The Land Claims Court has found against a white farm owner who refused to grant a black man residing on an adjacent property access to his home and ignored a court order instructing them to resolve the matter.
Muntu Welcome Khumalo, who resides on Kilham Farm in Bergville, KwaZulu-Natal, instituted action against Len Smith Investment Holdings CC.
Len Smith Investment Holdings CC is the owner of Buffelskloof, which neighbours Kilham Farm, where Khumalo resides.
In his submission, Khumalo said he lost the right of way to his home in March 2016. He said this was after representatives of Len Smith locked the gates on the route, which he said he had used for numerous years in order to reach his homestead by vehicle.
He further submitted that, in addition to refusing to furnish him with a duplicate set of the keys to those gates, Len Smith’s representatives constructed a makeshift gate close to his homestead, thereby further hindering his aforesaid access.
He further told the court the gate was not manned by any of Len Smith’s personnel and
remained locked for 24 hours.
Khumalo, who was born on October 20, 1951, said he started working on Kilham farm in 1969. It is owned by a Mr Cilliers, who has since died.
Khumalo further submitted that Len Smith fenced off an area that he and his
family used, after getting off public transport.
This year Khumalo applied to the court to hold both Len Smith and its representative and Andrew Wilson Dott in contempt of the March 2020 order granted by Justice MP Canca. Len Smith Investment Holdings CC opposed the application. In March 2020, justice MP Canca ordered Len Smith Holdings CC to provide Khumalo with unhindered access to his homestead.
The court directed that the order be executed by Len Smith, as first respondent upon 48 hours’ notice by Khumalo of his intention to use the route on Buffelskloof. The court also directed all parties to engage meaningfully, within five days from the date of the order, with due regard to their respective rights and interests, on the applicant’s future use of the route on Buffelskloof.
In his application, Khumalo contended that Len Smith Holdings CC and Dott were in contempt of the order and sought that the court impose a prison sentence or a fine.
Len Smith Holdings CC and Dott opposed the application, arguing that they were not in breach of the court order, and that alternatively if there was any non-compliance, it was
neither wilful nor mala fide.
Len Smith’s sole member Dott in his affidavit, said he purchased Buffelskloof and took transfer on March 26, 2013.
Dott found Khumalo’s brother on Buffelskloof, where he kept livestock in return for guarding the farm and retained his services on the same basis.
Khumalo’s brother later left after their relationship soured.
Dott said in his submission he then planned to establish a nature conservancy and to introduce game on Buffelskloof and two neighbouring farms.
He said as part of this plan “all access points to Buffelskloof were secured with gates” as there was an ongoing poaching problem in the area, mainly done by local herdsmen with dogs. He further contended that there were different routes leading to the homestead
other than through Buffelskloof, which Khumalo could use.
However, Khumalo’s lawyer advocate Mluleki Chithi argued that “to expect Khumalo to
travel the distance from the main road by foot, carrying goods and to jump over fences in order to reach his home was cruel and inhumane”.
This week judge Cowen said in a scathing judgment that “the stance of the respondents to the applicant’s access is, moreover, troubling and evidences an absence of concern for the rights and interests of the applicant. Indeed, at times, the stance appears demeaning of the applicant’s position and station in life.”
She ordered the respondents to comply with the meaningful engagement order within 30 days and further ordered that Len Smith and Dott pay Khumalo’s costs on a party-and-party scale.
A November 2022 report by the Portfolio Committee on Agriculture, Land Reform and Rural Development, compiled during public hearings into living conditions on the farms, found shocking cases of human rights violations.
The report found that land rights violations on farms entailed cutting access to water, demolition of farm dwellers’ houses, denial of burial rights, limit to the number of livestock that can be kept on the land that farm dwellers are entitled to and refusal of access to basic serves.
