Bafokeng Land Buyers Association and Others v Royal Bafokeng Nation and Others (CIV APP 3/17) [2018] ZANWHC 5; [2018] 3 All SA 92 (NWM); 2018 (5) SA 566 (NWM) (9 March 2018)

"IN THE HIGH COURT OF SOUTH AFRICA"

NORTH WEST DIVISION, MAHIKENG

CASE NO: CIV APP 3/17

In the matter between:

BAFOKENG LAND BUYERS ASSOCIATION First Appellant

SETUKE FAMILY Second Appellant

THEKWANA COMMUNITY Third Appellant

and

THE ROYAL BAFOKENG NATION First

Respondent

MINISTER OF LAND AFFAIRS Second

Respondent

REGISTRAR OF DEEDS Third

Respondent

MOGONO COMMUNITY Fourth

Respondent

CHANENG COMMUNITY Fifth

Respondent

KHUNOU FAMILY Sixth

Respondent

MOTEPE FAMILY Seventh

Respondent

RANTSHABO FAMILY Eighth

Respondent

TSITSING COMMUNITY Ninth

Respondent

MAKGATLHA FAMILY Tenth

Respondent

BAPHIRING COMMUNITY Eleventh

Respondent

MOKGATLE FAMILY Twelfth

Respondent

MPUTLE FAMILY Thirteenth

Respondent

COMMISSIONER FOR RESTITUTION OF LAND

RIGHTS: NORTH WEST REGION Fourteenth

Respondent

CIVIL APPEAL JUDGMENT

GUTTA J.

A. INTRODUCTION

[1] The Royal Bafokeng Nation (RBN), the applicant in the main application and the first respondent in the appeal alleged in the

main application that the institution of the application was authorized by the Supreme Council by a resolution adopted unanimously

at a meeting on 22 September 2005. The Supreme Council authorized Fasken Martineau to act on behalf of the RBN. The appellant challenged the said authority in the Rule 7 application.

[2] This appeal is against Landman J's finding in the Rule 7 application that RBN's attorney Fasken Martineau had satisfied the Court that they have authority to act on behalf of the RBN in the main application. There is also a cross appeal by the RBN against the

decision of the Court a quo to allow the affidavit of Professor Gulbrandsen to be tendered into evidence.

B. BACKGROUND FACTS

[3] The RBN is a tribal community of approximately 300 000 people, a universitas personarum and a traditional community recognized in terms of Section 28(3) of the Traditional Leadership and Governance Framework Act 41 of 2003.

[4] In the main application, the RBN applied against the Minister of Land Affairs (Minister) for inter alia, an order declaring that the Bafokeng tribe is the registered owner of the land (over 60 properties) held by the Minister in terms of title deeds in Trust for the tribe. The RBN sought an order directing the Registrar to take the necessary steps to endorse the title deeds to reflect the RBN as the owner of the land.

[5] The RBN allege that the main application was necessary because the title deed of each of the over 60 properties reflects that the

land is registered in the name of the Minister "in trust for" or "in bewaring voor" the RBN. The Minister's view was that, having regard to the wording of the title deeds, he held the properties as trustee for the RBN. There is no written trust instrument in respect of any of the properties. The RBN, on the other hand, disputes that the Minister holds the properties in Trust for it and does not accept that there is a true Trust in relation to the properties or that the Minister is in fact and in law a trustee.

[6] The appellants are members of the RBN who claim that many of the properties were kept in Trust for their ancestors and for them and not for the RBN. The appellants were not initially cited in the main application. The Minister initially opposed the main application

but in October 2009 she withdrew her opposition on the basis that the RBN issue a rule nisi order giving notice of the main application and calling on interested parties to intervene. The appellants applied for leave to intervene in the main application, which application was not opposed. In light of the aforesaid factual dispute the RBN applied to refer the main application to trial. The High Court granted this relief in December 2013 and ordered that in the event the Court decides that the main application was duly authorized, then the notice of motion in the main application stands as a simple summons.

[7] The issue of authorization was raised by the first appellant in the answering affidavit where the depondent, Onthusitse Rapoo(Rapoo) alleged that the Supreme Council, which had taken the decision by resolution to launch the main application "does not have the power to make a decision of this sort, at least alone. Insofar as the Council does have decision-making powers on such matters, it has to consult very broadly within the traditional community before doing so, and act on the community's wishes". Rapoo alleged further that the decision to launch the main application had not been preceded by such consultations and that, given this fact, the decision was not properly taken. Rapoo raised a second objection to the decision to institute proceedings, namely

that "even if the Supreme Council ... did have the power to make a decision of this sort, the decision was overturned by subsequent events", namely an agreement to consult further concluded at a general meeting of the RBN, a Kgotha Kgothe held on 29 July 2006.

[8] Pursuant thereto the appellants applied for leave to bring a challenge to the RBN's authority under Rule 7 of the Uniform Rules of

Court to the RBN's authority to launch the main application. The appellants also applied that the challenge to authority be dealt with through oral evidence.

[9] The Court a quo referred the issue of authorization for oral evidence, which was limited to three specific questions, namely:-

a) First question: "Did the Supreme Council of the RBN take a decision to authorise the bringing of this application on 22 September 2005?"

b) Second question: "Does the Supreme Council have the power to take such decision under customary law, and if so, is it necessary for it to consult broadly within the traditional community before taking such a decision?"

c) Third question: "Was any such decision overturned or reversed by subsequent events, and more particularly by the Kgotha Kgothe meetings of the traditional community held in 2006?"

[10] In so far as the first question is concerned, it is not disputed that the Supreme Council on 22 September 2005 resolved to take certain decisions, including the decision to litigate and institute the main application. The second question, namely whether the Superior Council had the power to authorise the bringing of the main application (the impugned decision) and whether the decision was taken in accordance with the requirements of customary law is the most contentious and is considered hereinbelow. In relation to the second question, for the RBN to succeed, the Court a quo had to find that:

a) the Supreme Council had the power to take a resolution to institute litigation of this sort; and

b) the Supreme Council had no duty to consult broadly with the Morale (the entire Community) on the decision to litigate. These issues are considered seriatim hereinbelow.

Did the Supreme Council have the power to take the impugned resolution under customary law

[11] To answer this question it is important to have regard to the legislative framework governing traditional leadership, the evidence

led regarding the RBN's actual practice and in respect of the nature and function of the representative structures that exist within the RBN, namely the Supreme Council, the Kgotha Kgothe and the Kgotla's in each ward.

