Bakgatla case with far-reaching implications before top court

The  Constitutional Court heard a case on Thursday which will determine how a valuable area of land in the North West province — which covers a portion of the Pilanesburg game reserve and, according to community leaders, sits on rich platinum deposits — will be administered.

The case has wider implications for the future of communal property associations — one of the legal vehicles through which rural communities can own their land.

Rural rights groups say these have lost favour with government, which is increasingly tending towards governance by traditional leadership authorities. The Centre for Law and Society’s Aninka Claasens said a rural land indaba, beginning on Friday, would be debating the future of communal land-tenure policy.

At the centre of the clash between the Bakgatla-ba-Kgafela Tribal Community Property Association and Kgoshi Nyalala Pilane is whether the land — restored to the community through a land claim in 2005 — should be run by a trust, essentially controlled by the traditional authorities or through the more democratic communal property-association structure.

The secretary-general of the Bakgatla-ba-Kgafela Community Property Association, Matsidiso Bridgeman Sojane, speaking to the media after the hearing, said that even though the land had been restored to the community it had not benefitted from land’s potential "massive financial resources". Instead, unemployment was high and infrastructure was underdeveloped.

The legal issues in the case were technical and included whether an association that had been registered as a "provisional association" under the Communal Property Associations Act ceased to exist after 12 months or whether it continued to exist if it satisfied the requirements for registration set out in the act.

If the association no longer existed — as the Supreme Court of Appeal said — the Bakgatla-ba-Kgafela Tribal Community Association would not have the legal standing to fight for the community’s land to be administered by a property association.

Counsel for the association, Gerrit Muller SC, said under the act the existence of an association was not dependent on registration. He said the community had satisfied all the requirements to be registered as a permanent association, in particular that it had the overwhelming support of the members of the community — some 350,000 households.

But this was disputed by Rusty Mogagabe SC, counsel for Kgoshi Pilane and the tribal authority, who said that the meeting which decided to go the property association route was only attended by 30 people.

Mr Mogagabe said the administration of the land should revert to the state, which would mean that it would continue to be run by the traditional authorities in trust for the community.

Counsel for the minister of rural development and land reform, Rudolph Jansen SC, said it was clear that the community supported a communal property association, adding that the 30-people claim was "hearsay".

He said the issue was the content of the association’s constitution, which should include a role for traditional leadership structures. The Constitution recognised the role of traditional leaders and customary law, he said, adding that it was Kgoshi Pilane who had put in the claim on the community’s behalf.

Mr Jansen argued that the dispute between community and the chief needed be to be resolved through mediation.

But his approach was received with some stern questions from the bench. Deputy Chief Justice Dikgang Moseneke said: "Seven, eight, nine years after restitution, shouldn’t there be some certainty, so that these people can go back and try and change their circumstances?"

The department’s handling of the registration process, called a "comedy of errors" by the Supreme Court of Appeal, was similarly criticised by the Constitutional Court.

"If your officials had just been a little more careful, we wouldn’t be here," said Justice Moseneke.

Ms Classens said the case was crucial because it would send a message to government, whose previous attempt to introduce ownership of rural land by traditional leaders was struck down as unconstitutional, and that it could not manipulate land ownership in favour of chiefs.

Judgment was reserved.