A number of villages forming the Bafokeng ‘tribe’ opposes the chief’s claim and contend that the land he claims, should instead be registered in the individual communities’ names, and not the Royal Bafokeng Nation’s. The case is exactly the same as the one contested in 1907 by the Photsaneng and Thekwana communities against the then Bafokeng chief August Molotlegi Mokgatle and the Minister of Native Affairs at the then Transvaal High Court.
The communities submit in their interlocutory case at Mafikeng that the chief was not properly authorised to lodge the land claim in the first place; that the Bafokeng Supreme Council did not have those powers to authorise the chief to lodge the said land claim; and that the chief did not consult with them contrary to his commitment and resolution made at the Kgotha kgothe meeting of 29 July 2006.
The communities contend that the decision of the Supreme Council, a controversial Bafokeng governance structure which the chief claims authorised him to lodge the land claim, is in fact lower in status to the Kgotha kgothe (itself a controversial structure), and was as such overruled by the decision of the latter superior structure.
In the last Court hearing held in October 2013, Judge Landman questioned the legislative status of the said Bafokeng Supreme Council. The argument in essence is that the Bafokeng could create as many political structures as it deems, but the only governing structure empowered by national and provincial legislation to make decisions for and in all traditional communities (formerly referred to as tribes), is the Traditional Council (an electoral traditional structure established along democratic principles), and not the so called Supreme Council or Kgotha kgothe. The legal or Constitutional question the chief is probably seeking to test is the status and powers of the deemed traditional structures like the Kgotha kgothe vis-a-vis that of the statutory Traditional Council.
‘The chief is simply being difficult and wasteful. It is a wild gamble to exploit the communities and use our platinum-rich land to test the Constitution. It is a concern to us, as responsible citizens of this country, as to how much public monies he will commit or already wasted on legal fees, without reprimand, in ‘his’ expeditious case he knows is devoid of truth. I believe it will be honourable and in his best interest that he resigns as a failed Bafokeng chief, and avoid the embarrassment of losing this case and plunging the ‘tribe’ further into wilderness. With this kind of attitude, he will certainly do better in the corporate world as a businessman together with his likes, bo-Ramaphosa and them, ‘ cautions Thusi Rapoo.
‘Go lebeletswe gore o tla tsena lepokising la tsheko ngwaga o tlang ka Tlhakole. O tla tsatsankwa ka dipotso go itlhalosa gore o neilwe ke bomang tetla ya go leka go tsaa mafatshe a batho’, he said. ( It is expected that the chief will be called into a witness box next year February where he will face questions to explain himself as to who gave him permission for his attempt to grab communities’ land).