Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003)

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[2003] ZACC 18
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Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003)

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 19/03
ALEXKOR LIMITED
First Appellant
THE GOVERNMENT OF THE
REPUBLIC
OF SOUTH AFRICA
Second Appellant
versus
THE RICHTERSVELD
COMMUNITY AND OTHERS
Respondent
Heard on:
4 and 5 September 2003
Decided
on: 14 October 2003
JUDGMENT
THE COURT:
Introduction
This appeal concerns a claim for restitution of land by the
Richtersveld Community under the provisions of the Restitution of

Land Rights Act
(the Act).
1
The claim was dismissed by the Land Claims Court (LCC).
2
That court also dismissed an application for leave to appeal.
3
The Supreme Court of Appeal (SCA) granted leave, set aside the order
of the LCC and granted relief to the respondent (the Richtersveld
Community).
4
Initially, only the first appellant (Alexkor)
5
sought special leave to appeal to this Court. That application
succeeded.
Some three weeks prior to the hearing of this appeal, the second
appellant (the government) sought condonation for its failure
to
apply timeously for special leave to appeal against the order of the
SCA. The government was directed to file its heads of argument,
and
its condonation application was heard together with the argument on
the merits of the appeal. This application is referred
to below.
6
Suffice it to say at this stage that the relief sought by the
government was granted, and it was admitted as the second appellant.
The facts and issues raised in this appeal appear from the earlier
judgments of the LCC and SCA. It is thus not necessary to set
them
out in detail in this judgment. We will refer only to those facts
necessary to make what follows intelligible.
The Richtersveld is a large area of land situated in the
north-western corner of the Northern Cape Province. For centuries it

has been inhabited by what is now known as the Richtersveld
Community. The application was launched by the Community as such,
its
members in the main centres of the Richtersveld and in the names
of all of the present members of the Community. In the SCA, nothing
turned on standing and it was the Richtersveld Community’s claim
that was upheld. We follow the example of the SCA and refer
to the
respondent simply as “the Richtersveld Community” or “the
Community”.
The claim does not relate to the whole of the Richtersveld, but only
to a narrow strip of land along the west coast from the Gariep
(Orange) River in the north to just below Port Nolloth in the south.
We shall refer to this as “the subject land”. It is registered
in the name of Alexkor.
The relevant provisions of the Act are to be found in section 2(1).
It provides that:
“
A person
shall be entitled to restitution of a right in land if –
. . .
.
(d)
it is a community or
part of a community dispossessed of a right in land after 19 June
1913 as a result of past racially discriminatory
laws or practices;
and
(e)
the claim for such
restitution is lodged not later than 31 December 1998.”
In terms of section 1 of the Act “restitution of a right in land”
means:
“
(a)
the restoration of a right in land;
7
or
(b)
equitable redress;”
“
right in land” means:
“
any right
in land whether registered or unregistered, and may include the
interest of a labour tenant and sharecropper, a customary
law
interest, the interest of a beneficiary under a trust arrangement and
beneficial occupation for a continuous period of not less
than 10
years prior to the dispossession in question;”
and “racially discriminatory practices” means:
“
racially
discriminatory practices, acts or omissions, direct or indirect, by –
(a)
any department of
state or administration in the national, provincial or local sphere
of government;
(b)
any other functionary
or institution which exercised a public power or performed a public
function in terms of any legislation.”
By agreement between the parties, the LCC confined itself to
deciding the question whether the Richtersveld Community met the

requirements of section 2(1) of the Act, and in particular whether
it constituted 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. The Richtersveld Community
claimed
that it was dispossessed of ownership (under common law or
indigenous law)
8
or the right to exclusive beneficial occupation and use of the
subject land including the exploitation of its natural resources.
The LCC held that the Richtersveld Community constituted “a
community” for the purposes of the Act, and had beneficially
occupied
the subject land for a continuous period of not less than
ten years prior to its dispossession after 19 June 1913. However, it

held further that the Community had failed to prove that this
dispossession was the result of discriminatory laws or practices.
In upholding the appeal, the SCA, in a comprehensive and helpful
judgment, found that the Richtersveld Community had been in
exclusive
possession of the whole of the Richtersveld, including the
subject land, prior to and after its annexation by the British Crown
in 1847. It held that those rights to the land (including minerals
and precious stones) were akin to those held under common law
ownership and that they constituted a “customary law interest”
as defined in the Act. It further found that in the 1920s, when
diamonds were discovered on the subject land, the rights of the
Richtersveld Community were ignored by the state which dispossessed
them and eventually made a grant of those rights in full ownership
to Alexkor. Finally, the SCA held that the manner in which the
Richtersveld Community was dispossessed of the subject land amounted
to racially discriminatory practices as defined in the Act.
The SCA
accordingly made the following order:
“
In result
the appeal succeeds with costs including the costs of two counsel.
The orders of the LCC are set aside and replaced with
an order in the
following terms:
‘
(a) It is
declared that, subject to the issues that stand over for later
determination, the first plaintiff [the Richtersveld Community]
is
entitled in terms of
section 2(1)
of the
Restitution of Land Rights
Act 22 of 1994
to restitution of the right to exclusive beneficial
occupation and use, akin to that held under common-law ownership, of
the subject
land (including its minerals and precious stones);
(b) The defendants are ordered
jointly and severally to pay the plaintiffs’ costs including the
costs of three counsel.’”
9
Alexkor and the government contend that any rights in the subject
land which the Richtersveld Community might have held prior to
the
annexation of that land by the British Crown were terminated by
reason of such annexation. They contend further that, in any
event,
the dispossession of the subject land after 19 June 1913 was not the
consequence of racially discriminatory laws or practices.
Accordingly they seek to set aside the order made by the SCA.
Admission of the government as a second appellant
The government participated actively as a party to the proceedings
in the LCC and the SCA. The judgment of the SCA was delivered
on 24
March 2003. The time provided in
Rule 20
of the rules of this Court
for lodging an application for special leave to appeal expired on 14
April 2003.
10
By agreement between the parties that time was extended by the Chief
Justice to 30 April 2003.
By letter dated 24 April 2003, the state attorney advised the
attorneys for the Richtersveld Community that, as Alexkor was
appealing
the judgment of the SCA, the government had decided that
it would not actively participate in the proceedings and had opted
to
abide the decision of this Court. Thereafter the government
pursued attempts to settle the claim of the Richtersveld Community.
Discussions to that end were held between 8 April 2003 and 26 May
2003. They were not successful.
It appears from the affidavit filed on behalf of the government that
on 4 August 2003 the Chief State Law Adviser instructed senior
counsel to prepare an application for special leave to appeal and
for condonation of the late application for that relief. The
delay
is ascribed to the number of departments of state that were involved
in the matter and to the fact that “no co-ordinated
evaluation of
the order of the SCA was undertaken before the Cabinet decision of
11 June 2003.” The affidavit goes on to record
that: “[i]t was
only at the meeting of 16 July 2003 that serious consideration was
given to the possibility of seeking special
leave to appeal on
behalf of the Applicant.” The application for condonation was
filed in this Court on 13 August 2003.
We were informed by counsel for the Richtersveld Community that it
would abide the decision of the Court in respect of the government’s
application. However, counsel pointed out that according to the
government’s own affidavit, it took a decision after the delivery
of the judgment of the SCA not to appeal against it and thereby
perempted the right to do so. Thereafter the government changed
its
mind and now seeks special leave to appeal.
Had the government been the only party in this matter, the
peremption of its right to appeal might well have brought an end to
the litigation. However, Alexkor, which is wholly owned by the
government, has been granted special leave to appeal. The joinder
of
the government in the lower court proceedings has the consequence
that any order made by this Court against Alexkor would be
binding
on the government. It was not submitted that the Richtersveld
Community would be prejudiced if this Court received the
heads of
argument submitted on behalf of the government or if we heard oral
argument from its counsel.
In these circumstances we decided that we should receive the
government’s heads of argument. As the heads of argument
substantially
traversed the same ground covered by those submitted
on behalf of Alexkor, we restricted the oral submissions of the
government
to responding to any questions that might be put to them
by members of the Court.
We heard argument on the question as to whether a special order for
costs should be made against the government in respect of its
condonation application. The proceedings in the LCC were instituted
at the end of 1998 and at all times since then the government
has
been actively involved in the litigation. The delay in applying for
special leave to appeal is unacceptable and has not been
adequately
explained. There can be no question that the costs incurred by the
Richtersveld Community with regard to the application
must be paid
by the government. To mark its displeasure at the delay, this Court
will order those costs be paid on the attorney
client scale.
