The ‘land question’ remains at the centre of South African political discourse. Land restitution has been an important strategy for addressing racially unequal ownership of land as well as forced removals in the apartheid era. This chapter focuses on the Hlolweni (2003) land claim, made by 883 families from three poor, rural communities in the Eastern Transkei (Mpondoland) – the villages of Mfolozi, Etyeni and Hlolweni. Starting in 1983, these families were forcefully removed from about 10 000 ha to make way for a sugar cane plantation and outgrower scheme. The families brought a restitution claim to the Eastern Cape office of the Land Claims Commission in 1995, which eventually came to court in 2009. By this time the Eastern Cape government, which controlled the land, had agreed to the claim but the claimants were opposed in court by three associations of black smallholder farmers who had been beneficiaries of the scheme. The claimants secured a favourable judgment in 2010.

A historical study of this land claim is significant for two principal reasons. Firstly, it highlights important challenges in settling restitution claims on land in the former Bantustans (homelands), particularly when the chosen legal vehicle to hold the restituted land is a communal property association (CPA – see Weinberg in this volume). Secondly, the claim is significant from a broader historiographical point of view, in that it informs our understanding of how African ‘communal tenure’ has evolved over time. The central argument in this chapter is that wider economic and political forces affect how people perceive rights to a particular plot of land, and that these perceptions can change over time. The Hlolweni claim is an instructive case study because, during the period assessed here, three distinct understandings of how a piece of land may be used have evolved amongst the same group of people. This is an important argument, as much of the existing literature posits ideas of customary or communal tenure that are too static.

The question of who ‘owns’ land in the former homelands has been deeply contested historically. For much of the colonial and apartheid era, officials referred to the system of occupation in these areas as ‘communal’ or ‘customary’ tenure. Sydney H. Fazan, a Kenyan official writing on the Transkei during the 1940s, cites a number of magistrates claiming that codified systems of land administration were designed ‘to copy Native custom’ (Fazan 1944: 46–47).