REPORTABLE

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

CASE NO. 488/2001

In the matter between:

THE RICHTERSVELD COMMUNITY AND OTHERS
Appellants

and

ALEXKOR LIMITED
First Respondent
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA
Second Respondent

___________________________________________________________________________

Before:
VIVIER ADP, HARMS, SCOTT, FARLAM & MTHIYANE JJA
Heard:
17 & 18 FEBRUARY 2003
Delivered:
24 MARCH 2003

Restitution of Land Rights Act 22 of 1994.  Richtersveld community entitled to
restitution of customary law interest in land.
___________________________________________________________________________

JUDGMENT
___________________________________________________________________________
VIVIER ADP

VIVIER ADP
[1] This is an appeal, with the leave of this Court, against the dismissal by
the Land Claims Court ('the LCC') of the appellants' claim for restitution of a
right in land in terms of s 2(1) of the Restitution of Land Rights Act 22 of
1994 ('the Act'). The judgment of the LCC has been reported as Richtersveld
Community and Others v Alexkor Ltd and Another 2001 (3) SA 1293 (LCC)
and its judgment refusing leave to appeal as Richtersveld Community and
Others v Alexkor Ltd and Another [2001] 4 All SA 563 (LCC). References to
its judgment will be to the main judgment.
[2] The appellants are communities consisting of the inhabitants of four
villages in the Richtersveld, which is the name given to a vast territory of
some half a million hectares situated in the north-western corner of the
Northern Cape Province with a total population of only about 3500 people.
During the middle of the 19th century the Reverend Hein of the Rhenish

Mission Society, who worked among the Richtersveld people at the time,
gave the territory its name after a German missionary, Dr Richter, who had
visited the area in the early part of that century. The four villages are Kuboes
and Sanddrift in the north and Lekkersing and Eksteenfontein in the south.
The claim is for the restitution of a narrow strip of land comprising seven
farms stretching for more than 120 km along the west coast of the
Richtersveld from the mouth of the Gariep River (formerly the Orange River)
in the north to just below Port Nolloth in the south ('the subject land'),1 but
excluding the area occupied by Port Nolloth. It is about 85 000 ha in extent.
In the mid 1920's alluvial diamonds were discovered near Alexander Bay
after which alluvial diggings were established on the subject land. During
1994 the Government, the second respondent, granted the subject land,
including all mineral rights, in terms of a deed of grant ('grondbrief'), to
Alexkor Ltd, the first respondent, in which the State was the sole

1 The full description of the properties is to be found in the LCC judgment at para 1 fn 1.

shareholder.2 Immediately to the east of the subject land are some farm
properties (which were referred to as the corridor farms) and further east
adjoining them is the Richtersveld Reserve, an area of some 300 000 hectares,
in which the four villages are situated. The Richtersveld Reserve was
established by a certificate of reservation issued on 5 February 1930 in terms
of s 6 of the Crown Lands Disposal Act 15 of 1887 (Cape). 3
[3] The first appellant claims that it constitutes the Richtersveld
community as a whole. The second to fifth appellants constitute the respective
communities who inhabit the four villages of Kuboes, Sanddrift, Lekkersing
and Eksteenfontein. As an alternative to the community claims a large number
of persons brought individual restitution claims. They have not appealed. This
appeal accordingly only concerns the community claims to restitution.

2 The Alexander Bay Development Corporation Act 46 of 1989 established a corporation with that name and
all the assets, liabilities and obligations of the State in the State Alluvial Diggings, which the Minister of
Economic Affairs and Technology with the concurrence of the Minister of Finance may have determined,
passed to the Corporation. The Alexkor Limited Act 116 of 1992 provided for the incorporation of the
Alexander Bay Development Corporation as a public company under the name Alexkor Ltd and for matters
connected therewith. This aspect is dealt with in more detail later.
3 The Reserve 'for the use of Hottentots and Bastards who are residing therein and of other coloured people as
the Governor-General may decide'.

[4] In order to qualify for restitution of a right in land a claimant must meet
the requirements of s 2 of the Act. By agreement between the parties only the
requirements of s 2(1) were decided by the Court a quo. Other issues arising
from the Act, such as whether the appellants have received some or other
consideration for any dispossession, and the form of restitution were to stand
over for later adjudication, depending upon the outcome on the s 2(1) issues.4
The relevant portion of that sub-section provides
'A person shall be entitled to restitution of a right in land if —
(a)
.......
(b)
.......
(c)
........
(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.'

4 LCC judgment par 14-16.

In terms of s 2(1) a community claimant accordingly has to establish:
(a)
that it is a community or part of a community as defined in the Act;
(b)
that the community possessed 'a right in land' as defined in the Act;
(c)
that they were dispossessed of such right in the subject land after 19
June 1913;
(d)
that the dispossession occurred 'as a result of past racially
discriminatory laws or practices';
(e)
that the claim was lodged not later than 31 December 1998.
It was always common cause that the claims were lodged before 31 December
1998 but the other four requirements were in issue before the LCC.
ARE THE APPELLANTS COMMUNITIES AS DEFINED BY THE
ACT?
[5] The Act defines a 'community' as a group of persons whose rights in

land are derived from shared rules determining access to land held in common
by such group (s 1 sv 'community'). It was no longer an issue in this Court
that the first appellant constitutes a community for purposes of the Act and
the findings of the LCC (at para 66 to 75 of the judgment) were accepted as
correct. Although the other appellants, as 'part of a community' constituting
the first appellant, are similarly entitled to bring restitution claims, the first
appellant's success or failure disposes of the other four appellants' rights and it
is not necessary to have further regard to their claims. I will consequently
limit my discussion to the case of the first appellant and will refer to it as 'the
appellant'. It was also not disputed that the appellant community has
maintained its identity as a people and the essential attributes and
characteristics of their forebears and the society and culture of earlier times.
[6] That leaves for consideration the other three requirements, namely (b),
(c) and (d).

SUMMARY OF THE FINDINGS OF THE LCC
[7] The LCC found that the appellant's forebears held a right in the subject
land based on 'beneficial occupation for a continuous period of not less than
10 years' before the dispossessions relied upon, which allegedly took place
after 1913 (at para 65). The LCC, however, held that any rights the appellant's
forebears might have held in the subject land were extinguished when the
entire Richtersveld was annexed by the British Crown on 23 December 1847
to become part of the Cape Colony (at para 37-43) and that the land became
Crown land upon annexation. The LCC further held that insofar as the
appellant was later dispossessed of any rights in the subject land, such
dispossession was not the result of 'past racially discriminatory laws or
practices' and consequently not of a kind that can found a claim for restitution
under s 2(1) of the Act (at para 76-96).

SUMMARY OF THIS JUDGMENT
[8] As will become clear in the course of this judgment the material
findings of the LCC cannot be supported, even though its exposition of the
underlying facts is generally beyond reproach.  In our view the undisputed
facts of this case 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 this case unique.
This Court's principal findings are the following:
1.
The Richtersveld community was in exclusive possession of the whole
of the Richtersveld, including the subject land, prior to annexation by
the British Crown in 1847.

2.
The Richtersveld 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' as defined in the Act.
3.
These rights survived the annexation and the LCC erred in finding that
the community had lost its rights because it was insufficiently civilised
to be recognised.
4.
When diamonds were discovered on the subject land during the 1920's
the State ignored the Richtersveld community's rights and, acting on the
premise that the land was Crown land, dispossessed the Richtersveld
community of its rights in the land in a series of steps amounting to
'practices' as defined in the Act and culminating in the grant of full
ownership of the land to Alexkor.

5.
These practices were racially discriminatory because they were based
upon the false, albeit unexpressed premise that, because of the
Richtersveld community's race and lack of civilization, they had lost all
rights in the land upon annexation.
The result of these findings is that the Richtersveld community is entitled to
restitution of the subject land and that the appeal has to succeed.
RIGHT IN LAND
[9] A 'right in land' is defined in the Act 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'.
It will be seen that any right in land, whether under common law, statute or
customary law, is included in the definition. Rights in land are not limited to

those that are registered and rights that are not capable of registration are also
included. The words 'may include' in the definition, which are followed by
certain specified interests, extend the definition but do not necessarily limit it
to those specified interests. From the nature of the specified interests one must
conclude that personal rights and interests, which are not real rights or even
rights in law at all, also qualify as 'rights in land'. The definition includes 'a
customary law interest'. An interest in land held under a system of indigenous
law is thus expressly recognised as a 'right in land', whether or not it was
recognised by the civil law as a legal right.
THE RIGHT IN LAND CLAIMED
[10] The appellant contended that the community, in addition to the right to
beneficial occupation for 10 years found by the LCC, possessed one or other
of the following rights in the subject land at the cut-off date of 19 June 1913:
(a) ownership, (b) the right to exclusive beneficial occupation and use or (c)

the right to use the subject land for certain specified purposes, namely
habitation, cultural and religious practices, grazing, cultivation, hunting,
fishing, 'water-trekking' and the harvesting and exploitation of natural
resources.
[11] The appellant contended that the community had these rights on one of
three alternative bases but for purposes of this judgment it is only necessary to
mention two of them: First, it possessed these rights under its own indigenous
law and when the Richtersveld was annexed, the common law of the Cape
Colony was extended to it; under that law or international law the existing
land rights of the inhabitants of the Richtersveld in terms of their own
indigenous law were recognised and protected. They contended in the
alternative that the rights that the Richtersveld inhabitants held in the subject
land under their own indigenous law constituted 'customary law interests' and

as such 'rights in' land for purposes of the Act even if these rights were not
recognised and protected under the common law of the Cape Colony.
THE EVIDENCE
[12] At the trial a number of experts and lay witnesses testified on behalf of
the appellant.5 No evidence was led on behalf of the respondents. Evidence
was given by three anthropologists and an archeologist for the appellant
concerning the history of the appellant communities, the land they and their
forebears occupied and their traditional laws, customs and practices forming
part of their distinctive aboriginal culture. They were Mr E A Boonzaier, Prof
A B Smith, Prof W P Carstens and Ms S M Berzborn. I should immediately
point out that very little of the expert evidence was disputed at the trial, and
that such evidence as was initially in contention was no longer questioned at
the hearing of the appeal.

