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[2007] ZACC 12
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Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd (CCT69/06) [2007] ZACC 12; 2007 (10) BCLR 1027 (CC) ; 2007 (6) SA 199 (CC) (6 June 2007)

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MOSENEKE
DCJ
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 69/06
DEPARTMENT
OF LAND AFFAIRS First applicant
POPELA
COMMUNITY Second applicant
MAMORIBULA
MAAKE Third applicant
JOHANNES
THOLO MAAKE Fourth applicant
RAMOTHABA
PHINEAS MAAKE Fifth applicant
MABULE
ISAAC MAAKE Sixth applicant
MOLATOLO
MAMOYAHABO MAAKE NO Seventh applicant
SEAKWANE
WILSON MALEMELA Eighth applicant
ABRAM
MAAKE Ninth applicant
MASELAELO
MOSIBUDI MAAKE Tenth applicant
MOHLAGO
MAMOTLATSO MAAKE NO Eleventh applicant
versus
GOEDGELEGEN
TROPICAL FRUITS (PTY) LTD Respondent
Heard
on : 8 March 2007
Decided
on : 6 June 2007
JUDGMENT
MOSENEKE
DCJ:
Introduction
This
case raises complex legal issues related to restitution of land
rights to people who were labour tenants in a painful period
of our
history. The social injustice of the termination of their rights as
labour tenants is not in question. What the case turns
on is
whether the termination of labour tenancies by private farmers
entitles labour tenants to redress under the Restitution of
Land
Rights Act
1
(the Restitution Act)
The
Popela Community (second applicant), alternatively the third to the
eleventh applicants (individual applicants), claim restitution
of
rights in land under the Restitution Act. The Popela Community is a
community or group of people acting in concert in claiming
restitution of land rights. To this end, they have organised
themselves into a voluntary association known as the Communal
Property
Association (CPA). The third to the eleventh applicants
are men and women who claim restitution of land rights as
individuals.
They share much in common. They have the same ethnic
lineage and all bear the Maake surname barring one claimant. They
originate
from the same rural neighbourhood and they are all former
labour tenants on the farm Boomplaats. As members of the CPA, they
seek
to enforce their claims with its assistance.
A
party in its own class is the first applicant, the Department of
Land Affairs (the Department) It bears certain statutory
obligations
to facilitate the achievement of the constitutional aims
of land restitution and land reform.
2
It seeks to appeal to this Court in its own name but clearly acts
in the interests of the applicants
3
It asks for no material relief other than to have the decision of
the Supreme Court of Appeal substituted with the order sought
by the
applicants. It must be added that the Department seeks to have the
costs order of the Supreme Court of Appeal reversed.
The order
requires it to pay the costs of the appeal jointly and severally
with the other applicants.
The
land in issue forms part of the erstwhile farm Boomplaats 408 LT in
the Mooketsi area of the Limpopo province. The farm Boomplaats
is
now consolidated into the farm Goedgelegen 566 LT and its registered
owner is Goedgelegen Tropical Fruits (Pty) Ltd (respondent).
The
respondent opposes the claims.
The
Land Claims Court dismissed the claims of the community and of the
individual claimants. An appeal to the Supreme Court of
Appeal
faltered. It was dismissed with costs. Aggrieved by the decision
of the Supreme Court of Appeal, the applicants ask for
leave of this
Court to contest the decision.
History
of dispossession
At
the very outset, certain mainly uncontested background facts loom
large and cast a wide shadow over this tale of dispossession
of
rights to land. The narrative has all the hallmarks of forcible
dispossession of indigenous ownership of land, which in time,
has
degenerated into dispossession of mere labour tenancy.
On
all accounts, the ancestors of the individual applicants originally
settled on the farm Boomplaats in the 1800s. The individual
applicants, most of whom bear the family name Maake, trace their
uninterrupted family settlement on the Boomplaats land back to
the
mid-19
th
century. According to the individual
applicants, their forebears enjoyed undisturbed indigenous rights to
the land and exercised
all the rights that came with it. These
rights included living on the land as families; bringing up their
children on it; tending
the elderly; paying spiritual tribute to
their ancestors; and burying the dead. They were entitled to
cultivate the land and to
use it for livestock.
They
did in fact exercise these rights. They lived on the land; they
built families and inevitably a community; they buried their
dead on
it; and the graves are still there. On the same land, they paid
homage to their ancestors. They tilled the land and reared
livestock on it. The land provided subsistence necessary for the
families without them being beholden to anyone. The applicants
say
these land rights were capable of being passed on to direct
descendants and that their ancestors did transmit them to successive
generations. However, this seemingly idyllic and rustic mode of
living was not to last forever.
Initially,
the Land Claims Court judgment records the colonial shift of land
ownership patterns in terse terms:
“
According to a research
report submitted by the Regional Commissioner, the ancestors of the
claimants were already living on the farms
during the middle of the
19
th
century. When the whites came to settle on the
farms, they found them there. The white settlers required them to
render services
for a certain period every year in return for being
allowed to stay on and use the farms.”
4
Later,
in the course of deciding whether the dispossession of indigenous
title of the claimants to land occurred prior to 1913,
the judgment
had the following to say:
“
It might be that the
claimants are part of an indigenous community which occupied
Boomplaats before the Zuid Afrikaanse Republiek
granted the land to
white owners during 1889, thereby depriving the community of their
communal ownership
and forcing their members into labour tenancy . The white owners
took possession of the land, and compelled the inhabitants to
become
labour tenants”
5
(Footnote omitted.)
This
conclusion of the Land Claims Court on the forcible dispossession of
indigenous ownership of land is well warranted by the
facts. The
research report of the Regional Commissioners
6
reveals that the farm Boomplaats was registered in the deeds
registry for the first time in 1889 in the name of Mr PDA Hattingh
7
On 22 February 1887, the land was transferred by title deed to Mr J
de Villiers de Vaal and was further transferred to Mr JB de
Vaal on
10 December 1897.
The
next successive owner of the land was Mr HB Gassel who took transfer
in 1914. After his death, his widow, Mrs MC Gassel, took
transfer
of the land. The two were uncle and aunt to Mr HMJ Altenroxel who,
in 1963, became the registered owner of the farm Boomplaats.
8
He conducted farming on it together with his sons, Mr August
Altenroxel and Mr Bernard Altenroxel. Later, and significantly

during the period between 1969 and 1971, the two sons farmed the
land as lessees. Ultimately, in 1987, the farm was registered
in
their names
9
and six years later, they transferred it to the respondent.
10
It
is beyond question that, throughout the tenure of successive
registered landowners, the applicants, as their ancestors did,

continued to live on the land but as no more than labour tenants.
They had to work for the registered owner or his appointee in
order
to live there. The inexorable result was that, by 1969, the title
of the applicants, the very descendants of the Maake people,
had
been whittled down to a vulnerable labour tenancy in relation to
their ancestral land. Then, as I intimated earlier, Mr August
Altenroxel together with his brother, Mr Bernard Altenroxel, leased
the farm from their father on Boomplaats and farmed there in
partnership. As we already know, they became registered owners of
the farm, but only several years later.
In
the trial before the Land Claims Court, Mr August Altenroxel was the
first and main witness for the respondent. It fell on him
to relate
how the applicants were deprived of their land rights to the
Boomplaats land. He was born in 1934 and worked on the
farm from
the age of seventeen years. He still lives on it. He is now
retired. He has no interest in the corporation that now
owns the
farm. He narrates that when he and his brother started farming
there, the Maake people, including the individual applicants
and
their families, lived there. The brothers as well as their father
had found the Maake people there as labour tenants on Boomplaats.
He
testified that the labour tenants were allowed to build homes for
themselves and their families and were entitled to plant crops
and
to graze their livestock. In his words, the white farmer showed
them the fields that they were permitted to plough. The labour
tenants were not allowed more than ten head of cattle per family and
a specified number of goats and sheep. In return, the labour
tenants and their respective family members had to work for the
Altenroxels for two days a week.
During
1969, Mr August Altenroxel and his brother decided to terminate the
labour tenancy of the individual applicants, which they
did It is
common cause that the applicants did not receive any compensation
for the loss of their rights to land in Boomplaats.
Mr
Altenroxel explained what the dispossession of the cropping and
grazing rights meant to the erstwhile labour tenants. They were
stopped from ploughing. Within two years, they had to dispose of
all of their livestock. Thereafter, they were not allowed to
keep
livestock. They all became full time wage earners on the farm.
