Australian Indigenous Law Reporter
Court and Tribunal Decisions – South Africa
Constitutional Court of South Africa (Chaskalson CJ, Langa DCJ, Ackerman, Goldstone, Madala, Mokgoro, Ngcobo, O’Regan, Sachs and Yacoob JJ)
14 October 2003
The Richtersveld Community sought restitution of land in the north-western corner of the Northern Cape Province (‘the subject land’) under the terms of the Restitution of Land Rights Act 1994 (‘the Act’). Section 2(1) of the Act provides that a person or community who was dispossessed of a right in land after 19 June 1913 as the result of a past racially discriminatory law or practice is entitled to restitution.
The Richtersveld Community was living on the subject land when the British annexed the area in 1847, and continued to live there undisturbed until the 1920s, when diamonds were discovered. After that time, the Richtersveld people were progressively dispossessed of the subject land as mining licences were granted over the area. In 1957 the subject land was fenced off, and in the early 1990s the land was vested in Alexkor Ltd, a government owned diamond-mining company.
The Community brought a claim for restitution in the Land Claims Court (‘LCC’), which rejected their claim (see Richtersveld Community v Alexkor Limited 2001 (3) SA 1293 (LCC)). The LCC held that the Community did not have a right in land based on ownership at the time of annexation because at that time, the Richtersveld people were considered to be ‘too low in the scale of social organisation’ (re Southern Rhodesia  AC 211 at 233–4) for their rights in land to be recognised. Thus the LCC accepted that, upon annexation, the subject land became Crown Land. The LCC also rejected an argument by the Community that the doctrine of aboriginal title forms part of South African law and that their right to restitution could flow from aboriginal title. The LCC held that the it did not have the jurisdiction to entertain such a claim. The LCC did find that the Community was in ‘beneficial occupation’ of the subject land in the ten years prior to dispossession, and this kind of interest in land can be a basis for restitution. However, the LCC held that to have a right to restitution under the Act, the dispossession must have be the result of a law or practice designed to implement ‘spatial apartheid’. Because the dispossession of the Richtersveld Community was not done for this purpose (it was done to enable exploitation of the land’s mineral wealth), the Community was not entitled to restitution.
On appeal to the Supreme Court of Appeal (‘the SCA’), it was held that the Community did have a right to restitution (see Richtersveld Community v Alexkor Limited 2003 (6) SA 104 (SCA)). The SCA held that, at the time of annexation, the Community owned the subject land, and this ownership was based upon the traditional laws and customs of the Richtersveld people. The SCA further held that the Richtersveld Community’s rights to the land survived annexation, and continued until the Community was dispossessed in the 1920s. The SCA also rejected the LCC decision that dispossession must have occurred under a law or practice designed to implement spatial apartheid. The dispossession of the Richtersveld Community in the 1920s was racially discriminatory because their rights to land were ignored because of an assumption that they were too ‘uncivilised’ to have rights to the land. Thus the SCA held that the Richtersveld Community was entitled to restitution.
Alexkor Ltd appealed this decision to the Constitutional Court of South Africa.
1. Issues relating to the restitution of land are ‘constitutional matters’, because the right to restitution is provided for in s 25(7) of the Constitution. Thus, the Constitutional Court has jurisdiction to hear the matters in this appeal: –. NEHAWU v University of Cape Town  ZACC 27; 2003 (3) SA 1 (CC) referred to.
2. The nature and content of the rights the Community had in land must be determined by reference to the indigenous laws that governed the Community: .
3. The right in land held by the Community was a right of ‘communal ownership under indigenous law’, and this ownership included ownership of the minerals and precious stones in the land: , .
4. Indigenous rights to land were recognised and protected after the acquisition of sovereignty by a colonial power, and thus the rights of the Richtersveld Community survived annexation in 1847: .
5. The Richtersveld Community’s rights in the subject land remained intact until after diamonds were discovered on the land in the 1920s. Thus the Community was not dispossessed until after 19 June 1913, which is the cut-off date for claims under the Act: .
