Baphiring land claim thrown a lifeline

The Baphiring community in North West could yet have land that they were dispossessed of restored to them after a ruling by the Supreme Court of Appeal on Friday.

The court set aside the Land Claims Court judgment of 2010 that the restoration of the land to the community was "not feasible".

It also held that the state was obliged to lead evidence regarding the cost of restoration.

The appeal court said the failure of the Land Claims Court to call for such evidence constituted "a material irregularity".

The appeal court remitted the matter back to the Land Claims Court "to consider and determine anew the feasibility of restoring the land to the community".

The community, which bought 7,500ha of land near Koster in North West between 1908 and 1913, was forcibly removed from their land during the apartheid years.

It was a thriving farming community until it was relocated in 1971. The forced resettlement destroyed the community’s agricultural activities as the compensation land was not suited for their type of farming. The Land Claims Court had rejected the community’s claim for the return of their land, and held it should receive other redress for their loss. The Land Claims Court relied heavily on the perceived costs of returning the land and the community’s inability to take over commercial farms. The main issue in the appeal before the Supreme Court of Appeal was whether the Land Claims Court ought to have made a nonrestoration order in the absence of material evidence from the state regarding the issue of feasibility.

The appeal court’s Judge Azhar Cachalia said what should have happened in this case was that "the state ought to have conducted a feasibility study into the restoration of the land". "That study should at the very least have taken into account the number of families who are expected to be resettled, the institutional and financial support for the resettlement and the envisaged land usage if the land was restored."

Other evidence that should have been placed before the court was: the cost of expropriating the land from the current owners; the extent of the loss of food production to the local community should farming activities not be continued at current levels; and the extent of social disruption of the landowners and their families should they be required to depart from their farms.

"The evidence on all of these aspects was either absent or inadequate. The court was therefore not in a position to determine the issue of feasibility conclusively and ought to have ordered the state to lead evidence on these and any other issues it considered relevant," Judge Cachalia said.

He said the Restitution of Land Rights Act imposed a duty on the Land Claims Commission to assist claimants in the preparation and submission of their claims.

Lawyers for Human Rights, which represented the claimants, welcomed the judgment. Attorney Louise du Plessis said the judgment vindicated the community’s assertions that the return of the land could be done successfully if it was properly planned and funded.

Community member Ferdinand Mabalane said the decision gave the community hope that land would finally be restored to it.