Judge Elizabeth Baartman granted the Grootkraal community’s application to appeal her judgement in the Western Cape High Court. Photo: Ashraf Hendricks
19 October 2017
The Grootkraal community, which faces the closure of its primary school if evicted from a piece of land near the Cango Caves in Oudtshoorn, has been granted leave to appeal.
Judge Elizabeth Baartman made her ruling in the Western Cape High Court on Thursday. The court had to deal with two issues: (1) the request for leave to appeal, and (2) to hear progress on the provincial government’s plan to relocate or close Grootkraal Primary School.
Baartman reprimanded Western Cape MEC for Education Debbie Schafer for still having not come up with a plan for the school, which is situated on land owned by the Kobot Besigheid Trust. The school currently faces eviction after the Department was unable to reach a lease agreement with the landowners.
Earlier, advocate Anne-Marie De Vos, who is representing the community, challenged Baartman’s interpretation of the “proof of origin” for the use of the land. “In this case the origin must be the agreement made in 1830, but we don’t know what the contents of the agreement was at the time. We must assume that the contents was in favour of those using the land at the time,” she said.
In her judgment last month, Baartman said that if she were to develop the common law as requested by the community, the court would have to “forbid an owner who has given permission” to people using the land “for community activities, religious and education purposes, from withdrawing that permission irrespective of the circumstance”.
De Vos argued that in the context of this case “common law needs to be developed” to determine “whether it is fair and just” for the owners to withdraw consent from the residents who have been using the property since 1830. “We are not asking you to decide for the country because every case must be looked at in its own context. Under these circumstances we say that permission can’t be withdrawn,” she said.
De Vos asked Baartman to grant the application for leave if she thought “that another court like the Supreme Court of Appeal with a five judge bench” may rule differently to her.
Opposing the application, advocate Lawrie Wilkin for the Trust argued that “no evidence has been presented that the community in it’s entirety” had permission to use the property. “There is no injustice here … the landowners also have rights,” he said.
Baartman replied: “We knew this matter wouldn’t end in this court … There are compelling reasons why another court would come to another conclusion.”
When asked why the MEC had not yet devised a plan to either relocate or close the school in accordance with an earlier court ruling, advocate Ewald De Villiers-Jansen for the Department said they were waiting for the outcome of the court’s decision on the pending eviction.
Baartman responded: “The court must know what the MEC’s decision is after having consulted with the community. Have you followed the steps as set out in the other judgment? The court cannot grant an order which will leave the children at the school out on the streets.”
Baartman postponed the matter until 29 March 2018 for a pretrial hearing in which the MEC is expected to give a detailed plan for the school.