[12] At the hearing of oral evidence in the Rule 7 application, the RBN led the evidence of two witnesses, and the appellants led the evidence of one witness. The witnesses for the RBN and the appellants were as follows:

12.1 RBN - Joseph Rapetsane(Rapetsana), the Kgosana for Rama/Lemenong since (1982)

12.2 RBN - Modisaotsile Mokate(Mokate), the Kgosana for Masweung since 2009 and the RBN, Executive for Land Affairs since August 2010

12.3 Appellant - Basho Mputle(Mputle), a resident of Mogono Village

12.4 Appellant - The opinion evidence of Professor Gulbrandsen(Gulbrandsen) on affidavit.

[13] The evidence tendered regarding the nature and function of the representative structures within the RBN is briefly summarized as follows:

13.1 The Supreme Council is a joint sitting of the Executive Council (the statutory traditional council) and the Council of Dikgosana. II has been in existence since at least the early 1980s when it was known as Kgoro ya Morafe. It generally meets four times a year, although it may meet more frequently if there is urgent business to attend to. Rapetsane testified that the Supreme Council is a decision-making body of the RBN and has historically taken important decisions relating to the RBN. Examples of such decisions are;

a) a decision in 2003 to purchase chrome reserves from Samancor;

b) a decision in February 2004 to create the RBN Development Trust and a consequent decision in November 2005 to place RBN assets in the form of shares and cash into the Trust;

c) a decision in August 2007 to allocate R80 million for the upgrading of the Royal Bafokeng Sports Palace;

d) a decision in April 2012 to purchase twenty-four farms known as the Swarlruggens farms for the amount of R55 million;

e) The Supreme Council also habitually authorizes the institution of litigation.

13.2 The Kgotha Kgothe is the general meeting of the RBN's members. It usually takes place twice a year, although it may be convened more frequently than this if the need arises (as was the case in 2006 when four meetings were held). The Kgolha Kgothe is not generally a decision-making body, because it ordinarily only meets twice a year. It is a forum for the members for the RBN to raise issues for discussion and for the RBN administration to report back to members on what activities are being undertaken and what decisions have been made by the Supreme Council. Rapetsana said that the only matters that are required to go to Kgotha Kgothe for decision, and in respect of which the Kgotha Kgothe is the highest decision making body, are those that would result in the RBN land being encumbered.

13.3 The Kgotha Kgothe is a form of direct democracy within the Bafokeng system of governance. The Kgosi has said, in the documentary evidence that, every time there is a major issue that affects the community, he must seek input from the Morafe at the Kgotha Kgothe, and his mandate comes from consulting those present. Rapetsana accepted that all important matters must go to the Kgotha Kgothe for debate and input, and that the people can at that meeting overturn decisions.

13.4 The Makgotla are the foundational building blocks of the Bafokeng governance system. They are the "local level" or village governance structures. There are 29 villages which make up the traditional community, which are divided into 72 Dikgoro (wards). The Dikgoro are led by the hereditary Dikgosana. Each ward also has its own representative structure, the Kgotla, which meets monthly. The Kgotlas have decision making powers in respect of issues that fall within their jurisdiction, such as disputes between residents of the ward. Members may also, at a meeting of the Kgotla, request their Dikgosana to take matters up to the Supreme Council. What has taken place at the Supreme Council is also communicated to members through the Kgotlas.

13.5 The Kgotla is important as a local level governance structure, including for purpose of consultation with the traditional community. The objectives of a Kgotla are generally to provide leadership on issues of a traditional and customary nature: to serve as a communication channel and co-operative partnership between the Council of Dikgosana, the Supreme Council and the Community. The Kgotla plays a central role in governance. A Kgotla must resolve and mediate disputes at Kgotla level.

13.6 Where the Supreme Council has to take a decision that affects the whole community, it must consult with the Makgotla before it takes a decision. The Makgotla holds a central place in the deliberation and decision making within Bafokeng governance. Rapetsana said, democracy works from the Makgotla upwards with the Makgotla being the key parties. Rapetsana testified that each structure has its own sphere of authority. Members participate directly in matters before the Kgotlas and at the Kgotha Kgothe. They are represented by both hereditary and elected members at the Supreme Council. Rapetsana described the Dikgosana as "the ambassadors"

of the members of the ward at the Supreme Council.

13.7 In addition to the aforesaid structures, the day to day administrative decisions are also taken by the Executive of the Royal Bafokeng Administration and the Executive Council, while the RBN's commercial interests are housed in Royal Bafokeng Resources Holdings (Pty) Ltd.

[14] The appellants contend that:

14.1 The Supreme Council does not have a written Constitution and there is no written record of its creation. There is no evidence of the conferral of any power on the Supreme Council by the traditional community, by the Kgosi, or by any other body. The Supreme Council is not a decision making body but is a consultative, information-sharing body between the Executive Council and the Council of Dikgosana.

14.2 Resolutions discovered by the RBN state in their preamble that they are taken "in accordance with the custom of the REN''. The RBN were required to discover "all documents evidencing the custom and/or laws of the REN referred to in the resolutions disclosed in the applicant's discovery affidavit". The RBN were unable to produce any documents reflecting that the Supreme Council had the power that is claimed to take the relevant

resolutions. Rapetsana conceded that in fact the Supreme Council takes very few decisions, and that this is apparent from the minutes

of its meetings that are available. He agreed that the Supreme Council does not take business and commercial decisions. Those decisions are taken by companies such as Royal Bafokeng Holdings. Rapetsana ultimately correctly characterized the Supreme Council as being "mainly a forum for discussion and sharing ir!formation" and to "bring together the Executive Council and the Dikgosana" to "consult and share ir!formation and opinions".

14.3 By contrast, the traditional community as a whole, and its key organs including the Kgosi, confirmed the creation of the Executive

Council in 1997, and the conferral of its powers. The Executive Council is vested with specific powers by its Constitution and by statute. Certain powers are reserved for the Makgotla, which play a certain role in decision making.

14.4 Important matters affecting the community as a whole must and do go to the Kgotha Kgothe, and sovereignty resides with the people.

Decisions concerning the holding of RBN assets are placed before the general meeting for approval.

14.5 Rapetsana asserted that matters are merely reported to the Kgotha Kgothe for information. However, this is contradicted by the Kgosi's statements that the right to do so lies at the heart of Bafokeng governance and also by his own evidence that the Kgotha Kgothe can overturn any decision. The following decision taken by the Kgotha Kgothe further contradicts his evidence:

a) The general meeting adopted the Constitution of the Executive Council in 1997. This signaled an acceptance by the people of the traditional community that central governance would now function through elected representatives. It was a decision to change the

content of custom. It followed on a process of extensive negotiation and discussion.

b) In 2002, the Kgotha Kgothe was asked to approve the structure through which mineral assets would be held, and transfer of mineral assets.

c) In 2006, the Kgotha Kgothe was asked to approve the structure through which the community's assets would be held, and that they could be held in the Development Trust. The Kgotha Kgothe insisted on further consultation, including at the level of the Makgotla, before even the principle of the Trust was approved. Its deliberations resulted in a decision that land (including the land in dispute in these proceedings) would not go into the Development Trust, and a formal vote on proposals relating to the principles of the Trust.

14.6 Rapetsana also asserted that the only reason that matters concerning the disposal of land were referred to the Kgotha Kgothe was because of the state's requirement of tribal consent where the matter affects its trusteeship. But this too is not supported by the evidence, which shows that other important matters are referred to that meeting for approval, and that this occurs as a matter of custom.

14.7 The evidence of Mokate, the RBN's second witness was exclusively about what happened at the 2006 Kgotha Kgothe meetings. Mokate was not a member of the Supreme Council in 2005, He only became involved in its affairs more recently, and has no knowledge of what was happening at that time.

