This week, learners across the country will return to school for the 2017 academic year. Included in this group of millions of students within our education system, will be 555 of the most privileged human beings in the entire continent – the boys of Hilton College. The College is – by all measures known – the most prestigious school in South Africa and has a price tag to match. Each of the 555 Hilton College boys will pay a minimum of R250 000 for the privilege of attending the school this year. I have encountered Hilton College myself – not as a student, obviously; but as an occasional visitor to its magnificent campus. My first encounter with the campus was in 2002 – then only 16, I could only be overwhelmed by the sheer magnificence of its lawns, the majesty of its colonial buildings – which appeared to have been forcefully superimposed on the African landscape; its vast grazing fields – sparsely populated by horse stables that postcards are made of – and of course, its community. A breeding ground for the privileged. My first visit was for the 2002 Natal Witness Hilton Arts Festival – which was founded in 1993 and runs in September every year. As a 16-year old, I was completely mesmerised by this oasis of colonial privilege and vowed to return regularly – which I have done religiously every September since 2002.

What was interesting about the Hilton College estate is that there were historically 2 schools – the College itself which is the one we all know; and another less glorious institution known as the Hilton Intermediate School. The purpose of the Intermediate School was to educate the children of the workers based on the estate. This made sense. The estate itself had many black families who had historically provided labour to the estate and the college and lived within its vast perimeter. More than 6 years before my first encounter with Hilton College, it had hosted a far more illustrious guest – Nelson Mandela on the occasion of his birthday in July 1996. As part of the celebrations, Nelson Mandela delivered a speech on the campus. Within that audience – some of the workers listened to the great man addressing the boys who were being groomed to take over the world.

In that audience – there probably sat a certain Bhekindlela Mwelase. Mr Mwelase was born on the 21st of March 1931 – almost 18 years after the passing of the infamous Native Land Act of 1913. Mr Mwelase was born on the Hilton Estate and his family had been resident on the Hilton farm since the early 1800s. When Hilton College was established within the Hilton Farm in 1872, Mwelase’s parents and grandparents formed part of the greater workforce within the farm, some of whom were absorbed into the workforce of the College. What was particularly unique about this arrangement is that the black workers who had lived in the farm before it was acquired by the individuals who eventually turned it into Hilton College had an arrangement whereby they had to work for free in exchange for living space, the right to graze and the right to have cattle. In this arrangement, the farm or the College could simply issue an instruction to an individual for them to come to work at any point in time for no compensation. And for the longest time, both the college and the families operated under this arrangement.

A key feature of the 1913 Land Act is that it prohibited the ownership of land by blacks – especially in commercially lucrative farms. As a result of the 1913 Land Act, Black South Africans in farms were subjected to 2 types of treatment – absolute dispossession (removal from the farm altogether) or labour tenancy which simply means you could be allowed to stay on the farm if you agreed to work for free. The Hilton approach was to simply allow the families to remain on the land in exchange for labour. Such families remained on the estate for generations. They were born there; they got married there; raised children; created a community; buried their loved ones and did everything you are able to do in your own land. It was easy to do this – they had never known or owned any other piece of land. Through multiple generations, they became intimately connected with the soil, infused their individual and social heritage within this area and planned their livelihoods around this land – in exchange for labour without compensation.

When Mandela visited Hilton in 1996, the country was in the state of finalising its great compromise – the Constitution of the Republic of South Africa. As part of the Constitution, the question of land rights was addressed through section 25 of the Constitution. In this section, the 2 types of land dispossession were catered for – the restitution for those that were removed; and the recognition of ownership rights for labour tenants. In his 1996 speech, Mandela – no doubt aware of the history of Hilton itself – stated that his government would ensure that the rights of labour tenants would be recognised and they would be given ownership of the land they had occupied for generations. This speech gave Bhekindlela Mwelase and the other labour tenants from Hilton College hope that they would one day own their land – after all, Nelson Mandela himself made the promise.

