- The Kwalindile and Zimbane communities both lodged restitution claims for the Trust Farms and Erf 912 in Mthatha.
- The court recognised Kwalindile’s claim to six Trust Farms but dismissed the claims of both groups to the commonage.
- Judges ruled that temporary grazing rights could not be turned into ownership through restitution
The Kwalindile community said they were forcibly removed from Gqogqorha in 1963 and resettled on the Trust Farms. They claimed rights to six farms and also asserted grazing rights over Erf 912.
The Zimbane community claimed communal occupation of part of Erf 912, including grazing, residential, and burial rights, and asked for restoration of the undeveloped parts of the commonage.
The Land Claims Court found that both groups qualified as a community under the Restitution Act. It stated, “The starting point is the moment the Kwalindile were settled as a group by the apartheid government on land in Mthatha by reason of forced removal…they did not lose their identity as a community.”
Grazing rights under scrutiny
A key issue was whether historical grazing on Erf 912 created a right that could be restored. The court found that Kwalindile cattle were only allowed onto the commonage during the drought of 1968, and only as a temporary accommodation.
Judge B Spilg wrote, “The high water mark of the evidence led by the Kwalindile was that although they were relocated in 1963 on the Trust Farms, due to a drought in 1968…they were permitted to extend their grazing onto the commonage. However, at best that was a temporary accommodation during that specific drought period in 1968.”
On the broader legal question, the court held, “The effect is that the legislature does not entitle an ‘upgrading of rights’ through the Restitution Act.”
Historic agreement upheld
The Zimbane community also challenged an 1882 agreement in which Paramount Chief N’Gangelizwe ceded territory, including what would become the Mthatha commonage, to the then Cape Government. The court rejected this challenge.
“We are satisfied therefore that the August 1882 agreement cannot be attacked,” the court ruled. The agreement was found to have been properly executed and respected.
Court’s final order
The court upheld the Kwalindile community’s restitution claim to six Trust Farms. Thornhill was excluded. Both communities’ claims to Erf 912 were dismissed.
The Minister of Rural Development and Land Reform and the Regional Land Claims Commissioner must pay the legal costs of the municipality and the property owners involved.
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