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[2020] ZASCA 57
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Mazizini Community v Minister of Rural Development and Land Reform and Others (1310/2018) [2020] ZASCA 57; [2020] 3 All SA 318 (SCA) (2 June 2020)
Links to summary
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1310/2018
In
the matter between:
MAZIZINI
COMMUNITY APPELLANT
and
MINISTER
OF RURAL DEVELOPMENT
AND
LAND
REFORM FIRST
RESPONDENT
PRUDHOE
COMMUNITY SECOND
RESPONDENT
T
K
FANI THIRD
RESPONDENT
LAND
CLAIMS
COMMISSION FOURTH
RESPONDENT
Neutral
citation:
Mazizini Community v
Minister of Rural Development and Land Reform & others
(Case
no 1310/2018)
[2020] ZASCA 57
(02 June 2020)
Coram:
WALLIS, MBHA and DAMBUZA JJA and MOJAPELO and
EKSTEEN AJJA
Heard
:
11 March 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 12H00 on 2 June 2020
Summary:
Land restitution – meaning of
‘community’ as envisaged in
s 2(1)(d)
of the
Restitution
of Land Rights Act 22 of 1994
restated – no evidence of
previous occupation of claimed land by the appellant community –
appeal dismissed.
ORDER
On
appeal from:
The Land Claims Court –
Port Elizabeth, Randburg and Port Alfred (Barnes AJ, Meer AJP and
Professor Mqeke concurring, sitting
as court of first instance):
1 The appeal is
dismissed.
2 Annexure ‘G’
to the order of the Land Claims Court is altered to read as follows:
‘
1
The land falling within the full Prudhoe claimed area as identified
in Annexure “B” to the Judgment and handed in
at the
trial as Exhibit 3;
2 including, the
Fish River Sun Farms, namely:
2.1 Remainder Farm
242, in extent 147 6693 hectares;
2.2 Portion 2 of
Farm 235, in extent 10 5700 hectares;
2.3 Portion 23 of
Farm 235, in extent 11 6870 hectares;
2.4 Portion 24 of
Farm 235, in extent 12 4881 hectares;
2.5 Portion 25 of
Farm 235, in extent 1 6033 hectares;
2.6 Portion 26 of
Farm 235, in extent 6047 hectares;
2.7 Farm 243, in
extent 41 0035 hectares;
3 but excluding:
3.1 Portion 2 of
Farm 241, in extent 4 2203 hectares.
3.2 Portions 20 and
21 of Farm 261; and
3.3
the
land in respect of which the second
plaintiff has relinquished it claims for restoration, namely:
3.3.1 Portion 13 of
Farm 227;
3.3.2 Portion 14 of
Farm 227;
3.3.3 Portion 15 of
Farm 227;
3.3.4 Portion 16 of
Farm 227;
3.3.5 Portion 17 of
the Farm 227;
3.3.6 Portion 18 of
the Farm 227;
3.3.7 Portion 19 of
Farm 227;
3.3.8 Portion 33 of
Farm 227; and
3.3.9 Remainder of
Portion 1 of farm 227, in extent 11 2824 hectares (excluding
Portions of farm 227)’
4 Annexure ‘F’
to the order of the Land Claims Court is altered to read as follows:
‘
The
land falling in the full Prudhoe claimed area as identified on
Annexure “B” to the Judgement and handed in at the
trial
as Exhibit 4, including, the Fish River Sun Farms, namely:
4.1 Remainder Farm
242, in extent 141 6693 hectares;
4.2 Portion 2 of
Farm 235, in extent 10 5700 hectares;
4.3 Portion 23 of
Farm 235, in extent 11 6870 hectares;
4.4 Portion 24 of
Farm 235, in extent 12 4881 hectares;
4.5 Portion 25 of
Farm 235, in extent 1 6033 hectares;
4.6 Portion 26 of
Farm 235, in extent 6047 hectares; and
4.7 Farm 243 in
extent 41 0035 hectares
JUDGMENT
Dambuza JA and
Mojapelo AJA (Wallis and Mbha JJA and Eksteen AJA concurring)
Introduction
[1] This appeal is
against the judgment of the Land Claims Court (LCC, Barnes AJ, Meer
AJP and Professor Mqeke (assessor) concurring)
in terms of which
rights in certain land located between the Great Fish and Mgwalana
Rivers (the subject land), were awarded to
the second respondent, the
Prudhoe Community. The appellant, Mazizini Community (AmaZizi)
obtained leave to appeal from this Court,
albeit inadvertently, as
the answering affidavit of the Prudhoe Community had not been brought
to the attention of the judges due
to an error on the part of the
registrar. We shall return to this aspect later when we set out the
long and tortuous history of
the matter.
Historical
Background
[2]
The chiefdom of the AmaGqunukhwebe, which was part of the AmaXhosa
Nation,
[1]
was established by
King Tshiwo before 1700 AD. Before the Fourth Frontier War
[2]
of 1811 to 1812 the land of this chiefdom stretched along the south
eastern coast of the Eastern Cape from the Keiskama River as
far west
as the Swartkops River. During the Fourth Frontier War AmaGqunukhwebe
lost their land to the west of the Fish River, retaining
only the
land on the east of that river, up to the Keiskama River, which
includes the subject land. With the Fifth Frontier War
[3]
AmaGqunukhwebe were pushed further East to the Keiskama River. They
however returned to their former territory as a result of
intervention by a missionary, Reverend William Shaw, who negotiated
with the colonial authorities and secured for them the return
of the
land that they had previously occupied. Apart from this re-settlement
by AmaGqunukhwebe, this area (between the Fish and
Keiskama Rivers)
was left unoccupied and was designated a buffer zone between the
British Settlers and the AmaXhosa. It became
known as the ‘Ceded
Territory’.
[3] ‘AmaMfengu’
(or ‘Fingoes’ as the British called them) is an umbrella
term for various independent chieftainships
of which AmaZizi is one.
Following the Sixth Frontier War of 1835, AmaMfengu arrived in the
Peddie District from Butterworth, east
of the Kei River, and joined
the British forces in fighting against the AmaXhosa. They were
settled in the buffer zone within the
Peddie District, as they were
considered friendly to the British.
[4] During that
period (the 1830’s) Lt.-Gov Andries Stockenström
implemented a system of formal treaties as a means of
guarding the
colonial borders. Relevant for our purpose were the 1836 Stockenström
Treaties concluded between the British
Government, through Lt-Gov
Stockenström, and various African indigenous chiefs, including
AmaGqunukhwebe, on 5 December 1836.
The 1836 Treaties recognised the
Fish River as the international boundary between the Cape Colony and
the various Xhosa territories.
[See PDF for
images]
[5]
The 1836 Stockenström Treaty granted the AmaGqunukhwebe the land
on which they had long settled, on the east coast, between
the Fish
and Mgwalana Rivers. AmaMfengu were allocated the land inland of the
AmaGqunukhwebe territory as shown in the contemporaneous
map
below.
[4]
Within the
AmaGqunukhwebe Territory, specific areas were assigned to Chief
Phatho of AmaGqunukhwebe and his younger brothers Chiefs
Kama and
Kobe. In 1843, Chief Kama converted to Christianity. This led to
tensions between him and his older brother, Chief Patho.
As a result,
Chief Kama moved inland to Hewu (Whittlesea). However, many of his
subjects remained behind, on a portion of his land,
under the
leadership of Chief Phatho.
