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Court and Tribunal Decisions – South Africa
Land Claims Court of South Africa (Gildenhuys AJ and M Wiechers (assessor))
22 March 2001
Land rights — claim for restitution under Ch IIIA of the Restitution of Land Rights Act 22 of 1994 — whether rights in land for purposes of this Act may be based on doctrine of aboriginal title — such question involving development of common law — Land Claims Court does not have jurisdiction to decide case
The plaintiff communities, whose members are descended from the indigenous inhabitants of the Richtersveld, a remote area in the Northern Cape Province, brought a claim for restitution of their rights in this land under Ch IIIA of the Restitution of Land Rights Act 22 of 1994.The land is currently owned by Alexkor Ltd (the first defendant) in which the Government of the Republic of South Africa (the second defendant) is the sole shareholder. As required by s 2(1) of the Act, the plaintiffs alleged that they had been dispossessed of their rights in the Richtersveld after 19 June 1913 as a result of past racially discriminatory laws or practices.
Prior to instituting proceedings in the Land Claims Court, the plaintiffs launched another action against the same defendants, in reverse order, in the High Court of South Africa (Cape of Good Hope Provincial Division). This action was based on the common law and is still pending. In Richtersveld Community v Alexkor Ltd and anor 2000 (1) SA 337 (LCC), the Land Claims Court rejected a special plea of lis alibi pendens brought by the defendants on the grounds that the two cases involved different causes of action.
In argument, the plaintiffs claimed that the rights in land of which they had been dispossessed consisted of rights of ownership, alternatively aboriginal title, alternatively ‘beneficial occupation’ as contemplated in the definition of ‘right in land’ in s 1 of the Restitution Act. The aboriginal title claim was based on the alleged applicability in South Africa of the doctrine of aboriginal title as developed in the United States, Canada, Australia and New Zealand.
1. The claims were dismissed with a recommendation that the Minister of Land Affairs consider granting the plaintiffs alternative relief in terms of s 38E(d) of the Restitution Act.
2. The plaintiffs did not have rights of ownership in the Richtersveld. According to the first principle of intertemporal law, the consequences of the colonial acquisition of a territory must be examined on the basis of the conditions and rules in existence at the time of colonisation. It was clear from the surrounding documents that, upon annexation in 1847, the British colonial government assumed full ownership of the Richtersveld, to the exclusion of the plaintiffs.
3. The second principle of intertemporal law, that changes in the law through judicial pronouncement, legislation or otherwise may allow the subsequent realisation of aboriginal title, could only assist the plaintiffs if such changes had indeed occurred.
4. To the extent that the rights in land claimed by the plaintiffs are dependent on the doctrine of aboriginal title, such rights are dubious, because it is uncertain whether this doctrine forms part of South African law, and if it does, what its scope and contents are.
5. A claim based on the doctrine of aboriginal title is a common law cause of action that differs from the right to claim restitution under the Restitution Act. Even if such a cause of action is recognised in South African law, it falls outside the jurisdiction of the Land Claims Court.
6. It is possible that a right to aboriginal title may be recognised as a customary law interest as contemplated in the definition of ‘right in land’ in s 1 of the Restitution Act. The recognition of such a right depends, however, on the development of the common law.
7. The Land Claims Court, though of a similar status to the High Court, is not mentioned in s 173 of the Constitution of the Republic of South Africa, 1996 among the list of courts that have been given the power to develop the common law. This Court accordingly does not have jurisdiction to recognise aboriginal title as a customary law interest.
8. Where legislation has been enacted giving effect to a constitutional right, such as the right to restitution in s 25(7) of the 1996 Constitution, it is in any event not permissible for a court to develop the common law to give further or better effect to such right.
9. The proper forum for the enforcement of the plaintiffs’ alleged rights in the Richtersveld is the Cape High Court.
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.
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.
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 was 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.
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]
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.
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 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 plaintiffs’ 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.
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 —
(a) 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
...
(c) 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 —(i) 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
(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.
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]
...
17. Following upon the above, the main issues which arose for determination at the hearing during September 2000 were:
(a) whether the plaintiffs are communities or individuals who themselves or through their forebears
(b) had rights in the subject land
(c) of which they were dispossessed after 19 June 1913
(d) by racially discriminatory laws or practices.[16]
The burden of proof in respect of each of these issues rests upon the plaintiffs.
...
23. The Richtersveld forms part of a larger area known as Namaqualand. One part of Namaqualand is north of the Garib River, and is known as Great Namaqualand. The other part is south of the Garib River in the Northern Cape Province, and is known as Little Namaqualand. The Richtersveld is part of Little Namaqualand.[17] The original inhabitants of Namaqualand were overwhelmingly Khoi Khoi, but also included some San people. They were present in the area long before the Dutch colonisation of the Cape. The Khoi Khoi were mainly pastoralists, whilst the San were hunter gatherers. They moved about in nomadic fashion, according to the seasons and the rainfall. Over time, people from the two groups (at least in Little Namaqualand) merged with each other and with others who came to the area, in particularly with the so-called basters (people of mixed descent, mainly from white fathers and San or Khoi mothers).[18] They are sometimes referred to as Khoisan.
24. During the 19th century, other people started settling in Little Namaqualand. These included some white trekboere,[19] and also a number of so-called basters. Missionaries too started showing an interest in Little Namaqualand. The Renisch Mission Society established a mission station under the charge of Reverend Hein at Kuboes during the mid-19th century. At that time, the Richtersveld[20] was occupied mainly by Nama speaking Khoisan herders and the more recently arrived basters. These people had a leader, Captain Paul Links, who governed them with the assistance of a Council (Groot Raad). The Kuboes mission station became the nucleus of the Richtersveld, and the missionaries played a large role in the affairs of their indigenous flock, including the promotion of land claims.[21] There were also other mission stations ministering to the indigenous inhabitants of Little Namaqualand. One of them was a Renisch mission station at Steinkopf, under the charge of Reverend Brecher. Steinkopf falls outside the Richtersveld.[22]
25. On 23 December 1847 the British Crown, through annexation, extended the northern boundary of the then Cape Province from the Buffels River up to the Garib River. From that date the whole of Little Namaqualand (including the Richtersveld) became subject to British rule.