The issues that arise in this appeal
The following questions were argued in this appeal:
The identification of the issues that fall within the jurisdiction
of this Court;
The law to be applied to relevant events that antedate the interim
Constitution;
11
The nature of the rights in land of the Richtersveld Community
prior to annexation;
The legal consequences of annexation of the subject land;
The nature of the rights in the subject land held by the
Richtersveld Community after 19 June 1913;
The steps taken by the state in respect of the subject land after
19 June 1913;
Whether the dispossession was the result of racially discriminatory
laws or practices.
We shall consider each of these issues in turn.
(a) The identification of the issues that fall within the
jurisdiction of this Court
To found an entitlement to restitution of a right in land under
section 2(1)(d) and (e) of the Act, quoted in paragraph 6 above,
the
following have to be established:
that the Richtersveld Community is a “community” or “part of
a community” as envisaged by the subsection;
that the Community had a “right in land” as envisaged;
that such a right in land continued to exist after 19 June 1913;
that the Community was, after 19 June 1913, “dispossessed” of
such “right in land”;
that such dispossession was the “result of past racially
discriminatory laws or practices”; and
that the Community’s claim for “restitution” was lodged not
later than 31 December 1998.
Issues (a) and (f) are now common cause and, as will emerge in the
course of the judgment, so too are aspects of the other issues.
The issue of jurisdiction relates in part to the division of final
jurisdiction between the Constitutional Court and the Supreme
Court
of Appeal. Section 167(3) of the Constitution, after providing in
paragraph (a) that the Constitutional Court “is the highest
Court
in all constitutional matters”, proceeds in paragraph (b) to
define the Constitutional Court’s jurisdiction by providing
that
it
“
. . . may
decide only constitutional matters, and
issues
connected with decisions on constitutional matters
”.
(Emphasis supplied.)
This latter provision must be read together with section 167(3)(c)
which provides that the Constitutional Court
“
. . .
makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter”,
with section 167(7) which states that
“
[a]
constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution”,
and with section 168(3) which states that the Supreme Court of Appeal
is “the highest court of appeal except in constitutional
matters”.
It thus becomes necessary to consider whether, and to what extent,
this Court has the power to determine any of the issues referred
to
in paragraph 19(b) to (e) above. Section 25(7) of the Constitution
provides:
“
A person
or community dispossessed of property after 19 June 1913 as a result
of past racially discriminatory laws or practices is
entitled, to the
extent provided by an Act of Parliament, either to restitution of
that property or to equitable redress.”
This provision is, in relation to matters relevant to the present
case, and with one exception, mirrored in the provisions of section
2(1)(d) of the Act, quoted in paragraph 6 above. The exception
relates to the fact that in the Constitution the dispossession
relates
to “property” whereas in the Act it relates to “a right
in land.” Nothing turns on this difference in the present case. A
similar ‘mirroring’ occurred between the relevant provisions in
the interim Constitution and those in the Act, prior to its amendment
by section 3(1) of Act 63 of 1997.
12
In
NEHAWU v University of Cape Town and Others
13
this Court held that where a statute has been enacted to give
content to a constitutional right or to meet the legislature’s
constitutional obligations, the proper construction of such statute
is a constitutional matter for purposes of section 167(3)(b)
of the
Constitution.
14
The provisions of section 2(1) of the Act are clearly statutory
provisions enacted to give content to the section 25(7)
constitutional
right and to fulfil Parliament’s obligations
expressly referred to in the subsection. It follows, therefore, that
the issues
in this appeal, detailed above and relating to the
interpretation and application of section 2(1) of the Act, are all
“constitutional
matters” over which this Court has jurisdiction.
A more difficult question is to determine whether this Court has
jurisdiction to deal with all issues bearing on or related to
establishing the existence of these matters. For example, the
question might be asked whether the issue concerning the existence
of the Community’s rights in land prior to the colonisation of the
Cape, or the content or incidence of such rights, constitute
in
themselves “constitutional matters”; the same might be asked
concerning the continued existence of such rights after the
British
Crown’s annexation of the Cape in 1806, or after the 1847
Proclamation or the subsequent statutory and other acts thereafter.
The question is whether such matters are “issues connected with
decisions on constitutional matters” for purposes of section
167(3)(b) of the Constitution.
This Court is declared to be the highest court in respect of
constitutional matters in terms of section 167(3)(a) of the
Constitution.
It has not yet, in so many words, decided whether
“issues connected with decisions on constitutional matters”,
constitute a
“constitutional matter” for purposes of section
167(3)(a). We are mindful of the cautionary observation by this
Court in
S v Boesak
15
that, although the jurisdiction of this Court is “clearly . . .
extensive”,
16
it ought not to be so construed as to render “illusory”
the distinction drawn in the Constitution between the jurisdiction
of
this Court and that of the SCA.
17
Nevertheless, when one adopts a purposive approach to the
harmonising of section 167(3) and (7) and section 168(3) referred to
in paragraph 21 above, as
Boesak
enjoins us to do,
18
it is evident that this Court is the highest court in respect of
issues connected with decisions on constitutional matters. The
contrary conclusion would be anomalous and contrary to the
Constitution’s structure of jurisdiction and its division between
this Court and the SCA. It would mean that, although this Court is
granted jurisdiction in respect of “issues connected with
decisions on constitutional matters,” those would be the only
matters under its jurisdiction in respect whereof its judgment
would
not be final. This would moreover give rise to a serious hiatus in
the Constitution, since there is no appeal from this Court.
The conclusion that this Court is the highest court also in relation
to “issues connected with decisions on constitutional matters”
is in our view placed beyond doubt by the fact that section
167(3)(c) provides that this Court also makes the final decision on
“whether an issue is connected with a decision on a constitutional
matter.”
This opens the way to considering more directly how broadly or
narrowly the phrase “issues connected with decisions on
constitutional
matters” must be construed, more particularly the
words “connected with”. “Connected”, defined variously by
the
Oxford English Dictionary
as “linked together” or
“joined together in order or sequence (as words or ideas)” or
“related, associated (in nature
or idea)”, is clearly a word of
wide import, connoting a relationship between, amongst other things,
ideas or concepts. It is
not limited by any sense of immediacy or
close relationship.
This wide construction is consistent with the purpose of the
provision. It is intended to extend the jurisdiction of this Court
to matters that stand in a logical relationship to those matters
that are primarily, or in the first instance, subject to the Court’s
jurisdiction. The underlying purpose is to avoid fettering,
arbitrarily and artificially, the exercise of this Court’s
functioning
when obliged to determine a constitutional matter. If
any anterior matter, logically or otherwise, is capable of throwing
light
on or affecting the decision by this Court on the primary
constitutional matter, then it would be artificial and arbitrary to
exclude
such consideration from the Court’s evaluation of the
primary constitutional matter. To state it more formally, when any
factum probandum
19
of a disputed issue is a constitutional matter, then any
factum
probans
, bearing logically on the existence or otherwise of such
factum probandum,
is itself an issue “connected with [a]
decision[] on [a] constitutional matter[]”.
In conclusion, on this jurisdictional issue, it is necessary to
apply the above analysis and conclusion to the issues in this appeal
relating to section 2(1) of the Act. This is best done by
considering, for example, the issue whether, after 19 June 1913, the
Richtersveld Community had a “right in land” as envisaged by
section 2(1) of the Act.
One of the relevant questions is whether the Community had such a
right or rights prior to the British Crown acquiring sovereignty
over the subject land in 1847. Determination of this issue, for the
reasons just stated, is connected with the decision on a
constitutional
matter, namely, the question as to whether the
Community, after 19 June 1913, had such a “right in land”. It
follows from what
has been said above, that this Court does have
jurisdiction to determine this anterior question. For the same
reason, this Court
has jurisdiction in relation to all intervening
events in relation to which it could be suggested that the Community
had lost such
a “right in land”. The Court likewise has
jurisdiction to determine all issues relevant to the matters that
have to be established
under section 2(1) of the Act, whether
anterior thereto or not.
(b) The law to be applied to relevant events that antedate the
interim Constitution
Where appropriate, this Court has consistently made use of
comparative law. At the same time it has cautioned against the
uncritical
use of comparative material and pointed to its potential
dangers.
20
Courts in other jurisdictions have in recent times been faced with
the complex and difficult problems of dealing, after the event,
with
the injustices caused by dispossessions of land, or rights in land,
from indigenous inhabitants by later occupiers of the
land in
question.
21
These later occupiers claimed political and legal sovereignty over
the land, and such dispossessions invariably took place in a
racially discriminatory manner. They often occurred centuries ago,
when the legal norms and principles of the later occupiers differed
substantially from those of today.
In this regard, our situation in this country differs substantially
from that of the jurisdictions referred to above in that both
our
interim Constitution and the Constitution have dealt expressly with
this problem. The general rule established by this Court
in
Du
Plessis and Others v De Klerk and Another
22
is that the interim Constitution did not operate
retroactively, in the sense that
“‘
. . .
as at a past date the law shall be taken to have been that which it
was not, so as to invalidate what was previously valid,
or vice
versa.
. . . .
. . . the [interim]Constitution
does not turn conduct which was unlawful before it came into force
into lawful conduct.”
23
The consequences of this general principle are not invariable, so it
has been stated, and the possibility has been left open that
“
. . .
there may be cases where the enforcement of previously acquired
rights would in the light of our present constitutional values
be so
grossly unjust and abhorrent that it could not be countenanced,
whether as being contrary to public policy or on some other
basis.”
24
To date there has been no occasion when the above general principle
has not been applied, either by this or any other Court.
25
However, both the interim Constitution and the Constitution have
provided expressly for their retroactive application to
dispossessions
of rights in land that took place after 19 June 1913.
The interim Constitution, in section 121(2), provided that
“
[a] person
or a community shall be entitled to claim restitution of a right in
land from the state if –
such person or community was
dispossessed of such right at any time after a date to be fixed by
the Act referred to in subsection
(1); and
such dispossession was
effected under or for the purpose of furthering the object of a law
which would have been inconsistent
with the prohibition of racial
discrimination contained in section 8(2), had that section been in
operation at the time of such
dispossession.”
and section 121(3) provided that the date fixed by subsection (2)(a)
should not be a date earlier than 19 June 1913. Section 25(7)
of the
1996 Constitution provides that
“
[a]person
or community dispossessed of property after 19 June 1913 as a result
of past racially discriminatory laws or practice is
entitled, to the
extent provided by an Act of Parliament, either to restitution of
that property or to equitable redress.”
For present purposes it is only necessary to deal with the
provisions of the Constitution. The date chosen, 19 June 1913, is of
course the date on which the Natives Land Act 27 of 1913 came into
operation. This Act deprived black South Africans of the right
to
own land and rights in land in the vast majority of the South
African land mass. It is quite apparent that section 25(7) and
the
implementing provisions of the Act have retroactive effect until at
least 19 June 1913, because the very purpose behind their
provisions
is to provide redress for dispossessions that were valid under the
law of that time.
The question that arises, however, is whether these provisions have
retroactive effect antedating 19 June 1913. There are strong
indications that they do not. It must be assumed that, in the light
of the judgment in
Du Plessis and Others v De Klerk and Another
,
26
the drafters of the Constitution were aware of the general rule
against retroactivity. They obviously applied their minds to this
aspect in relation to the restoration of land and land rights, which
has always been an issue of supreme importance. This was highlighted
by the different approaches of the negotiating parties to the
problem. The limit of retroactivity agreed upon and enacted in the
Constitution is set at 19 June 1913. Had there been any desire for
the provisions of the 1996 Constitution to have retroactive
effect
beyond this date, one would have expected this to have been so
enacted. It was not. It is however not necessary to express
a
definitive view on this particular issue in the present case. There
has been no contention that any provision of the Constitution
has
retrospective effect antedating 19 June 1913. The present case can
be dealt with effectively on the assumption that none of
the
provisions has such effect. The question whether a court, when
considering the common law applicable at a time before both
the
interim Constitution and the Constitution came into force,
27
may develop the common law in the light of provisions of the
Constitution as provided for by section 39(2) of the Constitution,
28
does not, in the view we have taken of the matter, arise in this
case. This is a complex matter which we leave open for future
decision, as we have done before.
29
It is not so clear how this time limitation is to be applied to the
requirement that such dispossession must be “as a result
of past
racially discriminatory laws or practices.” One purpose is, no
doubt, to make clear that the dispossession must have
occurred
before the interim Constitution came into operation.
Whatever the phrase might mean, it cannot have the effect of making
a dispossession actionable that took effect before 19 June
1913.
This does not mean that regard may not be had to racially
discriminatory laws and practices that were in existence or took
place before that date. Regard may indeed be had to them if the
purpose is to throw light on the nature of a dispossession that
took
place thereafter or to show that when it so took place it was the
result of racially discriminatory laws or practices that
were still
operative at the time of the dispossession.
However, when it comes to the legal effect of other events prior to
19 June 1913, these must be adjudged according to the law then
prevailing. So, for example, when considering the effect of the
British annexation of the Cape in 1806 and its impact on acquired
rights, or of the 1847 Proclamation or other legislative or
administrative acts, the then prevailing law must be applied. This
does not mean that when evaluating rights, including the indigenous
rights of the Richtersveld Community, as to their existence
or
content, use may not be made of later evidence or scholarship in
regard to such rights or their content.
(c) The
nature of the rights in land of the Richtersveld Community prior to
annexation
In this Court Alexkor contended that the SCA erred in holding that
the Richtersveld Community held “a customary law interest”
in
the subject land which was akin to ownership under common law and
that this right included the ownership of minerals and precious
stones. But, according to the judgment of the SCA, Alexkor and the
government conceded this issue.
30
The preliminary question which arises is whether it is open to
Alexkor to revive this issue on appeal in this Court.
The applicable rule is that enunciated in
Paddock Motors (Pty)
Ltd v Igesund.
31
In that case, the Appellate Division held that a litigant who had
expressly abandoned a legal contention in a court below was entitled
to revive the contention on appeal. The rationale for this rule is
that the duty of an appeal court is to ascertain whether the
lower
court reached a correct conclusion on the case before it. To prevent
the appeal court from considering a legal contention
abandoned in a
court below might prevent it from performing this duty. This could
lead to an intolerable situation, if the appeal
court were bound by
a mistake of law on the part of a litigant.
32
The result would be a confirmation of a decision that is clearly
wrong.
33
As the court put it:
“
If the
contention the appellant now seeks to revive is good, and the other
two bad, it means that this Court, by refusing to investigate
it,
would be upholding a wrong order.”
34
It is therefore open to Alexkor and the government to raise in this
Court the legal contention which they abandoned in the SCA.
However,
they may only do so if the contention is covered by the pleadings
and the evidence and if its consideration involves no
unfairness to
the Richtersveld Community.
35
The legal contention must, in other words, raise no new factual
issues. The rule is the same as that which governs the raising
of a
new point of law on appeal.
36
In terms of that rule “it is open to a party to raise a new point
of law on appeal for the first time if it involves no unfairness
. .
. and raises no new factual issues.”
37
We are concerned here with a legal contention relating to the nature
and the content of the rights held by the Richtersveld Community
in
the subject land. That contention does not raise new factual issues.
Its consideration will not involve any unfairness to the
Richtersveld Community, which has been able to deal with it fully.
The determination of the nature and the content of the land
right of
the Richtersveld Community prior to and after annexation is basic to
the adjudication of the central question presented
in the appeal,
namely, whether the Richtersveld Community was dispossessed of its
land rights after 19 June 1913 as a result of
discriminatory laws or
practices. In addition, the proper characterisation of the title is
crucial to any order that the LCC may
ultimately make.
38
For all of these reasons, we are entitled to determine firstly, the
nature and the content of the land rights that the Richtersveld
Community held in the subject land prior to annexation; and
secondly, whether such rights survived annexation. It now remains to
consider these issues.
In the SCA, the Richtersveld Community contended that, as at 19 June
1913, it possessed (a) a right of ownership; (b) the right
to
exclusive beneficial occupation and use; or (c) the right to use the
subject land for certain specified purposes, including
exploitation
of natural resources.
39
In the main, the Community contended that it possessed these rights
under indigenous law and, after annexation, under the common
law of
the Cape Colony or international law which protected the rights
acquired under indigenous law. In the alternative, it was
contended
that the rights which the Community held in the subject land under
its own indigenous law constituted a “customary
law interest”, a
right in land within the meaning of the Act, even if these rights
were not recognised or protected.
40
These rights were also asserted in relation to the right of
beneficial occupation for a continuous period of not less than 10

years that had been found by the LCC.
As pointed out above, the SCA found that the Richtersveld Community
“
. . . had
a ‘customary law interest’ in the subject land within the
definition of ‘right in land’ in the Act. The substantive
content
of the interest was a right to exclusive beneficial occupation and
use, akin to that held under common-law ownership . .
. .”
41
In this Court the Richtersveld Community persisted in the claims
that it had asserted in the SCA. It contended that its indigenous
law ownership constituted a real right in land in indigenous law or
at the very least “a customary law interest” within the
definition of a right in land.
The nature and the content of the rights that the Richtersveld
Community held in the subject land prior to annexation must be

determined by reference to indigenous law. That is the law which
governed its land rights.
42
Those rights cannot be determined by reference to common law. The
Privy Council has held, and we agree, that a dispute between
indigenous people as to the right to occupy a piece of land has to
be determined according to indigenous law “without importing
English conceptions of property law.”
43
While in the past indigenous law was seen through the common law
lens, it must now be seen as an integral part of our law. Like
all
law it depends for its ultimate force and validity on the
Constitution.
44
Its validity must now be determined by reference not to common law,
but to the Constitution.
45
The courts are obliged by section 211(3) of the Constitution to
apply customary law when it is applicable, subject to the
Constitution
and any legislation that deals with customary law. In
doing so the courts must have regard to the spirit, purport and
objects of
the Bill of Rights.
46
Our Constitution
“
. . . does
not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or
legislation,
to the extent that they are consistent with the Bill [of Rights].”
47
It is clear, therefore that the Constitution acknowledges the
originality and distinctiveness of indigenous law as an independent
source of norms within the legal system. At the same time the
Constitution, while giving force to indigenous law, makes it clear
that such law is subject to the Constitution and has to be
interpreted in the light of its values. Furthermore, like the common
law,
indigenous law is subject to any legislation, consistent with
the Constitution, that specifically deals with it.
48
In the result, indigenous law feeds into, nourishes, fuses with and
becomes part of the amalgam of South African law.
In 1988,
49
the Law of Evidence Amendment Act provided for the first time that
all the courts of the land were authorised to take judicial
notice
of indigenous law.
50
Such law may be established by adducing evidence.
51
It is important to note that indigenous law is not a fixed body of
formally classified and easily ascertainable rules. By its very
nature it evolves as the people who live by its norms change their
patterns of life. As this Court pointed out in the
Ex Parte
Chairperson of the Constitutional Assembly: In re Certification of
the Constitution of the Republic of South Africa, 1996
:
52
“
The
[Constitutional Assembly] cannot be constitutionally faulted for
leaving the complicated, varied and ever-developing specifics
of how
. . . customary law should develop and be interpreted, to future
social evolution, legislative deliberation and judicial
interpretation.”
53
In applying indigenous law, it is important to bear in mind that,
unlike common law, indigenous law is not written. It is a system
of
law that was known to the community, practised and passed on from
generation to generation. It is a system of law that has its
own
values and norms. Throughout its history it has evolved and
developed to meet the changing needs of the community.
54
And it will continue to evolve within the context of its values and
norms consistently with the Constitution.
Without attempting to be exhaustive, we would add that indigenous
law may be established by reference to writers on indigenous
law and
other authorities and sources, and may include the evidence of
witnesses if necessary. However, caution must be exercised
when
dealing with textbooks and old authorities because of the tendency
to view indigenous law through the prism of legal conceptions
that
are foreign to it. In the course of establishing indigenous law,
courts may also be confronted with conflicting views on what
indigenous law on a subject provides.
55
It is not necessary for the purposes of this judgment to decide how
such conflicts are to be resolved.
56
This case does not require us to examine the full range of problems
concerned. In the present matter extensive evidence exists
as to the
nature of the indigenous law rights exercised by the Richtersveld
Community as they evolved up until 1913. As we stressed
above, to
understand them properly these rights must be considered in their
own terms and not through the prism of the common law.
The dangers of looking at indigenous law through a common law prism
are obvious. The two systems of law developed in different
situations, under different cultures and in response to different
conditions. In this regard we are in agreement with the observations
of the Privy Council in
Amodu Tijani v The Secretary, Southern
Nigeria
:
57
“
Their
Lordships make the preliminary observation that in interpreting the
native title to land, not only in Southern Nigeria, but
other parts
of the British Empire, much caution is essential. There is a
tendency, operating at times unconsciously, to render that
title
conceptually in terms which are appropriate only to systems which
have grown up under English law. But this tendency has to
be held in
check closely. . . The title, such as it is, may not be that of the
individual, as in this country it nearly always is
in some form, but
may be that of a community. . . To ascertain how far this latter
development of right has progressed
involves
the study of the history of the particular community and its usages
in each case. Abstract principles fashioned a priori are of but
little assistance, and are as often as not misleading.”
58
The determination of the real character of indigenous title to land
therefore “involves the study of the history of a particular
community and its usages.”
59
So does the determination of its content.
Under indigenous Nama law, land was communally owned by the
community. Members of the community had a right to occupy and use

the land. In this regard the SCA found:
“
One of the
components of the culture of the Richtersveld people was the
customary rules relating to their entitlement to and use and
occupation of this land. The primary rule was that the land belonged
to the Richtersveld community as a whole and that all its people
were
entitled to the reasonable occupation and use of all land held in
common by them and its resources. All members of the community
had a
sense of legitimate access to the land to the exclusion of all other
people. Non-members had no such rights and had to obtain
permission
to use the land for which they sometimes had to pay. There are a
number of telling examples. A non-member using communal
grazing
without permission would be fined ‘a couple of head of cattle’;
the Reverend Hein, who settled in the Richtersveld in
1844, recorded
in his diary three years later a protest by the community that
Captain Paul (Bierkaptein) Links had, without the consent
of the
‘raad’, let (‘verpacht’) some of its best grazing land at the
Gariep River Mouth; and the trader McDougal established
himself at
the mouth of the Gariep River in 1847 only after obtaining the
permission of Captain Links on behalf of the community
and agreeing
to pay for the privilege. The captain and his ‘raad’ enforced the
rules relating to the use of the communal land
and gave permission to
newcomers to join the community or to use the land.”
60
On this issue the LCC similarly found that the Richtersveld
Community “considered the Richtersveld to be their land, held by
them in common.”
61
These findings are supported by the evidence and we accept them.
The content of the land rights held by the Community must be
determined by reference to the history and the usages of the
community
of Richtersveld. The undisputed evidence shows a history
of prospecting in minerals by the Community and conduct that is
consistent
only with ownership of the minerals being vested in the
Community.
The witnesses on behalf of the Richtersveld Community testified that
long before the annexation the Nama people in Little Namaqualand
had
mined and used copper for purposes of adornment. The witnesses
testified that visitors to the Namaqualand were reported to
have
observed Nama people in the neighbourhood of Gariep smelting copper
and using molten metal to make rings; working in copper
and iron;
and making copper beads and copper plates as ornaments. One writer
concluded from eyewitness accounts that they showed
a Nama “industry
in two metals, copper and iron, materials available locally and in
quantity.”
62
The record includes a text describing the long history of copper
mining in Namaqualand by the indigenous people prior to the
annexation
in 1847.
63
In addition, outsiders were not entitled to prospect for or extract
minerals. The evidence established that the Richtersveld Community
granted mineral leases to outsiders between the years 1856 and
1910.
64
In the light of the evidence and of the findings by the SCA and the
LCC, we are of the view that the real character of the title
that
the Richtersveld Community possessed in the subject land was a right
of communal ownership under indigenous law. The content
of that
right included the right to exclusive occupation and use of the
subject land by members of the Community. The Community
had the
right to use its water, to use its land for grazing and hunting and
to exploit its natural resources, above and beneath
the surface. It
follows therefore that prior to annexation the Richtersveld
Community had a right of ownership in the subject land
under
indigenous law.
65
However, Alexkor contended that whatever land rights the
Richtersveld Community may have held, such rights did not include
ownership
of the minerals and precious stones. This contention was
apparently based on the assumption that the Community did not engage
in
mining and that, even if they did, this became unlawful after
annexation. The fallacy in this argument is that it ignores the
undisputed
evidence on the mining activities of the Community. The
submission that if there was any mining, such mining was unlawful
after
annexation, simply begs the question.
We are satisfied that under the indigenous law of the Richtersveld
Community communal ownership of the land included communal ownership
of the minerals and precious stones. Indeed both Alexkor and the
government were unable to suggest in whom ownership in the minerals
vested if it did not vest in the Community. Accordingly, we conclude
that the history and usages of the Richtersveld Community
establish
that ownership of the minerals and precious stones vested in the
Community under indigenous law.
(d) The legal consequences of the annexation of the subject land
in 1847
The principal contention by Alexkor was that upon annexation British
law became applicable to the subject land. Consequently the
British
Crown became the owner of all land that had not been granted by it
under some form of tenure. As the subject land was such
land, so the
argument went, it became the property of the British Crown. In this
manner, it was submitted, the Richtersveld Community
lost all title
to the subject land. As this occurred prior to 19 June 1913, the
claim must fail.
