Richtersveld Community and Others v Alexkor Ltd and Another (488/2001) [2003] ZASCA 14; [2003] 2 All SA 27 (SCA) (24 March 2003)

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[2003] ZASCA 14
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Richtersveld Community and Others v Alexkor Ltd and Another (488/2001) [2003] ZASCA 14; [2003] 2 All SA 27 (SCA); 2003 (6) SA 104 (SCA); 2003 (6) BCLR 583 (SCA) (24 March 2003)

REPORTABLE
IN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO. 488/2001
In the matter between:
THE RICHTERSVELD COMMUNITY AND OTHERS Appellants
and
ALEXKOR LIMITED
First
Respondent
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA Second Respondent
___________________________________________________________________________
Before: VIVIER ADP, HARMS, SCOTT, FARLAM &
MTHIYANE JJA
Heard: 17 & 18 FEBRUARY 2003
Delivered: 24 MARCH 2003
Restitution of Land Rights Act 22 of 1994
.
Richtersveld community entitled to restitution of customary law
interest in land.
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
VIVIER ADP
VIVIER ADP
[1] This is an appeal, with the leave of
this Court, against the dismissal by the Land Claims Court ('the
LCC') of the appellants'
claim for restitution of a right in land in
terms of s 2(1) of the Restitution of Land Rights Act 22 of 1994
('the Act'). The
judgment of the LCC has been reported as
Richtersveld Community and Others v Alexkor Ltd and Another
2001 (3) SA 1293
(LCC) and its judgment refusing leave to appeal as
Richtersveld Community and Others v Alexkor Ltd and Another
[2001] 4 All SA 563
(LCC). References to its judgment will be to the
main judgment.
[2] The appellants are communities
consisting of the inhabitants of four villages in the Richtersveld,
which is the name given to
a vast territory of some half a million
hectares situated in the north-western corner of the Northern Cape
Province with a total
population of only about 3500 people. During
the middle of the 19
th
century the Reverend Hein of the
Rhenish Mission Society, who worked among the Richtersveld people at
the time, gave the territory
its name after a German missionary, Dr
Richter, who had visited the area in the early part of that century.
The four villages are
Kuboes and Sanddrift in the north and
Lekkersing and Eksteenfontein in the south. The claim is for the
restitution of a narrow strip
of land comprising seven farms
stretching for more than 120 km along the west coast of the
Richtersveld from the mouth of the
Gariep River (formerly the Orange
River) in the north to just below Port Nolloth in the south ('the
subject land'),
1
but excluding the area occupied by Port Nolloth. It is about
85 000 ha in extent. In the mid 1920's alluvial diamonds
were
discovered near Alexander Bay after which alluvial diggings were
established on the subject land. During 1994 the Government, the
second respondent, granted the subject land, including all mineral
rights, in terms of a deed of grant ('grondbrief'), to Alexkor
Ltd,
the first respondent, in which the State was the sole shareholder.
2
Immediately to the east of the subject land are some farm properties
(which were referred to as the corridor farms) and further east
adjoining them is the Richtersveld Reserve, an area of some 300 000
hectares, in which the four villages are situated. The Richtersveld
Reserve was established by a certificate of reservation issued on 5
February 1930 in terms of s 6 of the Crown Lands Disposal
Act 15
of 1887 (Cape).
3
[3] The first
appellant claims that it constitutes the Richtersveld community as a
whole. The second to fifth appellants constitute
the respective
communities who inhabit the four villages of Kuboes, Sanddrift,
Lekkersing and Eksteenfontein. As an alternative to
the community
claims a large number of persons brought individual restitution
claims. They have not appealed. This appeal accordingly
only concerns
the community claims to restitution.
[4] In order to qualify for restitution of
a right in land a claimant must meet the requirements of s 2 of
the Act. By agreement
between the parties only the requirements of
s 2(1) were decided by the Court
a quo
. Other issues
arising from the Act, such as whether the appellants have received
some or other consideration for any dispossession,
and the form of
restitution were to stand over for later adjudication, depending upon
the outcome on the s 2(1) issues.
4
The relevant portion of that sub-section provides
'A person shall be entitled to restitution of a right in
land if —
(a) .......
(b) .......
(c) ........
(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 s 2(1) a community claimant accordingly
has to establish:
(a) that it is a community or part of a community as defined in the
Act;
(b) that the community possessed 'a right in land' as defined in the
Act;
(c) that they were dispossessed of such right in the subject land
after 19 June 1913;
(d) that the dispossession occurred 'as a result of past racially
discriminatory laws or practices';
(e) that the claim was lodged not later than 31 December 1998.
It was always common cause that the
claims were lodged before 31 December 1998 but the other four
requirements were in issue before
the LCC.
ARE THE
APPELLANTS COMMUNITIES AS DEFINED BY THE ACT?
[5] The Act
defines a 'community' as a group of persons whose rights in land are
derived from shared rules determining access to land
held in common
by such group (s 1 sv 'community'). It was no longer an issue in this
Court that the first appellant constitutes a
community for purposes
of the Act and the findings of the LCC (at para 66 to 75 of the
judgment) were accepted as correct. Although
the other appellants, as
'part of a community' constituting the first appellant, are similarly
entitled to bring restitution claims,
the first appellant's success
or failure disposes of the other four appellants' rights and it is
not necessary to have further regard
to their claims. I will
consequently limit my discussion to the case of the first appellant
and will refer to it as 'the appellant'.
It was also not disputed
that the appellant community has maintained its identity as a people
and the essential attributes and characteristics
of their forebears
and the society and culture of earlier times.
[6] That
leaves for consideration the other three requirements, namely (b),
(c) and (d).
SUMMARY OF
THE FINDINGS OF THE LCC
[7] The LCC
found that the appellant's forebears held a right in the subject land
based on 'beneficial occupation for a continuous
period of not less
than 10 years' before the dispossessions relied upon, which allegedly
took place after 1913 (at para 65). The
LCC, however, held that any
rights the appellant's forebears might have held in the subject land
were extinguished when the entire
Richtersveld was annexed by the
British Crown on 23 December 1847 to become part of the Cape Colony
(at para 37-43) and that the
land became Crown land upon annexation.
The LCC further held that insofar as the appellant was later
dispossessed of any rights in
the subject land, such dispossession
was not the result of 'past racially discriminatory laws or
practices' and consequently not
of a kind that can found a claim for
restitution under s 2(1) of the Act (at para 76-96).
SUMMARY OF THIS JUDGMENT
[8] As will become clear in the course of this judgment
the material findings of the LCC cannot be supported, even though its
exposition
of the underlying facts is generally beyond reproach. In
our view the undisputed facts of this case show that the Richtersveld
community,
living in the margin of history on the edge of the
country, was largely ignored by successive governments although these
governments
always recognised that the community had some kind of
exclusive entitlement to the land. In the result they were left in
undisturbed
possession of the land which was never taken from them
for settling colonists. This makes this case unique.
This Court's principal findings are the following:
1. The Richtersveld community was in exclusive
possession of the whole of the Richtersveld, including the subject
land, prior to annexation
by the British Crown in 1847.
2. The Richtersveld community's rights to the land
(including precious stones and minerals) were akin to those held
under common law
ownership. These rights constituted a 'customary
law interest' and consequently a 'right in land' as defined in the
Act.
3. These rights survived the annexation and the LCC
erred in finding that the community had lost its rights because it
was insufficiently
civilised to be recognised.
4. When diamonds were discovered on the subject land
during the 1920's the State ignored the Richtersveld community's
rights and,
acting on the premise that the land was Crown land,
dispossessed the Richtersveld community of its rights in the land in
a series
of steps amounting to 'practices' as defined in the Act and
culminating in the grant of full ownership of the land to Alexkor.
5. These practices were racially discriminatory because
they were based upon the false, albeit unexpressed premise that,
because of
the Richtersveld community's race and lack of
civilization, they had lost all rights in the land upon annexation.
The result of these findings is that the Richtersveld
community is entitled to restitution of the subject land and that the
appeal
has to succeed.
RIGHT IN
LAND
[9] A 'right
in land' is defined in the Act as
'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'.
It will be
seen that any right in land, whether under common law, statute or
customary law, is included in the definition. Rights
in land are not
limited to those that are registered and rights that are not capable
of registration are also included. The words
'may include' in the
definition, which are followed by certain specified interests, extend
the definition but do not necessarily
limit it to those specified
interests. From the nature of the specified interests one must
conclude that personal rights and interests,
which are not real
rights or even rights in law at all, also qualify as 'rights in
land'. The definition includes 'a customary law
interest'. An
interest in land held under a system of indigenous law is thus
expressly recognised as a 'right in land', whether or
not it was
recognised by the civil law as a legal right.
THE RIGHT
IN LAND CLAIMED
[10] The
appellant contended that the community, in addition to the right to
beneficial occupation for 10 years found by the LCC,
possessed one or
other of the following rights in the subject land at the cut-off date
of 19 June 1913: (a) ownership, (b) the right
to exclusive beneficial
occupation and use or (c) the right to use the subject land for
certain specified purposes, namely habitation,
cultural and religious
practices, grazing, cultivation, hunting, fishing, 'water-trekking'
and the harvesting and exploitation of
natural resources.
[11] The
appellant contended that the community had these rights on one of
three alternative bases but for purposes of this judgment
it is only
necessary to mention two of them: First, it possessed these rights
under its own indigenous law and when the Richtersveld
was annexed,
the common law of the Cape Colony was extended to it; under that law
or international law the existing land rights of
the inhabitants of
the Richtersveld in terms of their own indigenous law were recognised
and protected. They contended in the alternative
that the rights that
the Richtersveld inhabitants held in the subject land under their own
indigenous law constituted 'customary
law interests' and as such
'rights in' land for purposes of the Act even if these rights were
not recognised and protected under
the common law of the Cape Colony.