They were paid what the surrounding farmers were paying their
farm
labourers. Those who did not accept the new employment regime left
Boomplaats for the nearby “homeland” reserved for
black people.
However, he says, the erstwhile labour tenants were not compelled to
leave the farm. In fact, nine applicants became
permanent farm
workers and continued residing on the Boomplaats farm. By 2001,
there were six applicants living on the farm.
Three applicant
families still live on the farm although they are not wage earners.
The remaining applicants will not be compelled
to leave the farm.
The owner of the farm, the respondent, has given an informal
assurance to that effect during the hearing before
the Supreme Court
of Appeal.
Mr
Altenroxel says that they terminated the labour tenancy because it
did not work well for them. In their commercial farming

environment, they needed a regular, adaptable and well-controlled
workforce. The labour tenancy system did not fulfil that business
need. He elaborated that, at times, the services of labour tenants
were simply not available or adequate when needed. He insisted
that
the labour tenancy of the applicants was terminated for business
purposes and not at the behest of any government official
or
pursuant to any law or regulation.
Mr
Altenroxel conceded under cross-examination that he was aware that
other farmers in their area were terminating the labour tenancy
relationships as between their black labour tenants and that the
trend on other farms spurred them on to do the same. He rejected
the suggestion that he must have been aware of legislation by
government aimed at abolishing the labour tenancy system for black
people. In his time, he says, “we never saw or heard about, about
that legislation . . . .” He knew of the apartheid government’s
policy to establish homelands for blacks. He read about it in the
Star newspaper and in the Farmers Weekly. But he had never
heard of
the 1913 Natives Land Act,
11
the Native Trust and Land Act of 1936,
12
the Bantu Laws Amendment Act of 1964
13
or of the Government Notice 2761 of 1970
14
proclaiming the government’s intention to eradicate labour tenancy
completely. He nonetheless admitted that he was a regular
reader of
the journal Farmers Weekly
and that, during 1960 to 1968, he
occasionally attended meetings of the local farmers association,
during which the subject of the
termination of labour tenancy had
never been discussed.
The claims
Given
the background that I have sketched, it is vital, at the outset, to
characterise the claims for restitution of land rights
accurately.
In this Court, particularly in relation to remedy, applicants
vacillated over the nature of their claims. On occasion,
they
tended to invoke the loss of their indigenous land rights rather
than dispossession of labour tenancy rights. It is indeed
plain
that the forebears of the applicants were deprived of their
indigenous rights to the Boomplaats land during the second half
of
the 1800s. For better, for worse and perhaps for reasons better
left unexplored, our Constitution has chosen not to provide
for
restitution of or equitable redress for property dispossessed prior
to 19 June 1913. Since the dispossession of the indigenous
title
occurred before 1913, it seems self-evident that it is outside the
restitutionary beneficence of section 25(7)
15
of the Constitution.
This,
of course, means that ordinarily, even if the applicants were to
establish dispossession of indigenous communal ownership
that
occurred before the constitutional cut-off date of 19 June 1913,
they would not be entitled to exact restitution or redress.
16
In the words of this Court in
Alexkor Ltd and Another v
Richtersveld Community and Others
, dispossessions that took
effect before 19 June 1913 are not actionable.
17
By
this I do not mean to convey that registered ownership of land
always enjoys primacy over indigenous title. To do that would
be to
elevate ownership notions of the common law to the detriment of
indigenous law ownership for purposes of restitution of land
rights.
Rights acquired under indigenous law must be determined with
reference to that law subject only to the Constitution
18
In appropriate cases, under the jurisdiction crafted by the
Restitution Act, registered ownership in land will not be held to
have extinguished rights in land recognised under indigenous law.
One such case is
Prinsloo and Another v Ndebele-Ndzundza
Community and Others
19
where Cameron JA correctly observes that:
“
The Act recognises
complexities of this kind and attempts to create practical solutions
for them in its pursuit of equitable redress.
The statute also
recognises the significance of registered title. But it does not
afford it unblemished primacy. I consider that,
in this case, the
farm’s residents established rights in the land that registered
ownership neither extinguished nor precluded
from arising.”
20
The
facts in the present matter are different. The applicants
themselves, so too the Regional Land Claims Commissioner, locate
in
time their dispossession of indigenous title to Boomplaats before
1913. Documentary and other evidence warrant this stance.
Further,
in their claim forms and in pleadings in the Land Claims Court, the
claimants restrict their claims for restitution or
equitable redress
to dispossession of labour tenancy rights in 1969. Here the
applicants have chosen not to seek, as the claimants
did in
In Re
Kranspoort Community
,
21
an order restoring their rights in the original farm along with an
order in terms of section 35(4)
22
of the Restitution Act, adjusting those rights to full ownership.
The individual claimants have even curtailed the extent of the
land
sought to be restored to accord with their labour tenancy claims:
“
The land claimed is the land
formerly known as the remaining extent of the farm Boomplaats No. 408
LT. Vide diagram S.G. NO. A 1639/08
and Deed Grant No. 3343/1889.
(DB357/23), which has now been consolidated into the farm Goedgelegen
566LT.
. . .
The land claimed excludes the
land, which was used by the landowner as marked in the map, attached
herewith marked ‘LC2’ and the
map attached to the notice of
amendment dated 6 May 2002
The individual claimants are
each claiming the land where their homesteads are or used to be and
the land immediately around it comprising
approximately 800m
2
and the whole land which they used jointly for ploughing and for
grazing
”
23
(Emphasis added.)
However,
this does not mean as the respondent will have us accept, that the
history of dispossession of property preceding the retroactive
cut-off point of 19 June 1913 is of mere passing interest. The
correct approach towards the historical context before the cut-off
date is set out by this Court in
Richtersveld
:
“
This did not mean that regard
may not be had to racially discriminatory laws and practices that
were in existence or took place before
that date. Regard may indeed
be had to them if the purpose is to throw light on the nature of a
dispossession that took place thereafter
or to show that when it so
took place it was the result of racially discriminatory laws or
practices that were still operative at
the time of the
dispossession.”
24
I
revert to this matter later in the contextual analysis related to
whether the dispossession of rights in land, if any, suffered
by the
applicants is as a result of racially discriminatory laws or
practices.
For
now, it should suffice to characterise the claims of the applicants
accurately. The claims are in two parts. First, the applicants
seek, individually or as a community, an order that they have been
dispossessed of their labour tenant rights in 1969 as a result
of
racially discriminatory laws or practices and that they are
therefore entitled to restitution or equitable redress under the
Restitution Act. Second, as restitution or equitable redress, the
individual applicants are each claiming the restitution of the
land
where their homesteads are or used to be and the land immediately
around it, comprising approximately 800m
2
, and the whole
land that had been used jointly for ploughing and for grazing.
Litigation
As
required by the provisions of section 14(1)(b) and (d)
25
of the Restitution Act, the regional land claims commissioner
referred the contested claims for restitution to the Land Claims
Court. At the trial, the Court heard evidence and, in the end,
dismissed the collective claim of the Popela Community and the
claims of the eleven individual claimants. The Court took the view
that there is no clear evidence whether the individual claimants
in
this case voluntarily accepted the new system or whether they were
forced into it. For that reason, it preferred to assume
without
deciding that during 1969, the Altenroxels dispossessed the
individual claimants of cropping and grazing rights. However,
the
dispossession, it held, was not from a community of labour tenants
but from individual labour tenants. The Court concluded
that,
whatever the case may be, the dispossession was not the result of a
past racially discriminatory law or practice. It accordingly
found
no merit in any of the claims.
With
leave of the Land Claims Court, the Supreme Court of Appeal heard
the appeal of the claimants and dismissed it with costs.
It found
that the claimants, whether as individuals or as a community, had
not shown that their dispossession of labour tenants
rights in 1969
was the result of a past racially discriminatory law or practice.
The Court reasoned that, even if the Altenroxels
knew of the
projected phasing out of labour tenant agreements at the instance of
the government of the day, knowledge by itself
is not sufficient to
establish the necessary causal connection between the racially
motivated law or practice and the dispossession.
In the event, the
Court found it unnecessary to resolve the issue whether the
dispossession implicated claimants as individuals
or as a community
of labour tenants.
Issues
A
claim for restitution of a right in land under section 2 of the
Restitution Act may succeed only if: (a) the claimant is a person
or
community or part of a community; (b) that had a right in land; (c)
which was dispossessed; (d) after 19 June 1913; (e) as a
result of
past racially discriminatory laws or practices; (f) where the claim
for restitution was lodged not later than 31 December
1998; and (g)
no just and equitable compensation was received for the
dispossession.
