Heated debate in Salem land claim
Judges disagree on outcome of Land Claims Court
TOP judges are battling each other over a Supreme Court of Appeal’s majority decision upholding a Land Claims Court decision that the massive land claim at Salem is valid.
The SCA decision has been as furiously charged and contested as the history behind the claim.
In a four-to-one majority judgment, the SCA dismissed an appeal against the 2014 finding by the Land Claims Court (LCC) that some 152 claimants had a valid land claim over the 6 594 hectares of valuable farmland largely run by white-owned agricultural and game enterprises.
The land includes the Salem Church, a community hall and the Salem cricket grounds, established in 1844.
But Judge Azhar Cachalia, a former passionate antiapartheid activist and human rights lawyer, who penned the main 170-page judgment, would have upheld the landowners’ appeal against the LCC’s decision.
He was scathing about the Land Commission’s investigation into the case and the pleadings it put together to kick-start it.
He described the commission’s main report which referred the matter to the LCC as unprofessional.
The pleadings, he said, were ill-considered, poorly prepared and bore little resemblance to the evidence.
The case, he said, was legally still-born as the commission failed to produce a resolution from the Salem community authorising those who brought the claim, to do so as required by law.
Even if they had the authorisation, he found that the claimants’ case failed every legal acid test to show that their claim was valid.
They had failed to show they formed a community as defined by the Restitution Act, that their descendants had ever occupied the Salem commonage that they now claimed, or that they had been deprived of it through a racially discriminatory practice or law after 1913.
In his 170-page judgment, Cachalia scrupulously traverses masses of historical evidence presented by two of the country’s top historians.
Renowned left-wing South African historian and theoretician Martin Legassick’s interpretation of the history of the Zuurveld generally – and Salem in particular – and that of prolific South African historical and political author Professor Hermann Giliomee, differed markedly.
The commonage was initially allocated to the Salem party of 1820 Settlers who occupied the farms around it for their common use.
But the claimants say that before the settlers arrived and right up until 1940 many of their ancestors also occupied the commonage and used it to live on, graze cattle, grow crops and bury their dead.
But in the 1940s the white community who had until then shared the commonage, were allowed to sub-divide it and transfer portions of it into their individual titles.
This was formalised by the then-Grahamstown Supreme Court which resulted in the claimant community losing all rights to the land for which they were not compensated, say the claimants.
The landowners say this is not the case and that rights to the commonage had only ever belonged to those white settlers to who it had been allocated.
Africans who had resided there had been allowed to do so as labourers and labour tenants and acquired no rights in law.
But the relevant history goes back further than that.
Legassick agreed with Giliomee that the British conquered the Zuurveld in 1811 and expelled the Xhosa from it, and conceded the Cape Colony exercised exclusive control over the area thereafter.
But, crucially, he denied that this conquest meant that any indigenous rights the Xhosa had over the Zuurveld area in general, or Salem in particular, were extinguished.
But Cachalia said this conclusion was one of law and not history and the Constitutional Court had in other land cases already supported the legal principle that indigenous right was extinguished through conquest.
He said the court should not have taken cognisance of a historian’s view on a matter of law.
“If Legassick is correct, this would mean that anyone who was a descendant of any Xhosa tribe or clan that occupied the Zuurveld before 1820 would have a claim not only over the commonage but over the entire Zuurveld.
“This would include not only the private erven adjoining the commonage, which is not part of the claim, but every farm and town, including Grahamstown.
“The (Restitution) Act does not recognise claims of this nature.”
What appears to infuriate Cachalia is that the majority and dissenting judgment penned by Judges Nambitha Dambuza and Ronnie Pillay – with Judges Willie Seriti and Boissie Mbha agreeing – does not engage with his reasoning but simply disagrees with his conclusions.
The 57-page dissenting judgment found indigenous rights were not extinguished through British conquest of the Zuurveld.
The Constitutional Court’s findings in this regard said the judgment “should not be too readily interpreted as a conclusive revocation of settled domestic and international law on the issue” which supported the view that conquest did not necessarily extinguish indigenous rights.
They said, in any event, the real issue was the continuous occupation of the Salem commonage by a community of indigenous people for a period in excess of 10 years, subsequent to 1913.
They disagreed with Cachalia’s interpretation of historic records, which he said showed African people lived on the commonage only with the consent of the settler families they worked for and under the brutal laws which restricted their rights in almost every respect.
The majority judgment said it was clear from archival records and from oral evidence of descendants of the African population that had occupied the commonage, that it had constituted a community.
The landowners have made it clear they intend taking the matter on appeal which means the unenviable task of ruling finally on the emotionally charged issue will fall to the Constitutional Court.