Community wins right to occupy land

Ancestral rights apply in landmark ruling

HISTORICALLY disadvantaged Karoo residents have been vindicated by a landmark Supreme Court of Appeal (SCA) judgment which found they have a right to access land their ancestors first occupied more than 200 years ago.

Rural labourers and schoolchildren in Grootkraal, Oudtshoorn, were confronted with losing the land after Kobot Besigheids Trust bought it in 2010, and decided they wanted to develop the land into a game farm for commercial purposes.

In the 1800s a church was built on the land for coloured farmworkers, which today also serves as a school for 202 pupils.

When the case was before Judge Elizabeth Baartman in the Western Cape High Court last year, Advocate Mushahida Adhikari, for the school, had argued that the provincial Education Department had failed to engage with the governing body, and as a result it had to approach the high court for urgent relief in 2011 when they were served with eviction notices.

The court soon interdicted the MEC and head of department from taking steps to close the school without consultation from residents.

By last year, Education MEC Debbie Schäfer had not presented any plans on the future of the pupils, Adhikari had argued.

Judge Baartman had said it was an absolute insult to the children.

Yesterday, the SCA declared residents, being all the families and individuals who live and work on farms in the valley, have the right, in the form of a public servitude, to use and occupy the property.

It also ordered the Kobot Business Trust to pay the costs.

“The fact that successive owners of the property at no stage stepped in to prevent the church from operating, or asserted that it was operating unlawfully, is an indication that this occurred lawfully,” the SCA found.

Lawyers for Human Rights (LHR) have hailed the judgment as groundbreaking, and said it paves the way for other historically disadvantaged communities who have used private land for a significant time to be allowed to register this use against the title deed.

“The Grootkraal community is a close-knit community of impoverished black and coloured families living and working as farmworkers, artisans or domestic workers in the surrounding area of the Kombuys Valley, next to the Cango Caves.

“The crux of the community’s case was that justice demands that there be some way in which the law protects the use and occupation rights of a community such as theirs – ie a community of impoverished black and coloured families who managed for longer than 200 years, during the course of apartheid, in harmony with a succession of white landowners, to constitute a community around the use and occupation of a small piece of land – against a landowner’s desire to evict them,” the organisation said.

Thandeka Chauke of LHR’s Land and Housing Unit, said: “This judgment vindicates the Grootkraal community’s constitutional rights to security of tenure and access to land.

“Its practical effect is that the Grootkraal community will be able to continue exercising their land rights, including the operation of the school, freely, in perpetuity and without interference from the present or successive landowners.

“The judgment is a progressive step in the context of the land debate as it restores the dignity of the Grootkraal community who were on the verge of losing their ancestral land. It also sets a good precedent for other historically disadvantaged communities in the same predicament.”

Schäfer’s spokesperson Jessica Shelver said they are studying the judgment.