Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Commentary
Stephanie Patterson[∗]
One of the most invidious features of colonialism and apartheid in South Africa was a system of land ownership in which eighty percent of South Africa’s people were restricted to ownership and occupation of just thirteen percent of South Africa’s land. Land reform was thus a significant issue in the negotiations leading to democratic elections and the development of a new Constitution. A key part of these constitutionally sanctioned land reforms was a system for land restitution, pursuant to which those dispossessed of rights in land by racist laws or practices could make a claim for restitution. Many commentators have suggested that the restitution system was deliberately designed to prevent claims based on aboriginal title.[1] This view was shared by the new South African Government, who also feared that land claims based on aboriginal title could further divide a society already deeply scarred by the racial policies of the apartheid era. However, in a series of cases involving a land claim by the Richtersveld people of the Northwestern Cape, a right to restitution was recognised on the basis of some of the doctrines that are central to an aboriginal title claim. This decision, sanctioned by the highest court in South Africa, suggests that in spite of the views of commentators and the government alike, the first steps towards recognising that aboriginal title forms part of South African law have already been taken.
White control over the ownership and occupation of land by black South Africans was a hallmark of the apartheid era and the colonial period which preceded it. Beginning with the arrival of the Dutch at the Cape in 1652, black South Africans’ rights to land were consistently ignored or legislated out of existence. The key event in the history of the distribution of land in South Africa was the passing of the Natives Land Act 1913. Often seen as one of the ‘foundation stones’ of the apartheid state,[2] this Act prevented blacks from owning or leasing land outside areas designated as African reserves. In 1913, these reserves constituted just seven percent of the South African land mass, and the subsequent Native Trust and Land Act 1936 extended the area to thirteen percent.[3] Further restrictions on the rights of black South Africans to own or lease property, particularly in urban areas, were implemented after the victory of the Nationalist Party in 1948. The new government, which would not lose an election until 1994, began to implement its vision of ‘grand apartheid’, which included taking measures to ensure that South Africa’s cities and towns were thoroughly segregated. Under the Group Areas Act 1950, the government had the power to proclaim particular areas of land as ‘white only’ and require black South Africans with interests in the land to forfeit them, usually without compensation. The Natives Resettlement Act 1954 gave the government power to forcibly remove Africans from ‘white’ areas and dump them in the townships which were created on the outskirts of every South African city and town.[4]
The last Nationalist government under President F W de Klerk took the first small steps towards land reform in South Africa: The Abolition of Racially Based Land Measures Act 1991 was passed. As the name of the legislation suggests, this Act reinstated the rights of black South Africans to acquire interests in any land by abolishing the legislation which had so severely restricted the areas in which they could own or occupy land. However, by granting black South Africans merely the right to fully participate in a market-based land economy, only those who ‘had the means to gain access to the market’ gained any substantive benefit from the passing of this Act.[5]
After the elections in 1994, the African National Congress (‘ANC’) enjoyed a large majority in the Government of National Unity, which was required to draft and pass a final Constitution.[6] Because of its large majority, the ANC was able to exert a great deal of influence over the shape of the constitutional property clause in the final Constitution.[7] Section 25, within the Bill of Rights, contains the right to own, and not be deprived of, property. In addition, provisions relating to land reform are also part of s 25, and thus also part of the Bill of Rights. The ANC’s policy of land reform has three key elements, each of which is reflected in s 25.[8] First, a system of land redistribution was required to attempt to remedy 350 years of colonialism and apartheid, which had rendered most black South Africans landless. Section 25(5) imposes an obligation on the state to take ‘reasonable legislative and other measures’ to enable citizens to ‘gain access to land on an equitable basis’. Secondly, land tenure reform was necessary because many of the millions of black South Africans who lived and worked on white-owned farms did so with little protection of their tenure. Section 25(6) provides that a person whose tenure is legally insecure is entitled to tenure which is legally secure, or to ‘comparable redress’. The third limb of the ANC’s land reform policy relates to the restitution of land rights. Section 25(7) provides that a person or community who was dispossessed of a right in land after 1913 as the result of a racially discriminatory law or practice is entitled to restitution.[9]
In order to give effect to the constitutional right to restitution, the Restitution of Land Rights Act 1994 (‘the Restitution Act’) was passed. Section 2(1) of the Restitution Act provides that a person or community who was dispossessed of a right in land after 19 June 1913 as the result of a past racially discriminatory law or practice is entitled to restitution. In s 1, a ‘right in land’ is defined as:
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.