THE
EVIDENCE
[12] At the trial a number of experts
and lay witnesses testified on behalf of the appellant.
5
No evidence was led on behalf of the respondents. Evidence was given
by three anthropologists and an archeologist for the appellant
concerning the history of the appellant communities, the land they
and their forebears occupied and their traditional laws, customs
and
practices forming part of their distinctive aboriginal culture. They
were Mr E A Boonzaier, Prof A B Smith, Prof W P Carstens
and Ms S M
Berzborn. I should immediately point out that very little of the
expert evidence was disputed at the trial, and that such
evidence as
was initially in contention was no longer questioned at the hearing
of the appeal.
THE PERIOD
PRIOR TO ANNEXATION
[13] In order
to understand the basis of the appellant's claim and to decide the
different issues it is necessary to deal with the
history of the land
and its people. In this regard it is convenient to deal with
different stages of the history. The first question
is whether the
appellant possessed any rights in the subject land at the time of
annexation. It does not appear that the LCC considered
this aspect as
such. Instead it considered another question, namely whether after
annexation the land was
res nullius
and whether the appellant
acquired ownership of the land by means of occupation (at para 37).
[14] At the
time of annexation in December 1847 a group of people known as the
Richtersveld people occupied the whole of the Richtersveld,
including
the subject land. The Richtersveld formed part of Little Namaqualand,
as the area immediately south of the Gariep River
in the northern
part of the Cape Colony was called. The area north of the Gariep
River was referred to as Great Namaqualand. The
original inhabitants
of Little Namaqualand had lived there since long before the Dutch
colonisation of the Cape in the 17
th
century and
archeological discoveries showed a pastoralist presence in the
Richtersveld as early as 700 AD. Prof Smith testified
that the core
population of the Richtersveld had been there for over 1 000
years and had not changed.
[15] The
Richtersveld people were a discrete ethnic group who identified
themselves and were identified as the people of Captain Paul
(Bierkaptein) Links. They consisted of a number of family clans, each
headed by a chief. The clans together formed the tribe, which
was
headed by a captain, and a 'raad' (council) comprising the
constituent clans. They considered the Richtersveld to be their land
held by them in common.
[16] The
Richtersveld people are a sub-group of the Nama people who in turn
are generally considered by anthropologists to be a sub-group
of the
Khoi (also called Khoikhoi and, in former times, Hottentot) people.
The Khoi are in turn seen as a sub-group within the larger
category
of Khoisan peoples, which include both Khoi and San (Bushmen).
[17] The
Richtersveld people were formerly part of the Hobesen tribe under
Captain Kupido Witbooi. At the beginning of the 19
th
century he claimed most of Little Namaqualand as his domain. In order
to rule the vast land efficiently, Witbooi divided the territory
into
three sections. He ruled the eastern section and appointed two
assistant captains for the other two sections, Abraham Vigiland
for
the central section that later became known as Steinkopf, and Paul
(Bierkaptein) Links for the western section, subsequently
named the
Richtersveld. The eastern section under Kupido Witbooi had its head
station at Pella and was later called Bushmanland.
By the mid 19
th
century the Richtersveld people had assimilated some San and some
Baster people but the group as a whole was predominantly of Khoi-Nama
descent. The Basters were of mixed descent mainly from European
fathers and San or Khoi mothers. The Richtersveld people had their
main settlement at a mission station of the Rhenish Mission Society
at Kuboes under the Reverend Hein, which was subordinate to the
principal mission station at Steinkopf under the Reverend Brecher.
[18] Each of
the said three Nama-Khoi tribes formed a discrete entity with its own
social and political structure. The Richtersveld
people shared the
same culture, including the same language, religion, social and
political structures, customs and lifestyle derived
from their
Khoi-Nama forefathers. 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.
They furthermore mediated in the resolution
of internal disputes and
acted as a court of law in the adjudication of criminal and civil
matters. Schapera,
The Khoisan Peoples of South Africa
, 333
describes the 'raad' as the tribal executive. As I will show later
the captain and his 'raad' acted and spoke on behalf of the
Richtersveld people in dealing with the Colonial Government and
others.
[19] The
customary rules of the Richtersveld people were not limited to their
social and political structures or their occupation
and use of the
land. They also included rules relating to criminal and civil law
such as a prohibition of adultery, assault and theft,
the recognition
of private property rights in respect of all movable property, an
obligation to pay compensation for damage to private
property and
rules of inheritance.
[20] The
Richtersveld people had always been a herder group with a
semi-nomadic lifestyle, necessitated by the arid, semi-desert
environment
and the very low and irregular rainfall in the region.
The establishment of village settlements around secure water sources
was,
however, not uncommon. The LCC described the Richtersveld
people's movement patterns as follows (para 58):
'It is clear that there was a seasonal cycle in the
movement patterns. In the dry, hot summers when livestock required
water every
day or two, the herders tended to graze their cattle
where water was available along the banks of the Gariep River and at
other secure
water sources. In the winter, when the livestock were
less water-dependent, the herders moved further afield to their
winter pastures
in the mountainous areas and in the sandveld so as to
preserve the grazing close to their secure water sources for the
summer.'
[21] With regard to the exclusivity of the
Richtersveld people's use and occupation of the subject land at the
time of annexation
it must be accepted that some San people were
present in the Richtersveld in pre-colonial times. The explorer
Robert Jacob Gordon,
6
who travelled with William Paterson
7
up the Richtersveld coast in August 1779, described how they came
across 'remains of the huts of wild Bushmen and whale bones and
shells' and saw on the beach 'footprints of people and a seal skin
freshly cut off' which one of his party said were the footprints
of
Bushmen who had come there to hunt.
In
addition some Baster immigrants arrived in the Richtersveld after
1830. By 1847 they had settled in the Richtersveld but they had
done
so with the permission of Captain Paul (Bierkaptein) Links. According
to both Boonzaier and Carstens the Basters, like the San,
were over
time gradually absorbed into the Richtersveld community, partly
through intermarriage but also by accepting the local norms
and
customs of the community, thereby losing their identity as a separate
group. There was no evidence that at the time of annexation
the
Richtersveld was occupied by Basters other than those who did so with
the permission of Captain Links and those who had been
incorporated
into the local community. The Trekboere, the descendants of European
settlers, only started settling in the Richtersveld
during the second
half of the 19
th
century. They did so, however, with the
permission of the Richtersveld 'raad' and subject to the payment of
grazing fees. This was
a practice consistently followed well into the
20
th
century.
[22] At the time of annexation the
Richtersveld people had for a long time enjoyed exclusive beneficial
occupation of the whole of
the Richtersveld in the course of their
semi-nomadic existence. Prof Carstens testified that by the mid 19
th
century the authority of Captain Paul (Bierkaptein) Links and his
'raad' over the whole of the Richtersveld was universally recognised
both by the indigenous inhabitants and others. The evidence of Mr
Boonzaier was to the same effect. Ms Berzborn testified that in
the
19
th
century the Richtersveld people regularly occupied
and used the coastal region stretching from the Gariep River mouth in
the north
to Obiep in the south, which is inside the subject land.
She identified a large number of places in the subject land that were
given
as the places of birth or baptism of members of the
Richtersveld community in the register of the church at Kuboes.
RIGHT IN LAND (CUSTOMARY LAW INTEREST) AS AT
ANNEXATION
[23] With regard to the Richtersveld
people's occupation of the subject land two aspects need to be
stressed. First, uninterrupted
presence on the land need not amount
to possession at common law for the purpose of an indigenous law
right of occupation. Second,
a nomadic lifestyle is not inconsistent
with the exclusive and effective right of occupation of land by
indigenous people. Cf McNeil,
Common Law Aboriginal Title
(1989) 202-204;
Mabo and Others v The State of Queensland
(No.
2) (1992) 175 CLR (HC of A) 188-189;
Delgamuukw and Others v
British Columbia and Others
(1997) 153 DLR (4
th
) 193
(SCC) para 151 and Bennett and Powell, 'Aboriginal Title in South
Africa Revisited'
(1999) 15
SAJHR
449
at 465.
[24] It follows that the fact that the
Richtersveld people's use of the subject land may only have been
seasonal, and may have been
sparse and intermittent due to the
exigencies of their survival, does not mean that they did not have
the exclusive beneficial occupation
of the land, especially since the
community had a strong sense of legitimate entitlement to the land
(cf.
Hamlet of Baker Lake v Minister of Indian Affairs and Others
(1979) 107 DLR (3d) 513 at 544), which others respected. I have
already referred in this regard to the evidence that the Richtersveld
people regarded the subject land as their own and that strangers
could only use and occupy the land with their permission. Even though
the Richtersveld people may therefore not have occupied every bit of
the subject land, and even if other indigenous people sometimes
visited the territory, their exclusive beneficial occupation of the
entire area was not affected. In this regard Lamer CJC said the
following in
Delgamuukw v British Columbia
,
supra
, para
156:
'[T]he test required to establish exclusive occupation
must take into account the context of the aboriginal society at the
time of
sovereignty. For example, it is important to note that
exclusive occupation can be demonstrated even if other aboriginal
groups were
present, or frequented the claimed lands. Under those
circumstances, exclusivity would be demonstrated by "the
intention and
capacity to retain exclusive control" (McNeil,
Common Law Aboriginal Title
,
supra
, at p. 204). Thus,
an act of trespass, if isolated, would not undermine a general
finding of exclusivity, if aboriginal groups intended
to and
attempted to enforce their exclusive occupation. Moreover, as
Professor McNeil suggests, the presence of other aboriginal
groups
might actually reinforce a finding of exclusivity. For example,
"[w]here others were allowed access upon request, the
very fact
that permission was asked for and given would be further evidence of
the group's exclusive control" (at p. 204).'