[6]
Following Chief Kama’s departure, Chief Phatho claimed the land
vacated by his brother. However, Lt.-Governor Hare did
not honour
this claim. Instead he allowed the British resident agent, Theophilus
Shepstone, to mark off a boundary extending the
area of the AmaZizi
into a portion of the land that had been under Chief Kama’s
rule (the area covered by the Newtondale
mission).
[1]
This was done on the basis that Chief Kama had relinquished the land
to the colonial government. Shepstone then facilitated settlement
of
AmaZizi on part of Chief Kama’s land, inland away from the
coast. This allocation was described on a map of the Eastern
Cape
Frontier area from 1847 to 1850 as the ‘Territory more recently
occupied by Mfengu’. It did not extend into the
territory where
the remainder of Chief Kama’s people had stayed. The rest of
Chief Kama’s land remained in the hands
of those of the
AmaGqunukhwebe who had not followed their leader.
[7] In 1845 Governor
Maitland replaced the 1836 Treaties with new treaties granting the
respective communities the same areas occupied
by them under the 1836
Treaties. The terms of the 1845 Treaty were identical to that of
1836, essentially allocating specific areas
of land to the different
African communities. The relevant part of the treaty provided that:
‘
The
said Governor doth hereby, in the name of her said Majesty, grant and
confirm unto the said chiefs and their tribe[s], that
part of the
territory called the ceded territory which, since the making of the
treaty of 5
th
of
December, 1836, they have held and occupied – which territory
shall be held by the said chiefs and tribe[s], their heirs
and
successors, in perpetuity, never to be reclaimed on behalf of her
said Majesty, except in the case of hostility committed,
or a war
provoked by the said chiefs or tribe, in case of a breach of this
treaty or any part thereof.’
The land granted to
AmaZizi came to be described by the three tribal authority portions,
which constituted the total area, namely
the Dabi, Msuthu and
Njokweni Tribal Authorities, in line with the names of the chiefs who
held authority in the respective portions.
[8] Meanwhile, Chief
Phatho had been so aggrieved by the colonial government’s
takeover of Chief Kama’s land that, at
the outbreak of the
Seventh Frontier War (War of the Axe) in 1847, where the British
forces were commanded by Sir Harry Smith who
had succeeded Governor
Maitland, AmaGqunukhwebe went into alliance with other groups of the
AmaXhosa who fought against the settlers.
On the other hand, AmaZizi
fought on the side of the British, having been promised more land.
AmaGqunukhwebe were defeated in the
1847 war and they lost their
political power. They were eventually driven beyond the Keiskama
River. In addition, in line with
the change of policy on the part of
the colonial government, Sir Harry Smith signed a proclamation on 17
December 1847, which abrogated
and annulled wholly ‘all
Treaties and Conventions formerly subsisting between her Majesty the
Queen and the [AmaXhosa Chiefs]
….’, effectively
annulling the Maitland Treaties of 1845 and re-integrating the land
previously granted to the Africans
into British colonial territory.
He also sold off all the African lands previously occupied by the
AmaGqununkhwebe to white farmers,
including land that had been
promised to AmaZizi.
[9]
Having been defeated and driven beyond the Keiskama River in 1847
AmaGqunukhwebe were dealt a further blow in 1858 with the
Nongqawuse
cattle killing debacle.
[6]
They
lost their remaining land and Chief Patho was imprisoned at Robben
Island. The historic chiefdom was destroyed and divorced
from its
indigenous territory until 1975 when it was resurrected east of the
Keiskama River by the Ciskei homeland government.
[10]
Although the chiefdom of AmaGqunukhwebe had been destroyed and its
people expelled from their territory, Chief Kama’s
people
continued to occupy their indigenous lands under the white
landowners. They were familiar with the land and conditions along
the
coast and opted not to emigrate. According to Professor Peires, these
remnants of Chief Kama’s people continued as best
as they could
to occupy their indigenous lands, but their right to do so was never
legally recognised. Ownership rights passed
to the white landowners.
They lost their political status as a chiefdom and began to identify
as a rural community, the Prudhoe
Community, living under the
authority of settler colonialism. Some became labour tenants under
the white farmers, but many pretended
to be labour tenants when in
fact they rented the farms from the white farmers and farmed for
their own benefit. Others were sharecroppers
(also known as
half-sowers or part lessees). Although subjected to colonial rule,
they continued to live on this land, under tribal
leadership of four
headmen
[7]
who performed certain
administrative functions such as settling disputes and acting as
intermediaries with landowners and government
officials. The
indigenous leadership role was hereditary, passing from father to
son, until the 1990’s when the community
was moved to the
Prudhoe Village. Although the Colonial Government attempted to
restrict black farming by enacting various laws,
[8]
it did not quite succeed. The archival records reveal that a good
number of white landowners (at least 110) who leased land to
black
tenants failed to register their private locations.
The land claim
and litigation history.
[11]
During February 2008 the Regional Land Claims Commission (RLCC)
referred to the LCC a land claim in which the AmaZizi claimed
restitution of its rights in 27 896 hectares of land comprising 85
farms located in the area between the Fish and Mpekweni Rivers
up to
Gqutywa River (inland) in the Eastern Cape Province. Essentially, the
claimed land covered the area on which AmaZizi had
been settled
within the ceded territory during the 1830’s and 1840’s,
including the portion of land that used to be
Chief’s Kama’s
territory, and the land formerly granted to AmaGqunukhwebe, including
the portion of Chief Kama’s
land on which Chief Kama’s
people had remained.
[9]
[12] The claim of
the AmaZizi was an amalgamation of three different claims lodged as
follows: (a) the Matiwane claim was lodged
on 20 December 1998; (b)
the claim lodged by Phumzile Magilidane on 19 December 1998 on behalf
of Ntloko community; and (c) the
claim lodged on 20 December 1998 by
Fukweni Zolile on behalf of AmaZizi. The process of amalgamation did
not happen at once and
made its fair contribution to the delay in the
finalisation of the claims. In the referral by the RLCC the claimed
land was described
as follows:
‘
From
Heaton Farm, passing Pato’s Kop, Ntabakaluzi, over the Fish
River, the Mbokothwana Land, some given to Mgababa people
by previous
government, the farms from Patoskop up to [M]Gwalana River where
Mphekweni Sun and Fish River are situated, the then
Ulimocor area up
to Singeni area including Prudhoe area.’
As is evident from
this description two hotels, Mphekweni Sun and the Fish River Sun
Hotels, then owned by Emfuleni Resorts, were
located within the land
claimed by AmaZizi.
[13] The following
was recorded in the referral to the LCC:
‘
The
claimants are part of the group of people referred to as AmaMfengu
who were resettled in the Peddie area by the Cape Colonial
Government
from the Transkei Territories during and after the 1835 Frontier War.
The claim is for the rights lost by Chief Njokweni
and his people in
the area that was under the leadership of Chief Njokweni…
…
The
dispossession was made in terms of the furtherance of the objects of
a ‘
racially
discriminatory practice’
by
fulfilling the policy of a ‘
betterment
planning
’
in
the Ciskei homeland.’
According to that
referral the dispossession occurred from 1979 to 1982 and the
claimants never received just and equitable compensation
at the time
of dispossession.
[14] A portion of
the land claimed by AmaZizi was, at the time of lodgment, the subject
of a land claim by the Prudhoe Community.