5 See LCC judgment para 20.

THE PERIOD PRIOR TO ANNEXATION
[13] In order to understand the basis of the appellant's claim and to decide
the different issues it is necessary to deal with the history of the land and its
people.  In this regard it is convenient to deal with different stages of the
history. The first question is whether the appellant possessed any rights in the
subject land at the time of annexation. It does not appear that the LCC
considered this aspect as such. Instead it considered another question, namely
whether after annexation the land was res nullius and whether the appellant
acquired ownership of the land by means of occupation (at para 37).
[14] At the time of annexation in December 1847 a group of people known
as the Richtersveld people occupied the whole of the Richtersveld, including
the subject land. The Richtersveld formed part of Little Namaqualand, as the
area immediately south of the Gariep River in the northern part of the Cape
Colony was called. The area north of the Gariep River was referred to as

Great Namaqualand. The original inhabitants of Little Namaqualand had lived
there since long before the Dutch colonisation of the Cape in the 17th century
and archeological discoveries showed a pastoralist presence in the
Richtersveld as early as 700 AD. Prof Smith testified that the core population
of the Richtersveld had been there for over 1 000 years and had not changed.
[15] The Richtersveld people were a discrete ethnic group who identified
themselves and were identified as the people of Captain Paul (Bierkaptein)
Links. They consisted of a number of family clans, each headed by a chief.
The clans together formed the tribe, which was headed by a captain, and a
'raad' (council) comprising the constituent clans. They considered the
Richtersveld to be their land held by them in common.
[16] The Richtersveld people are a sub-group of the Nama people who in
turn are generally considered by anthropologists to be a sub-group of the Khoi
(also called Khoikhoi and, in former times, Hottentot) people. The Khoi are

in turn seen as a sub-group within the larger category of Khoisan peoples,
which include both Khoi and San (Bushmen).
[17] The Richtersveld people were formerly part of the Hobesen tribe under
Captain Kupido Witbooi. At the beginning of the 19th century he claimed
most of Little Namaqualand as his domain. In order to rule the vast land
efficiently, Witbooi divided the territory into three sections. He ruled the
eastern section and appointed two assistant captains for the other two sections,
Abraham Vigiland for the central section that later became known as
Steinkopf, and Paul (Bierkaptein) Links for the western section, subsequently
named the Richtersveld. The eastern section under Kupido Witbooi had its
head station at Pella and was later called Bushmanland. By the mid 19th
century the Richtersveld people had assimilated some San and some Baster
people but the group as a whole was predominantly of Khoi-Nama descent.
The Basters were of mixed descent mainly from European fathers and San or

Khoi mothers. The Richtersveld people had their main settlement at a mission
station of the Rhenish Mission Society at Kuboes under the Reverend Hein,
which was subordinate to the principal mission station at Steinkopf under the
Reverend Brecher.
[18] Each of the said three Nama-Khoi tribes formed a discrete entity with
its own social and political structure. The Richtersveld people shared the same
culture, including the same language, religion, social and political structures,
customs and lifestyle derived from their Khoi-Nama forefathers. One of the
components of the culture of the Richtersveld people was the customary rules
relating to their entitlement to and use and occupation of this land. The
primary rule 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. All members of the
community had a sense of legitimate access to the land to the exclusion of all

other people. Non-members had no such rights and had to obtain permission
to use the land for which they sometimes had to pay. There are a number of
telling examples: A non-member using communal grazing without permission
would be fined 'a couple of head of cattle'; the Reverend Hein, who settled in
the Richtersveld in 1844, recorded in his diary three years later a protest by
the community that Captain Paul (Bierkaptein) Links had, without the consent
of the 'raad', let ('verpacht') some of its best grazing land at the Gariep River
Mouth; and the trader McDougal established himself at the mouth of the
Gariep River in 1847 only after obtaining the permission of Captain Links on
behalf of the community and agreeing to pay for the privilege. The captain
and his 'raad' enforced the rules relating to the use of the communal land and
gave permission to newcomers to join the community or to use the land. They
furthermore mediated in the resolution of internal disputes and acted as a
court of law in the adjudication of criminal and civil matters. Schapera, The

Khoisan Peoples of South Africa, 333 describes the 'raad' as the tribal
executive. As I will show later the captain and his 'raad' acted and spoke on
behalf of the Richtersveld people in dealing with the Colonial Government
and others.
[19] The customary rules of the Richtersveld people were not limited to
their social and political structures or their occupation and use of the land.
They also included rules relating to criminal and civil law such as a
prohibition of adultery, assault and theft, the recognition of private property
rights in respect of all movable property, an obligation to pay compensation
for damage to private property and rules of inheritance.
[20] The Richtersveld people had always been a herder group with a semi-
nomadic lifestyle, necessitated by the arid, semi-desert environment and the
very low and irregular rainfall in the region. The establishment of village
settlements around secure water sources was, however, not uncommon. The

LCC described the Richtersveld people's movement patterns as follows (para
58):
'It is clear that there was a seasonal cycle in the movement patterns. In the dry, hot
summers when livestock required water every day or two, the herders tended to graze
their cattle where water was available along the banks of the Gariep River and at
other secure water sources. In the winter, when the livestock were less water-
dependent, the herders moved further afield to their winter pastures in the
mountainous areas and in the sandveld so as to preserve the grazing close to their
secure water sources for the summer.'
[21] With regard to the exclusivity of the Richtersveld people's use and
occupation of the subject land at the time of annexation it must be accepted
that some San people were present in the Richtersveld in pre-colonial times.
The explorer Robert Jacob Gordon,6 who travelled with William Paterson7 up
the Richtersveld coast in August 1779, described how they came across

6 Cape Travels 1777 to 1786 vol 2 (eds Raper and Boucher).
7 A Narrative of Four Journeys into the Country of the Hottentots and Caffraria.

'remains of the huts of wild Bushmen and whale bones and shells' and saw on
the beach 'footprints of people and a seal skin freshly cut off' which one of his
party said were the footprints of Bushmen who had come there to hunt.
In addition some Baster immigrants arrived in the Richtersveld after 1830. By
1847 they had settled in the Richtersveld but they had done so with the
permission of Captain Paul (Bierkaptein) Links. According to both Boonzaier
and Carstens the Basters, like the San, were over time gradually absorbed into
the Richtersveld community, partly through intermarriage but also by
accepting the local norms and customs of the community, thereby losing their
identity as a separate group. There was no evidence that at the time of
annexation the Richtersveld was occupied by Basters other than those who
did so with the permission of Captain Links and those who had been
incorporated into the local community. The Trekboere, the descendants of
European settlers, only started settling in the Richtersveld during the second

half of the 19th century. They did so, however, with the permission of the
Richtersveld 'raad' and subject to the payment of grazing fees. This was a
practice consistently followed well into the 20th century.
[22] At the time of annexation the Richtersveld people had for a long time
enjoyed exclusive beneficial occupation of the whole of the Richtersveld in
the course of their semi-nomadic existence. Prof Carstens testified that by the
mid 19th century the authority of Captain Paul (Bierkaptein) Links and his
'raad' over the whole of the Richtersveld was universally recognised both by
the indigenous inhabitants and others. The evidence of Mr Boonzaier was to
the same effect.  Ms Berzborn testified that in the 19th century the
Richtersveld people regularly occupied and used the coastal region stretching
from the Gariep River mouth in the north to Obiep in the south, which is
inside the subject land. She identified a large number of places in the subject

land that were given as the places of birth or baptism of members of the
Richtersveld community in the register of the church at Kuboes.
RIGHT IN LAND (CUSTOMARY LAW INTEREST) AS AT
ANNEXATION
[23] With regard to the Richtersveld people's occupation of the subject land
two aspects need to be stressed. First, uninterrupted presence on the land need
not amount to possession at common law for the purpose of an indigenous
law right of occupation. Second, a nomadic lifestyle is not inconsistent with
the exclusive and effective right of occupation of land by indigenous people.
Cf McNeil, Common Law Aboriginal Title (1989) 202-204; Mabo and Others
v The State of Queensland (No. 2) (1992) 175 CLR (HC of A) 188-189;
Delgamuukw and Others v British Columbia and Others (1997) 153 DLR
(4th) 193 (SCC) para 151 and Bennett and Powell, 'Aboriginal Title in South
Africa Revisited' (1999) 15 SAJHR 449 at 465.

