A KwaZulu-Natal community have been hard hit by the clause in the constitution stipulating that land dispossessed after 1913 cannot be claimed from its white owners.
To ward off the claim by the Elambini community for restitution of the 1380 hectares of land, the wealthy Crookes Brothers relied on proof that it was annexed by the British colonial government in 1842 and given to white immigrants.
Judge Yasmin Shehnaz Meer ruled in the Land Claims Court in Randburg last week that the community had failed to prove the land was dispossessed from their forefathers after 1913.
A contentious clause in the constitution states that land which whites acquired before the passing of the Natives Land Act of 1913 cannot be claimed for restitution.
Located in Scottburgh on the South Coast of KZN, the land is home to 30 thriving sugarcane farms owned by the JSE-listed Crookes Brothers.
The 23 claimants, most of whom live in aMahlongwa, argued that the Crookes brothers chased their families off the land after 1913.
But the Crookes brothers produced evidence showing that their great-grandfather Samuel Crookes acquired the farms between 1876 and 1882.
The farms had been part of land that was granted to white immigrants in 1852 by the British government following the annexation of Natal, Judge Meer found.
“Intensive sugar farming has continued on the claimed land since the 1850s and continues to this day under the ownership of the (Crookes Brothers),” she said.
Judge Meer said these families would have been farm labourers on the claimed land by 1913, owing to intensified sugarcane farming.
She found that accounts of when and how the families were dispossessed were unreliable.
“Their evidence suggests a range of different dates when they moved.
"Most witnesses recorded the dates of removals as 1913, and opportunistically so
“The unreliability of such evidence speaks for itself,” Judge Meer said.
Sikhosiphi Ntaka, 61, told the court her forefathers were forced off the land on which they had cattle and grew crops in 1912.
To this, Judge Meer said: “On Ntaka’s version, the removal occurred in 1912, which is before the threshold date of 1913 required by the act for a valid restitution claim.
“Her evidence thus does not advance the plaintiff’s claim.”
Both the Rural Development and Land Reform Ministry and the Land Claims Commission supported the validity of the claim. In its reports, the commission said the community practised subsistence farming on the land until 1918, when colonial dispossession began in earnest.
Residents were reduced to labour tenants from 1932 through the enactment of the Native Service Contracts Act, it said. “The community was moved to unproductive and inhospitable reserve land,” the report added.
“The erosion of the rights on land, as well as the eventual dispossession, constituted discrimination against the claimants and was due to the interests of promoting white-controlled sugarcane farming and its demands for labour.”
Ian Blose, the attorney for the claimants, said his clients were considering appealing the judgment.
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