Nazeem Braaf (Project Coordinator), Moulana AKE Allie (General Secretary-MJC) & Mr Ebrahim Rhoda (Researcher)

Islamic Civilization in Southern AfricaDevelopment and future perspectives: Durban: 4-6 March 2016,

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Muslim Heritage Land Claim Macassar, South Africa

Index

1. Land Restitution in South Africa

2. Macassar Muslim Heritage Restitution Land Claim

a. Context and historical backgroundb. Site Location c. Impact of Apartheids Policies on the heritage site

3. Challenges to the restitution heritage land claim

4. The Way forward

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Land Restitution in South Africa-1

• The Native Lands Act of 1913 "prohibited the establishment of new farming operations, sharecropping or cash rentals by blacks outside of the reserves. It resulted in 87 per cent of the land to the white minority and left only 13 per cent to the black majority

• The Restitution of Land Rights Act of 1994, restoring the rights of those dispossessed by discriminatory land legislation dating back to the 1913 Land Act, was passed by Nelson Mandela and signed into law. The Act provided for the establishment of a Land Claims Commission and a Land Claims Court to respectively probe and adjudicate claims of individuals and communities dispossessed on or after June 1913.

• Restitution of Land Rights Amendment Act of 2014: The initial cut-off time of December 31 1998 has been changed to June 30 2019.

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The Land Restitution Act of 1994 enable people who had lost their property as a result of the Natives Land Act, 1913 to claim back their land.

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Land Restitution in South Africa-2

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• Definition of Restitution: There is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment. In common law it means the return or restoration of a specific thing or condition. Not only the restoration or giving back of something to its rightful owner and returning to the status quo but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another.

• Following the democratic elections of 1994, government undertook to transfer 30 per cent of land (24.5 million hectares) to black people by 2014. According to the 20 Year Review Report, so far 5 000 farms amounting to 4.2 million hectares have been transferred to black people benefiting over 200 000 families countrywide. 79 696 claims were lodged, 77 334 have been settled of which 59 758 were finalised.

• Limited evidence of Muslims claiming heritage land or Muslim community based claims in South Africa whilst other communities and denominations have seized the opportunity of restitution.

Context and Background - 1Introduction and Background• Colonial expansion in Africa and Asia created the need for labour to

sustain trade created a massive international slave trade which led to the involuntary migration of large numbers of Africans and Asians to different parts of the world.

• The Muslim community in South Africa bears testimony to this global historical phenomenon. Upon reflection of the 323 year history of Islam in South Africa, we reflect upon the sacrifices, struggles and contributions made by all our communities in bringing about an era of freedom and democracy, an era in which people can live in freedom and tolerance, free from persecution, racism and the suppression of religious expression.

• Islam was a banned religion since it arrived on the shores of South Africa with the coming of Jan van Riebeeck in 1652. For period of about 150 years Islam was a forbidden religion.

• The Cape Malay Muslims fought many battles to earn their right to practice Islam. The Battle of Blaauberg, the 7th Frontier War (Battle of the Axe), etc bears testimony to their bravery.

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Context and Background - 2• The Muslim leadership, like Sh. Yusuf, Tuan Guru, and many others were

exiled to the Cape Colony because of their continued fight against the colonization of their home lands by the Dutch and British colonialists. Islam flourished in South Africa and entrenched itself and the Muslim community as an integral part of South African society.

• Probably the best known of the Orang Cayen is Sheikh Yusuf of Macassar. The real name of the Sheikh is Abidin Tadia Tjoessoep. He was born in Macassar in 1626 and was of noble birth, being on his mother's side a nephew of King Bisei of Goa. Shaykh Yusuf, the Father of Islam in our Country, was exiled from his land of birth, Macassar in the Indonesian Archipelago, and arrived in South Africa on 2 April 1694 with 49 other Muslim exiles.

• Shaykh Yusuf, his family and followers were exiled to the Zandvliet farm at the mouth of Eerste River. Here they established themselves as a community, and it is here that Shaykh Yusuf resided from his arrival until, his passing in 1699. This land became the hub for religious and cultural gatherings of the Muslim community, and a rallying point for runaway slaves and other exiles from the Eastern parts of the Cape Colony.

• Sheikh Yusuf (1626 - 1699) received ‘The Order of the Companions of OR Tambo in Gold’ for exceptional contribution to the struggle against colonialism – 27 September 2005

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Context and Background - 3- Tri-Centenary Celebrations in 1994

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Celebrating 300 years of Islam in South Africa

Macassar Heritage Land Claim: Proceedings - 1998 to 2016

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1998

• The MJC, with Sheikh Nazeem Mohamed as President, mandated by the Abdul Wahab Trust, Diyaarul Ilm Al Wadda Trust (Jameyatul Quraa-JEQ), Nurul Latief Society and other stakeholders to lodge a land claim to restore Muslim heritage land associated with the Macassar Kramat/Sandvlei area in the Western Cape..

