Promised Land. Karl Kemp
in the land by virtue of their presence, and these rights were derived and organised from the chieftaincy of Chief Dayile (variously spelt ‘Dayine’). They claimed that in 1926, pursuant to the Natives (Urban Areas) Act, the community was forced off the commonage to an adjacent location, after which the commonage land was subdivided and parcelled off to individual owners in 1940. Over several decades, the community’s location was broken up and the community itself eventually forced from the area.
The defendants contended that upon the Settlers’ arrival in 1820, the land was unclaimed by any specific chief or ‘tribe’, that they ‘zealously’ guarded access to the commonage in undivided shares among themselves, that any black people residing on the commonage were brought in on labour contracts after the 1870s, and that these labourers paid rent to the Salem Village Management Board for such privilege. The labourers were allowed their own livestock, and some were allowed to graze them on the commonage in partial fulfilment of the employer’s quota access to the land. Essentially, the black labourers on the commonage were not descended from any ‘tribe’ that had originally resided there, they did not have rights to the land other than those arising from their work contracts, they weren’t a ‘community’ other than in being a group of neighbours labouring for the Salem farmers against remuneration, and, the defendants contended, Chief Dayile was an imaginary figure. The application to subdivide the commonage into individual titles in 1940 was thus not a racially discriminatory practice but merely the conversion of what had been private communal ownership to private individual ownership. In fact, the defendants argued, the first time black people were recorded appearing on the commonage was in the wake of the great cattle-killing.
The implication was that the Xhosa had committed economic suicide and came to labour for whites due to their own actions.
There were precious few points of common cause between the parties at the outset: the definition and size of the area referred to as the Zuurveld was disputed, as was the earliest date of occupation by whites. Also challenged were the claims that the Xhosa had occupied the Zuurveld before whites did and that there were Xhosa present in the Zuurveld who were expelled by the British army in 1812.
The matter first came before judge of appeal Cassim Sardiwalla in the Land Claims Court in Grahamstown. The public galleries were packed with claimants and farmers from all over the district. There were rumours that relatives of controversial minister of rural development and land reform Gugile Nkwinti were among the claimants. It also emerged that some of the farmers had sold up to the state as far back as 2003, and that the subsequent projects had gone so awry that the beneficiaries ended up in court in 2010 as the land had turned into a squatter camp. Experts testified to sophisticated geospatial aerial photographs showing pathways from the so-called location to the commonage and argued over how old they appeared to be.
Much of Salem’s apocryphal history was excavated and put on display, including the story of Richard Gush. The chief witness for the claimants, Msele Nondzube – one of only two from the community, the other being an illiterate labourer – told this tale in a way that differed considerably from historical record, explaining that his great-grandfather had been one of the Xhosa to parley with Gush; that the Xhosa were inhabitants of the commonage; and that Gush would not have given them bread, for they were not hungry, as they were successful farmers.
Nondzube’s story was the fulcrum on which the claimants’ case turned. In a strange coincidence, his father had apparently been the most valued of all the Xhosa labourers in Salem, at whose funeral Arthur Mullins, one of the chief defendants, delivered the eulogy in isiXhosa due to their close and paternalistic relationship spanning decades.
On 2 May 2014, Judge Sardiwalla handed down a criticised judgment after a long and arduous evidentiary process. One group would inevitably be disappointed by the ruling. That group was the Salem landowners, and spectators and commentators said that the writing had been on the wall from the off, judging by the allegedly condescending treatment the landowners’ witnesses received. Their lawyers expressed shock and dismay, telling the expectant media that the landowners ‘had spent millions of rands defending the claim against their lands’.
The matter then went to the Supreme Court of Appeal (SCA) in Bloemfontein, where it was heard by a bench comprising Judges Azhar Cachalia, Ronnie Pillay, Nambitha Dambuza, Willie Seriti and Boissie Mbha. Again, the landowners came up short in a four-to-one judgment. One newspaper reported that ‘the SCA decision has been as furiously charged and contested as the history behind the claim’.
The only judge to side with the defendants, Judge Cachalia, made a scathing minority judgment that took umbrage with the gaps in reasoning and lack of proper evidentiary assessment in the court a quo. Of Indian descent, Cachalia was a founding member of the United Democratic Front (UDF) and has impeccable struggle credentials as a freedom fighter. To side with white landowners in a case about dispossession is perhaps an indication of how uncertain the historical evidence was.
In his judgment, which ran to almost 200 pages, Cachalia refuted the claimants’ argument by first setting out exactly how hard it was for black people to exercise any kind of right under colonial rule, how unfairly they were treated and how they were discriminated against. In this regard he quoted from Giliomee’s testimony: ‘Once white power had been established over the Zuurveld, the relationship between masters and servants would have evolved towards an unequal and exploitative one. This would have made it unlikely that the British settlers and their descendants would have allowed their labourers or other Africans living on the commonage to establish rights.’
Cachalia explained that on the basis of the available evidence there was no indication that black people had resided on the land on which Salem was built after 1812 and prior to the labour tenancy agreements decades later. Cachalia analysed and pulled apart every single piece of evidence led by the parties, including the letters, registers, legislation, proclamations, land claims commissioner’s reports and testimony of the witnesses – a process the lower court had casually skipped over.
He claimed that the Land Claims Court had ‘set out the evidence neither fully or fairly’ and that the report submitted by the land claims commissioner was flawed: ‘[N]either his report nor evidence is easy to follow,’ he wrote.
Most damningly, he held that the evidence of the commissioner was in some instances flatly contradicted by the claimants’ own evidence. The commissioner in question, Vincent Qube Paul, had conceded under cross-examination that he had not read several key primary reports, explaining that he did not have time to look at them, and that most of his report was based on only three interviews. When Paul was questioned as to why he had not interviewed the landowners in compiling his report, he said that the Land Claims Commission had told him not to do so because ‘that is the process of restitution, you deal with the people who are affected’.
Cachalia went on to quote the cross-examination of Paul by counsel for the defendants verbatim and at length, declaring much of his responses ‘incoherent’. The gist of Cachalia’s assessment is that Paul delivered a deeply flawed report, assumed the conclusion before starting, acted with bias and generally failed to make out anything approaching a proper historical investigation. Because of this, the claimants had had to rely on the testimony of Legassick, who was an expert witness, and not the commissioner. Coincidentally, Legassick had been Paul’s lecturer at the University of the Western Cape.
The other key bone of contention Cachalia had was with the evidence of Msele Nondzube, the elderly man who disputed the Richard Gush story. Nondzube had been the only witness to testify about the authority and existence of Chief Dayile, and most of his evidence was from oral tradition, handed down by word of mouth through the generations.
Much of Nondzube’s testimony of gravesites and old croplands, which he had pointed out during an in loco inspection, was contradicted by the experts and their geospatial analysis, and at times he contradicted himself by pointing out gravesites that were not part of the land claimed by the claimants. Whenever he was challenged, he simply referred to what his great-grandfather had told his grandfather, who had in turn told him. This concerned Cachalia, who eventually ruled that the sources of Nondzube’s testimony were unclear and should be accorded no weight. In fact, Cachalia declared, by the end of Nondzube’s cross-examination, he had conceded the landowners’ case,