The subject land was annexed by the British Crown in 1847 pursuant
to the Annexation Proclamation which incorporated Richtersveld
as
part and parcel of the Cape Colony. Under that Proclamation, the
British Crown acquired sovereignty over Richtersveld, including
the
subject land. This gave the British Crown the power to make new
laws, recognise existing rights or extinguish them and create
new
rights. In
Oyekan and Others v Adele
the Privy Council
described the effect of acquisition of sovereignty over a territory
as follows:
“
Their
Lordships desire to point out that the Treaty of Cession was an Act
of State by which the British Crown acquired full rights
of
sovereignty over Lagos . . . The effect of the Act of State is to
give to the British Crown sovereign power to make laws and to
enforce
them, and, therefore, the power to recognise existing rights or
extinguish them, or to create new ones.”
66
In order to ascertain what rights passed to the British Crown or
were retained by the indigenous people at the time of and subsequent
to annexation, we must look to both the Annexation Proclamation and
other relevant conduct of the British Crown such as legislative
acts
or acts of state.
67
In our view there is nothing either in the events preceding the
annexation of Richtersveld or in the language of the Proclamation
which suggests that annexation extinguished the land rights of the
Richtersveld Community. The contention to the contrary by Alexkor
was rightly rejected by the SCA.
The SCA held that the terms of the Annexation Proclamation do not
purport to terminate any right over the annexed territory.
68
It found that the majority of colonial decisions favoured an
approach that a mere change in sovereignty is not meant to disturb
the rights of private owners,
69
and appeared to favour the approach by the Privy Council that:
“
In
inquiring, however, what rights are recognized, there is one guiding
principle. It is this: The courts will assume that the British
Crown
intends that the rights of property of the inhabitants are to be
fully respected. Whilst, therefore, the British Crown, as
Sovereign,
can make laws enabling it compulsorily to acquire land for public
purposes, it will see that proper compensation is awarded
to every
one of the inhabitants who has by native law an interest in it; and
the courts will declare the inhabitants entitled to
compensation
according to their interests, even though those interests are of a
kind unknown to English law . . . .”
70
The SCA adopted the rule that indigenous rights to private property
in a conquered territory were recognised and protected after
the
acquisition of sovereignty and concluded that the rights of the
Richtersveld Community survived annexation.
71
We endorse that conclusion.
(e) The nature of the rights in the subject land held by the
Richtersveld Community after 19 June 1913
After annexation, the right of the Richtersveld Community to
indigenous law ownership could have been extinguished in a number
of
ways. The Richtersveld Community would have lost its indigenous law
ownership if:
the laws of the Crown expressly extinguished the Community’s
customary law ownership of the land;
the laws of the Crown applicable to the Richtersveld rendered the
exercise of any of the material incidents of the indigenous
law
right to ownership unlawful;
the Community was granted limited rights in respect of the land by
the Crown in circumstances where the only reasonable inference
to
be drawn is that the rights of indigenous law ownership were
extinguished; or
the land was taken by force.
This case is not concerned with the forcible taking of land. We must
therefore decide whether the indigenous law ownership of the
Richtersveld Community was extinguished by any law or conduct that
had the consequence described in (a), (b) or (c) above.
Alexkor relied on the Crown Lands Acts of 1860 and 1887
72
(the Acts) in support of the proposition that the rights of the
Richtersveld Community had been extinguished. All the submissions
in
relation to these two Acts were premised on the starting point that
all annexed land had become Crown land by reason of the
annexation.
We have already held that this was not so. It was also contended
that both the 1860 and the 1887 Acts were based on
the assumption
that all the land to which it applied was land owned by the Crown.
However as pointed out by the SCA:
“
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.”
73
In any event, there are indications in both the Acts and in the
prior legislative measures that point decisively away from any
intention of the British Crown to extinguish the rights of the
Richtersveld Community. As an initial matter, any doubt as to the
competency of the indigenous people to purchase or possess land in
the Cape Colony was removed by Ordinance 50 of 1828.
74
Significantly, the Ordinance also recognised the equality in this
regard between the indigenous people and the British subjects.
75
Furthermore, the Acts themselves clearly left open the possibility
for recognition of the Richtersveld Communuity’s claim to
the
subject land. Section 12 of the 1887 Act, which does not differ
materially from the provision in the 1860 Act, provides:
“
Land . . .
occupied bona fide and beneficially without title deed at the date of
the extension of the colonial limits beyond it .
. . 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, who shall have the power of satisfying such claim, by
grant of the land or compensation out of the
purchase money when the
said land shall have been sold or otherwise, as shall appear
equitable: Provided, always, that due notice
of the nature of the
claim, and reasonable proof that it can be substantiated, be received
at the office of the Commissioner in sufficient
time to admit of the
withdrawal of the lot from sale, and that the claimant use reasonable
diligence to lay the proofs in support
thereof before the person or
persons to whom the question may be referred by the Governor. ”
76
The Richtersveld Community was the indigenous law owner of the
Richtersveld. Stated in the terms used in the Acts, members of the
Community were, as at 1847, in bona fide and beneficial occupation
of the land without title deed. Accordingly, under the Acts
the
Richtersveld was not to be considered or treated as Crown land until
the claim thereto had been decided by the Governor. The
Crown Lands
Acts regulated the alienation of land. Section 12 of the 1887 Act in
effect provided that occupied land such as the
Richtersveld would be
regarded as Crown land for the purpose of alienation only after any
claim to that land had been decided upon
by the Governor. Although
the Richtersveld Community consistently claimed the land occupied by
it as its own,
77
we do not know whether it had made a formal claim in terms of one of
the Crown Lands Acts in respect of the land occupied by it.
What is
certain though is that the Governor made no decision on the fate of
the Richtersveld land. The SCA found that “[t]hese
Acts
accordingly manifested an intention to respect existing land rights
and not to extinguish them.”
78
The conclusion that section 12 demonstrates that the Acts did not
extinguish the Community’s right of ownership is unassailable.
In
fact, the Acts created a mechanism for adjudication by the Governor
of the Community’s claim.
Contrary to the finding of the SCA, Alexkor contended that the grant
of land had to originate with the British Crown. Alexkor placed
much
reliance upon the views expressed by some colonial government
officials. These views, it was submitted, supported the conclusion
that the colonial government regarded all land in the Cape Colony as
Crown land unless it was held under a grant made by the Crown.
The
reliance upon the views of the colonial government officials is
misplaced.
What matters is not the views of the colonial government officials
but the law of the Cape Colony at the time of, and subsequent
to,
annexation. As we have held, the applicable law in the Cape Colony
at the time of annexation respected and protected land rights
of the
indigenous people. No act of state or legislation extinguished the
land rights of the Richtersveld Community subsequent
to annexation
but before 19 June 1913. The Crown Lands Acts relied upon by Alexkor
did not have that effect. The views of colonial
government officials
cannot therefore prevail over the law that was applicable in the
Cape Colony and which respected and recognised
the land rights of
the Richtersveld Community.
Apart from this, colonial government officials expressed conflicting
views on the issue. Some officials recognised the land rights
of the
Richtersveld Community. In addition, the conduct of the Richtersveld
Community was consistent with their ownership of the
subject land.
It granted grazing leases and mineral leases to outsiders. Indeed as
late as 23 February 1910 Reverend Kling entered
into a mineral lease
on behalf of the Richtersveld Community whom he described as “the
owner of certain ground situate in the
District of Klein
Namaqualand, in extent about seven hundred thousand morgen.”
79
Moreover, the witnesses on behalf of the Richtersveld Community
testified that it had been in occupation of the subject land at
the
time of annexation and continued to be until its eviction after the
discovery of diamonds in the 1920s. This testimony is supported
by
the documentary evidence that showed, amongst other things, that the
Richtersveld Community continued to occupy, claim and exercise
rights of ownership over the whole of the Richtersveld.
Finally, Alexkor relied on the fact that, according to his report
dated 30 June 1890, Mr Melvill, an Assistant Surveyor-General,
“
. . .
proceeded to point out certain boundaries to which I requested [the
Richtersveld people] to confine themselves, informing them
at the
same time that these were only provisional, and subject to the
approval of the Government.”
80
It was suggested that the Richtersveld Community lost its rights to
the subject land, because it was excluded from the land demarcated
by
Melvill, on one of two bases. The first contention was that the
members of the Community confined themselves within the limited
area
pointed out by Melvill and accordingly forfeited any right to the
land.
The other basis was this: the Community was, at a later date,
prepared to accept an arrangement in terms of which the tract of
land identified by Melvill was officially and formally allocated to
the Richtersveld Community by the government. However, the
LCC found
that the land demarcated in compliance with Melvill’s suggestion
was never formally or officially allocated to the
Richtersveld
Community.
81
The SCA also found that the Richtersveld Community maintained its
rights to the subject land.
82
These arguments accordingly do not advance the case for the
appellants.
The inevitable conclusion is that the indigenous law ownership of
the Richtersveld Community remained intact as at 19 June 1913.
No
steps were taken to extinguish the rights of ownership prior
thereto. No ticket or certificate of occupation or certificate
of
grant had been issued which had the effect of limiting the
indigenous law ownership of the Community in any way. No law was
passed to render unlawful the exercise of any right by the
Richtersveld Community in respect of the land in terms of its own
indigenous
law. Many opinions were expressed, there was much debate
about what was to be done, considerable effort was expended in
investigating
the position of the Richtersveld, many letters were
written, many claims were made on both sides and not an
inconsiderable number
of reports were compiled. But the Richtersveld
Community in fact continued to occupy the whole of the Richtersveld
including the
subject land, to use it, to let it, to grant mineral
rights in respect of it and to exercise all other rights to which it
was entitled
in accordance with its indigenous law ownership of the
land.
In the result, we conclude that the annexation of Richtersveld did
not extinguish the right of ownership which the Richtersveld
Community possessed in the subject land and that such right was not
extinguished prior to 19 June 1913.
(f) The steps taken by the state in respect of the subject land
after 19 June 1913
The position of the Richtersveld Community began to change from 1926
onwards with the discovery of diamonds on the subject land.
It was
common cause that, if the Richtersveld Community’s rights survived
beyond 1913, it was ultimately dispossessed of the
land by the end
of 1993. The Community has consistently contended
“
. . . that
the Richtersveld community was dispossessed by a series of
legislative and executive steps whereby, after the discovery
of
diamonds in the mid 1920’s, State alluvial diggings were
established on the subject land, the public, including the
Richtersveld
people, were excluded from the subject land, mineral
rights in the subject land were granted to Alexkor and full ownership
of the
subject land was ultimately transferred to Alexkor.”
83
On 28 May 1926 and 1 June 1926, Parliament adopted a resolution
establishing the Richtersveld Reserve “for the use of the
Hottentots
and Bastards who are residing therein and of such other
coloured people as the Government may decide.”
84
The Reserve was established on land which excluded the subject land
but which was part of the Richtersveld and was about half the
size
of the whole of the area that had been owned by the Richtersveld
Community and occupied by it. This resolution was clearly
connected
with the discovery of diamonds on the subject land. In the debate on
the resolution the Minister of Lands said that there
had been
difficulty and
“
. . . that
discoveries are being made in that part of the world, and speculators
have instigated these people [the Richtersveld Community]
to claim
sovereign rights – to claim minerals and everything.”
85
However it is not clear whether the resolutions of Parliament were
directly binding on the Richtersveld Community or whether they
were
part of the process required for the issue of the certificate of
reservation that was issued four years later. We will assume
for the
purposes of this judgment that the resolutions themselves had no
binding effect and that the rights of the Richtersveld Community
were
left undisturbed.
The Precious Stones Act
86
(the Precious Stones Act) was passed in 1927, again as a direct
consequence of the discovery of diamonds in the subject land. It
made provision for a state alluvial digging to be established by
Proclamation.
87
A state alluvial digging was indeed established on the subject land
in 1928
88
and its area consistently extended by Proclamation until it covered
the whole of the subject land in 1963.
89
All the Proclamations that relate to the subject land refer to it as
“unalienated Crown land” or “unalienated state land”.
In
other words, the Proclamations announce that the subject land is in
fact state owned land. In this respect, these Proclamations
are
different in content and effect from the Crown Lands Acts discussed
earlier. The Proclamations expressly state that land described
in
each Proclamation is in fact Crown land.
There is another respect in which the Proclamations and the Crown
Lands Acts differ. Read in the context of the Precious Stones
Act,
the Proclamations, unlike the Crown Lands Acts, make no provision
for the determination of claims of bona fide occupiers without
title. Each Proclamation read in the context of the Precious Stones
Act expressly declares the state to be the owner of that part
of the
subject land to which it applies. In so doing, each Proclamation may
well have extinguished the indigenous law ownership
of the
Richtersveld Community to that part of the subject land and rendered
the state the owner of the land.
On 5 February 1930, before the state alluvial digging process in
respect of the subject land had been completed, the land was

reserved by a certificate of reservation issued in terms of the 1887
Crown Lands Act. According to this certificate, land three
hundred
and fifty thousand morgen in extent, which excluded the subject
land, was reserved “for the use of the Hottentots and
Bastards who
are residing therein and of such other coloured people as the
Governor-General may decide.”
90
It is highly arguable that this certificate of grant, by necessary
implication, deprived the Richtersveld Community of their indigenous
law ownership of the whole of the Richtersveld and granted them
limited rights of occupation in relation to that part of the
Richtersveld
described in it. It is unnecessary to follow that
route.
The concept of dispossession in section 25(7) of the Constitution
and in section 2 of the Act is not concerned with the technical
question of the transfer of ownership from one entity to another. It
is a much broader concept than that, given the wide definition
of “a
right in land” in the Act. Whether there was dispossession in this
case must be determined by adopting a substantive
approach, having
due regard to the provisions of the Precious Stones Act and the
conduct of the government in giving effect to
them.
The Precious Stones Act did not recognise the rights of those, like
the Richtersveld Community, who were at the time the owners
of land
under indigenous law. This was because their rights had not been
registered. All land in respect of which no person was
registered as
the owner in the deeds registry was treated by the Act as
unalienated Crown land. The rights of the Richtersveld
Community,
the indigenous law owner of the land, were ignored as if it had no
rights in the land whatsoever. What is more, the
Community fell foul
of section 103(5) and (6) of the Act. Subsection (5) makes it an
offence for any person to occupy, trade on
or use proclaimed land
for any purpose without permission or authority while subsection (6)
makes a criminal of any person who
uses water from any place in an
alluvial digging unless that is allowed by the Precious Stones Act.
The effect of this Act was
that all occupants of the land except
those who were registered surface owners, or those who occupied at
the instance of the surface
owners, lost their right to occupy and
exploit the land.
This law in effect rendered the occupation of the subject land by
the Richtersveld Community unlawful and dispossessed it of the
rights it had as owner of the land. Everything that happened
afterwards, except for the issue of the certificate of reservation,
referred to in paragraph 87 above, was a mere consequence of the
Richtersveld Community having been stripped of its rights of

ownership by the Precious Stones Act and the Proclamations made
pursuant to it.
The evidence shows that the state subsequently treated the subject
land as its own, required the Community to leave it, exploited
it
for its own account and later transferred it to Alexkor. All this
happened after 1913 and effectively dispossessed the Community
of
all its rights in the subject land. These rights included the right
to occupy and exploit the subject land, including its minerals.
(g) Whether the dispossession was the result of racially
discriminatory laws or practices
Section 25(7) of the Constitution requires “[a] person or
community [to be] dispossessed . . . as a result of past racially

discriminatory laws or practices” before that person is entitled
to relief. As noted in paragraph 22, this is the constitutional
provision repeated in the terms of the Act. The next question that
arises is whether the dispossession that took place was a
dispossession
“as a result of past racially discriminatory laws or
practices”. We have seen that the Precious Stones Act and the
Proclamations
issued thereunder failed to recognise the indigenous
law ownership of the Richtersveld Community and rendered its
occupation of
the land unlawful. They excluded the Community from
the subject land and from the right to exploit its mineral wealth.
The state implemented the Precious Stones Act, would not allow the
members of the Richtersveld Community onto the land and ultimately
fenced off the subject land. The certificate of reservation in
effect meant that the members of the Richtersveld Community were
restricted to the land reserve, and thus it constituted part of the
process of their exclusion from the subject land.
Owners of land whose ownership was registered in the deeds office
and on which state alluvial diggings were established were treated
differently from those who held their land according to indigenous
law, where no system of registration was required. Registered
owners
were allowed to have access to the land, to keep their homesteads
and to share in the mineral wealth of the land. More specifically,
they were entitled, amongst other things, to select between 50 and
400 claims free of charge depending on their location,
91
half the licence money
92
and the protection of their homesteads and water rights.
93
Accordingly, the Precious Stones Act and its Proclamations failed to
recognise indigenous law ownership and treated the subject
land as
state land. On the other hand, registered ownership was recognised,
respected and protected. For the most part, whites
held their land
under the system of registered ownership, though there were some
black people and black communities who did acquire
title of this
sort.
