THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1310/2018

In the matter between:
MAZIZINI COMMUNITY

APPELLANT
and
MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM

FIRST RESPONDENT
PRUDHOE COMMUNITY

SECOND RESPONDENT
T K FANI

THIRD RESPONDENT
LAND CLAIMS COMMISSION

FOURTH RESPONDENT

Neutral citation: Mazizini Community v Minister of Rural Development
and Land Reform & others (Case no 1310/2018) [2020]
ZASCA 57 (2 June 2020)
Coram:
WALLIS, MBHA and DAMBUZA JJA and MOJAPELO and
EKSTEEN AJJA
Heard:
11 March 2020
Delivered: This judgment was handed down electronically by circulation to the parties’
legal representatives by email, publication on the Supreme Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be 12H00 on
02 June 2020

Summary: Land restitution – meaning of ‘community’ as envisaged in
s 2(1)(d) of the Restitution of Land Rights Act 22 of 1994 restated – no
evidence of previous occupation of claimed land by the appellant community
– appeal dismissed.

ORDER

On appeal from: The Land Claims Court – Port Elizabeth, Randburg and
Port Alfred (Barnes AJ, Meer AJP and Professor Mqeke concurring, sitting as
court of first instance):
1 The appeal is dismissed.
2 Annexure ‘G’ to the order of the Land Claims Court is altered to read as
follows:
‘1 The land falling within the full Prudhoe claimed area as identified in
Annexure “B” to the Judgment and handed in at the trial as Exhibit 3;
2 including, the Fish River Sun Farms, namely:
2.1 Remainder Farm 242, in extent 147 6693 hectares;
2.2 Portion 2 of Farm 235, in extent 10 5700 hectares;
2.3 Portion 23 of Farm 235, in extent 11 6870 hectares;
2.4 Portion 24 of Farm 235, in extent 12 4881 hectares;
2.5 Portion 25 of Farm 235, in extent 1 6033 hectares;
2.6 Portion 26 of Farm 235, in extent 6047 hectares;
2.7 Farm 243, in extent 41 0035 hectares;
3 but excluding:
3.1 Portion 2 of Farm 241, in extent 4 2203 hectares.
3.2 Portions 20 and 21 of Farm 261; and
3.3 the land in respect of which the second plaintiff has relinquished it
claims for restoration, namely:
3.3.1 Portion 13 of Farm 227;
3.3.2 Portion 14 of Farm 227;
3.3.3 Portion 15 of Farm 227;
3.3.4 Portion 16 of Farm 227;

3.3.5 Portion 17 of the Farm 227;
3.3.6 Portion 18 of the Farm 227;
3.3.7 Portion 19 of Farm 227;
3.3.8 Portion 33 of Farm 227; and
3.3.9 Remainder of Portion 1 of farm 227, in extent 11 2824
hectares (excluding Portions of farm 227)’
4 Annexure ‘F’ to the order of the Land Claims Court is altered to read as
follows:
‘The land falling in the full Prudhoe claimed area as identified on Annexure
“B” to the Judgement and handed in at the trial as Exhibit 4, including, the
Fish River Sun Farms, namely:
4.1 Remainder Farm 242, in extent 141 6693 hectares;
4.2 Portion 2 of Farm 235, in extent 10 5700 hectares;
4.3 Portion 23 of Farm 235, in extent 11 6870 hectares;
4.4 Portion 24 of Farm 235, in extent 12 4881 hectares;
4.5 Portion 25 of Farm 235, in extent 1 6033 hectares;
4.6 Portion 26 of Farm 235, in extent 6047 hectares; and
4.7 Farm 243 in extent 41 0035 hectares

JUDGMENT

Dambuza JA and Mojapelo AJA (Wallis and Mbha JJA and Eksteen
AJA concurring)

Introduction
[1] This appeal is against the judgment of the Land Claims Court (LCC,
Barnes AJ, Meer AJP and Professor Mqeke (assessor) concurring) in terms of
which rights in certain land located between the Great Fish and Mgwalana

Rivers (the subject land), were awarded to the second respondent, the Prudhoe
Community. The appellant, Mazizini Community (AmaZizi) obtained leave
to appeal from this Court, albeit inadvertently, as the answering affidavit of
the Prudhoe Community had not been brought to the attention of the judges
due to an error on the part of the registrar. We shall return to this aspect later
when we set out the long and tortuous history of the matter.

Historical Background
[2] The chiefdom of the AmaGqunukhwebe, which was part of the
AmaXhosa Nation,1 was established by King Tshiwo before 1700 AD. Before
the Fourth Frontier War2 of 1811 to 1812 the land of this chiefdom stretched
along the south eastern coast of the Eastern Cape from the Keiskama River as
far west as the Swartkops River. During the Fourth Frontier War
AmaGqunukhwebe lost their land to the west of the Fish River, retaining only
the land on the east of that river, up to the Keiskama River, which includes
the subject land. With the Fifth Frontier War3 AmaGqunukhwebe were
pushed further East to the Keiskama River. They however returned to their
former territory as a result of intervention by a missionary, Reverend William
Shaw, who negotiated with the colonial authorities and secured for them the
return of the land that they had previously occupied. Apart from this re-
settlement by AmaGqunukhwebe, this area (between the Fish and Keiskama

1 A popular version of this part of history is that one of King Tshiwo’s counsellors Khwane who was also a
warrior, was entrusted with the role of executioner. But, instead of carrying out his duties, he hid the
condemned people in a place where they intermarried with a Khoisan tribe (the Gqunuqwas) and the
population increased. Later, Khwane brought back the sons of the former condemned people to the King as
warriors, together with the older men and women and lots of cattle. In appreciation of the cattle and the
warriors that Khwane had brought, Tshiwo took to himself only a portion of the people and of the cattle, and
gave the remainder to Khwane and bestowed upon him a territory on the seacoast, symbolically appointing
him as the new son of the King. This was the birth of the AmaGqunukhwebe and that is how they came to
settle along the east coast as part of the Nation of the AmaXhosa.
2 These were a series of nine wars between the Kingdom of AmaXhosa and the Boer frontiersmen at first and
European settlers later (1811), in the Eastern Cape Province during the period 1779 to 1879.
3 1818-1819

Rivers) was left unoccupied and was designated a buffer zone between the
British Settlers and the AmaXhosa. It became known as the ‘Ceded Territory’.

[3] ‘AmaMfengu’ (or ‘Fingoes’ as the British called them) is an umbrella
term for various independent chieftainships of which AmaZizi is one.
Following the Sixth Frontier War of 1835, AmaMfengu arrived in the Peddie
District from Butterworth, east of the Kei River, and joined the British forces
in fighting against the AmaXhosa. They were settled in the buffer zone within
the Peddie District, as they were considered friendly to the British.

[4] During that period (the 1830’s) Lt.-Gov Andries Stockenström
implemented a system of formal treaties as a means of guarding the colonial
borders. Relevant for our purpose were the 1836 Stockenström Treaties
concluded between the British Government, through Lt-Gov Stockenström,
and various African indigenous chiefs, including AmaGqunukhwebe, on 5
December 1836. The 1836 Treaties recognised the Fish River as the
international boundary between the Cape Colony and the various Xhosa
territories.

