It’s our land, labour tenants tell Hilton College
Claimants want to convince the highest court in the land to appoint a special master to oversee their claim
After unsuccessfully trying for more than 22 years to lay claim to a portion of SA’s most expensive and prestigious school, labour tenants from KwaZulu-Natal have now taken their fight to the Constitutional Court.
On Thursday, the Legal Resources Centre (LRC) will present arguments to the country’s apex court for the reinstatement of a Land Claims Court (LCC) order to appoint a special master to oversee claims by families who laboured on farms in lieu of payments and permission to live on a portion of the farm.
At the heart of the arguments at the Constitutional Court in Johannesburg will be a portion of Hilton College’s 1,762ha property, which includes farmland, timber plantations and a game reserve. This portion of land has been the subject of a land claim by labour tenants for more than 22 years.
But the private school, whose fees are about R300,000 a year, is disputing the claim that excludes the school buildings and sports fields.
In 2016, the LCC found the department of rural development and land reform to be in contempt of numerous court orders and in contravention of the provisions of the Labour Tenants Act of 1996, and found in favour of the labour tenants’ application to have a special master appointed to oversee the processing of labour tenant claims – about 11,000 of which remain incomplete since the closing date in 2001.
However, the department opposed the appointment of a special master, and in 2018 the Supreme Court of Appeal (SCA) set aside the LCC’s judgment in favour of the appointment of a special court master.
The case for the appointment of a special master was brought to court by the Association of Rural Advancement (Afra), a Pietermaritzburg-based land rights advocacy NGO, and LRC in 2013 as a class action on behalf of labour tenants whose claims have not been processed.
In a joint statement by Afra and LRC in March 2019, they said: “We believe that the LCC acted within its powers to appoint a special master to assist it. We believe that a special master is vital for speedy and effective realisation of labour tenant rights. We strongly believe that the SCA failed to afford to the LCC the deference owed to a specialist court exercising a true remedial discretion on an issue directly concerning its own processes. And the SCA failed to adequately grasp the scale and complexity of the problem, and the multiple ways in which attempted court supervision has failed.”
When the LRC approaches the Constitutional Court on Thursday, it will also be armed with the dissenting judgment from the SCA’s Judge Connie Mocumie and her colleagues, judges Ashton Schippers and Willis Seriti.
In her dissenting judgment, Mocumie said the effect of the SCA order, invalidating the appointment of a special master, was that the same department of rural development and land reform that “has failed labour tenants for over 22 years should still continue with the role of developing an implementation plan on the application of labour tenants”.
“Parliament enacted legislation for persons whose tenure of land was insecure as a result of the past discriminatory laws and practices.
“In the environment of such discriminatory laws, and in the wake of legislative instruments enacted to address the effects of such discriminatory laws, gross and continuous failure by bodies charged with the implementation of such corrective legislative measure effectively retains the status quo of the applicants in unjust historical positions,” she argued.
Mocumie went further: “... The LCC had tried ordinary court supervision which had failed, there was a need for ‘effective relief ... for the many thousands of vulnerable labour tenants ... [as] the department has thus far experienced grave difficulties in proving this ... The size and complexity of the task alone supports the appointment of a special master to inter alia assist this court to meaningfully monitor implementation ...”
Afra and the LRC said they hoped the Constitutional Court would correctly acknowledge the constitutional imperatives and urgency underlying the Labour Tenants Act and its promise to labour tenants to end the “cruelty and suffering of African people”.
But for now the labour tenants, who have made it clear they are not interested in being paid for the land, will have to wait some time before the Constitutional Court decides whether the SCA erred in setting aside the Land Claims Court order for the appointment of a special master to oversee their claim.