Salem Party Club and Others v Salem Community and Others (CCT26/17) [2017] ZACC 46; 2018 (3) BCLR 342 (CC); 2018 (3) SA 1 (CC) (11 December 2017)

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[2017] ZACC 46
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Salem Party Club and Others v Salem Community and Others (CCT26/17) [2017] ZACC 46; 2018 (3) BCLR 342 (CC); 2018 (3) SA 1 (CC) (11 December 2017)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 26/17
In the matter between:
SALEM PARTY
CLUB
First Applicant
LINDALE
TRUST
Second Applicant
HENDRIK JOHANNES
NEL
Third Applicant
CUAN
KING
Fourth Applicant
JONATHAN GOTTFRIED STANDER
AND MARIA PAULINA
STANDER
Fifth Applicants
DAVID CRAWFORD
GOWANS
Sixth Applicant
WILLEM CHRISTIAAN LODEWYK
SCHOONBEE
Seventh Applicant
EZRA CHRISTIAAN
SCHOONBEE
Eighth Applicant
KIKUYU
LODGE
Ninth Applicant
JONATHAN FLETCHER
HARRIS
Tenth Applicant
PATRICK GRANT
BRADFIELD
Eleventh Applicant
E S A LODGES (PTY)
LIMITED
Twelfth Applicant
SEVEN SUMMITS PROPERTY
INVESTMENTS (PTY)
LIMITED
Thirteenth Applicant
KENNETH JAMES SEYMOUR
RICHARDSON
Fourteenth Applicant
VARYLYNN SHARRON
HILL
Fifteenth Applicant
PHILLIP GEOFFREY
AMM
Sixteenth Applicant
PATRICK GRANT
BRADFIELD
Seventeenth Applicant
and
SALEM
COMMUNITY
First Respondent
GOVERNMENT OF THE REPUBLIC
OF SOUTH
AFRICA
Second Respondent
MINISTER OF RURAL
DEVELOPMENT
AND LAND
REFORM
Third Respondent
DEPARTMENT OF RURAL DEVELOPMENT
AND LAND
REFORM
Fourth Respondent
CHIEF DIRECTOR OF THE DEPARTMENT
OF LAND
AFFAIRS
Fifth Respondent
PROVINCIAL OFFICE OF THE DEPARTMENT
OF RURAL DEVELOPMENT AND LAND
AFFAIRS
Sixth Respondent
MAKANA
MUNICIPALITY
Seventh Respondent
REGISTRAR OF
DEEDS
Eighth Respondent
LAND CLAIMS COMMISSION, EASTERN
CAPE
Ninth Respondent
and
ASSOCIATION FOR RURAL
ADVANCEMENT
Amicus Curiae
Neutral citation:
Salem Party Club and Others v Salem Community and Others
[2017]
ZACC 46
Coram:
Zondo
DCJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ,
Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi
AJ
Judgments:
Cameron J (unanimous)
Heard on:
8 August 2017
Decided on:
11 December 2017
Summary:
Land — Land reform — Claim for restitution of rights
in land — Claim by community in terms of section 2(1)(d) of
Restitution of Land Rights Act 22 of 1994
— Rights in land —
Meaning of — Includes beneficial occupation, labour-tenancy,
customary interest — Generous
interpretation employed —
Exclusive ownership not required — Existence of parallel rights
recognised
Land — Land reform — Claim
for restitution of rights in land — Dispossession —
Meaning of — Subdivision
of land through Court Order — No
consultation with inhabitants — Constitutes dispossession
Land — Land reform — Claim
for restitution of rights in land — Admission of evidence in
terms of section 30(1)
and (2) of the Restitution Act — Expert
and historical evidence — Evidence assessed using ordinary
rules
Land — Land reform — Purpose
of Restitution Act — Recognition of rights of landowners
ORDER
On appeal from the Supreme Court of
Appeal (hearing an appeal from the Land Claims Court), the following
order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
CAMERON J
(Zondo DCJ, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ,
Madlanga J, Mhlantla J, Theron J and Zondi AJ
concurring):
Introduction
[1]
This is an application for leave to appeal against a judgment
of the Supreme Court of Appeal,
[1]
confirming by a majority a judgment of the Land Claims Court.
[2]
At issue is a contested claim to the Salem Commonage.  This
is a tract of land that in 1836 and 1847 two Governors
at the
Cape Colony (Cape), Sir Benjamin D’Urban and Sir Henry
Pottinger, allocated in two deeds of grant to the Salem Party
of the
1820 Settlers (Settlers).  The claimants are said to be the
descendants of persons living on the Commonage in
1940, when a
judgment of the then Supreme Court in Grahamstown
[3]
divided the Commonage and apportioned most of it among the Settlers’
successors.  For both the claimants and the landowners
–
the Settlers’ successors, who resist the claim – the ties
of history and emotion to this land lie deep.
[2]
By any urban and most agricultural standards, the area of land
at issue is enormous: some 66 square kilometres in extent.
[4]
The Commonage, through which the Assegai River runs, is located in a
region the Dutch-speaking farmers who settled in it
during the late
18
th
century called the Zuurveld.  It is a 5 000
square kilometre
area between the Great Fish River to the
north and the Bushman’s River to the south in which bitter and
violent racial wars
were fought as white colonial domination was
established.  The claimants’ and landowners’
contentions before us
are an integral product of that fraught
history.
Parties
[3]
The first applicant is the Salem Party Club, a voluntary
association with legal capacity that governs the recreational
facilities
in Salem, a settlement near Grahamstown in the Eastern
Cape.  These include a tennis club, cricket club, two churches
and
a community hall.
[5]
The Club and the individual landowners were the eighth to 24
th
defendants in the Land Claims Court.
[4]
The first respondent is the Salem Community
(Community/claimants).  It comprises some 152 persons
claiming to be
descendants and beneficiaries of black people who,
they say, occupied the Commonage, but lost their rights to it when
they were
dispossessed.
[6]
The Community and their descendants comprise a total of 1 170
beneficiaries in 378 households.  They assert
indigenous
ownership of the farm Salem No. 498 on the basis of
dispossession of a right in the land through past discriminatory
laws
and practices between 1947 and the 1980s.  After the claim was
instituted, the owners of certain properties agreed to
settlements,
under which their properties were restored to the Community and they
received compensation.  The remaining landowners
are before this
Court as applicants.
[5]
The second to ninth respondents are government bodies with
interests in the claim.
[7]
The ninth respondent is the Land Claims Commission, Eastern Cape
(Commission), which investigated the merits of the claim
and
recommended restoration of the land to the claimants.  It is the
only government body that has actively participated in
this
litigation.
Condonation
[6]
The claimants’ written submissions were filed one day
late.  There was no prejudice and the landowners did not oppose

condonation, which is granted.
Background
[7]
The claimants sourced their statutory right in traditional
rights in the land they said arose before 1812.  The claimants
sought
to establish in the Land Claims Court that their
ancestors had travelled through the area in which Grahamstown was
later
established and settled on the disputed land there as a
community of amaXhosa under the traditional authority of Dayine.
[8]
This is said to have taken place before Grahamstown was established
as a military outpost during the Fourth Frontier War
of 1811 to
1812.  Mr Nsele Nondzube, one of the claimants, testified
that his grandfather described the Community’s
arrival in Salem
to him from personal recollection.
[8]
The experts who testified for the respective parties agree
that isiXhosa-speaking people occupied the Zuurveld before any
European
settlers arrived.
[9]
The Dutch colonised the Cape under the Dutch East India Company in
1652.  In 1780, the Dutch declared the Great Fish
River as the
Cape’s boundary.  The Great Fish River runs east through
the northernmost portion of the Zuurveld and then
south for the
extent of the Zuurveld’s eastern boundary.
[9]
In 1780, a Dutch-speaking settler, Barend Bouwer, occupied a
loan farm to the north of what would become Salem.  He reported

to the Burgher Military Council that isiXhosa-speaking people were
“unlawfully” occupying land to the north-west.

Bouwer occupied the land for at least five years, though there is no
record of when he left.
[10]
Between 1780 and 1807, amaXhosa and white colonists, Dutch and
British, fought three frontier wars in the Zuurveld.  In 1795,

as a result of the Napoleonic wars in Europe, the British annexed the
Cape.  The Cape reverted briefly to the Dutch, under
the
Batavian Republic, between 1803 and 1806, but returned to British
rule and occupation in 1806.
[11]
In 1807, the chief and former regent of the amaXhosa, Ndlambe,
moved into the Zuurveld after his nephew, King Ngqika, defeated him.

The parties’ experts differed on whether Ndlambe considered
himself to have a proper claim to the Zuurveld (because he ranked

junior to and was under the authority of Ngqika), and whether, if he
did, this would affect the rights of isiXhosa-speaking people
living
in the Zuurveld at the time.
[12]
It is in this period that the claimants say their ancestors
arrived in Salem and resided there under the leadership of Dayine.

The landowners vigorously disputed the reliability of Mr Nondzube’s
testimony because, by simple generational computation,
he could not
have had a living ancestor who had witnessed and recounted to him
events of nearly two hundred years before.
[13]
In 1811, disputes between isiXhosa-speaking people and the
colonists came to a head in the Fourth Frontier War.
[10]
The result was a horrific and brutal clearing of all amaXhosa from
the Zuurveld.  Men were killed; women and children
taken
hostage.  All villages were burnt.  Farmlands were trampled
by oxen.  The population of amaXhosa retreated
north beyond the
Fish River.  In April 1819, isiXhosa-speaking warriors launched
an attack on Grahamstown.  It was repelled.
[14]
The British government in 1820 determined that the Zuurveld
would be a buffer zone.   Its design was to fill the
area with British settlers.  One group of these settlers, the
Sephton Party, came to establish itself on the land, which the
group
called Salem.
[15]
Between 1812 and 1857, two notable interactions between the
Salem Settlers and isiXhosa-speaking people are recorded.  The
first was during the Seventh Frontier War in 1847.
IsiXhosa-speaking people agreed not to attack Salem after negotiating
with two of the Settlers.
[11]
The second was in December 1850, when a group of settlers on patrol
was ambushed by isiXhosa-speaking people.
[16]
In 1857, the prophetess Nongqawuse is said to have foretold
that, if amaXhosa killed their cattle and destroyed their food
stocks,
they would be rewarded with fat new cattle and abundant
grain, and would be able to drive the white people into the sea.
[12]
The result was catastrophic.  Thousands of people died of
starvation.  The population of amaXhosa in its entirety
is
estimated to have dropped from 105 000 to fewer than 26 000.
Survivors for the first time sought employment
from white settlers –
including in Salem.
[17]
It is in and after this period that the claimants say that
their ancestors, having been dispossessed of their land a
half-century
before, moved back to Salem.  The white inhabitants
of Salem began to employ black people to work on their farms, both
seasonally
and permanently.  Employees lived either in houses
constructed on the farmers’ erven or on the Commonage.
The
first three black inhabitants on the Commonage were recorded in
December 1877.  They were situated on what was to become the

Salem “location”, an approximately 12 acre portion
of land within the Commonage.
[18]
The first recorded act of the Salem Village Management Board –
which comprised the property owners who had rights in the Commonage
–
was in the same year.  By June 1884, the Inspector of Native
Locations recorded 130 black people living on the Commonage.

They lived in 24 huts, with 70 cattle.  Later that year, the
Inspector noted that the management of the Commonage was no longer

his concern, and that it was under the jurisdiction of the Board,
which had taken over its management.
[19]
On 19 June 1913, the Natives Land Act 27 of 1913 came into
effect.  It prohibited black people from acquiring title to land

outside “native” areas, which amounted to less than 13%
of the land surface of South Africa.  It is this date
that the
Constitution pegs in recognising dispossession that affords
entitlement to restitution.
[13]
[20]
In June 1917, the Board promulgated the Salem Village
Management Board Location Regulations
[14]
(Regulations).  These enabled any person over 18 seeking to live
on the Commonage to apply to the superintendent for a “site

permit”.  Issue of permits was not restricted to only
those employed by landowners, though the original regulations

provided that every permit-holder “or other resident in the
location” was “obliged to satisfy the superintendent
of
the manner in which he obtains his livelihood”.  This
regulation was amended in 1919 to add the condition that the

obligation to satisfy the superintendent existed only “if
requested on reasonable grounds to do so.”
[15]
This attenuated the superintendent’s power to control black
inhabitants in Salem on grounds that they were not employed.
[21]
The landowners urged that the regulations evidenced the extent
to which the Board exercised control over the Commonage.
[22]
The Regulations were restrictive.  The residents were
required to pay quarterly rent to the Board and could be ejected for
failure to do so after three months.
[16]
The Regulations provided:
“All
dwellings shall be deemed to be the property of the Board, provided
that on any holder of a ‘site permit’
being ejected
through its cancellation, or leaving the location voluntarily, he
shall be paid the then value of the dwelling to
be assessed by three
arbitrators. . . .  No ‘site permit’ shall be
transferred except with the permission of the
superintendent.”
[17]
Although the Regulations permitted
24-hour visits without a permit, visitors had to “report
themselves to the superintendent
within three hours after
arrival”.
[18]
[23]
It is common cause that a location was formally established
only in 1921.  However, by June 1921, a committee appointed by
the Salem allotment holders reported that the location was “a
nuisance” and was not being used for the purpose originally

intended.  The view was taken that employers should rather house
their employees on their individual properties.
[24]
The white inhabitants of Salem were generally dissatisfied
with the use and management of the Commonage.  Some farmers were

leasing portions of the Commonage to outsiders for grazing purposes,
and the other owners were worried about interbreeding of stock.

