Pretoria - More than 40 years after being evicted from their land and 17 years of court battles, the Baphiring community – with the help of Lawyers for Human Rights (LHR) – is returning to their home in North West.
The Baphiring case sets a precedent of how communities should be settled on land restored to them through restitution.
The community, made up of more than 400 families, lived on the land near Koster for years before buying nearly 8 000ha of farming land in the late 1880s when they realised they might lose it because of apartheid policies. The land is known to the community as Old Mabaalstad. They were successful subsistence farmers and sold their surplus on the local market.
In the 1970s, however, the apartheid government identified the area as a “black spot” and they were forcefully moved 80km away to a place they later named the New Mabaalstad.
In 1998, the community took their claim directly to the Land Claims Court. Since then, they have endured three long trials, including an appeal to the Supreme Court of Appeal (SCA).
Surrounding land owners and the state continually opposed the claim. Most of these land owners bought the farms after the community was evicted and are still on the land.
The Baphiring community’s case was one of the first in the Land Claims Court and the first trial dealing with the interpretation of aspects of the Restitution of Land Rights Act that required legal clarity.
The second trial dealt with the validity of the community’s claim in light of “alternative land” they received at the time of their removal. Evidence was led about the hardship the community suffered after being uprooted and forced to relocate with almost no government support. The judge ruled that the community did not receive just and equitable compensation when they were removed and had a valid claim.
The third trial dealt with the feasibility of having Old Mabaalstad returned to the community. One of the main factors was what support the community needed from the state to resettle. Expert evaluators contested that the community needed at least R40 million for sustainable resettlement and the state was only willing to offer R2.6m.
The community lost the case in the Land Claims Court and appealed to the SCA for a ruling on whether the land was too expensive to be bought back and whether the state could afford post-settlement support.
The SCA found in the community’s favour and noted the “appalling manner” in which the state had dealt with the case. The case was referred back to the Land Claims Court to consider the costs of restoration, disruption for current landowners and farmworkers, how the nature of the land might change, land use planning, institutional and financial planning support, loss of food production and any impact on the local economy. In the Land Claims Court, the commission and claimants embarked on an extensive planning process.
Recently, the last of the current land owners agreed to sell their land to the state so the community could return to the land. On hearing the news, the community shouted “Pula!” – Rain (peace).
Said Louise du Plessis, head of LHR’s land and housing programme: “This was a very long journey for everybody but not nearly as long as it was for the Baphiring community. It’s unfortunate that so many community members who lost their land are no longer with us to see their community going home,” she said.
Du Plessis, who has built up her expertise over the past 17 years, added:
“This saga was very close to my heart. It evoked my passion and love for land claims issues and over the years I built up a very close relationship with this community.
“I learnt from them… My eyes opened to the history of these people and their hardships.
“The trials over the years were extremely emotional, especially when the community testified how they had lost their land. A lot of tears flowed but there was eventually joy and jubilation.”