6. The dispossession of the Richtersveld Community in the 1920s was racially discriminatory. This is because their rights in land were not accorded the same protection given to people who held registered title to land on which minerals are found. The LCC’s finding that dispossession must have occurred as a result of a law or practice aimed at furthering ‘spatial apartheid’ was too narrow: .
1. This appeal concerns a claim for restitution of land by the Richtersveld Community under the provisions of the Restitution of Land Rights Act (the Act). The claim was dismissed by the Land Claims Court (LCC). That court also dismissed an application for leave to appeal. The Supreme Court of Appeal (SCA) granted leave, set aside the order of the LCC and granted relief to the respondent (the Richtersveld Community). Initially, only the first appellant (Alexkor) sought special leave to appeal to this Court. That application succeeded.
4. The Richtersveld is a large area of land situated in the north-western corner of the Northern Cape Province. For centuries it has been inhabited by what is now known as the Richtersveld Community. The application was launched by the Community as such, its members in the main centres of the Richtersveld and in the names of all of the present members of the Community. ...
5. The claim does not relate to the whole of the Richtersveld, but only to a narrow strip of land along the west coast from the Gariep (Orange) River in the north to just below Port Nolloth in the south. We shall refer to this as ‘the subject land’. It is registered in the name of Alexkor.
6. The relevant provisions of the Act are to be found in section 2(1). It provides that:
A person shall be entitled to restitution of a right in land if –
. . .
(d) it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and
(e) the claim for such restitution is lodged not later than 31 December 1998.
In terms of section 1 of the Act ‘restitution of a right in land’ means:
(a) the restoration of a right in land; or
(b) equitable redress;
‘right in land’ means:
any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question;
and ‘racially discriminatory practices’ means:
racially discriminatory practices, acts or omissions, direct or indirect, by –
(a) any department of state or administration in the national, provincial or local sphere of government;
(b) any other functionary or institution which exercised a public power or performed a public function in terms of any legislation.
8. The LCC held that the Richtersveld Community constituted ‘a community’ for the purposes of the Act, and had beneficially occupied the subject land for a continuous period of not less than ten years prior to its dispossession after 19 June 1913. However, it held further that the Community had failed to prove that this dispossession was the result of discriminatory laws or practices.
9. In upholding the appeal, the SCA, in a comprehensive and helpful judgment, found that the Richtersveld Community had been in exclusive possession of the whole of the Richtersveld, including the subject land, prior to and after its annexation by the British Crown in 1847. It held that those rights to the land (including minerals and precious stones) were akin to those held under common law ownership and that they constituted a ‘customary law interest’ as defined in the Act. It further found that in the 1920s, when diamonds were discovered on the subject land, the rights of the Richtersveld Community were ignored by the state which dispossessed them and eventually made a grant of those rights in full ownership to Alexkor. Finally, the SCA held that the manner in which the Richtersveld Community was dispossessed of the subject land amounted to racially discriminatory practices as defined in the Act. The SCA accordingly made the following order:
In result the appeal succeeds with costs including the costs of two counsel. The orders of the LCC are set aside and replaced with an order in the following terms:
(a) It is declared that, subject to the issues that stand over for later determination, the first plaintiff [the Richtersveld Community] is entitled in terms of section 2(1) of the Restitution of Land Rights Act 22 of 1994 to restitution of the right to exclusive beneficial occupation and use, akin to that held under common-law ownership, of the subject land (including its minerals and precious stones)
(b) The defendants are ordered jointly and severally to pay the plaintiffs’ costs including the costs of three counsel.
10. Alexkor and the government contend that any rights in the subject land which the Richtersveld Community might have held prior to the annexation of that land by the British Crown were terminated by reason of such annexation. They contend further that, in any event, the dispossession of the subject land after 19 June 1913 was not the consequence of racially discriminatory laws or practices. Accordingly they seek to set aside the order made by the SCA.
