Alexkor Ltd v Richtersveld Community

The Constitutional Court held that the Richtersveld Community possessed indigenous law-based rights akin to ownership in land prior to British annexation in 1847, and that those rights survived annexation and were not extinguished by subsequent colonial or apartheid legislation. The community was therefore entitled to restitution of the land under the Restitution of Land Rights Act 22 of 1994.

The Richtersveld Community, a communal indigenous group, claimed they possessed and occupied land in Namaqualand under customary law for generations before British annexation in 1847. After annexation, the Crown and later the state progressively asserted ownership, culminating in Alexkor Ltd (a state diamond-mining entity) exploiting the land. The community lodged a restitution claim under the Restitution of Land Rights Act, asserting they were dispossessed of rights in land after 1913.

Whether the Richtersveld Community held enforceable rights in land at the time of British annexation, whether those rights survived annexation, and whether dispossession of those rights entitled the community to restitution under the Restitution of Land Rights Act.

The Court held that the community possessed indigenous law-based ownership rights in the land prior to annexation, these rights survived annexation because colonial law recognized indigenous tenure, and the community's subsequent dispossession qualified for restitution. Alexkor was ordered to restore the land or pay compensation.

Indigenous peoples' rights in land held under customary law are cognizable as 'rights in land' for constitutional and restitution purposes; annexation or colonization does not automatically extinguish such rights unless clearly and validly done by the sovereign.

The Court applied contemporary international law on indigenous rights and common-law principles of recognition of indigenous tenure. It found that the community's historical use and occupation under customary law constituted a right akin to ownership, that British colonial law recognized indigenous land rights unless expressly extinguished, and that no valid act of expropriation had occurred. The Court emphasized the Constitution's recognition of customary law and the need to interpret property rights broadly to include indigenous tenure systems.

The Court commented on the importance of integrating international law principles, including those in the UN Declaration on the Rights of Indigenous Peoples (then in draft), into South African property jurisprudence and emphasized the transformative role of the Constitution in redressing historical injustices against indigenous communities.

Alexkor is a foundational judgment on indigenous land rights in South Africa, establishing that customary tenure survives state succession and qualifies for constitutional property protection and restitution. It is essential for understanding the intersection of customary law, property rights, and land reform in the constitutional era.

Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) [2003] ZACC 18