IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE: CCT NO: 231/14
In the matter between:
BAKGATLA-BA-KGAFELA COMMUNAL
PROPERTY ASSOCIATION
Applicant
And
BAKGATLA-BA-KGAFELA TRIBAL AUTHORITY
1st Respondent
KGOSI NYALALA MOLEFE JOHN PILANE
2nd Respondent
THE MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM
3rd Respondent
THE DIRECTOR GENERAL OF THE DEPARTMENT
OF RURAL DEVELOPMENT AND LAND REFORM
4th Respondent
CENTRE FOR LAW AND SOCIETY
Amicus Curiae
__________________________________________________________________________________
FIRST AND SECOND RESPONDENTS’ DISPUTED FINDINGS BY THE LAND
CLAIMS COURT AND THE SUPREME COURT OF APPEAL
________________________________________________________________
Introduction
1.
The first and second respondents submit herewith their disputed factual
findings as contained in the judgment of the Land Claims Court and those
set out in the Supreme Court of Appeal judgment as so directed by the
above Honourable Court through Directions issued by the Registrar and
dated 17 March 2015.
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2.
The parties could not agree on the statement of facts based on factual
findings of both the Land Claims Court and the Supreme Court of Appeal
and hence the submission of different and/or distinct statements by the
applicant and the first and second respondents.
Factual background
The Bakgatla-Ba-Kgafela community
3.
The first and second respondents are cited herein in their respective
representative capacities as duly recognised institutions/structures of
traditional leadership and executing their duties on behalf of the BakgatlaBa-Kgafela traditional community, which is a traditional community duly
established and recognised as such in terms of the relevant provisions of
the North West Traditional Leadership and Governance Act, (“the
Provincial Act”) read with those relevant provisions of the Traditional
Leadership and Governance Framework Act, (“the National Act”).
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4.
The Bakgatla-Ba-Kgafela traditional community is a community/morafe1
comprising of thirty two (32) villages located throughout the Bojanala
region within the Moses Kotane Local Municipality, situated in the northeastern part of the North West province with its headquarters/main kgotla2
based at Moruleng (also known as Saulspoort). The reigning Senior
Traditional Leader/Kgosi of the traditional community is the second
respondent, (hereinafter referred to as “Kgosi Nyalala Pilane”) who
succeeded the chieftainship thereof during or about 6 April 1996. The
Bakgatla-Ba-Kgafela traditional community will hereinafter interchangeably
be referred to as BBK traditional community or the traditional community or
morafe as the case may be.
The land claims and the Provisional Communal Property Association
5.
During or about 8 December 1998, Kgosi Nyalala Pilane, acting in his
capacity as the Kgosi of the BBK traditional community, lodged a claim
with the Commission on Restitution of Land Rights (“the Commission”) for
the restitution of various portions of land which are presently situated on
the Pilanesberg Nature Reserve. A copy of the submission prepared in
terms of section 42D of the Restitution of Land Rights Act, 22 of 1994 in
1
This is a Setswana name meaning a traditional community as defined in both national and provincial
Acts.
2
This denotes the seat of traditional leadership, where the Kgosi and his council normally convene
3
respect of this claim is contained in Vol. 4 of the record submitted by
applicant).
6.
The properties3 so claimed by the traditional community are:
6.1.
Various portions of the Doornpoort 57 JQ held by title deed
T99/1980BP;
6.2.
Portion 13 of Koedoesfontein 42 JQ held by title deed number
T102/1980BP;
6.3.
Portion 1 of Legkraal 45 JQ, held by title deed number
T176/1989BP;
6.4.
Portion 1 of Kruidfontein 40 JQ,
6.5.
Portion 4 of Rooderand 46 JQ held by title deed number
T8993/1916BP;
6.6.
Schaapskraal 170 JP held by title deed number T30/1980BP;
6.7.
Portions 9, 12, 18 and remainder of portion 18 of Saulspoort 38 JQ
held by title deed numbers T12835/1961BP and T21380/1959BP;
and
3
As detailed in the section 42D submission approved by the Chief Land Claims Commissioner on 23
October 2006.
4
6.8.