18. The following questions were argued in this appeal:
(a) The identification of the issues that fall within the jurisdiction of this Court;
(b) The law to be applied to relevant events that antedate the interim Constitution;
(c) The nature of the rights in land of the Richtersveld Community prior to annexation;
(d) The legal consequences of annexation of the subject land;
(e) The nature of the rights in the subject land held by the Richtersveld Community after 19 June 1913;
(f) The steps taken by the state in respect of the subject land after 19 June 1913;
(g) Whether the dispossession was the result of racially discriminatory laws or practices.
We shall consider each of these issues in turn.
19. To found an entitlement to restitution of a right in land under section 2(1)(d) and (e) of the Act, quoted in paragraph 6 above, the following have to be established:
(a) that the Richtersveld Community is a ‘community’ or ‘part of a community’ as envisaged by the subsection;
(b) that the Community had a ‘right in land’ as envisaged;
(c) that such a right in land continued to exist after 19 June 1913;
(d) that the Community was, after 19 June 1913, ‘dispossessed’ of such ‘right in land’;
(e) that such dispossession was the ‘result of past racially discriminatory laws or practices’; and
(f) that the Community’s claim for ‘restitution’ was lodged not later than 31 December 1998.
20. Issues (a) and (f) are now common cause and, as will emerge in the course of the judgment, so too are aspects of the other issues.
21. The issue of jurisdiction relates in part to the division of final jurisdiction between the Constitutional Court and the Supreme Court of Appeal. Section 167(3) of the Constitution, after providing in paragraph (a) that the Constitutional Court ‘is the highest Court in all constitutional matters’, proceeds in paragraph (b) to define the Constitutional Court’s jurisdiction by providing that it ‘may decide only constitutional matters, and issues connected with decisions on constitutional matters’. (Emphasis supplied.)
This latter provision must be read together with section 167(3)(c) which provides that the Constitutional Court ‘makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter’, with section 167(7) which states that ‘[a] constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution’, and with section 168(3) which states that the Supreme Court of Appeal is ‘the highest court of appeal except in constitutional matters’.
22. It thus becomes necessary to consider whether, and to what extent, this Court has the power to determine any of the issues referred to in paragraph 19(b) to (e) above. Section 25(7) of the Constitution provides:
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
This provision is, in relation to matters relevant to the present case, and with one exception, mirrored in the provisions of section 2(1)(d) of the Act, quoted in paragraph 6 above. The exception relates to the fact that in the Constitution the dispossession relates to ‘property’ whereas in the Act it relates to ‘a right in land.’ Nothing turns on this difference in the present case. A similar ‘mirroring’ occurred between the relevant provisions in the interim Constitution and those in the Act, prior to its amendment by section 3(1) of Act 63 of 1997.
23. In NEHAWU v University of Cape Town and Others this Court held that where a statute has been enacted to give content to a constitutional right or to meet the legislature’s constitutional obligations, the proper construction of such statute is a constitutional matter for purposes of section 167(3)(b) of the Constitution. The provisions of section 2(1) of the Act are clearly statutory provisions enacted to give content to the section 25(7) constitutional right and to fulfil Parliament’s obligations expressly referred to in the subsection. It follows, therefore, that the issues in this appeal, detailed above and relating to the interpretation and application of section 2(1) of the Act, are all ‘constitutional matters’ over which this Court has jurisdiction.
36. ... [B]oth the interim Constitution and the Constitution have provided expressly for their retroactive application to dispossessions of rights in land that took place after 19 June 1913. The interim Constitution, in section 121(2), provided that
[a] person or a community shall be entitled to claim restitution of a right in land from the state if –
(a) such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (1); and
(b) such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2), had that section been in operation at the time of such dispossession.
and section 121(3) provided that the date fixed by subsection (2)(a) should not be a date earlier than 19 June 1913. Section 25(7) of the 1996 Constitution provides that
[a] person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practice is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
37. For present purposes it is only necessary to deal with the provisions of the Constitution. The date chosen, 19 June 1913, is of course the date on which the Natives Land Act 27 of 1913 came into operation. This Act deprived black South Africans of the right to own land and rights in land in the vast majority of the South African land mass. It is quite apparent that section 25(7) and the implementing provisions of the Act have retroactive effect until at least 19 June 1913, because the very purpose behind their provisions is to provide redress for dispossessions that were valid under the law of that time.