26. On 30 June 1890 Mr S Melvill, Second Assistant Surveyor-General, presented a report to Parliament ‘in regard to lands occupied by natives on certain Missionary Institutions and other places in Namaqualand.’[23] This report deals with the Richtersveld. It gave a description of the land, as follows:
51. The territory known under this name is situated on the banks of the Orange River, and extends from ‘Missionary’s Drift’ down to the mouth of the river, with a width, southward, of 30 miles, more or less.
52. The head station, where a church is in the course of erection, is Kuboes, about 12 miles distant from the Orange River, and is under the charge of Mr F Hein, an Evangelist of the Rhenish Missionary Society, the congregation being, however, under the supervision of Mr Brecher of Steinkopf.24
The inhabitants of the Richtersveld were described as follows:
53. The inhabitants of Richtersfeld count only 47 families, comprising say 380 souls, nearly all of whom are Hottentots, with Paul Links, son of the late Captain Paul Links, as their headman; their live-stock consisting of about 50 horses, 560 horned cattle, and 3,200 sheep and goats. Most of them are very poor, and I fear they are in a retrogressive state.25
This report confirms their physical presence, and also that they organised themselves under a headman.
27. The annexed Richtersveld land was at all relevant times considered by the Cape Colonial Government to be Crown land. This notion continued until ownership of the subject land was formally made over by the State to the first defendant.[26] During the 19th century there were half-hearted movements within the colonial Government towards setting aside a portion of Little Namaqualand for the Richtersveld people. Some Government people were of the view that the Richtersveld people were occupying an unreasonably large terrain. One of them was the Second Assistant Surveyor-General, Mr S Melvill, who in his report of 30 June 1890 estimated the utilized track of land to be between 680 000 and 700 000 morgen in extent. He considered this to be much too large, and he suggested a reduction to 450 000 morgen.[27] Melvill also made some suggestions on land to be made available to white settlers. His recommendations were, however, never followed up. No grant of ownership or ticket of occupation was ever issued to the Richtersveld people. The issue of land title for the Richtersveld people remained on the back burner.
28. During 1925 diamonds were discovered near Port Nolloth. In 1927 a particularly rich deposit was found at the mouth of the Garib River at Alexander Bay. Many people moved into the area. Alluvial diggings were proclaimed on the subject land. Since 1926, claims for diggings have been awarded by the Government on land which forms part of the subject land. The Government considered the subject land to be unalienated Crown land,[28] entitling them to award the claims.
29. Since the establishment of the first diamond diggings on the subject land, the Richtersveld people were progressively denied access to the subject land for the purposes for which they had utilized the land in the past. Diamonds were exploited on the subject land by various claim holders. In 1957 a fence was erected along the boundary between the Richtersveld Reserve and the Corridor farms.[29] This prevented the Richtersveld people from using those portions of the subject land which had not yet been taken up by diamond diggings, for seasonal grazing and the watering of stock. They lost all access to the subject land.
30. Eventually, in 1989, the Alexander Bay Development Corporation was established under the Alexander Bay Development Corporation Act.[30] Section 2(2) of the Act reads as follows:
The Registrar of Companies shall on the date of commencement of this Act enter the name of the corporation in his register, and as from that date all assets, liabilities, rights and obligations of the State in the State Alluvial Diggings which the Minister with the concurrence of the Minister of Finance may determine, shall, subject to the provisions of this Act, pass to the corporation.
Pursuant to section 2(2) it was determined by the Minister of Economic Affairs and Technology, with the concurrence of the Minister of Finance, that ownership of the subject land would pass to the first defendant. The alluvial diggings were deproclaimed. A prospecting and digging agreement[31] was entered into between the first defendant and the State in respect of the subject land with effect from 1 May 1989.[32]
31. Three years later, through the Alexkor Limited Act[33] the Alexander Bay Development Corporation was converted into a company under the Companies Act,[34] to be known as Alexkor Limited. Section 3(2) of the Alexkor Limited Act reads as follows:
No transfer duty referred to in section 2 of the Transfer Duty Act, 1949 (Act No 40 of 1949), shall be payable in respect of the transfer to the company of immovable property to which it was entitled on the date of its incorporation in terms of an agreement between the corporation and the State but which had on the said date not been transferred to the corporation.
Title Deeds to confirm that the rights of the State to the entire subject land have passed to Alexkor Limited, were registered during 1993 and 1994.[35] On 20 April 1995 all the title deeds of the subject land were endorsed to the effect that a certificate of mineral rights[36] in respect of all rights in minerals on or under the subject land was issued in favour of the first defendant.[37]
32. After unification and during 1925, the South African Government appointed a commission to investigate the position of the Richtersveld. The commission recommended that Melvill’s suggestion of a 450 000 morgen land allocation be accepted, but that 143 000 morgen be excised from that area. That recommendation was accepted by Parliament. On 5 February 1930 the Minister of Lands issued a certificate of reservation in respect of the Richtersveld Reserve land under the Disposal of Crown Lands Act,[38] in favour of the Minister of Native Affairs for the use of the persons residing therein. The Reserve does not include the corridor farms or the subject land. Legislation is pending in terms of which the Richtersveld people hope to obtain ownership of the Reserve land.[39]
33. The first issue which I will address is whether any of the first five plaintiffs constitute a community, as defined in the Restitution Act, and have rights in the subject land.[40] Under the Restitution Act, a community:
... means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group (my underlining).
A community, which might not be a legal persona, is given the necessary locus standi in iudicio to claim restitution in terms of the Restitution Act. If none of the first five plaintiffs are found to be communities, that finding must be the end of plaintiffs’ claims.