[25] What rights did the Richtersveld
people then hold in the subject land at the time of annexation? The
LCC found, as indicated
above, that the appellant held only a right
to 'beneficial occupation for a continuous period of 10 years' during
the 20
th
century. It further held that no 'customary law
interest' in land within the definition of 'right in land' in the Act
had been proved.
But the customary right it had in mind was something
completely different from that under consideration here. It
considered whether
at the time of dispossession (post 1913) 'there
existed a custom which had become applicable law, in terms of which
the State was
obliged to recognise rights of the first plaintiff over
the subject land' (para 48).
[26] During
argument in this Court it was conceded on behalf of both respondents
that at the time of annexation the Richtersveld people
had a
customary law interest under their indigenous customary law entitling
them to exclusive occupation and use of the subject land
and that
this interest was akin to the right of ownership held under common
law.
[27] In my view counsel were driven to this
concession by the uncontested facts of this case. Briefly stated, our
law requires for
proof of a custom that it must be certain, uniformly
observed for a long period of time and reasonable. See Voet
1.3.27-35;
Van Breda and Others v Jacobs and Others
1921 AD
330.
In this case Solomon JA referred at 334 to the requirement of
English law that the custom must be immemorial, as opposed to
Roman-Dutch
law, which merely requires that the custom must be an old
one, and continued as follows:
'In practice, however, there is no substantial
difference between the two systems. For in the English Courts
"evidence showing
continuous user as of right as far back as
living testimony can go is regarded as raising the presumption that
the custom existed
at that remote date." Further "if proof
of facts be given from which it can be inferred that user
corresponding to the
alleged custom in fact existed at some time
past, the existence of the custom from the remoter era will be
inferred" (Halsbury,
para 424, vol 10). According to Voet
(1.3.29), it was necessary to prove a long lapse of time, which is
variously expressed by the
terms "ancient use", "old
age", "long custom", "custom observed for many
years", &c.
And he observes that as the number of years is
nowhere definitely stated, it must be left to the discretion of a
prudent judge. In
this view Merula (
Manier van Procederen
),
vol. 1.1.1.5.1 and 4, agrees, and there, I think, we may be content
to leave the question of age, as regards which there appears
to be no
substantial difference between the English and the Roman-Dutch law.'
[28] The
undisputed evidence in this case shows that at the time of annexation
the Richtersveld people had enjoyed undisturbed and
exclusive
occupation of the subject land for a long period of time. The right
was rooted in the traditional laws and custom of the
Richtersveld
people. The right inhered in the people inhabiting the Richtersveld
as their common property, passing from generation
to generation. The
right was certain and reasonable. The inhabitants and strangers alike
were aware of the right and respected and
observed it.
[29] I
accordingly conclude that at the time of annexation the Richtersveld
people 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 (cf P.J. Steytler
The
Renaissance of Traditional Ownership of Land
, Butterworths
Property Law Digest (November 2000) 3 at 9-10). (I shall in due
course return to the question whether it included the
right to the
mineral and other natural resources on the subject land.)
THE ANNEXATION
[30] The British Crown acquired the
Richtersveld by Proclamation on 17 December 1847. The preamble reads
as follows:
'Whereas, by reason as well of the causes as the result
of the present hostilities, carried on in certain territories to the
Eastward
of this Colony, all Treaties and Conventions formerly
subsisting between Her Majesty the Queen and the Chiefs of the Gaika,
Congo,
T'slambie and Tambookie Tribes of Kaffirs, and all others,
have become, and now are, wholly abrogated and annulled; and,
whereas,
it is alike just the necessary, so to improve the results of
the said hostilities, that the lives and properties of Her Majesty's
Subjects resident in the Eastern Districts of this Settlement may, in
future, be better secured, the recurrence of unprovoked and
disastrous wars be prevented, and plunder and depredation in time of
peace, be checked and controlled; and whereas one means of attaining
these important objects will be to substitute for the present
boundary between the Colony and the Kaffir tribes aforesaid, another
and more eligible line; and whereas the Northern limits of the
Colony, as the same purport to be settled by the Proclamation of then
Government, bearing date the 21
st
February 1805, are ill
defined and uncertain, and it is expedient to adopt in the direction
a clearer and better boundary.'
[31] The
Proclamation defined the new boundary of the Cape Colony and declared
that all territory to the south or west of the new
boundary –
'is hereby annexed to and incorporated with the Colony
of the Cape of Good Hope as part and parcel thereof'.
It further declared that –
'any right or title to the exclusive occupation of any
part of the said territory by any native chief or people, granted or
conceded
by any such treaties or conventions as aforesaid, has wholly
ceased and determined, and shall not be revived'.
[32] In 1842
the Reverend Brecher of Steinkopf addressed a memorial to the
Colonial Government in which he objected to the planned
extension of
the boundary of the Cape Colony to the Gariep River. The Colonial
Government replied on 14 September 1842 that it had
–
'no intention of extending the boundaries of the colony
or of interfering with the rights of those inhabiting the country
beyond the
boundary'.
[33] The intention not to extend the
boundaries of the Cape Colony did not last long. Nevertheless, the
annexation of the Richtersveld
in 1847 was only proceeded with after
a process of consultation between the Colonial Government and the
recognised political leaders
of Little Namaqualand, including Captain
Paul (Bierkaptein) Links of the Richtersveld people, and after these
leaders had consented
to the incorporation of their territories into
the Cape Colony. The Civil Commissioner for Clanwilliam, Mr Van
Ryneveld, was sent
to Little Namaqualand to consult with Captains
Paul Links and Abraham Vigiland about the proposed incorporation of
the Richtersveld
and Steinkopf into the Cape Colony. It appears from
a petition to the Colonial Government by the Reverend Brecher dated
12 June 1891
that, although these two leaders originally opposed the
incorporation, they granted their consent after discussing the matter
with
the Reverend Brecher on condition that the Colonial Government
protected 'ons en ons volk onzen van ouds af bewoon den grond'. In
another letter he stated that the captains who ruled the land had
said that –
'they were willing to become British subjects, only with
this condition, that the Government must please protect them [in]
their formerly
occupied land against encroachment of people not
belonging to them in order to lead a quiet and honest life'.
DID THE CUSTOMARY LAW INTEREST SURVIVE THE
ANNEXATION?
[34]
THE TERMS OF THE PROCLAMATION:
Counsel for the first respondent submitted that it was clear from the
wording of the second quotation above from the annexation
proclamation
that no existing rights in land were recognised by the
British Crown. I do not agree. The words 'any right or title to the
exclusive
occupation' clearly refer to the treaties and conventions
set out in the preamble and do not purport to terminate or assert any
other
right over the annexed territory of the Richtersveld people.
[35]
THE
FINDING OF THE LCC:
As I have pointed out, the LCC held that no
indigenous land rights survived the annexation. It held (para 37-41)
that the Colonial
Government regarded the Richtersveld as
terra
nullius
because the inhabitants were insufficiently civilised and
'simply assumed sovereignty of, and full ownership over, the entire
Little
Namaqualand (including the subject land)'. As I will show, the
LCC erred in finding that the Richtersveld was
terra nullius
and that it was so regarded by the Colonial Government, or that the
land became Crown land.
[36]
DOCTRINE OF
ABORIGINAL OR NATIVE RIGHTS:
Before proceeding, it is necessary
to refer briefly to the doctrine of aboriginal title relied upon by
the appellant. It was submitted
that our common law should be
developed in the same way that the courts have done in some other
countries with a colonial history.
The courts in the United States,
Canada, Australia
8
and New Zealand have developed their common law to protect rights to
occupation and use of land by indigenous communities, labelled
aboriginal or native rights, by recognising the rights of these
communities to continue to occupy and use their communal lands as
their forebears had done even when it was not underpinned by any
rights at common law.
[37] 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). The only
requirement for the acquisition of aboriginal title is that the
indigenous community must have had exclusive
occupation of the land
at the time when the Crown acquired sovereignty. See
Calder v
Attorney-General of British Columbia
(1973) 34 DLR (3d) 145 (SCC)
at 193-195.
[38] According to the doctrine of
aboriginal title the antecedent rights and interests in land held by
indigenous inhabitants survive
the coloniser's acquisition of
sovereignty and dominium. Bennett and Powell, 'The State as Trustee
of Land'
(2000) 16
SAJHR
601
at 615-616 state:
'Aboriginal title implies that, while a coloniser
automatically acquired
dominium
over all land in new colonies,
native rights persisted as burdens on the State's radical title.'
In their other article already cited,
Aboriginal Title in South Africa Revisited,
(at 461-462),
these authors point out that the courts in other jurisdictions
themselves concede that aboriginal title does not conform
to the
typical common-law concepts of property, and they freely admit that
it is
sui generis
. The authors refer to the following
distinguishing features between common-law property rights and
aboriginal title. Aboriginal title
originated in pre-colonial systems
of indigenous law. It is enforceable in the ordinary courts, but is
not protected from extinguishment
by legislative act. Aboriginal
title is not an individual proprietary right but rather a communal
right vesting in an aboriginal
people. Aboriginal title is
inalienable to anyone except the Crown or state government.
[39] The aboriginal rights found by the
courts in other jurisdictions vary in content. In
Delgamuukw v
British Columbia,
supra,
Lamer CJC described the different
aboriginal rights as follows (para 138):
'At the one end, there are those aboriginal rights which
are practices, customs and traditions that are integral to the
distinctive
aboriginal culture of the group claiming the right . . .
. In the middle, there are activities which, out of necessity, take
place
on land and indeed, might be intimately related to a particular
piece of land. Although an aboriginal group may not be able to
demonstrate
title to the land, it may nevertheless have a
site-specific right to engage in a particular activity.  .
. . At the other
end of the spectrum, there is aboriginal title
itself . . . aboriginal title confers more than the right to engage
in site-specific
activities which are aspects of the practices,
customs and traditions of distinctive aboriginal cultures.
