Restitution of Muslim Heritage Land in South Africa Abstract - Nazeem Braaf

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

5 March 2016

1

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 background

b. Site Location

c. Impact of Apartheids Policies on the heritage site

3. Challenges to the restitution heritage land claim

4. The Way forward

2

2

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. 3

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.

3

Land Restitution in South Africa-2

4

4

• 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 - 1

Introduction 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.

• Muslims were severely oppressed and subjugated in this country. And yet Islam survived and

flourished in this country. And it is because of the foundations laid by our forefathers that

allowed us to enjoy the freedoms that we commonly share today.

5


• 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 The Order of the Companions of OR Tambo in

Gold for exceptional contribution to the struggle against colonialism – 27 September

2005

6


- Tri-Centenary Celebrations in 1994

7

Celebrating 300 years of Islam in South Africa

Macassar Heritage Land Claim:

Proceedings 1998 – 2016

8

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 Commission – Ref B479

2006

• Sh Ebrahiem Gabriels, President of the MJC, authorised a joinder application in 20016 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.

2015/6

• 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.

• Nov: 2015 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.

9

Historical significance of the

Stellenbosch District: 1694 - 1730 Stellenbosch 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 who is regarded as the ‘founder’ of Islam at

the Southern tip of the African was the first to be incarcerated and confined to Zandvliet Farm

close to the mouth of the Eersteriver.

• 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.

10

• 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.

11

Macassar: Defense Zone

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 (African and Explosives

and Industries Limited registered.

12

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.

1 2 3

1 2 3

Macassar: Defense Zone

1934: Establishment of an

Aerodrome by the air force for

training of new recruits based in

Stellenbosch.

13

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.

6 4 5

2 3 4 5 6

Promulgation of the Group Areas

Act in South Africa

14

• 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. In 1966 this version was in turn 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. This authority was exercised on the advice of the Minister of the Interior and the Group

Areas Board.

• 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.

• The Act also applied to businesses with racial designation being applied on the basis of the individuals who

held a controlling interest in the company.

• 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,

including District 6.

15 1970: 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



16

‘Agents of the State and Apartheids Tenderpreneurs’

• Research conducted by Mr Ebrahim Rhoda proved that the owners of

Zandvliet Farm, Faure family, off springs of the French Hugenot

immigrants, formed a property development company positioned to

gain financially from the institutionalised discriminatory practices of

the state. AJ Faure established a company called Macassar Estates

Limited (White Group) and gained approval for the establishment of a

massive Macassar Beach Township, consisting of 3,000 plots,

exclusively for Whites in 1947.

• 13 morgen of the Commonage was acquired in 1954 at GBP 50 per

morgen. Plots were subsequently sold for between GBP 570 and GBP

1,340 each. The remainder of the development land was acquired

through public tender and land grants. All plots were subsequently

acquired by the State for the establishment of Coloured Housing.

• In spite of a confidential enquiry by the then Administrator of Coloured

Affairs Dr ID Du Plessis in respect of the impact of the development

on the Muslim ‘Malay’ site, the Conceptual Master Development Plan

indicated that the Muslim Heritage site at Zandvliet would be

subject to the construction of a wide access road and the erection of

a private golf course.

• Faure ultimately sold large part of Zandvliet Farm to the Sate for the

establishment of the Macassar Coloured Township.

4. State

Buyback at

a Profit

1. State Land Grant

2. Private Developer

3. Private Buyers

Wealth Creation



17

2015 View

Frontier War: Battle of the Axe

(1846) -1

18

• 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.

19

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)

20


Zandvliet: (1858 – 1902)

21


b. Right to own property around the burial place of Sheik Yusuf A number of Malay volunteers acquired land, including Imam Abdul Wahab and his Jamia Mosque

congregation.

Portion & Lots of

farm Zandvliet

Owner Current Erf No Acquisition

date

Size

Portion 3 of

Zandvliet 664*

Kamies Daries (former resident of Waterkant Street and

Claremont)

Various 10.09.1858 &

23.08.1882

218 morgen & 25

sq. Roots

Lots 35-39* Imam Abdul Wahab registered in favour of the

Mohammedan Congregation of South Africa (Queen

Victoria Mosque close to Waterkant Street)

1177 6.3.1862 4m & 238 sq.roots

(3.7669h)

Lots 30-31* Imam Abdul Wahab registered in favour of the

Mohammedan Congregation of South Africa

1178 23.05.1866

Lots 40-41* Kamies Daries 1176 25.2.1862 1m & 502 sq.roots

Lots 42-49 ** Hadjie Ebrahiem (Ajam) (Secretary of the Mohamedan

Burial Society and resident in Waterkant Street and D6)

1175, 1174, 1173,

1172, 1170, 1168

21.6.1862 11m & 130 sq.rs

Lots 57-61 Hadjie Ebrahiem (Ajam) 1160 10.11.1862 6m & 68 sq.roots

Portion 68 The Dargah (Shrine) 1179 1914

Lots 26, 27, 28

of Portion 9

Slamodien and Abdol Ragmaan (Eldest Son and grandson

of Kamies Darries)

1183 12.06.1877 313 sq Roots 5 sq.

feet

Lot 29* Phillip Abdol Kaliem registered as Mohamedan

Community (Queen Victoria Mosque)

1180 24.06.1872 3.303 sqm


Zandvliet: (1858 – 1902)

22


b. Right to own property around the burial place of Sheik Yusuf

Portion & Lots of farm

Zandvliet

Owner Current Erf No Acquisition

date

Size

Lots 22 & 23

of Portion 9

Slamodien and Abdol Ragmaan (Eldest Son and grandson

of Kamies)

1184

1185

13.07.1882 434 sq Roots & 12

sq. feet

Lots 42-49 Hadjie Ebrahiem (Ajam)(Secretary of the Mohamedan

Burial Society and resident in Waterkant Street and D6)

Various 21.6.1862 11m & 130

sq.roots

Further Subdivided into 6 Lots

Remainder AC Jephta (1974) 1168 1862 1m 355 sq roots

No 3 C Braaf (1976) 1174 1862 330 sq roots

No 4* Saliem Min Kalodien (1862) Resident in Waterkant Street

and of part of the congregation of Queen Victoria Mosque)

1173 1862 372 sq roots

No 5,6,7* Saliem Min Kalodien (1864)

Resident in Waterkant Street and of part of the

congregation of Queen Victoria Mosque)

1172 1864 2m 133 sq roots

No 8,9,10 G Braaf (1975) 1170 1865 2m 222sq roots

No 1 & 2 * Kamies Daries (and later donated to his youngest daughter

Zakea Daries)

1175 1865 1m 22 sq roots

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. Based

on the research conducted it is evident that the value of the commonage right was very

significant, given the intrinsic value of the area (firewood, grazing, etc), whilst the 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.

23

Acts of Dispossession

24

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.


25

• 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.

1. Sold to

Macassar

Developmen

t 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

26

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 by their ancestors, and that 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.

• Court intervention proved positive but proved to be an expensive option.

• Perceived negative attitude by the Land Claims Commissioner to validate all competing

claims in a professional, objective and fair manner.

• Protracted legal proceedings and dependency on volunteering researches .

• However, intervention thus far has been effective and objectively treated by the presiding

judge (Judge Mpshe) who demonstrated his deep interested in the matter.

27

The Future

28

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

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.

29

Macassar Muslim Heritage Land

Claim

Thank You

30

Government & Nonprofit

Restitution of Muslim Heritage Land in South Africa Abstract - Nazeem Braaf