Are the North West Courts failing rural traditional communities

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Bafokeng Land Buyers’ Association (‘BLBA’) is once again not shocked by the judgment of Leeuw JP at the North West High Court which found that the Royal Bafokeng Nation (‘RBN’) was justified to evict Tsitsing community from their allocated residential stands despite following community’s customary due processes.

The dispute concerned an issue already before the same Court in case 999/08 between the parties, in which the community, a section of the tribe, assert that the power to allocate residential stands to members of the community has always, rested with the community and not with the tribal authority.

What is more interesting is that Judge President Leeuw was very adamant during trial that the RBN rule nisi application to evict community members would either be dismissed or referred to trial, in favour of the aggrieved Tsitsing community.

Many rural communities under traditional leadership in the North West Province, particularly those from the mineral-rich Bojanala District have long lost faith in the North West courts.

The communities suspect rampant, high-level manipulation of the Courts in the Province, done to protect political hegemony in favour of disputed traditional leadership. The Courts are enjoined by the Constitution to facilitate speedy resolution of disputes; to come to the assistance of the poor; and to create customary law where current practices are inadequate and or violate the Constitution.

Bapo-ba-Mogale communities have been involved in numerous longstanding court challenges against government and mining companies operating on their land. The Public Protector recently found that the community’s D-Account, in which mining royalties have been paid, has for years been mismanaged by the Provincial government. The decade-long traditional leadership claim and dispute remain unresolved with no concerted effort to facilitate its speedy adjudication.

Bafokeng communities have accused the local Magistrates courts for failing to take a stance with the communities, to promote communities’ right to protest and to hold their traditional leadership accountable.

BLBA will on the 08th September 2017, make presentations at the NW Appeal court against the interlocutory judgment by Landman J in their ongoing case 999/08 against the RBN, in which the judge held that the Bafokeng chief has a prerogative to, or not to consult with his people on matters of public importance.

Bakgatla-ba-Kgafela communities have in the past complained about a number of judgments meted out by the North West High Court, accusing the Court of protecting the Bakgatla chieftaincy. In one case, the Judge, in passing her judgment, erroneously relied on CLARA, a piece of legislation which was at the time already declared unconstitutional by the Constitutional Court.

The Chief Justice Mogoeng Mogoeng has his own experience as a former Judge at the North West High Court, of cases brought by aggrieved traditional communities in the Province. Interestingly in his dissenting judgment in the 2013 Constitutional case of Pilane and another v Pilane and another, Chief Justice rebuked sections of a tribe that sought cessation from their tribal authorities alleged to be corrupt and unaccountable.

Communities assert they still have faith in the eleven Judges at the Constitutional Court despite the Chief Justice stance in favour of disputed tribal authorities. The poor rural communities feel they are failed by the justice system when their pressing constitutional disputes are not given direct access to the Constitutional court for speedy adjudication. They feel that the South African legal system is costly, dilatory, and weighs heavily against them in favour of their mighty and protected traditional leadership structures.

The community of Tsitsing, whose matter was essentially about an issue already before the same Court between the parties in the abovementioned case 999/08, submitted on the 29 June 2017 at trial that they would challenge an unfavourable finding at the Constitutional Court.

See Judgment – RBN v Tsitsing Community

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