[24] It follows that the fact that the Richtersveld people's use of the subject
land may only have been seasonal, and may have been sparse and intermittent
due to the exigencies of their survival, does not mean that they did not have
the exclusive beneficial occupation of the land, especially since the
community had a strong sense of legitimate entitlement to the land (cf.
Hamlet of Baker Lake v Minister of Indian Affairs and Others (1979) 107
DLR (3d) 513 at 544), which others respected. I have already referred in this
regard to the evidence that the Richtersveld people regarded the subject land
as their own and that strangers could only use and occupy the land with their
permission. Even though the Richtersveld people may therefore not have
occupied every bit of the subject land, and even if other indigenous people
sometimes visited the territory, their exclusive beneficial occupation of the
entire area was not affected. In this regard Lamer CJC said the following in
Delgamuukw v British Columbia, supra, para 156:

'[T]he test required to establish exclusive occupation must take into account the
context of the aboriginal society at the time of sovereignty. For example, it is
important to note that exclusive occupation can be demonstrated even if other
aboriginal groups were present, or frequented the claimed lands. Under those
circumstances, exclusivity would be demonstrated by "the intention and capacity to
retain exclusive control" (McNeil, Common Law Aboriginal Title, supra, at p. 204).
Thus, an act of trespass, if isolated, would not undermine a general finding of
exclusivity, if aboriginal groups intended to and attempted to enforce their exclusive
occupation. Moreover, as Professor McNeil suggests, the presence of other
aboriginal groups might actually reinforce a finding of exclusivity. For example,
"[w]here others were allowed access upon request, the very fact that permission was
asked for and given would be further evidence of the group's exclusive control" (at p.
204).'
[25] What rights did the Richtersveld people then hold in the subject land at
the time of annexation? The LCC found, as indicated above, that the appellant

held only a right to 'beneficial occupation for a continuous period of 10 years'
during the 20th century. It further held that no 'customary law interest' in land
within the definition of 'right in land' in the Act had been proved. But the
customary right it had in mind was something completely different from that
under consideration here. It considered whether at the time of dispossession
(post 1913) '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' (para 48).
[26] During argument in this Court it was conceded on behalf of both
respondents that at the time of annexation the Richtersveld people had a
customary law interest under their indigenous customary law entitling them to
exclusive occupation and use of the subject land and that this interest was
akin to the right of ownership held under common law.

[27] In my view counsel were driven to this concession by the uncontested
facts of this case. Briefly stated, our law requires for proof of a custom that it
must be certain, uniformly observed for a long period of time and reasonable.
See Voet 1.3.27-35; Van Breda and Others v Jacobs and Others 1921 AD
330. In this case Solomon JA referred at 334 to the requirement of English
law that the custom must be immemorial, as opposed to Roman-Dutch law,
which merely requires that the custom must be an old one, and continued as
follows:
'In practice, however, there is no substantial difference between the two systems. For in the
English Courts "evidence showing continuous user as of right as far back as living
testimony can go is regarded as raising the presumption that the custom existed at that
remote date." Further "if proof of facts be given from which it can be inferred that user
corresponding to the alleged custom in fact existed at some time past, the existence of the
custom from the remoter era will be inferred" (Halsbury, para 424, vol 10). According to
Voet (1.3.29), it was necessary to prove a long lapse of time, which is variously expressed

by the terms "ancient use", "old age", "long custom", "custom observed for many years",
&c. And he observes that as the number of years is nowhere definitely stated, it must be
left to the discretion of a prudent judge. In this view Merula (Manier van Procederen), vol.
1.1.1.5.1 and 4, agrees, and there, I think, we may be content to leave the question of age,
as regards which there appears to be no substantial difference between the English and the
Roman-Dutch law.'
[28] The undisputed evidence in this case shows that at the time of
annexation the Richtersveld people had enjoyed undisturbed and exclusive
occupation of the subject land for a long period of time. The right was rooted
in the traditional laws and custom of the Richtersveld people. The right
inhered in the people inhabiting the Richtersveld as their common property,
passing from generation to generation. The right was certain and reasonable.
The inhabitants and strangers alike were aware of the right and respected and
observed it.

[29] I accordingly conclude that at the time of annexation the Richtersveld
people had a 'customary law interest' in the subject land within the definition
of 'right in land' in the Act. The substantive content of the interest was a right
to exclusive beneficial occupation and use, akin to that held under common
law ownership (cf P.J. Steytler The Renaissance of Traditional Ownership of
Land, Butterworths Property Law Digest (November 2000) 3 at 9-10). (I shall
in due course return to the question whether it included the right to the
mineral and other natural resources on the subject land.)
THE ANNEXATION
[30] The British Crown acquired the Richtersveld by Proclamation on 17
December 1847. The preamble reads as follows:
'Whereas, by reason as well of the causes as the result of the present hostilities, carried on
in certain territories to the Eastward of this Colony, all Treaties and Conventions formerly
subsisting between Her Majesty the Queen and the Chiefs of the Gaika, Congo, T'slambie

and Tambookie Tribes of Kaffirs, and all others, have become, and now are, wholly
abrogated and annulled; and, whereas, it is alike just the necessary, so to improve the
results of the said hostilities, that the lives and properties of Her Majesty's Subjects
resident in the Eastern Districts of this Settlement may, in future, be better secured, the
recurrence of unprovoked and disastrous wars be prevented, and plunder and depredation
in time of peace, be checked and controlled; and whereas one means of attaining these
important objects will be to substitute for the present boundary between the Colony and the
Kaffir tribes aforesaid, another and more eligible line; and whereas the Northern limits of
the Colony, as the same purport to be settled by the Proclamation of then Government,
bearing date the 21st February 1805, are ill defined and uncertain, and it is expedient to
adopt in the direction a clearer and better boundary.'
[31] The Proclamation defined the new boundary of the Cape Colony and
declared that all territory to the south or west of the new boundary –
'is hereby annexed to and incorporated with the Colony of the Cape of Good Hope as part
and parcel thereof'.

It further declared that –
'any right or title to the exclusive occupation of any part of the said territory by any native
chief or people, granted or conceded by any such treaties or conventions as aforesaid, has
wholly ceased and determined, and shall not be revived'.
[32] In 1842 the Reverend Brecher of Steinkopf addressed a memorial to the
Colonial Government in which he objected to the planned extension of the
boundary of the Cape Colony to the Gariep River. The Colonial Government
replied on 14 September 1842 that it had –
'no intention of extending the boundaries of the colony or of interfering with the rights of
those inhabiting the country beyond the boundary'.
[33] The intention not to extend the boundaries of the Cape Colony did not
last long. Nevertheless, the annexation of the Richtersveld in 1847 was only
proceeded with after a process of consultation between the Colonial
Government and the recognised political leaders of Little Namaqualand,

including Captain Paul (Bierkaptein) Links of the Richtersveld people, and
after these leaders had consented to the incorporation of their territories into
the Cape Colony. The Civil Commissioner for Clanwilliam, Mr Van
Ryneveld, was sent to Little Namaqualand to consult with Captains Paul
Links and Abraham Vigiland about the proposed incorporation of the
Richtersveld and Steinkopf into the Cape Colony. It appears from a petition to
the Colonial Government by the Reverend Brecher dated 12 June 1891 that,
although these two leaders originally opposed the incorporation, they granted
their consent after discussing the matter with the Reverend Brecher on
condition that the Colonial Government protected 'ons en ons volk onzen van
ouds af bewoon den grond'. In another letter he stated that the captains who
ruled the land had said that –
'they were willing to become British subjects, only with this condition, that the
Government must please protect them [in] their formerly occupied land against

encroachment of people not belonging to them in order to lead a quiet and honest life'.
DID
THE
CUSTOMARY
LAW
INTEREST
SURVIVE
THE
ANNEXATION?
[34] THE TERMS OF THE PROCLAMATION: Counsel for the first
respondent submitted that it was clear from the wording of the second
quotation above from the annexation proclamation that no existing rights in
land were recognised by the British Crown. I do not agree. The words 'any
right or title to the exclusive occupation' clearly refer to the treaties and
conventions set out in the preamble and do not purport to terminate or assert
any other right over the annexed territory of the Richtersveld people.
[35] THE FINDING OF THE LCC: As I have pointed out, the LCC held
that no indigenous land rights survived the annexation. It held (para 37-41)
that the Colonial Government regarded the Richtersveld as terra nullius
because the inhabitants were insufficiently civilised and 'simply assumed

sovereignty of, and full ownership over, the entire Little Namaqualand
(including the subject land)'. As I will show, the LCC erred in finding that the
Richtersveld was terra nullius and that it was so regarded by the Colonial
Government, or that the land became Crown land.
[36] DOCTRINE OF ABORIGINAL OR NATIVE RIGHTS: Before
proceeding, it is necessary to refer briefly to the doctrine of aboriginal title
relied upon by the appellant. It was submitted that our common law should be
developed in the same way that the courts have done in some other countries
with a colonial history. The courts in the United States, Canada, Australia8
and New Zealand have developed their common law to protect rights to
occupation and use of land by indigenous communities, labelled aboriginal or
native rights, by recognising the rights of these communities to continue to
occupy and use their communal lands as their forebears had done even when
it was not underpinned by any rights at common law.

8 RH Bartlett Native Title in Australia (Butterworths).

[37] Like 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' (Members of the Yorta Yorta Aboriginal
Community v Victoria [2002] HCA 58 para 103). The only requirement for
the acquisition of aboriginal title is that the indigenous community must have
had exclusive occupation of the land at the time when the Crown acquired
sovereignty. See Calder v Attorney-General of British Columbia (1973) 34
DLR (3d) 145 (SCC) at 193-195.
[38] According to the doctrine of aboriginal title the antecedent rights and
interests in land held by indigenous inhabitants survive the coloniser's
acquisition of sovereignty and dominium. Bennett and Powell, 'The State as
Trustee of Land' (2000) 16 SAJHR 601 at 615-616 state:
'Aboriginal title implies that, while a coloniser automatically acquired dominium over all
land in new colonies, native rights persisted as burdens on the State's radical title.'

