A Hope Deferred

By Nokuthula Mthimunye

When Cabangile Sokhela married in 1992 she had high hopes for the family she would raise in the years to come. As is customary, she moved in with her husband’s family who lived on Faith Farm in Impendle, where they had been labour tenants
for many years.

As an activist for land rights she worked closely with AFRA to secure the dreams she had for her family and children. Like so many others, she and her family lodged their labour tenant land acquisition claim in 1996. She still recalls the dedication and commitment of her AFRA comrades like Mdu Shabane, currently Director General of the Department of Rural Development and Land Reform (the Department), who she remembers as soldier in the struggle for the rights of labour tenants.

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Mama Sokhela the dedication and commitment of her comrades like Mdu Shabane, currently the Director General of the DRDLR, who she remembers as a soldier in the fight for the rights of labour tenants. Photo: Tom Draper

Her struggle has been a long one. Now, 20 years after having lodged their claims,she says ‘ingane yami yayincane kakhulu ngesikhathi sifaka isicelo sokubuyiselwa umhlaba, manje isiganiwe, isiqale nomndeniwayo, kodwa umhlaba awukabuyi kuthina namanje” (My son was very young when we lodged our claim, he is now married and has a family of his own – but still the land has not been given back to us).

While the state has purchased the land on which Mama Sokhela resides, little development has taken place. The labour tenant families living on Faith Farm have not received title deeds to their land and they remain completely in the dark as to if
any development is planned or to whom the rest of the farm has been leased and for what purpose.

The families continue to graze cattle as they did in the past, but have not received any services from the local municipality. She says that when they approach the Municipality they are told that since they are not the owners of the land, no services can be provided to them.

To complicate matters further, some of the land in the area is also subject to competing restitution claims. All of these factors combine to keep Mama Sokhela and her family in a state of insecurity and uncertainty. Securing rights and achieving sustainable and productive development is difficult for labour tenants and their families without the state playing an active role in supporting them.

It is on behalf of Mama Sokhela and all other labour tenants across South Africa that AFRA has been in Court compeling the Department to fully realise the constitutional rights of labour tenants, as detailed in our Programme Report.

AFRA Mandela Day 2016

A massive thanks to all that donated towards the Mshengu fund!

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Thank you to everybody who contributed their time and made donations towards improving the life of uMkhulu uMshengu. Today we were joined by the LRC and DRDLR to handover blankets and foodstuffs to him and his family. Among the people that heeded to our call was UMATI, an organisation of commercial farmers who mentor and facilitate socio-economic development initiatives in the Upper Midlands area.

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102 year old Zabalaza Mshengu sits in the backdrop of his ID document. Photo: Tom Draper

UMATI unbelievably donated a 1000lr Jojo Tank towards the initiative. Now uMkhulu would not have to walk kilometres to the nearest water source to fill his containers.

The money that AFRA and DRDRL have raised will go towards fixing Mshengu’s house.

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AFRA Staff Glenn Farred (left) and Ndabe Ziqubu (Right) enjoying the process of handing over food, water and blankets. Photo: Tom Draper

We appeal to you to continue making donations, as you can see, Mshengu’s house quite dilapidated and your contribution would help change that.

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Mkhulu Mshengu observing all the donations he has received for Mandela Day 2016. Photo: Tom Draper

Donations can be made to the account below or cash given to Tom Draper (tom@afra.co.za or 078 754 0700)

Name of Account: Association for Rural Advancement
Reference: Mshengu
Bank: First National Bank
Acc no: 50950020963
Branch Code: 223125
‪#‎MandelaDay2016‬

Mandela Day 2016: Call for donations

Every year we celebrate Mandela Day with 67 minutes dedicated to an action honouring the spirit goodwill typified by our former President. AFRA, as a land rights NGO, focuses on uplifting the lives of farm dwellers and workers by ensuring their rights to land are being realised. We would like to appeal to you to help out by making a small donation towards a good cause.

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A particularly well known labour tenant client of AFRA’s who goes by the name Zabalaza Mshengu has been waiting for over 20 years for his land to be bought by the government. Mr Mshengu is 101 years old, and due to his delays in the finalisation of his labour tenant claim, he lacks access to  clean, safe water. He has to walk kilometres to the nearest water source with his containers or wait for his grand-children to do so for him.

For Mandela Day 2016, we decided to help Umkhulu Mshengu with a small gesture of kindness. AFRA will be raising money to have a water tank installed on Mshengu’s property. AFRA will assist in ensuring the tank is filled by the municipality on a regular basis.

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We are inviting you to the presentation of the tank at Mshengu’s home on Monday, 18 July leaving AFRA’s premises at 10 am. We will also be handing over blankets and foodstuffs, so please feel free to join us.