They were also having difficulty dipping their cattle for ticks and
other insects because of the distance that cattle would travel
away
from their farms.  The minutes note that “[m]embers of the
Community have been allowed to graze large herds of
stock, free of
charge to the Board while others have been charged grazing fees for
their bona fide Native servants’ stock.”
This
indicates that the black inhabitants of Salem were using the
Commonage to graze their cattle.
[25]
In 1926, there were 10 huts recorded in the location.
The records show a decrease in the number of huts, but a steady
increase
in the number of “natives” recorded as living in
Salem.  In its Health Report for the year ended 30 June 1933,

the Board recorded “a small native location of some half dozen
huts as the natives reside on their masters’ private

properties”.  In 1931, only 10 families were reported to
be living on the Commonage, and all were recorded as employees
in
Salem.  There is no indication of anyone living in the location
after 1933.
[26]
By 1940, the landowners of Salem had formed a committee under
the chairmanship of Mr L B Gardiner.
[19]
Its objective was to subdivide the Commonage.  Mr Gardiner
applied to the High Court to have the two portions of Commonage

granted in 1836 and 1847 consolidated and subdivided amongst the
Settlers.  At this point, archival evidence indicates there
were
approximately 450 black people living on the land.  On
8 August 1940, the Grahamstown Supreme Court granted
an
order confirming that the Administrator’s consent having been
obtained, the Commonage could be subdivided amongst the
Settlers.
[27]
Following the order for subdivision, the Native Commissioner
made a special visit to Salem.  He recommended the
disestablishment
of the location.  He noted that the “[n]ative
population of the village is about 500, of whom about 50 work as
servants.
These servants live on the premises of their
employers, and on the present Commonage which is privately owned.”
The
Salem Location was officially disestablished on 14 November 1941.
[28]
The transfer of the Commonage land to the “Salem Party
of Settlers” through deed number 25712 was effected on 29
December
1947.  The claimants assert this moment as the
beginning of the dispossession of their rights in land.  The
subdivided
plots were distributed amongst the individual landowners
of Salem beginning in April 1948.
Litigation history
[29]
The claimants lodged their claim under the Restitution of
Land Rights Act
[20]
(Restitution Act).  The land they claim, fully described as the
“remainder of the farm 498 and portions 1, 2, 3, 7,
8, 13 to
17, 19 to 33, 35, 36 and 38 of the farm Salem No. 498, district of
Albany”, is currently registered in the names
of the landowners
and the Club.
[30]
For their claim to succeed, the claimants had to establish
that (1) they were a community; (2) that held a right
in land; (3) of which they were dispossessed; (4) through
racially discriminatory laws or practices; (5) after 19
June
1913.
[21]
The Land Claims Court and a majority in the Supreme Court of
Appeal concluded that the claimants had proved these elements
and
upheld their claim.  The landowners urge this Court to overturn
those findings.
Land Claims Court
[31]
The claim was lodged in December 1998.
[22]
In November 2002, the claim was published by the Commission in
the Government Gazette
[23]
as the Restitution Act requires.
[24]
In June and July 2003, Mr Vincent Xhuba Paul, project officer
for the Commission, conducted interviews with the Community,
and made
findings for his research report.  The Commission referred the
claim to the Land Claims Court in June 2010.
[32]
The landowners filed their response in March 2011.  Their
defence raised procedural issues, but also asserted that the Settlers

were awarded individual and collective rights over the Commonage that
they exercised so as effectively to preclude any other groups
from
acquiring rights over the Commonage.  The claimants’
ancestors lived on the Commonage only “on the basis
of
individual employment agreements with owners”.  General
habitation of the Commonage by black people was strongly
denied.
The only persons living on the Commonage were “a small number
of farm workers with their families” who
were there by the
grace of their employers, the landowners.  The claimants’
rights, if any, were “limited only
to the keeping of small
numbers of livestock and cultivation of small patches of land”.
[33]
After the landowners’ initial response, the claimants
filed their statement of claim.  In it, they asserted that their

forebears “traditionally occupied the land as far back as the
1800s but the property was later transferred to various members
of
the [w]hite group.”  The claimants said they constituted
about 500 people who occupied the location on the Salem
Commonage
before it was disestablished.
[34]
The landowners filed an amended response in which they said
that the Court should take into account the fact that the claimants
had already received restoration of large tracts of the Commonage.
In view of this, any further redress should be monetary.
[35]
The parties agreed to defer the question of the feasibility of
restoration.  In the result, what was at issue in the Land
Claims
Court was solely the validity of the claim.
[25]
[36]
At the Land Claims Court hearing,
the
claimants
claimed to have lost ownership, residence, grazing, use of land for
agricultural purposes, access to firewood, burial
sites, cropping,
and use of the Commonage land.
[37]
The claimants called two witnesses – Mr Nondzube, who
recounted his grandfather’s story of arriving in Salem before
1812, and Mr Mndoyisine Ngqiyaza.  Mr Ngqiyaza was born in
the location in Salem.  He testified that, before the

subdivision, his father was a subsistence farmer on the Commonage,
but that he was forced to seek employment with Mr Bradfield

after the subdivision.  The Land Claims Court found both these
witnesses to be “honest and credible”.
[26]
[38]
The Commission called three witnesses – Mr Paul, the
Commission’s researcher at the time the Salem claim was
investigated;
Professor Martin Legassick, an expert in 19
th
century South African history; and Mr Garthford Chandler, an expert
in surveys and mapping.  It furnished extensive details
of the
history of the land before 1913.  Mr Paul testified that the
portions of land granted to the settlers in Salem were
already
occupied by the “native community”.
[27]
He considered the imposition of a hut tax to be an indication
that black people had the right to be present in Salem.
[28]
The dispossession of land flowed from the Natives (Urban Areas)
Act
[29]
because it failed to recognise that more than one community could be
resident on the same land.
[30]
[39]
Professor Legassick testified on the nature of the Zuurveld as
part of a frontier zone when the 1820 settlement took place.

This precluded it from having a single clear authority.
AmaXhosa were clearly present on the land before white settlers,
but
even after white settlers occupied the land, the authority over the
land was still contested for decades as amaXhosa warriors
continued
to assert their rights.
[31]
His view was that amaXhosa acquired indigenous rights over the
Commonage before the settlers arrived in Salem in 1820; the

legislation and regulations in force between 1870 and 1940 allowed
them to build up legal rights; it was a question of common sense,
not
law; that a “community” existed on the Commonage; the
interpretation of laws and regulations were questions of
grammar, not
law; and the legal rights of black people living on the Commonage
were violated because the Community was not consulted
about the
subdivision of the Commonage or the disestablishment of the location,
which constituted a racially discriminatory practice.
Professor
Legassick said history is recorded to “relegate the dominated
to the shadowy status of people without a history”.
[32]
[40]
Mr Chandler and the landowners’ expert, Mr Adie Gerber,
were able to agree that there was evidence of traditional dwellings

along the Assegai River, with close connections to the commercial
farming areas and the Commonage.  From this, the experts
agreed,
one could infer that the dwellings may have been occupied by farm
workers – but they qualified this by saying that
they could not
“infer from photography whether the occupants of the dwellings
[were] farm workers or not.”
[33]
[41]
The landowners strongly assailed the credibility of the
claimants’ oral evidence, which, they said, is contradicted by
archival
evidence.
[34]
They asserted that any rights the claimants’ ancestors might
have held before 1811 would have been extinguished by
the Fourth
Frontier War in 1811-1812.  They questioned the
Commission’s reliance in the hearing on indigenous title,
when
the referral invoked the existence of a location housing black people
only from 1921.
[35]
[42]
The landowners called two witnesses who had grown up in Salem
– Mrs Ethel Phyllis Page (formerly van Rensburg) and Mr Albert

Alexander van Rensburg, her brother.  Both testified that they
had neither seen nor heard of black people residing in the

Commonage.  The Land Claims Court regarded this as “improbable”
and “startlingly different from the documentary
evidence”.
[36]
[43]
The landowners called Professor Hermann Giliomee, an historian
specialising in the 19
th
century history of the Eastern
Cape frontier.  Professor Giliomee’s conclusions were
“diametrically opposed”
to those of
Professor Legassick.
[37]
Professor Giliomee’s view was that there were no grounds
supporting the claimants’ assertion of indigenous
title.  He
considered Professor Legassick’s views not to be an
objective account of primary sources.  In his
view, it was clear
that even if there had been occupation of the Zuurveld by
isiXhosa-speaking people, they never asserted a right
in land as a
political entity.  And there is no evidence that an autonomous
community of black farmers – an “African
peasantry”
– emerged in Salem from the late 19
th
century
onwards.  He pointed out that a large number of black people
settled on alienated Crown land or the farms of absentee
landlords
making a living as labour tenants who “lived from the land
[and] sold their produce, occasionally providing
seasonal labour to
the farmers, but not working fulltime on a farm”.  So, in
the vicinity of Salem, the farmers were
likely to have permitted
their labourers to graze their stock on the Commonage.  But he
emphasised the absence of any reference
to black farmers in any
capacity other than as wage labourers and labour-tenants, who
received cattle as a supplement to, or in
place of, wages.  Labourers
were allowed to graze their cattle on the Commonage, but he
considered it improbable that they
could have “built up”
rights as Professor Legassick suggested.  Indeed, he viewed the
documentary evidence as
suggesting the opposite.
[44]
In determining whether a community existed, the Land Claims
Court described the Restitution Act’s threshold as
“deliberately
low”.
[38]
It found that there were shared rules and practices, and that the
right to use the Commonage was held communally.
[45]
The Land Claims Court followed this Court’s decision in
Goedgelegen
[39]
in determining whether the dispossession was “as a result of”
past racially discriminatory laws or practices.
This, it
said, should be less restrictive than the common-law test for
causation.  It is necessary only that the dispossession
was a
consequence of the discriminatory law or practice in question, and
not that it arose solely from that discriminatory law
or
practice.
[40]
[46]
The Land Claims Court held that the 1940 decision by the
Grahamstown Supreme Court to consolidate and subdivide the Commonage
land,
without consideration of the black people who were living on
it, was a racially discriminatory practice.
[41]
It consequently granted a declaratory order that the Community was
dispossessed of a right in land after 19 June 1913 as
a result of
past racially discriminatory laws and practices, with no order as to
costs.
Supreme Court of Appeal
[47]
Despite clear agreement on the majority of the factual issues
and the nature of the evidence to be admitted, there was pronounced

disagreement between the majority and the minority in the Supreme
Court of Appeal.  This seemed to rest almost entirely on
the
weight to be attached to the evidence in the light of the
requirements of the Restitution Act.
[48]
The minority found that the claimants failed to establish that
any black people or other community occupied the Commonage before
the
settlers arrived in 1820.  It found that the earliest evidence
of black presence in the Commonage was from 1878 –
that is,
58 years after the settlers’ arrival.
[42]
The minority noted that the parties’ land surveyors observed
that in 1942 (five years
before
the dispossession allegedly
began) there were 48 African dwellings, of which 26 were on the
Commonage.  The most plausible
inference was that most or all
the occupants of the 26 dwellings were farm labourers, or possibly
labour-tenants, rather than members
of an independent, autonomous
community unconnected to the landowners.
[43]
[49]
The minority rejected as vague, confusing, and contradictory
the Community’s claims of rights they exercised over the
Commonage,
the rules under which access to the land was determined,
how and when the dispossession took place, and the racially
discriminatory
practice or laws that resulted in dispossession.
[44]
It described Mr Paul as “argumentative and evasive”
[45]
and his investigation as “very superficial”.
[46]
It rejected, in strong terms, the evidence of all the witnesses
called by the claimants and the Commission.  Professor

Legassick’s opinion on the material questions of law was found
to be inadmissible.
[47]
The minority ultimately concluded that no black people occupied the
Commonage before 1820, and that there was no evidence
that those
amaXhosa whom the British forcibly expelled from the Zuurveld in 1811
returned to the Zuurveld and occupied any part
of Salem Village or
the Commonage at any time thereafter.  They thus lost any
indigenous title to land they might have had.
[48]
[50]
The minority found that the landowners’ communal title
to the Commonage, on the basis of the Governors’ deeds of
grant,
was incompatible with the exercise of any indigenous rights by
any other community.
[49]
On the
Goedgelegen
test, the claimants had failed to establish
that they were descendants of a community as contemplated in the
Restitution Act.
Their forebears as a fact never “held”
the land in common.
[50]
In fact, the evidence showed that the black people who lived on the
private erven and on the Commonage did so because they
were employed
and not as members of an independent community.
[51]
The judgment characterises rights as something to be bestowed
by an authority; hence the absence of authority was decisive.
In
any event, there was no clear evidence of dispossession within the
meaning of the Restitution Act.
[52]
[51]
On this basis, the minority rejected the contention by counsel
for the claimants that the community on the Commonage exercised a

system of ownership in parallel with the landowners.
[53]
It doubted whether such a parallel system could exist in our law and,
if it could, found that the Salem Party’s ownership
in any
event extinguished any potential parallel title.
[54]
[52]
Finally, the minority found that the claim was not properly
lodged and should fail for this reason too.
[55]
The minority would have upheld the appeal and dismissed the
Community’s claim.
[56]
[53]
The majority disagreed.  It approached the claim as
founded on occupation of the land for a continuous period of more
than
10 years after June 1913,
[57]
and found sufficient evidence to conclude that a “community”
of indigenous people occupied the Commonage from the late
1870s to
the late 1940s.
[58]
The evidence established that, after the Fourth Frontier War in 1811
to 1812, amaXhosa indeed never regained general administrative

authority over the Zuurveld area.  Yet there was no evidence
that the Board itself gained control over the Commonage.
Quite
the contrary, the Salem landowners consistently expressed discontent
and uncertainty as to its control and management.
[59]
[54]
Although the Regulations prohibited settlement on the
Commonage, its open occupation by black people was never policed or
curtailed.
[60]
The need to establish a “Native Location”, and the
promulgation of “location regulations” in 1919,
[61]
indicated that the Community’s ancestors lived on the
Commonage.
[62]
Evidence showed that the Board was aware of inhabitants of the
Commonage and was unsure itself of its jurisdiction over the

