Cape Town – The Land Claims Court has ruled that the government has violated the rights of District Six claimants who lodged their claims as far back as 1998, but are still awaiting restitution.
In a far-reaching judgment on Wednesday, ahead of Human Rights Day, Judge Jody Kollapen granted the claimants a declaratory order, forcing the Department of Rural Development and Land Reform to make good on its promise of restitution.
“Finally, the applicants contend that given the injunction in Section 237 of the Constitution that all constitutional obligations must be performed diligently and without delay, the reality that 20 years after filing their claims the majority of claimants still await restitution, can only lend itself to the conclusion that the respondents are in breach of their constitutional obligations and that such a breach constitutes a violation of the rights of such claimant,” Kollapen said.
The District Six Working Committee, on behalf of hundreds of people who lodged land claims in the 1990s and several other applicants, took the state to court last year. The committee is seeking two forms of relief.
It seeks declaratory relief, which is to provide restitution to the claimants who lodged valid claims by December 31, 1998. It also wants mandatory relief and for the department and the commission to provide details of funding and budgeting and progress reports. In court papers it’s stated that the national government and the commission have an obligation in terms of the Constitution to fulfil the Bill of Rights. One of those rights is the right to restitution.
Kollapen said: “The stance of the Respondents is that even though it consented to the relief that related to the granting of a structural interdict with reporting timelines, it contends that the concession to such relief was not premised on an acceptance that it was in breach of its legal and constitutional obligations to the claimants.”
Kollapen ordered the state to pay the costs of the application and the claimants’ lawyers.
In the order, it states that 969 claimants, 80% of those who were promised a home, are still waiting. He said while it’s commendable that the state attempted to work on a collaborative solution, it doesn’t take away the legal obligations that the government has towards the claimants.
District Six Working committee chairperson Shahied Ajam said: “It’s a phenomenal judgment and criticism from the judge is right. It’s not easy to get a declaratory order, we had to take on the government in the sense that it was unlawful and we challenged it based on the law and not emotion.”
He said it was a victory for him and the claimants as they prepare for another round in April.
“We will be seeking another urgent court date with regard to the state’s reply regarding the mandatory relief.
“Our papers have been completed and we will be approaching the court this week. There is nothing stopping us from getting back to District Six,” Ajams said.
Tania Kleinhans-Cedras, chairperson of the District Six Advocacy group said that the judgment was “very soft”.
“This judgement does not mean that they will be validated as claimants. The question is how legislation will make provision for the claimants. I think in a sense the judgment is raising false hope for claimants because they have been hopeful that they will return to District Six,” she said.
District Six beneficiary trust chairperson Dr Anwar Nagiah said: “The claimants had a real sense of justice. We need the court to be directed to open the cut-off date. We must continue to add pressure on the department for not only District Six but the entire country.”
Meanwhile, the Department of Rural Development and Land Reform said it was unable to comment on the matter on Thursday. Officials in the department said they were preparing for President Cyril Ramaphosa, together with Department Minister Maite Nkoana-Mashabane, to officiate at a land restitution handover ceremony for the Ebenhaeser community in the Matzikama Local Municipality in the West Coast district on Saturday.
The long-awaited ceremony will mark the resolution of the land claim lodged by the Ebenhaeser community on 53 farms that comprise of an established 1566 hectares of predominantly commercial wine grape land parcels. So far 13 farms have been acquired.