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As you can imagine the installation will be costly,.Jojo Tanks Camperdown have kindly agreed to install the tank at a cost of roughly R2000. Please consider making a charitable donation towards Mshengu’s water tank. Donations can be made to the account below or cash given to Tom Draper (tom@afra.co.za or 078 754 0700)

Name of Account: Association for Rural Advancement

Reference: Mshengu

Bank: First National Bank

Acc no: 50950020963

Branch Code: 223125

Background Story:

https://afra.co.za/2015/12/14/101-year-old-struggle-to-find-restitution/

https://afra.co.za/2015/08/25/a-struggle-in-vain/

AFRA welcomes decision to allocate Ingonyama Trust Title Deeds to improve tenure security

By Tom Draper

On Tuesday the 7th June, King Goodwill Zwelithini announced the allocation of individual Title Deeds to those living on land that falls under the Ingonyama Trust Board. This will affect millions of South Africans living particularly in rural areas.

Ngolwesibili mhla ziyisikhombisa kunhlangulana, Isilo uGoodwill Zwelithini simemezele ukuthi Ingonyama Trust izoqala  uhlelo lokunikezelwa kwamatayitela kubantu abahlala ngaphansi komhlaba owenganyelwe yingonyama trust. Lesimemezelo sithinta bonke abantu abahlala ezindaweni zasemakhaya (KwaZulu Natal)

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Millions of South Africans will be affected with the allocation of individual Title Deeds. Photo: Rebecca Stredwick

Speaking at the opening of the KwaZulu-Natal House of Traditional Leaders in Ulundi, Zwelithini issued his belief that the decision was in line with the countries law.

Ekhuluma ngesikhathi kuvulwa Indlu Yobuholi bendabuku KwaZulu Natal oLundi, isilo sikuqinisekisile ukuthi loluhlelo luyahambisana nomthetho wezwe.

“I recommend that residents of the land under traditional leadership should be given Title Deeds after following all processes of the Ingonyama Trust, which are in line with the policies of our national government with regard to land rights,” he said.

“Ngiyakugqugquzela ukuthi abantu abahlala ezindaweni ezingaphansi kobuhloli bendabuko banikezwe ubunikazi bomhlaba abahlala kuwo, emva kokuba kulandelwe yonke imigomo ye Ingonyama Trust ehambisana nemithetho kahulumeni kazwelonke yezemihlaba,” kusho Isilo.

KZN Premier, Willies Mchunu indicated that the land will be only allocated for residential use, while commercial activities will continue to fall under the existing Ingonyama Trust Board. AFRA believes the allocation of Title Deeds could be a major step forward resolving a number of long standing issues in rural areas.

Undunankulu waKwaZulu -Natal uWillies Mchunu ungcizelele wathi kuzonikezelwa ngamatayitela ezindaweni zokuhlala kuphela. Umhlaba osetshenziselwa ukulima nokunye uqhubeke wenganyelwe yingonyama trust.

Inhlangano yakwa AFRA ikholelwa ukuthi ukunikezelwa kwamatayitela kubantu abahlala ezindaweni zasemakhaya kuyigxathu elibaluleke kakhulu ukuxazulula izingqinamba ezibhekene nabantu ezindaweni zamakhosi.

AFRA remains hopeful of the prospective improvement in tenure security. However, concerns regarding the transparency of the process remain.

Inhlangano yakwa-AFRA inethemba lokuthi loluhlelo luzoqinisekisa ubunikazi obuvikelekile, kodwa ikhathazekile ngokungacaciswa kwendlela elizoqhutshwa ngayo.

“It goes without saying, secure tenure is hugely significant. I do have a number of concerns regarding the unilateral nature of the process. It seems to have gone forward without much consultation of stakeholders. I think without complete transparency it could entrench if not amplify the abuse of power by traditional leaders,” said Mike Cowling, lawyer and land rights expert.

Ummeli u MikeCowling nonguchwepheshe kwezomhlaba uthi ukunikezelwa kobunikazi kuyigxathu elikhulu, kodwa ukhathazekile ngendlela loluhlelo oluzoqhutshwa ngayo ngoba kubukeka sengathithi lumenyezelwe ngaphandle kokuxhumana nokubonisana nabantu abathintekayo. Ngicabanga ukuthi uma luzoqhutshwa ngendlela engekho obala lungaholela ekutheni abaholi bendabuko besebenzise amandla abo ngendlela engekho emthethweni.

AFRA will continue to monitor the planning and implementation of this process with a particular focus on secure tenure for women while maintaining a cautious optimism.

Inhlangano yakwa-AFRA izoqhubeka ibheke ukuthi loluhlelo luhlelwa kanjani nendlela oluzoqhutshwa ngayo ikakhulukazi ekunikezelweni kobunikazi kubantu besifazane.

Dialoging for Gender Equality

by Laurel Oettle

The Commission for Gender Equality (CGE) brought stakeholders from Educational and Research Institutions, Civil Society, Chapter 9 and 10 institutions, and Government Departments together in Durban yesterday for a Stakeholder Reflection Dialogue.

The CGE is an independent statutory body created under Chapter 9 of the South African CGE 1Constitution, and has a mandate to promote and protect gender equality in government, civil society and the private sector. The aim of the Dialogue was to both celebrate gains and identify gaps that still need to be addressed, and the morning also saw the CGE bid farewell to one of their much-loved Commissioners, Janine Hicks, who yesterday ended her second term (and a total of nine years) with the CGE.