Commonage outside of the location.  It also shows that the
black people did not live on the Commonage by the landowners’

consent – for there was no legal basis on which they could
consent.
[63]
[55]
The majority considered that the landowners’ argument
mistook the proper approach to land claims and the spirit of the
Restitution
Act.  The fundamental principle is that the
existence of rights, their nature, and whether they should be
restored is not
assessed according to the laws prevailing at the time
of occupation.  The determination is within the current land
restitution
legal framework.  For obvious reasons, the black
community living on the Commonage could have no rights within the
laws of
that time.  Yet the evidence shows the existence of a
community, even though it was conveniently invisible, save as a
source
of labour and other benefits derived from its members’
skills.
[64]
These, the majority said, are the very injustices that the
Restitution Act is designed to remedy.  The fundamental spirit

and purpose of the statute is “to restore the dignity of people
who suffered the shame of being caused to be pariahs from
their
homes.”
[65]
[56]
The majority took the view that the evidence of Professor
Legassick and Mr Paul accorded with logic and probabilities and
was
based on the very records from which the Court was entitled to
draw its own conclusions.
[66]
[57]
It was evident from the archival records that, apart from
their financial obligations to the Board, the black people on the
Commonage
were left to regulate their own lives.  They decided
(on their own): where each family would settle within the Commonage;
which piece of land each family would plough; where to graze their
cattle; where they would bury their dead; where they would access

wood and water; and where they would perform their customary rituals.
These were the different facets of their beneficial

occupation.  And in it they were guided by their traditional
laws and custom.
[67]
[58]
The majority held that the documented history supports the
contention that, as in all African communities, there must have been
a traditional leadership structure on the Commonage.
[68]
Features of the Commonage Community’s life – such as an
established orderly settlement pattern, common traditional
practices,
pooling of resources for farming purposes, economic activity, and a
leadership structure – demonstrate that the
occupants of the
Commonage were an established community as envisaged in section 2
of the Restitution Act, with or without
a chief.
[69]
[59]
The evidence demonstrated that the Commonage was intended to
serve as a public resource.  Ignoring this would defeat the
purpose
of the Restitution Act.
[70]
[60]
Finally, the majority found that the dispossession was
patently racially discriminatory.  The failure to consult or in
any
way take the interests of the Community into account, and the
process that forced hundreds of black people away from their homes
on
the Commonage for the benefit of 25 white farmers, was crude and
racially discriminatory conduct.  The 1940 Grahamstown
Supreme
Court order “could not cleanse the dispossession of its
racially discriminatory nature”.
[71]
In the result, the majority dismissed the appeal with costs
.
[72]
Leave to appeal and jurisdiction
[61]
At the heart of the parties’ contest lies section 25(7)
of the Bill of Rights,
[73]
which entitles “[a] person or community dispossessed of
property after 19 June 1913 as a result of past racially
discriminatory
laws or practices” to either restitution or
equitable redress, to the extent provided by an Act of Parliament.
That
Act is the Restitution Act.  Its interpretation and
application raise constitutional issues.  That gives this Court

jurisdiction.  In addition, the claim and the landowners’
resistance to it raise significant issues.  What is our

history?  How does the Constitution enjoin us to understand it?
And how practically do we realise justice in the light
of our
history?  The decisions of the Land Claims Court and Supreme
Court of Appeal give rise to reasonably arguable questions
of law.
And the order the Land Claims Court granted, and the Supreme Court of
Appeal upheld, may be over-extensive in their
ambit.  Leave to
appeal must be granted.
Amicus
[62]
The Association for Rural Advancement was admitted as a friend
of the court (amicus curiae).  It made written and oral
submissions
disputing that indigenous title was extinguished through
conquest, as well as on intertemporal law (whether one applies the
law
valid at the time of events in issue, or contemporary law) and on
the approach to hearsay evidence under the Restitution Act.
Approach to historical evidence and
interpretation
[63]
Reliance on expert testimony is a common feature in
adjudication.  Courts routinely rely on experts in fields from
medicine
to sociology to clarify issues and to understand
complexities in evidence.  This has its dangers when a court
seeks clarity
on facts.  There are limitations to the capacity
to determine a fact with sufficient certainty on the basis of
opposing experts’
views.  But there is an added rawness to
the interpretation of history, especially in the context of rights in
land, and an
added difficulty for judges in coming to an
understanding of historical truths.  For the law is obliged to
provide finality
by interpreting historical events “where
finality, according to the professional historian, is not
possible”.
[74]
[64]
Here, we have to consider what it means to have a case built
partially on oral history,
[75]
with different recollections of grazing procedures and with numbers
that sometimes don’t quite tally.  Do we expect
uniform
historical accounts of things that are said to have happened more
than 150 years ago?
[65]
The Supreme Court of Canada in
Delgamuukw
recognised
this difficulty in determining aboriginal rights which, similarly,
often requires oral history.
[76]
Lamer CJC noted that “[t]he difficulties with the
features of oral histories is that they are tangential to the
ultimate
purpose of the fact-finding process at trial – the
determination of historical truth”.
[77]
Oral history is not only concerned with historical facts, but also
the values and convictions of the community it recollects.
[78]
Lamer CJC continues:
“Notwithstanding
the challenges created by the use of oral histories as proof of
historical facts, the laws of evidence must
be adapted in order that
this type of evidence can be accommodated and placed on an equal
footing with the types of historical
evidence that courts are
familiar with, which largely consists of historical documents.”
[79]
[66]
The Land Claims Court relied partly on witnesses’
factual accounts of the Community’s history, but also on the
expert
historians’ views of this history.  The often
acrid conflicts between Professor Legassick and Professor Giliomee,

the historians for respectively the Commission and the
landowners, starkly illustrate the fractures in determining how our

history should be understood.  Both were prominent, accomplished
and distinguished academicians.
[80]
Their approaches to the same historical materials differed
radically.  Though Professor Giliomee suggested that Professor

Legassick approached the sources with a view to attaining a
particular goal or outcome,
[81]
it would be unfair not to record that this, to the extent that it
implies an attribution of normative preconception to the assessment

of historical sources, was true also of Professor Giliomee’s
evidence.
[67]
Professor Giliomee himself rightly noted that “no
historian is free from a particular theoretical and ideological
approach”.
And his own testimony was laden with the
insistent assertion that the claimants could not and did not acquire
rights in or over
the Commonage.
[82]
That deduction was a normative conclusion – one
inescapably requiring the attribution of value or judgment –

for the Court, and not the experts, to draw from the established
historical facts in the light of the Constitution and the Restitution

Act.
[68]
There is no Archimedean point from which history can be
understood, interpreted or written, outside one’s own time,
material
circumstances or social allegiances.  That is true of
all judgements.  This does not mean that history, or other
normative
judgements, including judicial determinations, become a
free-for-all of subjective interpretation.  It merely serves to
enjoin
scrupulous care in acknowledging and taking responsibility for
one’s own ideological positioning within the disciplinary
constraints and commitments of one’s craft.  This Court
has explicitly acknowledged that this is true of its own
judgments.
[83]
The normative value system our courts are required to adhere to
and expound is that embedded in the Constitution.
[84]
Interpreting and applying this value system, too, requires care in
owning up to one’s own predispositions and preconceptions.
[69]
So understanding history, like adjudication, is a necessarily
value-laden task.  This does not free us from the constraints
of
the evidence in seeking the truth or truths the materials and sources
yield.  We are guided by the Restitution Act, together
with the
usual techniques available to any court in assessing expert
evidence.
[85]
[70]
The Restitution Act foresees some of this complexity.  It
requires courts to “admit any evidence” they consider

relevant and cogent to the matter even if it is not admissible in any
other court of law.
[86]
This specifically includes historical expert evidence, which is
necessary to assist in establishing the facts to support
land rights
or dispossession, or otherwise.
[71]
We are obliged to interpret the Restitution Act to afford
claimants the fullest possible protection of their constitutional
guarantees
[87]
and to advance the declared purpose of the Restitution Act, which is
to provide restitution and equitable redress to as many victims
of
racial dispossession of land rights after 1913 as possible.
[88]
[72]
The Supreme Court of Appeal majority interpreted these
hermeneutic injunctions as requiring it to approach the Restitution
Act as
“an extraordinary piece of legislation,
sui generis
,
which generates processes and approaches not normally associated with
normal litigation and rules of practice”.  The
statute, it
said, “implores the courts to lean towards granting rights in
land where it would be
just and equitable
to do so within [its
terms]”.
[89]
That is undoubtedly right.  Equally so is the majority’s
injunction that courts “should lean liberally towards
the
realisation of the objectives of the Act”.
[90]
The history from which the statute springs, and its own express
purposes, demands this.
[73]
This is because the Restitution Act is not a victor’s
charter, intent at whatever cost or with whatever means on depriving

those who have of what they have.  It is a nuanced and generous
framework for restoring rights and dignity to those dispossessed
of
their land after 1913, while affording compensation to those who are
affected by successfully proven claims.  The present
case, as
will emerge, is a vivid instance of how the statute’s just
balance operates, in recognising claimants’ entitlements
while
not eschewing those of the presently possessed.
[74]
And in finding that balance, we do not disclaim history.
We cannot, for recognition of history’s gross injustices
underlies
every single provision in the statute.  It only means
that, in approaching and understanding what the historical sources
tell
us, we seek to find habitable means of upholding and fulfilling
the statute’s restorative principles of historical justice.

The practical import of this will now become clearer.
Was there a community of black people
living on the Salem Commonage?
[75]
The Commission’s referral document, the statement of
claim (embracing the averments in the referral) and the claimants’

further particulars asserted that the claimants were a community of
black families whose forebears traditionally occupied the entire

Commonage from the 1800s.  In addition, the claimants claimed
that the Community occupied the Commonage beneficially for more
than
10 years.
[76]
The Supreme Court of Appeal majority concluded, on a holistic
reading of the statute and the statement of claim, that the claim was

founded on occupation of the land for a continuous period of more
than 10 years after June 1913.
[91]
This approach operated, in effect, as a confession and avoidance of
the minority’s objection that the claimants’
case changed
as the trial progressed, and ultimately bore no resemblance to their
pleaded case.
[92]
The Supreme Court of Appeal majority approached the claimants’
pleadings with a measure of permissiveness.  This was

right.
[77]
Our general approach to pleadings is that they be used to
define the issues between the parties, and not that parties are
strictly
bound to them where it prevents courts from fully
investigating the facts placed before them.  This is
old-established doctrine.
As the Appellate Division said in
1936, “[t]he importance of pleadings should not be unduly
magnified.”
[93]
[78]
We must also remember that in the context of land claims a
community of people seeks to recall to a court, sometimes after more
than a century has passed, how they came to live together and
regulated their livelihoods.  It would be inapposite to expect

details of how precisely their ancestors agreed to graze their
cattle, or which precise right in land this grazing would implicate.

Similarly, the initial references in the claimants’ pleadings
to labour-tenancy rights should not be taken to discountenance
the
existence of other rights.  That would be both unfair and
illogical, given that their claim was at the nascent stage of
its
conception and formulation, and the statute itself had been passed
only a few years earlier.
[94]
Moreover, some members of the Community may indeed have acquired
labour-tenancy rights.  But this cannot prevent others
–
those who were not employees of the landowners – from properly
expounding their histories.  Changes in pleadings
in claims
based on historical rights will therefore often be both just and
necessary.
[79]
This accords with the approach taken in
Delgamuukw
and
in the recent
Tsilhqot’in
decision,
[95]
again by the Supreme Court of Canada in the context of aboriginal
rights.  McLachlin CJC explained why a “functional

approach” to pleadings should be preferred.  First, legal
principles “may be unclear at the outset, making it
difficult
to frame the claim with exactitude”.
[96]
Second, “the evidence as to how the land was used may be
uncertain at the outset” and is “not an ‘all
or
nothing’ proposition”.
[97]
This requires judges to make decisions based on the best evidence
before them.
[98]
That is so here.
[80]
The fundamental questions before the Land Claims Court were:
whether a community of black people existed on the Salem Commonage;

whether they acquired or exercised rights in the land; and whether
they were dispossessed of those rights by a racially discriminatory

law or practice after 1913.  Those issues were boldly confronted
and fully traversed before the Land Claims Court in a trial

stretching over many days.
[99]
The basis on which the Land Claims Court decided in favour of the
claimants, and on which the Supreme Court of Appeal upheld
that
judgment, was fully and squarely explored in evidence and debated in
argument in the trial forum.  No point was
raised or
pursued in a way that could have prejudiced either party in
presenting its case.  It would be quite wrong to disown
the
claimants’ entitlements on the basis of their procedural
clothing, and before this Court the landowners rightly made
little of
these issues.
[81]
The approach of the majority in the Supreme Court of Appeal
also rendered it unnecessary for the claimants to source their rights

in a continuous claim of indigenous title predating the arrival of
the 1820 Settlers.  The historical evidence that the present

