Michael Clark | Bakgatla ba Kgafela’s Constitutional Court case goes to heart of land reform

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18 June 2015 – The Bakgatla ba Kgafela court case hits at the heart of South Africa’s land restitution programme, and at people’s land rights protected by the Constitution. On 28 May 2015 the Constitutional Court heard the case of Bakgatla ba Kgafela Tribal Communal Property Association v Bakgatla ba Kgafela Tribal Authority and Others (as we discussed in a previous post). The case was about whether the Communal Property Association Act 28 of 1996 (“CPA Act”) allows the Bakgatla ba Kgafela Communal Property Association (“CPA”) – a provisional CPA – to continue to exist and hold land. The CPA has struggled for many years to get registered permanently as a result of serious administrative mismanagement by the Department of Rural Development and Land Reform and the ongoing resistance to the establishment of a CPA by the traditional council in the area.

Background

The Bakgatla ba Kgafela community brought a successful land claim over various pieces of land in the North West. This meant that they had to create a legal entity that was able to receive ownership of the land on behalf of the community. In 2005, the claimant community voted in favour of the creation of a CPA to hold the land, elected a committee to run the CPA and adopted a draft constitution. The community then made an application to have the CPA registered. However, the traditional council and traditional leader, Kgosi Pilane, were unhappy about the decision to form a CPA. They wanted the community to create a trust instead.

As a result of his intervention, Lulu Xingwane, the then Minister of Agriculture and Land Affairs, suggested that the community register a provisional CPA in terms of section 5(4) of the CPA Act for 12 months (rather than a permanent CPA in terms of section 8 of the CPA Act). The Department proceeded to register the provisional CPA in line with the Minister’s instruction, in spite of internal memos that show that the Department recommended that the CPA be permanently registered. In 2008 the land claimed by the community was transferred to the provisional CPA. Thereafter, the Department had almost no contact with the community – specifically, it did not help the community to convert the provisional CPA into a permanent CPA.

When the Bakgatla ba Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned in 2012, the traditional council argued it no longer existed. The traditional council argued that section 5(4) of the CPA Act meant that a provisional CPA is only valid for 12 months – after 12 months, if the CPA has not been turned into a permanent CPA, it no longer exists.

The CPA went to Court to get confirmation on its legal status. After a drawn-out court battle in the Land Claims Court and the Supreme Court of Appeal, the Constitutional Court heard the case on 28 May 2015.

Constitutional Court

In the Constitutional Court, the parties raised arguments about the legal status of the CPA. The Bakgatla ba Kgafela CPA argued that it should have been permanently registered because it substantially complied with the requirements for permanent registration in terms of the CPA Act and that, if the Department had not failed in its duties, it would have been permanently registered. The traditional council argued against this interpretation, saying that whether or not the CPA should have been permanently registered, it was registered as a provisional CPA – which, it argued, could only exist for a period of 12 months. The traditional council argued that because more than 12 months had passed since it was first registered, the CPA did not exist anymore.

While an important part of the case, the technical arguments about the legal status of the CPA were not the central focus of the Court, at least in the hearing. The Court instead focused on the Department’s failures and the impact that its decision would have on the restitution of land to the community.

Deputy Chief Justice Dikgang Mosekene, for example, said that the issue was really about access to land:

“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? … When will these people get to own their land and start to work on it and to benefit from it?”

When asked what should happen to the land restored to the community, the CPA argued that if the Court found the CPA no longer existed, the land would revert back to government. This would have the effect of “denying the community their constitutional right to restored land”.

The traditional council seemed to support this conclusion, arguing that the land should be returned to the government and that the council was the only legitimate administrator of the land. The Constitutional Court justices critically interrogated this interpretation, with Justice Moseneke questioning whether there is any legal justification for the traditional council to administer the land. Justice Bess Nkabinde also questioned this interpretation, noting that the majority of the community had elected to form a CPA to hold the land. She asked whether the traditional council should not respect the choice made by the community:

“Does that not go against the adage that ‘kgosi ke kgosi ka morafe’ meaning that ‘the chief goes by the majority of the tribe’?”

The Department’s lawyer said dismissively, “yes, there is this saying around”, which resulted in mutters from around the courtroom.

The Department, which had been invited to make arguments before the Court, said that the Court should order the parties to undergo mediation to find a middle-ground. The justices seemed unconvinced by this suggestion given that the community had already waited a long time for the right to manage and use their land. Justice Moseneke said that if the departmental officials had been “just a little more careful, we wouldn’t be here”.

The Court reserved its judgment, which is likely to be delivered in the coming months.

Why is the case important?

The Bakgatla ba Kgafela CPA case may appear to be about the technical issue of whether or not provisional CPAs can continue to exist and hold land after 12 months, but the case has a much wider impact. The case represents serious problems that exist in the land reform programme – issues that many CPAs struggle with daily. Some of the important issues highlighted by this case are:

  • Traditional leaders try to undermine the establishment, functioning and legitimacy of CPAs. This is mainly because they see CPAs as challenging their authority. Traditional leaders do this despite the fact that claimant communities democratically choose CPAs as their preferred institution to hold land.
  • The case represents a shift in the implementation of government policy in favour of traditional councils and traditional leaders. In the last couple of years, government’s proposed laws and policies have shifted away from democratically elected structures which people have chosen to hold land (such as CPAs) and towards traditional councils as owners of land. This is perhaps most clear in the Department’s new Draft Policy Paper on CPAs released in September 2014, which says that new CPAs will only be established “in areas where traditional authorities do not exist”. The Bakgatla ba Kgafela CPA case shows how government often prioritises the wishes of traditional leaders over those of land claim beneficiaries.
  • Serious administrative mismanagement by the Department. The case highlights that the Department suffers from serious mismanagement in relation to CPAs and points to the fact that this mismanagement is more widespread than just the Bakgatla ba Kgafela CPA. The Supreme Court of Appeal criticised the Department, saying that its handling of the CPA’s registration was “unfortunate” and amounted to “a comedy of errors”. The court said that this was especially worrying because the community “relied on [the Department] for guidance”. These statements show that the Department has failed to provide the necessary support to CPAs to enable these entities to function effectively. With very limited support and oversight, CPAs cannot be faulted for their inability to fully comply with the strict provisions of the CPA Act and should not have to bear the negative consequences of the Department’s inadequacy.

For more on the Bakgatla ba Kgafela CPA case, read a factsheet by the Centre for Law and Society here.

This post was originally published on Custom Contested, a one-stop website that provides news, information and analysis on laws and policies affecting custom, “tradition” and citizenship rights, exploring what is at stake for ordinary South Africans.

Michael Clark

About Michael Clark

Michael is a legal researcher at the Centre for Law and Society (CLS)’s Rural Women’s Action Research Project (RWAR). CLS is a non-profit research unit that works on issues of rural land rights, traditional leadership and governance structures and mining, and is based at the University of Cape Town. Prior to joining CLS, Michael was a legal researcher at the Socio-Economic Rights Institute of South Africa (SERI) and a researcher at the Socio-Economic Rights and Administrative Justice Research Project at Stellenbosch University. He has an LLB degree from the University of Stellenbosch. He has published in the fields of socio-economic and related enabling rights.