With Cachalia JA dissenting forcibly, a majority of the SCA disallowed an appeal by 16 landowners against an order of the Land Claims Court (the LCC).  It concerned a dispute over land rights in respect of a portion of land once known as the Salem Commonage situated some 20 km south of Grahamstown in the Eastern Cape, and measures 7 698 morgen in extent.  The LCC found that a ‘community’, as defined in s 1 of the Restitution of Land Rights Act 22 of 1994 (the Act), existed and was dispossessed of ‘a right in land’ after June 1913.  This resulted from past racially discriminatory laws and practices in terms of s 2 of the Act.

“I have read the judgment that Pillay JA and Dambuza JA (the second judgment) have jointly prepared.  Regrettably, it suffers from the same malaise that is evident from the judgment of the LCC:  it misconstrues the legal issues and treats the evidence in a one sided and legally impermissible manner.  A comparison between the two judgments is striking.  The main judgment deals in detail with all the evidence: documentary, viva voce and expert, and supports its findings through clear legal reasoning.  By contrast the second judgment approaches the evidence in a selective and generalised manner, fails to evaluate it properly, and reaches factual conclusions on dubious legal grounds. [para 400]     

Salem Party Club v Salem Community (20626/14) [2016] ZASCA 203 (13 December 2016)