By Dr Michelina Andreucci
MOTHER nature is bountiful; land, the environments and the natural resources within the land are not the yields of human labour, nevertheless they provide immense value to humankind.
Even when human labour is diversified as in farming and/or mining, man should be humbled to acknowledge that much of the value in what he produces comes from nature and thus is unearned benefit.
Under the West’s tenets of international law, the effective use of land was one of the rules of territorial occupation.
Only agricultural societies were deemed to use lands effectively. Therefore, at international law, people considered ‘nomadic’ had no right to land – not even their own.
When Portuguese explorer-navigator Bartolomeu Dias and other Portuguese explorers first ventured upon the Cape of Good Hope in the 15th Century, they found the land around the Cape sparse and empty, with little to no enticement for occupation and so they sailed on.
However, when in the early 17th Century, trade between the Dutch port of Batavia (now Indonesia) grew to the extent that trading vessels were dispatched on the long voyage from the Netherlands to Asia on a regular basis, the Dutch East India Company began looking for a halfway point on the voyage to establish a supply station to serve the sailors making the voyage to and from Asia.
With the Western assumption that peripatetic peoples’ territories were not used productively, they were regarded as ‘empty’ — and therefore open to colonisation.
Consequently, it resulted in the appointment of Dutch surgeon Jan van Riebeeck, in 1652, with the task of building both a fort and farming community in what became the Cape Colony in present day South Africa.
Undeterred by months of arduous travel and the hardship of ‘life among savages’, van Riebeeck’s arrival witnessed the beginning of colonisation of Africa South; until they penetrated from the Cape, northwards into the mysterious interior of Munhumutapa.
Following the Berlin Conference, in accordance with Article 35, colonial powers in Africa had to “…establish formal legal ties with the local populations” in order to establish their authorities. The Final Act stated:
“The signatory powers of the present Act recognise the obligation to insure the establishment of authority in the regions occupied by them on the coasts of the African continent sufficient to protect existing rights (droit acquis) and, as the case may be, freedom of trade and of transit under the conditions agreed upon.”
In contrast, for colonisation in Australia and the Americas, European colonial powers simply decided that the territories were empty, and therefore open to colonisation.
The Final Act of Article 35, penned at the Berlin Conference, had several long-lasting consequences for the development of international rules regarding title to territory in Africa.
One was that colonial powers renewed their use of chartered companies as agents of the colonising state.
Since the effective control of huge territories was usually deemed too expensive for the administrative systems of the colonial states, they instead granted rights to private companies, referred to as Chartered Companies.
These Charter companies were vested not only with trading rights, but also rights regarding the administration of the colonised territories that included territorial rights.
Chartered companies had the power to enter into ‘treaties’ with communities, often with long-lasting territorial consequences.
They became important players regarding land rights for local communities, sometimes over vast areas of lands.
While treaties with indigenous populations have always been part of the colonial enterprise, following the Berlin Conference, colonial powers, through their chartered companies, entered into a period of intense treaty-making with many indigenous leaders and communities; among them the Rudd Concession.
Similar processes were followed with varying formulae across the African continent by the French, German, Portuguese and Dutch administrations; private trading companies represented their colonial powers with rights over land and all the natural resources in addition to the people.
Between 1688 and 1690s, the Cape Colony also experienced an influx of French Huguenots, compelled to leave France following the Edict of Fontainebleau which effectively revoked the Edict of Nantes; bringing their winemaking and viticulture experience from their homeland with them.
After Simon van der Stel was appointed to succeed van Riebeeck as governor of the Cape Colony in 1679, he arranged for a personal land grant, against Dutch East India Company’s regulations, for an estate (he named Constantia) of 1 850 acres near Table Mountain – a grant 15 times larger than the Company’s normal provision set at about 123 acres.
Simon van der Stel initially forced the French Huguenots to amalgamate with Dutch and German communities until, eventually, he gave the Huguenot settlers land near Boschendal in the Cape, in what is now Franschhoek, known as the ‘French corner’.
In 2001, a winery in the Franschhoek Valley became
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