In their other article already cited, Aboriginal Title in South Africa Revisited,
(at 461-462), these authors point out that the courts in other jurisdictions
themselves concede that aboriginal title does not conform to the typical
common-law concepts of property, and they freely admit that it is sui generis.
The authors refer to the following distinguishing features between common-
law property rights and aboriginal title. Aboriginal title originated in pre-
colonial systems of indigenous law. It is enforceable in the ordinary courts,
but is not protected from extinguishment by legislative act. Aboriginal title is
not an individual proprietary right but rather a communal right vesting in an
aboriginal people. Aboriginal title is inalienable to anyone except the Crown
or state government.
[39] The aboriginal rights found by the courts in other jurisdictions vary in
content. In Delgamuukw v British Columbia, supra, Lamer CJC described the
different aboriginal rights as follows (para 138):

'At the one end, there are those aboriginal rights which are practices, customs and
traditions that are integral to the distinctive aboriginal culture of the group claiming
the right . . . .  In the middle, there are activities which, out of necessity, take place
on land and indeed, might be intimately related to a particular piece of land.
Although an aboriginal group may not be able to demonstrate title to the land, it may
nevertheless have a site-specific right to engage in a particular activity.  . . . At the
other end of the spectrum, there is aboriginal title itself . . . aboriginal title confers
more than the right to engage in site-specific activities which are aspects of the
practices, customs and traditions of distinctive aboriginal cultures. Site-specific
rights can be made out even if title cannot. What aboriginal title confers is the right
to the land itself.'
Indigenous communities unable to establish aboriginal title may therefore still
have acquired lesser aboriginal rights to certain specific land uses. See R v
Adams (1996) 138 DLR (4th) 657 (SCC) para 27-29.
[40] The courts that have recognised aboriginal land rights have at the same

time recognised that the Crown or State always had the power to extinguish
aboriginal land rights. Termination requires appropriate legislative authority
showing a clear and unequivocal intention to extinguish or at least an action
making the land over to others (cf. LCC judgment at para 46).
[41] In Mabo and Others v The State of Queensland (No. 2) supra, Brennan
J summarised the common law of Australia with reference to aboriginal title
as follows (at 69):
'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).
5.
Where the Crown has validly and  effectively  appropriated  land to itself and
the appropriation is wholly or partially  inconsistent with a continuing  right  to
enjoy  native title, native title is  extinguished to the extent of the
inconsistency.  . . .'
See also McNeil, op cit, 193-211.
[42] As was pointed out by L.A. Hoq, 'Land Restitution and the Doctrine of
Aboriginal Title : Richtersveld Community v Alexkor Ltd and Another'

(2002) 18 SAJHR 421 at 435, an article commenting upon the judgment of the
LCC, several commentators have addressed the hazards associated with
recognising aboriginal title in South Africa. Some have expressed the view
that the very reason for the 1913 cut-off date in the Act, and the fact that the
date of dispossession was not extended back to the time of colonial
annexation, was to eliminate claims based on aboriginal title. See, for
example, J.T. Roux 'The Restitution of Land Rights Act' in Budlender, Latsky
and Roux 'Juta's New Land Law' (1998) 3A-16. Other writers, such as
Bennett and Powell in 'Aboriginal Title in South Africa Revisited', op cit, at
450-451 and Reilly 'The Australian Experience of Aboriginal Title: Lessons
for South Africa' (2000) 16 SAJHR 512 at 528, have expressed the contrary
view namely that aboriginal title can be a legitimate and workable part of
South African law.

[43] All the aspects of the doctrine do not fit comfortably into our common
law. For instance, the idea that the State or Crown possesses radical title to all
land may have its origin in English feudal law and may be foreign to our law.
In view of my conclusion that a customary law interest, for which the Act
expressly provides, has been established in the present case, it is not necessary
to pursue the matter any further and it becomes unnecessary to decide whether
the doctrine forms part of our common law or whether our common law
should be developed to recognise aboriginal rights. This conclusion also
obviates any resolution of the question whether the LCC is entitled to
'develop' the common law, an issue dealt with at some length in its judgment
(at para 49-53).
[44] EFFECT OF ANNEXATION UPON EXISTING RIGHTS: In
colonial times acquisition of sovereignty over new territory could, according
to international law, be established by conquest or cession if the territory was

inhabited, or by occupation, also called settlement, if it was not inhabited.
Halsbury's Laws of England 4 ed reissue, vol 6, para 978, McNeil, op cit, 102.
Occupation or settlement as a means of acquiring inhabited territories was
based on the fiction that if a territory was inhabited by people regarded as
insufficiently civilised it could be acquired by occupation or settlement as if it
were uninhabited and therefore terra nullius. Dugard, International Law - A
South African Perspective, 2 ed, at 119 points out that during the formative
years of international law opinion was divided as to whether international law
applied to indigenous peoples: the naturalists arguing that all peoples of the
world enjoyed certain inalienable rights whereas the positivists denied such
rights to indigenous peoples. He continues at 120:
'During the nineteenth century the positivist view prevailed, with the result that
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.'
[45] In 1975 the International Court of Justice was pertinently asked to
determine whether the Western Sahara was terra nullius when it was
colonised by Spain in 1884. The Court found (Advisory Opinion on Western
Sahara 1975 ICJ Reports 12) that at the time of colonisation the Western
Sahara was inhabited by nomadic people 'organised in tribes and under chiefs
to represent them' so that the territory was consequently not terra nullius
capable of acquisition by occupation. The Court formulated its decision as
follows (para 80):
'Whatever differences of opinion there may have been among jurists, the State
practice of the relevant period indicates that territories inhabited by tribes or peoples
having a social and political organisation were not regarded as terra nullius. It shows that
in the case of such territories the acquisition of sovereignty was not generally considered

as effected unilaterally through "occupation" of terra nullius by original title but through
agreements concluded with local rulers. On occasion, it is true, the word "occupation" was
used in a non-technical sense denoting simply acquisition of sovereignty; but that did not
signify that the acquisition of sovereignty through such agreements with authorities of the
country was regarded as an "occupation" of a "terra nullius" in the proper sense of these
terms. On the contrary, such agreements with local rulers, whether or not considered as an
actual "cession" of the territory, were regarded as derivative roots of title, and not original
titles obtained by occupation of terrae nullius.'
[46] That the Richtersveld people had a social and political organisation at
the time of annexation is clear from the evidence about their culture and
traditional laws and customs to which I have already referred. The
respondents, furthermore, in this Court expressly disavowed any suggestion
that as a matter of fact the Richtersveld people were insufficiently civilised
for purposes of the application of the rule. The Richtersveld could accordingly
not have been regarded as terra nullius.

[47] The Colonial Government, moreover, did not regard the Richtersveld as
terra nullius when that territory was annexed. Dugard, op cit, 121, after
pointing out that even at the time of the Dutch East India Company at the
Cape in the 17th century the Khoi indigenous inhabitants of the Cape already
had a developed social organisation, states that:
'The African tribes to the east and north were accepted as political societies by the
Dutch, the British, and the Boers, which all at some stage or another entered into treaties
with tribal leaders. While the status of these treaties under international law was uncertain,
they did at least make it clear that the African-occupied territories were not viewed as
terrae nullius.'
[48] Indigenous rights in land were recognised at the Cape even in the time
of the Dutch East India Company. Hahlo and Kahn, The South African Legal
System (footnote 8 at 568) cite the purchase of the Cape district from the Khoi
chief Schacher for £800, to be paid in goods, by the Raad van Politie. See also

Bennett in Zimmermann and Visser (eds), Southern Cross - Civil Law and
Common Law in South Africa (1996) 66.
[49] The British Crown acquired sovereignty over the Cape Colony in 1806
pursuant to hostilities between the Crown and the Dutch sovereign, which
culminated in the Articles of Capitulation of 10 and 18 January 1806. This
was formalised by the treaty between Great Britain and the Netherlands in
terms of which the Cape Colony was formally ceded to the British Crown.
Article 6 of the Articles of Capitulation of Cape Town of 10 January 1806
provided that:
'All bona fide private property, whether belonging to the civil or military servants
of the Government, to the burghers and inhabitants . . . shall remain free and untouched.'
Article 8 of the same Articles of Capitulation provided that:
'The burghers and inhabitants shall preserve all their rights and privileges
which they have enjoyed hitherto.'

