Appeal Court slams Land Court decision

The Supreme Court of Appeal has sharply criticised the Land Claims Court (LCC) for ruling that restoring tribal land in the North West to the Baphiring community was not feasible, without any evidence.

The Appeal judges referred the matter back to the LCC to reconsider the feasibility of restoring the agricultural land known as “old Mabaalstad” in the Koster district to the community.

The LCC was also ordered to take into consideration the nature of the land and surrounding environment and changes that have taken place since the dispossession in 1971. It must also consider the cost of expropriating the land, the institutional and financial support to be made available for the resettlement and the extent of compensation to be paid to the current owners. Other aspects to be considered include:

  •  The number of current occupants of the land and the extent of social disruption should they be forced to move;
  •  The number of people expected to resettle and the extent to which the land can support the community;
  •  The extent of the loss of food production and any impact it would have on the local economy, should farming activities not be continued at current levels; and
  •  The extent of “overcompensation” should the land be restored.

The Baphiring community has been trying to get its ancestral land restored to it since 1998. The community originally bought the land in the 1880s.

In 2010, the LCC ruled that it would not be in the public interest, and therefore was not feasible, to restore the land to the community having regard to the prohibitive cost to the state.

Judge Azhar Cachalia, supported by four Appeal Court Judges, said the evidence presented by the state on the cost of expropriating the land and supporting a sustainable development plan for the resettled community had been completely inadequate.

“In my view the State’s approach to the litigation amounted to a dereliction of its duty to the parties and to the court.

“At the commencement of the hearing … it adopted the stance that the restoration of the land was feasible, but the evidence of the regional land claims commissioner … was of little assistance to the court.

“… He was not able to say whether or not the State had budgeted for the resettlement of the community.

“…The State ought to have conducted a feasibility study into the restoration of the land. That study should at the least have taken into account the number of families expected to resettle, the institutional and financial support for the resettlement and the envisaged land usage if the land is restored,” Cachalia said.

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