Alexkor Limited and Government of the Republic of South Africa v The Richtersveld Community and Others

The Richtersveld Community claimed restitution of land in the north-western corner of the Northern Cape Province under the Restitution of Land Rights Act 22 of 1994. The claim concerned a narrow strip of land along the west coast (the subject land) registered in the name of Alexkor Limited. The Richtersveld Community had inhabited the area for centuries and claimed ownership or rights to exclusive beneficial occupation under common law, indigenous law, or beneficial occupation. The Land Claims Court dismissed the claim, finding that while the Community had beneficially occupied the land for more than 10 years prior to dispossession after 19 June 1913, it failed to prove the dispossession resulted from discriminatory laws or practices. The Supreme Court of Appeal reversed, finding the Community held customary law interests akin to common law ownership including minerals and precious stones, and that dispossession in the 1920s (following diamond discovery) constituted racially discriminatory practices. Alexkor and the Government appealed to the Constitutional Court.

• Whether the Constitutional Court has jurisdiction over issues connected with constitutional matters under section 167(3)(b) of the Constitution
• What law applies to events predating the interim Constitution
• The nature of land rights held by the Richtersveld Community under indigenous law prior to annexation
• Whether the 1847 British annexation extinguished indigenous land rights
• Whether the Community's rights survived after 19 June 1913
• Whether the Community was dispossessed after 19 June 1913
• Whether the dispossession resulted from racially discriminatory laws or practices

The appeal was dismissed with costs, including costs of two counsel. The order of the Supreme Court of Appeal was amended to declare that the Richtersveld Community is entitled to restitution of the right to ownership of the subject land (including minerals and precious stones) under indigenous law and to exclusive beneficial use and occupation, subject to issues standing over for later determination. The defendants were ordered to pay costs jointly and severally, including costs of three counsel. The Government was ordered to pay costs of its condonation application on the attorney-client scale.

Indigenous law land rights must be determined according to indigenous law on its own terms, not through common law concepts. Indigenous law is an integral part of South African law, subject to the Constitution, and courts must apply it when applicable. British annexation does not automatically extinguish indigenous land rights; there is a presumption that the Crown intends to respect existing property rights of inhabitants. Under indigenous Nama law, the Richtersveld Community held communal ownership of land including minerals. Section 2(1) of the Restitution of Land Rights Act 22 of 1994 gives content to section 25(7) of the Constitution, making its interpretation a constitutional matter within the Constitutional Court's jurisdiction. "Issues connected with decisions on constitutional matters" under section 167(3)(b) extends to all matters logically related to constitutional issues (facta probantia bearing on facta probanda). Laws that fail to recognize indigenous law ownership while protecting registered ownership constitute racially discriminatory practices under the Restitution Act, even if not part of spatial apartheid legislation, where their inevitable impact is racial discrimination. Dispossession must be determined substantively, not merely by technical transfer of ownership.

The Court left open whether courts may develop common law applicable before the Constitution came into force in light of section 39(2) of the Constitution, noting this is a complex matter for future decision. The Court noted that had the Government been the only appellant, peremption of its right to appeal might have ended the litigation, but allowed its participation given Alexkor's valid appeal and absence of prejudice to the Richtersveld Community. The Court cautioned against uncritical use of comparative law from other jurisdictions dealing with indigenous land rights, noting South Africa's situation differs substantially due to express constitutional provisions (sections 121 of the interim Constitution and 25(7) of the 1996 Constitution) dealing with land dispossession. The Court indicated that the retroactive effect of the Constitution likely does not extend before 19 June 1913, but did not need to definitively determine this issue. The Court observed that indigenous law is not a fixed body of rules but evolves as communities change, and caution must be exercised with historical texts that may view indigenous law through foreign legal conceptions.

This is a landmark case in South African land restitution and indigenous law jurisprudence. It established that indigenous law must be understood on its own terms, not through a common law prism, and is now an integral part of South African law subject to the Constitution. The judgment clarified that British annexation did not automatically extinguish indigenous land rights. It broadened the interpretation of "racially discriminatory laws or practices" under the Restitution Act beyond spatial apartheid legislation to include laws with racially discriminatory impact, particularly the failure to recognize indigenous law ownership while protecting registered title. The case affirmed that indigenous communal ownership includes mineral rights. It also clarified the Constitutional Court's jurisdiction over "issues connected with decisions on constitutional matters" under section 167(3)(b), establishing that this extends to all anterior matters logically bearing on constitutional issues. The judgment represents a significant recognition of historical injustices against indigenous communities and the need for substantive rather than technical approaches to land restitution.