[5] The 1836 Stockenström Treaty granted the AmaGqunukhwebe the land
on which they had long settled, on the east coast, between the Fish and
Mgwalana Rivers. AmaMfengu were allocated the land inland of the
AmaGqunukhwebe territory as shown in the contemporaneous map below.4
Within the AmaGqunukhwebe Territory, specific areas were assigned to
Chief Phatho of AmaGqunukhwebe and his younger brothers Chiefs Kama
and Kobe. In 1843, Chief Kama converted to Christianity. This led to tensions
between him and his older brother, Chief Patho. As a result, Chief Kama

4 The map shows the allocation of land by Lt.-Gov Stockenstrom, clearly reflecting the division between
the two groups.

moved inland to Hewu (Whittlesea). However, many of his subjects remained
behind, on a portion of his land, under the leadership of Chief Phatho.

[6] Following Chief Kama’s departure, Chief Phatho claimed the land
vacated by his brother. However, Lt.-Governor Hare did not honour this
claim. Instead he allowed the British resident agent, Theophilus Shepstone, to
mark off a boundary extending the area of the AmaZizi into a portion of the
land that had been under Chief Kama’s rule (the area covered by the
Newtondale mission).5 This was done on the basis that Chief Kama had
relinquished the land to the colonial government. Shepstone then facilitated
settlement of AmaZizi on part of Chief Kama’s land, inland away from the
coast. This allocation was described on a map of the Eastern Cape Frontier
area from 1847 to 1850 as the ‘Territory more recently occupied by Mfengu’.
It did not extend into the territory where the remainder of Chief Kama’s

5 Above Kaffir’s Drift (See arrows - our emphasis in bold boundary).

people had stayed. The rest of Chief Kama’s land remained in the hands of
those of the AmaGqunukhwebe who had not followed their leader.

[7] In 1845 Governor Maitland replaced the 1836 Treaties with new
treaties granting the respective communities the same areas occupied by them
under the 1836 Treaties. The terms of the 1845 Treaty were identical to that
of 1836, essentially allocating specific areas of land to the different African
communities. The relevant part of the treaty provided that:
‘The said Governor doth hereby, in the name of her said Majesty, grant and confirm unto
the said chiefs and their tribe[s], that part of the territory called the ceded territory which,
since the making of the treaty of 5th of December, 1836, they have held and occupied –
which territory shall be held by the said chiefs and tribe[s], their heirs and successors, in
perpetuity, never to be reclaimed on behalf of her said Majesty, except in the case of
hostility committed, or a war provoked by the said chiefs or tribe, in case of a breach of
this treaty or any part thereof.’
The land granted to AmaZizi came to be described by the three tribal authority
portions, which constituted the total area, namely the Dabi, Msuthu and
Njokweni Tribal Authorities, in line with the names of the chiefs who held
authority in the respective portions.

[8] Meanwhile, Chief Phatho had been so aggrieved by the colonial
government’s takeover of Chief Kama’s land that, at the outbreak of the
Seventh Frontier War (War of the Axe) in 1847, where the British forces were
commanded by Sir Harry Smith who had succeeded Governor Maitland,
AmaGqunukhwebe went into alliance with other groups of the AmaXhosa
who fought against the settlers. On the other hand, AmaZizi fought on the side
of the British, having been promised more land. AmaGqunukhwebe were
defeated in the 1847 war and they lost their political power. They were
eventually driven beyond the Keiskama River. In addition, in line with the

change of policy on the part of the colonial government, Sir Harry Smith
signed a proclamation on 17 December 1847, which abrogated and annulled
wholly ‘all Treaties and Conventions formerly subsisting between her Majesty
the Queen and the [AmaXhosa Chiefs] ….’, effectively annulling the
Maitland Treaties of 1845 and re-integrating the land previously granted to
the Africans into British colonial territory. He also sold off all the African
lands previously occupied by the AmaGqununkhwebe to white farmers,
including land that had been promised to AmaZizi.

[9] Having been defeated and driven beyond the Keiskama River in 1847
AmaGqunukhwebe were dealt a further blow in 1858 with the Nongqawuse
cattle killing debacle.6 They lost their remaining land and Chief Patho was
imprisoned at Robben Island. The historic chiefdom was destroyed and
divorced from its indigenous territory until 1975 when it was resurrected east
of the Keiskama River by the Ciskei homeland government.

[10] Although the chiefdom of AmaGqunukhwebe had been destroyed and
its people expelled from their territory, Chief Kama’s people continued to
occupy their indigenous lands under the white landowners. They were familiar
with the land and conditions along the coast and opted not to emigrate.
According to Professor Peires, these remnants of Chief Kama’s people
continued as best as they could to occupy their indigenous lands, but their
right to do so was never legally recognised. Ownership rights passed to the

6 J B Peires: The Dead Will Arise: Nongqawuse and the Cattle-Killing Movement of 1856-7. The nub of the
story, which has been told in many different versions is that during 1856 to 1857 the AmaXhosa, having
suffered humiliating loss of land, cattle and people as a result of the Frontier Wars and a lethal cattle disease
in 1853 (the lung sickness), heeded a call from a young prophetess, Nongqawuse, to kill all their cattle
because they had been reared with hands that were sullied by witchcraft. The promise or hope was that the
dead would arise and happy times would return. However, all that followed the killing of cattle and
destruction of grain was famine, suffering, death, capturing of AmaXhosa leaders by Sir George Grey and
their imprisonment on Robben Island.

white landowners. They lost their political status as a chiefdom and began to
identify as a rural community, the Prudhoe Community, living under the
authority of settler colonialism. Some became labour tenants under the white
farmers, but many pretended to be labour tenants when in fact they rented the
farms from the white farmers and farmed for their own benefit. Others were
sharecroppers (also known as half-sowers or part lessees). Although subjected
to colonial rule, they continued to live on this land, under tribal leadership of
four headmen7 who performed certain administrative functions such as
settling disputes and acting as intermediaries with landowners and
government officials. The indigenous leadership role was hereditary, passing
from father to son, until the 1990’s when the community was moved to the
Prudhoe Village. Although the Colonial Government attempted to restrict
black farming by enacting various laws,8 it did not quite succeed. The archival
records reveal that a good number of white landowners (at least 110) who
leased land to black tenants failed to register their private locations.

The land claim and litigation history.
[11] During February 2008 the Regional Land Claims Commission (RLCC)
referred to the LCC a land claim in which the AmaZizi claimed restitution of
its rights in 27 896 hectares of land comprising 85 farms located in the area
between the Fish and Mpekweni Rivers up to Gqutywa River (inland) in the
Eastern Cape Province. Essentially, the claimed land covered the area on
which AmaZizi had been settled within the ceded territory during the 1830’s
and 1840’s, including the portion of land that used to be Chief’s Kama’s

7 The headmen were from four farms, namely, Slate, Lessendrum, Dunstan and Farm No 249.
8 For example, the Native Location Amendment Act 30 of 1899, The Private Locations Act 32 of 1909 and
the Native Trust Land Act 18 of 1936.

territory, and the land formerly granted to AmaGqunukhwebe, including the
portion of Chief Kama’s land on which Chief Kama’s people had remained.9

[12] The claim of the AmaZizi was an amalgamation of three different
claims lodged as follows: (a) the Matiwane claim was lodged on 20 December
1998; (b) the claim lodged by Phumzile Magilidane on 19 December 1998 on
behalf of Ntloko community; and (c) the claim lodged on 20 December 1998
by Fukweni Zolile on behalf of AmaZizi. The process of amalgamation did
not happen at once and made its fair contribution to the delay in the
finalisation of the claims. In the referral by the RLCC the claimed land was
described as follows:
‘From Heaton Farm, passing Pato’s Kop, Ntabakaluzi, over the Fish River, the
Mbokothwana Land, some given to Mgababa people by previous government, the farms
from Patoskop up to [M]Gwalana River where Mphekweni Sun and Fish River are situated,
the then Ulimocor area up to Singeni area including Prudhoe area.’
As is evident from this description two hotels, Mphekweni Sun and the Fish
River Sun Hotels, then owned by Emfuleni Resorts, were located within the
land claimed by AmaZizi.