• Dr Achmat Davids and Nazeem Braaf drafted the claim and submission to the Land Restitution Comm (B479)

2006

• Sh Ebrahiem Gabriels, President of the MJC, authorised a joinder application in 2006 but the MJC led Claim was never assessed, validated or Gazetted by the Land Claims Commission. In spite of a joinder application in 2006 no action was forthcoming and only 2 other competing land claims were evaluated.

2014/16

• 2014:Moulana Igshaan Hendricks, the current President of the MJC appealed to the State President for intervention..

• Joinder application lodged with the land claims court. The Land Claims Court ruled that all other Land Claims on the said property be joined and assessed by 30 September 2014. Pre-trials completed and Trial date set for 2015 to argue technical legal matters.

• 2016 Funding application refused. Appeal pending,

Site Location• The heritage site is located at the southern tip of Africa and

approximately 30 km from Cape Town, South Africa.• The area was ‘discovered’ by the Dutch settlers in 1655 upon

exploring the Cape Peninsula and Cape Flats along the False Bay coast. They later named the area Macassar (Macassar Duinen/Downs), the town of origin of the first Muslim political prisoner in South Africa, nobleman Sheikh Yusuf, who originated from Macassar in the Indonesian archipelago.

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Historical significance of the Stellenbosch District: 694 - 1730Stellenbosch District (Stellenbosch, Eersteriver and Strand) and Robben Island became the ‘open air prison’ for ‘dangerous’ political prisoners originating from the east (Indonesian archipelago). These Eastern political exiles, including Batavian rulers, were known collectively as the Orang Cayen i.e. 'men of wealth and influence'. Famous political prisoners restricted to the isolated Stellenbosch district includes:• Sheikh Yusuf Al-Taj Alkhalwatial-Maqasari. See previous slides.• Abul Basir, the Rajah of Tambora who was exiled in 1697 from his

fatherland was housed by governor W A van der Stel on Vergelegen (Somerset West), where the Rajah translated the Koran into Dutch from memory.

• Prince Loring Passer, son of the ruler of Java, Pacabouana, was banished to the Cape in 1715 and housed in Stellenbosch. His bother, Dipa Nagara joined him in 1723.

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• This area became the hub for religious and cultural gatherings of the Muslim community, and a rallying point for runaway slaves and other exiles from the Eastern parts of the Cape Colony.

• The legacy of the Orang Cayen continue to be honoured 300 years after their incarceration at the Cape.

Muslim Heritage Land Claim Area

• By virtue of Deed of Transfer T121/1862 dated 6 March 1862 - Lots 35 – 39, was acquired by Imam Abdul Wahab in 1862 and registered in the name of the Mohammedan Community of South Africa, use of the abutting land known as ‘’the commonage’’ is granted to the owners of Lots 33-63.

• The Muslim community exercised their rights across a large part of the Commonage (Zandvliet) and Crown Land (Farm Driftsands) stretching over a 200 hectare area.

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Impact of Apartheid Policy on the heritage site: Defense Policy

1898 - 1903: De Beers Consolidated Mine establish a dynamite manufacturing facility for the mines at Paardevlei, Somerset West.1919 First and largest Super Phosphate factory in SA started production. 1923 AECI Limited registered.

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Systematic build up of a strategic military and SA defense force capability.

1971: Somchem was bought by the Armaments Corporation of South Africa (Armscor) in 1971 from AECI . Since then the company has grown to become a global player with a vision of being the best in solid propulsion products and energetic material applications. Closure of a 10 km beach strip . Currently co-owned by Rheinmetall of Germany.

1948: Ronden Manufacturing Company established and manufactured fireworks. The company was bought by Armscor in 1971 and named Swartklip Products and led to the development and manufacture of new products such as railway signaling detonators and military products.

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Impact of Apartheid Policy on the heritage site: Defense Policy

1934: Establishment of an Aerodrome by the air force for training of new recruits based in Stellenbosch.

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Systematic build up of a strategic military and SA defense force capability.

1974: Large parts of Macassar Downs fenced off and declared a military special zone for military training exercises.

1969: Establishment of the SACC (South African Cape Corps), the first training base for coloured soldiers in the SANDF.