Site-specific rights can
be made out even if title cannot. What
aboriginal title confers is the right to the land itself.'
Indigenous communities unable to establish
aboriginal title may therefore still have acquired lesser aboriginal
rights to certain
specific land uses. See
R v Adams
(1996) 138
DLR (4
th
) 657 (SCC) para 27-29.
[40] The
courts that have recognised aboriginal land rights have at the same
time recognised that the Crown or State always had the
power to
extinguish aboriginal land rights. Termination requires appropriate
legislative authority showing a clear and unequivocal
intention to
extinguish or at least an action making the land over to others (cf.
LCC judgment at para 46).
[41] In
Mabo and Others v The State of
Queensland
(No. 2)
supra
, Brennan J summarised the common
law of Australia with reference to aboriginal title as follows (at
69):
'1. The Crown's acquisition of sovereignty over the
several parts of Australia cannot be challenged in an Australian
municipal court.
2. On acquisition of sovereignty over a particular part
of Australia, the Crown acquired a radical title to the land in that
part.
3. Native title to land survived the Crown's acquisition
of sovereignty and radical title. The rights and privileges
conferred by
native title were unaffected by the Crown's acquisition
of radical title but the acquisition of sovereignty exposed native
title
to extinguishment by a valid exercise of sovereign power
inconsistent with the continued right to enjoy native title.
4. Where the Crown has validly alienated land by
granting an interest that is wholly or partially inconsistent with a
continuing right
to enjoy native title, native title is extinguished
to the extent of the inconsistency. Thus native title has been
extinguished
by grants of estates of freehold or of leases but not
necessarily by the grant of lesser interests (e.g., authorities to
prospect
for minerals).
5. Where the Crown has validly and effectively
appropriated land to itself and the appropriation is wholly or
partially inconsistent
with a continuing right to enjoy native
title, native title is extinguished to the extent of the
inconsistency. . . .'
See also McNeil,
op cit
, 193-211.
[42] As was pointed out by L.A. Hoq, 'Land
Restitution and the Doctrine of Aboriginal Title : Richtersveld
Community v Alexkor Ltd
and Another'
(2002) 18
SAJHR
421
at
435, an article commenting upon the judgment of the LCC, several
commentators have addressed the hazards associated with recognising
aboriginal title in South Africa. Some have expressed the view that
the very reason for the 1913 cut-off date in the Act, and the
fact
that the date of dispossession was not extended back to the time of
colonial annexation, was to eliminate claims based on aboriginal
title. See, for example, J.T. Roux 'The
Restitution of Land Rights
Act' in
Budlender, Latsky and Roux 'Juta's New Land Law' (1998)
3A-16. Other writers, such as Bennett and Powell in 'Aboriginal Title
in
South Africa Revisited',
op cit
, at 450-451 and Reilly 'The
Australian Experience of Aboriginal Title: Lessons for South Africa'
(2000) 16
SAJHR
512
at 528, have expressed the contrary view
namely that aboriginal title can be a legitimate and workable part of
South African law.
[43] All the
aspects of the doctrine do not fit comfortably into our common law.
For instance, the idea that the State or Crown possesses
radical
title to all land may have its origin in English feudal law and may
be foreign to our law. In view of my conclusion that
a customary law
interest, for which the Act expressly provides, has been established
in the present case, it is not necessary to
pursue the matter any
further and it becomes unnecessary to decide whether the doctrine
forms part of our common law or whether our
common law should be
developed to recognise aboriginal rights. This conclusion also
obviates any resolution of the question whether
the LCC is entitled
to 'develop' the common law, an issue dealt with at some length in
its judgment (at para 49-53).
[44]
EFFECT OF ANNEXATION UPON EXISTING
RIGHTS:
In colonial times acquisition of sovereignty over new
territory could, according to international law, be established by
conquest
or cession if the territory was inhabited, or by occupation,
also called settlement, if it was not inhabited.
Halsbury's Laws
of England
4 ed reissue, vol 6, para 978, McNeil,
op cit
,
102. Occupation or settlement as a means of acquiring inhabited
territories was based on the fiction that if a territory was
inhabited
by people regarded as insufficiently civilised it could be
acquired by occupation or settlement as if it were uninhabited and
therefore
terra nullius
. Dugard,
International Law - A
South African Perspective
, 2 ed, at 119 points out that during
the formative years of international law opinion was divided as to
whether international law
applied to indigenous peoples: the
naturalists arguing that all peoples of the world enjoyed certain
inalienable rights whereas the
positivists denied such rights to
indigenous peoples. He continues at 120:
'During the nineteenth century the positivist view
prevailed, with the result that indigenous, non-European peoples in
loosely organized
societies were viewed as having no rights under
international law. Consequently their territory was viewed as
terra
nullius
– a designation that gave legal backing to the colonial
expansion of that century. Modern international law, determined to
erase
this mark of imperialist paternalism from the historical
record, has sought to minimize the nineteenth-century positivist
position.'
[45] In 1975 the International Court of
Justice was pertinently asked to determine whether the Western Sahara
was
terra nullius
when it was colonised by Spain in 1884. The
Court found (
Advisory Opinion on Western Sahara
1975 ICJ
Reports 12) that at the time of colonisation the Western Sahara was
inhabited by nomadic people 'organised in tribes and
under chiefs to
represent them' so that the territory was consequently not
terra
nullius
capable of acquisition by occupation. The Court
formulated its decision as follows (para 80):
'Whatever differences of opinion there may have been
among jurists, the State practice of the relevant period indicates
that territories
inhabited by tribes or peoples having a social and
political organisation were not regarded as
terra nullius
. It
shows that in the case of such territories the acquisition of
sovereignty was not generally considered as effected unilaterally
through "occupation" of
terra nullius
by original
title but through agreements concluded with local rulers. On
occasion, it is true, the word "occupation" was
used in a
non-technical sense denoting simply acquisition of sovereignty; but
that did not signify that the acquisition of sovereignty
through such
agreements with authorities of the country was regarded as an
"occupation" of a "
terra nullius
" in the
proper sense of these terms. On the contrary, such agreements with
local rulers, whether or not considered as an actual
"cession"
of the territory, were regarded as derivative roots of title, and not
original titles obtained by occupation
of
terrae nullius
.'
[46] That the Richtersveld people had a
social and political organisation at the time of annexation is clear
from the evidence about
their culture and traditional laws and
customs to which I have already referred. The respondents,
furthermore, in this Court expressly
disavowed any suggestion that as
a matter of fact the Richtersveld people were insufficiently
civilised for purposes of the application
of the rule. The
Richtersveld could accordingly not have been regarded as
terra
nullius
.
[47] The Colonial Government, moreover, did
not regard the Richtersveld as
terra nullius
when that
territory was annexed. Dugard,
op cit
, 121, after pointing out
that even at the time of the Dutch East India Company at the Cape in
the 17
th
century the Khoi indigenous inhabitants of the
Cape already had a developed social organisation, states that:
'The African tribes to the east and north were accepted
as political societies by the Dutch, the British, and the Boers,
which all
at some stage or another entered into treaties with tribal
leaders. While the status of these treaties under international law
was
uncertain, they did at least make it clear that the
African-occupied territories were not viewed as
terrae nullius.'
[48] Indigenous rights in land were
recognised at the Cape even in the time of the Dutch East India
Company. Hahlo and Kahn,
The South African Legal System
(footnote 8 at 568) cite the purchase of the Cape district from the
Khoi chief Schacher for £800, to be paid in goods, by the
Raad
van Politie. See also Bennett in Zimmermann and Visser (eds),
Southern Cross - Civil Law and Common Law in South Africa
(1996) 66.
[49] The
British Crown acquired sovereignty over the Cape Colony in 1806
pursuant to hostilities between the Crown and the Dutch sovereign,
which culminated in the Articles of Capitulation of 10 and 18 January
1806. This was formalised by the treaty between Great Britain
and the
Netherlands in terms of which the Cape Colony was formally ceded to
the British Crown.
Article 6 of the Articles of Capitulation of Cape Town
of 10 January 1806 provided that:
'All
bona fide
private property, whether
belonging to the civil or military servants of the Government, to the
burghers and inhabitants . . . shall
remain free and untouched.'
Article 8 of the same Articles of Capitulation provided
that:
'The burghers and inhabitants shall preserve all their
rights and privileges which they have enjoyed hitherto.'
Article 8 of the Articles of Capitulation of the Cape
Colony of 18 January 1806 in turn provided that:
'The inhabitants of the Colony who are comprehended in
this capitulation are to enjoy the same rights and privileges as have
been
granted to those in Cape Town, according to the capitulation of
the 10
th
instant.'
In my view it is
clear from the Articles of Capitulation that when the British Crown
acquired sovereignty of the Cape Colony by conquest
and cession in
1806 the indigenous land rights of the inhabitants were recognised
and respected.
[50] Ordinance
50 of 1828 enacted by the Colonial Government is another indication
that indigenous land rights were respected. Section
3 of that
Ordinance provided as follows:
'And whereas doubts have arisen as to the competency of
Hottentots and other free Persons of colour to purchase or possess
Land in
this Colony: Be it therefore enacted and declared, That all
Grants, Purchases, and Transfers of Land or other Property
whatsoever,
heretofore made to, or by any Hottentot or other free
Person of colour, are, and shall be, and the same are hereby declared
to be,
of full force and effect, and that it is, and shall, and may
be, lawful for any Hottentot, or other free Person of colour, born,
or having obtained Deeds of Burghership, in this Colony, to obtain
and possess by Grant, Purchase, or other lawful means, any Land
or
Property therein - any Law, custom, or usage to the contrary
notwithstanding.'
