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Mini ng and minerals legislation formulated by the apartheid government may qualify as ‘racially discriminatory laws or practices’ for the purposes of land restitution claims.

This was the view recently expressed by the Constitutional Court in the long-running battle by the Richtersveld community for restitution of land they were dispossessed of.

The court held that the community is entitled to restitution of the diamond-rich land that is the subject of the claim.

The land in question is, at present, in the name of Alexkor, the State-owned diamond-mining company.

The land is a narrow strip of land along the West Coast from the Gariep (Orange) river in the north to just below Port Nolloth in the south. For centuries it has been inhabited by what is now known as the Richtersveld Community.

In 1920 diamonds were discovered on the land and the State granted the rights that the Richtersveld community had to the land to Alexkor.

The Restitution of Land Rights Act, 1994, provides that: A person shall be entitled to restitution of a right in land if it is a community or part of a community dispossessed of a right in land after June 19, 1913, as a result of past racially discriminatory laws or practices; and the claim for such restitution is lodged not later than December 31, 1998.

Initially the Land Claims Court rejected the Richtersveld claim on the basis that while it accepted that the community had been dispossessed of land when it was moved off the land, the community had failed to prove that its dispossession was the result of discriminatory laws or practices.

The law relied upon by the community was the Precious Stones Act, 1927, and various proclamations made in terms of that Act.

In an earlier judgment the Land Claims Court had ruled that racially-discriminatory laws or practices were “those that sought specifically to achieve the (then) ideal of spatial apartheid, with each racial and ethnic group being confined to its particular racial zone”.

The Supreme Court of Appeal and the Constitutional Court held that this test was unduly restrictive.

In finding that the Precious Stones Act was “racially discriminatory” the Constitutional Court stated that the Act failed to recognise the “indigenous law ownership” of the Richtersveld Community and rendered its occupation of the land unlawful.

It excluded the community from its land and from the right to exploit its mineral wealth. On the other hand, registered ownership was recognised, respected and protected. For the most part, whites held land under the system of registered ownership, though there were some black people and black communities who did acquire title of this sort. The court concluded: “The inevitable impact of this differential treatment was racial discrimination against the Richtersveld Community which caused it to be dispossessed of its land rights.

Although it is correct that the Precious Stones Act did not form part of the panoply of legislation giving effect to ‘spatial apartheid’, its inevitable impact was to deprive the Richtersveld Community of its indigenous law rights in land while recognising, to a significant extent, the rights of registered owners. In our view, this is racially discriminatory and falls squarely within the scope of the Act".

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