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Promulgation of the Group Areas Act in South Africa

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• After the 1948 general election in South Africa, the D.F. Malan's administration commenced its policy of apartheid that sought to segregate the races in South Africa. The government hoped to achieve this through 'separate development' of the races and this entailed passing laws that would ensure a distinction on social, economic, political and, in the case of the Group Areas Act of 1950, geographical lines. The Act was amended in 1961, 1962, and 1965 and repealed and re-enacted as the Group Areas Act, 1966.

• The Act empowered the Governor-General to declare certain geographical areas to be for the exclusive occupation of specific racial groups. In particular the statute identified three such racial groups: whites, coloureds and natives.

• Once an area had been designated for sole occupation by certain racial groups the proclamation would not become legally effective for at least one year. Once this time had expired it became a criminal offence to remain in occupation of property in that area with the punishment potentially being a fine and two years' imprisonment.

• An effect of the law was to exclude non-Whites from living in the most developed areas, which were restricted to Whites. The law led to non-Whites being forcibly removed for living in the "wrong" areas. The non-white majority were given much smaller areas (e.g., Cape Flats, Tongaat, Lenasia etc) to live in than the white minority who owned most of the country.

Group Areas Act: Impact on the Muslim Heritage Site in Macassar

1960’s: Establishment of Mitchells Plain, a mass Coloured township resulting from forced removals from Cape Town, inc. District 6.

151970: Establishment of Kayelitsha, the biggest black township in the Western Cape.

1970: Establishment of the Coloured township of Macassar to accommodate the non-whites in the Helderberg.

Systematic enforcement of the Group Areas Act led to mass racial segregation

Frontier War: Battle of the Axe (1846) -1

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• On 22 April 1846, Governor Sir Peregrine Maitland (1777-1854) had martial law promulgated in the Colony. Enlisted available men between the ages 16 and 60 and to send to the eastern border,

• On May 4th crowds met in Church square anxious to be enrolled for service. Conspicuous was a number of Malays eager to serve.

• As per the National Library, Grey Collection, 16c. List of Cape Town Burgher Force, Volunteers, Malay and Liberated African Corps, Burger Force of Cape District, pp 14-18, 46 - The Cape Town Malay Volunteers, mostly abbreviated to the Malay Corps, eventually comprised 214 men of whom 151 had joined voluntarily, 31 had been drafted and 9 were recruits. The leader corps comprised 22 officers, non-commissioned officers and imams.

• On 14 May, two divisions boarded the ‘Mountain Maid’ and departed to Algoa Bay where they arrived on the 22nd, while the third division arrived in Port Elizabeth four days later on board the ‘Phoenix’. On 28 June, they marched into Graham’s Town behind their green banner and the ‘soldier like appearances’ made good impressions on the reporter of the Herald. The CTMV were discharged on 16 September 1846, they were thanked for their help in vanquishing the enemy.

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Preconditions of the war effort:a. Official Mosque site • Professor Robert Shell : The March of the

Mardykers: The toleration of Islam at the Cape, 1633-18611 ‘ ‘Having arrived back in Cape Town, the Muslims led by Imam Abdul Wahab, began to petition the colonial authorities and the municipality for a mosque site and to have more ground at Shaykh Yusuf ’s tomb at Faure set aside for pilgrimage purposes.

• Chet James Paul Fransch wrote in his thesis for his Masters Degree at US. Stellenbosch and the Muslim Communities 1896 – 1966, also substantiated the right to own land close to the burial site of Sheik Yusuf…..P88 ‘’The Cape Colonial Government had shown that it was willing to help the Cape Muslims ever since the Cape Malay Corps had fought on the British side in the War of the Axe (1848-1849). The authorities had expressed their gratitude by giving the Muslims pilgrimage acreage and ground for ecclesial purposes. The Governor of the Cape, Sir Harry Smith, also announced in 1848 that he would offer the Imams of the Cape financial aid for schools from the Imperial coffers’’.

The land grant of the Jamia or Queen Victoria Mosque arose from the war effort of the Muslims conscripted and volunteers in 1846.

Frontier War: Battle of the Axe (1846) - 2

Muslim property owners at Zandvliet: (1858 – 1902)

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Malay owners of properties post the 7th Frontier War.

Zandvliet Farm and the Muslims• They Malay Muslim families (Darries, Peters, Ajam, etc) gradually

increased in numbers over the years and continued to use the Commonage area by cutting firewood, fishing, collecting berries for candle wax, selling limestone, seasonal grazing and hunting as a main source of livelihood in a fairly remote and underdeveloped area

• The use of the Commonage was fundamental to the survival of the Malays in the area. Lots along the Eerste River tended to have seasonal usage due to winter flooding, including Lots 35-39 and other properties owned by the Mohamedan Community.

