Press statement: Lawyers for Human Rights' appeal upheld in Baphiring land claim

In a landmark judgment of the Supreme Court of Appeal on land claims, the court today upheld the appeal of the Baphiring community of the North West.

Lawyers for Human Rights have welcomed the judgment. The Baphiring community, who bought some 7 500 hectares of land near Koster between 1908 and 1913, were forcibly removed from their land during Apartheid under the 1913 Native Land Act. The community - a thriving farming community until they were relocated - was resettled in 1971. The forced resettlement destroyed the community's agricultural activities as the “compensation” land was not suited for their type of farming.

In 1998 the community launched proceedings in the Land Claims Court for the return of their land. After a number of court hearings spanning 2001 to 2010, the Land Claims Court rejected their claim for the return of their land and held the community 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.

Today the SCA overturned this decision and referred the claim back to the Land Claims Court to deal with the claim in accordance with the guidelines laid down by the SCA.

“The decision gives us hope to have our land finally restored to us. It's only the time it has taken and the manner in which the Land Claims Court has taken to deal with this matter that is a negative but we remain resilient to go through the final phase of this historic case with clear and specific SCA guidelines for the Land Claims Court to follow,” said community member Ferdinand Mabalane.

Justice Cachalia, writing for the court of five appeal justices, found the Land Claims Court had misdirected itself when it simply accepted the state's allegations that the return of the land would be too expensive without requiring of the state to lead convincing evidence.

The judgment further lays down a range of issues that must be considered when the court reconsiders the matter. These issues, which include the impacts of the restoration of the land on food production and employment, also involve the drafting and consideration of a comprehensive resettlement plan that must consider the costs of the purchase of the land and the costs of properly planned resettlement.

Louise du Plessis of Lawyers for Human Rights, attorney for the Baphiring community, said: “It vindicates the community's assertions that the return of the land can be done successfully if it is properly planned and funded.”

Du Plessis lauded the judgment as progressive and groundbreaking, welcoming the central idea that all impacts of land restoration must be considered in a comprehensive report.

The judgment is hoped to form a template for the settlement of most rural land claims and will do much to avoid the regular failure of rural land restitution projects.