[13] The following was recorded in the referral to the LCC:
‘The claimants are part of the group of people referred to as AmaMfengu who were
resettled in the Peddie area by the Cape Colonial Government from the Transkei Territories
during and after the 1835 Frontier War. The claim is for the rights lost by Chief Njokweni
and his people in the area that was under the leadership of Chief Njokweni…
…The dispossession was made in terms of the furtherance of the objects of a ‘racially
discriminatory practice’ by fulfilling the policy of a ‘betterment planning’ in the Ciskei
homeland.’

9 The land claimed included the tribal authority areas of Dabi, Jaji and Msuthu, in which members of the
AmaZizi currently live.

According to that referral the dispossession occurred from 1979 to 1982 and
the claimants never received just and equitable compensation at the time of
dispossession.

[14] A portion of the land claimed by AmaZizi was, at the time of lodgment,
the subject of a land claim by the Prudhoe Community. The Prudhoe claim
had also been lodged timeously with the RLCC on 10 December 1998 in terms
of the Restitution of Land Rights Act 22 of 1994 (Restitution Act). The land
in relation to which these competing claims were lodged, is the territory which
had been granted to AmaGqunukhwebe during the 1830’s and 1840’s. In
Prudhoe’s claim it was described as comprising 26 parent farms, spread over
10 540 ha as surveyed at the time of the original grant. This portion of land
lies between the Fish River and Mgwalana River in the Peddie district of the
Eastern Cape. At the time of lodgement of the claim the majority of members
of the Prudhoe Community resided in the Prudhoe village which was situated
on the Prudhoe Farm 203. Most of the land was state land, the farms having
been expropriated from white owners during the 1970s for consolidation into
the former homeland of Ciskei.

Investigation and referral of the claims by the LCC
[15] The competing claims have a long and unfortunate history
characterised by apparent neglect, bias and/or incompetence on the part of the
RLCC. There were also indications of favouritism towards AmaZizi by the
RLCC. The delay resulted in the claims taking approximately 20 years from
lodgement to reach the LCC and to be finalised by that court.

[16] The fact that there were competing claims over the subject land must
have been known to the Land Claims Commissioner from as far back as 1998

when the claims were lodged. However, in February 2008 the RLCC referred
only the AmaZizi land claim to the LCC in respect of the Sun farms. This
resulted in a trial during 2008 in the LCC (before Bam JP) without joining
Prudhoe as a party, and without the RLCC informing the court of its
competing claim. On 12 March 2010 the LCC (Bam JP) ordered restoration
of the Sun farms, including the Fish River Sun resort, to AmaZizi. As things
turned out that trial was a waste of time and precious resources.10

[17] When Emfuleni Resorts appealed against the award of the Sun farms to
AmaZizi the Prudhoe Community successfully applied to this Court to have
the restoration award rescinded. This Court remitted the case to the LCC for
rehearing and criticised RLCC for processing the claim of AmaZizi, ignoring
the respondent’s claim for 12 to 13 years. The conduct of the RLCC was
described as an ‘opportunistic and futile attempt to cover-up for the dereliction
of duty by the officials concerned’.

[18] Even when it eventually referred both claims to the court, the RLCC
purported to adjudicate Prudhoe’s claim by dismissing Purdhoe’s community
claim and referring it only as claims of individuals who were ‘ex-farm
workers’ on the subject land. Several other dilatory steps were taken by the
RLCC and AmaZizi, including frivolous points in limine, which were rejected
by the LCC, and applications for leave to appeal to this Court and the
Constitutional Court, which were all predictably dismissed. The trial
eventually resumed on 24 April 2017 but was further delayed by the failure
of the RLCC to notify some of the interested parties of the date of resumption
of the trial. After several further hiccups, the trial was finalised and judgment
of the LCC was handed down on 11 April 2018.

10 Emfuleni Resorts v Mazizini Community [2011] ZASCA 139 (23 September 2011) at para 7.

[19] In its judgment the LCC found that AmaZizi were a community as
envisaged in the Restitution Act and had established rights in the tribal
authority land together with the Heaton Farm (described with more
particularity in annexure E to the judgment of the LCC), of which it was
dispossessed. The LCC, however found that AmaZizi had not proved any
rights in the subject land and that it was the Prudhoe Community that was
dispossessed of rights in that land (as described in annexure F to the judgment
of the LCC).

[20] On 3 ugust 2018 the LCC refused AmaZizi leave to appeal against its
judgment on 3 August 2018. On 5 September 2018 the appellant applied to
this Court for leave to appeal, citing only three parties and omitting several
interested parties. Although Prudhoe sought to oppose the application for
leave to appeal and had prepared an answering affidavit, that affidavit was not
filed with the registrar of this Court as the registrar had directed that the
application be withdrawn and a new one filed citing all the interested parties.

[21] The application was never withdrawn despite the directions of the
registrar. Instead, on 29 October 2018 the attorneys for Prudhoe learned by
chance that leave to appeal had been granted on 24 October 2018 to AmaZizi,
without it ever filing a fresh application in accordance with the directions of
the registrar. Leave to appeal was therefore granted, clearly in error, without
this Court having received and considered the Prudhoe answering affidavit.
Despite being aware of the error, AmaZizi did not cooperate in having the
order rescinded. The registrar of this court then advised the attorneys for
Prudhoe that there was no statutory provision for rescission of an order
granting leave to appeal, but only a reconsideration in terms of s 17(2)(f) of

the Superior Courts Act. It was then decided, for the sake of expedience, rather
to allow the appeal to proceed.

[22] In its pleadings, Prudhoe asserted that it was a community that traced
its roots back to AmaGqunukhwebe under Chief Kama, under whom they
exercised their indigenous land rights, communally, in accordance with shared
rules regulating the allocation and use of the subject land for their homesteads,
grazing and cultivation. They maintained that after the land fell into white
hands, during the period starting from 1847 until the 1970s they continued to
function as a community on that land and to exercise their rights in the land
in accordance with their indigenous rules, ‘to the reduced extent compatible
with the extent of the assertion of ownership rights by the white farmers,
which varied from farm to farm’. After the departure of the white farmers the
community regained freedom to exercise their communal rights in the subject
land as they had done previously.

[23] In addition to tracing their lineage as descendants of Chief Kama’s
subjects and insisting that they were a community, the Prudhoe Community
maintained that AmaZizi had led no evidence before the LCC to support a
valid land claim in respect of the subject land. There was not a single member
of the appellant’s community who was shown to have lived on the subject
land before and after 1913. It was also submitted on their behalf that just as it
happened with other indigenous communities that had been granted land
under the 1845 Treaty, the annulment of previous land grants in terms of the
1847 Proclamation abrogated all rights the AmaZizi had held in the ceded
territory. Further, the archival documentation on which the appellant relied
predated the 1913 Act and did not, in any event, prove entitlement to the relief
sought by AmaZizi.

[24] Both communities pleaded that they never received any compensation
for dispossession of their rights. As already noted, in relation to the Prudhoe
claim the Commissioner stated, amongst other things, that:
‘ . . . the Commissioner has determined that the claim by [the Prudhoe Community] does
not constitute a community claim within the meaning and contemplation of the Act, but
different claims by the persons all of whom are ex farm workers and whose names are set
out in the first column to the table appearing below . . . . ‘

[25] A third claim (second competing claim) by the Tharfield Community,
as the third plaintiff, in respect of a number of farms, was settled and is not
part of this appeal.

