ConCourt hands land back to North West community

After seven years of litigation and internecine warfare, a community in North West will legally hold the rights to land they were deprived of during apartheid, following a Constitutional Court judgment handed down on Thursday.

The Bakgatla-Ba-Kgafela community is made up of 32 villages in the Moses Kotane district municipality in North West province.

For years, the community has been at loggerheads with their chief, Kgosi Nyalala Pilane, and the Bakgatla-Ba-Kgafela tribal authority over how their land should be shared.

The community’s land was returned to them following a successful land restitution claim. But the dispute arose when the community wanted the land to be held collectively in the form of a communal property association (CPA). But the tribal authority and Kgosi Pilane wanted the land to be held in a trust.

While the litigation turned on the correct interpretation of the Communal Property Association (CPA) Act, the case will give effect to the community’s constitutional right to be restored their land after being dispossessed during apartheid.

During oral arguments, which the court heard in May, Deputy Chief Justice Dikgang Moseneke remarked: “This is 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?”

Unanimous judgment
A unanimous judgment written by ConCourt Justice Chris Jafta overturned a previous court ruling, effectively handing the land over to the community.

The minister of rural development and land reform had intervened and said a provisional association should be formed so the parties could resolve the issue within 12 months. This provisional association is the applicant.

The land was registered in the name of the provisional association’s name, but the dispute was not resolved and the provisional association was not registered as permanent.

The provisional association went to the Land Claims Court in an attempt to be registered permanently. The association wanted an interdict against Kgosi Pilane to prevent him from intimidating or influencing departmental officials during the process.

The Land Claims Court ordered the department to register the CPA permanently.

Kgosi Pilane and the tribal authority appealed to the Supreme Court of Appeal.

‘Heart of the appeal’
Jafta wrote: “The SCA held that the association’s status was at the heart of the appeal and confined itself to deciding that issue only.”

The CPA Act states that a provisional association only exists for 12 months unless the director general of the department extends that period. As the director general had not done this, the appeal court said that the association did not exist.

The CPA approached the Constitutional Court and leave to appeal the appeal court judgment was granted. It argued that the appeal court had misinterpreted the relevant sections of the CPA Act.

“The matter raises a constitutional issue relating to the restitution of land, dispossessed under apartheid, to communities in the realisation of the right guaranteed under section 25(7) of the Constitution,” Jafta wrote.

He said the court had not considered a case like this before.

The CPA Act states that, in the event that the director general feels that the provisional association’s application to become a permanent CPA falls short of what is required in the Act, he or she must make the association aware of this so that the application can be fixed.

The provisional association must comply with several requirements, many of them related to the democratic operation of it, which the ConCourt described as “safeguard[ing] the interests of members of traditional communities and empowering them to participate in the management of a communal property”.

Jafta said the Act was designed to “transform customary law and bring it in line with the Constitution”.

He wrote that the Act must be interpreted with this in mind. “Had the SCA borne this duty in mind, it could have attached a different meaning to the section. A meaning that would be consonant with the purpose of the Act.”

The effect of the appeal court’s decision was that the provisional association, having collapsed after 12 months, did not have the legal standing to bring proceedings in the Land Claims Court.

But the ConCourt interpreted the relevant section to mean that the 12-month period only applied in relation to the association’s right to occupy and use the land in question.

“The section makes no mention of the provisional association’s life span at all,” the court found.

But this was not the only problem with the appeal court’s judgment.

The court said that the Act allows for the provisional association and the permanent CPA to co-exist: this happens because the provisional association is established as soon as it qualifies for registration, when the relevant departmental official recommends that it be registered. It has not been registered permanently yet, but it remains established.

Throughout the process, and after registration, the Act obliges the director general to a “deep involvement” in ensuring compliance with the Act, the court said.

“It is clear from the scheme of the Act that once a traditional community expresses a desire to form an association, the director general must do everything permissible to assist the community to accomplish its goal,” Jafta wrote.

But in this case, the director general “did not approach the registration in the spirit of the Act … He opposed registration on the basis of shortcomings without helping the community to remedy them … Under a mistaken understanding of the Act, the director general adopted a wholly inappropriate response to the community’s legitimate request for registration.”

Meanwhile, in court, the minister had agreed that the appeal court’s decision should be set aside, but wanted the matter to be referred for mediation.

But the ConCourt said: “There is simply no legal basis for the request in the context of the present matter … The fact that a traditional leader or some members of the traditional community prefer a different entity of the association is not a justification for withholding registration and imposing mediation on the parties.”

Dr Aninka Claassens, acting director of the Centre for Law and Society, said: “The judgment comes down firmly on the side of people having the right to choose the form of land-holding they prefer, instead of government dictating ‘tribal ownership’ as the only option in former Bantustan areas.

“The judgment sends a clear message that current policy, which proposes to transfer title deeds of land in the former homelands to traditional councils cannot fly constitutionally. The judgment shows that the minister and director general failed to uphold the law by elevating the interests of traditional leaders over their duty to support the choice of the community and to fulfil the provisions of the CPA Act.”.

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Sarah Evans
Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics. 

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