SOUTH AFRICA: A South African court may bring restitution to some, but with severe consequences for diamond miners, writes Bill Corcoran, in Johannesburg
South Africa's Nama people, as well as its government, will be waiting with bated breath for the outcome of a hearing that begins at Cape Town's Land Claims Court on Monday.
The judge's ruling could mean the difference between continued poverty and a future of previously unimaginable opportunity for the approximately 4,000 Namas, whose ancestors were forcibly removed from their land in the 1920s by the British colonial government following the discovery of diamonds.
It could also have huge financial consequences for the government.
The mining company that has been extracting diamonds from the land to date is state-owned, so any compensation bill that comes in the form of financial restitution will invariably end up at its door.
Monday's hearing is the final phase of a legal battle that began in 1998 and has been fought in two stages by seven elders of the Nama community who, after consulting with the community, decided to take on the Alexkor Mining Company to regain their ancestors' land.
The presiding judge must decide what type of restitution the Nama people deserve; whether it should come in the form of financial compensation or the return of the land, or both.
The community's former land is in an area known as the Richtertsveld, which is located in the northwestern corner of the province, and encompasses four small towns around Alexander Bay, as well as parts of the Richtertsveld National Park.
However, the descendants of those displaced now live in the Northern Cape's harsh desert, where they eke out an existence living in dilapidated plastic-covered shacks, or small cement houses which mostly have no electricity or running water.
Until now the community's isolation from the world and continued poverty have been ensured by the unpaved roads that lead to their desert settlements, which are only reachable by four-wheel-drive.
But all that should change with the Land Claim Court's ruling, as the only real issue is the level and type of compensation that the Nama people will receive.
A Constitutional Court ruling - the first stage of the Namas' legal battle - has already recognised the legitimacy of the community's claim to the land and its mineral rights.
But 18 months of out-of-court negotiations between Alexkor and the claimants have failed to yield a restitution package that both parties can agree on.
The mining company has been extracting diamonds from Alexander Bay since 1927 and it may be required not only to transfer ownership of the company to the community, but also to compensate it for all environmental damage caused by the mining, as well as all of the diamonds removed from the land over the last 80 years.
During the Constitutional Court hearing in 2003, a figure of around 10 billion rand (€1.2 billion) was mentioned as an acceptable level of compensation.
This, however, was disputed by Alexkor's legal representatives because "no one could explain to the judges how this amount had been calculated".
South Africa's department of public enterprise, which is handling the case on behalf of Alexkor, has declined to comment before the hearing. But, not surprisingly, it does not see the situation in the same light as the Nama people.
According to a statement on Alexkor's website, it will be arguing that the Restitution of Land Rights Act allows for restitution to take the form of returning the land, or compensation, but not both.
