IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO. CCT 26 / 2017

SCA CASE NO. 20626 / 14

LCC CASE NO. 217 / 2009

In the matter between :

THE SALEM PARTY CLUB 1ST APPLICANT

THE LINDALE TRUST 2ND APPLICANT

HENDRIK JOHANNES NEL 3RD APPLICANT

CUAN KING 4TH APPLICANT

JOHAN GOTTFRIED STANDER &

MARIA PAULINA PHILIPINA STANDER

5TH APPLICANT

DAVID CRAWFORD GOWANS 6TH APPLICANT

WILLEM CHRISTIAAN LODEWYK

SCHOONBEE

7TH APPLICANT

EZRA CHRISTIAAN SCHOONBEE 8TH APPLICANT

KIKUYU LODGE 9TH APPLICANT

JONATHAN FLETCHER HARRIS 10TH APPLICANT

2 | P a g e

PATRICK GRANT BRADFIELD 11TH APPLICANT

E.S.A. LODGES (PTY) LTD 12TH APPLICANT

SEVEN SUMMITS PROPERTY

INVESTMENTS (PTY) LTD

13TH APPLICANT

KENNETH JAMES SEYMOUR

RICHARDSON

14TH APPLICANT

PHILLIP GEOFFREY AMM 15TH APPLICANT

PATRICK GRANT BRADFIELD 16TH APPLICANT

and

THE SALEM COMMUNITY 1ST RESPONDENT

THE GOVERNMENT OF THE REPUBLIC

OF SOUTH AFRICA

2ND RESPONDENT

THE MINISTER OF RURAL

DEVELOPMENT & LAND REFORM

3RD RESPONDENT

THE CHIEF DIRECTOR OF THE

DEPARTMENT OF LAND AFFAIRS

5TH RESPONDENT

THE PROVINCIAL OFFICE OF THE

DEPARTMENT OF RURAL

DEVELOPMENT & LAND REFORM

6TH RESPONDENT

3 | P a g e

THE MAKANA MUNICIPALITY 7TH RESPONDENT

THE REGISTRAR OF DEEDS 8TH RESPONDENT

THE LAND CLAIMS COMMISSION

EASTERN CAPE

9TH RESPONDENT

APPLICANTS’ WRITTEN ARGUMENT

TABLE OF CONTENTS PAGE

2. INTRODUCTION 4

3. LEAVE TO APPEAL 6

4. LEGISLATIVE FRAMEWORK 9

5. ISSUES OF PROOF AND ONUS IN THE LCC 16

6. THE APPROACH ON APPEAL 19

7. THE CHANGING NATURE OF CLAIMANT’S CLAIMS

22

8. THE EXTINGUISHING OF INDIGENOUS RIGHTS 31

9. OCCUPATION OF SALEM FROM 1811 TO 1943 35

10. DISPUTES ON THE ORAL EVIDENCE 39

11. EQUAL AND FAIR TREATMENT 44

12. CONCLUSION 46

4 | P a g e

2. INTRODUCTION

2.1. The First Respondent (“the Claimants”) submitted a claim

form in terms of Section 10 of the Restitution of Land

Rights Act 22 of 1994 for the restoration of rights in land in

respect of the portion of land previously known as the

Salem Commonage, the total extent being 7698 morgen

(6 594.87 hectares).

2.2. The Ninth Respondent (“the Commission”) participated

and called witnesses (Mr Vincent Quba Paul, Professor

Martin Legassick and Mr Garth Chandler).

2.3. The Claimants called two witnesses : Mr Msele Nondzube

and Mr Ndoyityile Ngqiyaza.

2.4. The landowners (who are Applicants herein) called seven

witnesses :

• Professor Hermann Giliomee

• Mr David Mullins

• Mr Spencer Hill

5 | P a g e

• Mr Cuan King

• Mr Albert van Rensburg

• Mrs Alice Bradfield

• Mrs Ethel Page

2.5. The judgment in the Land Claims Court (“LCC”) which was

delivered on 2nd May 2014 held that a community existed

as defined in the said Act and that such community was

dispossessed of their rights in the land after 19th June

2013.

2.6. On 19th September 2014 leave to appeal was granted by

the LCC to the Supreme Court of Appeal (“SCA”) against

its judgment.

2.7. On 13th December 2016 the SCA dismissed the appeal.

This comprised of a Majority Judgment (Pillay and

Dambuza JJA, Seriti and Mbha JJA concurring) and a

Minority Judgment (Cachalia JA dissenting).

2.8. In this application for leave to appeal Applicants will rely

generally on the Minority Judgment for the correct

6 | P a g e

summary of and interpretation of the evidence and the

correct legal principles to be applied in evaluating the

evidence and the issues in general.

2.9. Applicants contend that the LCC and the Majority

Judgment erred in their evaluation of the evidence and

their application of the principles to the issues and in

particular their failure to appreciate and apply the

probabilities from the objective and archival evidence

against the evidence of the Claimants and the Commission

on one side, and the Applicants on the other. It is

submitted that on the material issues the objective and

archival evidence was in harmony with that of the

Applicants and contrary, either clearly or circumstantially,

to the evidence of the Claimants and the Commission,

which should have been rejected.

2.10. Claimants bore the onus of proving their case on a

balance of probabilities, which it is submitted they failed to

do.

