Barry Streek
Five remote Richtersveld communities, whose claim for the return of land on the Cape West Coast near the Gariep river was recently rejected by the Land Claims Court, have submitted an application to appeal to the Constitutional Court.
Their application says the appeal raises constitutional issues of substance on which a ruling by the Constitutional Court is desirable and that no further evidence, other than that already heard by the Land Claims Court, is necessary.
If the application is refused, the communities have also applied to appeal to the Supreme Court of Appeal against the original judgement.
The two defendants, the state-owned Alexkor and the government as represented by the Ministry of Agriculture and Land Affairs, have not yet replied to the Richtersveld communities’ application to appeal.
However, the appeal involves key land reform issues, including the rights to land under common law and the validity of aboriginal land title still to be recognised in South Africa although land has been returned to original inhabitants under aboriginal title in Australia, Canada and the United States.
The Richtersveld communities are represented by Henk Smith of the Legal Resources Centre. An affidavit submitted by Smith on behalf of the communities says they acquired ownership of the land in 1847 when it was annexed to the Cape under the common law of the time or “under the common law as it has been or should be developed”.
They say the Land Claims Court erred in rejecting their claim under common law and for ruling that it did not have the power to develop the common law to recognise their rights to the land.
The Richtersveld communities say if their right to the land is not recognised under common law it should be granted to them under aboriginal title.
“Prior to annexation, the Richtersveld people had the right of exclusive beneficial occupation and use of the subject land under their own indigenous law.”
Whether their bid to go directly to the Constitutional Court is successful or not, their appeal involves major policy issues in the land reform process and if the communities of Richtersveld, Kuboes, Sanddrift, Lekkersing and Eksteenfontein are eventually successful, the ruling will have legal consequences in other parts of the country.