On appeal
[26] The Mazizini and the Prudhoe claims remain the only competing claims
in this appeal. The contested land includes the land on which the Fish River
Sun Hotel is located (the Sun farms 242, 243 and 245). Although the Sun
farms were previously owned by Sun International (Ciskei) Ltd, they have
since been acquired by the Minister of Rural Development and Land Reform
(the Minister) for restoration to the successful claimant in these proceedings.

[27] During the trial, both parties abandoned their claims in respect of some
of the land. The AmaZizi abandoned thirteen farms and Prudhoe relinquished
eight farms. The exact portion of the abandoned land does not appear on the
record, save that the portions ultimately awarded to the Prudhoe Community
appear in the order at the end of this judgment (the amended version of
annexure G to the judgment of the LCC).

Contentions of parties on appeal

[28] In challenging the award of the subject land to Prudhoe, AmaZizi
maintained that, firstly, Prudhoe was not a community as defined in the
Restitution Act, and should therefore not have been awarded any land. They
contended that the members of the Prudhoe Community were descendants of
individuals who were farm labourers on the subject land. In essence AmaZizi
disputed that part of the history that held the Prudhoe Community out as
descendants of the subjects of Chief Kama. The second leg of the challenge
by AmaZizi to the judgment of the LCC was that, because the 1847
Proclamation that terminated all land tenure rights enjoyed by Africans within
the ceded territory prior thereto was not applicable to AmaMfengu. Instead
they continued to enjoy rights both in their originally allocated land and in the
subject land, until they were dispossessed thereof by the Ciskei Government
during the 1970’s. They maintained that they had proved that at some stage in
the 1880’s AmaZizi Community members occupied both public and private
locations within the subject land until they were dispossessed thereof on
establishment of the homeland of the Ciskei.

[29] AmaZizi also sought to appeal against what they regarded as a failure
by the LCC to award to them 55 additional farms, together with a farm known
as the Gosforth Farm, which fell outside the Prudhoe and Tharfield lands.
They contended that the Minister, by admitting the validity of their claim in
relation to these farms, consented to their claim in the LCC and the farms
should have been awarded to them on that basis.

Failure by the LCC to award the 55 farms and Gosforth Farm to the
Mazizini Community.
[30] It is convenient to first consider this part of the appeal. Firstly, although
no mention is made of the 55 farms and Gosforth Farm in the Mazizini Notice

of Appeal, these farms (except the Gosforth Farm) were included in its
application to this court for leave to appeal. From Mazizini’s written Heads
of Argument it was evident that the AmaZizi claim to these farms was also
founded on the 1845 treaty concluded with the colonial government. As noted
earlier the argument was that because the Minister had not opposed the
AmaZizi claim to these farms in the LCC they should have been awarded to
AmaZizi. The 1845 Treaty stood as proof that the subject land had been
granted to AmaZizi, so it was submitted.

[31] However, as Counsel for Prudhoe submitted, the appeal against the
‘omission’ by LCC to award these farms was improper. As the record also
reveals, indeed the farms had been part of the original AmaZizi land claim. At
the start of the trial before the LCC, AmaZizi brought an interlocutory
application seeking an order awarding these farms to them on the same  basis
that the Minister had not opposed the claim in this regard and had therefore
accepted the validity thereof.

[32] In dismissing the interlocutory application, the LCC referred to
opposition by the Prudhoe Community to that part of the AmaZizi claim. The
LCC found that the application was vexatious. An application for leave to
appeal against that order of the LCC failed, and was also dismissed by this
court. So was a similar application to the Constitutional Court. All of this
resulted in a seven month delay of the trial.

[33] In its statement, filed in terms of s14(1)(a) of the Restitution Act, the
Prudhoe Community had pertinently refuted the AmaZizi claim to these
farms, denying that AmaZizi families were entitled thereto (in particular,
farms 235 and 242, including farm 243, which was a subdivision of farm 242).

Prudhoe asserted that these farms were formerly occupied by members of its
community who had since been moved to Benton Farm. It stated that it
intended to lodge a land claim in relation to these farms ‘upon the correction
and passing anew of the [Restitution Act] set aside by the Constitutional Court
in Land Access Movement of South Africa and Others v Chairperson of the
National Council of Provinces and Others’.11

[34] Against this background the LCC dismissed the application by
AmaZizi for a declarator that its claim over the 55 farms together with the
Gosforth Farm was valid and should be honoured. The issue was dealt with,
conclusively at that stage and in the unsuccessful applications for leave to
appeal the order of the LCC. There was no omission by the LCC. In addition,
AmaZizi never led any evidence as the basis for this claim. The attempt to
revive the matter on appeal was improper, to say the least. In addition, despite
the indication, in the Prudhoe opposition, that there may be interested persons
in a claim to these farms, there is no reference by AmaZizi to any current
occupants of or interest holders in these farms. And, based on past conduct,
one cannot rely on anything that the RLCC says or does not say as to the
presence of interested parties who should have been alerted to this claim. Over
a period of 20 years it had repeatedly and absurdly ignored interested parties
in this matter. Insofar as it is properly before us, this part of the appeal must
fail.

Expert evidence
[35] The RLCC commissioned five reports relevant to the competing claims.
The first report pertained to the AmaZizi claim and was prepared in 2005 by

11 Land Access Movement of South Africa and others v Chairperson of the National House of of Provinces
and the others [2016] (5) SA 635 (CC).

Dr Luvuyo Wotshela, an established historian from Fort Hare University. Its
contents were mostly informed by his interview with Mr Fumene Matiwane,
one of the people who lodged the original three claims on behalf of AmaZizi.
Interestingly, in his expert report Dr Wotshela expressed the view that
AmaZizi ‘did not have any historical land rights that may have been infringed
through discriminatory legislation’.

[36] The second report was compiled by Mr Tuswa in 2007. Notably, the
RLCC never disclosed the Wotshela report to Mr Tuswa. It also did not
disclose the Prudhoe competing claim to him. The third report was prepared
by Outcomes Based Consultancy on the Prudhoe claim. That report
recommended that ‘the claim by the Prudhoe Community be considered a
valid claim in terms of the [Restitution Act]. The claim meets the restitution
criteria’. Although this report was available to the RLCC when the matter was
heard in the LCC it was not disclosed to that court.

[37] The fourth and fifth reports were prepared by Mr Tuswa for the retrial,
subsequent to rescission of the first LCC judgment. The fourth report was an
update on Mr Tuswa’s first report on the AmaZizi claim. And the fifth was in
respect of the Prudhoe claim. It is these last two reports by Mr Tuswa which
formed the basis of the second referral by the Commission to the LCC.

[38] There was also a ‘feasibility report’ prepared by Mr Piet Jonas on behalf
of the State parties. Mr Jonas gave evidence favourable to Prudhoe on the
feasibility of restoration of the subject land to that community.

[39] Two expert reports prepared by Professor Jeffrey Peires of Rhodes
University and Dr Deborah Budlender12 respectively, at Prudhoe’s instance,
were also part of the record. Prof Peires’s evidence was largely uncontested
and forms the core of the historical background set out above.13 It was
common cause that he was a leading historian in the Eastern Cape and ‘ha[d]
an extraordinary amount of experience and expertise in relation to the …
amaMfengu and Xhosa people’. Ultimately it was this report and Prof Peires’
evidence on behalf of Prudhoe that carried the day.