[15] The RBN contends that the Supreme Council had the power to take the Impugned Decision, and to do so in the manner it adopted, because it has previously acted in this manner and it is the general practice and custom of the RBN.

[16] The Court a quo found that the Supreme Council did not have the power to take the Impugned Decision and that the RBN failed to demonstrate that the Supreme Court had that power. It found that such power lies with the Executive Council. That the Executive Council, as the statutory body has the power generally to administer the affairs of the traditional community. Rapetsana confirmed that in September

2005 the Executive Council was composed on the basis of its 1997 Constitution, and was also known as 'the traditional council".

The powers of the Executive Council as determined by its Constitution includes the power to administer the affairs of the traditional

community and the power to prepare and approve budgets. In 2003 Parliament enacted the Traditional Leadership and Governance Framework Act 41 of 2003 ("the Framework Act"). Section 28 of the Act contains transitional provisions. Section 28(4) provides that the established and recognized tribal authorities were deemed to be traditional councils in terms Section 3 of the Act. The Court a quo took the view that because the Executive Council is one of the two bodies that made up the Supreme Council at that time, the decision of the Supreme Council could be regarded as a decision of the Executive Council, taken with the endorsement of the Council of Dikgosana.

[17] The Court a quo's finding is in my view, incorrect both as a matter of law and fact. As a matter of law, the Executive Council cannot and does not function as the Executive Council when its members form part of a meeting of the Supreme Council. The Executive Council is a different body from the Supreme Council. The former is a statutory body, with defined statutory powers and functions. The latter is a body under customary law, with powers and functions defined by customary law. The fact that members of the Executive Council sit on the Supreme Council does not turn a meeting of the Supreme Council into a meeting of the Executive Council. Some of the members of the Supreme Council, meeting as part of the Supreme Council, cannot exercise the powers of the Executive Council. That was in any event not the case made by the RBN whose case was that the Supreme Council made the decision.

[18] As a matter of fact, the evidence demonstrated that the meeting of 22 September 2005 was a meeting of the Supreme Council consisting of members of both Executive Council and the Council of Dikgosana. All members were entitled to participate in the deliberations and to participate in the vote. The proceedings took place not as a meeting of the Executive Council, but as a joint sitting of both bodies. It is common cause that the Executive Council did not in fact take the decision and that the Supreme Council purported to do so.

[19] Rights under customary law are recognized by the Constitution of the Republic of South Africa (Constitution), but only to the extent that they are consistent with the Bill of Rights. Traditional leadership and governance systems are similarly recognized subject to the Constitution and legislation[1].

[20] The Constitutional Court has emphasized that the determination of the content of customary law is a matter of law, and that "caution, patience and respect are needed to ensure that, in taking its place as an institution of our democratic dispensation, living customary law reflects the rights and values of the Constitution from which it draws its legal .force".[2] In order to satisfy itself as to the content of customary law, a court can have regard to various sources, including reference to writers on customary law and evidence of witnesses with knowledge of custom within a community, as well as experts such as anthropologists or historians[3].

[21] The Constitutional Court has pointed out that while customary law is to be understood on its own terms rather the through the lens of the common law, it is subject to the Constitution, and has to be interpreted in the light of its values[4]. In other words, the process of interpretation is informed by the values and ethos of the Constitution, from which customary law draws its force.

[22] The Constitutional Court has repeatedly emphasised that the law which is recognised is living customary law, which evolves as the people who live by its norms change their patterns of life[5]. It has cautioned against asserting versions of customary law that are "out of step with the real values and circumstances of the societies they are meant to serve"[6]. In Shilubana and others v Nwamilwa, the Constitutional Court emphasized that both past and existing practices are relevant to ascertaining customary law. Whether a practice or conduct becomes law depends on the nature of the development in question, the rights at stake (vested or otherwise), and the vulnerability of the parties affected[7].

[23] Rapetsana said that the powers of the Supreme Council were given by the people at meetings held in the Makgotla and the Kgotha Kgothe where the issues were tabled. He was however unable to say when this happened, or to identify any minute of the Kgotha Kgothe or Makgotla (which are required to keep minutes) recording that any of these powers were conferred on the Supreme Council. Similarly he could not refer to any minutes of any meeting of the Dikgosana where it was decided to confer these powers on the Supreme Council. He ultimately departed from this explanation, and sought to rely on the presence of the Dikgosana at the Supreme Council meetings as confirmation of the conferral of the powers in question. Thus he testified: "The powers of the supreme council are given by the Kgotla of the Kgosanas jointly when they are with the Executive Council". Rapetsana was also unable to explain how members of the Supreme Council know what powers the Supreme Council has. When he was asked what powers ii has, he listed those that it asserts in practice. One such power was the power to litigate or go to Court.

[24] As a starting point it is not necessary to consider whether the Supreme Council generally has the power to take decisions to litigate. What the Court had to consider is whether the Supreme Council had the power under customary law to take the decision to authorise specifically the litigation in the main application.

[25] A probable explanation for the Supreme Council's existence as proferred by the appellant is that it flows logically from the legislative history and its very nature. It is a forum through which the statutory traditional council primarily an elected (not hereditary) body, can liaise with the hereditary leaders on matters of mutual concern. The desirability of such a consultative forum is obvious, as it enables the statutorily recognized body, which is vested with specific statutory powers, to engage directly with the Dikgosana, each of whom has authority in relation to the Dikgoro under customary Jaw. The fact that such discussion and liaison takes place does not deprive either the Dikgoro or the statutory body of the powers that vest in them by Jaw, or somehow confer decision making authority on the joint sitting.

[26] The high water mark of the RBN's evidence is that the Supreme Council has, as a matter of fact, in the past authorized certain litigation. In other words, this is the custom of the RBN. There was no evidence presented to gainsay RBN's evidence regarding the power of the Supreme Council to authorise litigation. Even if the Court were to accept that a practice has evolved within the RBN in terms of which the Supreme Council authorizes litigation, this cannot be a blanket power to authorise all litigation. On the other hand the evidence of what transpires in practice is equivocal when considering the following:

1) There is documentary evidence that a public meeting of the tribal authority took the decision to litigate against Impala Platinum Mine in 1988.

2) Rapetsana testified that a tribal meeting was required to authorise an appeal against the decision of the Court in the Impala Platinum case.

3) Rapetsana also confirmed that the RBN could not appeal a decision concerning the appointment of Chief Mokgwaro because they could not convene a tribal meeting to authorise it.

[27] Hence it is clear that there were instances when the public meeting had to authorise litigation. Further we have also noted in paragraph 14.5 supra that important decisions which affect the community as a whole have been referred to the Kgotha Kgothe. There is also no evidence that the Supreme Council has authorized litigation which may affect the future of the nation as a whole.

[28] Although past and existing practices are relevant in determining customary law, the customary law must reflect the rights and values of the Constitution[8], hence it is subject to the Constitution. The present litigation concerns a matter of great public importance, namely the basis upon which substantial tracts of Bafokeng land should be held. The dispute in this regard was well known, and has a strong capacity to divide the nation. It concerns the ownership of specific land, with the result that those who have competing ownership claims, and also those who have customary land rights in respect of that land, are directly affected by the decision.