If the Land Claims Commissioner is not able to settle a claim, it is passed on to the Land Claims Court for adjudication.[10] The Act envisages that a large number of claims may be made under the Restitution Act. For example, a farmer whose right to own agricultural land was taken away by the Natives Land Act 1913 may be entitled to restitution. Similarly, those who were forcibly removed from their homes in urban areas such as District Six in Cape Town and Sophiatown in Johannesburg under the Group Areas Act 1950 or the Natives Resettlement Act 1954 may also be entitled to restitution.[11]
One kind of claim which was said to be excluded from the restitution process was claims based on the doctrine of aboriginal title. The cut-off date for restitution claims is 19 June 1913. This is the date when the Natives Land Act 1913, one of the first pillars of apartheid, was enacted. Section 2 of the Restitution Act provides that restitution is only available to those claimants who were dispossessed of their rights in land after this date. In its White Paper on land reform policy, the government said that the terms of the Restitution Act, with the 1913 cut-off date, are designed to exclude claims based on a doctrine of aboriginal title from the restitution process.[12] This ‘pragmatic compromise’[13] was necessary because the government considered that the injustices of 350 years ‘cannot reasonably be dealt with by the Land Claims Court’.[14] Several commentators have also accepted, apparently without question, that the choice of the 1913 cut-off date would be effective to prevent claims based on aboriginal title. Visser and Roux noted that because of the 1913 cut-off date, ‘Indigenous or aboriginal land claims were thus excluded from the current arrangements.’[15] Similarly, Murphy has noted that the 1913 cut-off date, ‘reflects the consensus that the doctrine of aboriginal title should not form the basis of restitution claims in South Africa’.[16] Finally, Bennett and Powell, whilst suggesting that aboriginal title-based arguments may have success in South Africa in a common law action, assume that the terms of the Restitution Act excluded such claims.[17]
As well as asserting that the terms of the Restitution Act would, as a matter of legislative drafting, exclude aboriginal title claims, the government also expressed its opposition to aboriginal title claims in South African law as a matter of principle. The government argued that claims relating to the period prior to 1913 would be too complex to deal with, and that aboriginal title claims, based as they are upon ownership by an ethnic community, could ‘serve to awaken and/or prolong destructive ethnic and racial politics’.[18] Likewise, in considering the possibility of aboriginal title claims in South Africa, Bennett has suggested that whilst the pursuit of recognition of aboriginal title rights is both appropriate and necessary in North American and Australian societies, South Africa’s history may render aboriginal title claims dangerously divisive:
Elsewhere [ie, North America and Australia] the notions of tribe, ethnicity and cultural exclusivity on which aboriginal title was based were critical to building a sense of identity among fragmented and demoralized indigenous communities. For many South Africans, however, the same notions are reminiscent of colonialism and apartheid ... Ethnicity is too evocative of South Africa’s history of racism to fit comfortably with the ideals of a post-apartheid era.[19]
This concern is certainly not unwarranted because the apartheid government went to great, and often successful, lengths to emphasise, and even create, ethnic and tribal differences amongst indigenous Africans. The apartheid government’s Bantustan policies, and its constant emphasis on the existence of essential differences between the indigenous peoples of South Africa were ‘patent efforts to promote political divisions among the country’s African population’.[20] This classic ‘divide and rule’ strategy created vast amounts of ethnic tensions, which often had the desired effect of diverting attention away from the larger struggle against apartheid. For example, thousands of people were killed in Kwa Zulu-Natal during the 1980s and 1990s as a result of a ‘civil war’ between the ANC, which was committed to the principle of non-racialism, and the ethnic nationalist Inkatha Freedom Party, which, with the tacit assistance of the still-governing Nationalist Party, was seeking to create an ethnically pure Zulu state.[21]
So whilst huge steps had been taken towards redressing past wrongs in respect of land, through constitutional provision and legislative enactment, it seemed that claims based on aboriginal title would be excluded from this process. However, in December 1998, the Richtersveld people, from the isolated Northwestern corner of the Northern Cape, lodged a claim under the Restitution Act. Their claim was based in part on an argument that until after 1913, they held aboriginal title to land of which they were subsequently dispossessed. Thus for the first time, and despite the efforts of the government to exclude such claims, the South African courts were forced to confront the issue of aboriginal title.
The Richtersveld people are part of a larger group, the Nama people, who are descended from Khoikhoi and San-speaking people. The area claimed by the Richtersveld people (‘the subject land’) is part of Namaqualand in the Northern Cape. This area has been inhabited by Khoikhoi and San people since well before the first colonists – the Dutch – arrived at the Cape. The Khoikhoi and San people were mainly pastoralists or hunter-gatherers, and they therefore lived a relatively nomadic lifestyle which depended upon seasons and rainfall.
In the first half of the nineteenth century, other people came to live in the area and were absorbed into the group. Some of these were basters, or people with white fathers and Khoikhoi or San mothers. Others were trekboere, who were white farmers who had moved beyond the borders of the Cape Colony and lived, like the Khoikhoi and the San in a nomadic fashion. Some missionaries had also moved into the area. By the middle of the nineteenth century, the people living in the area were known as the Nama people, and they were governed by a leader, Captain Paul Links, who was assisted by a Groot Raad (a council).[22]
In 1847, the British Crown annexed the area, including the subject land. At the time of annexation, the Cape Colonial Government considered the area to be Crown land. The Richtersveld people continued to live on the land they had always lived on until 1925, when diamonds were discovered. From that time, the government issued licences to dig for diamonds to third parties, and as more licences were awarded, the Richtersveld people were gradually denied access to more and more of the subject land.[23] Under the Precious Stones Act 1928, the legislation by which the government was empowered to issue mining licences on privately owned land, the landowner was entitled to some compensation, such as free licences, and an entitlement to half of the licence fees collected by the government from third parties. Because the government did not consider, and had never considered, that the Richtersveld people had any rights in the land, they were never granted the compensation to which a private owner was entitled.[24] In 1957, a fence was erected around all of the subject land, which permanently deprived the Richtersveld people of access to any of the subject land. Between 1989 and 1994, all of the subject land was vested in Alexkor Limited, a government-owned company which continues to mine for diamonds on the subject land.[25]
Under the provisions of the Restitution Act, claimants must prove three things in order to successfully establish a right to restitution. First, they must prove that they had a right in land; secondly, they must prove that they were dispossessed after 1913 of this right; thirdly, they must prove that the dispossession was as a result of racially discriminatory laws or practices.
