Vast land claim in Magistrate’s Court

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PORT Alfred Magistrate’s Court is the venue in one of the biggest land claims in the Eastern Cape, and involves a disputation of attorneys representing several groups with claims to the land from the Fish River and farms further inland.

The dispute, which has been on-going for the last 17 years, involves the AmaZizi peoples, the Tharfield peoples and the Prudhoe peoples. It also involves attorneys representing the Fish River Sun.

DISPUTED: A map of the area in dispute run along the Great Fish River

The case is being heard by a panel of judges and the presiding judge, Yasmine Meer, is attempting to speed up proceedings, which began on Tuesday, May 2, in order to put an end to the dispute which has its origins in the 19th century Border Wars.

There was no official interpreter available in court on either Tuesday or Wednesday, but Tuesday’s proceedings utilised the services of a member of the gallery. On Wednesday, Meer said the complainants should have brought interpreters but that proceedings would not be held up and would continue.

The story, as it unfolded over the first two days of the proceedings, involves the Xhosa peoples who occupied the land east of the Great Fish River, and the British who were fighting to claim it. These are the Border Ways, and it was during these that people escaping the tyranny of Shaka Zulu, the AmaZizi peoples traveled southward and across the Great Fish River, joining the British and, as a consequence, were promised land. However, after the seventh Border War (War of the Axe) Sir Harry Smith allocated and sold the plots of land to white farmers, relocating the AmaZizi further inland.

In court, papers were produced, journals were read and notes interpreted, and expert witnesses were asked to give their version of events in order to determine who the court should allocate the land to.

Rural Development minister, Gugile Nkwinti took the stand on Tuesday in a cross-examination session led by council representing each respective party in the settlement claim.

A total of 86 farms being claimed as historical land where the Prudoe, AmaZizi and Tharfield resided, 27 farms are being disputed between the clans. Five farms are being contested between the AmaZizi people and the Tharfield community.

Both the Prudhoe and AmaZizi people have laid claim to these farms as the AmaZizi stated historical grazing rights to land claimed by the Prudhoe people. AmaZizi claims land restitution for approximately 1000 households, Prudhoe 300 households and Tharfield for a 100.

STILL WAITING: After 17 years the people involved in the land claim are still awaiting an answer

Nkwinti proposed a model of one household, one hectare on a respective farm. Depending on the capacity of the farm, a farm is 10 hectares, five families will reside, each with one hectare to their own household and the surplus will then be used as common land to further develop agricultural practices. Each of these households will receive their own title deeds to the farm. This model was generally accepted by all three claimants with the exception that AmaZizi claim grazing rights in land identified by the Prudhoe people as rightfully theirs.

All parties agreed and accepted the model but disputes over who has claim to which land is drawing the process out.  In Tharfield, the claimants set a condition that they have a small Communal Property Association presented by advocate Rudolph Jansen.

The judge pressed council members to finalise their settlements and to capitalise on court time. Council members pressed for an early adjournment Tuesday afternoon to iron out more issues with the respective groups. “Please be realistic, and be proactive about the early adjournment,” Meer warned.

“In the case of Sun International’s Fish River Sun resort, Nkwinti disclosed that there are three families with historical claim to land,” Nkwinti said. “Although the Fish River Sun matter had not been finalised, they [DRDLR] want to make sure the claims don’t jeopardise the Fish River Sun operations.

“We do not want people to lose jobs. We will negotiate with the owner. Ideally we would like to see the business owner collaborate with the families,” said Nkwinti.

Council representing Fish River Sun’s interests, advocate Nyoko Muvangua, asked Nwkinti to clarify what he meant when he said the department will purchase the [Fish River Sun] property.

Nwinti said they intend to purchase the hotel and the land but that he would like to see the current owners continue and pay a form of rental compensation to the claimants.

Muvangua stunned the court when she disclosed that Fish River Sun’s position is that they will not continue in operation for longer than another six months. She added that they would assist with the transitioning period, but that is the owner’s desire not to continue

“We had negotiations where we persuaded them to not leave the business until an agreement is to leave,” Nkwinti said which Muvangua fired back that these negotiations (in 2009) may have been so, and done in informal discussion, but since then the owners had changed their minds.

No one has been identified by the department to take over the business, and the minister will engage in discussion to persuade FRS to extend their period.

During cross examination, new and unheard of claims may further impact the Fish River Sun claims as advocate Allan Dodson, presenting the Prudhoe claim disclosed that new historical archives which were overlooked by the researcher indicates that the AmaZizi have no historical claim over the disputed land post 1913.

By 11pm Tuesday evening, council members were still deadlocked and had not been able to find an agreement on three of the farms disputed by AmaZizi and Prudhoe where the Prudhoe people claim historical residence and AmaZizi claim grazing rights.

On Wednesday, Professor Geoff Peires of Walter Sizulu University gave evidence as to the nature of the agreements made by the various parties from the earliest available records and, by close of day, several points regarding the origins and rights of the land claims were again in dispute.

In this region 17 638 claims – across six districts and including two metros – were lodged before the December 31 1998 cut-off date. The highest numbers of claims were in the Amathole district with 8,053, followed by Cacadu with 7 137. The claims include betterment claims in the communal farming areas, conservation claims, commonage claims; and forestry land claims.

By March 2015, 16 726 land claims were settled with 912 outstanding. During the 2014/15 financial year 79 land claims were settled, 39 finalised and 198 researched.

This paves the way for reopening land claims after the initial period closed in 1998. It now gives claimants five years, up to June 2019, to lodge claims. The law only allows claims for land of which people had been dispossessed since 1913.

On Wednesday, Professor Geoff Peires of Walter Sisulu University gave evidence as to the nature of the agreements made by the various parties from the earliest available records and, by close of day, several points regarding the origins and rights of the land claims were again in dispute.

At the time of going to print, the case is still in court without settlement.

By ROB KNOWLES and LOUISE CARTER

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