[29] I agree with the appellant's submission that when core procedural and governance values of the Constitution are at stake, such as participation, consensus-seeking and consultation, these cannot be excluded from the customary law in the name of practice, conduct or expedience. Similarly, power does not reside with a body simply because that body asserts it. To determine customary law in this way would defeat constitutional rights, undermine the rule of law, and corrode the integrity of the system of traditional governance and its core values.

[30] The Constitutional Court has emphasised the participatory and inclusive nature of customary law norms and values. In Bhe, Lango DCJ held:

"The positive aspects of customary law have long been neglected. The inherent flexibility of the system is but one of its constructive facets. Customary law places much store in consensus-seeking and naturally provides for family and clan disputes and disagreements. Nor are these aspects usefi1l only in the area of disputes. They provide a setting which contributes to the unity of family structures and the fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the nurturing of healthy

communitarian traditions such as Ubuntu"[9].

[31] As stated supra, it is apparent from documentary evidence that the Kgosi himself has stressed the importance of the democratic principles, and core values of transparency, accountability and consultation. As stated supra, these principles include that sovereignty lies with the people, and that consensus-seeking, promoting kagiso (peace), consultation and free debate are critical to arrive at decision that everyone can accept as serving the common good. Major decisions on fundamental matters such as changes to systems of government and the status of land can only be effected with the consent of the Morale. These values are consistent with the Constitution, the rule of law, Ubuntu and the right to fair administrative justice. Thus on a matter as fundamental as the governance of a traditional community, the mere assertion of power can never create the authority to exercise power.

[32] The Court a quo found that the Executive Council had the power to take the impugned decision. As stated supra, it is important to appreciate the nature of the litigation in casu. It affects the land rights of members of the RBN and affects the nation as a whole. It is not routine litigation. When considering the evidence, and the importance of this matter affecting the traditional community as a whole which has the potential to divide the nation the probability is that the authority to authorize litigation of this nature does not lie with the Supreme Council, whether or not it has other decision-making powers. I am of the view that neither the Executive Council, nor the Supreme Council had the power to take the impugned decision without referring the matter to a general meeting. This issue is canvassed in more detail under the second question hereinbelow.

[33] In view of the aforesaid finding, it was not necessary to consider the issue of whether the Supreme Council was properly constituted when it took the impugned decision on the 22 September 2005 lo authorize the bringing of the main application.

Did the Supreme Council have to consult broadly before taking the impugned decision.

[34] Appellants submitted that the evidence is clear that:

34.1 There is a duty to consult broadly whenever important matters affecting the community are being discussed. This is at the heart of the customary system of governance.

34.2 It was well known that the decision would result in division within the traditional community and it is a decision of fundamental

importance affecting the community broadly. It is only through consultation that one can ascertain what people's views are and

whether alternatives to litigation can be found.

34.3 Even if it is accepted that the RBN could legitimately have consulted after the fact, this did not happen. There is no evidence that the September 2005 resolution was reported either to the Makgotla or to the constituencies of the members of the Executive

council:

a) Rapetsana agreed that the September 2005 resolution was an extremely important decision. He asserted that he had reported the matter to his Kgotla and acknowledged that it was not recorded in the minutes of the Kgotla as required by the Makgotla Guidelines.

b) There are no Makgotla minutes in respect of any of the 72 wards that reflect that the decision was reported. This also means that there is no document reflecting a report by any member of the Executive Council to his or her constituency.

[35] The appellants further submitted that:

35.1 Rapetsana endorsed key principles identified by Gulbrandsen. He expressly agreed with the following:

· "The Tswana have developed sophisticated practices and institutions that underscore the all encompassing value of kagiso. That is, at the core of Tswana life is located the Kgotla, the highly elaborate proceedings in which the aim is to reconcile conflicting

parties. The idea is to arrive at a conclusion that everyone can live with in peace (kagiso). The deep concem with Kagiso amongst Tswana as the supreme common good is the major premise for their expectation of the Kgosi to present for public debate all issues that in fact or potentially might cause tension and conflict in the morafe. Public debate is valued as pre-e111ptive in several respects. It is crucial to bring into a case all the knowledge and wisdom that the morafe contains in order to arrive at the best possible conclusion in the service of the common good".

· "This means, moreover proceeding in a way that is highly conductive to achieving the valued state of consent (dumela) essential to Kagiso ".

· "Tswana values, principles and institutions accounted fa, so far, at the level of the morafe at large, apply to a significant extent to the subordinate levels of the morafe socio-political organization".

· “Procedural principles - including consultaion, transparency, fi'ee speech, efforts to reconcile conflicting parties and to reach consensus - that I have accounted for above at the level of the Kgosing Kgotla, are equally valued and estee111ed at this level" (i.e the level of the kgotla). Since these principles are, as we have seen, underscored, in the particular case of Bafokeng, at the level ofkgotha kgothe, I presume they also apply to the local level of Kgoro"

35.2 Under cross examination, Rapetsana agreed that one purpose of consultation is to ascertain in advance whether there is going to be a dispute, and to hear the views of people before taking a decision. He thus implicitly accepted that it is only through prior consultation that one can find suitable solutions.

35.3 Rapetsane confirmed that consultation forms an integral part of the RBN's decision making processes, and that this is a long-standing practice. He agreed with the Kgosi that "Consultation lies at the heart of the democratic process of the Bafokeng Nation". He confirmed that consultation empowers the administration to make informed decisions that best serve the interests of the RBN. The level of consultation will vary depending on the importance of the decision and the circumstances. The more important the decision to be made, the more the efforts of consultation must be.

35.4 Rapetsane's evidence confirms that all major issues that affect the traditional community must be referred to Kgotha Kgothe for public debate: the Kgosi's mandate comes from consultation with this forum. He agreed with the Kgosi that "the ultimate authority for the destiny of the Bafokeng Nation lies with its people and that no major decision that affects the community can be taken without the Bafokeng Nation's approval".

35.5 Rapetsane accepted that in the RBN, being a traditionally governed entity, it is important that there should be sufficient "checks and balances" to ensure that no branch of government acts on its own. The opinions, concerns and ideas of the members of the Bafokeng Nation are an integral part of the RBN's policymaking process. He agreed with the Kgosi that:

"The Bafokeng Nation's traditions and values as a people are part and parcel of the form of government [the Bafokeng] embrace - one that values all segments of society both young and old, male and female; one that prioritises the needs of the community along with the needs to individuals; and one that consensus in decision making rather than the strong arm tactics of powerful individuals, however talented or visionary".

35.6 Rapetsana was referred to various sections of the Kgotha Kgotha transcripts, in which members of the community demanded consultation at their local Makgotla before decisions were referred to the Supreme Council for voting. He did not contradict the substance of these requests. He confirmed that these requests are legitimate, in that the Kgotla must first be consulted before issues can be debated at the Kgotha Kgothe. The reason for this is in order for the nation, through their Makgotla, to reach consensus on issues.

35.7 Rapetsana accepted that litigation often leads to discord and further dispute. He accepted that the consequences of the litigation can be very serious. He accepted too that the dispute might even lead to secession and that the only way one can ascertain whether it might, is lo listen to people and ask their views. It is important to reach consensus because disagreement within the community can divide it. Gulbrandsen expressed his opinion that this matter should have been referred to consultation.