In the Land Claims Court, the court of first instance in claims under the Restitution Act, the Richtersveld Community based their claim to have had a right in land on three alternative arguments. First, they argued that at the time of annexation, they owned the subject land by virtue of being in sole occupation of it. Gildenhuys AJ rejected this argument, holding that the Richtersveld people could not have been the owners of the subject land because the British Colonial Government at the time never recognised that the Richtersveld people were capable of having rights in land. As hunter-gatherers and pastoralists, the Richtersveld people were considered not to be civilised enough to have rights of ownership which would be recognised by the common law: ‘[t]he reason why the British Colonial Government never recognised the Richtersveld people as the legal owner of the land, is decidedly because the people were regarded as insufficiently civilised’.[27]
In support of this principle, Gildenhuys AJ relied on the Privy Council decision of Re Southern Rhodesia[28] and its infamous statement that ‘some tribes are so low in the scale of social organization’ as to be incapable of having property rights ‘as we know them’.[29] Gildenhuys AJ acknowledged that a legal principle which denies recognition of property rights in this way is contrary to contemporary thinking. Nevertheless, Gildenhuys AJ considered that he was still bound to apply the principle: ‘[t]hat kind of thinking has now changed. The changed thinking does not, however, automatically destroy any land title obtained in accordance with rules of law applicable at the time, but which have subsequently fallen into disfavour’.[30]
Thus, Gildenhuys AJ held that because at the time of annexation the Richtersveld people were considered to be legally incapable of ownership, the acquisition of sovereignty over the subject land also resulted in the acquisition of beneficial ownership of the subject land by the British Crown. As a result, Gildenhuys AJ rejected the Richtersveld people’s contention that they had ownership rights over the subject land at the time of annexation.[31]
The second ground upon which the Richtersveld people based their claim was that they had an aboriginal title right to the subject land. They urged the Court to accept that the doctrine of aboriginal title forms part of South African law, and that according to this doctrine, their rights to land held under indigenous law survived the annexation of the subject land. Gildenhuys AJ noted the decisions in Mabo v Queensland (No 2)[32] and the US Supreme Court decision of Oneida Indian Nation v County of Oneida,[33] particularly their findings that the acquisition of sovereignty by a colonial power did not, by itself, destroy the rights to land of the indigenous occupants which originated from indigenous law. Whilst Gildenhuys AJ acknowledged that the judgments in both these cases contained ‘powerful arguments of principle and equity’, he held that the Land Claims Court lacked jurisdiction to introduce the concept of aboriginal title into South African law, and thus it was not necessary to consider issues relating to the recognition, source and nature of aboriginal title.[34] However, it is worth pointing out that a finding that the doctrine of aboriginal title forms part of South African law was arguably precluded by Gildenhuys AJ’s earlier application of the principle that upon annexation, the Crown acquired full beneficial title to the subject land because the Richtersveld people were considered to be too uncivilised to have rights to the land.[35] As Brennan J’s judgment in Mabo demonstrated, the doctrine of aboriginal title is predicated upon a rejection of the very principle which Gildenhuys AJ was willing to accept earlier in his judgment:[36] namely, that where allegedly ‘uncivilised’ peoples are concerned, the Crown acquired beneficial ownership of the land when it acquired sovereignty:
in my opinion, the common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory ... it thereby acquired absolute beneficial ownership of the land therein, and accepts that antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty.[37]
Although Gildenhuys AJ rejected the Richtersveld people’s arguments that they had a right in land based on either ownership or aboriginal title, the Restitution Act provides that a ‘right in land’ includes ‘beneficial occupation for a continuous period of not less than ten years prior to the dispossession’.[38] Thus, the third way in which the Richtersveld people argued that they had a right in land was by beneficial occupation. On the evidence presented in this case, the only issue in determining whether the Richtersveld people were in beneficial occupation of the land was whether their ‘intermittent presence’, by virtue of their nomadic lifestyle, could amount to occupation.[39] Somewhat ironically, Gildenhuys AJ relied on decisions involving aboriginal title[40] to hold that the requirement of occupation is satisfied even where there is only ‘sparse and intermittent habitation’ so long as the subject land was an area that the claimants ‘regarded to be their land’.[41] Gildenhuys AJ found that the evidence showed that the Richtersveld people did have the requisite ‘sense of legitimate access to the land’ and thus they had a right in land based on beneficial occupation of the subject land for ten years prior to occupation.[42]
Having determined that the Richtersveld people did have a right in land deriving from their beneficial occupation of the subject land, Gildenhuys AJ then had to determine first, whether they had been dispossessed of that right; and second, whether that dispossession had occurred as a result of racially discriminatory laws or practices. It was clear that the Richtersveld people had been dispossessed as a result of the granting of mining licences over the subject land throughout the 1920s and the eventual fencing off of all of the subject land in 1957. The Richtersveld people argued that the failure of the government to recognise their rights to land after diamonds were discovered in the 1920s, and to assume that the land was owned by the state, was racially discriminatory. However, Gildenhuys AJ took a restrictive view of what constituted ‘racially discriminatory laws or practices’[43] under the Restitution Act. He held that the choice of 1913 as the cut-off date for claims indicated that there was an intention to restrict the scope of the Restitution Act to laws and practices which had the aim of furthering ‘spatial apartheid’:
A dispossession which did not occur under a law or practice designed to bring about spatial apartheid, or broadly speaking, which was not intended for implementing the division of South Africa into separate compartments for difference racial groups, would not qualify as dispossession for the purposes of the Restitution Act ... The brushing aside of claims which persons of colour might have had in respect of land because they were considered insufficiently civilised, could well be a wrong for which the Restitution Act provides no remedy.[44] (Emphasis in original.)
