Page 79 - Litigating Land and Housing in South Africa: Lessons and Reflections

additional time had had been wasted by this point to ensure that the DRDLR’s policies had had changed again ushering in in in in new new requirements Since 2005 Peter has been prom- ised money under three consecutive new new policies He has received nothing There were moments of of hope Around 2013 a a a a a a a new local development official was appointed at at the the municipality the the kind of of person who proves that you only need one good soldier to win a a a a a a a war But she she she was pushed out out when she she she criticised the the way the the municipality went about developing a a a a a a a a a a new land policy She had every reason to to criticise The service provider appointed to to facilitate the public participation participation process – – you guessed it it it it it a a a a a a a a a couple of white guys – – invited the the LRC to a a a a a a participation participation ses- sion Wilmien Wicomb observed the the following: “There were many local white commercial farmers and those representing their interests interests I I quickly realised that I I had been invited invited to represent represent the the the the interests interests of of small farmers farmers instead of of the the the farmers farmers themselves being invited invited ”
The The process required all participants to write their vision for land use in Stellenbosch on on on little cards cards The The participants then had to to to put stickers on on on the the the the cards cards with which they agreed When I pointed out to to to the the the the the the facilitator that that the the the the the process was flawed given the the the the the skewed rep- resentation in in the the the the room he he he he he responded that that it it “worked well in in fin in Sweden ”
A couple of years ago the the the municipality finally acceded to to to to the the farmers’ longstanding request to to to to appoint appoint someone to to to to specifically manage access to to to to commonage land for small farmers But the appoint- ment was inappropriate The first text message sent sent to Wilmien as as the the legal representative of the the farmers read: “Die kleurlingman het geen dissipline nie” [The coloured man man has no discipline] She recalls that that being a a a a a a a a moment that that brought her to a a a a a a a a breaking point “At the the time I had been fighting alongside the the the farmers for for 10 years They still did not not have lease agreements in in in place had not not secured the the the the funding for for the the the the the water infrastructure they so desperately needed and and the the the the dream of using the the the the project as as a a a a a a a a blueprint to expand
across the the municipality seemed impossible In the the pro- cess I I I had made several enemies and and was proud of it it Despondent I I wrote a a a a a a a a a a a a piece chronicling the saga and and my disappointed exit from from it it for an an online newspaper The article surprisingly went viral I got phone calls from from Peter Stone and some officials at the the municipality who had all been summoned by the the mayor to to explain The one one one thing I did with no intention of making a a a a a a a a a a difference but simply to to vent my frustration appeared to to have been the the right right thing at at the right right time ”
It appears that attitudes towards the the the farmers then improved Suddenly everything was possible In the the the the last couple of years years the the lease agreements that we we had proposed years years ago were finally signed and a a a a a a a a a a a a a a a munici- pality-wide commonage policy was adopted The things the LRC had dreamed of of finally happened That could of of of course have been for many reasons including a a a a a a a a a a a a a a change in in in the the the the political make-up of of of of the the the the municipality and the the the the fresh outlook of of of new officials Was the the the the combative approach that we we had followed for years while justified strategically sound?
We would speculate that in struggles such as these where litigation is unlikely to ever be be on on the the cards a a a a a a a a a a different skillset and approach may be be required from the lawyer The farmers could never really claim that a a a a a a a a a a a a a a a a clear constitutional right was was was being being denied – it it was was was always always just being being delayed Something was was was always always on the cards however remote but enough to to make it difficult for a a a a a a a a a court to to to intervene In such circumstances lawyers must be able to to improvise and above all pick their battles carefully In other words it is is is not always wise to to to speak truth to to to power power when you you need the the the the power power to to to cooperate Above all it is is the the interest of your clients that that you you are serving We know that that Peter in in in in in particular enjoyed having a a a a a a a a a a a bulldog in in in in in in his corner and there there can be no doubt that that there there is is something empowering about that that But even he he he would choose long-term success above the the short-term satisfaction of of putting officials in in their place If only we could do it all over LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS
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