Communities clash over future of Fish River Sun land

The Supreme Court of Appeal recently heard an application for leave to appeal against a decision by the Land Claims Court to award a portion of land, which includes the location of the former Fish River Sun resort in the Eastern Cape, to the Prudhoe Community.

Background

The dispute is between two communities, AmaZizi and Prudhoe, who both claim ownership to the land in question. GroundUp previously reported on the Land Claims Court judgment in April 2018.

In order to be entitled to restitution of land, the claimants must prove three things.

• Firstly, that they constitute a “community” with rights in respect of the land. A “community” is defined as “any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group”.
• Secondly, that they were dispossessed of these land rights as a result of racially discriminatory practices after 19 June 1913.
• Thirdly, that they did not receive just and equitable compensation.

The claim must have been lodged before 31 December 1998.

It is not in dispute that each community lodged their claims before December 1998, but the other issues are all in dispute.

Both communities derive from tribes or clans which were involved in various wars and disputes with the British Empire in the 19th century in what is today the Eastern Cape.

Each community is relying on a different interpretation of the colonial and apartheid history regarding dispossession of the land in question. The interpretation of this history affects the question of whether they meet the requirements for a “community” and if so whether they were dispossessed of their land rights as required by the law.

Also, since the dispute began nearly 20 years ago, a number of reports have been compiled by different people regarding what each community is entitled to. These reports are in conflict, and each community relies on different reports and experts to advance their land claim.

Notably, the Prudhoe Community point out that out of the 124 households in their community, 109 heads of these households have died since they lodged their claim more than 20 years ago.

The decision of the Land Claims Court

On 10 April 2018 the Land Claims Court awarded the majority of the land, including the former Fish River Sun resort territory and farms, to the Prudhoe Community. The court only awarded what used to be the Jaji, Dabi and Msuthu tribal areas as well as the Heaton farm to the AmaZizi Community.

The court found that the Prudhoe Community met the requirements for a community. This was because the Prudhoe community, who are descendants of the AmaGqunukwhebe chiefdom, continued to live alongside white farmers in a hybrid system. The court said this community continued to exist until this day and was distinct from the AmaZizi Community.

The AmaZizi Community appealed this decision to the Supreme Court of Appeal (SCA). Oral arguments for leave to appeal were heard on 11 March 2020.

Whether the Prudhoe Community meets the requirement for a “community”

The AmaZizi community argues that the Prudhoe community does not meet the requirements for a “community”. Instead, they argue that members of Prudhoe are only labour tenants who were employees of white farmers. This is because even though there was an induna on that land, burials on the land had to be authorised by the white farm owners. So, AmaZizi argue that the Prudhoe only have residential, arable and grazing rights but no ownership rights. Also, they argue that Gladman Tom, who belongs to the Prudhoe Community and provided evidence as a key witness, is from the Mpinga clan and that his great grandmother was white.

In response, the Prudhoe Community argue that there is a low threshold to qualify as a “community”. Their assertion as a community must be taken on its own set of unique historical facts. No dispossession occurred as a result of the white farmers. Instead, there was a hybrid system between the community and white farmers which resulted in a distinct form of colonialism.

Also, Prudhoe qualify as a community because they were able to establish an orderly settlement pattern, common traditional practices, pooling of resources, and a leadership structure. Lastly, the fact that Mr Tom’s great grandmother was white is irrelevant and beside the point.

Dispute over historical evidence

The parties disagree greatly regarding the history of the dispossession of the land.

The AmaZizi are relying on a report referred to as the “AmaZizi Report.” It found that the AmaZizi were entitled to ownership of the entire land between the Great Fish and Keiskamma rivers including the land in dispute. They argue that these land rights derived from several treaties.

First, in 1836, the Lieutenant-General of the Eastern Provinces, Andries Stockenstrom, signed a treaty with various amaXhosa tribes including the AmaZizi and the AmaGqunukwhebe. Second, these land rights were re-enforced by another treaty signed in 1845 with Peregrine Maitland, the Governor of the Cape Colony. Also, the AmaZizi argue that the land between the Fish and Keiskamma rivers was never occupied by the AmaGqunukwhebe due to the frontier wars.

In 1847, Sir Harry Smith signed a Proclamation which affected some of the earlier treaties between amaXhosa tribes and the British Empire. However, the AmaZiZi argue that this Proclamation did not cancel any of their land rights, but it terminated the land rights of the AmaGqunukhwebe (who later became the Prudhoe Community). This was because the land occupied by the AmaZizi formed part of a new province of the British Empire known as British Kaffraria. The AmaZizi also argue that due to the resentment between successive colonial governments and the AmaGqunukhwebe it could not be possible that they (the AmaGqunukhwebe) re-occupied that land between 1854 and 1913. They argue that the land in dispute was rather occupied by the AmaZizi until they were dispossessed because of the Native Land Act in 1913. Also, they were dispossessed of their land rights as a result of the “betterment” policies of the apartheid government in the 1950s and 1960s.

On the other hand, the Prudhoe Community largely rely on evidence led by Professor Jeffery Peires, who is widely regarded as the leading historian on the colonial frontier wars in the Eastern Cape. According to his evidence the AmaZizi were never in occupation of the land in dispute. Also, even if they were, Peires argued that the effect of the 1847 Proclamation was to terminate all rights in respect of the land in dispute and render all indigenous people subjects of the British Empire. This means that any rights the AmaZizi held were extinguished.

The Prudhoe Community then argue that from the 1850s until the 1970s, they were able to exist as a rural African community alongside a group of white farmers under conditions of settler colonialism. Notably, during this time they had a system of traditional leadership under four headmen, who reported to the Peddie magistrate; they had traditional structures and customs; and they maintained complete independence from the AmaZizi. In the 1970s, the Prudhoe Community were dispossessed of their land when the apartheid government established the Ciskei as a homeland.

Why this case is important

This case raises difficult questions regarding what constitutes a community for the purposes of land restitution measures. It also highlights the difficulty in evaluating competing claims for land restitution amid serious disagreements about the history of land dispossession.

The Supreme Court of Appeal has reserved judgment.

CORRECTION: The original article incorrectly stated that both communities were derived from AmaXhosa clan or tribes. The Prudhoe do have AmaXhosa origins, but the AmaZizi do not.

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