Earlier this month, the Supreme Court of Appeal (‘the SCA’) dismissed an appeal from the Land Claims Court for the restitution of land rights by the Mavundulu Community after it failed to establish that it qualified as a ‘community’ under the Restitution of Land Rights Act (‘the Act’).
Lodged in 1998, the land claim concerned portions of two farms in New Hanover, KwaZulu-Natal, which were granted to white individuals by the British government following Britain’s annexation of the then-Natal in 1842.
During initial hearings in 2020, the Land Claims Court separated various issues for determination, namely whether Mavundulu constituted a ‘community’ within the meaning of the law. Under section 2(1)(d) of the Act, a claimant will be entitled to the restitution of a deprived right in land if it qualifies as a community that was dispossessed of its land rights after 19th June 1913 pursuant to the enforcement of race-based discriminatory laws or practices. According to section 1 of the Act, a ‘community’ is conceptualised as ‘any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group’.
In the seminal case of In re Kranspoort Community, the Land Claims Court interpreted this statutory prerequisite to mean that, at the time a claim is instituted, there must be a ‘sufficiently cohesive group of [individuals]’ to demonstrate that a community or, at least part of a community, still exists, considering the effect of the original displacement, and an ‘element of commonality’ between the contemporary community and that which existed at the date of dispossession. Weighing in on the requirements, the Constitutional Court in Department of Land Affairs and Others v Goedelegen Tropical Fruits (Pty) Ltd, found that the enquiry centres on whether a community’s purported ‘occupational rights in the land were derived from shared rules’, which determined access to land held in common. Similarly, in Elambini Community v Minister of Rural Development and Land Reform, the Land Claims Court held that the community’s possession and use of the land must have been derived from common rules, not labour tenancy rules.
Correspondingly, the claimant was required to prove, on a balance of probabilities, that it satisfied the above requirements through the presentation of evidence, including oral testimony from lay witnesses and experts and documentary evidence, such as aerial photographs and archived material. In an analysis of the available evidence, the SCA held that the Mavundulu Community failed to establish that it qualified as a ‘community’ under the Act. While the claimants’ ancestors may have existed as a community before the arrival of white settlers, that community had disintegrated by June 1913. Individual members, who may have once been part of a historical community prior to the arrival of white farmers, remained on the land as labour tenants, subject to the rules and policies of white landowners, and then as farmworkers after 1913.
For example, under the labour tenancy system, each household was limited to a specific number of farmed animals, and failure to comply with these rules could result in eviction from the farm. However, the prevailing evidence demonstrates that any rights individual occupiers may have had as labour tenants or farmworkers were not based on shared rules and customs governing access to land held in common by a community in 1913. Accordingly, the SCA upheld the Land Claims Court’s finding that the Mavundulu Community did not qualify as a ‘community’ under the Act at the time it was purportedly dispossessed.
For a comprehensive overview, read the judgment.
