‘Things again of which the owner lost possession by
theft, or possession of which was gained by violence cannot be acquired by
usucapion, even by a person who has possessed them in good faith for the
specific period; for stolen things are declared incapable usucapion by the
statute of the twelve tables and by the Lex Juliet et Plautia …the statement
that things stolen or violently possessed cannot be statute, be acquired by
usucapion …namely the fact that there possession is not in good faith …” The
Institute of Justinian .
The modern day courts take the matter further in a
number of ground breaking pronouncement regard to land, the emphasis being
possession at the time of expropriation.
See Mehlape v Minister if Safety and Security 1996 (4)
SA 133 (w)
MANDAMENT VAN SPOLIE
The Native Land Act of 1913 is allegedly based on an
internationally vilified law declared as “a crime against humanity”. Here from
the Group Area Act of 1960
This was viciously applied on the indigenous people of
It follows there from that in our opinion the Restitution Act of 1994 could be
flawed. Our reasons are that prior to 1913 the indigenous people of South Africa had
received landowner rights through customary law by the British from as early as
We furthermore aver that by rewriting a law based on
the origins of land dispossession, goes against the spirit of the letter which
is enshrined under the Constitution of New Democracy. We believe that this
position shall remain flawed forever because of two pillars; rightful
ownership; violent removal in whatever form.
Ownership cannot be replaced where there is any form
of violence or unlawfulness to dispossess a rightful owner.
Here from the doctrine of Amendment van Spolie which
constitutes rightful possession and control? We have a right to be heard.
“Audi Alterem Partem” see Farjas (Pty) Ltd and another
vs. Regional Land Claims Commissioner Kwa Zulu Natal 1998 (2) SA 900 (L.C.C.)
Possession therefore is the rightful possession of
movable or immovable property.
See Stocks Housing (Cape) Pty Ltd v Chief Executive
Director, Department of Education and Culture Services and others 1996 (4) SA
Finally, the founding of the House of Traditional Leaders
in the Western Cape
is not a new phenomenon needing exhaustive debate and process. It is the
reclaiming of our customary, traditional rights in terms of revitalizing a long
oppressed and denigrated succession right of land ownership and self governance.
“Indigenous People, in particular those divided by
international boarders has the right to maintain and developed contacts,
relations and co-operation, including activities for spiritual, cultural,
political, economic and social purposes with their own members as well as other
people across the boarders.
It is evident that when Jan van Riebeeck interviewed
Kratoa who owned the mountainside of Leeukop cascading down to as what is known
today as the Bo Kaap, she was referring to a King of various indigenous tribes
under the Monarchy of King Chobona around the year 1657.
It is evident that Harry die Strandloper” is
prominent, it is Autshumato who is also known as “the first post master” who
relayed messages and letters between the harbor and the castle.
It is evident that a Griqua young man named Adam who
is named as such by Adam Tas, was born in the 1700’s. Possibly the great, great
grandson of Chobona, in the area of Piketberg and was the house attendant of
the governor’s son.
He was eventually given his freedom by the governor
and later arrested by the Dutch because “his natural leadership ability and
rebellion”, banished to the castle and incarcerated with “solitary
confinement”; a dark underground cell (a hole) for days on end to try and break
his will and fervor to lead his people. It is alleged that his attributes and
talents in the kitchen which must have been honed from a tender age, made him a
formidable cook. The Dutch had a system of name and surname, there from
allegedly, his second name Kok. He was henceforth name as Adam Kok.
It is evident that the British had learn from the
mistakes of the Dutch and instead of incarcerating Adam Kok I, they bestowed
upon him the staff of rulership, to serve as a Monarch of his people, in a
recognized official capacity which helped to restore peace between the British
and the indigenous people around the Cape as far as Namibia.
It is evident that Adam Kok I was incarcerated, at the
It is evident that all the colonial systems had
similar methods of “putting down insurrection”, either by hanging,
incarceration or banishment. Going farther a field we see that Lord Graham
applied the same oppressive system amongst the Gonaqua tribes of the Eastern
Cape. The British garrisons of Grahams Town raped the indigenous women and
commit large scales genocide. Those that were arrested was shot or decapitated
like King Hintsa of the Xhosa and banished to Robben Island like Langalibalele
of the Hlubi tribe.
It is evident that when the Native Land Act of 1913
was used by our government as a cut off date to apply restitution, we aver that
their policy is flawed, because the British had bestowed customary land rights
on the Nation Khoisan from 1881 and freedom to the rest of the slaves who came
from as far a field as India and Malaysia.
It is evident and must follow that the Western Cape
was the first to have reflected a Monarchy of good standing amongst its people,
as a structure of traditional customary self governance, implemented also in
Namibia under the Monarchy of Namaqua, with Kingship of Andries Witbooi. A
kraal was close to the sea at Autshokova, today, today known as Port Nolloth.
His Eminence, Andries Witbooi, is honoured by the Namibian government on their