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

• Jurisdiction: South Africa
• Citation: 2015 (6) SA 32 (CC)

Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others
2015 (6) SA 32 (CC)

2015 (6) SA p32

Citation	2015 (6) SA 32 (CC)
Case No	CCT 231/14
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Heard	May 28, 2015
Judgment	August 20, 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.

Flynote : Sleutelwoorde B

Land — Communal property — Provisional communal property association — C Loses right to use and occupy land on expiration of provisional registration period but does not cease to exist — Communal Property Association Act 28 of 1996, s 5(4).

Headnote : Kopnota

The Bakgatla-Ba-Kgafela Communal Property Association (the Association) D was created in terms of s 5(4) of the Communal Property Association Act 28 of 1996 by members of a traditional community occupying 32 villages in the Moses Kotane Municipal Area, North West Province. During apartheid this community was dispossessed and forcibly removed from its land, on which a game reserve was established.

After lodging a successful claim in terms of the Restitution of Land Rights Act [*] E the community attempted to register the Association to take possession of the restored land. This failed due to disagreement between the community and the Tribal Authority (and its chairman, Kgosi Pilane) over the legal entity through which the land was to be held. At the suggestion of the Minister of Rural Development and Land Reform a provisional association was registered for a period of 12 months pending permanent registration, F and the land was transferred to the Association.

When the matter remained unresolved on expiration of the 12-month period, and permanent registration had still not taken place, the applicant turned to the Land Claims Court (LCC) for assistance. The main issues there were whether the Association was properly established under the Act so as to G institute the proceedings and whether it was entitled to be registered as a permanent association. The LCC found for the applicant and directed the Director-General of the Department of Rural Development and Land Reform to effect permanent registration.

Dissatisfied, the traditional authorities appealed to the Supreme Court of Appeal (SCA). The SCA overruled the LCC, holding that in terms of s 5(4) the H Association had ceased to exist on expiration of the 12-month period and therefore lacked legal standing to institute proceedings.

The Constitutional Court, in an appeal by the Association, considered a proper construction and application of the impugned provision. Section 5(4) provides:

'Upon registration of a provisional association —

(a)

I the provisional association may acquire a right to occupy and use land for a period of 12 months from the date of registration. . . provided that the Director-General may extend the period of 12 months for a further period of 12 months . . . .'

2015 (6) SA p33

In a unanimous judgment the court held that, in the context of s 5(4), reference A to the period of 12 months was in relation to the exercise of the right to occupy and use land and not the provisional association's life span. Consequently the SCA had misconstrued the meaning of the provision and, as a result, its conclusion that the Association did not have legal standing to institute the proceedings. Further, on the evidence, the requirements for registration as a permanent association had been met. Accordingly the B decision of the SCA was set aside and that of the LCC reinstated. (Paragraphs [42] – [43] and [52] at 46D – F and 48H – 49A.)

Cases Considered

Annotations

Case law C

Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC) (2003 (12) BCLR 1301; [2003] ZACC 18): referred to

Bakgatla-Ba-Kgafela Communal Property Association v Minister of Rural Development and Land Reform and Others [2013] ZALCC 16: confirmed

Bakgatla-Ba-Kgafela Tribal Authority v Bakgatla-Ba-Kgafela Tribal Communal Property Association [2014] ZASCA 203: reversed on appeal D

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; E South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1; [2004] ZACC 17): referred to

Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another 2011 (4) SA 42 (CC) (2011 (2) BCLR 121; [2010] ZACC 19): referred to F

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): dictum in para [53] applied

Dudley v City of Cape Town and Another 2005 (5) SA 429 (CC) ((2004) 25 ILJ 991; 2004 (8) BCLR 805): referred to

Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) G 2007 (3) SA 484 (CC) (2007 (3) BCLR 219; [2006] ZACC 24): dictum in para [43] applied

Kuena v Minister of Native Affairs 1955 (4) SA 281 (T): referred to

Lengisi v Minister of Native Affairs and Another 1956 (1) SA 786 (C): referred to

Masenya v Seleka Tribal Authority and Another 1981 (1) SA 522 (T): referred to H

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6): dictum in para [90] applied

Mokhatle and Others v Union Government 1926 AD 71: referred to I

Phumelela Gaming and Leisure Ltd v Gründlingh and Others 2007 (6) SA 350 (CC) (2006 (8) BCLR 883; [2006] ZACC 6): dictum in paras [26] – [27] applied

R v Mpanza 1946 AD 763: referred to

Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) (2008 (9) BCLR 914; [2008] ZACC 9): referred to. J

2015 (6) SA p34

Statutes Considered

Statutes A

The Communal Property Association Act 28 of 1996, s 5(4): see Juta's Statutes of South Africa 2014/15 vol 6 at 4-456 to 4-457.

Case Information

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. B

C Jansen (with N Muvangua) for the third and fourth respondents.

An application for leave to appeal against a decision in the C Supreme Court of Appeal.

Order

1.

Leave to appeal is granted.

2.

The appeal is upheld.

3.

The order of the Supreme Court of Appeal is set aside.

4.

D The order of the Land Claims Court is reinstated.

5.

The Minister of Rural Development and Land Reform and the Director-General of the Department of Rural Development and Land Reform are ordered to pay the costs of Bakgatla-Ba-Kgafela Communal Property Association in the Supreme Court of Appeal and this court. Those costs are to include costs of two counsel where applicable.

Judgment

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

2015 (6) SA p35

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...