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.
Writes Thusi Rapoo
The first time I met Advocate Rudolph Jansen was in a meeting with the Department of Land Reform and Rural Development to consider a settlement agreement about the Klipfontein 300JQ (Bleskop) land claim back in 2008. Present in the meeting was the late Durkje Guilfillen, Louise du Plessis, Rudolph and a few community representatives.
Adv Jansen had just made a very impressive intervention with the Richtersveld Community representatives, demanding ring-fenced opportunities for the community in the local mines operating in the community’s land. The elders and land claimant had just settled with Government for the restoration of the land without consideration of participation in the local mining industry..
We were very very excited to have made the acquaintance of Rudolph at the meeting. We knew then that we were in good hands.
Klipfontein 300JQ, a farm bought and occupied by the Photsaneng community was forcefully incorporated into the Bafokeng chieftaincy in around 1907.
Many native Tswana communities who had settled in the Rustenburg area prior to the arrival of the Boer Voortrekkers, were so later forced to subscribe to the Boer imposed Bafokeng chieftaincy, under the then leadership of a certain ‘chief’ Mokgatle.
Rudolph understood and so much wanted to correct the distortion around the Bafokeng land ownership and disputes.
He was very much aware that the Bafokeng ‘tribe’ was the convenient creation of the then British Dutch colonial apartheid regimes.
He was against abuse of power, maladministration and false misrepresentation by the colonial apartheid despot, the Bafokeng chief.
He understood that the Bafokeng chief, in the 21st Century, was no different from Mobutu sese Seko, just another captured African chief willing to sell out his ‘tribe’ to his captors.
Long live the patriotic loving spirit of Adv Rudolph Jansen.
Bafokeng communities hold strong views that the Royal Bafokeng Nation (‘ RBN’) is engaging covert legal strategies to quash their ill-conceived Case 999/08 at the North West High Court, Mafikeng.
On the 08th September 2017, the appeal hearing launched by the Bafokeng Land Buyers’ Association (‘BLBA’) against judgment and order of Landman J was postponed to the 08th December 2017, buying RBN more time to file their late opposing heads of argument.
The communities view the postponement as mere delaying tactic by the RBN to allow them time to continue their underhand strategy to render the issues raised by communities in that case moot. The RBN has failed to answer the issues in that case and now wants ‘a second bite at the cherry’.
One such issue which RBN failed to answer in that case, and which RBN now seeks to dispose in a parallel legal process relates to the question of who really has the power in terms of Bafokeng traditions and customs to allocate residential stands to members of the community. The communities contend that it is them who are the real owners of the land on which they are settled; that it is them, not the RBN, that bought the land; and on that basis further, that it is them through village councils, not the RBN, who have always exercised powers to allocate land to their constituent members.
In Case M420/16 initiated by RBN at the same court, the RBN evicted Tsitsing community members from residential stands duly allocated to them by their village council. Judge President Leeuw, despite finding during trial hearing that RBN was at fault and without legal basis to evict community members, shockingly held otherwise in her subsequent judgment and ordered the community members to pay legal costs. Her judgment suggest that village councils do not have powers to allocate residential stands. She finds in this case that Tsitsing community does not have a recognised village council. Tsitsing community finds the judgment appalling and has since lodged an appeal.
It has come to the attention of BLBA that RBN hatched a clandestine proposal to the Rustenburg Local Municipality to the effect the RLM should delegate some of its statutory powers to the RBN. RBN seek authorisation to collect fees for services rendered within the Bafokeng communities.
For various reasons, Bafokeng communities are opposed to such authorisation. Communities claim in their case 999/08 that RBN is unaccountable and corrupt. Communities claim that any negotiations affecting them and their ancestral land should be done directly with them and not through the despotic RBN.
BLBA intends to petition the RLM to put halt to RBN proposal until such time that issues in case 999/08 are resolved; or until a temporary land administration arrangement with affected claimant communities is put in place pending finalisation of the case.
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.
Ownership of the land which the Royal Bafokeng Nation (‘RBN’) claim is theirs, and on which over 20% of world platinum is produced, is now before the Appeal Court at the North West High Court, Mafikeng.
The three appeal court Judges will on the 08th September 2017, hear an interlocutory appeal by the Bafokeng Land Buyers’ Association, Setuke Family and Thekwana Community on whether the Bafokeng chief had, without consulting affected Bafokeng communities, the prerogative to lodge an application with the Court to have some 61 platinum-rich farms around Rustenburg transferred and registered in RBN name.
Due to some colonial-apartheid laws, the farms are still registered in the name of the Minister of Rural Development and Land Reform in trust for ‘the Bafokeng’ and its chief.
In the main Case 999/08 lodged at the same Court, the appellants claim they bought the land individually and independently of the ‘tribe’, but that they were subsequently forced by apartheid colonial governments to subject themselves to a ‘Bafokeng chiefdom’ led by a certain (‘chief’) Mokgatle.
The appellants essentially claim that, during the late 19th century, the apartheid colonial governments were less interested in establishing how African tribes or communities were composed.
The appellants assert that the apartheid colonial governments were deliberately divisive, and that had they done their research, they would have found that many communities purported to be sections of the Bafokeng ‘tribe’, were in fact of different ethnic origin; had their own lands, chiefs and totems; and practiced different customs separate from that of the ‘Bafokeng chiefdom’. The latter ‘chiefdom’, a poor small clan of Sotho origin at the time, was later elevated and ordained a ‘chiefdom’ by colonial apartheid governments, to rule over other settled African communities in the area. The ‘chiefdom’ was also strategic to the Boer-British colonial apartheid government to exercise indirect control and administration over all those other settled communities in the area.
The Bafokeng chief Leruo Molotlegi, without notifying the ‘tribe’ and the appellant communities, approached the Mafikeng High Court in 2008, to have the said farmlands transferred and registered in RBN name. The farmlands, if so transferred and registered, would ostensibly be under the chief’s unfettered control.
In his analysis of evidence submitted at the trial court, Judge Landman found that the chief ought to have consulted communities for a mandate to lodge the said court application. Having found the chief’s obligation to consult, Judge Landman then somersaulted in his ruling and held that the chief had a prerogative not to consult.
The RBN also, having conceded at trial that they did not consult the ‘tribe’, self-contradicted themselves, claiming to have consulted the ‘tribe’ through their disputed, so-called Supreme Council. It is at this pseudo, non-statutory Council where the chief also claims he consulted and was properly authorised.
Judge Landman further found and held that the said disputed Council, allegedly constituted by some elected councillors and headmen claiming to represent a number of villages forming the Bafokeng ‘tribe’, had no powers to give the chief said authorization or mandate. And that such power would ordinarily lie with the statutory Traditional Council.
The appellants are represented by the Legal Resources Centre.