“The gods are cruel,” said Sol Plaatje in Native Life in South Africa. One of their “cruellest acts of omission was giving us no hint that in very much less than a quarter of a century, all of those hundreds of heads of cattle, and sheep and horses belonging to the family would vanish like the morning mist”.
Plaatje’s book documented the effects of the 1913 Natives Land Act on black South Africans. The law made it a crime for black people to own or lease land outside of reserves, which constituted just 8% of South Africa. With the stroke of a pen, the law rendered landless and homeless “nearly a million” black “squatters” — people who hired land “to raise grain for [their] own use and feed [their] stock”.
But perhaps less known today is how the act also resulted in wholesale confiscation of their cattle.
In Land Matters, Tembeka Ngcukaitobi SC described the historic centrality of cattle to the African economy and culture. Cattle, “more than land, were a visible sign of wealth”. Cattle could be sold and transacted with, they were exchanged and slaughtered for customary practices and were used for ploughing and transporting people and goods, he said.
Plaatje, a one-time ANC secretary-general, described one offer made by a white farmer: he was willing to employ “the Native” and his family for a monthly wage of two pounds 10 shillings, “the husband working in the fields, the wife in the house, with an additional 10s for each son and 5s for each daughter, but on condition that the Native’s cattle were also handed over to work for him”.
The “Natives were at first inclined to laugh” at the idea, said Plaatje. “But the Dutchman’s serious demeanour told them his suggestion was no joke .... Had they not heard of the law before? he inquired.”
Cattle dispossession did not start or end with the 1913 land act. Ngcukaitobi described how it began when the Dutch East India Company arrived in the Cape. It continued through the frontier wars, when huge numbers of cattle were demanded as tribute or taken as spoils of war. Then, in the apartheid era, cattle were removed or culled under “betterment” laws in the late 1930s and 1940s. “The story of land dispossession will never be complete without an understanding of the loss of indigenous people’s cattle,” said Ngcukaitobi.
Last week, in a groundbreaking judgment, the Constitutional Court acknowledged this history. “Before the advent of democracy in this country, black people were routinely forced off land on which they resided and on which they often cultivated land and grazed livestock,” said justice Owen Rogers, on behalf of a unanimous court.
The judgment dealt with a case about the Extension of Security of Tenure Act (Esta). Meriam Mereki had been employed on a farm in the North West. When she died her three children, Magalone, Topies and Dikhotso, continued to live on the farm.
Under Esta, their right to reside on the farm was protected — no-one disputed this. The dispute was about their cattle. While Mereki was alive she had consent from the owner that the family’s five cattle were allowed to graze on the farm.
But the farm owner — the Moladora Trust — said that, after she died, this consent was no longer valid. The consent was “personal” to Mereki and her husband, said the trust.
Rogers agreed with the Land Court that because the trust waited so long to give the Mereki siblings notice, it amounted to tacit consent. The Merekis could keep their cattle
The Mereki children did not seek or get their own express consent from the owner. In January 2019, the trust tried to serve a notice on them to remove the cattle within 30 days. They did not do so. In September 2020, another letter was sent. Then in May 2022, another 20 months later, the trust approached the Land Court.
The constitutional scheme contemplates three main routes to righting the historical wrong of land dispossession: restitution, redistribution and security of tenure — set out in section 25, which deals with property rights.
Section 25(6) says a person or community whose tenure of land is legally insecure “as a result of past racially discriminatory laws or practices” is entitled to legally secure tenure — to the extent provided by national legislation. Esta is such legislation.
In this case, the ConCourt had to decide two questions: first, when the trust wanted to evict the Merekis’ cattle from its farm, did it have to comply with Esta? This meant looking at the legislation and asking whether it extended further than protecting residency for Esta “occupiers” to also allowing their use of the land for grazing. Second, had the trust given tacit consent to the Mereki siblings to keep their cattle on the farm?
From the Land Court the case went to the Supreme Court of Appeal (SCA). The two courts gave “opposite answers”, said Rogers. Land Court judge Susannah Cowen said “yes” to both questions and the SCA said “no”.
The ConCourt judges looked at our history and the purpose of protecting security of tenure. Rogers said there was “every reason to hold that the framers of the constitution intended a broad and generous concept of tenure”.
There were various provisions of Esta that were consistent with a broad concept of tenure, he said, which covered not only living on the land but using it. But “the lawmaker has not been consistent in adding ‘use of land’ when it refers to ‘reside on land’,” he said. This was “a difficulty”.
Rogers ultimately decided that the right of residence, given to occupiers of land by Esta, must, by implication, include the right to use the land for keeping livestock. Otherwise, “Esta would be internally inconsistent and the ostensible legislative intent would not be achieved. The inconsistency must be resolved in favour of an interpretation that enlarges rather than diminishes the security of tenure afforded to occupiers,” he said.
So if the Merekis did have consent to keep cattle (the second question), the trust may not evict the cattle without complying with Esta.
The next question was whether the Merekis had tacit consent to keep their cattle. Here, Rogers agreed with the Land Court that because the trust waited so long to give the Mereki siblings notice, it amounted to tacit consent.
The Merekis could keep their cattle.
The court did not stop there. It also cleared a path for the Land Court to go further and find that Esta entitles occupiers with rights of residence under its provisions to also keep cattle as part of that right, irrespective of consent from the owner.
The ConCourt did this by pronouncing on a line of judgments that started in the high court with the 2002 Margre judgment. In the Margre case, judge Jeremy Pickering found that if an occupier had a right to keep livestock, this did not derive from Esta. The occupier must have the consent of the owner, he said. Two later judgments of the SCA seemed to confirm this principle and Cowen said that, as a lower court, she was bound by this.
But the ConCourt understood these judgments differently. Rogers said where the SCA confirmed Margre, these were “non-binding pronouncement[s] made in passing”. Margre was not binding on the Land Court, he said.
Ngcukaitobi said in Land Matters that it is impossible, now, to speak of returning the cattle lost during colonial conquest. But it “is at least possible to widen the scope of the debate as to what was lost”. By this he implies that when the constitution talks of property, it does not just talk of land; and restitution, redistribution and security of tenure do not apply only to land. Last week’s ConCourt judgment takes a step in this direction and opens the way for the Land Court to take another.
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