[36] The RBN submitted that the only issue which they had to address was what was disputed by Rapoo in his affidavit, namely that "Under custom", the Supreme Council does not have the power to make such a decision alone and insofar as it has such power, it would have to consult very broadly within the traditional community and must act on the community's wishes. The RBN alleged that it addressed this issue through the evidence of Mokate and Rapetsana, which evidence was corroborated by Mputle, the appellants' only witness as set out hereinbelow:

36.1 The Constitutional Court in Shilubana[10] laid down the following test for determining the content of a particular customary law:

a) First it is necessary to consider the traditions and past practice of the community.

b) Second, as customary law is constantly evolving, the right of communities to freely develop their customary law to meet the needs

of a rapidly changing society must be respected and facilitated. Accordingly, evidence of the present practice of the community must be examined.

c) Thirdly, if it is contended that there has been any development in customary law, the Court should strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights, the deference should be paid to the development where this is possible, consistent with the continuing effective operation of the law.

36.2 The determination of customary law is a matter of law and a court must satisfy itself, as to the content of customary law. The mere assertion by a party as to what the law is may not be sufficient to establish this as true. Rapetsana gave evidence that decisions to institute litigation on behalf of the RBN are taken by the Supreme Council. He provided examples of this in the form of resolutions to litigate adopted by the Supreme Council in January 1988 and November 1995. He testified that the RBN embarked

upon litigation which went to Court pursuant to both of these resolutions.

36.3 Rapetsana's evidence was that although resolutions of the Supreme Council were taken to the Kgotha Kgothe, that was simply to report what the Supreme Council had done and decisions of the Supreme Council were not referred for either approval or ratification to the Kgotha Kgothe. Rapetsana and Mokate both confirmed that only where it is contemplated that land which is held under the Trust formulation will be disposed of or encumbered does the decision to do so have to be made by the Kgotha Kgothe. The example given of this is the decision to conclude a surface lease agreement on RBN land with Samancor in 2003. Another example where resolutions were put before the community at the Kgotha Kgothe of 28 May 2006, which related to various servitudes and surface lease agreements which were eventually voted on at the special Kgotha Kgothe held on 30 September 2006.

36.4 Rapetsana's evidence established the consistent past and present practice of how the RBN in fact customarily conducted its affairs as at September 2005, and consistently thereafter. This is how the RBN's traditional customs of governance allowed the RBN to deal practically with the need to make decisions in regard to commercial transactions. Rapetsana's evidence was that the decision to institute the main application was one which the Supreme Council was empowered to take under customary law and was validly taken. Mokate similarly testified that decisions to institute litigation on behalf of the RBN are taken by the Supreme Council, on a regular basis.

[37] The RBN alleged further that:

37.1 The only substantive challenge raised in cross-examination of Rapetsana was whether, notwithstanding the general power of the Supreme Council to authorise litigation, the Supreme Council could not authorise this particular litigation. The appellants make two mutually exclusive and contradictory submissions on this issue. In the first place, they submit that the Supreme Council could not authorise the main application at all because it involved a matter affecting the RBN as a whole. They submit, in the alternative, that even if the Supreme Council could authorise main application, that decision had to be preceded by broad consultation directly with the appellants because of its nature and potential impact on the RBN as a nation.

37.2 Both Rapetsana and Morake confirmed that the Supreme Council is the body responsible for authorizing litigation. The appellants did not call any witnesses to contradict that evidence. The appellants' failure to advance any version as to which body they allege had the power to authorise the main application is another reflection of how artificial the challenge to authority really is.

37.3 The appellants did not lead any evidence in the trial to establish either the customary law principle that is some decisions which the Supreme Council might otherwise ordinarily be empowered to take (in this case authorise litigation) cannot be taken by it without prior direct consultation with the members of the nation. That this exception to the general principle operates in respect of any decision that relates to "important matters affecting the community". The decision to institute the main application is a decision that falls within the scope of this principle because the litigation involves "a contentious matter which may give rise to division within the community". Rapetsana expressly rejected the proposition that the Supreme Council had to consult directly with members before authorizing the main application when this proposition was put to him in cross-examination. This proposition was never put to Mokate in cross-examination despite his evidence that the Supreme Council deals with decisions to litigate. In fact, the case sought to be made out is even at odds with the evidence of the appellants' only witness, Mputle.

37.4 The appellants seek to make out their case entirely from inference drawn from concessions they allege were made by Rapetsana in his cross­ examination and on the contents of the opinion of Gulbrandsen, whose evidence was never subject to cross-examination in the trial and who, on his own version, has never had any contact with any member of the RBN for the purpose of forming an opinion on the content of RBN customary law. Moreover, Gulbrandsen does not actually conclude that as a matter of customary law the Supreme Council was obliged to consult before taking the decision to launch the main application at all.

37.5 The existing governance structures of the RBN gives effect to the principle that consultation within the nation is important. Rapetsana explained, democracy works in every sphere of the RBN. The Supreme Council is a representative structure. Consisting of the Dikgosana from all 72 wards, as well as the 39 members of the Executive Council, which includes both members appointed by the Kgosi and members elected directly by the membership of the RBN. Attendance at the Supreme Council meetings is obligatory. Rapetsana explained that the elected members represent the membership broadly, while the Dikgosana represent the interests of the members of their Kgotla. The Dikgosana are obliged to report back at the monthly meetings of the Kgotla on what has been discussed and decided at the Supreme Council.

37.6 Members are also entitled to question the Kgosana at Kgotla meetings and to raise any unhappiness they may have with what has been done by the Supreme Council, in which case the Kgosana must report this unhappiness back to the Supreme Council. The Supreme Council is also obliged to take into account unhappiness expressed at any Kgotha Kgothe. As Rapetsana explained, if the Kgotha Kgothe were

to express strong unhappiness about a decision taken by the Supreme Council, the Supreme Council would not implement that decision. It would consult with the membership to understand the basis of the objection, because the aim of the Supreme Council is to build the nation.

37.7 There is no hard and fast inflexible rule in RBN customary law as to how the values of consultation and consensus seeking are given

recognition. Save in respect of the encumbrance of land, there is no rule that some decisions that the Supreme Council takes must, as a matter of law and at risk of invalidating them, be preceded by direct consultation with the membership. The only evidence that the appellants have put up in favour of their position is the fact that on two occasions, in 1998 and 1991, the RBN in fact did go to the general membership to authorise litigation. These facts do not prove the appellants' case. In the first place, the inference that the appellants seek to draw from the facts was never put to Rapetsana in cross­ examination for his comment, and for that reason does not gainsay his consistent express evidence that no such consultation is obligatory under customary law. This inferred version was also not put to Mokate in cross­ examination. Secondly, Rapetsana gave an explanation for why this had been done. The reason that the RBN had gone to the membership in general meeting in the 1988 and 1991 cases was because at this time the Bophuthatswana government was in conflict with and interfering in the affairs of the RBN and, as a result, the Supreme Council was not functioning properly. These facts do not then establish the principle advanced by the appellants.

