Press Release: Disappointing SCA outcome for labour tenants; special master rejected
Published by Legal Resources Centre 20 August 2018
For Immediate Release: 20 August 2018
On Friday, 17 August 2018, the Supreme Court of Appeal handed down a judgment which rejected the arguments by Mr Mwelase, three labour tenants and the Association for Rural Advancement (AFRA), represented by the Legal Resources Centre, to appoint a Special Master to oversee the implementation of the Labour Tenants Act, which would have assisted to expedite the labour tenants’ claims for land under the Act.
The SCA judgment also did not find that the Minister of Rural Development and Land Reform had acted in contempt of the Land Claims Court judgment which ordered the Minister to set up a forum to negotiate the outstanding labour tenant land claims. AFRA argued that the Minister had acted in bad faith and pursued a unilateral agenda when he invited the relevant parties to the forum, but excluded AFRA. The SCA judgment found that the Minister had not acted wilfully or mala fide.
It must also be noted that there is a cost order against our clients, which is alarming in view of the Biowatch principle established by our courts.
The case went on appeal to the SCA after the Land Claims Court (LCC) declared on the 8 December 2016 that a special master be appointed to assist to expedite the land claims that were made by labour tenants following the enactment of the Land Reform (Labour Tenants) Act 3 of 1996.
The case began in 2013 when Mr Bhekindlela Mwelase and three other labour tenant claimants, who live on the Hilton College Estate, approached AFRA for support to settle their claim to land ownership. The labour tenants and AFRA, represented by the LRC, approached the LCC seeking systemic relief from “the many years of disregard and neglect of labour tenants’ claims” with the hope that the case could lead to the settlement of the 10 914 claims which, by the Department’s own admission, “have not been settled”.
This case, therefore, has implications for all labour tenants.
While rejecting the appointment of a Special Master, the SCA has tasked the Department with developing an implementation plan, which is subject to approval by the Land Claims Court and which must include inter alia the names of senior managers in the Department responsible for the plan, the number of labour tenant applications lodged and those outstanding, the targets for processing claims, the budget required and the plan for coordinating adjudication and arbitration of claims.
While the LRC supports the development of the plan, the track record of the Department’s progress on the issue has not been satisfactory causing many labour tenants to have suffered evictions from farms or to continue to live on farms in poverty and uncertainty while their claims remain unprocessed.
Last week, 104-year-old Zabalaza Mshengu passed on following a long battle with illness. He submitted a claim in June 2000. Despite being declared a labour tenant in 2007, a settlement between the land owner and the DG for Department of Rural Development and Land Reform was only concluded in 2017, after AFRA’s intervention.
Unfortunately, at the date of Mr Mshengu’s death, the Department had failed to comply with the order.
If the SCA had accepted the Special Master, it would have been a historic moment for South Africa as this would have been the first time one may have been appointed in the country.
“The Legal Resources Centre is deeply disappointed that the SCA decided not to advance our arguments that a Special Master would be the best way to advance the land claims made by Labour Tenants and rather accepted the arguments by the Department of Rural Development and Land Reform, as well as its promises that land claims are being processed. It has taken many years for us to reach this point and we do not believe that justice has been reached. The LRC and our clients have taken the decision to appeal this judgment at the Constitutional Court.” – Thabiso Mbhense stated on behalf of the LRC.