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IN 1998, A community of several isiXhosa-speaking families lodged a joint land claim under the Restitution of Land Rights Act, one of the three pillars of the post-1994 land reform plan and the first Act to be passed in democratic South Africa, signed by President Nelson Mandela himself. The group sought the restitution of a sixty-six-square-kilometre grazing area, or commonage, in the Eastern Cape town of Salem, from which they were dislodged in 1947. It would take almost two decades for their claim to conclude. Apocryphal stories define South Africa’s history, and this claim was based on one of them.

Salem is in the old district of Albany, twenty kilometres south of Grahamstown (now Makhanda) at the eastern edge of the Zuurveld along the Assegaaibos River. It was founded in 1820 by a group of British settlers under the command of Hezekiah Sephton, and many of the defendants in the claim are the descendants of this group.

The Zuurveld is the first place of protracted contact between Europeans and Bantu-speaking people, over a hundred years after Van Riebeeck landed at Table Bay. Over time it has taken centre stage in the historical debate raging in South African academia for precisely this dubious honour. The facts are a constant source of dispute.

This area had been populated for time immemorial by the hunter-gatherer San, and for the past 2 000 years by the pastoralist Khoikhoi. These groups did not always live in harmony. But such as their society was, it was broken up by the arrival of the Xhosa from the north.

By 1730, many Xhosa had branched off from their political nucleus into various chiefdoms. The Xhosa who came to the Zuurveld around 1750 were largely pastoralist and specifically grazed the area only during certain parts of the season, after which they moved back east over the Fish River to the ‘sweetveld’, where it was possible in the far wetter conditions and summer rains to plant the maize and sorghum that was their staple food. Some of these groups intermarried with the Khoikhoi, giving rise to the two local authorities: the Gqunukhwebe under Tshaka, and then his son Chungwa, and later the Mbalu under Langa. To the north, a larger body politic of Xhosa people had settled under far more powerful chiefs, and further north than that were a host of other Bantu-speaking chiefdoms that had yet to deal with whites in any meaningful way.

The first Dutch trekboers entered the area some three decades later and set about making themselves at home, as far away as possible from the new, stifling British presence at the Cape. Tit-for-tat cattle raids ensued between all three groups, the Khoikhoi being the weakest. Historians are fond of referring to this period as a time of ‘frontier’, when the land was open, subject to no central authority, and marked by a flux of shifting alliances and blood and trade in equal measure – much like the American Wild West.

This changed when the British Empire took possession of the Cape for the second time, in the midst of the Napoleonic Wars. The British, at various times pro- and anti-expansion, acted decisively in closing the border and putting an emphatic damper on the constant troubles of their newly gained territories.

The trekboers had fought the Xhosa in loosely constituted, poorly armed and highly disorganised commando raids; by contrast, the British had an army and the backing of an empire, and in 1812 used it to drive 20 000 Xhosa across the Fish River in brutal fashion assisted by a Khoikhoi regiment from the Cape, settling an officially recognised border between the parties.

This became known as the Fourth Frontier War, by which the frontier was closed. Chungwa, the Gqunukhwebe chief who had left the Zuurveld so many years before, was murdered. A central authority arrived, signalling an end to the open land and trading of the frontier era. The Fish River was fortified. The Boers, some of whom had taken part in the British offensive, were eventually no happier than the Xhosa, raising a rebellion in 1815. It became known as the Slachter’s Nek Rebellion and its suppression played a decisive and symbolic role in the launch of the Great Trek two decades later. The Khoikhoi were relegated to the protection of missionary stations.

The British approached the Colony’s borders with schizophrenic policy in the decades to come. Various governors and commanders differed wildly as to whether the natives should be conquered (expensive, risky and with low reward) or the border simply maintained. The Xhosa, for their part, appeared to have been caught in much the same historical pragmatism: different chiefs had different attitudes towards the settlers and their ways, but currying favour with them yielded guns and tobacco. The British did not always keep to themselves, though, and the remainder of the nine Cape Frontier Wars was the drawn-out result.