37.8 The appellants argue, secondly, that the litigation involves "a matter of great public importance" with "major consequences" and that may affect "the future of the nation". None of these statements are correct. For the members of the RBN, the consequences of the main application will be simply to confirm that the properties are owned by the tribe. The only major consequences arising from the litigation will be for the private interests of the appellants as alleged common law owners of some of the properties. But these interests are not ones that fall to be protected under customary law, nor have the appellants ever sought to invoke customary law to do so. It is not the main application that is decisive. What is decisive is the assertion of claims by the appellants that they are the common Jaw owners of some of the properties and that the properties must be taken from the tribal holding of the RBN and given to them. These claims are not capable of resolution through consultation.

37.9 The appellants submit that the Supreme Council could not authorise the main application because the application affects "the land rights of members of the REN" under customary law. This submission is misconceived. The main application does not affect any rights at customary law. It is concerned purely with the registration of the properties at common law. The rights of the members of the RBN (including the appellants) at customary law remain enforceable regardless of the form of registration of the properties.

[38] The RBN contends further that:

38.1 The dispute over ownership are long standing and have not been capable of resolution even after a period of 100 years in the case of some of the properties. The notion that a further period of consultation in 2005 prior to resolving to institute the main action would have produced any different result seems entirely fanciful.

38.2 There were in fact attempts by the RBN during 2006 to consult with a number of the communities claiming ownership of the disputed properties. Those efforts were not successful.

38.3 The Kgotha Kgothe after summarizing legal correspondence sent by the attorneys for the Baphiring to the RBN, the program director again said, there appears to have been broad agreement at the September 2006 Kgotha Kgothe with the view that the claims should be resolved in Court. Several speakers at the meeting in fact expressly affirmed the program director's statements and emphasized that the Kgotha Kgothe was not the place to resolve the disputes over land ownership.

38.4 There are a number of obstacles to effective consultation on this issue, which resulted in the failure of the RBN's attempts to consult.

a) Firstly, consultations were unsuccessful because the families did not wish to consult within tribal structures. They demanded that the Kgosi himself come to them and that they be consulted with as landowners independent of the nation. In other words, they were not purporting to assert rights as members of the Bafokeng traditional community, but as owners of particular portions of land. They did not purport to assert rights under customary law. That is borne out by the transcript for the Kgotha Kgothe of 30 September 2006 and by statements by representatives for those communities made during the Kgotha Kgothe meeting of 29 July 2006.

b) Secondly, consultations were never going to be successful because the only outcome the communities would accept is that ownership of the disputed properties be transferred to them.

c) Thirdly, consultation could not resolve the land claims because there are disputes even within the communities as to the merits of the claims (at the Kgotha Kgothe of 30 September 2006 the Program Director recorded that member of some Kgotlas, the Mogono and Baphiring, had distanced themselves entirely from the claims) and between communities as to who they allege the owners of at least one of the properties, Styldrift 90 JQ, are.

d) In these circumstances, the only witness called by the appellants, Mputle, whose family claims ownership of the farm Styldrift 90 JQ, acknowledged that resorting to the Courts in respect of the disputes over land ownership was appropriate. Further, while Mputle said in evidence in chief that he would have objected to the main application had he been aware of it at the time because he had not been consulted about it, he also said clearly that the obligation to consult with him arose because his family was the owner of the land. He did not say that the obligation to consult arose as a matter of customary law because he was a member of the RBN. The behavior of other communities claiming land ownership is consistent with Mputle's statements.

e) In the circumstance, even if there were a broad principle that the Supreme Council must consult broadly with the membership before

instituting litigation, that might cause conflict within the RBN, it is not applicable in this matter. The main application is not the source of conflict between the appellants and the RBN, and the conflict that exists between them, everyone agrees, is best resolved through adjudication in Court and not consultation within the tribe, precisely because the appellants and other claimants do not assert rights within the tribe, but rather common law rights against the tribe. The attempts by the RBN leadership to consult in 2006 were unsuccessful which reinforces this conclusion.

[39] As staled supra, the Constitutional Court in Shilubana supra[11] and MM v MN supra[12] give guidance regarding the proper approach in ascertaining customary law, namely that Courts must have regard to past and current practices and developments in communities to meet changing needs. More importantly, ii must be interpreted in light of the Constitution and its values[13],

[40] In Doctors for life International v Speaker of the National Assembly[14] the Constitutional Court held as follows:

"The idea of allowing the public to participate in the conduct of public affairs is not a new concept. In this country, the traditional means public participation is imbizo/lekgotla/bosberaad. This is a participato1y consultation process that was, and still is, followed within the African communities. It is used as a forum to discuss issues affecting the community. This traditional method of public participation, a tradition which is widely used by the government, is both a practical and symbolic part of our democratic process".

[41] In MEC for Education, KZN and Others v Pillay[15] the Constitutional Court said the following: "There is no doubt that consultation and public participation in local decision making are good and deserve to be applauded. They promote and deepen democracy".

[42] The right to be consulted is also an incident of the right to procedurally fair administration in terms of Section 33 of the

Constitution. The decision to institute these proceedings constituted administrative action and is subject both to Section 33 of the Constitution and Promotion of Administrative Justice Act 3 of 2000 {PAJA).

[43] The RBN neither alleged nor proved that there was consultation before the impugned resolution was taken:

43.1 The impugned resolution was taken without prior discussion with the Morale at either Makgotla {the local level), or Kgotha Kgothe (the broader community level). There was no advance notice of the agenda item or proposed resolution before the meeting of 22 September 2005, prior consultation was therefore impossible.

43.2 The members of the Supreme Council also did not report back to their constituencies within the Morafe after the decision was taken.

[44] I agree with the appellant's contention that the maxim "Kgosi ke Kgosi ka Morafe": the Kgosi is the Kgosi by virtue of the people is at the heart of this case, as it recognizes that sovereignty resides with the Bafokeng people as a whole. At the

Kgosi's enthronement ceremony in August 2003, he stated "the ultimate authority for the destiny of this community lies with you, the Bafokeng people. In our system, no major decision that affects the community can be taken without your approval". Rapetsane also confirmed the correctness of this proposition. At the ceremony, the Kgosi described Bafokeng governance as espousing democratic principles: "Despite what some may think there is plenty of evidence to support the idea that our traditional form of government espouses the principles of democracy" which include "mechanisms to ensure that the Kgosi is carrying out the will of the people, political representation and multiple level oflocal government and a system for electing village representatives to our council". Consultation enhances the right to dignity because it acknowledges the worth of individuals in decision making processes. Customary law must be interpreted and determined in light of these principles.

[45] It is common cause that the dispute pertaining to the ownership of land is a long standing dispute. The RBN sought a declaratory order, that they are the owners in circumstances when they had knowledge that there are smaller groups who are members of the RBN who assert that their predecessors were the buyers of the land and they are thus the rightful owners. Notwithstanding this knowledge the application was initially sought by the RBN not only without consulting the appellants but also without citing the appellants as parties to the application. As stated supra, this case concerns the rights of the community and its members to be consulted before litigation is instituted on their behalf in a case which may have far reaching consequences for the community in respect of land ownership. The issue is not whether the appellants were asserting their rights under customary law or as private owners of the land. The issue is whether they as members of the Community

should have been consulted before a decision was taken to institute the application to declare the RNB the owner of the land.