Portion 8 of Vogelstruisnek 173 JP held by title deed number
T5720/1929BP
7.
All of these properties were owned and registered in the names of various
predecessors of the current Kgosi, on behalf of the traditional community
following the said community having bought these portions of land through
a private treaty and as more fully appear on the attached copies of title
deeds marked as annexure “A” and “B” respectively. This entails that the
properties which are the subject matter of this litigation were at all times
material hereto not bona vacantia as ownership thereof vested in the
morafe as represented by various past Dikgosi and not in any member of
the community.
8.
The claim was investigated by the Commission and the said portions of
land were duly restituted to the BBK traditional community. Following the
said approval by the Commission, various processes were undertaken by
the representatives and/or officials of the third and fourth respondents
which were aimed at providing the community with various options in terms
of which their restituted land could be owned, managed and utilised for the
benefit of the entire traditional community.
5
9.
In conducting their consultations in terms of the Restitution of Land Rights
Act, the officials of the department decided, together with a few members
of the community who formed common cause with them, to proceed with
the process of registering a permanent CPA despite not having obtained a
mandate of the community, especially the traditional leadership, to so
proceed. This stance by the departmental officials resulted in the
preparation and signature of the submission by the Provincial Chief
Director dated 1 May 2011 and signed by the Director: Tenure Reform
Implementation System on 10 September 2007.
10.
It was during these “options workshops” that the traditional community
became vociferous and stern in terms of their preferred mode/vehicle for
purposes of management, utilisation and ownership of the restored land.
The traditional community preferred that the land must be owned and
managed by the Bakgatla-Ba-Kgafela traditional council,4
the first
respondent, through a trust which will be utilised for the benefit of and on
behalf of all community members who have been approved as
beneficiaries in terms of the legislative prescripts governing land restitution
process.
4
The name Bakgatla-Ba-Kgafela Tribal Authority is a misnomer being the previous name of such
institution in terms of the repealed Bophuthatswana Traditional Authorities Act of 1984, prior to the
coming into operation of the National Act and Provincial Act
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11.
It is common cause that certain members of the traditional community
preferred the establishment of a Communal Property Association (“CPA”)
as the vehicle which will be utilised to take transfer and ownership of the
restored land.
12.
These differences led to the then Minister of Rural Development and Land
Affairs, Ms Lulu Xingwana, to enter the fray and seek a middle ground in
terms of which the different parties within the community agreed to the
registration of a provisional CPA for a period of twelve months, while
efforts were being made to obtain consensus within the community about
the preferred mode and/or vehicle of taking transfer and ownership of the
restored land.
13.
Consequently, the Bakgatla-Ba-Kgafela Communal Property Association,
the applicant was duly registered as a provisional CPA in terms of section
5 of the Communal Property Associations Act, No. 28 of 1996 (“the Act”)
on 10 September 2007. The executive members thereof were sixteen (16)
in number led by Mr Motshegare, who was elected as the Chairperson and
and Mr Moyo, who became the Vice/Deputy Chairperson thereof.
The Land Claims Court
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14.
On or about 25 May 2012, the applicant, represented by Mr Moyo,
launched an urgent application out of the Land Claims Court seeking
orders to the effect that the third and fourth respondents together with the
Registration Officer of Communal Property Associations should be ordered
to release applicant’s Certificate of Registration and that the department
should be ordered to desist from acting on behalf of Kgosi Nyalala Pilane
in sabotaging the activities of the applicant and that any move undertaken
by the respondents which was aimed at discrediting the applicant and
aimed at electing a separate CPA be declared to be unlawful and illegal.
15.
The orders sought by the applicants in the Land Claims Court were
ultimately amended on 12 July 2012 to the following:
“1.1.
An order declaring that the Bakgatla-Ba-Kgafela Communal Property
Association is a duly registered Communal Property Association in
terms of section 8 of the Communal Property Associations Act, No. 28
of 1996; alternatively
1.2.
An order directing the 13th respondent (Registration Officer of
Communal Property Associations) to register the Bakgatla-Ba-Kgafela
Communal Property Association: CPA/07/2032/A as such in the
manner prescribed by Act 28 of 1996;
1.3.
