In the Land Claims Court of South Africa
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IN THE LAND CLAIMS COURT OF SOUTH AFRICA Heard at CAPE TOWN during 4-28 September 2000 CASE NUMBER: LCC 151/98 and 23-26 October 2000 before Gildenhuys AJ and Wiechers (assessor) Decided on: 22 March 2001 In the case between: THE RICHTERSVELD COMMUNITY First Plaintiff THE KUBOES COMMUNITY Second Plaintiff THE SANDDRIFT COMMUNITY Third Plaintiff THE LEKKERSING COMMUNITY Fourth Plaintiff THE EKSTEENFONTEIN COMMUNITY Fifth Plaintiff THE ADULT MEMBERS OF THE RICHTERSVELD COMMUNITY Sixth Plaintiff and ALEXKOR LIMITED First Defendant THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Second Defendant JUDGMENT GILDENHUYS AJ: General background [1] This is an action by inhabitants of the territory commonly known as the Richtersveld, for the restitution of rights in land in respect of a portion of the Richtersveld. The inhabitants allege they were dispossessed of these rights as a result of past racially discriminatory laws or practices. Page 2 The land [2] The Richtersveld is situated in the north-western corner of the Northern Cape Province. It is necessary, for purposes of this case, to identify specific parts of the Richtersveld. In the west there is a narrow strip of land running parallel to the Atlantic Ocean and extending from the Garib River (previously known as the Orange River) in the north, down to White Point (which lies just south of Port Nolloth) in the south. The plaintiffs’ claims for restitution relates to this part of the Richtersveld. I shall refer to it as the subject land.1 The subject land has, following upon the discovery of diamonds on it during the first half of the 20th century, been used for the exploitation of diamonds. It is presently registered in the name of the first defendant, Alexkor Limited. It is still being used for diamond mining. [3] Next to the subject land, and along the east of it, are some farms. I will refer to them as the corridor farms. To the east of the corridor farms is the Richtersveld Reserve. The plaintiffs are inhabitants of the Richtersveld Reserve. The Richtersveld Reserve is separated from the subject land by the corridor farms. 1 The cadastral descriptions of the property units making up the subject land are as follows: a The remainder of Farm 1, situated in the administrative district of Namaqualand, 70434,5239 ha in extent, presently held under title deed 32346/94. b Farm 155, situated in the administrative district of Namaqualand, 12466,5137 ha in extent, presently held under title deed 32346/94. c Remainder of Erf 678 Port Nolloth, situated in the administrative district of Namaqualand, 495,9888 ha in extent, presently held under title deed 32346/94. d Farm 621, situated in the administrative district of Namaqualand, 715,4401 ha in extent, presently held under title deed 71691/93. e Farm 625, situated in the administrative district of Namaqualand, 590,1826 ha in extent, presently held under title deed 69531/94. f Farm 5, situated in the administrative district of Namaqualand, 196,2148 ha in extent, presently held under title deed 939/93. g Portion 17, a portion of portion 8 of the Farm Korridor Wes No 2 situated in the administrative district of Namaqualand, 66,6158 ha in extent, presently held under title deed 939/93. Page 3 The parties [4] The first plaintiff describes itself as a community known as the Richtersveld people. The community comprises the inhabitants of four villages in the Richtersveld Reserve, being Kuboes, Sanddrift, Lekkersing and Eksteenfontein. A list of the adult members of the community was attached to the plaintiffs’ statement of claim. It was agreed between the parties that the persons on that list are inhabitants of the Richtersveld Reserve.2 The list has since been updated.3 It contains the names of the adult inhabitants of the four villages, and were compiled from the official voters’ rolls. By way of alternative, the second, third, fourth and fifth plaintiffs, describing themselves as communities constituted by the inhabitants of each of the four villages, brought separate community-based restitution claims. Lastly, some 1869 adult Richtersveld people, as an alternative to the community claims, brought individual restitution claims in their personal capacities. They are the people whose names appear on the list annexed to the plaintiffs’ statement of claim.4 Collectively they constitute the sixth plaintiff. [5] The summons containing the restitution claims was issued and served during December 1998. It cites Alexkor Limited as the first defendant and the Government of the Republic of South Africa, represented by the Minister of Public Enterprises, as the second defendant. The Minister of Public Enterprises indicated that he will abide by the decision of the Court. Some time later, the Minister of Agriculture and Land Affairs applied to intervene in the proceedings on behalf of the Government of the Republic of South Africa. The application was granted,5 and the Government (as second defendant) 2 Item 1.1 of “Facts not in Dispute”, submitted as Exhibit 11. 