26
In
this Court, besides one jurisdictional issue and remedy, if any,
only two elements of the claim remain in contention. This means
that the issues that fall to be decided are: (a) whether leave to
appeal should be granted; (b) whether the Popela Community is
a
“community” dispossessed of a right in land for purposes of
section 2(1)(d)
27
of the Restitution Act; (c) whether the individual claimants were
dispossessed of their right in land as a result of past
discriminatory
laws or practices as required by section 2(1)(a) of
the Restitution Act; and (d) what the appropriate remedy should be,
should
the appeal succeed. I examine each issue in turn.
Leave
to appeal
There
is no gainsaying that the substantive issues for determination are
constitutional matters. The claims are made under section
2(1) of
the Restitution Act. This legislation provides for the restitution
of rights in land to persons or communities dispossessed
of such
rights after 19 June 1913 as a result of past discriminatory laws or
practices. Although, at first, the Act was passed
under the interim
Constitution,
28
section 2(1) has been amended several times
29
in order to give effect to the provisions of section 25(7) of the
Constitution.
This
case requires us to construe the provisions of section 2(1) of the
Restitution Act. It is so that where a statute has been
enacted to
give content to a constitutional right or to the constitutional
obligation of the legislature, the proper construction
of that
statute is itself a constitutional matter.
30
I
have no doubt that it is in the interests of justice to hear this
appeal and decide the issues that arise. As I have just said,
restitution of land rights and land reform are constitutional
issues. They sit in the heartland of the protective, restitutionary
and land reform design of section 25 of the Constitution. The
issues that arise are neither frivolous nor without merit. If

anything, they are indeed important not only to the applicants who
seek land restitution but also to the registered owner of the
property concerned. The Land Claims Court makes the additional
point that similar claims by labour tenants in respect of other
farms are pending. Given our country’s historical chasm on the
issues of land dispossession and land restitution, the public
has a
legitimate interest in the equitable resolution of claims like
these. I would grant the applicants leave to appeal.
Is
the Popela Community a “community” dispossessed of a right in
land?
Section
25(7) of the Constitution and section 2(1)(d) of the Restitution Act
entitle a community dispossessed of a right in land
after 19 June
1913 to claim restitution or other equitable redress. A community,
unless the context otherwise indicates, is any
group of persons
whose rights in land are derived from shared rules determining
access to land held in common by such group.
31
The
Land Claims Court concluded that in 1969 individual labour tenants
and not the community were dispossessed of their labour tenants’
rights. Each of the individual labour tenants had a discrete legal
relationship with the white farmers. The Supreme Court of
Appeal
found it unnecessary to decide this issue because, in the view that
it took of the matter, it had not been shown that the
dispossession
was causally linked to a law or practice that advanced racial
discrimination. Given the conclusion I arrive at,
I have to
confront the issue.
At
the heart of this enquiry is whether the occupational rights in the
land were derived from shared rules determining access to
land held
in common. At its core, the question is whether the labour tenants,
through shared rules, held the land rights jointly.
The community
and individual applicants contend that they did. They support this
contention by pointing to the history of their
use and occupation of
the land and to the attendant social arrangements. Their forebears
lived on the farm since the mid-1800s,
before the first registered
owner Mr Hattingh in 1889, and the claimants continue to do so
despite successive registered ownership
of the land. One of their
original leaders is Mr Popela Maake, after whom the community is
named. Mr August Altenroxel testified
that he knew Mr Popela Maake
and that he died in 1940 when Mr August Altenroxel was six years
old. The unchallenged evidence of
the expert witness, Mr Joubert,
shows with reference to aerial photos that from 1938 to 1968,
members of the Popela Community,
including the individual claimants
in this case, were in possession of and were entitled to plough a
total area of 45 hectares
and that there were about 32 individual
huts on Boomplaats.
After
Mr Popela Maake’s demise, the community chose Mr Petrus Maake to
lead them. Members of the community reported issues of
conflict and
disputes to him for resolution. He, as induna,
32
pointed out the area where a person could build or take over a
homestead and allocated ploughing fields in an area over which the
community had factual possession, to the exclusion of the farm
owner. The community shared a common grazing area, they gathered
fire-wood and drew water collectively and had a communal graveyard.
The Altenroxels deny that, during their ownership of the farm,
Mr
Maake exercised any such power over the land.
However,
what is clear on all the evidence is that the indigenous ownership
of land in the original Boomplaats farm was lost before
1913. Once
they had lost ownership, they were compelled to work for the owner.
Their relationship with the owner was coercive.
The Land Claims
Court found, correctly in my view, that “the white owners took
possession of the land, and compelled the inhabitants
to become
labour tenants”
33
Although
they had lost indigenous ownership, they continued to exercise the
right to occupy the land, to raise crops and to graze
their
livestock. Successive registered owners did not terminate these
rights. By 1969, the collective indigenous title to land
of the
Popela Community had succumbed to settler dispossession and
subsequent land laws on ownership and occupation of land by
black
people Members of the community had been successfully coerced into
being farm labourers whose occupational interest in the
land had
become subject to the overriding sway of the registered owner. They
had to work the lands of the owner without wages
in order to live
there. Mr Altenroxel makes the point that, whilst there was a
supervisor who was also regarded by the workers
as kgoshi,
34
as well as a community, they derived their right to live there,
plant crops and keep livestock from him, the white registered owner,
at whose whim and fancy they lived.
In
the case of
In Re Kranspoort Community
, Dodson J correctly
construes section 2(1)(d) of the Restitution Act to require that
there must be a community or part of a community
that exists at the
time the claim is lodged and that the community must have existed
some time after 19 June 1913 and must have
been victim to racial
dispossession of rights in land. I agree with Dodson J that in
deciding whether a community exists at the
time of the claim there
must be: (a) “a sufficiently cohesive group of persons” to show
that there is a community or a part
of a community, regard being had
to the nature and likely impact of the original dispossession on the
group; and (b) some element
of commonality between the claiming
community and the community as it was at the point of
dispossession.
35
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”
36
may be helpful to establish that the group’s shared rules related
to access and use of the land. The “bonds” may also demonstrate
the cohesiveness of the group and its commonality with the group at
the point of dispossession.
However,
what must be kept in mind is that 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. This generous notion of what constitutes a community
fits well with the wide scope of the “rights
in land” that are
capable of restoration. These rights, as defined,
37
go well beyond the orthodox common law notions of rights in land.
They include any right in land, whether registered or not; the
interests of labour tenants and sharecroppers; customary law
interests; interests of a beneficiary under a trust; and a
beneficial
occupation for a continuous period of not less than ten
years before the dispossession. The legislative scheme points to a
purpose
to make good the ample hurt, indignity and injustice of
racial dispossession of rights or interests in land that continued
to take
place after 19 June 1913.
The
threshold set by section 2(1)(d) is well met if the right or
interest in land of the group is derived from shared rules
determining
access to land that is held in common. This generous
understanding of what constitutes a community is consistent with the
retroactive
reach of the restitution process back to 19 June 1913.
With the passage of time, the composition and cohesion of
communities who
were victims of dispossession would be compromised
in that communities would be displaced and alienated from their
original homes
at huge human and social expense
38
Also, that interpretation advances the declared purpose of the
operative legislation, which is to provide restitution and equitable
redress to as many victims of racial dispossession of land rights
after 1913 as possible.
In
my view, the Land Claims Court was wrong to hold that the applicants
were not a community because they did not prove an accepted
tribal
identity, or that they did not live under the authority of a chief
designated by tribal hierarchy or that they did not occupy
the land
in accordance with ancient customs and traditions. None of these
attributes are requirements in themselves or collectively.
In
my view, it is clear from the evidence that the Maake people were a
community at the time they were dispossessed of their indigenous
ownership of the Boomplaats land in 1889 and eighty years later, in
1969, when they lost the remnants of their original rights
in land
in the form of labour tenancy. Even when they submitted the current
claim for restitution, they were a community with
sufficient
communality with their Maake forebears. They have retained much of
their identity and cohesion as part of the erstwhile
Maake or Popela
clan.
This
however is not the end of the enquiry. The acid test remains
whether the members of the Popela Community derived their possession
and use of the land from common rules in 1969. The answer must be
in the negative. By then, each of the families within the community
had been compelled to have its own separate relationship with the
Altenroxels. They pointed out the land for use by each family.