In a participatory process, all stakeholders were asked to bring three key achievements and gaps in their sector to contribute towards discussions on the day. After mapping these into their relevant categories under Rights ViolationsGender MainstreamingGender-Based ViolenceSocial Issues or Women in the Workplace, we broke into groups to discuss current interventions being undertaken by our organisations around these key issues, what we feel the CGE should be doing, and how we can best collaborate.

CGE Janine Hicks

It quickly became clear that a huge amount of valuable and innovative interventions are being undertaken, and that there are a number of opportunities for valuable partnerships and collaborative work to emerge from the day’s discussions. These included joint awareness campaigns around shared issues, a greater understanding of what useful gender indicators organisations could be including in research and share with the CGE and other stakeholders to help improve both monitoring and advocacy work, and the concept of a common online platform or database to aggregate data for analysis, sharing & learning.

CGE Participants

CGE CEO Ms Keketso Maema, after summarising the way forward from today’s dialogue – including further such engagements to understand what is happening on the ground – wished Commissioner Hicks a very fond farewell. She noted that it is never easy to say goodbye to somebody who is as dedicated as Ms Hicks, and she expressed the CGE’s gratitude for the work she has done, her devotion to championing gender issues, and her invaluable contribution to assisting the CGE to build a wide range of lasting relationships.

I caught up with Ms Hicks at the end of the Dialogue to hear some of her views on the day, reflections on her nine years with the CGE, and – following her recent support to AFRA’s Strategic Planning process – her hopes for the current work being planned around increased gender mainstreaming within AFRA.

Regarding the Dialogue, she said: “I particularly loved the activism that we’re seeing on the ground. What was evident from today’s discussions is that gender equality is very much alive in multiple and many different spaces – we’re seeing groups do education and awareness raising, service delivery, policy advocacy, networking and collaboration. People have been saying, “Where is the women’s movement? We don’t have a women’s movement any more.” We very much do – we have women’s movements, and movements around gender equality, and we are seeing men play a role in movements around gender equality. So that was very heartening.”

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“What was disheartening was seeing that when we identified where the gaps and challenges are, they’re the same ones that we’ve been talking about for 20 years. Why have we not got the correct response to dealing with Gender-Based violence? Why are we still talking about good policy that is not being implemented? We’ve got equality legislation, so why are we still seeing such inequality in the workplace? When we know that there are particular group struggling to access rights, why are we here 22 years post our Democracy still talking about women in rural areas struggling to access land? We need to ask the big uncomfortable question of why we don’t have gender transformation in our society and our spaces, and we need to pause and reflect on that. Is it something imbedded in all of us, and our society, that poses the greatest threat to transformation?”

When we moved to discussing her contribution to the CGE over the past nine years, she share her pleasure in some of the policy framework developments she has played a role in having been taken up by the CGE and the State, with highlights including the law reform happening around maternity benefits and protection for all classes of working women (including women in the informal economy), the current call for the decriminalisation of sex work to put an end the abuse of rights we are seeing where women and men are being denied access to a range of rights, and escalating issues around forced and early child marriage, which is especially critical in the province of KwaZulu Natal. She further mentioned the key element of improving effective networking and collaboration across sectors.

“That work is in safe hands,” she said. “It’s embedded in the work and the commitment of the people here, and that work will continue even without me there as Commissioner. I’m most proud of that fact – I can step out and things won’t collapse.”

She went on to confess that once you’re part of the CGE you never really leave, and that she will continue to be active and involved in those spaces and conversations, just in different ways.

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Commissioner Janine Hicks

In closing, I asked her to reflect on the time she has recently spent with the AFRA team, as we seek new and effective ways to take forward our vision of an inclusive and gender-equitable society, including deepening and enriching the mainstreaming of gender in our work.

“It seems roundly embedded now in your team’s approach. While your team have said they need greater understanding of and embracing of gender equality as a concept, I heard the awareness of gender issues being layered into the different interventions and the work that you’re doing – whether you’re handling complaints and cases of eviction or talking about policy advocacy work, or outreach and awareness on rights. I think there’s a realisation among your programme staff that we need to surface gender and deal with it specifically, whether we’re talking about women’s access to land, to resources, to economic opportunities, in particular some of the vulnerable situations that women are placed in, as well as the need to tap into women’s agency and activism. I’m really pleased to hear that that is there.

Your bigger challenge is that while you have that understanding internally and as an organisation, you have to go out and work in a world that in some respects is very hostile to issues of women’s agency, and hostile to the notion of women owning land and to women leading development processes. We know that women play such a core role in ensuring family livelihoods, for instance; they are actively involved in getting water and energy for their family needs, but we don’t feel comfortable putting women in leading positions and driving processes. You’re going to be encountering those kinds of attitudinal prejudices and it can be quite violent and hostile, the reactions.

We see it across the board – a backlash to talk about gender equality, to feminism, to women’s empowerment. There’s a hostile reaction to that right now – that’s what we see in the gender sector generally. So I think as AFRA you’re going to have to fashion your interventions in a way that people understand that we’re not doing this because it’s a nice thing to do to help women, but to realise that we will not succeed as a country, that we will not be able to drive agrarian reform and meet our development targets, unless we include women.

Women are the majority of our population – they are our potential, and we need to tap into that or else we’re walking with one leg and one arm, and we need both legs and both arms. Yes it’s a Constitutional imperative, but more than that it is actually a developmental necessity to have women as part of that conversation and part of that drive. I wish you well in that journey!”

