Black farmer wins big in court, but is too afraid to go back to his land

State’s failure with land restitution and security mean land invaders rule the roost on his once successful farm

Elderly Limpopo cattle farmer David Rakgase has won a precedent-setting court victory that will have seismic consequences for black farmers who have for decades been refused the right to buy state land they have lived and worked on.

But, as the 79-year-old stands in front of a vast tract of land that will soon belong to him the scale of that victory remains eclipsed by what he has lost. Rakgase cannot venture on to large chunks of the Nooitgedacht farm that judge Norman Davis has ordered the state to sell to him, 17 years after it promised to do so under the now discontinued land redistribution for agricultural development programme. He does not have keys to unlock the eight locks placed on the gate by land invaders. The gates lead to 2,000ha of his farm, where he believes hundreds of his stolen cattle, goats and pigs have been taken.

“The day the people invaded the land, we ran from this farm and went to stay in the village ... we are afraid for our lives,” he says, as he recounts how his land was unlawfully occupied in 2016.

Since that day, Rakgase has been too afraid to sleep on the farm where the bodies of his late wife and two of his grandchildren are buried.

“I do not want to be killed,” he says. “The government won’t protect me. Their officials are the reason my land was invaded in the first place.”

Rakgase’s words are tinged with anger, but also a deep sadness. They speak to a frightening truth that the courts are pointing out: the government has failed, dismally, to implement the constitutional project of land reform in SA and farmers such as Rakgase are suffering the consequences. Worse still, in failing to ensure fair and coherent administration of land reform the state has created a dangerous void in its own constitutional obligations, one that has and will make “self-help” land invasions more viable than any land claims process.

When Davis handed down his ruling on Rakgase’s application to compel the department of land reform & rural development to sell him the Nooitgedacht land, he laid the blame for the invasion of Rakgase’s land which is now the subject of a separate eviction application by government squarely at the door of the state.

During his evaluation of the state’s attempts to justify why it had not honoured its 2002 promise to sell Rakgase his land under its own grant system, Davis further said the argument that Rakgase had “security of tenure” and faced no imminent prospect of eviction with the long-term lease that had been offered to him instead “smacks of callousness and cynicism, particularly given our country’s historical deficiencies in dealing with land reform”.

The state had offered Rakgase a 30-year lease under its proactive land acquisition strategy, a policy of pseudo-nationalisation that resembles that advanced by the EFF. Davis said it is “clear that a breach of the state’s constitutional duties had occurred” in the handling of Rakgase’s attempts to buy the farm the state had offered, and echoed the Constitutional Court’s harsh criticism of the three-decade long failure to process 11,000 land claims made by labour tenant farmers.

In that ruling, in which the highest court ordered that a “special master” be appointed to process these claims, judge Edwin Cameron slammed government administrators for failing to make land reform a reality.

“At issue are not only the lives and wellbeing of those claiming the betterment of their lives as labour tenants,” Cameron said. “At issue is the entire project of land reform and restitution that our country promised to fulfil when first the interim constitution came into effect, in 1994, and after it the constitution, in 1997.”

Cameron described how, in response to the efforts of labour tenants to use the Labour Tenants Act to make claims for land that they had lived and worked on, sometimes for decades, the department of land reform & rural development “manifested and sustained what has seemed to be obstinate misapprehension of its statutory duties”.

“It has shown unresponsiveness plus a refusal to account to those dependent on its co-operation for the realisation of their land claims and associated constitutional rights. And, despite repeated promises, plans and undertakings, it has displayed a patent incapacity or inability to get the job done.

“In this, the department has jeopardised not only the rights of land claimants, but the constitutional security and future of all ... the department’s failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly worsened the intensity and bitterness of our national debate about land reform.

“It is not the constitution, nor the courts, nor the laws of the country, that are at fault in this. It is the institutional incapacity of the department to do what the statute and the constitution require of it that lies at the heart of this colossal crisis.”

Cameron’s words should compel an honest interrogation of the failed land reform project. The Special Investigating Unit (SIU) has exposed, in a report sent to the presidency in 2018, fraud “on an enormous scale” in the land reform programme. Farms and millions of rand in grants were handed out to beneficiaries who did not qualify.

The SIU recommended that 42 people, including 37 government officials, be prosecuted for fraud and corruption linked to land scams, in which family members of officials received grants for farms they never worked on.

“Government is not interested in helping black farmers,” Rakgase tells me, as he feeds salt to his cows. He is proud of them, pointing out how sleek and well looked after they are, even in September, after months of winter.

Before his land was invaded, Rakgase’s farm was seen as a success story, where agricultural students came to learn how to run a cattle farm, and young black farmers sought training.

“I am born in farming. My grandfather was a farmer. My father was a farmer. Actually I like farming ... I never wanted to be anything except a farmer,” he says.

If the state’s land reform project is not benefiting someone like Rakgase, it must be asked: who exactly is it meant to? If the state refuses to process land claims three decades after they were lodged, how does it intend to manage the proposed and legally convoluted process of expropriation without compensation?

This type of irrational and incoherent land reform administration could be due to profound bureaucratic ineptitude, or, disturbingly, an indication that the state has given up on the law as a means to implement land reform.

As with so many of the other imploding socioeconomic crises damaging this young democracy, the failure to properly govern is creating a perfect storm. And farmers such as David Rakgase are reaping the whirlwind.