The Constitutional Court on Tuesday returned the land and mineral rights currently owned by Alexkor, the state diamond company, to a community forcibly removed from the land in the 1920s.
In a unanimous judgement, the Constitutional Court largely confirmed an order handed down earlier this year by the Supreme Court of Appeal (SCA) that the Richtersveld community had been removed from their land under racist laws and practices, and were therefore entitled to have it, and the mineral rights, returned to their exclusive use and benefit.
”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,” the judges said.
As a result, the court dismissed Alexkor and the government’s appeal against the SCA decision with costs.
The Richtersveld community asked the Constitutional Court in September to uphold the SCA judgement that restored the ownership of diamond-rich land to them.
The land and the adjacent sea-bed is currently being mined by Alexkor and the proceeds are being used to fund the national budget.
The community wants the 85 000 hectares taken from them in 1926 returned and also wants compensation for the diamonds removed from the land as they say they also own the mineral rights to the ground.
Lawyers for the State argued this would leave a R10-billion hole in the government’s budget and would damage the land restitution process.
At the time they were challenged by Chief Justice Arthur Chaskalson on how the figure was arrived at.
Advocate Mbuyiseli Madlanga, for Alexkor, argued that the community, which was removed from the land in the 1923 when alluvial diamond mining commenced, lost the right of ownership of the land and the diamonds on December 13, 1847, when the Cape Colony annexed the area.
Madlanga argued that the 1847 dispossession was not the result of discriminatory law or practices. He argued that laws later passed to prevent the Richtersveld community from returning to the land were racially neutral, applied to all people, and were applicable to other mining areas. The laws remain in force.
Advocate Rudolph Hiemstra, arguing on behalf of Alexkor’s owner, the government, said the ”chain of causation” — the link between events and outcomes — was too long.
But he also made heavy weather as the judges climbed into his arguments.
Trying to convince the court the laws of the Cape Colony were race neutral and that they were equally applied to trekboer and aboriginal, judges constantly interjected that from what was known of the colonial mindset this could not have been.
Justice Zak Yacoob had the answer why: ”If you were white your claim was taken seriously,” he told Hiemstra, ”if you were there a hundred years it was taken very seriously, but if you were black you were nothing.”
Once off their ancestral land, the Richtersveld community was dumped on a ”coloured” reserve. There is no record of the same happening to any whites resident in the area.
The Richtersveld community had lodged a land claim in 1998 for the land under the RLA but the Land Claims Court dismissed the claim in 2001.
The community, represented at the hearing by Advocate Wim Trengove, SC, appealed the matter to the SCA in March and won. The SCA found that the community had a customary law interest in the land.
”These rights survive the annexation. The Land Claims Court erred in finding that the community had lost its rights because it was insufficiently civilised to be recognised,” the SCA said.
”When diamonds were discovered on the subject land in the 1920s, the State ignored the Richtersveld community’s rights and acted on the premise that the land was Crown land, dispossessed the Richtersveld community of its rights in the land in a series of steps amounting to practices as defined in the RLA and culminating in the granting of full ownership of the land to Alexkor.
”These practices were racially discriminatory because they were based upon the faulty, albeit unexpressed, premise that because of the Richtersveld community’s race and lack of civilisation, they had lost all rights in the land upon annexation.”
The SCA consequently found that the Richtersveld community was entitled to restitution of the land.
Government transferred ownership of the land to Alexkor in 1991. – Sapa