No ruling yet
THE vast land claim case which played out in the Port Alfred Magistrate’s Court in May and is responsible for Sun International’s extraction from Fish River Sun, is again in session for the remainder of the week after a recess of six months.
Chief Judge Yasmine Meer expressed her frustration at the entourage of advocates and attorneys who neglected to file pre-trial reports – due last month – to the court.
New defendants, who revealed their land portions were also included in the vast land claim, emerged on Monday.
Earlier in May, the owners of seven farms and 20 smallholdings west of the disputed Fish River land claim, including sections of the municipal-owned Kap River Nature Reserve, only discovered while court was active that their land is included in the massive land claim case
The case is one of the biggest land claims in the Eastern Cape, and involves an array of attorneys representing several groups with claims to the land from the Fish River and farms further inland.
The dispute, which has been ongoing for the last 17 years, involves the AmaZizi, the Tharfield and the Prudhoe peoples, as well as attorneys representing the Fish River Sun who are arguing their disputes on claimed land which has its origins in the 19th-century Border Wars.
A number of farms are being contested between the AmaZizi and the Prudhoe.
Earlier this year, an unnamed source who represented Sun International’s interest with regards to Fish River Sun said the whole case had become a law show.
“Two communities’ inability to take the deal on the table resulted in Fish River Sun closing,” said the source. “Legal counsel has failed them.”
Advocate Viwe Notshe said the claim on Fish River west was withdrawn but the “claimant maintains its claim of requital redress”.
In court on Monday was Chief Land Claims Commissioner from the Department of Land Reform and Rural Development Nomfundo Gobodo, as well as Isaac Peter from the department. The court heard the testimony of witness Petrus Jacobus Jonas, a regional town planner registered with the SA council, who testified a feasibility report evaluating restoration of the claimed land.
Part of Jonas’s research was to identify factors which needed to be taken into account when considering restoration compensation. The purpose of the study is to also reflect land use, the socio-economic data, current occupation and spatial planning and development.
According to Jonas, the current ownership of the land being claimed are 81% government owned, 17% privately owned and
Jonas illustrated critical biodiversity (Class 1) areas, the highest status in terms of environmental sensitivity. This included “red data” species, risk of degradation, erosion and loss of vulnerable species areas, including slopes running into Fish River Valley.
Jonas also analysed the grazing capacity of the area, soil potential in terms of cultivation potential and agricultural capability. The research concluded that the analysis started at “Class 3”, medium to low, and indicated not a high-ranking area as production potential.
The population figures are 14876 which represent 4600 households. Jonas’s research concluded that the agricultural potential is moderate.
In the very best areas, between 5ha to 7ha will be required to carry one stock unit. In some areas, more hectares of land is required to sustain grazing per stock unit due to poor grazing capacity.
The “second-best” identified areas indicate between 11ha to 13ha per animal unit is required.
Notshe pointed out that the land capability is less in the AmaZizi claim area and that the land claims by the Prudhoe people are superior.
“The entitlement is for restoration of land and not quality. The claimant is entitled to land when proved they were forced to leave. You get what you can prove,” Meer said.
More witnesses were called to testify on Tuesday, including the last-minute defendants of property claims.
Tuesday’s proceedings were delayed from the starting time of 10am as counter claims were launched by a number of residents of properties in disputed areas.
Fish River Diner and caravan park owner Tia Swart took the stand and laid her case that there was no advantage to creating a culvert on her property alongside the caravan park to enable locals to access the sea, despite reports that years before Xhosa peoples would use a path through her property to gain access to the sea.
“There is no path through the property and never has been since I moved onto the property 18 years ago,” said Swart, who recommended that the only viable access to the sea was via the Fish River Sun property.
Next to take the stand was local businessman Hambile Misiwe.
His cross examination was more direct and it was initially pointed out that Misiwa has a number of businesses in the area including a petrol station, a bottle store and a pub.
It was also pointed out that, although Misiwe purchased the property in 1994, it was suggested this was a land grab. Misiwe was also told he was only obliged to move into the property once transfer was finalised.
However, Misiwe told the court that this was currently in the hands of Minister of Rural Development and Land Reform Gugile Nkwinti, who was ordered by the high court two years ago to affect the transfer.
This caused consternation in some quarters when his attorneys asked why he was being subjected to such an interrogation of his businesses and accused of a land grab when the previous witness had not been asked to explain her business dealings.
The total cost which government will endure when one of the Eastern Cape’s biggest land claim sagas is finally settled, is unknown.
Court proceedings continue until tomorrow.