Adverse judgment against Bafokeng communities not surprising

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Judgment in the interlocutory matter between Bafokeng communities, represented by the Bafokeng Land Buyers’ Association (‘BLBA’), and Royal Bafokeng Nation (‘RBN’) was handed down late today at the North West High Court in Mafikeng.

In around 2008 the Bafokeng chief lodged an application with the Court to have some 61 farms registered in RBN names. BLBA opposed the application and claimed the chief did not consult with them and was not properly authorised to lodge a claim for the farms. The Court in December 2013 then ordered the chief to proof in this interlocutory matter that he was properly authorised. The matter was heard at Mogwase Magistrates Court in February 2016

The judgment which came out in favour of the RBN, ordered that the Bafokeng lawyers were properly authorised to lodge the claim in 2008. Judge Landman also found that:

(1) according to untested Bafokeng customs, the chief need not consult when taking a decision of public importance;

(2) the Bafokeng Supreme Council decision or resolution taken in 2005 authorising the chief to lodge the land claim was in fact taken by a statutory body, the Bafokeng Executive Council, and not the Supreme Council;

(3) the Supreme Council does not have such powers to institute litigation;

(4) in taking a decision to litigate, the Executive Council should form a quorum; and

(5) that when communities objected in 2006 kgotha-kgothe meetings against change of ownership and registration of their claimed farms in the name of RBN, such remonstrations did not imply rescission of the said resolution, nor was it a directive to the chief to withdraw the resolution.

Judge Landman further found that the Supreme Council did not consult with the communities before taking the said 2005 resolution. He however did not accept RBN’s contention that consultation with communities was only necessary when there was alienation of Bafokeng land. It is not clear if the Judge meant that the RBN therefore ought to have consulted.

The Judge found that despite the Executive Council’s need to meet the required quorum to pass a decision, that this point was never initially raised by LRC clients (BLBA, Thekwana Community and Setuke Family).

In conclusion, the learned Judge was satisfied that RBN lawyers proved their authority, and ordered each party to pay its own costs. He said the RBN is well resourced and that it would not be justifiable to order costs against the very same communities who form the RBN.

BLBA say they are not surprised by the judgment. But that they will weigh options at their next general meeting at Tsitsing Primary School on the 16th June. The Association has an option to either appeal the judgment, or to face the main case.

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