Reconsidering historically based land claims

[摘要] ENGLISH ABSTRACT: The 1996 Constitution provides in s 25(7) that individuals and communities whohad been dispossessed of rights in land after 19 June 1913, as a result of pastdiscriminatory laws, may claim restitution or equitable redress. The Restitution ofLand Rights Act 22 of 1994 reiterates the 1913 cut-off date for restitution claims.The cut-off date appears to preclude pre-1913 land dispossessions. Variousreasons are cited for this date, the most obvious being that it reflects the date onwhich the Black Land Act came into effect. The Richtersveld and Popeladecisions of the lower courts appear to confirm the view that historically basedland claims for dispossessions that occurred prior to 1913 are excluded from therestitution process.In Australia and Canada restitution orders have been made possible by thejudicially crafted doctrine of aboriginal land rights. However, historical restitutionclaims based on this doctrine are constrained by the assumption that the Crown,in establishing title during colonisation, extinguished all existing titles to land. Thiswould have meant that the indigenous proprietary systems would have been lostirrevocably through colonisation. In seeking to overcome the sovereignty issue,Australian and Canadian courts have distinguished between the loss ofsovereignty and the loss of title to land. In this way, the sovereignty of the Crownis left intact while restitution orders are rendered possible.South African courts do not have to grapple with the sovereignty issue sincepost-apartheid legislation authorises the land restitution process. The appealdecisions in Richtersveld and Popela recognised that some use rights survivedthe colonial dispossession of ownership. This surviving right was later the subjectof a second dispossession under apartheid. By using this construction, which isnot unlike the logic of the doctrine of aboriginal title in fragmenting proprietaryinterests, the second dispossession could then be said to meet the 1913 cut-offdate, so that all historically based land claims are not necessarily excluded by the1913 cut-off date. However, it is still possible that some pre-1913 dispossessionscould not be brought under the umbrella of the Richtersveld and Popelaconstruction, and the question whether historically based restitution claims arepossible despite the 1913 cut-off date will resurface, especially if the claimantsare not accommodated in the government's land redistribution programme

[发布机构] Stellenbosch University