The Prudhoe claim had also
been lodged timeously with the RLCC on 10 December 1998 in terms of
the
Restitution of Land Rights Act 22
of 1994 (Restitution Act). The
land in relation to which these competing claims were lodged, is the
territory which had been granted
to AmaGqunukhwebe during the 1830’s
and 1840’s. In Prudhoe’s claim it was described as
comprising 26 parent farms,
spread over 10 540 ha as surveyed at the
time of the original grant. This portion of land lies between the
Fish River and Mgwalana
River in the Peddie district of the Eastern
Cape. At the time of lodgement of the claim the majority of members
of the Prudhoe
Community resided in the Prudhoe village which was
situated on the Prudhoe Farm 203. Most of the land was state land,
the farms
having been expropriated from white owners during the 1970s
for consolidation into the former homeland of Ciskei.
Investigation and
referral of the claims by the LCC
[15] The competing
claims have a long and unfortunate history characterised by apparent
neglect, bias and/or incompetence on the
part of the RLCC. There were
also indications of favouritism towards AmaZizi by the RLCC. The
delay resulted in the claims taking
approximately 20 years from
lodgement to reach the LCC and to be finalised by that court.
[16]
The fact that there were competing claims over the subject land must
have been known to the Land Claims Commissioner from as
far back as
1998 when the claims were lodged. However, in February 2008 the RLCC
referred only the AmaZizi land claim to the LCC
in respect of the Sun
farms. This resulted in a trial during 2008 in the LCC (before Bam
JP) without joining Prudhoe as a party,
and without the RLCC
informing the court of its competing claim. On 12 March 2010 the LCC
(Bam JP) ordered restoration of the Sun
farms, including the Fish
River Sun resort, to AmaZizi. As things turned out that trial was a
waste of time and precious resources.
[10]
[17] When Emfuleni
Resorts appealed against the award of the Sun farms to AmaZizi the
Prudhoe Community successfully applied to
this Court to have the
restoration award rescinded. This Court remitted the case to the LCC
for rehearing and criticised RLCC for
processing the claim of
AmaZizi, ignoring the respondent’s claim for 12 to 13 years.
The conduct of the RLCC was described
as an ‘opportunistic and
futile attempt to cover-up for the dereliction of duty by the
officials concerned’.
[18] Even when it
eventually referred both claims to the court, the RLCC purported to
adjudicate Prudhoe’s claim by dismissing
Purdhoe’s
community claim and referring it only as claims of individuals who
were ‘ex-farm workers’ on the subject
land. Several other
dilatory steps were taken by the RLCC and AmaZizi, including
frivolous points
in limine
, which were rejected by the LCC,
and applications for leave to appeal to this Court and the
Constitutional Court, which were all
predictably dismissed. The trial
eventually resumed on 24 April 2017 but was further delayed by the
failure of the RLCC to notify
some of the interested parties of the
date of resumption of the trial. After several further hiccups, the
trial was finalised and
judgment of the LCC was handed down on 11
April 2018.
[19] In its judgment
the LCC found that AmaZizi were a community as envisaged in the
Restitution Act and had established rights
in the tribal authority
land together with the Heaton Farm (described with more particularity
in annexure E to the judgment of
the LCC), of which it was
dispossessed. The LCC, however found that AmaZizi had not proved any
rights in the subject land and that
it was the Prudhoe Community that
was dispossessed of rights in that land (as described in annexure F
to the judgment of the LCC).
[20] On 3 ugust 2018
the LCC refused AmaZizi leave to appeal against its judgment on 3
August 2018. On 5 September 2018 the appellant
applied to this Court
for leave to appeal, citing only three parties and omitting several
interested parties. Although Prudhoe
sought to oppose the application
for leave to appeal and had prepared an answering affidavit, that
affidavit was not filed with
the registrar of this Court as the
registrar had directed that the application be withdrawn and a new
one filed citing all the
interested parties.
[21]
The application was never withdrawn despite the directions of the
registrar. Instead, on 29 October 2018 the attorneys for
Prudhoe
learned by chance that leave to appeal had been granted on 24 October
2018 to AmaZizi, without it ever filing a fresh application
in
accordance with the directions of the registrar. Leave to appeal was
therefore granted, clearly in error, without this Court
having
received and considered the Prudhoe answering affidavit. Despite
being aware of the error, AmaZizi did not cooperate in
having the
order rescinded. The registrar of this court then advised the
attorneys for Prudhoe that there was no statutory provision
for
rescission of an order granting leave to appeal, but only a
reconsideration in terms of s 17(2)
(f)
of the Superior Courts Act. It was then decided,
for the sake of expedience, rather to allow the appeal to proceed.
[22]
In its pleadings, Prudhoe asserted that it was a community that
traced its roots back to AmaGqunukhwebe under Chief Kama,
under whom they exercised their indigenous land
rights, communally, in accordance with shared rules regulating the
allocation and
use of the subject land for their homesteads, grazing
and cultivation. They maintained that after the land fell into white
hands,
during the period starting from 1847 until the 1970s they
continued to function as a community on that land and to exercise
their
rights in the land in accordance with their indigenous rules,
‘to the reduced extent compatible with the extent of the
assertion
of ownership rights by the white farmers, which varied from
farm to farm’. After the departure of the white farmers the
community
regained freedom to exercise their communal rights in the
subject land as they had done previously.
[23] In addition to
tracing their lineage as descendants of Chief Kama’s subjects
and insisting that they were a community,
the Prudhoe Community
maintained that AmaZizi had led no evidence before the LCC to support
a valid land claim in respect of the
subject land. There was not a
single member of the appellant’s community who was shown to
have lived on the subject land
before and after 1913. It was also
submitted on their behalf that just as it happened with other
indigenous communities that had
been granted land under the 1845
Treaty, the annulment of previous land grants in terms of the 1847
Proclamation abrogated all
rights the AmaZizi had held in the ceded
territory. Further, the archival documentation on which the appellant
relied predated
the 1913 Act and did not, in any event, prove
entitlement to the relief sought by AmaZizi.
[24] Both
communities pleaded that they never received any compensation for
dispossession of their rights. As already noted, in
relation to the
Prudhoe claim the Commissioner stated, amongst other things, that:
‘
.
. . the Commissioner has determined that the claim by [the Prudhoe
Community] does not constitute a community claim within the
meaning
and contemplation of the Act, but different claims by the persons all
of whom are ex farm workers and whose names are set
out in the first
column to the table appearing below . . . . ‘
[25] A third claim
(second competing claim) by the Tharfield Community, as the third
plaintiff, in respect of a number of farms,
was settled and is not
part of this appeal.
On appeal
[26] The Mazizini
and the Prudhoe claims remain the only competing claims in this
appeal. The contested land includes the land on
which the Fish River
Sun Hotel is located (the Sun farms 242, 243 and 245). Although the
Sun farms were previously owned by Sun
International (Ciskei) Ltd,
they have since been acquired by the Minister of Rural Development
and Land Reform (the Minister) for
restoration to the successful
claimant in these proceedings.
[27]
During the trial, both parties abandoned their claims in respect of
some of the land. The AmaZizi abandoned thirteen farms
and Prudhoe
relinquished eight farms. The exact portion of the abandoned land
does not appear on the record, save that the portions
ultimately
awarded to the Prudhoe Community appear in the order at the end of
this judgment (the amended version of annexure G
to the judgment of
the LCC).
Contentions of
parties on appeal
[28] In challenging
the award of the subject land to Prudhoe, AmaZizi maintained that,
firstly, Prudhoe was not a community as defined
in the Restitution
Act, and should therefore not have been awarded any land. They
contended that the members of the Prudhoe Community
were descendants
of individuals who were farm labourers on the subject land. In
essence AmaZizi disputed that part of the history
that held the
Prudhoe Community out as descendants of the subjects of Chief Kama.
