THE people of the remote Richtersveld area near the Namibian border have lost the first round of their long legal battle against the state diamond company Alexkor to reclaim their land.
The people of Richtersveld instituted an action in the Land Claims Court against Alexkor and the government in terms of the Restitution of Land Rights Act for the return of land rights lost by their ancestors.
They base their claim on aboriginal title and asked the court to recognise this for the purposes of the Restitution of Land Rights Act. This was the first time that a South African Court has been asked to recognise an aboriginal title.
They are not claiming the land on the grounds that it was taken from them in terms of any racially discriminatory law as defined in restitution law.
But Judge Anthonie Gildenhuys ruled that the Cape High Court did not have the jurisdiction to decide on rights of the Richtersveld people to the land in terms of indigenous or aboriginal title, the basis on which large tracts of land have been returned to the descendants of the original inhabitants in Australia, New Zealand and Canada.
Judge Gildenhuys recommended to Minister of Agriculture and Land Affairs Thoko Didiza that she grant some form of relief to the Richtersveld people.
The land claimed, 84_964ha, is currently held by the Alexkor diamond mine, which the government wants to privatise, and consists of seven farms between the Orange river to the north and Port Nolloth to the south.
The Richtersveld people claimed their people had occupied the Richtersveld from time immemorial and that at the time of the annexation of the Richtersveld by the British on December 23_1847 they had exclusive beneficial occupation and use of the land.
But Alexkor and the government opposed the claim on the grounds that it was not authorised by the Restitution of Land Rights Act. They also argued that the concept of aboriginal title was recognised elsewhere, such as in the Australian and Canadian courts, because there was no other legal or statutory mechanism in those countries to deal with land claims.
Judge Gildenhuys said there was no evidence that in the case of the Richtersveld people the authorities had deliberately failed to recognise any legal rights which the community may have to the land or that they had been excluded from the land for racist reasons.
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