In utilising this narrow interpretation of the scope of the Restitution Act, Gildenhuys AJ was following earlier authority of the Land Claims Court. In Minister of Land Affairs v Slamdien, the Court held that the purpose of the Restitution Act was to
address dispossessions of land rights which were the result of a particular class of racially discriminatory laws and practices, namely those that sought specifically to achieve the (then) ideal of spatial apartheid, with each racial and ethnic group being confined to its particular racial zone.[45] (Emphasis added.)
According to this authority then, the scope of the Restitution Act is so narrow that dispossessions that occurred as a result of unspoken racist assumptions, such as those relating to the Richtersveld people’s alleged lack of civilisation, are to remain without remedy in the new South Africa.[46] Accepting this authority, Gildenhuys AJ held that the failure to recognise the Richtersveld people’s rights in the subject land was not the kind of dispossession that would give rise to a remedy under the Restitution Act. Thus the Richtersveld people were held to have no right of restitution of the subject land.
Following this disappointing decision, the Richtersveld people appealed to the Supreme Court of Appeal, which handed down its decision on 24 March 2003. The Supreme Court of Appeal, in delivering judgment in favour of the Richtersveld people, overturned all of the critical findings in the Land Claims Court decision.
The Supreme Court of Appeal, with judgment delivered by Vivier ADP,[49] began by examining in detail the nature and source of the Richtersveld people’s rights in the subject land prior to annexation in 1847. Vivier ADP began by noting that one of the important components of the Richtersveld people’s culture was their ‘customary rules’ relating to the entitlement to use and occupation of land. He noted that the primary rule relating to land was that ‘the land belonged to the Richtersveld community as a whole and that all its people were entitled to the reasonable occupation and use of all land held in common by them and its resources’.[50]
Vivier ADP also found that the Richtersveld people’s rights to the land were exclusive, and in support of this finding, His Honour noted that the evidence showed that prior to annexation, the Richtersveld people determined whether non-members would have access to their land, and on what terms. British traders, trekboere and basters were, on occasions, granted permission to use the subject land, and often these people were charged rent for the use of the land. Thus, Vivier ADP concluded that prior to annexation, the Richtersveld people enjoyed ‘exclusive beneficial occupation’ of the subject land.[51] (Emphasis added.)
In addition to this finding that the Richtersveld people, prior to annexation, had a right of exclusive use and occupation of the subject land, Vivier ADP also commented on the source of the Richtersveld people’s right: ‘The right was rooted in the traditional laws and custom of the Richtersveld people.’[52] As a result, Vivier ADP concluded that prior to annexation, the Richtersveld people had a ‘customary law interest’, which, according to s 1 of the Restitution Act, can amount to a ‘right in land’ for the purpose of the Act.[53] It is interesting to note that Vivier ADP’s understanding of the source of the Richtersveld people’s customary law rights in land is similar to the way in which the source of aboriginal title rights is conceived under Australian law: ‘Native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.[54]
Vivier ADP himself noted the similarity between a ‘customary law interest’ in land and an aboriginal title right, saying, ‘[l]ike the customary law interest that I have found was held by the Richtersveld community, aboriginal title is rooted in and is the ‘creature of traditional laws and customs’.[55]
Having discussed the nature of the Richtersveld people’s right in land at the time of annexation, Vivier ADP then considered the effect of annexation on these customary law rights, and considered whether the Land Claims Court’s finding that upon annexation the Richtersveld people lost their rights in land because the land became Crown land was correct. He noted that the Privy Council case of Vajesingji Joravarsingji v Secretary of State for India[56] appeared to support Gildenhuys AJ’s argument that after annexation, all pre-existing rights in land were abolished unless the Crown, through some act, recognised them. However, Vivier ADP noted that this principle cited in Vajesingji Joravarsingji ‘is not in accordance with the weight of authority and has been criticized as unworkable in practice and wrong in law and logic’.[57] The better principle is the one found in Amodu Tijani v Secretary of South Nigeria,[58] a Privy Council case decided three years before Vajesingji Joravarsingji, in which Viscount Haldane stated that ‘[a] mere change in sovereignty is not to be presumed as meant to disturb the rights of private owners.’[59] Vivier ADP then cited passages from Brennan J’s judgment in Mabo v Queensland (No 2)[60] which contained two important principles. The first principle was Brennan J’s adoption of the principle in Amodu Tijani that a change in sovereignty alone does not destroy pre-existing property rights. The second was Brennan J’s rejection of the idea expressed in Re Southern Rhodesia that some indigenous people may be ‘so low in the scale of social organisation’ as to be incapable of having rights to land which are recognised by the common law.[61] Vivier ADP agreed with both of Brennan J’s points, and therefore overturned the decision of the Land Claims Court and concluded that the Richtersveld people’s customary law rights in land survived annexation in 1847.
There was no dispute between the parties that from annexation until diamonds were found in the 1920s, the Richtersveld people had continued to live on the subject land in much the same way as they had before annexation. That is, they still considered the land to belong to their community, and continued to grant leases to non-members.[62] It was not until the 1920s that the Richtersveld people began to be excluded from the subject land as the government granted more and more mining leases to third parties, and the Richtersveld people were finally excluded from all of the subject land in 1957, when a fence was built around it.[63] Therefore, the Richtersveld people were not dispossessed of their customary law right in land until after 1913, the cut-off date specified in the Restitution Act.