In 1819, the newly installed military commander in Grahamstown, an Englishman called Lieutenant Colonel Brereton, launched a massive cattle raid on the Xhosa across the Fish in a fit of jingoistic frenzy. The Xhosa, under the prophet Makhanda (also known as Nxele), responded in kind, and 10 000 Xhosa soldiers almost put Grahamstown – which had become the settlers’ de facto military base – to the torch. The Xhosa were again driven out, this time even further back beyond the Keiskamma River, and the newly empty territory was negotiated with Chief Ngqika to be neutral land, belonging to no one.

Amid this turmoil, the British sought to populate the frontier with their subjects, and so the 1820 Settlers entered the picture. Salem was settled by the Sephton party a good fifty or sixty kilometres from the border. Many of the settlers were from the lowest echelons of British society, much like those sent to Australia and New Zealand, and it took them a long time to make proper use of the poor-quality soil and the ‘sour’ grazing veld the Xhosa had avoided for large parts of the year.

Being so far from the border, there was relative peace until 1834, when a massing Xhosa army threatened the livelihoods of the Salem settlers in the Sixth Frontier War. It is from this period that the tale of Richard Gush originates.

Gush was a righteous, God-fearing man – a Quaker who had settled in Salem along with the Sephton party. The story goes that in the mid-1830s, Gush and the village were under siege by Xhosa cattle rustlers. At one stage, Salem was surrounded by an innumerable force and things were looking grim for the settlers. One day, the Xhosa chief and his soldiers approached with spears in hand. Gush is said to have stepped out of his hut, put his gun aside, walked up to the Xhosa and asked them what they wanted. After a brief discussion, he walked back to the church, emerged with bread, rolls of tobacco and several pocketknives, gave the spoils to the chief, and delivered a sermon about the wrath of God. He then explained the settlers’ concerns about the cattle raids in the area. The Xhosa are said to have shaken his hand one by one and promised to leave the area. The Xhosa tell the story differently, as we shall see.

By 1847, the Salem settlers had obtained full freehold titles of the Salem lands from the colonial government, and the commonage on which the Xhosa had once grazed their cattle was held between them in equal portions. Being English, they immediately built a cricket pitch, and much later a community hall.

Meanwhile, the remainder of the Frontier Wars played out to the east, across the border. At one stage, an epidemic of lung sickness emanating from Mossel Bay decimated the region’s cattle population, and drought became another long-standing concern. The Frontier Wars ended with the British push for federalisation in the late 1870s, which culminated in the fall of the Boer Republics in the interior. The Salem settlers escaped the worst of the plague and conflict, and watched the border and army move further and further into the distance up the coast. However, there is one great historic event that did affect them: the great Xhosa cattle-killing under the prophetess Nongqawuse, which took place between 1856 and 1857.

Nongqawuse was a fifteen-year-old Xhosa girl, born across the Fish River in the independent Xhosaland on the border with the neutral zone, or British Kaffraria. Her parents died during the Eighth Frontier War of 1850. She was born into ‘the heart of redness’, as author Zakes Mda put it, in a land awash with mysticism and prophecy. There were many famed seers of the time, including Nxele, Mlanjeni, Nontetha and Enoch Mgijima, all of whom were hugely influential in Xhosa politics, war and relations with the colonists.

One day, Nongqawuse and a younger friend strolled down to the river-mouth near their village on the coast to scare birds from her uncle’s crops when two strangers appeared to her in a vision, whispering in a whistling voice that only the privileged could hear – a sound called imilozi.

They told Nongqawuse that the spirits of the Xhosa ancestors would sweep the British into the sea if the Xhosa did as the spirits commanded and brought their own nation to its knees first; the cattle they possessed, they said, had been contaminated by witches. They must slaughter the cattle, turn from witchcraft, and start constructing great grain pits and cattle enclosures. Doing so would lay the ground for a rebirth, and the cattle they slaughtered would be born again stronger and bigger, and the crops and harvests would be so great as to fill all the new pits and more.

