Hilton College land decision too late for claimant
Court is about to decide whether the elite school needs to give land back, but this man's dream will never be realised
Bhekindlela Mwelase died landless late last year without realising his dream of owning a piece of land.
Before his death in November, the 87-year-old pensioner, who was paid R5 a month to work in a sugar-cane plantation at the age of 15, had expressed concern about what would happen to his grandchildren if he died before his land claim was finalised.
Had he still been alive, on Thursday last week Mwelase would have travelled 566km with fellow labour tenants from KwaZulu-Natal to the Constitutional Court in Johannesburg where they are waging a David and Goliath battle against SA’s most expensive and prestigious school.
Instead, his brother, Thanda Mwelase, 71, took his place. He told Time Select on Friday: “It’s very sad that my brother died. He was hoping that he’ll get land.”
Mwelase was the first applicant in a labour tenant land claim court case against the department of rural development and land reform and Hilton College, which has dragged on for nearly 20 years.
At the heart of the Constitutional Court battle is a claim lodged by 35 labour tenant families on an undisclosed portion of Hilton College’s 1762ha property which includes farmland, timber plantations and a game reserves, but excludes the school buildings and sports fields.
The private school, at which fees are about R300,000 a year, is disputing the claim. However, the labour tenants are standing their ground and have refused compensation for the land, which they want back to farm.
The Association for Rural Advancement (Afra) and the Legal Resources Centre (LRC) took the fight to the highest court to argue for the reinstatement of the 2016 Land Claims Court order for the appointment of a special master to oversee claims by families who laboured on farms in exchange for the right to live there.
The court’s order had brought hope to the millions of labour tenants across the country and was regarded as an affirmation of the Labour Tenants Act of 1996 that sought to address the injustices of the past by giving labour tenants security of tenure or ownership of the portion of land that they used to live on, grow crops and keep livestock.
But the order was set aside by the Supreme Court of Appeal (SCA) in 2018 after being challenged by the department which argued there was no need for a special master as it was capable of dealing with labour tenant claims.
Afra, a Pietermaritzburg-based land rights advocacy NGO, and the Land Claims Court brought the case as a class action in 2013 on behalf of about 11,000 labour tenant claims, which have not been processed since 2001.
In March last year, President Cyril Ramaphosa asked the then rural development and land reform minister Nkoana Maite-Mashabane to urgently intervene and finalise the thousands of outstanding claims.
“I hereby request a full report from your department on the steps taken to implement the [Labour Tenants] Act, including a clear road map, to ensure the issues that this litigation brought to light are comprehensively and urgently addressed. In fulfilling our commitments as set out in the State of the Nation address, it would be appropriate to urgently attend to these matters, and take whatever ordinary steps are necessary to process and finalise outstanding claims,” wrote Ramaphosa.
But in an opposing affidavit, the department’s acting director general, Rendani Sadiki, said the appointment of a special master was not necessary. He said the department had reprioritised almost R1bn for the land tenure programme, R569m of which would be used to acquire land for farm dwellers and labour tenants.
He said the national treasury had also allocated almost R1bn for capital and planning budgets for the next three years to deal with the claims.
Sadiki said no funds were available for a special master and that the department had a revised project plan for processing outstanding labour tenant claims applications.
Sadiki said cumulatively 10,366 applications had been settled and 9959 were outstanding.
A master ‘is needed’
But Afra director Laurel Oettle disputed most of Sadiki’s submission to the Constitutional Court with regard to the need for a special master. In her affidavit, Oettle said a special master was precisely required to verify claims made by the department “which the applicants and the court lack the position and capacity to test.”
“The applicants do not suggest that a special master should be appointed because the department has missed one or two targets. A special master is needed because it is unable to set realistic targets, and does not amend its targets based on experience.”
Oettle said it was also impossible to gauge the department’s progress.
Judgment has been reserved in the matter.
Meanwhile, Hilton College headmaster George Harris said the Hiltonian Society shared the claimants’ frustration as a result of the delayed resolution of the matter.
“Indeed, we too are as frustrated by the length of time this process has taken as the claimants are. Our position remains, however, following a full factual investigation and legal advice, that residents on the estate do not qualify as labour tenants,” he said.