The second leg of the challenge by AmaZizi
to the judgment of the LCC
was that, because the 1847 Proclamation that terminated all land
tenure rights enjoyed by Africans within
the ceded territory prior
thereto was not applicable to AmaMfengu. Instead they continued to
enjoy rights both in their originally
allocated land and in the
subject land, until they were dispossessed thereof by the Ciskei
Government during the 1970’s.
They maintained that they had
proved that at some stage in the 1880’s AmaZizi Community
members occupied both public and
private locations within the subject
land until they were dispossessed thereof on establishment of the
homeland of the Ciskei.
[29] AmaZizi also
sought to appeal against what they regarded as a failure by the LCC
to award to them 55 additional farms, together
with a farm known as
the Gosforth Farm, which fell outside the Prudhoe and Tharfield
lands. They contended that the Minister, by
admitting the validity of
their claim in relation to these farms, consented to their claim in
the LCC and the farms should have
been awarded to them on that basis.
Failure by the
LCC to award the 55 farms and Gosforth Farm to the Mazizini
Community.
[30] It is
convenient to first consider this part of the appeal. Firstly,
although no mention is made of the 55 farms and Gosforth
Farm in the
Mazizini Notice of Appeal, these farms (except the Gosforth Farm)
were included in its application to this court for
leave to appeal.
From Mazizini’s written Heads of Argument it was evident that
the AmaZizi claim to these farms was also
founded on the 1845 treaty
concluded with the colonial government. As noted earlier the argument
was that because the Minister
had not opposed the AmaZizi claim to
these farms in the LCC they should have been awarded to AmaZizi. The
1845 Treaty stood as
proof that the subject land had been granted to
AmaZizi, so it was submitted.
[31] However, as
Counsel for Prudhoe submitted, the appeal against the ‘omission’
by LCC to award these farms was improper.
As the record also reveals,
indeed the farms had been part of the original AmaZizi land claim. At
the start of the trial before
the LCC, AmaZizi brought an
interlocutory application seeking an order awarding these farms to
them on the same basis that
the Minister had not opposed the
claim in this regard and had therefore accepted the validity thereof.
[32] In dismissing
the interlocutory application, the LCC referred to opposition by the
Prudhoe Community to that part of the AmaZizi
claim. The LCC found
that the application was vexatious. An application for leave to
appeal against that order of the LCC failed,
and was also dismissed
by this court. So was a similar application to the Constitutional
Court. All of this resulted in a seven
month delay of the trial.
[33]
In its statement, filed in terms of s14(1
)(a)
of
the Restitution Act, the Prudhoe Community had pertinently refuted
the AmaZizi claim to these farms, denying that AmaZizi families
were
entitled thereto (in particular, farms 235 and 242, including farm
243, which was a subdivision of farm 242). Prudhoe asserted
that
these farms were formerly occupied by members of its community who
had since been moved to Benton Farm. It stated that it
intended to
lodge a land claim in relation to these farms
‘
upon
the correction and passing anew of the [Restitution Act] set aside by
the Constitutional Court in
Land
Access Movement of South Africa and Others v Chairperson of the
National Council of Provinces and Others
’
.
[11]
[34] Against this
background the LCC dismissed the application by AmaZizi for a
declarator that its claim over the 55 farms together
with the
Gosforth Farm was valid and should be honoured. The issue was dealt
with, conclusively at that stage and in the unsuccessful
applications
for leave to appeal the order of the LCC. There was no omission by
the LCC. In addition, AmaZizi never led any evidence
as the basis for
this claim. The attempt to revive the matter on appeal was improper,
to say the least. In addition, despite the
indication, in the Prudhoe
opposition, that there may be interested persons in a claim to these
farms, there is no reference by
AmaZizi to any current occupants of
or interest holders in these farms. And, based on past conduct, one
cannot rely on anything
that the RLCC says or does not say as to the
presence of interested parties who should have been alerted to this
claim. Over a
period of 20 years it had repeatedly and absurdly
ignored interested parties in this matter. Insofar as it is properly
before us,
this part of the appeal must fail.
Expert evidence
[35] The RLCC
commissioned five reports relevant to the competing claims. The first
report pertained to the AmaZizi claim and was
prepared in 2005 by Dr
Luvuyo Wotshela, an established historian from Fort Hare University.
Its contents were mostly informed by
his interview with Mr Fumene
Matiwane, one of the people who lodged the original three claims on
behalf of AmaZizi. Interestingly,
in his expert report Dr Wotshela
expressed the view that AmaZizi ‘did not have any historical
land rights that may have been
infringed through discriminatory
legislation’.
[36]
The second report was compiled by Mr Tuswa in 2007. Notably, the RLCC
never disclosed the Wotshela report to Mr Tuswa. It also
did not
disclose the Prudhoe competing claim to him. The third report was
prepared by Outcomes Based Consultancy on the Prudhoe
claim. That
report recommended that ‘the claim by the Prudhoe Community be
considered a valid claim in terms of the [Restitution
Act]. The claim
meets the restitution criteria’.
Although
this report was available to the RLCC when the matter was heard in
the LCC it was not disclosed to that court.
[37] The fourth and
fifth reports were prepared by Mr Tuswa for the retrial, subsequent
to rescission of the first LCC judgment.
The fourth report was an
update on Mr Tuswa’s first report on the AmaZizi claim. And the
fifth was in respect of the Prudhoe
claim. It is these last two
reports by Mr Tuswa which formed the basis of the second referral by
the Commission to the LCC.
[38] There was also
a ‘feasibility report’ prepared by Mr Piet Jonas on
behalf of the State parties. Mr Jonas gave evidence
favourable to
Prudhoe on the feasibility of restoration of the subject land to that
community.
[39]
Two expert reports prepared by Professor Jeffrey Peires of Rhodes
University and Dr Deborah Budlender
[12]
respectively, at Prudhoe’s instance, were also part of the
record.
Prof
Peires’s evidence was largely uncontested and forms the core of
the historical background set out above.
[13]
It was common cause that he was a leading historian in the Eastern
Cape and ‘
ha[d]
an extraordinary amount of experience and expertise in relation to
the … amaMfengu and Xhosa people’.
Ultimately
it was this report and Prof Peires’ evidence on behalf of
Prudhoe that carried the day.
[40] Although Mr
Tuswa gave expert evidence on behalf of AmaZizi he could only
establish expertise in soil science and geographical
information
systems, whereas Prof Peires, as already indicaated, was a well-known
historian, especially on the history of the indigenous
communities of
the Eastern Cape. Mr Tuswa was constrained to accept that on any
disputed issue, he had to defer to Prof Peires.
Despite this
concession he still vacillated when giving evidence, between
disputing the validity of Prudhoe’s lineage and
admitting it –
also insisting, despite the contents of his own report, that members
of the Prudhoe Community had only been
labourers on the subject land.
Be that as it may, in most part, the five experts’ reports were
mutually confirmatory on the
history of the two contesting
communities. Most of the evidence was drawn from the Government
archives.
[41] Prof Peires
referred in his report to a number of inaccuracies in the other
reports. However, apart from the differences between
him and Mr
Tuswa, recorded in the joint minute prepared by them, these
inaccuracies had no material impact on the determination
of the
issues before us. The two points of disagreement between Mr Tuswa and
Prof Peires formed the basis of the competing claims
and the basis
for this appeal. They are encapsulated their joint minute as follows:
‘
HISTORY
After discussion
between Mr Tuswa and Mr Peires:
1
Points of disagreement
1
Proclamation 3 December 1847 – did it put an
end to the treaty between Government and AmaZizi?