They ordered them to dispense with their livestock. They required
them singularly, and often also their children as young as
ten
years, to toil on the farm if they were to live there. The
registered owner made it clear that he did not heed any rules of
the
community on land occupation. They made the rules and the labour
tenant had to obey. The 1969 unilateral and summary termination
of
the land interests of the labour tenants makes the point loudly.
Some erstwhile labour tenants stayed and accepted the prevailing
labour wage while others went into the “diaspora” at Ga-Sekgopo
in the nearby so-called black homeland.
39
In
any event, at its very core, labour tenancy under the common law
arises from a so-called innominate contract between the landowner
and the labour tenant, requiring the tenant to render services to
the owner in return for the right to occupy a piece of land,
graze
cattle and raise crops
40
In name, it is an individualised transaction that requires specific
performance from the contracting parties. This means that
labour
tenancy does not sit well with commonly held occupancy rights
41
It is a transaction between two individuals rather than one between
the landlord and a community of labour tenants. It must however
be
recognised that despite the fiction of the common law in regard to
the consensual nature of labour tenancy, on all accounts,
the labour
tenancy relationships in apartheid South Africa were coercive and
amounted to a thinly veiled artifice to garner free
labour.
42
I
conclude that by 1969, no rights in land remained vested in the
labour tenants as a community. It has not been shown that, at
the
point of dispossession in 1969, the community of tenants on
Boomplaats held the land in common under shared rules that they
could enforce effectively in the face of an individualised system of
labour tenancy. I need not assume On the contrary, the evidence
shows clearly that the individual applicants, who were labour
tenants on the farm Boomplaats in 1969, were dispossessed of
occupation,
43
ploughing and grazing rights in that land as envisaged in the
Restitution Act.
The
phrase “as a result of”
The
entitlement to claim equitable redress or restitution of
dispossessed property derives from the Constitution itself. Section
25(7) of the Constitution provides:
“
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.” (Emphasis added)
Section
2 of the Restitution Act echoes this injunction from the Bill of
Rights by providing that a person shall be entitled to restitution
of
a right in land if he or she has been dispossessed of a right in land
as a result of
a past racially discriminatory law or practice.
I
draw attention to the phrase “as a result of” because much in
this case turns on the meaning that we accord to it. The pivotal
question relates to the meaning of the phrase in the context of the
constitutional and legislative provisions within which it occurs.

Important to that interpretive task are two definitions in section 1
of the Restitution Act. Racially discriminatory laws include
“laws
made by any sphere of government and subordinate legislation”.
Racially discriminatory practices are:
“
. . . 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 a public power or performed a public
function in terms of any legislation”
The
Supreme Court of Appeal endorsed the approach of the Land Claims
Court that the words “as a result of” connote a causal
connection
44
but that, in this case, there was no discernible causal connection.
For this conclusion, both courts relied on the “but for”
test
which asks whether, but for the act or omission labelled as the
possible cause, the result would have occurred. In applying
this
test, these courts have asked whether, but for the discriminatory
laws and practices, the Altenroxels would have terminated
the
claimants’ labour tenancies. They concluded that, regardless of
the legal and social context, the farm owners would have
dispossessed the applicants of their rights in the land. Thus, past
discriminatory laws and practices did not cause the dispossession.
45
They held that the dispossession was as a result of a private
decision of the farmers concerned.
The
proper approach to statutory interpretation
This
Court has reiterated that the Constitution must be interpreted
purposively.
46
Many pronouncements in this Court and other courts endeavour to
encapsulate this purposive approach. Perhaps the most lucid dictum
on purposive interpretation, which has been approved several times
by this Court, is to be found in
R v
Big M Drug Mart Ltd
,
47
per Dickson J, writing
about the Canadian Charter of Rights and Freedoms.
48
In
Bato Star
Fishing
,
49
Ngcobo J explains the proper approach to statutory interpretation:
“
The emerging trend in
statutory construction is to have regard to the context in which the
words occur, even where the words to be
construed are clear and
unambiguous. Recently, in
Thoroughbred Breeders’ Association v
Price Waterhouse
,
50
the SCA has reminded us that:
‘
The days are long past when
blinkered peering at an isolated provision in a statute was thought
to be the only legitimate technique
in interpreting it if it seemed
on the face of it to have a readily discernible meaning. As was said
in
University of Cape Town v Cape Bar Council and Another
1986
(4) SA 903
(A) at 914D-E:
‘
I am of the opinion that the
words of s 3(2)(d) of the Act, clear and unambiguous as they may
appear to be on the face thereof, should
be read in the light of the
subject-matter with which they are concerned, and that it is only
when that is done that one can arrive
at the true intention of the
Legislature.’’”
51
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. Therefore, in construing “as a result
of past
racially discriminatory laws or practices” in its setting of
section 2(1) of the Restitution Act, we are obliged to scrutinise
its purpose. As we do so, we must seek to promote the spirit,
purport and objects of the Bill of Rights. We must prefer a
generous
construction over a merely textual or legalistic one in
order to afford claimants the fullest possible protection of their
constitutional
guarantees. In searching for the purpose, it is
legitimate to seek to identify the mischief sought to be remedied.
In part, that
is why it is helpful, where appropriate, to pay due
attention to the social and historical background of the
legislation. We must
understand the provision within the context of
the grid, if any, of related provisions and of the statute as a
whole including
its underlying values. Although the text is often
the starting point of any statutory construction, the meaning it
bears must
pay due regard to context. This is so even when the
ordinary meaning of the provision to be construed is clear and
unambiguous.
52
Clearly
the next task is to describe briefly the purpose of the statute. In
Richtersveld
this Court described the purpose of the
legislation in these terms:
“
. . .
although it is clear that a primary purpose of the Act was to undo
some of the damage wreaked by decades of spatial apartheid,
and that
this constitutes an important purpose relevant to the interpretation
of the Act, the Act has a broader scope. In particular,
its purpose
is to provide redress to those individuals and communities who were
dispossessed of their land rights by the Government
because of the
Government’s racially discriminatory policies in respect of those
very land rights.”
53
Commenting
on the requirement of dispossession, the Court observed that:
“
The concept of dispossession
in s 25(7) of the Constitution and in s 2 of the Act is not concerned
with the technical question of
the transfer of ownership from one
entity to another. It is a much broader concept than that, given the
wide definition of ‘a
right in land’ in the Act. Whether there
was dispossession in this case must be determined by adopting a
substantive approach,
having due regard to the provisions of the
Precious Stones Act and the conduct of the Government in giving
effect to them.”
54
It
is indeed so that the Restitution Act is an enactment intended to
express the values of the Constitution and to remedy the failure
to
respect such values in the past, in particular, the values of
dignity and equal worth. To achieve this remedial purpose, as
it is
shown later in this judgment, the history and context within which
land rights were dispossessed and in particular the manner
in which
labour tenancy operated and was terminated must be considered. The
causal enquiry required by section 2(1) of the Restitution
Act must
be understood in the light of this purpose and the full context of
the dispossession of land rights in issue. It is to
the legal and
social context of the dispossession in this case that I now turn.
The grid of discriminatory
laws and practices
In
order to understand whether a dispossession of a right in land is as
a result of past discriminatory laws and practices, it will
be
helpful to set out the framework of the legislation that has
relevance to the dispossession. The Supreme Court of Appeal found
that the only relevant legislation that could have amounted to a
discriminatory law in this context was section 27
bis
(1) of
the Bantu Laws Amendment Act
55
(the BLA Act). In my view, this finding falls short of recognising
the full range of the racist legislative scheme, policies and
practices on land from 1913 to 1970 and their disastrous impact on
the rights in land of black people.
A
brief survey of legislative and state policy framework on labour
tenancy is instructive. The best available evidence is to be
found
in research and investigation reports of the Department of Land
Affairs Report 190 of 1996
56
and the Nel Commission investigation into labour tenancy of 1961
57
These reports contain historical facts on state policy, practices
and laws and are premised on archival materials that were never
put
in dispute and, in my view, are cogent. In the light of the
provisions of section 30(2)
58
of the Restitution Act, such materials are properly admissible.
59
Before
1910, there was no general restriction upon the acquisition of land
by blacks, although virtually none of the best agricultural
land was
held other than by whites. The Natives Land Act of 1913 precluded
blacks from owning land outside scheduled areas, which
consisted of
no more than thirteen percent of the total land mass of the country
60
Independent rent tenancy and sharecropping in white-owned areas
were eliminated. After the exclusion of blacks from land ownership
in white areas, the racist government adopted measures to control
blacks on farms through legislation, which rendered those who
remained on farms either labour tenants or squatters. This
occurred
between 1913 and 1936.