3. LEAVE TO APPEAL

7 | P a g e

3.1. The jurisdiction of the Constitutional Court was widened by

the amendment to the Constitution affected by the

Constitution Seventeenth Amendment Act1 Section 167 (3)

(b) provides that the Court may hear either :-

i. a constitutional matter; or

ii. any other matter which raises an arguable point of

law of general public importance that this Court

should consider.

3.2. It must also be in the interests of justice for the Court to

hear the matter2.

3.3. The issues must be “constitutional matters” to entitle this

Court on this leg to entertain the appeal. The ambit of

such matters in relation to land reform and claims for

restitution were dealt with in Alexkor Ltd v The

Richtersveld Community.3

3.4. The Richtersveld (CC) case and Department of Land

Affairs v Goedgelegen Tropical Fruits4 indicate that

issues of land restitution are located in the heart of Section 1 72 of 2012 with effect from 23

rd August 2013.

2 Paulson v Slipknot Investments 777 (Pty) Ltd ● 2015 (3) SA 479 (CC) at paras 12 – 31.

3 2004 (5) SA 460 (CC) at paras 19 – 32.

4 2007 (6) SA 199 (CC) at paras 30 – 32.

8 | P a g e

25 of the Constitution and are therefore constitutional

matters.

3.5. The case made in respect of the issues herein are made in

the application for leave to appeal in paragraphs 8 and 10

of the founding affidavit.5

3.6. Included herein is a claim that Applicants were not treated

fairly or equally by the trial judge in the LCC, and as such

is a denial of Applicants’ rights under Sections 9 and 34 of

the Constitution.

3.7. These are also constitutional issues.

3.8. The matter which raises arguable points of law of general

public importance are the effects of conquest on various

other parts of South Africa, and the operation of the

Restitution Act thereto.

3.9. Furthermore there is a broad requirement of whether by

hearing the case the interests of justice will be advanced.

5 Record : Application : Volume 1 : pages 25 - 40.

9 | P a g e

This involves a careful and balanced weighing-up of all the

relevant factors which are case specific.6

3.10. It is submitted that in all the circumstances set out herein,

the Applicants have reasonable prospects that this Court

will reverse or materially alter the Majority Judgment in the

SCA.

3.11. Applicants therefore submit that leave to appeal should be

granted.

4. LEGISLATIVE FRAMEWORK

4.1. The source of the right relied upon by Claimants is

contained in Section 25 (7) of the Constitution. This

provides that any person or community dispossessed of

property after 19th June 1913 as a result of discriminatory

laws and practices is entitled to either restitution of that

property or to equitable redress. This is provided to be

done through an Act of Parliament.

6 Radio Pretoria v Chairperson, ICASA ● 2005 (4) SA 319 (CC) at paragraphs 19…

10 | P a g e

4.2. This Act is the Restitution of Land Rights Act 22 of 1994.

(“the Restitution Act”)

4.3. The primary objective of the Restitution Act is to undo

some of the damage wreaked by decades of spatial

apartheid and in particular to provide redress to those

individuals and communities who were dispossessed of

their land rights by the policies of the Government.7

4.4. In order to afford these rights a purposive and generous

interpretation must be adopted in order to achieve the

objects of the Restitution Act.8

4.5. In this matter the identification of qualification as a

Claimant is that contained in Section 2 (1) (d) of the

Restitution Act which provides that :-

“it is a community or part of a community dispossessed of a

right in land after 19 June 1913 as a result of past racially

discriminatory laws or practices.”

4.6. This means that there must be a community or part of a

community that exists at the time the claim is lodged and

7 Richtersveld (CC) at para 98.

8 Goedgelegen at para 53.

11 | P a g e

must also have existed sometime after 19th June 1913 and

must have been a victim to racial dispossession of rights in

land. Furthermore to constitute a community there must

be a sufficiently cohesive group of persons and some

element of commonality between the claiming community

and the community that was dispossessed.9

4.7. The meaning of the word community cannot be limited to

infer an accepted tribal identity and hierarchy but what is

required is that the group had shared rules relating to the

access and use of land.10 This is the acid test : did the

Claimants derive their possession and the use of the land

from common rules.11

4.8. A “right in land” is defined in the Restitution Act as :-

“… any right in land whether registered or unregistered,

and may include the interest of a labour tenant and

sharecropper, a customary law interest, the interest of a

beneficiary under a trust arrangement and beneficial

occupation for a continuous period of not less than 10

years prior to the dispossession in question;”

9 In Re : Kranspoort Community ● 2000 (2) SA 124 (LCC) in paragraph 34 and Goedgelegen at

para 39. 10

Goedgelegen at para 41. 11

Goedgelegen at para 45.

12 | P a g e

4.9. An examination in each case should be conducted to

determine the nature and the content of the land rights and

where such rights are derived from, whether it be common

law, customary law or some other source. It must involve

a study of the history of a particular community and its

usages.12

4.10. The Restitution Act provides an exceptional means by

which the issues that come before it can be decided.

Section 30 provides in sub-sections (1) (2) and (3) as

follows :-

“30 Admissibility of evidence

(1) The Court may admit any evidence, including

oral evidence, which it considers relevant and

cogent to the matter being heard by it, whether

or not such evidence would be admissible in

any other court of law.

(2) Without derogating from the generality of the

aforegoing subsection, it shall be competent for

any party before the Court to adduce –

(a) hearsay evidence regarding the

circumstances surrounding the

dispossession of the land right or rights in

question and the rules governing the

12

Richtersveld at paras 47 – 57 and 60.

