Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
• Judgment Date: 20 August 2015
• Docket Number: CCT 231/14
• Hearing Date: 28 May 2015
• Counsel: G Muller SC (with N Ngoepe) for the applicant. SJR Mogagabe SC (with L Moloisane-Montsho SC and OK Chwaro) for the first and second respondents. C Jansen (with N Muvangua) for the third and fourth respondents.
• Court: Constitutional Court

Jafta J (unanimous):

Introduction F

[1] This is an application for leave to appeal against an order of the Supreme Court of Appeal which overturned a judgment of the Land Claims Court. The matter concerns the interpretation and application of s 5 of the Communal Property Association Act (Act). [1] The Act establishes G communal property associations for the purpose of holding land restored to communities. It was passed to give effect to the constitutional right of communities to restitution of land dispossessed in terms of discriminatory laws or practices of the apartheid regime.

[2] The applicant is Bakgatla-Ba-Kgafela Communal Property Association H (Association). The Association was established in terms of the Act. It cited as respondents Bakgatla-Ba-Kgafela Tribal Authority (Tribal Authority) and Kgosi Nyalala Molefe John Pilane (Kgosi Pilane). The Minister of Rural Development and Land Reform (Minister) and the Director-General of the Department (Director-General) were joined in I this court as the third and fourth respondents.

[3] Underlying the demand for the applicant's registration is the Bakgatla-Ba-Kgafela community's desire to regain ownership of the

Jafta J (Unanimous)

communal land it lost under apartheid rule. For decades restitution of A land was the rallying point for the struggle against colonialism and apartheid. Regaining land ownership was the primary object of that struggle. [2] It is therefore not surprising that the Constitution guarantees land restitution and reform. [3]

Background B

[4] The Community occupies 32 villages in the Moses Kotane Municipal Area, North West Province. During the apartheid era this Community was dispossessed of and forcibly removed from its land, on which a game reserve was established. Land dispossession and forced removals of C black people from their land were commonplace in that era. To remedy this injustice the Constitution guarantees the right of individuals and communities to reclaim their lost land.

[5] The Restitution of Land Rights Act [4] regulates the process of D claiming restitution of land in the exercise of this constitutional right. However, this piece of legislation does not create mechanisms in terms of which communities may possess land restored under the restitution process. Those mechanisms are established by the Act.

[6] Acting in terms of the Restitution of Land Rights Act, the Community E lodged a claim for the restitution of land it lost under the apartheid regime. The claim was approved by the Minister in October 2006 in terms of s 42D of the Restitution of Land Rights Act. [5] Meanwhile, the Community had set in motion the process of establishing an association through which it intended to take possession of the restored land. F Meetings were held in various villages which culminated in the adoption of a constitution for the Association on 3 December 2005. These meetings were held under the supervision of officials of the Department of Rural Development and Land Reform (Department) whose role was to advise the Community on the requirements of the Act. G

[7] The application for the registration of the Association was submitted to the Department. The official who was charged with the responsibility of satisfying himself that the Association qualified for registration under H

Jafta J (Unanimous)

A the Act recommended its registration. [6] However, the Association was not registered, owing to a dispute between the Community on the one hand, and the Tribal Authority and Kgosi Pilane on the other. The Tribal Authority and Kgosi Pilane preferred a trust as an entity through which the land was to be held, while the Community wanted an B association.

[8] This dispute attracted the intervention of the Minister who suggested that a provisional association be registered to enable the parties to resolve the matter within a period of 12 months. The present Association which is the applicant in these proceedings was registered as a provisional C association. The land was transferred and registered in the name of the Association.

[9] But the dispute between the Community, the Tribal Authority and Kgosi Pilane was not resolved within 12 months as was envisaged at the meeting with the Minister. Nor was Bakgatla-Ba-Kgafela Communal D Property Association registered as a permanent association.