Unfortunately, the way the Constitution was eventually drawn up created problems. In expressing that the rights of labour tenants had to be honoured in the new democracy the political processes created a window of opportunity for white farmers. Fully aware that the new laws would eventually force them to acknowledge the rights of the black occupants on their farms, white farmers embarked on a series of evictions that ensured that by the time the law kicked in, hardly any labour tenants would be around to lodge any claims. Disappointingly, the final act itself indicated that a labour tenant had to be distinguished from an ordinary farmworker. In other words, if you had received any remuneration from the farm then you were not a labour tenant but a farmworker who cannot claim any land. In giving effect to the Constitutional requirement of dealing with the labour tenants issue, the state passed the Labour Tenants Act. The Act then prescribed that all Labour Tenants who wanted to be granted land in the farms where they had been working for free had until March 2001 to lodge their claims.

As part of the administrative process attached to this act, once a labourer lodges a claim with the director-general of the Department of Rural Development and Land Reform, the DG is obliged to inform the land owner or farmer about the claim. If the land owner disputes the claim then the DG is required to forward it to the Land Claims Court for processing. By the end of the March 2001 deadline, 19 000 claims had been submitted to the department. Included in this claim was the Hilton Claim which was lodged on behalf of 4 families. The families of Bhekindlela Mwelase; Xhegwana Mwelase; Mndeni Sikhakhane and Ndoda Mngoma. These 4 families formed part of the greater community of Hilton workers who were labour tenants.

In anticipation of the need to allocate part of the land to the community as an act of social justice, Hilton decided that it was not in their interest to have black people owning any part of the estate – despite the fact that these people had actually been on the land long before the ‘owners’ arrived in 1872. The key distinction here is that the black owners of the land had never had title deeds – such a concept was not universal in black communities back then. What distinguished the white owners from the black owners is that the white owners registered a title deed on the property – without explaining who the previous owners of the land had been. And then, after the 1913 Land Act, it became illegal anyway for black people to buy land in areas that the state decided should be for white people. And that was the start of the long history of land dispossession.

As soon as the Act was passed, Hilton then decided to ‘encourage’ the black labour tenants to vacate the land. In pursuance of this exercise, the families were uprooted to Howick. This had 2 unique problems. Firstly, the idea of relegating an entire family’s livelihood to a matter of geographic semantics is deeply troublesome – especially in the black community. A family home is not merely an assemblage of bricks and mortar. It is the land upon which so much of our history is to be recorded, preserved and honoured. It is where we bury our loved ones, where our ancestors reside, and where our fundamental definition of identity is to be found. The process of relocating a family and a community ignores all of this. It amounts to a dispossession of the soul and the destruction of the essence of the family unit as we know it.

Luckily for Hilton, a lot of the families agreed to be relocated to Howick. Obviously this was easy enough – Hilton decided to shut down the Intermediate School so that the children of the workers had no access to a school. That was the most effective way of persuading them to relocate. Secondly the tragedy of this relocation is that it didn’t just dispossess them of the land they had come to know as their own; but also meant that those family members who were still providing labour to Hilton College could no longer do so as they were packed off to another town. Through this process, 4 families refused to move from Hilton. They insisted that the only corrective justice they wanted was the allocation of the land to them – which was their right.

In order to ensure this process was done, the families lodged their claim in 2001 – as the laws demanded. In their understanding of the law, the state would indeed discharge its obligation and escalate the matter to the Land Claims Court for deliberation. This was in 2001. Unfortunately, this never happened. And today, more than 15 years later – it still has not happened.

One of the key issues is that the Department has actually lost or misplaced most of the 19 000 claims that were submitted on time. They quite simply do not know what happened to the documents. And for those documents which are still around, they seem to be unable to remember what the documents are all about. The big issue is not that the Department has lost the Hilton case, but rather the reality that the Department does not intend on processing the claim. From 2001 to 2013, the Hilton families wrote repeatedly to the Department to ask it to send its claim to the Land Claims Court. For 12 years, the Department refused to respond – not even a simple response.