2
Relationship between AmaGqunukhwebe chiefdom and
Prudhoe Community – is there a continuity or are they entirely
different
entities?
II
Points of agreement
3
AmaGqunukhwebe confirmed in the possession of
their lands following the Fifth Frontier War (1819) due to the
intervention of Rev
William Shaw.
4
AmaZizi/AmaMfengu arrive in Peddie in 1835. Treaty
signed with Governor Maitland in 1845.
5
Chief Kama departs in 1843. AmaZizi move [to] part
of his land, excluding however the land now in dispute.
6
War of the Axe (1846 – 1847): AmaGqunukhwebe
defeated and kingdom ends. Arrival of first white farmers in Peddie
district.
7
Dispute between white farmers and AmaZizi.
Boundary line dermacated by Espinase and Edye in 1854, and this line
was the basis of
the Surveyor General demarcation.’
The law
[42]
Each of the competing claimants had to show that it satisfied the
requirements for a valid land claim under s 2(1
)(d)
of
the Restitution Act, and prove entitlement to the remedy of
restoration of the subject land in terms of s 35(1
)(a)
of
the Restitution Act, having regard to the factors listed in s 33 of
that Act.
[14]
[43] Section 2 of
the Restitution Act provides that:
‘
(1)
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 racially 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 racially discriminatory
laws or practices;
or
(c)
he or she is a direct descendant of a person
referred to 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 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 and practices; and
(e)
the
claim for such restitution is lodged not later than 31 December
1998.’
[15]
[44] Therefore, in
line with their pleadings in relation to the subject land each party
had to show that it was a community or part
of a community that after
19 June 1913 was dispossessed of rights that it had enjoyed, as a
result of past racially discriminatory
laws or practices, and that it
had lodged a claim for restitution of such rights not later than 31
December 2008. It was common
cause that each party had complied with
the stipulated lodgement date. The Prudhoe Community took no issue
with the status of AmaZizi
as a community. The only issues were
whether Prudhoe was a community as envisaged in the Restitution Act
and whether each party
had proved previous enjoyment of land rights,
after 19 June 1913, of which it was dispossessed as a result of
racially discriminative
laws or practices.
[45]
In s 1 of the Restitution Act ‘community’ is defined as
‘any group of persons whose rights in land are derived
from
shared rules determining access to the land held in community by such
group, and includes part of any such group’. The
meaning of
‘community’ is not rigid. The important factor is an
accepted, co-ordinated way of life amongst a group
of people that
guides their access and utilisation of the land and natural resources
within their environment – what the
Constitutional Court
described as ‘an established orderly settlement pattern, common
traditional practices, pooling of resources
for farming purposes,
economic activity and leadership structure’.
[16]
[46]
Previously, in
Department
of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty)
Ltd
[17]
the Constitutional Court said the following about the meaning of
‘community’ in s 2(1)(d) of the Restitution Act:
‘
There
is no justification for seeking to limit the meaning of the word
“community” in section 2(1)(d) by inferring a
requirement
that the group concerned must show an accepted tribal identity and
hierarchy. Where it is appropriate, as was the case
in
Ndebele-Ndzundza
,
the “bonds of custom, culture and hierarchical loyalty”
may be helpful to establish the group’s shared rules
related to
access and use of land. The “bonds” may also demonstrate
the cohesiveness of the group and its commonality
with the group at
the point of dispossession …
…
the
legislation has set a low threshold as to what constitutes a
“community” or any “part of a community”.
It
does not set any pre-ordained qualities of the group of persons or
any part of the group in order to qualify as a community.
. . .’
[18]
Discussion
Was Prudhoe a
community as envisaged in the Restitution Act?
[47] AmaZizi led the
evidence of Mr Matiwane on this issue. He sought to prove that
members of the Prudhoe Community were, in fact,
all members of the
AmaZizi Community and fell under the leadership of Chief Njokweni.
According to him most members of the Prudhoe
Community attended
school in the AmaZizi Tribal Authority areas. They only started to
identify with AmaGqunukhwebe during the preparations
for the lodging
of this claim. According to him, this was borne out by the fact that
Mr Tom, a witness for Prudhoe, had a Zizi
clan name. His further
evidence was that when the Prudhoe Village was established it was
Chief Njokweni who allocated plots to
the Prudhoe members. He also
asserted that members of the Prudhoe Community or their forebears
were tenant workers on the white
farms who only formed into a
community when they voluntarily moved to the Prudhoe Farm, a somewhat
inconsistent version with the
Prudhoe people having only formed
themselves into a distinct community when they were preparing for
this claim. Mr Matiwane also
highlighted the short distance, which he
estimated at about five kilometers, between the AmaZizi and Prudhoe
Community areas. All
these factors, according to him, were evidence
of a single community – AmaZizi.
[48]
However, during cross-examination Mr Matiwane conceded that the
Prudhoe Community was part of AmaGqunukhwebe
[19]
but insisted that AmaXhosa and AmaMfengu were always one and the same
people, with the term ‘AmaMfengu’ being just
a
‘nickname’. He also admitted that neither he nor his
parents had ever lived on or leased land on the subject land.
They
had lived in the Tribal Authority areas all their lives. He further
admitted that members of the Prudhoe Community attended
school in and
frequently visited the Tribal Authority areas because the only
schools available and administrative offices for processing
of
official documents, such as identity documents, were located there.
More significantly, he conceded that it was the Prudhoe
headmen who
allocated plots in the Prudhoe Village and not Chief Njokweni. And
further that in March 2011, when Chief Njokweni
sought to have his
daughter accepted as the traditional leader of Prudhoe, his
suggestion was emphatically rejected by the Prudhoe
Community.
[49] On behalf of
the Prudhoe Community, Mr Gladman Tom and six other witnesses
testified on the history of the community on the
subject land,
including their historical links to Chief Kama and the
AmaGqunukhwebe. They testified to their settlement on and
use of the
land, their traditional leadership structures, traditional rules in
relation to the allocation of land, and traditional
structures and
customs that were completely independent from AmaZizi. As already
shown above, neither Mr Tuswa nor Mr Matiwane
disputed this evidence.
[50]
The admission by Mr Matiwane that the Prudhoe people were
essentiallly AmaGqunukhwebe detracted from the argument by AmaZizi
that the Prudhoe people were not a community. In any event AmaZizi
provided no alternative historical background for the Prudhoe
Community. The contention, in their pleadings, that the Prudhoe
Community was part of AmaZizi Community was not proved by any
credible evidence.
[20]
As
shown above, Mr Matiwane’s evidence on this aspect whittled
away any basis for that contention.
[51] There can be no
doubt therefore that Prudhoe established satisfactorily that it was a
community as envisaged in the Restitution
Act. As was submitted on
their behalf, the archival records and Prof Peires’ evidence
showed a distinct orderly settlement
pattern, common traditional
practices, pooling of resources for farming, organised economic
activity, and firm indigenous leadership
structures constituting a
hybrid regulatory system for community members. There is no basis for
this court to depart from the findings
of the LCC on this issue.
Which community
proved entitlement to restitution?
[52] The precursor
to restitution of land under the Act is previous enjoyment of rights
in the land sought to be reclaimed. The
claimant community must show
that after 13 June 1913 it enjoyed those rights continuously until it
was dispossessed thereof as
a result racially discriminatory laws or
practices. The high watermark of the case for AmaZizi was that,
having been granted the
lands by virtue of the Maitland Treaty in
1845, they lived on that land until the establishment of the Ciskei
Homeland in the 1970’s.
