State abandons land owners

2012-12-20 00:00

ONE of the policy issues up for debate by the ANC at Mangaung is the slow pace of land reform. There can be no meaningful solution to this problem unless the government is prepared to shoulder the blame for failing to deliver, and to take urgent remedial action. Events in Mangete illustrate the complete failure of the Department of Land Affairs (now Rural Development and Land Reform), and the SA Police Service, to act in the interest of land owners and claimants alike — and the ways in which they themselves break the law with impunity.

The Mangete area, near Mandeni, consists of small farms owned by the descendants of 19th-century settler John Dunn and his numerous Zulu wives. This ownership predates 1913. In the early 1990s, the traditional leader of the adjoining Macambini area orchestrated illegal land invasions, and a campaign of terror and violence, including the burning of sugar cane and buildings, was unleashed against the farmers. Some of the invaders had been removed by the apartheid government in the seventies, and given land in nearby Wangu. Others — probably the majority — had no historical association with Mangete. In 1996, the farmers obtained an interim interdict against the chief and the illegal occupants.

The interdict could not be finalised because the chief lodged a land claim on behalf of those who had been removed. He tried to show that it was a tribal claim, which it was not, since the claimants had not been members of his tribe. Before the matter could be finalised in the Land Claims Court in 2002, the then Regional Land Claims Commissioner unilaterally concluded a Section 42D settlement, in which land (including a few Mangete farms, and a large commercial farm, which had been purchased) was transferred to the Bhekamafa Trust. This settlement cost taxpayers over R14 million. The trustees who were appointed were led by the chief, who had never been a claimant, and his associates.

Despite the settlement, the illegal occupants remained on Mangete farms, and the campaign of terror and illegal building continued. The claimants themselves received no benefit from the trust and those who were not claimants were not moved elsewhere, as was supposed to have happened. In 2004, the 1996 Interdict was made a final High Court order. It ordered those residing on the farms without permission to move or face eviction, and expressly forbade any further entry or building on the farms without the owners’ permission.

An attempt to approach the Constitutional Court to force the department to take action was initiated, but, before it could be pursued to that level, the court itself made a judgment in another matter in which land invasions on a similar scale were also beyond the capability of the landowners to deal with. In the watershed (and unanimous) Modderklip judgment, the Court ruled that, given the magnitude of the invasion and the potential for disruption in executing a court order, it was the duty of the state — and not the owners – to provide relief for both the owners and the illegal occupiers. It also ruled that by failing to act, the state breached the owners’ constitutional rights. Such invasions had to be prevented for they had serious implications for stability and public peace. Despite the Mangete matter involving a settled claim, as well as widespread land invasions, appeals to the Department of Land Affairs to act in accordance with the settlement, and this judgment, were ignored.

The claimants were in an invidious position, especially as the land they had been given when removed in the seventies, Wangu, had since been incorporated into Macambini. It had apparently been earmarked for the planned multibillion-rand Dubai investment (now defunct) on which they, the rightful owners, were not consulted. They tried to challenge the Mangete settlement in the Land Claims Court, but were unsuccessful. Having received no benefits from the trust, they then approached the Master’s Office and, in 2010, were successful in having the trustees appointed in 2002 removed for failure to comply with the terms of the trust. They were subject to a campaign of threats and intimidation. Several months ago a new board of trustees nominated by the claimants was appointed. Following further threats when the matter of the disappearance of trust earnings was pursued, one of the new trustees was shot and seriously injured in August.

The claimants accuse the Department of Land Affairs of failing to assist them, and of acting in collusion with the chief. In 2011, a delegation from the department in Pretoria visited the farmers with a view to discussing plans for the area. They did not know that the claim had been settled. Nor could any departmental documentation be found. The landowners, who had not been a party to the settlement, had to make copies of their own documentation for them.

To make matters worse, illegal building operations continue, in contravention of the court order and the conduct of the local police has been absolutely disgraceful. On October 19, a woman arrived on lot 40 and started building. Members of the Saker family, who own and live on the farm, immediately tried to open a trespass case. They were not assisted. Despite a series of sustained interventions aimed at local and cluster police management since then, only a case of trespass has been opened. Contrary to instructions in a December 2003 circular from SAPS head office, Mandeni police have consistently refused to open a contempt of court case. The station commissioner even denied the existence of a court order — despite his having referred to it in correspondence in 2005 — and then claimed that it was “old” (it is valid for 30 years). Despite umpteen requests, the police have also failed to escort these trespassers off private land, which any landowner is entitled to expect of the forces of law and order.

It is only after an approach to a member of the provincial management that there has been any willingness on the part of the police to do what is required of them. In the meantime, the building continues, in clear breach of the order. The owners have had no option but to approach the sheriff, with all the attendant costs and unpleasantness. Again, there has been a delay because of the need to await the services of an acting sheriff in the area (however, the Board for Sheriffs has been helpful and efficient). It appears that land owned by the Bhekamafa Trust is also being invaded, creating further problems for the claimants, who are still trying to find out where their land — and the money due to them — are.

It appears that the Land Affairs Department is in contempt of court for ignoring a Constitutional Court judgment. The police are apparently defeating the ends of justice by failing to implement the law regarding trespass and contempt of court. This is the very recipe for anarchy which the Constitutional Court warned about if people could not look to the state to protect them from land invasions, and both the department and the SAPS are culpable. Unless fundamental steps are taken to stop government employees themselves breaking the law, the situation can only worsen.

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