When Nongqawuse returned and announced this, she was laughed out of the village. However, her uncle, having listened to the story, realised that one of the figures that had appeared was his brother, Nongqawuse’s deceased father. With his corroboration, the village people took the prophecy seriously.

Nongqawuse’s prophecy eventually came to the ears of the great Xhosa king in Xhosaland, Sarhili of the Gcaleka. Sarhili had some five years prior put dozens of witches to death in the Kei River, believing them to be responsible for the lung sickness that had ravaged the cattle of most of his chiefs and people, creating a deep depression. Around the same time, the British had suffered a grave defeat to the Russians in the Crimean War, and news of this spread quickly among the Xhosa. They believed that the Russians were a black nation, imbued with the spirits of dead Xhosa, and that prophets like Nxele and Mlanjeni were returning with the Russians from across the sea to vanquish the British at the tip of Africa as well.

This did not happen.

Caught up in the misery of the time, Sarhili was convinced by Nongqawuse’s prophecy, travelled to her home, and there also communed with the spirits. He became the most influential of believers, and from then on the killing and burning began in earnest. Like dominoes falling, the prophecy spread across the lands of the Gcaleka Xhosa. Most Xhosa did not destroy all they had, and many groups did not take part at all. The fullness of the destruction and killing ripened over a period of fifteen months.

Nongqawuse’s prophecy of riches and the destruction of the British by the spirits of the ancestors did not come to pass; new cattle did not arise from the mouths of the great rivers; God did not strike down the unfaithful and the wicked. Nongqawuse, her uncle and Sarhili responded that this was because the Xhosa had not killed sufficient cattle; if they had done so, new cattle would have materialised. Those who did not believe the prophecy, including a number of powerful chiefs who had prohibited their followers from joining in the slaughter, were blamed, as well as the fact that some cattle had been sold, not killed. These and other reasons for the failure of the prophecy were lapped up by desperate believers, many of whom were by now so economically destitute that they had little alternative than to preach the gospel in hopes of a great revival.

Sarhili made a second pilgrimage to the river-mouth, and stories soon spread that he had seen a number of boats filled with black brethren who told him that more were coming and that they should keep slaughtering cattle. New dates for the fulfilment of the prophecy were conjured by Nongqawuse, and the Xhosa ended up killing hundreds of thousands of their most highly prized possession, resulting in starvation, death, impoverishment, the decimation of the Xhosa population in the area from over 100 000 to 20 000, and a mass out-migration of Xhosa peoples to the Cape Colony.

The first-ever influx-control laws were promulgated by the Cape in order to deal with this situation. Most historians, and any visitor to the modern Eastern Cape, can agree that the Xhosa, despite dominating ANC party politics until 2009, have never recovered economically; nor did the Union or apartheid allow them a real chance to do so.

A century and a half later in the Land Claims Court, the descendants of the 1820 Settlers – the defendants – stated that the period after the cattle-killing was the first time the presence of black labourers coming to the commonage looking for work was recorded.

The Land Claims Court is special in that its standards are far looser than in an ordinary court of law. Evidentiary rules are flexible, allowing hearsay evidence and the testimony of anthropologists and historians in order to go about proving claims that are contingent on hundred-year-old facts.

To succeed with a land claim, a claimant has to lodge a claim setting out that they were part of a community that was dispossessed of a right in land due to a racially discriminatory practice or law after 19 June 1913 – the date the segregationist Natives Land Act was passed. If found to be valid, the claim must then be processed and gazetted. A land claim only comes to court if there is an individual or group residing on the land under claim – in other words, where a dispute regarding the historical and legal validity of the claim arises.

The Salem Commonage was such a case, and it could hardly have been more symbolic: Xhosa labourers claiming against a group of white landowners descended from one of the few groups of Europeans expressly ordered by a foreign power to colonise South African land. It is not for no reason that celebrated South African writer J.M. Coetzee set his controversial novel Disgrace, about deep-rooted conflict over land entitlement, in Salem.

