Abstract

MCLACHLAN, JN. History of the dispossession of the rights in land of pastoral indigenous communities in the cape colony from 1652 to 1910. Fundamina (Pretoria) [online]. 2019, vol.25, n.1, pp.100-130. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2019/v25n1a5.

The pastoral indigenous communities living in southern Africa at the start of the colonial period were the first to be dispossessed of their rights in land. They had exercised these rights in terms of their customary law systems for centuries before the arrival of non-indigenous settlers in 1652. During the nineteenth century, the final acts of dispossession of land took place in terms of racially discriminatory legislation and administrative actions, just like the dispossession of land that took place after 19 June 1913. However, the descendants of these communities are unable to claim restoration of their rights in land in terms of the constitutional land reform programme. This contribution identifies the customary law rights in land of these communities and compares such rights with the rights that non-indigenous settlers had in the land used as grazing on loan places. This comparison shows that the rights in land used as grazing of non-indigenous settlers and pastoral indigenous communities were in essence the same. However, from 1813 the colonial government implemented legislation in the Cape Colony that created big disparities with regard to rights in land between them. In this contribution, it is argued that colonial dispossession of land from pastoral indigenous communities should be rectified by adopting legislation in terms of section 25(8) of the Constitution that will enable the descendants of these communities to claim restoration of their ancestral land.

Keywords : pastoral; indigenous; customary law; perpetual quitrent.

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