The final inquiry Vivier ADP had to make was whether this dispossession had occurred as a result of racially discriminatory laws or practices. As noted earlier, the government granted licences to mine for diamonds on the subject land under the authority of the Precious Stones Act 1928. This Act required the state to pay compensation to owners of land upon which licences were granted. However, because the state did not consider that the Richtersveld people had any rights to the land, they were not afforded this benefit. In the Land Claims Court, Gildenhuys AJ had found that this failure to recognise rights in land was not a result of racially discriminatory laws or practices for the purposes of the Restitution Act, because Gildenhuys AJ had narrowly interpreted the Act to apply only to laws and practices made or done with the purpose of further implementing ‘spatial apartheid’. Vivier ADP firmly rejected as unduly restrictive this interpretation of the Restitution Act’s ambit, noting that there was ‘no justification ... for confining the right to restitution under the Act to dispossessions under laws or practices designed to bring about “spatial apartheid”’.[64] Vivier ADP noted that underlying the dispossession of the Richtersveld people in the 1920s was a state policy to consistently disregard the Richtersveld people’s rights to the subject land and to regard the land as Crown land. Vivier ADP then noted that this state policy was inextricably linked to racial discrimination:
Underlying the State policy was the obvious, albeit unexpressed, premise that the Richtersveld became Crown land upon annexation because its people were insufficiently civilised. It can safely be accepted that an essential part of this premise was the race of the Richtersveld people. No alternative springs to mind or was suggested. The racial discrimination, therefore, is clear.[65]
The Supreme Court of Appeal therefore found in favour of the Richtersveld people on all three elements needed to bring a successful claim for restitution. First, Vivier ADP found that the Richtersveld people did have a right in land as defined under the Restitution Act. This right was a ‘customary law interest’ which had its source in the traditional laws and customs of the Richtersveld people. Secondly, Vivier ADP found that the Richtersveld people had not been dispossessed of this right at annexation, but rather had been dispossessed from the 1920s onwards, and thus fell within the Restitution Act’s cut-off date. And finally, Vivier ADP held that the government’s failure to recognise the Richtersveld people’s rights in land and to assume they were too uncivilised to have such rights was racially discriminatory. Thus, the Richtersveld people were entitled, under the Restitution Act, to restitution of their rights in land.
The Supreme Court of Appeal made one further important finding about the nature of the Richtersveld people’s rights in the subject land. Given that the subject land was, and continues to be, rich in mineral resources, Vivier ADP needed to determine whether the Richtersveld people’s customary law right included rights to the minerals on the land. The evidence was that long before annexation, the Richtersveld people had mined and used copper and iron on the subject land for the purposes of adornment. Additionally, after annexation, the Richtersveld people acted in a manner which made it clear that they considered that they did have a right to the minerals on the land. First, they did not seek permission from anyone to exploit the mineral wealth, and secondly, they granted leases to outsiders to prospect for minerals on portions of the subject land. As a result, Vivier ADP held that the Richtersveld people’s customary law right included a right to minerals and precious stones on the subject land, and that having been dispossessed of their customary law right in land, the restitution to which they were entitled included restitution of the rights to the mineral wealth of the land.[66]
Perhaps unsurprisingly, given the potential restitution bill facing the government (as owner of Alexkor corporation) the decision of the Supreme Court of Appeal was appealed to the Constitutional Court of South Africa, the highest court in South Africa for ‘constitutional matters’. Because the right to restitution is a right provided for in the Constitution,[69] the Constitutional Court held that it had jurisdiction to hear the appeal and determine matters relevant to the interpretation of the Restitution Act.[70]
After making this finding, the Constitutional Court then delivered a relatively short decision in which it affirmed the decision of the Supreme Court of Appeal. The Court agreed with Vivier ADP’s characterisation of the Richtersveld people’s right in land as a ‘customary law interest’ whose content was to be determined by reference to ‘the history and the usages of the community of Richtersveld’.[71] Importantly, the Constitutional Court agreed with the adoption by the Supreme Court of Appeal of the rule accepted in aboriginal title jurisdictions that customary law rights in land survive the acquisition of sovereignty by the colonial power:
In our view there is nothing ... in the events preceding the annexation of Richtersveld ... which suggests that annexation extinguished the land rights of the Richtersveld Community. The contention to the contrary by Alexkor was rightly rejected by the SCA [(Supreme Court of Appeal)].[72]
The Court also agreed with the Supreme Court of Appeal that the failure of the state to recognise the Richtersveld people’s rights to land when granting mining licences over the subject land was racially discriminatory,[73] and thus entitled the Richtersveld people to a remedy under the Restitution Act. Further, the Constitutional Court agreed that the customary law right to land included a right to the minerals and precious stones in the land.[74] Thus, the highest court in South Africa has affirmed the right of the Richtersveld people to restitution of their land rights.
In the Land Claims Court, Gildenhuys AJ considered that it was beyond the jurisdiction of the Court to develop the common law by making a finding that the doctrine of aboriginal title forms a part of South African law.[75] In the Supreme Court of Appeal, a court which does have jurisdiction to develop the common law, Vivier ADP declined to decide whether the doctrine forms part of South African law, or whether the common law should be developed to include recognition of aboriginal title. In light of the fact that the Richtersveld people were entitled to restitution under the Restitution Act, Vivier ADP considered it unnecessary to make that decision.[76] Similarly, in affirming the Supreme Court of Appeal decision, it was unnecessary for the Constitutional Court to consider whether aboriginal title forms part of South African law.
