Farmland belongs to all who live in it

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

It also dismissed the white settlers' appeal against the judgments of the Land Claims Court and the Supreme Court of Appeal.

The white owners, who said they occupied the land from 1820 following the conquest of the Xhosa nation by the British during the Fourth Frontier War (1811-1812), wanted the ConCourt to set aside an appellate court's judgment, passed in December 2016.

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

The 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 occupying 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 or to equitable redress.

In his judgment on Monday, ConCourt Justice Edwin Cameron said the Land Claims Court order implied that the community was entitled to the return of the commonage.

He 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 ruled.

Cameron said since the community's rights never excluded the Salem party's rights in the commonage, the community couldn't alienate them from any part of the commonage.

He 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.