The future of land restitution could hang on the definition of the term ”dispossession”, rather than on the date a community was separated from the land in question, as the present law requires.
That much became clear on Thursday, when the Constitutional Court began its two-day hearing of a case involving a rural Northern Cape community, Richtersveld, and a lucrative diamond mine.
The matter pitted the tiny community against the might of Alexkor, the government-owned diamond mining company.
The government has entered the fray on the side of Alexkor. The company contends that not all ”physical removal” of indigenous people from an area constitutes land dispossession, especially if it happened before the cut-off date of June 13 1913, when the Natives Land Act became law.
Alexkor argued that when the land was annexed, the community lost whatever rights to minerals or precious stones it might have had.
It also argued that the laws that terminated the community’s rights were not racially discriminatory, and therefore fall outside the ambit of the Restitution of Land Act of 1994.
Appearing for Alexkor, advocate Russel Madlanga argued that the community had lost its right to its land when the British annexed the territory in 1847.
”The dispossession was not as a result of racial discriminatory laws or practice. It occurred at the time of annexation.
”Annexation did away with all the rights of the people. Soon after annexation, gone were what- ever rights they had. The physical removal was not a dispossession, as envisaged in the Act.”
Madlanga conceded that his definition of dispossession and the timeframe of the removal could have a bearing on land restitution claims arising from the conquest of lands after the Eastern Cape’s Frontier Wars in the 18th century.
Government lawyers were expected to argue that there was no specific ”intention” to discriminate in the appropriation of the land.
This is the third time in five years that the matter has come before the courts. The community approached the Land Claims Court in 1998, lodging what it argued was its rightful claim to the land. In 2001, the court held that the community was not entitled to restitution.
In the same year the community appealed the finding in the Supreme Court of Appeals, which held that the community indeed had rights to the land.
Its dispossession, the appeals court said, began in 1920 when diamonds were discovered on its land, and the dispossession was based on racial grounds.
Alexkor and the government argue that the appellate division erred in its judgement.
The case has been brought to the Constitutional Court as the final arbiter on constitutional questions. The matter relates to a provision in the Constitution.
The community’s lawyers were expected to dispute the contention that indigenous-law ownership ended with annexation.
”The fact that some colonial officials might have believed that the Richtersveld was a Crown land could not make it so. Whatever its perception might have been, it did not act on it. It did not deprive the Richtersveld people of their right in the land,” said the court papers prepared by lawyers for the community.
The papers add: ”The dispossession resulted from racially discriminatory laws and practices in that the gov- ernment evicted the Richtersveld community from the subject land, appropriated it for themselves and ultimately transferred it to Alexkor, as if the Richtersveld people had no right to it.
”The perception that they did not, was a racist perception based on English colonial land law. It was racially discriminatory in that it failed to afford the Richtersveld people the same recognition and protection afforded to the land of their white counterparts.”