An order directing the 13th respondent to issue a certificate of
registration as envisaged by section 8(3) of the abovementioned Act
to the applicant.”
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16.
This is in essence entailed that the relief so sought presupposed that the
applicant CPA was permanently registered as so contemplated in terms of
section 8 of the Act alternatively seeking an order directing the Registration
Officer to register it as such having complied with requirements for such
registration and issue a registration certificate to such effect.
17.
The matter served before Acting Justice Loots on an urgent basis who
eventually referred it to the hearing of oral evidence and on specified and
identified factual issues, being:
17.1. Whether the Bakgatla-Ba-Kgafela Communal Property Association
(“the applicant”) is an association that was established by a
community as envisaged in the definition of “community” in the
Communal Property Association Act, No. 28 of 1996, (“the Act”);
17.2. Whether the Act is applicable to the applicant in terms of section
2(1) thereof;
17.3. Whether the applicant was entitled to be registered as an
association by the Registration Officer of Communal Property
Associations in terms of the Act;
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17.4. Whether the applicant has in fact been registered by the
Registration Officer of Communal Property Associations as an
association in terms of the Act; and
17.5. Whether any land has been registered in the name of the applicant
following a successful land claim by the applicant.
18.
On or about 6 March 2013, the matter served before Justice Matojane
where evidence on behalf of the applicant and the department was led by
various witnesses and after having reserved judgment, Justice Matojane
handed down his judgment on 14 June 2013, a copy of which is annexed
to the founding affidavit as Annexure “A”.
19.
The first and second respondents dispute certain factual findings by
Justice Matojane sitting in the Land Claims Court, which factual findings
are dealt with below.
Applicant’s locus standi
20.
The first and second respondents submit that Justice Matojane erred in
failing to dismiss the application on the basis that the applicant had no
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locus standi in that its lifespan had expired on 9 September 2008, following
its registration (for a period of 12 months) as a Provisional Communal
Property Association on 10 September 2009 in terms of section 5 of the
Act.
21.
The lifespan of the applicant’s period was not extended by the DirectorGeneral as envisaged in section 5(4)(a) of the Act and no steps were ever
taken by either the applicant’s representatives or the Department to ensure
that the applicant meet the requirements of sec. 8 of the Act, entailing that
upon the expiration of the 12 months period, the provisional CPA ceased
to exist in law and in fact.
22.
The finding by Justice Matojane to the effect that a Provisional Communal
Property Association does not cease to exist after 12 months and only
loses the right to use the rights in land it acquired. This is captured in
paragraph 21 of the Judgment to the following effect:
“[21] It is clear that a Provisional Communal Property Association
does not cease to exist after 12 months. It only loses the right
to use the rights in land it acquired if it is not registered in
terms of the Act within the stipulated period. The applicant
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remains a juristic person and has only lost the right to occupy
and use the land as a registered owner.”
Registration of the applicant as a permanent CPA
23.
Justice Matojane factually erred in finding as per paragraph 36 of the
Judgment that the Department “was aware and accepted that the Applicant
had been registered in terms of section 8 of the Act” (as a permanent CPA)
placing reliance on the following documentary evidence:
23.1. The annual report for the 2009/2010 financial year that was
submitted to Parliament by the Department indicating that the
applicant was permanently registered; 5
23.2. The fact that the Register of Communal Property Associations which
was produced in court initially indicated that the applicant was
registered as a permanent CPA but was amended by the deletion of
the “A” and the substitution thereof with a “P” to indicate that it was a
Provisional CPA. The court found that there was no evidence
5
Judgment of Matojane J para 36
12
presented which suggested that the amendment so effected was
done in a formal and authorised manner; 6
23.3. The fact that the Department directed a letter dated 20 April 2011 to
the Chairman of the applicant admitting that the term of office of the
committee elected in 2007 had expired and fresh elections must be
held, stating that it would not have been necessary to call for fresh
elections if indeed the applicant was provisionally registered;
7
23.4. That Gumbi, who acted for the Department, conceded that certain
documents created an impression that final registration might have
taken place; 8 and
23.5. That Ms Mongae, the Department’s North Provincial Chief Director
certified that all requirements for final registration had been met.