3 The third and last updated list was submitted as Exhibit 17. The updating was done to reflect the changes which occurred in the community because existing members moved away or died, new members moved in and children grow up and became members. 4 They are the people originally listed, unchanged by the subsequent updating of the list. See Cloete, evidence at 830. See also para [73] below. 5 At a pre-trial conference held on 4 June 1999. Page 4 is now represented by the Minister of Agriculture and Land Affairs. Both defendants opposed the restitution claims. The claim [6] In their statement of claim in this Court, the plaintiffs asserted that the Richtersveld people held title to the subject land and that such title was not at any time prior to 19 June 1913 lawfully extinguished or diminished. They submit that this title falls within the definition of “right in land”, as contained in the Restitution of Land Rights Act.6 I will refer to this Act as “the Restitution Act”. In terms of the definition “right in land” includes: “any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question;”7 Their right in land is alleged to be: (a) ownership; alternatively (b) a right based on aboriginal title allowing them the exclusive beneficial occupation and use of the subject land, or the right to use the subject land for certain specified purposes;8 alternatively (c) “a right in land” over the subject land acquired through their beneficial occupation thereof for a period longer than 10 years prior to their eventual dispossession.9 6 Act 22 of 1994, as amended. 7 Section 1 of the Restitution Act. 8 The specified purposes are habitation, cultural and religious practices, grazing, cultivation, hunting, fishing, water trekking and the harvesting and exploitation of natural resources. 9 See the definition of “right in land” quoted above. Page 5 The plaintiffs alleged that they were dispossessed of their rights in land by legislative and executive State action after 19 June 1913 as a result of racially discriminatory laws and practices. They aver that they did not receive any compensation at all in respect of the dispossession, alternatively, that they did not receive just and equitable compensation. They claim restitution of their rights in land under the Restitution Act. [7] Although the claim is for the restitution of land rights, the claim did not reach the Court through a referral by the Land Claims Commission, as happens in most restitution cases. The plaintiffs approached this Court directly. They are entitled to do that in terms of Chapter IIIA of the Restitution Act. In the result, the Court did not have the benefit of any investigation or report by the Land Claims Commission. [8] When the plaintiffs issued summons in this Court, another action was already pending in the High Court of South Africa (Cape of Good Hope Provincial Division).10 The first five plaintiffs instituted that action against the Government of the Republic of South Africa (represented by the Minister of Public Enterprises) as the first defendant, and against Alexkor Limited as the second defendant. In that action, the plaintiffs have prayed for an order declaring that the Richtersveld people are entitled to the exclusive beneficial occupation and use of the subject land on the grounds that they hold aboriginal title to the land. As a first alternative, they alleged that the Richtersveld people acquired ownership of the subject land by appropriation and have prayed for an order declaring that the Richtersveld people own the subject land. As a second alternative, they prayed for an order declaring that the Richtersveld people hold a public servitude over the land, acquired through vetustas,11 which entitles them to exclusive beneficial occupation and use. Alexkor Limited delivered a plea in which it prayed that all plaintiffs’ claims be dismissed. The Minister of Public Enterprises filed a notice that it will abide by the decision of the Cape High Court for so long as no order as to costs is sought against it. The proceedings against the defendants in the Cape High Court are still pending. 10 Under case number 16466/97. 11 Defined as “immemorial user, or custom” in Claassen Dictionary of Legal Words and Phrases 2nd ed, Vol 4 (Butterworths, Durban 1997) at V-18. Page 6 The special pleas [9] Pursuant to leave granted to the first defendant to amend its plea in this Court,12 it filed three special pleas during June 1999.