June 8, 2018
A hard-fought legal battle over the ownership of 30 successful sugarcane farms on the KwaZulu-Natal south coast is over – and those who claimed that their forefathers had been “chased off the land by white men” have lost.
The judge ruled that the case was essentially a non-starter, because the claimants’ own expert, whose report they kept under wraps for more than two years, did not support them. The land – totaling 1 380 ha – includes the popular tourist attraction Crocworld, and most of it is owned by the Crookes Brothers, who were represented in the matter by attorney Kay Naidoo. In terms of the ruling Land Claims Court Acting Judge President Yasmin Meer, the substantial costs of the case will have to be picked up by the Minister of Rural Development and Land Reform and the Regional Land Claims Commission. The claimants, the Elambini Community, will also have to pay the costs of one of the many adjournments during the case. In her recent ruling, Judge Meer said the minister had not disputed the claims and had agreed to abide by the decision of the court. The commission, she said, had “accepted the claim as valid”. “According to the commission, the community resided on the land by virtue of historical right of occupation. “The claimants said, prior to the arrival of white people, their forefathers had exclusive occupation under the authority of a chief. “The white people came, surveyed and registered titles to the claimed land. Customary rights were reduced to those of labour tenants and farm labourers. If they refused to work, they were forced to relocate to black townships,” Judge Meer said. These dispossessions allegedly took place between 1914 and 1940.
‘The claimants’ evidence simply does not pass muster’
But the Crookes family, in defending the claim, said there was no historical evidence of any community settlements on the land, and denied that the claimants were ever a “community”. They said the land was already under sugarcane, well before 1913 – the legislated earliest cut-off date for claims. The judge, who sat with two assessors, visited the land with the claimants in order for them to pinpoint where their forefathers had lived. She found most of this evidence to be unreliable. Some claimants could not say where they had lived. Others pointed out areas outside of the claimed land. “The claimants’ evidence simply does not pass muster in proving the existence of a community as defined,” she said. “This is especially so when juxtaposed against the expert evidence, to the effect that settlement on the farms took the form of homesteads consisting of extended families who lived at some distance from one another. “By 1913, these families would have been farm labourers on the claimed land, which was intensely farmed under sugarcane. The probabilities simply would not have entertained a system of shared rules determining access to land held in common by a community, coexisting with intensive sugar farming on privately owned land,” she said. “It is disquieting that the claimants, who were legally represented and, significantly, at the State’s expense, throughout these proceedings, could have pursued and persisted with a community claim without adducing a shred of evidence to prove that they derived their possession and use of the land from common rules.”
Evidence lacking, judge rules
There was also no evidence pointing to a community existing at the time of the claim, Judge Meer said. “I note also that the evidence does not support a finding of dispossessions of anyone as a result of racial laws or practices.” Regarding the claimants’ “expert report”, she said they had “blatantly prevented it from surfacing for some two years”. “They were further remiss in relentlessly pursuing the claim in the manner they did, at considerable cost to the taxpayer, given that their own expert could not support their claim.” The community members had rejected a settlement offer, despite the best efforts of the landowners and the State defendants to broker a settlement. They rejected the last offer of 100 ha which the parties made known to the court, despite the court repeatedly warning them of the risk of walking away empty-handed if they did not prove their case. Guy Clarke, the CEO of Crookes Brothers, said the resolution of the claim would open up numerous development opportunities in the Umdoni area. “The planning of residential, commercial, retail, medical, light industrial and educational developments are at an advanced stage. The injection of significant investment will boost the stagnant economy of the mid-south coast, benefiting all the communities’ resident in this area.”