24.
9
The above factual findings were made by Matojane J in the Land Claims
Court in total disregard or ignorance of the uncontradicted evidence of Mr
6
Op cit para 36
7
Op cit para 36
8
Judgment of Matojane J para 36
9
Op cit para 36
13
Jeff Sebape, who testified on behalf of the Department, to the following
effect:
24.1. He never registered the applicant as a permanent CPA in terms of
section 8 of the Act;
24.2. The applicant never submitted a verified list of beneficiaries to the
Director-General or Minister for approval;
24.3 There was no constitution which encapsulated the principles
contained in section 9 of the Act which was adopted by the
community; and
24.4. The concession by Moyo following the meeting with the Minister,
that it was agreed that a provisional CPA was to be registered and
same was so registered on 10 September 2007.
25.
The finding in paragraph 31 of the Judgment that the Provincial Chief
Director of the Department:
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“recommended to the Director-General that the Association be
registered in terms of section 8(3) of the “ and that
“the
Director-General
approved
the
recommendation
on
10
September 2007”
26.
The finding in paragraph 33 of the Judgment that :
“Sebape was satisfied himself that there had been due compliance
with section 8(2)(a) to (f) of the Act.”
27.
The finding in paragraph 33 of the Judgment to the effect that:
“Consequently, the application (sic) [association] that qualified for
registration was, in my view, never registered.”
28.
The finding in paragraph 34 of the Judgment to the effect that:
“Mr Sebape failed to comply with his own instruction and registered
the association provisionally instead on instructions from the
Minister.”
As well as following:
“the Act does not give the Minister nor the stakeholder any power to
set aside a recommendation by the Director-General.”
29.
The finding in paragraph 35 of the Judgment that:
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“Mr Sebape for his part could not give a satisfactory explanation why
he has failed to comply with his own instruction.”
30.
Justice Matojane’s finding in paragraph 38 of the Judgment to the following
effect:
“The dispute in this matter is whether the newly restored land should
be controlled and administered by a traditional authority or by a
democratically elected Association” as well as the following:
“The evidence of Mr Peter and the Mokonyane report shows
that the traditional authority took part in a transparent and
democratic process that led to the eventual adoption of a
Constitution
and
election
of
a
Communal
Property
Association.”
coupled with the following finding:
“the
majority decision
of
the
Bakgatla-Ba-Kfafela
traditional
community is that a Communal Property Association is a preferred
legal entity to own the land.”
31.
Justice Matojane’s finding in paragraph 40 of the Judgment to the effect:
“All the requirements for the registration of a prominent association
have been met.”
16
The role of the Minister
32
Justice Matojane’s finding that “the Minister has no role to play in the
registration process.” 10
33
In making such finding the Court disregarded or ignored the elaborate
provisions of section 5(5) read with section 5(4) of the Act, in respect of the
role and responsibilities entrusted on the Minister pertaining to the
approval by the Minister of a draft constitution prepared by the DirectorGeneral in instances where a provisional association has failed within the
12 months period, to adopt a constitution and the power granted to the
Minister to cause the registration of a provisional CPA to be registered as
an association.
The Supreme Court of Appeal
34.
The first and second respondents support all factual findings and
conclusions of the Supreme Court of Appeal and the judgment and order
granted by the said court.
10
Judgment of Matojane J para 34
17
35.
It is submitted that the SCA correctly analysed and identified the factual
issues at hand for determination and applied the provisions of section 5(4)
of the Act in accordance with the established facts as contained in the
affidavits filed of record and the evidence led by various witnesses on
behalf of the applicant and the Department.
DATED AT JOHANNESBURG ON THIS THE 21st DAY OF APRIL 2015.
______________________________________
MOTHULOE ATTORNEYS, NOTARIES &
CONVEYANCERS
First and Second Respondents ‘Attorneys
No. 20A St John Road
Houghton Estate
JOHANNESBURG
Tel: (011) 487 1246
Fax: (011) 487 1256
Ref: WTMCPA/01BBK/CCT231/14
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