Alexkor Ltd and Another v the Richtersveld Community and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J and Yacoob J
• Judgment Date: 14 October 2003
• Date: 14 October 2003
• Court: Constitutional Court
• Docket Number: CCT 19/03
• Counsel: M Madlanga SC (with him S A Nthai and A Schippers) for the first appellant. R C Hiemstra SC (with him N Bawa and M V Combrink) for the second appellant. W Trengove SC (with him P Hathorn) for the respondent.
• Citation: 2004 (5) SA 460 (CC)

The court: A

Introduction

[1] This appeal concerns a claim for restitution of land by the Richtersveld Community under the provisions of the Restitution of Land Rights Act ('the Act'). [1] The claim was dismissed by the Land Claims Court ('LCC'). [2] That Court also dismissed an application for leave to appeal. [3] The Supreme Court of Appeal ('SCA') B granted leave, set aside the order of the LCC and granted relief to the respondent ('the Richtersveld Community'). [4] Initially, only the first appellant ('Alexkor') [5] sought special leave to appeal to this Court. That application succeeded. C

[2] Some three weeks prior to the hearing of this appeal, the second appellant ('the Government') sought condonation for its failure to apply timeously for special leave to appeal against the order of the SCA. The Government was directed to file its heads of argument, and its condonation application was heard together with the argument on the merits of the appeal. This application is referred to below. [6] Suffice it to say at this stage that D the relief sought by the Government was granted, and it was admitted as the second appellant.

[3] The facts and issues raised in this appeal appear from the earlier judgments of the LCC and SCA. It is thus not necessary to set them out in detail in this judgment. We will refer only to those facts E necessary to make what follows intelligible.

[4] The Richtersveld is a large area of land situated in the north-western corner of the Northern Cape Province. For centuries it has been inhabited by what is now known as the Richtersveld Community. The application was launched by the Community as such, its members in F the main centres of the Richtersveld and in the names of all of the present members of the Community. In the SCA, nothing turned on standing and it was the Richtersveld Community's claim that was upheld. We follow the example of the SCA and refer to the respondent simply as 'the Richtersveld Community' or 'the Community'. G

[5] The claim does not relate to the whole of the Richtersveld, but only to a narrow strip of land along the west coast from the Gariep (Orange) River in the north to just below Port Nolloth in the south. We shall refer to this as 'the subject land'. It is registered in the name of Alexkor. H

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[6] The relevant provisions of the Act are to be found in s 2(1). It provides that: A

'A person shall be entitled to restitution of a right in land if -

. . .

(d)

it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and

(e)

the claim for such restitution is lodged not later than 31 December 1998.' B

In terms of s 1 of the Act 'restitution of a right in land' means '(a) the restoration of a right in land; [7] or (b) equitable redress'; 'right in land' means '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 C period of not less than ten years prior to the dispossession in question'; and 'racially discriminatory practices' means 'racially discriminatory practices, acts or omissions, direct or indirect, by (a) any department of State or administration in the national, provincial or local sphere of government; (b) any other functionary or institution which exercised a public power or D performed a public function in terms of any legislation'.

[7] By agreement between the parties, the LCC confined itself to deciding the question whether the Richtersveld Community met the requirements of s 2(1) of the Act, and in particular whether it constituted a community or part of a community dispossessed of a right E in land after 19 June 1913 as a result of past racially discriminatory laws or practices. The Richtersveld Community claimed that it was dispossessed of ownership (under common law or indigenous law) [8] or the right to exclusive beneficial occupation and use of the subject land, including the exploitation of its natural resources. F

[8] The LCC held that the Richtersveld Community constituted 'a community' for the purposes of the Act, and had beneficially occupied the subject land for a continuous period of not less than ten years prior to its dispossession after 19 June 1913. However, it held further that the Community had failed to prove that this dispossession was the result of discriminatory laws or practices. G