41. ... [W]hen it comes to the legal effect of other events prior to 19 June 1913, these must be adjudged according to the law then prevailing. So, for example, when considering the effect of the British annexation of the Cape in 1806 and its impact on acquired rights, or of the 1847 Proclamation or other legislative or administrative acts, the then prevailing law must be applied. This does not mean that when evaluating rights, including the indigenous rights of the Richtersveld Community, as to their existence or content, use may not be made of later evidence or scholarship in regard to such rights or their content.
42. In this Court Alexkor contended that the SCA erred in holding that the Richtersveld Community held ‘a customary law interest’ in the subject land which was akin to ownership under common law and that this right included the ownership of minerals and precious stones. But, according to the judgment of the SCA, Alexkor and the government conceded this issue. The preliminary question which arises is whether it is open to Alexkor to revive this issue on appeal in this Court.
45. We are concerned here with a legal contention relating to the nature and the content of the rights held by the Richtersveld Community in the subject land. That contention does not raise new factual issues. Its consideration will not involve any unfairness to the Richtersveld Community, which has been able to deal with it fully. The determination of the nature and the content of the land right of the Richtersveld Community prior to and after annexation is basic to the adjudication of the central question presented in the appeal, namely, whether the Richtersveld Community was dispossessed of its land rights after 19 June 1913 as a result of discriminatory laws or practices. In addition, the proper characterisation of the title is crucial to any order that the LCC may ultimately make.
46. For all of these reasons, we are entitled to determine firstly, the nature and the content of the land rights that the Richtersveld Community held in the subject land prior to annexation; and secondly, whether such rights survived annexation. It now remains to consider these issues.
47. In the SCA, the Richtersveld Community contended that, as at 19 June 1913, it possessed (a) a right of ownership; (b) the right to exclusive beneficial occupation and use; or (c) the right to use the subject land for certain specified purposes, including exploitation of natural resources. In the main, the Community contended that it possessed these rights under indigenous law and, after annexation, under the common law of the Cape Colony or international law which protected the rights acquired under indigenous law. In the alternative, it was contended that the rights which the Community held in the subject land under its own indigenous law constituted a ‘customary law interest’, a right in land within the meaning of the Act, even if these rights were not recognised or protected. These rights were also asserted in relation to the right of beneficial occupation for a continuous period of not less than 10 years that had been found by the LCC.
48. As pointed out above, the SCA found that the Richtersveld Community
had a ‘customary law interest’ in the subject land within the definition of ‘right in land’ in the Act. The substantive content of the interest was a right to exclusive beneficial occupation and use, akin to that held under common-law ownership.
50. The nature and the content of the rights that the Richtersveld Community held in the subject land prior to annexation must be determined by reference to indigenous law. That is the law which governed its land rights. Those rights cannot be determined by reference to common law. The Privy Council has held, and we agree, that a dispute between indigenous people as to the right to occupy a piece of land has to be determined according to indigenous law ‘without importing English conceptions of property law.’
53. In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practised and passed on from generation to generation. It is a system of law that has its own values and norms. Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.
55. This case does not require us to examine the full range of problems concerned. In the present matter extensive evidence exists as to the nature of the indigenous law rights exercised by the Richtersveld Community as they evolved up until 1913. As we stressed above, to understand them properly these rights must be considered in their own terms and not through the prism of the common law.