[40] Although Mr Tuswa gave expert evidence on behalf of AmaZizi he
could only establish expertise in soil science and geographical information
systems, whereas Prof Peires, as already indicaated, was a well-known
historian, especially on the history of the indigenous communities of the
Eastern Cape. Mr Tuswa was constrained to accept that on any disputed issue,
he had to defer to Prof Peires. Despite this concession he still vacillated when
giving evidence, between disputing the validity of Prudhoe’s lineage and
admitting it – also insisting, despite the contents of his own report, that
members of the Prudhoe Community had only been labourers on the subject
land. Be that as it may, in most part, the five experts’ reports were mutually
confirmatory on the history of the two contesting communities. Most of the
evidence was drawn from the Government archives.

[41] Prof Peires referred in his report to a number of inaccuracies in the other
reports. However, apart from the differences between him and Mr Tuswa,
recorded in the joint minute prepared by them, these inaccuracies had no
material impact on the determination of the issues before us. The two points

12 Dr Budlender’s evidence related to the value of loss suffered by the Prudhoe people as a result of the
removal.
13 As recorded in the joint minute between Prof Peires and Mr Tuswa

of disagreement between Mr Tuswa and Prof Peires formed the basis of the
competing claims and the basis for this appeal. They are encapsulated their
joint minute as follows:
‘HISTORY
After discussion between Mr Tuswa and Mr Peires:
Points of disagreement
1 Proclamation 3 December 1847 – did it put an end to the treaty between
Government and AmaZizi?
2 Relationship
between
AmaGqunukhwebe
chiefdom
and
Prudhoe
Community – is there a continuity or are they entirely different entities?
II
Points of agreement
3 AmaGqunukhwebe confirmed in the possession of their lands following the
Fifth Frontier War (1819) due to the intervention of Rev William Shaw.
4 AmaZizi/AmaMfengu arrive in Peddie in 1835. Treaty signed with
Governor Maitland in 1845.
5 Chief Kama departs in 1843. AmaZizi move [to] part of his land, excluding
however the land now in dispute.
6 War of the Axe (1846 – 1847): AmaGqunukhwebe defeated and kingdom
ends. Arrival of first white farmers in Peddie district.
7 Dispute between white farmers and AmaZizi. Boundary line dermacated by
Espinase and Edye in 1854, and this line was the basis of the Surveyor
General demarcation.’

The law
[42] Each of the competing claimants had to show that it satisfied the
requirements for a valid land claim under s 2(1)(d) of the Restitution Act, and
prove entitlement to the remedy of restoration of the subject land in terms of
s 35(1)(a) of the Restitution Act, having regard to the factors listed in s 33 of
that Act.14

14 Section 33 of the Restitution Act sets out factors to be taken into account by a court when considering any
matter in terms of that Act. These include the desirability of providing for restitution of rights in land to any

[43] Section 2 of the Restitution Act provides that:
‘(1) A person shall be entitled to restitution of a right in land if –
(a) he or she is a person dispossessed of a right in land after 19 June 1913 as a result of
past racially discriminatory laws or practices; or
(b) it is a deceased estate dispossessed of a right in land after 19 June 1913 as a result of
past racially discriminatory laws or practices; or
(c) he or she is a direct descendant of a person referred to in paragraph (a) who has died
without lodging a claim and has no ascendant who-
(i) is a direct descendant of a person referred to in paragraph (a); and
(ii) has lodged a claim for restitution of a right in land; or
(d) it is a community or part of a community dispossessed of a right in land after 19 June
1913 as a result of past racially discriminatory laws and practices; and
(e) the claim for such restitution is lodged not later than 31 December 1998.’ 15

[44] Therefore, in line with their pleadings in relation to the subject land
each party had to show that it was a community or part of a community that
after 19 June 1913 was dispossessed of rights that it had enjoyed, as a result
of past racially discriminatory laws or practices, and that it had lodged a claim
for restitution of such rights not later than 31 December 2008. It was common
cause that each party had complied with the stipulated lodgement date. The
Prudhoe Community took no issue with the status of AmaZizi as a
community. The only issues were whether Prudhoe was a community as
envisaged in the Restitution Act and whether each party had proved previous
enjoyment of land rights, after 19 June 1913, of which it was dispossessed as
a result of racially discriminative laws or practices.

person, desirability of remedying past violations of human rights, considerations of equity and justice,
feasibility of restoration, and avoidance of major social disruption.
15 The date in the amended Act is 30 June 2019.

[45] In s 1 of the Restitution Act ‘community’ is defined as ‘any group of
persons whose rights in land are derived from shared rules determining access
to the land held in community by such group, and includes part of any such
group’. The meaning of ‘community’ is not rigid. The important factor is an
accepted, co-ordinated way of life amongst a group of people that guides their
access and utilisation of the land and natural resources within their
environment – what the Constitutional Court described as ‘an established
orderly settlement pattern, common traditional practices, pooling of resources
for farming purposes, economic activity and leadership structure’.16

[46] Previously, in Department of Land Affairs and Others v Goedgelegen
Tropical Fruits (Pty) Ltd17 the Constitutional Court said the following about
the meaning of ‘community’ in s 2(1)(d) of the Restitution Act:
‘There is no justification for seeking to limit the meaning of the word “community” in
section 2(1)(d) by inferring a requirement that the group concerned must show an accepted
tribal identity and hierarchy. Where it is appropriate, as was the case in Ndebele-Ndzundza,
the “bonds of custom, culture and hierarchical loyalty” may be helpful to establish the
group’s shared rules related to access and use of land. The “bonds” may also demonstrate
the cohesiveness of the group and its commonality with the group at the point of
dispossession …
… the legislation has set a low threshold as to what constitutes a “community” or any “part
of a community”. It does not set any pre-ordained qualities of the group of persons or any
part of the group in order to qualify as a community. . . .’18

Discussion
Was Prudhoe a community as envisaged in the Restitution Act?

16 Salem Party Club and Others v Salem Community and Others [2017] ZACC 46; 2018 (3) SA 1 (CC) para
104.
17 Department of Land Affairs and Others v Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007(6) SA 199 (CC)
para 40-41.
18 Paragraphs 40 – 41.

[47] AmaZizi led the evidence of Mr Matiwane on this issue. He sought to
prove that members of the Prudhoe Community were, in fact, all members of
the AmaZizi Community and fell under the leadership of Chief Njokweni.
According to him most members of the Prudhoe Community attended school
in the AmaZizi Tribal Authority areas. They only started to identify with
AmaGqunukhwebe during the preparations for the lodging of this claim.
According to him, this was borne out by the fact that Mr Tom, a witness for
Prudhoe, had a Zizi clan name. His further evidence was that when the
Prudhoe Village was established it was Chief Njokweni who allocated plots
to the Prudhoe members. He also asserted that members of the Prudhoe
Community or their forebears were tenant workers on the white farms who
only formed into a community when they voluntarily moved to the Prudhoe
Farm, a somewhat inconsistent version with the Prudhoe people having only
formed themselves into a distinct community when they were preparing for
this claim. Mr Matiwane also highlighted the short distance, which he
estimated at about five kilometers, between the AmaZizi and Prudhoe
Community areas. All these factors, according to him, were evidence of a
single community – AmaZizi.

[48] However, during cross-examination Mr Matiwane conceded that the
Prudhoe Community was part of AmaGqunukhwebe19 but insisted that
AmaXhosa and AmaMfengu were always one and the same people, with the
term ‘AmaMfengu’ being just a ‘nickname’. He also admitted that neither he
nor his parents had ever lived on or leased land on the subject land. They had
lived in the Tribal Authority areas all their lives. He further admitted that

19 It will be recalled that Prof Peires’evidence was that AmaGqunukhwebe ceased to exist as such but the
remnants left after the War of the Axe and the Great Famine formed a community that maintained, so far as
possible, given their circumstances, the patterns of life and traditions of the community from which they had
come. This was reflected by and large in their clan names and the role they gave to traditional leadership and
customs. Mr Matiwane’s concession was therefore consistent with this evidence.

members of the Prudhoe Community attended school in and frequently visited
the Tribal Authority areas because the only schools available and
administrative offices for processing of official documents, such as identity
documents, were located there. More significantly, he conceded that it was the
Prudhoe headmen who allocated plots in the Prudhoe Village and not Chief
Njokweni. And further that in March 2011, when Chief Njokweni sought to
have his daughter accepted as the traditional leader of Prudhoe, his suggestion
was emphatically rejected by the Prudhoe Community.

