Food for restitution thought?

The Popela judgment by the Constitutional Court is probably the most important legal benchmark in land reform law since the Richtersveld ruling in 2004. It has widened the definition of restitution and lent legal clarity to previously grey areas like the definition of a community, and the strength and scope of customary land rights. Stephan Hofstätter unpacks the implications.

In June the Constitutional Court handed down a judgment likely to hold profound implications for all landowners under claim in South Africa (see Farmer’s Weekly 22 June, page 22). This is primarily because it broadens the definition of acts of land dispossession that qualify for restitution, and must be taken into account in all cases where farmers dispute the validity of land claims on their properties. Many farmers considering fighting land claims in court will now have to think twice.

Briefly, the Appeal Court ruled last year that the dispossessd Popela community had not demonstrated a causal link between racist laws or practices and their dispossession. However, the Consitutional Court overturned the ruling, arguing that its interpretation of the Restitution Act was too narrow. It is important to note that the ruling has no impact whatsoever on the legal relationship between farmworkers living on farms and property owners.

The judgment does not imply that evicting a farmworker is now considered an act of racist dispossession that entitles the worker to lodge a land claim. All eviction notices issued by Magistrates Courts are reviewed by the Land Claims Court, but this is simply to ensure they comply with the Extension of Security of Tenure Act and has nothing to do with restitution. Besides, no new land claims can be lodged after the 1998 cut-off date unless the Restitution Act is changed by an act of parliament.

What defines restitution?

The case between the Popela community and Goedgelegen Tropical Fruits in the Mooketsi area of Limpopo revolves around whether the decision of a private landowner to end a labour tenancy agreement with his workers can be construed racist dispossession that qualifies for restitution.

Many farmers believed having title deeds in their families predating 1913 invalidated claims on their land, because land claims are only legal if forced removals took place after the 1913 Land Act was promulgated. But in 2004 the Land Claims Court ruled that the Gamawela clan, who were evicted from a farm near Lydenburg when they refused to supply free labour in return for being allowed to remain on their ancestral land, were entitled to restitution.

The decision went in the Gamawela’s favour because they showed that they had been evicted as a result of apartheid legislation aimed at removing blacks from areas declared “white”. The Restitution Act, taking its cue from the constitution, states that anyone who has lost land rights “as a result of past racially discriminatory laws or practices” is entitled to lodge a land claim.

The Popela community failed to prove a causal link between the end of their labour tenancies, which meant they had to move, and racist laws and practices. This cost them their case in the Supreme Court of Appeal last year. The community’s labour tenancy was ended in 1969 – a year before a proclamation outlawing the practice was gazetted.

The judges ruled this meant the farmer, August Altenroxel, had simply terminated labour tenancies to improve farm productivity and his action was not connected with the pending enactment of regulations. The judgment was of enormous significance to farmers facing claims from former labour tenants. The onus now rested on the claimants to prove a causal link between racist laws or practices and the loss of their land rights. The Land Claims Commission estimated the judgement severely weakened about a third of the claims on its books, and that it would have to withdraw its opposition to a number of cases headed for the courts.

The Constitutional Court’s rejection of the Appeal Court’s decision on Popela ultimately hinges on its ruling that the phrase “as a result of” racist laws or practices should not be interpreted to mean “solely as a result of”. Henceforth, if claimants can demonstrate a reasonable connection between discriminatory laws and practices and dispossession, they will be entitled to restitution.

The Constitutional Court took care to establish if such a reasonable connection existed in the Popela case. In concluding it did, the presiding judge cited vigorous enforcement after 1948, in line with the National Party’s apartheid policies, of a string of laws and regulations aimed at changing labour tenancy to wage labour. This was to ensure blacks no longer lived in areas designated “white” unless formally employed there. He concluded that ending labour-tenant contracts could therefore be construed as part of the apartheid design to remove blacks from parts of the country reserved for whites, and was therefore subject to restitution.

Clarifying grey areas

The judgment strengthens precedents set by lower courts that registered ownership of land does not always take precedence over customary rights. It also reiterates that land rights losses qualifying for restitution go way beyond the orthodox common-law definition and include a host of unregistered or customary interests.

The judgment also rejects the Land Claims Court’s narrow interpretation of the term “community” as requiring proof of an accepted tribal identity and hierarchy. A group simply needs common rules and practices to be deemed a community. The Constitutional Court did, however, conclude the Popela community’s use and possession of land when they were forced to leave was not derived from common rules, but rather from agreements between individual labour tenants and the landowner. They were therefore entitled to restitution as individuals, not as a community of labour tenants.