13 | P a g e

allocation and occupation of land within

the claimant community concerned at the

time of such dispossession; and

(b) expert evidence regarding the historical

and anthropological facts relevant to any

particular claim.

(3) The Court shall give such weight to any

evidence adduced in terms of subsections (1)

and (2) as it deems appropriate”.

4.11. This section endows the Court with a discretion to admit

evidence of the kind referred to in subsection (2). This is

indicated by the use of the word “may” in respect of

“admit”.

4.12. The kinds referred to are hearsay evidence and expert

evidence in regard to historical matters in relation to the

dispossession and the claim. The Restitution Act

dispossessions that are relevant commence in 1913 and it

thus follows that the evidence of forebears who are no

longer alive or able to give evidence would be necessary.

Similarly historical fact may be introduced by historian

expert witnesses to assist the Court. In this, fact must be

distinguished from myth.

14 | P a g e

4.13. This exceptional evidence must be relevant and cogent to

the matter in dispute.

4.14. “cogent” means

“(of an argument or case) clear, logical and convincing” –

Concise Oxford Dictionary

4.15. Subsection (3) instructs the Court to give this evidence

such weight as it deems appropriate.

4.16. The provisions, interpreted in context and in relation to

their purpose, mean that hearsay evidence may be

admitted if it is cogent and the weight it is to be given is for

the Court to decide. In other words the evidence must be

considered on its logic and also if it is convincing, and

whether it has probative value.

4.17. In State v Ndhlovu13 Cameron JA (as he then was)

“Probative value means value for the purpose of proof.

This means not only ‘what will the hearsay evidence prove

if admitted?’ but ‘will it do so reliably?’”

13

2002 (6) SA 305 (SCA) at para 45.

15 | P a g e

4.18. In respect of the expert evidence there are further issues.

The issue of expert historians relying upon hearsay is a

novel matter in our law. However, there is no reason why

the usual considerations relating to experts should not be

applicable.

4.19. Hence it has been established that the expert is a guide to

the Court and cannot dictate the opinions. Every opinion

must be evaluated and accepted only if supported by

logical reasoning.14

4.20. Moreover, because it is an exercise in logic an appeal

court is in the same position to decide the issues as the

trial court.15

5. ISSUES OF PROOF AND ONUS IN THE LCC

5.1. The Court of jurisdiction to adjudicate claims under the

Restitution Act is the Land Claims Court.

5.2. The issues of proof and onus are a material dispute in this

application (and any appeal) as they were in the SCA.

14

Michael & Another v Linksfield Park Clinic (Pty) Ltd & Another ● 2001 (3) SA 1188 (SCA)

at paras 34 – 40. 15

Jacobs v Transnet ● 2015 (1) SA 139 (SCA) at para 15.

16 | P a g e

There is a fundamental difference between the approach

of the Minority Judgment and the Majority Judgment.

5.3. Applicants submit that the claim under the Restitution Act

is, within its legislative framework, a civil claim in which the

Claimants have to satisfy the Court on a balance of

probabilities that they are entitled to it.16

5.4. The ordinary civil onus applies as does the reception of

evidence and the general rules relating, for example, to

circumstantial evidence.

5.5. Reference is also made to the submissions set out above

relating to the discretion to admit hearsay evidence in

terms of Section 30 of the Restitution Act and what weight

the evidence should be given.

5.6. The Majority Judgment holds that the LCC was

established as a specialist court for the consideration of

land claim disputes. Such claims are put through an

exhaustive process before they are referred for

adjudication to the LCC. The Restitution Act also has

16

The Minority Judgment at para 276.

17 | P a g e

unique provisions for the reception of evidence and the

courts should lean liberally towards the realisation of the

objective of the Restitution Act.17

5.7. The Majority Judgment then, dealing with the deviations or

changes in the evidence, stated :

“On application of ordinary civil law principles and rules

these changes in the rights declared would be viewed as

defects which could, on their own, result in the dismissal of

the claim.”18

Applicant submits that the prevarication on the Claimant’s

claim and the inconsistencies therein should have led to

the dismissal of the claim.

5.8. The Majority Judgment indicates that special treatment

must be given to Claimants and that by the exercise of a

discretion certain facts could be regarded as being proved.

Applicant regards this as a misdirection at the LCC level

and the SCA (Majority Judgment).

17

Majority Judgment at para 420. 18

Majority Judgment at para 424, and see 426.

18 | P a g e

5.9. The Majority Judgment relies upon the decision in

Florence v Government of the Republic of South

Africa.19 However, as the Minority Judgment sets out, this

is a discretionary decision relating to remedy, not the

factual matters which the Claimant has to prove.20

5.10. Applicant submits that the acceptance by the Majority

Judgment of special rules relating to the acceptance of

evidence, the onus and the determination of holistic truth

are misdirections which are fundamental to the result.21

5.11. The approach of the Majority Judgment is contrary to the

nature of the proceedings and the acceptance of the

evidence dealt with above.

5.12. Applicant supports the Minority Judgment in this respect,

especially on the issue of admissibility under Section 30.22

6. THE APPROACH ON APPEAL

19

2014 (6) SA 456 (CC) at paras 111 – 117. 20

Minority Judgment at paras 277 – 278. 21

Majority Judgment at paras 415, 416, 420 & 426. 22

Minority Judgment at paras 295 – 302.