However, several aspects of the Supreme Court of Appeal decision, as affirmed by the Constitutional Court, were based upon Vivier ADP’s adoption of principles that are fundamental to an aboriginal title claim. First, the Supreme Court of Appeal decision demonstrates that South African law is capable of recognising rights to land which have their source in traditional laws and customs and that the scope and nature of such rights in land is to be determined by reference to those traditional laws and customs. Whilst in the Richtersveld people’s case, this was characterised as the recognition of a ‘customary law interest’ for the purposes of the Restitution Act, aboriginal title similarly involves the recognition of rights in land which have their source in ‘the traditional laws acknowledged, and the traditional customs observed’[77] and their content is to be ascertained ‘by reference to that traditional law or custom’.[78]
Secondly, and just as importantly, the Supreme Court of Appeal adopted into South African law the rule that a mere change in sovereignty does not disturb pre-existing rights to land. Vivier ADP rejected the finding of the Land Claims Court that when the Richtersveld was annexed, all the land became vested in the Crown. This decision by the Supreme Court of Appeal, and its endorsement by the Constitutional Court, was not simply the overturning of a decision by a single judge at first instance. Some academic commentators also assumed that in South Africa the Crown became the beneficial owner of the land it had acquired sovereignty over. For instance, Visser and Roux, whilst discussing the implications of the cut-off date under the Restitution Act, assumed that the Nama people, of whom the Richtersveld people are a sub-group, ‘were dispossessed of their traditional lands in 1847, when the boundaries of the then Cape Colony were extended to the Orange River’.[79] The decision of the Supreme Court of Appeal demonstrated the fallacy of this assumption when it adopted Brennan J’s statement from Mabo v Queensland (No 2) that ‘[t]he preferable rule, supported by the authorities cited, is that a mere change in sovereignty does not extinguish native title to land.’[80]
The third important aspect of the Supreme Court of Appeal decision was its finding that a failure to recognise indigenous rights to land was racially discriminatory. Again, this decision echoes the sentiments expressed in Mabo v Queensland (No 2). There, Brennan J said that the failure of governments to recognise the rights of indigenous people to land was an ‘unjust and discriminatory doctrine’, and the assumption that some groups were too ‘uncivilised’ to have rights in land was a ‘discriminatory rule’ which must be rejected.[81]
The adoption of these three principles could have important implications for potential aboriginal title claimants in South Africa. The Supreme Court of Appeal’s willingness to decide that South African law can recognise rights in land that have their origins in indigenous law, and that the simple acquisition of sovereignty over an area did not destroy these indigenous rights to land suggest that the foundations may already have been laid for a successful aboriginal title claim. Whilst the Supreme Court of Appeal has demonstrated that claimant groups in a similar situation to the Richtersveld people[82] have a remedy under the Restitution Act, and therefore do not necessarily need to pursue and aboriginal title claim, there are two types of claimants who may choose to pursue an aboriginal title claim as a means of vindicating their land rights.
The first kind of claimants would be those who continue to be in possession of the land they possessed at the time colonial sovereignty was acquired. Like the Meriam people in Mabo, they would seek a declaration that their rights to land survived the acquisition of sovereignty and continue to exist. The second kind of claimants would be those who, at the time of the acquisition of sovereignty, had rights to land under their own laws and customs, but these rights were extinguished prior to 1913, thus disentitling them from using the Restitution Act as the Richtersveld people did. These claimants may argue that their aboriginal title rights were wrongfully extinguished (eg, by an inconsistent grant), thus entitling them to compensation.[83]
Since coming to power in 1994, South Africa’s first democratic government has implemented a system of land reform which aims to undo the inequitable and racially-based system of land ownership which is one of the legacies of more than 350 years of colonialism and apartheid. One important aspect of this reform is the land restitution system, established under the Constitution and the Restitution of Land Rights Act 1994. By imposing a cut-off date of 1913 for this statutory system, the government openly expressed its intention to exclude cases based on aboriginal title, believing that such claims could further harm a country deeply scarred by racial divisions. Undeterred, the Richtersveld people of the Northern Cape urged the Land Claims Court to accept their claim for restitution based on arguments that aboriginal title forms part of South African law. Despite having their claim rejected by the Land Claims Court, the Richtersveld people subsequently enjoyed great success on appeal to the Supreme Court of Appeal and the Constitution Court. Both of these courts accepted that, prior to annexation, the Richtersveld people had a customary right to land based on their traditional laws and customs, and that this right survived annexation, and was not extinguished until after the 1913 cut-off date, thus entitling them to restitution under the Restitution Act. The Richtersveld v Alexkor cases could be extremely important to potential aboriginal title claimants in South Africa because they adopted into South African law some doctrines which are fundamental to a recognition of aboriginal title. The cases thus demonstrate that South African courts could be willing to entertain common law aboriginal title claims in the future.
[∗] The author would like to thank Sean Brennan, and also Ben Golder, for their insightful comments on earlier drafts of this paper.
[1] In South Africa, as in Canada, the phrase ‘aboriginal title’ is used instead of ‘native title’.
[2] Danie Visser and Theunis Roux, ‘Giving Back the Country: South Africa’s Restitution of Land Rights Act 1994 in Context’ in Medard Rwelamira and Gerhard Werle (eds), Confronting Past Injustices: Approaches to Amnesty, Punishment, Reparation and Restitution in South Africa and Germany (1996) 90.
[3] Together, these Acts destroyed independent African agriculture, and achieved their intended effect of forcing millions of Africans in wage labour on white-owned farms and migrant labour in the mining industries. See, Nigel Worden, The Making of Modern South Africa (2nd ed, 1995) 48–50.