58. Under indigenous Nama law, land was communally owned by the community. Members of the community had a right to occupy and use the land. In this regard the SCA found:
One of the components of the culture of the Richtersveld people was the customary rules relating to their entitlement to and use and occupation of this land. The primary rule was that the land belonged to the Richtersveld community as a whole and that all its people were entitled to the reasonable occupation and use of all land held in common by them and its resources. All members of the community had a sense of legitimate access to the land to the exclusion of all other people. Non-members had no such rights and had to obtain permission to use the land for which they sometimes had to pay. There are a number of telling examples. A non-member using communal grazing without permission would be fined ‘a couple of head of cattle’; the Reverend Hein, who settled in the Richtersveld in 1844, recorded in his diary three years later a protest by the community that Captain Paul (Bierkaptein) Links had, without the consent of the ‘raad’, let (‘verpacht’) some of its best grazing land at the Gariep River Mouth; and the trader McDougal established himself at the mouth of the Gariep River in 1847 only after obtaining the permission of Captain Links on behalf of the community and agreeing to pay for the privilege. The captain and his ‘raad’ enforced the rules relating to the use of the communal land and gave permission to newcomers to join the community or to use the land.
60. The content of the land rights held by the Community must be determined by reference to the history and the usages of the community of Richtersveld. The undisputed evidence shows a history of prospecting in minerals by the Community and conduct that is consistent only with ownership of the minerals being vested in the Community.
61. The witnesses on behalf of the Richtersveld Community testified that long before the annexation the Nama people in Little Namaqualand had mined and used copper for purposes of adornment. The witnesses testified that visitors to the Namaqualand were reported to have observed Nama people in the neighbourhood of Gariep smelting copper and using molten metal to make rings; working in copper and iron; and making copper beads and copper plates as ornaments. One writer concluded from eyewitness accounts that they showed a Nama ‘industry in two metals, copper and iron, materials available locally and in quantity.’ The record includes a text describing the long history of copper mining in Namaqualand by the indigenous people prior to the annexation in 1847. In addition, outsiders were not entitled to prospect for or extract minerals. The evidence established that the Richtersveld Community granted mineral leases to outsiders between the years 1856 and 1910.
62. In the light of the evidence and of the findings by the SCA and the LCC, we are of the view that the real character of the title that the Richtersveld Community possessed in the subject land was a right of communal ownership under indigenous law. The content of that right included the right to exclusive occupation and use of the subject land by members of the Community. The Community had the right to use its water, to use its land for grazing and hunting and to exploit its natural resources, above and beneath the surface. It follows therefore that prior to annexation the Richtersveld Community had a right of ownership in the subject land under indigenous law.
64. We are satisfied that under the indigenous law of the Richtersveld Community communal ownership of the land included communal ownership of the minerals and precious stones. Indeed both Alexkor and the government were unable to suggest in whom ownership in the minerals vested if it did not vest in the Community. Accordingly, we conclude that the history and usages of the Richtersveld Community establish that ownership of the minerals and precious stones vested in the Community under indigenous law.
65. The principal contention by Alexkor was that upon annexation British law became applicable to the subject land. Consequently the British Crown became the owner of all land that had not been granted by it under some form of tenure. As the subject land was such land, so the argument went, it became the property of the British Crown. In this manner, it was submitted, the Richtersveld Community lost all title to the subject land. As this occurred prior to 19 June 1913, the claim must fail.
66. The subject land was annexed by the British Crown in 1847 pursuant to the Annexation Proclamation which incorporated Richtersveld as part and parcel of the Cape Colony. Under that Proclamation, the British Crown acquired sovereignty over Richtersveld, including the subject land. This gave the British Crown the power to make new laws, recognise existing rights or extinguish them and create new rights. In Oyekan and Others v Adele the Privy Council described the effect of acquisition of sovereignty over a territory as follows:
Their Lordships desire to point out that the Treaty of Cession was an Act of State by which the British Crown acquired full rights of sovereignty over Lagos ... The effect of the Act of State is to give to the British Crown sovereign power to make laws and to enforce them, and, therefore, the power to recognise existing rights or extinguish them, or to create new ones.
68. In our view there is nothing either in the events preceding the annexation of Richtersveld or in the language of the Proclamation which suggests that annexation extinguished the land rights of the Richtersveld Community. The contention to the contrary by Alexkor was rightly rejected by the SCA.
