Land rights — payouts take precedence over claims but NGO hopeful of just solution for apartheid labour tenants

By Daniel Steyn and Masego Mafata

12 Apr 2023

Activists say the appointment of a Special Master of the Land Claims Court should speed up the process.

When Sge Mjoka’s father submitted a land claim in 2001, he did not expect that 22 years later, his family would still be waiting for the title deed.

“This process has taken years and years for us,” Mjoka says. “It started with our father and he died before the process was finalised, without getting the land. We would like it to be resolved quickly. You end up wanting to give up because of how long it takes.”

Mjoka’s father was a labour tenant, meaning he was given access to a piece of land on the citrus and sugarcane farm in KwaZulu-Natal where he worked, in exchange for labour.

Labour tenant arrangements were common under apartheid. This system has been described by activists as unjust. After apartheid, in 1996, new legislation — the Labour Tenants Act — sought to rectify these injustices by giving title deeds to labour tenants.

The deadline for labour tenants to submit their claims was 2001. About 22,000 claims were submitted. Siya Sithole, programmes manager for the Association for Rural Advancement (Afra), says that there were more than half a million labour tenants in the country, but most did not submit claims. Afra is a civic organisation founded in 1979 that supports labour tenants who claim land rights.

The process of resolving these land claims has been beset by challenges. The Department of Agriculture, Land Reform and Rural Development has been criticised — by Afra and by the Constitutional Court — for being inefficient and slow.

In many cases, the original claimants died before the claims were finalised. In a 2022 presentation to Parliament, the department said that 10,992 cases had been finalised and 9,468 applications were still unresolved, mostly in KwaZulu-Natal.

If these statistics are correct, there has not been any improvement since 2016, when the Department presented similar statistics.

Sithole says there is not sufficient evidence that 10,992 cases have actually been resolved. Some claims were probably lost by the department, he says.

Sithole also says that the government and land owners tend to prefer financial compensation rather than issuing title deeds to the land claimants. Land claims turned out to be more complex than expected, and offering money in lieu of tenure security has become a simpler option.

This leaves land claimants like Mjoka between a rock and a hard place: either they must continue to wait for title deeds or accept financial compensation and leave the land — and their home.

Mjoka, who is 42 years old, and his 12 family members depend on the land they live on for their livelihoods. Mjoka was born on the farm and some of his relatives are buried there. Today Mjoka and two family members work on the farm, earning the minimum wage. Leaving the farm would completely disrupt their lives.

“We don’t have anywhere else to go. This is the only home I have known,” says Mjoka. “The money is not enough and it will not sustain us forever. The land will sustain us for much longer.”

Mjoka says they have plans to grow crops and breed cattle on their land.

“Why must we, as black people, give up our land for money while the white farmers get to keep the land and continue to make money from it?”

Signs of hope

In 2013, Afra led litigation in the Land Claims Court. Along with claimants living on land that belongs to Hilton College Estate, they argued that the government had not met its obligations under the Land Tenants Act, and asked the court to intervene. One of the applicants, Bekindlela Mwelase, was 82 when the litigation started, and died in 2018.

The matter came before the Land Claims Court in 2014, but the department was not able to provide recent data on unsettled claims. The court ordered the department to do so, but in April 2015, the department said it needed two years to capture the details of outstanding cases.

The applicants then asked the Land Claims Court to take more drastic action and appoint a Special Master of Labour Tenants to assist the department with the processing of land tenant claims. The Land Claims Court ruled in AFRA’s favour, but the department successfully appealed against the decision in the Supreme Court of Appeal.

Afra took the matter to the Constitutional Court in 2019, which set aside the Supreme Court of Appeal’s ruling and ordered the appointment of a Special Master of Labour Tenants. Professor Richard Levin has since been appointed to the post.

Siya Sithole, programmes manager for Afra, says they are hopeful that things will get better for land tenant claimants.

“In the last two financial years through this national programme, led by the national department supervised by the Special Master, we have seen faster processing of these claims,” Sithole says.

“We now have the data to monitor the situation,” says Sithole. Through quarterly meetings with the Special Master and the department, all parties are able to come to the table and ensure that the process is transparent.

But Mjoka is tired of waiting. “The process of claiming land is a tough war. You think it’s getting better and that there is a light at the end of the tunnel but then you face a setback and it feels like you’re going nowhere.” DM

First published by GroundUp.

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Signs of hope