The Constitutional Court has upheld a judgment finding that the Salem community near Grahamstown, which is claiming a vast tract of valuable farm and other land in Salem, held a valid right and claim over the land.
But in an unexpected twist, it found that the white settlers who occupied the land in the early 1800s also enjoyed equal and parallel rights over the contested area.
The judgment, on the face of it, seems to confirm the Land Claims Court’s (LCC) 2014 judgement and the Supreme Court of Appeal’s subsequent judgment earlier this year, ruling that the community, consisting of 378 households, had a valid claim over the land.
But the ConCourt’s finding that the white settlers had, over more than a century, also developed some rights to the land is likely to complicate the next part of the LCC’s inquiry, which has to do with restitution.
Having now established – following a seven-year -long journey traversing the LCC, the SCA and the Concourt – that the claimants have a valid claim – the matter reverts back to the LCC, which must now rule on the feasibility of restitution. This requires that the claimants build a case for acquisition or appropriation of the land.
The unanimous and nuanced judgment, penned by ConCourt Judge Edwin Cameron, says the community is entitled to a measure of restitution “which does not necessarily include the landowners’ entire farms”.
“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”.
Some landowners have already agreed to settlements in terms of which they were paid out for the land, which will be restored to the community.
Other farmers contested the community’s claim, saying that the AmaXhosa had never occupied the commonage or held a right in the land.
The commonage the Salem community laid claim to is situated in a winding green valley where the settler party settled in the early 1800s. The commonage was divvied up in 1940 between the descendants of the original Salem party of the 1820 settlers. The division of the land was made an order of the then Grahamstown Supreme Court in 1941. But the Salem community says their ancestors also lived on the land and enjoyed rights over it including grazing for their cattle and burial rights.
Much of the 6594 hectares of now valuable farmland is largely run by white-owned agricultural and game enterprises. Some of the commonage remains a common use area and includes the Salem cricket field and church.
Cameron found the suggestion contained in the LCC’s judgment that the community was entitled to the return of the old commonage “as a whole” was neither right nor just.
He cautions that the final order of the LCC must reflect an “accommodation of both groups’ entitlements”.
An attorney for the farmers, Bertus Van Der Merwe, yesterday said the judgment offered a “win-win” solution and he hoped that the issue of restitution could now be settled without further litigation.
“We hope that the communities can now live together in peace and harmony.”
The chairman of the Salem Community Property Association, Misile Nondzube, could not be reached for comment.
Salem to ‘live in peace together’
But in an unexpected twist, it found that the white settlers who occupied the land in the early 1800s also enjoyed equal and parallel rights over the contested area.
The judgment, on the face of it, seems to confirm the Land Claims Court’s (LCC) 2014 judgement and the Supreme Court of Appeal’s subsequent judgment earlier this year, ruling that the community, consisting of 378 households, had a valid claim over the land.
But the ConCourt’s finding that the white settlers had, over more than a century, also developed some rights to the land is likely to complicate the next part of the LCC’s inquiry, which has to do with restitution.
Having now established – following a seven-year -long journey traversing the LCC, the SCA and the Concourt – that the claimants have a valid claim – the matter reverts back to the LCC, which must now rule on the feasibility of restitution. This requires that the claimants build a case for acquisition or appropriation of the land.
The unanimous and nuanced judgment, penned by ConCourt Judge Edwin Cameron, says the community is entitled to a measure of restitution “which does not necessarily include the landowners’ entire farms”.
“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”.
Some landowners have already agreed to settlements in terms of which they were paid out for the land, which will be restored to the community.
Other farmers contested the community’s claim, saying that the AmaXhosa had never occupied the commonage or held a right in the land.
The commonage the Salem community laid claim to is situated in a winding green valley where the settler party settled in the early 1800s. The commonage was divvied up in 1940 between the descendants of the original Salem party of the 1820 settlers. The division of the land was made an order of the then Grahamstown Supreme Court in 1941. But the Salem community says their ancestors also lived on the land and enjoyed rights over it including grazing for their cattle and burial rights.
Much of the 6594 hectares of now valuable farmland is largely run by white-owned agricultural and game enterprises. Some of the commonage remains a common use area and includes the Salem cricket field and church.
Cameron found the suggestion contained in the LCC’s judgment that the community was entitled to the return of the old commonage “as a whole” was neither right nor just.
He cautions that the final order of the LCC must reflect an “accommodation of both groups’ entitlements”.
An attorney for the farmers, Bertus Van Der Merwe, yesterday said the judgment offered a “win-win” solution and he hoped that the issue of restitution could now be settled without further litigation.
“We hope that the communities can now live together in peace and harmony.”
The chairman of the Salem Community Property Association, Misile Nondzube, could not be reached for comment.
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