The high court in Pretoria has delivered yet another scathing ruling on the government’s failure to properly implement land reform, finding that its 17-year-old failure to sell a farm to an elderly black Limpopo farmer is irrational and unconstitutional.
In a landmark, precedent-setting decision that will force the state to radically re-evaluate its policy of offering black farmers long-term leases rather than land ownership, the court ordered the department of land reform & rural development on Wednesday to finally make good on its promise to sell 78-year-old David Rakgase the Nooitgedacht farm he has been leasing from the state since the 1990s.
Judge Norman Davis said it is “clear that a breach of the state’s constitutional duties had occurred” in its handling of Rakgase’s attempts to buy the farm it had offered him. He echoed the Constitutional Court’s recent harsh criticism of the state’s three-decade long failure to process 11,000 land claims made by so-called labour tenant farmers.
In that ruling, in which SA’s highest court ordered that a “special master” be appointed to process these claims, Justice Edwin Cameron slammed government administrators for failing to make land reform a reality — and squarely laid the blame for the way in which the land debate had been “embittered” at their door.
The Rakgase ruling has only reinforced that criticism, and raises serious questions about how the government will administer the legally complex process of expropriation without compensation, given its now well-documented failures to administer land reform programmes intended to empower black farmers.
The department promised to sell Rakgase the farm in 2002, under its now aborted land redistribution for agricultural development programme. It approved the sale of the property to him.
What followed was a litany of bureaucratic and administrative failures in which the department eventually offered Rakgase a 30-year lease. He then turned to the courts.
On Wednesday, Judge Davis slammed the way in which the government had “arbitrarily” refused to sell Rakgase the land he had spent decades renting from the state, despite previously identifying him as an ideal beneficiary of the land redistribution for agricultural development programme.
“There is no explanation why, when the well-motivated occasion for conversation of a right presented itself, it was shied away from and the elderly applicant [Rakgase] was presented with a much lesser right, being a long-term lease, the end of which he will not see in his lifetime.”
The judge said the government’s 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 “smacks of callousness and cynicism, particularly given our country’s historical deficiencies in dealing with land reform”.
Judge Davis added that the same applies to other black farmers who had been offered long-term leases, rather than being offered the opportunity to own the land they farmed.
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