The
Native Trust and Land Act of 1936
effected far
reaching changes to the land tenure system of blacks. It limited
the number of workers on a farm and subjected them
to master and
servant laws. It also created an elaborate system for registering
and controlling the distribution of labour tenants.
61
This legislation provided the basis for the eviction of tenants
from farms for the next 40 years After 1948, with the advent
of the
new government, Chapter IV of the Act was enforced vigorously in a
systematic plan to eliminate squatting and change labour
tenancy
into wage labour.
The
Prevention of Illegal Squatting Act of 1951
62
enabled farmers and local authorities to evict labourers with
relative impunity. The BLA Act of 1964 implemented the
recommendations
of the 1961 Nel Commission. This 1964 legislation
was the main drive behind the forced removals of squatters and
labour tenants
during the 1960s and 1970s.
It is
fair to say that, in effect, the trilogy of the BLA Act of 1964,
read together with the Natives Land Act of 1913
63
and the Native Trust and Land Act of 1936, rendered vulnerable the
interests in land of black occupiers in general and of labour
tenants, in particular
The primary
purpose of the proclamation in the 1967 Gazette was gradually to
phase out the labour tenancy system by allowing a farmer
fewer
labour tenants per year. Subsequently, in a circular notice from
the Department of Bantu Administration and Development
entitled
“
Arbeidsvoorligtingsbrief No 20
” dated 25 August 1969,
farmers were directed to decrease the labour tenants in their
service in an attempt to abolish the labour
tenancy system in its
totality by the end of 1970. Finally, on 31 July 1970, labour
tenant contracts, in areas which included
Boomplaats, were
prohibited.
In
summary, from the 1920s and 1930s with greater momentum towards the
1950s and 1960s, the minority apartheid government with the
support
of the South African Agricultural Union, chose to control, limit and
eventually eliminate labour tenancy on South African
farms.
These
laws on labour tenancy cannot be viewed in isolation They must be
considered in the context of other laws which ensured that
blacks
could not acquire title to land; could not insist on the recognition
of their existing rights in land; could not seek to
protect those
existing rights in land against further erosion; and were precluded
from asserting rights to occupy or move onto
land in so-called
non-scheduled areas
64
other than as squatters or labour tenants whose rights continued to
be diminished. These laws must be understood, particularly
from the
1930s onwards, in light of labour laws which prevented blacks from
unionising; from withholding labour or otherwise effectively
bargaining; and from lobbying or otherwise having an effective voice
in central government because of a lack of proper representation.
What
does “as a result of” mean?
It
is beyond cavilling that the legislation and practices of the past
government on land rights and in particular on labour tenancy
in
relation to black people were unmistakably discriminatory on grounds
of race. The narrow but crucial enquiry is whether the
termination
of a land right by a private farmer may serve as a causal link
required by the operative legislation. I have intimated
earlier
that restoration of land rights is a constitutional innovation that
is not only unique but also steeped in a troubled past
that must be
remedied. Therefore, the approach to causation we adopt must be one
that best serves the manifest purpose of the
Restitution Act.
In
Kranspoort Community
65
Dodson J was confronted with the argument that a statute, the Group
Areas Act,
66
did not escape the application of the
sine qua non
or “but
for”
test because the claimants for restoration of rights
in land would, in the absence of the statute, have been evicted by
way of civil
action in terms of the common law. Consistent with a
purposive understanding of the causal connection required by the
Restitution
Act, the Court correctly held that:
“
.
. .
before entering into the traditional two-stage enquiry,
one must first see whether the solution to the causal enquiry cannot
be arrived
at on a simple application of the terms of the statute.
What this means is that, if, having regard to all the circumstances,
the
dispossession is patently one in respect of which the statute
intended to provide a remedy, the enquiry need go no further. If
regard
is had to the circumstances of the 1955/6 removals, they bear
all the hallmarks of the type of dispossession which the Restitution
Act seeks to remedy.”
67
I
have given an account of the historical context of dispossession of
land rights in general and of the specific instances we are
confronted with in this case. It is clear that they are a
consequence of social and governance trends of spatial and other
forms
of apartheid, which cover a period of nearly 85 years. These
trends took the form of race-based state practices, policies and

laws related to rights in land. In their very natures, racist
practices and policies cannot mean a single decisive cause but a
concurrence of events conducted over time. In enacting the
Restitution Act, the legislature must have been aware that apartheid
laws on land were labyrinthine and mutually supportive and in turn
spawned racist practices. And vice versa. Therefore, often
the
cause of historical dispossession of land rights will not lie in an
isolated moment in time or a single act. The requisite
causal
connection must be gathered from all the facts as long as the
connection commends itself to common sense and is reasonable
rather
than remote or far-fetched.
Moreover,
it is well recognised that different branches of the law may require
different causation requirements
.
68
For instance, the focus of the test for causation in branches of
the law such as delict or criminal law is to impute or to limit
liability. Neither liability nor culpability in the conventional
sense is a feature of the restoration scheme envisaged by section
25(7) of the Constitution and the Restitution Act. Entitlement to
redress under the Restitution Act does not hinge on any form
of
blameworthy conduct such as intention or negligence or a duty of
care. Equally important is that the operative legislation
does not
hold liable any party for historical dispossession, whatever the
motive of the dispossessor It merely sets conditions
that entitle a
claimant to restitution. What section 2 of the Restitution Act does
is to set its own limitations. In this context,
it requires that
only conduct or omissions that are causally connected to
discriminatory laws or practices of the state or of a
public
functionary will entitle a dispossessed claimant to restitution.
The
claim is against the state. It has a reparative and restitutionary
character. It is neither punitive in the criminal law sense
nor
compensatory in the civil law sense. Rather, it advances a major
public purpose and uses public resources in a manifestly
equitable
way to deal with egregious and identifiable forms of historic hurt.
I
conclude that the term “as a result of” in the context of the
Restitution Act is intended to be less restrictive and should
be
interpreted to mean no more than “as a consequence of” and not
“solely as a consequence of”. It is fair to add that,
on this
construction, the consequence should not be remote, which means that
there should be a reasonable connection between the
discriminatory
laws and practices of the state, on the one hand, and the
dispossession, on the other. For that determination,
a
context-sensitive appraisal of all relevant factors should be
embarked upon. It is to that appraisal that I now briefly focus.
Was
the dispossession as a result of past discriminatory laws and
practices?
I
think that the applicants are correct in submitting that all these
features constituted a grid of integrated repressive laws that
were
aimed at furthering the government’s policy of racial
discrimination. It created both spatial apartheid and a cheap
labour
force that was perceived to be malleable and was based upon
an inequality between those classified as blacks and those
classified
as whites
The racially
discriminatory laws in force and the racially discriminatory
practices that prevailed materially affected and favoured
the
ability of the Altenroxels to dispossess the applicants of their
labour tenancy rights. In a normal society based on dignity
and
equality, a truly representative government would have had a duty to
protect and respect existing rights. It would have cared
about the
effect that any unilateral change in those rights would have had on
the labour tenants and their families. The Altenroxels
would have
been compelled by law or practice not to take away the vested rights
in land of others as at 1913, particularly because
the original
rights of the people concerned preceded the first land registration
and went back generations. Simply put, without
the effect of the
apartheid laws, policies and practices on land rights of black
people, the Altenroxels would have never had the
power to do what
they did.
In my view, there is much to be said for the
evidence of Dr Schirmer that white bywoners
69
were actively assisted by the state in procuring land title whilst
black labour tenants were stripped of their rights in land and
denied the ability to acquire land in non-scheduled areas. As may
be gathered from this judgment, I agree with Dr Schirmer that
the
dispossession of land rights of the claimants by the Altenroxels did
not occur in a social and legislative vacuum. The dispossession
was
indeed “tainted” by the context that allowed and actively
encouraged it to occur.
It
is so that
the Altenroxels purported to act as
free agents to advance their agro-economic interests. It may be
that they wanted to arrange
their affairs to earn more money. But
to accept that they were free agents is to fail to grasp that their
dubious freedom to deprive
others of their rights in land was owed
to racially discriminatory laws and state policies and practices
that were intended to
facilitate and did expunge land rights of
black labour tenants. The dispossession initiated by the
Altenroxels was a progeny or
direct consequence of unjust laws and
state sponsored practices toward land rights of black people.