34. In order to find that any of the first five plaintiffs is presently a community entitled to claim restitution, I must be satisfied that they are sufficiently linked to a community which, at the time of the alleged dispossession, was:
(a) a group of persons;
(b) with rights in the subject land held in common by the group; and
(c) which rights are derived from shared rules determining access to the land.
I will commence my investigation into whether any of the first five plaintiffs constitutes a community by examining their alleged rights in land.
35. If I find that there is a community properly before the Court which held a right in the subject land, I will proceed to investigate firstly whether that community was dispossessed of that right, secondly whether that dispossession was of a kind which will support a claim for restitution under the Restitution Act, and thirdly whether that dispossession was the result of any past racially discriminatory law or practice.
36. In terms of section 22(1)(a) of the Restitution Act, this Court is given the power to determine a right to restitution in accordance with the Restitution Act. The Court cannot go beyond the jurisdiction given to it in terms of this Act. I will identify the claims which fall outside the Restitution Act, and leave them undecided.
37. The first plaintiff claims that, under the law of the Cape Colony extended to the Richtersveld (including the subject land) by annexation, the first plaintiff acquired ownership of the Richtersveld (including the subject land) by occupatio at the time of annexation.[41] That ownership was not, however, recognised by the Government. The Richtersveld people were not considered to have a sufficient degree of civilisation to warrant such recognition.[42] The British Colonial Government during the 19th century simply assumed sovereignty of, and full ownership over, the entire Little Namaqualand (including the subject land), which it viewed as being terra nullius. It considered itself to be the owner of all land in the colony not previously issued to persons by a responsible Government.[43] It made laws under which non-issued land (considered to be Crown land) could be disposed of.[44] That included Crown land actually occupied by people, but who were considered to have insufficient civilisation to make them the owners of the land.[45] The Colonial Government followed the practice of issuing ‘Tickets of Occupation’ which would allow indigenous people whose ownership claims were not recognised, to remain on the land (or some of the land) which they previously occupied, without recognising any compulsion on the part of the Government to do so.[46]
38. The Richtersveld people considered themselves entitled to ownership of the land which they occupied, and from time to time, mostly through missionaries, directed claims to the Colonial Government in Cape Town.[47] The report by the surveyor, Mr S Melvill,[48] contains the following on the land issue:[49]
57. The extent of land claimed for Richtersfeld, together with Kalkfontein, is enormous, being, as very roughly estimated by me, from 680,000 to 700,000 morgen. No boundaries have ever been defined, and the country having been hitherto considered as not a very desirable one for Europeans to inhabit, the natives have been allowed to occupy it in their usual nomadic fashion, without limitation to any particular part.
58. When informed by the people of the boundaries claimed, I at once told them that the Government would not sanction the continued occupation of so large an extent; and I then proceeded to point out certain boundaries to which I requested them to confine themselves, informing them at the same time that these were only provisional, and subject to the approval of the Government.[50]
39. Mr Melvill regarded the land occupied by the Richtersveld people to be Crown land. Consequently their occupation thereof was subject to permission from the Government. This appears from the following passage of his report:
60. Taking then into consideration the nature of the country, and the circumstances of the people — the majority of whom appear to be in a retrogressive state — I am disposed to think that the time has not yet arrived for forcing Individual Tenure on them. Nor am I prepared to recommend the issue of a ticket of occupation at present, as I think it would be sufficient if the people were to be informed by the Government that they will be left in the undisturbed occupation of the tract of land pointed out by me until such time as it may be found expedient or necessary to take further steps for more definitely deciding on the boundaries to be adopted. This course I consider the more desirable in view of a proposal to be submitted further on, for the survey of Crown Lands in these parts.[51]
He envisaged an eventual grant of the Richtersveld territory (or part thereof) to the Richtersveld people, and made the following recommendations in respect thereof:
62. I would here suggest that in the event of a grant of the Richtersfeld territory being made at any time, the Government should, by the insertion of a clause in the title, reserve the right to resume any portion of the land which may be found capable of cultivation, by irrigation from the Orange River, or which may be necessary for the construction of irrigation works.[52]
40. Some letters by Government officials during the latter part of the 19th and the beginning of the 20th century seem to recognise that the Richtersveld people had certain land rights.[53] On 18 April 1920 the Secretary for Lands wrote to the Magistrate at Springbok as follows:
... it is extremely difficult to furnish you with definite information as to the extent and limits of that part of the Richtersveld in regard to which the Government would be prepared to recognise the existence of definite claims to ownership or even residential or surface rights by the so-called Bastards attached to the Richtersveld mission and the Hottentots ... under Headman Swartbooi Links ...
... in regard to Richtersveld the Government’s attitude has been as uncertain one so far, inasmuch as that, although it has undoubtedly been taken for granted that both the Bastards and the Hottentots possess certain surface rights of user and residence, a claim, that they should be recognised as actual owners of the soil, had never been admitted, ... while you should do nothing which would be tantamount to a recognition of any claim on the part of the Bastards and Hottentots to ownership of the Richtersveld, no steps can be taken to interfere when white farmers are charged grazing fees by the Bastards or Hottentots; these people undoubtedly have certain grazing rights in the Richtersveld and, if outsiders desire to participate in the use of the grazing, the payment of a remuneration therefor seems reasonable, though the practice should not receive your official sanction.[54]
The bulk of the archival documents seem to indicate that the Government considered themselves entitled to decide to what extent (if at all) land claims would be accepted. In the minutes of proceedings taken before the Select Committee on Public Accounts in 1922,[55] the attitude of the Government, as expressed in a Court case about ownership of the Richtersveld,[56] was reported to be as follows:
That the effect of the Annexation Proclamation of 1847 was to extend the colonial boundaries to include the Richtersveld, which thereupon became Crown Land; that though nomadic occupation was admitted, such occupation was communal and that any individual occupation which took place was purely precarious, ...[57]
41. The 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.[58] Grotius, in a somewhat controversial passage,[59] refers to the acquisition of ownership of land through occupation in De Jure Belli ac Pacis[60] as follows:
If, however, anything which has been occupied as a whole has not yet been assigned to individual owners, it ought not on that account to be considered as unoccupied property; for it remains subject to the ownership of the first occupant, whether a people or a king. To this class ordinarily rivers, lakes, ponds, forests, and rugged mountains belong.