They pleaded that the 1847 Proclamation
by Sir Harry Smith, which annulled the land grants that were in place
at the time did not
affect AmaZizi, for they had not breached any
term of the Maitland Treaty. It will be recalled that a condition of
the Maitland
treaty was that land granted thereby would be held by
the respective chiefs and tribes, and their successors in perpetuity,
never
to be reclaimed by the British ‘except in the case of
hostilities committed, or a war provoked by the said chiefs or
tribe…’.
The argument by AmaZizi was that, unlike
AmaGqunukhwebe, who breached the terms of the treaty by fighting on
the side of other
AmaXhosa tribes against the British, AmaZizi
remained loyal to and fought on the side of the British. There would
have been no
reason therefore for the British to annul the granting
of the land to AmaZizi. In fact, the language used in the 1847
Proclamation
clearly excluded AmaZizi from the operation of
Proclamation, so it was contended.
[53] However, even
if the AmaZizi interpretation of the 1847 Proclamation was correct it
would not assist them in their claim to
the subject land. The 1845
Treaty clearly granted to the respective chiefs and tribes the lands
on which each of them had settled.
If the 1847 Proclamation was not
applicable to AmaZizi, this only meant that AmaZizi would retain the
land that had been granted
to them in 1845. It would not entitle them
to the land possessed and occupied by the AmaGqunukhwebe, or any
other land that had
been granted to other African chiefs or tribes.
[54]
When AmaZizi arrived in Peddie, AmaGqunukhwebe had long settled in
the area along the east coast. The acceptance by the LCC
of Prof
Peires’ opinion that AmaZizi could not have been granted the
land already occupied by AmaGqunukhwebe in terms of
the concessions
obtained for them by the Wesleyan Reverend Shaw, must be correct. As
Prof Peires illustrated in evidence, the Stockenström
[21]
map depicts the land occupied by AmaGqunukhwebe during the period
1836 to 1844 as being along the coast – from the Great
Fish
River to the Keiskama River and beyond Keiskama to the east.
[55]
The later map depicting the community settlements during the period
between 1847 and 1850
[22]
clearly shows the AmaZizi original settlement as ‘Mfengu
Settlement’, and the portion of Chief Kama’s land that
was given to them was depicted as the ‘territory more recently
inhabited by Mfengu’. That whole area lies outside the
subject
land. An even later map depicting the settlements during the period
1853 to 1857 shows AmaMfengu still occupying the same
area.
Furthermore,
as Prof Peires highlighted, and as agreed in point 7 of the Experts’
Joint Minute, the boundary line demarcated
in 1853 by the Edye and
Espinasse Commission between AmaZizi (or AmaMfengu) and the white
farmers did not place AmaZizi anywhere
near the disputed land.
[23]
A
brief background to this Commission is that after Governor Sir Harry
Smith had brought the War of the Axe to an end he sold off
the Xhosa
lands by public auction to speculators and some white farmers. It
became clear to the colonial government that his land
allocations
were afflicted by corruption. A commission constituted by W Edye, a
Magistrate in Peddie and Captain Espinasse, a military
officer, was
appointed to adjudicate on the disputed boundary between the
disgruntled AmaZizi and the white landowners. The adjudication
became
the basis of the boundary between AmaZizi and the white landowners.
The portion of Chief Kama’s land that was allocated
to AmaZizi
appears inland on the map set out below, within the portion marked
‘Jokweni’s location’ and is depicted
as ‘portion
added to Jokweni’s location’. It was common cause that
Chief Njokweni was the leader of AmaMfengu.
[56] According to
Prof Peires, AmaZizi were never satisfied and always agitated for the
land they had been promised by Governor
Maitland. In 1911 they
organised an ‘interview’ with the Surveyor General to
establish the ‘true boundary’
between themselves and the
farmers. The Surveyor General, referring them to the boundary marked
in the map above, insisted that
the boundaries ‘were laid down
by survey in 1854 and these cannot be disputed’. These
boundaries placed the tribal
authorities inland outside the contested
area, the only extension of the land ever granted to AmaZizi being
the portion of Chief
Kama’s land around Newtondale Mission.
This land forms part of the area under the jurisdiction of the tribal
authorities
and was awarded to AmaZizi by the LCC. Even if the Smith
Proclamation was not applicable to AmaZizi that would not have the
effect
of extending their territory beyond what was granted to them
under the 1845 Treaty.
[57] Regarding
actual occupation of the subject land by Amazizi a closer
consideration of parts of Mr Tuswa’s last two reports
on
AmaZizi and Prudhoe reveals interesting evidence. Under the heading
‘history of acquisition of claimed land’ the
report sets
out a detailed analysis, on a farm by farm basis, of each of the
Prudhoe Community households that he identified as
having exercised
rights in relation to each farm on the subject land. In the report he
recorded that such rights were held in the
land after 1913 up to the
time of forced removals. Not a single reference to an identifiable
AmaZizi community member is specified
as having exercised rights on
the subject land. On the ‘nature of rights in land the
claimants were dispossessed of’,
the report sets out a detailed
list of land rights that were held by the Prudhoe community members
and lost as a result of the
removals. This is backed up by a detailed
analysis on a spreadsheet attached to the report. No such analysis
appears on the AmaZizi
report.
[58] Under ‘date
and circumstances of dispossession of rights in land’, a
detailed description of the planning and execution
of the removal of
the Prudhoe Community is given. No such description is given in
relation to AmaZizi. On compensation received,
the only analysis in
respect of AmaZizi is in relation to the Tribal Authority areas. The
Prudhoe report confirms that no compensation
was received by the
majority of the Prudhoe members and that which was received was
meagre. On ‘hardships suffered by the
claimant’ as a
result of forced removal the report records the severe harm done to
the Prudhoe people as a result of the
forced removal and their
dumping on the Prudhoe farm with no land for cultivation and grazing,
no livestock, and being forced to
build new homes with their own
funds. No such suffering is expressed about AmaZizi.
[59] Lastly, Mr
Tuswa’s conclusion and recommendations were that the Prudhoe
claim was a valid community claim in terms of
s 2(1)
(d
) of the
Restitution Act. With regard to AmaZizi he concluded that no archival
documents could be located to support dispossession
on the part of
AmaZizi Community. The report then ended with the following rather
perplexing paragraph:
‘
The
past racist policies have created a regime of conflictual overlapping
land rights viz treaty rights, private locations, labour
tenancy,
squatters and beneficial occupation occurring over the same piece of
land.’
If anything, the
contents of Mr Tuswa’s report discussed above support the
Prudhoe claim. They show evidence of actual settlement
by the Prudhoe
Community on the contested land. They lend no substance to the claim
of AmaZizi.
[60] Even though it
is not necessary to consider AmaZizi’s interpretation of the
1847 Proclamation given the conclusions drawn
from the evidence
above, we briefly consider the submission made in this regard. The
relevant parts of the Proclamation reads:
‘
WHEREAS
by reason as well of the causes as the result of the present
hostilities, carried on in certain territories to the Eastward
of
this Colony, all treaties and conventions formerly subsisting between
Her Majesty the Queen and the Chiefs of the Gaika, Congo,
T’slambie
and Tambookie Tribes of Kaffirs, and all others, have become and now
are wholly abrogated and annulled…
And I do further
PROCLAIM, DECLARE and MAKE KNOWN, that all Territory to the South and
West of any portion of the line aforesaid,
shall be and same is
hereby, annexed to and incorporated with the Colony of the Cape of
Good Hope as part and parcel thereof, and
that any right or title to
the exclusive occupation of any part of the said Territory by a
Native chief or People, granted or conceded
by any such Treaties or
Conventions as aforesaid, has wholly ceased and determined and shall
not be revived’.
