The history of the occupation of land in the Cape Colony and its effect on land law and constitutionally mandated land reform

Abstract

In this thesis I investigate the manner in which land was occupied in the Cape Colony by pastoral indigenous communities, colonial governments and non-indigenous settlers, and the significant role these patterns of occupation played in the development of land law in the colony until the end of the nineteenth century. This investigation shows that pastoral indigenous communities had customary law rights in the land they occupied as grazing in terms of their customary law systems long before the colonial period commenced. These communities were gradually dispossessed of these rights during the colonial period. Non-indigenous persons occupied and obtained rights in land in terms of the domestic law system that was developing in the colony. They dispossessed indigenous communities of their customary law rights in land used as grazing when they occupied it for agricultural purposes. However, their rights in land used as grazing were very similar to the customary law rights of indigenous communities in such land. Consequently, a system of overlapping occupation of land used as grazing developed, particularly in the Northern Cape. The domestic land law system of the Cape Colony was gradually abolished by reforms introduced by the British colonial government after 1813. These reforms were aimed at transforming land in the entire Cape Colony into an asset that could be exploited for the benefit of the British Empire. By introducing the English common law doctrine of tenures the British colonial government could claim all waste land as private law property of the Crown. The actual dispossession of land used as grazing by pastoral indigenous communities was caused by legislation adopted in the colony during the nineteenth century. Under the present constitutional dispensation this type of legislation is regarded as racially discriminatory. The purpose of this thesis is to show that to address and reverse the effect of dispossession of the customary law rights in land of pastoral indigenous communities the constitutional land reform programme must be extended to include measures to rectify the dispossession of such rights. This approach ensures that colonial dispossession of land is also addressed, not only dispossession caused by apartheid legislation.