[49] On behalf of the Prudhoe Community, Mr Gladman Tom and six other
witnesses testified on the history of the community on the subject land,
including their historical links to Chief Kama and the AmaGqunukhwebe.
They testified to their settlement on and use of the land, their traditional
leadership structures, traditional rules in relation to the allocation of land, and
traditional structures and customs that were completely independent from
AmaZizi. As already shown above, neither Mr Tuswa nor Mr Matiwane
disputed this evidence.

[50] The admission by Mr Matiwane that the Prudhoe people were
essentiallly AmaGqunukhwebe detracted from the argument by AmaZizi that
the Prudhoe people were not a community. In any event AmaZizi provided no
alternative historical background for the Prudhoe Community. The
contention, in their pleadings, that the Prudhoe Community was part of
AmaZizi Community was not proved by any credible evidence.20 As shown
above, Mr Matiwane’s evidence on this aspect whittled away any basis for
that contention.

20 In the response to the Additional Notice of referral and the Prudhoe Statement of Claim AmaZizi pleaded
that ‘Whilst the first plaintiff (AmaZizi) admits that they were dispossessed of rights in land, insofar as they
were dispossessed of rights in land as a community, first plaintiff avers that they were part of the plaintiff’.

[51] There can be no doubt therefore that Prudhoe established satisfactorily
that it was a community as envisaged in the Restitution Act. As was submitted
on their behalf, the archival records and Prof Peires’ evidence showed a
distinct orderly settlement pattern, common traditional practices, pooling of
resources for farming, organised economic activity, and firm indigenous
leadership structures constituting a hybrid regulatory system for community
members. There is no basis for this court to depart from the findings of the
LCC on this issue.

Which community proved entitlement to restitution?
[52] The precursor to restitution of land under the Act is previous enjoyment
of rights in the land sought to be reclaimed. The claimant community must
show that after 13 June 1913 it enjoyed those rights continuously until it was
dispossessed thereof as a result racially discriminatory laws or practices. The
high watermark of the case for AmaZizi was that, having been granted the
lands by virtue of the Maitland Treaty in 1845, they lived on that land until
the establishment of the Ciskei Homeland in the 1970’s. They pleaded that the
1847 Proclamation by Sir Harry Smith, which annulled the land grants that
were in place at the time did not affect AmaZizi, for they had not breached
any term of the Maitland Treaty. It will be recalled that a condition of the
Maitland treaty was that land granted thereby would be held by the respective
chiefs and tribes, and their successors in perpetuity, never to be reclaimed by
the British ‘except in the case of hostilities committed, or a war provoked by
the said chiefs or tribe…’. The argument by AmaZizi was that, unlike
AmaGqunukhwebe, who breached the terms of the treaty by fighting on the
side of other AmaXhosa tribes against the British, AmaZizi remained loyal to
and fought on the side of the British. There would have been no reason
therefore for the British to annul the granting of the land to AmaZizi. In fact,

the language used in the 1847 Proclamation clearly excluded AmaZizi from
the operation of Proclamation, so it was contended.

[53] However, even if the AmaZizi interpretation of the 1847 Proclamation
was correct it would not assist them in their claim to the subject land. The
1845 Treaty clearly granted to the respective chiefs and tribes the lands on
which each of them had settled. If the 1847 Proclamation was not applicable
to AmaZizi, this only meant that AmaZizi would retain the land that had been
granted to them in 1845. It would not entitle them to the land possessed and
occupied by the AmaGqunukhwebe, or any other land that had been granted
to other African chiefs or tribes.

[54] When AmaZizi arrived in Peddie, AmaGqunukhwebe had long settled
in the area along the east coast. The acceptance by the LCC of Prof Peires’
opinion that AmaZizi could not have been granted the land already occupied
by AmaGqunukhwebe in terms of the concessions obtained for them by the
Wesleyan Reverend Shaw, must be correct. As Prof Peires illustrated in
evidence, the Stockenström21 map depicts the land occupied by
AmaGqunukhwebe during the period 1836 to 1844 as being along the coast –
from the Great Fish River to the Keiskama River and beyond Keiskama to the
east.

[55] The later map depicting the community settlements during the period
between 1847 and 185022 clearly shows the AmaZizi original settlement as
‘Mfengu Settlement’, and the portion of Chief Kama’s land that was given to
them was depicted as the ‘territory more recently inhabited by Mfengu’. That

21 The map titled ‘Stockenström Treaty System 1836-1844’. See para 6 above.
22 See para 7 above

whole area lies outside the subject land. An even later map depicting the
settlements during the period 1853 to 1857 shows AmaMfengu still occupying
the same area. Furthermore, as Prof Peires highlighted, and as agreed in point
7 of the Experts’ Joint Minute, the boundary line demarcated in 1853 by the
Edye and Espinasse Commission between AmaZizi (or AmaMfengu) and the
white farmers did not place AmaZizi anywhere near the disputed land. 23 A
brief background to this Commission is that after Governor Sir Harry Smith
had brought the War of the Axe to an end he sold off the Xhosa lands by public
auction to speculators and some white farmers. It became clear to the colonial
government that his land allocations were afflicted by corruption. A
commission constituted by W Edye, a Magistrate in Peddie and Captain
Espinasse, a military officer, was appointed to adjudicate on the disputed
boundary between the disgruntled AmaZizi and the white landowners. The
adjudication became the basis of the boundary between AmaZizi and the
white landowners. The portion of Chief Kama’s land that was allocated to

23 Extracted from Bergh J S and Visagie J C; The Eastern Cape Frontier Zone, 1660 – 1980; Map entitled
‘The Eastern Cape Frontier Area 1847 – 1850’.

AmaZizi appears inland on the map set out below, within the portion marked
‘Jokweni’s location’ and is depicted as ‘portion added to Jokweni’s location’.
It was common cause that Chief Njokweni was the leader of AmaMfengu.

[56] According to Prof Peires, AmaZizi were never satisfied and always
agitated for the land they had been promised by Governor Maitland. In 1911
they organised an ‘interview’ with the Surveyor General to establish the ‘true
boundary’ between themselves and the farmers. The Surveyor General,
referring them to the boundary marked in the map above, insisted that the
boundaries ‘were laid down by survey in 1854 and these cannot be disputed’.
These boundaries placed the tribal authorities inland outside the contested
area, the only extension of the land ever granted to AmaZizi being the portion
of Chief Kama’s land around Newtondale Mission. This land forms part of
the area under the jurisdiction of the tribal authorities and was awarded to
AmaZizi by the LCC. Even if the Smith Proclamation was not applicable to
AmaZizi that would not have the effect of extending their territory beyond
what was granted to them under the 1845 Treaty.