94
However, given that indigenous law ownership is the way in which
black communities have held land in South Africa since time
immemorial,
the inevitable impact of the Precious Stones Act’s
failure to recognise indigenous law ownership was racially
discriminatory
against black people who were indigenous law owners.
The laws and practices by which the Richtersveld Community was
dispossessed
of the subject land accordingly discriminated against
the Community and its members on the ground of race.
In this regard we, therefore, disagree with the conclusion of the
LCC that neither the Proclamations nor the Precious Stones Act
were
racially discriminatory laws.
95
In dismissing the claim of the Richtersveld Community, the LCC
relied on its previous decision in
Slamdien
96
which determined that racially discriminatory laws or practices, for
the purposes of section 25(7) of the Constitution and section
2 of
the Act, must be “those that sought specifically to achieve the
(then) ideal of spatial apartheid, with each racial and
ethnic group
being confined to its particular racial zone.”
97
The SCA held that this test was unduly restrictive.
98
We agree.
In our view, although it is clear that a primary purpose of the Act
was to undo some of the damage wreaked by decades of spatial
apartheid, and that this constitutes an important purpose relevant
to the interpretation of the Act, the Act has a broader scope.
In
particular, its purpose is to provide redress to those individuals
and communities who were dispossessed of their land rights
by the
government because of the government’s racially discriminatory
policies in respect of those very land rights.
In this case, the racial discrimination lay in the failure to
recognise and accord protection to indigenous law ownership while,
on the other hand, according protection to registered title. The
inevitable impact of this differential treatment was racial
discrimination
against the Richtersveld Community which caused it to
be dispossessed of its land rights. Although it is correct that the
Precious
Stones Act did not form part of the panoply of legislation
giving effect to “spatial apartheid”, its inevitable impact was

to deprive the Richtersveld Community of its indigenous law rights
in land while recognising, to a significant extent, the rights
of
registered owners. In our view, this is racially discriminatory and
falls squarely within the scope of the Act. It follows that
the test
applied in
Slamdien
is too narrow in this regard.
99
In effect what the state did was to treat the subject land as its
own and to pass laws that excluded the Community from all benefits
in it and ultimately to vest ownership of the subject land in
Alexkor. Whether or not that was unlawful under the laws then
prevailing
is irrelevant; the question whether the Community after
all these years could claim back the land under the common law is
similarly
irrelevant. The Community does not have to rely on the
common law. It has rights under the Act and is asserting those
rights.
It follows that it is not necessary in this case to fix the precise
date or dates of dispossession. It suffices to find, as we
do, that
after 19 June 1913 the actions of the state, to which we have
referred, resulted in the loss by the Richtersveld Community
of its
rights in the subject land and that this dispossession was complete
by 1993.
The order
In the order of the SCA
100
reference is made to the rights of the Richtersveld Community in the
subject land being “akin to that held under common-law ownership.”
We have found that the Richtersveld Community held ownership of the
subject land under indigenous law, which included the rights
to
minerals and precious stones. To this extent only we will amend the
order of the SCA.
The following order is made:
1. The order of the Supreme Court of Appeal is amended to read as
follows:
In result the appeal succeeds with costs including the costs of two
counsel. The orders of the LCC are set aside and replaced with
an
order in the following terms:
(a) It is declared that, subject to the issues that stand over for
later determination, the first plaintiff [the Richtersveld Community]
is entitled in terms of
section 2(1)
of the
Restitution of Land
Rights Act 22 of 1994
to restitution of the right to ownership of the
subject land (including its minerals and precious stones) and to the
exclusive beneficial
use and occupation thereof.
(b) The defendants are ordered jointly and severally to pay the
plaintiffs’ costs including the costs of three counsel.
2. The second appellant (the Government of the Republic of South
Africa) is ordered to pay the costs of the condonation application
in
this Court, including the costs of two counsel, on the scale as
between attorney and client.
3. Save as aforesaid, the appeal is dismissed with costs, including
the costs of two counsel.
Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro
J, Ngcobo J, O’Regan J, Sachs J, Yacoob J
For the First Appellant:
M Madlanga SC, SA Nthai,
A Schippers, instructed by E Moosa Wagley & Peterson, Cape Town.
For the Second Appellant:
RC Hiemstra SC, N Bawa,
MV Combrink, instructed by the State Attorney, Cape Town.
For the Respondent:
W Trengove SC, P Hathorn,
instructed by Legal Resources Centre, Cape Town.
1
Act 22 of 1994.
2
The judgment of the LCC is reported as
Richtersveld Community and
Others v Alexkor Ltd and Another
2001 (3) SA 1293
(LCC).
3
The judgment is reported as
Richtersveld Community and Others v
Alexkor Ltd and Another
[2001] (4) All SA 563
(LCC). All
references to the judgment of the LCC will be to the main judgment
referred to above, n 2.
4
The judgment of the SCA is reported as
Richtersveld Community and
Others v Alexkor Ltd and Another
2003 (6) BCLR 583
(SCA).
5
Alexkor is a public company established in terms of the Alexkor
Limited Act 116 of 1992. It is wholly owned by the second appellant,
the Government of the Republic of South Africa and conducts business
in the diamond mining sector.
6
Paras
11-7.
7
In turn, section 1 defines “restoration of a right in land” to
mean: “the return of a right in land or a portion of land
dispossessed after 19 June 1913 as a result of past racially
discriminatory laws or practices”.
8
In this judgment we prefer to use the term “indigenous law”
which has the same meaning as “customary law”.
9
SCA judgment above n 4 at para 111.
10
Rule 20 (1) and (2) reads as follows:
(1) An appeal to the
Court
on a constitutional
matter against a judgment or order of the Supreme Court of Appeal
shall be granted only with the special leave
of the
Court
on
application
made to it.
(2) A litigant who is aggrieved by the decision of the
Supreme Court of Appeal on a constitutional matter  and who
wishes to
appeal against it to the
Court
shall, within 15
days of the judgment against which appeal is sought to be brought
and after giving notice to the other
party
or parties
concerned, lodge with the
registrar
of the
Court
an
application
for leave to appeal.
11
Act 200 of 1993.
12
The relevant provision in section 121(2) of the interim Constitution
reads as follows:
“
A person or a community shall be
entitled to claim restitution of a right in land from the state if –
such person or community was dispossessed of such
right at any time after a date to be fixed by the Act referred to
in subsection
(1); and
such dispossession was effected under or for the
purpose of furthering the object of
a law which would have
been inconsistent with the prohibition of racial discrimination
contained in section 8(2), had that
section been in operation at
the time of such dispossession.
”
(Emphasis supplied.)
The relevant part of section 3 of the Act reads:
“
. . . a person shall be entitled
to claim title in land if such claimant or his, her or its
antecedent–
(a) was prevented
from obtaining or retaining title to the claimed land because of
a
law which would have been inconsistent with the prohibition of
racial discrimination contained in section 8(2) of the Constitution
had that subsection been in operation at the relevant time . . .
”
(Emphasis supplied.)
13
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC).
14
Id at paras 14 and 15.
15
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
15.
16
Id at para 14.
17
Id at para 15.
18
Id
19
As to the distinction between a
factum probandum
and a
factum
probans
, but in a different context, see
King’s Transport v
Viljoen
1954 (1) SA 133
(C).
20
See, for example,
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 133.
21
See, for example,
Calder v Attorney-General of British Columbia
(1973) 34 DLR (3d) 145 (SCC);
Hamlet of Baker Lake v Minister of
Indian Affairs and Others
(1979) 107 DLR (3d) 513 (SCC);
Mabo
and Others v The State of Queensland (No. 2)
(1992) 175 CLR 1
(HCA);
R v Adams
(1996) 138 DLR (4th) 657 (SCC);
R v Van
der Peet
(1996) 137 DLR (4th) 289 (SCC);
Delgamuukw and
Others v British Columbia and Others
(1997) 153 DLR (4th) 193
(SCC);
Members of the Yorta Yorta Aboriginal Community v Victoria
[2002] HCA 58.
22
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 13.
23
Id at paras 13 and 20, respectively.
24
Id at para 20.
25
See, for example,
Pharmaceutical Manufacturers Association of SA
and Another: In Re Ex Parte President of the Republic of South
Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC)
at para 29.
26
Above n 22.
27
The Constitution of the Republic of South Africa Act 200 of 1993
came into force on 27 April 1994 and the current Constitution
came
into force on 4 February 1997.