The ‘people’ who can be first occupants must, according to the thinking of the time, be people of sufficient civilisation,[61] otherwise their occupation would be disregarded and the land would be considered to be unoccupied property.[62] According to Bennett:
In the case of the Cape, Britain ignored whatever rights the Khoi and the San people might have had. Sedentary agriculture and urbanization were the most reliable tests of a ‘civilised’ proprietary regime, and these peoples had neither farms nor towns. It follows that they had no recognizable land titles.[63]
That 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.
42. The consequences of the colonial acquisition of territory must be examined according to the conditions and rules in existence at the time of colonisation, and not at a later date.[64] This is the first principle of intertemporal law. According to Dugard, the principle was expounded by Max Huber in the so-called Island of Palmas case,[65] as follows:
A judicial fact must be appreciated in the light of the law contemporary with it, and not the law in force at the time when a dispute in regard to it arises or falls to be settled.
Huber added a second principle, which he formulated as follows:
The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law.[66]
Dugard points out that the second principle is controversial. It could destroy the first principle completely. Other countries have adopted various doctrines to deal with the changed legal thinking on past acquisitions by colonisers of land inhabited by indigenous people. Changes of the law, made by judicial pronouncement, legislation or otherwise, allowed the subsequent realisation of indigenous title in some form or other. Such changes of the law have not yet occurred in South Africa, but could be developed into the South African common law. That kind of development of the common law cannot be accomplished by this Court for reasons which will appear later in this judgment.[67]
43. The law in force in the Cape Colony at the time of annexation was that all land not granted under some form of tenure belonged to the Crown. According to Botha[68] the legal position, even before the British occupation, was that:
... the Sovereign remains the lawful lord of the soil so long as no part of it is granted in absolute freehold.[69]
Nathan,[70] in discussing quit-rent tenure, adopted the same standpoint:
Quit-rent tenure, is usually granted by the Crown, as direct owner of all land in a country.[71] (my underlining)
In the case of Cape Town Town Council v Colonial Government and Table Bay Harbour Board[72] De Villiers CJ, without reference to any authority, stated that ‘all ungranted land remains with the Crown’, and referred to:
the doctrine that every title of land should originate with a grant made by the Crown, or with the consent of the Crown.[73]
That seems to have been the law applicable to Namaqualand at the time of annexation. According to modern writers on the subject, it is still the law today. Scheepers declares:[74]
Since all land belongs to the state, land is not normally res nullius: even land abandoned by its owner (res derelicta) probably reverts to the state and does not become res nullius. The only instance where land is res nullius and may thus be acquired in ownership by means of occupation, is where islands arise in the sea.
The contrary conclusion reached by Prof Sonnekus in his article on bona vacantia under South African law,[75] seems to be a minority view. In my view, none of the plaintiffs had rights of ownership in the subject land after the annexation in 1847.
44. The rights of possession and use of the subject land which the plaintiffs claim, originate from the doctrine of aboriginal title.[76] It is sometimes referred to as native title, indigenous title or, in some countries, Indian title. The right is described by Bennett and Powell[77] as follows:
Aboriginal title (or native title as it is also called) is a right in land, one vesting in a community that occupied the land at the time of colonisation. Once such a title is established, the claimants may vindicate their land or, if it has been expropriated without adequate reimbursement, claim compensation.[78]
The Richtersveld people contend that this doctrine should also find application in South Africa, and maintain that they have a right to indigenous title over the whole of the Richtersveld, which includes the Reserve, the corridor farms and the subject land. This case is only concerned with the subject land.
45. Following upon court decisions in the United States, Canada,[79] Australia[80] and New Zealand, the doctrine of aboriginal title was established and developed in various countries. The doctrine has developed differently in different countries.[81] The United States Supreme Court described the doctrine in Oneida Indian Nation v Country of Oneida[82] as follows:
It very early became accepted doctrine in this Court that although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original States and the United States — a right of occupancy in Indian tribes was nevertheless recognized. That right, sometimes called Indian title, and good against all but the sovereign, could be terminated only by sovereign act.[83]
In the landmark decision of Mabo v Queensland,[84] Judge Brennan summarised the common law of Australia with reference to land titles as follows:
1 The Crown’s acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.
2 On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.
3 Native title to land survived the Crown’s acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown’s acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.
4 Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).[85]
46. To the extent that any of the rights claimed by the plaintiffs is dependent on the realisation or aboriginal title, such rights are dubious, because it is uncertain whether the doctrine of indigenous title forms part of our law,[86] and if it does, what its scope and contents are. It has, to my knowledge, never been recognised in any reported court decision.[87] Even if it does form part of our law, it is uncertain whether such title would have survived the actions of the Government in making the subject land over to others.[88]
47. It has been established by judicial decisions in other Anglo-American legal systems that colonisation as such did not destroy indigenous rights to land.[89] The powerful arguments of principle and equity contained in these decisions may well enjoin South African courts of competent jurisdiction to adopt a similar stance. The realisation of the right to aboriginal title which indigenous people might have had in respect of land prior to colonisation, and the procedures to achieve such realisation, as it developed in other countries, differ from the statutory remedies provided by the Restitution Act for the redressing of wrongs caused by apartheid. The Restitution Act is of limited compass. Bennett and Powell point this out in their article Aboriginal Title in South African Revisited:
It is understandable that, while South Africa’s new political dispensation presented an obvious opportunity for redressing past wrongs, the focus fell on eradicating the most immediate injustice: apartheid. Hence, provisions in the interim Constitution for restoring land were aimed at people dispossessed under racially discriminatory laws. In furtherance of those provisions, a Restitution of Land Rights Act 22 of 1994 was passed in November 1994 enabling any such dispossessed person or community to apply to a land claims commission for return of their land. The subsequent restitution programme has unfolded in terms of this Act.
