Patterson, Stephanie --- "The Foundations of Aboriginal Title in South Africa?: The Richtersveld Community v Alexkor Ltd Decisions" [2004] IndigLawB 18; (2004) 5(30) Indigenous Law Bulletin 17

The Foundations of Aboriginal Title in South Africa?

The Richtersveld Community v Alexkor Ltd Decisions[1]

by Stephanie Patterson

Introduction

A lack of control over the ownership and occupation of land by black South Africans was a hallmark of the apartheid era and the colonial period which preceded it. Beginning with the arrival of the Dutch at the Cape in 1652, black South Africans’ rights to land were consistently ignored or legislated out of existence. A key event in the history of South African land rights was the passing of the Natives Land Act in 1913. This Act prevented blacks from owning or leasing land outside areas designated as African reserves, which constituted just thirteen percent of South Africa’s land. Following South Africa’s first democratic elections in 1994, the Government of National Unity was required to draft and pass a final Constitution[2]. One of the rights included in the new Constitution was a right to land restitution and the Restitution of Land Rights Act (the Restitution Act) was passed in 1994 to give effect to this. Section 2(1) of the Restitution 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.

One kind of claim said to be excluded from the restitution process were claims based on the doctrine of aboriginal title.[3] Section 2 of the Restitution Act provides that restitution is only available to those claimants who were dispossessed of their rights in land after 19 June 1913. Both the Government and commentators argued that the terms of the Restitution Act, with the 1913 cut-off date, would exclude claims based on aboriginal title.[4] However in December 1998 the Richtersveld people, from the isolated northwestern corner of the Northern Cape, lodged a claim under the Restitution Act. This claim was based on an argument that until after 1913 they held aboriginal title to land of which they were subsequently dispossessed. Thus for the first time, and despite the efforts of the Government to exclude such claims, the South African courts were forced to confront the issue of aboriginal title.

The Richtersveld Decisions

The Richtersveld people are part of a larger group, the Nama people, who are descended from Khoikhoi- and San-speaking people. The area claimed had been inhabited by Khoikhoi and San people long before the first colonists, the Dutch, arrived at the Cape in 1652. In 1847, the British Crown annexed the area including land which would become the subject of the Richtersveld claim (the subject land). Following annexation, the Richtersveld people continued to live on land they had always lived on until 1925, when diamonds were discovered. From that time, the Government issued licences to dig for diamonds to third parties and as more licences were awarded, the Richtersveld people were gradually denied access to more and more of the subject land.[5] In 1957, a fence was erected around all of the subject land, permanently denying the Richtersveld people access to any of the subject land. Between 1989 and 1994 all of the subject land was vested in Alexkor Limited, a Government-owned company which continues to mine for diamonds on the subject land.[6]

In the Land Claims Court[7], the Court of first instance for claims under the Restitution Act, the Richtersveld people argued that when their dispossession began in the 1920s, they had a right in land based on aboriginal title. They argued that this title survived annexation and existed as a burden on the Crown’s title. Their dispossession, founded upon a notion that the Richtersveld people were too uncivilised to have recognisable legal rights, was racially discriminatory.

Gildenhuys AJ comprehensively rejected these arguments. First, he found that it was beyond the jurisdiction of the Land Claims Court (being a Court established by statute) to develop South African common law to include the doctrine of aboriginal title. Secondly, Gildenhuys AJ relied on the infamous statement of the Privy Council in In re Southern Rhodesia that “some tribes are so low in the scale of social organisation”[8] as to be incapable of having property rights in order to find that at the time of annexation the subject land became Crown land because the colonists did not recognise the Richtersveld people’s rights in it.

After this disappointing decision, the Richtersveld people appealed to the Supreme Court of Appeal (SCA) which unanimously overturned all of the critical findings made by the Land Claims Court.[9] The Court found that at the time of annexation, the Richtersveld people had a communal ‘customary law interest’ whose source was “the traditional laws and customs of the Richtersveld people.”[10] The Court noted the similarity between this ‘customary law interest’ and an aboriginal title right, saying:

Like the customary law interest that I have found was held by the Richtersveld community, aboriginal title is rooted in and is the ‘creature of traditional laws and customs’ (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 para 103)[11].

