Land Affairs Director General could face jail

Mshengu, whose first name Zabalaza means Struggle, had reason to hope in 1996 that his struggle to live out the remainder of his life on the land where he was born and had worked all his life had come to an end. A new law, the Land Reform (Labour Tenants) Act, had just been passed. The law derived directly from the Constitution’s Bill of Rights, which guarantees secure tenure to people deprived of it in terms of racially discriminatory laws. The act addressed the plight of labour tenants who, like Mshengu, had clung to land and the remnants of independent farming by working for land owners without receiving wages despite attempts by successive apartheid laws to destroy this way of life. It provided for labour tenants to claim ownership of the land they and their fathers had lived on and used. By the closing date for the lodging of claims in March 2001, about 19,000 labour tenants, including Mshengu, had applied for land ownership.

But, 14 years later, on 31 March 2015, the Department had not only failed to process many of these claims, it had, true to form, ignored yet another order of the Land Claims Court. The story began in 2011 when four labour tenant claimants who live on the KwaZulu-Natal private boys’ school, Hilton College Estate approached the Association for Rural Advancement (AFRA), a land rights NGO in Pietermaritzburg, for help to compel the Department to process their claim. It constitutes a case of the most blatant disregard for the courts and the law. A report on the case by AFRA’s director, Mike Cowling, a former professor of law, states: “The bottom line is that the Department has comprehensively and systematically failed to carry out its basic mandate in respect of labour tenant applications.”

When the Hilton College claimants approached AFRA, AFRA realized that their situation was no different from that of thousands of other labour tenant claimants across the country, and decided to bring a class action against the Department on behalf of all labour tenants in the form of a structural interdict. To this end, it approached the Land Claims Court in 2013 to compel the Department to explain how it intended to process the claims. The Department failed to respond within the time set by the court rules, and applied for an extension, which it subsequently failed to comply with. AFRA and the Hilton College claimants, represented by the Legal Resources Centre (LRC), then advised the Department to explain this failure to adhere to the time frames. Again the Department failed to comply and the matter was set down for the unopposed roll in November 2013.

A week before the court date, the Department filed an affidavit explaining why it had been late and applied at the same time for condonation. AFRA and the claimants opposed the condonation and the Court ordered the Department to respond to the objection by a certain date, failing which the Director-General would have to explain why he should not be held in contempt of Court. Once again, the Department failed to comply, and instead wrote a letter to say it would file its response a month later. Again AFRA and the claimants objected, and asked that the Department comply with the Court order. Again it failed, and the matter was again set down for hearing. A week before the hearing, the Department filed its response for why the Court should condone its failure to adhere to time frames.

In an attempt to bring the focus back to the central concern of the Department’s failure to implement labour tenant land claims, AFRA and the claimants agreed to drop the legal issues relating to adherence to court rules. A court date was thus secured for September 2014 to hear the case relating to the labour tenant land claims. Prior to the hearing, a number of high-ranking Departmental officials contacted AFRA to settle the Hilton College claims out of court. At various meetings, the officials agreed to provide AFRA with a list of all claimants, the status of the claims and an action plan on how it intended to process all labour tenant claims. The information was never provided, and AFRA and the Hilton College applicants decided the only possible remedy would be once again to secure the help of the Court.

On 19 September, 2014, the application was heard in the Land Claims Court in Randburg, and the Department agreed that AFRA and the claimants’ request for information on how labour tenant claims would be processed should be made an order of the court. The Department agreed to provide the information by 31 March, 2015, exactly 14 years after the closing date for the lodging of land claims in terms of the Act.

But, once again, the Department failed to provide the information. Again, the LRC, on behalf of AFRA and the claimants, has issued a notice requesting the information or an explanation why the Director General should not again be held in contempt of court. In terms of the Court rules, the Department had until 10 April (Friday) to respond, or be at risk of contempt with the option that the Judge could order the Director General to face a jail sentence. But yet again on Friday the department failed to respond. Technically the Director General is now in contempt of court. For AFRA, and the 19,000 labour tenants whose land claims have not been dealt with, the wait continues. Mshengu, understating his exhausted patience, says simply: “Land affairs is taking far too long to settle my claim.”

But there are other costs, perhaps more important than the land claims of Mshengu and other labour tenants: if the Department, as an arm of Government, can consistently and systematically disregard the rules and orders of a court that has the same status as a High Court, how can ordinary South Africans be certain that their constitutional rights will be protected if government chooses to disregard them?

Hornby is a researcher with PLAAS. Views expressed in this article are not necessarily those of GroundUp.