Barry Streek
Crossfire
The silence in political circles ranging from the ever-critical Democratic Alliance to the African National Congress, the government, the South African Communist Party and the apparently land-conscious Pan Africanist Congress about the legalistic judgement in the Land Claims Court rejecting the claim of the Richtersveld people to their land is revealing.
It is particularly revealing that the government is using two sets of expensive teams of lawyers to fight the claim on the basis of complex legal and historical technicalities rather than facing up to the central issue.
It also seems that all political groupings are leaving matters to costly lawyers rather than facing up to that issue: do the descendants of the original inhabitants to the remote area on the Cape West coast near the Orange river have a legitimate claim to the land which was stolen from them by the British and Cape colonial authorities in the 19th century?
The key policy decision about the claim does not appear to have been discussed by the government before the Department of Land Affairs and the state-owned Alexkor engaged legal teams to fight the case brought by the Richtersveld community with the assistance of the Legal Resources Centre.
Of course, there are considerable financial implications. The government in the heady days of white minority rule decided that the state would exploit the diamond-rich area and keep the profits by the late 1920s Alexkor was making a cool 7-million a year, or about R84-million in today’s terms, and it is reported to be making R500 000 profit every month now.
So, should any court or government, or parliament ever decide that the government’s occupation was illegal or that the descendants of the original community were incorrectly dispossessed of their land, the quantum of compensation at stake would be considerable.
Recently, there have been management problems at Alexkor, although its interim management has been rectifying matters and its scheduled privatisation has been delayed, but there is no doubt that it has considerable value, particularly if it really belongs to the small Richtersveld community and not to the government, which would like to sell it off.
But the fundamental issue should not be decided by prolonged and expensive legal battles or because of the size of the potential damages the state may have to pay for illegally occupying the land. It should be decided on whether the claim of the Richtersvelders is legitimate, on whether it is right.
When he delivered his judgement, Acting Judge Anthonie Gildenhuys ruled that the Land Claims Court did not have the jurisdiction to decide on the Richtersveld claim in terms of indigenous or aboriginal title, the basis on which the courts have returned land to descendants of the original inhabitants in Australia, New Zealand and Canada.
“I regret that the limited jurisdiction of this court makes it impossible for me to decide on the issue of the realisation of indigenous title, which was fully canvassed before this court, and which will have to be canvassed in another court should the plaintiffs wish to continue again in another court,” he ruled.
So, another long, technical and expensive legal battle is on the cards if the government persists in ignoring the central issue of the legitimacy of the claim. In effect, the lawyers and the courts will have to make up their mind for them.
It also means that the government, and the Department of Land Affairs in particular, is effectively saying that it does not really matter how the British or Cape governments occupied the land in the 19th century, even if it was illegal, nor does it matter if the white government in the 1920s decided without consultation with the residents of the Richtersveld, let alone paid any compensation to them, to exploit the diamonds there in its own interests.
The government is indeed premising its legal defence on the basis of the status quo that its ownership of the Richtersveld and its minerals in 1994 was legal and, apparently, legitimate.
That is a far cry from our constitutional commitments to land reform and the provision that the government “must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis” and that “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress”.
Fortunately, the Legal Resources Centre is supporting the claim by the Richtersveld people that their ancestors never alienated their land, that it rightfully belongs to them and that on the basis of international law precedents they are the aboriginal owners of the land.
Unfortunately, if the government and its lawyers continue on their merry and costly way, it seems that the legitimacy and legality of that claim is going to be resolved only in a court, possibly the Constitutional Court, once their lawyers have argued over what the correct avenue is for such a case.
There must, surely, be a cheaper and quicker way of resolving the issue.
But first there will have to be a political decision by the government on the basis of policy.
If the government continues to avoid that policy decision, and if it is allowed to carry on doing so by the other political groupings by ignoring the issue, then the big winners will, again, be the lawyers with their fees.
Perhaps, a start could be made by the Cabinet telling Minister of Agriculture and Land Affairs Thoko Didiza and Alexkor to stop wasting taxpayers’ money to defend the existing ill-gotten title to the Richtersveld and to follow the example of Minister of Public Enterprises Jeff Radebe, who told the Land Claims Court that he would abide by its decision and not brief lawyers to act on his behalf.
More important, however, is the political will to deal with the real issue and respond to the anguished cry of the aggrieved and isolated communities of the Richtersveld.