Article 8 of the Articles of Capitulation of the Cape Colony of 18 January
1806 in turn provided that:
'The inhabitants of the Colony who are comprehended in this capitulation are to
enjoy the same rights and privileges as have been granted to those in Cape Town,
according to the capitulation of the 10th instant.'
In my view it is clear from the Articles of Capitulation that when the British
Crown acquired sovereignty of the Cape Colony by conquest and cession in
1806 the indigenous land rights of the inhabitants were recognised and
respected.
[50] Ordinance 50 of 1828 enacted by the Colonial Government is another
indication that indigenous land rights were respected. Section 3 of that
Ordinance provided as follows:
'And whereas doubts have arisen as to the competency of Hottentots and other free
Persons of colour to purchase or possess Land in this Colony: Be it therefore enacted and

declared, That all Grants, Purchases, and Transfers of Land or other Property whatsoever,
heretofore made to, or by any Hottentot or other free Person of colour, are, and shall be,
and the same are hereby declared to be, of full force and effect, and that it is, and shall, and
may be, lawful for any Hottentot, or other free Person of colour, born, or having obtained
Deeds of Burghership, in this Colony, to obtain and possess by Grant, Purchase, or other
lawful means, any Land or Property therein - any Law, custom, or usage to the contrary
notwithstanding.'
[51] The Ordinance ended with another equality provision in an Order-in-
Council, ordering and declaring that –
'all Hottentots and other free Persons of colour lawfully residing within the said Colony
are, and shall be in the most full and ample manner entitled to all and every the rights,
privileges, and benefits of the Law, to which any other His Majesty's subjects, lawfully
residing within the said Colony, are or can be entitled.'
DOCTRINE OF RECOGNITION
[52] As I have already indicated the Richtersveld, at the time of annexation,

was inhabited by people who had a social and political organisation and who
could not have been regarded as insufficiently civilised to possess land rights.
All of this was common cause in this Court. The territory was accordingly not
amenable to acquisition by occupation or settlement. In all the circumstances
it is clear that the acquisition of the Richtersveld by the Proclamation was the
equivalent of an acquisition by conquest or cession with the same
consequences as the acquisition of the Cape Colony into which it was
incorporated. It is also clear that it was so regarded by the Colonial
Government. Halsbury, op cit states (para 980) that an annexation in the face
of an organised society considered civilized was treated as a case of cession
and not settlement even before or in the absence of cession by international
formalities. Even if the Richtersveld was not acquired by conquest, then it
was in any event deemed to have been acquired by cession. For present
purposes it is not necessary to decide whether it was the one or the other.

What is important is that it was not acquired by occupation or settlement. In
this regard it is significant that there was never any settlement by the Colonial
Government in the Richtersveld.
[53] At one time protagonists of the so-called doctrine of recognition held
the view that annexation of land by the British Crown resulted in the abolition
of all pre-existing customary rights and interests in land except those rights,
which the Crown chose, in the exercise of its sovereignty, to recognise. It was
held that this was so whether the assumption of sovereignty was by way of
conquest, cession or annexation, or the occupation of territory that was not at
the time held under another sovereign. So, for example, it was stated by Lord
Dunedin in Vajesingji Joravarsingji v Secretary of State for India (1924) LR
51 Ind App 357 at 360 that:

'[W]hen a territory is acquired by a sovereign state for the first time that is an act of
State. It matters not how the acquisition has been brought about. It may be conquest, it may

be by cession following on treaty, it may be by occupation of territory hitherto unoccupied
by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can
only make good in the municipal Courts established by the new sovereign such rights as
that sovereign has, through his officers, recognised. Such rights as he had under the rule of
predecessors avail him nothing.'
[54] The decision 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. See McNeil, op cit 175-179, Bennett and Powell,
'Aboriginal Title in South Africa Revisited' 449 at 478.  McNeil, op cit, at 177
points out that the recognition doctrine would result in uncertainty and chaos
since all title to land would be uncertain for an indefinite period after
annexation. In the meantime the inhabitants would be presumed to be
trespassers and all property transactions, other than with the Crown, would be
of doubtful validity. In the absence of an express declaration of the Crown's

intentions, this uncertainty would last until it became obvious from the
Crown's actions that its intention was to recognise, or not to recognise pre-
existing rights.
[55] Against the recognition doctrine is a line of authority to the effect that
there is a presumption that, in the case of both conquest and cession, a mere
change in sovereignty does not extinguish the private property rights of the
inhabitants of a conquered territory which continue in force unless confiscated
by an act of state. This has been referred to as the doctrine of continuity.
Bennett and Powell op cit at 480 state that –
'the great majority of colonial decisions favoured the doctrine of continuity and today it is a
settled feature of Anglo-American jurisprudence'.
The presumption was applied in Amodu Tijani v The Secretary, Southern
Nigeria [1921] 2 AC 399. That case involved a claim for compensation by an
African chief for lands taken by the Crown for public purposes under a local

ordinance in Southern Nigeria, a colony acquired by the cession of Lagos in
1861. In issue was the amount of compensation to be paid, which depended
on the nature of the appellant's interest in the lands and his relationship with
the community that had occupied and used it. Dealing with the nature of the
land tenure under local customary law and the effect of the cession, Viscount
Haldane said at 407:
'No doubt there was a cession to the British Crown, along with the sovereignty, of
the radical or ultimate title to the land, in the new colony, but this cession appears to have
been made on the footing that the rights of property of the inhabitants were to be fully
respected. This principle is a usual one under British policy and law when such
occupations take place . . . .  A mere change in sovereignty is not to be presumed as meant
to disturb rights of private owners; and the general terms of a cession are prima facie to be
construed accordingly.'
[56] As was pointed out by Brennan J in Mabo and Others v The State of
Queensland supra at 56, Viscount Haldane did not confine the generality of

the last sentence to acquisitions by cession but appeared to construe the terms
of the cession in the light of the general principle by which private property
rights survive a change in sovereignty by whatever means.
[57] In Sakariyawo Oshodi v Morianno Dakolo [1930] AC 667 (PC) at 668,
Viscount Dunedin, despite his earlier judgment in Vajesingji Joravarsingji,
accepted that the decision in Amodu Tijani laid down that the cession of
Lagos in 1861 'did not affect the character of the private native rights'.
[58] The approach adopted in Amodu Tijani was confirmed by the Privy
Council in a Southern African context in Sobhuza II v Miller and Others
[1926] AC 518 (PC) at 525 where the Court held that the title of an
indigenous community to land, which the Court regarded as generally
usufructuary in nature, survived as 'a mere qualification of a burden on the
radical or final title of whoever is sovereign'.

[59] Similarly, in Adeyinka Oyekan v Musendiku Adele [1957] 2 All ER 785
(PC) at 788 e-i, which dealt with the cession of land to the British Crown in
the former colony of Lagos, Lord Denning said the following:
'In inquiring, however, what rights are recognized, there is one guiding principle. It
is this: The courts will assume that the British Crown intends that the rights of property of
the inhabitants are to be fully respected. Whilst, therefore the British Crown, as Sovereign,
can make laws enabling it compulsorily to acquire land for public purposes, it will see that
proper compensation is awarded to every one of the inhabitants who has by native law an
interest in it; and the courts will declare the inhabitants entitled to compensation according
to their interests, even though those interests are of a kind unknown to English law.'
[60] The rule that indigenous rights to private property in a conquered
territory were recognised and protected after the acquisition of sovereignty
was, however, not universally applied. Recognition was sometimes withheld
from those communities regarded as backward or insufficiently civilized from
a European perspective. In In re Southern Rhodesia [1919] AC 211 (PC)

Lord Sumner at 233 considered whether the land rights of the Ndebele held
under customary law –
'belonged to the category of the rights of private property, such that upon a conquest it is
presumed, in the absence of express confiscation or of subsequent expropriatory
legislation, that the conqueror has respected them and foreborne to diminish or modify
them'.
He held that they were not. He expressed the ratio for his conclusion as
follows:
'Some tribes are so low in the scale of social organisation that their usages and
conceptions of rights and duties are not to be reconciled with the institutions or the legal
ideas of civilised society. Such a gulf cannot be bridged. It would be idle to impute to such
people some shadow of the rights known to our law and then to transmute it into the
substance of transferable rights of property as we know them.'
This decision of the Privy Council was not followed in the subsequent
decisions of the Privy Council to which I have referred and was rejected in

Mabo where Brennan J said (at 40) that it –
'depended on discriminatory denigration of indigenous inhabitants, their social organisation
and customs' and that its basis was 'false in fact and unacceptable in our society.'
Brennan J concluded as follows at 57:
'The preferable rule, supported by the authorities cited, is that a mere change in
sovereignty does not extinguish native title to land. (The term "native title" conveniently
describes the interests and rights of indigenous inhabitants in land, whether communal,
group or individual, possessed under the traditional laws acknowledged by and the
traditional customs observed by the indigenous inhabitants.) The preferable rule equates
the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in
respect of their rights and interests in land and recognizes in the indigenous inhabitants of a
settled colony the rights and interests recognized by the Privy Council in In re Southern
Rhodesia as surviving to the benefit of the residents of a conquered colony.'
[61] In view of the authorities I have referred to, the recognition doctrine as
formulated by Lord Dunedin in Vajesingji Joravarsingji cannot be supported

and I agree with the view expressed by Brennan J in Mabo in the passage I
have quoted. It follows that the existing customary law interest in the subject
land held by the Richtersveld people survived the annexation.
[62] The LCC came to the contrary conclusion, holding that a change in
thinking cannot turn the clock of history back: the change cannot destroy any
land title obtained (presumably by the Crown) in accordance with rules of law
applicable at the time and that the consequences of the colonial acquisition
must be examined according to the conditions and rules in existence at the
time (at para 42). The legal principle cannot be queried. But one has first to
ask whether there was such a rule relating to res nullius as at 1847. Counsel
could not give any reference to the rule in English law that predates the late
19th century. M. F. Lindley The Acquisition and Government of Backward
Territory in International Law (1926) 18 points out that the publicists, who
did not recognise the sovereignty of 'backward people', belong principally 'to

