Chapter 12 - Restitution and Land Rights in the Eastern Cape: The Hlolweni, Mgungundlovu and Xolobeni Cases

Summary

This chapter focuses largely on ideas and arguments developed in preparation for the court case around the Mgungundlovu (Wild Coast Sun) restitution claim in Bizana, former Transkei (now Alfred Nzo municipality). It was submitted in 1995 by claimants who had been forcibly removed from about 740 ha by the Transkei government in 1980 to make way for the Wild Coast Sun casino, hotel and golf course. The case was contested by Transkei Sun International Limited (hereafter ‘Sun’) but was legally settled in 2014, just as the court case was starting. The 106 claimants were successful and gained what most saw as a favourable outcome, including a cash payment and ownership of the land through a communal property association (CPA). The settlement did not, however, allow families to move back onto the land that they had vacated – at least not for 20 years.

Research and preparation for the Mgungundlovu case was a collective task. I served as a researcher, closely directed by the lawyers in order to support the legal ideas that they were pursuing. This chapter explores their priorities and how this shaped the focus of the work that was done (see also Fay in this volume). Interviews were conducted with Luvuyo Wotshela (co-researcher); the lawyers were led by advocate Alan Dodson and included Susannah Cowen and Apla Bodlani (advocates) as well as Norton Rose attorneys pro bono department (especially Nicki van't Riet). Dodson drew on earlier cases, notably Richtersveld (2003) the landmark judgment by the Constitutional Court, and Hlolweni (2003) (see Chaskalson in this volume). The latter case arose from a claim, also in Bizana, originally submitted in 1995 and settled in 2010 by the Land Claims Court.

My involvement began with Hlolweni in 2005 because the claimants’ lawyers (also led by Alan Dodson) found The Political Economy of Pondoland (Beinart 1982) useful in outlining aspects of customary landholding in Mpondoland. Although the book was not quite as clear as I would, in retrospect, have liked for evidence in a court case, it helped to inform the arguments that the lawyers were pursuing. The fact that it was written before the claims were submitted enhanced its value for these purposes. I submitted a statement and was cross-examined as an expert witness in the Hlolweni case in 2009 and then worked with the lawyers on Mgungundlovu.