The Baphiring Community v Tshwaranani Projects CC and Others

The Baphiring community was dispossessed in 1971 of land known as ‘old Mabaalstad’ (now the farm Rosmincol 442 JP and related portions) through racially discriminatory laws and relocated to alternative land some 80 km away. In 1998 the community lodged a land claim under the Restitution of Land Rights Act 22 of 1994 seeking restoration of the original land. The Land Claims Court (LCC) had previously confirmed the community’s standing, that ownership including mineral rights had been lost, and that the compensation received at dispossession was not just and equitable. In a later separated hearing, the LCC held that restoration was not feasible under s 33(cA) of the Act, largely because of cost and lack of state support, and granted only equitable redress. The community, supported by the Regional Land Claims Commissioner and the Minister of Rural Development and Land Reform, appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the Land Claims Court dated 19 January 2010 was set aside. The matter was remitted to the Land Claims Court to determine anew the feasibility of restoring the claimed portions of land, with specific factors to be considered. No order as to costs was made.

This case is significant for clarifying that restoration is the default remedy in land restitution claims and that non-restoration orders require a proper evidential foundation. It affirms the proactive duty of the state and the Land Claims Commission to place comprehensive feasibility and cost evidence before the court. The judgment strengthens procedural fairness in restitution matters and underscores that courts may not deny restoration based on speculation or inadequate evidence about affordability or feasibility.