We are grateful to the CGE and our fellow participants for a constructive and participatory dialogue today, and to Ms Hicks for her insight, support and encouragement. We look forward to further collaboration and conversations as we all continue to work in our unique ways towards an equitable society where rights are valued, realised and protected.

How can the Voluntary Guidelines strengthen tenure rights in South Africa?

by Ruth Hall @RuthHallPLAAS on 10 May 2016

First published on the PLAAS website and re-posted by kind permission

South Africa faces numerous challenges when it comes to providing fair governance of land, fisheries and forests. Among these are the need to remedy the racially skewed resource regime; to secure the rights of poor people to natural resources on which their livelihoods depend; and create accessible and democratic governance regimes that are accessible, transparent and accountable to citizens.

How to use the Voluntary Guidelines?

How to do this, and how to use global guidelines to establish agreed standards for governing tenure, was the focus of a national workshop to conduct an initial stakeholder capacity assessment. The meeting, held in Cape Town on 4-6 May 2016, drew together a small but diverse range of participants – from civil society organisations, social movements, private sector, academics, traditional leaders and government – to identify priority next steps.

The FAO and the South African Department of Rural Development and Land Reform (DRDLR) co-hosted this workshop to discuss how to operationalize and use the Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT).

VGGT Group Photo
VGGT Workshop Group Photo
Building on awareness-raising

This followed a first awareness-raising workshop on the VGGT held in South Africa in December 2014, and a blended training programme focusing on the VGGT principle of gender equality, which took place between September and December 2015 and involved online learning, a face-to-face workshop and mentoring.

Drawing on experiences and lessons from elsewhere

The workshop also heard a presentation on the headline findings of a State of the Debate Report on progress with and lessons from implementation of the VGGT. The report is to be published on 11 May 2016, the fourth anniversary of the endorsement of the guidelines. Several elements of this global review were of particular interest to the South African participants, including the ‘Sierra Leone’ model of a national programme with significant government buy-in, inter-ministerial coordination and an inclusive multi-stakeholder platform. Much time was spent discussing whether or not the political conditions exist in South Africa to make such a model workable.  Ultimately, elements of this model featured among the agreed recommendations for next steps.

Competing views about the current situation

There were, though, substantial disagreements about the extent to which South Africa’s governance of tenure is already compliant with the VGGT.

We ought not to think that we had no measures in place to address the issues contained in them [the VGGT]’, said one government representative. ‘The Constitution covers all those principles in the VGGT. In the main, the challenge is around implementation.’

In contrast, a spectrum of civil society participants presented some of our legal and policy frameworks as being at odds with the VGGT, and specifically its principles of transparency, gender equality and democratic governance. The proposed provisions of pending legislation and draft policies were also criticised as being at odds with some of the VGGT principles.

Five priorities

After lengthy debates, there was agreement on five priority proposals for actions that should be taken in the coming two years to advance the VGGT in South Africa.

  1. A national multi-stakeholder platform: There was a call to establish a national multi-stakeholder platform to use and promote the VGGT in law, policy and practice. Government representatives agreed that there would need to be agreement on a lead department to champion the VGGT and to play a key role in convening this national platform – though there may need to be champions or focal people in each relevant department. Among the roles of this platform would be to discuss the ‘domestication’ of the VGGT and the adaptation of these principles to local conditions and dynamics. One proposal was to consolidate this into a national ‘Charter on Tenure Rights and Governance’. Monitoring gender compliance and gender equality across sectors was agreed as an area where progress is needed and a top priority.
  2. Training, awareness-raising and production of materials: Training is a priority for government officials, parliamentarians, civil society, community-based organisations, paralegals, journalists, business associations and others. There was a proposal that this should include the production of accessible materials on the VGGT in a manner relevant to the South African context, including at least one short video that can be translated into all South African languages and widely disseminated.
  3. Civil society and grassroots campaigns: Campaigns led by civil society and grassroots organisations were identified as a priority and a way to use the VGGT to enable marginalised groups to defend their tenure rights. Of urgent importance is the need to address the conditions of residents in communal areas whose informal and customary rights are inadequately protected in law and in practice; among farm dwellers who face unfair and illegal eviction; among urban and peri-urban dwellers who hold informal rights; and fishing communities that are struggling to secure fishing rights and fair governance of fishing allocations. Organisations working in these sectors can draw on the VGGT to add weight to local struggles and to advocate for improvements in laws, policies and governance institutions.
  4. Conduct legal and policy assessment: Assess current and proposed laws and policies against the VGGT, with an emphasis on the recognition and governance of customary and other informal rights. There was a call to conduct a legal assessment of the existing legal and policy frameworks governing tenure of land, fisheries and forests in South Africa. One possibility is to embed such a process within the Parliamentary High Level Panel, which is conducting a national review of the impact of legislation intended to transform and provide more equitable access to land, among other themes. But even more urgently than assessing the existing framework, there is a need for capacity to scrutinize and assess a range of pending bills that will change how tenure is governed. In the area of land tenure alone, there are five drafts laws that are expected to be tabled at Bills in Parliament this year:
  • Regulation of Landholdings Bill
  • Preservation and Development of Agricultural Land Framework Bill
  • Extension of Security of Tenure Amendment Bill
  • Communal Property Associations Bill
  • Communal Land Tenure Bill
  1. Transparency initiative: There was a call for a transparency initiative driven by government but with broader oversight, for the disclosure of state contracts and leases; details of restitution claims on state and private land (including forestry land); land redistribution projects; the allocation of fishing rights; and commercial strategic partners contracted by the state. This was explicitly identified as a priority step in order to root out corruption. As one participant representing commercial farmers pointed out, ‘corruption is the enemy of tenure security’. Civil society participants proposed that, following the example of Liberia, the South African parliament should ratify each large-scale lease or contract between the state and private investors. Using online platforms like Open Land Contracts, government should publish these so that the terms of such deals are subject to public scrutiny.
A way forward