[57] Regarding actual occupation of the subject land by Amazizi a closer
consideration of parts of Mr Tuswa’s last two reports on AmaZizi and Prudhoe
reveals interesting evidence. Under the heading ‘history of acquisition of
claimed land’ the report sets out a detailed analysis, on a farm by farm basis,
of each of the Prudhoe Community households that he identified as having
exercised rights in relation to each farm on the subject land. In the report he
recorded that such rights were held in the land after 1913 up to the time of
forced removals. Not a single reference to an identifiable AmaZizi community
member is specified as having exercised rights on the subject land. On the
‘nature of rights in land the claimants were dispossessed of’, the report sets

out a detailed list of land rights that were held by the Prudhoe community
members and lost as a result of the removals. This is backed up by a detailed
analysis on a spreadsheet attached to the report. No such analysis appears on
the AmaZizi report.

[58] Under ‘date and circumstances of dispossession of rights in land’, a
detailed description of the planning and execution of the removal of the
Prudhoe Community is given. No such description is given in relation to
AmaZizi. On compensation received, the only analysis in respect of AmaZizi
is in relation to the Tribal Authority areas. The Prudhoe report confirms that
no compensation was received by the majority of the Prudhoe members and
that which was received was meagre. On ‘hardships suffered by the claimant’
as a result of forced removal the report records the severe harm done to the
Prudhoe people as a result of the forced removal and their dumping on the
Prudhoe farm with no land for cultivation and grazing, no livestock, and being
forced to build new homes with their own funds. No such suffering is
expressed about AmaZizi.

[59] Lastly, Mr Tuswa’s conclusion and recommendations were that the
Prudhoe claim was a valid community claim in terms of s 2(1)(d) of the
Restitution Act. With regard to AmaZizi he concluded that no archival
documents could be located to support dispossession on the part of AmaZizi
Community. The report then ended with the following rather perplexing
paragraph:
‘The past racist policies have created a regime of conflictual overlapping land rights viz
treaty rights, private locations, labour tenancy, squatters and beneficial occupation
occurring over the same piece of land.’

If anything, the contents of Mr Tuswa’s report discussed above support the
Prudhoe claim. They show evidence of actual settlement by the Prudhoe
Community on the contested land. They lend no substance to the claim of
AmaZizi.

[60] Even though it is not necessary to consider AmaZizi’s interpretation of
the 1847 Proclamation given the conclusions drawn from the evidence above,
we briefly consider the submission made in this regard. The relevant parts of
the Proclamation reads:
‘WHEREAS by reason as well of the causes as the result of the present hostilities, carried
on in certain territories to the Eastward of this Colony, all treaties and conventions formerly
subsisting between Her Majesty the Queen and the Chiefs of the Gaika, Congo, T’slambie
and Tambookie Tribes of Kaffirs, and all others, have become and now are wholly
abrogated and annulled…
And I do further PROCLAIM, DECLARE and MAKE KNOWN, that all Territory to the
South and West of any portion of the line aforesaid, shall be and same is hereby, annexed
to and incorporated with the Colony of the Cape of Good Hope as part and parcel thereof,
and that any right or title to the exclusive occupation of any part of the said Territory by a
Native chief or People, granted or conceded by any such Treaties or Conventions as
aforesaid, has wholly ceased and determined and shall not be revived’.

[61] As adverted to above, the submission on behalf of AmaZizi was that
the Proclamation was not directed at AmaMfengu (AmaZizi) and their lands
because of the reference in the opening passage to the ‘Kaffir tribes’. This
term, as well as the term ‘Native’, were generally not used by the British with
reference to AmaMfengu, it was submitted.24 Furthermore, unlike AmaXhosa,
AmaMfengu had not turned against the British. There was no reason for the
British to reclaim the land granted to AmaZizi. This was Mr Tuswa’s evidence

24 This was not a general rule. The Stockenstrom map referred to earlier clearly included AmaMfengu among
the Xhosa and their area as an area of Xhosa occupation.

as well. However, the language of the Proclamation was clear. And the
Amazizi interpretation of the proclamation is not consistent with the plain
language used in the Proclamation. Neither is it consistent with the context in
which the Proclamation was issued. 25 The Proclamation was directed at the
chiefs of the identified tribes ‘and all others’, including AmaMfengu. In
addition, the evidence shows that Sir Harry Smith did not spare any of the
African tribes from the restoration of the lands to British political governance.
The proclamation went on to say that ‘any right or title to the exclusive
occupation of any part of the said Territory’ had ‘wholly ceased and
determined’.

[62] A further contention by AmaZizi was that there was evidence on record
that showed settlement by them on the subject land way beyond the 1840’s
and 1850’s. Reliance was placed on the returns completed by inspectors of
natives locations during the British colonial rule. The first of these returns was
for the period ending on 31 December 1881 in relation to a place called
Mlenze (Newcastle Commonage). AmaZizi contended that a return, which,
on the face of it, related to Lot 6, was in respect of Farm 242, which is located
‘near the Fish River Mouth’ (where the Fish River Sun Hotel is situated). The
return recorded that 221 people lived in 38 huts there, under Headman Siwani
and had 274 cattle. However, as Prof Peires pointed out in his evidence, there
was no evidence that Lot 6 was Farm 242. Instead the archival evidence
showed that Lot 6 was under the control of the Whitfield family from 1850
until the 1920’s. Mr Tuswa later conceded that there was no evidence that
AmaZizi occupied Farm 242 during the period 1883 to 1929, when the farm
was allocated to the white farmer. And, that the people who had moved into

25 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA).

Mlenze as a result of subdivision of land in the vicinity for white farmers were
quickly evicted from there.

[63] A further return relied on was prepared by an inspector of locations, W
J Dell, for the Civil Commissioner of Peddie on 5 January 1884. The return
related to the quarter ending on 31 December 1883. In the relevant part the
following was recorded:
8 ‘With reference to Newcastle Commonage, the cutting up of that locality into small
farms has not to any great extent disturbed the natives who were previously living there
as most of them have arranged with holders of allotments to still reside as heretofore,
while the few … have secured themselves places among the farmers in the immediate
neighbourhood.’

[64] The submission was that, contrary to Prof Peires’ evidence that the
AmaZizi had settled for a short period at Mlenze and were expelled from there
in 1854, the reference, in this passage, to ‘the natives who previously lived in
Newcastle’ was evidence of AmaZizi having lived at Newcastle under Chiefs
Siwani, Msuthu and Njokweni during 1883 to 1884 (the period covered by the
return). However, no amount of scouring of the return reveals a reference to
Newcastle or Mlenze therein. As Prof Peires opined, the document could just
as well refer to Africans other than AmaZizi. It does not support the AmaZizi
contention that they had settled at the Newcastle Commonage. Further, when
Chief Njokweni gave evidence before the Native Laws and Customs
Commission in September 1881, he said that the few AmaZizi who had
occupied Mlenze were removed from there whilst they were still building their
kraals.

[65] The evidence on records shows that the Prudhoe Community members
had the full run of the entire farms during the period between the departure of

the white farmers in the 1970’s and their forced removal of Prudhoe’s
members in 1986/1987. With the exception of Farm 242, all grants to white
settlers in respect of the 26 farms took place in the 1800’s. The only person
who occupied Farm 242 (where the greater part of the Fish River Sun is now
situated) between 1883 and 1929 was the white occupant, Mr Whitfield and
his successors. There was no evidence of either ‘Fingo’ or AmaZizi
occupation of that farm during this period. In 1929 it was the subject of a deed
of grant in favour of a white owner, a member of the Whitfield family.

[66] AmaZizi also relied on the fact that there was reference only to
‘Fingoes’ in the schedule to the 1913 Native Land Act in support of their
contention that they lived on the land when that Act came into effect.
However, again, none of the schedules to the 1913 Act pertain to the subject
land. Phato’s Kop Location, which was the only AmaMfengu location located
within Peddie that was included in the schedules was 50km away from the
subject land. In any event the areas listed in the schedules were recognised
black areas from which there could be no dispossession under the 1913 Native
Land Act. For example, ‘[N]Jokweni location’ which appeared in the schedule
was one of the tribal authority lands which is located outside the subject land.