Two eminent historians diametrically opposed in ideology, and both revisionists in their own way, came to dominate the case. Martin Legassick, on behalf of the claimants and their lawyers, was a well-known Marxist historian, and something of a celebrity in ‘radical’ history circles. He is credited with realigning the story of colonial South Africa away from imperialist conquest and to one of global capital exploiting the mineral wealth discovered in the second part of the nineteenth century. Legassick had been an active and engaged member of a Marxist group within the ANC in the 1980s, but was temporarily banned from the liberation movement for stoking factionalism. In later years, he turned on the party completely for its perceived shift to neoliberal policies and failure to emancipate the working class. In 2009, he was arrested for his support of a land occupation in Cape Town, and prior to that was involved in a much-publicised open-letter exchange with housing minister Lindiwe Sisulu regarding the eviction of squatters in the Cape Flats.

For the defendants was Hermann Giliomee, the pre-eminent scholar of Afrikaner history in the world. Giliomee is from the old guard; his family had been part of the Afrikaner elite during apartheid, although he had been a pragmatist reformer. In July 1987, he attended the famed Dakar Conference between the Institute for a Democratic Alternative in South Africa (IDASA), led by Frederik van Zyl Slabbert, and members of the ANC, represented by Thabo Mbeki. In later years, Giliomee worked ardently for the preservation of Afrikaans as a language of tuition at his first alma mater, Stellenbosch University.

Both professors were held in great esteem in their profession. Both were officially ‘retired’. Both had specialised expertise in the colonial South African history on which this case turned, namely frontier zones. Giliomee had written a thesis on the Zuurveld as the country’s first frontier; Legassick had written a PhD on the Griqua/Sotho-Tswana frontier to the north. Seeing two historians square off in court was an unusual sight. Their roles in court were never intended to take centre stage; being expert witnesses, they were only there to assist the court in making findings of fact, but the press painted it as a sporting event – a Rumble in the Jungle for the soul of the country. ‘Leading Historians Fight Over Land Claim’, read the headlines.

Giliomee and Legassick testified for fifteen days, spread over six months, led in examination and were cross-examined in turn by advocates. The court papers and records eventually numbered over 5 000 pages, spread over fifty ring binders and three different courts.

What it boiled down to was two competing versions of the history of the land at stake. The claimants’ case was that a community of families had resided on the entirety of the vast commonage since the 1800s (though this averment had not been part of their original papers in the claim); after the arrival of the Settlers, the community had built up rights in the land by virtue of their presence, and these rights were derived and organised from the chieftaincy of Chief Dayile (variously spelt ‘Dayine’). They claimed that in 1926, pursuant to the Natives (Urban Areas) Act, the community was forced off the commonage to an adjacent location, after which the commonage land was subdivided and parcelled off to individual owners in 1940. Over several decades, the community’s location was broken up and the community itself eventually forced from the area.

The defendants contended that upon the Settlers’ arrival in 1820, the land was unclaimed by any specific chief or ‘tribe’, that they ‘zealously’ guarded access to the commonage in undivided shares among themselves, that any black people residing on the commonage were brought in on labour contracts after the 1870s, and that these labourers paid rent to the Salem Village Management Board for such privilege. The labourers were allowed their own livestock, and some were allowed to graze them on the commonage in partial fulfilment of the employer’s quota access to the land. Essentially, the black labourers on the commonage were not descended from any ‘tribe’ that had originally resided there, they did not have rights to the land other than those arising from their work contracts, they weren’t a ‘community’ other than in being a group of neighbours labouring for the Salem farmers against remuneration, and, the defendants contended, Chief Dayile was an imaginary figure. The application to subdivide the commonage into individual titles in 1940 was thus not a racially discriminatory practice but merely the conversion of what had been private communal ownership to private individual ownership. In fact, the defendants argued, the first time black people were recorded appearing on the commonage was in the wake of the great cattle-killing.

The implication was that the Xhosa had committed economic suicide and came to labour for whites due to their own actions.