claimants’ predecessors were the people Colonel Graham expelled
from the Zuurveld in 1811 is tenuous, and no credible link
was
established in the evidence between the Community’s ancestors
and the Salem land before the Settlers arrived in 1820.
But,
as the Supreme Court of Appeal recognised, the claimants were not
required to establish a continuous entitlement to the land
arising
from settlement that predated colonisation.  The Restitution Act
recognises a very wide range of interests in land,
including “a
customary law interest” and “beneficial occupation”.
[82]
Then came the Fourth Frontier War, of which we have
indisputable records of the brutal efficiency with which British
troops under
Colonel Graham – after whom Grahamstown is still
named – hunted down and cleared the Zuurveld of its indigenous
inhabitants.
[100]
In probability there was no significant settlement of black people at
or on the Salem Commonage for some six decades after
that war.
This is not a matter of extinguishing rights by conquest – a
question much debated before the Land Claims
Court – but rather
physically removing conquered people from land, when according to the
Articles of Capitulation of 10 January
1806 the British colonists
should have respected their rights to it.
[101]
[83]
It was in this period that the land under management of the
Salem Party Club came to be developed to include a church and a
cricket
pitch.  Counsel for the landowners, rightly, insisted
that a community could not have accrued rights on this defined
portion
of the Commonage that was under consistent use, development
and supervision by the landowners from 1832.
[84]
The first plain evidence of the return of black people to the
Salem area dates from 1877 – the very year in which the Board’s

first official act is recorded.
[102]
In January 1878 the Inspector of Native Locations for Salem, Kariega
and Assegai Bush meticulously recorded and reported
various totals,
including his 1877 “Return of Natives, Stock &c”
showing one hut and three people living on the
Commonage.  For
the total three areas under his jurisdiction, the Inspector recorded
115 huts, 53 kraals and 515 inhabitants.
By February 1880, nine
huts, 42 people and 47 cattle are recorded.
[85]
One can go on, virtually year by year, to itemise the rest of
the recorded evidence and its significance.  That is not
necessary.
The sources are fully set out, with contrasting
perspectives and interpretations, in judgments of the Land Claims
Court and of
the minority and majority in the Supreme Court of
Appeal.
[103]
For this judgment it is enough to say that I agree with the
inferences the majority of the Supreme Court of Appeal extracted
from
this evidence.
[86]
Though the archival materials on a few occasions present
ambiguities, overwhelmingly they establish that, from 1878, a growing
community
of black people was living on the Commonage and using the
land for habitation, farming, drawing water, grazing of stock,
traditional
practices and burials.
[87]
Only one piece of archival evidence need be highlighted: the
pivotal piece.  It dates from 1941.  This is the after

the 1940 order of the Grahamstown Supreme Court authorising the
subdivision of the Commonage.  The evidence consists of a
report
by the Native Commissioner for Grahamstown dated 15 July 1941.
Its significance merits its inclusion in its entirety
in the footnote
below.
[104]
[88]
Given the order of the Grahamstown Supreme Court the year
before, dividing up the Commonage, the visit of the Native
Commissioner
was plainly of some moment, and his report composed
deliberately after careful assessment.  In the evidence as a
whole, the
report is a quite remarkable document.  It was
addressed by a senior official – Native Commissioners had the
rank of
Magistrate
[105]
– to the Secretary of Native Affairs in Pretoria.  That
official was not only the Commissioner’s boss, but also
the
most senior bureaucrat responsible for the enforcement of white
control over the indigenous population of South Africa.
Native
Commissioners were specifically tasked to secure the system of rigid
separation and racial control (before the even more
brutal and
systematic measures the apartheid government introduced in 1948).
Hence the significance of the report and its
observations can
hardly be overestimated.
[89]
The report shows the Commissioner on a formal mission to
Salem.  And an assessment of the area’s population, both
white
and black, lay at the centre of his mission.  Though there
were no tabulated sheets or formal returns, no systematic
dwelling-to-dwelling
tally, it may be seen as something akin to a
census.
[106]
[90]
For the Commissioner was engaged in a formal, official
exercise in demography.  He was assessing Salem’s “native”

population with a view to a practical decision – the final,
statutory, disestablishment of the Salem location.  And
his
field of expertise was precisely the location, identification and
determination of indigenous populations in contradistinction
to white
populations, with a view to the control of the former and the
continued supremacy of the latter.  It is hardly imaginable
that
he would have undertaken the task that produced these estimates or
recorded them haphazardly.  Both the tone and the
details of his
report proscribe that.
[91]
In this light, his findings are decisively significant.
He records that “[t]he European population of the village is

between 90 and 100 with 25 families, while the Native population is
about 500, of whom about 50 work as servants”.
Given the
setting, to dismiss these estimates as “excessive”, or
“improbably high”
[107]
is to mistake the man, the official, his mission and the practical
political significance of his duties.
[92]
Counsel for the landowners, recognising the difficulties the
Commissioner’s report presented, urged that it was “against

the run of play”.  The contrary is true.  The
population estimate of 500 meshes with every archival and documentary

signification of the growth of the black African population at and on
the Commonage over the preceding 63 years.
[93]
And, during oral argument, when a large, blown-up reproduction
of an aerial photograph taken in 1942 was displayed to the Court,
it
emerged for the first time that there were not merely 26 traditional
dwellings, but 26
clusters
of dwellings along the Assegai
River, all within walking distance of the Commonage or on the
Commonage itself.  A further
22 dwellings were present to house
employees on the landowners’ properties.  It is a matter
for justifiable surmise
that between 450 and 500 people could be
housed in these clusters of dwellings.
[94]
And it is not only the figure of 500 that is significant,
although its own importance lies in how thoroughly it squares with
very
nearly every other piece of recorded demography since 1878.
It is the Commissioner’s estimate that only 50 of the 500
black
people at Salem were working for the 25 “European”
families at Salem.
Where then were they living?  Not
in the location.  That we know from the same report.  The
location had “ceased
to exist” 12 years before.
[95]
The only, and obvious, answer is that the overwhelming
preponderance of black people at Salem were living on the Commonage.

This accords with the claimants’ case, and with the oral
evidence of their witnesses.  It is inconsistent with the
landowners’ evidence.  Mrs Page, and her brother, Mr
van Rensburg, were both firmly insistent that they had seen
no black
people living on the Salem Commonage.
[108]
None at all.  Never.  No black people at Salem, other than
those working in white households or for white farmers.
[96]
How do we square this with the Commissioner’s 1941
tally?  Did the witnesses’ powers of observation simply
fail
to encompass the hundreds of people who, by officially made,
carefully recorded, historically preserved account, were in fact
there?
There is no reason to think that either sibling was
fabricating.  On the contrary, both appear to have been entirely
sincere
in what they recalled.
[97]
The inference must be that the witnesses’ recollection
was radically mistaken.  Why their recall fell subject to so
radical
an oversight is a matter for justified inference as to the
impact of an upbringing, like too many of us had, that foregrounded
the virtues and visibility of white people to the exclusion –
the disappearance, the evaporation, the virtual non-existence
–
of all others.
Were the black people living on the
Commonage a “community”?
[98]
The statute defines “community” as meaning “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”.  This Court held in
Goedgelegen
that this definition sets a “low threshold” for what
constitutes a community: it sets no “pre-ordained qualities”

to qualify.
[109]
[99]
Though the Restitution Act permits the Land Claims Court to
“admit any evidence” that it considers relevant and
cogent
to the matter even if not admissible in any other court of
law,
[110]
it does not seem to me that there is any particular mystique to the
rules of evidence the Land Claims Court should apply.
A court’s
approach to the evidence must take account of the distinctive nature
of land claims.  These claims often depend
on hearsay evidence.
The Restitution Act makes provision precisely for this.  And
while the statute accommodates the
distinctive nature of the claims,
which must be taken into account in the reception and assessment of
evidence, it seems to me
that the ordinary civil standard of proof
applies.
[100]
The claimants therefore had to establish, more probably than
not, that as a community their rights in the land were derived from

shared rules that determined access to it.
[101]
The claimants tried to establish this first through indigenous
rights awarded by traditional authority before 1820.  The
landowners’
evidence cast considerable doubt on the existence
of a community under traditional leadership before 1820.  The
majority in
the Supreme Court of Appeal appeared to accept that the
evidence relating to this traditional authority was “unclear”.
[111]
This caution was correct.
[102]
Despite this, the majority concluded that there was no
obstacle to applying the statutory definition of “community”.

This was because, as in all African communities, “there must
have been a traditional leadership structure on the Commonage”.
[112]
So the claim did not hinge on whether a community was established
under traditional authority before 1820.
[103]
This is right.  It accords with the decision of this
Court in
Goedgelegen
.
[113]
There it was authoritatively held that an accepted tribal
identity, the authority of a chief designated by tribal hierarchy,
or
occupation of land in accordance with ancient customs and traditions
are not requirements for a “community” under
the
Restitution Act.
[104]
The majority in the Supreme Court of Appeal held that –
with or without a chief – features in the life of the Community

on the Commonage demonstrated that the occupants constituted an
established community as the statutory definition envisages.
[114]
These included an established orderly settlement pattern, common
traditional practices, pooling of resources for farming
purposes,
economic activity and a leadership structure.
[105]
This conclusion, too, is in my view right.  There is no
evidential magic in it.  It is an inference from the conduct of

any human group, larger than a single family, living over extended
time in proximate circumstances.  As Professor Tony Honoré

explained in his ground-breaking jurisprudential analysis of “groups”
more than four decades ago—
“when a great
deal of interaction takes place over a considerable period,
conventions develop which would not otherwise have
come into being.
Time is usually, though not always, needed for these conventions to
develop.  It is the existence of
conventions rather than the
amount of interaction or the time it lasts that can best be taken as
a defining characteristic of a
group.”
[115]
[106]
The generalised abstractions of Professor Honoré’s
conceptual analysis resonate vividly with the claimants’
evidence.
As Professor Legassick observed in his expert report,
“[p]eople occupying the land in a given place for two to three
generations
must interact with one another, visit each other, do
things together, establish rules of behaviour, including those
determining
access to the land, and, in other words, must constitute
a community”.  Over time, he noted, “they would have
developed explicit or implicit shared rules on grazing and where to
graze their stock, ploughing and where to plough, the collection
of
wood, [and] where to bury their dead”.
[107]
In cross-examination Professor Legassick insisted that “people
don’t exist without interacting with one another, having
to
decide where to graze their cattle, having to decide where to put
their huts and therefore to have common laws and regulations”.

This is not evidential flim-flam.  It is a
soundly-grounded supposition from human conduct.  It is
applicable,
as a matter of obvious inference, to the group of black
people living on the Salem Commonage from at latest 1878 until at
least
1941.
[108]
The evidence is thoroughly considered in the judgments of the
Land Claims Court
[116]
as well as of the Supreme Court of Appeal minority
[117]
and majority.
[118]
It is not necessary to reconsider it here.  It is
necessary to mention only one inescapably graphic instance.
It
concerns a lime pit or quarry on the Commonage.  Both
Mr Nondzube and Mr Ngqiyaza, who testified for the claimants,

mentioned it.
[119]
Lime obtained there was said to have been used in initiation rituals,
for paint and for cosmetic and also medicinal purposes.
The
Commission’s expert archaeological survey report located the
lime quarry and springs on the Commonage.
[120]
[109]
The claimants’ evidence that lime from the quarry was
used in initiation practices was not challenged.
[121]
Mr Dave Mullins, a former Salem landowner, and former chairman of the
Salem Landowners’ Association, who testified
for the landowners
(though he had already sold his property, Avondale) was consistent
with this evidence.  He testified that
clay from the lime pit
“was used for initiates’ abakhwetha”
[122]
and also “by women who had recently had a baby”.
[123]
[110]
This detail, though small, shone light on the question whether
community practices occurred on the Commonage.  The evidence

established that the black people living on the Commonage sustained
and practised initiation rituals there.  These are known
to be
profoundly central to the Xhosa culture.  How could they have
done so without “the existence of conventions”
that, both
analytically and by common sense human experience, are the hallmarks
of human group activity?
[124]
The answer hardly needs to be spelt out.
[111]
Mr Mullins also recounted that there were elders on each farm
who collectively formed a leadership structure.  He said that

they dealt with initiation and discipline.  The import of this
evidence was that the leadership structures were confined to
those
who were employed by the landowners of Salem, and who thus exercised
no independent rights over the Commonage.  The
number of black
people recorded at Salem in 1941, but not employed by the farmers,
contradicts this.  It requires no
recourse to imagination
to infer, as a matter of probability, that they, too, lived under
collective leadership structures.
[112]
The landowners invoked this Court’s statement in
Goedgelegen
that the “acid test remains” whether a
community “derived their possession and use of the land from
common rules”.
[125]
That is correct.  It is what the statute requires, namely a
group of persons whose rights in land are derived from shared
rules
determining access to land held in common by the group.
[126]
Whether the “acid test” is fulfilled is a question of
fact.  In
Goedgelegen
, the acid test was applied, not to
determine the existence of a community, but to determine whether it
was dispossessed of rights
in land.
[127]
[113]
There, dispossession occurred because common rules determining
access to land were supplanted by labour-tenancy rules.
[128]
These, this Court said, did “not sit well with commonly held
occupancy rights”.
[129]
The Court concluded that, when the dispossession in question
occurred, “no rights in land remained vested in the
labour tenants
as a community”.
[130]
The “acid test” was in other words applied to establish
that dispossession had occurred, and is not the test
for establishing
whether rights existed before dispossession.  It follows that
Goedgelegen
cannot be authority for the legal proposition that
the landowners’ formal title necessarily precludes those
employed on farms
from establishing, through custom, their own
distinctive rights in terms of the statute.
[114]
The landowners strongly contended that the Commonage was
jealously guarded and, hence, that a high level of control was
consistently
exercised over it.  Those working on the Salem
farms therefore acquired no rights over the Commonage.  Yet, as
will shortly
emerge, the contention cannot be sustained in the light
of the great mass of archival and documentary evidence.  This
shows
long-standing absence of control in regard to occupation,
rights of pasturage, subletting, collection of firewood and
cactus-control
over the vast extent of the Commonage.
[115]
At the end of all this, the question is: Did the social and
functional arrangements of this particular group of people, numbering

several hundreds, who lived on the Commonage over an extended period
of more than 60 years, include common rules that determined
how they
accessed and utilised the Commonage?
[131]
In my view, as a matter of greater probability than not, that
inference may be drawn.
[116]
What those “rights” were is now the question.
The rights the black people living on
the Commonage exercised
[117]
The landowners contended that, if, as I have already found,
there were black people on the Commonage in 1913 and after, they
could
never have acquired rights to or over it.  This was
because the gubernatorial grants of 1836 and 1847 gave title to the
Commonage
to the Salem Party of 1820 Settlers.  The Settlers’
rights excluded any possibility that other rights could arise over

the same land.  Zero-sum.  The Settlers had.  And the
Community could never acquire.
[118]
The minority in the Supreme Court of Appeal endorsed this
contention on the basis that the exercise of indigenous title to the
Commonage
was inconsistent with the award of ownership rights to the
Salem Party.
[132]
It was impossible for land that had been given to landowners
for their common use and benefit at the same time to become
the
object of rights on the part of the claimants’
predecessors.
[133]
And the registered common law rights of the landowners could not
co-exist with the acquisition of any indigenous rights over
the
Commonage.  The suggestion that some system of parallel
ownership – indigenous or otherwise – existed alongside

the landowners’ ownership, in which they either acquiesced or
of which they were unaware, was thus untenable.
[134]
[119]
This approach proceeds from an assumption about the
ideological and legal power of the historical credentials of the
landowners’
title.  I examine the difficulties it gives
rise to shortly.  But first two general points.
[120]
The first is that our courts have long established that
entitlements to land under the Restitution Act can exist
simultaneously
with title registered in another’s name.
In
Ndebele-Ndzundza
, a traditional community occupied land
whose registered title was conferred on another.
[135]
The Supreme Court of Appeal held that the statute does not afford
registered title “unblemished primacy”.
[136]
Instead, it “recognises complexities” that arise from the
existence of traditional rights in land co-existing
with formal
registered title “and attempts to create practical solutions
for them in its pursuit of equitable redress”.
[137]
[121]
The Court in
Ndebele-Ndzundza
accordingly held that the
community there had “established rights in the land that
registered ownership neither extinguished
nor precluded from
arising”.
[138]
This Court expressly endorsed
Ndebele-Ndzundza
.
[139]
Any different approach would, it said, “elevate ownership
notions of the common law to the detriment of indigenous
law
ownership for purposes of restitution of land rights”.
[140]
[122]
Thirteen years ago this Court recognised that, in
counterposing different aspects of the right to property and housing,
“[t]he
judicial function . . . is not to establish a
hierarchical arrangement between the different interests involved,
privileging in
an abstract and mechanical way the rights of
ownership”.
[141]
This was in an eviction case.  But it applies just as well
here.  We must “balance” and “reconcile”

rights “in as just a manner as possible taking account of all
the interests involved”.
[142]
[123]
The second point is that this involves no mystery and no
novelty.  It flows from both the broadly generous,
restitutionary
purposes of the statute and from its detailed
wording.  The statute defines a “right in land”
[143]
with encompassing amplitude.  And it spells out that the
rights in land it recognises, with a view to restitution, may
be
“registered or unregistered”.  The fact that the
statute recognises interests in land irrespective of registration

suggests that registered title, on its own, while significant, is
neither indefeasibly primary nor exclusionary.  This is
what
Ndebele-Ndzundza
and
Goedgelegen
held.
[124]
Beyond these two observations, how strong was the title to the
Commonage that the landowners’ predecessors enjoyed?
[125]
In 1823, the colonial government in London gave the Sephton
Party of Settlers title to 700 morgen of land (about six square
kilometres)
[144]
.
The 700 morgen were divided into 50 individual erven.  This
averaged 14 morgen or 30 acres per family.  On 15
December 1836,
Governor D’Urban made a different and much larger grant.
This was to the Salem Party as a whole.
It consisted in a
portion of 2 333 morgen (approximately 20 square kilometres),
granted to the Party as common land on perpetual
quitrent.
[126]
In 1847, Governor Pottinger made a further grant.  This
was of an additional 5 365 morgen (approximately 45 square
kilometres),
also as commonage.  The grant was in favour of the
present and future proprietors of locations in the Salem Party.  The

quitrents of both this and the 1836 grant were paid off and converted
to freehold title in 1848.
[127]
These two grants constitute the Commonage in issue in these
proceedings.  Both grants afforded the Commonage to “the
Salem party of settlers” on specified conditions.  These
included that the boundaries had to be “properly traced
out”
and the land “brought into such a state of cultivation as it is
capable of”.  It was to be used for
grazing purposes only.
[128]
The 1940 judgment of the Grahamstown Supreme Court stated that
“both grants were issued under Cape Ordinance 15 of 1844”

(Ordinance).
[145]
This repeats what the second grant says.  Yet both statements
appear to be mistaken.  The expressed purpose of
the Ordinance
is “to provide for the enregisterment in the land registers of
the Cape of certain subdivisions of the locations
and extensions of
the Settlers of 1820”.  It allows the Governor by
proclamation to publish the names of people
entitled to subdivided
portions of pre-existing locations and, if no objection is lodged, to
grant the subdivisions.
[146]
The purpose of the Ordinance was to allow registration of land in the
name of each family of 1820 Settlers where the land
had previously
been registered in the name of the head of the
party
of
Settlers.
[129]
The Salem Party families applied for enregisterment of their
subdivided land portions under the 1844 Ordinance.  This they
were given.  The first proclamation under that Ordinance was
made on 27 March 1845.  A second proclamation, which appears
to
incorporate the second grant of the Commonage, was made on 24
February 1848.
[147]
The proclamations set out the size of the families’ independent
allotments together with their respective shares in
the
Commonage.
[148]
[130]
All this points to two conclusions.  First, the Ordinance
did not authorise Governor Pottinger’s grant of the greatest

bulk of the Commonage in 1847.
[149]
Second, the Ordinance afforded no retrospective authority for the
earlier grant of 1836.  And there is nothing in the
1844
Ordinance that authorises any new grants of land after its
promulgation.  The Ordinance thus does not assist with the
1847
grant either, despite the title deed specifically invoking it.
[131]
What then was the legal source of the Governors’ grant
of the Salem Commonage to the Salem Settlers?  And how solid
were
those grants?  This Court invited the parties to
assist.
[150]
Unlocking the aetiology of the grants proved a near intractable
task, certainly with the historiographical skills available
to the
Court and to the parties.
[151]
It nevertheless became apparent that no power could be located that
expressly or implicitly authorised either Governor to
grant the Salem
Commonage to the Settler Party.  It may well be that sovereign
power for this kind of allocation existed under
colonial law.
[152]
There is merely no evidence before us either that this power,
if it existed, was properly devolved – or that, in making
the
grants, either Governor properly exercised it.
[132]
None of this suggests that the Salem Party did not acquire
rights to the Commonage.  Plainly they did.  The
Proclamations
of 1845
[153]
and 1848,
[154]
proceeding on the power of the gubernatorial grants, vest specific
shares in the Commonage in named members of the Salem Party.

Over the course of a long century, from the time of the two grants,
until the judgment of the Grahamstown Supreme Court in 1940,
the
Salem Party of Settlers and their successors treated the Commonage
as, in title, theirs.
[133]
In their written argument submitted in response to this
Court’s directions after the hearing, the landowners pointed
out that
the conversion of the quitrent title, in the Commonage, to
freehold title in 1848, the confirmation of the grants to the
Salem Settlers
by the Proclamation of 1845, and the issue of a
certificate of amended title on consolidation, in November 1947, are
all executive
and administrative acts that have stood unchallenged
(and accepted) for a very considerable period of time.
[134]
This is true.  Legal acts, even if invalid, may have
legal consequences.  That is well established.
[155]
But the point is not to deny that the Salem Party acquired rights
over the Commonage and exercised them over a very long
period of
time.  It is different.  It is that the rights they
exercised were never immaculate.  This case pits contesting

versions of history and historical claims to justice against each
other.  Legal ideology, which protects principally the claims
of
those in possession, is invoked to help.  It aspires to
immaculacy.  That aspiration fails here.  Even under
the
garb of colonial laws, as they existed at the time, the original
grants seem dubious.  This does not strip the landowners
of
their historical claim to justice.  It merely puts their claim
in its proper historical perspective, as the Restitution
Act
requires.
[135]
Alongside this, the claimant Community’s exercise and
acquisition of rights in and over the Commonage in the six decades
between
1878 and 1941 seems less startling than conventional legal
thinking would make it seem.
[136]
And it is notable that Gane J, in delivering the judgment of
the Supreme Court in Grahamstown in 1940, expressly rejected the
Salem
landowners’ argument that they were “in law
absolute co-owners in undivided shares” of the Commonage.
“I
do not agree,” he said, “that in either of these
grants the language used has the effect of making the settlers
co-owners
in undivided shares of the land conveyed”.
[156]
Instead, he considered that the effect of the first grant was to
convey to the Salem Party of Settlers “an extent of
ground in
trust for each individual of the party with a view to a special
purpose”.
[157]
The grant’s words “as commonage” imposed a
modus
or condition on the use of the Commonage.
[158]
[137]
Gane J expressed pronounced scepticism about the landowners’
claim that the Commonage should be divided amongst them.
The
Salem Party, though “a somewhat inchoate and amorphous body”,
was capable of owning the Commonage.
[159]
Nevertheless, the “Governor of the day would have been
sufficiently astounded,” Gane J said, “had
he been
told that the effect of these grants was to give for nothing to each
settler, in addition to the modest allowance of 100
acres . . . which
he received in his own right, and for which he had in many instances
paid before departure from England, an additional
piece of land of
about 153 morgen.”
[160]
This construction, Gane J said, “is so improbable that it
should not be adopted unless the words invincibly compel”
it.
“It is to be noted,” he added, “that it has taken
the settlers of this particular party . . . a century
to formulate
such a contention”.
[161]
[138]
Gane J observed that “the position of the
commonage-holders in this case appears to be very similar to the
position of
a native tribe holding communal property”.
[162]
In addition, the “power of disposition” was “limited
by the fact that the land [was] held for special purposes
. . . and
that the Village Management Board” controlled it.
[163]
It added that “[i]t is a most unusual thing for the members of
a local authority deliberately to hand over all their
rights of
commonage to private owners”.
[164]
“At this point,” Gane J said, “the Court might not
unreasonably, and perhaps quite appropriately fold its
hands and
simply refuse the application”.
[165]
The landowners had “not made out the primary ground”
on which they rested their case.
[166]
[139]
Despite the threadbare basis of the claim before it, the
Grahamstown Supreme Court found a way to grant the landowners their
wish.
On 29 February 1940, it issued a rule nisi allowing
objection to the consolidation and subdivision of the
Salem Commonage.
The return date was 8 August 1940.
In response, the Provincial Secretary of the Cape Province
recommended that authorisation
be given to alienate the land.
He noted that the division would have to be done through the ordinary
law
[167]
by which Village Management Boards were authorised to dispose of
their common land.  Yet his report noted the proposal to

subdivide all the common land as “most unusual”, since it
meant that the Board would “be left with no common
land.”
[168]
[140]
Against this background, three features of the Commonage and
its grant were crucial to the black inhabitants’ capacity to
establish entitlements in and over the Commonage after 1878.
[141]
The first is the somewhat opaque and uncertain legal lineage
of the two grants of the Commonage.  What the Cape Governors
gave
to the Salem Party was neither impeccable nor immaculate.
The grants were imbued from conception with a touch of the frontier:

rough-hewn and purpose-built.  This rough-readiness remained
their feature.  It is indeed reflected in the perplexity
of the
Grahamstown Supreme Court, when with studied reluctance it granted
the order that led to the division of the Commonage.
In short,
the landowners’ predecessors’ title was never
irrefutable.
[142]
The second is that the beneficiaries of the grants were
“inchoate and amorphous”.  Apart from the church and
the
cricket field, which were closely managed, there was never a
single owner exercising unified dominion or control over the
Commonage.
The Board sought to exercise control, but the
patently uneven effects are well documented.  Though most of the
Salem Party
received specified shares in the Commonage, these
remained undivided, and none, until the 1940 judgment, received
exclusive domain
over any part of it.  The relation of each
beneficiary of shares in the Commonage remained indefinite in the
sense that it
consisted in an undivided share in a huge tract of land
that remained relatively undomesticated.
[143]
The third factor flows from the second.  It is the simple
vastness of the Commonage.  It was huger by many multiples than

any of the individually assigned allotments.  It was for
precisely this reason that the Board, according to the archival
evidence, was unable effectively to manage or control it.  In my
view, the grant of so large a portion of land to such
an “inchoate
and amorphous body”, at the time it was made, was not effective
to exclude the exercise over the land
and the acquisition over it of
rights under the Restitution Act.
[144]
These characteristics of the Commonage evidence that it is not
at all implausible that a community was able to grow there.

This does not mean that the Community derived its rights from the
settlers’ actions or inactions.  No.  Their rights

were derived from their use of the land and their self-regulation in
respect of that use.  Even if the settlers were proved
to have
immaculate title to the land, the Community could still have
developed their own rights.  But in practical terms this
was
facilitated by the features I have cited of the settlers’ own
material relation to the land, which was not indefeasibly

exclusionary.
[145]
Indeed, the Community that lived on and at the Commonage from
the late 19
th
century had a system of traditional law
that related to vast, open, unoccupied tracts of land.  That law
provided that
the land could be utilised in accordance with custom.
This entailed, as set out by this Court in confirming the Supreme
Court
of Appeal in
Richtersveld
, a system of law “known
to the [C]ommunity, practised and passed on from generation to
generation”.
[169]
It is an evolving system of law, initially unwritten, “that
has its own values and norms”.
[170]
[146]
The Community that lived at and on the Salem Commonage after
1878 utilised the Commonage in accordance with its traditional rules

and conventions.  That usage was in accordance with customary
law, which treated unoccupied land as a shared resource, available

for utilisation and, in turn, it vested the Community with rights in
and over the Commonage.  And it was not dependent on,
nor did it
derive from, consent from the landowners.  As the Supreme Court
of Appeal majority rightly observed, the indigenous
inhabitants’
acquisition of rights over the Commonage was not forestalled because
they were there at the behest of the landowners.
On the
contrary, there is no evidence that the landowners or the Board ever
consented to the indigenous inhabitants’ occupation.
[171]
[147]
The community members who were employed by the settlers and
resided on their land would also have established rights through a
labour tenancy,
in accordance with the claim as originally
pleaded.  But they too formed part of the Community that jointly
used the Commonage
to support their existence and customary
practices.  No distinction need be made between those who
were employed and
those who were not.
[148]
It over-simplifies the complexities the Restitution Act
recognises to assert that the black inhabitants of the Commonage
could neither
acquire nor exercise rights over it because registered
title to it vested in the Settler Party.  The statute expressly
recognises
beneficial occupation as a right in land.  It also
recognises “a customary law interest”.  The
Commonage
was a vast tract over which no exclusive control was
exercised and over which traditional communities asserted, or
possibly re-asserted
use from, at latest, 1878.
[149]
Given the extent of the Commonage, the lack of sustained,
effective, control over it by the landowners, and the decades-long
utilisation
of the Commonage by black people in accordance with
custom, I conclude that they held a right in the land under the
Restitution
Act.  This right embraces both customary law
interests and beneficial occupation for a period of more than 10
years.
While the Community did not have exclusive occupation or
use of the land, they exercised rights to residence, use of land for
agricultural
activities and traditional practices, access to firewood
and burial rites.
Was the Community dispossessed of its
right in the Commonage as a result of past racially discriminatory
laws or practices?
[150]
As explained, one year after the order of the Grahamstown
Supreme Court in 1940, the Native Commissioner recorded 500 black
inhabitants
of the Commonage, 50 of whom were employed by Salem
landowners.  The Court order provided for the subdivision and
allocation
of the Commonage to the landowners by individual title.
In 1947, the subdivision was effected.  Thereafter, the black

population was dispersed.  This is undisputed.  And it
prompts an inevitable inference of fact.  It is that the

dispersal of the Community was a direct consequence of the Court’s
order.
[151]
Was there racial discrimination?  The Court’s
provisional order of February 1940 required that it be published
twice,
in each of two publications.  The first was
Grocott’s
Daily Mail
.  This is an English-language newspaper published
in Grahamstown from 1870.  The second was the
Union Gazette
.
This was an official government publication, bilingual in English and
Afrikaans, published in Pretoria, with a circulation
confined almost
exclusively to officials and lawyers.  In addition, the order
was to be served personally on the Union Minister
for Lands, the
Administrator of the Cape Province and the Registrar of Deeds in Cape
Town, as well as the Superintendent-General
of Education for the Cape
Province.
[152]
These are the provisions the Court made for its order to be
brought to the notice of those who could be affected by it.  It

is plain that they took no account of the largest group of persons
affected – the 450-odd black people living on the Commonage
who
were not employed on farms.  The Community on the Commonage far
outnumbered the landowners who sought to have the Commonage
divided
between them.  Yet no provision was made for them to be informed
or consulted.  For, in the then-prevailing
mores
, the
Community didn’t count.  And the order had no regard to
the fact that hundreds of people were living on the Commonage
and
drawing sustenance from it.
[153]
They were, to the Court, as invisible as those same people
were to the van Rensburg siblings.  They were for all
purposes
non-existent.  This is not to berate the person of the
Judge.  It would be anachronistic to have expected otherwise.

Rather, it is to draw attention to individual and institutional
blindness caused by an efficiently enforced system of racial
subordination
and by individual complicity in it.  The system
rendered the inhabitants invisible; the Court and its order were
exponents
of it.
[154]
And in this way, the lack of attention to the Community and
the absence of consultation about the subdivision and parcelling out

of the Commonage on which it lived was a racially discriminatory act
of dispossession.
Remedy
[155]
The order the Land Claims Court granted, which the Supreme
Court of Appeal confirmed, was a simple one-liner.  Apart from
disclaiming
any costs award, it provided:
“The Salem
Community was dispossessed of a right in land after 19 June 1913, as
a result of past racially discriminatory laws
and practices in terms
of
section 2
of the
Restitution of Land Rights Act 22 of 1994
.”
[172]
[156]
The parties however appeared to understand this to pack a
considerable punch.  Although in the Land Claims Court the
parties
had agreed to defer the feasibility of restoration, the order
the Court granted implied that the Community was entitled to the
return of the Commonage as a whole.  That is certainly how, in
its submissions before this Court, the Commission understood
the
order.  If so, that would not be right or just.
[157]
I have already found that the Salem Party of Settlers did not
possess exclusive rights in the Commonage before 1940.  So, too,

the rights the Community exercised over the Commonage did not exclude
the Settlers from possessing and exercising their rights
in the
Commonage.  Both groups used and exercised rights over the
Commonage.  Could either the Salem Party or the Community
do as
they please with the land between 1878 and 1940?  In both cases
the answer, clearly, is “no”.  The
Salem Party had
to apply to the Grahamstown Supreme Court for the right to subdivide
and alienate the land, a right they did not
possess before the Court
order.  Their rights were awarded through dubious original
grants and confirmed through proclamation,
but they were never
sufficient to exclude the development of parallel rights by the
Community.
[158]
Since the Community’s rights never excluded the
Salem Party’s rights in the Commonage, they could not alienate
any part nor all of the Commonage.  Nor could they exclude the
land-owners from the Commonage.  The system of registered
title
precluded that.  Equally, the Community’s rights could not
preclude the Salem Party from grazing their cattle
there, or prevent
recreational riding or cycling over the Commonage, as the
van Rensburg siblings did.  Until dispossession,
neither
party’s rights amounted to exclusive ownership.
[159]
The landowners contended in their application for leave to
appeal that the dispossession of the rights the Community exercised
over
the Commonage could not justify restoration of the landowners’
entire farms.  There is justice in this contention, which
the
Land Claims Court will consider in the remedy phase of these
proceedings.  It is clear that the property controlled by
the
Salem Party Club itself, comprising the church or churches and the
cricket field, is distinctive.  Control was effectively

exercised over these portions of the Commonage.  But, further,
the history of the Commonage reveals a richness and complexity
in
which both the black Community and the white landowners enjoyed a
living functional relationship with the land.
[160]
For this complexity, the Restitution Act makes provision.
The Community is entitled to a measure of restitution which does
not
necessarily include the landowners’ entire farms.  The
appropriate opportunity for exploring this will be when the
question
of restoration is considered at the second stage of the trial before
the Land Claims Court.
[161]
To summarise: the applicant Community has established rights,
but not exclusive rights, to the Commonage.  Both the Community

and the Salem Settlers exercised rights of usage over the Commonage.
The claimants used the land to live on, for grazing
and agricultural
activities and traditional rites and practices, for access to
firewood and to bury their dead.  The evidence
shows that the
Salem Settlers used the Commonage for grazing and other agricultural
purposes, for recreation, for rights of way
and for letting out to
others.  Neither the Settlers nor the Community had exclusive
occupation.  Though the Settlers
had registered title, the
Community, too, acquired rights alongside it.  This
accommodation of both groups’ entitlements,
and the history
that records it, will be reflected in the eventual order of the Land
Claims Court.
Costs
[162]
It is appropriate that, as in the Land Claims Court, no costs
award should be made.
Order
[163]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
For the
Applicants:

A Dickson SC and M Roberts SC instructed by Messrs Cox and Partners.
For the First Respondent:
V Notshe SC and
M Kgatla instructed by Ngcebetsha Madlanga Inc.
For the Ninth Respondent:
J Krige and B Joseph instructed
by M Mlola.
For the Amicus Curiae:

J Thobela-Mkhulisi and M Suleman instructed by the Legal Resources
Centre.
[1]
Salem Party Club v Salem Community
[2016] ZASCA 203
;
[2017] 1
All SA 712
(SCA) (SCA judgment) (Dambuza JA and Pillay JA, with
Seriti JA and Mbha JA concurring; Cachalia JA dissenting).
[2]
Salem Community v Government of the Republic of South Africa
[2014] ZALCC 5
(LCC judgment) (Sardiwalla AJ).
[3]
Ex parte Gardner
1940 EDL 175
at 184-5.
[4]
To put this in context, the largest farm accessibly advertised for
sale in the Eastern Cape at the time of writing is a game
farm of 25
square kilometres.  The largest agricultural farm was only 5.24
square kilometres.
[5]
The second to 17th landowners are landowners of portions 1-3, 7, 8,
13-17, 19-33, 36, and 38 of farm Salem No. 498, district
of Albany.
The Salem Club owns the remaining extent of farm Salem No. 498.
[6]
The landowners’ experts indicated that the indigenous
population of the Zuurveld was preponderantly, but not exclusively,

isiXhosa speaking; Setswana speakers were there too.  For
simplicity, I refer to the Community as consisting of “black

people”.  Where reference is made to amaXhosa it is to
accord with a historical source specifically referencing amaXhosa.

Where political or cultural affiliation is unclear, I refer to
isiXhosa speaking people, not all of whom may have identified

as amaXhosa.
[7]
The second to eighth respondents were the first to seventh
defendants in the Land Claims Court.
[8]
Also spelt “Dyanile”, “Danyile”, “Dayile”
or “Dayele”.  We use the spelling
suggested by Mr
Nsele Nondzube during testimony.  Mr Nondzube refers to Dayine
as a chief during testimony, but later clarifies
that he may have
been subordinate to a chief.
[9]
There is still contention as to whether rights arose from this
occupation.  The landowners’ expert insisted that the

occupation was without authority of any paramount chief and
therefore did not constitute a “right” of occupation.
[10]
The landowners’ expert said this war began not because of
disputes over land, but because of numerous cattle raids by both

isiXhosa-speaking people and the colonists.  The Commission’s
expert contended that this is “to mistake the
symptoms for the
cause” and that any cattle raids were only attempts to remove
the other from the land.
[11]
The claimants and landowners broadly agree that this happened but
differ as to the details.
[12]
This narrative has been challenged in various respects: for example,
it is argued that the consequences of the cattle killing
were
severely aggravated by independent environmental factors and that
the blame was placed solely on amaXhosa superstition in
an attempt
to portray them as irrational.  The resultant devastation
is the same.
[13]
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.”
[14]
Salem Village Management Board Location Regulations, GN 151, 13 June
1917.  The Regulations were promulgated under the provisions
of
the Public Health Amendment Act 23 of 1897, section 9(7) of which
empowered “urban local authorities” to issue
regulations
or by-laws “[f]or regulating the use of Native Locations and
for maintaining good order, cleanliness and sanitation
therein, and
for preventing overcrowding and the erection or the use of unhealthy
or unsuitable huts or dwellings”.
[15]
Salem Village Management Board Location Regulations, GN 454, 28
March 1919 (Amended Regulations) at regulation 30.
[16]
Regulation 10 of the Amended Regulations.
[17]
Regulation 3 of the Regulations.
[18]
Regulation 4 of the Regulations stipulated that “[s]trangers
not desiring to remain longer than 24 hours may do so without

obtaining any permit, provided that they report themselves to the
superintendent within three hours after arrival”.
[19]
Also spelt “Gardner”.
[20]
Act 22 of 1994.  Section 10, headed “Lodgement of
claims”, in relevant part provides:
“(1)
Any person who or the representative of any community which is
entitled
to claim restitution of a right in land, may lodge such
claim, which shall include a description of the land in question,
the
nature of the right in land of which he, she or such community
was dispossessed and the nature of the right or equitable redress

being claimed, on the form prescribed for this purpose by the Chief
Land Claims Commissioner under section 16.
(2)
The Commission shall make claim forms available at all its offices.
(3)
If a claim is lodged on behalf of a community the basis on which
it
is contended that the person submitting the form represents such
community, shall be declared in full and any appropriate
resolution
or document supporting such contention shall accompany the form at
the time of lodgement: Provided that the regional
land claims
commissioner having jurisdiction in respect of the land in question
may permit such resolution or document to be
lodged at a later
stage.
(4)
If there is any dispute as to who legitimately represents a
community
for the purposes of any claim under this Act, the regional
land claims commissioner having jurisdiction may in the manner
prescribed
in rules made by the Chief Land Claims Commissioner in
terms of section 16, in order to have a person or persons elected to
represent
the community—
(a)
take steps for drawing up a list of the names of the members of
the
community;
(b)
direct that a meeting of such community be convened and an election