Many deserving candidates fail to qualify under the Act because statutory claims were limited in two ways. Claimants must have lost their land as the result of a racist law and they must have been dispossessed after 19 June 1913. This date was chosen because of its association with the apartheid regime. 1913 was the year in which the first of the so-called ‘pillars of apartheid’ was passed, the Natives Land Act 27 of 1913, which laid the foundation for systematical racial segregation in South Africa.
For those who cannot meet the requirements of the Restitution of Land Rights Act, aboriginal title — although still judicially untested in this country — will provide an alterative common-law ground of action.[90]
The realisation of indigenous title, as Bennett and Powell correctly point out, is an alternative common-law ground of action.[91] If such a ground of action is recognised in South African law, it falls outside the jurisdiction of this Court.[92]
48. What the plaintiffs refer to as indigenous title may, however, be a customary law interest, as referred to in the definition of ‘right in land’. Such an interest, if recognised by customary law, would be a right in land for purposes of the Restitution Act, provided the customary law was applicable.[93] The existence of the customary law interest must be raised in the pleadings,[94] and it must be proved that the custom on which it depends, has developed into applicable law.[95] Custom will only become law where consensus exists that the custom is normative. Otherwise, it will be overridden by the law of the land.[96] A court may take judicial notice of indigenous customary law only insofar as such law can be ascertained readily and with sufficient certainty.[97] This Court will, for purposes of a restitution claim, have jurisdiction to determine whether a particular interest was recognised by applicable customary law. In this case it was not proved that, at the time of dispossession, there existed a custom which had become applicable law, in terms of which the State was obliged to recognise rights of the first plaintiff over the subject land.[98] It might well be that the State is morally bound to recognise interests of the first plaintiff in respect of the subject land, and that it acts injustly towards the first plaintiff by not doing so. It is that kind of injustice which the doctrine of indigenous title seek to address. That doctrine, if it is part of South African law, still needs to be developed. It is an alternative remedy to restitution under the Restitution Act, and falls outside this Court’s jurisdiction.[99]
49. It has been argued on behalf of the plaintiffs that this Court may also develop the common law so as to introduce a right to indigenous title as a customary law interest, to the extent that the interest is not already recognised. This Court is a creature of statute, and has only those powers which the Restitution Act or any other law bestows upon it. I will proceed to consider whether the power to develop the common law has been bestowed upon it.
50. In terms of section 22(2) of the Restitution Act, this Court, in addition to specific powers granted to it, also has those further powers in relation to matters falling within its jurisdiction as are possessed by a High Court in civil proceedings, and which are necessary for or reasonably incidental to the performance of its functions. The further powers are, however, subject to Chapter 8 of the Constitution and to the additional limitation that they must relate to matters falling within the Court’s jurisdiction.[100] The notion that a court must have the ancillary powers necessary for or reasonably incidental to the performance of its functions, comes from the ubi ius ibi remedium principle.[101] The ius must be one recognised by existing law. The ius can be extended to cover new situations and to keep pace with the requirements of changing conditions.[102] This Court cannot, however, rely on its ancillary powers to create new law.[103]
51. Section 173, contained in Chapter 8 of the Constitution, deals with the development of the common law. The section reads:
The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.
Courts like the Land Claims Court, which have a status similar to High Courts, are conspicuously absent from the list of courts given the power to develop the common law. Elsewhere in the Constitution, specific powers are bestowed on courts with a similar status to the High Courts, such as the power to make an order concerning the constitutional validity of an Act of Parliament.[104] The omission of the phrase ‘courts with a status similar to the High Courts’ from the list of courts empowered to develop the common law, seems to be deliberate. The omission cannot be overcome by a purposive interpretation of the Constitution.[105]
52. Section 8(3) of the Constitution also relates to the development of common law. It reads:
When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1).
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled under the Constitution, and to the extent provided by an Act of Parliament, to restitution of that property or to equitable redress.[106] That right forms part of the Bill of Rights. Any court may develop the common law to give effect to the right, to the extent that legislation has not already given effect to it. In this case, the right to restitution has been given effect to by the Restitution Act. It is no longer permissible for this Court to develop the common law to give further or better effect to it.
53. On the above analysis, I find that this Court has not been given the power to develop the common law so as to include the realisation of aboriginal title under the so-called doctrine of aboriginal title.[107] The realisation of such a title will be a remedy which diverges from the remedy of restitution under the Restitution Act,[108] and would fall outside the jurisdiction of this Court. The Cape High Court, on the other hand, has the power to develop the common law. That court might decide that the common law should provide for the realisation of indigenous title.[109] If it does so, the proper forum for the enforcement of such a right will be the Cape High Court, not this Court.
[His Honour then considered whether the first plaintiff had rights in land based on beneficial occupation and concluded that they did. He also held that they constituted a community for the purposes of the Act. But he was unable to hold that they had been disposed after 19 June 1913, by racially discriminatory laws or practices, for the purposes of the Act.]
...
116. The case presently pending in the Cape High Court between the first five plaintiffs and the defendants also revolves around the issue of the plaintiffs’ legal title to the subject land. I have already found that the restitution requirements as laid down by the Restitution Act have not been met. In the light of that finding, it will be inadvisable for me to decide, or even to comment, on what rights to the realisation of indigenous title (if any) the plaintiffs might have in respect of the subject land. If any of the plaintiffs have any such rights, the rights cannot be realised by order of this Court.311 Furthermore, although the first five plaintiffs, because they are communities as defined in the Restitution Act, have the necessary locus standi in iudicio to claim restitution in this Court under the provisions of the Restitution Act, it does not follow that they are legal personae, nor does it follow that they will have locus standi in iudicio in any other court. Any finding or comments by me on the possible rights which a group of people without locus standi in iudicio in any other court might have, is undesirable.
