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There was jubilation at the Western Cape High Court on Monday after the Minister of Rural Development and Land Reform was ordered to start work immediately on a restitution plan for people evicted from District Six during apartheid.
"Yes!" said the large group of people squeezed into the court, after keeping their excitement in until Judge Jody Kollapen left.
"This is all about my healing," said Shahied Ajam, the chairperson of the District Six Working Committee.
For Ajam, the handling of the District Six land restitution case provides a golden opportunity for South Africa to make right in a way that moves the country forward peacefully.
He said people who were wrenched away and moved to the barren Cape Flats had suffered emotionally and socially. He added that they lost their sense of empowerment, economic independence, and sense of identity.
"I'm 60 years old. I was forcibly removed from District Six when I was 18 years old," said Ajam.
"We need to take cognisance of the fact that today was a meaningful day."
Pushed aside
He said the government had not just dragged its feet on the matter, but had actually pushed them aside.
The #District6 Working Committee says the government has a golden opportunity to restore and heal through proper restitution of land, social rights and dignity @TeamNews24 pic.twitter.com/9D8h9GEaxj
— Jenni Evans (@itchybyte) November 26, 2018
Eleanor Cross, 70, was in high spirits – not just because of the victory, but because she was catching up with people she had not seen since the evictions scattered the once tight-knit neighbourhoods across the Western Cape and South Africa.
She said her mother had never recovered emotionally from being torn away from a dairy she ran from her home in District Six. She did not like the flat with steps they were moved to and could not continue with her little business.
"She never accepted it," said Cross, explaining that the eviction led to her mother's gradual physical and emotional decline.
She and Sedick Vermeulen, now from Hanover Park, stopped and stared at each other and exclaimed: "I know you!"
They remembered each other from their days at school and stood outside the court laughing as they caught up with each other.
Adv Geoff Budlender for the #District6 Working Committee submits that State is in breach of its Constitutional obligation to provide promised restitution to claimants. Says 89% of claimants have not received a home even tho govt said they would get one @TeamNews24 pic.twitter.com/zai1pqQplm
— Jenni Evans (@itchybyte) November 26, 2018
The court heard that the claimants had lodged their application by the end of the first land restitution deadline of December 31, 1998.
About half opted for financial compensation, but 89% of those who had expected to move back were still waiting.
Constitutional obligation
Their advocate, Geoff Budlender SC, told Kollapen that the claimants wanted an order immediately that said the government had breached its constitutional obligation to carry out restitution.
They also wanted it to be made an order that the government must provide a detailed plan within three months on how and when they are going to get their land, and how the restitution they were promised would be realised.
The application was lodged against the minister, the Commission for the Restitution of Land Rights, the City of Cape Town, the premier of the Western Cape and the South African government. The premier and the City said they would abide by whatever the court decided.
Budlender said that not only were the forced removals "unbelievably traumatic", but most of the people who succeeded with their restitution claims for District Six had heard nothing afterwards.
He said the government had tried to blame the delays on incapacity and factionalism in a beneficiary trust set up to manage the restitution process.
He said the government was responsible for making sure restitution was carried out to individuals, not an organisation it had asked to carry out the job. If there had been any disputes, the government should have dealt with them, he submitted.
Complicated process
Advocate Sean Rosenberg, SC, who represented the government bodies, conceded that there were delays, but said the issue was complicated.
He said the District Six restitution case was unique and complex because the government had hoped for more than just giving back empty land. It had wanted to create a new development with a mixture of claimants' housing, as well as private houses for sale, and social housing. It also wanted to include commercial space in the new development on the 40 hectares available that was within walking distance of the CBD.
He said the first and second phases of the restitution programme had been completed but it was the more difficult Phase 3, with the proposal for mixed use, which contributed to the delays.
Cape Town's famous #District6 under the spotlight at the Western Cape High Court today in a case over restitution of land rights to residents evicted during apartheid @TeamNews24 pic.twitter.com/gPYFUb0vE8
— Jenni Evans (@itchybyte) November 26, 2018
An additional complication was that new claims were lodged when the land restitution claim period was extended to 2014.
This extension period has however been overturned by the Constitutional Court, but in doing so, that court ruled that claims that were already lodged must be dealt with.
Rosenberg said this left officials wondering what to deal with first – building Phase 3 of the restitution project based on the first phase of approved claims, or processing the latest claims first.
He said the organs of state were fine with being ordered to come up with a new plan, but did not think they should be declared to have been in breach of the Constitution.
Partial judgment
Kollapen said that the matter was urgent enough to hand down a partial judgment immediately on some of the points while he thought about the others.
"The clock should actually start running now," said Kollapen.
He ordered that the government start work immediately on a plan to make real the restitution promised to the claimants.
Within three months this plan must be brought to the court and must say what the development will look like, what the budget is, and how the units will be allocated.
In the meantime, he reserved judgment on the request for an order that the government be declared in breach of its constitutional duty, and the costs portion of the application.
He hopes to hand down judgment on those issues by the end of the year, or early next year.
