Press Release: Constitutional Court’s interpretation of Restitution Act affirms Salem community’s rights to commonage
Published by Legal Resources Centre 11 December 2017
For Immediate Release: 11 December 2017
Today, 11 December 2017, in the Constitutional Court, a small community who occupied and utilised part of the Salem Commonage in the Eastern Cape had their rights to the land recognised and provided with the opportunity to go back to the Land Claims Court in order to determine restoration of the land, as they were dispossessed of their rights to the land in 1940.
The Legal Resources Centre represented the Association for Rural Advancement as a friend of the court, providing evidence as to, firstly, how international law has critiqued a principle in which the law at the time is considered the correct law to apply, arguing that even though the law at the time may not have recognised customary law, under our Constitution which recognises customary law, the Salem community have exercised customary practices.
Secondly, we argued that the Restitution of Land Rights Act permits hearsay or oral evidence when it is interpreted through Constitutional principles. Land Claims are a class of their own, and when adjudicating on their outcomes, should have oral evidence permitted as a form of evidence gathering.
The case concerns a group of amaXhosa people who settled on and utilised the Salem Commonage before 1913. The Commonage was also being utilised by a group of white settlers, represented by the Salem Party Club and various farmer/landowner parties. In 1940, the Commonage was subdivided, depriving the Salem community of their rights to the land. Evidence shows that some of the community left, while some were employed as labour tenants.
The descendants of the Salem community are the land claimants who made a land claim in 1998, with the Salem Party Club and others contesting the claim. The case was heard in the Land Claims Court and Supreme Court of Appeal, both confirming that the Salem community held rights to the land, which they had been deprived of.
On appeal to the Constitutional Court, the Court had to decide on whether the Salem Community had rights to the land as established through the requirements expounded by Department of Land Affairs v Goedgelegen Tropical Fruits Pty Ltd 2007(6) SA 199 (CC); i.e. 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 2013.
The Constitutional Court found, like in the LCC and SCA, that the Salem community did satisfy these requirements. Evidence was provided in the lower courts through oral testimonies, as well as interpretations by academics of the history of the Salem Commonage. It shows that from 1878, a growing community of amaXhosa were living on the Commonage and utilising it. Further, this community constituted a “community” or group as required under the Restitution Act when making a land claim, as they had interacted with each other over a long period of time, forming rules and rituals, such as initiation ceremonies.
The Constitutional Court also found that the rights to the land derived from the use of the land and their self-regulation in this respect – and not from the white settler’s actions or consent. “The Community that lived at and on the Salem Commonage after 1878 utilised the Commonage in accordance with its traditional rules and conventions. 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.”
Furthermore, the Court found that the subdivision of the land without paying attention to or without consultation with the Salem community was racially discriminatory.
When considering the next course of action for the Salem community, the Constitutional Court recognised that the white settlers’ descendants also hold rights to the land; hence, to restore land to the community in whole would prejudice the rights of the landowners. The Court finds that, “[t]he 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.”
The LRC welcomes the judgment as a interpretation of the Restitution of Land Rights Act that is just and fair.