Johannesburg – The Constitutional Court ruled on Monday that a black community holds a right to certain portions of the Salem Commonage in the Eastern Cape and was dispossessed of the land due to past racially discriminatory practices.

According to the judgment, penned by Justice Edwin Cameron and concurred by nine others, the community had rights – but not exclusive rights – to the commonage.

This after the Salem Party Club and 15 other landowners approached the Constitutional Court for leave to appeal an order of the Supreme Court of Appeal, which confirmed a decision of the Land Claims Court that the first respondents held a right to certain portions of land and the remainder of Farm No. 48 in Salem as they were dispossessed of that right as a result of past racially discriminatory practices.

The community now has the opportunity to approach the Land Claims Court to determine restoration of the land which their forefathers were dispossessed of in 1940.

"The claimants used the land to live on, for grazing and agricultural activities and traditional rites and practices, for access to firewood and to bury their dead. The evidence shows that the Salem settlers used the commonage for grazing and other agricultural purposes, for recreation, for rights of way and for letting out to others," the judgment reads.

"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 of the Land Claims Court."

Oral evidence

In his judgment, Cameron said the respondents were 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."

Legal Resources Centre (LRC) spokesperson Claire Martens in a statement following the ruling said the centre welcomed the judgment "as an interpretation of the Restitution of Land Rights Act that is just and fair".

"The LRC 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 have exercised customary practices," she explained.

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"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."

Martens explained that the case concerned a group of Xhosa people who settled on and used the Salem Commonage before 1913.

"The commonage was also being utilised by a group of white settlers, represented by the Salem Party Club and various farmer/landowner parties. In 1940, the commonage was subdivided, depriving the Salem community of their rights to the land. Evidence shows that some of the community left, while some were employed as labour tenants.

"The descendants of the Salem community are the land claimants who made a land claim in 1998, with the Salem Party Club and others contesting the claim."

Rights not dependent on landowners

The Constitutional Court had to decide whether the first respondents had rights to the land – whether they were a community that held a right in land of which they were dispossessed through racially discriminatory laws or practices.

"The Constitutional Court found, like in the LCC (Land Claims Court) and SCA (Supreme Court of Appeal), that the Salem community did satisfy these requirements. Evidence was provided in the lower courts through oral testimonies, as well as interpretations by academics of the history of the Salem Commonage," Martens said.

"It shows that from 1878, a growing community of amaXhosa were living on the commonage and utilising it. Further, this community constituted a 'community' or group as required under the Restitution Act when making a land claim, as they had interacted with each other over a long period of time, forming rules and rituals, such as initiation ceremonies.

"The Constitutional Court also found that the rights to the land derived from the use of the land and their self-regulation in this respect – and not from the white settler's actions or consent. The community that lived at and on the Salem Commonage after 1878 utilised the commonage in accordance with its traditional rules and conventions."

The usage was in accordance with customary law, which treated unoccupied land as a shared resource, available for utilisation.

In turn, she said, it bestowed the community with rights in and over the commonage "not dependent on, nor did it derive from, consent from the landowners".

"Furthermore, the court found that the subdivision of the land without paying attention to or without consultation with the Salem community was racially discriminatory."

Photo: File, Lerato Sejake, News24

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