[10] In January 2011 the Director-General informed the Association that the term of office of members of its executive committee had lapsed and suggested that new members be elected. Meetings were held in various villages, leading up to the annual general meeting of 30 July 2011 E which was attended by 29 out of the 32 villages. The Association's constitution was readopted at this annual general meeting. The meeting was held in the presence of a representative of the Department, an attorney in private practice, whose role was to see to it that the requirements of the Act were met.

F [11] Having declared the meeting to have complied with the necessary requirements, the departmental representative completed the relevant form that contained a report to the Department. This report shows that notice of the meeting was widely published in the relevant villages. Eighty-six people attended this annual general meeting and all voted in G favour of the constitution. Notably, the report records 'not applicable' against the column that requires an indication to be made if interests of other persons would be negatively affected by the adoption of the constitution.

Litigation history H

[12] When the Department failed again to register the Association as a permanent one and issue a certificate, it instituted proceedings in the Land Claims Court. The initial relief sought by the Association was an order directing the Department to release the Association's certificate of

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registration and interdicting and restraining Kgosi Pilane from intimidating, A interfering and influencing officials of the Department in their dealings with the Association. In its amended notice of motion the Association abandoned the initial claim and instead sought a declaration to the effect that it was established in compliance with s 8 of the Act. It also sought an order directing the Director-General to effect permanent B registration of the Association. The application was opposed by the Minister, the Tribal Authority and Kgosi Pilane.

[13] Apart from raising in limine points, the respondents disputed some of the facts alleged by the Association in its papers. In view of the dispute of facts, the Land Claims Court [7] referred the matter for the hearing of C oral evidence. Upon conclusion of the hearing, that court dismissed as lacking merit the points that it had no jurisdiction to hear the case and that the Association had no legal standing to institute the proceedings. The court granted the following order:

'1.

The applicant is declared an association that was established by a D community as envisaged in the definition of community in the Communal Property Association Act 28 of 1996.

2.

The applicant was entitled to be registered permanently as an association by the thirteenth respondent.

3.

The thirteenth respondent is directed to effect the permanent E registration of the Bakgatla-Ba-Kgafela Communal Property Association: CPA/07/2032/A as such in the manner prescribed by Act 28 of 1996 and upon registration to issue a certificate of registration in terms of s 8(3) of such Act.'

In the Land Claims Court the Director-General was the fourteenth respondent. It was he who was directed to register the Association. F

Supreme Court of Appeal

[14] Dissatisfied with the order, the Tribal Authority and Kgosi Pilane appealed to the Supreme Court of Appeal. The Supreme Court of G Appeal held that the Association's status was at the heart of the appeal and confined itself to deciding that issue only. [8] In determining this issue, that court based its decision squarely on s 5(4) of the Act which it construed to mean that a provisional association exists for a period of 12 months from the date of registration unless the Director-General H extends the period for a further 12 months. Since it was common cause that no extension had been granted, the Supreme Court of Appeal concluded that the Association had ceased to exist on the expiry of 12 months. [9] Consequently the order of the Land Claims Court was set aside.

Jafta J (Unanimous)

Leave to appeal A

[15] The Association seeks to appeal against the order of the Supreme Court of Appeal. For the Association to succeed, it must show that the matter falls within the jurisdiction of this court and that it is in the interests of justice for leave to be granted. As stated earlier, this case B concerns the interpretation and application of the provisions of the Act that was passed to give effect to the rights in s 25 of the Constitution. The interpretation of this legislation constitutes a constitutional issue. [10]

[16] The interests of justice favour granting leave. The matter raises a constitutional issue relating to the restitution of land, dispossessed under C apartheid, to communities in the realisation of the right guaranteed under s 25(7) of the Constitution. This court has not considered a case of this nature before. Moreover, it is likely that this court will construe the relevant provisions differently. Consequently there are prospects of success and leave to appeal must be granted.

Issue D

[17] The main issue arising from the judgment of the Supreme Court of Appeal is whether the Association had legal standing to institute these proceedings. The answer to this question depends on a proper interpretation of s 5(4) of the Act, which was the foundation of the conclusion reached by the Supreme Court of Appeal. But before construing the E relevant provision, it is...