The Constitutional Court has ruled in favour of the Salem Community in the Eastern Cape in a land dispute that has its roots in the 19th Century.
In the unanimous ruling on Monday, handed down by Justice Edward Cameron, the Constitutional Court dismissed the appeal by a group of landowners who are contesting a 2010 Land Claims Court decision that granted restitution to the local African community living in the area known as Salem commonage.
The Constitutional Court ruling comes after the Supreme Court of Appeal upheld the Land Claims Court decision, albeit with one judge dissenting. The landowners then turned to the Constitutional Court for leave to appeal the ruling but lost the application.
Justice Cameron found that the archival evidence presented to the Constitutional Court had proven that an African community living on the vast tract of land, now comprising several farms, were dispossessed of their land.
He said the Court finds a "racially discriminatory act of dispossession."
"The Community that lives at and on the Salem commonage after 1878 utilised the commonage in accordance with its traditional rules and conventions and was not dependent on, nor did it derive from consent from the landowners," he said.
"Both the groups, Settlers and Community held independent, co-existing rights in the same vast tract of land. The sub-division of the commonage was effected without consideration for or consultation with the community that lived on it. They were, to the court in Grahamstown in 1840 and to the Settlers, for all purposes, invisible and non-existent. The lack of attention to the community and the absence of consultation about the sub-division, and parcelling out of the commonage on which it lived, was the court finds, a racially discriminatory act of dispossession," said Justice Cameron.
"The result of this is that the Court today (Constitutional Court), upholds the order of the SCA (Supreme Court of Appeal in January this year), but it notes that the Community and the landowners developed rights in the same land alongside each other. Neither the Settlers nor the Community had exclusive occupation, though the Settlers had registered title, the Community too, acquired rights alongside it."
"This accommodation of both groups entitlements and the history that records it will be reflected in the eventual order that the Land Claims Court will make," said Cameron.
'For the Community, this subdivision marked the beginning of their dispossession from the land. The archival evidence shows that there were approximately 500 African people living at Salem in 1941. The Community now comprises 378 households who claim that descent from that Group. The Community argues that it constituted an independent community that lived according to its own rules and customs."
"The Community was not considered or consulted by the landowners or by the Grahamstown Supreme Court when the commonage was divided in 1940 and thereafter. The Land Claims Commission in the Eastern Cape investigated the Community's claim. In 2010 it recommended restitution of the land to the Community. Thereafter five properties were transferred when the owners of those properties reached a settlement with the community and they were compensated."
"But, there was no further agreement. In the Land Claims Court, justice Sardiwala considered only one question, did the Community have a valid claim to the Commonage under the Restitution Act. There were two further questions that were not before the Land Claims Court. The first, was it feasible to restore the land and second, was there an alternative remedy rather than restoration that was appropriate."
"Neither of these questions is before this court today either. The Land Claims Court concluded that the Restitution Act's threshold for determining whether a community exists is deliberately low. It accepted that there was a group of people with shared rules and practises and that these had communal land rights in and over the commonage. It held that the Grahamstown Supreme Court order of 1940 had dispossessed the Community of its rights in the land. It, therefore, granted a declaratory order in favour of the Community".
"The landowners appealed to the Supreme Court of Appeal. The basis was that the claimed land was unoccupied when it was awarded to the landowners' precedessors in the 1800's and any later residence on the commonage, the landowners argued, could never have acquired rights in the Commonage under the Restitution Act. This was because they were living there under the authority of or with the permission of the landowners. The SCA, therefore, dismissed the landowner's appeal. It did so by a majority of four judges to one and upheld the decision of the Land Claims Court. The dissenting judge would have reversed the decision of the LCC."
"In this court, the landowners contended that the Land Claims Court and the Supreme Court of Appeal's majority's approach to hearsay and historical expert evidence was mistaken. There was no reliable evidence that there was ever a community that possessed rights in the commonage or that any community was ever dispossessed. The landowners argued that any person living on the commonage was an employee whose rights in the land were determined by the landowners and by the Salem Village Management Board".
"The Salem Community and the Commission (Land Claims Commission) asserted that the evidence, properly approached, established that there was a community and that it was dispossessed of rights and land. The Association for Rural Advancement was admitted as a friend of the court. It presented argument on the correct interpretation of historical and expert evidence in land claims. It also made submissions on the doctrine of inter-temporality, this is the doctrine that holds that the law used to determine whether right existed historically, should be present-day law and not the law as it existed at the time."
"In the judgement, this court weighs the historical evidence in the light of the Restitution Act. It considers the approach to historical evidence, both documentary and oral, in land claims and the role of experts in interpreting and presenting conclusions on this kind of evidence. In this case, the parties experts presented diametrically opposing views."
The Constitutional Court said it found clear archival evidence of the existence of a community of African people on the Salem commonage from at least 1878 until 1941.
Welcoming the judgment, the Legal Resources Centre, said that “a small community who occupied and utilised part of the Salem Commonage in the Eastern Cape had their rights to the land recognised and provided with the opportunity to go back to the Land Claims Court in order to determine restoration of the land, as they were dispossessed of their rights to the land in 1940."
“The Legal Resources Centre represented the Association for Rural Advancement as a friend of the court, providing evidence as to, firstly, how international law has critiqued a principle in which the law at the time is considered the correct law to apply, arguing that even though the law at the time may not have recognised customary law, under our Constitution which recognises customary law, the Salem community has exercised customary practices,” the LRC said in a statement on Monday.
“Secondly, we argued that the Restitution of Land Rights Act permits hearsay or oral evidence when it is interpreted through Constitutional principles. Land Claims are a class of their own, and when adjudicating on their outcomes, should have oral evidence permitted as a form of evidence gathering.”
"When considering the next course of action for the Salem community, the Constitutional Court recognised that the white settlers’ descendants also hold rights to the land; hence, to restore land to the community in whole would prejudice the rights of the landowners."
"The Court finds that, “[t]he Community is entitled to a measure of restitution which does not necessarily include the landowners’ entire farms. The appropriate opportunity for exploring this will be when the question of restoration is considered at the second stage of the trial before the Land Claims Court.”
“The LRC welcomes the judgment as an interpretation of the Restitution of Land Rights Act that is just and fair.”