19 | P a g e

6.1. Section 28N of the Restitution Act prescribes the powers

of the Court on hearing of appeals :-

“28N Powers of Court on hearing of appeals

The Court shall, at the hearing of any appeal in terms of

any law conferring upon it any appellate jurisdiction, have

the power –

(a) to receive further evidence;

(b) to remit the case to the court or other tribunal of first

instance or to the arbitrator concerned, for further

hearing, with such instructions as regards the taking

of further evidence or otherwise as the Court

considers necessary; or

(c) to confirm, amend or set aside the judgment, order or

decision which is the subject matter of the appeal

and to give any judgment, order or decision which

the circumstances may require,

unless such law provides otherwise.”

6.2. These are not unique. They are the same as the powers

expressed in Section 19 of the Superior Courts Act 10 of

2013 and are similar to those expressed in the common

law and in Rule 31 of the Rules of the Constitutional

Court.23

23

See Prophet v National Director of Public Prosecutions ● 2007 (6) SA 169 (CC) at para 33.

20 | P a g e

6.3. It follows that an appeal from the judgment of the LCC

carries with it no exceptional rules or considerations save

for the legislative framework dealt with above.

6.4. This was expressed in the Minority Judgment in paragraph

276 with the opposite quotation from the SCA judgment in

Santam Bank v Biddulph.24

6.5. This was also expressed in Medscheme Holdings (Pty)

Ltd v Bhamjee25 in the SCA. In this case reference is

made to the “Pinocchio theory” which is explained in a

footnote. It is that dishonesty on the part of a witness

which manifests itself in a fashion that does not appear

from the record.

6.6. The same considerations have been held by this Court to

be applicable in President of the Republic of South

Africa v SARFU.26

6.7. It is submitted therefore that when the LCC makes findings

of credibility and fact which are at odds with other facts or

24

2004 (5) SA 586 (SCA) at para 5. 25

2005 (5) SA 339 (SCA) at para 14. 26

2000 (1) SA 1 (CC) at para 78.

21 | P a g e

probabilities the appellate court is at large to disregard its

findings, even though based on credibility, in whole or in

part and come to its own conclusions.27

6.8. The Minority Judgment (at paragraph 276) found that the

LCC had misdirected itself in its assessment of the

evidence and its consequent factual findings.

6.9. Applicants support this finding and submit that the

Constitutional Court is at large to come to its own

conclusions.

7. THE CHANGING NATURE OF CLAIMANTS’ CLAIMS

7.1. During the trial evidence Applicants had to face a case

which differed substantially from the pleaded case.

7.2. The Minority Judgment refers to this as the case of the

Commission and the Claimants as being a “hotchpotch of

vague, confusing and contradictory claims” that developed

during the trial (paragraph 283). This was developed over

27

Rex v Dhlumayo & Another ● 1948 (2) SA 677 (A) at 705 – 706.

22 | P a g e

the following paragraphs 284 to 293. It is also stated that

the LCC glossed over this (paragraph 283).

7.3. The Majority Judgment deals with this issue at paragraphs

421 to 424 and comments that on the application of

ordinary civil law principles and rules these charges could,

on their own, result in the dismissal of the claim (at

paragraph 424).

7.4. The deviations in Claimants case are illustrated by the

following summary.

7.5. In the pleadings the material averments were the following:

i. The Claimants claimed to be a community of Black

families;

ii. That the claim is a Community claim as is envisaged

in terms of the provisions of the Restitution Act;

iii. The Community lost ownership rights, residential

rights, grazing rights, the right to use the land for

agricultural purposes, access to firewood, burial sites

23 | P a g e

and the use of the land for commonage for the entire

community;

iv. That the forefathers of the Claimant Community

occupied the land as far back as the 1800’s. (No

specific date has been referred to);

v. That the dispossession allegedly occurred around

1947 and continued until the 1980’s.

vi. That the community members occupied a Native

Location;

vii. That 500 members of the Claimant Community

occupied such Native Location;

viii. That the dispossession was a result of the

abolishment of the Location;

ix. That the Location was laid out on the commonage;

x. That the claim was accepted by the Commission on

the basis that the Claimants were dispossessed of

24 | P a g e

their rights as beneficiaries which they held in the land

for many years;

xi. That the rights and interests of beneficial occupation

and use, are rights in the land set out in Section 1 of

the Restitution Act;

xii. That the dispossession was made in furtherance of

the object of a racially discriminatory practice;

xiii. That the Claimants at the time of dispossession were

enjoying unregistered land rights for residential

purposes, grazing cattle and livestock, collection of

firewood, arable rights, including the right to use it for

agricultural activities and bury the dead;

xiv. That the nature of the rights of the Claimants to the

claimed land originated from the beneficial use of the

grazing land and farming as well as occupation rights,

which they acquired and used in accordance with the

shared rules of usage in terms of both the traditional

law as well as the location rules;

25 | P a g e

xv. That the community was placed under the control of

the Superintendent in a Location in order to control

the community;

xvi. That as a result of the dis-establishment of the Native

Location in 1941, the Blacks had to squat with their

families on the premises of White owners, thereby

compromising their status to either that of labour

tenants or they had to find accommodation elsewhere

outside the commonage;

xvii. That the purpose of the subdivision was directed at

securing the dispossession of the community’s land;

xviii. That the Claimants enjoyed historical rights to the land

in terms of shared customary laws and practices.

