Black and white should live together on Salem Commonage: ConCourt

The indigenous community of Salem in the Eastern Cape does not have exclusive rights to the Salem Commonage‚ which comprises of thousand of hectares of valuable farmland‚ the Constitutional Court has ruled.

The Constitutional Court dismissed the settlers’ appeal against the judgments of the Land Claims Court and the Supreme Court of Appeal.

The white land owners‚ who said they occupied the land from 1820 following the conquest of the Xhosa nation by the British during the Fourth Frontier War between 1811 and 1812‚ wanted the Constitutional Court to set aside the judgment of the Supreme Court of Appeal‚ passed in December 2016.

The appeal court‚ in a 4-1 decision‚ had dismissed the land owners’ appeal against a 2014 Land Claims Court judgment‚ which found that the community of black people existed in the area and that they had been dispossessed of the land after June 19 1913.

The Salem community claimed it was dispossessed of its right to the commonage from about 1947 until the 1980s. It also claims that about 500 members were in occupation of the commonage.

An order by the Grahamstown Supreme Court in 1940 subdivided the commonage among the white settlers.

The constitution states that a community dispossessed of land after June 19 1913‚ as a result of past discriminatory laws‚ is entitled either to restitution of property or to equitable redress.

In his judgment on Monday‚ Constitutional Court Justice Edwin Cameron said the Land Claims Court order implied that the community was entitled to the return of the commonage as a whole. Cameron said that was how the Land Claims Commission had understood the order.

“If so‚ that would not be right or just.”

Cameron found that the Salem party of settlers did not possess exclusive rights in the commonage before 1940.

“So‚ too‚ the rights the community exercised over the commonage did not exclude the settlers from possessing and exercising their rights in the commonage.”

He said since the community’s rights never excluded the Salem party’s rights in the commonage‚ the community could not alienate them from any part of the commonage.

Cameron said the history of the commonage revealed a richness and complexity in which both the black community and the white landowners enjoyed a living‚ functional relationship with the land.

“For this complexity‚ the Restitution Act makes provision. The community is entitled to a measure of restitution‚ which does not necessarily include the landowners’ entire farms‚” Cameron said.

“The appropriate opportunity for exploring this will be when the question of restoration is considered at the second stage of the trial before the Land Claims Court.”

In his judgment‚ Cameron said archival materials established that from 1878 a growing community of black people was living on the commonage and using the land for habitation‚ farming‚ drawing water‚ grazing of stock‚ traditional practices and burials.

Cameron said after the 1940 court order‚ a report by the Native Commissioner for Grahamstown dated July 15 1941 recorded that the European population of the village was between 90 and 100 people with 25 families‚ while the native population was about 500‚ of whom about 50 worked as servants for the settlers.

Cameron said the 1940 court order provided for the subdivision and the allocation of the commonage to the white landowners by individual title. Thereafter‚ the black population was dispersed.

“And it prompts an inevitable inference of fact. It is that the dispersal of the community was a direct consequence of the court order.”