Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Navsa AJ
• Judgment Date: 06 June 2007
• Docket Number: CCT69/06
• Hearing Date: 08 March 2007
• Counsel: B S Spilg SC (with G Shakoane) for the applicants G L Grobler SC for the respondent
• Court: Constitutional Court

Moseneke DCJ:

Introduction

[1] This case raises complex legal issues related to restitution of land rights to people who were labour tenants in a painful period of our history. The social injustice of the termination of their rights as labour tenants is not in question. What the case turns on is whether E the termination of labour tenancies by private farmers entitles labour tenants to redress under the Restitution of Land Rights Act [1] (the Restitution Act).

[2] The Popela Community (second applicant), alternatively the third to the eleventh applicants (individual applicants), claim F restitution of rights in land under the Restitution Act. The Popela Community is a community or group of people acting in concert in claiming restitution of land rights. To this end, they have organised themselves into a voluntary association known as the Communal Property Association (CPA). The third to the eleventh applicants are men and G women who claim restitution of land rights as individuals. They share much in common. They have the same ethnic lineage and all bear the Maake surname, barring one claimant. They originate from the same rural neighbourhood and they are all former labour tenants on the farm Boomplaats. As members of the CPA, they seek to enforce their claims with its assistance. H

[3] A party in its own class is the first applicant, the Department of Land Affairs (the Department). It bears certain statutory obligations to facilitate the achievement of the constitutional aims of land restitution and land reform. [2] It seeks to appeal to this Court in its own name but I

Moseneke DCJ

clearly acts in the interests of the applicants. [3] It asks for no material relief other than to have the A decision of the Supreme Court of Appeal substituted with the order sought by the applicants. It must be added that the Department seeks to have the costs order of the Supreme Court of Appeal reversed. The order requires it to pay the costs of the appeal jointly and severally with the other applicants. B

[4] The land in issue forms part of the erstwhile farm Boomplaats 408 LT in the Mooketsi area of the Limpopo province. The farm Boomplaats is now consolidated into the farm Goedgelegen 566 LT and its registered owner is Goedgelegen Tropical Fruits (Pty) Ltd (respondent). The respondent opposes the claims. C

[5] The Land Claims Court dismissed the claims of the community and of the individual claimants. An appeal to the Supreme Court of Appeal faltered. It was dismissed with costs. Aggrieved by the decision of the Supreme Court of Appeal, the applicants ask for leave of this Court to contest the decision. D

History of dispossession

[6] At the very outset, certain mainly uncontested background facts loom large and cast a wide shadow over this tale of dispossession of rights to land. The narrative has all the hallmarks of forcible dispossession of indigenous ownership of land, which in time, has E degenerated into dispossession of mere labour tenancy.

[7] On all accounts, the ancestors of the individual applicants originally settled on the farm Boomplaats in the 1800s. The individual applicants, most of whom bear the family name Maake, trace their uninterrupted family settlement on the Boomplaats land back to the F mid-19th century. According to the individual applicants, their forebears enjoyed undisturbed indigenous rights to the land and exercised all the rights that came with it. These rights included living on the land as families; bringing up their children on it; tending the elderly; paying spiritual tribute to their ancestors; and G burying the dead. They were entitled to cultivate the land and to use it for livestock.

[8] They did in fact exercise these rights. They lived on the land; they built families and inevitably a community; they buried their dead on it; and the graves are still there. On the same land, they paid homage to their ancestors. They tilled the land and reared livestock on H it. The land provided subsistence necessary for the families without them being

Moseneke DCJ

beholden to anyone. The applicants say these land rights were capable of being passed on to direct descendants and that their A ancestors did transmit them to successive generations. However, this seemingly idyllic and rustic mode of living was not to last forever.