FAO which is supported by the UK in this awareness raising work has taken the initiative to partner with the South African government to raise awareness about the VGGT in South Africa. FAO indicated its willingness to provide further support as South African actors and institutions take forward the VGGT. The possibility of a third workshop was discussed, which could establish and formalise a national multi-stakeholder platform to direct the process and coordinate the implementation of the agreed priority actions.

There is far to go to realise the improved governance of tenure in South Africa. These discussions flagged both the challenges and some concrete actions that can be taken if sufficient leadership and trust can be galvanized towards promoting the VGGT in South Africa.

Tired of Waiting

by Rebekka Stredwick

“The people are tired, so tired of waiting….”

David Mncwabe and Sthembiso Mahlaba wait anxiously for news from the Land Claims Court in Randburg, South Africa. They are waiting to hear whether Judge Mokotedi Mpshe will today appoint a Special Master to oversee the processing of 19,000 outstanding land claims, representing approximately 100 000 South African farm dwellers.

David and Sthembiso are community representatives for some of the labour tenants involved in the Class Action case being brought by the Association for Rural Advancement (AFRA), and supported by the Legal Resource Centre. The two representatives carry a significant burden on their shoulders – the responsibility of communicating the outcome to the people they represent.

David Mncwabe, community representative at Hilton College Farm, KZN
David Mncwabe, community representative at Hilton College Farm. Photograph: Rebekka Stredwick

Both have invested much of their time and emotional energy supporting the labour tenants, listening to their hardships and concerns, negotiating with landowners, and liaising with community leaders and government officials. As they prepare to relay the news back to the communities, will they hear frustration in the voices of their people once again and see disappointment in their eyes? Or will they be able to give a message of hope to the men, women and children who so desperately want to get on with their lives, free from the oppression of waiting?

“We all want to hear whether a Special Master will be appointed to ensure the claims are at last processed,” said David Mncwabe, representative for the four labour tenants who are part of the ‘Hilton College case’. The four claimants live on a farm owned by the Hiltonion Society which belongs to Hilton College private school in the KZN Midlands. It is the farm on which the claimants and their families have lived for generations.

“We have been waiting for years for the claims to be processed – since 1998. I have been speaking to the people – they are desperate to know the outcome so I am keeping them updated”.

David Mncwabe – who was himself born on the farm – breathes a long sigh as he tells of the anguish of his community of 35 families from which four claims were made after the Land Reform (Labour Tenants) Act was signed in to law by President Nelson Mandela in 1996.

“They are so tired; tired of waiting. This is especially hard for the elderly who waited for so long for freedom from Apartheid. Now they have to face more suffering and continued inequality; and they do so under the constant fear of being evicted from the homes and land they have lived on all their lives, and which they inherited from their grandparents.”

David turned down an offer of employment far outside the community so that he could continue the role of representing his community of approximately 150 people – “What else could I do – they depend on me”, he says. Yet he describes how emotionally difficult it is each day to see his people’s livelihoods being squeezed as restriction after restriction is imposed by the land owners. It is also hard to keep reassuring them that the Class Action will one day be successful and the claims sorted out.

“I see people frustrated, depressed and losing trust. They lose trust in me, in the Government and in people – white and black. They are losing hope in the future of this country. They can’t get work here on the farm and some are going hungry. They are not allowed to plant the crops they used to; or to have more than a set number of goats and cattle. I see them mentally exhausted and broken from the indignity of having to ask for permission for every little thing – whether it’s a new goat or a crop they want to plant.”

Amon Mthethwa and residents of Hilton College farm sit waiting without work
Amon Mthethwa and residents of Hilton College farm sit waiting without work. Photograph: Rebekka Stredwick

As David speaks, it is easy to feel that little has changed for these people since the days of the Pass Laws and the Dompass. He speaks too of the children in the community whose school on the farm was closed down a while ago.

“I have tried to investigate why the closing of the school took place,” says David. “The Government official said I should ask Hilton College; the College says I should ask the Government. In the meantime, Hilton College students have access to the very best education and facilities the country can offer; yet we have to send our kids far outside or keep them at home because they cannot afford the transport. I ask the Government, how long can we go on living like this?”

Meanwhile, Sthembiso Mahlaba is at the Land Claims Court this morning ready to hear the judgement. Sthembiso represents labour tenants on four farms in KZN, including seven families at Riversbend Farm, near Estcourt.