69. The SCA held that the terms of the Annexation Proclamation do not purport to terminate any right over the annexed territory. It found that the majority of colonial decisions favoured an approach that a mere change in sovereignty is not meant to disturb the rights of private owners, and appeared to favour the approach by the Privy Council that:
In inquiring, however, what rights are recognized, there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it; and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law ...
The SCA adopted the rule that indigenous rights to private property in a conquered territory were recognised and protected after the acquisition of sovereignty and concluded that the rights of the Richtersveld Community survived annexation. We endorse that conclusion.
75. Contrary to the finding of the SCA, Alexkor contended that the grant of land had to originate with the British Crown. Alexkor placed much reliance upon the views expressed by some colonial government officials. These views, it was submitted, supported the conclusion that the colonial government regarded all land in the Cape Colony as Crown land unless it was held under a grant made by the Crown. The reliance upon the views of the colonial government officials is misplaced.
76. What matters is not the views of the colonial government officials but the law of the Cape Colony at the time of, and subsequent to, annexation. As we have held, the applicable law in the Cape Colony at the time of annexation respected and protected land rights of the indigenous people. No act of state or legislation extinguished the land rights of the Richtersveld Community subsequent to annexation but before 19 June 1913. The Crown Lands Acts relied upon by Alexkor did not have that effect. The views of colonial government officials cannot therefore prevail over the law that was applicable in the Cape Colony and which respected and recognised the land rights of the Richtersveld Community.
77. Apart from this, colonial government officials expressed conflicting views on the issue. Some officials recognised the land rights of the Richtersveld Community. In addition, the conduct of the Richtersveld Community was consistent with their ownership of the subject land. It granted grazing leases and mineral leases to outsiders. Indeed as late as 23 February 1910 Reverend Kling entered into a mineral lease on behalf of the Richtersveld Community whom he described as ‘the owner of certain ground situate in the District of Klein Namaqualand, in extent about seven hundred thousand morgen.’
78. Moreover, the witnesses on behalf of the Richtersveld Community testified that it had been in occupation of the subject land at the time of annexation and continued to be until its eviction after the discovery of diamonds in the 1920s. This testimony is supported by the documentary evidence that showed, amongst other things, that the Richtersveld Community continued to occupy, claim and exercise rights of ownership over the whole of the Richtersveld.
81. The inevitable conclusion is that the indigenous law ownership of the Richtersveld Community remained intact as at 19 June 1913. No steps were taken to extinguish the rights of ownership prior thereto. No ticket or certificate of occupation or certificate of grant had been issued which had the effect of limiting the indigenous law ownership of the Community in any way. No law was passed to render unlawful the exercise of any right by the Richtersveld Community in respect of the land in terms of its own indigenous law. Many opinions were expressed, there was much debate about what was to be done, considerable effort was expended in investigating the position of the Richtersveld, many letters were written, many claims were made on both sides and not an inconsiderable number of reports were compiled. But the Richtersveld Community in fact continued to occupy the whole of the Richtersveld including the subject land, to use it, to let it, to grant mineral rights in respect of it and to exercise all other rights to which it was entitled in accordance with its indigenous law ownership of the land.
82. In the result, we conclude that the annexation of Richtersveld did not extinguish the right of ownership which the Richtersveld Community possessed in the subject land and that such right was not extinguished prior to 19 June 1913.
83. The position of the Richtersveld Community began to change from 1926 onwards with the discovery of diamonds on the subject land. It was common cause that, if the Richtersveld Community’s rights survived beyond 1913, it was ultimately dispossessed of the land by the end of 1993. The Community has consistently contended
that the Richtersveld community was dispossessed by a series of legislative and executive steps whereby, after the discovery of diamonds in the mid 1920’s, State alluvial diggings were established on the subject land, the public, including the Richtersveld people, were excluded from the subject land, mineral rights in the subject land were granted to Alexkor and full ownership of the subject land was ultimately transferred to Alexkor.
