Top court rules for community in landmark case

The Constitutional Court has sent out a strong message to the Department of Land Affairs, which favoured traditional authorities over communities, through a landmark judgment, says Centre for Law and Society director Aninka Claassens.

The court on Thursday handed back mineral-rich land to a North West community that had been locked in a dispute with its traditional authority, ending a long, hard-fought battle that played out on multiple legal fronts.

The Constitutional Court ruled that the Bakgatla-Ba-Kgafela Tribal Communal Property Association had the right to take ownership of its land. The association consists of 32 villages in the Moses Kotane municipality.

The association was embroiled in a legal fight over the land with the Bakgatla-Ba-Kgafela Tribal Authority.

Dr Claassens said the department had not fulfilled its obligation to assist the community.

"It is really quite a stern warning to government about transferring land to traditional leaders," she said.

Communities had the right to choose their own land-ownership arrangements and Thursday’s ruling was a reminder of this, she said.

The department said it could not comment because it had not yet read the judgment.

Association general secretary Bridgeman Sojane said he was overjoyed about the outcome. Also, he said, the association would begin talks with mining companies in the area.

Anglo American Platinum and Sedibelo Platinum Mines, which have operations in Pilanesberg where Bakgatla-Ba-Kgafela is located, said they could not comment because they were studying the judgment.

Attorney Wycliffe Mothuloe, whose firm represented the tribal authority, said: "It is important for the government to ensure that ... institutions and organisations function properly."

The association’s struggle began after the community was dispossessed of its land during apartheid and lodged a successful land claim in 2006 under the Restitution of Land Rights Act.

To take possession of the land, the community had to form a communal property association under section 5 of the Communal Property Association Act. The community wanted the land controlled by an elected association, while the tribal authority and its leader, Kgosi Nyalala Pilane, wanted it controlled in a trust.

The matter landed at the Constitutional Court after the department failed to institute a formal registration process for the association and instead provisionally listed it. In 2011, the association reregistered and signed a new constitution that was adopted and accepted by villagers.

But the department again failed to register the association permanently and it turned to the Land Claims Court, which directed land reform to proceed with the process.

The tribal authority and Kgosi Pilane went to the Supreme Court of Appeal to appeal against the decision. The appellate court ruled that the association did not exist because 12 months had lapsed.

The community, in turn, approached the Constitutional Court. The court said that, in the interests of justice, it granted the community leave to appeal and ruled in its favour on the drawn-out matter. Justice Chris Jafta ordered that the Land Claims Court ruling be reinstated. He also ruled that the minister and director-general pay the association’s costs for both the Supreme Court of Appeal and the Constitutional Court hearings.