Page 57 - Litigating Land and Housing in South Africa: Lessons and Reflections

Prudhoe claimants constituted a a a a a a a a a a a community and had a a a a a a a a a a a a a valid claim claim in in in respect of
of
all the the the farms Restoration of
of
the the the the land including the the the the Fish River Hotel and and golf course was ordered 13 The court also dismissed the the the the claim of
of
the the the Mazizini Mazizini in in in in respect respect of
of
those farms but found that the the the the Mazizini Mazizini had a a a a a a a a a a a a valid betterment claim in in in in respect respect of
their tribal areas which was was not disputed by the the the Prudhoe Community Even though this was was a a a a a a a a a resound- ing victory it it it had come 20 years after the the community lodged their land land claim and and and was an an an an indictment of
a a a a a a a a a a a completely dysfunctional land land restitution system 6 1 2 Legal principles
Sadly at at at the time of
writing this matter has still not been finalised The Mazizini Community’s application for for leave to appeal was dismissed by the the Land Claims Court and and and their legal team performed unconscionable delaying tactics and and opportunistically preyed on on on an an an error in in in in in in the the the Registrar’s office resulting in in in in in in the the the appeal only being heard in in in in in in the the the the the SCA SCA on on 13 March 2020 While the the the the the SCA SCA dismissed the the the the the Mazizini Mazizini Community’s appeal on on on 2 2 2 June 2020 the the the the the Mazizini Mazizini have applied to to the the the the the Constitutional Court for leave to to appeal At the the the the the time of
of
of
writing of
of
of
of
the the the original 124 heads of
of
of
of
household in in in in the the the Prudhoe Community 109 have died since lodgement of
of
of
the claim No new legal principles
principles
were were established in in in in fin in this matter but two important principles
principles
were were confirmed confirmed Firstly the the the judgment confirmed confirmed confirmed that that a a a a a a a a a a a a a a a a a generous or or or broad interpretation should be given to the the the definition of
of
of
“community” in in in in fin in in the the the Act and and secondly it it it confirmed confirmed that that organs of
of
of
state do not have adjudicative powers in fin in respect of
of
of
land claims 6 1 1 2 1 1 What is a a “Community”?
Section 2(1) of
of
of
of
of
the Act states that “a person shall be entitled to to restitution of
of
of
of
of
a a a a a a a a a a a a a a a a a a a right right in in in land land if (d) it it it it it is is is a a a a a a a a a a a a a a a a a a a community community or or or part of
of
of
of
of
a a a a a a a a a a a a a a a a a a a a a community community dispossessed of
of
of
of
of
a a a a a a a a a a a a a a a a a a a a a right right in in in land land after 19 19 June 1913 as as a a a a a a a a a a a a a a a a a a a a a result of
of
of
of
of
a a a a a a a a a a a a a a a a a a a a a past racially discriminatory laws or or practices ” “Community” is defined fin in in section 1 of
of
the Act as “any group of
of
persons whose rights fin in in in in in land land are are derived from shared rules determining access to land land held in in in in in common by such such group group and and and includes part of
of
any such such group group ” The adjudication of
of
of
numerous land claims has revolved around the the question of
of
whether labour tenants constitute a a a a a a a a a a a community and and can be said to to have derived their their rights in in in land land land in in in instances where their their access to to the the the the land land land is controlled by the the the the land land land owners or employers While the the the the Prudhoe community were were not labour tenants at at the the the the the time of
of
their dispossession many of
of
them were were employees on on on farms between 1850 and the the the the the late 1970s The Mazizini contended
that our client’s rights in in in the the land were held as as individual farm workers and and not as as a a a a a a a a a a a a a community with shared rules determining access A series of
cases
have ensured that a a a a a a a a a a generous inter- pretation to what constitutes a a a a a a a a a a “community” must be adopted This was confirmed in the Prudhoe matter 13 The Prudhoe Community was not awarded restoration of
of
of
one of
of
of
the the the claimed farms which had been transferred into the the the name of
of
of
a a a a a a a a a a a a black farmer in in 1994 from the the the Ciskei government LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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