20 years later, Eastern Cape community wins right to its land

The Supreme Court of Appeal has ruled on a large portion of land in the Eastern Cape, in dispute for 20 years. Photo: Ben Bezuidenhout via Wikimedia (CC BY-SA 4.0)

• Two communities claimed a piece of land in the Eastern Cape, including the Fish River Sun resort.
• The Land Claims Court awarded the land to the Prudhoe community.
• The AmaZizi community appealed against this decision.
• The Supreme Court of Appeal upheld the decision, referring to colonial and apartheid history to establish the rights of the Prudhoe community to the land.

The Supreme Court of Appeal (SCA) has upheld the landmark decision by the Land Claims Court to award a large portion of land, including the Fish River Sun resort, to the Prudhoe Community. This means the Prudhoe Community will finally be awarded their land after lodging their claim more than 20 years ago.

The case concerns a dispute over a large portion of land in the Eastern Cape including the Fish River Sun Resort. Two communities, the AmaZizi Community and the Prudhoe Community, each laid claim to the land in question.

On 10 April 2018 the Land Claims Court awarded most of the land to the Prudhoe community. The AmaZizi community then appealed this decision to the SCA arguing that they and not the Prudhoe community should be awarded the land.

In order to be entitled to restitution of land, a claimant must prove four things:

• that they constitute a “community” with rights in respect of the land. A “community” is defined as “any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group”;
• that they were dispossessed of these land rights as a result of racially discriminatory practices after 19 June 1913;
• that they did not receive just and equitable compensation; and
• that they lodged a land claim before 31 December 1998.

Oral argument was heard by the Court in March 2020.

During the proceedings it was common cause that both communities had lodged their claim before the cut-off date of 31 December 1998. Everything else was disputed.

The SCA had to determine two main issues. First, whether the Prudhoe community met the requirements for a “community” in terms of the Restitution Act. Second, which of the two communities had established previous enjoyment of rights on the land in question and subsequent dispossession of those rights. Both these issues turned on the particular record of the colonial and apartheid history of land dispossession in the area which was disputed by the parties.

Before the matter was heard, the AmaZizi community abandoned thirteen farms and the Prudhoe Community eight farms.

The Court emphasised that the meaning of “community” is not rigid. In fact, it cited a Constitutional Court decision which emphasized that the Restitution Act sets a low threshold to qualify as a community.

The AmaZizi’s key witness McDonald Fumene Matiwane argued that members of Prudhoe were actually just members of AmaZizi who fell under the chieftainship of an AmaZizi chief. Also, according to Matiwane, they were merely labour tenants for white farmers in the area, not a distinct traditional community. Matiwane also pointed out the short distance between the AmaZizi and Prudhoe communities.

But the SCA ultimately rejected Matiwane’s reasoning because he made a number of concessions. He conceded that the members of Prudhoe were descendants of the AmaGqunukhwebe tribe, which is a distinctive tribe associated with the AmaXhosa unlike the AmaZizi who are not Xhosa and have their roots in the AmaMfengu. Second, Matiwane conceded that he, and all members of the AmaZizi had only ever lived in the tribal areas as opposed to the land in question. Third, Matiwane conceded that Prudhoe headmen allocated plots of land in the area, not the AmaZizi chief.

The Court found that the Prudhoe claimants met the requirements for a community because they had a distinct orderly settlement pattern; common traditional practices; pooling of resources for farming; organised economic activity and firm indigenous leadership structures.

Restitution

The restitution issue turned on the history of land dispossession in this area which was in dispute.

Some of the relevant historical facts were:

- In 1836, Andries Stockenstrom, the Lieutenant-General of the Eastern Provinces, entered into treaties with several African tribes including the AmaGqunukhwebe. Notably the treaties recognize the Fish River as the boundary between the Cape Colony and the various Xhosa territories.

- In 1845, Sir Peregrine Maitland, the Governor of the Cape Colony, entered into treaties with various African tribes which confirmed the land rights outlined in the 1836 treaty.

- In 1847, Sir Harry Smith issued a Proclamation to annul all previous treaties between the British Empire and African tribes over the land in question.

The AmaZizi argued that the Proclamation of 1847 did not extinguish their rights, but it did extinguish the rights of the AmaGqunukhwebe. This is because the AmaZizi never contravened earlier treaties because they remained loyal to the British, unlike the AmaGqunukhwebe who fought against the British in later Frontier Wars.

The Court however found that this argument was flawed for several reasons. First, even if this argument was correct, the Maitland treaty only allowed tribes to retain a right over land they already held. Because the AmaZizi never had a claim to the AmaGqunukhwebe’s land, the Proclamation would not entitle them to the land.

Second, the Court found that the land had been occupied by the Prudhoe Community from 1913 until forced removals in the 1970s.

The Prudhoe community traced its roots to the AmaGqunukwhebe. Despite the presence of white farmers, the Court found, it was clear that between 1847 and the 1970s, they continued to function as a community, in accordance with their own rules, under conditions of settler colonialism. They were dispossessed of these rights during the apartheid government’s policies in the 1970s which sought to establish the Ciskei homeland.

As a result, the Court dismissed the AmaZizi’s appeal and confirmed the order of the Land Claims Court, save for the farms which each community had abandoned before the matter was heard.

The Prudhoe Community was awarded most of the land.

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