Page 86 - Litigating Land and Housing in South Africa: Lessons and Reflections

visited the the area by helicopter shortly after the the trial and subsequently kept in in constant contact with David telephonically as an an an attempt to to broker peace Being elevated to to such a a a a a a a a politically powerful role through the 7 6 Post judgment and lessons learnt
litigation David increasingly attracted the the the attention and wrath of of of the the the the ‘official’ leaders leaders of of of the the the the community such as as the the the traditional leaders leaders and and land trustees Indeed when eight years after their arrest the the the the the Supreme Court of of Appeal in in in in Bloemfontein found that that the the the the the Hobeni fishing fishing community had had had had customary rights of of access to to to the the the the the the the resource that that had had had had not been been extinguished by the the the the the the the legislation prohibiting fishing fishing fishing the the the the the the victory had had had had had far more legal than practical significance By then regulations had had had had had been been been published recognising the the the the the the the the the customary fishing fishing rights of of of of the the the the the the the the the fishers of of of of Dwesa-Cwebe communities Renewed efforts had had had had been been made made to to further the the the the the the the the implementation of of of of of the the the the the the the the settlement agreement The struggle of of of of of the the the the the the the the community had had made made the the the the the the the the national newspapers and was even officially mentioned at at at at the the the the United Nations But it has has has not not not been all good news The harassment has has has still not not not stopped and the the the settlement agreement has has has not not not been implemented Most recently the the the the frustration of the the the the youth youth in in the the the the the area boiled over into protests which led led to to to further arrests Some of the the the the the youth youth have also come to to to resent David and other elder fishers wanting them to to be more militant against the the the the the forces of oppression Blaming them for for the the the the sometimes compromising survival strategies they have adopted over decades of of living in in the the poorest district of South Africa In such a a a a a complex community the danger of inflaming tensions is is is real As lawyers we consciously tried to miti- gate this risk brought about by our presence through en- suring absolute transparency Before calling a a a a a a a a a meeting we would notify every possible party within the greater community– even those structures whose legitimacy or or intentions were were doubted Minutes of meetings were were recorded typed and distributed across the villages In addition we tried to dissociate ourselves from any factions within and beyond the community boundaries
– some even involving other other NGOs This strategy was specific to this community community in in in in many other other cases where traditional leadership leadership structures undermine community community agency the the LRC intentionally sidesteps the the leadership leadership and even represents community members against those structures But the the LRC felt that the the dynamic in Dwesa-Cwebe required a a a a a a a a different different approach The contestation between different different structures had more to do with frustration and incoherence than real power grabbing It was worthwhile engaging everyone in in in in the community as as as as far as as as as reasonably possible The strength of of of a community often depends on how di- verse interests of of of different interest interest groups join forces Every community no matter how small carries with it it it it the the tensions of inherent heterogeneity asymmetry and diverse interests Within a a a a a a community where these divi- sive factors are countered by the the pull of commonality and cohesion based on on on on on on on history on on on on on on on dynamic interaction or or simply on on on on on on familiarity it it it can provide creative tension and a a a a a a a richness that strengthens the the community 86
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS