“THIS LAND IS MINE!”: AN ANALYSIS OF THE DECISION OF THE LAND CLAIMS COURT IN THE CASE OF THE SALEM COMMUNITY v THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS (LCC27-09) [2014] ZALCC 11 ٭Khulekani Moyo Senior Lecturer, Nelson Mandela School of Law, University of Fort Hare, South Africa ٭٭Obeng Mireku Professor of Law and Dean, Nelson Mandela School of Law, University of Fort Hare, South Africa 1 INTRODUCTION Land restitution in South Africa is explicitly provided for under the South African Constitution (Constitution)1 and the Restitution of Land Rights Act (Restitution Act).2 The Restitution Act explicitly defines a set of criteria according to which claimants are entitled to restoration of land or equitable redress. The Restitution Act entitles a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices to claim restitution or other equitable redress. In Devenish’s view, this remedial legislation was necessary in order to address the disempowerment of the indigenous people of South Africa as a result of the tragic history of land.3 Although there are land restitution programmes across the globe,4 the South African approach is unique in that restitution affects not only State land but also threatens private property rights acquired through the country’s long history of racialised dispossession. Essentially, restitution entails the redistribution of an asset with a view to making a .(LLB (UZ); LLM (Oslo); LLD (Stellenbosch); Dip Human Rights (Finland٭ .(LLB (Hons) (Ghana), LLM (Witwatersrand), Dr. Jur. (Germany٭٭ 1 See section 25(7) of the Constitution of South Africa,1996 (Constitution). 2 See Restitution of Land Rights Act 22 of 1994 (Restitution Act). 3 G E Devenish “Department of Land Affairs v Goedgelegen Tropical Fruits —A Triumph for Teleological Interpretation, An Unqualified Contextual Methodology and the Jurisprudence of Ubuntu” 2008 South African Law Journal 231. 4 Langford and Moyo “Right, Remedy or Rhetoric? Land Restitution in International Law” 2010 Nordic Journal on Human Rights 143-176. 108 “THIS LAND IS MINE!” meaningful difference to the living standards of the beneficiaries of land restitution who might have been impoverished by land dispossession.5 This is in accordance with the constitutional vision which seeks to redress the injustices of the past, especially for the indigenous Black people who “suffered under the daily, soul-destroying indignities of apartheid”6 but also to create a society based on democratic values, social justice and fundamental human rights.7 The post-apartheid government has engaged in an ambitious programme of land redistribution and restitution, constituting acknowledgement that the legacy of land dispossession continues to shape the life chances of those affected and their descendants.8 Apart from land dispossession, Black people in South Africa were subjected to systemic deprivation and discrimination in their access to socio-economic needs such as water, healthcare, food, housing, social security and education because of apartheid policies.9 The land restitution programme thus enables former landholders or their descendants to reclaim spaces and territories which formed the basis of earlier identities and livelihoods or equitable relief.10 For the dispossessed in South Africa and elsewhere across the world, land “is both material and symbolic, a factor of production and a site of belonging and identity.”11 As noted by Zirker: “In apartheid South Africa, land was the pillar of the apartheid structure. The apartheid government used land as a means of economically and socially suppressing the African majority. By depriving Africans of property rights the foundation was set for profound poverty and social instability. The deprivation of property rights set the stage for the profound adversity Africans endured under apartheid.”12 Not surprisingly, return of the land was a rallying cry of the anti-apartheid struggles, and in the 1990s, as the transition was made towards a democratic South Africa, hopes were high 5 Fay and James “Giving Land Back or Righting Wrongs? Comparative Issues in the Study of Land Restitution” in Walker et al (eds.) Land, Memory, Reconstruction, and Justice: Perspectives on Land Claims in South Africa (2010)1 9. 6 Liebenberg Socio-Economic Rights Jurisprudence xxi. 7 See preamble to the Constitution. 8 Hart Disabling Globalization: Places of Power in Post-Apartheid South Africa (2002) 39. 9 Liebenberg Socio-Economic Rights: Adjudication under a Transformative Constitution (2010) xxi. 10 Fay and James “Giving Land Back”1. 11 Shipton “Land and Culture in Tropical Africa: Soils, Symbols and the Metaphysics of the Mundane” 1994 Annual Review of Anthropology 347-77. 12 Zirker “This Land is my Land: The Evolution of Property Rights in South Africa” 2003 Connecticut Journal of International Law 621. 109 SPECULUM JURIS VOLUME 29 PART 1 2015 that stolen lands would be returned.13 Land restitution was so important as a high priority issue for the transition to democracy in South Africa that special authorisation for land restitution legislation was built into the interim Constitution,14 but also that the Restitution Act was one of the first statutes to be passed by the post-apartheid legislature. As noted by the Constitutional Court in the case of Department of Land Affairs v Goedgelegen Tropical Fruits (Popela), land, for the indigenous people of South Africa, “had a cultural and spiritual dimension that rendered the destruction of the rights more than economic loss.”15 It is within the above context that land restitution, and its twin cousin, land redistribution, are being carried out in South Africa. In the case of The Salem Community v The Government of the Republic of South Africa and Others (Salem case),16 the plaintiff community, the Salem Community, brought a restitution claim for a piece of land in terms of the of the Restitution Act before the Regional Land Claims Commission, Eastern Cape (Commission). The Commission subsequently referred the case to the Land Claims Court (LCC) and the decision was delivered by the LCC sitting at Grahamstown on 2nd May 2014 by Acting Judge, Cassim Sardiwalla. This is an important case which, on one hand touched a highly emotive issue in a post-apartheid South Africa, given the potential effects of land restitution on prevailing systems of property rights and the economy and on the other, a test of the constitutional commitment to redress systemic inequalities and social injustice arising from the past and to speedily eradicate economic and social inequalities produced by racial discrimination. As noted by the LCC, “[t]he claim goes to the very heart of early contact and subsequent conflicts recorded in history books between the early British settlers who came in the 1820s and the native occupants.”17 Section 1 the Restitution Act defines “restoration of a right in land” to mean “[t]he return of a right in land or a portion of land dispossessed after 19 June 1913 as a result of past racially discriminatory laws or practices.” As prescribed by section 2(1) of the Restitution Act, in 13 Barry “Now Another Thing Must Happen: Richtersveld and the Dilemmas of Land Reform in Post-Apartheid South Africa” 2004 South African Journal On Human Rights 355 356. 14 See sections 121-23 of the Constitution of the Republic of South Africa Act 200 of 1993. 15 Department of Land Affairs v Goedgelegen Tropical Fruits 2007 (6) SA199 (CC) (Popela). 16 The Salem Community v The Government of the Republic of South Africa and Others [2014] ZALCC 11. 17 Salem Community para 1. 110 “THIS LAND IS MINE!” order to establish entitlement to restitution, members of the plaintiff community had to allege and prove that they were: (1) a community who themselves or their forebears; (2) had been dispossessed of their rights in the subject land; (3) after 19 June 1913; (4) as a result of past racially discriminatory laws or practices; and, (5) no just and equitable compensation was received for the dispossession. The following section deals with the facts of the case, highlighting the key issues on which the LCC had to make a determination. 2 FACTS OF THE CASE In the Salem case, the plaintiff submitted a restitution claim relating to the land which in the court judgment is described as “the Commonage in Salem that was subdivided and the Native location which was established and then disestablished.”18 For the sake of convenience, the land subject of this claim would be referred in this casenote as “Salem” or the “subject land.” Salem, which lies about 20km from Grahamstown, was founded in 1820 when British settlers arrived there and had subsequently become known as a settler village. From the 1940s, the area was sub-divided up between descendants of the 1820 settlers. The Salem Community alleges that it lost land rights enjoyed at the time. It was alleged that Salem Community members were forced to make a choice to remain as labourers on the farms of the settlers or move away.19 Some of the properties that were part of the plaintiff’s original claim were subsequently restored by the State defendants to the Salem Community and due compensation paid to the respective landowners. Consequently, the State decided to support the Salem Community’s land restitution claim. The LCC had to decide on the remainder of the Salem land that had not been restored which claim was opposed by the landowners. The defendants’ response to the Salem Community’s claim was that the plaintiff does not constitute a community as defined in section 1(iv) of the Restitution Act; in the alternative, even if such a community existed such community did not have any right in land as defined in section 1(xi) of the Restitution Act; the subdivision of the commonage was not as a result of the application of any racially discriminatory law or practice; the plaintiff never held rights 18 Salem Community para 1.