[4] Under these Acts, around 3.5 million Africans were moved from their homes in urban areas to inferior townships which had inadequate housing, few services and were situated long distances away from employment: Shaunnagh Dorsett , ‘Restitution of Urban Land in South Africa: The Story of District Six’ [1999] UNSWLawJl 45; (1999) 22(1) University of New South Wales Law Journal 180, 181.
[5] John Murphy, ‘The Restitution of Land After Apartheid: The Constitutional and Legislative Framework’ in Medard Rwelamira and Gerhard Werle (eds), Confronting Past Injustices: Approaches to Amnesty, Punishment, Reparation and Restitution in South Africa and Germany (1996) 89, 114.
[6] An interim Constitution had come into force following multi-party negotiations in 1993, and it was always envisaged that a final Constitution would be drafted following elections in 1994.
[7] South African Constitution Act 1996.
[8] For a discussion of the ANC Government’s policy of land reform, see, Department of Land Affairs, White Paper on South African Land Policy (1997) (‘White Paper’).
[9] For a discussion of the constitutional property clause, see, Theunis Roux, ‘Property’ in Halton Cheadle, Dennis Davis and Nicholas Haysom (eds), South African Constitutional Law: The Bill of Rights (2002) 429–72.
[10] For further, more detailed discussion of the claims process, see, Visser and Roux, above n 2, 96–8.
[11] Note that in ss 1 and 35(1) of the Restitution Act, restitution may be either the restoration of the right in land of which the claimant was dispossessed or ‘equitable redress’, which could be either a grant of other land or financial compensation. For a discussion of the restitution claim relating to District Six in Cape Town see, Dorsett, above n 4, 191–204.
[12] White Paper, above n 8, [4.14.2].
[13] Murphy, above n 5, 121.
[14] White Paper, above n 8, [4.14.2].
[15] Visser and Roux, above n 2, 94.
[16] Murphy, above n 5, 121.
[17] TW Bennett and CH Powell, ‘Aboriginal Title in South Africa Revisited’ (1999) 15(4) South African Journal on Human Rights 449, 450.
[18] White Paper, above n 8, [4.14.2].
[19] T W Bennett , ‘Redistribution of Land and the Doctrine of Aboriginal Title in South Africa’ (1993) 9 South African Journal on Human Rights 443, 475. In this article, Bennett also suggested numerous legal reasons why aboriginal title may not fit easily into the South African legal system. However, six years later, following six years of aboriginal-title jurisprudence overseas and the establishment of the Restitution Act framework in South Africa, Bennett (with Powell) resiled from this position somewhat: Bennett and Powell, above n 17. In this later article, the issue of the potentially politically divisive nature of aboriginal title is not expressly considered, and Bennett and Powell conclude that aboriginal title may have a place in South African common law. They still assert that by its cut-off date of 1913, the Restitution Act would exclude claims based on aboriginal title.
[20] Leroy Vail (ed), The Creation of Tribalism in Southern Africa (1989) 12.
[21] See, Bennett, above n 19, 466–7. See also, Nelson Mandela, Long Walk to Freedom (1995) 689–90, 738–9; Nigel Worden (2nd ed, 1994) The Making of Modern South Africa, 139–40; Robert Ross, A Concise History of South Africa (1999) 187–8.
[22] These facts are drawn from the Land Claims Court decision: Richtersveld Community v Alexkor Ltd 2001 (3) SA 1293 (LCC) [23]–[24], (‘Richtersveld Community’).
[23] Ibid [28]–[29].
[24] Ibid [98].
[25] Ibid [30]–[31].
[26] Ibid.
[27] Ibid [41].
[29] Ibid 233–4.
[30] Richtersveld Community 2001 (3) SA 1293 (LCC) [41].
[31] Ibid [43].
[32] [1992] HCA 23; (1992) 175 CLR 1.
[33] [1974] USSC 15; (1974) 414 US 661.
[34] Richtersveld Community 2001 (3) SA 1293 (LCC) [47]. It should be noted that in December 1997, a year before they lodged their claim under the Restitution Act, the Richtersveld people began a common law action in the High Court of South Africa (Cape of Good Hope Provincial Division), seeking a declaration that the Richtersveld people hold, or held, aboriginal title to the subject land. After their Restitution Act claim was lodged, the Richtersveld people agreed not to pursue this common law action until their Restitution Act claim had been finalised. Given their eventual success under the Restitution Act, it is unlikely that the Richtersveld people will pursue the common law action.
[35] See, Richtersveld Community 2001 (3) SA 1293 (LCC); Re Southern Rhodesia [1919] AC 211; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[36] Richtersveld Community 2001 (3) SA 1293 (LCC) [41], [43].
[37] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 57 (Brennan J, with whom Mason CJ and McHugh J agreed).
[38] Restitution of Land Rights Act 1994 s 1.
[39] Richtersveld Community 2001 (3) SA 1293 (LCC) [59].
[40] Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483; Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development [1979] 1 FC 487.
[41] Richtersveld Community 2001 (3) SA 1293 (LCC) [60]–[61].
[42] Ibid [62].
[43] Restitution of Land Rights Act 1994 s 2.
[44] Richtersveld Community 2001 (3) SA 1293 (LCC) [93]. Presumably some of the laws Gildenhuys AJ had in mind which would qualify under the Act were the Natives Land Act 1913 itself, the Group Areas Act 1950 and the Natives Resettlement Act 1954, as well as actions carried out under the authority of those Acts.
[45] [1999] 1 All SA 608 (LCC) [26] (Dodson and Meer JJ). This interpretation was also applied in Jacobs v The Department of Land Affairs [1998] LLC 3/98 (Unreported, Bam P and Gildenhuys J, 28 February 2000).
