Judgment reserved: Royal Bafokeng Supreme Council bogus status and its failure to consult communities
The full bench at the North West High Court, Mafikeng reserved judgment today in a matter between Bafokeng communities and the so called Royal Bafokeng Nation (‘RBN’).
Senior Counsel for the RBN, Adv Mark Antrobus, struggled to convince the Court that the Royal Bafokeng Supreme Council had the power on the 22 September 2005 to authorise litigation in which the RBN sought some 61 farms transferred and registered in RBN names. The farms are currently registered in the name of the Minister for Rural Development and Land Reform in trust for the ‘Bafokeng’ chief and his ‘tribe’. Many of these farms are claimed by the individual communities as theirs, and not the RBN’s.
Antrobus opened his account at the hearing by insisting that the crux of the dispute lie in customary law, not statutory law. That the impugned decision of 22 September 2005, was taken in terms of Bafokeng customs, and therefore that the Court ought to determine the matter in terms of Bafokeng customary law.
The latter submission unfortunately for Antrobus self-contradicts RBN earlier submission that the chief did not have to consult, as required in terms of Bafokeng custom. The chief had also taken a rigid adversarial direct litigation decision and approach in lodging a Court claim for the said farms, abrogating customary practice. It is interesting that Antrobus submits now that the decision was taken in terms of customary law or practice.
At trial, RBN expert witness, Mr Rapetsana, submitted that the Supreme Council power lie in the fact that the Supreme Council had a practice of taking decisions. He did not say that such power is found or established in the Supreme Council Constitution, which did not exist, or any other law. But that they possess the power since they have always been taking decisions. In trying to defend or clarify this absurd reasoning, Antrobus said Rapetsana did not understand himself as he battled with the english language.
Antrobus asserted that about 72 representatives of various Makgotla (village councils) who constituted the Supreme Council were, as representatives, inherently empowered or authorised to take decisions on behalf of their Makgotla constituencies without further consultations with them.
The three Judges were at pains further to understand Antrobus line of reasoning in asserting that the Supreme Council did not have to consult their constituent communities when they took a decision on the 22 September 2005 to launch the impugned application with the Court for the said transfer and registration of the 61 farms in RBN’s names.
He submitted further that in taking such decisions, the Supreme Council did not have to form a quorum because in terms of Bafokeng customs, it is not a requirement to have quorums in traditional meetings.
Senior Council Adv Geoff Budlender of the Legal Resources Centre on behalf of the communities, rubbished Antrobus submission. What Antrobus proposes is that, for lack of a quorum requirement in terms of the alleged Bafokeng customs, one member of the Supreme Council could take a decision for the other 71 Dikgosana in their absence.
Budlender indicated that Judge Landman had already found, against the RBN, that the Supreme Council did not have such powers to take such a decision. The Judge however, erroneously held instead that the decision was in fact taken by the statutory Traditional/Executive Council in a joint sitting with the Council of Dikgosana, the two structures together forming the Supreme Council.
There was no basis for this finding as (1) it was never the RBN case that the decision was taken by the statutory Traditional/Executive Council, and (2) the Judge himself could not have established, without the attendance register, which (number of) members of the statutory Traditional/Executive Council had taken the decision. RBN failed to produce the attendance register at trial.
In a nutshell, according to both Landman and RBN, the decision was taken by one or both of the structures, and none of which quorated.
It is Budlender’s submission that the decision was invalid, null and void, and the main application therefore stands to be dismissed due to the chief’s lack of proper authorisation and standi.
As the Court reserved Judgment, the communities are adamant that the chief is simply wasting tribal monies with the case and the lawyers.