7.6. However, during the trial, the claim changed in respect of,

inter alia, the following :-

a) In the Statement of Claim, the Claimants averred that

they are a community of Black families whose

forebears traditionally occupied the entire

26 | P a g e

commonage from the 1800’s. According to Mr Paul,

who testified on behalf of the Commission, it was

recorded that they occupied the commonage from

about the 1880’s (the period which he investigated).

b) In a response to a Request for Further Particulars by

the Landowners pertaining to whether it is admitted

that the commonage was awarded to the 1820

settlers, it was admitted that the commonage was

awarded to the Settlers and it was averred that the

amaXhosa occupied the entire Zuurveld, including the

commonage before this, and by virtue of the fact that

the Claimants who are of Xhosa descent, are

descendants of the people who had occupied the

commonage during that period.

c) The aforesaid had the effect that indigenous title over

the commonage was averred on contradictory

grounds, namely as a result of being descendants of

those who had occupied the land after 1880, and

being descendants of those who occupied the land

before 1820.

27 | P a g e

d) These claims were advanced alongside each other

and not in the alternative.

e) When Professor Legassick testified, he advanced a

further claim, namely that the Community occupied

the commonage from about 1880 and had built up

rights by having paid location taxes.

f) Pertaining to whether a Community occupied the

commonage, the contentions of the Commission and

the Claimants differed. On the one hand, Mr Paul, on

behalf of the Commission, stated that the Community

had no rules, but had their own traditional way of

conducting their lives; and on the other hand the

Claimant’s case was that it had derived their rules of

access to the land from a Chief or Headman by the

name of Dayile whose existence the Commission was

unaware. The LCC characterised it as Rules which

the Community derived from the Location

Regulations.

28 | P a g e

g) It is further important to note that during the initial

investigation by the Commission, an independent

investigator found that the rights that were lost were

Labour Tenancy Rights, which effectively excludes the

existence of a community.

h) If regard is had to the fact that the initial investigation

found that the rights that were dispossessed were in

fact Labour Tenancy Rights, this must be contrasted

with what was pleaded following Mr Paul’s

investigations. He contended that it was pleaded in

the Claimant’s Statement of Claim that what was lost

was ownership rights, residential rights, grazing rights

and the right to use the land for agricultural purposes,

etc.. and the use of the land as commonage for the

entire community. One must further have regard to

the fact that the referral of the claim by the

Commission to the LCC for adjudication was for the

upgrade of rights to full ownership rights. This, of

necessity, entitles an inference that the Claimants did

not have ownership rights.

29 | P a g e

7.7. The case pertaining to the dispossession of alleged rights

similarly was contradictory.

7.8. In regard to the alleged dispossession, a different version

emerged namely :-

a) The case pleaded alleged that in 1926 a community

consisting of 500 people who occupied the entire

commonage were “herded” into a Location and placed

under the control of the Native Superintendent. It is

averred that this happened as a result of the

implementation of Section 47 of the Ordinance 10 of

1921 and Act 21 of 1923 with the result that the

dispossession took place in 1926.

b) Contrary to the aforesaid, it was further contended

that the dispossession took place as a result of the

Court Order that was granted by the Grahamstown

Supreme Court in 1940, which allowed the

Landowners to subdivide the commonage and to

establish the Location where the community had

acquired their rights. It was further contended that

30 | P a g e

Gane J granted the application against the

background of racially discriminatory legislation in

existence by then, and the Location was consequently

dis-established in 1941, thereby dispossessing the

community of its rights.

c) Professor Legassick advanced a further contention to

support the idea of racially discriminatory practice,

namely the failure of the Board, the Judge of the

Supreme Court and the Magistrate to consult with the

African Community before ordering the subdivision of

the commonage.

7.9. Such deviations in the Claimants’ case must reflect poorly

on the veracity and bona fides thereof. This should

dramatically affect the weighing of the evidence in support

of the claims and the eventual result of the suit.

7.10. However, the LCC glossed over it and the Majority

Judgment also glossed over it on the basis that a holistic

view must be taken and the legislative framework would

31 | P a g e

allow it. These are, it is submitted, fundamental

misdirections.

7.11. Clearly, conducting litigation in this fashion will generally

be prejudicial to the opponent.28

8. THE EXTINGUISHING OF INDIGENOUS RIGHTS

8.1. The LCC found that the Xhosa people living in the

Zuurveld had factually never lost their indigenous rights.29

8.2. This depends upon a consideration of the facts and law

applicable to the expulsion of the Xhosa people from the

Zuurveld in 1811.

8.3. There is unanimity in the historical sources and the

witnesses that there had been a conquest of the Zuurveld

in or about 1811 and the Xhosas present there were

expelled to land across the Fish River.30

28

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd ● 2012 (1) SA 256 (CC) at

paras 51 – 62. 29

Salem Community (LCC) at para 141. 30

This is also the view of other credible historians. See John Milton : The Edges of War :

A History of Frontier Wars 1702 – 1878 at pages 62 – 64; and

South Africa : A Modern History : Davenport and Saunders 5th Ed. Page 134.

32 | P a g e

8.4. This expulsion by force was in order to allow for the secure

population of the Zuurveld, including Salem, by the White

inhabitants and British settlers who would be brought in.

