Lawyers for Human Rights is pleased to note the ground-breaking judgment handed down today by the Supreme Court of Appeal in favour of the Grootkraal Community.

The judgment 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. This has the result that any sale of the land will remain subject to the community’s use. It is not strange to find schools; churches or other communal activities being run on private land in South Africa. However, this is normally dependent on the goodwill of the current landowner, and could easily be lost with new landowners.

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. Sometime in the early 1800s, the London Missionary Society established a mission station on a privately owned farm that came to be known as “Grootkraal” and allowed the community to use a small portion of the farm (4000 square metres of a farm of 117 hectares) for their communal activities. This included church services, baptisms, ‘Sing Songs’, dominoes tournaments, parties, post collection, funerals and bazaars. The community also established a school on the farm for their children.

For successive generations, the community continued to use and occupy that small portion of the farm but in 2010 they were confronted with the imminent threat of losing the land. This is when the farm was sold by public auction to a business trust. The trust straightaway launched an eviction application against the school on the farm, but evicting the school would effectively result in evicting the community too. LHR then filed a counter-application on behalf of the community, to have their rights to use the farm recognised and registered against the title deed by virtue of the legal doctrine of ‘vetustas’. This counter-application formed the subject of the appeal before the SCA.

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 the theirs – i.e. 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 of piece of land – against a landowner’s desire to evict them.

“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.” -Thandeka Chauke, Land and Housing Unit, LHR.

This case is funded by the Legal Aid South Africa and LHR is thankful for their support.

For more information, contact Louise Du Plessis, Land and Housing Programme Manager on 082 346 0744 or Carol Mohlala, Media and Communications Manager on 079 238 9826.