In addition, a lawyer representing the families during that time then decided to ditch them. Apparently, his conscience would not allow him to assist the families. It turned out that he was a former student at Hilton College. In Hilton’s view the best possible solution in this process was simply for time to take its course – in other words, for the claimants to eventually die. I attended the 2005 Hilton Arts Festival in the third week of September 2005. One of the claimants – Xhegwana Mwelase – died one week after the end of the 2005 festival. One down, just three to go.

The cruel state of labour tenant claims in South Africa is that the black labour tenants are being attacked from 2 fronts. In the various farms where they are located, the landowners suddenly limited their grazing rights and the number of cattle they could own. For some, this meant that they had to sell their only assets at deflated prices in order to comply with the requirements for reduced cattle ownership. Some labour tenants would then prefer to relocate rather than lose their cattle. For those that choose to stay, there is a second attack – masterminded by the state itself. The legal route demands that the labour tenants have to wait for the director-general to refer their matter to court before it can be entertained. No labour tenant is allowed to approach the court directly. And for as long as the director-general and the Minister refuse to refer a claim to the court – the labour tenants are stuck. 15 years after the deadline for submissions, the majority of the claims have not been processed. The reality of the labour tenants process in South Africa is that the state has actually decided that it does not want to settle the claims. Its remarkable delays in referring the claims simply means that most labour tenants will get superseded by the passing tides of time. Quite simply put, most of them will eventually die.

2 weeks before the 14th Hilton Arts festival, Ndoda Mngoma died on the 21st of August 2007. The department had still not responded to the claim that was submitted in 2001. Two down; two to go.

The real problem in this debacle is naturally the question of why the state seems committed to ignore these claims until the labour tenants are dead. Of all the great misinterpretations of the Constitution in South Africa, the misreading of the property clause is our biggest problem. Section 25 of the Constitution deals with the land question. But before it existed – we need to recall what exactly the land problem is to begin with. Back in the late 1800s, in the age of colonial rule, white South Africans undertook to claim pieces of land in South Africa as their own. This was done at the expense of the black communities that had lived in the land for generations.

At the beginning of the 20th century, the state decided to legalise the process of taking land from the black people and passing it on to the white South Africans. Its most comprehensive policy document – the Natives Land Act – was passed on 19 June 1913 and essentially prohibited the ownership of land by black people. It also designated various parts of the country as white spots where only white people were allowed to own the land. Luckily for white people in South Africa, the areas designated as white spots turned out to be 87% of the land mass of the country. And hence, 87% of the land that might have been in the hands of black people could now only be owned by white people. In order to give life to this law, the state used its various resources to force black people to move away from the land they occupied and essentially cram them into the remaining 13% of the country. For the few black people whose labour was deemed useful by white farmers, the labour tenant practice developed – “Kaffir, you can live here provided you work for free”.

The Constitution was therefore designed to address this tragedy. Its intention was to create a legislative framework for explaining how the land needed to be restored back to the black people. And then it went wrong.

In the Constitution, there is a rather problematic statement that refers to the protection of property rights. For some, this means that owners of the land acquired before 1994 – regardless of how they acquired it – could not be separated from that land. In essence, that statement actually meant that the ANC implicitly agreed that 87% of the land could remain in white hands; and anyone who wanted to challenge that status had to go and prove their claims through the court processes. The dire consequence of this is that white people could hold on to the land and any black person challenging that ownership had the responsibility to prove that the land once belonged to them. We have a society where the expected state of affairs is that white people are regarded as owners of the land with no need to prove ownership.

Black people on the other hand, are regarded as landless until they subject themselves to the legal processes just so that they can be acknowledged as owners of their own land. But even that proof is not enough, because then the state has to find the money to facilitate the restoration of the land; simply because the statement about protection of property rights means that the white landowner cannot be dispossessed with no recourse. That is the general understanding of the so-called property clause.

