Promised Land. Karl Kemp
a fact that Judge Sardiwalla completely ignored. Cachalia reasoned that Nondzube’s testimony about his great-grandfather, a man called Phuphana, from whom much of his evidence was derived, was flawed, as Phuphana would at the earliest have been born around 1845 and hence could not speak to events like the Gush incident or the settlement of the area prior to 1812.
Cachalia went on to excoriate the proceedings. In the concluding paragraphs of his judgment, he states plainly that the claimants and the commission ‘made up the case as they went along, and during argument in this court it unsurprisingly fell apart completely, with counsel unable to maintain a coherent or consistent position on any of the disputed issue’. The words ‘astonishing’, ‘shocking’ and ‘disgraceful’ appeared in his description. As a final nail in the coffin, Cachalia noted that the land claim had been lodged by a Mr Madlavu, who the Commisison could not prove had acted with the permission of the community when he lodged the claim, and that as a result the claim was ‘stillborn’ from the start.
The majority judgment was less than a third of the length of Cachalia’s. The authors, Judges Pillay and Dambuza, conceded that some of the evidence led by the claimants was ‘capable of criticism’, but responded that the evidence of the landowners was similarly tainted, and strongly emphasised the fact that the legal process in the Land Claims Court was special and unique and should be approached ‘holistically’ and in line with the purpose of the Act – namely, to offer historical justice and redress wherever possible.
Cachalia’s judgment formed the basis for a last-ditch appeal to the Constitutional Court. In this final stretch, media interest again flared up considerably. The experts had testified in person at the Land Claims Court, but both the SCA and the ConCourt dealt largely with the record only. There was far less drama, but the fact that the ConCourt was the absolute last stop on the journey was cause for coverage. What was more, the celebrated and storied jurist Edwin Cameron wrote the judgment, which was unanimously agreed upon by the other nine justices. The ConCourt charted a completely novel course, emphasising how unique and special these types of court cases are, and handed down a judgment ruling that both parties were entitled to the land in some way or another. With that order in hand, it was up to the government to go back to square one and hammer out some kind of deal between the settlers and the Xhosa that validated Cameron’s reasoning. In the justices’ own words, the claimant community was entitled to a ‘measure of restitution’ that ‘did not necessarily include the entirety of the land-owner’s farms’. What shape this deal would eventually take was unclear. Land restitution is rarely so cut and dried, and the specifics would likely take a number of years, much paperwork and a lot of taxpayer money to reach an actual conclusion.
In an article titled ‘The Wizards of Salem’, presumably a reference to the way in which the courts had seemingly magicked open the path to victory for the claimants, Robert Ross from Leiden University dubbed the Salem case a triumph of ‘history over law’, suggesting that perhaps what had been done was not technically or legally correct within the confines of the Restitution Act, but it was ‘fair’ in some way. After all, the landowners and farmers who lost the case had had ample opportunity to have their case heard and would be fairly compensated for the loss of their land, if in fact the claimants eventually opted for restoration under the eventual deal and not compensation. Of course, this complex and burdensome process is set to change if the amendment of the Constitution to allow for expropriation without compensation (EWC) is effected in some of its proposed forms.
Of key importance in the Salem case for the broader story of landownership in South Africa is the requirement of a right in land. In lay terms, did those people removed from the commonage have a legal right not to be so removed? What causes a person to have a right to a patch of earth? Almost anywhere else, this would mean they had some kind of title or other recognised ownership in the property. But the story of land in South Africa is not so straightforward.
There are three other important features of this case that speak to the current land debate in South Africa. Firstly, two groups of witnesses from the two broad categories of contestants in the larger land conflict in the country – white landowners and dispossessed black persons – testified under oath and each contradicted the other’s version of events. Neither could be swayed, by documentary evidence or otherwise.
Secondly, there was the thrust of the two historians’ arguments. Legassick contended that the Xhosa were so united in their homogeneity at the time that any Xhosa could lay claim to any territory under their dominion by virtue of ‘indigenous’ rights, essentially meaning that some members of the Xhosa people had reached the Zuurveld first, and the type of presence they had established in their time there was immaterial. Giliomee contested this, and counsel for the landowners reasoned that setting such a precedent would open the floodgates for any individual identifying as Xhosa to claim any part of the Zuurveld, or indeed the province – and perhaps beyond. This exact issue cropped up in February 2020, when Votani Majola, styling himself Emperor Thembu II of the AbaThembu Royal Empire, put in a land claim for ‘the whole of South Africa’, asserting that the Thembu people were the first to arrive in the country over 2 300 years ago, before even the Khoikhoi. This despite the fact that the Thembu are a Xhosa grouping (which they dispute) and therefore relative newcomers compared to the Khoikhoi and Tswana. Parliament’s committee for special petitions accepted the ludicrous claim, and a debate in the National Council of Provinces has been put on the agenda.
Thirdly, despite the testimony of two experts specialising in the history of the area, a coterie of witnesses, and an incredible number of historical articles, primary sources and research output on the part of dozens of other professional historians, it still took five years of litigation to reach a judgment on the ‘truth’, a result which no doubt will not convince anyone as to the ‘facts’. Who wants to listen to such a long, intricate story today? Especially in light of the fact that apartheid provided an irrefutable litany of atrocities, many related to landownership. Why argue when the moral high ground is so obvious?
There have been almost 32 000 land claims (many amalgamated) lodged in the Eastern Cape since the opening of the claims process. Of that total, just under 17 000 have been settled, to the benefit of almost 350 000 Eastern Cape residents. Despite this, the province has remained the most impoverished in the country. Hundreds of thousands, if not millions, of people have flocked from the Eastern Cape to Gauteng and the Western Cape in search of economic opportunity and continue to do so. The province comfortably holds the record for domestic out-migration in South Africa, and more than 30 per cent of the provincial population does not live in formal housing. The Eastern Cape is the lowest contributor per capita to the country’s overall GDP, and tribal authorities still hold sway, driven by the single largest industry in the province: government. If every single land claim was settled immediately and the land ‘returned’, would this situation be remedied? Presumably not.
In a somewhat underreported part of the tale of the Salem claim, Msele Nondzube told the press in the wake of the judgment that ‘while we are pleased [with the court’s decision] we have no jobs and no income, and no subsidy from government to cultivate the land we do have’.
2
‘Return the Land’
ALMOST TWO DECADES after the Salem claim was first lodged, the failure of land reform in South Africa was laid bare in the High Level Panel report on ‘key legislation and the acceleration of fundamental change’. The report is a document over 600 pages long, written by a panel chaired by former interim president Kgalema Motlanthe, and was released in November 2017, a month before Cyril Ramaphosa emerged from a bloody battle at the ANC’s Nasrec conference to secure the party presidency. The report covers everything from refugees to nation-building, but its key theme is land, specifically the redistribution and restitution thereof, as well as the upgrading of tenure for those who ‘have’ land but do not formally own it. It also contains a host of allegations about the breakdown of land administration and pervasive corruption, none of which were revelatory, but that they were published in an important, government-approved document was significant.
The modern South African land reform programme is a process started in 1997 by a white paper tabled in Parliament, with the aim of addressing a sector-specific legacy of apartheid’s uneven