[61]
As adverted to above, the submission on behalf of AmaZizi was that
the Proclamation was not directed at AmaMfengu (AmaZizi)
and their
lands because of the reference in the opening passage to the ‘Kaffir
tribes’. This term, as well as the term
‘Native’,
were generally not used by the British with reference to AmaMfengu,
it was submitted.
[24]
Furthermore, unlike AmaXhosa, AmaMfengu had not turned against the
British. There was no reason for the British to reclaim the
land
granted to AmaZizi. This was Mr Tuswa’s evidence as well.
However, the language of the Proclamation was clear. And the
Amazizi
interpretation of the proclamation is not consistent with the plain
language used in the Proclamation. Neither is it consistent
with the
context in which the Proclamation was issued.
[25]
The Proclamation was directed at the chiefs of the identified tribes
‘and all others’, including AmaMfengu. In addition,
the
evidence shows that Sir Harry Smith did not spare any of the African
tribes from the restoration of the lands to British political
governance. The proclamation went on to say that ‘any right or
title to the exclusive occupation of any part of the said
Territory’
had ‘wholly ceased and determined’.
[62]
A further contention by AmaZizi was that there was evidence on record
that showed settlement by them on the subject land way
beyond the
1840’s and 1850’s. Reliance was placed on the returns
completed by inspectors of natives locations during
the British
colonial rule. The first of these returns was for the period ending
on 31 December 1881 in relation to a place called
Mlenze (Newcastle
Commonage). AmaZizi contended that a return, which, on the face of
it, related to Lot 6, was in respect of Farm
242, which is located
‘near the Fish River Mouth’ (where the Fish River Sun
Hotel is situated). The return recorded
that 221 people lived in 38
huts there, under Headman Siwani and had 274 cattle. However, as Prof
Peires pointed out in his evidence,
there was no evidence that Lot 6
was Farm 242. Instead the archival evidence showed that Lot 6 was
under the control of the Whitfield
family from 1850 until the 1920’s.
Mr Tuswa later conceded that there was no evidence that AmaZizi
occupied Farm
242 during the period
1883 to 1929, when the farm was allocated to the white farmer. And,
that the people who had moved into Mlenze
as a result of subdivision
of land in the vicinity for white farmers were quickly evicted from
there.
[63] A further
return relied on was prepared by an inspector of locations, W J Dell,
for the Civil Commissioner of Peddie on 5 January
1884. The return
related to the quarter ending on 31 December 1883. In the relevant
part the following was recorded:
8
‘
With reference to Newcastle Commonage, the
cutting up of that locality into small farms has not to any great
extent disturbed the
natives who were previously living there as most
of them have arranged with holders of allotments to still reside as
heretofore,
while the few … have secured themselves places
among the farmers in the immediate neighbourhood.’
[64] The submission
was that, contrary to Prof Peires’ evidence that the AmaZizi
had settled for a short period at Mlenze
and were expelled from there
in 1854, the reference, in this passage, to ‘the natives who
previously lived in Newcastle’
was evidence of AmaZizi having
lived at Newcastle under Chiefs Siwani, Msuthu and Njokweni during
1883 to 1884 (the period covered
by the return). However, no amount
of scouring of the return reveals a reference to Newcastle or Mlenze
therein. As Prof Peires
opined, the document could just as well refer
to Africans other than AmaZizi. It does not support the AmaZizi
contention that they
had settled at the Newcastle Commonage. Further,
when Chief Njokweni gave evidence before the Native Laws and Customs
Commission
in September 1881, he said that the few AmaZizi who had
occupied Mlenze were removed from there whilst they were still
building
their kraals.
[65] The evidence on
records shows that the Prudhoe Community members had the full run of
the entire farms during the period between
the departure of the white
farmers in the 1970’s and their forced removal of Prudhoe’s
members in 1986/1987. With the
exception of Farm 242, all grants to
white settlers in respect of the 26 farms took place in the 1800’s.
The only person
who occupied Farm 242 (where the greater part of the
Fish River Sun is now situated) between 1883 and 1929 was the white
occupant,
Mr Whitfield and his successors. There was no evidence of
either ‘Fingo’ or AmaZizi occupation of that farm during
this period. In 1929 it was the subject of a deed of grant in favour
of a white owner, a member of the Whitfield family.
[66] AmaZizi also
relied on the fact that there was reference only to ‘Fingoes’
in the schedule to the 1913 Native Land
Act in support of their
contention that they lived on the land when that Act came into
effect. However, again, none of the schedules
to the 1913 Act pertain
to the subject land. Phato’s Kop Location, which was the only
AmaMfengu location located within Peddie
that was included in the
schedules was 50km away from the subject land. In any event the areas
listed in the schedules were recognised
black areas from which there
could be no dispossession under the 1913 Native Land Act. For
example, ‘[N]Jokweni location’
which appeared in the
schedule was one of the tribal authority lands which is located
outside the subject land.
Conclusion
[67]
The powers of this court to interfere with findings of fact, the
inferences to be drawn from those findings, and the remedy
granted on
the basis of those findings by the LCC are circumscribed. An
appellate court is, as a matter of principle, reluctant
to upset the
factual findings of the trial court because that court heard and
observed the witnesses. (
Fourie v First
Rand Bank Ltd and Another
[2012] ZASCA
119
;
2013 (1) SA 204
(SCA) para 14;
Rex
v Dhlumayo and Another
1948 (2) SA 677
(A) at 705 – 706 especially para 8). We are satisfied that the
findings by the LCC that the Prudhoe Community was a community
as
envisaged in s 2 of the Restitution Act and was dispossessed of
rights in the disputed land as a result of discriminatory laws
after
1 June 1913 was correct.
[68] The AmaZizi
Community claim that it had rights to the land claimed by the Prudhoe
community under the 1836 and 1845 treaties
was unfounded. The
AmaMfengu territory never extended to the subject land. Furthermore
although the rights enjoyed by the indigenous
communities under those
treaties were terminated by the 1847 proclamation, both AmaZizi and
Prudhoe remained in occupation of the
territories previously granted
to them. The AmaZizi endeavours to establish occupation of, or the
exercise of rights in the subject
land failed. That meant that they,
in fact, had no cognisable interest in that land and no grounds to
challenge the decision by
the LCC.
[69] In relation to
the subject land the order of the LCC read as follows:
‘
5.
It is declared that the second plaintiff is a community dispossessed
of rights in the land described in Annexure ‘F’
to this
Order after 19 June 1913 as a result of past racially discriminatory
laws and practices as contemplated in section 2(1)(d)
of the Act.
6 The first
defendant shall restore the land described in Annexure ‘G’
to this Order to the second plaintiff within
6 months of the grant of
this Order.
7 The second
plaintiff’s rights in the land described in Annexure ‘G’
are adjusted to full ownership in terms
of section 35(4) of the Act.
8. The land
described in Annexure ‘G’ may, at the election of the
second plaintiff be restored to a communal property
association, a
trust or another appropriate entity nominated by it.’
[70] At the hearing
of the appeal, Counsel for the Prudhoe Community brought to our
attention certain errors in Annexures F and
G to the judgment of the
LCC and sought to have the order of the LCC corrected accordingly.
There was no opposition to this request.
[71] Consequently
the following order is granted:
1 The appeal is
dismissed.