• The emerging settlement in Macassar had close business and religious ties with the Muslim community of the Strand.

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Acts of Dispossession

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Restitution of Land Rights Act of 1994. Do we satisfy the criteria of a land restitution claim?

1. Land Claim has been lodged properly,2. Acts of dispossession proven.

3. Suffered as a result of discriminatory legislation or practices.

4. Occupancy or Usage of 10 years and more.

5. Shared rules in case of a community claim.

Muslim Heritage Site in Macassar

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• By virtue of Deed of Transfer T121/1862 dated 6 March 1862 - Lots 35 – 39, was acquired by Imam Abdul Wahab in 1862 and registered in the name of the Mohammedan Community of South Africa, use of the abutting land known as ‘’the commonage’’ is granted to the owners of Lots 33-63.

• The Commonage right consisting of 164 morgen provided a significant right of usage to the emerging Muslim community who settled in the area from 1870,.

• A significant part of the commonage right has been lost due to exploitation and enforcement of the Group Areas Act which led to the expropriation and sale of large parts of Zandvliet farm (No 664) to the state for Coloured housting.

Macassar Road

3. Transferred to 10 owners –prescription (1970’s)

2. Sold to government for Coloured Housing

(1960’s)1. Sold to Macassar Development Co – White Group in 1953

Landmark Heritage and Community Land Claims

• Richtersveld Community • Oude Kraal Case, Cape Town • KZN Zulu Land Claim (new)• KoiSan Land Claim (pending)• Salem Community v Government Of The Republic of South Africa

and Others (LCC217/2009) [2014] ZALCC 5; [2015] 2 All SA 58 (LCC (2 May 2014• Judgment• ‘Finally, it is appropriate to observe that the rights of the Plaintiff

were not merely economic rights to graze and cultivate in a particular area. They were rights of families connected by indigenous forbearers. The Community’s aged were buried and the inspection in loco revealed a startling disregard for their ancestral graves. The area is the birth place of children that were born in modest homesteads which passed from generation to generation. And they were not simply there by grace and favour of the Colonialists. The paternalistic and feudal-type relationship involved contributions by the family, who worked the lands of the farmer. However unfair the relationship was, as a relic of past conquests of land dispossession, it formalised a minimal degree of respect by the farm owners for the connection of the indigenous families to the land. It had a cultural and spiritual dimension that rendered the destruction of the rights more than just economic loss. These are factors that might require appropriate consideration by the Department of Rural Development and Land Affairs or the Land Claims Court when an appropriate remedy is fashioned’ - SARDIWALLA AJ

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Current threats to the heritage land claim

• A competing claim over the adjacent land has been lodged by the Macassar Land Claims Committee. They refute the rights of the Muslim community to the adjacent land, and claim that it was used for common grazing of livestock owned by their forefathers and they therefore have a right to claim ownership over the land. The claim has strong religious undertones.

• Further, as a result of the various political and bureaucratic processes, the Macassar Land Claim has not been recognised by the State to date, and as a result, the validation and Gazetting of the claim has not taken place. However, other portions of the commonage subject to land claims is already at an advanced stage of finalisation.

• Perceived negative attitude by the Land Claims Commissioner to validate all competing claims in a professional, objective and fair manner.

• Court intervention proved positive but proved to be an expensive option to validate the Muslim Heritage Claim via the Land Claims Court. Appeal for funding outcome is crucial.

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The Future Opportunity- 1

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Realise the dream of our great leaders to develop a cradle of knowledge in the shadow of the burial place of the founder of Islam in Southern

Africa

The Future Opportunity - 2

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Restitution process presents a huge opportunity to reclaim Islam for the indigenous masses of Kayelitsha, Mitchells Plain and Macassar.

Conclusion• We reiterated the role of Muslims in the struggle against apartheid and

placed on record that it is our firm belief that the sweat and blood of our forefather who toiled this land as part of the oppressed masses for over 300 years cannot be assigned to a narrative in history on the basis of poor administration.

• The place of incarceration and burial place of Sheikh Yusuf on the farm Zandvliet in Macassar is the greatest symbol of the sacrifices, struggles and contributions made by Muslims in bringing about an era of freedom, liberation and democracy in our beloved country. We have been celebrating this heritage occasion annually for over 300 years as it affords us the opportunity to pay tribute to the legacy of the pioneers of Islam in South Africa.

• Let us reflect, preserve and strategise around the future of Muslims in South Africa for the next 300 years. Let us embrace the opportunity of Restitution in South Africa as a means to ensure our sustainable presence in Southern Africa.

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Macassar Muslim Heritage Land Claim

Thank You

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