[51] The
Ordinance ended with another equality provision in an
Order-in-Council, ordering and declaring that –
'all Hottentots and other free Persons of colour
lawfully residing within the said Colony are, and shall be in the
most full and ample
manner entitled to all and every the rights,
privileges, and benefits of the Law, to which any other His Majesty's
subjects, lawfully
residing within the said Colony, are or can be
entitled.'
DOCTRINE OF RECOGNITION
[52] As I have already indicated the
Richtersveld, at the time of annexation, was inhabited by people who
had a social and political
organisation and who could not have been
regarded as insufficiently civilised to possess land rights. All of
this was common cause
in this Court. The territory was accordingly
not amenable to acquisition by occupation or settlement. In all the
circumstances it
is clear that the acquisition of the Richtersveld by
the Proclamation was the equivalent of an acquisition by conquest or
cession
with the same consequences as the acquisition of the Cape
Colony into which it was incorporated. It is also clear that it was
so
regarded by the Colonial Government. Halsbury,
op cit
states (para 980) that an annexation in the face of an organised
society considered civilized was treated as a case of cession
and not
settlement even before or in the absence of cession by international
formalities. Even if the Richtersveld was not acquired
by conquest,
then it was in any event deemed to have been acquired by cession. For
present purposes it is not necessary to decide
whether it was the one
or the other. What is important is that it was not acquired by
occupation or settlement. In this regard it
is significant that there
was never any settlement by the Colonial Government in the
Richtersveld.
[53] At one time protagonists of the
so-called doctrine of recognition held the view that annexation of
land by the British Crown
resulted in the abolition of all
pre-existing customary rights and interests in land except those
rights, which the Crown chose,
in the exercise of its sovereignty, to
recognise. It was held that this was so whether the assumption of
sovereignty was by way of
conquest, cession or annexation, or the
occupation of territory that was not at the time held under another
sovereign. So, for example,
it was stated by Lord Dunedin in
Vajesingji Joravarsingji v Secretary of State for India
(1924)
LR 51 Ind App 357 at 360 that:
'[W]hen a territory is acquired by a sovereign state for
the first time that is an act of State. It matters not how the
acquisition
has been brought about. It may be conquest, it may be by
cession following on treaty, it may be by occupation of territory
hitherto
unoccupied by a recognised ruler. In all cases the result is
the same. Any inhabitant of the territory can only make good in the
municipal Courts established by the new sovereign such rights as that
sovereign has, through his officers, recognised. Such rights
as he
had under the rule of predecessors avail him nothing.'
[54]
The decision in
Vajesingji
Joravarsingji
is not in accordance with the weight of authority
and has been criticized as unworkable in practice and wrong in law
and logic. See
McNeil,
op cit
175-179, Bennett and Powell
,
'
Aboriginal Title in South Africa Revisited' 449 at 478. McNeil,
op cit
, at 177 points out that the recognition doctrine would
result in uncertainty and chaos since all title to land would be
uncertain
for an indefinite period after annexation. In the meantime
the inhabitants would be presumed to be trespassers and all property
transactions,
other than with the Crown, would be of doubtful
validity. In the absence of an express declaration of the Crown's
intentions, this
uncertainty would last until it became obvious from
the Crown's actions that its intention was to recognise, or not to
recognise
pre-existing rights.
[55] Against the recognition doctrine is a
line of authority to the effect that there is a presumption that, in
the case of both conquest
and cession, a mere change in sovereignty
does not extinguish the private property rights of the inhabitants of
a conquered territory
which continue in force unless confiscated by
an act of state. This has been referred to as the doctrine of
continuity. Bennett and
Powell
op cit
at 480 state that –
'the great majority of colonial decisions favoured the
doctrine of continuity and today it is a settled feature of
Anglo-American
jurisprudence'.
The presumption was applied in
Amodu
Tijani v The Secretary, Southern Nigeria
[1921] 2 AC 399.
That
case involved a claim for compensation by an African chief for lands
taken by the Crown for public purposes under a local ordinance
in
Southern Nigeria, a colony acquired by the cession of Lagos in 1861.
In issue was the amount of compensation to be paid, which
depended on
the nature of the appellant's interest in the lands and his
relationship with the community that had occupied and used
it.
Dealing with the nature of the land tenure under local customary law
and the effect of the cession, Viscount Haldane said at
407:
'No doubt there was a cession to the British Crown,
along with the sovereignty, of the radical or ultimate title to the
land, in the
new colony, but this cession appears to have been made
on the footing that the rights of property of the inhabitants were to
be fully
respected. This principle is a usual one under British
policy and law when such occupations take place . . . . A mere
change in
sovereignty is not to be presumed as meant to disturb
rights of private owners; and the general terms of a cession are
prima facie
to be construed accordingly.'
[56] As was pointed out by Brennan J in
Mabo and Others v The State of Queensland
supra
at 56,
Viscount Haldane did not confine the generality of the last sentence
to acquisitions by cession but appeared to construe the
terms of the
cession in the light of the general principle by which private
property rights survive a change in sovereignty by whatever
means.
[57] In
Sakariyawo Oshodi v Morianno
Dakolo
[1930] AC 667
(PC) at 668, Viscount Dunedin, despite his
earlier judgment in
Vajesingji Joravarsingji
, accepted that
the decision in
Amodu Tijani
laid down that the cession of
Lagos in 1861 'did not affect the character of the private native
rights'.
[58] The approach adopted in
Amodu
Tijani
was confirmed by the Privy Council in a Southern African
context in
Sobhuza II v Miller and Others
[1926] AC 518
(PC)
at 525 where the Court held that the title of an indigenous community
to land, which the Court regarded as generally usufructuary
in
nature, survived as 'a mere qualification of a burden on the radical
or final title of whoever is sovereign'.
[59] Similarly, in
Adeyinka Oyekan v
Musendiku Adele
[1957] 2 All ER 785
(PC) at 788 e-i, which dealt
with the cession of land to the British Crown in the former colony of
Lagos, Lord Denning said the following:
'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.'
[60] The rule that indigenous rights to
private property in a conquered territory were recognised and
protected after the acquisition
of sovereignty was, however, not
universally applied. Recognition was sometimes withheld from those
communities regarded as backward
or insufficiently civilized from a
European perspective. In
In re Southern Rhodesia
[1919] AC 211
(PC) Lord Sumner at 233 considered whether the land rights of the
Ndebele held under customary law –
'belonged to the category of the rights of private
property, such that upon a conquest it is presumed, in the absence of
express confiscation
or of subsequent expropriatory legislation, that
the conqueror has respected them and foreborne to diminish or modify
them'.
He held that they were not. He expressed
the
ratio
for his conclusion as follows:
'Some tribes are so low in the scale of social
organisation that their usages and conceptions of rights and duties
are not to be reconciled
with the institutions or the legal ideas of
civilised society. Such a gulf cannot be bridged. It would be idle to
impute to such
people some shadow of the rights known to our law and
then to transmute it into the substance of transferable rights of
property
as we know them.'
This decision of the Privy Council was not
followed in the subsequent decisions of the Privy Council to which I
have referred and
was rejected in
Mabo
where Brennan J said
(at 40) that it –
'depended on discriminatory denigration of indigenous
inhabitants, their social organisation and customs'
and
that its basis was
'false in fact and unacceptable in our
society.'
Brennan J concluded as follows at 57:
'The preferable rule, supported by the authorities
cited, is that a mere change in sovereignty does not extinguish
native title to
land. (The term "native title" conveniently
describes the interests and rights of indigenous inhabitants in land,
whether
communal, group or individual, possessed under the
traditional laws acknowledged by and the traditional customs observed
by the indigenous
inhabitants.) The preferable rule equates the
indigenous inhabitants of a settled colony with the inhabitants of a
conquered colony
in respect of their rights and interests in land and
recognizes in the indigenous inhabitants of a settled colony the
rights and
interests recognized by the Privy Council in
In re
Southern Rhodesia
as surviving to the benefit of the residents of
a conquered colony.'
[61] In view of the authorities I have
referred to, the recognition doctrine as formulated by Lord Dunedin
in
Vajesingji Joravarsingji
cannot be supported and I agree
with the view expressed by Brennan J in
Mabo
in the passage I
have quoted. It follows that the existing customary law interest in
the subject land held by the Richtersveld people
survived the
annexation.
[62] The LCC came to the contrary
conclusion, holding that a change in thinking cannot turn the clock
of history back: the change
cannot destroy any land title obtained
(presumably by the Crown) in accordance with rules of law applicable
at the time and that
the consequences of the colonial acquisition
must be examined according to the conditions and rules in existence
at the time (at
para 42). The legal principle cannot be queried. But
one has first to ask whether there was such a rule relating to
res
nullius
as at 1847. Counsel could not give any reference to the
rule in English law that predates the late 19
th
century.
M. F. Lindley
The Acquisition and Government of Backward Territory
in International Law
(1926) 18 points out that the publicists,
who did not recognise the sovereignty of 'backward people', belong
principally 'to a comparatively
recent period' and the works he cites
are all (as far as I can gather) from the late 19
th
century or later. No one has suggested that it ever formed part of
Roman Dutch law. The International Court of Justice has found,
and we
have no reason to doubt that finding, that there was no such rule in
international law. But even if there were such a rule,
it remains a
question of fact whether the rule could have been applicable to the
circumstances of this case and, as I have attempted
to show, it could
not.
THE SOVEREIGN AS OWNER OF ALL LAND NOT ALLOCATED
[63] The LCC held that in terms of the law
in force in the Cape Colony at the time of the annexation all land
not granted under some
form of tenure belonged to the Crown (at para
43). In this regard it relied upon some authors and an
obiter
statement in
Cape Town Council v Colonial Government and Table Bay
Harbour Board
(1896) 23 SC 62.
This view, no doubt, is based upon
English feudal law and to the extent that Roman-Dutch law had some
remnants of feudal law, that
law was never introduced into South
Africa.