117. I regret that the limited jurisdiction of this Court makes it impossible for me to decide on the issue of the realisation of indigenous title, which was fully canvassed before this Court, and which will have to be canvassed again in another court, should the plaintiffs wish to continue with that claim in another Court. The limited jurisdiction of this Court sometimes results in a multiplicity of actions, which is unfortunate.
118. I have already found that members of the first plaintiff community did occupy the subject land, albeit in nomadic fashion, until they were excluded from the land in order that the land may be used for diamond mining. They regarded the land as their land, despite the official view that it was Crown land. My conclusion that the plaintiffs do not qualify for the restitution of land rights in respect of the subject land need not be the end of the matter. In terms of section 38E(d) of the Restitution Act, I am entitled to make recommendations to the Minister of Land Affairs regarding the most appropriate form of alternative relief which might be given to the plaintiffs.312 I do not know what alternative relief would be feasible or appropriate.[313] It will, in my view, be fitting for the Minister to consider some form of relief. In doing so, the Minister will no doubt take into consideration benefits which the plaintiffs have already received, particularly from or through the offices of the first defendant.[314] Of course, if the plaintiffs’ pending claim in the Cape High Court should succeed, plaintiffs would have their relief.
119. The defendants did not ask for costs. Accordingly, I will make no cost order.
120. For the reasons contained in this judgment:
(a) the claims of all the plaintiffs are dismissed;
(b) it is recommended to the Minister of Land Affairs that alternative relief to the plaintiffs which is feasible and appropriate, be considered; and
(c) no order is made as to costs.
Counsel for the plaintiffs:
Adv WH Trengove SC, Mr G Budlender, Adv P Hathorn, Adv JF Roos, Mr H Smith
Solicitors for the plaintiffs:
Legal Resources Centre, Cape Town
Counsel for the first defendant:
Adv JJ Gauntlett SC, Adv A Schippers
Solicitors for the first defendant:
E Moosa, Waglay & Peterson, Cape Town
Counsel for the second defendant:
Adv RC Hiemstra SC, Adv MV Combrink
Solicitors for the second defendant:
State Attorney, Cape Town
[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.
[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.
[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.
[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.
[12] The leave was granted at a pre-trial conference held on 4 June 1999.
[13] The judgment which I gave on that issue has been reported at 2000 (1) SA 337 (LCC).
[14] See the definition of ‘restitution of a right in land’ in section 1 of the Restitution Act.
[15] See the definition of ‘equitable redress’ in section 1 of the Restitution Act.
[16] Section 2(1)(d) of the Restitution Act.
[17] Boonzaier, evidence at 7.
[18] See para [24] below.
[19] Itinerant farmers.
[20] The area was named after a teacher at the Renisch Mission Seminary in Germany, the Reverend W Richter. See Phillips, evidence at 1033–1034.
[21] An important source of information is a diary kept by Reverend Hein.
[22] Cloete, evidence at 920.
[23] The report is contained at 161 seqq of file 3 of Archival Documents which were placed before the Court.
[24] Above n 33 at 168.
[25] Above n 33 at 169.
[26] In a number of proclamations made during the 20th century and relating to diamond mining, the subject land (or portions thereof) were described as Crown land. See para [97] below.
[27] Melvill report (above n 33), paras 57–60.
[28] Proclamations establishing the diggings referred to the land as Crown land. See, for example, the reference in Proclamation 58 of 1928 to the belief ‘that precious stones exist in payable quantities on certain unalienated Crown land in the vicinity of Alexander Bay ...’
[29] Item 1.15 of the ‘Facts not in Dispute’, submitted as Exhibit 11.
[30] Act 46 of 1989.
[31] The agreement was concluded in terms of the Precious Stones Act, Act 73 of 1964.
[32] Item 1.16 of ‘Fact not in Dispute’, submitted as Exhibit 11.
[33] Act 116 of 1992.
[34] Act 73 of 1971.
[35] The title deeds are listed in n 1 above.
[36] Certificate no K362/95.
[37] Item 1.17 of ‘Facts not in Dispute’, submitted as Exhibit 11.
[38] Act 15 of 1887 (Cape of Good Hope).
[39] Cloete evidence at 797–799.
[40] As envisaged in section 2(1) of the Restitution Act.
[41] Para 23.1 of plaintiffs’ particulars of claim.
[42] The British Government, according to the law applicable at the time, only recognised the rights of indigenous people occupying annexed territories if their usages and conceptions of rights and duties were reconcilable with the institutions and legal ideas of civil society. See para [41] below.
[43] Towards the end of the 19th century the Resident Magistrate at Port Nolloth granted grazing permits in respect of lands which now form part of the subject land, wherein such lands were described as ‘Crown Lands’. Copies of the permits can be found at 274 and 275 of file 1A of the Archival Documents placed before the Court. These documents were put to Mr Phillips in cross-examination: evidence at 1115–1119.
[44] Examples of such laws are the Crown Lands Act 2 of 1860, followed by Act 14 of 1878 and Act 15 of 1887.
[45] For a general description of that approach, see Hailsham (ed) Halsbury’s Laws of England 4th ed Vol 6 (Butterworths, London 1991) at 469, para 978 and Dugard, International Law — A South African Perspective, 2nd ed (Juta, Cape Town 2000) at 120:
During the nineteenth century the ... indigenous, non-European peoples in loosely organized societies were viewed as having no rights under international law. Consequently their territory was viewed as terra nullius — a designation that gave legal backing to the colonial expansion of that century. Modern international law, determined to erase this mark of imperialist paternalism from the historical record, has sought to minimize the nineteenth-century positivist position.
[46] On 27 August 1909 the Surveyor-General in Cape Town wrote a letter to the Chairman of the Raad of the Richtersveld people, in which he stated:
The Government, however, has no intention of depriving the inhabitants of the Richtersveld of the rights they have hitherto enjoyed as you seem to apprehend, and in order to allay any anxiety which you and your people may entertain, I may state that it is proposed at the forthcoming session of Parliament to seek sanction to the formal reservation, by means of a Ticket of Occupation, of the area indicated by the figure bordered blue on the plan attached to Mr Mellvill’s Report of 1890, though of course
there is no compulsion on the Government to reserve the whole of the area as defined.