There were precious few points of common cause between the parties at the outset: the definition and size of the area referred to as the Zuurveld was disputed, as was the earliest date of occupation by whites. Also challenged were the claims that the Xhosa had occupied the Zuurveld before whites did and that there were Xhosa present in the Zuurveld who were expelled by the British army in 1812.

The matter first came before judge of appeal Cassim Sardiwalla in the Land Claims Court in Grahamstown. The public galleries were packed with claimants and farmers from all over the district. There were rumours that relatives of controversial minister of rural development and land reform Gugile Nkwinti were among the claimants. It also emerged that some of the farmers had sold up to the state as far back as 2003, and that the subsequent projects had gone so awry that the beneficiaries ended up in court in 2010 as the land had turned into a squatter camp. Experts testified to sophisticated geospatial aerial photographs showing pathways from the so-called location to the commonage and argued over how old they appeared to be.

Much of Salem’s apocryphal history was excavated and put on display, including the story of Richard Gush. The chief witness for the claimants, Msele Nondzube – one of only two from the community, the other being an illiterate labourer – told this tale in a way that differed considerably from historical record, explaining that his great-grandfather had been one of the Xhosa to parley with Gush; that the Xhosa were inhabitants of the commonage; and that Gush would not have given them bread, for they were not hungry, as they were successful farmers.

Nondzube’s story was the fulcrum on which the claimants’ case turned. In a strange coincidence, his father had apparently been the most valued of all the Xhosa labourers in Salem, at whose funeral Arthur Mullins, one of the chief defendants, delivered the eulogy in isiXhosa due to their close and paternalistic relationship spanning decades.

On 2 May 2014, Judge Sardiwalla handed down a criticised judgment after a long and arduous evidentiary process. One group would inevitably be disappointed by the ruling. That group was the Salem landowners, and spectators and commentators said that the writing had been on the wall from the off, judging by the allegedly condescending treatment the landowners’ witnesses received. Their lawyers expressed shock and dismay, telling the expectant media that the landowners ‘had spent millions of rands defending the claim against their lands’.

The matter then went to the Supreme Court of Appeal (SCA) in Bloemfontein, where it was heard by a bench comprising Judges Azhar Cachalia, Ronnie Pillay, Nambitha Dambuza, Willie Seriti and Boissie Mbha. Again, the landowners came up short in a four-to-one judgment. One newspaper reported that ‘the SCA decision has been as furiously charged and contested as the history behind the claim’.

The only judge to side with the defendants, Judge Cachalia, made a scathing minority judgment that took umbrage with the gaps in reasoning and lack of proper evidentiary assessment in the court a quo. Of Indian descent, Cachalia was a founding member of the United Democratic Front (UDF) and has impeccable struggle credentials as a freedom fighter. To side with white landowners in a case about dispossession is perhaps an indication of how uncertain the historical evidence was.

In his judgment, which ran to almost 200 pages, Cachalia refuted the claimants’ argument by first setting out exactly how hard it was for black people to exercise any kind of right under colonial rule, how unfairly they were treated and how they were discriminated against. In this regard he quoted from Giliomee’s testimony: ‘Once white power had been established over the Zuurveld, the relationship between masters and servants would have evolved towards an unequal and exploitative one. This would have made it unlikely that the British settlers and their descendants would have allowed their labourers or other Africans living on the commonage to establish rights.’

Cachalia explained that on the basis of the available evidence there was no indication that black people had resided on the land on which Salem was built after 1812 and prior to the labour tenancy agreements decades later. Cachalia analysed and pulled apart every single piece of evidence led by the parties, including the letters, registers, legislation, proclamations, land claims commissioner’s reports and testimony of the witnesses – a process the lower court had casually skipped over.

He claimed that the Land Claims Court had ‘set out the evidence neither fully or fairly’ and that the report submitted by the land claims commissioner was flawed: ‘[N]either his report nor evidence is easy to follow,’ he wrote.

