Richtersvelders have claim

2003-03-24 14:48

Bloemfontein - The Richtersveld community scored an important victory on Monday in a legal battle to regain their rights to a diamond-rich stretch of land along South Africa's west coast that is now being mined by Alexkor.

The Supreme Court of Appeal ruled that the Richtersvelders was entitled to restitution of the land.

A full bench of five appeal judges unanimously overruled an earlier finding by the Land Claims Court that the Richtersvelders did not have a legitimate claim to the 85 000 hectares in terms of the country's land reform legislation.

"Their dispossession resulted from a racially discriminatory practice in that it was based upon and proceeded from the premise that due to their lack of civilisation, to which their race was inextricably linked, the Richtersveld people had no rights in the subject land," Appeal Judge Werner Vivier said in his ruling.

According to the appeal judgment the Land Claims Court incorrectly found that the Richtersvelders lost all rights to the land upon annexation by Britain in 1847 because they were "insufficiently civilised" to be recognised.

Government dispossessed the Ricthersvelders of their rights to the particular land after diamonds were discovered there during the 1920s on the premise that it was Crown land. The land with all mineral rights was eventually awarded to Alexkor in 1994.

The Appeal Court found that the Richtersveld community was in exclusive possession of the whole of the Richtersveld, including the Alexkor land, prior to British annexation. The community's rights to the land, including precious stones and minerals, were akin to those held under common law ownership.

These rights constituted a customary law interest and consequently a right in land, which survived the annexation.

Appeal Judges Louis Harms, Douglas Scott, Ian Farlam and K K Mthiyane concurred with Vivier.

"The undisputed facts show that the Richtersveld community, living in the margin of history on the edge of the country, was largely ignored by successive governments although these governments always recognised that the community had some kind of exclusive entitlement to the land.

"In the result they were left in undisturbed possession of the land, which was never taken from them for settling colonists. This makes the case unique," the Appeal Court said in a summary released with the judgment on Monday.

Legal representative Henk Smith said the Richtersvelders' appeal victory marked merely the end of the first phase of their legal battle to regain ownership and proper compensation for the narrow strip of seven farms, stretching for more than 120km from the mouth of the Orange River in the north to just below Port Nolloth in the south.

According to Smith the appeal ruling did not confirm the community's right to the land, but merely that they had a legitimate claim to it.

They now had to go back to the Land Claims Court for determination of the restitution package, which might include restoration of ownership and financial compensation, Smith said.

- SAPA