In the heart of section 25 however, are a list of issues that are either misunderstood, ignored or manipulated in order to maintain the continuous dispossession of the black people of their land. In its darkest hour, the ANC signed up for a series of clauses that – amongst other things – required the state to be the financial guarantor of all land claims. In other words, if anyone can prove that the land was taken from them then the state volunteers to pay off the white occupier because it needs to respect his property rights. Clearly, this was a monumental error on the part of the ANC.

In relation to the question of what is to be done in order to reverse the land crimes; the law provides for either the restoration of the land to its rightful owners or alternatively the provision of redress which may be in the form of financial compensation. In the Constitution, there is a reference to market value as the basis for settlement. In other words, white people who are asked to vacate land so it can be restored to its rightful owners have an expectation that they will be paid the market value of the land at the time that they give it back to its true owners. And therein lies the greatest misconception of our times.

Firstly, the ANC is surprisingly generous to white people in South Africa. In adopting market value as the basis for settlement, the principle that wins is that the value of the transaction is what the seller is willing to settle for and what the state is willing to pay. This ‘willing buyer and willing seller’ principle is evidence of the ANC’s limited understanding of the essence of what market value is. Secondly, white people in South Africa seem to have an evolving interpretation of what market value is. Both are completely wrong in their stance.

In any finance environment, the most ideal set of circumstances for conducting a transaction is within an unbiased market free from external manipulation or limitations. In that environment, the only circumstances that matter are the seller’s willingness to sell and the buyer’s ability to pay. If either party is forced to transact under duress, intimidation or forced circumstances, then the market place has been tainted and no one can argue that the transaction was conducted at market value. To revisit the land question in South Africa then requires an intimate appreciation of this analysis of the market environment. For most white people in South Africa, the implicit position is that ‘I bought the land and I did not steal it so I have nothing to give back’. This unfortunately misses the point entirely.

The reality of the South African land situation is that – just like any other transaction – nothing happens in a vacuum. When the Land Act in 1913 prescribed that only white South Africans could own land in white spots; it meant that 9% of the population had the exclusive right to transact in 87% of the land transactions. 91% of the potential market participants were excluded from the market entirely. So even if your white ancestor could prove to you that he bought the property in Sandhurst in 1915 it is absolute rubbish to even suggest that it was acquired at market value.

Essentially, having used legal processes to completely distort the market place in favour of white South Africans, the white government ensured that whatever land rights or title deeds that were acquired by white people could not possibly ever be regarded as being obtained at market value. Imagine if 100 South Africans had attended an auction for the sale of Hilton College Farm in 1913; 91 of them would have been told that they cannot participate in the auction. The remaining 9 would then bid amongst themselves and the best bidder within that 9 would win the auction. The fact that one of the 91 excluded black people could have had more resources to buy the farm would be completely excluded from the transaction. How on earth can anyone suggest that whatever was paid by the winning bidder is market value?

The most disturbing thing about modern-day white South Africans is their insistence that they acquired the land fairly and should therefore be compensated using market value when the land is restored to the rightful owners. Having been provided exclusive access to the market place for 80 years there is no logic to this approach adopted by white South Africans. It simply reflects an odd social vacuum they live in where they really do believe that their land acquisition happened in a perfect marketplace and hence their right to the land needs to be protected by the Constitution. White South Africa – you are completely wrong here.

What is particularly disturbing is that white South Africans seem content to maintain this stance. In a society where so much of what goes wrong is linked to the inheritance of a broken social history, it is difficult to reconcile the position taken by most white people that theirs is an innocence that is being undermined by the blacks who are trying to steal the land. The danger in this stance is that black South Africans clearly do not share this viewpoint. And at some point in time the collective trauma and frustration of the landless blacks will be impossible to manage. You cannot rely on the state here – they do not even have the capacity to process 19 000 documents. Given the choice between engaging in deliberations about the fact that the market value concept has no standing in the land debate and the inevitable prospect of land invasions, it is strange to me how an entire cohort of society has decided to gamble on the fact that land invasions will not happen rather than opening up the debate about valuation. Very strange.

