Rights in land of colonial governments

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History of the occupation of land in the Cape Colony

Introduction

In this thesis I consider the rights in the land used as grazing of the indigenous communities and of non-indigenous persons in the Cape Colony. The logical starting point for this discussion is an overview of the history of the occupation of land in the Cape Colony. The grazing land at the Cape had been occupied for a long time by indigenous communities before Jan van Riebeeck arrived to establish a refreshment station for the Dutch East India Company (‘Company’).¹ In 1652 the newcomers failed to realise that the land at the Cape suitable for grazing was already occupied by the indigenous communities. In this chapter the discussion of the meaning of the phrase ‘occupation of land’ is necessary to make the study of the history of occupation of land used as grazing possible.
The reason why the history of the occupation of land has not been addressed in the debate concerning the dispossession and restitution of land in South Africa is considered in section 2.2. I also explain why I deem it important that the history of the occupation of land should be studied.
In section 2.3 the meaning of the phrase ‘occupation of land’ is considered. In this thesis occupation of land is given a specific definition so that a clear distinction can be made between this concept and the dispossession of land that is discussed in subsequent chapters.² The definition given to occupation of land also has the effect that certain indigenous communities who were dispossessed of their land are excluded from consideration in the thesis.
The different processes of occupation of land by the pastoral indigenous communities that lived at the Cape and in the interior of the Cape Colony, the Xhosa indigenous communities³ and the non-indigenous persons, are discussed in section 2.4. From this discussion I established the framework contained in the Table below to serve as guideline for defining the limits of the study area.
Due to the different ways in which the different communities contemplated in the first column of the Table occupied land, conflict would inevitably arise between them. The pastoral indigenous communities at the Cape were the most vulnerable to encroachment on their land by non-indigenous persons as they were nomadic communities that did not demarcate the territory they occupied. The non-demarcation of territory is explained by Elphick’s remarks that for the pastoral indigenous communities land without livestock was of relatively little value.⁶ In other words, indigenous communities apparently attached less value to land as a commodity than non-indigenous persons. However, it is now generally accepted that the indigenous communities had rights in the land they occupied.⁷ As these rights in the land used as grazing and the rights of non-indigenous persons are the focus of this thesis, the effect of the different methods of occupation of land is considered in section 2.5. In that section I consider a system which I refer to as overlapping occupation of land. In essence overlapping occupation of land occurred where non-indigenous persons and indigenous communities used the same grazing.
In section 2.6, the facts relating to the occupation of land as discussed in sections 2.4.1 and 2.4.2 and the facts relating to overlapping occupation of land as discussed in section 2.5 are used to determine the extent of the study area of this thesis.

Study of the history of dispossession of land in South Africa

In South Africa the debate about the dispossession of land is often based on an argument that it began on 6 April 1652 when the Company established a refreshment station in Table Bay.⁸ Walker identifies the key elements of what she describes as an overarching narrative of dispossession that existed and was used in 1994.⁹ Of the seven elements she identifies, two relate to the effect that colonialism had on the process of dispossession of land. The well-known fact that 87% of the land in South Africa came to be owned by 15% of the population is ascribed, amongst other things, to ‘colonial wars of dispossession’. The other relevant element is that before the arrival of Europeans the indigenous communities had ‘lived in peace and harmony with their neighbours, with nature, with the ancestors’.¹⁰ In the narrative of dispossession discussed critically by Walker, no distinction is made between the different indigenous communities that were dispossessed of their land or the regions where the dispossession took place.¹¹ In this narrative the emphasis is on the dispossession of land that occurred during the twentieth century. With regard to the dispossession that took place in the colonial period the narrative merely mentions the fact that the dispossession took place and does not refer to how it took place. In Chapter 14 of this thesis I contend that for indigenous communities dispossessed of their land before 19 June 1913,¹² the process of dispossession of their rights in land is of cardinal importance.
This approach addresses one of the reasons given in the White paper on South African land policy April 1997 (‘White paper’) why dispossession of land before 19 June 1913 is not addressed in terms of the Restitution Act. The White paper states that the fact that the same land has been occupied by different communities over time may create overlapping claims for restitution of such land.¹⁴ I am of the opinion that the existence of overlapping claims to land should not prevent certain indigenous communities from reclaiming the land of which they were dispossessed. By studying the manner in which land was occupied during the colonial period, I determine the nature of the rights in land that were obtained by the different communities in the study area. By determining the nature of these rights I am able to consider whether such rights are mutually exclusive.