The Court then cited passages from Brennan J’s judgment in Mabo v Queensland (No 2)[12] which contained two important principles. The first was Brennan J’s adoption of the principle that a change in sovereignty alone does not destroy pre-existing property rights. The second was Brennan J’s rejection of the principle expressed in In re Southern Rhodesia that some Indigenous people are not sufficiently civilised to have recognisable property rights. The Court adopted these principles and found that the Richtersveld people’s customary law rights in the subject land survived annexation. Finally, the Court held that the Government’s failure to recognise the Richtersveld people’s rights in land (on the ground of ‘insufficient civilisation’) after diamonds were discovered was racially discriminatory. Thus the Richtersveld people were entitled, under the Restitution Act, to restitution of their rights in land.

Alexkor Ltd appealed against the Supreme Court of Appeal’s decision to the Constitutional Court. On 14 October 2003, the Constitutional Court affirmed the decision of the SCA.[13] The Court agreed with the SCA’s characterisation of the Richtersveld people’s right in land as a ‘customary law interest’ whose content was to be determined by reference to “the history and the usages of the community of Richtersveld”.[14] Importantly, the Constitutional Court agreed with the adoption by the SCA of the rule accepted in other aboriginal title jurisdictions that customary law rights in land survive the acquisition of sovereignty by a colonial power.[15] The Court also agreed with the SCA that the failure of the State to recognise the Richtersveld people’s rights to land when granting mining licences over the subject land was racially discriminatory and thus entitled the Richtersveld people to a remedy under the Restitution Act.

The Foundations of Aboriginal Title in South Africa?

In finding that the Richtersveld people had a right to restitution, the SCA and the Constitutional Court adopted several principles which are fundamental to an aboriginal title claim. First, the decisions demonstrate that South African law is capable of recognising rights to land which have their source in the traditional laws and customs of Indigenous people. Secondly, the decisions adopt into South African law the rule that a mere change in sovereignty does not disturb pre-existing rights to land. The decisions in the Richtersveld cases suggest that the first steps toward recognising that aboriginal title forms a part of South African law have already been taken. They therefore provide encouragement to potential claimants whose claims would not fit within the terms of the Restitution Act that they stand a good chance of success if they choose to pursue a common law aboriginal title claim in order to vindicate their land rights.

Stephanie Patterson is a law student at the University of New South Wales

[1] Richtersveld Community v Alexkor Ltd and Anor 2001 (3) SA 1293 (Land Claims Court, 22 March 2001), Richtersveld Community v Alexkor Ltd & Anor (unreported, Supreme Court of Appeal, 24 March 2003) and Alexkor Ltd v Richtersveld Community (unreported, Constitutional Court of South Africa, 14 October 2003).

[2] Constitution Act 1996.

[3] In South Africa, as in Canada, that phrase ‘aboriginal title’ is used instead of ‘native title’.

[4] See Department of Land Affairs, White Paper on South African Land Policy, (1997); Murphy J, “The Restitution of Land after Apartheid: The Constitutional and Legislative Framework”, and Visser D & Roux T, “Giving Back the Country: South Africa’s Restitution of Land Rights Act 1994 in Context”, both in Rwelamira M & Werle G (eds), Confronting Past Injustices: Approaches to Amnesty, Punishment, Reparation & Restitution in South Africa and Germany, [Durban: Butterworths, 1996], at 90.

[5] These facts are drawn from the Land Claims Court decision: Richtersveld Community v Alexkor Ltd and Anor 2001 (3) SA 1293 (LCC) at [28]-[29].

[6] ibid at [30]-[31].

[7] above n 6.

[8] [1919] AC 211 at 233-4.

[9] Richtersveld Community v Alexkor Ltd & Anor (unreported, Supreme Court of Appeal, 24 March 2003).

[10] ibid at [28].

[11] ibid at [37].

[12] [1992] HCA 23; (1992) 175 CLR 1.

[13] Alexkor Ltd v Richtersveld Community (unreported, Constitutional Court of South Africa, 14 October 2003).

[14] ibid at [60].

[15] ibid at [69].