All rights to minerals and precious stones will be reserved to the Crown as in the case of Steinkopf, while conditions relating to outspanning rights by the travelling public, and a clause to the effect that all rights thereby conveyed will be forfeited in the event of insurrection by the inhabitants, will be embodied in the document to which Parliamentary sanction will be sought.
The letter is contained in file 1A at 276–277 and in file 1 at 193–194 of the bundles of documents placed before the Court (see para [21] above), and was put to Mr Phillips in cross-examination: evidence at 1119–1120.
[47] See, for example, a letter dated 4 May 1888 by the Reverend Brecher to the Civil Commissioner at Springbok, which addressed ‘the question ... about the ownership of the Richtersfeld’. The letter is at 248 of file 1A of the Archival Documents placed before the Court. Subsequently, in a letter dated 3 August 1909, Reverend Kling, acting ‘as Chairman of the Steinkopf Raad and of the Richtersveld Kalkfontein community’, claimed ‘title of the area’. The letter is at 186–187 of file 1 of the Archival Documents placed before the Court.
[48] Para [26] above.
[49] See n 33 above.
[50] Above n 33 at 169.
[51] Above n 33 at 169–170.
[52] Above n 33 at 170.
[53] On 1 December 1851 the Surveyor-General, Mr Charles Bell, expressed an opinion in a letter to the Colonial Secretary that annexations such as that of the Richtersveld ‘do not affect rights to private property’. Similar sentiments were expressed by Mr Bell in a subsequent letter, dated 27 August 1859, also to the Colonial Secretary. The letters are in file 1A of the Archival Documents placed before the Court, at 242 and 47 respectively.
[54] The letter is at 250–251 of file 1 of the Archival Documents placed before the Court.
[55] An extract of the minutes is contained in file 1A of the Archival Documents placed before the Court, at 127–129.
[56] The Court case was initiated by one Ryk Jasper Cloete.
[57] Para 1392 of the extract, n 65 above. A more extensive extract from the affidavit filed on behalf of the Union Government is contained in par [62] below.
[58] Britain would recognise the indigenous laws of the inhabitants of a country over which it obtained sovereignty only if the inhabitants were considered to be ‘sufficiently civilised’. See para [106] below. See also Campbell v Hall (1774) 1 Cowper 205 at 207 para [209].
[59] It is not generally accepted that Roman-Dutch law recognised the acquisition of ownership over every kind of terra nullius through occupatio.
[60] Translation by Kelsey (Clarendon Press, Oxford 1925) at 2.2.4.
[61] See Fagan, ‘Roman-Dutch Law in its South African Historical Context’ contained in Southern Cross — Civil Law and Common Law in South Africa, Zimmerman & Visser (eds) (Juta, Cape Town 1996) at 41:
The international law which would have made it possible to regard the Cape area as res nullius, where imperium could be established by occupatio, is of course premissed (sic) on a sharp division between ‘primitive’ and ‘civilised’ societies.
[62] See the thinking of the Privy Council in Re Southern Rhodesia [1919] AC 211 (PC) at 233–234. Two years later, in the case of Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399 (PC), which dealt with a cession of territory to the British Crown by a former potentate, it was held at 407 that:
A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; ...
That thinking would, at the time, not apply to people who were considered insufficiently civilised to be ‘private owners’.
[63] Above n 71 at 67.
[64] Dugard above n 55 at 114.
[65] United States v Netherlands (1928) 2 RIAA 829.
[66] Both these quotations have been taken from Dugard at 114.
[67] See paras [49]–[53] below.
[68] Botha ‘Early Cape Land Tenure’ (1919) South African Law Journal 149.
[69] Remark made at 152, in a discussion of erfpacht which was introduced as a form of land tenure in 1732.
[70] Common Law of South Africa Vol 1 (Butterworths, London 1904).
[71] Above n 80 at 496.
[72] 23 (1906) SC 62.
[73] Above n 82 at 69.
[74] Scheepers (original text by Van Aswegen) ‘Land’ in Joubert (ed) The Law of South Africa 1st Reissue, Vol 14 (Butterworths, Durban 1997) at 15, para 9(a).
[75] ‘Enkele opmerkings na aanleiding van die aanspraak op bona vacatia as sogenaamde regale reg’ 1985 2 Tydskrif vir Suid-Afrikaanse Reg 121.
[76] In an article ‘The State as Trustee of Land’ (2000) 16 South African Journal on Human Rights 601, Bennett & Powell declared at 615–616:
Aboriginal title implies that, while a colonizer automatically acquired dominium over all land in new colonies, native rights persisted as burdens on the state’s radical title.
[77] ‘Aboriginal Title in South Africa Revisited’ (1999) 15 South African Journal on Human Rights at 449.
[78] Above n 87 at 449.
[79] Calder v Attorney-General of British Columbia [1973] SCR 313; (1973) 34 DLR (3d) 145 (further page references are to the DLR version); Delgamuukw v British Columbia [1997] 3 SCR 1010; (1997) 153 DLR (4th) 193.
[80] Mabo and Others v Queensland (No2) [1992] HCA 23; (1992) 175 CLR 1.
[81] See n 99 below.
[82] [1974] USSC 15; (1974) 414 US 661.
[83] Above n 92 at 667.
[84] Above n 90.
[85] Above n 90 at 69.
[86] Bennett in an article ‘Redistribution of Land and the Doctrine of Aboriginal Title in South Africa’ (1993) 9 South African Journal on Human Rights at 443, came to the conclusion that the prospect of bringing a successful claim of aboriginal title in South Africa is remote. In a subsequent article ‘Aboriginal Title in South Africa Revisited’ (n 87 above), Bennett and Powell asserted that recent developments in both international law and Anglo-American jurisprudence indicate that the doctrine of aboriginal title was received into the South African legal system from international customary law or from British colonial law, and concluded that potential claimants will now find it easier to meet the evidential requirements.
