Is Legal Aid SA's land rights unit failing the marginalised?

SOUTH Africa’s Land Rights Management Unit (LRMU), a critical division of Legal Aid SA, is grappling with severe challenges as it strives to deliver justice to some of the country’s most marginalised citizens: farm dwellers, labour tenants, and land reform beneficiaries.

Despite its mandate to provide legal representation to these vulnerable groups, the unit is hamstrung by chronic underfunding, systemic inefficiencies, and delays in resolving cases. These issues have sparked intense scrutiny and raised urgent questions about the government’s commitment to land reform and rural justice.

Established in January 2022, the LRMU was tasked with taking over legal representation for farm occupiers, labour tenants, and land claimants from the Department of Agriculture, Land Reform, and Rural Development (DALRRD). However, since its inception, the unit has faced significant operational hurdles, leaving thousands of cases unresolved and vulnerable communities in a state of uncertainty.

During a recent presentation to the Portfolio Committee on Land Reform and Rural Development, Legal Aid SA revealed that the LRMU has handled 1 131 new land matters since its establishment, with 419 cases finalised in the 2024/25 financial year.

However, a staggering 1 704 cases remain pending, including 867 matters under the Extension of Security of Tenure Act (Esta), 498 labour tenant issues, and 399 restitution claims.

Of the 740 files transferred from DALRRD to Legal Aid SA in January 2022, only 261 (35%) have been finalised. Thabiso Mbhense, legal executive for land rights management, attributed the delays to a combination of internal capacity issues and external factors, such as the under-resourced Land Court, which currently has only one permanent judge.

“The capacity of the Land Court is a significant challenge,” Mbhense told the committee. “We also face delays in paying invoices and setting up internal systems, which has slowed down the resolution of cases.”

The LRMU’s financial constraints have further exacerbated its struggles. Since 2022, the unit has received R329 million from National Treasury, but this falls far short of the R527 million required to meet its operational needs. The funding gap has forced Legal Aid SA to dip into its reserves, with the board approving R35m to cover the initial costs of the unfunded mandate.

Sethopo Mamotheti, chief operations officer of Legal Aid SA, outlined the funding allocations: R122.6m in 2022/23, R76.6m in 2023/24, R130m in 2024/25, and R135.7m in 2025/26. However, he emphasised that the unit has been operating at a deficit, with a significant portion of its budget consumed by personnel costs.

“The high percentage of the budget going to the cost of employment should not be a worry,” argued Advocate Kgotso Godfrey Maja, deputy chairperson of Legal Aid SA. “In our case, the more money spent on personnel means we are focused on achieving our core mandate. The more personnel we have, the more services we can offer to the public.”

Members of the Portfolio Committee expressed support for the LRMU’s work but raised serious concerns about its capacity to deliver justice effectively. The MK Party’s Zwelakhe Mthethwa highlighted the power imbalance between vulnerable tenants and “organised farmers who happen to be white”, accusing the latter of using their resources to prolong cases and undermine justice.

“The beneficiaries of the Legal Rights Management Unit are being victimised by organised farmers who can hire expensive lawyers,” Mthethwa said. “In certain cases, these farmers are even a threat to local police. Legal Aid needs to be capacitated to deal with these challenges.”

The EFF’s Noluvuyo Tafeni echoed these concerns, questioning whether the current funding was sufficient to address the backlog of cases. “What percentage of matters are dealt with by outsourced attorneys compared to those handled internally?” she asked. “Why is Legal Aid not involved in resolving conflicts within Communal Property Associations (CPAs)?”

Mbhense outlined several systemic issues hindering the LRMU’s work, including the lack of adherence to Section 26 of the Constitution, which guarantees the right to access adequate housing. He also criticised Section 15 of Esta, which allows courts to grant immediate evictions without considering alternative accommodation for evictees.

“Section 15 of Esta is problematic because it does not take into account the issue of suitable alternative accommodation,” Mbhense said. “This leaves many farm dwellers vulnerable to homelessness.”

He also called for amendments to Section 16(1)(d) of the Labour Tenants Act, which sets a cut-off date of 31 March 2001 for land acquisition applications. “Many labour tenants missed this deadline due to various reasons and are now excluded from lodging claims,” he explained. “Some claims were even lost by DALRRD, and these claimants deserve a chance to re-lodge their cases.”

Professor Richard Levin, special master for labour tenants at the Land Claims Court, highlighted the broader systemic failures within DALRRD, which he said lacked the capacity to effectively manage land tenure reform. “Most of the Department’s work involves dealing with CPAs, and there is no dedicated function to address labour tenant issues or Esta,” Levin said. “This is a serious problem that needs urgent attention.”

Levin also supported the idea of reopening labour tenant applications, despite the risks involved. “This is a risk worth taking,” he said. “More and more original applicants are passing away, and their children are at risk of losing their claims forever.”

Critics argue that the current framework fails to address the root causes of land inequality in South Africa. The MK party’s Andile Mngxitama pointed out that the very concept of labour tenants and farm workers is a legacy of colonial land dispossession.

“The current framework might legitimise the existing colonial imbalances,” Mngxitama said. “Providing legal assistance to labour tenants does not undo the problematic structure of a labour tenant and a farm owner. We need to address the historical dispossession that created these inequalities in the first place.”

Despite the challenges, Legal Aid SA remains committed to its mandate. Mantiti Kola, chief executive of Legal Aid SA, emphasised the importance of outreach programmes to educate potential clients about their land rights. “We are doing our utmost to carry out education outreach at the local level in each region,” she said.

However, without significant increases in funding and systemic reforms, the LRMU’s ability to deliver justice will remain severely constrained. As Maja stated: “There is a risk of affecting the performance of the entity with the introduction of unfunded mandates. We need additional resources to fulfil our expanded mandate effectively.”

For the thousands of farm dwellers, labour tenants, and land claimants awaiting justice, the question remains: How long will they have to wait?