be held at that meeting;
(c)
take such other steps as may be reasonably necessary for the
election.”
[21]
Section 2(1) of the Restitution Act provides:
“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 the 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 the restitution of a right in land; or
(d)
it is a community or part of a community dispossessed of a right
in
land after 19 June 1913 as a result of past racially
discriminatory laws or practices.”
[22]
The cut-off date for claims at the time was 31
December 1998.
[23]
General Notice in terms of the
Restitution of Land Rights Act, 1994
,
GN 2843–80, GG 24042, 15 November 2002.
[24]
Section 11(1).
[25]
LCC judgment above n 2 at para 2.  This agreement was made on
21 January 2013, after the trial had started.
[26]
Id at para 130.
[27]
Id at para 21.
[28]
Id at para 22.
[29]
Act 21 of 1923.
[30]
LCC judgment above n 2 at para 23.
[31]
Id at para 25.  This is evident from the continued wars in the
area.
[32]
Id at para 55.
[33]
Id at para 32.
[34]
Id at paras 51-2.
[35]
Id at para 53.
[36]
Id at para 130.
[37]
As the minority put it in the SCA judgment above n 1 at para 17.
[38]
LCC judgment above n 2 at para 132.
[39]
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty)
Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR
1027
(CC) (
Goedgelegen
).
[40]
LCC judgment above n 2 at paras 69 and 149-52.
[41]
Id at paras 154-5.
[42]
SCA judgment above n 1 at paras 334-9.
[43]
Id at para 313.
[44]
Id at para 293.
[45]
Id at para 327.
[46]
Id at para 330.
[47]
Id at paras 331-3.
[48]
Id at paras 341-51, relying on
Alexkor Ltd v
Richtersveld
Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12)
BCLR 1301
(CC) (
Richtersveld
).
[49]
SCA judgment above n 1 at para 352.
[50]
Id at para 368.
[51]
Id at para 372.
[52]
Id at para 379.
[53]
Id at para 374.
[54]
Id.
[55]
Id at paras 393-5.
[56]
Id at para 411.
[57]
Id at paras 413 and 421-4.
[58]
Id at para 435.
[59]
Id at para 436.
[60]
Id at para 439.
[61]
They were in fact originally promulgated in 1917.
[62]
SCA judgment above n 1 at para 440.
[63]
Id at para 441.
[64]
Id at para 461.
[65]
Id.
[66]
Id at paras 465-9.
[67]
Id at para 450.
[68]
Id at para 454.
[69]
Id at para 473.
[70]
Id at para 499.
[71]
Id at para 500.
[72]
Id at para 508.
[73]
Section 25 of the Constitution provides—
“(1)
No one may be deprived of property except in terms of law of general

application, and no law may permit arbitrary deprivation of
property.
(2)
Property may be expropriated only in terms of law of general
application—
(a)
for a public purpose or in the public interest; and
(b)
subject to compensation, the amount of which and the time and manner

of payment of which have either been agreed to by those affected or
decided or approved by a court.
(3)
The amount of the compensation and the time and manner of payment

must be just and equitable, reflecting an equitable balance between
the public interest and the interests of those affected,
having
regard to all relevant circumstances, including—
(a)
the current use of the property;
(b)
the history of the acquisition and use of the property;
(c)
the market value of the property;
(d)
the extent of direct state investment and subsidy in the acquisition

and beneficial capital improvement of the property; and
(e)
the purpose of the expropriation.
(4)
For the purposes of this section—
(a)
the public interest includes the nation’s commitment to land

reform, and to reforms to bring about equitable access to all South
Africa’s natural resources; and
(b)
property is not limited to land.
(5)
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.
(6)
A person or community whose tenure of land is legally insecure as
a
result of past racially discriminatory laws or practices is
entitled, to the extent provided by an Act of Parliament, either
to
tenure which is legally secure or to comparable redress.
(7)
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.
(8)
No provision of this section may impede the state from taking

legislative and other measures to achieve land, water and related
reform, in order to redress the results of past racial
discrimination,
provided that any departure from the provisions of
this section is in accordance with the provisions of section 36(1).
(9)
Parliament must enact the legislation referred to in subsection

(6).”
[74]
See Ray “Native History on Trial: Confessions of an Expert
Witness” (2003) 84
Canadian Historical Review
253 at
272: “[C]ourts are handed disputes that require for their
resolution the finding of certain historical facts.
The
litigating parties cannot await the possibility of a stable academic
consensus.”  See also Martin “Historians
at the
Gate: Accommodating Expert Historical Testimony in Federal Courts”
(2003) 78
New York University Law Review
1518
at 1520-1.
[75]
This does not mean that written history always comes closer to “the
truth” than oral history, but oral history presents
a
different challenge to judicial decision-making that courts must
grapple with.  The passing of oral traditions is critically

described by Nelson Mandela in
Long Walk to Freedom
(Abacus,
London 1995) at 26-7:
“I did not
yet know that the real history of our country was not to be found in
the standard British textbooks . . . .
It was from Chief Joyi
that I began to discover that the history of the Bantu-speaking
people began far to the north, in the
country of lakes and green
plains and valleys, and that slowly over the millennia we made our
way down to the very tip of the
continent.  However, I later
discovered that Chief Joyi’s account of African history,
particularly after 1652, was
not always so accurate.”
[76]
Delgamuukw v British Columbia
[1997]
3 SCR 1010 (SCC); 153 DLR 193.
[77]
Id at para 86.
[78]
Id.
[79]
Id at para 87.
[80]
Professor Legassick died on 1 March 2016, in his 76
th
year, after testifying in the Land Claims Court, and before the
appeal in the Supreme Court of Appeal.
[81]
Professor Giliomee seemed to consider the main difference between
himself and Professor Legassick as lying in “whether
one
starts the research with a theory or with approaching the primary
sources with a relatively open mind and whether one writes
history
to change the present or to understand the past in its own terms”.
[82]
Professor Giliomee’s supplementary expert report, commissioned
and lodged in order to rebut the evidence of Professor Legassick,

asserted flatly that though it was not denied that there were black
people living on the Salem Commonage in 1913, there was “no

evidence that a community, as defined by the
Restitution of Land
Rights Act No 22 of 1994
, had been formed of Africans on Salem and
that people living [t]here had rights in land.”
[83]
Daniels v Scribante
[2017] ZACC 13
;
2017 (4) SA 341
(CC);
2017 (8) BCLR 949
(CC).  See for example paras 22-4, 115-7 and
154.
[84]
Carmichele v Minister of Safety and Security
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 54: (“It
is within the matrix of this objective normative value system”
of the Constitution that
the common law must be developed).
[85]
These include, as argued by the amicus curiae, examining the
epistemological basis of the expert’s research and evaluating

whether the expert is qualified to draw the conclusions they draw.
[86]
Section 30(1) of the Restitution Act.
[87]
See
Goedgelegen
above n 39 at para 53: “We must prefer
a generous construction over a merely textual or linguistic one in
order to afford
claimants the fullest possible protection of their
constitutional guarantees”.
[88]
Id at para 42, urging an interpretation of the statute that
“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”.
[89]
SCA judgment above n 1 at paras 414-6.  (Emphasis added.)
[90]
Id at para 421.
[91]
Id at paras 413 and 421-4.
[92]
Id at para 389.
[93]
Shill v Milner
1937 AD 101
at 105.
[94]
The claim was lodged on 24 December 1998; the Act was passed four
years before.
[95]
Tsilhqot’in Nation v British Columbia
[2014] 2 SCR 257
;
2014 SCC 44
(
Tsilhqot’in
).
[96]
Id at para 21.
[97]
Id at para 22.
[98]
Id at para 23.
[99]
The Land Claims Court conducted an in-site inspection (inspection
in
loco
) on 24-25 April 2012, and heard evidence on 3 to 4 July
2012, 10 October 2012, 21 January to 1 February 2013, 27 May to 4
June
2013, 7 June 2013 and 22 to 24 July 2013.  Judgment was
delivered on 2 May 2014.
[100]
British soldiers hunted down and shot those amaXhosa who remained
and “cleared” the Zuurveld of all Xhosa villages
and
farms.  The extent of the horror is recounted in Maclennan
A
Proper Degree of Terror
(John Graham and the Cape’s
Eastern Frontier
) (Ravan Press, Johannesburg 1986) at 125:
“Graham’s
Boers and Khoikhoi were hunting unwounded men, women and children
alike as if they were wild beasts; they
would have had little
compunction about putting wounded men down like unwanted animals.
On 24 February,
the whole force returned to the base camp, ‘having so
effectually carried my orders into execution’
said Graham to
Reynell, ‘that hardly a trace of the Kaffir man remains’.”
[101]
See [131] and n 151 below.
[102]
The landowners appear to consider the Native Inspector’s
Report to have been compiled in July 1878, while the Commission

considers it to be January 1878, reporting on December 1877.
Professor Legassick specifies the date for the Inspector’s

visit as 18 December 1877, but we have not been able to locate this
date in the record before us.
[103]
LCC judgment above n 2 at paras 58, 128-30 and 132; SCA judgment
above n 1 at paras 56-9, 85-7, 113, 314, 358-60, 364, 437, 448
and
456-61.
[104]
The report reads:
“On the 8
th
instant, I proceeded to Salem where I was met by Mr J F Harris, the
Secretary to the Village Management Board there.  We
at once
drove to a spot about a mile to the south east of the village,
where I was informed the Native Location had previously
existed.
Today, there is only one disused and dilapidated hut there, and this
had previously been used by a Native employee
of the Board.
The location was about 15 acres in extent, and ceased to exist
twelve years ago.
The location site
was never actually defined by resolution of the Village Management
Board, but a portion of the Commonage was
set aside to be used as a
location.  No Location Superintendent or Advisory Board
was ever appointed, but a Borough
Ranger held office up till 1940
when he left for active service, and nobody has since been appointed
in his place.  The
Regulations framed under Government Notice
No. 454 dated 28/3/1919 have really never been put into operation.
The European
population of the village is between 90 and 100 with 25 families,
while the Native population is about 500, of whom
about 50 work as
servants.  These servants live on the premises of their
employe[r]s, and on the present Commonage which
is privately owned.
I am given to understand that certain Europeans have permitted
squatting in the past, but I am asking
the local District Commandant
to investigate the matter.
A survey of the
Commonage is now taking place and each owner will obtain his pro
rata share.  This means that the old location
site will also be
subdivided and cease to exist as a location.
There is little or
no probability of the Salem European Village expanding in the near
future, but the labour requirements may
increase, as I understand,
pineapple and chicory growing is to be more extensively taken in
hand.  It seems clear however,
that even if the labour
requirements do increase and even if squatting is entirely stopped,
there would still be ample room on
each farm for these Natives to
live, as each farm will range in extent from 150 to 600 morgen.
I would therefore
recommend the disestablishment of the Salem Native Location.”
[105]
See Johnson
The Native Commissioner
(Penguin Group, Cape Town
2007).
[106]
Contrast the minority judgment in the SCA above n 1 at para 105.
[107]
SCA judgment above n 1 at paras 105 and 314.
[108]
See the excerpts from Mrs Page’s evidence in the SCA judgment
above n 1 at paras 239-55 and 480-3.
[109]
Goedgelegen
above n 39 at para 41.
[110]
Section 30(1) of the Restitution Act.
[111]
SCA judgment above n 1 at para 454.
[112]
Id.
[113]
Goedgelegen
above n 39 at para 43.
[114]
SCA judgment above n 1 at para 473.
[115]
Honoré “What is a Group?” in his
Making Law
Bind
(OUP, Oxford 1987) at 64.  The essay first appeared in
(1975) 61
Archiv für Rechts-und Sozialphilosophie
vol
61(2) 161.
[116]
LCC judgment above n 2 at paras 21-3, 33, 132 and 135-6.
[117]
SCA judgment above n 1 at paras 113, 115-8, 131, 135, 137, 145, 289
and 321.
[118]
Id at paras 450-1, 455, 463, 467-8, 473 and 488.
[119]
Mr Nondzube testified in some depth at the inspection
in loco
and
in his evidence in chief about the uses of the quarry while Mr
Ngqiyaza confirmed its existence under cross examination.
[120]
The experts were Mr Tim Hart and Mr David Halkett.  They note
that, though it was clear that the lime pit existed, there
are no
signs of recent use.  They also refer to the 1941 aerial
photograph and say that the quarry had not yet developed
then
“indicating that its excavation and use occurred after 1941”.
There is however ample other evidence that
the lime mine was
used before 1941, including by the 1820 settlers to paint their
homes when they first arrived in Salem.
[121]
See SCA judgment above n 1 at paras 203-4 (minority) and para 457
(majority).
[122]
IsiXhosa for initiates in an early-adulthood rite-of-passage
circumcision school.  The transcript misspells the word as

“
amaqweta”.
[123]
Mr Mullins proceeded:  “Later on Mr Pat Bradfield opened
a lime mine there and it was used by the farmers for spreading
on
their fields to raise the pH of the soil.”
[124]
Honoré above n 115 at 64.
[125]
Goedgelegen
above n 39 at paras 44-6.
[126]
Section 1 of the Restitution Act.
[127]
Goedgelegen
above n 39 at para 45.
[128]
Id at para 47.
[129]
Id at paras 44-6.
[130]
Id at para 47.
[131]
See Honoré above n 115 at 54 where he illuminatingly explains
that social groups consist of people “who interact
in such a
way as to have links with one another irrespective of the
classification made by the inquirer”.
[132]
See SCA judgment above n 1 at paras 346-8.
[133]
Id at para 405.
[134]
Id at para 374.
[135]
Prinsloo v Ndebele-Ndzundza Community
[2005] ZASCA 59
;
2005
(6) SA 144
(SCA) (
Ndebele-Ndzundza
).
[136]
Id at para 38.
[137]
Id.
[138]
Id.
[139]
See
Goedgelegen
above n 39 at paras 22 and 40.
[140]
Id at para 22.  See also Budlender “The Right to
Equitable Access to Land”
1992 (8)
SAJHR
295.
At
302, he gives the following warning regarding litigating on rights
in land:
“The rights
of the property-holders are the status quo, which courts will
inevitably tend to protect.  In a contest
between those who
seek to retain what they have, and those who seek to overturn the
existing order, vested rights will consistently
dominate over
change.”
This, despite the
then pattern of property relations being “the result of
generations of laws and practices which would
not have survived for
a minute in a bill of rights society.”
[141]
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC
7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) (
PE
Municipality
) at para 23.
[142]
Id.  Van der Walt in
Constitutional
Property Law
3 ed (Juta online
publication, 2015) persuasively extends the reasoning in
PE
Municipality
id to competing rights to
property at 524-5.  See also
Daniels
above n 83 at paras 133-8.
[143]
“Right in land” is defined in section 1 of the
Restitution Act to mean—
“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.”
[144]
A morgen is a Dutch unit of measurement just more than two acres in
extent.  It has fallen out of use in South Africa.
[145]
Gardner
above n 3 at 177.
[146]
Section 2.
[147]
Proclamation by His Excellency Lt General Sir Henry George Wakelyn
Smith, GN 2204, 24 February 1848.
[148]
Some documents, though none authoritative, indicate that the initial
grant of land in 1823 included a large portion of the Commonage.