Meaning of ‘occupation of land’

In general, in the debate on the dispossession of land in South Africa, the role that the manner in which land was occupied by different communities might have played in how the dispossession took place is not taken into account. In this thesis I contend that the fact that some indigenous communities in the study area only used land as grazing and not for permanent settlement and agriculture, meant that non-indigenous persons regarded such land as unoccupied in terms of their own legal system. The occupation of land was therefore considered from different perspectives by the indigenous communities and non-indigenous persons.

Meaning of occupation

The Oxford English Dictionary defines the verb ‘occupy’ as, amongst other things, ‘[t]o hold possession of; to have in one’s possession or power… To take possession of (a place), esp. by force; to take possession and hold of (a building)’.¹⁵ It defines the verb ‘possess’ as, among other things, ‘[t]o own, to have or gain ownership of; to have (wealth or material objects) as one’s own; to hold as property… Law. To have possession of, as distinct from ownership… esp. to hold or occupy as a tenant, to lease’.¹⁶ These dictionary definitions do not give an explanation of the actions of a person when he occupies land. Definitions of ‘occupation’ in legal dictionaries also do not give an explanation of the process of occupation.¹⁷ The definition of possession in legal dictionaries gives the word a technical legal meaning that does not explain the process of physical occupation of land.¹⁸
To illustrate the problem of using dictionary definitions to describe the process of occupation of land I use an example from the time of the first settlement of the Company at the Cape. The indigenous community that lived in Table Bay in April 1652 was the Goringhaicona (also referred to as Strandlopers) under the leadership of Autshomao (also known as Herry),¹⁹ who did not own livestock during that period. They were a small community who depended on the ocean as their main source of food.²⁰ They did not erect permanent dwellings, but lived in an encampment that could be moved from location to location.²¹ In addition, the Goringhaiqua indigenous community under the leadership of Gogosoa and the Corachouqua indigenous community under Choro used the grazing at the Cape for their livestock.

Declaration
Summary
Acknowledgements
Part 1 Introduction and determination of study area
1. Introduction
1.1 Purpose
1.2 Part 1: Introduction and determination of study area
1.3 Part 2: Rights in land of colonial governments
1.4Part 3: Dual system of rights in land in terms of the domestic law of the Cape Colony
1.5Part 4: Evolution of customary law systems in the study area
1.6Part 5: Preserving the customary law rights in land of pastoral communities
2 History of the occupation of land in the Cape Colony
2.1Introduction
2.2Study of the history of dispossession of land in South Africa
2.3Meaning of occupation of land
2.4Different histories of occupation of land that must be studied
2.5Overlapping occupation of land
2.6Determination of the study area
2.7Conclusion
Part 2Rights in land of colonial governments
3The Company’s rights in land in terms of international law rules
3.1Introduction
3.2Acquisition of territory at the Cape in terms of international law rules
3.3International law rules applicable to the expansion of colonies
3.4The international law implications of the Batavian period and the second British occupation
3.5Conclusion
4Uniqueness of the domestic law of the Cape Colony relating to the occupation of land
4.1Introduction
4.2Extra-legal factors contributing to the development of the domestic law of the Cape Colony ,relating to the occupation of land
4.3The acquisition of territory in other Dutch colonies
4.4 Comparison between the rights in land of the Company in the Cape Colony and the other Dutch colonies
4.5Conclusion
5The Company’s private law rights in land
5.1Introduction
5.2Different types of charters granted by the Dutch and British sovereigns
5.3The power to grant land in terms of the domestic law of the Cape Colony
5.4Obtaining private law ownership of land in terms of the domestic law of the Cape Colony before 1795
5.5Legal nature of the land cultivation transactions between the Company and the non-indigenous settlers
5.6Conclusion
6Investigation into the domestic land law system developed by the Company
6.1Introduction
6.2Investigations during the first British occupation
6.3Investigations during the Batavian period
6.4Investigation into the loan place system during Caledon’s period of office
6.5Reform of the loan place system under Cradock
6.6Conclusion
7Introduction of the doctrine of tenures in the Cape Colony
7.1Introduction
7.2Different approaches to the disposal of land in the Cape Colony
7.3The British sovereign’s rights in the waste land of the Cape Colony
7.4Conclusion
Part 3Dual system of rights in land in terms of the domestic law of the Cape Colony
8Occupation of land used as grazing
8.1Introduction
8.2Grazing for the Company’s livestock
8.3Livestock farming by the Company and the non-indigenous settlers at the Cape
8.4Expansion beyond the Cape
8.5Ownership of the land used as pasture in the Cape Colony
Bibliography
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