[46] In a case note on the Land Claims Court decision, Hoq has argued that this interpretation of the Restitution Act could fall foul of the constitutional right to equality: Lamoni Amena Hoq, ‘Land Restitution and the Doctrine of Aboriginal Title’ (2002) 18(3) South African Journal on Human Rights 421, 439.
[47] At the time that the Constitutional Court was hearing the Alexkor and the Government’s appeal from the Supreme Court of Appeal decision, it was reported in South Africa that the subject land, including the diamond mine, could be worth R10 billion (AUD 2 billion): eg, Philip de Bruin, ‘Bid to Dodge R10bn Bill’, South African Press Association (SAPA) (Johannesburg ), 15 September 2003, available online at <http://www.lrc.org.za/Articles/Articles.asp> at 12 May 2004.
[48] Richtersveld v Alexkor Ltd 2003 (6) SA 104 (SCA) (‘Richtersveld’).
[49] The other four judges, Harms, Scott, Farlam and Mthiyane JJA, agreed with Vivier ADP.
[50] Richtersveld 2003 (6) SA 104 (SCA) [18].
[51] Ibid, [18]–[22].
[52] Ibid, [28].
[53] Ibid, [29]. Section 1 provides that a ‘right in land’ means ‘any right to land whether registered or unregistered, and may include ... a customary law interest’.
[54] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 58 (Brennan J). It should be noted that the source of aboriginal title rights is conceived of differently in Canada. As McNeil has pointed out, following the Canadian Supreme Court decision in Delgamuukw v British Columbia [1997] 3 SCR 1010, the source of aboriginal title rights is the pre-sovereignty use and occupation of the land. However, aboriginal law does still have relevance because it might be used to establish occupation, particularly with respect to establishing an intention to occupy land. See, Kent McNeil, ‘Post-Delgamuukw Nature and Content of Aboriginal Title’ in Kent McNeil (ed), Emerging Justice? Essays on Indigenous Rights in Canada and Australia (2001) 102, 104–8.
[55] Citing Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 para 103. Richtersveld 2003 (6) SA 104 (SCA) [37].
[56] (1924) LR 51 Ind App 357.
[57] Richtersveld 2003 (6) SA 104 (SCA) [54].
[59] Ibid, 407. Cited, Richtersveld 2003 (6) SA 104 (SCA) [55].
[60] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 58 (Brennan J).
[61] [1919] AC 211, 233.
[62] Richtersveld 2003 (6) SA 104 (SCA) [81].
[63] Ibid [91].
[64] Ibid [100].
[65] Ibid [109].
[66] There is now a large diamond mine on the subject land at Alexander Bay (owned by the first respondent, Alexkor), and it is estimated that the total value of the Richtersveld people’s right to restitution could approach R10 billion (A$2 billion). See de Bruin, above n 47.
[67] A media report of the Richtersveld people’s victory in the Constitutional Court referred to their victory as a ‘glittering prize’: T Butcher, ‘Poor Tribe Reclaims a Glittering Prize’, Sydney Morning Herald (Sydney), 16 October 2003, 7.
[68] Alexkor Ltd v Richtersveld Community [2003] Constitutional Court of South Africa 19/03 (Unreported, Chaskalson CJ, Langa DCJ, Ackermann, Goldstone, Madala, Mokgoro, Ncgobo, O’Regan, Sachs and Yacoob JJ, 14 October 2003). This was a unanimous decision by all ten members of the Court.
[69] South African Constitution Act 1996 s 25(7).
[70] Alexkor Ltd v Richtersveld Community [2003] Constitutional Court of South Africa 19/03 [30].
[71] Ibid [60].
[72] Ibid [68].
[73] Ibid [96].
[74] Ibid [60]–[61].
[75] Richtersveld Community 2001 (3) SA 1293 (LCC) [47].
[76] Richtersveld 2003 (6) SA 104 (SCA) [43].
[77] Native Title Act 1993 (Cth) s 223.
[78] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 110 (Deane and Gaudron JJ).
[79] Visser and Roux, above n 2, 94–5.
[80] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 57 (Brennan J). Cited, Richtersveld 2003 (6) SA 104 (SCA) [60] and adopted by Vivier ADP, [61].
[81] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J).
[82] A group in a relevantly similar situation would need to be able to show that from the date at which colonial sovereignty was acquired over their land (and these dates differ significantly across South Africa) until at least 1913, they were relatively undisturbed in their use and occupation of their land, and thus had a customary law interest in land, which survives ‘mere’ annexation. Then, they would need to show that they were dispossessed of the land after 1913 as a result of racially discriminatory laws and practices. As for the Richtersveld people, it would be sufficient to show that they were dispossessed because the State failed to recognise, and therefore protect, their customary law rights.
[83] This issue was considered in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, where it was held that native title could be extinguished by unilateral executive action without there being any obligation to pay compensation, unless the extinguishment breaches the Racial Discrimination Act 1975 (Cth). This was confirmed by the High Court in Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373. These decisions severely restricted the potential avenues for redress available to the large number of Indigenous people in Australia who were dispossessed of their rights in land before 1975. McNeil has convincingly argued that the position in Australia in relation to extinguishment and compensation amounts to a denial of racial equality: Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’, in Kent McNeil (ed), Emerging Justice? Essays on Indigenous Rights in Canada and Australia (2001) 292, 357ff. Given that equality before the law is a right guaranteed by s 9 of the South African Constitution, McNeil’s work indicates that there would be good grounds for arguing that the Australian position on extinguishment and compensation should not form part of South African law.
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