A dispute between a community and their chief over who should own their land has brought into sharp focus the tensions between traditional governance structures and constitutional law.
The Bakgatla-Ba-Khafela community in the North West — comprising 32 villages — is at loggerheads with their chief over who should hold the rights to the land they were granted following a successful land restitution claim.
The matter landed in the Constitutional Court on Thursday, with the community wanting a Communal Property Association (CPA) to be formed and for the land to be held communally.
But their chief, Kgosi Nyalala Pilane, and the tribal authority, wants the land to be held by a trust.
The issue centres around whether or not the CPA, formed in 2007, had legal standing or whether it should be made permanent. The chief argues that the CPA does not have legal status.
After a morning of lengthy, technical arguments about the legal status of the CPA, Deputy Chief Justice Dikgang Mosekene said the issue was really about access to land.
“This about access to land, not the rules of the court. Shouldn’t there be certainty for this community? Seven, eight years after their restitution claim? So that the community can improve their circumstances?
“When will these people get to own their land and start to work on it and to benefit from it?” Moseneke asked counsel for the minister and director-general of rural development, advocate Rudolph Jansen SC.
The CPA was formed in 2007. At the time, the community felt the CPA should hold the land that was restored to them after their land claim.
The CPA’s registration was accepted by the Department of Rural Development and Land Affairs.
But the Bakgatla-Ba-Kgafela Tribal Authority wanted a trust to be formed instead of a CPA, and so the CPA was not issued with a permanent registration certificate.
But the department gave the CPA a provisional registration certificate, giving it the title deed to the land, in order to give the parties time to resolve their dispute.
According to the CPA Act, provisional CPAs lapse in a year if their status is not made permanent or if their provisional status is not extended.
The CPA approached the department again at the end of that year, requesting that the association be made permanent, but the department refused. The CPA then went to the Land Claims Court where it was successfully registered and declared permanent, but this decision was overtured by the Supreme Court of Appeal (SCA).
The CPA approached the Constitutional Court on Thursday seeking leave to appeal that ruling. The SCA overturned the order on the basis that the CPA had ceased to exist and had no legal standing, because, in terms of the Act, it had lapsed after 12 months.
The CPA argued on Thursday that the SCA did not have the jurisdiction to hear the matter, and that it interpreted the provisions of the Communal Property Act wrongly because it did not do so with the “spirit, purport and the objects of the Bill of Rights”.
It also argued that in terms of the act, after the 12 month period was over, a provisional CPA would lose the right to use the land that it held the title deeds to, but it did not cease to exist.
The CPA says the land has now reverted to the State “because of the vacuum created by the findings of the SCA”.
“It simply turns the clock backward without due process and thereby denying the community their constitutional right to the restored land,” said the community in their court papers.
The tribal authority and the chief placed the blame at the department’s door for failing to resolve the issue.
Advocate Rusty Mogagabe said the state should be liable for costs in the matter because, “we are here because of their ineptitude.”
“The fact of the matter is that when this CPA was provisionally registered the department didn’t take any steps to ensure that things are done properly and that these things are clarified,” he said.
The state wants the parties to find middle ground through mediation.
Jansen said the minister’s concern all along had been that the chief and the tribal authority should be “accommodated” in whatever agreement would be reached.
Justice Bess Nkabinde interjected.
“But what about the saying, the chief is the chief because of the people?” Nkabinde asked whether the chief should not abide by the will of the majority of the community who want the land to be held by the CPA.
Jansen said, “I’m sure the chief will vehemently disagree with the view that his powers are subject to popular vote.”
Moseneke said the CPA Act “takes a conscious decision that these things should happen through democratic processes”.
Later, Moseneke said that if the departmental officials had been “just a little more careful, we wouldn’t be here”.
Judgment was reserved.