8.5. This issue and whether the Claimants had established

indigenous title in the first place, was dealt with in the

Minority Judgment.31 The conclusion reached in this

respect is supported and adopted by Applicants.

8.6. The main legal foundations of this argument are :-

a) In Richtersveld (SCA)32 the SCA recognised that the

exercise of power by the State could extinguish

indigenous rights to land. This would be determined

by the evidence.33

b) In Richtersveld (CC) the Constitutional Court held

that indigenous title may be extinguished if … “the

land was taken by force”.34

31

At paragraphs 342 – 353. 32

Richtersveld Community v Alexkor Ltd ● 2003 (6) SA 104 (SCA). 33

See paragraphs 40 – 41. 34

At paragraph 70.

33 | P a g e

c) These judgments refer to the Australian decision of

Mabo35 in which it was held that the Crown’s

acquisition of Sovereignty over land and the Crown’s

alienation of that land extinguishes “native title” in that

such alienation is inconsistent with the “native title”.

d) If the indigenous people remain in possession and no

acts of government are inconsistent with their rights of

possession then such rights are not extinguished.

This is decided on a consideration of the acts of

annexation and the conduct of the annexing force.36

e) Conquest was an effective method of taking territory

in law until the 1928 Kellogg-Briand Pact. This had to

comprise of an intention to annex territory (animus)

and the actual physical control of the

territory(corpus).37

f) In this matter Colonel Graham, acting for the Crown,

expelled all the indigenous people in the district

(including Salem) by force and built a series of forts to

35

Mabo & Others v The State of Queensland ● (No. 2) (1992) 175 CLR 1 (HCA). 36

Richtersveld (CC) at paragraphs 67 – 68. 37

Dugard : International Law – A South African Perspective (1994) at pages 107 - 109

34 | P a g e

stop them returning. This, it is submitted, is conquest

and extinguishes all rights that hitherto existed.

g) The Crown then set about governing the territory by a

series of legislative instruments all of which are

inconsistent with the continuation of indigenous rights.

8.7. It is therefore submitted, the LCC erred in holding that the

1811 / 1812 or 1819 Wars did not constitute a taking of the

territory by force from those who occupied it. The LCC

held that the Zuurveld was contested area and in this

respect the indigenous rights were not extinguished.38

8.8. It is also submitted that the Majority Judgement also erred

in accepting this argument in respect of those parts of the

Zuurveld which were not allotted to British settlers.39 This

in itself is contradictory because the commonage was

allocated jointly to the settlers.

8.9. As the indigenous rights were lost during the 1811/12 War

then it follows that the rights were lost before the relevant

38

Salem Community (LCC) at paragraph 41. 39

Majority Judgment : paragraph 428.

35 | P a g e

date of 19th June 1913, and the Claimants have no claim in

respect of this dispossession.

8.10. It follows then that the Claimants’ forebears claims would

have to be asserted from possession after this time.

9. OCCUPATION OF SALEM FROM 1811 TO 1943

9.1. Once the expulsion of the Africans from the Zuurveld had

taken place it is a matter of debate whether some of them

returned and on what basis they returned. The Claimants’

main witness, Nondzube, giving hearsay evidence, told the

Court what his grandfather told him. The main gist of this

was the passage quoted in the Minority Judgment at

paragraph [199].40 The effect of this is that the Black

people were conquered by the White people and that they

started to work for the White people. In this they were

subservient to the White man’s rules and they (the Black

people) had no say on what was happening on the

commonage; which was controlled by Whites.

40

Record : Volume 21 : pages 2046 – 2048.

36 | P a g e

9.2. This is described as a “catastrophic concession” by

Nondzube. It is submitted that it is the end of Claimant’s

case.

9.3. Notwithstanding that concession in the oral evidence, the

objective documentary and archival evidence supports this

observation.

9.4. The history and the various legislation which applied in

respect of the Salem Commonage is described in detail in

the Minority Judgment.41

9.5. The various Acts referred to and Regulations are

contained in the Record : Volumes 11 and 12.

9.6. The Minority Judgment 42 concludes that this evidence

leads to the following conclusions :-

“(i) Before the 1820 settlers arrived and settled in the

Zuurveld, the Xhosa speaking tribes who had occupied

parts of this area since about 1750, but not Salem, had

been expelled in 1811 during the Fourth Frontier War.

41

Paragraphs 36 to 109. 42

Paragraph 110.

37 | P a g e

(ii) The settlers settled all over the Zuurveld, which became

the District of Albany, on (now) unoccupied land,

formally granted them by the Cape Colony, including in

Salem.

(iii) The Salem settlers were initially granted the

Commonage on a system of quitrent, which was

converted into freehold title in 1848, after their rental

payments had been redeemed. The settlers exercised

authority over the Commonage.

(iv) After the cattle-killings in 1856-1857, Africans began to

seek employment in the District of Albany and the Cape

Colony passed laws to control and regulate these

developments. Land held in common, such as the

Commonage, was also governed by laws that

empowered the Board to exercise authority over the

Commonage, which it did.

(v) From about 1878, Africans who sought employment in

Salem resided on the private erven of the landowners

and on the Commonage with the permission or the

agreement of landowners. Among those who entered

into such arrangements were labour-tenants and

sharecroppers.