85. The Precious Stones Act (the Precious Stones Act) was passed in 1927, again as a direct consequence of the discovery of diamonds in the subject land. It made provision for a state alluvial digging to be established by Proclamation. A state alluvial digging was indeed established on the subject land in 1928 and its area consistently extended by Proclamation until it covered the whole of the subject land in 1963. All the Proclamations that relate to the subject land refer to it as ‘unalienated Crown land’ or ‘unalienated state land’. In other words, the Proclamations announce that the subject land is in fact state owned land. In this respect, these Proclamations are different in content and effect from the Crown Lands Acts discussed earlier. The Proclamations expressly state that land described in each Proclamation is in fact Crown land.
87. On 5 February 1930, before the state alluvial digging process in respect of the subject land had been completed, the land was reserved by a certificate of reservation issued in terms of the 1887 Crown Lands Act. According to this certificate, land three hundred and fifty thousand morgen in extent, which excluded the subject land, was reserved ‘for the use of the Hottentots and Bastards who are residing therein and of such other coloured people as the Governor-General may decide’. It is highly arguable that this certificate of grant, by necessary implication, deprived the Richtersveld Community of their indigenous law ownership of the whole of the Richtersveld and granted them limited rights of occupation in relation to that part of the Richtersveld described in it. It is unnecessary to follow that route.
88. The concept of dispossession in section 25(7) of the Constitution and in section 2 of the Act is not concerned with the technical question of the transfer of ownership from one entity to another. It is a much broader concept than that, given the wide definition of ‘a right in land’ in the Act. Whether there was dispossession in this case must be determined by adopting a substantive approach, having due regard to the provisions of the Precious Stones Act and the conduct of the government in giving effect to them.
89. The Precious Stones Act did not recognise the rights of those, like the Richtersveld Community, who were at the time the owners of land under indigenous law. This was because their rights had not been registered. All land in respect of which no person was registered as the owner in the deeds registry was treated by the Act as unalienated Crown land. The rights of the Richtersveld Community, the indigenous law owner of the land, were ignored as if it had no rights in the land whatsoever. What is more, the Community fell foul of section 103(5) and (6) of the Act. Subsection (5) makes it an offence for any person to occupy, trade on or use proclaimed land for any purpose without permission or authority while subsection (6) makes a criminal of any person who uses water from any place in an alluvial digging unless that is allowed by the Precious Stones Act. The effect of this Act was that all occupants of the land except those who were registered surface owners, or those who occupied at the instance of the surface owners, lost their right to occupy and exploit the land.
90. This law in effect rendered the occupation of the subject land by the Richtersveld Community unlawful and dispossessed it of the rights it had as owner of the land. Everything that happened afterwards, except for the issue of the certificate of reservation, referred to in paragraph 87 above, was a mere consequence of the Richtersveld Community having been stripped of its rights of ownership by the Precious Stones Act and the Proclamations made pursuant to it.
91. The evidence shows that the state subsequently treated the subject land as its own, required the Community to leave it, exploited it for its own account and later transferred it to Alexkor. All this happened after 1913 and effectively dispossessed the Community of all its rights in the subject land. These rights included the right to occupy and exploit the subject land, including its minerals.
92. Section 25(7) of the Constitution requires ‘[a] person or community [to be] dispossessed ... as a result of past racially discriminatory laws or practices’ before that person is entitled to relief. As noted in paragraph 22, this is the constitutional provision repeated in the terms of the Act. The next question that arises is whether the dispossession that took place was a dispossession ‘as a result of past racially discriminatory laws or practices’. We have seen that the Precious Stones Act and the Proclamations issued there under failed to recognise the indigenous law ownership of the Richtersveld Community and rendered its occupation of the land unlawful. They excluded the Community from the subject land and from the right to exploit its mineral wealth.
93. The state implemented the Precious Stones Act, would not allow the members of the Richtersveld Community onto the land and ultimately fenced off the subject land. The certificate of reservation in effect meant that the members of the Richtersveld Community were restricted to the land reserve, and thus it constituted part of the process of their exclusion from the subject land.