Sthembiso Mahlaba, community represenative for labour tenants at Riversbend Farm, KZN (1)
Sthembiso Mahlaba, community representative for Riversbend Farm. Photograph: Tom Draper

The claim at Riversbend was made in 1998, and in 2013 the Government purchased much of the farm with the promise of giving title to the labour tenants. Now the Government is in the process of purchasing the dairy but the labour tenants – who have formed a Co-operative to enable them to run the business – are still waiting for the transfer of the title. There is also the added difficulty that communities and some traditional leaders who live outside the farm say they are entitled to the land under the Restitution Act. Sthembiso describes how the families are coping with the uncertainty,

“The tenants are happy that things have moved on and the Government is purchasing the dairy. But the question about title ownership is a challenge and is causing conflict between communities. The Government needs to clarify the situation as a matter of urgency.

There is also the question of living conditions. The homes of the families are in poor condition, with no running water or electricity and the nearest school is 15km away. This is hitting the women and children very hard as they have to fetch their water from the river and wash their clothes in it; without the transfer of title, little can be done about the services or about building a school on the farm.”

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Residents at Riversbend Farm. Photograph: Max Bastard

“We all await the outcome today with bated breath”, said Laurel Oettle, Director of AFRA. “But rest assuredwe will not stop fighting until these claims are processed and justice has prevailed for those who have waited for so long.”

Tactical Delays: The Long Wait Continues for Labour Tenants

by Laurel Oettle

After a day and a half of travel, engagement and waiting, 60 Labour Tenants left the Land Claims Court today frustrated and angry.

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Waiting outside the Land Claims Court. Photograph: Rebekka Stredwick

The day had a bright and promising start, during which the Association for Rural Advancement (AFRA)’s Land Rights Advocate Siyabonga (Siya) Sithole discussed the history and the hoped-for outcome of the case with reporters from eNCA and ANN7 (May 2016: the excellent ANN7 footage has now been removed from YouTube, with a note saying that the account had multiple copyright infringements). Thereafter, however, the day contained a series of discouraging roadblocks and confusing anomalies.

After waiting for forty minutes for Judge Mokotedi Mpshe to arrive and court proceedings to begin, it finally emerged that his car had broken down and the proceedings were postponed until 2pm. It was unfortunately already well after 11am before this information was confirmed by the Court, which led to a difficult decision to be put before the Labour Tenants who had travelled from across KwaZulu Natal, Mpumalanga and Limpopo to be in court today: should they abandon their hope of being in Court to hear judgment finally being made around the appointment of a Special Master, and return to their families before the beginning of the Easter long weekend as promised? Or should they sacrifice another sleepless night to stay for the hearing, in order to not only hear the outcome for themselves but be able to report back to their communities, and undertake the long journey home through the night?

As Siya Sithole expressed later in the day, “True soldiers of the struggle come second to the struggle.” After some discussion and debate amongst the tired and disheartened Labour Tenants, they made a unanimous decision to all stay for the hearing, which got underway just after 2pm.

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“We Tired of Waiting!!!” Yet Labour Tenants continued to wait for the delayed Court proceedings to begin. Photograph: Rebekka Stredwick

In an odd twist in the case, a new Advocate has been appointed to represent not the Department of Rural Development and Land Reform (the Department), but the Minister of the Department alone. It is unclear why Minister Gugile Nkwinti feels he requires his own representation, separate to the Director General (DG) of the Department, and this move is one of many indications of potential tensions within the Department. Furthermore, the Minister signed a brief and clearly rushed Affidavit asking that the hearing be postponed for a further six months. The reasons given for this request seem to only strengthen the need for a Special Master by highlighting the lack of effective communication within the Department: important information relating to the case had apparently been left out of the previous lengthy, detailed Affidavit submitted by the Department, a fact that the Minister only became aware of on the 11th March. After this date, he was investigating why this unspecified information had been omitted, but neither his Affidavit nor his Advocate  provided an answer to the Court as to either the reason for the omission, or what this supposed “information” actually pertains to.

Judge Mpshe acknowledged that the matter should be settled in the public interest, and that “This is an important case which the public is looking at with keen eyes as to what is going to happen,” as his words were captured and streamed live by the many television cameras in the room from a variety of National news agencies. He further acknowledged that the case is dealing with people who could well be evicted from their homes if this matter is not settled quickly, and who have nowhere else to go. “It is the duty of the state and the law to protect such people, thus it places this matter squarely within the realm of public interest.”

After hearing both sides of the argument for and against the postponement of the case, and despite the fact that Judge Mpshe himself clearly identified that the Minister had failed to submit substantial information to enable the Judge to make an informed decision, he finally delivered a judgement that allowed the application for postponement.

His order on the matter included the following highlights:

  • The matter will return to Court on the 12 May 2016.
  • The Minister shall file any additional information on Affidavit on or before 14th April 2016. He was very specific in stating that he expects full and detailed information pertaining to the case to be provided by this date.
  • Wasted costs from today between the Attorney and own client will be paid by the Minister in his professional capacity.