(vi) Among the Africans who resided on the Commonage

were those who resided in the location, which covered a

small area of 15 acres, measuring less than one per

cent of the land mass of the Commonage. The number

of huts in the location never exceeded ten, and from

about 1920, the landowners felt that the establishment

of a location would create difficulties for their employees

because of its distance from their farms. Most

employees were therefore housed on the properties of

38 | P a g e

their employers. And by about 1933 the location had

ceased to exist.

(vii) There is no documentary evidence of any community or

group of people being ‘herded’ into a location and

thereafter forced to abandon this location, as the

claimants have pleaded.

(viii) The landowners had difficulties managing the

Commonage for the reasons mentioned earlier and

therefore sought and obtained a court order in 1940 to

subdivide the Commonage.

(ix) The aerial photographs of 1942 show that that there

were 48 huts in Salem of which 22 were on private

erven and the remaining 26 on the Commonage in

close proximity to the private farms, and connected by

paths to the farms. In the absence of any other

evidence to the contrary, the 26 dwellings on the

Commonage were in all likelihood occupied by Africans

who worked for landowners.

(x) Even assuming that some of these Africans did not

work directly for the landowners, it is clear that at least a

substantial portion did (as evidenced by the pathways in

the aerial photographs). And, given the jealousy with

which the Commonage was guarded by the settler

community, and the fact that the African community was

tolerated only because it provided labour for the farms

in the area, it seems likely that the African community

as a whole occupied a form of servant-master

relationship with the landowners.

(xi) There is no documentary evidence of an independent

African community of 500 people residing on the

Commonage or in the location, much less of such a

39 | P a g e

community exercising any authority over this land at any

time. The documentary evidence points firmly to the

contrary.”

9.7. The Applicants support and contend for these conclusions

from the objective evidence.

10. DISPUTES ON THE ORAL EVIDENCE

10.1. At one level the dispute in relation to the oral evidence

given is whether or not the African people who were

present in Salem post 1812 were there independently or

as employees of the Settlers. That was the main dispute

in the evidence.

10.2. The more important dispute is whether these African

people were a community as defined in the Restitution Act

who lived by a set of rules relating to the occupation or

possession of the relevant land.

10.3. It is submitted that having regard to the evidence given

and the probabilities which arise from the objective

evidence the probable conclusion is that such Africans

were part of an employee class who were hosted and

40 | P a g e

allowed to reside in Salem by the Settlers. Hence, they

may have used the pastures and even tilled the ground,

but this was by the leave of the Settlers and not because

they had any indigenous or community rights.

10.4. The concession by Nondzube (referred to above) is a

recognition of this conclusion.

10.5. An important feature of the Claimants’ evidence is that

most of it was hearsay and fact can be confused with

myth. It should only be accepted with full weight if it is

cogent and has probative value. Care should be taken in

this regard.

10.6. The LCC considered the arguments in respect of a finding

on the evidence43 of the various witnesses. The LCC

strangely considered the “evidence” of Professor de Beer,

who did not give evidence.44

10.7. The LCC came to the conclusion that Nondzube’s

evidence was far more consistent with the documentary

43

Salem Community : LCC paragraphs 51 – 71. 44

Salem Community : LCC paragraphs 68 – 71.

41 | P a g e

evidence than the witnesses for the Applicants.45 This

finding appears to be exclusively based on the contents of

the Native Commissioners letter which referred to the

existence of 300 – 400 Africans and 6 huts in the location.

10.8. All the other objective evidence was ignored by the LCC :

the photographs and the chain of legislation and

regulations which spanned the entire period.

10.9. The aerial photograph in particular and the inferences to

be drawn from it were ignored. A large version of the

aerial photograph will be available at the hearing.

10.10. The LCC concluded that Nondzube and Ngqiyaza were

honest and credible witnesses. This, however is not

enough. The hearsay evidence was not consistent with

the probabilities and the objective facts.

10.11. The LCC then used the same dubious fact to discredit

Mullins, Van Rensburg and Page.46

45

Salem Community : LCC paragraph 130. 46

Salem Community : LCC paragraph 130.

42 | P a g e

10.12. A fair consideration of the evidence of these three

witnesses shows them to be accurate and credible and

deserving of acceptance. In many respects that evidence

was not hearsay but personal recollection.

10.13. The finding that the Claimants were the descendants of a

community in terms of the Restitution Act is contained in

paragraph 132 of the LCC judgment. This paragraph is

replete with misdirections and incorrect findings relating to

the evidence and the intention of the Restitution Act. It is

material that no mention is made of the evidence and

conclusions of Chandler (as agreed with Gerber, who did

not as a result give evidence).

10.14. The LCC deals with the evidence of the two experts :

Legassick47 and Giliomee48 and the other evidence and it

is submitted that the LCC misdirected itself in respect of

the clear historical evidence, again on the dubious strength

of the number of Africans mentioned in the judgment at

paragraph 128.

47

At paragraphs 25 to 28, and 55 to 59. 48

At paragraphs 64 to 67, and 137 to 148.

43 | P a g e

10.15. Again the chain of legislation which assumed that the

Africans had no rights to land was ignored or passed over.

10.16. The Majority Judgment supports the judgment of the LCC,

“on a holistic consideration” that the evidence supports the

Claimants’ contention that their forebears were a

community dispossessed of rights in the Salem

Commonage Land.49

10.17. However, the Majority Judgment appears to agree with the

evidence as set out in the Minority Judgment, except as

specifically stated.50

10.18. It is submitted that the Majority Judgment erred in holding

that Claimants were entitled to special treatment under the

Restitution Act (this is referred to above).