It must be
borne in mind that labour tenancy, by its nature, presupposes a
legally recognised relationship of a private nature.
Accordingly,
ending labour tenancy could not be accomplished by state-forced
removals, with notices from the state to get out
by a date, followed
by state bulldozers and trucks with a police presence. It would be
the farmers themselves who would have to
take the steps to
extinguish the rights on a farm-by-farm basis. The racist state
policy and practice was clear: the farmers were
encouraged to get on
with the job as rapidly as possible, and the proclamation was
introduced as an ultimate form of coercion to
deal with recalcitrant
farmers who were slow or reluctant to move. In this sense, the
farmers were expected to be the direct agency
for the achievement of
racist state objectives. Looked at as a whole, the destruction of
the limited rights of the labour tenants
by the Altenroxels was
consequent upon and facilitated by state laws and practices and
furthered avowedly racist state objectives.
It must be
added that the government policy of abolishing labour tenancy was
not simply driven by callous economic motives to create
more cheap
black labour. Nor was it merely a push to replace feudal forms of
productive relationships with market-based ones.
It was part of the
grand apartheid design. Its notorious objective was to eliminate
any vestiges of black land rights in what
was designated as white
South Africa. The goal was to cut any residual legal ties that
identifiable black families and communities
had to identifiable
pieces of land. The Restitution Act acknowledges this by expressly
including recognition of labour tenancy
rights as a basis for
restitution.
In my view, the
causal connection under section 2 of the Restitution Act should not
be understood to require that the state or a
public functionary
should itself perform the dispossession of rights in land It is
sufficient if the termination of rights in
land is permitted, aided
and supported by racially discriminatory laws or practices of the
state or other functionaries exercising
public power. The question
is not whether the dispossession is effected by the state or a
public functionary, but rather whether
the dispossession was as a
consequence of laws or practices put in place by the state or other
public functionary
Another
consideration is that, if we were to understand section 2(1) of the
Restitution Act to require that every termination of
labour tenancy
should be done by a state functionary only, labour tenants would
always be excluded from the right to claim restitution.
This is so
because notionally labour tenancy is a private law contract which
may be terminated only by a party to it. Clearly,
the exclusion
would be at odds with the manifest purpose of the legislation to
grant restitution or equitable redress to dispossessed
labour
tenants
It
matters not whether the Altenroxels had knowledge of discriminatory
laws. The Altenroxels are not being held culpable for their
conduct
or their professed ignorance of spatial apartheid Inasmuch as we
are dealing with indirect discrimination, what is important
is the
impact of the legislation and practices of the state on the rights
of the applicants. The motive to discriminate is irrelevant.
70
The potentially divergent motives of those who dispossess rights of
others cannot form the basis for entitlement to restitution.
If it
were so, untenable outcomes would arise. Claims for restitution of
victims of dispossession who face the same adverse impact
would
yield different outcomes depending on the mental disposition of the
dispossessor. The scheme of the Act is to restore rights
in land
and the dignity it brings to those who were affected by the racial
discrimination that resulted in their dispossession.
These
laws, and in particular the BLA Act of 1964 facilitated and
permitted farmers in the position of the Altenroxels to remove
the
vestiges of the labour tenancy system without demur. Those in
occupation had no leg to stand on. The substratum of their
occupation had been denied both by the Native Land Act of 1913, the
Natives Trust Land Act of 1936 and the BLA Act of 1964, which
ensured that even existing labour tenancy rights were vulnerable.
In
addition, the institutionalised and systemic practice of exploiting
black people as a cheap source of labour for the financial
benefit
of white farmers enabled the Altenroxels to consider that there was
nothing wrong in unilaterally altering the status of
the claimants
and their families without concerning themselves with the
consequences of their actions. On this footing, there
was no need
for the Minister to proclaim by Gazette under the BLA Act that
labour tenancy was being abolished in particular districts.
Indeed,
it would have been totally unnecessary. It is common cause that
farmers in the area were actively ending labour tenancy
on their
farms. The evidence of the veteran farmer in the Mooketsi area, Mr
Van Zyl, makes the point that the farmers were actively
terminating
labour tenancies of black farm dwellers. The state policy,
legislation and practice to terminate labour tenancy on
white farms
were taking their full course. The individual and subjective
motives of each farmer who terminated labour tenancies
are
irrelevant. What matters is the impact of the laws, policies and
practices of government on the land interests of labour tenants.

The wording used in section 2(1)(a) of the Restitution Act and
section 25(7) of the Constitution refers in the passive to a person
dispossessed, emphasising that dispossession is an event or
occurrence, rather than the conduct of any agent.
I
conclude that
the individual applicants
were dispossessed of rights in land after 19 June 1913 as a result
of past racially discriminatory laws
or practices as contemplated in
section 2 of the Restitution Act.
Remedy
In
this Court, the applicants did not press for a remedy beyond a
declarator that the individual claimants are entitled to restitution
of or equitable redress for being dispossessed of a right in the
Boomplaats land after 1913. More significantly, the Department,
which is charged with the duty to implement the Restitution Act, did
not seek relief beyond a declarator. As I understood counsel
for
the Department, with a declarator of this Court in hand, the
Department will facilitate the final resolution of the nature
and
extent of restitution or equitable redress envisaged by the
operative legislation
However,
it is appropriate to record that in the claims to the Regional Land
Claims Commissioner, the claimants sought more. They
asked that
land formerly known as the remaining extent of the farm Boomplaats
408 LT, which has now been consolidated into the
farm Goedgelegen
566 LT, be restored to them. They each claim the land where their
homesteads are or used to be and the land immediately
around it,
comprising approximately 800 square metres, and the whole land which
they used jointly for ploughing and for grazing
However, the
difficulty is that, from the record of proceedings, the cadastral
dimensions of the portion of the farm Goedgelegen
566 LT, which the
third to the eleventh applicants claim are by no means clear.
Section
35 of the Restitution Act confers vast remedial powers on the Land
Claims Court. They range from restoration of land claimed
or any
other right in land to paying the claimant compensation or granting
any alternative relief. It would not be appropriate
to venture into
formulating a remedy beyond a declaratory order and costs. We have
heard no evidence on the possible variants
of remedies to be
preferred. In any event, it would not be desirable to be a court of
first and last instance on a matter best
left to the Department or a
specialist court, which the Land Claims Court is.
71
It is clear from section 35(2)(fA)
72
of the Restitution Act that it is still open to the parties to reach
an agreement regarding finalisation of the claim, which I
assume
includes the form and extent of restitution or other relief
The
sensible course available to this Court is to make a declarator
only. At the hearing, the claimants urged us not to remit the
matter to the Land Claims Court and assured us that the Department
would decide, in conjunction with the claimants, on the finalisation
of this claim. The respondent did not object to the attitude of the
applicants that the matter should not be remitted. We do
not remit
this matter to the Land Claims Court on the clear understanding
that, should no agreement be reached on the terms of
the restitution
or other equitable redress, any affected party may approach the Land
Claims Court for an appropriate order on remedy
as envisaged in
section 35 of the Restitution Act.
Finally,
it is appropriate to observe that
the
rights of the individual applicants were not merely economic rights
to graze and cultivate in a particular area. They were
rights of
family connection with certain pieces of land, where the aged were
buried and children were born and where modest homesteads
passed
from generation to generation. And they were not simply there by
grace and favour. The paternalistic and feudal-type relationship
involved contributions by the family, who worked the lands of the
farmer. However unfair the relationship was, as a relic of past
conquests of land dispossession, it formalised a minimal degree of
respect by the farm owners for the connection of the indigenous
families to the land. It had a cultural and spiritual dimension
that rendered the destruction of the rights more than just economic
loss. These are factors that might require appropriate
consideration by the Department or the Land Claims Court when an
appropriate
remedy is fashioned.
Before I turn
to costs, I must mention that the second to the eleventh applicants
filed their application for leave to appeal one
day late. They seek
an order condoning their late filing of the application. The relief
they ask for is not opposed and, in any
event, it is justified.
Secondly, Mr Abram Maake, the ninth applicant, and Mr Maselaelo
Mosibudi Maake, the tenth applicant, have
since passed away. The
respective executors of their deceased estates ask for leave to be
substituted for the deceased applicants.
This application is not
challenged and it is well grounded. An order to this effect will be
made. Should any of the individual
applicants pass away before the
finalisation of this claim, his or her lawful heir or executor may
be substituted for the deceased.