[64] In
support of this finding the LCC held further (para 37 fn 54 and 55)
that the Colonial Government –
'made laws under which non-issued land (considered to be
Crown land) could be disposed of. That included Crown land actually
occupied
by people, but who were considered to have insufficient
civilisation to make them the owners of the land'.
It cited the Crown Lands Act 2 of 1860,
replaced by Act 14 of 1878, in turn replaced by Act 15 of 1887.
[65] I agree
with counsel for the appellant that these Acts manifested a contrary
intention to that found by the LCC. They provided
for the disposal of
waste Crown land but expressly excluded certain categories of land,
including land such as the Richtersveld,
from their operation. So,
for example, s 12 of Act 15 of 1887 provided, in terms similar
to those of its precursors:
'Land claimed by any registered owner of adjacent land
as part of his property by reason of any alleged defective title deed
or supposed
landmarks or beacons of the said adjacent land, land
occupied
bona fide
and beneficially without title deed at the
date of the extension of the colonial limits beyond it, land
conditionally occupied or
claimed under any general notice or
regulation of the Government, or under any promise or order of a
Government officer, duly authorised
at the time to make such promise,
or give such order, shall not be considered or treated as Crown land
for the purpose of this Act,
until the claim thereto, in each case,
shall have been decided on by the Governor.'
The Richtersveld clearly fell in the
category of 'land occupied
bona fide
and beneficially without
title deed at the date of extension of the colonial limits beyond
it'. These Acts accordingly manifested
an intention to respect
existing land rights and not to extinguish them. Act 15 of 1887
(Cape) was repealed by the
State Land Disposal Act 48 of 1961
, which
does not include a provision corresponding to s 12 of the Cape
Act. The result of this was that protection given by that
section to
the land rights of persons such as the members of the appellant was
extinguished.
[66] Respondents' counsel relied upon these
Acts for another, though related, submission. They accepted as
correct something that
is really axiomatic, and that is that rights
can only be extinguished by acts of state or legislation. Cf the
Mabo
rules quoted. Hard pressed to identify any such overt act
since the title was not extinguished by any grant, they pinned their
hope
on these Acts, especially the quoted provision. At best for them
it can be said that the Legislature assumed that all land not
allocated
by means of the grant of title deeds belonged to the Crown
but the implied assumption cannot be elevated to a legislative act
with
that consequence.
THE PERIOD AFTER ANNEXATION UNTIL
DISPOSSESSION
[67] The Richtersveld people continued to
exercise and enjoy exclusive beneficial occupation of the whole of
the Richtersveld until
at least the mid 1920's. The LCC held that
other people who may have lived on the subject land in the beginning
of the 20
th
century shortly before the Richtersveld people
were excluded and who were by then not absorbed by the appellant
communities, were
not sufficient in number or strength to affect the
exclusivity of the occupation by the appellant communities. This
finding was not
contested on appeal.
[68] The Richtersveld people's claim to
exclusive use and occupation of the whole of the Richtersveld was
persisted in from annexation
until their dispossession well into the
20
th
century. They made their claims expressly in
correspondence with the Colonial authorities and also by conduct by
requiring strangers
to obtain their permission before settling or
grazing their animals in the Richtersveld.
[69] The
Colonial Government and its successor after Union in 1910 never
disputed those claims (although they sometimes disputed the
claim to
ownership) and consistently admitted or at least accepted the
Richtersveld people's exclusive right of occupation of the
whole of
the Richtersveld.
[70] Although the Richtersveld people
shared their Khoi-Nama culture with the two other tribes the Colonial
Government and its successor
in their dealings with the Richtersveld
people consistently accepted that the Richtersveld people were a
specific community with
its own character and identity and dealt with
them on that basis. They were always regarded by the Colonial
Government as a distinct
entity. For instance, in his report of 1854,
the Surveyor-General, Mr Charles Bell, referred to
'Paul Linx and
his people'
as a distinct group that occupied a particular
territory and whose members could be identified and counted.
[71] That the
Richtersveld people retained a continuous identity until the present
day appears
inter alia
from the following passage in the
judgment of the LCC dealing with the political structure of the
Richtersveld people in the time
after Captain Paul (Bierkaptein)
Links (para 69):
'After the death of Captain Paul (Bierkaptein) Links, he
was succeeded by his son, Captain Paul (Swartbooi) Links. After his
death,
the community changed the title of their chiefs to
hoofkorporaal. The first hoofkorporaal was Gert (Jul) Links. A
problem arose because
he utilised grasgeld for his own needs. The
community wanted him replaced by Paul (Tweekierie) Links, who was too
young at the time.
They elected Petrus Links to take over from Gert
(Jul) Links, and when Paul (Tweekierie) Links was old enough he
replaced Petrus
Links as hoofkorporaal. Paul (Tweekierie) Links
passed away in 1957. The governance of the Richtersveld people (who
lived in the
reserve) was then made over to a government-appointed
superintendent, assisted by an advisory council (later a management
council).'
In his report of 30 June 1890 the Assistant
Surveyor-General, Mr Melvill, dealt with the Richtersveld people as a
specific community
with its head station situated at Kuboes and an
out-station at Kalkfontein, about 60 km south of Kuboes, where
there was strong,
permanent water. Mr W C Scully, the Civil
Commissioner for Namaqualand, who visited the Richtersveld in the
1890's, described the
missionary at Kuboes, the Reverend Hein, as the
"dictator of the Richtersveld".
[72] Earlier, in a letter dated 1 December
1851, addressed to the Colonial Secretary, the Surveyor-General, Mr
Charles Bell, had written
that the annexation of the Richtersveld did
not affect rights to private property and therefore did not affect
the lease between
the trader McDougal and Captain Links.
[73] On 4 May
1888 the Reverend Brecher of Steinkopf wrote to the Civil
Commissioner at Springbok enquiring about the ownership of
the
Richtersveld, which he claimed was without question the people's own
property. Brecher added that when he asked the Colonial
Government to
define the boundaries of the Richtersveld, Bell told him that –
'the people could use undisturbedly the whole veldt as
long as there would be no application for land. And when this would
be done,
then it was fine enough to reserve the mission ground for
the natives at Richtersveld . . .. I think that I once instructed the
present
Raad at Richtersveld that, when anyone may trespass on this
ground and water which they absolutely hold to be their property,
then
they must give such person a warning to leave the place and in
the event he may not listen to them, then they could on account of
the place being their own property and on account of the Squatting
Act, impound the trespassing stock.'
[74] In his said report of 30 June 1890 Mr
Melvill stated that the Richtersveld community had –
'just and well founded claims to be continued and
secured in such occupation, the Government having, at different
times, substantially
acknowledged their claims'.
He added that the extent of the land
claimed by the Richtersveld community was 'enormous, being, as very
roughly estimated by me,
from 680 000 to 700 000 morgen'.
He pointed out that no boundaries had ever been defined and that –
'the
country having been hitherto considered as not a very desirable one
for Europeans to inhabit, the natives have been allowed to
occupy it
in their usual nomadic fashion, without limitation to any particular
part'.
[75] On 19
February 1898 Mr J B Moffat of the Native Affairs Office in Cape
Town, stated in a letter to the Superintendant of Native
Affairs that
–
'it must be admitted, I think, that the people cannot
equitably be disturbed in their occupation of the land. There may be
some newcomers
who have no right to be there, but the bulk of the
people can probably prove their claim to share in the land under the
conditions
of the tickets of occupation, or in the case of
Richtersveld for which there is no ticket, continuous occupation
since 1847, by themselves
or their families'.
[76] On 3
August 1909 the Reverend H Kling, in his capacity as Chairman of the
Steinkopf Raad and of the Richtersveld and Kalkfontein
community,
wrote to the Colonial Minister of Agriculture. After referring to Mr
Melvill's proposal in 1890 to reduce the size of
the Richtersveld he
continued as follows:
'.... the people of Richtersveld then and there objected
to Mr Melvill when he promised us faithfully to represent our
objection to
the government, we never heard any further regarding the
matter, neither did we receive any notice from government regarding
our
objection. This was a matter of at least 19 years ago - we now
claim the rights of the Richtersveld area as mentioned in annexure
"C" of Mr Melvill for the following are in our favour - the
rights of the period of occupation which has been as far back
as 1830
when Captain Paul Links Snr was already in possession of Kuboes
(Richtersveld) and surrounding ground and Jacob Fries at
Kalkfontein.'
The Reverend Kling went on to state that by
1890 the Richtersveld people had occupied the land for a full 60
years and that Mr Melvill
had admitted in his report to the Colonial
Government that the territory legally belonged to the Richtersveld
people. He concluded
as follows:
'We have practically occupied this area for at least 80
years undisputed by anyone so fully intent to maintain our rights
which by
every point of law is ours. I therefore, as chairman of the
Raad of Steinkopf, Kalkfontein, Richtersveld people, on their behalf
humbly petition that you grant us the title of the area as claimed by
us to stop any further encroachment on our ground by our government
surveyor and thereby save any dispute which may arise as a result
thereof.'
[77] In a
letter dated 27 August 1909 the Surveyor-General, Mr A H
Cornish-Bowden, replied to the letter of the Reverend Kling. Far
from
disputing any of the claims that the Richtersveld people had occupied
the whole of the Richtersveld since before annexation,
Cornish-Bowden
assured the Reverend Kling that the Colonial Government
'has no intention of depriving the inhabitants of the
Richtersveld of the rights they have hitherto enjoyed as you seem to
apprehend,
and in order to allay any anxiety which you and your
people may entertain, I may state that it is proposed at the
forthcoming session
of Parliament to seek sanction to the formal
reservation, by means of a Ticket of Occupation, of the area
indicated by the figure
bordered blue on the plan attached to Mr
Melvill's Report of 1890, though of course there is no compulsion on
the Government to reserve
the whole of the area so defined. All
rights to minerals and precious stones will be reserved to the Crown
as in the case of Steinkopf'.
