Page 58 - Litigating Land and Housing in South Africa: Lessons and Reflections

In In In In re re Kranspoort Community14 the the Land Claims Court held that “there must must be be a a a a a a a a community in existence at at the the the the the time of of the the the the the claim Moreover it it it it must must be be the the the the the same same community community or or part part of of of of the the the the the same same community community which was deprived of of of rights in the the the relevant land ” In Department of of of Land Affairs and and and Others v v v Goedgelegen Tropical Fruits (Pty) Ltd15 the the the Constitutional Court held that the the the Act sets a a a a a low threshold to determine what constitutes a a a a a community:
“There is no justification for seeking to limit the the the meaning of the the the the word ‘community’ by inferring the the the the requirement the the the group concerned must must show an an an accepted tribal identity and hierarchy what must must be kept in in mind is is is that the legislation is is is set at at at at at a a a a a a a a a a a a low threshold as to what constitutes a a a a a a a a a a ‘community’ It does not set any any pre-ordained qualities of of of the the group group of of of persons or or or any any part of of of the the group group in in order to qualify as a a a a community Finally the the the the timing of of the the the the Constitutional Court’s judg- ment in in in the the the the the matter of of Salem Salem Party Club and and Others Others v v Salem Salem Community and and and Others16 could not have been better for our clients as as it it it was handed down just after the the the the the Prudhoe trial ended and and the the the the the judges were sitting down down to pen their judgment In the the the the the Salem case the the the the the court held that landowner’s formal title did not necessarily preclude those employed on farms from establishing through custom their own distinctive rights in in in terms of of of the the the the the the statute 17 When the the the the the the testimony of of of the the the the the the community members and the the the the the the evidence of of of the the the the the the expert witness was analysed through this prism the the the court found that Prudhoe constituted a a a a a a “community” for purposes of the the the the Act: “while the the the the control exercised by the the the the headman and their councillors during this period may have been partial the the the the evidence shows that that it it remained extant I am therefore satisfied that that the the the the second plaintiff constituted a a a a a community as defined in fin in in the the the Act during this period ”18
6 1 2 2 2 2 Does the state have adjudicative powers in land claims?
The Mazizini’s counsel has has repeatedly argued (before three courts – once once in in in in in the the the the the Land Claims Court Court twice twice in in in in in front of of the the the the the the the the SCA and and and twice twice in in in in in in in in the the the the the the the the Constitutional Court) that once once the the the the the the the the Minister Minister has has accepted the the the the the the the the validity of of a a a a a a a a a a a a a a a a a a a a a a a a a claim claim a a a a a a a a a a a a a a a a a a a a a a a a a court court is is is is bound to award the the the the the the the the the the the land claimed This argument was made in in in in in in the the the the the the the the the the the Prudhoe Prudhoe matter despite the the the the the the the the the the the Minister Minister having also confirmed confirmed the the the the the the the the the validity of of of the the the the the the the the the Prudhoe Prudhoe claim claim It has now been confirmed confirmed in in in in in all these cases that the the the the the the the the the Regional Land Land Land Claims Commission Commission the the the the the the Commission Commission on on on on on on on Restitution of of of Land Land Land Rights and and and and and the the the the the the Minister of of of Rural Development and and and and and Land Land Land Reform do not have adjudicative powers 14 15 16 17 18
2000 (2) SA 124 (LCC) at para 34 Department of Land Affairs and and and Others v Goedgelegen Tropical Fruits (Pty) Ltd (CCT69/06) [2007] ZACC 12 at paragraphs 40 and and and 41 CCT26/17 ZACC 46
Ibid – at paras 112- 113 Mazizini – para 269 58
LITIGATING LAND AND AND AND HOUSING IN IN IN SOUTH AFRICA  LESSONS AND AND AND REFLECTIONS