[46] Gulbrandsen's opinion as to why, the decision to institute proceedings ought to have been the subject of consultation, is compelling and persuasive, specifically that it affects the community broadly and is of importance to many people. He said that a failure to consult is contrary to the highly valued ideals of the Tswana democratic tradition, that litigation has the potential to divide and cause conflict and that matters of land title affect people's very security and are matters of great public importance.

[47] The Court a quo was correct in its finding that consultation on matters affecting the public, (including land) forms part of the RBN tradition and in rejecting the RBN's suggestion that under custom it is only questions relating to the alienation of land that should be debated at the Kgotha Kgothe. It was also correct in finding that matters of public concern, including matters concerning land, would be so debated under custom. The Court a quo correctly accepted the import of Gulbrandsen's evidence, which supports a conclusion of a wide-spread consultation.

[48] The Court a quo however erred in its finding that the determination of what constituted a matter of public concern and what should be referred for consultation was a matter for the sole prerogative of the Kgosi, and could not be challenged judicially. There was no evidence, that the Kgosi decided that there would be no consultation at all on this matter, either before or after the decision. The appellant is correct in its submission that the approach adopted by the Court a quo is inconsistent with the values of the Constitution and a democracy based on the rule of law that fosters dignity and the protection of rights and freedoms. A failure lo recognize the duty to consult as legally enforceable, fosters arbitrariness and autocracy, and undermines the participatory democracy which is at the heart of our Constitution and of RBN governance. While the institution of traditional leadership according to customary law is recognized under the Constitution, ii is subject to the Constitution. Courts must interpret customary law in light of the Constitution; and if it falls short of constitutional requirements, then the Court has a responsibility to develop the law.

[49] The importance of consultation is firmly recognized as underpinning the RBN governance systems. The absence of a duty to consult would impede the ability of Morale to participate in the governance of their community and management of their assets. Our Courts have repeatedly held that consultation fosters democracy and the protection of rights[16].

[50] The Constitution and the Restitution of Land Rights Act confer the right on those who were dispossessed of their land as a result of racially discriminatory measures, to make claims for the restoration of their land. Individual community members and sub-groups of the community do not have the power to institute community wide consultation in that regard. That is the function and power of the established authorities. All that those claiming rights can do, is to assert them through the legal processes created for that purpose. The remarks at the Kgotha Kgothe meetings show that the community desired consultation on these issues as they repeatedly called for consultation.

[51] Historical evidence demonstrates that consultation is necessary before a decision is made to proceed with litigation on a contentious

matter affecting the community. The evidence shows that the decision to include land in the assets to be transferred to the Trust in 2005 was overturned as a result of the opposition from the disputing landowners, and their demands to be properly consulted on this matter. This is inconsistent with a decision to proceed with litigation without consultation that will result in a transfer or alteration of land registration, and in common law ownership by the traditional community as a whole. I disagree with the RBN submissions that the only major consequence arising from the litigation will be for the private interests of the applicants as common law owners and as such there was no obligation in customary law to consult with the appellants. Although the appellants have a private interest in the land they are also members of the Community and one cannot for purpose of this application attempt to divorce the two. As stated supra, the issue of the land being transferred to the RBN was fundamentally linked to the question of who owns the land, and therefore who has a right to title and to take decisions regarding the land. That flows naturally from the concept of land ownership itself. Ownership of land is a historically sensitive issue affecting many South Africans. The Community is divided regarding the status of the land and this matter has the potential to cause further division with the Community. Hence it was imperative for the Community to be consulted before the RBN launched the application.

[52] When considering the evidence in relation to the issue in dispute, namely the transfer of land to the RBN and considering the custom of the RBN and interpreting this in the light of the Constitution and its values then, I am of the view that the duty to consult on matters of public importance, such as the present dispute which seeks to alter the status of land, is a legally enforceable duty under Bafokeng customary law. The appeal on this ground is accordingly upheld.

[53] In view of my finding, it is not necessary for this Court to consider the issue of whether the Supreme Council's decision was overtaken by subsequent events. Save to state that the 2006 Kgotha Kgolhe lends further support lo the consultative process outlined supra, in that the effect of the 2006 Kgotha Kgothe meetings was that it was implicit that no steps would be taken to alter the status and incidence of ownership of land until a consultation process was completed with those who asserted claims to ownership of the land.

C. THE CROSS APPEAL

[54] The RBN are the appellants in the cross appeal. For ease of reference they will be referred to as the RBN and the respondents in

the cross appeal who are the appellants in the appeal will be referred to as the respondents. The respondents applied in terms of Rule 38(2) of the Uniform Rules of Court to admit as evidence in the trial the contents of a report by Gulbrandsen. The RBN opposed the application. The Court a quo granted the application and admitted the affidavit. The RBN now appeals against the High Court's order to admit Gulbrandsen's affidavit.

[55] Rule 38(2) of the Uniform Rules of Court reads:

"The witnesses at the trial of any action shall be examined viva voce, but a Comt may at any time, for sufficient reason, order that all or any of the evidence to be adduced at any trial be given on affidavit or that the affidavit of any witness be read at the hearing, on such terms and conditions as to it may seem meet: Provided that where it appears to the Court that any other paity reasonably requires the attendance of a witness for cross-examination, and such witness can be produced, the evidence of such witness shall not be given on affidavit".

[56] The RBN contend that:

56.1 The respondents initially brought the Rule 38(2) application because Gulbrandsen became ill and could not travel to South Africa to attend Court.

56.2 The respondents did not explain in their founding affidavit why Gulbrandsen could not give oral evidence remotely, by way of video link or skype, or even on commission. The RBN raised this point in its answering affidavit, having pointed out that it was necessary for the RBN to cross examine Gulbrandsen.

56.3 In the replying affidavit, the respondents then conceded that Gulbrandsen could give his evidence orally by telephone or skype. The respondents later sought the relief originally sought because the RBN refused to accept evidence given by skype and sought evidence through video conferencing. The respondents claimed that this stance was unreasonable and justified an order admitting Gulbrandsen's report as evidence.

56.4 The acknowledgement by the respondents in the replying affidavit that Gulbrandsen could give evidence orally (by telephone or skype) undermined the basis on which the application had been brought in the first place, namely that Gulbrandsen was too ill to give evidence orally. The respondents did not amend the relief they sought in the notice of motion and persisted with seeking an order that his evidence be accepted by way of affidavit. No application was ever made to have the evidence admitted via telephone or skype or video conference. Further the respondents suggested that the costs of video conferencing were too expensive for them to reasonably bear, and they did not put up a single fact to support this contention.

56.5 The Court did not deal at all with the fact that, on the respondents' own version, at the time the application was made Gulbrandsen was available to give evidence orally, albeit remotely from his home or office. This fact was fundamental, because it meant that the reason relied on by the respondents for the application no longer existed and so there was no longer "sufficient reason" as contemplated in the Rule for Gulbrandsen not to give his evidence orally.