a comparatively recent period' and the works he cites are all (as far as I can
gather) from the late 19th century or later. No one has suggested that it ever
formed part of Roman Dutch law. The International Court of Justice has
found, and we have no reason to doubt that finding, that there was no such
rule in international law. But even if there were such a rule, it remains a
question of fact whether the rule could have been applicable to the
circumstances of this case and, as I have attempted to show, it could not.
THE SOVEREIGN AS OWNER OF ALL LAND NOT ALLOCATED
[63] The LCC held that in terms of the law in force in the Cape Colony at
the time of the annexation all land not granted under some form of tenure
belonged to the Crown (at para 43). In this regard it relied upon some authors
and an obiter statement in Cape Town Council v Colonial Government and
Table Bay Harbour Board (1896) 23 SC 62. This view, no doubt, is based

upon English feudal law and to the extent that Roman-Dutch law had some
remnants of feudal law, that law was never introduced into South Africa.
[64] In support of this finding the LCC held further (para 37 fn 54 and 55)
that the Colonial Government –
'made laws under which non-issued land (considered to be Crown land) could be disposed
of. That included Crown land actually occupied by people, but who were considered to
have insufficient civilisation to make them the owners of the land'.
It cited the Crown Lands Act 2 of 1860, replaced by Act 14 of 1878, in turn
replaced by Act 15 of 1887.
[65] I agree with counsel for the appellant that these Acts manifested a
contrary intention to that found by the LCC. They provided for the disposal of
waste Crown land but expressly excluded certain categories of land, including
land such as the Richtersveld, from their operation. So, for example, s 12 of
Act 15 of 1887 provided, in terms similar to those of its precursors:

'Land claimed by any registered owner of adjacent land as part of his property by
reason of any alleged defective title deed or supposed landmarks or beacons of the said
adjacent land, land occupied bona fide and beneficially without title deed at the date of the
extension of the colonial limits beyond it, land conditionally occupied or claimed under
any general notice or regulation of the Government, or under any promise or order of a
Government officer, duly authorised at the time to make such promise, or give such order,
shall not be considered or treated as Crown land for the purpose of this Act, until the claim
thereto, in each case, shall have been decided on by the Governor.'
The Richtersveld clearly fell in the category of 'land occupied bona fide and
beneficially without title deed at the date of extension of the colonial limits
beyond it'. These Acts accordingly manifested an intention to respect existing
land rights and not to extinguish them. Act 15 of 1887 (Cape) was repealed by
the State Land Disposal Act 48 of 1961, which does not include a provision
corresponding to s 12 of the Cape Act. The result of this was that protection

given by that section to the land rights of persons such as the members of the
appellant was extinguished.
[66] Respondents' counsel relied upon these Acts for another, though
related, submission. They accepted as correct something that is really
axiomatic, and that is that rights can only be extinguished by acts of state or
legislation.  Cf the Mabo rules quoted. Hard pressed to identify any such overt
act since the title was not extinguished by any grant, they pinned their hope
on these Acts, especially the quoted provision. At best for them it can be said
that the Legislature assumed that all land not allocated by means of the grant
of title deeds belonged to the Crown but the implied assumption cannot be
elevated to a legislative act with that consequence.
THE PERIOD AFTER ANNEXATION UNTIL DISPOSSESSION
[67] The Richtersveld people continued to exercise and enjoy exclusive
beneficial occupation of the whole of the Richtersveld until at least the mid

1920's. The LCC held that other people who may have lived on the subject
land in the beginning of the 20th century shortly before the Richtersveld
people were excluded and who were by then not absorbed by the appellant
communities, were not sufficient in number or strength to affect the
exclusivity of the occupation by the appellant communities. This finding was
not contested on appeal.
[68] The Richtersveld people's claim to exclusive use and occupation of the
whole of the Richtersveld was persisted in from annexation until their
dispossession well into the 20th century. They made their claims expressly in
correspondence with the Colonial authorities and also by conduct by requiring
strangers to obtain their permission before settling or grazing their animals in
the Richtersveld.
[69] The Colonial Government and its successor after Union in 1910 never
disputed those claims (although they sometimes disputed the claim to

ownership) and consistently admitted or at least accepted the Richtersveld
people's exclusive right of occupation of the whole of the Richtersveld.
[70] Although the Richtersveld people shared their Khoi-Nama culture with
the two other tribes the Colonial Government and its successor in their
dealings with the Richtersveld people consistently accepted that the
Richtersveld people were a specific community with its own character and
identity and dealt with them on that basis. They were always regarded by the
Colonial Government as a distinct entity. For instance, in his report of 1854,
the Surveyor-General, Mr Charles Bell, referred to 'Paul Linx and his people'
as a distinct group that occupied a particular territory and whose members
could be identified and counted.
[71] That the Richtersveld people retained a continuous identity until the
present day appears inter alia from the following passage in the judgment of

the LCC dealing with the political structure of the Richtersveld people in the
time after Captain Paul (Bierkaptein) Links (para 69):
'After the death of Captain Paul (Bierkaptein) Links, he was succeeded by his son,
Captain Paul (Swartbooi) Links. After his death, the community changed the title of their
chiefs to hoofkorporaal. The first hoofkorporaal was Gert (Jul) Links. A problem arose
because he utilised grasgeld for his own needs. The community wanted him replaced by
Paul (Tweekierie) Links, who was too young at the time. They elected Petrus Links to take
over from Gert (Jul) Links, and when Paul (Tweekierie) Links was old enough he replaced
Petrus Links as hoofkorporaal. Paul (Tweekierie) Links passed away in 1957. The
governance of the Richtersveld people (who lived in the reserve) was then made over to a
government-appointed superintendent, assisted by an advisory council (later a management
council).'
In his report of 30 June 1890 the Assistant Surveyor-General, Mr Melvill,
dealt with the Richtersveld people as a specific community with its head
station situated at Kuboes and an out-station at Kalkfontein, about 60 km

south of Kuboes, where there was strong, permanent water. Mr W C Scully,
the Civil Commissioner for Namaqualand, who visited the Richtersveld in the
1890's, described the missionary at Kuboes, the Reverend Hein, as the
"dictator of the Richtersveld".
[72] Earlier, in a letter dated 1 December 1851, addressed to the Colonial
Secretary, the Surveyor-General, Mr Charles Bell, had written that the
annexation of the Richtersveld did not affect rights to private property and
therefore did not affect the lease between the trader McDougal and Captain
Links.
[73] On 4 May 1888 the Reverend Brecher of Steinkopf wrote to the Civil
Commissioner at Springbok enquiring about the ownership of the
Richtersveld, which he claimed was without question the people's own
property. Brecher added that when he asked the Colonial Government to
define the boundaries of the Richtersveld, Bell told him that –

'the people could use undisturbedly the whole veldt as long as there would be no
application for land. And when this would be done, then it was fine enough to
reserve the mission ground for the natives at Richtersveld . . .. I think that I once
instructed the present Raad at Richtersveld that, when anyone may trespass on this
ground and water which they absolutely hold to be their property, then they must
give such person a warning to leave the place and in the event he may not listen to
them, then they could on account of the place being their own property and on
account of the Squatting Act, impound the trespassing stock.'
[74] In his said report of 30 June 1890 Mr Melvill stated that the
Richtersveld community had –
'just and well founded claims to be continued and secured in such occupation, the
Government having, at different times, substantially acknowledged their claims'.
He added that the extent of the land claimed by the Richtersveld community
was 'enormous, being, as very roughly estimated by me, from 680 000 to
700 000 morgen'. He pointed out that no boundaries had ever been defined

and that –
'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'.
[75] On 19 February 1898 Mr J B Moffat of the Native Affairs Office in
Cape Town, stated in a letter to the Superintendant of Native Affairs that –
'it must be admitted, I think, that the people cannot equitably be disturbed in their
occupation of the land. There may be some newcomers who have no right to be there, but
the bulk of the people can probably prove their claim to share in the land under the
conditions of the tickets of occupation, or in the case of Richtersveld for which there is no
ticket, continuous occupation since 1847, by themselves or their families'.
[76] On 3 August 1909 the Reverend H Kling, in his capacity as Chairman
of the Steinkopf Raad and of the Richtersveld and Kalkfontein community,
wrote to the Colonial Minister of Agriculture. After referring to Mr Melvill's

proposal in 1890 to reduce the size of the Richtersveld he continued as
follows:
'.... the people of Richtersveld then and there objected to Mr Melvill when he promised us
faithfully to represent our objection to the government, we never heard any further
regarding the matter, neither did we receive any notice from government regarding our
objection. This was a matter of at least 19 years ago - we now claim the rights of the
Richtersveld area as mentioned in annexure "C" of Mr Melvill for the following are in our
favour - the rights of the period of occupation which has been as far back as 1830 when
Captain Paul Links Snr was already in possession of Kuboes (Richtersveld) and
surrounding ground and Jacob Fries at Kalkfontein.'
The Reverend Kling went on to state that by 1890 the Richtersveld people had
occupied the land for a full 60 years and that Mr Melvill had admitted in his
report to the Colonial Government that the territory legally belonged to the
Richtersveld people. He concluded as follows:
'We have practically occupied this area for at least 80 years undisputed by anyone

so fully intent to maintain our rights which by every point of law is ours. I therefore, as
chairman of the Raad of Steinkopf, Kalkfontein, Richtersveld people, on their behalf
humbly petition that you grant us the title of the area as claimed by us to stop any further
encroachment on our ground by our government surveyor and thereby save any dispute
which may arise as a result thereof.'
[77] In a letter dated 27 August 1909 the Surveyor-General, Mr A H
Cornish-Bowden, replied to the letter of the Reverend Kling. Far from
disputing any of the claims that the Richtersveld people had occupied the
whole of the Richtersveld since before annexation, Cornish-Bowden assured
the Reverend Kling that the Colonial Government
'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 Melvill's