This does not appear from either of the title deeds.
[149]
An address to the Cape Legislative Council in 1847 refers to the
1844 Ordinance.  The address arises from a complaint to

Governor Pottinger made by Rev Shaw and Mr Matthews that the
individual settler families had not yet been awarded title in the

Salem land.  Apart from a concern that the Settlers expected
more land than they were initially awarded, the complaint was
that
the land they had been allocated was still registered only under the
name of Hezekiel Sephton, the leader of the Party.
The 1844
Ordinance was promulgated specifically to deal with complaints of
this kind about allocation of title.  The complaint
was
resolved later in 1847, when the Surveyor-General indicated that
individual titles were ready to be signed by the Governor.
In
1848, the Surveyor-General published a recommendation in the
Government Gazette that the quitrent be remitted and freehold
title
awarded under the 1844 Ordinance.  The subdivision in 1848
included corresponding shares in the Commonage.
[150]
On 15 August 2017, this Court issued directions inviting submissions
on authority for the grants of the Commonage.  The
directions
noted that Gane J in
Gardner
above n 3 stated that both
grants were issued under the Ordinance, and asked whether the
Ordinance could stand as authority for
the grants.
The directions were as follows:
“1.
According to the judgment of the Grahamstown Supreme Court
dated 8
February 1940 in
Ex Parte Gardiner
1940 EDL 175
(Gane J;
Lansdown JP concurring) both grants of the Salem Commonage to
the Salem Party of Settlers dated 16 December 1836
and 23
November 1847 ‘were issued under Cape Colony
Ordinance, No. 15 of 1844’.
2.
The parties are invited to submit written argument of
no longer than
15 pages on the following questions:
(a)
Do the provisions of Cape Ordinance 15 of 1844 provide lawful

warrant for the grant of the Salem Commonage to the Salem Party of
Settlers, and, if so, how?
(b)
If not, what legislative or other authority, whether in the form
of
a Cape Ordinance, a colonial statute or any other law or common law
authority or delegation of royal prerogative or other
power, existed
for the grant of the Salem Commonage to the Salem Party of
Settlers?  The parties are particularly requested
to assist in
regard to the 1836 grant, by Governor Sir Benjamin D’Urban,
which predated Cape Ordinance 15 of 1844.
(c)
If none, in what way, if any, does this affect the applicants’

defence to the claim?
(d)
Specifically, how does the absence or otherwise of legislative,

common law or other authority or delegated power for the grants of
1836 and 1847 affect the exercise and acquisiton of rights
of usage
in and over the Commonage by—
i)
the Settlers and their successors; and
ii)
indigenous people who were present on or at the Commonage
from, at
latest, 1878?”
[151]
A Proclamation by Governor Sir John Cradock dated 28 January 1814,
eight years after the Articles of Capitulation of 10 January
1806
surrendered the Cape to the forces “in the service of His
Britannic Majesty”, provided, specifically in relation
to the
Zuurveld, that “to such persons, who may be inclined to settle
there” the Governor “will grant in perpetuity,
according
to the rules and customs of this Colony, in perpetual and moderate
Quitrent, certain tracts and proportions of Land,
after
admeasurement, and upon Diagrams formed”.  The
Proclamation makes further known “that the Proprietors
shall
be excused the Rent reserved for Ten years” on certain
conditions.  The Proclamation appears to envisage individual,

not collective, grants of land.
Governor Cradock, who granted the
initial 700 morgen to the Settlers and proclaimed the right to grant
land in perpetual quitrent
in the Albany district, received his
Instructions in April 1811.  They begin:
“With these
our Instructions you will receive our commission under our great
seal of our United Kingdom of Great Britain
and Ireland . . .  In
the execution thereof of our said commission you are to take upon
you the administration of the government
of the said Settlement and
to do and execute all things belonging to your command according to
the several powers and authorities
of our said commission.”
The Instructions go on to “command
that all the powers of government within the said Settlement shall
be vested solely in
you our Governor.”  He was then
requested to furnish reports on among other things the management
and disposal of
land.
The Instructions were followed by a
report to the Privy Council on 4 March 1812 by Mr Robert Peel on
behalf of Governor Cradock.
This report was not available to
the Court.  But the minutes of a meeting on 23 September 1812
and a covering letter of
the Privy Council, discussing Governor
Cradock’s report, were available.  These indicate that
the subject of the report
is “Land Tenure at the Cape of Good
Hope”.  The report suggested a change from the Dutch
system of loan farms
and 15-year quitrent tenures to perpetual
quitrent: this would provide more security to farmers, and entail
more payment in rent
for the colonial government.
The Privy Council’s response was
that Governor Cradock should consider long, but terminable, leases,
as opposed to perpetual
quitrent.  Despite this, on 6 August
1813, Governor Cradock issued a proclamation allowing the conversion
of loan farms
to perpetual quitrent.  In exchange, the holders
of perpetual quitrent would pay an increased annual rent.  On
28 January
1814, Governor Cradock issued the Proclamation discussed
above.  The Proclamation thus appears to have been issued
directly
pursuant to Governor Cradock’s Instructions from the
Privy Council, following discussion about what the nature of the
system
of tenure should be.
The Proclamation is worded broadly and
without restrictions as to the size of land to be awarded or its
use.  In this
it differs from the Proclamation of 6 August
1813, which limited the size of the land that could be converted to
perpetual quitrent.
Milton “Ownership” in
Zimmermann and Visser (eds)
Southern Cross, Civil Law and Common
Law in South Africa
(Juta & Co Ltd, Cape Town 1996)
describes Governor Cradock’s 1813 Proclamation “for
all its gushing benevolence”
as “a document of
remarkable obscurity”(at 666).  Milton quotes the Chief
Justice of the Cape Supreme Court
in
De Villiers v Cape
Divisional Council
(1874) 5 Buch 50 who said “it is
impossible to conceive a statute more loosely drawn or more
inartistically worded”
(Fn 76 at 666).  Milton’s
assessment is that “[f]or nearly sixty years officials at the
Cape implemented the
Cradock Proclamation without any clarity as to
what exactly were the legal rights and duties of holders of land
under this tenure
. . . .  In practice, the officials charged
with the registration of grants in Cradock’s tenure ‘either
did
not know the provisions of the Proclamation or disregarded
them’” (at 668).
Governor D’Urban’s
Instructions from 1833 are comprehensive and mandate the setting up
of the Legislative and Executive
Councils and specify what laws the
Council is empowered to make.  The powers relating to land
appear to be Instructions
39 and 40 (words that appear unclearly in
the copy the Cape Archive supplied to the Court are in square
brackets):
“Thirty ninth.  And whereas
we have by our said Commission given to you full power and authority
in our name and on
our behalf, but subject nevertheless to such
provisions as are in that respect contained in these our
Instructions, to make and
execute in our name, and under the Public
Seal of our said settlement grants of waste land to us belonging
within the same to
private persons, or for the public uses of our
subjects there resident.  Now we do hereby require and
authorise you from
time to time as occasion may require to cause all
necessary surveys to be made of the vacant or waste lands to the
belonging
in our said settlement and to cause the persons making
such surveys to report to you what particular lands it may be proper
to
reserve for public roads or other internal communications by land
or water as the sites of towns, villages, churches, school houses
or
parsonage houses, or as places for burial of the dead, or as places
for the future extension of any existing towns and villages,
or as
places to be set apart for the recreation or amusement of the
inhabitants of any town or village or for promoting the health
of
such inhabitants, or as the sites or quays or landing places or
[sowing] paths, which it may at any future time be expedient
to
erect, from, or establish on the sea coast, or in the neighbourhood
of navigable streams, or as places which it may be desirable
to
secure for any other purposes of public conveniences, utility,
health, or enjoyment, and you are especially to require persons

making such surveys to specify in their reports, and to distinguish
in the charts or maps to be thereunto assessed such tracts,
pieces,
or [parcels] of land within our said settlement as may appear to
them best adapted to answer and promote the several
purposes before
mentioned.  And it is our will and we do strictly enjoin and
require you that you do not on any pretence
whatsoever grant convey
or [illegible] to any person or persons any of the lands which may
be so specified as fit to be reserved
as aforesaid, nor permit any
such lands to be occupied by any private person for any private
purposes.
Fortieth.  And we do further
charge and require you not to make any grant of land to or any
[illegible] for, or for the use
of any private person by any one
instrument or by successive instruments exceeding one hundred acres
without inserting therein
a provision or condition to the effect
that such grant cannot be considered valid until our will and
pleasures shall be known
thereupon.”
It seems difficult to extract from
these powers a basis upon which Governor D’Urban could have
been empowered to grant land
as private commonage to what Gane J in
the 1940 judgment called “a somewhat inchoate and amorphous
body” such as
the Salem Party.  This is because, though
no definition of “waste lands” appears, the second
reference to “vacant
or waste lands” in these
Instructions, as well as a reference to waste lands in the
supplementary Instruction to Governor
D’Urban of November
1833, suggests that “waste land” is “unappropriated
lands
within the old limits of the Colony
” – in
other words, up to the Bushman’s River, thus excluding Salem.
The concluding portion of Instruction
39 (“and we do strictly
enjoin and require you that you do not on any pretence whatsoever
grant convey or [illegible] to
any person or persons any of the
lands which may be so specified as fit to be reserved as aforesaid,
nor permit any such lands
to be occupied by any private person for
any private purposes”) seems to envisage a clear
distinction between land
for public purposes and for private
purposes so as to render the powers it confers incompatible with the
award of the Commonage.
What appears to be the supplementary
Instruction to Governor D’Urban, who took up his posting in
1834, signed by Secretary
of State for the Colonies, Lord Stanley,
on 10 November 1833, reads:
“I was in
hopes that I should be enabled to furnish you upon your departure
for the Cape with instructions for the guidance
of the proceedings
of your government in regard to the disposal of crown lands.  I
allude more particularly to those in
the ceded territory, which are
understood to be better adapted for cultivation, than the
unappropriated lands within the old
limits of the Colony.
On the one hand
[humour/honour] the strong objections which have been stated to us
against the proposal of my predecessor for
disposing of the waste
lands by sale – and on the other hand the very meagre nature
of the information which I have been
able to obtain [in] relation to
the lands of the ceded territory, compel me to invite your own early
and serious attention to
the whole of this important subject, in
order that you may submit for my consideration such measures as may
seem best calculated
for bringing the public lands within the scope
of private industry without unnecessarily or imprudently sacrificing
the interests
of the crown.”
These instructions, too, do not appear
to authorise the grant of Commonage to the Settler Party.
The Government Gazettes for 1836 and
1847 do not evidence notification of the award of the Salem
Commonage.
See, generally, Mandelbrote
“Constitutional Development, 1834-1858” in Walker
Cambridge History of the British Empire
(CUP, Cambridge 1936)
vol 8 and the decision of the Privy Council in
Reverend William
Long v Rt Reverend Robert Gray DD Bishop of Cape Town (Cape of Good
Hope)
1864 UKPC 9
, delivered on 24 June 1864, which describes
some of the allocation of colonial powers to officials and other
bodies during the
period at issue.
[152]
See
Lam Yuk Ming v A-G
[1980] HKLR 815
(executive government
in a ceded colony, through the attorney-general, employing its
prerogative power to dismiss a group of
government pharmacists
protesting against working conditions notwithstanding that a
legislative council existed, quoting, at
821, Roberts-Wray
Commonwealth and Colonial Law
(Stevens, London 1966) at 931
and concluding that, “[i]f the Crown has a right to put all
the inhabitants to the sword
or to exterminate them, then surely it
has the right to suspend from office any whom it has spared and put
into office in its
service.  And it has the right to delegate
that power to the Governor of this Colony”).
[153]
Proclamation on Subdivision of Settler Lands, 27 March 1845.
[154]
Proclamation above n 165.
[155]
See for example:
Merafong City Local Municipality v AngloGold
Ashanti Ltd
[2016] ZACC 35
;
2017 (2) SA 211
(CC);
2017 (2) BCLR
182
(CC);
MEC for Health, Eastern Cape v Kirland Investments
(Pty) Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC) and.
Oudekraal Estates (Pty) Ltd v City of Cape Town
[2009] ZASCA 85; 2010 (1) SA 333 (SCA).
[156]
Gardner
above n 3 at 177.
[157]
Id at 177-8.
[158]
Id at 178.
[159]
Id.
[160]
Id at 179.
[161]
Id.
[162]
Id at 180.
[163]
Id.
[164]
Id at 183.
[165]
Id at 181.
[166]
Id.
[167]
Section 49 of Ordinance 10 of 1921.
[168]
A similar passage appears in a document titled “Salem Village
Management Board: Remarks of Judge Regarding advisability
of
subdivision of Commonage”.  It says: “[i]t is a
most unusual thing for the members of a local authority deliberately

to hand over all their right of commonage to private owners.”
[169]
Richtersveld
above n 48 at paras 53 and 57.
[170]
Id at para 53.
[171]
The majority noted that, by contrast, the evidence recorded leases
the Village Management Board granted to white farmers who
were not
owners so that they could conduct farming activities on the
Commonage (SCA judgment above n 1 at para 437).
[172]
LCC judgment above n 2 at para 162.