[78] On 6
March 1925 the Secretary for Lands addressed a letter to the
Secretary for Justice requesting an opinion by the State law
advisors
on –
'the extent of the rights which the coloured community
can claim by virtue of their long possession [of the Richtersveld]'.
In setting out the facts the Secretary for
Lands said that –
'the aboriginees occupied all the land between the
Buffels River and the Orange River prior to the extension of the
boundary'.
The opinion, dated 11 April 1925, confirmed
that the Richtersveld was regarded as including the land –
'situated on the south bank of the Orange River, north
of Port Nolloth, the sea being its western boundary'.
It further confirmed that the –
'Richtersveld proper was occupied by a tribe of
Hottentots owing tribal allegiance to an hereditary chief. The family
name being Links.
The occupation of the tribe goes back to at least
the beginning of the 19
th
century . . . The original
Hottentot blood is now largely mixed through intermarriage with
Bastards. The inhabitants, however, claim
continued existence as a
distinct tribal entity. The affairs are managed by a Raad presided
over by the Rhenish Missionary. Arable
land, water and grazing are
held in common. The life is chiefly nomadic. New burgers are
incorporated into the tribe by the vote
of a general meeting of the
whole tribe. The revenue consists of grazing fees, the money being
devoted chiefly to education.'
[79] In the
opinion the State law advisors referred to the action which one Ryk
Jasper Cloete, a member of the Richtersveld community,
had instituted
in the Cape Supreme Court during 1917 against the Colonial Government
claiming ownership of the whole of the Richtersveld
by prescription.
In its plea to this claim the Government had admitted 'the communal
occupation' of the area by the Richtersveld
people and that the –
'control of occupation of the Richtersveld was at all
material times exercised by the Raad appointed by the Hottentots
subject to
the control and supervision of the Rhenish Missionary
Society'.
This claim, also opposed by the community,
was not proceeded with, apparently due to a lack of funds.
[80] From the
aforegoing it is clear, in my view, that the Colonial Government and
its successor at all material times from annexation
until immediately
prior to the alleged dispossession, recognised the Richtersveld
people as a distinct community which had occupied
the whole of the
Richtersveld from prior to annexation and had continued to do so.
[81] I have
earlier in this judgment referred to the practice of the Richtersveld
people to grant grazing leases to white farmers
in the Richtersveld.
From extended correspondence between Colonial Government officials
about this practice it appears clearly that
the Government never
challenged the right of the Richtersveld people to do so. In June
1909 Mr O C H Strong, the Resident
Magistrate at Port
Nolloth, wrote to the Assistant Treasurer of the Colonial Government
and with reference to three grazing leases
in the Richtersveld,
stated the following:
'a wholesale system apparently has been going on without
check of farmers being fleeced by the mission people at the loss of
the government
and the exercise of rights of ownership of the land
has been made by the mission presumably on behalf of the natives'.
At the request of the Assistant Treasurer
of the Colonial Government Mr Strong subsequently compiled a 'return
of grazing fees levied
by the Rhenish Mission Community upon farmers
residing in the district of Port Nolloth'
.
On 4 January 1910
the Surveyor-General said the following about this issue in a letter
addressed to the Assistant Treasurer of the
Colonial Government:
'... the land was set aside for the inhabitants of the
Richtersveld, and I consider that in equity government is bound to
acknowledge
the right of these people to it. In my opinion it would
not be advisable to make any claim to the grazing fees levied by
them, as
this would cause considerable dissatisfaction, which is not
warranted.'
[82] Nothing apparently was done in the
ensuing years about the grazing fees collected by the missionaries on
behalf of the Richtersveld
people. The matter was again raised in a
letter dated 16 July 1919 from the Colonial Secretary for Lands to
the Magistrate at Springbok.
In the letter the former stated that it
was extremely difficult to give the extent and limits of that part of
the Richtersveld in
regard to which the Government 'would be prepared
to recognise the existence of definite claims to ownership or even
residential
or surface rights' of the people under Captain Paul
(Swartbooi) Links. The Colonial Secretary for Lands went on to say
that –
'no steps can be taken to interfere when white farmers
are charged grazing fees by the Bastards or Hottentots; these people
undoubtedly
have certain grazing rights in the Richtersveld, and, if
outsiders desire to participate in the use of the grazing, the
payment of
a remuneration therefore seems reasonable, though the
practice should not receive your official sanction.'
[83] The report
of the Controller and Auditor General to Parliament in February 1921
referred to the warning in 1918 by the Secretary
for Justice that the
Government could lose the whole of the Richtersveld by prescription
and that this concern had prompted a suggestion
of legislative
intervention that had not been implemented. The Auditor-General
concluded as follows:
'As
rents are at present being collected from Europeans for grazing in
the Richtersveld by one Paul Links, a coloured man, it is clearly
indicated that rights of ownership are being exercised by the
inhabitants.'
[84] From the
minutes of evidence taken before the Select Committee on Public
Accounts in 1922 it appears that rent was at that stage
still being
collected from white farmers for grazing in the Richtersveld by
Captain Paul (Swartbooi) Links.
MINERALS AND
NATURAL RESOURCES
[85] I
now return to consider whether the appellant's customary law right
encompasses a right to minerals and other natural resources.
With
regard to the Richtersveld people's use of mineral and natural
resources Mr Boonzaier and Prof Carstens testified to the effect
that
long before annexation the Nama people in Little Namaqualand had
mined and used copper for the purpose of adornment. According
to Mr
Boonzaier the Richtersveld people appreciated the value of minerals.
This led them to grant mineral leases to outsiders.
The people at
Steinkopf did the same. In his evidence before the Parliamentary
Select Committee in 1856 Mr G.W. Prince of Prince,
Collison & Co,
referred to several mining leases which had been concluded with the
Reverend Brecher. It is not clear whether
the latter acted on behalf
of the people at Steinkopf or the Richtersveld people.
[86] Captain
Paul (Bierkaptein) Links and his 'raad' on 11 August 1890 granted a
mineral lease to a Mr Anderson and his associates.
The lease
described Links as
'Captain
of the Bastards and Namaqua people owning and occupying the country
from south of Bethany, Great Namaqualand to the Orange
River and the
country south of the said Orange River of which "Richtersveld"
is the chief town or station.'
In 1910 the
Reverend Kling on behalf of the Richtersveld community granted Henry
Wrensch mineral prospecting rights to the Richtersveld.
At around
the same time a prospector called Giffen reported that the
Richtersveld community had entered into mining arrangements
with
several mining companies.
[87] This evidence clearly establishes that
the Richtersveld community believed that the right to minerals
belonged to them and that
they acted in a manner consistent with such
a belief. They exploited the minerals without requesting permission
from anyone to do
so and, significantly, strangers respected their
rights by obtaining their permission to prospect for minerals and
concluding mining
and mineral leases with them.
[88] Although there was no evidence of
mining activities on the subject land itself or that mining leases
were concluded in the period
prior to annexation, this is not fatal
to the appellant's case. At the time of annexation it was clearly
part of the distinctive
culture of the Richtersveld people to
appropriate for themselves the right to minerals and natural
resources on the land and it is
clear that this custom had continued
from earlier days. In
R v Van der Peet
(1996) 137 DLR (4
th
)
289 (SCC) Lamer CJC said (para 60), with reference to aboriginal
rights, that the time period that the Court should consider in
identifying whether the right claimed meets the standard of being
integral to the aboriginal community claiming the right, is the
period prior to contact between aboriginal and European societies.
He went on to say (para 62) that this does not mean that:
'the aboriginal group claiming the right must accomplish
the next to impossible task of producing conclusive evidence from
pre-contact
times about the practices, customs and traditions of
their community. . . . The evidence relied upon by the applicant and
the courts
may relate to aboriginal practices, customs and traditions
post-contact; it simply needs to be directed at demonstrating which
aspects
of the aboriginal community and society have their origins
pre-contact. It is those practices, customs and traditions that can
be
rooted in the pre-contact societies of the aboriginal community in
question that will constitute aboriginal rights.'
[89] Lindley,
op cit
, at 352, pointed out that mineral rights were
frequently reserved to the Government 'and in lands owned by or
reserved to the natives',
but he added that –
'Where
native lands are taken for mineral development, adequate compensation
should be given to the owners, and should in general
include other
lands equally suitable in all respects for their purposes.'
This
did not happen in this case, as I shall show later.
DISPOSSESSION 'AS A RESULT OF PAST
RACIALLY DISCRIMINATORY PRACTICES'
[90] The final issue for determination is
whether the appellant was dispossessed of its rights in the subject
land as a result of
past racially discriminatory laws or practices.
In the first place it is clear that the dispossession relied upon
took place after
19 June 1913. In terms of s 2(1)(d) of the Act
a community is entitled to restitution of its rights in land only if
it was
dispossessed of those rights 'as a result of past racially
discriminatory laws or practices'. According to the definitions
clause
'racially discriminatory laws' include laws made by any sphere
of government and subordinate legislation and the term '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.'
[91] The
appellant 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.
[92] The state alluvial diggings were
established by Proclamation 58 of 8 March 1928, which declared a
portion of the subject land
in the vicinity of Alexander Bay to be a
state alluvial digging in terms of s 26 of the Precious Stones
Act 44 of 1927. The
Proclamation described the land concerned as
'unalienated Crown land'. Proclamation 1 of 3 January 1929,
Proclamation 250 of 17
July 1931 and Proclamation 158 of 7 June 1963
extended the state alluvial diggings until it ultimately covered the
whole of the subject
land. The last three Proclamations also
described the subject land as 'unalienated Crown land'.
[93] The
appellant contended that the premise that the subject land was
unalienated Crown land meant that the protection and benefits
afforded to the owner of land on which a state alluvial digging was
established, were not afforded to the Richtersveld community.
