Journal of African Law


Regular Article

DEVELOPING THE DOCTRINE OF ABORIGINAL TITLE IN SOUTH AFRICA: SOURCE AND CONTENT


ÖZLEM ÜLGEN a1
a1 Department of Law, University of Sheffield, UK

Abstract

Richtersveld Community and Others v. Alexkor Ltd and Another is the first case to consider whether aboriginal title is part of South African law. Aboriginal title is asui generis proprietary interest in land recognized in common law jurisdictions such as Canada, the United States, Australia and New Zealand. It recognizes the prior occupation of those territories by aboriginal peoples before the arrival of settlers or colonization. Richtersveld was brought before the Land Claims Court which under the 1994 Restitution of Land Rights Act considers claims to restitution of rights in land to individuals or communities dispossessed of such rights after 19 June 1913, as a result of past racially discriminatory laws or practices. The Court's jurisdiction is confined to redressing the discriminatory effect of land policies of the apartheid era, “considering the fact that more than 3.5 million people and their descendants have been victims of racially based dispossession and forced removal during the apartheid era”. It cannot consider the broader issue of the effect of colonial acquisition of territorial sovereignty on pre-existing customary land tenure systems, or rights in land.