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Karkloof land claim dismissed

The Witness

19 Mar 2020

SHARIKA REGCHAND • sharika.regchand@witness.co.za

THE legal team of a community in the Midlands fighting for land restitution has been dealt a blow by the Land Claims Court in Randburg.

In dismissing the claim, Acting Judge President Yasmin Meer disallowed their legal fees in full. She ordered this week that the “attorney Sinama and advocates Chithi and Cele” repay the relevant entity that funded them on behalf of the state, whatever fees they may have already paid to them.

“I do not believe that such a step might deter legal practitioners from appearing for claimants, as suggested by Mr Chiti. On the contrary, it will deter them from litigating vexatiously,” Judge Meer said. She labelled their conduct in pursuing a hopeless claim as being “vexatious”, “frivolous” and an abuse of court process.

The judge dismissed the claim and found that the Luhlwini Mchunu Community is not a community as defined in the Restitution of Land Rights Act. The application was against 19 landowners in the Midlands, mainly dairy farmers in the Karkloof area. The judge said a common thread running through the evidence of all the lay witnesses was that their forebears had worked on farms owned by white farmers and that they were forced to leave when the numbers of cattle they could keep were reduced.

They were given the option to either remain and work on the farms with fewer cattle, or to leave. They chose to leave.

The community’s expert witness, historian Dr V Khumalo, confirmed that the claimed land was owned by white land owners from the early 1850s and that possession, access and the use of the land was determined and granted by the respective land owners.

The relationship between the families on the farms and the landowners was based on tenancy.

He conceded that the rights of landowners to use their property as they chose and to decide who may have access to it, and on what terms, conflicted with the claims of the workers, tenants and their families.

The judge said it is clear from all the evidence that the community or their ancestors were a group of people whose rights in land were derived from shared rules determining access to land held in common by them.

“The mere presence of their forebears on the land as labour tenants did not make them into a community,” she said.