The Land Claims Court has the power to override the new Minerals Act, an advocate presenting the Richtersveld community’s multibillion-rand claim argued in Cape Town on Monday.
The 2002 Act makes mineral resources the common heritage of all the people of South Africa, and does away with the notion of mineral rights, offering prospecting or mining rights instead.
The state, appearing as respondent in the Richtersveld claim along with state-owned diamond company Alexkor, is arguing that the community’s claim to restoration of the mineral rights of the land from which it was dispossessed is ”legally impossible” because of the Act.
But advocate Wim Trengove, outlining the community’s case to Judge Antonie Gildenhuys, said the court’s power is neither derived from, nor limited by, the Minerals Act.
Its powers are derived from the Restitution Act, which as a matter of law overrides all other legislation that decides how state property should be dealt with.
However, he said the court should make an order that will ”fit in comfortably” with the scheme created under the new Act.
”The court can mould that right [and] grant restoration to fit in with the new regime,” he said.
An appropriate order will be for prospecting and mining rights under the section of the Act that makes specific provision for communities.
”We would urge very strongly that the court not accede to the state’s suggestion that the court is captive to the minister [of minerals and energy],” he said.
Trengove also said Alexkor has expressed concern over the community’s ability to exploit the diamond resources.
However, investment company Shanduka’s executive chairperson, Cyril Ramaphosa, will testify that his company has signed an in-principle agreement to do just that.
Alexkor has been ”particularly ineffective” in exploiting the diamonds, Trengove said.
”We would at least be able to do better than Alexkor has done.”
The Richtersveld claim involves 85 000ha of land in the Northern Cape and compensation that could total more than R2,5-billion.
The claim includes R1,5-billion for diamonds extracted from the land by Alexkor over three-quarters of a century.
When the case first came to court in 2000, Gildenhuys ruled against the Richtersvelders.
The matter then went to the Supreme Court of Appeal and finally to the Constitutional Court, which ruled that the 5 000-strong community was entitled to restitution.
Ten advocates representing the community, the state and Alexkor are set to argue the matter over the next weeks.
The secretary of the Richtersveld Communal Property Association, Floors Strauss, said on Monday he is very glad that the claim, which the community launched in 1998, has reached this point.
”We eagerly hope that at last we will have an outcome. For us, victory is in sight.”
The start of the hearing was delayed for almost an hour when it became clear that the courtroom allocated in the Cape High Court was too cramped to accommodate all the advocates and attorneys involved.
It was moved to a courtroom that gave them more space to sit and store their files. One set of the documents filed in the case fills 45 lever-arch files. — Sapa