Report of 1890, though of course there is no compulsion on the Government to reserve the
whole of the area so defined. All rights to minerals and precious stones will be reserved to
the Crown as in the case of Steinkopf'.
[78] On 6 March 1925 the Secretary for Lands addressed a letter to the
Secretary for Justice requesting an opinion by the State law advisors on –
'the extent of the rights which the coloured community can claim by virtue of their long
possession [of the Richtersveld]'.
In setting out the facts the Secretary for Lands said that –
'the aboriginees occupied all the land between the Buffels River and the Orange River prior
to the extension of the boundary'.
The opinion, dated 11 April 1925, confirmed that the Richtersveld was
regarded as including the land –
'situated on the south bank of the Orange River, north of Port Nolloth, the sea being its
western boundary'.
It further confirmed that the –

'Richtersveld proper was occupied by a tribe of Hottentots owing tribal allegiance to an
hereditary chief. The family name being Links. The occupation of the tribe goes back to at
least the beginning of the 19th century . . .  The original Hottentot blood is now largely
mixed through intermarriage with Bastards. The inhabitants, however, claim continued
existence as a distinct tribal entity. The affairs are managed by a Raad presided over by the
Rhenish Missionary. Arable land, water and grazing are held in common. The life is
chiefly nomadic. New burgers are incorporated into the tribe by the vote of a general
meeting of the whole tribe. The revenue consists of grazing fees, the money being devoted
chiefly to education.'
[79] In the opinion the State law advisors referred to the action which one
Ryk Jasper Cloete, a member of the Richtersveld community, had instituted in
the Cape Supreme Court during 1917 against the Colonial Government
claiming ownership of the whole of the Richtersveld by prescription. In its
plea to this claim the Government had admitted 'the communal occupation' of
the area by the Richtersveld people and that the –

'control of occupation of the Richtersveld was at all material times exercised by the Raad
appointed by the Hottentots subject to the control and supervision of the Rhenish
Missionary Society'.
This claim, also opposed by the community, was not proceeded with,
apparently due to a lack of funds.
[80] From the aforegoing it is clear, in my view, that the Colonial
Government and its successor at all material times from annexation until
immediately prior to the alleged dispossession, recognised the Richtersveld
people as a distinct community which had occupied the whole of the
Richtersveld from prior to annexation and had continued to do so.
[81] I have earlier in this judgment referred to the practice of the
Richtersveld people to grant grazing leases to white farmers in the
Richtersveld. From extended correspondence between Colonial Government
officials about this practice it appears clearly that the Government never

challenged the right of the Richtersveld people to do so. In June 1909 Mr
O C H Strong, the Resident Magistrate at Port Nolloth, wrote to the Assistant
Treasurer of the Colonial Government and with reference to three grazing
leases in the Richtersveld, stated the following:
'a wholesale system apparently has been going on without check of farmers being fleeced
by the mission people at the loss of the government and the exercise of rights of ownership
of the land has been made by the mission presumably on behalf of the natives'.
At the request of the Assistant Treasurer of the Colonial Government Mr
Strong subsequently compiled a 'return of grazing fees levied by the Rhenish
Mission Community upon farmers residing in the district of Port Nolloth'. On
4 January 1910 the Surveyor-General said the following about this issue in a
letter addressed to the Assistant Treasurer of the Colonial Government:
'... the land was set aside for the inhabitants of the Richtersveld, and I consider that in
equity government is bound to acknowledge the right of these people to it. In my

opinion it would not be advisable to make any claim to the grazing fees levied by
them, as this would cause considerable dissatisfaction, which is not warranted.'
[82] Nothing apparently was done in the ensuing years about the grazing
fees collected by the missionaries on behalf of the Richtersveld people. The
matter was again raised in a letter dated 16 July 1919 from the Colonial
Secretary for Lands to the Magistrate at Springbok. In the letter the former
stated that it was extremely difficult to give 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' of the people under Captain Paul (Swartbooi) Links. The
Colonial Secretary for Lands went on to say that –
'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 therefore seems reasonable, though the practice should not receive your
official sanction.'
[83] The report of the Controller and Auditor General to Parliament in
February 1921 referred to the warning in 1918 by the Secretary for Justice
that the Government could lose the whole of the Richtersveld by prescription
and that this concern had prompted a suggestion of legislative intervention
that had not been implemented.  The Auditor-General concluded as follows:
'As rents are at present being collected from Europeans for grazing in the Richtersveld by
one Paul Links, a coloured man, it is clearly indicated that rights of ownership are being
exercised by the inhabitants.'
[84] From the minutes of evidence taken before the Select Committee on
Public Accounts in 1922 it appears that rent was at that stage still being
collected from white farmers for grazing in the Richtersveld by Captain Paul
(Swartbooi) Links.

MINERALS AND NATURAL RESOURCES
[85] I now return to consider whether the appellant's customary law right
encompasses a right to minerals and other natural resources.  With regard to
the Richtersveld people's use of mineral and natural resources Mr Boonzaier
and Prof Carstens testified to the effect that long before annexation the Nama
people in Little Namaqualand had mined and used copper for the purpose of
adornment.  According to Mr Boonzaier the Richtersveld people appreciated
the value of minerals.  This led them to grant mineral leases to outsiders.  The
people at Steinkopf did the same.  In his evidence before the Parliamentary
Select Committee in 1856 Mr G.W. Prince of Prince, Collison & Co, referred
to several mining leases which had been concluded with the Reverend
Brecher.  It is not clear whether the latter acted on behalf of the people at
Steinkopf or the Richtersveld people.

[86] Captain Paul (Bierkaptein) Links and his 'raad' on 11 August 1890
granted a mineral lease to a Mr Anderson and his associates.  The lease
described Links as
'Captain of the Bastards and Namaqua people owning and occupying the country from
south of Bethany, Great Namaqualand to the Orange River and the country south of the
said Orange River of which "Richtersveld" is the chief town or station.'
In 1910 the Reverend Kling on behalf of the Richtersveld community granted
Henry Wrensch mineral prospecting rights to the Richtersveld.  At around the
same time a prospector called Giffen reported that the Richtersveld
community had entered into mining arrangements with several mining
companies.
[87] This evidence clearly establishes that the Richtersveld community
believed that the right to minerals belonged to them and that they acted in a
manner consistent with such a belief.  They exploited the minerals without

requesting permission from anyone to do so and, significantly, strangers
respected their rights by obtaining their permission to prospect for minerals
and concluding mining and mineral leases with them.
[88] Although there was no evidence of mining activities on the subject land
itself or that mining leases were concluded in the period prior to annexation,
this is not fatal to the appellant's case.  At the time of annexation it was
clearly part of the distinctive culture of the Richtersveld people to appropriate
for themselves the right to minerals and natural resources on the land and it is
clear that this custom had continued from earlier days.  In R v Van der Peet
(1996) 137 DLR (4th) 289 (SCC) Lamer CJC said (para 60), with reference to
aboriginal rights, that the time period that the Court should consider in
identifying whether the right claimed meets the standard of being integral to
the aboriginal community claiming the right, is the period prior to contact

between aboriginal and European societies.  He went on to say (para 62) that
this does not mean that:
'the aboriginal group claiming the right must accomplish the next to impossible task of
producing conclusive evidence from pre-contact times about the practices, customs and
traditions of their community. . . . The evidence relied upon by the applicant and the courts
may relate to aboriginal practices, customs and traditions post-contact; it simply needs to
be directed at demonstrating which aspects of the aboriginal community and society have
their origins pre-contact.  It is those practices, customs and traditions that can be rooted in
the pre-contact societies of the aboriginal community in question that will constitute
aboriginal rights.'
[89] Lindley, op cit, at 352, pointed out that mineral rights were frequently
reserved to the Government 'and in lands owned by or reserved to the natives',
but he added that –
'Where native lands are taken for mineral development, adequate compensation should be

given to the owners, and should in general include other lands equally suitable in all
respects for their purposes.'
This did not happen in this case, as I shall show later.
DISPOSSESSION
'AS
A
RESULT
OF
PAST
RACIALLY
DISCRIMINATORY PRACTICES'
[90] The final issue for determination is whether the appellant was
dispossessed of its rights in the subject land as a result of past racially
discriminatory laws or practices.  In the first place it is clear that the
dispossession relied upon took place after 19 June 1913.  In terms of s 2(1)(d)
of the Act a community is entitled to restitution of its rights in land only if it
was dispossessed of those rights 'as a result of past racially discriminatory
laws or practices'.  According to the definitions clause 'racially discriminatory
laws' include laws made by any sphere of government and subordinate
legislation and the term 'racially discriminatory practices' means racially

discriminatory practices, acts or omissions, direct or indirect, by —
'(a)
any department of state or administration in the national, provincial or
local sphere of government;
(b)
any other functionary or institution which exercised a public power or
performed a public function in terms of any legislation.'
[91] The appellant contended that the Richtersveld community was
dispossessed by a series of legislative and executive steps whereby, after the
discovery of diamonds in the mid 1920's, state alluvial diggings were
established on the subject land, the public, including the Richtersveld people,
were excluded from the subject land, mineral rights in the subject land were
granted to Alexkor and full ownership of the subject land was ultimately
transferred to Alexkor.
[92] The state alluvial diggings were established by Proclamation 58 of 8
March 1928, which declared a portion of the subject land in the vicinity of