10.19. It is also submitted that in respect of the finding of the

Majority Judgment that the dispossession did not apply to

49

Majority Judgment : paragraph 413. 50

Majority Judgment : paragraph 412.

44 | P a g e

the land allocated to the 1820 Settlers, this is a jarring

finding contrary to the finding of the LCC.51

10.20. It is submitted that the summary of the oral evidence and

the analysis thereof contained in the Minority Judgment is

preferable and more probable. The reasoning of the

Minority Judgment is adopted and contended for by

Applicants.52

10.21. A full and detailed exposition of factual evidence is not

possible in this written argument, but it is contained herein.

11. EQUAL AND FAIR TREATMENT

11.1. Applicants have contended that in the application for leave

to appeal that the Applicants did not receive equal and fair

treatment from the LCC in the respects set out there.53

11.2. Two of the instances referred to therein were the subject of

censure in the Minority Judgment.54

51

Majority Judgment : paragraph 428. 52

Majority Judgment : paragraphs 434 – 460. 53

Application : Vol. 1 : pages 29 – 35. 54

Minority Judgment : paragraphs 255 and 271 – 275.

45 | P a g e

11.3. Section 9 of the Constitution guarantees equality before

the law and Section 34 affords the right to have disputes

decided in a fair public hearing before a court.

11.4. This right lies at the heart of the rule of law.55

11.5. Not only must justice be done, but it should manifestly and

undoubtedly be seen to be done.56 Judges in court should

subscribe to the conduct which secures the Judge’s role

as an arbiter and not a partisan participant.57 Such

conduct would affect the open-mindedness and impartiality

of the Judge.

11.6. In this case the conduct of the Judge in the LCC displayed

partiality in favour of the Claimants which affects the

accuracy and objectivity of the findings of the LCC.

55

De Beer NO v North-Central Local Council and South-Central Local Council ● 2002 (1) SA

429 (CC) at paragraphs 11 – 14. 56

R v Sussex Justices. Ex parte McCarthy [1923] All ER Reprint 233 at 234 D.

57 S v Rall ● 1982 (1) SA 828 (AD) at 831 A to 833 B.

46 | P a g e

12. CONCLUSION

12.1. It is submitted that the application for leave to appeal

should be granted with costs, including the costs of two

counsel.

12.2. Applicants also submit that the appeal against the

judgments of the LCC and the Majority Judgment of the

SCA should be granted and that the judgment of the LCC

should be altered to read :-

“The claim is dismissed with costs, including the costs of two

counsel. The costs shall include the costs incurred for

Professor Hermann Giliomee. The Second to Fifth Plaintiffs

and the Regional Land Claims Commission shall be jointly

and severally liable for these costs.”

12.3. Applicants should be awarded their costs against the

Second to Fifth Plaintiffs and the Regional Land Claims

Commission on the basis of the employment of two

counsel in respect of this appeal and the appeal in the

Supreme Court of Appeal.

DATED at PIETERMARITZBURG on this 9th day of MAY 2017.

A.J. DICKSON SC

47 | P a g e

M.G. ROBERTS SC Applicants’ Counsel

TABLE OF AUTHORITIES

CASES AND HISTORICAL SOURCES Page

1. Paulson v Slipknot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC)

7

2. Alexkor Ltd v The Richtersveld Community 2004 (5) SA 460 (CC)

7, 10, 12, 32,

33

3. Department of Land Affairs v Goedgelegen Tropical Fruits 2007 (6) SA 199 (CC)

7, 10, 11

4. Radio Pretoria v Chairperson, ICASA 2005 (4) SA 319 (CC)

9

5. Kranspoort Community 2000 (2) SA 124

(LCC)

11

6. State v Ndhlovu 2002 (6) SA 305 (SCA) 14

7. Michael & Another v Linksfield Park Clinic (Pty) Ltd & Another 2001 (3) SA 1188 (SCA)

15

8. Jacobs v Transnet 2015 (1) SA 139 (SCA) 15

9. Florence v Government of the Republic of South Africa 2014 (6) SA 456 (CC)

18

10. Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC)

20

11. Santam Bank v Biddulph 2004 (5) SA 586 (SCA)

20

12. Medscheme Holdings (Pty) Ltd v Bhamjee 2005 (5) SA 339 (SCA)

20

48 | P a g e

13. President of the Republic of South Africa v SARFU 2000 (1) SA 1 (CC)

21

TABLE OF AUTHORITIES cont…

CASES AND HISTORICAL SOURCES Page

14. Rex v Dhlumayo & Another 1948 (2) SA 677 (A)

21

15. Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)

31

16. John Milton : The Edges of War : A History of Frontier Wars 1702 – 1878

31

17. South Africa : A Modern History : Davenport and Saunders 5th Ed.

31

18. Mabo & Others v The State of Queensland (No. 2) (1992) 175 CLR 1 (HCA)

33

19. Dugard : International Law –

A South African Perspective (1994)

33

20. De Beer NO v North-Central Local Council and South-Central Local Council 2002 (1) SA 429 (CC)

45

21. R v Sussex Justices. Ex parte McCarthy [1923] All ER Reprint

45

22. S v Rall 1982 (1) SA 828 (AD) 45

49 | P a g e

C:\Users\Advocate Dickson\Documents\2017\2017 Pleadings\S\Salem\WA 110417.Docx