appeal and in August last year the Supreme Court of Appeal (SCA) overturned the earlier ruling to appoint a special master. AFRA and the LRC took the matter to the Constitutional Court citing a dissenting judgment by Judge Baratang Constance Mocumie.

In her judgment, Mocumie said the Land Claims Commission had tried ordinary court supervision but it had failed. She said there was a need for effective relief for the many thousands of vulnerable labour tenants and the department of rural development had thus far experienced grave difficulties in providing this. Mocumie said the size and complexity of the task of settling the land claims alone supported the appointment of a special master to assist the court with monitoring implementation.

In May the Constitutional Court heard arguments from the applicants who were challenging the SCA appeal.

In reaction to Cameron’s judgment this week Siyabonga Sithole land program co-ordinator at the Association for Rural Advancement [AFRA] which is also an applicant in the matter, hailed it as a historic victory as it was the first time government had been ordered to appoint a special master.

But although the case is a victory for labour tenants, they may still have much longer to wait as Ncube’s judgment exposed serious lack of capacity by the department in handling the claims and also that many records had been lost and did not provide a time frame by when the claims should be processed. Sithole said they will wait for the department to submit its implementation plan.

Sikhakhane and his fellow claimants would have probably found comfort and justification for their persistence with the court action in these words by Cameron: ‘The very course of this litigation, right up to the proceedings in this Court, has shown the Department’s inability, in colloquial but apposite terms, to get its act together.  While the good faith and good intentions of its promises and undertakings may be accepted, they have repeatedly failed to translate into effective, rights-affirming practical action.’ – © Mukurukuru Media