Alexander Bay to be a state alluvial digging in terms of s 26 of the Precious
Stones Act 44 of 1927.  The Proclamation described the land concerned as
'unalienated Crown land'.  Proclamation 1 of 3 January 1929, Proclamation
250 of 17 July 1931 and Proclamation 158 of 7 June 1963 extended the state
alluvial diggings until it ultimately covered the whole of the subject land.  The
last three Proclamations also described the subject land as 'unalienated Crown
land'.
[93] The appellant contended that the premise that the subject land was
unalienated Crown land meant that the protection and benefits afforded to the
owner of land on which a state alluvial digging was established, were not
afforded to the Richtersveld community.  These included the protection and
benefits afforded to the rights of surface owners under s 29 of the Precious
Stones Act 1927; the entitlement of owners and surface owners under
s 19(1)(a) to select 400 claims free of charge; the owners' share of licence

moneys under s 22 and the protection of the owners' homesteads and water
rights under s 23.
[94] It was contended that the dispossession process was further
implemented by s 2 of the Alexander Bay Development Corporation Act 46
of 1989, which established a corporate body and provided for the transfer to it
of –
'all assets, liabilities, rights and obligations of the state in the State Alluvial Diggings
which the Minister of Economic Affairs with the concurrence of the Minister of Finance
may determine'.
In 1991 the Corporation was granted a variety of mineral rights in respect of
the subject land in terms of the Precious Stones Act 73 of 1964.
[95] Sections 2 and 3 of the Alexkor Limited Act 116 of 1992 provided for
the change of the Corporation into a company and for the name to be changed
to Alexkor.  The incorporation of the Corporation as a company had no effect

on its rights and obligations acquired or incurred prior to such incorporation.
In due course the subject land was granted to and registered in the name of
Alexkor in 1994.  On 20 April 1995 the title deeds of the subject land were
endorsed to the effect that a certificate of mineral rights in respect of the
whole of the subject land had been issued in favour of Alexkor.  It was
contended that the appellant was thus finally dispossessed of all its rights in
the subject land and the minerals upon it.
[96] The appellant contended that the dispossession was effected by their
eviction from the subject land and its appropriation by the State and Alexkor.
It was contended that the dispossession was the result of racial discrimination
in that the State failed to recognise and protect their rights in the subject land
in the same way that the land rights of the other inhabitants of the Cape were
consistently recognised and protected.  It was contended that the very essence

of the discrimination against the Richtersveld community was the State's
fundamental premise that they had no land rights in the subject land at all.
[97] The LCC held that insofar as the appellant was dispossessed of any
rights in the subject land, such dispossession was not of a kind that could
found a claim for restitution.  Following its earlier judgment in Minister of
Land Affairs v Slamdien 1999 (1) BCLR 413 (LCC), the LCC held (para 93):
'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 different racial groups, would not
qualify as a dispossession for the purposes of the Act.'
In other words, the LCC held that the laws and practices alleged by the
appellant to have resulted in their dispossession were not aimed at furthering
'spatial apartheid' and that without this link the appellant's claim did not fall
within the ambit of the Act.  In my view the LCC erred in this restrictive

interpretation of the Act.
[98] In Slamdien the former landowner's land was expropriated for the
building of a racially exclusive school. In claiming restitution, the argument
was that this amounted to a racially discriminatory practice in terms of the
Act.  In its judgment the Court stated that the underlying purpose of the Act
was to address dispossessions of land rights resulting from a particular class
of racially discriminatory laws and practices, namely those that sought
specifically to achieve 'spatial apartheid'.  The Court then continued as
follows (para 26):
'These would then be those laws and practices which discriminated against persons on the
basis of race in the exercise of rights in land in order to bring about that racial zoning' (my
emphasis).
The Court in Slamdien held that the discriminatory component of the decision
to establish a school on the respondents' property was not directed at the

exercise of rights in land, either directly or indirectly.  It held that the
discrimination was directed instead at the prospective pupils of the school
who would have to be educated separately from other race groups.  For this
reason it was held that the racially discriminatory practice complained of fell
outside the ambit of the Act.
[99] The real ratio of the judgment in Slamdien was therefore not the
absence of 'spatial apartheid' measures but that the Act limited restitution
remedies to people who had been discriminated against in the exercise of their
land rights (L.A. Hoq, op cit at 442).
[100] There is, contrary to the finding of the LCC (at para 83-92), no
justification in the interim Constitution of the Republic of South Africa Act
200 of 1993, the Constitution of the Republic of South Africa Act 108 of
1996 or the Act itself for confining the right to restitution under the Act to
dispossessions under laws or practices designed to bring about 'spatial

apartheid'.  Counsel for the second respondent correctly conceded in this
Court that this restriction was not justified.
[101] The Act was in the first place designed to give effect to ss 8(3)(b) and
121 to 123 of the interim Constitution.  Section 121(2)(b) read with s 8(2)
provided for restitution pursuant to any dispossession of rights in land if such
dispossession was effected under or for the purpose of furthering the object of
a law which would have been inconsistent with the prohibition of racial
discrimination contained in s 8(2), had that section been in operation at the
time of such dispossession.  Section 2 of the Act, as originally enacted,
created the statutory right to restitution by cross-reference to s 121(2) of the
interim Constitution.  It provided for restitution if the dispossession 'was
effected under or for the purpose of furthering the object of a law which
would have been inconsistent with the prohibition of racial discrimination
contained in s 8(2)'.  I can find no indication in any of these provisions for

limiting the right to restitution to laws 'designed to bring about spatial
apartheid'.
[102] Section 25(7) of the Constitution widened the right to restitution for
any dispossession 'as a result of past racially discriminatory laws or practices'.
This widening was in turn extended to the Act by the corresponding
amendment of s 2(1) brought about by s 3 of Act 63 of 1997.  Again, if the
right to restitution under the Act has to be limited to dispossessions designed
to bring about 'spatial apartheid' it would, in my view, not give full effect to
the provisions of either s 25(7) of the Constitution or the Act.
[103] In dismissing the appellant's contention that the State's failure to
recognise and protect their rights in the subject land constituted a racially
discriminatory law or practice, the LCC said that the denial of such rights was
not shown to have been influenced by, or based upon any racial
discrimination.  It said that there was no evidence to show that the

Government officials who failed to recognise and protect the appellant's rights
did so either for racist reasons or because they deliberately failed to recognise
the appellant's rights (at paras 108 and 114).  The LCC repeatedly emphasised
that the State and its officials acted in the belief that the appellant held no
rights in the subject land (e g at para 106).
[104] It seems clear, therefore, that the LCC required a motive, an intent, a
racist reason or a conscious failure to recognise the appellant's rights.  In so
doing it ignored the effect of the laws and practices on the appellant's rights
and failed to consider the indirect racial discrimination relied upon by the
appellant.
[105] The fact that the Act expressly includes indirect racial discrimination in
the definition of racially discriminatory practices is significant.  This is in
accordance with s 9(3) of the Constitution and with the principles established
in the Constitutional Court's equality jurisprudence.  See Pretoria City

Council v Walker 1998 (2) SA 363 (CC) para 43 where the Constitutional
Court held that in the case of indirect discrimination proof of motive or
intention to discriminate on the part of the State is not required.
[106] The LCC held, as I have already indicated, that upon annexation the
Richtersveld became Crown land because the Colonial Government
considered the inhabitants to be insufficiently civilised and the land therefore
terra nullius.  As I have found, the LCC erred in two respects in this regard:
the inhabitants were not insufficiently civilised and the Colonial Government
for this reason did not regard the land as terra nullius.
[107] Ignoring the fact that the Richtersveld was not terra nullius, State
policy since the 1920's has consistently been to regard the Richtersveld as
Crown land and, while acknowledging their occupation and use of the land
since before annexation, it has refused to recognise that the Richtersveld
inhabitants have any rights in the land.  For example, according to the

minutes of the meeting of the Parliamentary Select Committee on Public
Accounts on 3 April 1922 the Government's attitude was stated to be that the
Richtersveld became Crown land upon annexation and, while the inhabitants'
'precarious occupation' was acknowledged, it was not accepted that they held
any rights in the land.
[108] Precisely the same State policy is evident in the whole process set out
above whereby the said Proclamations under the Precious Stones Act, 1927
were promulgated and the legislative and executive steps taken which
culminated in the eviction of the appellant and the eventual transfer of full
ownership to Alexkor.  (I have referred to the fact that the Proclamations
described the subject land as unalienated Crown land.)
[109] 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.
[110] The effect of the State policy was that the Richtersveld people were
treated as if they had no rights in the subject land.  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.
[111] In result the appeal succeeds with costs including the costs of two
counsel.  The orders of the LCC are set aside and replaced with an order in
the following terms:
'(a)
It is declared that, subject to the issues that stand over for
later determination, the first plaintiff is entitled in terms of

s 2(1) of the Restitution of Land Rights Act 22 of 1994 to
restitution of the right to exclusive beneficial occupation
and use, akin to that held under common law ownership, of
the subject land (including its minerals and precious stones);
(b)
The defendants are ordered jointly and severally to pay the
plaintiffs' costs including the costs of three counsel.'

_________________
VIVIER ADP

HARMS JA)
SCOTT JA)
FARLAM JA)
CONCUR
MTHIYANE JA)