The wizards of salem: South African historians, truth-telling and historical justice

Abstract

This article analyses a Land Claims case concerning the former commonage of Salem village. The case, which was appealed to the Constitutional Court, was notable for hearing two renowned historians, Martin Legassick and Hermann Giliomee, as expert witnesses for the opposing parties. They gave testimony on the consequences of privatisation in the 1940s. Thereafter, at least, there were no Africans living independently of white farmers. The key question was whether the Africans had formed a “community” before privatisation, or alternatively whether all the Africans had been servants under white control. The village regulations forbade independent “squatting”, but there were repeated counts of the number of Africans living there. Giliomee stressed the literal meaning of the documents, arguing that, because there had been no possession of the land there could be no dispossession. Legassick, in contrast argued that it was impossible for people to live together for decades without developing the characteristics of a community. In judicial terms there was no proof of this. One judge castigated Legassick for not presenting “facts”, on the basis of which the court could decide. In the end, the Constitutional Court found for the claimants, on the basis of historical arguments rather than legal ones. The truth had been reclaimed on the basis of historical inference.