[87] As far as I could ascertain, the doctrine has never been recognised in any sub-Saharan African country.
[88] Compare the Mabo decision (n 90 above); Calder, above n 89 at 192–193; Fejo and Another on behalf of the Larrakia People v Northern Territory of Australia and Another [1998] HCA 58; (1998) 156 ALR 721 at 736.
[89] Bennett & Powell Aboriginal Title in South Africa Revisited (above n 87) at 451:
It is, of course, true that the legal foundations for aboriginal title will vary, for the right was realised differently in different legal systems. Nevertheless, it is possible to identify a consistently held legal principle: colonisation did not destroy indigenous rights to land.
[90] See n 87 above at 450.
[91] See also Bennett Human Rights and African Customary Law (Juta, Cape Town 1995) at 148:
The state’s constitutional obligation to restore land is limited by two considerations: the land must have been lost as a result of a racist law and the dispossession must have occurred after 19 June 1913. Those who do not fall within the purview of these provisions are not left remediless, however; they may take action under aboriginal title. Although this doctrine is judicially untested in South Africa, it may be a second ground for claiming return of land.
[92] This Court’s jurisdiction to adjudicate on restitution claims is limited to claims under the Restitution Act: see section 22(1)(a) of the Restitution Act.
[93] Courts must apply customary law when it is applicable: See section 211(3) of the Constitution of the Republic of South Africa, Act 108 of 1996.
[94] See Maisela v Kgolane NO 2000 (2) SA 370 (T) at 376I–377A.
[95] Sigcau v Sigcau 1944 AD 67 at 76; Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) at 395–396; Mosii v Motseoakhumo 1954 (3) SA 919 (A) at 930; Saliwa v Minister of Native Affairs 1956 (2) SA 310 (A) at 317G; Kerr ’The Application of Native Law in the Supreme Court’ (1957) 74 South African Law Journal 313.
[96] Bennett The Application of Customary Law in Southern Africa (Juta, Cape Town 1985) at 25:
Custom as a source of rules functions most effectively in close-knit communities with shared interests and expectations. Members of the community will always be aware of one another’s attitudes and how these are changing; in such circumstances, practices can more easily be accepted as normative. But the demographic, social and economic diversity of the modern state will tend to undermine the consensual basis that is so important for the formation of custom. It then becomes inevitable that law will be imposed.
[97] Section 1(1) of the Law of Evidence Amendment Act, Act 45 of 1988.
[98] See JW Bennett, ‘Redistribution of Land and Aboriginal Title in South Africa’, n 96 above at 460.
But what of rights under indigenous customary law?
As far as the Cape Colony was concerned, this was not an issue because Britain refused to recognize any aspect of customary law. Hence, if we leave aside for the moment the primordial aboriginal title contemplated by the doctrine of continuity, there were no indigenous land rights in the Cape. (my underlining)
[99] See para [53] below.
[100] Zulu and Others v Van Rensburg and Others 1996 (4) SA 1236 (LCC) at 1245B–C; [1996] 2 All SA 615 (LCC) at 623g–h.
[101] See Pistorius Pollak on Jurisdiction, 2nd ed (Juta, Cape Town 1993) at 28. The gist of the principle is that wherever a right exists, a remedy must also exist.
[102] See Janse van Rensburg v Grieve Trust CC 2000 (1) SA 315 (C) at 324A–F, and the cases referred to by van Zyl J.
[103] Compare the remarks of van Dijkhorst J on inherent jurisdiction in Cerebos Food Corporation Ltd v Diverse Foods SA (Pty) Ltd and Another 1984 (4) SA 149 (T) at 172C–174B.
[104] Section 172(2)(a) of Act 108 of 1996. Other sections of the Constitution which refer to ‘courts of similar status’ are 168(e), 167(5) and 169(a)(ii).
[105] A purposive approach to interpretation does not do away with the ordinary rules of statutory interpretation: Minister of Land Affairs and Another v Slamdien and Others [1999] 1 All SA 608 (LCC); 1999 (4) BCLR 413 (LCC) at para [16].
[106] Section 25(7) of Act 108 of 1996.
[107] I have already expressed doubt on whether this Court may develop the common law in the case of Jacobs en Die Departement van Grondsake, insake Erf 38, Upington, LCC 120/99, 28 February 2000, [2000] JOL 6204 (LCC), internet web site <www.law.wits.ac.za/lcc/2000/12099sum.html> at para [18].
[108] The doctrine of aboriginal title allows a community to realise title to land which survived the vicissitudes of colonization. Restitution of a right in land under the Restitution Act, on the other hand, envisages the restitution of a right which was lost through Government action.
[109] There is support for such a view amongst academic writers. See Bennett & Powell, ‘Aboriginal Title in South Africa Revisited’, above n 87, and Reilly, ‘The Australian Experience of Aboriginal Title: Lessons for South Africa’ in (2000) 16 South African Journal on Human Rights 512 at 528:
In South Africa, it is as yet unclear what potential there is to claim Aboriginal title. The international and common law jurisprudence, and its application in Canada, the USA, Australia and New Zealand suggests that there are good reasons to expect that the law in South Africa will support claims to Aboriginal title.
[311] The jurisdiction of this Court, being a creature of statute, is limited. It does not include the jurisdiction to make orders for the realisation of indigenous rights. See para [53] above.
[312] Section 38E:
The Court may, during proceedings under this Chapter and subject to such terms and conditions as it may determine—
...
(d) make recommendations to the Minister regarding the most appropriate form of alternative relief, if any, for those claimants who do not qualify for the restitution of rights in land in terms of the Act; and
[313] There was some discussion thereof at 841–2 of the evidence.
[314] Evidence relating to such benefits is contained at 958–71 of the record.
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