And then there is the ANC itself. One of the biggest state crimes of the democratic age is the fact that the ANC seems to have adopted the white version of the interpretation of market value. In this state of affairs, the ANC believes that all transactions need to be finalised at market value in order to protect property rights of white people. Now firstly I do not understand why the ANC ever decided that it will guarantee all property transactions and compensate white people when the land needs to be restored. Even if I could learn to forgive that; I am unable to understand why they have then decided that the white people’s interpretation of market value should be used – when the evidence clearly indicates that the history of acquisition of land by white people happened within a manipulated market and hence could not have happened at market value. To firstly sign up to pay on behalf of the white landowners and then decide to pay market value for land that was stolen in a manipulated market amounts to a twin betrayal of the ideals of the freedom charter. This is impossible to understand.

The first step in resolving the land problem is that both the ANC and white people need to be made aware that their interpretation of the value clause in the Constitution is completely wrong. White people need to acknowledge that whatever settlement they might feel entitled to should not be argued on the basis that they acquired the property without stealing it – that is not the point. The key point is that theirs was a manipulated market and hence their argument that all transactions must be conducted at market value means that they have no understanding of the social, economic and political dynamics that were at play for over 80 years and simply think that all property transactions occurred within a particular vacuum. Once we can breathe some life into this vacuum of thinking then perhaps white South Africa might eventually take the first step towards the reconciliation project. This is the same type of vacuum that the 555 boys of Hilton seem to exist in.

When it comes to the ANC, there is clearly a need to explain that since the acquisition of the land and the dispossession of the black people occurred within the context of a highly-manipulated marketplace then there is absolutely no need to replicate the perfect market to achieve restoration – it simply cannot happen. If the land could be stolen in a manipulated marketplace, then it is obvious that the restoration process itself should in fact ignore prevailing market forces and adjust the prices in order to facilitate restoration. Once the ANC understands this, perhaps their fear that processing the labour tenant claims will bankrupt the state will disappear.

One of the President’s more unfortunate moments occurred when he tried to read out the number R989 million when referring to the MalaMala case. In this case, the Rattray family which owned the land argued that if the state wanted to buy the land and give it back to its rightful owners, then they wanted to be paid the market value which was close to a billion rand. The Land Claims Court issued a very clear instruction to the state that it should not, under any circumstances, pay the R989 million to the Rattray family. A few weeks later, the government decided to pay the R989 million and set the precedent that the state is willing to pay market value even when it makes no sense – and that is the number that the President struggled to read out. Remarkably, even though the state paid a billion to the Rattray family – they still have not left the farm. And the black landowners have still not been given their title deeds – the state seems to have forgotten. Perhaps our chance at getting the land back disappeared that day…

It is intriguing to note that the state was willing to pay around R1 billion to one family but somehow refuses to process the labour tenant claims. Maybe the MalaMala case showed the government that this market value nonsense needs to be abandoned. But this has not happened yet. As a result, the Hilton case remains unresolved.

In December 2016, the Land Claims Court eventually decided to instruct the Minister to appoint a Special Master to facilitate the labour tenants claims process. In its judgment, the Court set a deadline of 31 March 2017 for the appointment of the Master. The Minister is expected to challenge this. So no one expects that a Master will be appointed in March 2017 to deal with Labour Tenant claims. If it does happen, the Hilton case might finally be presented to the court. In its defence, Hilton College argues that the 4 families are not labour tenants but actually farmworkers who are therefore not allowed to claim the land. Bhekindlela Mwelase does not dispute that he was once paid by Hilton College. They did indeed pay him an amount of R5 per month – in 1954…

On the 24th of January 2017, Mndeni Sikhakhane will turn 87. On 21 March 2017; Bhekindlela Mwelase will turn 86 years old. 10 days later, he will probably find that the state and Hilton College have yet again refused to give him his land. Perhaps that will be what finally breaks him. And then it will be three down; just one to go…

Writer: Khaya S Sithole.