Conclusion
[67] The powers of this court to interfere with findings of fact, the inferences
to be drawn from those findings, and the remedy granted on the basis of those
findings by the LCC are circumscribed. An appellate court is, as a matter of
principle, reluctant to upset the factual findings of the trial court because that
court heard and observed the witnesses. (Fourie v First Rand Bank Ltd and
Another [2012] ZASCA 119; 2013 (1) SA 204 (SCA) para 14; Rex v
Dhlumayo and Another 1948 (2) SA 677 (A) at 705 – 706 especially para 8).

We are satisfied that the findings by the LCC that the Prudhoe Community
was a community as envisaged in s 2 of the Restitution Act and was
dispossessed of rights in the disputed land as a result of discriminatory laws
after 1 June 1913 was correct.

[68] The AmaZizi Community claim that it had rights to the land claimed
by the Prudhoe community under the 1836 and 1845 treaties was unfounded.
The AmaMfengu territory never extended to the subject land. Furthermore
although the rights enjoyed by the indigenous communities under those
treaties were terminated by the 1847 proclamation, both AmaZizi and Prudhoe
remained in occupation of the territories previously granted to them. The
AmaZizi endeavours to establish occupation of, or the exercise of rights in the
subject land failed. That meant that they, in fact, had no cognisable interest in
that land and no grounds to challenge the decision by the LCC.

[69] In relation to the subject land the order of the LCC read as follows:
‘5.
It is declared that the second plaintiff is a community dispossessed of rights in the
land described in Annexure ‘F’ to this Order after 19 June 1913 as a result of past racially
discriminatory laws and practices as contemplated in section 2(1)(d) of the Act.
The first defendant shall restore the land described in Annexure ‘G’ to this Order
to the second plaintiff within 6 months of the grant of this Order.
The second plaintiff’s rights in the land described in Annexure ‘G’ are adjusted to
full ownership in terms of section 35(4) of the Act.
8.
The land described in Annexure ‘G’ may, at the election of the second plaintiff be
restored to a communal property association, a trust or another appropriate entity
nominated by it.’

[70] At the hearing of the appeal, Counsel for the Prudhoe Community
brought to our attention certain errors in Annexures F and G to the judgment

of the LCC and sought to have the order of the LCC corrected accordingly.
There was no opposition to this request.

[71] Consequently the following order is granted:
1 The appeal is dismissed.
2 Annexure ‘G’ to the order of the Land Claims Court is altered to read as
follows:
‘1 The land falling within the full Prudhoe claimed area as identified in
Annexure “B” to the Judgment and handed in at the trial as Exhibit 3;
2 including, the Fish River Sun Farms, namely:
2.1 Remainder Farm 242, in extent 147 6693 hectares;
2.2 Portion 2 of Farm 235, in extent 10 5700 hectares;
2.3 Portion 23 of Farm 235, in extent 11 6870 hectares;
2.4 Portion 24 of Farm 235, in extent 12 4881 hectares;
2.5 Portion 25 of Farm 235, in extent 1 6033 hectares;
2.6 Portion 26 of Farm 235, in extent 6047 hectares;
2.7 Farm 243, in extent 41 0035 hectares;
3 but excluding:
3.1 Portion 2 of Farm 241, in extent 4 2203 hectares.
3.2 Portions 20 and 21 of Farm 261; and
3.3 the land in respect of which the second plaintiff has relinquished it
claims for restoration, namely:
3.3.1 Portion 13 of Farm 227;
3.3.2 Portion 14 of Farm 227;
3.3.3 Portion 15 of Farm 227;
3.3.4 Portion 16 of Farm 227;
3.3.5 Portion 17 of the Farm 227;
3.3.6 Portion 18 of the Farm 227;

3.3.7 Portion 19 of Farm 227;
3.3.8 Portion 33 of Farm 227; and
3.3.9 Remainder of Portion 1 of farm 227, in extent 11 2824
hectares (excluding Portions of farm 227)’
4 Annexure ‘F’ to the order of the Land Claims Court is altered to read as
follows:
‘The land falling in the full Prudhoe claimed area as identified on Annexure
“B” to the Judgement and handed in at the trial as Exhibit 4, including, the
Fish River Sun Farms, namely:
4.1 Remainder Farm 242, in extent 141 6693 hectares;
4.2 Portion 2 of Farm 235, in extent 10 5700 hectares;
4.3 Portion 23 of Farm 235, in extent 11 6870 hectares;
4.4 Portion 24 of Farm 235, in extent 12 4881 hectares;
4.5 Portion 25 of Farm 235, in extent 1 6033 hectares;
4.6 Portion 26 of Farm 235, in extent 6047 hectares; and
4.7 Farm 243 in extent 41 0035 hectares

________________________
N DAMBUZA
JUDGE OF APPEAL

pp________________________
P M MOJAPELO
ACTING JUDGE OF APPEAL

Appearances

For appellants:
V Notshe SC (with him S G Poswa)
Instructed by:
Makhanya Attorneys, East London
Bezuidenhouts Inc., Bloemfontein

For respondents: A Dodson SC (with him L Siyo)
Instructed by:
Legal Resource Centre, Grahamstown
Honey Attorneys, Bloemfontein.
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Mazizini Community v Minister of Rural Development and Land Reform & others
From:
The Registrar, Supreme Court of Appeal

Date:

2 June 2020
Status:
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today the Supreme Court of Appeal (SCA) dismissed the appeal by the appellant (MaZizini Community)
against the judgment of the Land Claims Court (LCC). The LCC had ruled in favour of the respondent
Prudhoe community in a land claim by both partied in respect of land located between the Great Fish
and Mgwalana Rivers on the east coast of the Eastern Cape. Both communities lodged their claims to
the land in December 1998. However the Regional Land Claims Commissioner referred to the LCC only
the MaZizini claim at first. The Prudhoe claim was only referred by the commission years later, leading
to a long delay in the adjudication of the claims.

The LCC restored to AmaZizi only the land which it had been granted by the colonial government during
the 11830’s together with a portion of the land which originally fell under Chief Kama of the
AmaGqunukhebe.  This did not include the land which was claimed by both AmaZizi and the Prudhoe
Community.

In appealing against the judgment of the LCC the Mazizini Community contended that, the contested
land, which had also been part of Chief Kama’s land before his departure from the land of
AmaGqunukhwebe in 1843, had been occupied by them. Amazizi’s appeal was founded on the
argument that the Prudhoe people were never a community as envisaged in the Restitution of Land
Rights Act; they were only farm labourers who could only claim dispossession of individual rights to the
land. They (AmaZizi) also argued that in 184, following the War of the Axe, AmaGqunukhwebe were
expelled from the contested land by the British. Consequently, according to Amazizi, the contested land
should be restored to Amazizi.

The SCA dismissed the Mazizini appeal, finding that the Pruhoe Community had proved that they were
a community under the Restitution Act; that they were descendants of AmaGqunukhwebe who were
the subjects of Chief Kama who left the contested land upon converting to Christianity in 1843.  The
SCA found that even though AmaGqunukhwebe lost their political authority following the War of the
Axe in 1847, the Prudhoe people never left they land. They continued their lives under a hybrid system
of authority - based upon their indigenous ways of life, under colonial authority. On the other hand there

was no evidence of Amazizi or AmaMfengu occupation on the contested land that would entitle them
to restoration of rights to the contested land.