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

The Salem Community, a group of predominantly Xhosa-speaking families, claimed restitution of land rights in Salem, situated in the Zuurveld between the Assegai River and the Great Fish River. The area was historically occupied by indigenous Xhosa communities prior to the arrival of 1820 British settlers. A Commonage was established where the native community and settlers both grazed cattle. A Native Location was established in 1921, which later fell into disuse. In 1941, the Supreme Court in Grahamstown ordered the subdivision of the Commonage among White erven owners without consulting the native inhabitants. The location was disestablished, and Black residents were forced to either remain as labourers or leave the area. The claimants alleged dispossession of rights to ownership, residence, grazing, ploughing, access to firewood, and burial sites. The dispossession occurred progressively from around 1941 to the 1980s, affecting approximately 500 members of the community. Some properties had already been restored by the State Defendants, but the claim concerned the remainder of the land.

• Whether the Plaintiff constituted a 'community' as defined in Section 1(iv) of the Restitution of Land Rights Act 22 of 1994
• Whether the Plaintiff held a 'right in land' after 19 June 1913 as defined in the Act
• Whether the Plaintiff was dispossessed of its rights in land 'as a result of past racially discriminatory laws or practices'
• Whether the claim was validly lodged in compliance with Section 10(3) of the Act
• Whether indigenous rights to land were extinguished by colonial conquest
• Whether the subdivision of the Commonage and disestablishment of the Location constituted racially discriminatory practices

The claim by the Salem Community was upheld. The Court declared that the Salem Community was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws and practices in terms of Section 2 of the Restitution of Land Rights Act 22 of 1994. No order as to costs was made. The question of feasibility of restoration was deferred for later determination.

The binding legal principles established are: (1) Indigenous law ownership of land survives colonial conquest where indigenous communities continue to assert their rights and maintain their identity, particularly in contested 'frontier zones' where no single authority prevailed. (2) A 'community' under the Restitution Act has a deliberately low threshold and must be interpreted generously to include any group of persons whose rights in land are derived from shared rules determining access to land held in common. (3) 'Rights in land' include indigenous law ownership based on customary occupation and use, which must be assessed according to customary law principles, not common law concepts of possession. (4) The phrase 'as a result of' past racially discriminatory laws or practices means 'as a consequence of' and requires a reasonable (not remote) causal connection, assessed through a context-sensitive appraisal of all relevant factors. (5) Dispossession must be examined within the broader 'grid' of discriminatory laws and practices, not in isolation. (6) Court judgments can constitute racially discriminatory practices when they fail to consult with or recognize the rights of Black communities while recognizing White property rights, particularly within the context of discriminatory legislation. (7) Historical events prior to 19 June 1913 are relevant to understanding the nature of rights held and the discriminatory context of dispossession that occurred after that date, consistent with the principle in Richtersveld Community. (8) Hearsay evidence regarding circumstances of dispossession and customary land allocation rules is expressly admissible under Section 30(2) of the Restitution Act.

The Court made several non-binding observations: (1) The rights lost by the Salem Community were not merely economic but had cultural and spiritual dimensions relating to family identity, ancestral burial grounds, and generational connection to land, factors that should be considered when fashioning an appropriate remedy. (2) Recorded history typically reflects the perspectives of dominant cultures and often relegates dominated peoples to 'the shadowy status of people without a history,' making gaps in documentary evidence revealing in themselves. (3) The relationship between Black families and White farmers, while paternalistic and feudal in nature as a relic of conquest and dispossession, nonetheless formalized a minimal degree of respect for the connection of indigenous families to the land. (4) The inspection in loco revealed a 'startling disregard' for ancestral graves of the community. (5) Indigenous peoples are defined by four inter-related factors: subjection to colonial settlement, historical continuity with pre-invasion societies, an identity distinct from the dominant society, and concern with preservation and replication of culture. (6) Self-identification as indigenous and acceptance by other indigenous people is sufficient; it is not necessary to prove detailed blood/family descent from original occupants. (7) The claim form design was unfortunate in not specifically requiring a resolution to support representative capacity at the time of lodgement, creating practical difficulties for ordinary community representatives unfamiliar with legal processes.

This case is significant in South African land restitution jurisprudence for several reasons: (1) It applies the principles established in Richtersveld Community to a context involving colonial conquest and frontier wars, holding that indigenous rights survive conquest where communities continue to assert those rights. (2) It adopts a generous, purposive interpretation of 'community' consistent with the remedial purpose of restitution legislation. (3) It recognizes that indigenous law rights must be assessed according to customary law principles, not common law concepts of possession and ownership. (4) It applies the 'grid' analysis from Popela, examining dispossession within the broader context of interconnected discriminatory laws and practices rather than in isolation. (5) It confirms that court judgments can constitute racially discriminatory practices when made within a discriminatory legal and social context without consulting affected Black communities. (6) It reinforces that historical events predating 1913 are relevant to understanding the nature of rights and dispossession that occurred after that date. (7) It recognizes that the rights lost were not merely economic but had cultural and spiritual dimensions connected to family identity, burial grounds, and generational connection to land. The judgment contributes to the development of jurisprudence on indigenous land rights and the interpretation of the Restitution Act in accordance with constitutional values of dignity and equality.