ANN7’s evening broadcast summed up the day’s proceedings, and gave a feeling for what the day was like for the labour tenants who were there (note: this video also removed from Youtube). The day was also summarised by Karyn Maughn on eNCA:

The full court proceedings, which were streamed live by eNCA, can been seen below. Please note that the sound does not begin until a 10 minutes 44 seconds into the recording.

“We are not happy at this result,” said Sthembiso Mahlaba, who is the Community leader and representative for labour tenants in the Gongolo region of KwaZulu Natal involved in the Class Action case. “Firstly, we have travelled all day yesterday and waited all day today to hear whether or not a Special Master will be appointed to oversee the processing of the many cases in our region; secondly, we find out on the day of the hearing that we have to wait again because the Government Department has new information that it can’t yet give out. How many more delays will there be? Our people need answers; they are getting angrier. They face evictions, hunger and poor living conditions – they can’t get services like water and electricity when their claims haven’t been processed. We came here today to hear the judge for ourselves; we are leaving disappointed”.

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Special Master Judgement Tomorrow

by Yves Vanderhaeghen

A ruling by the Land Claims Court on Thursday is likely to ensure that labour tenants are no longer forgotten in the dispensing of rights.

For 15 years, 19 000 labour tenant claims have been gathering dust in filing cabinets at the Department of Rural Development and Land Reform. That’s the optimistic scenario, because it’s likely that at least some of the claims have not only been forgotten, but lost. Labour tenants have not always been so low a priority. In 1964, in his “I am prepared to die” speech from the dock, Nelson Mandela included them among the groups most oppressed by Apartheid, and appealed for justice for the “labourers, labour tenants, and squatters on white farms [who] work and live under conditions similar to those of the serfs of the Middle Ages”. Decades later, after jail, after democracy, he had not forgotten these people: “We remember the farm workers and labour tenants uprooted from the land,” he said at a meeting in Howick in 1996.

In the honeymoon years of Mandela’s presidency, the future looked promising for labour tenants. The Constitution, given force by the 1996 Labour Tenants Act, sought to give security of tenure to these families scattered across the country on land owned by others, and whose fortunes were therefore precarious.

The case before Judge Mokotedi Mpshe of the Land Claims Court is a class action case technically called the Mwelase case, after Bhekindlela Mwelase, the first applicant. It is more commonly referred to as the Hilton College case, after the private school in the KZN midlands on which Mwelase, who is 86, was born and where parents and grandparents before him lived. In 2001 he lodged a labour tenant claim, which was opposed. By 2012 there had been no progress in either his claim, or in about 19 000 others. In 2013, Mwelase, supported by the Legal Resources Centre (LRC) and the Association for Rural Advancement (AFRA), went to court to force the Department to explain why it had not implemented the Act by referring the claims to the Land Claims Court for a ruling on whether the claimants were indeed Labour Tenants and if so, for the Department to grant them their land or negotiate an alternative.

Bhekindlela Mwelase. Photo credit - Max Bastard
Bhekindlela Mwelase. Photograph by Max Bastard

The case since then has been characterised by delays and broken undertakings, forcing the applicants first to obtain a structural interdict to force the Department to show what it is doing to honour its obligations, and now to ask the court to appoint a Special Master to supervise the Department in its functions.

The LRC notes in its heads of argument that “the many years of disregard have created serious problems. Applicants have moved away or died. The land has changed hands. Files have been lost. 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. It needs to verify information that has changed over 15 years. It then needs to send and gazette thousands of notices, conduct settlement negotiations, arrange transfers of rights and prepare applications for referral to this Court. That is a massive administrative burden.”

It is a burden the Department has not shouldered, partly due to lack of staff, budgets and skills, but also, some argue, because it doesn’t have the interest and knows that the longer it delays, the greater the chances that the claimants will just give up or die.

It is to ensure that this doesn’t happen that the applicants have asked for the appointment of a Special Master, in acknowledgment that it is beyond the scope of a court to keep tabs on the process.

A Special Master is a novel position in South African law, envisaged as an independent person appointed to be an “an agent of the court” who will monitor compliance, propose solutions, resolve disputes and report back to the court.

In essence, the Special Master will take proceedings out of the adversarial domain of ongoing court applications, and provide flexibility and mutual support to the Department, the applicants and the court.

The Special Master should, the applicants argue, be able to set out an implementation plan, monitor the Department’s compliance, update the plan if necessary, and recommend changes to the order if circumstances change. Even though the title of Special Master may be novel, it is argued that his or her functions embrace those of other recognised court-appointed functionaries, such as referees or commissions, claims administrators, amicus curiae and family advocates.

Judge Mpshe hinted, during the last court session on January 29, that he was not averse to the idea, but it seems likely that he will favour the appointment of a “monitor” rather than a Special Master, which implies a bossy function that could be seen to encroach on the Department’s authority and blur the separation of functions. He also cautioned that a Special Master will not be a silver bullet, and that claims will be concluded “not this year, not in 2017, not in 2018” but maybe by 2020 there will be progress.