28
Section 39(2) reads:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
29
See
Du Plessis and Others v De Klerk and Another
above n 22
at paras 65-6;
Amod v Multilateral Motor Vehicle Accidents Fund
(10) BCLR 1207 (CC)
[1998] ZACC 11
; ;
1998 (4) SA 753
(CC) at para 31.
30
SCA judgment above n 4 at para 26.
31
1976 (3) SA 16
(A) at 23D-24G.
32
See
Van Rensburg v Van Rensburg en Andere
1963
(1) SA 505
(A) at 510A.
33
See
Cole v Government of the Union of
South Africa
1910 AD 263
at 272-3.
34
Paddock Motors v Igesund
above n 31 at
24F.
35
Compare
Cole v Government of the Union
of South Africa
above n 33 at 272.
36
Paddock Motors
v Igesund
above
n 31 at 23G-H.
37
Naude and Another v Fraser
[1998] ZASCA 56
;
1998 (4) SA
539
(SCA) at 558A;
1998 (8) BCLR 945
(SCA) at 960 (footnotes
omitted).
38
The Act envisages a number of rights that claimants may have in the
subject land. These rights range from ownership to interests
in land
such as that of a beneficiary under a trust arrangement or
beneficial occupation for a period of not less than 10 years
or a
customary law interest in the land. In terms of section 35 of the
Act, the LCC may order, amongst other things, the restoration
of the
land or a portion of the land, or a right in land. The nature of the
right found will therefore determine the nature of
the restitution
to be ordered. Thus where the right of ownership in the land has
been found, the LCC may order the restitution
of the land. Where
only a right to occupy has been found, the court may order the
restoration of that right or the equivalent compensation.
39
SCA judgment above n 4 at para 10.
40
Id at para 11.
41
Id at para 29.
42
Compare
Oyekan and Others v Adele
[1957] 2 All ER 785
at 788G-H.
43
Id
44
Compare
Pharmaceutical Manufacturers
Association of South Africa and Another in re Ex Parte the President
of the Republic of South Africa
and Others
above
n 25 at para 44.
45
Section 2 of the Constitution, see
Mabuza
v Mbatha
2003 (7) BCLR 43
(C) at para
32.
46
Section 39(2) of the Constitution.
47
Section 39(3) of the Constitution.
48
Section 211(3) of the Constitution.
49
After the abolition of the Commissioners’ Courts and their courts
of appeal and the unification of all courts into a single hierarchy.
50
Law of Evidence Amendment Act 45 of 1988
, provides in
s1:
“
Judicial notice of law of
foreign state and of indigenous law.—
(1) Any court may take judicial notice of the law of a
foreign state and of indigenous law in so far as such law can be
ascertained
readily and with sufficient certainty: Provided that
indigenous law shall not be opposed to the principles of public
policy and
natural justice: Provided further that it shall not be
lawful for any court to declare that the custom of lobola or bogadi
or other
similar custom is repugnant to such principles.
(2) The provisions of subsection (1) shall not preclude
any party from adducing evidence of the substance of a legal rule
contemplated
in that subsection which is in issue at the proceedings
concerned
. . . .
(4) For the purposes of this section “indigenous law”
means the law or custom as applied by the Black tribes in the
Republic.
[Sub-s (4) amended by
s. 4
of Act 18 of 1996].”
In
terms of s1(1) indigenous law is to be applied if it is not “opposed
to the principles of public policy and natural justice”.
In
Mabuza
v Mbatha
above n 45 para 32, the court held that the test for
the validity of indigenous law is no longer consistency with public
policy
and natural justice, but consistency with the Constitution.
It is not necessary to express any opinion on the correctness of
that
decision.
51
T.W. Bennett,
A Sourcebook of African Customary Law for Southern
Africa
(Juta and Co. Ltd, Cape Town, 1991) Preface at (vi),
points to the need for caution in this respect. Although a number of
text
books exist and there is a considerable body of precedent,
courts today have to bear in mind the extent to which indigenous law
in the pre-democratic period was influenced by the political,
administrative and judicial context in which it was applied. Bennett
points out that, although customary law is supposed to develop
spontaneously in a given jural community, during the colonial and
apartheid era it became alienated from its community origins. The
result was that the term “customary law” emerged with three
quite different meanings: the official body of law employed in the
courts and by the administration (which, he points out, diverges
most markedly from actual social practice); the law used by
academics for teaching purposes; and the law actually lived by the
people.
52
1996 (4) SA 744
;
1996 (10) BCLR 1253
(CC).
53
Id at para 197.
54
In some parts of the country codification of indigenous law
interfered with this process, raising questions as to the accuracy
of such codification, its appropriateness and its possible
stultification of the development of indigenous law.
55
See, for example,
Mabuza v Mbatha
above n 45.
56
The question of the test to be applied in establishing indigenous
law does not arise in this case. Nor is it necessary for us to
consider whether the test enunciated in
Van Breda v Jacobs
1921 AD 330
at 334 is applicable in determining the content of
indigenous law.
57
2 AC [1921] 399 (PC).
58
Id at 402-4 (emphasis supplied).
59
Id at 404.
60
SCA judgment above n 4 at para 18.
61
LCC judgment above n 2 at para 68.
62
AJH Goodwin ‘Metal Working among the early Hottentots’ in
South
African Archaelogical Bulletin
(1956).
63
J.M. Smalberger
Aspects of the History of Copper mining in
Namaqualand 1846 – 1931
(Struik, Cape Town, 1975).
64
See SCA judgment above n 4 at paras 85-7. See also lease agreement
between Kling and Wrensch, dated 23 February 1910.
65
In the light of this finding, it is unnecessary to decide whether
the reference by the SCA to
Van Breda v Jacobs
above n 56 was
appropriate. It is important that indigenous law be allowed to
develop consistently with the Constitution and that
the approach
adopted in
Van Breda
should not be allowed to inhibit this.
66
Oyekan and Others v Adele
above n 42 at 788B-C.
67
Compare
Oyekan and Others v Adele
above n 42 at 788C-D. The Privy Council took the
view that “in order to ascertain what rights passed to the British
Crown or are
retained by the inhabitants the courts of law look, not
to the treaty, but to the conduct of the British Crown”. In our
view
the starting point must be the terms of the Annexation
Proclamation if it throws light on the matter.
68
SCA judgment above n 4 at para 34.
69
Id at paras 58-9.
70
Oyekan and Others v Adele
above n 42 at 788E-I.
71
SCA judgment above n 4 at para 61.
72
Crown Lands Act 2 of 1860 and Crown Lands Disposal Act 15 of 1887.
73
SCA judgment above n 4 at para 66.
74
Section 3 of Ordinance 50 of 1828 provided as follows: “And
whereas doubts have arisen as to the competency of the 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.”
75
Specifically, the Ordinance repealed laws that discriminated against
the indigenous people describing such laws as containing “certain
obnoxious usages and customs which are injurious to those persons.”
Ordinance 50 of 1828, Section I.
76
Above n 72.
77
The SCA, at para 68 of the judgment above n 4, said in relation to
these claims:
“
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
20th 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.”
78
SCA judgment above n 4 at para 65.
79
Lease agreement between Kling and Wrensch, dated 23 February 1910.
80
Melvill’s report dated 30 June 1890 at para 58.
81
LCC judgment
above n 2
at para 27.
82
SCA judgment above n 4 at paras 8 and 80.
83
SCA judgment above n 4 at para 91.
84
Hansard
(1926) 4322.
85
Hansard
(1926) 4329.
86
Act 44 of 1927.
87
Section 26.
88
Proclamation 58 of 1928.
89
Proclamation 1 of 1929, Proclamation 250 of 1931, and Proclamation
158 of 1963.
90
Certificate of Reservation, issued in terms of section 6 of Act 15
of 1887, 5 February 1930.
91
Section 19(1)(a).
92
Section 22.
93
Section 23.
94
For a comprehensive discussion of the question see L Platzky and C
Walker
The Surplus People Forced Removals in South Africa
(Ravan Press, Johannesburg, 1985) especially at 74-9 and at 85. The
Beaumont Commission’s figures suggest that 1 002 039 morgen
of
land were held in freehold by African farmers in 1916 which included
some land owned by coloured persons outside of the scheduled
reserves (Report of the Natives Land Commission, UG 19-16, Vol 1 at
4).
95
LCC judgment
above n 2
at para 97.
96
Minister of Land Affairs and Another v Slamdien
and
Others
1999 (4) BCLR 413
(LCC).
97
Id at para 26.
98
SCA judgment above n 4 at para 97.
99
If our approach had been followed in
Slamdien,
the result
would not necessarily have been different.
100
SCA judgment above n 4 at para 111.