[9] Initially, the Land Claims Court judgment records the colonial shift of land ownership patterns in terse terms: B

'According to a research report submitted by the Regional Commissioner, the ancestors of the claimants were already living on the farms during the middle of the 19th century. When the whites came to settle on the farms, they found them there. The white settlers required them to render services for a certain period every year in return for being allowed to stay on and use the farms.' [4] C

[10] Later, in the course of deciding whether the dispossession of indigenous title of the claimants to land occurred prior to 1913, the judgment had the following to say:

'It might be that the claimants are part of an indigenous community which occupied Boomplaats before the Zuid Afrikaanse Republiek granted the land to white owners during 1889, thereby D depriving the community of their communal ownership and forcing their members into labour tenancy. . . . The white owners took possession of the land, and compelled the inhabitants to become labour tenants.' [5]

(Footnote omitted.) E

[11] This conclusion of the Land Claims Court on the forcible dispossession of indigenous ownership of land is well warranted by the facts. The research report of the regional commissioners [6] reveals that the farm Boomplaats was registered in the deeds registry for the first time in 1889 in the name of Mr P D A Hattingh. [7] On 22 February 1887 the land was transferred by title deed to Mr J de Villiers de Vaal and was further transferred to Mr J B F de Vaal on 10 December 1897.

[12] The next successive owner of the land was Mr H B Gassel who took transfer in 1914. After his death, his widow, Mrs M C Gassel, took transfer of the land. The two were uncle and aunt to Mr H M J Altenroxel who, in 1963, became the registered owner of the farm G Boomplaats. [8] He conducted farming on it together with his sons, Mr August Altenroxel and Mr Bernard Altenroxel. Later, and significantly

Moseneke DCJ

during the period between 1969 and 1971, the two sons farmed the land as lessees. Ultimately in 1987 the farm was registered in A their names [9] and six years later, they transferred it to the respondent. [10]

[13] It is beyond question that, throughout the tenure of successive registered landowners, the applicants, as their ancestors did, continued to live on the land but as no more than labour tenants. They had to work for the registered owner or his appointee in order to B live there. The inexorable result was that, by 1969, the title of the applicants, the very descendants of the Maake people, had been whittled down to a vulnerable labour tenancy in relation to their ancestral land. Then, as I intimated earlier, Mr August Altenroxel together with his brother, Mr Bernard Altenroxel, leased the farm from their father C on Boomplaats and farmed there in partnership. As we already know, they became registered owners of the farm, but only several years later.

[14] In the trial before the Land Claims Court, Mr August Altenroxel was the first and main witness for the respondent. It fell on him to relate how the applicants were deprived of their land D rights to the Boomplaats land. He was born in 1934 and worked on the farm from the age of 17 years. He still lives on it. He is now retired. He has no interest in the corporation that now owns the farm. He narrates that when he and his brother started farming there, the Maake people, including the individual applicants and their families, lived there. The brothers as well as their father had found the Maake people E there as labour tenants on Boomplaats.

[15] He testified that the labour tenants were allowed to build homes for themselves and their families and were entitled to plant crops and to graze their livestock. In his words the white farmer showed them the fields that they were permitted to plough. The labour tenants were not allowed more than ten head of cattle per family and a F specified number of goats and sheep. In return, the labour tenants and their respective family members had to work for the Altenroxels for two days a week.

[16] During 1969 Mr August Altenroxel and his brother decided to G terminate the labour tenancy of the individual applicants, which they did. It is common cause that the applicants did not receive any compensation for the loss of their rights to land in Boomplaats.

[17] Mr Altenroxel explained what the dispossession of the cropping and grazing rights meant to the erstwhile labour tenants. They H were stopped from ploughing. Within two years they had to dispose of all of their livestock. Thereafter they were not allowed to keep livestock. They all became full-time wage earners on the farm. They were paid what the surrounding farmers were paying their farm labourers. Those who did not accept the new employment regime left Boomplaats for the nearby 'homeland' reserved for black people. I However, he says the erstwhile

Moseneke DCJ

labour tenants were not compelled to leave the farm. In fact nine applicants became permanent farm workers and continued residing on A the Boomplaats farm. By 2001 there were six applicants living on the farm. Three applicant families still live on the farm although they are not wage earners. The remaining applicants will not be compelled to leave the farm. The owner of the farm, the respondent, has given an informal assurance to that effect during the hearing before the Supreme B Court of Appeal.

[18] Mr Altenroxel says that they...