The Supreme Court of Appeal ruled last September that the claimants hadn’t demonstrated a causal link between implementing racist laws or practices and their dispossession. The farmer, August Altenroxel, had ended labour tenancies to improve productivity. But this month the Constitutional Court overturned the ruling, arguing its interpretation of the Restitution Act was too narrow.
The act allows people who lost land rights “as a result of past racially discriminatory laws or practices” to claim restitution. The term “as a result of” should be interpreted to mean nothing more than “as a consequence of” and not “solely as a consequence of”, judge Dikgang said in his ruling. “Without the effect of the apartheid laws, policies and practices on land rights of black people, the Altenroxels would never have had the power to do what they did,” he said, adding claimants would still have to demonstrate a connection between discriminatory laws and practices, and dispossession.
Annelize Crosby, legal adviser to Agri SA, said the ruling represented a “substantial broadening” of the definition of restitution. “To date the courts have interpreted the Restitution Act as requiring direct state involvement in dispossession. Now this has been overturned.” Any case referred to the Land Claims Court would have to take the ruling into account, she said.
The appeal court ruling rested on the fact that the Altenroxels had ended the labour tenancy agreements in 1969 – a year before a notice was gazetted prohibiting labour tenancy. The appeal court ruled this proved there was no causal link between dispossession and racist laws or practices.
But the judge argued efforts to “control, limit and eventually eliminate labour tenancy on SA farms” formed part of the apartheid design, and gained momentum in the 1950s and 1960s “with the support of the SA Agricultural Union”. He cites more vigorous enforcement after 1948 of the Native Trust and Land Act of 1936 to eliminate squatting and change labour tenancy to wage labour; the promulgation in 1951 of the Prevention of Illegal Squatting Act, that gave farmers power to evict labour tenants; and the Bantu Laws Amendment Act of 1964, which led to the 1970 proclamation outlawing labour tenant contracts.
He points out the Bantu Laws implemented the recommendations of the 1961 Nel Commission, an investigation into labour tenancy. The commission was prompted by calls from farmers for government to intervene and draft laws to end the labour tenancy system, the judge said.
Limpopo land claims commissioner Mashile Mokono, who brought the constitutional application, was elated. He said the ruling gave the commission and Land Claims Court judges clear guidelines for the first time on how to interpret the Restitution Act. “This represents a fundamental shift in land jurisprudence. It says don’t rely on a technical interpretation of the law but be guided by its intention, which is to remedy the state’s failure to protect the rights of its citizens purely because they are black.” – Stephan Hofstätter