18 March 2020
A 14-year land claim legal battle has ended in a loss for the claimants and an extraordinary court order barring their lawyers from claiming any fees.
The claim against 19 landowners in the KwaZulu-Natal Midlands, mainly dairy farmers in the Karkloof area, was first lodged by the Luhlwini Mchunu Community in 2006.
It was kicked out of court because of a lack of evidence, but it was gazetted again in 2016 as a claim under the Restitution of Land Rights Act.
The 3,000 hectares in question are high value, mostly arable land, consisting of grazing pastures and a timber plantation.
The “community claim” was always doomed to fail, Land Claims Court Acting Judge President Yasmin Meer has now ruled.
Judge Meer, who heard evidence from eight of the claimants during the trial, said the definition of community was well established, the acid test being whether a community derived possession from common rules, and not through labour tenancy agreements. This was well known to the lawyers representing the claimants.
“The common thread running through the evidence was that their forebears had worked on the farms and were forced to leave when the cattle numbers they could keep were reduced. They were given an option to either remain and work on the farms with fewer cattle, or to leave. They chose to leave,” the judge said.
The death knell to the claimants’ case came from their own expert, historian Dr V Khumalo, who conceded that the rights of landowners to use their property as they chose and to decide who may have access to it, and on what terms, conflicted with the claims of the workers, tenants and their families.
“Astonishingly, Dr Khumalo preferred to use his own definition of community as opposed to the definition employed by the Act, with which he took issue. Dr Khumalo perceived his role as an expert as being to advance the case of the plaintiff and went so far as to suggest that he acted for them,” said Meer
Ruling that the claimants were not a “community” as defined by the Act and dismissing their claim, Meer turned to the question of costs.
She said she had asked the claimants’ advocate, Mluleki Chithi, for submissions on whether the fees of the legal team, consisting of an attorney and two advocates, wholly funded by the state, ought to be disallowed “given their persistence and pursuit of a community claim when there was no shred of evidence to prove the legally established acid test”.
She pointed to the fact that Chithi, as leader of the team, had previously appeared in other matters involving community claims and had also lost similar arguments in these.
“He must have been well-versed with the requirements of success of such a claim. I also raised this issue during a telephonic pretrial conference. I specifically asked the legal team to consider whether in light of established case law, the claim could pass muster … The proceedings were clearly unsustainable,” said Meer.
And yet the lawyers had persisted with the claim regardless.
Judge Meer said while the team’s “vexatious, frivolous and abusive litigation” would be capable of attracting a punitive cost order. But she would instead, impose the “lesser sanction”, of disallowing their legal fees.
“I nonetheless caution legal practitioners, especially those fortunate enough to be funded at state expense, to act for litigants in this court, that the time is fast approaching when they will be mulcted [fined] with the considerable costs of their opponents (on a punitive scale) for litigating vexatiously.”
She ordered that the Minister of Rural Development and Land Reform must bear the costs of the landowners, and that the fees of law firm Sinama and Associates and the two advocates be disallowed in full. They were ordered to repay any fees already paid to them.
Attorney Rob McCarthy, who represented the land owners, said his clients were happy and relieved that the matter was finally resolved, but from a land redistribution perspective, there were no winners.
“It has been an extremely stressful time for them and for the claimants, whose expectations have now been dashed when the case was a non-starter,” said McCarthy.
He estimated that the legal fees for the land owners, the state and the Department of Rural Development and Land Reform together could be in the region of R5 million.