Most damningly, he held that the evidence of the commissioner was in some instances flatly contradicted by the claimants’ own evidence. The commissioner in question, Vincent Qube Paul, had conceded under cross-examination that he had not read several key primary reports, explaining that he did not have time to look at them, and that most of his report was based on only three interviews. When Paul was questioned as to why he had not interviewed the landowners in compiling his report, he said that the Land Claims Commission had told him not to do so because ‘that is the process of restitution, you deal with the people who are affected’.

Cachalia went on to quote the cross-examination of Paul by counsel for the defendants verbatim and at length, declaring much of his responses ‘incoherent’. The gist of Cachalia’s assessment is that Paul delivered a deeply flawed report, assumed the conclusion before starting, acted with bias and generally failed to make out anything approaching a proper historical investigation. Because of this, the claimants had had to rely on the testimony of Legassick, who was an expert witness, and not the commissioner. Coincidentally, Legassick had been Paul’s lecturer at the University of the Western Cape.

The other key bone of contention Cachalia had was with the evidence of Msele Nondzube, the elderly man who disputed the Richard Gush story. Nondzube had been the only witness to testify about the authority and existence of Chief Dayile, and most of his evidence was from oral tradition, handed down by word of mouth through the generations.

Much of Nondzube’s testimony of gravesites and old croplands, which he had pointed out during an in loco inspection, was contradicted by the experts and their geospatial analysis, and at times he contradicted himself by pointing out gravesites that were not part of the land claimed by the claimants. Whenever he was challenged, he simply referred to what his great-grandfather had told his grandfather, who had in turn told him. This concerned Cachalia, who eventually ruled that the sources of Nondzube’s testimony were unclear and should be accorded no weight. In fact, Cachalia declared, by the end of Nondzube’s cross-examination, he had conceded the landowners’ case, making ‘catastrophic’ admissions, which his counsel attempted to remedy, causing even further damage to their case – a fact that Judge Sardiwalla completely ignored. Cachalia reasoned that Nondzube’s testimony about his great-grandfather, a man called Phuphana, from whom much of his evidence was derived, was flawed, as Phuphana would at the earliest have been born around 1845 and hence could not speak to events like the Gush incident or the settlement of the area prior to 1812.

Cachalia went on to excoriate the proceedings. In the concluding paragraphs of his judgment, he states plainly that the claimants and the commission ‘made up the case as they went along, and during argument in this court it unsurprisingly fell apart completely, with counsel unable to maintain a coherent or consistent position on any of the disputed issue’. The words ‘astonishing’, ‘shocking’ and ‘disgraceful’ appeared in his description. As a final nail in the coffin, Cachalia noted that the land claim had been lodged by a Mr Madlavu, who the Commisison could not prove had acted with the permission of the community when he lodged the claim, and that as a result the claim was ‘stillborn’ from the start.

The majority judgment was less than a third of the length of Cachalia’s. The authors, Judges Pillay and Dambuza, conceded that some of the evidence led by the claimants was ‘capable of criticism’, but responded that the evidence of the landowners was similarly tainted, and strongly emphasised the fact that the legal process in the Land Claims Court was special and unique and should be approached ‘holistically’ and in line with the purpose of the Act – namely, to offer historical justice and redress wherever possible.

Cachalia’s judgment formed the basis for a last-ditch appeal to the Constitutional Court. In this final stretch, media interest again flared up considerably. The experts had testified in person at the Land Claims Court, but both the SCA and the ConCourt dealt largely with the record only. There was far less drama, but the fact that the ConCourt was the absolute last stop on the journey was cause for coverage. What was more, the celebrated and storied jurist Edwin Cameron wrote the judgment, which was unanimously agreed upon by the other nine justices. The ConCourt charted a completely novel course, emphasising how unique and special these types of court cases are, and handed down a judgment ruling that both parties were entitled to the land in some way or another. With that order in hand, it was up to the government to go back to square one and hammer out some kind of deal between the settlers and the Xhosa that validated Cameron’s reasoning. In the justices’ own words, the claimant community was entitled to a ‘measure of restitution’ that ‘did not necessarily include the entirety of the land-owner’s farms’. What shape this deal would eventually take was unclear. Land restitution is rarely so cut and dried, and the specifics would likely take a number of years, much paperwork and a lot of taxpayer money to reach an actual conclusion.

