State takes land case to highest court

The Land Claims Commission wants the highest court in the country to ­adjudicate on a landmark case it lost in the Supreme Court of Appeal in September.

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The Land Claims Commission wants the highest court in the country to ­adjudicate on a landmark case it lost in the Supreme Court of Appeal in September.

In the case between the Popela ­community and Goedgelegen Tropical Fruits in Limpopo, the court ruled the claimants hadn’t demonstrated a causal link between implementation of racist laws or practices and their dispossession. The farmer, August Altenroxel, had ended labour tenancies to improve productivity.

The commission applied to the ­Constitutional Court to appeal against the decision, said Limpopo land claims ­commissioner Mashile Mokono.
The commission regarded the case as important for the success of land reform because many land claims were lodged on similar grounds, especially in Limpopo and Mpumalanga. Specifically, the commission argued that the farmer’s decision to end his labour tenancies was tainted by ­prevailing apartheid dogma, and was therefore ­conducive to carrying out the apartheid policy of removing blacks to homelands.

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The court’s rejection of this rationale has already led two landowners in Limpopo to apply to have claims on their farms de­gazetted, said Mokono. “We are collecting detailed facts from the claimants and if there is no causal link we will have to withdraw the claims,” he said.

He said “a number of cases” were likely to be affected but declined to speculate how many. “It would be a major blow to land reform if this case was not successful,” he said.

He said the appeal court’s judgment reflected a narrow interpretation of the Restitution Act at variance with another landmark judgment delivered in favour of the Richtersveld community by the same court in 2003 and upheld by the Constitutional Court. “In the Richtersveld case the court says we must look at the social milieu but in this case they say there must be a causal link,” he explained.

The Richtersveld judgment does indeed appear to contradict Popela by allowing for a wider definition of racially ­discriminatory practices that qualify for restitution. Specifically, it rejects an earlier court ruling that only victims of practices designed to achieve spatial segregation of races were eligible for restitution.

In the Richtersveld case the court ruled ­racial discrimination lay in failing to ­recognise and protect customary ­ownership rights while according protection to ­registered title-holders. They were therefore indirect victims of racial discrimination and did not need to supply proof of motive by the state or its officials to discriminate.

However, it remains far from certain that the Constitutional Court would interpret this judgment as refuting Popela. The highest court could concur with the appeal court that farmers who removed tenants for economic reasons should not be subject to land claims, even if their actions dovetailed with and contributed to broader apartheid goals of racial segregation. – Stephan Hofstätter