Director of AFRA, Laurel Oettlé, said, “We return to Court on Thursday with determination and hope. The powerful symbolism of this week is hard to ignore – it is the week within which we celebrate not only both Human Right’s Day and the central event of the Christian faith – the celebration and commemoration of the resurrection of Jesus Christ – but the twentieth anniversary of Mandela signing the Labour Tenant’s Act into law. It is a week when one of the most marginalised and vulnerable communities in South Africa seeks the wisdom of South Africa’s legal system to uphold their most basic rights, enshrined in our Constitution and Bill of Rights, for which so many fought and died. We stand strong and united in our continued fight for justice to ensure the realization of these rights, after twenty years of unacceptable delays. We firmly believe that the appointment of a Special Master is the most effective means by which to achieve this.”

Bhekindlela Mwelase 2. Photo credit: Max Bastard
Mwelase, a man in waiting. Photograph by Max Bastard

A Land in Limbo: Hope Deferred

“We remember the farm workers and labour tenants uprooted from the land,” Nelson Mandela, Howick, 1996

By Rebekka Stredwick

To mark both South African Human Rights Day and the 20th anniversary of the signing into law of the Land Reform (Labour Tenants) Act by President Nelson Mandela, we have commissioned a series of photographs to tell the stories of some of the labour tenants waiting for their claims to be processed for the land on which they, their parents and their grandparents have lived and worked.

Human Rights Day in South Africa reminds us of the events that took place in Sharpeville on the 21 March 1960, when 69 people died and 180 were wounded as police fired on a peaceful crowd which had gathered in protest against the Pass laws. It marks the shared rising of ordinary people in a collective proclamation of their rights.

Bhekindlela Mwelase, 86 Yrs with Pass Book
Confined – Bhekindlela Mwelase, 86 Years Old, Labour Tenant Claim lodged in 1998, with his Pass Book. “Generations of my family have lived here. We used to farm this place – we were the only occupiers. Now I have to ask permission to crop – we are restricted to a small number of goats and cattle.” Photo: Max Bastard

Today we reflect on this reminder of the cost paid for our treasured human rights – rights enshrined in law in our Bill of Rights, which opens by promising to protect “the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”. Today more than ever, however, we need to critically question whether these ideals are a reality in the lives of some of South Africa’s most vulnerable citizens – labour tenants.

Suspended in limbo, the lives of labour tenants on the margins of society reveal a myriad of emotions and states – confinement, neglect, doubt, resignation, fustration, and hope-deferred are just a few of the ‘sighs of sorrows’ that stir us into action.

Mndeni Skhakhane, 94 years old. Photo by Max Bastard
Neglected – Mndeni Skhakhane, 94 years old, labour tenant claim lodged in 1998. “I have nothing to pass on to my children. I have worked my whole life for nothing – I now have nothing to show for it. They have ignored us.” Photo: Max Bastard

This Thursday, the 24th March, the broken pomises of the Department of Rural Development and Land Reform (the Department) will be tested in the Land Claims Court as we seek the appointment of a Special Master to oversee the processing of 19,000 outstanding land claims, representing approximately 100 000 South African farm dwellers.

As we pause and reflect on the detail in each photograph, we are reminded that this Class Action is not just about unravelling beaurocratic mess and broken promises, it is also about honouring the lives and futures of ordinary South Africans.

Image 2 - Labour tenant Mndeni Skhakhane with his two granddaughters, Hilton College Labour Tenant Class Action, Hilton College Farm, KwaZulu Natal. Credit Max Bastard B&W
Determined – The 16-year-old granddaughter of Mndeni Skhakhane: “I say to the government, you should do everything in your power so we can have what is rightfully ours; our school was closed down but we want to stay, we want to develop our community.” Photo: Max Bastard

It is a testimony to the indomitability of the human spirit that many of the claimants are in the twighlight of their lives but are still doggedly holding on to the hope that the Government extended to them twenty years ago. Let us not, however, rest and depend only on the human spirit to sustain hope – hope can also be fragile and, over many years of waiting, be tipped into despair.

Our Government says: “We have a responsibility to ensure that our human rights record and history are preserved and strengthened for future generations” (South African Government, 21 March 2016). We call on the Government to honor this commitment and responsibility – we owe it to our forefathers as well as to our current citizens, old and young.

Hope deferred
Hope deferred – Labour tenant claim lodged in 1998. “We were born on the farm; the farmer has been teaching us the dairy business. The Government bought the farm in 2013 but we are still waiting for them to give us our title deed.” Photo: Max Bastard

This year’s commemoration also coincides with the 20th Anniversary of the signing of the final draft of our precious Constitution into law, which took place on the 10th December 1996. We remind the Government that security of tenure is a right under our Constitution and is owed to those who have been deprived of their rights in terms of past racially discriminatory laws. It is time that labour tenants in South Africa see an end to their long struggle.

Defiant - The Last Man. Photo by Max Bastard
Defiant – “I called my house the Last Man. Even though they (the owner) won’t give us work, I will stay, even if I am the last man.” Photo: Max Bastard
“Freedom …..must be understood as the transformation of the lives pf ordinary people in the hostels and the ghettos; in the squatter camps; on the farms and in the mine compounds. …. it demands of us to be in constant touch with the people, to understand their needs, hopes and fears; and to work together with them to improve their conditions.” – Nelson Mandela, Speech at an event to meet leaders in the Free State, 17 September 1994