The resolution of land claims remains a key challenge for our young democracy and the land struggle by the Richtersveld community revealed that the courts appear to possess far more wisdom than the government in dealing with this problem. Thanks to the courts, justice has been restored.
The case, sadly, has fairly typical facts for anyone remotely acquainted with the history of this country. The Richtersveld, situated in the Northern Cape, had been inhabited by the Richtersveld community for centuries. In the 1920s, when diamonds were discovered in the area, this lengthy period of possession was ignored in the usual racist manner. The community was dispossessed of its land and eventually the state made a grant of ownership to Alexcor Ltd.
The key question in the case turned on the application of the Restitution of Land Rights Act of 1994 and whether the community had been dispossessed of its right to the land as a result of past racially discriminatory practices or laws passed after June 19 1913.
In a comprehensive and most enlightened judgement, the Supreme Court of Appeal held that the community had been in exclusive possession of the land prior to and after the British annexation of 1847, and that it had been deprived of the land as a result of discriminatory practices that began after 1913. Hence the Restitution Act was applicable to the community and it was entitled to restitution.
The compelling logic of this judgement notwithstanding, the high financial stakes for Alexcor and the government meant that the dispute had to be taken to the Constitutional Court. Hope might spring eternal in the breast of the appellant lawyer, but on this occasion the Constitutional Court was having none of the argument that annexure by the British destroyed all form of indigenous title, thus depriving the community of all right and thus subsequent entitlement to restitution.
In many ways the part of the judgement dealing with indigenous law is the most important finding. The Constitutional Court found that the rights of the community must be determined by indigenous law and that this law is not determined by reference to a common law imported from Europe. As the court said: “The Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system.” Finally, in 2003 thanks to our two highest courts, the law of the “Other”, which has been silenced for more than three centuries, has been recognised again, thereby promising the construction of a truly South African legal system.
The Constitutional Court endorsed the conclusion of the Supreme Court of Appeal that indigenous title was not destroyed by colonisation by the British empire. Hence, by 1913 and the passing of the Native Land Act, the community’s title to the land, which was sourced in indigenous title, remained intact. The court found that the community lost its title as a result of the Precious Stones Act of 1927, which converted the land into state land, essentially on the basis that “diamonds are a capitalist’s best friend” and should not be under the control of an indigenous community.
Alexcor argued that the Precious Stones Act had nothing to do with spatial apartheid and therefore was not a discriminatory measure sufficient to justify restitution. The court agreed that this Act did not seek to divide the population on racial grounds, but it “failed to recognise and accord protection to indigenous law ownership while, on the other hand, according protection to registered title”. Registered title was the way most whites held their land so that the inevitable impact of the Precious Stones Act was to discriminate against black property holders. This constituted a form of racial discrimination sufficient to bring the Precious Stones Act under the scope of the Restitution Act.
This judgement finally confirms the community’s right to land. It proclaims the country’s constitutional commitment to land restitution and to restoring justice that was destroyed by racist greed. The only question that remains is why the government joined Alexcor in this fight. It is a mind boggling decision, which should be properly explained by the government.