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.
Traditional Council Elections are statutory prescriptions regulated by legislation and conducted by accredited institutions.
Today’s RBN aborted elections were never published in the provincial gazette as required. The North West Provincial Department of Culture, Arts & Traditional Affairs, under whose competency and watch the election of Traditional Councils in the Province is entrusted, was probably unaware, or less interested.
It is indeed mind-boggling that RBN has never had duly conducted Traditional Council Elections since time immemorial.
Today’s aborted elections most probably cost poor Bafokeng citizens a couple of millions, money that could have been used towards upgrading dilapidated schools in the area.
Some company was appointed through the RBN tender system to conduct elections. How much was spent on the voting publication; voter registration; voter education; voting station preparation; voting monitors; ballot printing; security; can only be anyone’s guess.
Its unfortunate that Bafokeng Bantustan is somehow immune from Public Finance checks and balances. There is rampant wastage of public funds, usually followed by retrenchments and claims that the ‘tribe’ has no money.
This coming Thursday 29 June, there will be another unnecessary and wasteful case at the North West High Court endorsed by the Bafokeng chief in which the RBN seeks ownership and control of some platinum rich communal land already claimed by communities.
Should the Public Protector institute a Commission of Inquiry to investigate mismanagement of public funds, or will that be just another wasteful exercise?
See interesting Provincial tender:
Bid Number: RFP-CATA002/2017
Bid Description: Request for Proposal for the Appointment of a Service Provider with Electoral Expertise to Manage the Reconstitution of Traditional Councils
Name of Institution: Department of Culture, Arts & Traditional Affairs
Place where goods, works or services are required: North West Province
Date Published: 14/06/2017
Closing Date 30/06/2017 Time: 11H00
Contact Person: Nobandile Madwanya
Telephone number: 018 388 3753
FAX Number: 086 263 4489
Bafokeng Land Buyers’ Association, in collaboration with Robega Crisis Committee and Matseta-a-Robega commemorated June 16 public holiday by holding a peaceful march demonstration at Robega village just outside Sun City.
The aim of the march demonstration was to raise awareness about human rights issues affecting the youth in mine-hosting communities.
Robega Village, home to about 20 000 residents, is surrounded by Bafokeng Rasimone Mines; RBPlats and Bakubung Platinum mine shafts.
The host village, resident on the farm Boschkoppie 104JQ, has in the past ten years experienced a huge influx of migrant mine-labour due to mining developments in the area.
Mining developments have brought about increased community demands for social services including housing. Young, poverty stricken people are also prone to sacrificing their schooling and education to find employment in the mines.
The march demonstration proceeded to Robega Community Hall, where a community meeting was held to address topical issues affecting the community.
It emerged from the meeting that the Royal Bafokeng Nation (‘RBN’) has been trying to wrest ownership and control of the Trust Land, said Boschkoppie 104JQ for some time and without success. Trust lands under the administration of the RBN including Tlapa, Tantanana, Maile and Robega refused in around 1996 to subscribe to the RBN chieftaincy. The communities are governed and administered by statutory Village Councils elected to office every five years. The RBN has for some time sought to impose itself over the communities by imposing headmen over the communities. This unwarranted action by the RBN is now before the North West High Court. The RBN approached the Court, much to the chagrin of the community and the BLBA, to have the farmland transferred and registered under its name.
Youth and parents were advised that ownership of land supersedes employment offers by the mines. And that it was important for parents not to be bribed and fall prey to employment opportunities brought about by mining, often done at huge cost to human rights and sustainable livelihoods.
Communities vowed to attend the North West High Court on the 29 June 2017 to go and defend their land against the RBN. They accuse the RBN and the Bafokeng chief as mere fronts and representatives of the brutal, exploitative mining complex in the area.
Visit:Evictions – Robega Community vs Royal Bafokeng Nation for an update on the case.