In an article titled ‘The Wizards of Salem’, presumably a reference to the way in which the courts had seemingly magicked open the path to victory for the claimants, Robert Ross from Leiden University dubbed the Salem case a triumph of ‘history over law’, suggesting that perhaps what had been done was not technically or legally correct within the confines of the Restitution Act, but it was ‘fair’ in some way. After all, the landowners and farmers who lost the case had had ample opportunity to have their case heard and would be fairly compensated for the loss of their land, if in fact the claimants eventually opted for restoration under the eventual deal and not compensation. Of course, this complex and burdensome process is set to change if the amendment of the Constitution to allow for expropriation without compensation (EWC) is effected in some of its proposed forms.

Of key importance in the Salem case for the broader story of landownership in South Africa is the requirement of a right in land. In lay terms, did those people removed from the commonage have a legal right not to be so removed? What causes a person to have a right to a patch of earth? Almost anywhere else, this would mean they had some kind of title or other recognised ownership in the property. But the story of land in South Africa is not so straightforward.

There are three other important features of this case that speak to the current land debate in South Africa. Firstly, two groups of witnesses from the two broad categories of contestants in the larger land conflict in the country – white landowners and dispossessed black persons – testified under oath and each contradicted the other’s version of events. Neither could be swayed, by documentary evidence or otherwise.

Secondly, there was the thrust of the two historians’ arguments. Legassick contended that the Xhosa were so united in their homogeneity at the time that any Xhosa could lay claim to any territory under their dominion by virtue of ‘indigenous’ rights, essentially meaning that some members of the Xhosa people had reached the Zuurveld first, and the type of presence they had established in their time there was immaterial. Giliomee contested this, and counsel for the landowners reasoned that setting such a precedent would open the floodgates for any individual identifying as Xhosa to claim any part of the Zuurveld, or indeed the province – and perhaps beyond. This exact issue cropped up in February 2020, when Votani Majola, styling himself Emperor Thembu II of the AbaThembu Royal Empire, put in a land claim for ‘the whole of South Africa’, asserting that the Thembu people were the first to arrive in the country over 2 300 years ago, before even the Khoikhoi. This despite the fact that the Thembu are a Xhosa grouping (which they dispute) and therefore relative newcomers compared to the Khoikhoi and Tswana. Parliament’s committee for special petitions accepted the ludicrous claim, and a debate in the National Council of Provinces has been put on the agenda.

Thirdly, despite the testimony of two experts specialising in the history of the area, a coterie of witnesses, and an incredible number of historical articles, primary sources and research output on the part of dozens of other professional historians, it still took five years of litigation to reach a judgment on the ‘truth’, a result which no doubt will not convince anyone as to the ‘facts’. Who wants to listen to such a long, intricate story today? Especially in light of the fact that apartheid provided an irrefutable litany of atrocities, many related to landownership. Why argue when the moral high ground is so obvious?

There have been almost 32 000 land claims (many amalgamated) lodged in the Eastern Cape since the opening of the claims process. Of that total, just under 17 000 have been settled, to the benefit of almost 350 000 Eastern Cape residents. Despite this, the province has remained the most impoverished in the country. Hundreds of thousands, if not millions, of people have flocked from the Eastern Cape to Gauteng and the Western Cape in search of economic opportunity and continue to do so. The province comfortably holds the record for domestic out-migration in South Africa, and more than 30 per cent of the provincial population does not live in formal housing. The Eastern Cape is the lowest contributor per capita to the country’s overall GDP, and tribal authorities still hold sway, driven by the single largest industry in the province: government. If every single land claim was settled immediately and the land ‘returned’, would this situation be remedied? Presumably not.

In a somewhat underreported part of the tale of the Salem claim, Msele Nondzube told the press in the wake of the judgment that ‘while we are pleased [with the court’s decision] we have no jobs and no income, and no subsidy from government to cultivate the land we do have’.