[9] In upholding the appeal, the SCA, in a comprehensive and helpful judgment, found that the Richtersveld Community had been in exclusive possession of the whole of the Richtersveld, including the subject land, prior to and after its annexation by the British Crown in H 1847. It held that those rights to the land (including minerals and precious stones) were akin to those held under common-law ownership and that they constituted a 'customary law interest' as defined in the Act. It further found that in the 1920s, when diamonds were discovered on the subject I

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land, the rights of the Richtersveld Community were ignored by the State which dispossessed them and eventually made a A grant of those rights in full ownership to Alexkor. Finally, the SCA held that the manner in which the Richtersveld Community was dispossessed of the subject land amounted to racially discriminatory practices as defined in the Act. The SCA accordingly made the following order: B

'In result the appeal succeeds with costs including the costs of two counsel. The orders of the LCC are set aside and replaced with an order in the following terms:

''(a)

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 s 2(1) of the Restitution of Land Rights Act 22 of 1994 to restitution of the right C to exclusive beneficial occupation and use, akin to that held under common-law ownership, of the subject land (including its minerals and precious stones);

(b)

The defendants are ordered jointly and severally to pay the plaintiffs' costs including the costs of three D counsel.'' ' [9]

[10] Alexkor and the Government contend that any rights in the subject land which the Richtersveld Community might have held prior to the annexation of that land by the British Crown were terminated by reason of such annexation. They contend further that, in any event, the E dispossession of the subject land after 19 June 1913 was not the consequence of racially discriminatory laws or practices. Accordingly they seek to set aside the order made by the SCA.

Admission of the Government as a second appellant F

[11] The Government participated actively as a party to the proceedings in the LCC and the SCA. The judgment of the SCA was delivered on 24 March 2003. The time provided in Rule 20 of the Rules of this Court for lodging an application for special leave to appeal expired on 14 April 2003. [10] By agreement between the parties that time was extended by the Chief Justice to 30 April 2003. G

[12] By letter dated 24 April 2003, the State Attorney advised the attorneys for the Richtersveld Community that, as Alexkor was appealing the judgment of the SCA, the Government had decided that it would not actively participate in the proceedings and had opted to abide the decision of this Court. Thereafter the Government pursued attempts to H

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settle the claim of the Richtersveld Community. Discussions to that end were held between 8 April 2003 and 26 May 2003. A They were not successful.

[13] It appears from the affidavit filed on behalf of the Government that on 4 August 2003 the Chief State Law Adviser instructed senior counsel to prepare an application for special leave to appeal and for condonation of the late application for that relief. B The delay is ascribed to the number of departments of State that were involved in the matter and to the fact that 'no co-ordinated evaluation of the order of the SCA was undertaken before the Cabinet decision of 11 June 2003'. The affidavit goes on to record that: '(i)t was only at the meeting of 16 July 2003 that serious C consideration was given to the possibility of seeking special leave to appeal on behalf of the applicant'. The application for condonation was filed in this Court on 13 August 2003.

[14] We were informed by counsel for the Richtersveld Community that it would abide the decision of the Court in respect of the Government's application. However, counsel pointed out that according D to the Government's own affidavit, it took a decision after the delivery of the judgment of the SCA not to appeal against it and thereby preempted the right to do so. Thereafter the Government changed its mind and now seeks special leave to appeal. E

[15] Had the Government been the only party in this matter, the preemption of its right to appeal might well have brought an end to the litigation. However, Alexkor, which is wholly owned by the Government, has been granted special leave to appeal. The joinder of the Government in the lower court proceedings has the consequence that any order made F by this Court against Alexkor would be binding on the Government. It was not submitted that the Richtersveld Community would be prejudiced if this Court received the heads of argument submitted on behalf of the Government or if we heard oral argument from its counsel.

[16] In these circumstances we decided that we should receive the Government's heads of argument. As the heads of argument G substantially traversed the same ground covered by those submitted on behalf of Alexkor, we restricted the oral submissions of the Government to responding to any questions that might...