Costs
The
Land Claims Court did not make any order as to costs at the end of
the trial but directed that costs of the subsequent application
for
leave to appeal shall be costs in the appeal. However, the Supreme
Court of Appeal ordered the claimants and the Department
to pay
costs jointly and severally including costs attendant upon the use
of two counsel. The applicants have raised an important
matter of
land restitution and have succeeded in this Court. I can find no
reason why this Court should not set aside the costs
order of the
Supreme Court of Appeal.
What
remains is to consider which costs order to make in this Court In
this judgment, I have emphasised that a claim for restoration
of
rights in land under the Restitution Act is a claim against the
state. The owner of the land, which is the object of the claim,
is
entitled to resist the claim but that does not alter the core
character of the statutorily devised claim as one against the
state.
The claim is not retributive but restorative in purpose. Nothing
in the manner in which the respondent has conducted its
case
justifies an order of costs against it.
On
the other hand, I keep in mind that the individual applicants have
incurred substantial costs in the Supreme Court of Appeal
and in
this Court. However, it seems that their cause was made possible by
the worthy and selfless support of the Nkuzi Land Rights
Legal Unit,
a public interest law firm. On the other hand, the individual
claimants enjoyed the support of the Department which
has made
common cause with them in the Supreme Court of Appeal and in this
Court. I consider it just and equitable that this Court
makes no
order as to costs.
Order
The
following order is made:
The
application for the condonation of the late filing of the
application for leave to appeal is granted.
The
executor in the deceased estate of the late Abram Maake, who was
the eighth appellant in the Supreme Court of Appeal, is substituted
in these proceedings as the ninth applicant.
The
executor in the deceased estate of the late Maselaelo Mosibudi
Maake, who was the ninth appellant in the Supreme Court of
Appeal,
is substituted in these proceedings as the tenth applicant.
The
application for leave to appeal is granted
The
appeal of the second applicant, the Popela Community, is dismissed
but the costs order of the Supreme Court of Appeal against
the
second applicant is set aside.
The
appeals of the first applicant and of the third to the eleventh
applicants against the decision of the Supreme Court of Appeal
are
upheld.
The
orders of the Land Claims Court and of the Supreme Court of Appeal
relating to the first applicant and to the third to the
eleventh
applicants are set aside in their entirety.
It
is declared that the third to the eleventh applicants were each
dispossessed of a right in land after 19 June 1913 as a result
of
past racially discriminatory laws and practices and that they are
accordingly entitled to restitution under section 2 and
the other
relevant provisions of the
Restitution of Land Rights Act 22 of
1994
.
No order as to costs is made.
Madala
J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde J, O’Regan J, Sachs J,
Skweyiya J and Van der Westhuizen J concur in the judgment
of
Moseneke DCJ.
For the Applicants: Advocate BS Splig SC instructed by the Nkuzi
Development Association, Land Rights Legal Unit and G Shakoane
instructed by the State Attorney, Johannesburg.
For the Respondent: Advocate GL Grobler SC instructed by Steytler
Nel and Partners.
1
Act 22 of 1994.
2
Section 25(5) of the Constitution states:
“
The
state must take reasonable legislative and other measures, within
its available resources, to foster conditions which enable
citizens
to gain access to land on an equitable basis.”
3
Section 38 of the Constitution states:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are—
. . .
(c)
anyone acting as a member of, or in the interest of, a group or
class of persons;
(d)
anyone acting in the public interest . . . ”
4
Popela Community v Department of Land Affairs
and Another
LCC 52/00, 3 June 2005,
unreported at para 4.
5
Id at para 61. However, in footnote 68 of the judgment, the Land
Claims Court held that it was “not established that the claimants
are part of, or members of, such a community.”
6
Section 4(3) of the Restitution Act provides for the appointment of
Regional Land Claims Commissioners who serve in designated
regions
under the Chief Land Claims Commissioner. Their powers and duties
are set out in section 6 of the Restitution Act. These
include
receiving claims for the restitution of rights in land; assisting
claimants in preparing and submitting claims; investigating
the
merits of the claims; mediating and settling disputes arising from
such claims; drawing reports on unsettled claims for submission
as
evidence to the Court; and presenting any other relevant evidence to
the Court.
7
By deed of transfer T3343/1889.
8
By
deed of transfer T27963/1963.
9
By
deed of transfer T10655/1987.
10
At some point in time, the farm Boomplaats was
subdivided and the remaining extent has been consolidated into the
farm Goedgelegen
566 LT.
11
Act 27 of 1913.
12
Act 18 of
1936.
13
Act 42
of 1964.
14
Government Gazette 2761 GN R1224, 31 July 1970
15
The full text of section 25(7) appears in para 48 below.
16
This is distinguishable from the case of
Alexkor Ltd and Another
v Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003
(12) BCLR 1301
(CC) at para 81 in which this Court found that the
indigenous law ownership possessed by the Richtersveld Community in
the subject
land had not been effectively extinguished prior to 19
June 1913, with the result that it survived beyond the
constitutional cut-off
date.
17
Id at para 40.
18
Id at paras 50-51.
19
2005 (6) SA 144
(SCA);
[2005] 3 All SA 528
(SCA).
20
Id at para 38. Reference to the “Act” and “statute” in the
quotation is made in relation to the Restitution Act.
21
2000 (2) SA 124
(LCC) at para 83.
22
Section 35(4) of the Restitution Act provides:
“
The
Court’s power to order the restitution of a right in land or to
grant a right in alternative state-owned land shall include
the
power to adjust the nature of the right previously held by the
claimant, and to determine the form of title under which the
right
may be held in future.”
23
Amended description of the land claimed filed by the claimants with
the Land Claims Court on 31 March 2003 ahead of the trial

proceedings.
24
Above n 16 at para 40.
25
Section 14 of the Restitution Act states:
“
(1)
If upon completion of an investigation by the Commission in respect
of specific claim—
. . .
(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
.
. .
(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 the Court.”
26
For a similar tabulation of the legislative requirements of section
2 of the Restitution Act see
Richtersveld
above
n 16
at para 19;
In re Kranspoort Community
above n 21 at para 21.
27
Section 2 of the Restitution Act states:
“
(1)
A person shall be entitled to restitution of a right in land if—
. . .
(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 . . . .”
28
Section 121(2) of t
he interim Constitution, 1993,
provided that:
“
A
person or a community shall be entitled to claim restitution of a
right in land from the state if—
(a)
such person or community was dispossessed of such right at any time
after a date to be fixed by the Act referred to in subsection
(1);
and
(b) such dispossession was effected
under or for the purpose of furthering the object of a law which
would have been inconsistent
with the prohibition of racial
discrimination contained in section 8(2), had that section been in
operation at the time of such
dispossession.”
29
Section 2 of the Restitution Act was amended by section 2(1) of Act
78 of 1996, substituted by section 3(1) of Act 63 of 1997 and
by
section 2 of Act 18 of 1999.
30
National Education Health and Allied Workers Union v University
of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 14-15. See also
Richtersveld
above n 16 at
para 23.
31
Section 1 of the Restitution Act defines a community as:
“
.
. . any group of persons 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.”
32
Induna is the head of a section of a community and is vested with
authority to decide traditional disputes.
33
Above n 4 at para 61.
34
Kgoshi is an overall leader or head of a community to whom izinduna
report.
35
Above n 21 at para 34.
36
Above n 19 at para 30.
37
Section 1 of the Restitution Act defines a right in land as:
“
.
. . 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 beneficial occupation for a continuous period
of not
less than 10 years prior to the dispossession in question”.
38
In relation to the consequences of forced removals on communities,
see Bundy “Land, Law and Power: Forced Removals in Historical
Context” in Murray and O’Regan (eds)
No Place To Rest: Forced
Removals and the Law in South Africa
(Oxford University Press,
Cape Town 1990) at 3.
39
This term is used evocatively by Dodson J in
In Re Kranspoort
Community
above n 21 at paras 44 and 48,
when referring
to forced removals that resulted in harrowing displacement and
homelessness.
40
De Jager v Sisana
1930 AD 71
at 81 and 83. See also Hathorn
and Hutchison “Labour Tenants and the Law” in Murray and O’Regan
(eds) above n 38 at 198-201.
