02 May 2023 – Beaufort West farmers and land reform beneficiaries take Minister to court for failure to provide them reasonable access to land

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For Immediate Release

02 May 2023

Beaufort West farmers and land reform beneficiaries take Minister to court for failure to provide them reasonable access to land

CAPE TOWN — The Legal Resources Centre has approached the Western Cape High Court on behalf of three farmers to secure their land rights. The three have been waiting over three years for the Department of Agriculture, Land Reform and Rural Development (DALRRD) to issue them with a 30-year lease agreement.

The applicants, Johannes Bezuidenhout, Herold Bezuidenhout, and Jan Bergh were first allocated farmland in the Beaufort West area in 2009 through the state’s redistribution programme. This was a dream come true for the three men – as the children of farm workers from the area, this opportunity not only gave them a chance to realise their passion for farming, but it also redressed discriminatory patterns of access to land which, under the apartheid regime, saw only white farmers owning land in the area.

The state’s redistribution programme was meant to ensure access to land on an equitable basis as required by section 25(5) of the Constitution, by making land available to individuals and groups that have historically been discriminated against on the grounds of race.

In 2009, DALRRD allocated five farms in the district, collectively known as Plateau Farm, to more than 80 beneficiaries. The applicants were amongst these beneficiaries. By 2017, the other beneficiaries had left the farms and the three applicants established Nuveld (Pty) Ltd, an entity though which they farmed Plateau Farm, subject to a concession by DALRRD. Their sheep farming operations became highly successful, with their wool obtaining the highest average price for the Beaufort West region at the national wool auction in Gqeberha in 2020 and 2023.

In December 2019, DALRRD placed a call for applicants for a 30-year lease over Plateau Farm in the Die Burger and The Courier newspapers. Through Nuveld, the applicants applied for the lease, underwent an interview process, and were recommended by the National Land Acquisition and Allocation Control Committee (NLAACC) as the preferred candidates for the lease.

Despite this recommendation, the Acting-Chief Director: Western Cape Provincial Shared Services, Mr Lubabalo Mbekeni, on 27 September 2020, took a decision to not award the lease to Nuveld. The reasons for the decision were based on false allegations made by some of the original beneficiaries against the three men. Despite the allegations already having been proven false, Mr Mbekeni still used these as the basis for refusing to award the lease agreement. The three applicants only became aware of the decision in the beginning of 2022, nearly 18 months after it was taken, as DALRRD had failed to inform them that their application was unsuccessful. Despite repeated efforts since 2022 by the applicants and the LRC to ensure that the lease be issued to the applicants, these efforts have been unsuccessful.

On 4 April 2023, they filed an application in the Western Cape High Court to review and set aside the decision by Mr Mbekeni to not award the lease to them. They are also asking the court to compel DALRRD to give them the lease to ensure that they can continue to farm on the land for at least the next 30 years.

While section 25(5) of the Constitution makes provision for the redistribution of land, there is currently no legislation that offers guidance on how land should be allocated for redistribution and, critically, to whom. Instead, successive land redistribution policies have been developed by DALRRD to guide the programme. However, these policies lack clear beneficiary selection criteria, application and allocation procedures, and do not provide the applicants with any recourse should their applications be unsuccessful, or they are unhappy with the reasons for the decisions. In addition, the policies are often not publicly available, making it difficult for potential beneficiaries to know how to apply, and what will be considered when they do apply for redistribution programmes. It also makes it very difficult to identify decisions that are unlawful.

To address this lack of a legal framework, the applicants are also asking the court for declaratory relief to address DALRRD’s failure to create a transparent and consistent legal and policy framework for land redistribution in South Africa. The declaratory relief is supported by the East Cape Agricultural Research Project (ECARP), a non-profit organisation situated in Makhanda in the Eastern Cape that supports communities and individuals that have benefited from land reform programmes. They are asking the court to order that any applicant that applies for the redistribution of land in terms of any legislation, policy, or programme of the government, has a right to administrative action that is lawful, reasonable, and procedurally fair.

This includes a lawful, reasonable, and procedurally fair application process and consideration of the application. It also requires DALRRD to provide applicants with a written procedure that will be used to access the application, including the criteria that will be applied. It also compels the DALRRD to take decisions on applications within a reasonable time after lodging the application and for the applicants to be provided with a written decision and reasons for the decision.

It is believed that this declaratory relief will assist individuals in the same position as the applicants with better understanding in navigating the DALRRD’s redistribution programmes and compel the DALRRD to amend its processes to create a more transparent system.