94. Owners of land whose ownership was registered in the deeds office and on which state alluvial diggings were established were treated differently from those who held their land according to indigenous law, where no system of registration was required. Registered owners were allowed to have access to the land, to keep their homesteads and to share in the mineral wealth of the land. More specifically, they were entitled, amongst other things, to select between 50 and 400 claims free of charge depending on their location, half the licence money and the protection of their homesteads and water rights.
95. Accordingly, the Precious Stones Act and its Proclamations failed to recognise indigenous law ownership and treated the subject land as state land. On the other hand, registered ownership was recognised, respected and protected. For the most part, whites held their land under the system of registered ownership, though there were some black people and black communities who did acquire title of this sort.
96. However, given that indigenous law ownership is the way in which black communities have held land in South Africa since time immemorial, the inevitable impact of the Precious Stones Act’s failure to recognise indigenous law ownership was racially discriminatory against black people who were indigenous law owners. The laws and practices by which the Richtersveld Community was dispossessed of the subject land accordingly discriminated against the Community and its members on the ground of race.
97. In this regard we, therefore, disagree with the conclusion of the LCC that neither the Proclamations nor the Precious Stones Act were racially discriminatory laws. In dismissing the claim of the Richtersveld Community, the LCC relied on its previous decision in Slamdien which determined that racially discriminatory laws or practices, for the purposes of section 25(7) of the Constitution and section 2 of the Act, must be ‘those that sought specifically to achieve the (then) ideal of spatial apartheid, with each racial and ethnic group being confined to its particular racial zone’. The SCA held that this test was unduly restrictive. We agree.
98. In our view, although it is clear that a primary purpose of the Act was to undo some of the damage wreaked by decades of spatial apartheid, and that this constitutes an important purpose relevant to the interpretation of the Act, the Act has a broader scope. In particular, its purpose is to provide redress to those individuals and communities who were dispossessed of their land rights by the government because of the government’s racially discriminatory policies in respect of those very land rights.
99. In this case, the racial discrimination lay in the failure to recognise and accord protection to indigenous law ownership while, on the other hand, according protection to registered title. The inevitable impact of this differential treatment was racial discrimination against the Richtersveld Community which caused it to be dispossessed of its land rights. Although it is correct that the Precious Stones Act did not form part of the panoply of legislation giving effect to ‘spatial apartheid’, its inevitable impact was to deprive the Richtersveld Community of its indigenous law rights in land while recognising, to a significant extent, the rights of registered owners. In our view, this is racially discriminatory and falls squarely within the scope of the Act. It follows that the test applied in Slamdien is too narrow in this regard.
For the First Appellant:
M Madlanga SC, S A Nthai, A Schippers, instructed by E Moosa, Wagley & Peterson, Cape Town
For the Second Appellant:
R C Hiemstra SC, N Bawa, M V Combrink, instructed by the State Attorney, Cape Town
For the Respondent:
W Trengove SC, P Hathorn, instructed by Legal Resources Centre, Cape Town
Following the Richtersveld Community’s success in the Constitutional Court, the case was remitted to the LCC to determine the kind of restitutionary remedy to which the Richtersveld Community is entitled. Section 1 of the Act provides that restitution may be the restoration of a right in land or equitable redress. The Richtersveld Community argued that they are entitled to restoration of their ownership of the subject land, as well as compensation for the value of minerals which have been taken from it, and compensation for the environmental damage done to the land because of mining activities. Alexkor Limited argued that, as a matter of statutory interpretation, s 1 of the Act permits either restoration of rights in land, or compensation, but not both. On 29 April 2004, the LCC declared that a Court may order both restoration and compensation in order to satisfy a person or group’s right to restitution under the Act, and further, that compensation may include an amount for the environmental damage done to the land after dispossession (see Richtersveld Community v Alexkor Limited (unreported, Land Claims Court of South Africa, LCC 151/98, 29 April 2004). A further trial will commence soon to determine the exact nature of the Richtersveld Community’s right to restitution.