State told to pay costs in vexatious land claims case

Witness 14/01/2019

A JUDGE has issued a punitive costs order against the state in one of SA’s oldest land claims, describing the case as a gross abuse of the land restitution process. Over the past 20 years, the case has reportedly cost the taxpayer some R20 million.

In a judgment handed down in December, Judge Eberhard Bertelsman castigated the Department of Rural Development and Land Reform, the land claims commission in KwaZulu-Natal and the communities of Qwabe and Waterfall for continuing with a claim on 18 000 ha, despite the fact that the claim was doomed to fail from the start. The claim covered 23 farms situated roughly between Waterfall, Stanger and Tongaat. Most of the land owners produce sugar cane, bananas and macadamia nuts.

Bertelsman said the claim had since 1996 stagnated developments by the landowners — Tongaat Hulett and the Maidstone Planters Pro-Active Landowners Association — and had caused land values to plummet. The opponents also incurred huge costs to hire legal teams and experts in an attempt to retain their productive farms.

Bertelsman said the land claimants could not prove that any of them ever had permanent residency in the area, nor that they were dispossessed of the land.

A few of the claimants did have rental agreements with the farmers. Many left the area voluntary and others left because they did not pay rent.

Philip Gumede, who testified on behalf of the claimants, earlier told the media the former colonial government had between 1913 to 1950 relocated 1 280 families from the area.

But Bertelsman said some of the claimants made up fictitious claims, as they could not show any concrete proof that they had lived on the farms.

Bertelsman said the court had advised the claimants at the start of the case that the title deeds for the land were available, even before the land claim was published in the Government Gazette.

Albert van Jaarsveld, a historian in KZN, said the land in question was registered to “Boere Trekkers” and British settlers in the second half of the 19th century.

His research, which was used as evidence in court, showed the first white settlers had already been in the area in 1837. The area south of the Tugela River was unoccupied after regular raids on the local tribes by Zulu kings Dingaan and Shaka.

Bertelsman said in his judgment the land claimants were well aware of these facts, but insisted for “some inexplicable reason” that their case be heard.

He said the court had warned them at the start of the case that this historic information and the availability of title deeds would present big stumbling blocks in their claim.

During inspections on the farms, the land claimants could also not point to any structures that indicated that they or their ancestors had lived on the land.

Bertelsman said vexatious litigation, caused by “carelessness, indifference and incompetence” gave the court enough reason to issue a punitive costs order. While a victory for local landowners, users on social media pointed out that taxpayers will now have to pay some R20 million to the farmers’ legal teams.

— Netwerk24.