At 10h00 on 11 December 2017, the Constitutional Court handed down judgment in an application by the Salem Party Club and fifteen other landowners for leave to appeal against an order of the Supreme Court of Appeal (SCA). That Court confirmed a decision of the Land Claims Court (LCC) that the Salem Community (Community), the first respondent in the Constitutional Court, held a right in certain portions of land and the remainder of Farm No. 48, Salem, and was dispossessed of that right as a result of past racially discriminatory practices in terms of the Restitution of Land Rights Act 22 of 1994 (Restitution Act).
The land in dispute is the Salem Commonage (Commonage). It measures about 66 square kilometres. The Salem Community claims that their forebears lived on that land since before 1811 and that they had unlimited indigenous ownership rights in the Commonage.
The landowners’ predecessors were granted the Commonage in 1836 and 1847 by two British colonial governors at the Cape, Sir Benjamin D’Urban and Sir Henry Pottinger. Until 1940, the settlers were entitled to use the land for grazing livestock and other communal uses. In 1940, the Grahamstown Supreme Court granted an order consolidating the Commonage and allowed it to be divided among the landowners in individual title.
For the Community, this division marked the beginning of their dispossession. The archival evidence shows that there were approximately 500 black people living on the Commonage in 1941. The Community now comprises 378 households who claim descent from that group.
The Community argues that it constituted an independent community that lived on the land according to its own rules and customs. The Community was not consulted nor considered by the landowners or the Grahamstown Supreme Court when it ordered the Commonage be divided in 1940.
The Land Claims Commission, Eastern Cape (Commission), investigated the claim and, in 2010, recommended restitution of the land to the Community. Five properties were transferred when the landowners reached a settlement with the Community. Failing to reach settlement with the other land owners, the Commission referred the dispute to the LCC.
The LCC considered whether the Community had a valid claim to the Commonage under the Restitution Act. The Court did not consider the feasibility of restoring the land to the Community, or whether any alternative remedy was appropriate. These issues were not in issue on appeal.
The LCC held 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 practices that had communal rights in land over the Commonage. It held that the Grahamstown Supreme Court order in 1940 had dispossessed the Community of its rights. It therefore granted a declaratory order in favour of the Community.
The landowners thereafter appealed to the SCA on the basis, among others, that the claimed land was unoccupied when it was awarded to the landowners’ predecessors in the 1800s. Any subsequent residents on the Commonage were living under the authority or with the permission of the landowners and neither had nor could have acquired independent rights under the Restitution Act.
The Court dismissed the landowners’ appeal by a majority of four judges to one and upheld the decision of the LCC.
In the Constitutional Court, the landowners argued that the LCC’s and SCA’s approach taken in the courts below to hearsay and historical expert evidence was incorrect. They argued that there was no reliable evidence of a Community possessing rights in the Commonage, or being dispossessed, and that any person living on the Commonage was an employee whose rights in the land were determined by the landowners and Salem’s Village Management Board.
The Salem Community and the Commission argued that the evidence, properly approached, established both that there was a community and that it was dispossessed of rights in the land.
The Association for Rural Advancement, which was admitted as a friend of the Court, presented argument on the correct interpretation of historical and expert evidence in land claims, and on the doctrine of intertemporality – a doctrine that holds that the law which is used to determine whether rights existed historically should be present-day law, and not the law as it existed at the time.
In a unanimous judgment penned by Cameron J, in which Zondo DCJ, Froneman J, Jafta J, Kathree‑Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ concur, the Constitutional Court weighed the historical evidence in the light of the Restitution Act.
It considered the approach to historical evidence, both documentary and oral, in land claims and the role of experts in interpreting and presenting conclusions on such evidence. In this case, where the parties’ experts presented diametrically opposing views, the Court had to consider that understanding history is a value-laden task that requires scrupulous care in acknowledging and taking responsibility for one’s own ideological positioning. The Court assessed the expert evidence using ordinary rules applicable to the assessment of expert evidence, guided by the Restitution Act’s restorative principles of historical justice.
This Court found clear archival evidence of the existence of a community of black people on the Salem Commonage from at least 1878 until 1941. The Community were able to show that they lived on the land and held or acquired customary interests in the land. Evidence from the Community and the landowners established the existence of a leadership structure within the Community and use of the land to practise initiation and other rituals.
The Community’s and Commission’s contention that the same community had lived on the land before 1811 was however tenuous. Even so, the Restitution Act does not require the existence of indigenous rights. It recognises rights in land with encompassing amplitude, including beneficial occupation of and customary interest in the land. The Restitution Act asks for no proof of residence on the land from time immemorial, and does not require use of the land to the exclusion of others.
This Court found that the Community established that its forebears had residence, use of land for agricultural activities and traditional practices, access to firewood and burial rights over the Commonage. This excluded rights in the land on which the Methodist Church and the cricket pitch are situated. Moreover, the Community did not have exclusive occupation or use of the land and would not have been able to alienate part or all of the Commonage.
The settlers’ historical title was also imperfect, since there was no evidence that the sovereign power the governors used to allocate the Commonage existed or, if it did, that it was properly devolved or exercised. But it was clear that the settlers and their successors, too, had acquired and exercised rights over the Commonage for more than a century.
The Court held that the subdivision of the Commonage was effected without consideration for or consultation with the Community living on it. It was therefore a racially discriminatory act of dispossession.
In the result, the Court upheld the order of the SCA, but noted that the entitlements of the landowners, which also developed over more than a century, would be accounted for by the LCC in determining the appropriate remedy. No order was made as to costs.