The Richtersveld Community and Others v Alexkor Limited and Another
| Jurisdiction | South Africa |
| Judge | Gildenhuys, AJ |
| Judgment Date | 22 March 2001 |
| Citation | 2001 JDR 0413 (LCC) |
| Docket Number | LCC151/98 |
| Court | Land Claims Court |
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 right as a result of past racially discriminatory laws or practices.
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Gildenhuys AJ
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.
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Gildenhuys AJ
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) is now represented by the Minister of Agriculture and Land Affairs. Both defendants opposed the restitution claims.
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Gildenhuys AJ
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 tails 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:
ownership; alternatively
aright 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
"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]
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.
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Gildenhuys AJ
[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 IlIA 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 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 or 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.
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. In the first special plea, the first defendant alleged that whatever rights the Richtersveld people might have had in the Richtersveld, were extinguished
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Gildenhuys AJ
before 19 June 1913. Consequently, this Court has no jurisdiction to entertain the restitution claim for want of compliance with section 2(1) of the Restitution Act. In the second special plea, the first defendant pleaded that this Court is not competent to inquire into the issue of aboriginal title. In the third special plea, the first defendant referred to the pending proceedings in the Cape High Court, raised the defense of lis pendens and prayed that the plaintiff's" claims either be dismissed, or that the action in this Court be stayed pending the decision of the action in the Cape High Court.
[10] The third special plea was argued before me in this Court on 13 September 1999. The parties filed a statement of agreed facts. No evidence was led. The plaintiffs undertook. in the event of the third special plea being dismissed, not to proceed with the action in the Cape High Court until the action in this Court has been disposed of. After hearing argument, I dismissed the third special plea. [13] The first and second special pleas were later withdrawn.
The issues
[11] The restitution claim is brought in terms of section 2(1) of the Restitution Act. Section 2(1) reads as follows:
"A person shall be entitled to restitution of a right in land if -
he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or
...
he or she is the direct descendant of a person referred to in paragraph (a) who has died without lodging a claim and has no ascendant who -
is a direct descendant of a person referred to in paragraph (a); and (ii) has lodged a claim for the restitution of a right in land; or
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
the claim for such restitution is lodged not later than 31 December 1998."
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Gildenhuys AJ
Restitution can take the form of restoration of the right in land, or of equitable redress. [14] Equitable redress includes the granting of an appropriate right in alternative state-owned land. or the payment of compensation. [15]
[12] The first, second, third, fourth and fifth plaintiffs claim to be communities. If they are not communities or parts of communities, their restitution claim must fail. The people constituting the first plaintiff might be part of a larger group inhabiting Little Namaqualand [16] and might also include within themselves smaller groups consisting of the inhabitants...
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