History in the dock over land

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The Land Claims Court in the Grahamstown high court ruled on Friday 2 May that the claim of indigenous Salem residents to the remaining 33 farms and properties in the old Salem Commonage was valid.

This was the second phase in a long struggle over the legitimacy of their claim with white farmers and landowners in the area. The claim for the restitution of the Salem Commonage was initially lodged in March 2002 by Mtutuzeli Madinda on behalf of the Salem Land Claimants Committee, following the provisions of the Land Restitution Act.

This was part of the threepillar land-reform programme in South Africa, together with Land Tenure Reform and Land Redistribution. There was significant support for the claim from people who had been scattered all over the Eastern Cape and further afield. The basis of the claim was the dispossession of the community of about 6 500 hectares covering 38 farms or properties.

The Commission of Restitution of Land Rights decided to settle the claim in two phases. The first phase, involving the transfer of five farms covering about 450ha and worth about R5.9m, was settled by agreement on 7 July 2006. The beneficiaries comprised 378 households who established a legal entity called the Amabhoxo Development Trust to ensure the orderly transfer of the land for the benefit of the community.

While the claim for the restitution of their land initially galvanised the community into a cohesive unified force, almost immediately after the land was transferred into their caretakership, rifts emerged with claims and counter-claims of mismanagement, corruption and embezzlement. In the light of this evident dysfunctionality the Eastern Cape High Court in Grahamstown terminated the Amabhoxo Development Trust on 25 November 2010.

The court ruled that all its assets should vest in the Master, pending a legitimate community structure, and recommended the establishment of a Communal Property Association. In line with this recommendation, the Tyelerha Communal Property Association was formed in February 2012 under the chairpersonship of Misile Nondzube. To date, the title deeds for these five properties have not yet been transferred to the community.

In the second phase of the claim involving the remaining 33 properties, the white landowners represented by advocate Roberts argued that the claimants did not constitute a community, that colonial conquest had expunged their land rights to the area and that this dispossession was not premised on racially discriminatory laws or practices.

Judge Cassim Sardiwalla ruled in favour of the claimants in respect of each of these arguments in a 64-page judgment based on extensive historical evidence, comparative experiences from other countries like Australia and Canada, evidence from both claimants and landowner defendants and relevant South African case law. In some respects, this is a landmark judgment, since it used evidence of dispossession prior to the 1913 cut-off date.

The contending parties had agreed that the validity of the claim would be heard in the first instance and that the feasibility of actually restoring the land to the claimants would be deferred to a later date.

Now that the claimants have been successful in asserting the validity of their claim, a huge challenge lies ahead in demonstrating that they can indeed put the land to good use. Nondzube, the Chairperson of the Tyelerha Communal Property Association, is very clear about their objectives.

Bucking a national trend in which the overwhelming majority of restitution cases have been resolved by monetary compensation, he said a day after the ruling, "We don't [want] money, we want the land. "If we have the land we can make money. If we sell the land we'll be like Nongqawuse and our children will blame us for this."

By Fred Hendricks

Professor Fred Hendriks is Dean of Humanities at Rhodes University

Article Source: Grocotts Mail