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Alexkor Limited v The Richtersveld Community and Others Case CCT19/03
|Date:||14 October 2003|
|Sub Category:||Case Law|
|Location:||Republic of South Africa|
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|The 85,000 hectares of land that was the subject of this claim is a narrow strip of land on the west coast of South Africa, from Gariep River in the north to below Port Nolloth in the south. It is situated in the north-western corner of the Northern Cape Province.|
|Subject Matter:||Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
|Judges: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J and Yacoob J. |
Date: 14 October 2003
Where made: Constitutional Court, Johannesburg, South Africa
Determination: Prior disposession was due to past racially discriminatory laws or practices and could be the subject of restitution
The claim was first brought before the Land Claims Court (LCC), under s 2(1) the Restitution of Land Rights Act 1994 ('the Act') which states that 'a person shall be entitled to restitution of a right in land if 'it is a community of part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices'.
Alexkor, a wholly state-owned diamond company, and the South African Government argued that any rights that the Richtersveld Community may have had to the land were terminated at the time of British annexation, and failing that, the subsequent possession of the land in order to accommodate a diamond mine was not due to racist laws or practices.
The LCC dismissed the original claim, but it was upheld on appeal by the Supreme Court of Appeal (SCA) which cited passages from Mabo v Queensland (No 2) on two issues:
The final decision was handed down by the Constitutional Court ('the Court') on 14 October 2003, which upheld the decision of the SCA, finding that the Richtersveld Community's right to exclusive beneficial occupation and use of the land (including its minerals and precious stones) should be reinstated.
|Nature of the Community's property rights after annexation by the British Crown:|
The Court found that the South African Constitution, in setting 19 June 1913 as the date from which racially-motivated dispossession could be addressed, was allowing previously legal dispossessions of property to be retrospectively invalidated. By the same token, the Court found that the Constitution impliedly validated all laws relating to property rights prior to 19 June 1913, including upholding the British annexation of the Richtersveld area in 1847.
The Court accepted that the Richtersveld Community had been in exclusive occupation of the Richtersveld area prior to its annexation by the British Crown. The Community's property rights were regarded as akin to common law ownership, and amounted to a customary law interest for the purposes of the Act. However, the Court explicitly stated that the nature of the land rights held by the Community prior to the land's annexation could only be determined with reference to customary law, rather than English common law. The Court noted that it was obliged under s 211(3) of the Constitution to apply customary law where it is applicable, with reference to the Bill of Rights contained within the Constitution.
The Court upheld the finding that prior to annexation the Community held their land on a communal basis, had the right of exclusive possession and could fine others for trespass. In addition, the Court found that in regards to minerals, 'the undisputed evidence shows a history of prospecting in minerals by the Community and conduct that is consistent only with ownership of the minerals being vested in the Community' (para 60). This history included mining, smelting and using copper and iron. The Court rejected the contention made by Alexkor that the Community's land became property of the Crown at annexation, stating that while the British Crown obtained sovereignty over the land at annexation, it made no attempt to disturb the existing property rights with that acquisition. Thus the Court found that the Community continued to hold title up to 19 June 1913.
Was the subsequent dispossession as a result of racially discriminatory laws or practices?:
The Court found that the Community was effectively dispossessed of their land in the 1920s as a result of the discovery of diamonds in the Richtersveld. The Court noted that while white people, whose property ownership was usually registered by deed, were accorded significant rights under the Precious Stones Act 1927, customary owners were deprived of almost all their property rights. The court rejected as overly restrictive the view that for a law to be judged racially discriminatory it must have 'sought specifically to achieve the (then) ideal of spatial apartheid, with each racial and ethnic group being confined to its particular zone' (para 97).
Thus the Court found that the dispossession of the Community was racially discriminatory, and ordered the restitution of customary ownership rights to the Community; rights that include exclusive beneficial use and occupation, as well as ownership of the minerals and precious stones.
|The matter was referred back to the Land Claims Court for a further determination. However, agreement was reached regarding the rights and interests of the Richtersveld Community, Alexkor Ltd and the South African Government in April 2007. See 'Richtersveld Community Land Settlement' below.|
|Alexkor Limited About Us - History|
|Stephanie Patterson 5 Indigenous Law Bulletin 30 (February 2004) The Foundations of Aboriginal Title in South Africa? The Richtersveld Community v Alexkor Ltd Decisions|
|Constitutional Court of South Africa (Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J and Yacoob J) (14 October 2003) Alexkor Limited v The Richtersveld Community and Others CCT19/03|
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