The Salem Community v The Government of the Republic of South Africa and Others

The Salem Community lodged a restitution claim in respect of land in the Salem area (Eastern Cape), including the Commonage and a former Native Location. The community alleged that its members and forebears, descendants of indigenous Xhosa groups, had occupied and used the land communally since at least the early 1800s, exercising rights of residence, grazing, cultivation, access to firewood and burial sites. Following colonial settlement, the establishment and later disestablishment of a Native Location, and the subdivision of the Commonage by court order, community members were gradually dispossessed, particularly between the 1940s and 1980s, and forced either to become labourers on white-owned farms or to leave the area, without compensation. Certain portions of the original claim had already been restored by the State. The remaining landowners disputed the validity of the claim, denying the existence of a qualifying community, the existence of rights in land, and any racially discriminatory dispossession.

The Land Claims Court upheld the validity of the Salem Community’s restitution claim and confirmed that the State’s acceptance of the claim was lawful. The matter of the feasibility and form of restoration of the remaining land was deferred for later determination.

This case is significant for reaffirming that indigenous and informal land rights can survive colonial conquest and must be assessed through a careful historical inquiry. It underscores the wide, purposive interpretation of ‘community’ and ‘right in land’ under the Restitution of Land Rights Act, and confirms that procedural defects in claim lodgement should not lightly defeat substantive restitution claims.