2 Annexure ‘G’
to the order of the Land Claims Court is altered to read as follows:
‘
1
The land falling within the full Prudhoe claimed area as identified
in Annexure “B” to the Judgment and handed in
at the
trial as Exhibit 3;
2 including, the
Fish River Sun Farms, namely:
2.1 Remainder Farm
242, in extent 147 6693 hectares;
2.2 Portion 2 of
Farm 235, in extent 10 5700 hectares;
2.3 Portion 23 of
Farm 235, in extent 11 6870 hectares;
2.4 Portion 24 of
Farm 235, in extent 12 4881 hectares;
2.5 Portion 25 of
Farm 235, in extent 1 6033 hectares;
2.6 Portion 26 of
Farm 235, in extent 6047 hectares;
2.7 Farm 243, in
extent 41 0035 hectares;
3 but excluding:
3.1 Portion 2 of
Farm 241, in extent 4 2203 hectares.
3.2 Portions 20 and
21 of Farm 261; and
3.3
the
land in respect of which the second
plaintiff has relinquished it claims for restoration, namely:
3.3.1 Portion 13 of
Farm 227;
3.3.2 Portion 14 of
Farm 227;
3.3.3 Portion 15 of
Farm 227;
3.3.4 Portion 16 of
Farm 227;
3.3.5 Portion 17 of
the Farm 227;
3.3.6 Portion 18 of
the Farm 227;
3.3.7 Portion 19 of
Farm 227;
3.3.8 Portion 33 of
Farm 227; and
3.3.9 Remainder of
Portion 1 of farm 227, in extent 11 2824 hectares (excluding
Portions of farm 227)’
4 Annexure ‘F’
to the order of the Land Claims Court is altered to read as follows:
‘
The
land falling in the full Prudhoe claimed area as identified on
Annexure “B” to the Judgement and handed in at the
trial
as Exhibit 4, including, the Fish River Sun Farms, namely:
4.1 Remainder Farm
242, in extent 141 6693 hectares;
4.2 Portion 2 of
Farm 235, in extent 10 5700 hectares;
4.3 Portion 23 of
Farm 235, in extent 11 6870 hectares;
4.4 Portion 24 of
Farm 235, in extent 12 4881 hectares;
4.5 Portion 25 of
Farm 235, in extent 1 6033 hectares;
4.6 Portion 26 of
Farm 235, in extent 6047 hectares; and
4.7 Farm 243 in
extent 41 0035 hectares
________________________
N DAMBUZA
JUDGE OF APPEAL
pp________________________
P M MOJAPELO
ACTING JUDGE OF
APPEAL
Appearances
For
appellants: V Notshe SC (with him S G Poswa)
Instructed
by: Makhanya Attorneys, East London
Bezuidenhouts
Inc., Bloemfontein
For
respondents: A Dodson SC (with him L Siyo)
Instructed
by: Legal Resource Centre, Grahamstown
Honey
Attorneys, Bloemfontein.
[1]
A
popular version of this part of history is that one of King Tshiwo’s
counsellors Khwane who was also a warrior, was entrusted
with the
role of executioner. But, instead of carrying out his duties, he hid
the condemned people in a place where they intermarried
with a
Khoisan tribe (the Gqunuqwas) and the population increased. Later,
Khwane brought back the sons of the former condemned
people to the
King as warriors, together with the older men and women and lots of
cattle. In appreciation of the cattle and the
warriors that Khwane
had brought, Tshiwo took to himself only a portion of the people and
of the cattle, and gave the remainder
to Khwane and bestowed upon
him a territory on the seacoast, symbolically appointing him as the
new son of the King. This was
the birth of the AmaGqunukhwebe and
that is how they came to settle along the east coast as part of the
Nation of the AmaXhosa.
[2]
These
were a series of nine wars between the Kingdom of AmaXhosa and the
Boer frontiersmen at first and European settlers later
(1811), in
the Eastern Cape Province during the period 1779 to 1879.
[3]
1818-1819
[4]
The map shows the
allocation of land by Lt.-Gov Stockenstrom, clearly reflecting the
division between the two groups.
[5]
Above
Kaffir’s Drift (See arrows - our emphasis in bold boundary).
[6]
J
B Peires:
The
Dead Will
Arise:
Nongqawuse and the Cattle-Killing Movement of 1856-7. The nub of the
story, which has been told in many different versions
is that during
1856 to 1857 the AmaXhosa, having suffered humiliating loss of land,
cattle and people as a result of the Frontier
Wars and a lethal
cattle disease in 1853 (the lung sickness), heeded a call from a
young prophetess, Nongqawuse, to kill all
their cattle because they
had been reared with hands that were sullied by witchcraft. The
promise or hope was that the dead would
arise and happy times would
return. However, all that followed the killing of cattle and
destruction of grain was famine, suffering,
death, capturing of
AmaXhosa leaders by Sir George Grey and their imprisonment on Robben
Island.
[7]
The
headmen were from four farms, namely, Slate, Lessendrum, Dunstan and
Farm No 249.
[8]
For
example, the Native Location Amendment Act 30 of 1899, The Private
Locations Act 32 of 1909 and the Native Trust Land Act
18 of 1936.
[9]
The
land claimed included the tribal authority areas of Dabi, Jaji and
Msuthu, in which members of the AmaZizi currently live.
[10]
Emfuleni Resorts v
Mazizini Community
[2011] ZASCA 139
(23 September 2011) at para 7.
[11]
Land Access
Movement of South Africa and others v Chairperson of the National
House of of Provinces and the others [2016] (5)
SA 635 (CC).
[12]
Dr
Budlender’s evidence related to the value of loss suffered by
the Prudhoe people as a result of the removal.
[13]
As
recorded in the joint minute between Prof Peires and Mr Tuswa
[14]
Section
33 of the Restitution Act sets out factors to be taken into account
by a court when considering any matter in terms of
that Act. These
include the desirability of providing for restitution of rights in
land to any person, desirability of remedying
past violations of
human rights, considerations of equity and justice, feasibility of
restoration, and avoidance of major social
disruption.
[15]
The
date in the amended Act is 30 June 2019.
[16]
Salem
Party Club and Others v Salem Community and Others
[2017]
ZACC 46
;
2018 (3) SA 1
(CC) para 104.
[17]
Department
of Land Affairs and Others v Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007(6)
SA 199 (CC) para 40-41.
[18]
Paragraphs
40 – 41.
[19]
It will be recalled
that Prof Peires’evidence was that AmaGqunukhwebe ceased to
exist as such but the remnants left after
the War of the Axe and the
Great Famine formed a community that maintained, so far as possible,
given their circumstances, the
patterns of life and traditions of
the community from which they had come. This was reflected by and
large in their clan names
and the role they gave to traditional
leadership and customs. Mr Matiwane’s concession was therefore
consistent with this
evidence.
[20]
In
the response to the Additional Notice of referral and the Prudhoe
Statement of Claim AmaZizi pleaded that ‘Whilst the
first
plaintiff (AmaZizi) admits that they were dispossessed of rights in
land, insofar as they were dispossessed of rights in
land as a
community, first plaintiff avers that they were part of the
plaintiff’.
[21]
The
map titled ‘Stockenström Treaty System 1836-1844’.
See para 6 above.
[22]
See para 7 above
[23]
Extracted
from Bergh J S and Visagie J C;
The
Eastern Cape Frontier Zone,
1660
– 1980; Map entitled ‘The Eastern Cape Frontier Area
1847 – 1850’.
[24]
This was not a
general rule. The Stockenstrom map referred to earlier clearly
included AmaMfengu among the Xhosa and their area
as an area of
Xhosa occupation.
[25]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA).