Reference code
ZA UCT BC1380/2
Title
THE RICHTERSVELD LAND CLAIM RECORDS ACCESSION 2: QUANTUM
Date(s)
- 1998-2009 (Creation)
Level of description
Subfonds
Extent and medium
tba
Name of creator
(1979-)
Administrative history
Established in 1979, the LRC uses the law as an instrument of justice for the vulnerable and marginalised, including poor, homeless and landless people. The LRC has four offices in Cape Town, Durban, Grahamstown and Johannesburg.
Archival history
Immediate source of acquisition or transfer
Donated by Henk Smith of the LRC
Scope and content
The ramifications of the 2004 judgment are discernible in the nature of the materials contained in the accession. The plaintiff’s discovery strategy was aimed at establishing the value of the minerals that had been extracted from the subject land, and establishing the costs and complexities of repairing the degradation that the land had suffered as a result of mining activities. The material thus contains a great deal of discovered materials relating to production figures, valuation methods, and environmental assessments. Much of the collection comprises dossiers of these discovered materials. The correspondence files and general working files reflect the progression of the matter from preparing for trial to reaching a negotiated settlement. Much of the material covers adjuvant matters, such as the establishment of development entities and communal property associations to facilitate the management of the Richtersveld after the claim had been settled.
Accruals
System of arrangement
Conditions governing access
Conditions governing reproduction
Language of material
Script of material
Language and script notes
Physical characteristics and technical requirements
Finding aids
Existence and location of originals
Existence and location of copies
Related units of description
Note
In 2003 the Constitutional Court (CC) held that “the real character of the title that the Richtersveld Community possessed in the subject land was a right of communal ownership under indigenous law” (paragraph 62 of the CC judgment, reported as Alexkor Ltd and Another v The Richtersveld Community and Others, 2003 (12) BCLR 1301). They concluded that “under the indigenous law of the Richtersveld Community communal ownership of the land included communal ownership of the minerals and precious stones” (paragraph 64) and that the community was entitled “to restitution of the ownership of the subject land (including its minerals and precious stones) and to the exclusive beneficial use and occupation thereof” (paragraph 103).
Following this decision, the way was cleared for restitution of the land and the establishment of the quantum. In the language of the particulars of claim, the Richtersveld community sought the following relief, inter alia:
• an order that the defendants restore to the Richtersveld community ownership of the rights to minerals in, and exclusive beneficial use and occupation of, the subject land (Supplementary Particulars of Claim para 20.1);
• an order that the Richtersveld community be compensated for the diminution in the value of their rights in the subject land as a result of the defendant’s extraction of minerals from it (Supplementary Particulars of Claim para 20.2); and
• an order that the defendants repair the environmental damage to the subject land which is capable of repair, and an order declaring that the Richtersveld community be compensated for the environmental damage not capable of repair (Supplementary Particulars of Claim paras 20.3-20.7).
Before the quantum could be established, several preliminary legal issues were identified which needed to be heard. These were:
• Was the court (Land Claims Court, LCC) empowered by the Restitution of Land Rights Act to make an order for a combination of restitution of the subject land, with equitable redress, more specifically: (a) granting the plaintiff restitution of the whole of the subject land together with compensation for the diminution in the value of the land as a result of the defendant’s extraction of minerals from it; (b) granting the plaintiff restitution of a portion or portions of the subject land together with compensation for that part of the subject land in respect of which restitution is not ordered?
• Was the court empowered to make an order directing the defendants to repair environmental damage to the subject land or to compensate the plaintiff for such damage?
These matters were set down for hearing in April 2004. Shortly before that, the defendants amended their pleas by claiming that, had the plaintiff’s indigenous rights in the subject land been recognised by the Precious Stones Act which was in force at the time of their dispossession, it would have been encumbered and restricted in various ways by that Act; consequently an award under the Restitution of Land Rights Act in relation to the plaintiff’s rights to minerals and precious stones in the subject land ought to be calculated with regard to such encumbrances and restrictions. This was opposed by the plaintiff, obviously, since it would significantly affect the basis on which compensation would be determined. Judge Gildenhuys subsequently found as follows:
(a) It is declared that the orders claimed by the plaintiff for both restoration and compensation in satisfaction of its right to restitution in terms of section 2(1) of the Restitution Act, are competent in terms of section35 of the Restitution Act.
(b) It is declared that the orders claimed by the plaintiff for repair of and/or compensation for the environmental damage to the subject land, are competent in terms of section 35 of the Restitution Act.
(c) The first defendant’s application to amend its supplementary plea in accordance with the revised notice of amendment of 5 April 2004, is hereby granted.
(d) The second defendant’s application to amend its supplementary plea in accordance with the revised notice of amendment of 31 March 2004, is hereby granted.
(e) The defendants are ordered jointly and severally to pay the plaintiff’s costs relating to,
The way was thus cleared for the establishment of the quantum, either by trial or by negotiation, and for the defence to invoke the earlier Act in an attempt to circumscribe the quantum. Monthly pre-trial conferences were held at which discovery was effected and legal matters were discussed. Negotiations were initiated with amongst others the Department of Minerals and Energy (DME) and the Department of Public Enterprises (DPE), which led to the drafting of several memorandums of understanding (MOU) which would form the basis of a negotiated settlement. An agreement was eventually proposed. The LRC expressed reservations about various aspects of the agreement, and the process by which it had been formulated. The Richtersveld community, however, accepted the agreement and on 22 April 2007 signed it with Minister Alec Erwin of the DPE. In June 2007, the Legal Resources Centre gave notice that they were stepping down as the community’s legal representative, citing a breakdown in trust between itself and the community’s elected representatives. This brought to an end the LRC’s decade-long involvement in one of the most significant land claims yet lodged in post-apartheid South Africa.
Following this decision, the way was cleared for restitution of the land and the establishment of the quantum. In the language of the particulars of claim, the Richtersveld community sought the following relief, inter alia:
• an order that the defendants restore to the Richtersveld community ownership of the rights to minerals in, and exclusive beneficial use and occupation of, the subject land (Supplementary Particulars of Claim para 20.1);
• an order that the Richtersveld community be compensated for the diminution in the value of their rights in the subject land as a result of the defendant’s extraction of minerals from it (Supplementary Particulars of Claim para 20.2); and
• an order that the defendants repair the environmental damage to the subject land which is capable of repair, and an order declaring that the Richtersveld community be compensated for the environmental damage not capable of repair (Supplementary Particulars of Claim paras 20.3-20.7).
Before the quantum could be established, several preliminary legal issues were identified which needed to be heard. These were:
• Was the court (Land Claims Court, LCC) empowered by the Restitution of Land Rights Act to make an order for a combination of restitution of the subject land, with equitable redress, more specifically: (a) granting the plaintiff restitution of the whole of the subject land together with compensation for the diminution in the value of the land as a result of the defendant’s extraction of minerals from it; (b) granting the plaintiff restitution of a portion or portions of the subject land together with compensation for that part of the subject land in respect of which restitution is not ordered?
• Was the court empowered to make an order directing the defendants to repair environmental damage to the subject land or to compensate the plaintiff for such damage?
These matters were set down for hearing in April 2004. Shortly before that, the defendants amended their pleas by claiming that, had the plaintiff’s indigenous rights in the subject land been recognised by the Precious Stones Act which was in force at the time of their dispossession, it would have been encumbered and restricted in various ways by that Act; consequently an award under the Restitution of Land Rights Act in relation to the plaintiff’s rights to minerals and precious stones in the subject land ought to be calculated with regard to such encumbrances and restrictions. This was opposed by the plaintiff, obviously, since it would significantly affect the basis on which compensation would be determined. Judge Gildenhuys subsequently found as follows:
(a) It is declared that the orders claimed by the plaintiff for both restoration and compensation in satisfaction of its right to restitution in terms of section 2(1) of the Restitution Act, are competent in terms of section35 of the Restitution Act.
(b) It is declared that the orders claimed by the plaintiff for repair of and/or compensation for the environmental damage to the subject land, are competent in terms of section 35 of the Restitution Act.
(c) The first defendant’s application to amend its supplementary plea in accordance with the revised notice of amendment of 5 April 2004, is hereby granted.
(d) The second defendant’s application to amend its supplementary plea in accordance with the revised notice of amendment of 31 March 2004, is hereby granted.
(e) The defendants are ordered jointly and severally to pay the plaintiff’s costs relating to,
- the determination of the preliminary issues and
- the applications to amend.
The way was thus cleared for the establishment of the quantum, either by trial or by negotiation, and for the defence to invoke the earlier Act in an attempt to circumscribe the quantum. Monthly pre-trial conferences were held at which discovery was effected and legal matters were discussed. Negotiations were initiated with amongst others the Department of Minerals and Energy (DME) and the Department of Public Enterprises (DPE), which led to the drafting of several memorandums of understanding (MOU) which would form the basis of a negotiated settlement. An agreement was eventually proposed. The LRC expressed reservations about various aspects of the agreement, and the process by which it had been formulated. The Richtersveld community, however, accepted the agreement and on 22 April 2007 signed it with Minister Alec Erwin of the DPE. In June 2007, the Legal Resources Centre gave notice that they were stepping down as the community’s legal representative, citing a breakdown in trust between itself and the community’s elected representatives. This brought to an end the LRC’s decade-long involvement in one of the most significant land claims yet lodged in post-apartheid South Africa.