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[2016] ZASCA 203
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Salem Party Club and Others v Salem Community and Others (20626/14) [2016] ZASCA 203; [2017] 1 All SA 712 (SCA) (13 December 2016)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20626/14
In
the matter between:
THE SALEM PARTY CLUB
FIRST
APPELLANT
THE LINDALE
TRUST SECOND
APPELLANT
HENDRIK JOHANNES
NEL THIRD
APPELLANT
CUAN
KING FOURTH
APPELLANT
JOHATHAN
GOTTFRIED
STANDER FIFTH
APPELLANTS
& MARIA PAULINA
STANDER
DAVID CRAWFORD
GOWANS SIXTH
APPELLANT
WILLEM CHRISTIAAN
LODEWYK SCHOONBEE SEVENTH
APPELLANT
EZRA CHRISTIAAN
SCHOONBEE EIGHTH
APPELLANT
KIKUYU
LODGE NINTH
APPELLANT
JONATHAN FLETCHER
HARRIS TENTH
APPELLANT
PATRICK GRANT
BRADFIELD ELEVENTH
APPELLANT
E S A LODGES (PTY)
LTD TWELFTH
APPELLANT
SEVEN
SUMMITS
PROPERTY THIRTEENTH
APPELLANT
INVESTMENTS (PTY) LTD
KENNETH JAMES SEYMOUR
RICHARDSON FOURTEENTH
APPELLANT
VARYLYNN SHARRON
HILL FIFTEENTH
APPELLANT
PHILLIP GEOFFREY
AMM SIXTEENTH
APPELLANT
PATRICK
GRANT
BRADFIELD
SEVENTEENTH
APPELLANT
and
THE SALEM
COMMUNITY FIRST
RESPONDENT
THE
GOVERNMENT OF THE REPUBLIC SECOND
RESPONDENT
OF SOUTH AFRICA
THE
MINISTER OF RURAL DEVELOPMENT THIRD
RESPONDENT
AND LAND REFORM
THE
DEPARTMENT OF RURAL DEVELOPMENT FOURTH
RESPONDENT
AND LAND REFORM
THE
CHIEF DIRECTOR OF THE DEPARTMENT FIFTH
RESPONDENT
OF LAND AFFAIRS
THE
PROVINCIAL OFFICE OF THE DEPARTMENT SIXTH
RESPONDENT
OF RURAL DEVELOPMENT
AND LAND REFORM
THE MAKANA
MUNICIPALITY SEVENTH
RESPONDENT
THE REGISTRAR OF
DEEDS EIGHTH
RESPONDENT
THE LAND CLAIMS
COMMISSION EASTERN CAPE NINTH
RESPONDENT
Neutral
Citation:
Salem Party Club v Salem
Community
(20626/14)
[2016] ZASCA 203
(13 December 2016)
Coram:
Cachalia, Seriti, Pillay, Mbha and Dambuza JJA
Heard:
19 February 2016
Delivered:
13 December 2016
Summary:
Land claim to the Salem Commonage under
Restitution of Land Rights Act 22 of 1994 (the Act): whether
requirements for restitution established: Hearsay and expert
historical
evidence: proper approach to and admissibility of:
approach to evidence as decreed in the Act to be applied in a manner
consistent
with the spirit and purpose of the Act.
ORDER
On
appeal from:
Land Claims Court,
Grahamstown (Sardiwalla AJ sitting as court of first instance),
judgment reported
sub nom
as
Salem Community v Government of the
Republic of South Africa and others (Regional Land Claims Commission,
Eastern Cape as referring
party)
[2015]
2 All SA 58
(LCC):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Cachalia
JA (dissenting)
Table of Contents
Introduction
......
4
Synopsis of the
Evidence
..... 11
Historical
Background
...... 13
The period
1780-1820
...... 13
The period
1820-1878
...... 20
The period
1878-1900
...... 27
The period
1900-1942
..... 31
Conclusions on
the historical background
...... 52
The Viva Voce
Evidence...... 55
Mr Vincent
Paul......
55
Professor Martin
Legassick
...... 63
Professor
Hermann Giliomee
...... 72
Professor
Legassick’s Supplementary Response
.....
77
The claimants’
evidence
...... 78
The landowners’
evidence
...... 92
The Proper
Approach to the Evidence
...... 115
The arguments
raised by the Commission and the claimants regarding the nature of
this appeal.....
116
The claims
advanced by the Commission and the claimants
.....
118
The applicable
principles relating to the evaluation of evidence in this matter …...
124
Evaluation of
the Evidence
..... 128
Evaluation of
the oral evidence
...... 128
Evaluation of
the expert testimony
...... 138
Determination of
the issues
...... 139
The Legal
Principles Pertaining to Loss of Indigenous Title and Their
Application......142
Were the
forebears of the claimants a community?......147
The nature and
content of the rights in issue
...... 153
Was there a
dispossession?..….156
A racially
discriminatory law or practice?
...... 158
Conclusions.
…..1600
The Validity of
the Lodgement …..162
Costs..... 164
The Second Judgment.....
165
Judgment delay..... 169
Second Judgment (Pillay
and Dambuza JJA concurring Seriti and Mbha JJA)..... 171
Introduction
[1]
This appeal, from the Land Claims Court (the LCC), concerns a dispute
over land rights in respect of a portion of land once
known as the
Salem Commonage. It is situated some 20 km south of Grahamstown in
the Eastern Cape, and measures 7 698 morgen
in extent. It is
properly described as: ‘Remainder of the farm Salem, No. 498
and portions 1 to 3, 7, 8, 13 to 17, 19 to
33, 35, 36 and 38 of the
farm Salem No 498, district of Albany’.
[2]
The first appellant and 16 others – the affected landowners –
appeal the judgment of the LCC which had found that
a ‘community’
as defined in s 1 of the Restitution of Land Rights Act 22 of 1994
(the Act) existed, and was dispossessed
of ‘a right in land’
after June 1913 as a result of past racially discriminatory laws and
practices in terms of s 2
of the Act. This appeal is with leave of
the LCC.
[3]
The word ‘commonage’ comes from England and describes the
‘condition of land held in common, or subject to
rights of
common’. The ‘right of common’ usually refers to
‘the right of pasturing animals on common land’,
[1]
but is not restricted to this purpose. More specifically it denotes
an ‘estate or property held in common’.
[2]
[4]
The Commonage was part of a bigger piece of land allotted to one of
several groups of between 4000-5000 British settlers by
the British
Colonial Government in the first half of the nineteenth century. They
settled in different locations in the Zuurveld,
a part of which
became the district of Albany, between the Bushmans and lower Fish
Rivers, to the west and east respectively, and
became known as the
1820 settlers.
[5]
One of these groups was led by Mr Hezekiah Sephton. They settled in
Salem in the vicinity of the Assegaaibos River, and were
known as the
Salem Party or the Salem Group. They established farms and used the
Commonage for their common benefit. Some of the
appellants descend
directly from the original settlers while others bought their farms
from the original settlers or their descendants.
These farms are now
used for commercial farming. For present purposes it will be
convenient to refer to the settlers and their
successors in title as
the landowners.
[6]
The first to ninth respondents (excluding the seventh and eighth
respondents) oppose this appeal, but only the Regional Land
Claims
Commission (the Commission), and the Salem Community filed heads of
argument. The community comprising some 152 persons
claim to be
descendants and beneficiaries of Xhosa speaking people, who it is
alleged occupied the Commonage, but lost their rights
to this land
when they were dispossessed. The nature of the alleged dispossession
shifted a number of times during the course of
the proceedings, but
at the time of the lodgement of the claim, it was said to have
occurred through an order of the Eastern Districts
Division of the
Grahamstown Supreme Court), granted in 1940, subdividing the
Commonage between the landowners. I shall refer to
this ‘community’
as the claimants.
[7]
The claimants lodged their claim in 1998. The Commission appointed
Mr Vincent Paul as its project officer to investigate
the claim
in terms of s 12 of the Act. He compiled a report as a result of
which the Commission validated the claim. The report
was also the
foundation of the Commission’s referral of the claim to the LCC
under s 14(1) of the Act. In terms of s 14(2)
(d)
the
Commission sought relief, amongst others, for:
(i)
the rights of the claimants to be ‘upgraded to that of full
ownership’, and for
(ii)
full ownership rights to the Commonage to be restored to the
claimants through a legal entity that will be created for this
purpose.
[8]
It is implicit in the unusual form of relief sought by the Commission
that, in its view, the forebears of the claimants could
not have had
full ownership rights to the Commonage. There could be no other
reason why the Commission asked the LCC to ‘upgrade’
the
rights of the claimants to full ownership rights. Nonetheless, as is
evident from the pleadings set out below, full ownership
rights are
claimed, an issue to which I shall return.
[9]
The referral document, the claimants’ statement of claim (which
admits all the averments in the referral document), and
the further
particulars furnished in response to the landowners’ request
for further particulars, constitute the material
allegations upon
which the claim is founded. The essential averments are difficult to
follow and in some instances contradictory.
But, as far as I can
glean, they are the following:
(i)
The claimants are a ‘community’ of black families whose
forebears traditionally occupied the
entire
Commonage from the
1800s.
(ii)
They acquired ‘ownership rights, residential rights, grazing
rights, and the right to use land for agricultural purposes,
access
to firewood, burial sites and the use of land as Commonage for the
entire community’;
(iii)
In addition to the rights mentioned above, the community also
occupied the Commonage beneficially for more than ten years.
(iv)
The rights were acquired from a Chief Dayile – the last chief
of the community – and were exercised in accordance
with shared
rules of usage under traditional law and the so-called location
rules.
(v)
The Natives Land Act 27 of 1913 was passed to prohibit blacks from
owning land outside of scheduled areas, and the Commonage
was not a
scheduled area.
(vi)
In 1926 the community, which then consisted of several hundred, was
‘herded’ into a location on the Commonage and
placed
under the control of a ‘native superintendent’.
(vii)
The subdivision of the Commonage was facilitated through the
implementation of s 49 of Ordinance 10 of 1921 (erroneously referred
to as s 47) and the Natives (Urban Areas) Act 21 of 1923, which
entitled the Native Commissioner to restrict and control the rights
of the black community;
(viii)
In 1940 the Village Management Board, which represented the
landowners, who owned the adjoining farms in the village of Salem,
applied to the Supreme Court in Grahamstown to subdivide the
Commonage and have it transferred into the names of the individual
landowners.
(ix)
The court granted the application against the background of the
racially discriminatory legislation then in existence, which
formed
the basis of the dispossession of the community’s rights over
the Commonage. Most of the land was bought by white
farmers under the
Native Trust and Land Act 18 of 1936.
(x)
Pursuant thereto the location, which was then occupied by 500
members, was disestablished in 1941.
(xi)
The dispossession of the community’s rights began in 1947 and
continued until the 1980s.
[10]
The landowners submitted a comprehensive response to the referral
document in which they set out the history of what occurred
on the
Commonage from 1820, when the settlers arrived in Salem. It will
become apparent from the way the proceedings unfolded in
the LCC, and
from its findings, that a proper understanding of this history is
necessary. I discuss this later.
[11]
For now, it is sufficient to set out the bare bones of their defence:
When the Sephton Party of the 1820 settlers arrived in
Salem, there
were no other people, black or white, occupying this land. The
Colonial Government granted the land, which included
the Commonage,
to these settlers. The settlers were given allotments of erven on
which they built their homes and cultivated their
crops. The
Commonage was strictly limited to the grazing of their livestock. No
cultivation of crops or residential accommodation
was permitted. The
landowners zealously protected their collective interest in the
Commonage. The effect of this was that each
settler owned his
allotted erven and an undivided share of the Commonage.
[12]
In time the landowners individually began to employ labourers. And
later, some of those labourers and their families were permitted
to
occupy a small portion of the Commonage so long as they remained in
employment. In return they paid a rental to the Salem Village
Management Board (the Board), a body the landowners created to manage
their collective interest in the Commonage. In some instances
the
owners permitted their employees to graze their own cattle as part of
the owner’s quota of grazing cattle.
[13]
The employees, therefore, never acquired any right in land over the
Commonage, whether traditional or otherwise. Nor did they
constitute
a ‘community’ who had any right to this land.
[14]
The landowners sought a court order to subdivide the Commonage in
1940 because of disputes between themselves over its usage.
The order
was not sought or granted as a result of any racially discriminatory
law or practice. Its effect was to end the joint
ownership of the
Commonage and to vest individual ownership of part of the Commonage
in each landowner.
Synopsis of the Evidence
[15]
The following witnesses testified on behalf the Commission:
(i)
Mr Vincent Quba Paul, whose investigation and report formed the basis
of the Commission’s referral to the LCC, was called
to explain
the grounds for validating the claim.
(ii)
Professor Martin Legassick,
[3]
a historian, prepared two reports, and testified that the claimants:
(a) had ‘indigenous rights as descendants of Xhosa who
occupied
the south-eastern Zuurveld before it was colonised by European
settlers’, and (b) ‘independently of their
claim to
indigenous rights’, had built up ‘rights to land and
cultivation’ because their forebears occupied a
location called
‘Salem commonage’ from 1879 to1884 until they were
dispossessed and evicted as a result of a racially
discriminatory
practice in the 1940s.
(iii)
Mr Garth Chandler, a land surveyor, prepared a report for the
Commission, as did Mr Adie Gerber on behalf of the landowners.
Whilst
Chandler testified, Gerber did not. They prepared a joint minute,
after examining aerial photographs showing the locations
of all the
traditional dwellings in the greater Salem area in 1942. They
observed that the traditional dwellings on the Commonage
had pathways
connecting them to commercial farms indicating that that their
occupants may have been farmworkers.
[16]
The claimants called two witnesses. The first, Mr Msele Nondzube, is
the claimants’ primary witness and it is largely
on his
evidence that their case rests. Importantly, his was the only
testimony to support the averment that the claimants derived
their
rights in the Commonage through Chief Dayile. The second witness,
Mr Ndoyityile Ngqiyaza, testified that he was born
on the
Commonage where his father cut firewood for sale and also ploughed
the land. After the land was demarcated following the
court order in
1940 his father was compelled to work for one of the farmers.
[17]
On behalf of the landowners, Professor Hermann Giliomee, also an
historian, submitted two reports. In his testimony he confirmed
his
conclusions, which were diametrically opposed to Professor
Legassick’s, that there were no grounds for the claimants
to
support the claims to indigenous title or that they had ‘built
up’ rights as a community in the latter part of the
nineteenth
century.
[18]
The landowners called six other witnesses to refute the claimants’
case that an independent community of black people
lived on the
Commonage with land rights. They were Messrs David Mullins, Spencer
Hill, Cuan King, Albert Van Rensburg and also
Mrs Alice Bradfield and
Mrs Ethel Page. Their evidence was to the effect that Africans, who
resided on the Commonage, did so as
employees of the landowners, and
not as an independent community, who determined their own rules for
the allocation and use of
land rights.
[19]
Material on the history of the period in issue, including historical
texts upon which Professors Legassick and Giliomee relied
to support
their views, forms part of the record. The parties also prepared a
core bundle of documents that were used at the trial
without proof of
their authenticity. The historical material and documents provide the
factual and contextual background to the
disputes in this matter.
Where I have relied on other historical material, this is clearly
referenced.
Historical Background
[20]
Although it was not the claimants’ pleaded case, the LCC found
that ‘the Xhosa’ originally occupied the Zuurveld,
including the Commonage, in the eighteenth century and acquired
indigenous rights to this land then. The claimants, it found,
regarded themselves to be an integral part of those original
occupants and thus retained their indigenous rights.
[4]
Consequently, it is necessary to begin this potted historical
narrative in the latter part of the eighteenth century.
The period 1780-1820
[21]
From 1652 until 1795, the Dutch were the colonial masters of the
Cape, including, eventually the area with which this case
is
concerned. In 1795, Britain took control of the Cape but returned it
to the Dutch in 1803, only to occupy it again in 1806.
The Cape
remained a British colony until 1910 when the Union of South Africa
was established by the South Africa Act of 1909.
[5]
[22]
From about 1780 the Cape Colony and the Xhosa had conflicting claims
to the area between the Great Fish River to the east and
the Sundays
River to the west. The area included the Zuurveld where the
Gqunukhwebe, a Xhosa tribe, was firmly established since
about 1750,
first under Tshaka and then under his son Chungwa.
[6]
Chungwa’s behaviour, like those of other chiefs further to the
east, was motivated by a ‘desire to maintain his autonomy
while
maintaining his herds’.
[7]
[See
PDF download for image]
[23]
Later, Dutch farmers (Boers) began moving into the area and occupied
loan farms for which they paid a rental to the colonial
authorities.
This, they claimed, gave them rights to this land. By about 1790,
there were 148 Boer families (about 1000 people)
living on these
farms.
[8]
There was on-going friction between the Xhosa and Boers regarding
grazing, land possession and cattle raiding. Neither Xhosa nor
Boer,
it seems, were wholly innocent or wholly culpable.
[9]
[24]
Between 1779 and 1799 three Frontier Wars were fought between Boers
and the Xhosa without any permanent resolution.
[10]
[25]
In 1793, Ndlambe, the Regent for the Xhosa nation, had sided with a
Boer commando led by Barend Lindeque to drive all the Xhosa
across
the Fish River. In 1797, Ngqika became Paramount Chief of the Xhosa.
Both Ngqika and Ndlambe were aware that the Cape Colony
considered
the Fish River to be the boundary dividing it from Xhosa territory
further to the east. Ngqika respected that boundary
and undertook to
prevent his followers from crossing it. There is also evidence of
Ndlambe having urged minor chiefs to withdraw
across the Fish River
to maintain peace with the Colony. Ndlambe would later rebel against
Ngqika, who had moved west of the Fish
River, and claim part of the
Zuurveld.
[11]
[26]
By about 1799 the Zuurveld Xhosa were occupying the area along the
banks of the Sundays and Bushmans Rivers.
[12]
But there is no indication in the historical material placed before
us – other than in the evidence of Nondzube – of
any
Xhosa occupation of the area that is the subject of the present
dispute. The papers, however, show that one of the loan farms
occupied by a Boer, Mr Barend Bouer in 1785, was on land in the
vicinity of where the Sephton Party later settled. It seems that
Bouer had moved upstream along the Assegaaibos River, before their
arrival.
[13]
[27]
In July 1786 the boundaries of the Graaff-Reinet District were
proclaimed.
[14]
The eastern
boundary of the new district was the same as the eastern frontier of
the Cape Colony, which stretched from the coast
up to the Great Fish
River, to the confluence of the Fish River and the Baviaans River,
and across the Winterberg to the Tarka
River. This included the
Zuurveld, all of which was now part of the Dutch Colony.
[15]
[28]
In 1806 the British annexed the Dutch Colony and the area it
encompassed. They thus acquired sovereignty over the area, including
the Zuurveld. But this act of annexation did not, in and of itself,
extinguish any of the land rights the Xhosa or Boer inhabitants
may
have had at the time.
[16]
[29]
It is important to be cognisant that strife between Xhosa and Boer
was not the only conflict in the Zuurveld.
[17]
The Boers were dissatisfied with various aspects of British control
over the territory. This dissatisfaction resulted in two Boer
rebellions in 1799 and 1801, and one later in 1815 at Slagters Nek,
on the Baviaans River.
[18]
And among the Xhosa too, there were disputes over land. Chungwa, for
example, clashed with Ndlambe, who had taken over his old
grazing
lands along the Bushmans River.
[19]
There is, however, no evidence of these disputes extending to Salem.
Chungwa’s name is today associated with ‘Conga’s
Kraal’, where he lived, and is situated about 50 to 60
kilometres from Salem.
[20]
[30]
In 1811 the Cape Colony, under whose jurisdiction the Zuurveld now
fell, decided to end the perpetual conflict there. To this
end it
implemented a frontier policy aimed at establishing a fixed and
regulated frontier between black and white.
[21]
[31]
Lieutenant Colonel Graham was appointed to perform this task, which
he undertook with concentrated brutality. Supported by
an army of
British troops, frontier farmers and a regiment that included
Khoikhoi soldiers, the entire Zuurveld was cleared of
all Xhosa
presence in what became known as the Fourth Frontier War of
1811-1812.
[22]
Chungwa was
killed. An estimated 20 000 Xhosa, were driven east, across the
Fish River. A few hundred were killed, and many
cattle seized in the
operation. The Fish River was fortified to keep the Xhosa out and it
became the boundary between the Cape
Colony to the west and the Xhosa
to the east. With the expulsion of the Xhosa by force of arms they
were dispossessed of the land
they had occupied for about 60 years.
As I explain below, this expulsion would have terminated whatever
‘right in land’
they may have had.
[23]
The policy of racial separation had now begun in earnest.
[24]
[32]
In 1817 there was a meeting called by Governor Lord Charles Somerset
at which Ngqika and Ndlambe were present. Somerset’s
purpose
was to ‘renew the friendship between the Colony and the Xhosa’,
but it seems that the main objective was to
stop ‘the thieving
of livestock and the murder of colonists that sometimes accompanied
it’. Ngqika made no claim to
land to the west of the Fish
River. But while acknowledging his authority he pointed out that he
had no power over other chiefs.
And an impossible burden would be
placed on him if he were to be held accountable for the actions of
others. He, however, undertook
to do his best with his own
people.
[25]
[33]
In 1819 a new Frontier War – the Fifth – began. It
appears to have been triggered by the unauthorised action of
Lieutenant Colonel Brereton, the newly installed military commander
at Grahamstown. He led a commando to the east and raided 23 000
cattle from the Xhosa. They retaliated, determined to recover their
cattle, by invading the colony and besieging Grahamstown in
1819. But
they were repelled, and driven out, this time across the Keiskamma
River, further to the east of the Fish River. The
area between these
rivers became ‘ceded’ or ‘neutral’ territory,
which neither Xhosa nor white colonists
were allowed to occupy.
[26]
Somerset secured this arrangement with Ngqika, the paramount chief of
all Xhosa.
[27]
[34]
It was the policy of the then Colonial Government under Somerset to
create a buffer area between Xhosa and the white inhabitants
which
included the Zuurveld, in which British settlers would soon settle.
The ‘ceded’ territory would form a part of
this buffer.
[35]
The plan to populate the Eastern Cape, and particularly the Zuurveld,
with British settlers was motivated by the need to strengthen
the
eastern boundary separating the colonists from the Xhosa. This
involved establishing a denser agricultural population of whites
as
there were insufficient numbers of Boers there. And with Britain
beset by its own problems of poverty and unemployment, there
were
enough people willing to travel to the southern tip of Africa to
start a new life here. In total, some 54 settler parties,
numbering
between 4000-5000 people were settled all over the Zuurveld.
[28]
By the end of July 1820, the Zuurveld, now the district of Albany
with its headquarters in Grahamstown established in 1812, and
depopulated of all Xhosa presence, bore no resemblance to what it had
looked like a decade earlier.
The period 1820-1878
[36]
The Sephton Party settled on the piece of land, measuring 5914
morgen, or 11828 acres in extent allocated to them, which they
named
Salem.
[29]
This included the
Commonage. They soon erected a civic centre from the dilapidated reed
and wattle building Bouer had left behind.
In August 1820, a Sunday
school was started.
[See
PDF download for image]
[37]
The settlers soon took control of the Commonage. A minute of a
meeting of the Sephton settlers in 1824 recorded that a total
of 74
shares or subdivisions were provided giving each subdivision rights
over 160 acres of the Commonage. Land was allotted to
the Minister of
the Church for the erection of a chapel, a burial ground and a
church. Land was also made available for a school.
The right of
pasturage was limited to ten head of cattle and ten sheep per 100
acres and a further five sheep for every head of
cattle withdrawn,
and with two steers (until two years old) reckoned as one head of
cattle. The wood, reeds and thatch on the Commonage
not included in
homesteads or enclosures were to be common to all for home
consumption and were not to be sold without the consent
of the party
of settlers. If so disposed the profits or produce was for the
general benefit of the settlers. Natural springs were
open for the
use of all for culinary purposes and had to be accessible to all.
Provision was also made for roads. During November
1826 the colonial
authority surveyed the land allotted to the settlers, thus
demarcating the boundaries of the settlement.
[38]
Other than reports of cattle theft by ‘natives from across the
border’ there was no contact between settlers and
Xhosa-speaking people in the early years.
[30]
The apparent tranquillity of the Albany District was disturbed in
December 1834 with news of huge Xhosa armies sweeping into the
colony, provoking panic amongst the settlers. Grahamstown, and the
nearby villages of Bathurst and Salem became ‘hastily
improvised laagers’. The villagers were inadequately armed and
ill-prepared.
[31]
The Sixth Frontier War had begun.
[39]
In Bathurst the invaders captured cattle, and the villagers fled in a
convoy. In Salem it was reported that one of the settlers
persuaded
the raiders to leave them be in return for food provisions. The Salem
settlers were not harmed, and the attackers moved
on. No part of the
Albany District was occupied. The war finally ended some nine months
later with the Xhosa again suffering heavier
casualties than the
British.
[32]
[40]
Mostert observes that the war hardened the attitudes of the settlers
and ‘hastened the evolution of what is South Africa’s
modern society and the aggravated racism of the British settlers was
to be a significant factor in it, with repercussions throughout
the
nineteenth century and into the twentieth century’.
[33]
In all likelihood the Salem settlers would also have had this
outlook, which would have extended to the Africans with whom they
would later enter into master-servant relationships towards the end
of the nineteenth century.
[41]
On 15 December 1836 the first portion of the Commonage was formally
granted to the settlers on a system known as perpetual
quitrent,
while the second portion was granted to them on 23 November 1847, on
the same terms. The second portion was granted in
terms of the
provisions of Ordinance 15 of 1844. It provided for extensions of
land grants to be registered in the Land Registers
of the Colony,
thus giving the settlers registered title to the erven and shares in
the Commonage.
[42]
Such land grants were hereditary, and owners had the right to sell
the erven with their share of the Commonage. The purpose
was to give
security of tenure to the farmers and to encourage them to develop
the farms. Farms were marked by beacons and registered
as diagrams.
Rents were adjusted according the size and quality of the land.
[34]
[43]
In 1848, the security of tenure of the Salem settlers was further
entrenched when their quitrent rights were converted into
freehold
rights after all rental payments had been redeemed. The allotment of
the Commonage to the Salem settlers entitled each
owner of an erf to
an undivided share in the Commonage. Freehold title therefore gave
the settlers permanent and absolute tenure
over the land with freedom
to dispose of their erven and shares in the Commonage, and is a
pivotal factor in the resolution of
the issues in this appeal.
[44]
Almost 100 years later, in 1940, the Grahamstown Supreme Court said
that the grant contemplated the permanent settlement of
settlers at
Salem. It was of grazing land to the Salem Party of erf-holders to be
held communally, and if a person ceased to be
an erf-holder, he
ceased to have any right in the Commonage.
[45]
The settlers formed a committee to manage their collective interest
in the Commonage (the Committee).
[35]
Minutes of meetings reflect constant supervision of its usage. Thus
the Committee took steps to ensure that the owners of the homesteads
did not erect buildings on the Commonage (1856), ensured that whoever
took wood for their private use was limited to the quantity
and
levied a cost per load (1861) and stopped cattle grazing by
inhabitants of a nearby mission station, Farmerfield (1862). The
Committee also formulated regulations ‘for the better
management of the Salem lands and the Commonage’. The proposed
regulations included determining the numbers of livestock the owners
would be entitled to graze (1866). The Committee also leased
a small
portion of the Commonage measuring two acres for a period of five
years (1887).
[46]
The settlers used the Commonage for other collective purposes as
well. In 1832 a Church was built. A cricket ground was established
in
1844, and is still used today. Much later, possibly in 1894, a
community hall was built. A cattle-dipping tank was also built
in
1912. All of these events took place before 1913, which is the
cut-off date for claims under the Act, and undermines the claim
by
the claimants to rights over the entire Commonage.
[47]
During this period three more Frontier Wars – the Seventh in
1846, the Eighth in 1850, and the Ninth in 1877 –
were fought.
None of these wars concerned land occupied by the 1820 settlers. The
Seventh took place largely in the Amathole Mountains,
far from the
disputed area in this case, and there is no evidence that any of the
fighting occurred in Salem or its surrounds.
The Eighth was largely
in British Kaffraria – the area between the Keiskamma and Great
Kei Rivers – east of the Albany
District and the ‘ceded’
territory. There was, however, some conflict within the ‘ceded’
territory, but
there is no evidence that it crossed over the Great
Fish River and affected any part of the Zuurveld, including Salem.
The Ninth
and final Frontier War resulted in a severe defeat for the
Xhosa after which their leaders fled into the Amathole Mountains, and
further north.
[36]
After those defeats t
he
Xhosa were made to surrender even more territory to the British.
So
ended, Mostert observes, 100 years of war between the Xhosa and the
Cape Colony, and led to the military fall and subjugation
of the
Xhosa nation.
[37]
[48]
From the time of the arrival of the 1820 settlers until 1878, almost
60 years later, there is no evidence of any significant
African
presence in Salem. This is hardly surprising as the policy of the
Colonial Government was to restrict their entry into
the area under
its control except for the purpose of obtaining employment. This
policy was the precursor to the ‘pass laws’
introduced
during the Apartheid era.
[49]
The policy to restrict African entry into the Colony except to obtain
employment was explicitly stated in the ignominiously
named Kafir
Employment Act 27 of 1857. This law was passed in the aftermath of
the tragic events of 1856 -1857 – which the
LCC erroneously
thought was a Frontier War – when the Xhosa heeded the delusion
of prophetess Nongqawuse to kill their cattle
in the belief that the
British settlers would be driven into the sea, and a new prosperity
would arise. Huge numbers of Xhosa people,
who heeded her call, died
of starvation while many others were forced to seek employment in the
Cape Colony.
[38]
[50]
By the late 1860s there were more than 500 Africans living with 985
cattle on 21 farms at Assegaai Bush, approximately 40 km
from Salem,
while at Kierage there were some 2 500 living on 39 farms. Many
would have been labour-tenants or rent paying
tenants, while
sharecropping between Africans and farmers, who had run into
financial difficulties, was also prevalent.
[39]
There is no evidence of Africans living there in any other capacity.
The period 1878-1900
[51]
Subsequent developments in Salem and on the Commonage in particular,
must therefore be considered against the background of
the Colonial
Government’s policy as it applied to Africans at the time.
[52]
As Africans began to seek employment and live in areas now under the
jurisdiction of the Colonial Government, laws were passed
to regulate
this development and to prevent illegal squatting. The Native
Locations Act 6 of 1876 and its amendment by Act 8 of
1878 were the
initial steps in this direction. They applied to the dwellings of
‘Natives’, defined as ‘Kafirs
[Xhosa], Fingoes,
Basutos, Hottentots, Bushmen and the like’, who were not in the
employ of the owner of the private property
on which the dwellings
were erected. An owner of private property could establish a ‘native
location’ – defined
as exceeding five huts within one
square mile – only with the consent of the Governor. An
inspector of native locations was
to be appointed to ‘supervise
and manage’ such locations. The inspector’s functions
included collection of a
hut tax from each occupier in the location.
Any livestock in the location had to be registered, and if not, was
liable to be impounded.
[53]
As the influx of and the need for African labour increased these laws
were repealed and replaced by the Native Locations Act
37 of 1884,
which provided for the better supervision of these locations and the
more efficient collection of hut taxes. The definition
of a ‘Native
Location’ was relaxed to cover any number of dwellings on any
farm occupied by three or more male adults,
instead of five
dwellings, as its predecessors had provided for. The Governor’s
consent was still required for the establishment
of a ‘Native
Location’.
[54]
This statute, therefore, restricted the occupation of land by
Africans on private property, which included common land such
as the
Commonage in issue in this case. It is apparent that any rights the
occupants derived from residing in a ‘Native Location’
–
probably as tenants – could only be acquired through agreement
with the owner of the private property on which the
location had been
established. Some of these tenants may have been what historian
Professor Colin Bundy has referred to as ‘squatter-peasants’,
who had entered into leases with farmers to farm a plot of land so as
to avoid wage labour.
[40]
[55]
The Village Management Boards Act 29 of 1881 provided for the
establishment of management boards to regulate villages and
communities such as in Salem. Section 19 provided for:
‘
the
management and protection of all common pasture lands and the
preservation of all vegetation thereon, and the fixing of the
number
and description of any live-stock any inhabitant shall be allowed to
keep and depasture thereon . . . or . . . the
impounding of all
animals trespassing on such common lands’.
Pursuant
to this Act the Salem Village Management Board (the Board) was
established to ensure proper control over the Commonage.
In effect it
continued to function as its predecessor, the Committee, had done. It
is beyond dispute that by virtue of the power
vested in the Board it
exercised exclusive control by law over the Commonage on behalf the
landowners.
[56]
The first indication of any African presence in Salem is in a report
on the ‘Returns of Natives, Stock etc’ of
the Inspector
of Native Locations for the District of Lower Albany. The report
includes the locality, the name of the proprietor,
number of huts on
each farm, population size and livestock. The first report compiled
in 1878 recorded that there was one dwelling
on the Commonage with
three people residing there without cattle. There were, however,
significantly more Africans and huts on
some of the landowners’
farms; for example there were eight huts, 41 Africans and 68 cattle
on Mr Hill’s farm. Throughout
the district and in Salem there
were 322 huts and an African population of 1533.
[57]
The Inspector continued to render returns for Lower Albany until the
end of August 1884, when he reported 24 huts, 130 people
and 70
cattle on the Commonage. This was his last report because the
management of the Commonage was now, in his words, ‘under
the
Village Management Act’. In other words the management of the
Commonage, including the collection of hut taxes, was henceforth
the
responsibility of the Board. It must follow that any ‘right’
Africans may have had to reside in a hut on any of
the erven or on
the Commonage could only have been derived through agreement with the
landowner or the Board.
[58]
There is, however, no evidence of what occurred on the Commonage over
the following 20 years. But some indication of what may
have happened
may be gleaned from Fiona Vernal’s study of the Farmerfield
Mission, which was close to Salem.
[41]
Concerning the period 1884-1916, she writes that Farmerfield tenants
faced the same economic woes as other Africans in the Albany
District. This, together with pressures on Africans to support the
British after the outbreak of the South African War in 1899
caused
thousands to leave Albany creating a temporary labour shortage.
[59]
But Albany offered few opportunities for economic advancement and no
residential options aside from white owned farms or overcrowded
locations. This situation, commented the civil commissioner for the
Albany District in 1899, ‘does not lend itself to the
improvement of the native who can never become more than a servant or
tenant at the pleasure of a landlord’. And that other
than in
African locations on the outskirts of Grahamstown, ‘there is no
place where the native can make himself a permanent
home,
consequently there is little room for improvement’.
Dispossessed of land and too poor to purchase any, Vernal continues,
Africans sought employment on white farms and entered into
sharecropping arrangements to make ends meet. It is likely that these
conditions were generally prevalent in the district.
The period 1900-1942
[60]
By the turn of the twentieth century labour requirements of white
farmers had changed and the policy of prohibiting their employees
from residing in locations on their properties began to hamper them.
The Native Locations Act 37 of 1884, which gave effect to
that
policy, was repealed and replaced by the Private Locations Act 32 of
1909. Although this Act did not apply to the Commonage,
which was
administered under the Village Management Act,
[42]
its paternalistic tone and policy objectives were to be mirrored in
the location regulations promulgated for the Commonage a decade
later. In addition, it was possible for the Governor to extend the
operation of the Private Locations Act to areas such as the
Commonage,
[43]
though this never happened.
[61]
The Private Locations Act had as it general purpose to ‘regulate
the residence of natives on private property in rural
areas in the
Cape Province’.
[44]
It therefore provided for labour tenants to reside in ‘private
locations’ established on the farms with the consent
of a local
magistrate. This would allow farmers ‘to keep upon their farms
a certain number of men in addition to their continuous
employees’
in order to meet their seasonal labour requirements. But each
application to establish a private location would
be carefully
scrutinised so as to prevent ‘any large influx of natives as
squatters into a European farming area’.
Among its other
purposes was to prevent or minimise ‘the evils arising from the
system known as “Kaffir Farming”
. . . and preventing
native residents from becoming a nuisance to neighbouring
landowners’.
[45]
[62]
The Board continued to exercise control over the Commonage under s 19
of the Village Management Act. A letter from the Colonial
Secretary
to the Board on 7 November 1906 pertinently pointed out that the
right of pasturage belonged only to the ‘inhabitants’,
which both Professor Legassick and Professor Giliomee accepted was a
reference to the landowners. Another letter from the Colonial
Secretary’s Law Department on 19 December 1907 regarding the
fencing off of the Commonage warned that this would endanger
the
‘commonage rights’ of other title holders. In 1910 the
Board made regulations pertaining to the presence of dogs
on the
Commonage, demonstrating its active involvement over a range of
issues pertaining to the area.
[63]
Around 1916, (although this is not completely clear from the record)
it seems that regulations
[46]
were adopted to inter alia control grazing rights on the Commonage,
which were restricted to the landowners and their lessees.
[47]
Africans could lease grazing rights from a landowner only if they
were sole occupiers of an erf or resident in Salem and in the
service
of a white resident, but the landowner had to give notice to the
Board of such intent.
[48]
Furthermore, no person was entitled to live on the Commonage without
the Board’s permission unless a hut tax was paid for
each
hut.
[49]
[64]
The Board also had regulations dealing with ‘native locations’
on the Commonage promulgated in 1917 (the location
regulations).
[50]
They permitted the Board to set aside a portion of the Commonage for
the purpose of a ‘native location’ and to appoint
a
superintendent to oversee the location.
[51]
A person wishing to reside in the location had to apply for a
site-permit from the superintendent, and had to pay a
site-rental.
[52]
The hut or dwelling was deemed to be the Board’s property, and
if the holder of a site-permit was ejected from or left the
building,
compensation was payable for its value.
[53]
[65]
The location regulations were promulgated under s 147 of the South
Africa Act 1909. The expressions ‘site-rental’
and
‘site-permit’ were used in place of a ‘hut tax’.
The reason was, as the Secretary for Native Affairs
explained to the
Provincial Secretary in a letter dated 9 December 1915, ‘hut
tax’ had a special meaning applying
to taxation under several
statutes, and its use in connection with local payments could cause
confusion. Legassick testified that
such taxes conferred rights of
residence to the African community on the Commonage. I deal with his
evidence later in this judgment.
[66]
The location regulations also prohibited residents from grazing
animals on the Commonage,
[54]
open-air dancing and assembly
[55]
or subletting their dwellings without the superintendent’s
permission.
[56]
Residents were furthermore prohibited from carrying
‘knobkerries’,
[57]
subjected to curfews under which they were not permitted to be in
public spaces between 21h00 and 04h00,
[58]
or to make ‘Kafir Beer’ without the Board’s
permission.
[59]
[67]
However, as early as February 1920, the Board had practical
difficulties with there only being a single location on the
Commonage,
because it meant that employees (servants and farmworkers)
of the landowners would have to live some distance from their places
of employment. The Board therefore sought the Administrator’s
permission to amend the location regulations so as to allow
the
employees to erect huts on the Commonage closer to their places of
employment and to designate each hut so erected as a location
under
the express control of the Board. The Administrator responded by
saying that because ownership of the Commonage is vested
in the
landowners, and not the Government, he had no objection to the
regulations being amended. But he advised the Board to seek
the
advice of the Commissioner of Native Affairs in Pretoria.
[68]
Accordingly, on 10 May 1920, the Board wrote to the Commissioner
(Secretary) of Native Affairs concerning this problem. In
addition
the letter mentions that sharecroppers occupied some of the huts on
the Commonage also close to the private erven for
the convenience of
the landowners. The Board also sought advice on the status of huts
that were removed from the location where
the location regulations
applied and the rest of the Commonage, which fell under the Board’s
jurisdiction where the regulations
did not apply; the huts were now
erected on private erven where the site-rental for which the
regulations provided was not applicable.
[69]
On 17 May 1920, the Secretary responded by advising that s 19 of the
Village Management Act gave the Board authority to deal
with huts on
the Commonage. However, he went on to say that where parts of the
Commonage (outside of the location) had been leased
for agricultural
purposes, the Board had forfeited its control and could not object to
a lessee allowing his ‘native servants’
to reside there.
The solution to this problem, he advised, was to ‘make it a
condition of such leases that no native should
be permitted to reside
on the land leased without the permission of the Board’. This
exchange of correspondence suggests
that Africans living on the
Commonage at that stage did so at the behest of the landowners, who
had leased parts of the Commonage,
outside of the location, from the
Board for their employees, labour tenants and those with whom they
may have had sharecropping
arrangements.
[70]
In the meantime the arrangement whereby some landowners leased parts
of the Commonage from the Board began to generate discord
among other
landowners. This appears from a letter that Mr Gardner, an erstwhile
member of the Board, wrote to the Administrator
on 13 November 1920
complaining that the Board was managing the affairs of the Commonage
to the detriment of the inhabitants. In
particular, he complained
that the Board was leasing parts of the Commonage without collecting
sufficient rental and allowing ‘squatting
natives’ to
erect huts in the location, graze their cattle and cut firewood on
the Commonage at a nominal charge. He also
complained that the Board
permitted some of the lessees to allow sharecroppers to plough the
land that had been leased. Gardner
asked the Administrator to appoint
a commission of enquiry to investigate these matters.
[71]
The Board responded to the complaint in a letter to the Magistrate in
Grahamstown dated 21 January 1921. The main points were
the
following:
(i)
Because the Commonage was more extensive than was necessary to meet
the pastoral requirements of the erf-holders, a portion
was set aside
and fenced for their use at a rental of 2/6d per acre.
(ii)
It was common practice for erf-holders to engage the services of
labour tenants who were allowed to let and cultivate land
allocated
for this purpose.
(iii)
The rental had been reduced from 2/6d per acre to 1d per acre because
the drought brought many people in Salem to the verge
of starvation.
(iv)
It was acknowledged that letting parts of the Commonage was illegal,
but the practice had begun some time ago, when Gardner
was a member
of the Board, before the present Board was elected. The current Board
continued the practice as it was advantageous
to the erf-holders.
(v)
Some land had been set aside for the servants of the white
inhabitants; this was in the interests of the whole community.
(vi)
No unemployed ‘native males’ over the age of 18 years
were allowed to reside in the location.
(vii)
The charge for firewood was 4/6d per load. The Board had no power to
prevent any erf-holder or lawful occupier from cutting
wood on the
Commonage and there was nothing to prevent such erf-holder or
occupier from allowing his servants to use a portion
thereof.
(viii)
Many of the erf-holders would welcome a scheme for the division of
the Commonage amongst the erf-holders as had been done
in the
Stockenström District, as this would result in better use of the
Commonage for farming purposes.
[72]
There were no further developments regarding Gardner’s
complaint. Nevertheless, the Board continued to be confronted
with
problems over the management and the application of the location
regulations to the Commonage.
[73]
The minutes of a meeting of the Board’s Public Finance
Committee in June 1921 alluded to some of these: the increasing
laxity in collecting revenue from huts and for grazing; the
inconsistency in allowing some members of the community to graze
large
herds free of charge while others had been charged grazing fees
for their servants’ stock, countenancing the practice of
‘native half-sowers’ (sharecroppers) and indiscriminate
wood cutting by ‘native squatters’.
[74]
The meeting concluded that the continued existence of the location
and appointment of a superintendent was not justified ‘as
it
would be a simple matter for every employer of labour to be
responsible for the proper housing of his monthly servants, subject
to the satisfaction of the Board’. By 1934 this was precisely
what happened, when the location ceased to exist.
[75]
Among the remedies suggested to deal with its management problems
were that ‘masters’ were to take responsibility
to
collect ‘Native dues’ from their own servants and all
chopping of wood by ‘Natives for selling purposes be
stopped’.
Further, erf-holders should desist from letting ‘grazing rights
to Natives and others outside the jurisdiction
of the Board’.
[76]
Another problem that appears to have arisen was that the original
boundaries dividing the farms from the Commonage were no
longer
clear. This resulted in some of the landowners erecting structures
that encroached on the common land. The Board sought
the
surveyor-general’s advice on this matter. In an undated letter
the surveyor-general recommended that in every case of
obvious
encroachment, where it had existed for more than 30 years, and the
party refused to surrender it, he be allowed to remain
in possession,
as he would have proved ‘prescriptive occupation’, ie
acquisitive prescription. Where he could not prove
this he should be
compelled to remove the encroachment or pay a rental to the Board.
The surveyor-general emphasised that the ‘common
land is a
valuable asset of the Board and it is to every erf-holder’s
advantage to jealously protect it from unlawful occupation
and to
assist the Board to do so’. He also advised the Board to
resurvey the farms so as to establish their boundaries clearly.
There
is no indication in this letter that the Board was concerned about
any encroachment or unlawful occupation of the Commonage
by Africans.
[77]
On 5 August 1921, Ordinance 10 of 1921, ‘the Village Management
Boards Ordinance, 1921’ was promulgated. It repealed
the
Village Management Act of 1881, which had hitherto regulated the
activities of village management boards such as Salem’s.
Section 61(32) gave the Board the power to make regulations for
‘management and protection’ of the Commonage, which
merely continued the power it had already exercised for 40 years, and
before this, when the Committee managed the community’s
affairs. Section 61(32) also allowed it to control the numbers of
livestock inhabitants were entitled keep and depasture on the
Commonage. An ‘inhabitant’ was defined as a person who
occupies property of a value of not less than 100 pounds within
the
Board’s area, which de facto excluded Africans from grazing
their cattle on the Commonage.
[78]
This regulation created difficulties as some of the erf-holders
claimed an entitlement to graze their full quota of livestock,
which
would include cattle of their employees. In response to a query from
the Board as to how to deal with the problem, the Provincial
Secretary, on 18 October 1921, advised that s 61(32) of the Ordinance
permitted it to debar erf-holders from leasing their grazing
rights
and empower itself to grant such rights to non-inhabitants.
[79]
But this did not deal with the difficulty of distinguishing between
cattle of ‘Europeans’ and ‘Natives’.
The
Board therefore sought the advice of the Provincial Secretary as to
whether it would be permissible to insist that ‘Natives’
branded their cattle so as to distinguish theirs from those of
‘Europeans’. On 4 March 1923, the Provincial Secretary
advised that any regulation dealing with this matter would have to
apply equally to ‘Natives and Europeans as a regulation
. . .
applying solely to Natives from the provisions of which Europeans are
exempt, would amount to class legislation and, as such,
would be
ultra vires
’.
[80]
On 14 June 1923 the Natives (Urban Areas) Act 21 of 1923 came into
force. It gave municipalities greater powers to segregate
housing, to
police African communities and to control their movement through the
pass system. By regulating the movement of Africans
between rural and
urban areas and providing for locations to be created for African
occupation, the Union Government hoped to stem
the tide of
urbanisation away from rural areas.
[60]
Section 23(3)
(c)
of this Act provided for local authorities, which included village
management boards in terms of s 29, to regulate the management
and control of these locations. But as was mentioned earlier, there
was a strong view within the Board and among the erf-holders
that the
establishment of a location on the Commonage would be
counterproductive.
[81]
This notwithstanding, on 23 July 1926, the Provincial Secretary (on
behalf of the Board) sought the advice of the Magistrate,
Alexandria
as to whether the existing ‘Native Location’ may, with
the approval of the Minister of Native Affairs, be
established under
the Natives (Urban Areas) Act. This request was referred to the
Magistrate, Grahamstown, as Salem fell within
the latter’s
jurisdiction.
[82]
After investigating the matter, the Magistrate, Grahamstown wrote to
the Provincial Secretary, Cape Town on 10 September 1926
recommending
that the location not be established under the Act. He explained that
the Board had a very small rateable valuation,
with practically no
funds, and did not wish to establish a location. Moreover, he
continued, there were only 25 ‘European’
rate-payers and
only ten ‘Native’ adults living in the present location
under ‘practically rural conditions’.
There were no
further developments regarding the establishment of a location for a
few years after this.
[83]
On 11 September 1929, the issue that had arisen some eight years
earlier in the meeting of the Board’s Public Finance
Committee
– the subdivision of the Commonage among the landowners –
was revived. The Board wrote to the Administrator
on behalf of the
landowners to seek his advice on whether this course of action was
permissible.
[84]
The correspondence between the Board and various government
departments after this reveals that there was at least one
significant
legal impediment to subdividing the Commonage between the
present landowners. This was, as a letter from the Registrar of Deeds
to the Provincial Secretary on 31 August 1931 pointed out, the
condition of the original grant to the settlers stated that shares
of
grazing rights over the Commonage could only be transferred by the
sale of a share or shares in the original arable lands or
homestead
of the settling party. Yet in some cases, grazing rights were sold
off the allotments to which they originally belonged,
apparently
after the Deeds Office had sanctioned this. It was, therefore,
unclear whether the current landowners had the right
to subdivide the
Commonage.
[85]
Meanwhile, on 7 December 1931, the Assistant Health Officer for King
William’s Town visited Salem to inspect conditions
in Salem.
Among the observations he made in a report to the Acting Secretary
for Public Health, Pretoria were: that there were
presently only 22
families on the 50 allotments, the total ‘European population’
being 96; the Borough Ranger was the
superintendent of the location
in which ten families resided; each family paid a site-rent and had a
small plot around his hut
for cultivation; only ‘natives’
employed in the settlement were allowed to reside in the location;
most of the inhabitants
kept their ‘native employees’ on
their own properties and there were three ‘natives’
employed for the eradication
of cactus. The report concluded that the
health of the community was ‘very good’. The report made
no mention of Africans
residing anywhere else on the Commonage.
[86]
The following health report was dated 30 June 1932. It records the
‘White population’ being approximately 84, and
the
estimated ‘Native population possibly 300-400. No figures
available’. It also notes that there is a ‘small
native
location of some half dozen huts; Most natives reside on the owners’
private erven’. The health report a year
later, in June 1933,
repeated most of the information in the earlier report (including the
estimated ‘Native’ population)
except for recording the
‘White’ population as 90. These health reports are
important because they confirm that apart
from the ten African
families who were living in the location at the time, most of the
other employees were living on the properties
of their employers. The
LCC, as I discuss later, completely misconstrued these reports by
finding that they confirmed a significant
occupation of Africans on
the Commonage.
[87]
By June 1934, two years later, the Health Report stated that the
‘White population was approximately 100’ and the
‘Native’
population unknown. Significantly it recorded that the ‘Native
Location’ had been done away with,
with ‘Natives’
now residing on their employers’ land, as the Board’s
Public Finance Committee said should
happen in 1921. Again, there was
no mention of Africans residing on any part of the Commonage.
[88]
During this time the Board continued to lease parts of the common
land adjoining the landowners’ private property to
the
landowners in return for which they paid rent to the Board. One such
example was to Mr Henson, who had erected his dwelling
on one acre,
had arable land of three acres, two acres for a camp and two acres
for ‘native huts’. In his case, therefore,
Africans
residing on the portion of the Commonage he leased would have done so
by virtue of individual agreements with him.
[89]
One of the proposals was for a five-year lease for 160 morgen on the
common land to Mr Hill. Because of the huge extent of
the land sought
to be leased, there were objections from other landowners. So, the
Board forwarded his application to the Administrator
for approval on
6 August 1934. Hill had, however, in the face of the objections
agreed that his application could be held over
pending the Board’s
investigation into the feasibility of subdividing the Commonage among
the erf-holders proportionately.
[90]
The leasing of parts of the Commonage was beset with problems.
Correspondence between an erf-holder and the Administrator in
December 1934 mentions that one of the Board members, Mr Dickinson,
had been leasing 20 acres for 25 years at a rental of 1/6 per
annum
an acre. However, the measurement of the leased area showed that he
had enclosed 31 acres, 11 acres more than he had been
paying for.
[91]
Another Board member, Mr Hewson, resided on the Commonage, as did his
brother. They paid the Board 2/6 a year. By residing
on the
Commonage, and not on a farm, they evaded the payment of rates and
taxes, as the Commonage was not taxed as rateable property.
It also
transpired that Board members had been leasing some of the Commonage
to people who were not erf-holders. In one case Mr Hall,
who was
a Board member at the time, had also leased ground even though he was
not an erf-holder. The Board’s function was
to represent the
collective interest of erf-holders to the common land, and therefore,
only such people were eligible to be Board
members.
[92]
The difficulties that had arisen over the leasing of parts of the
Commonage gave further impetus to the proposal to subdivide
the land
among the owners. The Board motivated this on the basis that the
whole Commonage would then become rateable property.
[93]
In June 1935, the Board sought advice from attorneys on whether
erf-holders could fence in and cultivate portions of the Commonage
for their own use. Their legal opinion was that this would only be
possible if all erf-holders agreed. This followed implicitly
from the
fact that ownership of the Commonage vested in the erf-holders for
their collective benefit; the Board could not itself
grant such
consent as it merely managed the Commonage on their behalf.
[94]
In 1936 the erf-holders began to press the subdivision issue again.
On 14 January 1936 its attorneys wrote to the Provincial
Secretary to motivate their case. The letter stated that the Board
had limited funds to combat the growth of noxious weeds on the
Commonage, which had also become a breeding ground for jackals to the
intense annoyance of the farmers; further that there was
dissatisfaction because this land area could not be farmed
communally, their stock got mixed, inter-bred, could not be camped
and were lost to the owners.
[95]
The letter stated that the erf-holders, who owned rights to the
Commonage, had been trying to secure unanimity to subdivide
the land
so that each owner could fence, clean and cultivate the land for his
own benefit. They had, however, not been able to
do so because one of
the owners was ‘sufficiently cantankerous to disagree although
she makes very little use of the Commonage
herself’.
Accordingly, the Administrator’s assistance was sought to
resolve this quandary by introducing legislation
to allow for the
subdivision despite the opposition of an erf-holder. In a letter
dated 29 February 1936, the erf-holders’
attorneys
requested that the proviso to s 49 of the Village Management Boards
Ordinance 10 of 1921 be repealed so as to enable
the Administrator to
grant consent to the Board for this purpose.
[61]
[96]
The Provincial Secretary replied to the Board’s attorneys on 2
April 1936. He considered it not possible for the matter
to be dealt
with by way of the proposed legislative amendment as, in his view,
this would allow local authorities to interfere
with the ownership
rights of erf-holders who had placed land under their control. His
advice was that the matter should be dealt
with by obtaining the
authority of a court to transfer an equitable portion of the area to
each owner. This had apparently been
the course adopted by the
Bradshaw Party of settlers, who had obtained a court order in its
favour on 18 May 1928.
[62]
On 6 August 1936, the Provincial Secretary informed the Board that
the Administrator had refused its request to amend s 49 of the
Village Management Boards Ordinance.
[97]
On 16 January 1940 the Board instituted ex parte proceedings in the
Grahamstown Supreme Court for an order subdividing the
Commonage in
proportion of 153 morgen to each of the original erven. The
application was brought in the name of the Board’s
Chairman, Mr
Gardiner. The factual basis for the relief sought appeared from the
unreported judgment of the court in
Ex
Parte
Gardiner: In re Salem Commonage
.
[63]
They were:
‘
[T]he
commonage is too large for the small number of erf-holders, with the
consequence that stock are often lost or stolen; that
the Village
Management Board has not the means so to adequately control it as to
keep strangers’ stock from trespassing or
to keep down the
growth of noxious weeds and the extension of erosion; that jackals
and other vermin breed on the commonage, and
that there is no means
of eliminating them; that erf-holders cannot keep good stock owing to
their own stock mingling with and
becoming contaminated by inferior
stock; and that erf-holders are unable to fence off and cultivate
portions of the commonage for
their private use.’
[64]
[98]
It is evident that there is no reference to Africans residing or
‘squatting’ in a location or elsewhere on the
Commonage
among the problems the landowners were concerned about. Nor did they
rely on any racially discriminatory laws to support
their cause of
action. Their primary contention was that the erf-holders were in law
absolute co-owners in undivided shares of
the Commonage, and thus
entitled to the order sought. The learned judges (Gane J, Lansdown JP
concurring) concluded that the grants
did not make the settlers
co-owners in undivided shares of the land, for if they were, it would
have been a simple matter to approach
the Registrar of Deeds to
partition the land.
[65]
[99]
The grant, said the court, contemplated the permanent settlement of
settlers at Salem.
[66]
It was of grazing land to the Salem Party of erf-holders to be held
communally, and if a person ceased to be an erf-holder, he
ceased to
have any right in the Commonage.
[67]
Of particular interest was that the court compared the rights of
erf-holders over the Commonage to ‘native law’ which,
the
court noted, also recognises that land held under tribal tenure
belongs to the tribe, and not the individuals who constitute
it. On
the face of it, so the court reasoned, the relief sought was
incompetent.
[100]
However, given the difficulties faced by the erf-holders alluded to
above, the court decided to leave the matter in the hands
of the
Administrator to exercise his discretion regarding the subdivision.
Paradoxically, it considered that s 49 of Ordinance
10 of 1921,
which the Administrator had refused to amend to deal with this issue,
properly interpreted, gave him this authority.
The Court accordingly
issued a rule nisi on 29 February 1940 calling on all interested
parties to show cause why the Administrator
should not consent to the
subdivision. It was ordered that the rule nisi was to be published
twice in the Daily Mail, and twice
in the Union Government Gazette,
with an interval of not less than six weeks between the two
publications. It was also to be served
upon the Minister of Lands for
the Union of South Africa and upon the Administrator, the Registrar
of Deeds, and the Department
of Education, because of its possible
interest in the school on the Commonage.
[101]
On behalf of the Administrator, the Provincial Secretary wrote to the
Magistrate, Grahamstown, to examine the issue and express
an opinion
on the matter. After investigating the matter the Magistrate wrote to
the Administrator on 8 May 1940 recommending
the subdivision. He
expressed his reasons as follows:
‘
.
. . [T]he only persons who can claim to make use of the Commonage
now, would not suffer in any way if the Commonage were subdivided
. .
. .
The
only persons who might feel annoyed would be those who have been
making a profit out of grazing the animals of friends and Natives
on
the Commonage
.
.
. .
The position would now appear to be that the Commonage is now
used by persons, some of whom have a good class of stock and others
only scrub animals.
There are unending squabbles in consequence,
and certain owners quite rightly take strong exception to the
subletting of grazing
rights to certain undesirable persons who are
not erfholders.
Certain
of the erfholders could make very good use of the portion of the
ground for agricultural purposes or gardening or both,
and are
prevented from making a fair living out of their property . . . .
Also, as long as the present state of affairs exists
this very large
Commonage must be used
solely
for grazing, and the
difficulty of collecting stock for dipping, and the consequent
increase in the difficulty in keeping down tick-borne
diseases, make
the duties of the cattle cleansing officers almost impossible of
satisfactory performance.’
(emphasis in italics added,
underlining in original)
[102]
After the Administrator’s consent had been secured for the
proposed subdivision, the court granted a final order on
8 August
1940. Following the final order for subdivision of the Commonage, the
Native Commissioner recommended the disestablishment
of the location
on 15 July 1941. He did so after visiting the area in the presence of
the Chairman of the Board a week earlier.
He discovered that there
was only one disused and dilapidated hut where the location had
previously existed. That hut had been
occupied by an African employee
of the Board. The location was 15 acres in extent – less than
one per cent of the land mass
of the Commonage – and had ceased
to exist some years earlier.
[103]
The location, he learnt, had never been properly defined by
resolution of the Board, but a portion of the Commonage was set
aside
for use as one. A superintendent, as envisaged in the regulations,
was not appointed, and the location regulations were never
really put
into operation.
[104]
Regarding the population size he reported the following:
‘
The
European population of the village is between 90 and 100 with 25
families, while the Native population is about 500, of whom
about 50
work as servants. These servants live on the premises of their
employers, and on the present Commonage which is privately
owned. I
am given to understand that certain Europeans have permitted
squatting in the past, but I am asking the local District
Commandant
to investigate the matter.’
[105]
The estimate of 500 Africans living in the Village seems excessive
when one has regard to the number of dwellings there were
at the
time, as I point out below. Be that is it may, the Commissioner was
concerned with the disestablishment of the location
on the Commonage,
and not with whether there were Africans living elsewhere on the
Commonage. He was not conducting some sort of
population census as
the LCC misleadingly put to Mr van Rensburg during his testimony,
which is dealt with later.
[106]
What is however clear from this report is that the estimated 50
servants resided on both the premises of their employers,
and on the
Commonage – in all likelihood on the portions that had been
leased by erf-holders such as Henson. The Commissioner’s
conclusion was that even if the labour requirements on the farms
increased in the future ‘there would be ample room on each
farm
for these Natives to live as each farm will range in extent from 150
to 600 morgen’. The recommendation for the location
to be
disestablished because it served no proper purpose echoed the view of
the Board’s Public Finance Committee two decades
earlier.
[107]
Following the Commissioner’s recommendation the Minister of
Native Affairs formally, acting under s 2 of the Natives
(Urban
Areas) Act, abolished the location on 14 November 1941. This seems to
be why the claimants were misled into thinking that
the
‘dispossession’ occurred as a result of this racially
discriminatory law.
[108]
In regard to where Africans in Salem were residing in 1942 the aerial
photographs of traditional dwellings taken at the time
were inspected
by Mr Chandler for the Commission and Mr Gerber for the landowners.
They prepared a joint minute. Their pertinent
findings, as appearing
in the joint minute and the evidence of Mr Chandler, were:
(i)
There were 48 traditional dwellings in the greater Salem area of
which 22 were on the original farms and 26 on the Commonage
around
the Assegaai River adjacent to the farms;
(ii)
There were pathways from the 26 dwellings on the Commonage leading to
the farms. This may indicate that these dwellings were
occupied by
farmworkers.
The
LCC overlooked this crucial evidence.
[109]
On 15 February 1943 the Board informed the Administrator that the
Board would cease to function once the land was surveyed
and the
subdivision was completed. It had in the meantime stopped exercising
its right of control over the Commonage and no longer
issued permits
for wood or other materials, or leased the Commonage for grazing. The
subdivision of the Commonage was finalised
some time in 1943.
Thereafter, the Board ceased to exist.
Conclusions on the
historical background
[110]
This history and documentary evidence suggest the following
conclusions:
(i)
Before the 1820 settlers arrived and settled in the Zuurveld, the
Xhosa speaking tribes who had occupied parts of this area
since about
1750, but not Salem, had been expelled in 1811 during the Fourth
Frontier War.
(ii)
The settlers settled all over the Zuurveld, which became the District
of Albany, on (now) unoccupied land, formally granted
them by the
Cape Colony, including in Salem.
(iii)
The Salem settlers were initially granted the Commonage on a system
of quitrent, which was converted into freehold title in
1848, after
their rental payments had been redeemed. The settlers exercised
authority over the Commonage.
(iv)
After the cattle-killings in 1856-1857, Africans began to seek
employment in the District of Albany and the Cape Colony passed
laws
to control and regulate these developments. Land held in common, such
as the Commonage, was also governed by laws that empowered
the Board
to exercise authority over the Commonage, which it did.
(v)
From about 1878, Africans who sought employment in Salem resided on
the private erven of the landowners and on the Commonage
with the
permission or the agreement of landowners. Among those who entered
into such arrangements were labour-tenants and sharecroppers.
(vi)
Among the Africans who resided on the Commonage were those who
resided in the location, which covered a small area of 15 acres,
measuring less than one per cent of the land mass of the Commonage.
The number of huts in the location never exceeded ten, and
from about
1920, the landowners felt that the establishment of a location would
create difficulties for their employees because
of its distance from
their farms. Most employees were therefore housed on the properties
of their employers. And by about 1933
the location had ceased to
exist.
(vii)
There is no documentary evidence of any community or group of people
being ‘herded’ into a location and thereafter
forced to
abandon this location, as the claimants have pleaded.
(viii)
The landowners had difficulties managing the Commonage for the
reasons mentioned earlier and therefore sought and obtained
a court
order in 1940 to subdivide the Commonage.
(ix)
The aerial photographs of 1942 show that that there were 48 huts in
Salem of which 22 were on private erven and the remaining
26 on the
Commonage in close proximity to the private farms, and connected by
paths to the farms. In the absence of any other evidence
to the
contrary, the 26 dwellings on the Commonage were in all likelihood
occupied by Africans who worked for landowners.
(x)
Even assuming that some of these Africans did not
work directly for the landowners, it is clear that at least a
substantial portion
did (as evidenced by the pathways in the aerial
photographs). And, given the jealousy with which the Commonage was
guarded by the
settler community, and the fact that the African
community was tolerated only because it provided labour for the farms
in the area,
it seems likely that the African community as a whole
occupied a form of servant-master relationship with the landowners
.
(xi)
There is no documentary evidence of an independent African community
of 500 people residing on the Commonage or in the location,
much less
of such a community exercising any authority over this land at any
time. The documentary evidence points firmly to the
contrary.
The Viva Voce Evidence
[111]
The LCC set out the evidence neither fully nor fairly. It is
therefore necessary for this court to do so.
Mr Vincent Paul
[112]
The first witness for the Commission was Paul. It was on the basis of
his report to the Commission that this claim was validated.
Neither
his report nor his evidence is easy to follow.
[113]
His evidence in chief, read with his report, appears to amount to the
following: The forebears of the community occupied the
Commonage ‘as
far back as the 1800s’, although this date is not really
relevant because his investigation was concerned
with events after
1913. The community had ‘ownership rights, residential rights,
grazing rights and the right to use land
for agricultural activities,
access to firewood and the use of the land for burying the dead’.
They also practised sharecropping
with white people and combined
their cattle for ploughing. The native returns of 1880 indicate that
there were nine huts, 42 people
and 47 cattle on the Commonage, which
proves that there were ‘natives’ living on the Commonage.
A location was established
on the Commonage in 1926. Thereafter, the
landowners decided to divide up the Commonage among themselves,
without consulting the
African community, who rightfully owned this
land.
[114]
The African community was dispossessed of these rights with the
implementation of s 47 of Ordinance 10 of 1921 through the
court
order subdividing the Commonage, and the disestablishment of the
Location under the Native (Urban Areas) Act 21 of 1923.
The
dispossession began around 1947 and dragged on until the 1980s.
Africans, who were living on the Commonage, numbering some
450
people, were, after they were dispossessed, permitted to ‘squat
by their families’ on the farms of the landowners,
while others
left to live in Grahamstown. The community was no longer able to
produce from the land and were forced to sell their
livestock.
[115]
As to how the community had decided where its members were permitted
to plough or to graze their cattle, his testimony describes
an
idyllic state. He was told, he says, that the families of the
claimants combined their oxen and ploughed collectively. No specific
areas were allotted for this purpose because the land belonged to the
whole community. Their kraals and huts were scattered over
the
Commonage. The cattle belonged to the whole community. They produced
enough for the Community and the surplus was sold. No
one else was
allowed to use this land. The community had no written rules but had
their own traditional way of doing things.
[116]
Later on, he testified that the community lived by these unwritten
rules passed down the generations and also by the rules
of the
location regulations. But his version of how this community organised
itself was contradicted by the version Mr Notshe
put to him on
behalf of the claimants.
[117]
Mr Notshe put to him that the claimants would testify (and Nondzube
later did) that under the rules governing access to the
land each
family was given a piece of land where they lived, while their cattle
were allowed to graze on communal land. When the
head of the family
died the eldest son inherited that piece of land. And when new
families arrived on the common land, the head
of that family would
ask the chief to allocate a piece of land to him for his homestead.
The newcomers’ cattle would also
graze on communal land.
[118]
Despite this version of the existence of a highly organised system of
rules at the head of which was a chief who exercised
ultimate
authority being totally at odds with that of Paul’s idyllic
system, he testified that he did not dispute it. When
challenged on
how he could have ‘misunderstood’ the nature of the
community’s social system in such a gross manner,
he was unable
to give an answer.
[119]
Under cross-examination by Mr Roberts for the landowners he was asked
whether he had examined the returns of the Native inspector
of 1878,
which formed part of the bundle of documents. He responded that he
did not have time to look at them. When asked to examine
the document
and comment upon the entry that in 1878 there was only one hut and
three people on the Commonage, without livestock
or farming
equipment, he answered, evasively, that this was before 1913. When
pressed further as to whether one hut and three people
constitute a
community, he responded, again elusively, that he disagreed because
the people he interviewed told him they were a
community.
[120]
Regarding the methodology he used to compile his report, he testified
that in June and July 2003, he interviewed three people
from whom he
took statements. These were Mr Lindile Magwala, Mrs Nofikile
Simayile and Mr Tim Ngqiyaza Ncede. These statements
and the archival
information formed the basis of the report. He conceded that he had
not examined many of the documents that were
placed before the court.
[121]
Asked to comment on another report contained in the document bundle,
prepared for the Commission by a consultant, Itemba,
on 9 September
2002 and which was signed by Mr Gwanya, the Regional Land Claims
Commissioner, indicating that the people who were
dispossessed were
labour tenants, he said that he was not aware of this report when he
commenced his investigations. He then testified
that it was merely a
preliminary report. His investigation showed that the community was
reduced to labour tenants as a result
of the dispossession, and they
were not labour tenants before this.
[122]
He was questioned about why he had not interviewed the landowners
before preparing his report. He first responded that he
had a meeting
with them but they did not cooperate. He then adjusted his evidence
saying that he arrived at the meeting to tell
them that there was a
claim against their land, not to interview them. The Commission had
instructed him not to interview the landowners,
because ‘that
is the process of restitution; you deal with the people who are
affected . . . .’ By this he meant the
claimants.
[123]
When asked to confirm whether the land was vacant when the 1820
settlers arrived in Salem, he answered unclearly, evasively
and
contrary to the documentary evidence and the facts. The following
exchange occurred between Mr Roberts and Paul:
‘
Adv
Roberts
: When the 1820 settlers arrived there, this land was not
vacant, were people living there. Is that what you are saying? –
People who were there were . . . forced out of the land at the time
they arrived.
Who
forced them out? – They were forced out by those who wanted to
buy the land.
So
they were forced out by the settlers . . .-- They were forced out by
the white people.
Which
white people? – South African white people.
Were
they forced out by the Salem settlers or someone else? – The
white people pushed the black people out. They were pushing
them out
because they wanted to put in the settlers in that land.’
[124]
Thereafter, the following exchange took place between Mr Roberts and
Paul, whose responses were again obtuse:
‘
Adv
Roberts
: ‘Now let us get back to what information you
obtained on the three people that you interviewed. Did you establish
from them
whether they occupied the entire commonage or just portions
of the commonage? –
According
to the people traditionally they occupy the land.
The
entire commonage? – According to them yes.
Did
you establish from them whether…they were aware of the Village
Management Board? – They were aware.
And
were they aware of the fact that the Village Management Board had
authority over the commonage? – They were not aware,
sorry.
They were not aware of the specific of the functions of the Village
Management Board because they were not part of it.
Did
they acknowledge that, did they say that any portions of the
commonage had been occupied by white people? -- Yes.
So
they acknowledged that white people had certain rights on the
commonage. – They acknowledged certain rights after they
were
pushed over or forced to move some to move further.
When
was that Mr Paul? – That was during the dispossession.
That
is from 1947 according to you. – That was at the time of
dispossession after 1913.
And
is it your evidence that after 1913 up till this date of
dispossession only the black people occupied the commonage to the
exclusion of the white people or not? – No I did not say they
were not there. They were around.
So
the white people were there. – They were there.
Where
were they? – Which period are you referring to?
To
dispossession, I have said 1913 to 1947. – They were around
because they forced themselves into the land as I indicated.
When
did they force themselves onto the land? – As it clearly stated
the (indistinct) had land even before 1913 because they
forced
themselves after the people were chased away forced themselves onto
the land
even before 1913
.
I
do not understand that. Can you just explain? Are you referring to
the commonage? – I am referring to the commonage.
When
did this forcing onto the land commence? – They forced
themselves when they arrived because people were pushed over during
the wars. They stayed on the area. There …was a portion of
land that was undivided which was divided at a later stage.
Sorry
can you just speak up please. Sorry Mr Paul? Maybe it is my age, I do
not know. Can you just, sorry just repeat it? –
I am saying
they forced themselves into the land and they stayed on their erven.
Yes?
– There was a portion of land that was still, I mean undivided
as a commonage. When it was proposed that it must be divided,
that is
when the people because the case that we are dealing with here is
after 1913 case.
Ja.
– That is when people they totally dispossessed of their land.
Let
us take 1913 as a starting point. Who then occupied the commonage? –
As I indicated the black people were part of that.
What
does that mean? Did they occupy only a portion of the commonage or
the entire commonage in 1913? – Because the way things
were
done to them they still regarded themselves as owners of the land
because they were not consulted. The process was not fit
for them so
in their minds they still kept that
this is our land
.
Mr
Paul I will ask this question again. What was the factual situation
as at 1913? Did the black people occupy the entire commonage
or not?
– They said it was their land.
Sorry,
they said it is their land. – They said it was their land.
The
question is still did they physically occupy the entire commonage as
at 1913? Or did they not tell you that? – All they
said the
land was theirs.
So
they did not tell you that as at 1913 they occupied the entire
commonage? – They said they occupied the land. They stayed
there and according to them and because of the history on that land
that land was theirs.’
(emphasis in bold and italics
added, italics in original)
[125]
He was then asked whether the areas where the cricket field was
established (in 1844), the Methodist Church (in 1832) and
the Civic
hall (in 1894) were part of the claim to which he answered in the
affirmative. This was followed by another incoherent
response:
‘
Adv
Roberts
: So do you concede that there was no dispossession after
1913 of that particular area which includes the church, the lands,
the
hall and the cricket ground. -- As I said there were properties
that were reduced because of the occupation then.’
[126]
It was put to Paul that his interview with Mrs Simayile, one of the
three people he interviewed to establish the claim, recorded
that she
was born on Mr Lloyd’s farm in 1905, which he confirmed.
Thereafter the following exchange took place:
‘
Adv
Roberts:
She was therefore not born on the commonage, correct? –
She was born on the farm that is within the commonage in Tyelera.
.
. . But what it then means is that the farm of Mr Lloyd was situated
on the commonage – according to what she said.
Surely
you must have accepted what she said or did you reject what she said
to you? – Mine was to interview her and hear what
she says;
that was my duty.
What
she clearly told you we read this she was born on the farm of which
the owner was Mr Lloyd. And if that was on the commonage
Mr Lloyd was resident on the commonage, correct? – Yes.’
[127]
He confirmed too that the first time he had heard of Chief Dayile was
during the inspection in loco, just before the hearing
commenced, and
that nobody he had interviewed or his archival investigations brought
the existence of any such chief to light before
this. The existence
and role of Dayile is one of the central disputes in this case, and
it is crucial to the claimants’ case
that the community derived
its right in land on the Commonage through him.
[128]
The Commission did not adduce evidence from a single claimant to
corroborate Paul’s hearsay evidence as to what was
said to him
during his oral interviews. Instead they sought to rely on the expert
testimony of Professor Legassick to which I now
turn.
Professor Martin
Legassick
[129]
Legassick’s evidence, as I indicated at the outset, was aimed
at establishing that the claimants had indigenous rights
over the
Commonage arising from the Xhosa occupation of the Zuurveld in the
eighteenth century, and independently of these rights
had acquired
rights as descendants of those persons who had occupied a location on
the Commonage since 1879.
[130]
His original report traces the occupation and expulsion of the Xhosa
from the Zuurveld, the arrival of the settlers, and attempts
by the
Xhosa to return to the Cape Colony thereafter. The report does not
deal with the acquisition of indigenous rights by any
Xhosa speaking
community in the Zuurveld or any part of Salem.
[131]
His three key findings were: first, the native returns from 1878 to
1884 indicated that the habitation of the Commonage by
‘natives’
was ‘officially recognised’. They therefore had ‘rights
to occupy the land’, and
‘rights to graze cattle on it’.
Because they had occupied the land for a long time – about six
decades –
they would have established explicit or implicit
rules of behaviour, including those determining access to land such
as grazing
livestock, where to plough, collect wood and bury their
dead. They thus constituted a ‘partly self-sufficient
community’.
The second finding was that the population figures
from June 1884 to July 1941 showed that a substantial black
population had not
lived in the location and could not all have been
servants; so they probably lived on the Commonage. And finally,
because they
had not been consulted by state officials – by the
Board, the Magistrate or the Court – concerning the subdivision
of the Commonage, or of the disestablishment of the location, this
constituted a racially discriminatory practice, which ‘violated
their right of occupation and dispossessed them’.
[132]
In his evidence in chief he testified that the Xhosa never accepted
their expulsion, because they besieged Grahamstown after
this in 1819
to ‘remove this alien town from the Zuurveld and recover their
land’. But he acknowledged that they had
been unsuccessful in
achieving this. Nevertheless, he testified, after the settlers
arrived in 1820, there is no reason to suppose
that the Xhosa would
not have returned to their land between 1820 and 1870.
[133]
Regarding the period after 1870 he offered the opinion that because
Africans living on the Commonage and elsewhere were required
to pay a
hut tax this necessarily implied that they had had a right to occupy
this land. The reports of the Native Commissioner
in 1883 to the
effect that Africans living in those huts appeared to be ‘of a
better class’ whose huts ‘are larger
and cleaner’
was indicative, he testified, of people ‘subsisting for
themselves’, and not having resided there
as farm labourers.
[134]
The establishment of the Board under Act 29 of 1881, and the
promulgation of the 1906 regulations, to manage communal areas
on
behalf of the landowners, he testified, ‘ignored’ and
‘infringed’ the existing rights of Africans residing
on
the Commonage.
[135]
The reference in the Board records to squatters on the Commonage, he
said, was probably a reference to ‘people who were
living on
the Commonage, ploughing the land and grazing cattle, but also
possibly to supplement their subsistence by working for
the farmers’.
[136]
In regard to the claimants’ assertion in the ‘List of
Agreed Facts’ to the effect that the Board’s
location
regulations recognised the Xhosa as inhabitants, and implied that all
the inhabitants had lived in the location, he said
that he had
incorrectly approved of this because of the pressure of time when he
was compiling his report. He testified that the
true position was
that there was small population inside the location and there was a
population outside. Those outside the location
were referred to as
squatters because they were not recognised by the Board, and those
inside the location had rights under the
regulations. But the
regulations were never put into operation because the Board was never
properly in control of the location
or the Commonage. So, he
concluded, the community conducted their affairs on the basis of
unwritten rules.
[137]
With reference to the magistrate’s report in July 1941,
estimating that there had been 500 Africans of which 50 were
servants
living with the farmers, he testified that the remaining 450 were
therefore not employees and had lived on the Commonage.
The
correspondence on cattle branding also indicated that the provincial
authorities were aware of the existence of Africans on
the Commonage.
And he agreed with Paul’s evidence that the community had
combined their oxen for ploughing purposes and that
they had cattle
that grazed on the Commonage.
[138]
He concluded, in his evidence in chief, that Africans who lived on
the Commonage ‘may well have been connected to Africans
who
lived there in the eighteenth century, in one way or another who had
established rights through the Cape Colony and their registration
as
hut tax payers in the 1870s and 1880s’. They lived there until
the 1940s and were dispossessed by the judgment of the
court, the
actions of the Administrator and the disestablishment of the location
in 1941.
[139]
Under cross-examination by Mr Roberts he insisted, incorrectly, that
he had not used the word ‘infringe’
to describe the
impact of the 1906 regulations on Africans exercising their rights on
the Commonage; he had used the word ‘ignore’.
When it was
proved to him by reference to the record that he had used this word
he answered that he had been referred to the 1881
Act, not the
regulations, and that the Act and regulations should not be
conflated. He then testified that the Act was framed in
ignorance of
the fact that there was an African community on the Commonage, and
when the Board formulated the regulations, it had
infringed their
rights, but the Act ignored their rights. But pressed further, he
accepted that by providing that the right to
pasture had belonged to
white residents only, its effect was to exclude or ignore blacks from
having this right; in other words
it took the right away.
[140]
Later on, when it was put to him that the effect of the regulations
was that the African community was no longer able to decide
where
their livestock could graze because this was subject to the Board’s
control, his answered in a manner that became a
constant refrain in
this case: ‘there was an attempt to control’. In response
to a further question whether this in
fact took away their rights, he
responded emphatically: ‘I say it’s an infringement of
their existing rights’.
And further, this was done on the basis
of a racially discriminatory piece of legislation. It must be pointed
out that this evidence
all dealt with events before the cut-off date
for the institution of land claims in 1913.
[141]
When asked further whether three people and one hut in 1877, as
recorded by the Inspector in 1878, constituted a community,
he first
resisted answering the question, and then grudgingly accepted that it
is possible that no community existed then. However,
he insisted, the
three people already had rights and as more people joined they formed
a community and acquired those rights. He
then conceded that the
three people would initially have had individual rights, but, he
insisted, these rights would later have
been ‘transformed’
into the rights of a community.
[142]
Questioned further as to whether he accepted that the settlers became
co-owners of the Commonage when it was granted to them,
he responded
that he could not comment on this because he is not a lawyer. When it
was explained what this meant he conceded it.
But he then added that
as he understood it, they had the rights to graze cattle on the
Commonage, but he was ‘not sure whether
this (gave) them
ownership’.
[143]
When questioned on why he had testified that the government had
officially recognised the right of Africans to reside on private
property, such as the Commonage, when the Native Location Act 6 of
1876 specifically dealt with huts or dwellings erected on private
property, he answered that the Commonage was ‘common property’,
not private property. It was put to him that the interpretation
of
the statute is a matter of law to which he responded that it was a
question of grammar, not law.
[144]
It was put to him that if the community now claiming the land only
came into existence after 1877, they could not have acquired
rights
as a community because the land already belonged to the settlers. He
responded that he disagreed with this proposition but
without
explaining the basis for his disagreement.
[145]
In regard to why he was able to say that by 1884 a community had been
established on the Commonage, he answered that because
there were 130
people with 70 cattle, they would have had to have decided where to
graze their cattle, erect their dwellings and
would have had ‘laws
and regulations’, thus constituting a community; this, he
continued, was a matter of ‘common
sense’. He conceded,
however, that he had not investigated what the rules by which the
community functioned were; his brief
was only to examine the
documentary record, and not to investigate the structure of the
community.
[146]
It was put to him that the 1866 regulations, which predated any
African presence on the Commonage, also made it clear that
landowners
of the erven had a share in the Commonage. He answered that if there
were Africans then, they were ignored. He was asked
whether the
regulations suggested that the landowners controlled the Commonage to
which he responded that (similar to the 1906
regulations) the 1866
regulations on paper did not create control; ‘there was an
attempt to control’.
[147]
As to whether there were any complaints from Africans to the
magistrate in 1941 regarding any interference with their rights,
he
responded that by the 1940s they would have been ‘terrified of
white power and intimidated from making complaints’,
an answer
which he admits was speculative but, he retorted, was in response to
a speculative question.
[148]
In response to Chandler’s report, and in particular that the 26
dwellings of Africans on the Commonage in 1942 were
in close
proximity to farming operations on the farms and indicated that they
had probably been occupied by farm workers, he accepted
that he was
not an expert on this question and was therefore not able to
challenge this evidence.
[149]
The cross-examination thus far dealt with the rights that the African
people acquired after 1880 by residing on the Commonage;
not with
indigenous rights. On this question – the acquisition of
indigenous rights – he testified as follows:
‘
I
have an open viewpoint. I believe that the Xhosa do have indigenous
rights to the Zuurveld . . . and whether these Xhosa were
there in
the 1870s; it’s possible that they inherited those ancestral
rights as indigenous rights, but certainly those rights
were
confirmed by the Cape Government through its actions, through the
Inspector of Native locations, the collection of hut taxes
etc.’
[150]
It was put to him that the effect of the conquest of the Zuurveld in
1811 by British forces, together with the fact that that
Cape Colony
exercised exclusive control over the area thereafter, meant that any
indigenous rights the Xhosa had over the area
were extinguished. He
responded that he does not accept that – an issue on which he
was not qualified to give an opinion.
When asked by the court how one
established that a community had indigenous rights, he answered that
his expertise, as an historian
was to show that people – in
this case the Xhosa – occupied the Zuurveld before the Whites
had arrived there. He presumed
that this gave them legal rights but
he accepted that the determination of this question is one of law,
and not of history. In
response to a further question from Mr Roberts
as to whether it was his contention that because the Xhosa had
occupied the Zuurveld
in the eighteenth century that they may claim
indigenous rights for the entire territory, he responded that they
could.
[151]
On the issue whether the Africans lived on the Commonage to the
exclusion of the landowners, he answered that the landowners
had not
lived on the Commonage; they only had rights to graze their cattle
there. However, Africans also had cattle on the Commonage,
and lived
there with ‘rights’. But he avoided answering the
question directly.
[152]
After Legassick’s testimony was concluded, the claimants called
their two witness, Messrs Nondzube and Ngqiyaza. Thereafter,
midway
through the landowner’s case and after Professor Giliomee had
testified on behalf of the landowners, the court recalled
Legassick.
[153]
It will, however, be appropriate to set out Giliomee’s evidence
at this stage and Legassick’s subsequent testimony
thereafter.
Professor Hermann
Giliomee
[154]
The landowners called Giliomee to provide an opinion on Legassick’s
views regarding the land rights of the claimants,
its factual basis,
to conduct his further research and to prepare a report on these
matters. In summary his opinion was that the
Xhosa existed as a
political entity – not a cultural or linguistic entity as
Legassick suggests – in the eighteenth
century headed by a
king. Its borders were defined by the extent of the land occupied by
chiefdoms subject to the ruling Tshawe
clan. Land occupied by a Xhosa
chief would have been claimed as Xhosa territory, unless the King
denied any such claim, as Ngqika
did in respect of the Zuurveld. Any
claims to land made by the Xhosa as a cultural and linguistic unit as
it is considered today
would be inconsistent with political claims
that were then made by tribes on the grounds of prior occupation.
Such claims were
recognised by Professor Jeffrey Peires, the leading
historian on the Xhosa.
[68]
[155]
He testified that the first farms were given to the Boers in the
Zuurveld in 1779. By the early 1790s, 150 Boer families were
reported
to be living in the Zuurveld. Between 1793 and 1811, growing Xhosa
numbers and extensive cattle raids caused large numbers
of Boers to
flee. By 1808, Ndlambe, who was no longer a Regent, claimed the
Zuurveld on two grounds: he bought it from the Boers
and he won it in
war, not on the basis of prior occupation.
[156]
The Gqunukhwebe did claim the right to live in the Zuurveld on the
basis of prior occupation, but were expelled in 1811-1812
and never
returned as a community. There were three waves of new immigrants to
the area after the settlers arrived. The first were
Tswana-speaking,
the second the Mfengu and the third were Xhosa – but not the
Gqunukwhebe – who fled to the Albany
district after the cattle
killing in 1856. It is therefore ‘highly unlikely’, he
said, that anyone claiming to be a
descendant of the Gqunukwhebe, who
lived in the Zuurveld during that period would have lived in Salem
100 years later. And any
other Xhosa tribe claiming indigenous rights
on the basis of the Gqunukwhebe occupation would have been in an even
weaker position
to assert any right to the Commonage based on
indigenous title.
[157]
There is no evidence of any Xhosa clan or community living on the
land that became known as the Salem Commonage before the
expulsion.
After the expulsion there was no occupation of the Commonage by any
Xhosa community. And the Cape Colony became the
single authority over
the Zuurveld.
[158]
Once white power had been established over the Zuurveld, he
continued, the relationship between masters and servants would
have
evolved towards an unequal and exploitative one. This would have made
it unlikely that the British settlers and their descendants
would
have allowed their labourers or other Africans living on the
Commonage to establish rights.
[159]
The legislation passed by the Cape Parliament shows that Africans
could not have maintained sufficient autonomy to ‘build
up’
rights as a community, as Legassick suggested they did. With
reference to Legassick’s contention that the acquisition
of
rights to the Commonage was ‘the reciprocal side of paying
taxes’, Giliomee pointed out that the purpose of the
Native
Location Act 6 of 1876 was the opposite. Their purpose was ‘to
reduce the number of idle squatters’ (namely,
rent paying
tenants economically acting on their own behalf).
[69]
[160]
In Giliomee’s opinion, Legassick’s formulation of the
claim is one in which the claim is made by a community or
people as
descendants of the Xhosa nation to the Zuurveld without any borders
or reference to the land that is the subject of this
dispute.
Giliomee says that such a claim is extraordinary because all frontier
conflicts over land were between political authorities
over contested
boundaries. And there was no evidence of the existence of a community
as contemplated in the Act.
[161]
Giliomee refuted Legassick’s contention that the Xhosa attack
on Grahamstown in 1819, led by the prophet Makana, was
to recover
land lost in the expulsion, as not based on any factual or
documentary evidence. And he points out that all writers
on the
frontier have commented that the attack by Makana was to recover
cattle seized from the Xhosa by Lieutenant Colonel Brereton.
[70]
[162]
In regard to whether an autonomous community of African farmers –
an African peasantry as historians call them –
emerged in the
Albany and adjoining districts, and Salem in particular, during the
latter part of the nineteenth century, Giliomee
pointed out that a
large number of Africans settled on alienated Crown land or the farms
of absentee landlords making a living
as labour-tenants or as
rent-paying tenants. So, in the vicinity of Salem, the farmers were
likely to have permitted their labourers
to graze their stock on the
Commonage. But there is no reference to African farmers living there
in any capacity other than as
wage labourers and labour tenants, who
received cattle as a supplement to, or in place of, wages. Such
labourers were allowed to
graze their cattle on the Commonage, but it
is unlikely that they would have ‘built up’ rights as
Legassick contends
they did. The documentary evidence, Giliomee
maintained, suggests the contrary.
[163]
Giliomee also testified that he doubted Nondzube’s evidence,
which is considered later, to the effect that his great-grandfather
trekked past a kraal that existed where the Grahamstown Cathedral
(established in 1824) en route to the Commonage before 1811.
This is
because if there was an African Kraal at that spot there would
probably have been reports indicating this in district documents.
And
given Nondzube’s present age, which is 68, it is unlikely that
he would have had a great-grandfather over 100 years of
age to have
told that story.
[164]
A hut tax, Giliomee explained, was imposed on indigenous people
universally in British Colonies to force them into wage labour,
and
to inject more cash into the economy; they were not aimed at whites.
If a farmer in Salem did not want an African to live in
a hut, or if
the tax was not paid, he could simply terminate the employment and
evict him from the property. So Africans living
there did so at the
pleasure of the owner.
[165]
Under cross-examination Mr Krige attempted to debate the
interpretation of the laws and regulations that were passed towards
the end of the nineteenth century regarding African occupation of
white owned land with Giliomee. The essential proposition put
to
Giliomee was that these laws granted Africans rights to live on the
Commonage. As with Legassick’s evidence on these aspects,
these
are not questions that Giliomee was qualified to answer, and they
should not have been allowed.
[166]
It is further put to him that the claimants didn’t know whether
they were Gqunukwhebe, or Xhosa falling under Ndlambe,
and that his
suggestions that Xhosas owed different allegiances was simply one of
divide and rule, which he denied. This question,
however, makes clear
that the present descendants do not claim any rights by virtue of
being Gqunukhwebe.
[167]
Much of the cross-examination also involved Mr Krige arguing with
Giliomee instead of putting questions for the purpose of
establishing
or disproving facts.
[168]
Mr Notshe, for the claimants also put questions to Giliomee without
challenging his central contentions. Surprisingly, he
did not
challenge the evidence in which Giliomee called into question
Nondzube’s assertion that his great-grandfather had
passed
through an African kraal where the Cathedral is now situated in
Grahamstown in the latter part of the eighteenth century.
Professor Legassick’s
Supplementary Response
[169]
In his supplementary report in response to Giliomee’s
supplementary report and evidence Legassick became more assertive
about the claimant’s indigenous right to the Salem Commonage.
Contrary to his initial view that he had an open mind on this
question he now asserted that to prove indigenous rights ‘it is
merely necessary to show that Salem was within the bounds
of Xhosa
territory at the time that European settlers established
officially-titled farms in the Zuurveld’. The evidence
was
challenged in cross-examination on the ground that this would mean
that anyone showing some tribal affiliation with the Xhosa
would be
entitled to assert a claim over the entire territory. He insisted
that they could, which he was also not qualified to
give an opinion
on, and which I later point out the Act does not sanction.
The
claimants’ evidence
Mr
Msele Nondzube
[170]
As Mr Nondzube’s testimony lies at the heart of the claimant’s
case, it is necessary to set it out in some detail.
I mentioned
earlier that it is primarily upon his hearsay evidence that the
claimants’ claim to have ‘held’ the
Commonage in
accordance with indigenous law rests. He is Chairman of the Community
Property Association established to pursue this
claim. His evidence
in chief was as follows.
[171]
He was born on the Commonage, which he knows to be called Tyelera, on
16 April 1945. He was thus 68 when he testified.
The place of
his birth was on what became Mr Jack Hill’s farm, near the
graveyards of his family.
[172]
His grandfather was Landonda Nondzube. He learnt from Landoda where
his family had come from. Landoda had explained that they
were
originally from the Transkei where they grazed their cattle. They
moved to Dikeni, now known as Alice, and from there to Tyelera.
They
travelled through Grahamstown, it seems, before the town was
established, but before the expulsion in 1811. There was a Chief’s
kraal where the Cathedral in Grahamstown is now situated. They have
several clan names but are collectively known as the Jwara,
and are
of Xhosa descent.
[173]
He was unable to say when Landonda was born. Landonda’s father
– Nondzube’s great-grandfather – was
Phuphana.
Landonda told Nondzube that when they arrived in Tyelera he was a
‘small boy’ and Phuphana was a young man.
They were one
of the first families to settle there and when more people arrived
they called the place Lokishi. They were given
a place to live and an
area to graze their cattle and cultivate land.
[174]
Some of the other places, apart from Lokishi, where people lived were
Nkotyo, Ntyuweni, Maglolomini and Mantyi. They all had
burial sites
but most people were buried in Lokishi at a place called Soxhenxa.
There are also graves that belong to the Lonzobe
family under a
Mqwashu tree (milkwood tree), and another grave site at Mtyuwani.
[175]
He was not aware whether there was a leader at the time but he was
told that as time went by a leader was appointed for them
by the
Paramount Chief from the Transkei. There were two leaders, of which
Phuphana was one, and the other was Dayile, who he testified,
‘most
of the people’ talked about. These leaders executed the orders
of the Paramount Chief. Dayile was not of royal
blood because he
belonged to the Mantakwendas clan. All the people fell under Dayile’s
authority. He qualified this by testifying
that Dayile was entrusted
to carry out the duties of a Chief, but was himself not one.
[176]
The role of these leaders was to ensure that the people to whom they
had allotted land used it properly. They also mediated
disputes in
the community. Where the leader lived, he learnt, was regarded as a
‘great place’.
[177]
His grandfather told him that there were corn fields where they lived
and the boys would herd the cattle over these fields,
until they
reached the river called Qhora.
[178]
The community participated in initiation ceremonies where young boys
were circumcised. When a son was ready to leave his homestead
his
father would give him an axe, which symbolically entitled him to set
up their own homestead. The chief would then make a piece
of land
available for this purpose, as he would do for any newcomer to the
area. They also practised traditional medicine involving
a white clay
to cure illness and for use by women who have given birth. The clay
was also used during initiation ceremonies.
[179]
Phuphana, to whom reference was made earlier, was appointed as a
leader by the Chief from Mngqesha. When this happened Phuphana
had to
leave the location and stay at a place that later became Mr Hill’s
farm. Phuphana and Landonda considered this land
to be their own.
[180]
He related a story that he had heard from Landonda involving Mr Gush,
one of the 1820 settlers, which occurred in 1835: A
Xhosa impi
arrived at Salem. And the Xhosa people living behind the church on
the Commonage joined the impi on the opposite hill.
Phuphana was one
of these people. They stood on one side and Gush and the army he had
arrived with in 1820, on the other. Gush
and another white man
approached the impi unarmed. He told them that they had not come to
fight. He offered seeds to plant because
theirs, Gush said, was not
of a good quality.
[181]
They then began arguing about how they were going to share the land.
But the white people then recorded the incident differently.
They
said the Xhosa were hungry and Gush had given them bread. But that
was not true because when the settlers arrived ‘our
grandfathers were cultivating the land, they were planting there’.
He testified that this incident, involving Gush, took
place long
after his family had arrived in Tyelera.
[182]
Nondzube was taken through various places pointed out during the
inspection in loco, which he confirmed was the general area
where
Dayile’s homestead and their arable land were situated.
[183]
Under cross-examination he was asked whether his father also related
some of these stories to him. He first evaded answering
the question
directly; then he admitted that his father had also told him about
what had happened. Pressed further about whether
his father had one
discussion with him or several, he again elided a clear response and
answered that he had heard these things
when they sat down as a
family, and the elderly people told them these stories. And, he
continued, as the children grew up they
also related the stories to
one another. When asked whether he had told his counsel that he had
heard these stories, not just from
his grandfather but from other
family members as well, he once again avoided answering clearly until
the question was repeated.
He then answered that he had not conveyed
this information to him.
[184]
His grandfather, Landonda, died in the 1960s. His father was Jamani
Sukula. He lived some distance from the Nondzubes. He
also lived in
Tyelera, but not at the same place that Jack Hill had taken over. At
this point in his testimony, he described Tyelera
as ‘the whole
area we called commonage or Zuurveld, all that belongs to the black
people’.
[185]
He is asked whether his father lived on the Kings’ farm when he
was born, to which he responded that when he began to
understand
things, his father was living on Mr Ross Atwell’s farm after
the area was subdivided. When asked if this was on
one of the
privately owned pieces of land he answered unclearly: ‘that
place was Tyelera that is; that entire place was Tyelera
and then
they demarcated it and took it over’. The court then asked him:
‘So Tyelera was the area where the white community
lived on
farms as well as the Commonage, is that what you are saying’?
He responds, again unclearly: ‘Tyelera is a
place where black
people first arrived and settled there, our grandfathers, there
(were) no white people at that time.’
[186]
In response to a further question as to how Salem got its name, he
answered almost as a child telling a story would:
‘
My
grandfather says when the white people arrived there, they were led
by Colonel Graham and their religious leader was William
Shaw. Then
on a certain morning Graham woke up and went to William Shaw and
asked him what name they should give this place. William
Shaw went to
sleep and said I am going to tell you the next day. The next morning
William Shaw woke up, went to Graham and said
they are going to call
this place Salem, which means bees.’
When
asked further whether his grandfather mentioned all these names, such
as William Shaw, he answered that his grandfather had
not mentioned
this but that he added both William Shaw’s and Colonel Graham’s
names himself from what he learnt of
the history of the white people.
So, from this evidence it appears that some of what he learnt was
from his grandfather and other
things he learnt himself, and also
from his father. These answers reveal that the sources of information
upon which his evidence
is based are unclear and, as I discuss later
when evaluating this evidence, it is an important reason why it ought
not to have
been accorded any weight by the trial court.
[187]
He testified that his father was born on 28 September 1899 and he
died on 24 August 1997. Apart from Nondzube himself,
his father
had four other children: Fundeswa, Angelina and George, who all bore
the surname Sukula, and one other child, who died
at around 12 years’
of age. He took on his mother’s surname, ‘Nonzube’.
His claim as a beneficiary, however,
was made under the Sukula name,
after his paternal grandfather, Mr Kifa Sukula, and not his mother’s
name.
[188]
He testified further that he had attended a school in Salem and went
as far as standard four. He could not remember the name
of the farms
in the area. All he could remember was that the place where he was
born was handed over to Hill before his birth.
After that they moved
to Mr Knoud’s farm, which is also in Tyelera. Knoud bought the
farm from Mr Robyn Bradfield. He moved
to Knoud’s farm with
Landonda. His farm was nearer to the school than Hill’s farm
was.
[189]
He testified further that his great-grandfather, Phuphana came from
Dikeni, now called Alice. When asked whether he came from
the
Transkei he agreed. He came with his family and was accompanied by
other families.
[190]
It was put to him that the experts could find no evidence of any hut
on Hill’s erf in 1942, neither was there any archaeological
evidence of any graves there. He responded that his grandfather lived
there and that the Nondzube family graves were there. And
he insisted
incredulously that when he went to school they passed the spot where
he could see his ‘grandfather’s old
bones lying around
there’. He speculated that the whites must have ploughed the
land; that is why there was no evidence of
graves.
[191]
It was put to him that one of the spots to which he had pointed where
there had allegedly been graves was under a milkwood
tree where a few
stones were found during the inspection, and that tree is in an area
that was not part of their claim. In response,
he insisted
incorrectly that it was.
[192]
It was put to him that the photographs taken in 1942 show that there
were no huts scattered around the Commonage but were
concentrated
close to the private erven. He responded argumentatively: ‘What
I see here after the white people dispossessed
us they took
photographs; now after they have chased people away, now you are
showing us these photographs’. He was then
asked whether they
had done this deliberately to which he answered that they had. And,
he continued: ‘It’s what I think
considering the things
the . . . white people did to us’.
[193]
It was put to him further that the evidence on behalf of the
landowners would be that apart from one area he had pointed out
on
the Commonage as being arable land, which had been ploughed by a
landowner, none of the areas had been ploughed by anyone. And
that
his identification of those areas as having been ploughed by Africans
was incorrect. Again, he insisted, that his grandfather
had told him
that ‘they were ploughing there up until the road and over to
Qgoga . . . up to the road from Mr Bradfield’s
farm to
Seven Fountains’.
[194]
An example of one of the areas that Nondzube pointed out to be arable
land cultivated by the African people belonged to Jack
Hill; and it
was put to him that Hill’s descendants applied to the
Department of Agriculture in 1984 to cultivate virgin
soil (ie land
that had never been ploughed before), indicating that this land could
not have been cultivated by anyone before this.
In response he
steadfastly insisted that his grandfather had told him this, and
therefore it was true.
[195]
He was asked to comment on two other areas he had pointed out as
having been occupied by Africans, which are not part of this
claim,
and falls within the private erven of the landowners. He responded by
saying that he could not understand why this area
is not part of the
claim because it was in Tyelera, which, contrary to his earlier
description, he now described as ‘the
whole of that area which
they call Salem is Tyelera’.
[196]
Regarding his evidence concerning Dayile, it was put to him that he
had not been able to point out the location of Dayile’s
homestead during the inspection in loco. He responded by saying that
‘when we were there and I was pointing out where he
was living,
[the people attending] said [they] were tired and [we] did not go
there’. He was then asked why this had not
been recorded in the
minutes of the inspection because they recorded that ‘the exact
area of his homestead is unknown’.
It bears mentioning that his
answers at the inspection were recorded on a dictation-phone. He
responded unconvincingly: ‘I
said, I . . . can take you to that
place and . . . tell you that his house was in this area, but not to
point out the exact place’.
When it was put to him that what he
was saying now in court was also not recorded in the minutes he
replied: ‘I am not going
to dispute that but what I am telling
you, it is as it is, but it is like I am telling you’.
[197]
His answers in response to questions about whether he told Paul about
Dayile are also telling:
‘
Mr
Roberts
: Did he ever consult you about this claim? – Paul
was always amongst us because he was investigating the claim, I
cannot
say that I told him this or I told him that but he was always
amongst us.
Did
you tell him what your grandfather told you? – I am not sure
but there is nothing written down which I said to Paul.
So
did you tell him that there was a Chief Dayile? – I have
already mentioned that there were many things which we have discussed
. . .
Did
you tell him that there was a Chief Dayile? – Whoever told him
because all of us, it is a story related to us by our forefathers,
I
do not maybe I told him, or I did not tell him, because all of us
know that story because that is how our history was relayed.
Well
when he was questioned, he said he did not know that name? –
That would surprise me . . .’
[198]
Concerning what his grandfather had told him about Colonel Graham’s
expulsion of Africans from the Zuurveld in 1811
he testified that he
was told that they had fled to a place called Mnameni, which is now
Alexandria. And then, incredulously adds,
they took shelter in the
forest and returned to Tyelera when it was calm.
[199]
The conclusion of his cross-examination is even more telling; in
effect he conceded the landowner’s case, which the
LCC also
disregarded completely:
‘
Mr
Roberts
: . . . [D]id your grandfather tell you that white people
also grazed their cattle on the commonage, yes or no? – My
grandfather
told me that when they were being killed by Colonel
Graham and they ran away, on their coming back, they would have
stolen their
cattle and that is how they had possession of cattle and
they grazed them in that commonage.
So
the white people did graze live stock on the commonage . . .? –
Yes that is what my grandfather says.
And
were those cattle also grazed together with the cattle of black
people when they returned? – That is correct.
And
the white people also erected houses on the commonage? – When?
Together
the white people also ploughed on the commonage? – That is
correct.
And
the white people also erected houses on the commonage? – I say
bear in mind that when you are conquered, the person do
what he likes
with your thing.
And
did the black people start to work for the white people? – They
did work for the white for the reasons which I have put
forward; I
can even add other reasons.
So
there was a stage when the white farmers were farming and the black
people commenced being employed by the white people . . .?
– I
did not deny that . . . I said they were conquered.
So
once they were conquered the land belonged to the white people, is
that what you are saying? – Yes, the reason that we
have come
to this Court is because they are now claiming the land and we are
also claiming the land is ours.
Now
did the black people work for the white people on the erven . . . and
on the commonage? – Yes.
And
they subjected them to the rules of white people when they were
employed? – Yes I have told this Court that, if you are
conquered the conquered person obeys the rules of the conqueror.
So…after
the land had been conquered the whites decided what would happen on
the commonage, not the blacks? – Yes without
consulting the . .
. oppressed people, they did what they liked.
So
. . . Dayile could not decide any more what he wanted to do on the
commonage on his own . . . he lost his superiority as a chief
or
headman when the whites conquered the commonage . . .? – That
is correct.
.
. . After the conquering the blacks had no say of what must happen on
the commonage? – That is correct.
And
the whites then controlled the commonage? – That is correct.’
After
this catastrophic concession by Nondzube, Mr Notshe attempted to
rescue the claimants’ case in re-examination by asking
him
whether the loss of power referred to above occurred before or after
demarcation. Nondzube responded that it was after the
demarcation
that the chiefs lost their power. However, in further
cross-examination by Mr Roberts, Nondzube confirmed that the
black
people were conquered by Colonel Graham ‘[a]nd all the other
people who came after Colonel Graham’. In other
words, the
conquest occurred long before the demarcation.
Mr Ndoyityile
Ngqiyaza
[200]
The only other witness for the claimants was Mr Ndoyityile
Ngqiyaza who testified that he was born ‘in Salem at
Lokishi’.
He is uneducated and his evidence was not easy to follow. He was
unable to say when he was born, but his birth
certificate indicated
that he was born in June 1942. He comes from the Mqarwane clan. They
lived in a home, made of trees and mud
and had cattle and goats.
[201]
His father supported the family by selling firewood in Grahamstown
and cultivated lands in a place called Thafeni. He testified
that
they took the cattle long distances to graze. He left home after
demarcation because there was nothing else left at home.
[202]
His father then started working for Mr Bradfield. Bradfield would not
allow his father’s cattle on the farm; so he had
to sell them.
He was unable to say when his father died but he had heard from his
sister that their mother died in 1940. Her grave
is at Lokishi. When
asked whether she died before or after demarcation, he replied that
it was afterwards. His father’s grave
is on Bradfield’s
farm.
[203]
Under cross-examination he testified that he would not be able to
identify his place of birth in Thafeni. He agreed that during
the
inspection in loco he was not able to identify the place. He
testified that their home where he was born was about 400-500
meters
from the lime pit. He said that they had always lived there and had
not moved there from any other place. There were several
other huts
and families near them, also close to the lime pit.
[204]
It was put to him that one of Bradfield’s relatives, Andrew
Bradfield, said that he could not remember him. He answered
that this
was because Andrew was very young when he left. It was put to him
that aerial photographs of the area showed that there
were no huts in
the vicinity of the lime pit in 1942. He insisted, however, that
there were.
[205]
In response to a question what demarcation meant to him, he answered
that they were told that this farm belonged to one person
and that
farm to another person. Demarcation ‘was made for white people
and two coloured people’. Not for black people.
‘[I]t
brought hunger and we had no place to store our mielies.’
[206]
After a lunch adjournment, it was put to him that his parents only
moved to the Bradfield’s farm in the 1960s, long
after
demarcation. His answer to this (contrary to his earlier evidence) is
that this was correct, they had moved there after Mr
Don Bradfield
had died. Asked whether he had stayed at Mr Walter Penny’s farm
before this he answered that his elder brother
Tim had lived with the
Pennys. He was asked again whether he was born on Bradfield’s
farm. He answered that he was not. And
then the following exchange
took place:
‘
Mr
Roberts
: Where were you born then? – I was born at this
place now; it is Hobbits, which belonged to [Don Bradfield’s]
father.
Just
give us the name again of that place? – Lokishi
And
where were you born, just tell us again . . . were you born on the
Lokishi or at Mr Bradfield’s place
Mr
Notshe
: He is [inaudible] the witness, the witness has said four
times, at [inaudible] Lokishi.’
[207]
He testified that Mr Tim Ngqiyaza was his elder brother; who had died
three years earlier. Tim stayed with Walter Penny and
had been
employed by him.
The landowners’
evidence
Mr
Arthur David Mullins
[208]
Mullins was the first witness to testify on behalf of the landowners.
His father moved from what was then Rhodesia in 1952
to Salem and
farmed on the farm Moorelands, which is adjacent to the claimed area.
Mullins was born there in 1955. His father farmed
pineapples,
vegetables and beef cattle.
[209]
In 1964 Mullins senior took occupation of another farm, Avondale. He
sold Moorelands to Mr Barret Fowlds. Avondale was virgin
land, except
for parts of the erven and a small piece of the Commonage where the
previous owner, Mr Ross Attwell had grown
pineapples.
[210]
Upon their arrival at Avondale, the farm had two employees, one of
whom was Mr Jamani Sukula, Nondzube’s father. Sukula’s
age was then 65. He was revered on the farm as the senior citizen. He
had two daughters and a son George. In later years Mullins
became
aware of a fourth child, Nondzube. When Sukula died 30 years later at
the age of 94, Mullins was asked to read the eulogy
at his burial
ceremony. Sukula had played an important role in Mullins’ life
for more than 30 years and at the burial, Mullins
was presented with
a certificate of appreciation signed by, amongst others, Nondzube
himself.
[211]
During the 1980s Mullins senior bought the adjoining farms of Salem
Park, Devonshire and Willowbank, and also a portion of
Pleasant
Prospect. All of these farms are in the claimed area.
[212]
Mullins is a linguist and speaks isiXhosa fluently; he conversed
frequently with Sukula. Sukula told him that his father,
Mr Willie
Kifa Sukula (Nondzube’s grandfather), came from Seven Fountains
and then moved to the farm Kingston where he worked
for the King
family. Seven Fountains is not within the claimed area. Kingston is
contiguous to Avondale. They lived on the southern
side of the
Kingston homestead, ie on the erf, and not on the Commonage. And when
they moved to Avondale they likewise lived on
the erf.
[213]
In the 1970s, as Sukula was ageing, Mullins senior built a brick home
for him on the Commonage, 300 metres from the edge of
the erven. The
reason was that his previous dwelling was in the valley where it
became very cold in winter.
[214]
The second employee referred to earlier, who was on Avondale when the
Mullins family took occupation, was Mr Nimrod Plaatjie,
who is
also one of the claimants. He also lived on an erf slightly
north-west of where Sukula had lived. He also requested to move
because he had taken over the management of the livestock. So Mullins
senior built a home for him too, on the erf.
[215]
Neither Sukula nor Plaatjie had their own livestock. Mullins senior
assisted them to plough a small piece of land where they
could grow
vegetables. The Plaatjies had been on Avondale for about 25 years
before the Mullins’ had arrived there in 1964,
and Sukula had
been working on the farm for 40 years, since 1924.
[216]
During his frequent conversations with Sukula, the latter described
how his previous employer, Attwell, would, after the cattle
had been
milked, let them out for grazing on the Commonage. Sukula would then
walk for a distance, sometimes to the edge of the
Bushmans River, to
collect them.
[217]
Sukula described the Commonage as a ‘vast open piece of land’.
The landowners grazed their cattle there and the
cattle often got
mixed up. The black people who lived on the Commonage were close to
the erven where they were employed. He never
suggested that they had
any right to arable land, or that the whites had taken their land.
[218]
Sukula never mentioned that there were chiefs or headmen called
Dayile or Klaas Nondzube (another name for Phuphana). Each
individual
farm had their own elders and they had served as a leadership group
on that farm. They decided on disputes within the
community who lived
on the farms, and on initiation ceremonies. Where the disputes
involved members from another community, the
elders of the two
communities would get together to solve them, and if still
unresolved, the police would be called in and the
matter would be
taken to a magistrate. There was no chief or headman’s court.
With regard to initiation ceremonies they first
received permission
from the farmer because there were rules such as the prohibition of
snaring and hunting while the initiate
was in the bush.
[219]
The employees were given burial sites on the farms. On Avondale, for
example, Mullins senior designated an area and when that
area became
congested, Mullins designated a second burial site. It is here that
Sukula is buried. There are a number of graves
at this site. As far
as he is aware the landowners respected these grave sites.
[220]
On their farms Avondale and Devonshire, in order to farm pineapples,
they had to clear substantial areas of bush and applied
for
permission to the Department of Agriculture for this purpose. Of the
farms that Mullins senior, and then Mullins himself eventually
owned,
constituting seven portions of land in total, there were no remains
of arable land made by black people. The only piece
of arable land
when they arrived in 1964 was a small piece of land on which Ross
Atwell grew pineapples, and there was a garden
adjacent to the homes
of the Sukulas and the Plaatjies’.
[221]
He was taken to some of the aerial photographs used as exhibits, and
in particular some of the points on those photographs
that Nondzube
had testified about. One of the areas on exhibit ‘P’ (one
of the 1942 aerial photographs), was land that
he had owned until
recently. It was a portion of the farm Salem Park that had previously
been owned by Mr Cecil Tarr, Mr Spencer
Hill, and originally by
Mr John Harrison. A small portion of this land, in the south-western
corner was fenced off and used for
commercial farming. Before this
the area was virgin bush consisting of thickened edible berry and
mixed grass in between.
[222]
Mr Gordon Hill lived in the area coloured in blue next to areas
21, 25, 26 and 27 in Mullins’ father’s lifetime.
That is where the lone standing milkwood tree – the Mngqesha
tree referred to by Nondzube – is situated. Hill ploughed
that
whole area. On the south-eastern portion of that area, in between
areas 26, 27, 28 and 29 there is an area coloured in light
green.
This was part of the Commonage and had always been grazing ground,
except for a small piece adjacent to erf 544.
[223]
Next to Jack Hill’s erf, number 545, there is a dam built in
the kloof. It was built for stock watering purposes. Mullins
owned
that after 2001. In addition he identified the areas he had owned
until he had sold them to the government after a claim
had been
lodged against them. Until then he had been the chairman of the
farmer’s association. He sold the land for commercial
reasons
and not because he believed that there was any validity to the claim.
[224]
Regarding Nondzube’s evidence that the Commonage was called
Tyelera, he testified that this was ‘completely incorrect’:
‘
Tyelera
is the Kariega River that runs to the north of the claimed area; it
rises below that the Highlands mountain and runs through
a number of
farms in the valley . . . [and] into the sea at Kenton on Sea. The
Tyelera has no reference to Salem whatsoever.’
Mullins
testified that African people refer to Salem as ‘Esalem’,
and if one used it as an adjective there would be
an ‘L’
in front. The area referred to in the evidence as Thafeni, is
actually ‘Ethafeni’ and on the 1942
map it would be the
flat area to the south.
[225]
Between 1948-1954, there was a pineapple boom in the area resulting
in a huge influx of Africans into the area to perform
manual labour.
The 1949 aerial photographs showed the homesteads of African people.
The 1955 aerial photographs indicated a further
expansion of arable
land. In comparison with the 1942 maps, which showed very little
agricultural activity other than grazing,
the 1955 map revealed
blocks of land that had been ploughed.
[226]
Under cross-examination from Mr Krige he was asked to comment about
events before the 1820 settlers arrived and thereafter,
the evidence
of the historians and the content of historical texts despite his
making clear that he was ‘not aware’
of the history of
that time. He was also asked whether he had any knowledge of Africans
living independently on the Commonage before
his father had arrived
to which he responded that he had no personal knowledge. He was also
requested to comment on the documents
that form part of the record,
including his attitude to the laws and regulations passed to restrict
Africans.
[227]
Under cross-examination by Mr Notshe he was asked whether he denied
Nondzube’s evidence that Phuphana had settled in
Salem before
the settlers arrived to which he responded that this could not be
correct if one considers what his age would have
been. He explained
that on the basis that Nondzube was 68 years’ old when he
testified, and is ten years older than him;
Nondzube’s
grandfather, Landonda, would probably have been born around ten years
before his own grandfather. Mullins’
grandfather was born in
1886, and so Landonda would probably have been born around 1875. On
this basis Phuphana, Nondzube’s
great-grandfather, would
probably have been born around 1840-1845 because most people have
children between the ages of 25-30.
However, on Nondzube’s
version, Phuphana was already a grown man in 1812, and would have
been born somewhere in the 1700s.
He also would have been 80-90 when
Landonda, his son, was born in 1875, which is unlikely.
Mr
Spencer Hill
[228]
Hill was born in 1949 and farms in the Southwell area close to Salem.
His farm is not the subject of this claim. His grandfather
was Jack
Hill, who was born in 1896 and died in 1981, at the age of 85, when
he was 32. He is related to Thomas Hill referred to
in the minutes of
the Salem Committee of 1847. The minutes of 1887 reflect that two
Hills were present at the meeting. One is his
great-grandfather, and
the other his great-grandfather’s brother. He grew up on the
Rippley farm, which his father acquired
in 1946, after the Second
World War. The farm adjoined Jack Hill’s farm, which he visited
frequently.
[229]
His grandfather lived on the piece of ground number 545 on Exhibit
‘S’ with his two sisters. He also owned erven
542, 543
and 544.
[230]
His grandfather told him that the Commonage was where the erf owners
were allowed to run their stock. Most of them had employees
who had
worked on the farms, collected cattle and did general housework,
gardening and whatever else. They lived close to the homesteads
because transport was a problem; everybody walked to work.
[231]
Hill also told him that the landowners had a village management board
that made the rules regarding the grazing of their cattle
on the
Commonage.
[232]
Regarding the now much spoken about mngqesha or milkwood tree, and
the area surrounding it at points 21, 25, 26 and 27, the
erf was part
of the farm Rippley. His father sold it to Mr Havengouws. He
visited the place many times; there were never African
people living
there. They ploughed the area from boundary to boundary and he never
saw any graves or human remains there.
[233]
The area to the left of that area shaded light green and, numbered
26, 27, 28 and 29 was part of the Commonage where the landowners
grazed their cattle. It is across the road from the farm Rippley.
This section was never ploughed. It has ‘red grass’,
which could not grow on land that had been ploughed.
[234]
He confirmed Mullins’ evidence regarding why a dam was built in
the Sephton’s Kloof on the Commonage in 1847;
because they
needed permanent water for their stock. The Kloof is just below the
area on which his grandfather lived and shows
that the landowners
used the Commonage for their benefit.
[235]
The area on Exhibit ‘S’, numbered 21, 23, 24 and 25 also
coloured in light green was the farm Salem Park, which
he had owned.
He had bought it from Harrison. Except for a small portion at 21 and
25 of a few morgen that had been ploughed, the
rest was virgin bush.
Harrison used that portion, which he had fenced off, to plant for his
stock. In 1972, after Hill had bought
it from Harrison, he applied to
the Department of Agriculture to clear the bush and plough the virgin
soil. The application was
approved.
[236]
The 1942 map, Exhibit ‘P’, shows that there were no huts
on Rippley. In 1942, when his father moved to Rippley
it was a bare
piece of ground. They built a ‘wattle and daub’ house to
live in and started farming. There was no labour
either. When the
pineapple boom came, there was an influx of labour and the huts on
the 1949 map, Exhibit ‘S’ reflect
this. The farm was sold
to Mr Tarr, who sold it to Mullins. Someone else now owns it.
[237]
Under cross-examination he was asked by Mr Krige to confirm that when
he grew up in the 1950s ‘the whole of Salem and
the former
commonage of Salem was White farmland and Blacks were there as
labourers and servants’. He did. And further whether
his
grandfather had told him that in 1941 that there was an independent
African community numbering 450 people living on the Commonage
to
which he answered emphatically: ‘Definitely not’.
[238]
Regarding his application to plough virgin land in 1972, Mr Krige put
to him that if ploughed soil is left for 30 years, it
is ‘axiomatic’
that it would return to its original state. Again he answers
emphatically: ‘Definitely not’.
His evidence on this
crucial aspect was not contradicted and completely negates the
claimants’ case that an African community
had been ploughing
parts of the Commonage for its benefit.
Mrs
Ethel Phyllis Page
[239]
Mrs Page was born in March 1926 in Grahamstown and was 87 years old
at the time she testified. Her maiden surname was Van
Rensburg. Her
parents moved to Salem in 1934, when she was nine. Her father bought
a property called the Residency, which had previously
been occupied
by Mr Rex Mathews. She attended school next to the church until
standard six and Victoria Girls High in Grahamstown
afterwards. She
later worked in Salem as the postmistress for two years. She married
at 20 and moved to Springs, in the then Transvaal,
in 1946. She
returned annually to visit her parents.
[240]
As she was growing up she visited the homesteads of the Hills, Harris
and Panel families. In fact everybody visited each other.
She
remembers visiting the Masons at the farm Devonshire, which borders
the Residency. That farm was occupied by Mr Gush in earlier
years.
The Kings lived a distance away and came to Salem Village on horse
and cart.
[241]
She recalls what happened when the Commonage was cut up and
demarcated. Her father was allocated the farm Philmon’s
Hoek.
Her brother, Fred lived there and he had erected a fence around it.
[242]
The landowners used the Commonage to graze their cattle, but were not
allowed to plough or erect homesteads there. Mr Fletcher
Harris was
in charge of the Board. She could not remember how many cattle each
farmer was allowed to graze on the Commonage but
she thought it was
20, which was the number of cattle her father had.
[243]
Her father employed one male employee and a female maid for the
house. Her name was Dorris, but she could not remember the
male
employee’s name. They lived on another farm, not on the
Commonage. She thought that they were not allowed any cattle
on the
Commonage.
[244]
Jack Hill’s farm was some distance from theirs. His sisters
lived with him and she visited them. She would take the
road going up
towards the flats, which she remembered is called Voortrekker Road,
on the way to Seven Fountains. The Seven Fountains
Road is linked to
the Kenton-on-Sea Road. She rode her bicycle on the road often, about
once a month, and further on the main road
towards Alexandria. After
she became tired of this road, she used other roads.
[245]
She saw no black residential area on Hill’s property. It was
originally all bush, and he opened it up to plough. She
would have
been about 14 or 15 years old at the time she was cycling around the
area. When she left Salem after getting married,
there were still no
black people living there. She remembered the milkwood tree on that
property as well. There were no black people
living there either. She
was taken through Exhibit ‘P’ and pointed out the road
she used, where Hill’s property
was situated.
[246]
In an area shaded blue on the map she was asked whether there was a
homestead of black people living there to which she answered:
‘I
never saw anybody’. She was taken further to points 26, 27, 28
and 29 and asked whether there was any ploughing
there, as the
claimants allege. Again she answered that she saw nothing like that.
There was no ploughing, only grass and cattle
grazing, which confirms
the Spencer Hill’s evidence. Particularly in relation to point
29 she was asked whether she had seen
or heard of a homestead of
Chief Dayile. She answered that she used to ride her bicycle past
that spot and never saw any black
person there.
[247]
She identified another area, where Penny’s cottage was near to
the post office where she worked. Again, she testified
that no black
people lived there while she was in Salem. She testified further that
most of the black people who received mail
at the post office were
from Farmerfield, not from Salem. There may have been, she said, ‘one
or two’ from Salem.
[248]
At point ‘K’ on the map she was taken to points 17, 18,
30 and 3, demarcated in light blue on the map, which was
alleged to
be ‘t
he main homestead
area of black people’
. There too she saw no
homestead of black people. She added: ‘The only people that
were there were the people that were working
on the farms and they
lived on each farm’.
[249]
Before demarcation and the fencing of the area, her father and
brothers used to round up their cattle that grazed on the Commonage.
[250]
The farmers on their neighbouring farms, the Harris’ and
Burris’, employed labour who lived on their farms. The
property
belonging to the Panels was also in an area where there was ‘just
bush and grass’. There was no African homestead
there.
[251]
Under cross-examination by Mr Krige she maintained that she saw no
Africans on the Commonage or in the area where Dayile’s
homestead is alleged to have been. When asked whether it is possible
that she had not noticed them, she answered that she would
have
noticed had there been anybody there. She testified that she would
have been 16-17 when she cycled in the area, and the only
‘native
huts’ she saw were those on Hill’s property.
[252]
In response to a question whether her memory had faded after 60
years, she responded that she had a very good memory. She
was asked
whether she was aware that there was a location to which she answered
that she was not. She also testified she was not
aware of Africans
who had cattle on the Commonage.
[253]
She remembered, after thinking about it overnight, that her father
had two African families living on their property. The
first family
consisted of an adult male, along with his wife and a daughter. There
was only an adult male in the other.
[254]
The following exchange between Mrs Page and Notshe appeared in the
record:
‘
Mr
Notshe
: You admitted that there were blacks living at Salem
during the time . . .? – On the person’s property there
would
be one or two huts.
Mrs
Page is it your evidence that all the blacks who were at Salem were
living on people’s farms and were servants? –
That is
right.
.
. . Are you saying this as a fact that all blacks at Salem were
working as servants and were staying on their employers’
farms?
– Yes
You
are saying this as a fact? – Yes’
And
later:
‘
Mrs
Page how do you know that they were living on the farms? – Well
Salem is a small place you know?
Yes.
So? – The friends that I had, we knew that they lived on the
farm. Where else would they live? They could not come and
live on
another person’s farm.
They
lived on the native location. – Where was that? . . . I do not
know the place you are talking about.’
And
a bit later:
‘
The
blacks who were living there were growing their own food. Some of
them even selling it in Grahamstown. – I do not know
where they
got their food. I did not see any blacks living in clusters. They
lived on the farms and they got rations from the farmers.’
[255]
After this, the court took over the cross-examination,
inappropriately:
‘
Court
:
Mrs Page just to try and get some clarity on this. You have told us
what you saw. – Yes
And
what you can remember. Now if there were other black families and
homesteads and settlements and commonages that were around
in the
vicinity that you did not see, would that necessarily mean that they
were not there or you just did not see them? –
I never saw
anybody.
But
there may well have been? – Roaming around?
Yes,
no I accept that. I know you have indicated repeatedly that you did
not see people walking around, but if there were villages
in the area
. . . – I would have seen them or known about them.
You
did not see them? – I did not; personally I did not see them.
Yes,
but if there is other evidence to indicate that they were in fact
there, you cannot really dispute that? – Because I
did not see
it.
Because
you did not see it and whilst you were riding bicycles on the gravel
road and there were bushes on both sides, am I right?
– Yes.
It
was a bushy area. It was a lovely green, lush, bushy area? –
Yes.
You
did not peep through the bushes to see how many huts were there? –
No
You
enjoyed your ride? – Correct, but if there were any people
roaming about we would have known, because the man that rode
the
horses around would have known.
Yes.
Let us talk about you. Forget the man with the horses. When you were
riding the bicycle. – Yes.
On
this gravel road with bushes on both sides, you were having fun as a
young girl of fifteen and sixteen. – Yes.
You
were not particularly bothered about peeping through the bushes to
see who lives there, which hut is there, how many blacks
are lurking
around, because there are bushes that you cannot see it whilst you
are riding your bicycle. You are concentrating on
the road. Is that
not the case? – I would say so yes.’
Mr
Alwyn Cuan King
[256]
Mr King was born in 1954 and resides on the farm Kingston. It is
currently registered as farm 536 and was part of the old
lot number
38 in his name. His father, Alfred, born in 1906, was the previous
owner. They also owned farm number 539, which was
part of the
original lot 41.
[257]
His father settled on the farm in 1936, which his father’s two
aunts owned earlier. Alfred moved there to assist his
aunts and
started farming himself at the age of 30. He died in 1989. Thomas
King, one of the original settlers, was related to
them.
[258]
He was aware that the Commonage was separate from the allotments.
From the conversations with his father, he had learnt that
Alfred’s
aunts had employees, which he had taken over from them. They employed
four families. Three lived on the erven and
the other on the
Commonage just off the erven.
[259]
Alfred’s aunts initially resisted the subdivision because they
wanted a piece of ground on the other side of the Assegaai
River,
which now runs through the property.
[260]
The Board was in control of the Commonage at that time. It ensured
strict control measures regarding its usage. No ploughing
was allowed
unless permission was given. The number of cattle allowed to graze on
the Commonage was restricted depending on the
size of the erven the
landowner owned. No buildings were permitted. When the rules were
transgressed meetings were held and those
responsible would have been
‘sternly dealt with’.
[261]
There was never any mention of an independent black community having
lived on the Commonage. His father would not have permitted
it. King
was also an avid cricketer and is familiar with the cricket field
included in this claim. To the best of his knowledge
it was never
used as grazing area.
[262]
He confirmed Mullins’ testimony that Salem is not referred to
as Tyelera. Africans refer to the Kariega River as Tyelera.
He also
confirmed that the area demarcated by points 21, 22, 23 and 24 on
Exhibit ‘P’ was virgin land until Spencer
Hill was given
permission to plough it. Importantly, he adds that once land is
ploughed it cannot be restored to virgin land, as
the types of
grasses and trees that naturally grew do not return by themselves.
This evidence too is consistent with Spencer Hill’s
testimony.
[263]
In regard to the incident involving Gush and the impi in 1835, he
testified that what he had heard of the incident from his
family was
different to how Nondzube had explained it in court. As far as he
knew, there was only one group of attacking Xhosa.
He had never heard
of there being members of a locally resident Xhosa community coming
from behind the Salem Church and joining
the attacking force. He
heard the different version of the incident from his wife, who is a
direct descendant of Gush, from her
father and from Mrs Merry Mason.
[264]
In regard to the area marked as ‘M1’ and ‘M2’
just above Penny’s place he had never heard of
that place being
an African residential area. Most of the areas pointed out during the
inspection were situated on private erven,
not on the Commonage.
[265]
Under cross-examination, Mr Krige put a patently incorrect ‘fact’
to King, which was that one of the motivations
given for the
disestablishment of the location in 1941 was because there had been
450 squatters there, to which he responded that
he would not know
about that.
Mrs
Alice Theresa Bradfield
[266]
Mrs Bradfield was born in 1957 and married Mr Andrew Bradfield, the
son of Mr Don Bradfield, who settled on the farm Providence
in Salem
in 1940 at the age of about 20-21. She came to Salem for the first
time in 1974.
[267]
She had access to her father-in-law’s wage books. From the 1945
entries the first indicates that Mr Roman Jakala was
employed at a
salary of one pound per month. A further entry showed that Don
Bradfield had purchased a bicycle for one of his employees
because he
travelled a distance to work. There are also entries in 1967 and 1969
showing that two of his employees owned cattle.
He did not prohibit
his employees from having cattle on the farm.
Mr
Albert Alexander van Rensburg
[268]
Mr van Rensburg was the last witness. Born in 1923, he was two
months’ short of 90 when he testified. Sadly, he also
passed
away recently. Page, who testified earlier, was his sister. He also
moved to Salem with his parents and settled with them
at the
Residency. He attended school in Salem and then went to Alexandria
High School where he completed standard eight.
[269]
His father had 36-40 cattle that grazed on the Commonage. They
rounded up the cattle every fortnight. He had two African families
who built huts opposite the road from their house, on his property.
They were employed after the Van Rensburgs arrived there.
One of
the employees was from the adjacent area of Farmerfield. They usually
helped his father to round up the cattle and sometimes
he did so as
well, on horseback. The cattle walked long distances and sometimes
went as far as the flatlands, and even the Bushmans
River. One of the
families had their own cattle and his father had some oxen, which
helped with the ploughing. Their cattle also
grazed on the Commonage.
[270]
He testified that he had never seen any African settlement on any
portion of the Hill’s property. In regard to whether
the entire
Commonage was under the control of the claimants he answers: ‘No
such thing’. He also never saw any ploughing
or African huts on
the Commonage. He also never saw any homestead of any chief. He would
have seen it if it was there. He would
definitely have known had
there been black people in charge of the Commonage.
[271]
Under cross-examination by Mr Krige, he testified that he was not
aware of any location on the Commonage. With reference to
the report
of the Native Commissioner in 1941 that there were about 25 white
families with about 500 Africans of whom 50 worked
as servants, the
questioning proceeded with the Court again improperly intervening.
Once more, the witness delivers some telling
responses:
‘
Mr
Krige
: [The report] says the European population of the village
is between ninety and a hundred with 25 families, while the native
population
is about five hundred of whom fifty worked as servants. I
see you are laughing. – No, I never saw anything like that.
These
servants lived on the premises of their employers. . . That is fifty
and he goes on to say that “I am given to understand
that
certain Europeans have permitted squatting in the past.” –
Squatting?
Yes.
– That I know nothing about.
You
see Mr Van Rensburg I put to you that there are two possibilities.
One is that the native commissioner was lying when he stated
that
that there were five hundred blacks living at Salem. – Look I
can only speak the truth. I never saw anything like that.
The
other possibility is that you did not notice these black people
because you were not specifically looking for them. You were
looking
for cattle or you were looking for buck to shoot. – Now look we
are not all blind. You see whether there are huts
or groups of people
living and that would . . . [interrupted]
Court
:
Were you, 1941, you must have been about sixteen years of age.
Mr
Krige
: 1939 judge.
Court
:
1939?
Mr
Krige
: 1939 and he would have been sixteen.
Court
:
Sixteen, yes that is right. You would have been sixteen years of age.
Would you have taken an interest in all these issues about
huts and
the kraals or would you still have been a young man? – No look
you know, you are going out. You do not just ride
blindly. You notice
things. So you would have noticed if there were huts built on the
flats or whatever and I can truthfully say
I never saw something like
that .
.
. . Now it may be that you did not see it, but the commission records
that there were in fact blacks. Can you deny that?
– Well
look I never ever saw it. I can only speak (of) what I saw.
That’s
fine.
Mr
Krige
: But the possibility is that you did not see because they
were in an area where you were not? – Not five hundred people.
Hell you could not miss something like that. How many huts would be
included?
Court
:
So just for my understanding and really this confuses me . . . [T]he
government at the time was conducting some form of census
or
statistic to establish how many people were there. Now when you say
emphatically that you saw nobody, are they lying? –
Well I am
not saying they are lying, but I can only say what I did not see.
Mr
Krige
: Are you suggesting that you did not see them, but you are
not stating that they were not there, just that you did not see them?
– You know if you do not see something then obviously it is not
there.
No
there is a further deduction from that. If you did not see it, it is
that you did not look properly and that is why you did not
see it. –
No, that is not possible.
So
you are saying categorically that the native commissioner was wrong?
– Well look I can only say what I saw, nothing. There
was
nothing.
.
. .
Court
:
(to Mr Krige) I think he is a Jehovah’s witness and he says he
never speaks a lie and it is only the truth. So he may not
just have
seen it. I do not think you can take it any further.’
And
later:
‘
Mr
Krige
: Now as far as black huts on the commonage are concerned,
you said that you never saw any . . . ? Could it be that you had not
observed any because you were not looking for native huts? –
Look you know, one is not entirely blind to anything that is
taking
place when you are going through such areas quite regularly. You
would notice if there were huts on the flats.’
Apart
from the dubious value of this line of questioning, counsel’s
persistence in repeatedly pressurising an aged witness
for the
desired concession, aided and abetted by the court’s
condescending intervention, is to be deprecated.
[272]
In response to questions regarding the conditions under which his
father’s employees worked, his answers yielded the
following:
One of the families had oxen and a wagon. They used the oxen for
ploughing the ‘little land around the house’
for his
father. He gave them a portion of land across the road and there they
were allowed to plough and plant whatever they wanted
for themselves.
He could not say whether his father had paid them because he did not
know what arrangement they had with him.
[273]
Mr Krige suggests to him that his memory must be failing because
these events took place a long time ago to which he responds:
‘Look
my mind is pretty clear and I know and can only tell you . . . what I
know’.
[274]
Under further cross-examination, Mr Notshe covered the same area as
Mr Krige did in attempting, unsuccessfully, to get
the witness
to admit that he could have missed an African settlement on the
Commonage, and that he could not categorically deny
that Dayile was
the leader of the African community. The court intervened and in an
inappropriately patronising tone said to Mr
Notshe, with reference to
Van Rensburg’s evidence:
‘
Remember
you are dealing with an old man and you must take into account that
his memory has faded and the fact that his almost every
answer is not
a direct answer, because he either does not understand or he just has
a mind set about how he is going to respond.’
[275]
I have read and reread Van Rensburg’s evidence; the record does
not support the judge’s observation that his memory
had faded
and that he was not giving direct answers to questions. On the
contrary his evidence was clear and to the point. This
is despite the
fact that he was being badgered by counsel and treated in a
condescending manner by the court. It is, furthermore,
inappropriate
and improper for a court to declare its findings on credibility in
respect of a witness before the witness has completed
testifying and
without having heard argument on the issue. By acting in the way in
which it did, the court erred grievously.
The Proper Approach to
the Evidence
[276]
It is trite that in civil disputes the party claiming something from
the other party in a court of law has to satisfy the
court on a
balance of probabilities that he or she is entitled to it. The
standard is no different with claims for the restitution
of land
under the Act. In appeals against the factual findings of a trial
court, the position was set out thus by Zulman JA in
Santam
Bpk v Biddulph
[2004] ZASCA 11
;
2004
(5) SA 586
(SCA) para 5:
‘
Whilst
a Court of appeal is generally reluctant to disturb findings which
depend on credibility it is trite that it will do so where
such
findings are plainly wrong (
R v Dhlumayo
and Another
1948 (2) SA 677
(A) at
706). This is especially so where the reasons given for the finding
are seriously flawed. Overemphasis of the advantages
which a trial
Court enjoys is to be avoided, lest an appellant's right of appeal
“becomes illusory” (
Protea
Assurance Co Ltd v Casey
1970 (2) SA
643
(A) at 648D-E and
Munster Estates
(Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at 623H-624A). It is equally true that findings
of credibility cannot be judged in isolation, but require to be
considered
in the light of proven facts and the probabilities of the
matter under consideration.’
For reasons that will
become apparent, I am of the view that the LCC misdirected itself in
its assessment of the evidence and its
consequent factual findings.
The arguments raised by
the Commission and the claimants regarding the nature of this appeal
[277]
The Commission advanced a curious argument before us regarding the
power of this court to interfere with the decision of the
LCC. It
contended that in upholding the claim the LCC was exercising its wide
remedial powers under s 33 and s 35 of the Act. And
it was therefore
exercising a ‘true and strict discretion’ with which an
appellate court may only interfere on very
narrow grounds. It cited
the Constitutional Court’s judgment in
Florence
v Government of South Africa
[71]
to support this proposition.
[278]
The issue in
Florence
was
whether the LCC had exercised its remedial discretion properly in
determining the appropriate form of equitable redress. There
was no
dispute between the parties that the Florence family had been
dispossessed of a right in land.
[72]
The dispute before us, by contrast, is whether a right in land
existed (and if so, what the nature of the right was), and whether,
and if so, when dispossession occurred. These are factual matters the
claimants have to prove, as they would have to do in any
civil
dispute.
[279]
Questions of legal right are generally resolved by the application of
the law and not by the exercise of judicial discretion.
If the
claimants are successful in their claim the issue regarding the
feasibility of restoring the land to the claimants, or ordering
some
other form of compensation, which was deferred for later
consideration, shall then arise. And it is then and only then that
the LCC will be asked to exercise its remedial discretion. Mr Krige
was constrained to concede this.
[280]
The claimants advance an even stranger argument to prevent this court
from examining the merits of the dispute. It was contended
on their
behalf that once the Commission validated the claim the landowners
had to review that decision under
s 6
of the
Promotion of
Administrative Justice Act 3 of 2000
. Thus, the contention went, the
landowners bore the onus of proving that the decision was irrational,
ie that the decision was
not one to which the Commission could
reasonably have come on the evidence.
[281]
Unsurprisingly, Mr Notshe advanced no authority to support this
contention. What is surprising, however, and deserving of
censure, is
that he did not draw the court’s attention to contrary
authority: In
Phillips
v Minister of Rural Development
[73]
the LCC rejected this very argument – raised by Mr Notshe
himself – on the ground that the Commission did not adjudicate
or decide on the merits of a claim. This is the function of the
court. In that case, which was obviously correctly decided, Meer
J
cited three other cases to support her conclusion, one from the LCC
(
Farjas
(
Pty
)
Ltd &
another v Regional Land Claims Commissioner
,
KwaZulu-Natal
)
[74]
and two from this court (
Gamevest
(
Pty
)
Ltd v
Regional Land Claims Commissioner
,
Northern
Province and Mpumalanga
[75]
and
Mahlangu
NO v Minister of Land Affairs
)
.
[76]
The claims advanced by
the Commission and the claimants
[282]
The claimants and the Commission, which supports the claim, therefore
bear the onus to establish:
[77]
(a)
The claimants are a community;
(b)
who had a right in land;
(c)
that was dispossessed;
(d)
after 19 June 1913;
(e)
as a result of past discriminatory laws and practices;
(f)
the claim was lodged no later than 31 December 1998; and
(g)
no just and equitable compensation was received for the
dispossession.
For
present purposes it is only elements (a) to (e) that are in dispute,
and (f) only to the extent of whether a valid claim was
lodged.
[283]
Before I evaluate the evidence it is important to point out that the
claimants and the Commission advanced a hotchpotch of
vague,
confusing, and contradictory claims that developed during the trial.
The LCC glossed over this.
[284]
In their statement of claim the claimants alleged that they are a
‘community’ of black families whose forebears
traditionally occupied the
entire
Commonage from the 1800s. It
is apparent from Paul’s evidence that the date related to the
latter part of the nineteenth
century – from about 1880 –
because this was the period he investigated. On the basis of this
date the case was that
the community occupied the Commonage and
exercised traditional or indigenous rights to the land from about
1880.
[285]
However, in response to a request for further particulars by the
landowners as to whether the claimants admitted or denied
that the
Commonage was awarded to the 1820 settlers, the claimants responded
by admitting that the Commonage was awarded to the
settlers, but
claimed that the AmaXhosa had occupied the entire Zuurveld, including
the Commonage before this. And by implication
the claimants, who are
also of Xhosa descent, are descendants of the people who had occupied
the Commonage during that period.
[286]
This meant that the claim to indigenous title over the Commonage was
being advanced on two entirely different grounds: the
first by virtue
of being descendants of those who had occupied the land after 1880,
and the second by being descendants of those
who occupied the land
before 1820. Moreover, the claims were being advanced together and
not in the alternative.
[287]
A completely different claim – the third claim – was
advanced by the Commission’s expert witness, Legassick,
which
was that the community occupied the Commonage from about 1880 and had
‘built up’ rights by virtue of having paid
location
taxes.
[288]
The Commission’s and claimants’ assertion that an African
‘community’ occupied the Commonage independently
and
autonomously on the basis of shared rules regarding access to the
land was also contradictory. Paul sought to make the case
that the
community had no rules but had their own traditional way of doing
things, which he did not elaborate upon. The claimants’
case
directly contradicted the Commission’s: their case was that the
community had derived their rules of access to the land
from a chief
or headman by the name of Dayile. And yet a third ‘inherently
contradictory’
[78]
assertion, as the LCC characterised it, was that the community
derived their shared rules from the location regulations.
[289]
Regarding the nature of the rights that were alleged to have been
lost through dispossession the Commission’s initial
investigation came to the conclusion that these were labour-tenancy
rights. However, this was not the approach taken in the litigation.
The case pleaded, following Paul’s investigation and as set out
in the claimants’ statement of claim was that the rights
lost
were ‘ownership rights, residential rights, grazing rights and
rights to use the land for agricultural purposes, access
to firewood,
burial sites and the use of land as commonage for the entire
community’. In its referral of the claim to the
LCC for
adjudication the relief sought by the Commission was for the court to
‘upgrade the rights to full ownership rights’.
This could
only have meant, as I have indicated at the outset, that the
claimants could not have had ownership rights.
[290]
Regarding the dispossession, again several different and
contradictory claims were made. The pleaded case was that in 1926
the
community, then consisting of 500 people, occupied the entire
Commonage. They were then ‘herded’ into a location
on the
Commonage and placed under the control of a ‘native
superintendent’. This action was facilitated through the
implementation of
s 47
of Ordinance 10 of 1921 and the Natives (Urban
Areas) Act 21 of 1923, which entitled the Native Commissioner to
restrict and control
the rights of the black community. The
implication is that the dispossession took place in 1926.
[291]
But the other case pleaded is that the dispossession took place
through the court order that was granted by the Grahamstown
Supreme
Court in 1940, which allowed the landowners to subdivide the
Commonage and disestablish the location, where the African
Community
had acquired rights. The court granted the application, it is
alleged, against the background of the racially discriminatory
legislation then in existence and the location was consequently
disestablished in 1941, thereby dispossessing the African Community
of its rights.
[292]
In the evidence of Legassick, a new ground was advanced to support
the idea that a racially discriminatory practice –
not racially
discriminatory laws – underpinned the dispossession; the
practice was the failure by the Board, the judges of
the Supreme
Court and the magistrate, to consult the African community before
ordering the subdivision of the Commonage. In argument
before us,
when confronted with the inherent difficulties with this evidence Mr
Krige sought to make yet another case: the racially
discriminatory
practice was the failure of the court to treat the African community
equally, a contention that is difficult to
understand.
[293]
In summary therefore the Commission and the claimants advanced vague,
confusing and contradictory claims regarding the nature
of the rights
the community was alleged to have had over the Commonage, the rules
under which access to the land was determined,
how and when the
dispossession took place and the racially discriminatory practice or
laws that resulted in the dispossession.
[294]
The following questions arise in this appeal:
(i)
Did a Xhosa community or anyone else occupy the Commonage before the
settlers arrived in 1820?
(ii)
If there was such a community, what was the nature and content of the
rights they acquired over this land?
(iii)
Did this community have any relationship to the community that is
alleged to have been dispossessed of its rights in the middle
of the
twentieth century?
(iv)
Did the expulsion of the Xhosa from the Zuurveld in 1811 extinguish
any rights that they may have held over this area and the
Commonage
in particular?
(v)
What was the legal effect of the award of freehold title to the
settlers in 1848?
(vi)
Did a ‘community’ as defined in the Act exist on the
Commonage from 1878 to the 1980s?
(vii)
What was the nature and content of the rights this community
possessed?
(viii)
Was this community dispossessed of any of its rights? And if so when
and how?
(ix)
if there was a dispossession of any of the community’s rights,
was this the result of a racially discriminatory law or
practice?
The applicable principles
relating to the evaluation of evidence in this matter
[295]
The answers to these questions shall follow from an evaluation of the
evidence. As is apparent from what has been said earlier
there are
fundamental disputes regarding the credibility of the various factual
witnesses, their reliability and the probabilities.
The technique
employed in resolving such disputes is well-known, but it is
necessary to quote the approach as formulated by Nienaber
JA in
Stellenbosch
Farmers’ Winery Group & another v Martell et Cie
[79]
in full. I do so because the LCC completely disregarded all rules in
the manner it approached the evidence. This was incorrect.
There is
no reason to reject these elementary principles simply because this
is a land restitution matter. The LCC’s failure
to do so is a
misdirection that goes to the heart of its factual findings. Nienaber
JA said the following:
‘
The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as follows.
To come to
a conclusion on the disputed issues a court must make findings on
(a)
the credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probabilities. As to
(a)
,
the court’s finding on the credibility of a particular witness
will depend on its impression about the veracity of the witness.
That
in turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses
testifying about
the same incident or events. As to
(b)
,
a witness’s reliability will depend, apart from the factors
mentioned under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the
disputed
issues. In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded in discharging it.
The
hard case, which will doubtless be the rare one, occurs when a
court’s credibility findings compel it in one direction
and its
evaluation of the general probabilities in another. The more
convincing the former, the less convincing will be the latter.
But
when all factors are equipoised probabilities prevail.’
[296]
The parties also adduced both hearsay evidence and expert evidence
regarding the historical facts relevant to this claim.
They were
entitled to do so under ss 30(1) and (2) of the Act, which allows all
evidence that may be ‘relevant and cogent’
to be
admitted, even if it would not ordinarily be admissible. The court
is, however, not obliged to admit such evidence; it has
a discretion
to do so. And in this regard a court must remain alive to the dangers
posed by the admission of hearsay evidence.
[297]
Section 30(3) of the Act says that the court shall give such weight
to any evidence adduced in terms of the preceding sections
as it
deems appropriate. This simply means that, as with all relevant
evidence that is admitted, it must be sifted, weighed and
evaluated
in light of other evidence in order to give each piece of evidence
the weight to which it is entitled. Some evidence
may be unreliable
and will be discarded completely, while other evidence will be given
some weight but discounted.
[80]
None may simply be ignored. It is self-evident that the process of
fact-finding in this way must be underpinned by clear legal
reasoning.
[298]
The final category of evidence with which we are concerned is the
expert evidence. The role of historians, as expert witnesses,
has as
far as I am aware, not received any particular attention by our
courts. The issue is relevant in this case because the two
historians
who testified, Legassick and Giliomee, differed sharply on whether:
there were Africans living on the Commonage before
the expulsion of
the Xhosa from the Zuurveld in 1811; the descendants of those people
returned from about 1878 and resumed their
communal existence on the
Commonage; and whether the documentary evidence showed that this
community, in addition, were permitted
to ‘build up’
rights on the Commonage by the landowners. They differed not only
over the facts and the inferences that
may legitimately be drawn from
these facts, but also on the proper methodology to be used to arrive
at their conclusions.
[299]
The use of expert evidence to assist the court to establish
‘historical facts relevant to a particular claim’
is
specifically sanctioned by s 30(2)
(b)
of the
Act. There is good reason for this. In
Marvel
Characters Inc v Kirby
[81]
the United States Court of Appeals for the Second Circuit said the
following about the value of such evidence:
‘
We
have no doubt that a historian’s “specialized knowledge”
could potentially aid a trier of fact in some cases.
A historian
could, for example, help to identify, gauge the reliability of, and
interpret evidence that would otherwise elude,
mislead, or remain
opaque to a layperson. [A] historian’s task is “to choose
reliable sources, to read them reliably,
and to put them together in
ways that provide reliable narratives about the past”. He or
she might helpfully synthesize dense
or voluminous historical texts.
Or such a witness might offer background knowledge or context that
illuminates or places in perspective
past events.’ (footnotes
omitted)
[300]
A court must approach such evidence as it would any expert testimony.
In this regard Addleson J in
Menday
v Protea Assurance Co Ltd
[82]
explained that:
‘
In
essence the function of an expert is to assist the Court to reach a
conclusion on matters on which the Court itself does not
have the
necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy
the Court that,
because of his special skill, training or experience, the reasons for
the opinion which he expresses are acceptable.’
[301]
But courts must also be alive to the dangers inherent in expert
testimony. This is especially so because theories are sometimes
advanced on the basis of untested and supposedly neutral facts; and
conclusions drawn to confirm those theories. Ultimately, a
court
looks for the same qualities in historians as it would of other
expert witnesses: appropriate specialisation, thorough research,
and
conclusions that are well supported by the record.
[83]
[302]
In regard to establishing ‘historical facts’ it should be
borne in mind that fact finding – even of historical
facts –
is the responsibility of the trier of fact, not the historian. A
historian may give his opinion on the facts established
from
historical texts and documents and provide his reasons for these
conclusions. This may aid the court, but it cannot displace
the
court’s duty to establish the facts. A court must thus be alert
to the dangers of such testimony particularly when it
is directed
towards supporting partisan causes, as in the present case. In
addition, expert testimony – including that of
historians –
as to what the law is or what a document means is generally not
admissible. With that in mind I turn to the
evaluation of the
evidence.
Evaluation of the
Evidence
Evaluation of the oral
evidence
[303]
Nondzube’s hearsay evidence was relied upon to prove that an
African ‘community’ as defined in the Act resided
on the
Commonage before the 1820 settlers arrived, and remained until
allegedly dispossessed of its rights, more than 120 years
later. The
LCC found that he was an honest and reliable witness, but the record
shows the contrary.
[304]
His evidence of when his great-grandfather, Phuphana, together with
his grandfather, Landonda, travelled through the area
where
Grahamstown Cathedral was later built and settled on the Commonage is
risible. They would have had to have undertaken this
journey before
the founding of Grahamstown in 1812. And, according to Nondzube,
Landonda was a little boy at the time. He died
only in the 1960s,
which means he would have undertaken this journey more than 150 years
before his death, which is impossible.
[305]
Added to this piece of fiction is the story that Phuphana was part of
the impi preparing to attack the Salem Village in 1835,
but which
abandoned the attack following negotiations with Gush. Phuphana would
probably have been between 20-35 years of age when
he passed
Grahamstown before 1812 with Landonda. This would have made him
45-50, an unlikely age for a warrior. In addition, the
sequence of
events itself is bizarre. If it is to be believed, Phuphana had been
living on the Commonage for decades and had been
coexisting
peacefully with the neighbouring settler village for around 15
years. Nevertheless, he joined the group of Xhosa
intending to
attack the village, thought better of it when presented with seed,
and then returned to his land as if nothing had
ever happened, and no
further hostilities ever occurred.
[306]
Nondzube’s evidence is also inconsistent with contemporary
written records, which establish that the Xhosa were expelled
from
the Zuurveld in 1811 and driven beyond the Great Fish River and that
when the settlers arrived in Salem, nine years after
the expulsion of
the Xhosa, there was no sign of human habitation, other than the
derelict remains of the Bouer farm. Apart from
the Gush incident in
1835, there is no other evidence of any African presence in Salem
until 1878, approximately seven decades
after the war of expulsion,
when there were three Africans reported to be resident on the
Commonage. It is highly unlikely that
there was a significant African
presence before this, because the minutes of the Committee meetings
of the settlers give no such
indication. And, as should be clear from
the discussion above, the Committee would have been quite distressed
if an African community
had been living on what it considered to be
its Commonage. There is also no reason to believe that it would have
hidden such distress
and not recorded anything in its minutes. This
is, to say the least, highly improbable.
[307]
Nondzube’s evidence concerning the existence of a headman or
chief by the name of Dayile, which lies at the heart of
the claim, is
also totally unreliable. It will be recalled that his testimony was
that this man was the leader of the community
and resided in a
homestead on the Commonage, presumably with his family. Dayile
determined where families would live, work the
land and graze their
cattle. In other words, he determined the rules regarding the
community’s access to the land.
[308]
His hearsay evidence on this aspect stood alone; it was at odds with
Paul’s evidence for the Commission (which included
records of
interviews with other members of the claimant community), the
credible direct evidence of Page and her brother Van Rensburg,
and
the objective evidence of the land surveyors. The expert historians
were also unaware of the existence of any chief on the
Commonage.
[309]
Paul, who had investigated the claim and gathered information from
some of the claimants, had only heard of Dayile’s
existence for
the first time at the inspection in loco, and not from any of the
other claimants with whom he had spoken. Paul’s
report and
evidence regarding the shared rules under which the community existed
never mentioned Dayile. When this was put to Nondzube
in
cross-examination, his response was merely to express surprise.
[310]
During the inspection in loco, Nondzube pointed out the general area
where he was told that Dayile’s homestead had existed.
However,
the minutes recorded that he did not point out the exact location.
The reason he gave during his testimony for why he
had not identified
the exact spot was because the members of the court attending the
inspection were tired. He was not able to
provide any credible
explanation why this had not been recorded in the minutes of the
inspection.
[311]
Page and Van Rensburg lived on the private erf of their father, and
were familiar with the Commonage. Page rode her bicycle
over the
whole area, and Van Rensburg went hunting and rode on horseback to
retrieve his father’s cattle during their teenage
years,
between 1930 and 1940. They were emphatic that they had never heard
of Dayile or seen any homestead in the vicinity of the
area that
Nondzube had identified as where Dayile’s homestead had
existed. Neither did they see any evidence of other homesteads
or
areas of the Commonage that had been ploughed by Africans.
[312]
Their evidence is pertinently supported by the 1942 aerial
photographs and the common cause evidence of the of the land
surveyors,
Chandler and Gerber, who found no evidence of huts or
dwellings all over the Commonage, other than those close to the
private erven
of the landowners. This evidence is also corroborated
by Mullins, Hill and King.
[313]
Chandler’s evidence warrants closer attention not only because
it is vital to the outcome of this appeal, but also because
the LCC
inexplicably simply ignored it in its evaluation of the evidence.
Chandler’s observations were that most dwellings
were around
the Assegaai River on the perimeter of the erven. A number of
dwellings, which were not claimed, were on the erven.
Chandler and
Gerber agreed that in 1942, ie five years before the dispossessions
had allegedly begun, there were 48 dwellings.
Of these, 22 were on
the erven and the remaining 26, which were on the Commonage, were in
close proximity to the erven and linked
by pathways to the commercial
farming operations of the landowners. In my view, the most plausible
probable inference to be drawn
from these facts is that most or all
of the occupants of the 26 dwellings were farm labourers and possibly
labour tenants, and
not members of an independent autonomous
community with no connection to the landowners.
[314]
This evidence is significant for another reason. The claimants placed
much store on the Native Commissioner’s estimate
in July 1941
of approximately 500 Africans living on both the private erven and
the Commonage, of which 50 were servants. They
submitted, therefore,
that the remaining 450 people were not employed by the landowners and
probably resided on the Commonage as
an independent community. As an
aside, this was contrary to their pleaded case that there were 500
people living in the location.
However, in any event, these figures
and the inference sought to be drawn are contradicted by the aerial
photographs. It is impossible
that 450 people were living on the
Commonage in 26 huts – an average of 17.3 people per hut –
while 50 people were
living on the erven in 22 huts. It seems far
more likely that the spread of people between the Commonage and the
erven was closer
to equal. And, in addition, given that there were
only 48 huts in 1942, the population figure of 500 (ie more than 10
people per
hut) seems improbably high. There is a strong likelihood
that the total population was less than half of that. And, if
that
is correct, instead of there being 450 non-servants to 50
servants, the figure would be closer to 200 non-servants to 50
servants.
Bearing in mind that these ‘non-servants’ would
include children and elderly people, this would make it even more
difficult
to characterise the community as independent and
autonomous.
[315]
However, what is not only improbable, but cannot even be reasonably
possibly true from Nondzube’s evidence, is that
for a period
spanning more than 50 years, when Dayile was supposedly allocating
land on the Commonage to his subjects according
to rules with which
the community supposedly complied, there is not a single indication
in the minutes of any Board meeting, or
any of the documents spanning
this period, of his existence. The proposition that for more than
half a century he could have existed
and parcelled out land owned and
controlled by the landowners, to an independent autonomous community,
without the landowners being
aware or taking any steps to challenge
or document this, beggars belief. But even if Dayile existed and
allocated land to people,
he had no right to do so because the
Commonage belonged to the landowners. Consequently, he was not able
to transfer rights in
that land to anyone.
[316]
Ultimately, there was just no objective or corroboratory evidence for
Dayile’s existence: when he was born or died;
when he arrived
in Salem, whether he died there or departed from the area; where he
resided or whether he had a family. He was
no more than an
apparition. So when a member of this court enquired from Mr Notshe
when Dayile was supposed to have been present
on the Commonage, he
was driven to speculate, without reference to the record, that this
was ‘before and after 1913’.
[317]
Another telling bit of evidence, which Nondzube only disclosed under
cross-examination, was the existence of his father, Mr
Jamani Sukula.
He was born in 1899 and died working for Mullins at the ripe old age
of 94. Mullins had a close relationship with
him. Nondzube testified
that he had heard the same stories that Landonda had related to him
regarding their occupation of the land
from Sukula.
[318]
According to Mullins undisputed evidence, Sukula had worked and lived
on the Attwell farm since about 1924. He had never mentioned
the
existence of Dayile or any independent community on the Commonage.
Significantly, Nondzube’s land claim was made under
the name of
his paternal grandfather, Kifa – Sukula’s father –
and not under his maternal family name, Nondzube.
There was no
attempt by Nondzube to explain how it was possible for his father to
have been an employee of several landowners,
while all his other
relatives (including his grandfather) belonged to an independent
community. The likelihood is that his other
relatives too, were
employed on the farms.
[319]
Another piece of his evidence demonstrating his total lack of any
reliability was his testimony regarding what the name ‘Tyelera’
referred to. He gave several inconsistent versions: Tyelera was the
whole of Salem; it referred to the Zuurveld; it was one of
the areas
where the community ploughed and it referred to the Commonage. Both
Mullins and King contradicted him explaining that
Tyelera derived its
name from the Kariega River. Mullins testified that Africans referred
to Salem as Esalem. Their evidence was
consistent and unshaken.
[320]
It is therefore not surprising that at the end of his
cross-examination, Nondzube’s version, that of an independent
community governed by Dayile’s rules, fell apart with him
conceding that the landowners determined the rules over the
Commonage.
Despite this issue being central to the claimants’
case, and Nondzube’s concession being nothing short of
calamitous,
the LCC simply ignored it.
[321]
This does not mean that Africans who were residing on private erven
and on the Commonage did not live by customary rules or
practices. It
is clear from the evidence that there were rules and norms governing
social practices. However, because the African
community was not
independent and autonomous and did not have control over the land in
the area, the rules did not extend to aspects
of life such as
allocation of land and grazing rights. Mullins evidence as to how the
community functioned was persuasive and credible,
unlike Nondzube’s.
Paul’s evidence on this issue on behalf of the Commission was
vague and, by his own admission, had
not been properly investigated.
[322]
Nondzube’s evidence therefore did not establish that a
‘community’ as defined in the Act existed at any
stage
from about 1800 to 1940. His hearsay evidence should have been
disregarded as being completely unreliable, and accorded no
weight
whatsoever. The failure on the part of the LCC to do so was a
misdirection.
[323]
Ngqiyaza was the only other witness for the claimants. The LCC found
him also to have been a reliable witness. His evidence
was sometimes
difficult to follow, perhaps due to his lack of education and
literacy. He explained that demarcation brought suffering
because his
father could no longer obtain firewood from the Commonage for sale in
Grahamstown. This may possibly have been the
result of the farms
having been fenced off and subdivided.
[324]
But parts of his evidence were not satisfactory. It is not clear
whether he was born in Lokishi (the location) or on Bradfield’s
farm. His evidence that there were several dwellings next to his home
in the vicinity of the lime pit is inconsistent with Chandler’s
evidence as to where dwellings were situated in 1942.
[325]
The main difficulty with his evidence that he was born in the
location in 1942 – if his birth certificate is correct
–
is that the location had ceased to exist by 1934
and was formally disestablished at about the time he was born.
It
is also apparent from the interview Paul conducted with Mr Tim
Ngqiyaza, who was Ngqiyaza’s older brother and is sadly
also
deceased, that he was also born in the location and had always worked
for Walter Penny, which means he was a farm-worker and
always resided
in the area as an employee. There is no indication from the recorded
interview with Tim Ngqiyaza that his father
was not employed on any
farm.
[326]
In my view, apart from the obvious difficulty that Ngqiyaza’s
evidence is inconsistent with Chandler’s observations,
and is
also unclear, it does not materially advance the claimants’
case. I accordingly discount it, as the LCC should have
done.
[327]
I have set out Paul’s evidence in some detail earlier. He was
argumentative and evasive. Some of his answers were incoherent.
He
was not able to deal with questions about: whether the Commonage was
occupied by Africans when the settlers arrived; whether
they were
they forced out and by whom and whether this happened before or after
1913; whether the Africans occupied the entire
Commonage or part of
it; how occupation of the entire Commonage would have been possible
in the face of the settlers having erected
buildings and developed a
cricket field on it; where the landowners were and what they were
doing while the African community occupied
the Commonage and whether
the community was aware of the existence of the Board. The answers to
these questions were vital to the
Commission’s (and the
claimants’) case.
[328]
It is also apparent that the laws he mentioned as having resulted in
the racially discriminatory dispossession of the African
community,
namely Ordinance 10 of 1921 and the Native (Urban) Areas Act 21 of
1923, discussed earlier, had no bearing on the issues
in this case
either. The LCC did not rely on them for this purpose, and even
though the location was formally disestablished on
14 November 1942
in terms of the Native (Urban) Areas Act of 1923, the facts show that
the location had ceased to exist by 1934.
This is fatal to the
claimants’ pleaded case that the dispossession occurred in 1942
after the formal disestablishment of
the location.
[329]
The importance of Paul’s interview with both Tim Ngqiyaza and
Mrs Nofikile Simayile was this. It appears from Tim Ngqiyaza’s
interview that he was always an employee of a landowner. And Simayile
was born on Mr Lloyd’s farm in 1905. This means that
they
resided on the farms of, or worked for, landowners and could not
possibly have been part of a community that lived independently
of
the landowners.
[330]
In general it is apparent that he conducted a very superficial
investigation regarding the disputed issues in this case. No
weight
can or should have been attached to his evidence.
Evaluation of the expert
testimony
[331]
Legassick’s brief was to examine the documentary evidence and
give his opinion on it. His testimony, however, went well
beyond
this.
[332]
He testified that: Xhosas had acquired indigenous rights over the
Commonage before the settlers arrived in Salem in 1820;
the
legislation and regulations in force between 1870 and 1940 allowed
them to build up legal rights; it was a question of common
sense, not
law that a ‘community’ existed on the Commonage; the
interpretation of laws and regulations were questions
of grammar, not
law; the legal rights of Africans living on the Commonage were
violated because the African community were not
consulted by state
officials – by the Board, the Magistrate and the Grahamstown
Supreme Court – concerning the subdivision
of the Commonage, or
of the disestablishment of the location, which constituted a racially
discriminatory practice, and ‘violated
their right of
occupation and dispossessed them’. His opinion on all of these
questions, being questions of law, was inadmissible
and should not
have been admitted.
[333]
In regard to his opinion on the documentary evidence, the court, as I
have said, is the ultimate arbiter of what facts are
established by
this evidence and the inferences that should properly be drawn from
these facts. I find that Giliomee’s evidence
on the disputed
issues accorded more closely with my assessment of the evidence. In
particular his evidence is supported by clear
facts from the
historical record that an independent autonomous African community
could have existed on the Commonage.
Determination of the
issues
[334]
Having considered all the evidence, I must now decide the issues that
arise as set out earlier. The first three issues may
be considered
together. These are: (i) whether a Xhosa community or anyone
else occupied the Commonage before the settlers
arrived in 1820; (ii)
if there was such a community, what was the nature and content of the
rights they acquired over this land,
and (iii) if so, did this
community have any relationship to the community that was alleged to
have been dispossessed of its rights
in the middle of the twentieth
century.
[335]
It is undoubtedly so that Xhosa-speaking people occupied parts of the
Zuurveld from about 1750, before any white occupation
of this area.
And, thereafter there were conflicting claims not only between
colonisers and colonised, but also among the Xhosa
themselves, as is
evident from the dispute between Chungwa and Ndlambe. But this does
not help us establish whether any community
occupied the Commonage as
a fact before 1820.
[336]
Legassick’s suggestion that it is sufficient to show that the
Xhosa occupied the Zuurveld to lay claim to the Commonage
cannot be
correct. He was not an expert on matters pertaining to the
acquisition of territorial rights by tribes, clans or political
entities and the claimants led no other expert evidence on this
issue.
[337]
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 Act does not
recognise
claims of this nature.
[338]
So, it is necessary for the claimants to prove that there was in fact
a community that occupied the Commonage during that
period. There is,
however, no such historical evidence. The only evidence that we have
is of the Bouer farm, established in the
immediate vicinity of the
Commonage in 1785, which had been abandoned when the 1820 settlers
arrived.
[339]
Paul’s speculative and Nondzube’s fanciful and
demonstrably false evidence of prior African occupation of the
Commonage I have already rejected. The record also shows that the
first African presence on the Commonage appears from the report
of
the Inspector of Native Locations in 1878, 58 years after the
settlers arrived. It indicates that there were three ‘natives’
and one hut on the Commonage. The claimants therefore did not
establish a factual basis for the assertion that they were
descendants
of a community that occupied the Commonage before 1820.
That disposes of the first three issues in this appeal.
[340]
The fourth issue to be decided is whether the expulsion of the Xhosa
from the Zuurveld in 1811 extinguished any rights they
may have held
over this area and the Commonage in particular. And the fifth, what
the legal effect of the award of freehold title
to the settlers in
1848 was.
[341]
It is not strictly necessary to investigate the fourth issue, because
I have found that the claimants have failed to prove
that a Xhosa
community occupied the Commonage before 1820 and therefore that they
had any rights over it. However, in view of the
approach taken by the
LCC, and the claimants, the issue must be dealt with. It is therefore
necessary to explore the legal principles
pertaining to the loss of
indigenous rights.
The Legal Principles
Pertaining to Loss of Indigenous Title and Their Application
[342]
In
Alexkor
Ltd v The Richtersveld Community (CC)
[84]
the Constitutional Court described indigenous law as a:
‘
[S]ystem
of law that was known to the community, practised and passed on from
generation to generation. It is a system of law that
has its own
values and norms. Throughout its history it has evolved and developed
to meet the changing needs of the community . . .
The
determination of the real character of indigenous title to land . . .
involves the study of the history of a particular community
and its
usages. So does the determination of its content.’
[343]
A ‘right in land’ as defined in the Act
[85]
is not confined to common law property rights but is of wide import.
It means:
‘
[A]ny
right in land whether registered or unregistered, and may include the
interest of a labour tenant and sharecropper, a customary
law
interest, the interest of a beneficiary under a trust arrangement and
beneficial occupation for a continuous period of not
less than 10
years prior to the dispossession in question.’
[344]
However, to establish indigenous title, it must be shown that
indigenous people claiming such title exclusively and effectively
occupied the land, even if only seasonally, as is consistent with a
nomadic lifestyle.
[86]
This may be established by judicial notice, reference to writers on
the topic and other authorities and sources, and may include
the
evidence of witnesses if necessary.
[87]
The landowners dispute that the claimants have proved indigenous
title.
[345]
In
Richtersveld
Community v Alexkor Ltd (SCA)
,
[88]
this court recognised that any sovereign exercise of power by the
State may extinguish indigenous land rights. But this would require
a
clear intention and conduct on its part evincing such intention. A
grant of land to another person would be such a case.
[89]
It thus approved the following dictum from the Australian case of
Mabo v
The State of Queensland (No.2)
:
[90]
‘
Where
the Crown has validly alienated land by granting an interest that is
wholly or partially inconsistent with a continuing right
to enjoy
native title, native title is extinguished to the extent of the
inconsistency. Thus native title has been extinguished
by grants of
estates of freehold or of leases . . . .’
[346]
In
Alexkor
Ltd v The Richtersveld Community (CC)
[91]
the Constitutional Court said that indigenous law ownership may be
extinguished if:
‘
(a)
the laws of the Crown expressly extinguished the Community's
customary law ownership of the land;
(b)
the laws of the Crown . . . rendered the exercise of any of the
material incidents of the indigenous law right to ownership unlawful;
(c)
the Community was granted limited rights in respect of the land by
the Crown in circumstances where the only reasonable inference
to be
drawn is that the rights of indigenous law ownership were
extinguished; or
(d)
the land was taken by force.’
It
is thus clear that once indigenous rights are extinguished, either by
law or by force, they cease to exist. And conversely such
rights can
only be regained by law (or, historically, by force).
[347]
Among the questions with which we are concerned in this case is
whether the forcible expulsion of the Xhosa people from the
Zuurveld
in 1811, and the subsequent grant of land, including the Commonage,
to the Salem settlers, first through quitrent, and
thereafter
freehold title, had the effect of extinguishing any indigenous title
to land of anyone claiming such title may have
had.
[348]
From the principles enunciated above, it is clear that any claim to
indigenous title over any part of the Zuurveld was extinguished
by
the brutal expulsion of all Xhosa-speaking people in 1811.
[349]
The LCC however found that the Xhosa factually never lost their
rights. It reasoned that after the Fourth Frontier War during
which
the Xhosa were expelled from the Zuurveld, there were six more
Frontier Wars in the Zuurveld. And thus that:
‘
[T]here
is no evidence that the settlers at any time managed to have complete
authority over the Zuurveld and that the Xhosa relinquished
their
rights and were completely expelled.’
[92]
[350]
The impact of the further wars was, however, not explored in the
evidence and there was no basis for the court to make this
factual
finding. However, from Mostert’s study of the Frontier Wars
[93]
it is clear that there were only five more Frontier Wars between 1835
and 1878, not six. And only the sixth, in 1835, involved
contact with
the settlers in the Zuurveld, and ended in defeat for the Xhosa. On
that occasion the settlers at Salem were not attacked
and no attempt
was made to take over the land they had occupied. The incident is
referred to earlier involving the meeting between
Gush and the impi.
[351]
Thereafter the theatre of conflict was concentrated mainly in the
area between the Great Fish and Great Kei Rivers, far to
the east of
the Zuurveld. And none of those wars, spanning more than 40 years,
involved any of the land occupied by any of the
1820 settlers. So
there is no basis whatsoever for the LCC’s conclusion that
after the expulsion in 1811, any part of the
Albany district,
including Salem Village or the Commonage was re-occupied by those who
were expelled. Indeed, this flies in the
face of the historical
record. The fact that some of the Xhosa may have wished to return, of
which there is no evidence, or may
have believed that they were
entitled to the land, has no bearing on the issue.
[352]
The fifth issue concerns the legal effect of the award of the
Commonage to the settlers in 1848. The Grahamstown Supreme Court
held
that the grant contemplated the permanent settlement of settlers at
Salem.
[94]
It was of grazing land to the Salem Party of erf-holders to be held
communally. Simply put the landowners owned the land communally.
The
court compared the rights of erf-holders on the Commonage to ‘native
law’ which also recognised that land held
under tribal tenure
belonged to the tribe, and not the individuals, who constitute it. It
is therefore beyond any doubt that the
nature and content of the
ownership right awarded to the settlers rendered it incompatible with
the exercise of any indigenous
rights by any other community. The
award was therefore akin to the Crown by law expressly extinguishing
any claims to prior ownership.
[95]
[353]
The LCC misunderstood the landowners’ case to be that their
common law rights should prevail over the unregistered indigenous
rights the claimants held over the disputed land.
[96]
But this was not their case; their case was that the claimants did
not have any rights – indigenous or common law –
as a
community, which could have been dispossessed as contemplated by the
Act. The events before and after the award are completely
consistent
with this. The LCC appears to have arrived at a similar conclusion to
the one reached here after finding that over time
the written rules
of the Board ‘took predominance over traditional and customary
rules, as the two were inherently contradictory’.
[97]
However, this conclusion flies in the face of its main conclusion
that the claimants had established indigenous title.
Were the forebears of the
claimants a community?
[354]
I turn to the sixth, and central issue, whether an independent
‘community’ as contemplated in the Act existed
from
between 1878 and the middle of the twentieth century. In
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
,
[98]
the Constitutional Court propounded a two-pronged test in order to
determine whether a claim was in fact a community claim by
establishing whether the community (a) retained much of their
identity and cohesion as part of the original clan; and (b) ‘held’
and determined access to the land in common through shared rules.
[99]
[355]
The LCC held that the claimants had established that they were a
‘community’ as contemplated in the Act and had
resided on
the Commonage on the basis of shared rules. In coming to this
conclusion it accepted the evidence of Nondzube and Ngqiziya
as
‘honest and credible’ and rejected the landowners’
evidence as improbable. It found that the documentary evidence
supported the claimants’ case.
[100]
It is startling that even though the claimants’ case on this
aspect rested primarily of the existence of Dayile, which the
landowners contested vigorously it was apparently not material to the
court’s reasoning.
[101]
[356]
The judgment upholds the claim that an autonomous community with
rights in land, who were not employees of the landowners,
resided on
the Commonage. It says that the rights of the claimants were not
merely economic rights to graze and cultivate in a
particular area,
but were rights of families connected to their forebears. And yet the
concluding paragraph of the judgment perplexingly
finds the opposite,
totally contradicting the main premise of the judgment:
‘
[T]hey
were not simply there by the grace and the favour of the
Colonialists. The paternalistic and feudal-type relationship involved
contributions by the family, who worked the lands of the farmer.’
[357]
To have ‘worked the lands of the farmer’ in a
‘feudal-type’ relationship, the claimants’
forebears
would have had ‘master-servant’ relationships
with the farmers. The further obvious implication of this passage is
that the farmers owned this land, and contrary to the LCC’s
conclusion, the community could only have been there ‘by
the
grace and favour’ of the landowners.
[358]
I have already held that Paul’s and Nondzube’s evidence
of the existence of a community as contemplated in the
Act cannot be
given any weight. However, in regard to the documentary evidence, the
LCC found that it supported the claimant’s
case. It found:
‘
None
of the witnesses of the [landowners] could proffer an explanation for
the large native population. . . [The 1878] native returns
indicate
that there were 42 natives, 47 cattle and 9 huts on the
Commonage.’
[102]
And
later:
‘
In
1932, only 6 huts were on the Location yet there were 300-400
natives. It can be inferred that these natives were not all living
in
6 huts. And it is Mr Nondzube’s testimony that they lived on
the Commonage.’
[103]
[359]
The Commission supported this finding, adding that by July 1941 there
was an African population of 500 on the Commonage.
[360]
These figures are quoted selectively and do not give the true
picture. The historical narrative shows that the settlers controlled
the Commonage since their arrival by establishing a Committee for
this purpose. By 1848 they owned the Commonage. Africans began
seeking employment in the area in the latter part of the nineteenth
century. Some obtained employment from the landowners, while
others
were labour tenants or had sharecropping arrangements with
landowners.
[361]
The legislation passed during this period and early in the twentieth
century was aimed at controlling this phenomenon. It
also gave
landowners the power to exercise control over the Commonage. They did
so. The Commonage was never abandoned as derelict
and the landowners
never gave up ownership – the evidence shows quite the
contrary. They used the land for their collective
benefit.
[362]
The presence of Africans in Salem and on the Commonage must be seen
in this light. The recorded figures of 1878-1884 show
that there were
indeed Africans residing on the Commonage. But the figures also show
that there were significantly higher numbers
of Africans living on
the private erven. The most plausible probable inference to be drawn
from this fact is that people on the
Commonage were residing there by
virtue of having entered into individual agreements with landowners,
as ‘servants or tenants
of the landlord’ and not by
virtue of rules that the Africans themselves determined, much less by
virtue of the authority
of the mythical Dayile.
[363]
It is significant that the figure of 24 huts on the Commonage in 1884
did not change materially over 60 years because by 1942,
according to
Chandler’s undisputed evidence, there were only 26 huts on the
Commonage. There was therefore no growth in the
numbers of Africans
living there, which can only mean that Africans were not settling
freely on the Commonage.
[364]
The LCC’s inference relating to the population figures in 1932
was based on the health report of that year, and is also
incorrect.
It is true that the report stated that there were only six huts in
the location, but it also stated pertinently that
there were no
accurate figures of the African population, which was ‘possibly’
about 300-400. However, vitally, what
the LCC omits to mention is the
comment in this report that most of these people live on the private
erven of the owners, which
contradicts the finding that they were
living on the Commonage. Even more telling is that the LCC ignored
the earlier health report
of December 1931 that there were ten
African families living in the location and that
only Africans
employed in the settlement were allowed to reside in the location
;
and that ‘
most of the inhabitants kept their native
employees on their own properties
’. The June 1934 report,
which the LCC also does not refer to, stated that the number of
Africans were unknown, but that the
‘Native Location’ had
been done away with, and ‘
Natives’ were now residing
on their employers’ land
. None of these reports make
mention of Africans residing on any part of the Commonage outside of
the location.
[365]
These health reports, therefore, do not corroborate the claimants’
evidence that Africans lived as an independent community
outside the
location and all over the Commonage, but point to the opposite
conclusion; most resided on the private erven of the
landowners. They
corroborate the landowner’s version and particularly the direct
eyewitness testimony of Page and Van Rensburg.
[366]
The estimate of 500 Africans living in Salem in 1941, as appears in
the Magistrate’s report is, as I have said earlier,
probably
higher than the actual number of Africans who were living in Salem at
the time. Chandler’s evidence indicates that
there were 26 huts
on the Commonage close to the private erven and the other 22 on the
private erven. And the most plausible probable
inference from this
fact is that the people residing in these 48 huts were employed in
some capacity by the landowners.
[367]
In
Goedgelegen
[104]
the Constitutional Court said that the ‘acid test’ is
whether the community derived its right of occupation from their
own
shared rules or those of the employer. If the rules came from the
employer the employee had to obey them. In that case it found
that
labour tenancy rights of the Popela community did not vest in the
community.
[368]
In my view, the claimants failed to prove that they were descendants
of a community as contemplated in the Act. Their forbears
as a fact
never ‘held’ the land in common. On the contrary, the
evidence points conclusively the other way. The Commonage
was owned
and held by the landowners for more than a century; the rules
governing its use were determined by the landowners through
the
Committee and the Board they had established for this purpose. And
this happened within the legislative framework aimed at
controlling
and restricting the rights of African people at the time.
[369]
It is an understatement to characterise the conditions to control and
regulate African occupancy on the Commonage as oppressive.
While
limited rights were given to those who had permission to erect
dwellings or huts, the Board and the landowners determined
the rules
for occupancy, within the legislative framework of the time. The
social mores among the white settlers at the time would
also have
ensured that they maintained their dominance over the African
community. This is antithetical to any notion of African
people
acquiring rights and living on the Commonage independently as a
community by their own shared rules. The claimants’
case of an
independent and autonomous African community having lived on the
Commonage therefore fails
Popela’s
‘acid test.’
The nature and content of
the rights in issue
[370]
This brings me to the seventh issue, which is the nature and content
of the rights the African community did have. The pleaded
case was
that they possessed the full panoply of rights, including the right
of ownership over the
entire
Commonage. They also claimed that they had beneficially occupied this
land. The LCC did not analyse these rights but found that
they had a
‘right to be there’
[105]
and that this right was connected to their ‘indigenous
forebears’.
[106]
It also fixed the date of dispossession as 1947, for which there was
no evidence.
[107]
[371]
I have mentioned that the ‘right’ in land alleged to have
been dispossessed is of wide import. It is therefore
necessary for
the claimants to properly identify the nature and content of the
right to enable a court to ultimately determine
what appropriate
relief should be granted. If, for example, the right lost was one of
ownership, the appropriate relief may be
to restore the land. On the
other hand, if the right lost was only one of occupation, a court may
order restoration of that right
only or equivalent compensation.
[108]
The proper identification of the right may also require that a date
of dispossession be determined so that the court can properly
quantify the claim.
[109]
[372]
It is clear from what I have said earlier, that the African community
who lived on the private erven and the Commonage did
so by virtue of
their relationship with their employers. And in the times they were
living, it is appropriate to describe this
as a master-servant
relationship, which is not to be confused with the enlightened labour
relations regime with which we are familiar
today. So whatever
‘rights’, if any, the individual members of the community
may have acquired on land that belonged
to the landowners, this would
have been as a result of the incidence of their employment
relationships with their employers and
not by virtue of being members
of an independent community.
[373]
In argument before us it was hardly surprising that Mr Krige was not
able to sustain the case of an independent community
with rights of
ownership over the entire Commonage. Instead he retreated into first
contending that not all of those who made up
the community had
ownership rights; some of them, he speculated, may have been labour
tenants or had other forms of employment
with the landowners. And
later he vacillated again, contending that the community exercised
joint ownership with the landowners,
a contention that he was not
able to support on any factual basis. In this regard it must be
pointed out that joint ownership could
only have arisen by agreement
of the parties. And there is no such evidence.
[374]
Mr Notshe advanced a novel idea – not pleaded or explored in
the evidence – that the African community exercised
a parallel
system of ownership with the landowners. As I understand the
contention it is that a system of registered common law
rights of the
landowners co-existed with the indigenous rights of the African
people over the Commonage. I am not aware that any
such claim has
been recognised in our law and no authority was advanced to support
it. However, even if such a parallel system
of ownership rights could
exist, I have found that the exercise of any indigenous title to the
Commonage was inconsistent with
the award of ownership rights to the
settler community in 1848, and accordingly the indigenous title was
extinguished. On the facts,
the suggestion that some system of
parallel ownership – indigenous or otherwise – existed
alongside the ownership of
the landowners, in which they either
acquiesced or of which they were unaware, is simply untenable.
[375]
Having concluded that there was no ‘community’ as
contemplated in the Act, it is not strictly necessary to deal
with
the remaining two issues, namely whether this community was
dispossessed of any of its rights; and secondly, if there was
any
dispossession, whether this was as a result of a racially
discriminatory law or practice. However, for the sake of fullness
I
shall consider these issues briefly.
Was there a
dispossession?
[376]
The pleaded case of the claimants was that there were 500 people
residing in the location and that this community was dispossessed
of
its right in land through de-proclamation of the location, not the
subdivision of the Commonage. Neither the Commission nor
the
claimants adduced any evidence to prove their pleaded case, and the
documentary evidence points the other way. The evidence
as contained
in the magistrate’s letter of 15 July 1941 and the 1934 health
report was that the location had ceased to exist
several years
earlier. De-proclamation was, therefore, a formality and had no
bearing on anyone’s rights as there was no
one residing in the
location at the time.
[377]
The LCC held that ‘in the case of Salem the dispossession was
“completed or consummated” by 1947’.
[110]
How this conclusion was reached does not appear from the judgment,
and was not examined in the evidence. The pleaded case was that
the
dispossession only
began
in 1947, and continued until the 1980s.
[378]
The dispossession of a right in land may of course occur over a long
period of time and can be the cumulative effect of various
laws and
practices.
[111]
But this must be ‘as a result’ of a racially
discriminatory law or practice. In
Goedgelegen
,
the Constitutional Court interpreted this requirement to mean ‘as
a consequence’ of, and it need not be ‘solely
as a
consequence of’ the racially discriminatory laws and practices.
However, the consequence should not be remote, which
means that there
should be a reasonable connection between the racially discriminatory
laws and practices of the State on the one
hand and the dispossession
on the other. A context-sensitive appraisal of all the factors is
necessary for this determination.
[112]
[379]
There was, however, no evidence led as to how and when the
dispossession took place. The objective evidence was that there
were
26 dwellings on the Commonage, which I have held was likely to have
been occupied by people who had some sort of employment
relationship
with the landowners. There was no clear evidence – apart from
the unsatisfactory evidence of Ngqiyaza –
that any of them were
‘dispossessed’ within the meaning of the Act following
the court order permitting the subdivision,
in 1941. The LCC’s
finding that the dispossession was completed by 1947 before 1993 is
not understood
[113]
and is not supported by the facts.
A
racially discriminatory law or practice?
[380]
In regard to the final issue, whether there was dispossession
as a
result
of any racially discriminatory law or practice, the
pleaded case was that the laws through which this happened were the
1913 Land
Act, s 49 of Ordinance 10 of 1921, the Natives (Urban
Areas) Act 21 of 1923, and the Native Trust and Land Act 18 of 1936.
[381]
Neither the 1913 Land Act, nor the Native Trust and Land Act were
used by the landowners to dispossess the claimants as had
been
pleaded. These statutes did not feature in the evidence for good
reason: they were entirely irrelevant to this case. The location
was
disestablished formally under s 2 of the Natives (Urban Areas) Act of
1923, on 14 November 1941. But it had already ceased
to exist several
years earlier. So it had no bearing on the issues in this case
either.
[382]
The only relevant statute was the Ordinance, which provided for the
management of villages and communities not being municipalities.
It
applied to the Board’s management of the Commonage. The
Grahamstown Supreme Court held that s 49 permitted the Administrator
to authorise the subdivision of the Commonage into the names of the
individual landowners. Neither the claimants nor the LCC relied
on
the Ordinance to prove a connection between the alleged dispossession
and this law, which in itself was not racially discriminatory.
[383]
Instead, an entirely different case was advanced on the basis of
Legassick’s inadmissible testimony: the black community
was not
consulted by the Board, the magistrate, the Administrator of the Cape
Province and the judges of the Grahamstown Supreme
Court, which
violated their rights and dispossessed them. The decision to
subdivide the Commonage was therefore a racially discriminatory
practice by state officials.
[384]
The LCC upheld this contention finding that:
‘
The
decision ignored the natives, despite being aware of them, only
because they were Black, they could not have rights and they
did not
need to be consulted despite the fact that they were affected. This
was a racially discriminatory practice.’
[114]
[385]
Legassick had no facts before him to justify these legal conclusions
on which he was obviously not qualified to testify. And
the LCC had
no proper basis to rely on his evidence for this purpose. The history
of events leading to the subdivision is detailed
earlier in this
judgment.
[386]
The LCC also found that ‘the judge’ who granted the
subdivision order was aware of ‘Natives on the Commonage’
but ignored them in ordering the subdivision.
[115]
As I have pointed out above, the LCC made this finding on the basis
of the letter emanating from the magistrate that was wrongly
attributed as having emanated from ‘the judge’ –
there were two judges who granted the rule nisi, not one –
and
then misconstrued its contents. The LCC’s adverse remarks made
about the judge having ‘ignored’ the ‘Natives’
is therefore regrettable. In any event, whether the Africans living
on the Commonage had an interest in the matter depended on
the nature
of their rights: the landowners asserted a right of joint ownership
and, as I have shown, any Africans living on the
Commonage did so as
a result of having been permitted to do so by the landowners. They
therefor had no legal interest that would
have entitled them to
notice or to be heard. That would still be the legal position today.
[387]
The matter that concerned the Board for about 20 years was how the
landowners could use the Commonage optimally for their
own benefit.
The Board concluded, as did the magistrate who compiled the report
for the Administrator, that the African employees
would be properly
accommodated on the private erven of the landowners. Who they
consulted in the process is not known and does
not appear from the
evidence. The court issued a rule nisi, which was widely published,
allowing all interested parties to show
cause why the subdivision
should not be confirmed. There was no opposition and the rule was
accordingly confirmed six months later.
The LCC had no grounds to
make this finding: it was not an issue on the pleadings and had no
factual or legal basis.
Conclusions
[388]
To conclude, the Commission and the claimants set out to prove that
an African community occupied the entire Commonage from
about the
latter part of the nineteenth century until 1947. They had full
ownership rights and the panoply of other rights arising
from the
incidence of their ownership. They derived their ownership through
indigenous law from a chief or headman named Dayile,
who had a
homestead on the Commonage. They also acquired rights in land through
the location regulations. However, in about 1926
they were herded
into a location, which was de-proclaimed in 1941. At the time there
were 500 people living in the location. The
de-proclamation of the
location and its disestablishment resulted in the dispossession of
their rights over a period from 1947
until the 1980s. The
dispossession occurred as a result of various racially discriminatory
laws.
[389]
The Commission and the claimants, upon whom the onus rested, were not
able to prove any of these allegations. Instead their
case changed as
the trial progressed, and ultimately bore no resemblance to the
pleaded case. They made up the case as they went
along, and during
argument in this court it unsurprisingly fell apart completely, with
counsel unable to maintain a coherent or
consistent position on any
of the disputed issues
[390]
Paul was a very poor witness. The expert evidence of Legassick was
largely inadmissible, unhelpful and not supported by the
record. The
hearsay evidence of Nondzube was unreliable, as was Ngqiyaza’s.
No weight should have been given to their evidence.
It is not clear
why the claimants relied only on two witnesses to support this claim.
But it is apparent from the way the case
was pleaded and then
unfolded that it lacked any credibility.
[391]
By contrast, the evidence of the landowners resonated with the
documentary evidence, as did the evidence of their expert Giliomee,
even though his opinion on the legal questions he was asked to
comment upon should also not have been allowed. Mullins, Page and
Van
Rensburg were particularly good witnesses. It is incomprehensible how
the LCC so easily disregarded their testimony. In doing
so without
reason, it misdirected itself.
[392]
At the heart of the case of the landowners lay the inescapable fact
that the settlers were awarded freehold title over the
Commonage in
1848. Their descendants and successors in title retained this right
and held the land collectively until it was subdivided
between them
in 1941. This right is and was incompatible with the exercise of any
indigenous rights over the land, much less any
rights acquired
through location rules. The settler community, initially through
their Committee and subsequently through the Board,
managed their
interest in the Commonage for their collective benefit. Their rules
determined theirs and anyone else’s access
to the land. No one
else could or was entitled to assume this authority. And no one did.
The Validity of the
Lodgement
[393]
The landowners also take issue with what they contend was the failure
of the claimants to produce evidence that they had authorised
the
lodgement of the claim. The lodgement of the claim, they contend, is
therefore a nullity. Section 10(3) of the Act provides:
‘
If
a claim is lodged on behalf of a community the basis on which it is
contended that the person submitting the form represents
such
community, shall be declared in full and any appropriate resolution
or document supporting such contention shall accompany
the form at
the time of lodgement: Provided that the regional land claims
commissioner having jurisdiction in respect of the land
in question
may permit such resolution or document to be lodged at a later
stage.’
[394]
The claim form, forming part of the referral did not have annexed to
it any ‘resolution or document’ authorising
Mr Madlavu
to lodge the claim; neither was evidence led of any such ‘resolution
or document’ having been lodged
at a later stage. Before us the
Commission contended that the constitution of the claimant committee,
which was attached to Paul’s
report to the Commission, is such
a ‘document’ as contemplated in the section. However, a
constitution is a body of
principles and rules by which an
organisation is governed. It does not itself confer authority on
Madlavu to lodge the claim on
the claimants’ behalf. On the
face of it, therefore, Madlavu had no authority to lodge this claim.
[395]
The lodgement of claims in compliance with s 10(3) is not merely a
technical matter. The purpose of this provision is to ensure
that no
improperly authorised claim is entertained, and to avoid fraudulent
and competing claims. The court also takes judicial
notice of the
fact that several community claims have been confronted with these
difficulties. In this case, it is clear from the
evidence, to put it
at its lowest, that some of the claimants may have been descendants
of employees of the landowners, which disqualifies
them as claimants
to this community claim. In fact during the hearing counsel for the
Commission conceded this much. When asked
how many of the claimants
fell into this category, he was unable to say. This raises serious
questions regarding the validity of
the claim. In my view the ‘Salem
Community’ did not prove that Mr Madlavu was authorised to
lodge the claim on their
behalf. For this additional reason the claim
must fail.
Costs
[396]
I turn to the question of costs. The landowners were put through much
trouble and expense to defend a claim that was still-born.
The
Commission not only failed to investigate the claim properly, but
Paul’s report, which formed the basis of the referral
to the
LCC, was shoddy and unprofessional. His testimony was disgraceful. It
may perhaps be that some individual members of the
claimant community
do have valid individual claims of some sort under the Act, but the
Commission regrettably never investigated
this properly. This is
particularly troubling given that the Commission’s initial
investigation concluded that the rights
allegedly dispossessed were
labour-tenant rights, but Paul apparently refused to follow or
investigate this.
[397]
No proper case was made for the landowners to answer. In fact they
were placed in the invidious position of having to deal
with a moving
target on almost every issue in circumstances where the court was at
best supine, and at worst gave the appearance
of being unreceptive to
their case. Their fears were confirmed with the dismissive manner in
which the court dealt with their evidence.
What followed was a
judgment of the LCC replete with factual and legal errors.
[398]
The pleadings of the Commission and the claimants were
ill-considered, poorly prepared, and even worse, bore little
resemblance
to the evidence that was led. This court recently
reaffirmed the rule that once the pleadings have defined the dispute
between
the parties, the court must determine that dispute and that
dispute alone.
[116]
While
the parties may be given greater latitude in the way they plead their
case in land claims such as this one, the rules of
pleading cannot be
totally disregarded. This case is one of the worst examples of the
violation of this rule that I have seen.
[399]
Counsel for the Commission, in particular, often traversed irrelevant
material. A stark example was his cross-examination
of Mullins, much
of which was irrelevant and gratuitously offensive. Another was
Legassick’s testimony, much of which was
inadmissible,
unhelpful and traversed questions outside the pleadings. This
necessitated the landowners having to instruct Giliomee
to provide a
contrary view. The expert evidence took 15 days. The evidence of the
claimants, particularly of Nonzube, was very
poor. The landowners are
therefore entitled to their costs, including the costs incurred for
Giliomee. I would have been inclined
to grant a punitive costs order,
at least against the Commission, had the landowners asked for it.
However, as I have found that
the ‘Salem Community’ was
not shown to have authorised the lodgement of the claim, no costs
order should be made against
it.
The
second judgment
[400]
I have read the judgment that Pillay JA and Dambuza JA (the second
judgment) have jointly prepared. Regrettably, it suffers
from the
same malaise that is evident from the judgment of the LCC: it
misconstrues the legal issues and treats the evidence in
a one sided
and legally impermissible manner. A comparison between the two
judgments is striking. The main judgment deals in detail
with all the
evidence: documentary, viva voce and expert, and supports its
findings through clear legal reasoning. By contrast
the second
judgment approaches the evidence in a selective and generalised
manner, fails to evaluate it properly, and reaches factual
conclusions on dubious legal grounds.
[401]
Regarding its treatment of the legal issues, the second judgment
fails to determine whether the claimants had established
each of the
requirements of s 2 of the Act. It finds that a ‘community
existed’ but does not deal with the ‘acid
test’
enunciated in
Goedgelegen
, which is whether the members of the
community derived their right or permission to occupy parts of the
Commonage through their
own shared rules determined by Dayile or by
the landowners. It finds further that the community was dispossessed
of a ‘right
in land’ by virtue of having beneficially
occupied the land from the ‘1870’s to the 1940’s’
but does
not explain how this community was able to acquire this
right in the face of the undisputed fact that ownership of the
Commonage
vested jointly in the landowning community, who exercised
authority over through the Board until 1943.
[402]
The second judgment also overlooks the fact that the claimants claim
the entire Commonage despite the fact that the landowners
built a
church, a community hall, a cattle–building tank and
established a cricket field there all before 1913. This means
that if
there was a dispossession of rights on these parts of the Commonage,
the claimants could, at the very least, not lawfully
reclaim them.
Furthermore, the second judgment avoids dealing with the legal
difficulty of determining a date or dates of the alleged
dispossession against the pleaded case (not supported by any
evidence) that this occurred over more than three decades. It elides
the requirement for the dispossession to have been as a result of a
racially discriminatory law or practice by finding, presumably
on the
basis of Legassick’s inadmissible evidence, that the ‘failure
to consult’ the community, including the
‘process’
and ‘conduct’ of dispossession was racially
discriminatory in ‘nature’; and ignores
the fact that the
pleaded case relied on racially discriminatory laws as the reason for
the alleged dispossession, which was found
to be baseless. In short,
whereas the main judgment found that none of the requirements had
been proved, the second judgment, without
a proper evaluation of the
evidence or clear legal reasoning, found that all of them were.
[403]
The main judgment found that the submissions on behalf of the
Commission and claimants respectively to the effect that a system
of
‘joint’ or ‘parallel’ ownership existed
between the landowners and the claimant community were unmeritorious.
It must be borne in mind that these submissions were advanced in
response to questions from the bench after neither the Commission
nor
the claimants could sustain the case of an independent autonomous
community exclusively occupying the entire Commonage at any
stage for
more than 170 years. Indeed, during the debate in court that case
fell apart. It is, therefore, astonishing that the
second judgment
avoids this issue completely.
[404]
The second judgment appears to accept that the Commonage was granted
to the landowners for their common use and benefit. But
it then
suggests that this meant that the Commonage was a ‘public
resource’ to be used in the ‘public interest’
and
for the ‘public benefit’. So that when the ‘African
occupants’ were ‘forced’ off the Commonage
following the court order in 1940, ‘this event . . . serve(d)
as a conclusive bridge by which the claimants must succeed
in
asserting their rights in land’.
[405]
The short answer is that this case was never made and there is no
suggestion of it in the evidence. It was not put to the
parties
during the hearing, and it is impermissible to make a finding of this
nature without having allowed the parties to respond
to it. It is
also obviously wrong. How is it possible for land that was given to
landowners for their common use and benefit to
become a public
resource for use and benefit of the general public or in the public
interest unless the land was expropriated for
this purpose? And if
the land was for use in the public interest, how can the claimants
claim to have acquired rights in it? The
reasoning is, with respect,
difficult to understand.
[406]
Regarding its treatment of the evidence the second judgment appears
to find the evidence of the claimants preferable to that
of the
landowners. It also prefers Legassick’s expert testimony to
Giliomee’s. And it finds that the documentary evidence
supports
the claimants’ case. However, it deals with the detailed
reasons given in the main judgment superficially, without
refuting
its reasoning; for example, the main judgment shows exhaustively why
Nondzube’s evidence is not only improbable,
but implausible.
And it demonstrates with reference to the record how he effectively
conceded the landowners’ case by accepting
that the African
occupants of the Commonage obeyed ‘the rules of the conqueror’,
which refers to the landowners. But
the second judgment elides this.
[407]
By contrast, to cite another example, when dealing with the
landowners’ evidence, the second judgment rejects Mrs Page’s
credible evidence for the flimsiest of reasons by pointing to an
apparent single inconsistency in her evidence when she said that
the
two employees who had worked for her father lived elsewhere, but
under cross-examination said that having thought about it
overnight
she remembered that they had lived on the farm. Mr van Rensburg, her
brother, confirmed this. So there was no inconsistency
in her
evidence at all. The second judgment overlooks Van Rensburg’s
direct credible evidence regarding the existence of
African
homesteads and ploughed areas on the Commonage, which corroborated
Page’s evidence. And it further overlooks the
fact that their
evidence was validated by the land surveyors, Chandler and Gerber,
and also by Mullins, Hill and King.
[408] With regard to the
historical expert evidence the second judgment does not take issue
with the main judgment’s legal
analysis of the admissibility of
some of Legassick’s opinion evidence. Despite this, it concurs
with his inadmissible legal
conclusions on, inter alia, the existence
of a community with land rights to the Commonage.
Judgment
Delay
[409] Courts, including
appellate courts, are required to deliver judgments expeditiously
because litigants are entitled to know
where they stand. Undue delays
in delivering judgments undermine public confidence in the judiciary.
Where there are delays it
is desirable for courts to provide a proper
explanation for it. What follows is an explanation for the delay in
delivering this
judgment.
[410]
This matter was heard on 19 February 2016 at the commencement of a
busy term. Pillay JA was allocated the responsibility for
writing the
judgment. However, as the judges of appeal disagreed on the result,
with my view being in the minority, I undertook
to write the first
judgment. As is evident from its length and the issues traversed its
preparation required a considerable amount
of research and time, with
the court having limited research capacity. The judgment was
circulated to other members of the bench
on 16 June 2016, four months
after the hearing. Pillay JA, who is the first author of the second
judgment, took ill on 5 June 2016
and was incapacitated as a result
until 30 September 2016.
[411]
As this is a dissenting judgment I would have made the following
order:
1. The appeal is upheld
with costs including the costs of two counsel.
2. The second to the
sixth respondents and the ninth respondent shall jointly and
severally be liable for these costs.
3. The order of the Land
Claims Court is set aside and replaced with the following:
‘
The claim is
dismissed with costs, including the costs of two counsel. The costs
shall include the cost incurred for Professor Hermann
Giliomee. The
second to the fifth plaintiffs, and the Regional Land Claims
Commission, shall jointly and severally be liable for
these costs.’
________________
A
Cachalia
Judge
of Appeal
Pillay
and Dambuza JJA (Seriti and Mbha JJA concurring)
[412]
We have read the judgment of our colleague Cachalia JA and
regrettably we do not agree with his approach to the appeal, the
reasoning he adopts and the conclusion he reaches. In reaching our
conclusion we adopt a different approach to that of our colleague
in
considering the pleadings, the evidence led in the Land Claims Court
(LCC) and the legal principles applicable thereto. This
judgment must
thus be read in the context of what Cachalia JA has stated in his
judgment. Much of what follows is contextually
related to the
evidence he refers to and it is not necessary to repeat. In dealing
with the evidence, we will thus only set out
certain portions not
mentioned by Cachalia JA.
[413]
The claim that was referred by the Commission on Restitution of Land
Rights (the Commission) to the LCC is founded on occupation
of the
land in question for a continuous period of more than ten years
subsequent to June 1913. Our view is that, on a holistic
consideration, the evidence supports the claimants’ contention
that their forebears were a community that was dispossessed
of rights
in the Salem Commonage land.
[117]
[414]
It is helpful, even before we consider the evidence, to briefly set
out the background against which the law applicable to
land claims is
constructed. The Republic of South Africa is one of the youngest
democracies. It has recently emerged from a period
of almost 350
years of discriminatory policy and practice which was systematically
designed and maintained, in various ways, including
legislation and
violence, to racially and economically advantage, exclusively, those
who landed on the shores of the Republic,
first from the Netherlands
(1652), and then later from Britain (1820), at the expense of those
who had been living on the land
prior to that. The latter were
African while the former white.
[118]
This systematic policy and practice, which included land reservation
and segregation, formed the fundamental basis for colonial
rule and
later, apartheid in South Africa.
[119]
The Land Act of 1913 formed the cornerstone of the apartheid land
dispossession apparatus, causing Sol Plaatje famously to exclaim:
‘Awaking on Friday morning, June 20, 1913, the South African
Native found himself, not actually a slave, but a pariah in
the land
of his birth’.
[120]
It
is common cause between the parties (and generally accepted) that
what is now known as the Eastern Cape, did not escape this
pattern
and that the African people who lived in this region were, also at
some time, dispossessed of their land. During preparations
to
establish a new democratic government in 1994, the history of
dispossession of land and the need for remedial action was
recognised,
and, upon adoption of the interim Constitution in 1994
(and the final one in 1996), provision was made for steps to be taken
by
government to restore the rights in land to those so dispossessed,
or to their descendants.
[121]
In so doing, the Restitution of Land Rights Act 22 of 1994 (the Act)
was passed by Parliament,
[122]
The Act must be read with s 25(7) of the Constitution which provides
that a person or community dispossessed of property after
19 June
1913 as a result of past racially discriminatory laws or practices is
entitled, to the extent provided by an Act of Parliament,
either to
restitution of that property or to
equitable
redress
.
[123]
[415]
The Act forms part of the constitutional framework for land reform
aimed at redressing the past injustices of dispossession
in this
country. It is steeped in a challenging constitutional context in
which the public interest imperative of land reform is
pitted against
constitutional protection of private property rights.
[124]
Against this background the Legislature has used specific language,
in the Act, as a tool to achieve land reform in the country
and to
remedy the injustices which flow from the dispossession.
[125]
The Act requires
historically
determined justice
and the application of the principles of equity and fairness.
[126]
So the Act clearly implores the courts to lean towards granting
rights in land where it would be just and equitable to do so within
the context of the provisions of the Act.
[127]
[416]
The history against which land reform and claims are set plays a
pivotal role in the determination of justice.
[128]
It is clear from the provisions of the Act that the Legislature
recognised that some of the true history of land occupation and
ownership in this country would not be easy to establish. Accordingly
the Act specifically contains certain peculiar features which
are
intended to grant to the specialised LCC, when adjudicating land
claims, latitude to admit all relevant evidence in order to
determine
such history. The Act is therefore an extraordinary piece of
legislation,
sui
generis
,
which generates processes and approaches not normally associated with
normal litigation and rules of practice. It is therefore
important to
examine some of those special provisions which give structure and
effect to the land claims processes.
[417] The claim was
brought in terms of s 2(1) of the Act which provides that:
‘
A
person shall be entitled to restitution of a right in land if-
(a)
he or she is a person dispossessed of a
right in land after 19 June 1913 as a result of past discriminatory
laws or practices; or
(b)
it is a deceased estate dispossessed of
a right in land after 19 June 1913 as a result of past discriminatory
laws or practices;
or
(c)
he or she is a direct descendant of a
person referred in paragraph (a) who has died without lodging a claim
and has no ascendant
who-
(i)
is a direct descendant of a person referred
to in paragraph (a); and
(ii)
has lodged a claim for the restitution of a
right in land; or
(d)
it is a community or part of a
community dispossessed of a right in land after 19 June 1913 as a
result of past racially discriminatory
laws or practices; and
(e)
the
claim for such restitution is lodged not later than 31 December
1998
.
’
[129]
[418]
In terms of s 1 of the Act ‘restitution of a right in land’
means
(a)
‘the
restoration of a right in land’; or
(b)
‘equitable
redress’. A ‘right in land’ means ‘any right
in land whether registered or unregistered,
and may include the
interest of a labour tenant and sharecropper, a customary law
interest, the interest of a beneficiary under
a trust arrangement and
continuous beneficial occupation for a period of not less than 10
years prior to the dispossession in question’.
‘Racially
discriminatory practices’ mean ‘racially discriminatory
practices, acts or omissions, direct or indirect,
by
(a)
any
department of State or administration in the national, provincial or
local sphere of government;
(b)
any
other functionary or institution which exercised public power or
performed a public function in terms of any legislation’.
[130]
[419]
The Act provides an avenue to reclaim rights in land dispossessed
after 19 June 1913.
[131]
It
provides for the establishment of the Commission on Restitution of
Land Rights whose function it is to assist and facilitate
the land
claims processes.
[132]
The
Commission operates as an important administrative ‘initial
filter and first adjudication point . . . set up in such
a way that a
serious attempt is made at the outset to solve each land claim in a
non-adversarial manner.’
[133]
Only if that process does not succeed is a claim referred for
adjudication’.
[134]
As
part of its facilitative role, the Commission is empowered and
obliged to give assistance to claimants in the preparation,
submission and prosecution of their land claims.
[135]
[420]
The Act also provides for the establishment of the LCC
[136]
for the consideration of land claim disputes. The LCC is a specialist
court.
[137]
When the
Commission refers the matter to the LCC it must request the Minister
of Land Affairs to issue a certificate as to whether
or not
restitution is feasible.
[138]
Land claims are therefore put through an elaborate investigative,
administrative and quasi adjudicative process before they are
referred for adjudication to the LCC. Of significance, in relation to
the functioning of the LCC, s 33 of the Act enjoins that
court to
have regard to the commitment to afford restitution of rights in land
to persons or communities dispossessed as a result
of racially
discriminatory laws or practices. The LCC must also have regard to
the need to remedy past violations of human rights,
requirements of
equity and justice, and the need to avoid major social
disruption.
[139]
One of the
special features of the Act is the
unqualified
provision for a court, at the hearing of an appeal, to hear further
evidence.
[140]
A further
significant attribute is the similarly uncircumscribed provision for
admission of ‘
any
evidence
’
,
including
expert reports, archival records and hearsay evidence,
[141]
whether or not such evidence would be admissible in any other court
of law. In
Executor
Estate late Phillips and others v Government of the Republic of South
Africa and another
[142]
at
583, Erasmus J remarked that s 30 relaxes the normal rules
relating to the admission of inter alia, hearsay evidence before
the
LCC. These, and other distinct attributes in the Act, clearly imply
that the courts, when considering disputed land claims,
should
liberally lean towards the realization of the objectives of the
Act.
[143]
It is through
application of these provisions and the philosophy underpinning the
purpose of the Act that we reach a different
conclusion to that of
our colleague.
[421] It is true that the
rights on which the claimants relied for their claim (as set out in
the claim form lodged with the Commission)
differ from those which
formed the basis of the referral by the Commission to the LCC. When
lodging their claim with the Commission
the claimants asserted their
traditional
rights in the land claimed, derived from
occupation of the land by their forebears, as the original occupants
of the ‘native
location’ which was sold to white farmers
in about 1947. As against this, the Commission, after investigations
headed by
Mr Paul, referred to the LCC, a ‘claim for
restitution of the (community’s) rights in land relating to the
Salem Commonage,
based on
dispossession of the claimants’
ancestors of land which they had occupied for a period in excess of
10 years.
[422] The Commission
stated in its referral statement that the claimants’ ancestors-
‘
.
. . [L]ived on the land for many years before dispossession occurred.
Certain areas were designated for ploughing, eg Tyelera,
Thafeni,
Lusenge, and Emagolomeni etc. Cattle were combined so that a large
span of oxen could be created for ploughing . . . sharecropping
was
also practiced with some white people who did not have oxen.
The
appropriate nature of the rights that claimants had on the claimed
land originated from the beneficial use for grazing and farming
and
occupational rights which they acquired and used in accordance with
shared rules of usage, both in terms of traditional laws
as well as
so-called location rules’
.
(My emphasis.)
[423]
The Commission further stated that in the 1940s (about 1947), the
white community desired to take over the commonage and applied
to the
Supreme Court in Grahamstown to sub-divide the commonage and transfer
and incorporated it into the individual titles, in
the names of the
farmers who owned adjoining properties in the village of Salem.
[424]
It is also true that witnesses who testified on behalf of the
claimants insisted in their evidence that the claimant’s
ancestors were holders of traditional rights in the land, thus
re-asserting their traditional rights as initially declared in the
claim form. On application of ordinary civil law principles and rules
these changes in the rights declared would be viewed as defects
which
could, on their own, result in the dismissal of the claim. Our
colleague refers unfavourably to these inconsistencies and
in our
view, wrongly finds that the claim, as lodged, was invalid. The
claim, as asserted in the claim form, the referral by the
Commission,
the evidence and the apparent variations in the nature of the rights
which form the basis of the claim, must be interpreted
within the
spirit and purpose of the Act and the role of the Commission as set
out therein. The terms of the referral resulted
from the processes
and investigation provided for by ss 11, 11A and 12 of the Act.
[144]
The Commission, having conducted investigations as aforesaid, into
the claim, concluded that the claimants’ rights to the
land
were more properly founded on continuous occupation of the land as
provided for in the Act. The fact that the Commission reached
a
different conclusion from that of the claimants as to the nature of
their rights, and the fact that, in their evidence, the claimants
and
their witnesses continued to assert traditional rights does not
detract from the totality of the claim and the evidence in
relation
to the rights asserted in the referral to the LCC.
[425]
For completeness sake, although detailed in the main judgment, the
appellants’ (landowners) case in the court below
was briefly
that, in the 1700s, the Zuurveld in which area the commonage fell,
was taken from the African indigenous people by
conquest as a result
of the Fourth Frontier War in 1811 - 1812. They relied on that
conquest, and argued that the conquest destroyed
any right the
claimants’ forebears might have had in the land in question.
Consequently no reliance on such rights in furthering
the claim could
be placed. Their case is further that when the British settlers
arrived in the Zuurland in the 1820s there was
no community of
African people on that land. (with any rights to it). They also
asserted that no African people lived on the commonage
during the
relevant period at all. Yet they conceded that there were African
people, a handful of employees of the erven owners,
who lived on the
commonage.
[426]
Therefore it is not only the claimants’ case that varied during
the proceedings. The appellants’ response, could,
on a strict
interpretation also be considered contradictory. However, a rigid
approach to this inconsistency would be inimical
to the spirit and
purpose of the Act. Instead, a comprehensive and holistic inquiry
into the truth is required.
[427]
We do not intend to repeat the documented historical background to
the settlement of the Zuurveld. It is set out in the main
judgment.
We record, however, that, as is widely known, the documented history
as to the settlement, in this country, by white
people, and the
whereabouts of the indigenous people at various stages of that
settlement, remains deeply controversial for various
reasons.
[145]
This judgment is not intended to be a discourse of those
controversies. The claim, as referred to the LCC by the Commission,
can
be determined on the evidence starting from the late nineteenth
century. The earlier historical background, going back to the
eighteenth
century, serves a very limited and peripheral contextual
role to this dispute.
[428]
Although we have approached the matter in the manner set out above,
there is however, a crucial legal finding made by our
colleague,
relating to the earlier history, which we consider necessary to deal
with. This relates to whether the defeat of the
African people of the
Zuurveld, in the Fourth Frontier War, extinguished their traditional
rights in the Zuurveld land. Contrary
to the finding by our
colleague,
[146]
we do not
agree that such traditional rights were extinguished by the conquest.
We accept, however, that, in respect of the land
allocated to the
1820
Settlers
to live on in the 1820s only, these rights were extinguished through
a State-sanctioned administrative process in the form
of the
allotments to the British Settlers.
[429]
In concluding that the Fourth Frontier War resulted in extinction of
the traditional rights in land of the indigenous people
of Zuurveld,
our colleague has relied on a remark made by the Constitutional Court
in
Alexkor
Ltd & another v The Richtersveld Community & others
[147]
(
Alexkor
)
para 70, that:
‘
After
annexation, the right of the Richtersveld community to indigenous law
ownership could have been extinguished in a number of
ways. The
Richtersveld Community would have lost its indigenous law ownership
if:
.
. .
(d)
the land was taken by force.’
[430]
Firstly, in this case, although disputed by the landowners’
historian, there is evidence that, having defeated the Africans
and
the Khoi inhabitants of the Zuurveld in that war, Colonel Graham
allowed some of them to return to the land and to resume their
subsistence farming activities. Secondly, in
Alexkor
the Constitutional Court was not concerned with loss of indigenous
rights in land as a result of conquest. In fact, the court,
at para
70 said that ‘[t]his case is not concerned with the forcibly
taking of land’. That court therefore, while seemingly
approving it, did not comprehensively consider the exhaustive
analysis of the issue by this court in
Richtersveld
Community
& others v Alexkor Ltd & another
(
Richtersveld
).
[148]
[431]
In paras 48 to 50 of
Richtersveld
,
Vivier ADP affirmed the recognition of indigenous rights in land by
the Dutch and the English colonists who came to this country
in the
early nineteenth century. The learned judge went on to compare the
acquisition of the Richtersveld by Proclamation with
a hypothetical
acquisition by conquest or cession. He found that both had the same
consequences as annexation.
[149]
He cited, with approval, the following passage by Brennan J in
Mabo
and Others v The State of Queensland (No 2)
(1992)
175 CLR 1
(HCA)
(at
57):
[150]
‘
The
preferable rule equates the indigenous inhabitants of a settled
colony with the inhabitants of a conquered colony in respect
of their
rights and interests in land and recognises in the indigenous
inhabitants of a settled colony the rights and interests
recognised
by the Privy Council in
In re Southern
Rhodesia
[[1919] AC 211 (PC)] as
surviving to the benefit of the residents of a conquered colony.’
In
Mabo,
the
High Court of Australia recognised the existence of native title to
lands previously annexed under Imperial Authority. In so
doing, the
Court rejected the fiction of
terra
nullius
and found that native title was not inconsistent with the Crown's
radical title over its acquired lands. The existence of native
title,
the Court held, does not depend upon positive acts of recognition,
rather it arises from proof that a group has a right
to use or occupy
particular land including uses tied to the community's traditional
lifestyle. In drawing upon international law
to bolster its
conclusions, the High Court ushers in a new era for aboriginal land
claims and portends new directions for Australian
jurisprudence.
[151]
There is no indication, in
Alexkor,
that
the Constitutional Court intended to alter this settled legal
position.
[152]
[432]
Even further, as discussed more fully below, it was an express policy
of the British, on settlement in various parts of the
Cape Colony,
not to unduly interfere with indigenous land rights, and generally,
with the African way of life and indigenous administration.
This had
in fact been founded on the trite English constitutional and
international law doctrines of acquired rights and continuity
(also
doctrine of aboriginal title) which favours the continuation of
pre-existing customary land rights. See, in that regard the
English
locus
classicus
,
Campbell
v Hall
[1774] EngR 5
;
(1774) 1 Cowp 204
;
98 ER 1045
(KB) at 1047, where Lord Mansfield
explained that: ‘The laws of the conquered country continue in
force until they are altered
by the conqueror,’ through the
proper legislative processes of the conqueror to introduce new laws
in the conquered country.
It was through these very doctrines
(together with the 1806 capitulation conditions) that Roman-Dutch law
survived the British
acquisition of sovereignty over the Cape colony
when they affirmed the protection of the rights of all ‘burghers
and inhabitants’
of the Cape.
Professor
Jérémie Gilbert writes that, in international law, even
at the time of conquest or annexation, the victorious
party must
respect the doctrine of ‘acquired rights’, the
significance of which is to posit the trite (conventional
and
customary international) principle that, a change of sovereignty over
territory does not affect the property rights of the
inhabitants.
[153]
In
particular, he says:
‘
Under
British colonial laws, when a conquest was made, there were two
approaches to the effect of the acquisition of territory on
the
customary land rights of the inhabitants. The first approach was
based on the doctrine of continuity, which favoured the continuation
of pre-existing customary land rights, the idea being that conquest
did not adversely affect these rights unless there is an express
legislative intent to do so. The second approach was based on the
doctrine of recognition. This doctrine affirmed that rights to
land
had to be given a formal recognition by the new power, as annexation
resulted in the abolition of all pre-existing rights.’
[154]
(Footnotes
omitted.)
[433]
It seems to us that, against these clear pronouncements on the issue
the obiter remark by the Constitutional Court should
not be too
readily interpreted as a conclusive revocation of settled domestic
and international law on the issue. We therefore
disagree with our
colleague’s conclusion that the Fourth Frontier War conquest
resulted in a total extinction of indigenous
rights in land. It is
our view that the concession made on behalf of either the Commission
or the claimants to a general extinction
of traditional rights in
land as a result of conquest was incorrectly made.
[434]
Turning to the evidence, the main judgment concludes that, save for
employees of some of the landowners, there is no evidence
of
occupation of the commonage by an indigenous community as alleged by
the claimants.
[155]
This
conclusion is premised on criticism of the evidence of all the
witnesses who testified on behalf of the Commission and the
claimants
as extremely poor and even fabricated and on the discounting of the
archival evidence. On the other hand, the evidence
of all the
witnesses who testified on behalf of the landowners is accepted by
our colleague as unblemished.
[435]
In our view the archival evidence relating to the period starting
from the late 1870s to the late 1940s, on its own, lends
objective
and independent support to the claim based on occupation of the Salem
Commonage by a community of African indigenous
people, as a
community, as contended by the Commission. This evidence is, in fact,
conclusive on the issue. It is true that some
of the oral evidence
led on behalf of the Commission is capable of criticism. But so too
is the evidence led on behalf of the landowners.
Some of the
deficiencies were to be expected because none of the witnesses, both
for the appellants and the claimants, had sufficient
personal
knowledge of relevant information. Some of them were not yet born at
the relevant time. Even those witnesses that were
alive, were either
too young at the time or knew very little, if anything, of what was
going on around them. It would be unsafe
to rely solely on their
evidence without regard to corroborative records.
[436]
The evidence shows that after the Fourth Frontier war, in 1811 to
1812, the Africans never regained general administrative
authority
over the Zuurveld area within which Salem is located. Instead, by
1881 the Salem Village Management Board (the board)
was the
administrative authority over the Salem Village, including the Salem
commonage. But there is no evidence that the board
assumed active or
actual control over the commonage. Indeed, there is evidence that its
failure to do so gave rise to discontent
and indeed uncertainty as to
who officially controlled and managed the commonage, if at all. This
will be dealt with in more detail
below.
[437]
Prior to the installation of the board, the civil commissioner of
Grahamstown performed supervisory duties over the native
locations
around Grahamstown, including the Salem commonage upon which there
was no formally defined location. As inspector of
native locations,
the magistrate did periodical inspections of the commonage, and kept
records of the number of ‘natives’
living thereon, their
huts and livestock. These records show that in 1877 there was one hut
with three people on the commonage.
The number of people grew
steadily, such that by June 1884 there were 24 huts with a total of
130 people living there. This is
where the records of the Inspector
of Native Locations end. The inspections stopped, presumably because
the board was established
as the local authority over Salem,
including the commonage, and was to continue the functions previously
performed by the inspector.
But, as already stated, that never
happened. The only significant task relating to the indigenous people
living on the commonage
that the board embarked on was to prepare for
the establishment of a formal Native Location within the commonage.
Further evidence
of the extent of occupation of the commonage by
Africans only appears in correspondence between the board and the
officials of
the Cape Government.
[438]
During 1915 to 1916 the board contemplated establishing a Native
location within the commonage as provided for in the Native
Locations
Act 10 of 1870. In its preamble this Act provided that it was
intended to provide for the management of native locations
and other
communities and for regulation of rights on commonages.
[156]
With regard to the Salem Commonage, it was contemplated that the
occupation of the commonage would continue in a more structured
form,
much in the manner provided for in the Native (Urban) Areas Act 21 of
1923. Indeed occupation of the commonage by Africans
was beneficial
to the landowners because it facilitated ready access to labour and
the exploitative sharecropping practices. However
there is no
evidence or record that any landowner or even the board gave consent
for occupation of the commonage by a specific
African or indigenous
employee. On the other hand, there is documentary evidence of leases
granted by the board to white farmers
who were not erven owners, to
conduct farming activities on the commonage. Our conclusion is that
no consent was ever given to
indigenous occupants of commonage to
occupy the commonage.
[439]
It is true that the regulations issued under Act 12 of 1893 regulated
life in Salem prohibited settlement on the commonage.
But, clearly,
the open occupation on the commonage by the indigenous people was
never policed, curtailed or stopped in any way.
Instead, some of the
erven owner collaborated with the African commonage occupants in
their farming endeavours.
[440]
In preparation for the establishment of the Native Location, land was
demarcated within the commonage and correspondence was
exchanged
between the board and the Cape Government on the content of
regulations that were to regulate life on the commonage Native
Location. The regulations were approved by the Governor General in
1917
[157]
and promulgated
under Government Notice No 454 of 1919. They provided, amongst other
things, for natives to be holders of site
permits in respect of the
sites which would be allocated within the Native Location. A
‘Location Official” would keep
a record of the dwellings
in the location and a stock register in which would be recorded the
number of livestock belonging to
the residents of the Native
Location. Young natives (from 15 years old in respect of men and from
17 years old in respect of women)
would be obliged to work for the
white residents of the village when called upon to do so, at a
prescribed fee. Resistance to such
a call up would result in the
recalcitrant youth, together with the owner of the hut in which such
youth resided, losing the right
to live in the native location.
[158]
It is our view that the need to establish a ‘Native Location’
on the Commonage further enhances the claim that their
ancestors
lived on the Commonage with an active social life within their
community.
[441]
The establishment of the commonage Native Location was later
abandoned and the regulations were never enforced by the board.
In
any event, the evidence shows that in reality there was confusion on
the issue of whether the board, in fact, had authority
over the
commonage and the people living thereon. For example, some of the
landowners sought to have the homes of their employees
that were
already built on the commonage, but outside the portion demarcated
for the location to be considered part of the contemplated
Native
Location. In motivation for this proposal it was stated that because
of the vast size of the commonage (20 000 acres)
some of the
landowners’ erven were far from the planned location, so their
workers would arrive late at work and leave early
to get to their
homes before dark. The board pointed out that under the Regulations,
huts placed anywhere on the common land, other
than the demarcated
area, were not under its jurisdiction. In a letter to the Native
Commissioner dated 10 May 1920, the chairman
of the board expressed
concern that the huts in question belonged to persons who were
‘monthly employees on the erven’
and to ‘half
sowers’. This letter is important for several reasons. Inter
alia, it shows that the board was aware of
the existence of the
inhabitants of the commonage. It also shows that the board did not
consider itself as having jurisdiction
over the commonage. Finally,
the letter also shows that, not only did the employees of the
landowners live on the commonage but
importantly, it also puts paid
to the assertion that the African people living on the commonage were
workers only and ‘allowed’
to be there at the goodwill of
the landowners. Before us counsel for the landowners could not
explain the legal basis on which
individual landowners gave consent
to his or her employee to live on the commonage.
[442]
By the early 1920s the land owners had become dissatisfied with the
manner in which the board had, over the years, conducted
the affairs
in Salem. They were of the view that the board had shirked its
authority over the commonage. The administration of
the commonage had
become too ‘chaotic’ for the liking of some of the
landowners. Some of the land owners started having
disputes amongst
themselves in respect of, inter alia, grazing fees charged to
outsiders (other farmers who did not own erven).
These disputes
became difficult for the board to manage, resulting in some of the
landowners forming a separate committee, chaired
by Mr Leslie Basil
Gardiner. The causes of unhappiness included the failure of the board
to control the ‘natives’ living
on the commonage and
their livestock, which negatively affected the thoroughbred breeding
industry and the quality of produce because
their livestock (bulls
and stallions) mixed with those belonging to the African occupants on
the commonage. Consequently farming
could not be conducted properly.
Complaints also related to aggressive land usage methods by white
farmers who were not landowners.
One of these farmers was Mr Robin
Bradfield, who started cultivating, with impunity, vast tracts of
land within the commonage.
Incidentally, a statement taken from
Lindile Magwala, one of the claimants interviewed by the Commission
during the investigation
of the claim, refers specifically to the
disgruntlement amongst the landowners as a result of Mr Bradfield’s
aggressive use
of land on the commonage.
[443]
There is also evidence that land on the commonage was leased to some
board members (eg, Mr R Dickinson) who were not erven-owners
and were
perceived as abusing their leases. Another board member, Mr Luigi
Henson and his brother, John Hewson, lived on the commonage,
paying
boarding of 2s 6d per year and thus regarded as ‘evading rates
and taxes’. The disgruntlement over the Africans
living on the
commonage, their ever increasing livestock which was regarded as of
inferior quality, interference with the farming
activities of the
whites on the commonage led to calls for the commonage to be
subdivided and transferred to the erven-owners.
[444]
In a letter dated 13 November 1920 Mr Gardiner requested the
Provincial Administrator to set up a commission to investigate
how
the board was conducting the affairs in Salem. He expressed
complaints relating to the failure of the board to monitor and
enforce rules on transgressors, including breach, by some of the
landowners, of an agreement that native half sowers would not
be
allowed to plough on a specified 400 acre piece of land which was
specially reserved for use by the landowners. Mr Gardiner
also
alleged that the board had been allowing natives to squat, erect huts
and to graze their cattle on common land at a nominal
charge of 6 d
per head per month, to the detriment of the land owners. The board
also allowed the natives to cut fire wood which
they transported to
Grahamstown and sold for £3 – £5. In fact the
records reveal that the Africans living on
the commonage were engaged
in vibrant business activities.
[445]
Further complaints related to the trapping of game and the ‘robbing’
of beehives by the African inhabitants of
the commonage. In all, the
Africans residing on the commonage had become a nuisance to some
landowners. However, some landowners
found them to be valuable
partners in their farming endeavours. Mr Gardiner expressed concern
that ‘if something is not done,
the natives will soon be in
possession [of the whole commonage] within the next five years’.
[446]
In a letter to the Administrator (dated 21 January 1921), the board
responded by asserting that it was common practice for
European
occupiers of land to engage the services of labour tenants who
received portions of land as partial remuneration for their
services.
It stated that ‘unless the custom is abused, there is nothing
particularly reprehensible about it’. Notably,
this response,
which was a general assertion, was not a denial of the increase in
the numbers of Africans living on the commonage
nor their activities.
Importantly, the board did not refute occupation of the Commonage by
African people who, the evidence shows,
were also living there and
part of a social structure that had developed over time – both
within the closer community and
generally, at least, with some of the
landowners.
[447]
By 1929 the majority of the erven owners were strongly advocating for
subdivision of the commonage and transfer thereof to
each one of them
in proportion to their shares or their allotments. At some stage
leasing subdivided portions of the commonage
to the erven owners was
explored. However, the board had no funds to enable it to prepare the
commonage land for such leases. For
example, it had no funds to
facilitate removal of cactus on the land.
[448]
Although the official Salem Commonage Native Location was never
significantly occupied, there was some limited occupation
thereof. At
some stage there were six huts on the demarcated portion. At the same
time (about the year 1932) about 300 to 400 African
people lived
within the commonage. The number was later estimated at 500
inhabitants, about 50 of whom were employed on the erven
and staying
thereon. In 1934 the native location was disestablished. However, the
disestablishment of the location did not necessarily
coincide with
the actual expulsion or eviction. Therefore although most people
dispossessed of rights in land lived outside the
area demarcated for
the location, the statement that the claimants’ forebears were
dispossessed of rights to land in the
location is not without
foundation because a few families lived within the area demarcated to
be the native location.
[449]
The landowners approached the Supreme Court (Grahamstown) for an
order authorising the subdivision. In
1940
the court granted
the order. Correspondence exchanged between the board, the Cape
Administrator and the remarks made by Gane J
who granted the order
are strong indicators as to the view held by the Cape Government and
the court regarding the ownership rights
which the landowners claimed
to have to the commonage. These views become relevant and are
discussed later in this judgement in
relation to whether the
commonage was the private property of the landowners in respect of
which no restitution of land rights
can be made.
[450]
It is evident from the archival records that, apart from their
financial obligations to the board, the African occupants of
the
commonage were left to regulate their own lives within the commonage.
They decided (on their own) where each family would settle
within the
commonage, which piece of land each family would plough, where to
graze their cattle, where they would bury their dead,
where they
would access wood and water and where they would perform their
customary rituals. These were the different facets of
their
beneficial occupation. And they were guided by African traditional
laws and custom in enjoying such beneficial occupation,
as the
commission asserted.
[451]
Much was made of the fact that the board was the official structure
that was in ‘control’ of the Salem village,
including the
commonage, and that the 1866 and 1906 regulations governed life in
the village, including location of grazing lands.
But, apart from
revenue collection there is no evidence that the 1906 regulations
were enforced on the Africans living in the commonage.
And, as
already shown, although the 1915/16 regulations, intended
specifically for the African community, were promulgated, they
were
never enforced because the native location was never significantly
occupied. Instead the inhabitants of the commonage remained
free to
access land as they determined, according to their traditional laws
and customs.
[159]
[452]
As stated earlier, it was a documented policy of the British
Colonists, in line with English constitutional law, not to interfere
with indigenous laws and customs.
[160]
The (Sir Barry) Commission on Native Laws and Customs, Cape of Good
Hope, 1881-1883, a commission that was set up to investigate
and to
advise on native laws and customs during 1881 to 1883, recorded
that:
[161]
‘
In
1835, natives living between Keiskama and Kei Rivers were declared
British subjects, retaining possession of their lands and
locations
but governed by Colonial law and authority . . . In 1836 new treaties
were entered into with the Natives living East
of the Great Fish
River, acknowledging their independence and recognising their full
right to adhere to Native Laws and Customs.
. . . War occurred again
in 1850 and lasted to 1853 and after its conclusion Sir George
Cathcart treated British Kaffraria as a
“conquered territory in
military occupation” and laid down the following principles for
its government, viz., that
the Colonists be restricted to their
limits and that the Kafirs be not prematurely annexed to the Colony
and subjected to Colonial
laws but be allowed, as British subjects,
to be governed as to their interior discipline by their Chiefs in
accordance with Native
Laws and Customs until European influence
shall have removed objectionable and bad practices.’
[453]
The Commission concluded:
[162]
‘
Many
of the existing Kafir Laws and Customs are so interwoven with the
social conditions and ordinary institutions of the native
population
that any premature attempt to break them down or sweep them away
would be dangerous, besides defeating the object in
view. We consider
it would be most inexpedient wholly to supersede the native system by
the application of Colonial Law in its
entirety; and we have directed
our attention to the drafting of a special code which would leave
such of their customary laws as
are not opposed to the universal
principles of morality and humanity, substantially unaltered and at
the same time secure a uniform
and equitable administration of
justice in accordance with civilised usage and practice.’
[454]
This policy undermines the argument, on behalf of the landowners,
that it is improbable that the board would have allowed
freedom of
way of life and a traditional administrative structure on the
commonage parallel to that of the board. Therefore the
criticism
relating to lack of credible evidence about the existence of Chief
Dayile does nothing to bolster the appellants’
contention that
the people who lived on the community were not a community. The fact
is that the Colonists acknowledged the African
traditional leadership
structures and even encouraged them. Even if it is accepted that the
evidence relating to Chief Dayile and
his background is unclear,
documented history supports the contention that, as in all African
communities, there must have been
a traditional leadership structure
on the commonage. Clearer evidence about the existence of Chief
Dayile would not have, on its
own, constituted, comprehensive
evidence of shared rules of accessing rights in the commonage land.
[455]
The board did not allocate land to the commonage inhabitants for
residential and agricultural or farming purposes. It did
not provide
grave sites or establish a water or wood resources. These aspects
must have been regulated by the established African
community based
system of rules and custom which was shared by those living on the
commonage. As will be set out below, in the
discussion of the oral
evidence led before the LCC, one of the appellants’ witnesses
testified that there was a traditional
leadership structure on the
commonage, consisting of a group of male elders.
[456]
There is no evidential basis to discount the estimates of the African
population that lived on the commonage. The main judgment
highlights
the fact that a report of the Assistant Health officer dated 7
December 1931 makes no mention of Africans living on
the commonage.
But that report does not say they were no Africans on the commonage
at the time. And more telling is the later report
dated 30 June 1932,
also from the Health office, which estimated the number of Africans
living on the commonage at 300 to 400.
The report of 30 June 1932
recorded that ‘white population of Salem V. M Board area
approximately 84. Native population possibly
300-400 – no
recent figures available. These records constitute independent
evidence which is consistent with seven decades
of community life on
the commonage. The view that the estimate of 450 people on the
commonage is improbable because such a number
could not be
accommodated in the twenty-six huts shown in the 1942 aerial
photograph does not take into account that by 1884 there
were already
24 huts and 130 people on the commonage. In fact these undisputed
figures show that by 1884 there was already a community
of African
people living on the commonage. It is probable that there by 1942
there were more than 24 huts on the commonage as will
become clear
below.
[457] Mr Adie Gerber
prepared a report on the observations by the archaeologists, Tim Hart
and David Halkett who were appointed
to conduct an information
gathering survey of the Albany District. They inspected various grave
and hut sites on the commonage.
Their conclusions, drawn from the
observations made during the inspection, were:
‘
Our
field observations led us to conclude that there is ample evidence of
human occupation of the farms that make up the land that
was once the
Salem Commonage. This consists of dwelling houses, places where
natural resources were exploited (lime quarry and
springs) and
numerous graves which were pointed out by our informants.
Unfortunately the circumstances under which we were working
were
restrictive – the survey is by no means comprehensive, and in
many places dense vegetation cover impeded our ability
to observe the
ground surface.’
[458]
Even in the restricted circumstances under which the archaeologists
conducted the inspection,
[163]
according
to their ‘table of observations and co-ordinates’ they
observed, at least 47 huts and possible huts.
[164]
The following also appears on the report:
‘
The
party was escorted to a large known cemetery that our informants told
us was related to the old “location” in Salem.
Our
inspection revealed that this was indeed a large “informal”
burial ground of some 200-300 graves (again estimates
difficult due
to dense vegetation). The site extends up to the existing Salem –
Alexandria Road and further to that is bisected
by the remains of an
earlier historic road alignment. Mr Nondzube informed us that when he
was young, he remembers human bones
being exposed when the current
road was built which implies that the cemetery extended to the crest
of the slope. We inspected
the road cuttings for evidence of graves
or human remains but saw none. Bone does not preserve well once it is
exposed to the elements’.
[459] Regarding the 1942
aerial photographs on which the appellants’ contention of a
handful of labour tenants is founded,
Mr Gerber’s report
reveals that:
‘
On
our return from the inspection, 1942 aerial photographs were made
available to us that reflected the southern portion of the
commonage
but excluded the area of Salem and farms to the north. On aerial
photographs of 1942 only one very small settlement was
observed on
the commonage land. None of the numerous settlement sites depicted on
the 1:50 000 maps were present indicating that
there was a
fluorescence of population after the subdivision of the land took
place. Further analysis of the complete aerial photograph
set is
desirable.’
It
therefore seems to us that the 1942 aerial photographs depicting a
few huts are far from conclusive on the issue, particularly
in the
light of the more reliable evidence that as far back as the 1880s
there were already 24 huts on the commonage and what Hart
and Halkett
recently observed during their investigations. The aerial photographs
showing footpaths between the erven and these
few hut-remains are
equally inconclusive. This is understandable because of the thick
undergrowth which is likely to have prevented
an accurate aerial view
and photographs.
[460] Consequently, the
independent evidence contained in the archival records and the aerial
photographs shows that over the seven
decades, starting from the
1870s, indigenous people occupied the Salem commonage until the 1940s
when it was subdivided and the
subdivided portions were allocated to
the white farmers of Salem, the effect of which was racially
discriminatory as is evident
in the correspondence penned by Gardner,
as leader of a disgruntled group of landowners, prior to and
including the application
to the Grahamstown Supreme Court. A result
of the subdivision and transfer of the commonage to the individual
landowners was dispossession
of the African inhabitants of their
rights therein. Interestingly, under prescriptive acquisition they
would have acquired ownership
thereof, at least by the early 1900s.
[461]
It was submitted on behalf of the landowners that the African people
who lived on the commonage or their descendants are not
entitled to
restitution of any rights in land because in 1878 only one family,
consisting of three people, was found on the commonage.
That family
did not constitute a community for purposes of the Act, so it was
argued. Neither did the 130 people that lived on
the commonage in
1884. The contention was that, essentially, the forebears referred to
by the community were illegal squatters
who did not ‘build up’
any rights during the period that they lived on the commonage. This
argument misses the basic
approach to land claims and indeed the
spirit of the Act. The fundamental principle that governs land claims
is that the determination
of the existence of rights, the nature
thereof, and whether such rights should be restored is not made
according to the laws which
prevailed at the time of occupation.
[165]
The determination is made within the current land restitution legal
framework. For obvious reasons, the African community living
on the
commonage could have no rights based on the laws of the time during
which it lived on the commonage. Further the fact that
in 1878 only a
family of three lived on the commonage does not detract from the fact
that over time the inhabitants of the commonage
grew in number, such
that by the time they were dispossessed of access to the commonage,
they were a community of several hundred
people. The evidence shows
the existence of a community, although it was conveniently invisible,
save as a source of labour and
the benefits derived from its members’
skills as half sowers. These are the very injustices that the current
legal dispensation
is designed to remedy. The argument of the
landowners flies in the face of the fundamental spirit and purpose of
the Act, which
is to restore the dignity of people who suffered the
shame of being caused to be pariahs from their homes.
[462]
Turning to the oral evidence led before the LCC, Professor Legassick
testified as an expert historian on behalf of the claimants
and
Professor Gilliome testified on behalf of the landowners. Again,
their evidence is set out in the main judgment. Apart from
giving
opinion as to the early (pre-18
th
century) settlement of
the Zuurveld, both experts also gave their opinion on the issue of
occupation of the Salem commonage by
a community of indigenous people
as alleged. Their opinion was based on the content of the archival
records.
[463] Professor
Legassick’s evidence and opinion was that the archival records
supported a claim based on both traditional
rights and on occupation
of the commonage for a period of ten years as provided in s 2 of
the Act. As to the claim referred
to the LCC he opined that:
‘
These
returns [by the inspector of native locations] are significant. They
indicate that the habitation of the Salem Commonage by
natives was
officially recognized as legitimate by the Cape Government. The
population of Salem Commonage, in other words had rights
to occupy
the land and rights to graze cattle on it. Even though the returns
ceased, the population with their cattle remained
in occupation of
the land
.
Already
in 1883 they had been there for six years. Ten years residence is
required to establish beneficial occupation and to guarantee
rights –
and certainly they remained for that length of time. In fact there is
no evidence that they were removed –
until their dispossession
in the 1940s, sixty years, or some two or three generations later.
People occupying the land in a given
place for two to three
generations must interact with one another, visit each other, do
things together, establish rules of behaviour,
including those
determining access to the land, and in other words, must constitute a
community, at least partly self-sufficient.’
[464]
Professor Legassick was criticised for this opinion on the basis that
on the claimant’s own version, the alleged occupation
of the
commonage was never authorised by the board. Our colleague finds that
his evidence was inadmissible and that his rationale
that the
occupation of the commonage was recognised was false because the
board exercised strict control over access to the commonage,
to the
extent that no unauthorised persons could settle thereon.
[465]
We have already expressed our disagreement in this regard. Even if he
was not qualified to give an opinion on the nature of
the rights on
which the claim was founded, his evidence was based on the same
records that we remain entitled to consider and from
which we draw
our own conclusions. As stated, from its establishment, the board
paid no regard to life on the commonage. The meticulous
records that
had been kept by the Inspector of Native Locations were discontinued.
There is no evidence that the board kept record
of statistics of the
inhabitants of the commonage and their livestock, or erven-owners who
had given permission to their employees
to reside on the commonage,
or where exactly, on the commonage those employees were permitted to
live. It was the lack of control
by the board over the commonage that
led to complaints against it and its eventual replacement. As we have
already stated the issue
of the rights that accrued to the community
must be determined through the prism of the Act, rather than the laws
that were applicable
at the time of occupation. The test is whether
on application of the provisions of the Act to the facts as they
existed or unfolded
over time, the members of the community acquired
rights in the land on which they lived, viz the Commonage.
[466]
Professor Legassick’s contention that the occupation by the
community was recognised by the authorities is based on
the evidence
that the occupants of the commonage were caused to pay certain dues
and taxes for their occupation and for the livestock
they kept. It is
not in dispute that they paid these dues and taxes. Professor
Legassick’s inability to understand how people
could be caused
to pay dues and taxes, yet their existence be disputed, is quite
understandable.
[467]
Further, Professor Legassick’s conclusion that the occupants of
the commonage constituted a community is drawn from
the evidence
showing that life on the commonage was orderly or systematic. The
inhabitants were a cohesive community unit. Land
was accessed in a
shared pattern for residential purposes, access to water and wood,
ploughing, performing of rituals or customs
and for burying the
dead.
[166]
They pooled their
cattle for purposes of ploughing (Amabhoxo). They made communal
decisions as to when and where boys and girls
would be initiated.
They attended each other’s traditional ceremonies and they
regarded themselves as a distinct community
amongst other communities
in the region.
[468]
The conclusion, by Professor Legassick, that the Africans who
occupied the commonage were recognised by the Cape Government
as
occupants of the commonage accords with logic and the probabilities
when one considers the fact that they paid Hut Tax to the
authorities, their livestock was recorded by the inspector
independently of that of the erven holders, they also paid dues for
grazing their cattle on the commonage and a monthly fee for cutting
wood. Over and above that, the complaints about the African
nuisance
fortifies this. It is also relevant that when the erven owners sought
to have the Africans forced to brand their cattle,
to distinguish
them from those of the erven owners, the Administrator rejected the
proposal, asserting that the proposed law would
be ultra vires as it
would be discriminatory (as between the erven-owners and the
Africans).
[469] Our view regarding
the criticism levelled at Mr Paul’s is similar to that
expressed above in respect of the evidence
of Professor Legassick. Mr
Paul’s evidence and conclusions were founded on the same bases
as those of Professor Legassick,
particularly, his support for a
claim based on traditional rights. Mr Paul’s evidence mainly
consisted of conclusions drawn
from the archival records. In the same
way as Professor Legassick, the criticism against Mr Paul’s
evidence related to his
opinion that the land claim is founded on
traditional or indigenous rights because the claimant’s
ancestors were the original
occupiers of the land in question. We
accept that their insistence on asserting the claimants’
traditional rights is irrelevant
in as far as proving a claim founded
on beneficial occupation for a period in excess of 10 years. However
where their evidence
supports that claim it cannot be ignored. The
court remains enjoined to consider all the evidence before it.
[470]
Mr Paul’s report formed the basis for the referral of the claim
by the commission to the LCC in terms of s 14(2)
of the Act. The
report reveals that at some stage during the investigation of the
land claim, some of the landowners were prepared
to and others did
relinquish ownership to portions of the claimed land. However
settlement negotiations with the current landowners
failed as the
parties could not agree on the pay-outs.
[471] Mr Misile Nondzube
bore the brunt of the criticism in our colleague’s judgment. We
accept that his evidence was not
a model in clarity. But the
criticism of his identification of certain sites, such as Chief
Dayile’s kraal, his family’s
gravesite and ploughing
fields must also be viewed in proper context. In his report Mr Gerber
said the following about the assertions
made by Mr Nondzube:
‘
Mr
Nondzube indicated that the graves were of relatives of his. We were
informed that there were huts a short distance away but
these had
been destroyed by ploughing. There were no visible indicators. The
graves themselves were identified to us as being directly
under the
cover of a tree. The only indicators of human activity were about 5
rocks which had been transported onto the site and
a single low mound
under a bush. We could not determine if the mound was human made or
had accumulated as a result of windblown
debris and humus trapped by
the bush. Our informants told us that the stones were on the site
because they had been placed there
as a token of respect by persons
visiting the graves. A contrasting explanation was given by Mr Theo
Harris (interviewed two days
subsequently) who said that the stones
were thrown onto the site by farmers to get them away from the
planting and ploughing activities.
We
are unable to confirm the presence of the graves independently of the
oral history provided by our informants. The only feasible
way to do
this would be to open the ground and check for the presence of human
remains.’
[472]
The archaeologists were not dismissive of the allegations made by Mr
Nondzube and his companions. They did not find them bizarre.
Their
comments were only that the allegations could not be independently
confirmed. Even if Mr Nondzube’s allegation about
the graves of
his family is discounted, that does not mean that all his evidence
was devoid of value. Certain portions of his evidence
are borne out
by some of the documented history. For example, he testified that he
was told that Chief Dayile, who became the traditional
leader within
the commonage, was not born of royal blood and that as a minor chief,
he reported to the paramount chief who had
remained in the Transkei.
[473]
We disagree with our colleague’s finding that the claim hinged
solely on the evidence of Mr Nonzube and more specifically
on proof
of the existence of Chief Dayile. The Act does not prescribe proof of
a specific personality as a requirement for a Community.
It requires
a ‘group of person whose rights in land are derived from shared
rules determining access to land held in common
by such group, and
includes part of any such group.’
[167]
We reiterate that in the referral, the Commission said, the rights
which the community had were ‘acquired and used in accordance
with shared rules of usage, both in terms of traditional laws as well
as so-called location rules’. The fact that the existence
of
Chief Dayile’s was not conclusively established was not fatal
to the land claim. As shown above, features in the life
of the
commonage community, such as an established orderly settlement
pattern, common traditional practices, pooling of resources
for
farming purposes, economic activity, and a leadership structure,
demonstrate that the occupants of the commonage were an established
community as envisaged in s 2 of the Act
[168]
,
with or without their chief.
[474] For the same
reasons, the short-comings in the evidence of Mr Ndoyisile Ngqiyaza
are not destructive of the land claim. We
accept again, that his
evidence is not a model in clarity. It is difficult to discern, from
his evidence, which events happened
while his family lived at the
‘location’ prior to subdivision and which happened when
his family lived on Mr Don Bradfield’s
farm after the
subdivision. He also testified that his mother’s grave was in
the location, yet during cross-examination he
said his mother died
when his family already lived on Mr Bradfield’s farm. Whilst
this is not necessarily contradictory his
evidence on these aspects
remains unclear. He obviously had difficulty testifying with
reference to specific years. Yet he was
consistent in his version
that his father went to work for Mr Bradfield after the subdivision
and that at that time he no longer
had his own livestock. Prior to
this, when they still lived in the location, his father sold wood in
Grahamstown. He insisted that
his family left their home in the
location as a result of the subdivision of the commonage. This is
consistent with the general
body of evidence and apart from the
inconsistencies, there is ample documentary corroboration for what he
generally testified.
[475]
In our view, just as the oral evidence led on behalf of the
commission and the claimants was not perfect, so too was the evidence
led on behalf of the appellants. Apart from Mrs Page and her brother
the witnesses who testified on behalf of the landowners were
only
born after the subdivision. Their direct evidence relates to the
period starting after the subdivision. Reference to the earlier
period was based on hearsay.
[476]
We first consider the evidence of the landowners’ expert,
Professor Hermann Gilliomee. He disputed that the first occupants
of
the Zuurveld were indigenous people. Both Professor Gilliomee who
testified on behalf of the appellants and Dr Visagie whose
expert
report forms part of the record asserted that the prior occupation of
the land by AmaXhosa was temporary or sporadic and
did not constitute
permanent settlement that could give rise to indigenous rights. We
are of the view that the evidence and most
historical writings prove
the contrary. We re-iterate, however, that the real issue is the
continuous occupation of the Salem commonage
by a community of
indigenous people for a period in excess of ten years, subsequent to
1913, not what occurred before.
[477]
The evidence of Mr David Mullins was based on hearsay from his
father. His father farmed with beef cattle, vegetables and
pineapples
on the farm Moorelands from 1952 and moved to the farm Avondale in
1964. Later he bought more farms, Salem Park, Devonshire,
Willow Bank
and a portion of the farm Pleasant Prospect, which were all within
the claimed land but have since been sold to the
Government. It will
be noted that Mr Mullin’s father would have settled on the
claimed land some time after the subdivision.
He would therefore have
related to his son what he himself had heard from other people. Mr
David Mullins’ evidence is relevant
on two aspects: firstly,
that the farm Avondale was virgin land when his family acquired it.
The landowner’ contention was
that the land could not have been
inhabited and cultivated by the claimants’ forebears. However,
Mr Mullins’ evidence
cannot detract from the value of the
archival evidence on the presence of African people on the commonage
from the 1870s to the
1940s. Moreover, it had not been the
Commission’s case that every inch of the commonage had been
cultivated.
[478]
The second relevant aspect of Mr Mullins’ evidence was that Mr
Nondzube’s father, Jamani Sukula, had told him
(Mullins) that
prior to working for Mr Mullins’ father he (Sukula) had come
from the ‘Seven Fountains area’,
[169]
and that he had first worked for the Kings family on the Kingston
farm. The suggestion from this assertion was that Mr Nondzube’s
evidence on what his father had told him as the history of his
people, particularly that they had lived on the Salem Commonage,
was
false. However, there was no indication in Mr Mullins’ evidence
as to when and where exactly Mr Sukula would have lived
in the ‘Seven
Fountains area’ or worked for the Kings, and where the ‘Seven
Fountains Area’ he was referring
to was, relative to the Salem
Commonage. Again, it is important to note that the Mullins family
arrived in South Africa from Zimbabwe
in 1952. His assertion that
before subdivision the residents of the commonage were a handful of
people employed on the erven must
be considered together with the
objective evidence on record.
[479]
The evidence of Mr Spencer Hill is also significant. In relation to
Mr Nondzube’s evidence that his family lived on
a certain
portion of the commonage in the vicinity of a Milkwood tree where he
had pointed out the graves of his relatives. According
to Mr Hill
that portion of land is part of the Rippley Farm on which he was
raised. His father bought it as part of Pleasant Prospect
in 1949. It
was common cause that the Ripley Farm used to be part of the
commonage. It was awarded to Mr Hill’s grandfather
as one of
the owners of the erven upon the subdivision. According to Mr Hill
his family had ploughed the land ‘from boundary
to boundary’
and had never uncovered any graves thereon. We have already referred
to the remarks made by the archaeologists
in respect Mr Nondzube’s
identification of the alleged gravesite. There is no indication in
the archaeologists’ report
that the gravesite had been ploughed
over. Instead the only comment made to them to refute the version
that the land around the
milkwood tree was a gravesite was that the
stones found under the tree had been removed from land that was being
ploughed. It is
striking that the claimants’ witnesses and
those interviewed during the investigation of the claim appeared to
be familiar
with this part of the commonage, referring to it as
eMqwashini, uMqwashu being the IsiXhosa name for a milkwood tree. It
must be
said, for the sake of completeness, that by the time the
matter came before the LCC, the farm Ripley had been ‘returned
to
the community’. Mr Dyakala presently lives on it.
[480]
Mrs Ethel Page was 87 years old when she gave evidence in the LCC.
She was born in Grahamstown in 1926 and moved to Salem
in 1934 when
she was about eight years old. Her father had bought the Residency
farm from the magistrate, Mr Mathews. When the
commonage was
subdivided her father was allocated a further farm thereon, the
Philemon’s Hoek by virtue of his ownership
of the Residency.
[481]
In our view the evidence of Mrs Page was the most inconsistent.
Particularly considering that she was testifying about her
personal
experience and observations. She initially testified that she did not
know where the two African employees who worked
for her family lived.
She insisted that they did not live at her home. Later she admitted
that they lived on her father’s
farm. She denied that there
ever was a ‘black residential area’ where the commonage
used to be. This cannot be correct
given the independent body of the
archival evidence referred to above.
[482]
She testified that as a young girl she used to ride her bicycle
throughout the Village and she never saw any African person
living on
the commonage. However, during cross-examination she admitted that
‘they might have been there, but we did not
notice them’.
[483]
It seems that Mrs Page never took interest even in the African people
that were part of her daily life and lived in her home.
She could not
recall their names and did not know where they lived. It was
unrealistic therefore to expect that she would know
of the existence
of Chief Dayile or any traditional leadership structure on the
commonage about whom she was asked. Her evidence
could not form a
credible foundation to refute Chief Dayile’s existence.
Moreover, there was no reason for her to make a
mental note of this
since at the time, there could not have been any reason for her to do
so.
[484]
The evidence of Mr Cuan Alwyn King did not take the matter any
further, except for the admission that one of the African families
that worked for his father’s aunts lived on the commonage. His
evidence was that his father’s aunts, from whom his
father
acquired the farm Kingston, employed four Africans, three of whom
lived with their families on the farm and one who lived
on the
commonage. He asserted that his father had told him that his aunts
had obtained permission from the board for this family
to live on the
commonage. But his evidence in this regard was uncertain. He
initially testified that ‘the family probably
had permission’.
Later, under cross-examination, he testified that his father had told
him that ‘there was permission’.
As expressed earlier
this is inconsistent with the board’s express disavowal of any
authority over the huts built by the
African people on the commonage.
On the other hand, the evidence shows that the landowners considered
the board as having had such
authority.
[485]
Mrs Bradfield had married into the Bradfield family in 1974. Her
evidence related to affairs on her father-in-law’s
farm (Donald
Bradfield) as in 1945, based on her interpretation of entries made in
Mr Bradfield’s diary. The high water mark
of her evidence
related to an entry in that diary, dated 30 April 1945, that Mr
Bradfield bought a bicycle for his employee, Mr
Dyakala. Mrs
Bradfield’s opinion was that Mr Bradfield must have bought the
bicycle because Mr Dyakala ‘came from a
distance away’
from the farm. But she later testified that Mr Dyakala lived on Mr
Bradfield’s farm and not on the commonage
as Mr Dyakala’s
descendants claimed. Again, this evidence takes the matter no
further. It neither contradicts nor supports
the versions put forward
by the parties. It was common cause that after the court order
authorised the subdivision, from the 1940s,
some of the occupants of
the commonage moved onto the farms where they were employed, others
went to live in nearby communities,
including Grahamstown.
[486]
Mr van Rensburg, is a brother to Mrs Page. He was also adamant that
he never saw any African people living on the commonage
as he grew up
in Salem. He testified that his father’s two employees lived on
his father’s farm and received food rations
as part of their
wages. But, in striking contradiction to Mrs Page, according to Mr
Van Rensburg the employees each had eight cattle,
including oxen with
which they ploughed their garden patches and their employer’s
land. It appears that Mr van Rensburg (the
father) did not have any
oxen. Mr van Rensburg did not know whether the employees were
sharecroppers, but
‘
they were allowed
to have and to keep these oxen on the farm, on the property, and
because of that they never got paid, but they
were given land, a big
piece of ground, to plough and plant for themselves’.
[487]
In summary, the extensive evidence led before the LCC related to
occupation of the Zuurveld Region, firstly by the indigenous
people
of South Africa,
[170]
the
arrival of the Dutch during the seventeenth century and the British
settlers in the 19
th
century, the wars and battles waged between the AmaXhosa and both the
Dutch and British colonists, the ultimate defeat of the AmaXhosa,
their colonisation and reduction to farm workers, their occupation of
the commonage and finally, their expulsion therefrom in the
1940s.
Notably some of the landowners accepted in their evidence that there
was some form of leadership amidst the community of
African people.
According to the landowners, however, each farm had its own group of
elderly men who were tasked with facilitating
the resolution of
disputes and also cultural and traditional practices. We do not
understand how the allegation can be sustained
in light of the fact
that, at least in so far as Ms Page is concerned, they only had two
male workers on their farm and there were
only two or three employee
families on most farms.
[488]
We have already set out the basis for our conclusion that the
evidence proves that a community of indigenous people lived
on the
commonage as asserted by the Commission and the claimants. The
contention, by the claimants, that the occupants of the commonage
were their ancestors, AmaXhosa of the Jwara clan, accords with the
history alluded to. Their shared traditional rules, customs
and
principles determined their way of life within the commonage and
their rules for accessing the land for their livelihood. This,
coupled with the fact that the African community, alluded to above,
had been on the commonage over time, and seen in certain quarters
to
be of nuisance by the 1940s, lends credence to their claim.
[489]
We next consider whether the perpetual quitrent grant and the
subsequent freehold title issued to the British Settlers in
respect
of the commonage, are a bar to the land claim or restitution of the
land to the claimants. The landowners’ argument
is that no
claim can validly lie in respect of the commonage because, even if
occupation is proved, the land was already privately
owned and held
by a freehold title when the Africans settled thereon.
[490] In respect of the
commonage, both the Quitrent Title and the Deed of Grant accorded to
the British settlers’ shares
which allowed them
access
to the commonage, in proportion to the size of their allotments, for
purposes of pasturage and water, wood, reeds and thatch grass
collection. The shares were described as relating to:
‘
A
piece of land measuring 2 333 morgen, situate in the district of
Albany on the Bushman’s River,
granted
as Commonage
to the Salem Party of Settlers on 15
th
December 1836’; and
‘
A
piece of land constituting 5355 morgen 555 square roods, situate in
the District of Albany,
granted
to
the present and future proprietors of Locations
in the Salem Party, on 23
rd
November 1847,
being
the grazing ground or common land of the said Party
.’
(My emphasis.)
[491] Essentially the
shares were granted to enable access to the commonage land for the
enjoyment of a common benefit available
to the then present and
future Salem landowners. Interestingly, there is evidence that 22 of
the original (50) members Sephton
party of settlers that had settled
in Salem had abandoned their allotments by 1931 due to hardships of
farming activities. They
therefore must have also abandoned their
shares to access the commonage. In a letter dated 14 January 1936
attorneys Whiteside
and Stapleton (representing the landowners, it
would seem) wrote as follows to the Cape Provincial Secretary:
‘
The
rights to the commonage are held by 25 erfholders who have from time
to time held meetings to discuss the situation owing to
intense
dissatisfaction that arises from the fact that such huge land cannot
be farmed satisfactorily on a communal basis . . .
.
. .
The present commonage is of absurd size
for a small community of about 100 inhabitants and of these only 25
owning commonage rights.
These erfholders holding such rights will be
quite prepared to agree that a portion of the commonage be retained
by the Board for
general use of the public as there is always more
than sufficient land for all purposes
.’
Clearly
about half of the original landowners had abandoned their rights to
access the commonage.
[492]
Further, the Cape Administration also abandoned its right to claim
transfer to it of a portion of the commonage based on its
ownership
of the village school property. It considered that the attendant
transfer and maintenance costs of an additional property
would be
prohibitive; and the school was, in any event, unlikely to require
additional space in the foreseeable future. On the
evidence before
us, those portions of the commonage which were abandoned were,
without any legal basis, subsumed by the remaining
landowners on
subdivision.
[493]
Our view that the commonage served as a public resource is fortified
by the following remarks made by Gane J in the Grahamstown
High Court
when considering the application for subdivision of the commonage.
The learned judge remarked that it was most unusual
for members of a
local authority (the board) to hand over all their rights to the
commonage to private owners. In addition, the
Administrator of the
Cape Colony considered the subdivision to be particularly ‘unusual’
as it would result in the
board being left without ‘common
land’.
[494] The following
remarks by the Administrator in a letter written to the board are
also telling:
‘
7.
It might be as well at this stage to point out that the question of
the subdivision of this commonage was taken to court at the
instance
of the Administration and of the Registrar of Deeds entirely through
a misapprehension. Originally the applicants approached
this office
and alleged that they were the owners, in community of property, of
the so called commonage of Salem, and they asked
for your consent to
the division of these common lands amongst the applicants so that
each might have individual ownership of a
portion of the lands. The
Administration advised the applicants that it had no power to direct
the Registrar of Deeds to give them
transfer of portions of the land,
and in this the Registrar of Deeds concurred, stating that an order
of court would be necessary
to effect transfer of the land. When the
matter came to court the judge pointed out that this was not the
correct legal position,
but that the Administrator had full power to
act in terms of s 49 of Ordinance No 10 of 1921, ie the ordinary
provision under which
the village management Boards are authorized to
dispose of land…
8.
In view of the considerable amount of money spent by the applicants
in approaching the Court, and in order to expedite settlement
of the
matter as much as possible, the Judge allowed the issue of the Rule
Nisi previously referred to. The position is, however,
that apart
from the fact that the applicants have been to court, this matter
comes before you as an ordinary application by a Village
Management
Board to dispose of its lands.
9.
Provision is made in s 49 for the leasing of commonage lands, and had
this matter been submitted to the Administration correctly
in the
first instance, it would have been suggested to the Board that the
best way to meet this position would be to grant long
leases of
portions of the commonage, subject to conditions to be approved by
you, In this way each of the applicants would enjoy
practical
ownership of a portion of the ownership for say 25 or 30 years,
but
at the end of that period the position could be reviewed in the light
of the circumstances then existing and the Board would
have the land
as an asset for the benefit of the community of Salem.
In view of
the expense which has been incurred by the applicants, however, there
is little likelihood that they would agree to
such a solution for the
matter. In the circumstances I consider that, taking into account the
opinion that has been expressed by
the Magistrate of Grahamstown …
it would be as we to agree to the subdivision of the whole commonage
subject to the conditions
such as those following being registered
against the transfer deed of each of the subdivided portions:
(i)
that the portion sold shall remain as commonage for the lot to which
it is allocated and shall not be sold apart therefrom;
(ii)
that the right of access to the various portions should be
safeguarded.’
[495]
Indeed the consent of the Administrator was granted under these
conditions. And on subdivision of the commonage, the proposed
conditions were incorporated into the title deeds relating to the
subdivided portions.
[496]
Despite these sentiments expressed by both the Learned Judge and the
Administrator, the subdivision was allowed and the African
occupants
of the Commonage were forced off it. It is this event which serves as
a conclusive bridge by which the claimants must
succeed in asserting
their rights in the land.
[497]
All this, in our view, shows that the understanding of those in
authority was that the commonage served a public interest
and that
this position should continue. The contents of the letter from
Whiteside and Stapleton show a recognition of the fact
that the
commonage served as a public resource.
[498]
Not so long after the subdivision, in about 1950 the landowners
wanted permission to sell their portions of the commonage
separately
from their original erven. This, of course, was contrary to the
conditions in their title deeds which were intended
to ensure that
the land remained available for public benefit. The Administrator
refused stating that the Commonage remained necessary
and that he
anticipated that if the farmers were allowed to sell their portions
of the commonage as they sought ‘after a
while the owners of
the village plots [would] again start agitating for commonage
rights’. However, despite the opposition,
the landowners
eventually got their way, and sold the commonage portions.
[499]
The evidence demonstrates that the commonage land was always intended
to serve as a public resource. The private ownership
contended for
cannot was contrived. In our view a finding that ignores this
background defeats the core purpose of the Act.
[500]
Turning to our colleague’s finding that the dispossession of
the commonage community was not a result of a racially
discriminatory
law or practice, we disagree. The dispossession was patently racially
discriminatory. The failure to consult or
in any way take the
interests of the community into account, and the process which forced
hundreds of African people away from
their homes on the commonage for
the benefit of 25 white farmers was crude and racially discriminatory
conduct. The court order
could not cleanse the dispossession of its
racially discriminatory nature.
[501]
Our colleague finds that the claimants’ land claim was
invalidly lodged and that the claim must fail for this reason
alone.
We disagree. The importance of the requirement set in s 10 (3) is not
to be undermined. However, the question of compliance
should not be
approached as a mechanical exercise. Recently, this court has held
that when interpreting specific provisions in
contracts or
legislation regard must be had to the document as a whole, and that
‘whatever the nature of the document, consideration
must be
given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision
appears; the
apparent purpose to which it is directed and the material known at
the time of its production’. See
Natal
Joint Pension Fund v Endumeni Municipality
.
[171]
[502] Further, an
examination of comparable legislation shows that similar provisions
have not been rigidly interpreted by courts.
For example Rule 7(1) of
the Uniform Rules of Court provides that:
‘
Power
of Attorney
(1)
Subject to the provisions of subrules (2) and (3) a power of attorney
to act need not be filed, but the authority of anyone
acting on
behalf of a party, may within 10 days after it has come to the notice
of a party that such person is so acting, or with
the leave of the
court on good cause shown at anytime before judgment, be disputed,
whereafter such person may no longer act unless
he satisfied the
court that he is authorised so to act, and to enable him to do so the
court may postpone the hearing of the action
or application’
[503]
in
Tattersall
and Another v Nedcor Bank Ltd
[172]
in which the authority
of a bank manager to launch court proceedings on behalf of the bank
was challenged the court accepted the
averment in the founding
affidavit that the bank manager was ‘duly authorised’ to
launch the proceedings At 228G-H
the court held that:
‘
A
copy of the resolution of a company authorising
the bringing of an application need not always be annexed. Nor does s
242(4) of
the Companies Act 61 of 1973 (to the effect that a minute
of the meeting of directors which purports to be signed by the
chairman
of that meeting as evidence of the proceedings at that
meeting) provide the exclusive method of proving a company’s
resolution
… There may be sufficient
alliunde
evidence’.
[504] In this case, when
considering this issue, the LCC stated as follows:
‘
The
provisions of this section must be read in context, it [s 10(3)] was
clearly designed to give ample leeway to a claimant who
is often not
acquainted with the legalities of a process and simply wishes to
lodge a claim in a representative capacity unlike
other legislation
such as Companies Act which is specific and peremptory on the
question of resolutions and authority to act. It
is unfortunate that
the claim form does not specifically require to be filed at the time
of lodgement but simply requests ‘capacity’.
It is
wishful thinking to expect an ordinary Community representative to
assume that his capacity must be supported by a resolution.
Mr Paul
in his evidence testified that the constitution of the claimant
community was accepted by the Regional Land Claims Commissioner
and
the claim was validated. The claim form was lodged on 24 December
1998 and it was conceded by the Land-Owner Defendants after
being
placed in dispute. The Land-Owner Defendants did not question the
Plaintiff’s (sic) witnesses or Mr Paul regarding
Mr Madinda’s
(Madlavu’s) authority to lodge the claim’.
[505]
Although the provisions of s10(3) of the Act are, in fact, couched in
more peremptory terms than those of Rule 7(1) of the
Uniform Rules of
Court we are of the view that the LCC adopted the correct approach on
the issue. Courts cannot adopt a more rigid
approach to proof of
authority from a community such as the claimants in this case than it
does in the case of sophisticated and
legally represented directors
of companies. This would be too formalistic. In fact it is clear that
this community had structured
itself into a group in order to claim
their rights in land and the smaller group of listed representatives
acted on its behalf.
Particularly in light of the fact that the
Commission, for whose benefit the requirement is set, will still
conduct investigations
into the merits of the claim. The constitution
of the ‘claimant committee’ sets out as its objective the
return of
the land of [their] forebears to the Salem community. (It
is headed, in IsiXhosa: ‘Abantu okanye inzala yabantu base
Salem
banqwenela ukubuyiselwa kwilizwe loo Khokho babo nelilifa
kubo’). Mr Madlavu’s name is listed in the claim form as
one of the community representatives. We do not dispute that more
explicit proof of authority would better serve the purposes of
the
Act. And, perhaps the Commission could have structured the claim form
more comprehensibly. But there is no evidence that the
claimants
failed to furnish any information required from them by the
Commission. To non-suit them in these circumstances would
be
insensible and would defeat the purpose of the Act.
[506] Finally, we agree
with our colleague that the submission, on behalf of the claimants,
that the challenge to the decision of
the Commision on the claim
should have been made by way of a review, is without merit. Section
14 (1) of the Act is clear as to
the procedure following the
investigation of the claim by the Commissioner. The section provides
that:
‘
If
upon completion of an investigation by the Commission in respect of
specific claim-
(a)
The parties to any dispute arising from the
claim agree in writing that it is not possible to settle the claim by
mediation and
negotiation;
(b)
The regional land claims commissioner
certifies that it is not feasible to resolve any dispute arising from
such claim by mediation
and negotiation; or
(c)
. . .
(d)
The regional land claims commissioner is of
the opinion that the claim is ready for hearing by the Court,
The regional land claims
commissioner having jurisdiction shall certify accordingly and refer
the matter to court.’
This
claim was therefore properly referred the LCC.
[507]
All in all, we are satisfied that the evidence showed not only that
an African community inhabited the commonage from the
1870s to the
1940s when it was dispossessed of beneficial rights deriving from
such occupation, but also that it is just and equitable
for an order
of restitution of the rights in land to be granted. In the
circumstances the appeal falls to be dismissed.
[508] For these reasons,
the following order is made:
The appeal is dismissed
with costs, including the costs of two counsel.
________________
R Pillay
Judge
of Appeal
_______________
N Dambuza
Judge
of Appeal
APPEARANCES
For
Appellants:
M G Roberts SC (with him C G van der Walt)
Instructed
by:
Messrs
Cox & Partners, Vryheid
Symington
& De Kok, Bloemfontein
For
First Respondent:
V
S Notshe SC (with him M Kgatla)
Instructed
by:
Malusi
& Co Attorneys, Berea
Maduba
Attorneys, Bloemfontein
For
Second to Ninth Respondent:
J Krige (with him B Joseph)
The
State Attorney, Mthatha
The
State Attorney, Bloemfontein
[1]
The
Oxford English Dictionary
2 ed (1989) at 568.
[2]
Ibid.
[3]
Professor Legassick, sadly, died in March 2016.
[4]
Salem
Community v Government of the Republic of South Africa & others
(Regional Land Claims Commission, Eastern Cape as referring
party)
[2015] 2 All SA 58
(LCC) paras 114 and 148.
[5]
T R H Davenport and Christopher Saunders
South
Africa: A Modern History
5 ed (2000) at p 36.
[6]
J B Peires
The
House of Phalo: A History of the Xhosa People in the Days of their
Independence
(1982)
at 59-65; Area depicted in map showing the shifting frontiers
1779-1848, reproduced in R Lubke & I de Moor (ed)
Field
Guide to the Eastern & Southern Cape Coasts
(1998)
at 80.
[7]
J B Peires
The
House of Phalo
(1982) at 58.
[8]
Jan C Visagie
Bevolkingsgroepe
en Aansprake op Grond in die Suurveld
(2012) at 8, citing G M Theal (ed)
Records
of the Cape Colony Vol II
(1897) at 393, which contains an entry in a journal by Bresler dated
18/2/1799..
[9]
See eg J B Peires
The
House of Phalo
(1982)
at 56-58.
[10]
Ibid.
[11]
H Giliomee
Supplementary
Expert Report.
[12]
Ben Maclennan
A
Proper Degree of Terror: John Graham and the Cape’s Eastern
Frontier
(1986)
at 46-47.
[13]
A E Makin
The
1820 Settlers of Salem (Hezekia Sephton’s Party)
(1971)
at 34-35.
[14]
Hermann Giliomee ‘The Eastern Frontier, 1770-1812’ in
Richard Elphick and Hermann Giliomee (eds)
The
Shaping of South African Society 1652-1840
(1989)
at 422-423.
[15]
J S Bergh and J C Visagie
The
Eastern Cape Frontier Zone 1660-1980: A cartographic guide for
historical research
(1985) at 10-11.
[16]
Richtersveld
Community & others v Alexkor Ltd & another
[2003]
ZASCA 14
;
2003 (6) SA 104
(SCA) para 49. The principle underlying
the SCA’s finding in this regard was confirmed by the
Constitutional Court in
Alexkor
Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) para 69.
[17]
B Maclennan
A
Proper Degree of Terror
(1986) at 639.
[18]
R Lubke & I de Moor (ed)
Field
Guide to the Eastern & Southern Cape Coasts
(1998)
at 434.
[19]
J B Peires
The
House of Phalo
(1982) at 57.
[20]
H Giliomee’s
Supplementary
Expert Report
.
[21]
R Lubke & I de Moor (ed)
Field
Guide to the Eastern & Southern Cape Coasts
(1998)
at 435.
[22]
J B Peires
The
House of Phalo
(1982) at 65.
[23]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) para 70.
[24]
Noël Mostert
Frontiers
– The Epic of South Africa’s Creation and the Tragedy of
the Xhosa People
(1993)
at 389-390.
[25]
Ibid at 449- 450.
[26]
Ibid at 467-507.
[27]
J C Visagie
Bevolkingsgroepe
en Aansprake op Grond in die Suurveld
(2012) at 14, citing G M Theal (ed)
Records
of the Cape Colony XII (Intelligence from the Camp of Gwangwa),
which
contains a detailed record dated 15/10/1819 of the meeting between
Somerset and Ngqika, at 342-345.
[28]
Ibid at 15-16.
[29]
See the inserted map showing the original location of the settler
parties of the Albany Settlement, 1820,
reproduced
in R Lubke & I de Moor (ed)
Field
Guide to the Eastern & Southern Cape Coasts
(1998)
at 436. The Sephton Party is at number 43 on the key, and Salem is
the settlement located roughly in the centre of the
map.
[30]
A Makin
The
1820 Settlers of Salem
(1971)
at 43.
[31]
N Mostert
Frontiers
(1992)
at 663-673.
[32]
Ibid at 676-779.
[33]
Ibid at 778.
[34]
N Mostert
Frontiers
(1992) at 399.
[35]
See eg A E Makin
The
1820 Settlers of Salem
(1971)
at 62-63.
[36]
N Mostert
Frontiers
(1992) at 1249-1250. The LCC mistakenly believed that there were ten
wars (see
Salem
Community (LCC)
para 137).
[37]
Ibid at 1254; South African History Online
Frontier
or Xhosa Wars 1779-1879: Colonisation and Land Supremacy
,
available at:
http://v1.sahistory.org.za/pages/governence-projects/frontier_wars/frontier_wars.htm
(accessed 7 June 2016)
.
[38]
See M Legassick’s
Expert
Report
and the authorities therein cited.
[39]
See H Giliomee’s
Supplementary
Expert Report
and the authority therein cited.
[40]
See H Giliomee’s
Supplementary
Expert Report,
citing C Bundy
The
Emergence and Decline of the South African Peasantry
(1979)
at 134.
[41]
Fiona Vernal
The
Farmerfield Mission – A Christian Community in South Africa,
1838-2008
(2012)
at 198.
[42]
Section 15 of the Private Locations Act 32 of 1909.
[43]
Ibid.
[44]
See the
Memorandum
on Private Locations Act 32 of 1909 (Cape) and Regulations
thereunder
.
[45]
Ibid.
[46]
Regulations
Touching Kaffir Beer & Knobkerries under Act 12 of 1893.
[47]
Ibid reg 23.
[48]
Ibid reg 25.
[49]
Ibid reg 32.
[50]
Location, Knobkerry, Kafir Beer and Curfew Regulations, adopted 13
June 1917 under Acts 23 of 1897 and 12 of 1893 and 30 of 1895.
In
1919, these regulations were repealed and replaced by new
regulations covering the same subject matter. The differences
between the two sets are not material to this judgment.
[51]
Ibid reg 2.
[52]
Ibid reg 3.
[53]
Ibid.
[54]
Ibid reg 7.
[55]
Ibid reg 19.
[56]
Ibid reg 24.
[57]
Ibid reg 29.
[58]
Ibid reg 30.
[59]
Ibid reg 31.
[60]
J M Pienaar
Land
Reform
(2014)
at 95.
[61]
Section 49 provided as follows:
‘
As to the
disposing, enclosing, etc., of village lands.
49. When the Board shall
at any meeting duly convened for that purpose, resolve that it is
expedient to dispose of or alienate
or permit to be built upon,
enclosed, or cultivated, any lands, whether common pasture lands or
not, which shall be vested in
the said Board, or which, not being
Crown land, are under the control of the board it shall be lawful
for the Board to apply,
in writing, for the consent of the
Administrator to the proposed sale, lease or other arrangement for
the occupation or enclosure
of any part or portion of such lands,
and upon obtaining such consent, but not otherwise, to execute or
carry into effect such
sale, lease or other arrangement:
provided
that no lands the ownership of which is not vested in the Board
shall be dealt with under this section except with the
consent of
the owner thereof
.’ (emphasis added)
[62]
Ex
parte Bradfield & Three Others
(EDL)
unreported case (18 May 1928).
[63]
Ex
Parte Gardiner: In re Salem Commonage
(EDL)
unreported case (29 February 1940).
[64]
Ibid at 1.
[65]
Ibid at 3.
[66]
Ibid at 4.
[67]
Ibid at 6.
[68]
See eg H Giliomee’s
Expert
Report
.
[69]
H Giliomee’s
Supplementary
Expert Report
,
citing C Bundy
The
Rise and Fall of the South African Peasantry
(1979)
at 78.
[70]
H Giliomee’s
Supplementary
Expert Report
.
[71]
Florence
v Government of
the
Republic of South Africa
[2014]
ZACC 22
;
2014 (6) SA 456
(CC) paras 111-117.
[72]
Ibid para 12.
[73]
Phillips
v Minister of Rural Development
and
Land Reform & another
[2014]
4 All SA 100
(LCC) paras 31-32.
[74]
Farjas
(
Pty
)
Ltd &
another v Regional Land Claims Commissioner
,
KwaZulu-Natal
1998
(2) SA 900
(LCC) para 41.
[75]
Gamevest
(
Pty
)
Ltd
v
Regional Land Claims Commissioner
,
Northern
Province and Mpumalanga &
others
[2002] ZASCA 117
;
2003 (1) SA 373
(SCA) paras 28–29.
[76]
Mahlangu
NO v Minister of Land Affairs & others
[2004] ZASCA 74
;
2005 (1) SA 451
(SCA) para 13.
[77]
See s 2(1)
(d)
,
s 2(1)
(e)
and s 2(2) of the Act.
[78]
As described in
Salem
Community (LCC)
para 135.
[79]
Stellenbosch
Farmers’ Winery Group & another v Martell et Cie &
others
[2002] ZASCA 98
;
2003 (1) SA 11
(SCA) para 5.
[80]
Frederick Schauer
Thinking
like A Lawyer: A New Introduction to Legal Reasoning
(1999)
at 210.
[81]
Marvel
Characters, Inc. v. Kirby
726 F.3d 119
(2d Cir. 2013) at 16-17.
[82]
Menday
v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 569B-C.
[83]
John A Neuenschwander ‘Historians as Expert Witnesses: The
View from the Bench’ 30(3)
Organization
of American Historians
Newsletter
(Aug 2002), available at:
https://archives.iupui.edu/handle/2450/6017
(accessed 11 June 2016).
[84]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) paras 53 and 57.
[85]
Section 1 of the Act.
[86]
Richtersveld
Community & others v Alexkor Ltd & another
[2003]
ZASCA 14
;
2003 (6) SA 104
(SCA) para 23.
[87]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) paras 52 and 54.
[88]
Richtersveld
Community & others v Alexkor Ltd & another
[2003]
ZASCA 14; 2003 (6) SA 104 (SCA).
[89]
Ibid para 40.
[90]
Mabo &
others v The State of Queensland (No 2)
(1992) 175 CLR 1
(HCA) para 69.
[91]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) para 70.
[92]
Salem
Community (LCC)
para 141.
[93]
N Mostert
Frontiers
(1992).
[94]
Ex
Parte Gardiner: In re Salem Commonage
(EDL)
unreported case (29 February 1940).
[95]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) para 70.
[96]
Salem
Community (LCC)
para 118.
[97]
Ibid para 135.
[98]
Department
of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12; 2007 (6) SA 199 (CC).
[99]
See generally J M Pienaar
Land
Reform
(2014)
at 546.
[100]
Salem
Community (LCC)
para
124.
[101]
The LCC mentions Dayile briefly in paras 16 and 71, but appears not
to consider his existence or lack thereof relevant to the
outcome of
the claim.
[102]
Salem
Community (LCC)
para 129.
[103]
Ibid para 132.
[104]
Department
of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
;
2007 (6) SA 199
(CC) paras 45-47.
[105]
Salem
Community (LCC)
para 147.
[106]
Ibid para 161.
[107]
Ibid para 123.
[108]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC) para 45.
[109]
Ibid para 101.
[110]
Salem
Community (LCC)
para 123.
[111]
J M Pienaar
Land
Reform
(2014)
at 549.
[112]
Department
of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
;
2007 (6) SA 199
(CC) para 69.
[113]
Salem
Community (LCC)
para 123.
[114]
Salem
Community (LCC)
para 155.
[115]
Ibid para 154.
[116]
Fischer
& another v Ramahlele & others
[2014]
ZASCA 88
;
2014 (4) SA 614
(SCA) para 13.
[117]
See reference in the definition to ‘community’ in s 1 of
the Restitution of Land Rights Act 22 of 1994 (the Act),
as ‘any
group of persons whose rights in land are derived from shared rules
determining access to land held in common by
such group’.
[118]
It is necessary to make this point since the distinction was an
important cog in implementing the discriminatory systems, informally
and formally, by which African people were treated for the benefit
of white people. M K Roberts ‘Black land tenure: Disabilities
and some rights’ in A J Rycroft et al (eds)
Race
and the law in South Africa
(1987) 119-138 at 119. See also Jacob Dlamini ‘The land and
its languages: Edward Tsewu and the pre-history of the 1913
Land
Act’ in Ben Cousins & Cherryl Walker
Land
divided, land restored: Land reform in South Africa for the 21
st
Century
(2015) 40-55.
[119]
With the advent of colonialization in South Africa, a legislative
process was started which eventually restricted 80 per cent
of the
South African population to ownership (or quasi ownership) of 13 per
cent of the country’s land. See Hanri Mostert
‘Land
restitution, social justice and development in South Africa ‘
(2002)
SALJ
400
at
401.
[120]
Juanita Pienaar & Jason Brickhill ‘Land’ in Stuart
Woolman & Michael Bishop
Constitutional
law of South Africa
2 ed (Revision Service 6, 2014) 48-1 – 48-68 at 48-1, quoting
Sol T Plaatje
Native
Life in South Africa
(first published in 1916, republished in 1982), which work was a
foremost response to the Native Land Act that provides an account
of
the origins of the legislation and its devastating immediate impacts
for Blacks in South Africa.
[121]
The Interim Constitution of the Republic of South Africa (Act 200 of
1993) contained positive rights for the restitution of land
rights
in ss 28 and 121 to 123, from which flowed the
Restitution of Land
Rights Act 22 of 1994
, which was enacted shortly after the
transition to democracy, and has remained in force, although subject
to several amendments,
under the final Constitution, 1996. The
drafters of the final Constitution, 1996 also inserted s 25(7) and
(8) to place beyond
doubt, a positive land reform restitutionary
justice provision within the Bill of Rights. See a brief drafting
history of the
property by Pienaar & Brickhill
Constitutional
law of South Africa
at 48-3. For the historical background to the property clause in the
Interim Constitution see A Eisenberg ‘Land’
in M
Chaskalson et al (eds)
Constitutional
Law of South Africa
1 ed (Revision Service 3, 1998) 40-1 – 40-5.
[122]
For a history and analysis of the Act see Pienaar
Land
reform
533-658; Miller & Pope
Land
title in South Africa
313-397; and Jaichand
Restitution
of land rights
53-76.
[123]
In
Department
of Land Affairs & others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC) Moseneke DCJ said: ‘[32] . . .
[R]estitution of land rights and land reform are constitutional
issues. They sit in
the heartland of the protective, restitutionary
and land reform design of s 25 of the Constitution.’ He went
on in para
[53]: ‘It is by now trite that not only the
empowering provision of the Constitution but also of the Restitution
Act must
be understood purposively because it is remedial
legislation umbilically linked to the Constitution.’
[124]
Section
22(1)
(cA)
of
the Act. See also ss 25(4), (6) and (7) of the Constitution.
[125]
See s 2(1) of the Act setting out the requirements for a claim, as
interpreted with authority in
Alexkor
Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004
(5) SA 460
(CC) (‘
Alexkor
’)
para 6. And although in the different context of evictions, the
injustices of dispossession were concisely captured by
Sachs J in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) (‘
PE
Municipality
’)
paras 9-10.
[126]
See s 25(7) of the Constitution, which refers to ‘equitable
redress’. See also Mark Euijen and Clive Plasket
‘Constitutional
protection of property and land reform’
(2003)
Annual
Survey
430 at 441: ‘[T]he entire purpose [of the Act] is to turn back
the clock and rewrite history along more equitable lines.’
[127]
Moseneke DCJ in
KwaLindile
Community v King Sabata Dalindyebo Municipality
[2013] ZACC 6
;
2013 (6) SA 193
(CC) (‘
KwaLindlile
’)
para 33, described a claim for restoration of dispossessed rights in
land as a ‘pre-eminent constitutional issue’
and as
‘a vital part of the constitutional quest to heal divisions
and exclusions of the past’. See also
Alexkor
para
98. And see also Pienaar & Brickhill
Constitutional
law of South Africa
at 48-54, where factors which are taken into consideration by the
LCC including ‘justice and fairness’ are noted;
and 48-5
– 48-8, where it is noted that when interpreting land reform
legislation, the founding values of the Constitution
are likely to
have a ‘tilt’ effect which gives greater weight to the
rights and interests of the vulnerable and landless.
Further see G
Budlender ‘The Constitutional Protection of Property Rights’
in G Budlender, J Latsky & T Roux
Juta’s
New Land Law
(1998) at 1-69; Murphy
Confronting
past injustices
at 116, in whose analysis says that the LCC ‘ideally should be
a court of equity’.
[128]
See, as prefaced, in:
Land
Access Movement of South Africa & others v Chairperson, National
Council of Provinces & others
[2016] ZACC 22
;
2016 (5) SA 635
(CC) para 1;
KwaLindlile
para 39; and
Alexkor
paras
34-41.
[129]
Subsection 2(1)
(e)
of the
Act has since been substituted by s 1 of the Restitution of Land
Rights Amendment Act 15 of 2014 , which sought to change
the time
for lodging claims to 30 June 2019. This Act has been declared
unconstitutional in the matter of
Land
Access Movement of South Africa & others v Chairperson of the
National Council of Provinces & others
[2016] ZACC 22
;
2016 (5) SA 635
(CC).
[130]
Alexkor
para 6.
[131]
See long title and s 2 of the Act. See also
Alexkor
paras 37-41.
[132]
Section 6 of the Act.
[133]
Visser & Roux
Confronting
past injustices
at 96.
[134]
Ibid
.
[135]
Section 6(1)
(b)-(eA)
of the
Act. See also
rules 5
and
6
of the
Restitution of Land Rights Act,
1994
: Rules regarding procedure of Commission, GN R703,
GG
16407, 12 May 1995. See also
Transvaal
Agricultural Union v Minister of Land Affairs & another
[1996] ZACC 22
;
1997 (2) SA 621
(CC) para 15.
[136]
Section 22.
Farjas
(Pty) Ltd v Minister of Agriculture and Land Affairs
2013
(3) SA 263
(SCA) paras 7 and 8;
Concerned
Land Claimants Organisation of Port Elizabeth v Port Elizabeth Land
and Community Restoration Association & others
[2006] ZACC 14
;
2007 (2) SA 531
(CC) para 19 – which postulate
that we ought to defer to the specialist jurisprudence of the Land
Claims Court as opposed
to superimposing the traditional
interpretation and evidence rules we ordinarily apply.
[137]
‘[E]xercising power in a forum “where the conflicting
values as embodied in the constitutional property clauses take
on
concrete form.”’
Florence
v Government of the Republic of South Africa
[2014] ZACC 22
;
2014 (6) SA 456
(CC) para 25. The Constitutional
Court has held that it would be slow to hear appeals from specialist
courts unless important
issues of principle are raised. See
National
Education Health and Allied Workers Union v University of Cape Town
& others
2003
(3) SA 1
(CC) paras 30-31.
[138]
Section 15 of the Act. See
Macleantown
Residents Association: Re Certain erven and commonage in Macleantown
1996 (4) SA 1272
(LCC) at 1282. For the purposes of the
certification process, see Visser & Roux
Confronting
past injustices
at 96-97.
[139]
Section 33
(a),
(b), (c),
and
(d)
of the Act.
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
;
2007 (6) SA 199
(CC) para 53. This approach has been
endorsed in subsequent decisions of the Constitutional Court, for
example
Bakgatla-Ba-Kgafela
Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority
& others
[2015]
ZACC 25
;
2015 (6) SA 32
(CC) para 35; and
Minister
of Mineral Resources & others v Sishen Iron Ore Company (Pty)
Ltd & another
[2013] ZACC 45
;
2014 (2) SA 603
(CC) para 47.
[140]
Section 28N. See also rules 9(2), 28, 38(5)
(b),
45(1)
(a)
,
and 49(1)
(b)
of the Land Claims Court,
Restitution of Land Rights Act, 1994
:
Land
Claims Court Rules, GN
R300,
GG
17804, 21 February 1997.
[141]
Section 30.
Section 30(1)
and (2)
(a)
of the Act. See also in this regard
Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
;
2007 (6) SA 199
(CC) para 57, where Moseneke DCJ alluded to
‘historical facts on State policy, practices and laws premised
on archival
materials’ as cogent and properly admissible; and
Ex
parte Former Highland Residents; In re: Ash & others v
Department of Land Affairs
[2000] 2 All SA 26
(LCC) para 15, where Gildenhuys J held that the
court would nevertheless insist on the best available evidence.
[142]
Executor
Estate late Phillips and others v Government of the Republic of
South Africa and another
[2003] 3 All SA 575 (C).
[143]
Sections 28N, 30 and 33 of the Act. In
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC), in relation to the PIE Act, the constitutional
said the following, which is equally applicable in this instance:
‘[36]
The court is thus called upon to go beyond its normal
functions and to engage in active judicial management according to
equitable
principles of an ongoing, stressful and law-governed
social process. This has major implications for the manner in which
it must
deal with the issues before it, how it should approach
questions of evidence, the procedures it may adopt, the way in which
it
exercises its powers and the orders it might make. The
Constitution and PIE require that, in addition to considering the
lawfulness
of the occupation, the court must have regard to the
interests and circumstances of the occupier and pay due regard to
broader
considerations of fairness and other constitutional values,
so as to produce a just and equitable result.’
[144]
Section 11 of the Act makes provision for the procedure after the
lodgement of a claim. It gives the Commissioner a discretion
to
dismiss a frivolous claim and sets out a comprehensive process to be
followed including publication in the
Gazette
where the claim has merit. Section 11A provides for the withdrawal
or amendment of the notice of claim following publication
of the
claim in the
Gazette
and representations made as result of that process from the relevant
stakeholders. And s 12 sets out the Commission’s powers
to
investigate the claim and importantly in subsec (3), it provides
that: ‘If a claimant is not able to provide all the
information necessary for the adequate submission or investigation
of a claim, the regional land claims commissioner concerned
shall
direct an officer contemplated in section 8 to take all reasonable
steps to have this information made available.’
The
legislative scheme provides for and accommodates substantial
amendments to claims given this elaborate investigative process,
thus freeing the land claims process from the strict rules for
pleadings.
[145]
For example Worden notes that: ‘The earliest histories of
South Africa were mainly concerned with its white inhabitants.
It is
true that writings by missionaries, administrators and American
intellectuals such as Sol Plaatje and Tiyo Soga in the
late
nineteenth and early twentieth centuries did pay attention to the
experience of American communities, but these did not
find their way
into the mainstream of historical scholarship . . . Afrikaners
nationalist writers tended instead to laud the
achievements of the
trekkers and their descendants, while English-speaking historians
placed emphasis on the role of the British
government and settlers.’
Nigel Worden
The
making of modern South Africa: Conquest, apartheid, democracy
5 ed (2012) at 2. See also Annie E Coombes (ed)
Rethinking
settler colonialism: History and memory in Australia, Canada,
Aotearo New Zealand and South Africa
(2006) 1-12. And further see Paul Ricoeur & Charles A Kelbley
History
and truth
(1965) 21-40; Aniruddha Chowdhury
Post-deconstructive
subjectivity and history: Phenomenology, critical theory and
postcolonial thought
(2014).
[146]
Paragraph 347.
[147]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) (Alexkor).
[148]
Richtersveld
Community & others v Alexkor Ltd & another
2003 (6) SA 104
(SCA) paras 34-50, particularly para 49 where Vivier
ADP for the unanimous court said: ‘In my view, it is clear
from the
Articles of Capitulation that when the British Crown
acquired sovereignty of the Cape Colony by conquest and cession in
1806
the indigenous land rights of the inhabitants were recognised
and respected.’
[149]
Paragraph 52.
[150]
Paragraph 60.
[151]
Gary D Meyers and John Mugambwa
The
Mabo Decision: Australian Aboriginal Land Rights in Transition
23 Envtl. L. 1203
(1993).
[152]
Jérémie Gilbert
Indigenous
Peoples’ land rights under International Law: From victims to
actors
2 ed (2016) at 1-57, especially at 32. See John Westlake KC
International
Law
,
Part 2: War (1907) at 42; L Oppenheim
International
Law: A Treaties
,
Vol 2: Disputes, war and neutrality 7 ed (1952) edited by H
Lauterpacht para 140; Malcom N Shaw QC
International
Law
7
ed (2014) at 361-362; John Dugard
International
Law: A South African perspective
4
ed (2011) at 132-133. See also
United
States v Percheman
32 US (1833) 51;
Certain
Questions Relating to Settlers of German Origin in the Territory
Ceded by Germany to Poland
,
1923 PCIJ (ser. B) No 6 (Sep 10).
[153]
Gilbert
Indigenous
Peoples’ Land Rights under International Law
at 32. See also
United
States v Percheman
32 US (1833) 51;
Certain
Questions Relating to Settlers of German Origin in the Territory
Ceded by Germany to Poland
,
1923 PCIJ (ser. B) No 6 (Sep 10). And also see Westlake
International
Law
at
42, noting the classic principle that: ‘Permission to enemy
subjects to remain in the country . . . must in common sense
carry
with it permission to enjoy their property while so remaining. And
if enemy subjects being in the country may enjoy their
property, it
would be inequitable to confiscate that of those who are not in it
and therefore as individuals cause no danger.’
And also
Oppenheim
International
Law
para 140, where the learned author notes that: ‘Immovable
private enemy property may under no circumstances or conditions
be
appropriated by an invading belligerent. Should he confiscate and
sell private land or buildings, the buyer would acquire
no right
whatever to the property.’ Further see L Benjamin Ederington
‘Property as a natural institution: The separation
of property
from sovereignty in International Law’ (1997) 13
American
University Law Review
263.
[154]
Ibid
at 32-33. See also Shaw
International
Law
at
361-362.
[155]
Paragraphs 387-390.
[156]
It would appear that the term ‘location’ was already in
use to describe ‘native’ settlement or places
where
indigenous people lived.
[157]
In terms of s 147 of the Union of South Africa Act 11 of 1909, which
provided the following:
‘
The control and
administration of native affairs and of matters specially or
differentially affecting Asiatics throughout the
Union shall vest in
the Governor-General in Council, who shall exercise all special
powers in regard to native administration
hitherto vested in the
Governors of the Colonies or exercised by them as supreme chiefs,
and any lands vested in the Governor
or Governor and Executive
Council of any colony for the purpose of reserves for native
locations shall vest in the Governor-General
in Council, who shall
exercise all special powers in relation to such reserves as may
hitherto have been exercisable by any such
Governor or Governor and
Executive Council, and no lands set aside for the occupation of
natives which cannot at the establishment
of the Union be alienated
except by an Art of the Colonial Legislature shall be alienated or
in any way diverted from the purposes
for which they are set apart
except under the authority of an Act of Parliament.’
[158]
The second commission had recommended that ‘the main
principles relating to locations on private property should be
applied
to natives on crown lands other than those duly set apart as
native reserves or locations, and that sanction for native
occupation
on such crown lands should not be given unless an
adequate rent is charged to the native’s occupier, based upon
the producing
value of the land’ (at 18 of report).
[159]
For example, when the board was requested to declare the houses on
the commonage to be part of the native location.
[160]
Paragraph 19 above.
[161]
P
A Linington
A
summary of the reports of certain pre-Union Commissions on Native
Affairs
(1924) 1-13 at 2. The Commission’s terms of reference had,
inter alia, been
:
‘To enquire into the Native Customs in the matter of land
tenure and to make such suggestions regarding to tenure of land
as
may seem best suited to carry out when practicable the policy of the
Cape Colony in the matter of individual tenure’
and ‘To
report on the advisability of introducing some system of local
self-government in Native Territories.’
[162]
Ibid
at 3.
[163]
The report refers to restrictions as a result of dense grass and
bush cover which restricted what Mr Gerber and the archaeologists
were immediately able to see in the study area.
[164]
They were not able to establish when exactly these huts were built
and were of the view that such an investigation would require
more
time.
[165]
This approach has been criticized as unduly narrow and restraining
the purpose of the Act. See in this regard Mark Euijen and
Clive
Plasket ‘Constitutional protection of property and land
reform’ (2003)
Annual
Survey
429-455 at 441 where they criticise this court’s endorsement
of the starting point of the court a quo in that case, namely
that
the title of the claimants to the land had to be judged solely with
reference to the 'conditions and rules in existence
at the time'
(para 62 in the judgment on appeal). Their view of this is that:
‘[I]it seems parsimonious in the extreme,
if not plainly
illogical, when applying a statute whose entire purpose is to turn
back the clock and rewrite history along more
equitable lines, to
import a narrow common-law view, itself not free from controversy,
into a statutory definition of “rights
in land” that
clearly attempts to broaden the vision of rights and interests in
land beyond those recognized by the common
law.’
[166]
Further details appear in the report of the archaeologists, Mr
Nondzube and Mr Ngqiyaza, about which more is said later in this
judgment.
[167]
Section 2 of the Act
[168]
See the definition of ‘Community’ under s 1 of the
Act.
[169]
Which does not form part of the claim.
[170]
In this case comprising of the AmaXhosa and the Khoi people.
[171]
(920/2010)
[2012] ZASCA 13
at para 18.
[172]
[1995]] ZASCA 30; 1995(3) SA 222 (A); See also
Corrplo
358 Close Corporation v Charters
(844/2011)
[2011] ZAECGHC 27 (1 July 2011).