41
Section 1 of The Land Reform (Labour Tenants) Act 3 of 1996 defines
a labour tenant as a person:
“
(a)
who is residing or has the right to reside on a farm;
(b) who has or has had the right to
use cropping or grazing land on the farm, referred to in paragraph
(a)
, or
another farm of the owner, and in consideration of such right
provides or has provided labour to the owner or lessee; and
(c) whose parent or grandparent
resided or resides on a farm and had the use of cropping or grazing
land on such farm or another
farm of the owner, and in consideration
of such right provided or provides labour to the owner or lessee of
such or such other
farm,
including a person who has been appointed a successor
to a labour tenant in accordance with the provisions of section 3(4)
and (5),
but excluding a farmworker . . . ”
42
See Hathorn and Hutchison above n 40 at 201 for a discussion on the
obligations of labour tenants in labour tenancy relationships.
43
See the definition of a “right in land” above n 37. It is not
contested and, if anything, it is clear from the evidence that
the
individual claimants lived on the farm Boomplaats for an
uninterrupted period of at least ten years before the dispossession
of land rights in 1969.
44
For this finding, the Land Claims Court relied on
Minister of
Land Affairs and Another v Slamdien and Others
1999 (4) BCLR 413
(LCC);
[1999] 1 All SA 608
(LCC) at paras 37-38;
Boltman v Kotze
Community Trust
[1999] JOL 5230
(LCC);
In Re Former Highlands
Residents: Naidoo v Department of Land Affairs
2000 (2) SA 365
(LCC) at 368G-369C.
45
The causation enquiry has two parts to it: “factual causation”
and “legal causation”. The first stage, or “factual

causation” enquiry, applies the
conditio
sine qua non
or “but for” test.
The test asks whether, but for the act or omission labelled as the
possible cause, the result would have
occurred. If the test does
not identify the act or omission as a necessary condition for the
result to occur, the enquiry ends.
However, if the act or omission
is a necessary condition, the second enquiry into legal causation
must be conducted. The second
enquiry seeks to ascertain whether
the cause identified is a legally recognised cause or whether there
is a sufficiently close
relationship between the two events so that
the former constitutes the legal cause of the latter. At this
stage, one adopts a
flexible approach that draws on reasonableness,
common sense, other relevant policy considerations and the facts of
the case.
See
Slamdien
above n 44 at para 38.
46
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 17;
S v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3)
SA 391
(CC);
1995 (6) BCLR 665
(CC) at paras 9 and 301-302;
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amici Curiae
)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at para 232.
47
(1985) 18 DLR (4th) 321.
48
Id at 359-360, where the Court held the following:
“
The
meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis of the
purpose
of such a
guarantee; it was to be understood, in other words, in the light of
the interests it was meant to protect. In my view,
this analysis is
to be undertaken, and the purpose of the right or freedom in
question is to be sought by reference to the character
and larger
objects of the Charter itself, to the language chosen to articulate
the specific right or freedom, to the historical
origins of the
concepts enshrined, and where applicable, to the meaning and purpose
of the other specific rights and freedoms with
which it is
associated within the text of the Charter. The interpretation
should be . . . a generous rather than a legalistic
one, aimed at
fulfilling the purpose of a guarantee and securing for individuals
the full benefit of the Charter’s protection.”
49
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC).
50
2001 (4) SA 551 (SCA).
51
Above n 49 at para 90.
52
Id.
53
Above n 16 at para 98.
54
Id at para 88.
55
Above n 13. Section 22 of the Bantu Laws Amendment Act provided for
the insertion of section 27
bis
in the Native Trust and Land
Act which read as follows:
“
(1)
Whenever the Minister considers it in the public interest to do so,
he may by notice in the
Gazette
declare that as from a date
fixed in such notice—
(a)
no further labour tenants’ contracts shall be entered into and no
further labour tenants shall be registered in respect of
land in the
area referred to in such notice; or
(b) no labour tenant shall be employed on land in the
area referred to in such notice.”
56
This report focussed on the historical and legislative aspects which
had an impact on the lives of labour tenants. The following
conclusions,
inter alia
, were arrived at:
“
It
can be concluded that government policy, throughout the years, were
focussed on the needs of white farmers. The abidence of
the labour
tenancy system can be clearly understood, as it offered a degree of
freedom to black people, who were increasingly restricted
by
legislation at the stage, as well as a way to secure a place for
living, while earning an extra income in cities, mines or towns.

The government lodged an increasing attack to abolish the labour
tenancy system after the 1970’s, although planning with regard
to
alternative refuge were not always in place. The farmers on their
side, were also reluctant to register labour tenants, as
many
farmers found
labour farms
quite profitable. As a result of
this, there [was] a constant flux of people evicted to these farms,
as well as Trust farms, only
to be evicted again at a later stage.”
57
The commission was prompted by calls for intervention by farmers,
appealing to the government to terminate the labour tenancy system
through legislation.
58
Section 30(2) of the Restitution Act states:
“
Without
derogating from the generality of the aforegoing subsection, it
shall be competent for any party before the Court to adduce—
(a)
hearsay evidence regarding the circumstances surrounding the
dispossession of the land right or rights in question and the rules
governing the allocation and occupation of land within the claimant
community concerned at the time of such dispossession; and
(b)
expert evidence regarding the historical and anthropological facts
relevant to any particular claim.”
59
See
Richtersveld
above n 16 at para 41 on the admission of
historical and archival material by a court.
60
Bundy above n 38 at 5.
61
Section 12 of the Native Trust and Land Act stated:
“
(1)
Except with the approval of the Governor-General—
(a)
no person other than the Trust or a native shall acquire land in a
released area from a native if such land be wholly surrounded
by
land held by natives or by the Trust, whether the last-mentioned
land is held individually or in communal tenure; and
(b) notwithstanding anything in section
eleven
or in any other law, no native shall acquire land outside a
scheduled native area from a person other than a native if such land
be wholly surrounded by land held by persons other than natives.”
62
Act 52 of 1951.
63
Hathorn and Hutchison
above n 40 at 195 describe the effect
of the
Natives Land Act of 1913 in the following
terms:
“
The
Natives Land Act 27 of 1913, which prohibited blacks from entering
into ‘any agreement or transaction for the purchase, hire
or other
acquisition from a person other than a native’ of land outside the
‘scheduled native areas’, did not immediately
affect the
position of labour tenants for it treated them as farm
labourers
who were expressly permitted to reside on white farms. Indeed, the
Act swelled the numbers of labour tenants for it forced many
cash
tenants and sharecroppers, whose way of life it destroyed, into
labour tenancy.”
64
The 1913 and 1936 Acts did not permit ownership
of land by black people outside scheduled areas. Non-scheduled
areas, which comprised
approximately 87% of the total surface area
of the country, were for exclusive occupation by white people.
65
Above n 21 at para 71.
66
Act 36 of 1966. Robertson “Dividing the Land: An Introduction to
Apartheid Land Law” in Murray and O’Regan (eds)
above n
38 at 125 explains the effect of the group areas legislation as
follows:
“
Group
areas land is doubly restrictive against Africans in so far as
ownership and occupation is concerned. This is because the
Act’s
implementation has excluded all Africans and because the 1913 Land
Act forbids Africans from holding any rights to land
outside those
set for them.” (Footnotes omitted.)
67
Above n 21 at para 72.
68
S v Mokgethi en Andere
1990 (1) SA 32
(A) at 40G-H. For
instance, in the context of the law of delict, Professor Boberg in
The Law of Delict
Vol 1 (Juta, Cape Town 1984) at 380,
writing about causation and remoteness of damage, highlights the
crucial relationship between
causation and liability:
“
In
the morass of controversy that surrounds this element of liability,
the only two propositions on which there is complete unanimity
shine
like beacons in the darkness. These are: (a) the defendant is not
liable
unless
his conduct
in fact
caused the
plaintiff's harm; and (b) the defendant is not liable
merely
because
his conduct in fact caused the plaintiff's harm — such
liability would be too wide, and some means of limiting it must be
found.
Thus factual causation is a necessary but not a sufficient
condition of liability. It is the test of factual causation and the
method of limiting liability that are controversial.”
69
“Bywoners” were regarded as white labour tenants.
70
Pretoria City Council v Walker
[1998] ZACC 1
;
1998
(2) SA 363
(CC);
1998 (3) BCLR 257
(CC) at para 43. See also
Richtersveld Community and Others v
Alexkor Ltd and Another
2003 (6) SA
104
(SCA);
2003 (6) BCLR 583
(SCA) at paras 103-105.
71
National Education Health and Allied Workers Union
above n 30
at paras 30, 34 and 35.
72
Section 35 of the Restitution Act states:
“
(2)
The Court may in addition to the orders contemplates in subsection
(1)—
(fA)
make appropriate orders to give effect to any agreement between the
parties regarding the
finalisation
of the
claim.”
60