These
included the protection and benefits afforded to the rights of
surface owners under s 29 of the Precious Stones Act 1927;
the
entitlement of owners and surface owners under s 19(1)(a) to
select 400 claims free of charge; the owners' share of licence
moneys
under s 22 and the protection of the owners' homesteads and
water rights under s 23.
[94] It was contended that the
dispossession process was further implemented by s 2 of the
Alexander Bay Development Corporation
Act 46 of 1989, which
established a corporate body and provided for the transfer to it of –
'all
assets, liabilities, rights and obligations of the state in the State
Alluvial Diggings which the Minister of Economic Affairs
with the
concurrence of the Minister of Finance may determine'.
In 1991 the Corporation was granted a
variety of mineral rights in respect of the subject land in terms of
the Precious Stones Act
73 of 1964.
[95] Sections 2 and 3 of the Alexkor
Limited Act 116 of 1992 provided for the change of the Corporation
into a company and for the
name to be changed to Alexkor. The
incorporation of the Corporation as a company had no effect on its
rights and obligations acquired
or incurred prior to such
incorporation. In due course the subject land was granted to and
registered in the name of Alexkor in
1994. On 20 April 1995 the
title deeds of the subject land were endorsed to the effect that a
certificate of mineral rights in respect
of the whole of the subject
land had been issued in favour of Alexkor. It was contended that the
appellant was thus finally dispossessed
of all its rights in the
subject land and the minerals upon it.
[96] The
appellant contended that the dispossession was effected by their
eviction from the subject land and its appropriation by
the State and
Alexkor. It was contended that the dispossession was the result of
racial discrimination in that the State failed
to recognise and
protect their rights in the subject land in the same way that the
land rights of the other inhabitants of the Cape
were consistently
recognised and protected. It was contended that the very essence of
the discrimination against the Richtersveld
community was the State's
fundamental premise that they had no land rights in the subject land
at all.
[97] The LCC held that insofar as the
appellant was dispossessed of any rights in the subject land, such
dispossession was not of
a kind that could found a claim for
restitution. Following its earlier judgment in
Minister of Land
Affairs v Slamdien
1999 (1) BCLR 413
(LCC), the LCC held (para
93):
'A dispossession which did not occur under a law or
practice designed to bring about spatial apartheid, or broadly
speaking, which
was not intended for implementing the division of
South Africa into separate compartments for different racial groups,
would not
qualify as a dispossession for the purposes of the Act.'
In other words, the LCC held that the laws
and practices alleged by the appellant to have resulted in their
dispossession were not
aimed at furthering 'spatial apartheid' and
that without this link the appellant's claim did not fall within the
ambit of the Act.
In my view the LCC erred in this restrictive
interpretation of the Act.
[98] In
Slamdien
the former
landowner's land was expropriated for the building of a racially
exclusive school. In claiming restitution, the argument
was that this
amounted to a racially discriminatory practice in terms of the Act.
In its judgment the Court stated that the underlying
purpose of the
Act was to address dispossessions of land rights resulting from a
particular class of racially discriminatory laws
and practices,
namely those that sought specifically to achieve 'spatial apartheid'.
The Court then continued as follows (para 26):
'These would then be those laws and practices which
discriminated against persons on the basis of race
in the exercise
of rights in land
in order to bring about that racial zoning'
(my
emphasis).
The
Court in
Slamdien
held that the discriminatory component of
the decision to establish a school on the respondents' property was
not directed at the
exercise of rights in land, either directly or
indirectly. It held that the discrimination was directed instead at
the prospective
pupils of the school who would have to be educated
separately from other race groups. For this reason it was held that
the racially
discriminatory practice complained of fell outside the
ambit of the Act.
[99] The real
ratio
of the judgment
in
Slamdien
was therefore not the absence of 'spatial
apartheid' measures but that the Act limited restitution remedies to
people who had been
discriminated against in the exercise of their
land rights (L.A. Hoq,
op cit
at 442).
[100] There is, contrary to the finding of
the LCC (at para 83-92), no justification in the interim Constitution
of the Republic of
South Africa Act 200 of 1993, the Constitution of
the Republic of South Africa Act 108 of 1996 or the Act itself for
confining the
right to restitution under the Act to dispossessions
under laws or practices designed to bring about 'spatial apartheid'.
Counsel
for the second respondent correctly conceded in this Court
that this restriction was not justified.
[101] The Act was in the first place
designed to give effect to ss 8(3)(b) and 121 to 123 of the
interim Constitution. Section
121(2)(b) read with s 8(2)
provided for restitution pursuant to any dispossession of rights in
land if 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 s 8(2),
had that section been in operation at the time of such dispossession.
Section 2 of the
Act, as originally enacted, created the statutory
right to restitution by cross-reference to s 121(2) of the
interim Constitution.
It provided for restitution if the
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 s 8(2)'. I
can find no indication in
any of these provisions for limiting the
right to restitution to laws 'designed to bring about spatial
apartheid'.
[102] Section
25(7) of the Constitution widened the right to restitution for any
dispossession 'as a result of past racially discriminatory
laws or
practices'. This widening was in turn extended to the Act by the
corresponding amendment of s 2(1) brought about by
s 3 of
Act 63 of 1997. Again, if the right to restitution under the Act has
to be limited to dispossessions designed to bring
about 'spatial
apartheid' it would, in my view, not give full effect to the
provisions of either s 25(7) of the Constitution
or the Act.
[103] In
dismissing the appellant's contention that the State's failure to
recognise and protect their rights in the subject land
constituted a
racially discriminatory law or practice, the LCC said that the denial
of such rights was not shown to have been influenced
by, or based
upon any racial discrimination. It said that there was no evidence
to show that the Government officials who failed
to recognise and
protect the appellant's rights did so either for racist reasons or
because they deliberately failed to recognise
the appellant's rights
(at paras 108 and 114). The LCC repeatedly emphasised that the State
and its officials acted in the belief
that the appellant held no
rights in the subject land (e g at para 106).
[104] It seems clear, therefore, that the
LCC required a motive, an intent, a racist reason or a conscious
failure to recognise the
appellant's rights. In so doing it ignored
the effect of the laws and practices on the appellant's rights and
failed to consider
the indirect racial discrimination relied upon by
the appellant.
[105] The fact that the Act expressly
includes indirect racial discrimination in the definition of racially
discriminatory practices
is significant. This is in accordance with
s 9(3) of the Constitution and with the principles established
in the Constitutional
Court's equality jurisprudence. See
Pretoria
City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) para 43 where the
Constitutional Court held that in the case of indirect discrimination
proof of motive or intention to discriminate
on the part of the State
is not required.
[106] The LCC held, as I have already
indicated, that upon annexation the Richtersveld became Crown land
because the Colonial Government
considered the inhabitants to be
insufficiently civilised and the land therefore
terra nullius
.
As I have found, the LCC erred in two respects in this regard: the
inhabitants were not insufficiently civilised and the Colonial
Government for this reason did not regard the land as
terra
nullius
.
[107] Ignoring the fact that the
Richtersveld was not
terra nullius
, State policy since the
1920's has consistently been to regard the Richtersveld as Crown land
and, while acknowledging their occupation
and use of the land since
before annexation, it has refused to recognise that the Richtersveld
inhabitants have any rights in the
land. For example, according to
the minutes of the meeting of the Parliamentary Select Committee on
Public Accounts on 3 April 1922
the Government's attitude was stated
to be that the Richtersveld became Crown land upon annexation and,
while the inhabitants' 'precarious
occupation' was acknowledged, it
was not accepted that they held any rights in the land.
[108] Precisely
the same State policy is evident in the whole process set out above
whereby the said Proclamations under the Precious
Stones Act, 1927
were promulgated and the legislative and executive steps taken which
culminated in the eviction of the appellant
and the eventual transfer
of full ownership to Alexkor. (I have referred to the fact that the
Proclamations described the subject
land as unalienated Crown land.)
[109] Underlying
the State policy was the obvious, albeit unexpressed, premise that
the Richtersveld became Crown land upon annexation
because its people
were insufficiently civilised. It can safely be accepted that an
essential part of this premise was the race
of the Richtersveld
people. No alternative springs to mind or was suggested. The racial
discrimination, therefore, is clear.
[110] The
effect of the State policy was that the Richtersveld people were
treated as if they had no rights in the subject land.
Their
dispossession resulted from a racially discriminatory practice in
that it was based upon and proceeded from the premise that
due to
their lack of civilisation, to which their race was inextricably
linked, the Richtersveld people had no rights in the subject
land.
[111] 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
is entitled in terms
of
s 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.'
_________________
VIVIER ADP
HARMS JA)
SCOTT JA)
FARLAM JA) CONCUR
MTHIYANE JA)
1
The full description of the properties is to be found in the LCC
judgment at para 1 fn 1.
2
The Alexander Bay Development Corporation Act 46 of 1989 established
a corporation with that name and all the assets, liabilities
and
obligations of the State in the State Alluvial Diggings, which the
Minister of Economic Affairs and Technology with the concurrence
of
the Minister of Finance may have determined, passed to the
Corporation. The Alexkor Limited Act 116 of 1992 provided for the
incorporation of the Alexander Bay Development Corporation as a
public company under the name Alexkor Ltd and for matters connected
therewith. This aspect is dealt with in more detail later.
3
The Reserve 'for the use of Hottentots and Bastards who are residing
therein and of other coloured people as the Governor-General
may
decide'.
4
LCC judgment par 14-16.
5
See LCC judgment para 20.
6
Cape Travels 1777 to 1786
vol 2 (eds Raper and Boucher).
7
A Narrative of Four Journeys into the Country of the Hottentots
and Caffraria
.
8
RH Bartlett
Native Title in Australia
(Butterworths).