Stellenbosch municipality ordered to allow Basotho caregivers access to initiates

The high court has ordered the Stellenbosch municipality to allow Basotho caregivers and parents access to initiates as an impasse between the municipality and traditional forums over the initiation site continues.

Rashid Makhubela, a principal overseeing the initiation school in the municipal-owned Ida Valley Nature Reserve, took the municipality to the Cape Town high court after law enforcement officers denied him access to the site this week. Makhubela asked the court to order the municipality to grant him and other stakeholders “unrestricted access” to the nature reserve. He said he was responsible for 50 initiates undergoing the rite of passage on the site but municipal officials had denied him entry.

In October, the municipality informed the initiation forum — which has used the site for several years — that it would not permit the use of the land this year because of fire risks and pending litigation. But that did not deter the initiation forums.

“As the principal who is overseeing the initiation of over 50 initiates ... I am obliged to ensure that the initiates are fed, hydrated and given the necessary care by the caregivers, and as such have the necessary standing to bring this application on my behalf, and on behalf of the initiates who have been entrusted to me by their families,” Makhubela said in an affidavit.

Makhubela said the initiation period started on November 10 and will run until the first week of January. He argued that the municipality’s conduct affected the initiates’ constitutional rights.

Makhubela provided a brief history of the impasse. He said the initiation forums learnt that the municipality would not allow them to use the site for the initiation school this season.

“No formal communication had been sent to us despite request to obtain such communication. The only communication that was received was a WhatsApp message from an official of the municipality that the municipality would not grant us access to hold the initiation at Ida Valley,” the affidavit reads.

He said formal communication only came on November 8, confirming the municipality’s decision.

“Despite the decision, on November 25 the initiation process had begun.” Makhubela said they learnt the Congress of Traditional Leaders of South Africa had sued the municipality over its decision.

“At the time of receiving the information, we, elderly men and the aspirant initiates were already camping on the site in question, as is tradition, and it was upon that information we laboured under the impression that we could move in and set camp, while the matter was being resolved in court.

“It was only the following morning, that we were confronted by the members of the Stellenbosch metro police, who sought to evict us from the camp and who we informed that the matter was already pending in court and that they had no right to evict us without a court order authorising our eviction from the site.”

Makhubela told the court the initiation school was operating under “very challenging and severe circumstances because of the restricted access”.

“The metro police are currently standing at the two entrance points to the site, locking the gates with padlocks and not allowing cars to enter the nature reserve into the sites where the initiates are,” he said, adding that this was hindering the provision of necessities such as food, water and medical equipment.

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Makhubela said he was denied access on December 3, and “I was forced to go back home with the essential equipment I was carrying”.

“This was followed on the same date by reports from the caregivers that one of the initiates was coughing blood and needed to be taken for medical care. We brought this to the attention of the metro police and pleaded with them to allow vehicular access into the site, but those pleas fell on deaf ears.”

Acting Stellenbosch municipal manager Anna Maria de Beer told the court the municipality had been provided with names of “principals and caregivers” when the initiation started on November 25 and Makhubele's name was not on the list.

“There are seven identified principals and caregivers who are currently in occupation of the property and taking care of the initiates. [Makhubele] is not on that list,” De Beer said in an affidavit.

“In addition to the said seven persons, there are three elders who have been identified and have unrestricted access to visit the school at any time when they have to do so. [Makhubela] is not on that list.”

De Beer said the restriction of access to the nature reserve was in line with the Veld Fires Forest Act. .

“The property is the bearer of fynbos and other natural vegetation which is prone to catching fires if not properly managed,” she said.

“It is a management exercise of that risk which informed the formulation of the identified list ... There are other adjacent private properties within the vicinity of the property. [The municipality] owes such property owners a statutory obligation to take all the necessary steps to prevent the risk of fires emanating from the fynbos which may [catch] fire if not properly managed.”

De Beer said the municipality had a right to lodge an application to evict the initiation school but “decided not to institute such proceedings as it understands that the initiates are patients and needed to be treated with ubuntu”.

On Thursday, the court ordered the municipality to “restore and grant access to the caregivers, parents of the initiates in terms of the broader definition of parents in terms of the Children’s Act, and not narratively defined by the fathers”.

The court also ordered the municipality to grant medical personnel and Makhubela access to the site. It ordered the municipality to pay the legal costs.

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