56.6 The Court gave only cursory reasons for its decision to admit the report of Gulbrandsen as evidence in the trial. Despite concluding that Gulbrandsen's evidence was material, the Court did not deal at all with the RBN's objection that it required to cross examine Gulbrandsen on the evidence and considered rather what weight to attach to his evidence. The Court did not explain how that would occur where the RBN had not been afforded any opportunity to put to Gulbrandsen the evidence of the RBN witnesses in the trial as to the specific customary law of the RBN in particular and the reasons why his contrary evidence should be rejected.

56.7 Another reason why the respondents cannot show sufficient cause to have Gulbrandsen' s report admitted to support their case that the RBN's decision to institute the main application ought to have been the subject of prior consultation, namely that such evidence would not be admissible because it is contradictory to the evidence given by Mokate on the issue but was never put to him as a version in cross examination. The respondents are not entitled to adduce Gulbrandsen's evidence orally or to contend in argument that Mokate's evidence ought not to be accepted.

56.8 To the extent that the respondents did not put Gulbrandsen's version to the RBN witness because they were uncertain of its status, this does not exculpate them. It was only because the respondents elected to delay launching the application until the end of the trial that the status of Gulbrandsen's report remains uncertain throughout the trial.

[57] The contents of Gulbrandsen's report relate in the main to his opinions on the importance of consultation as a general custom in Tswana communities in Botswana in which he has worked as an anthropologist, and the need for consultation on all major issues of relevance to the communities in which he has worked through a general meeting of the community, or Kgotha Kgothe. Gulbrandsen states that in his view these same principles should apply in the RBN. He concludes that in relation to the RBN's decision to institute the main application, and based on the facts that were provided to him by the legal representatives for the respondents, there are "good reasons for accepting the clients' request to this Court/or returning the case to the Royal Bafokeng Nation, to be addressed through consultation according to the Bafokeng 's principles of procedure". Gulbrandsen' s opinion was that "in the circumstances of the present case, the decision to institute proceedings ought to have been the subject of consultation". The respondents relied on Gulbrandsen' s evidence to support their claim that the Supreme Council could not validly lake the decision to launch the main application without first broadly consulting with the RBN's members.

[58] The RBN in the answering affidavit alleged that there were a number of issues on which they required to cross examine Gulbrandsen,

namely:

58.1 Firstly, the basis on which Gulbrandsen had expertise to provide an opinion on the customs of the RBN at all. In this regard, Gulbrandsen has never consulted with any member of the RBN as lo its customs and customary law. His opinion is based purely on an extrapolation of customs he has observed in other Tswana communities, from which he has then concluded there are "pan Tswana principles" which must therefore apply also to the RBN.

58.2 Secondly, that Gulbrandsen does not in fact state expressly in his report that in his opinion as a matter of customary law the failure of the RBN to engage in consultation before it launched the main application rendered the decision to launch the main application

invalid, as the respondents contend and which they say his opinion confirms.

58.3 Thirdly, the RBN wished to put to Gulbrandsen the fact that the respondents do not assert rights within the RBN. They assert rights as common law landowners, separate from the RBN, and have gone so far as explicitly to refuse to consult about their claims with the RBN's leaders or within recognised RBN structures.

58.4 Fourth, the RBN assert that the Supreme Council is a body unique to the RBN and is in itself a democratic institution, so that decision-making by it is not inconsistent with the broad principles of consultation advanced by Gulbransen, and that the taking of a decision by that representative body after consideration and discussion, fully satisfies those broad principles. How Gulbrandsen, having studied customary law in communities which have no such institution can ever usefully compare the customary law and tradition of the RBN which has adopted that institution for decades, is a crucial question for cross examination and is fundamental to his opinion having any validity.

[59] The respondents contend that:

59.1 Gulbrandsen is Professor Emeritus of Social Anthropology at the Department of Social Antropology at the University of Bergen, Norway. He lives in Bergen, Norway. His expertise and related experience appear from the record. His evidence is highly material to the question whether there was a duty at customary law to consult broadly within a traditional community before a decision was taken to institute the application.

59.2 The RBN in their answering affidavit did not place in issue the medical circumstances that led to the making of the application. Rather they said that the evidence was immaterial and of no assistance, and complained that they would be denied the opportunity to cross examine Prof Gulbrandsen. They also stated that an application ought to have been made to have Prof Gulbrandsen testify by way of video link or skype. Mr Van den Berg stated: "The applicants have not considered any other manner in which the evidence could be obtained and the witness be made available for cross examination. Thus there is no application to have him testify by way of video link or skype. There is no suggestion that this evidence should be taken on commission either".

59.3 On 16 February 2016, Gulbrandsen again saw his doctor who advised that ii was at that stage possible for him to make himself available to give evidence by way of skype or telephone, under conditions designed to protect his health and well-being. In the comfort of his home or office. The conditions under which Gulbrandsen was advised he could proceed were as follows:

a) He should not travel to South Africa.

b) He could give evidence by telephone or skype provided he had the opportunity for breaks if he struggled with chest pain, the hearing and cross examination were held in a non-stressful atmosphere and at an unhurried pace, and the session did not extend over a long lime.

59.4 On 19 February 2016 Gulbrandsen confirmed, in light of his doctor's advice, that he could make himself available from the comfort of his home or office to give evidence by telephone or skype and if need be from his holiday home in Italy where he hoped to be soon.

59.5 The RBN declined the offer and indicated that they would admit the portions of Gulbrandsen' s report that were already accepted as correct by Rapetsana. For any further purpose the RBN insisted on a video-link, and that the proceedings be arranged at the cost of the respondents.

[60] The respondents submitted inter alia that:

60.1 The Court considered and rejected the RBN's objections. This included an express rejection of the complaint that Gulbrandsen had little personal knowledge of the specific customary law of the RBN and had not conducted research in that traditional community. The Court exercised its discretion judicially. It did so in light of the circumstances that prevailed at the trial and having regard to the concessions that had been made and, presumably, the prejudice that would otherwise have faced the appellants. The Court considered the implications for the RBN and carefully assessed that the RBN would not be prejudiced as the Court could itself determine what weight to attach to the evidence of an expert especially on issues that were contentious and not conceded.

60.2 None of the RBN's witnesses attempted to controvert the evidence of Gulbrandsen. The core propositions were put to Rapetsana, who had knowledge of the historical practices of the RBN and the relevant governing structures at the time the decisions were taken and he agreed with them. RBN's argument that the full expert evidence had to be put to Rapetsana in cross examination is wrong as a matter of law. This applies with even greater force to Mokate, who testified only about the 2006 Kgotha Kgothe meetings. He was not involved in the relevant RBN structures at the time the decision was taken.

60.3 The RBN declined a reasonable tender to cross examine Gulbrandsen by remote link. It was in a position to put any issues it wanted to in cross examination to Gulbrandsen, and it elected not to. It cannot now complain that it did not have a chance to cross examine him.

60.4 The Court still determined what weight to attach to it or parts of it. If the evidence was not admitted, however, this would result in a predetermined outcome that no weight could be attached to it at all. That would not serve the interests of justice. The evidence was highly material to the respondents' case.

60.5 The prejudice that the respondents would have suffered if the evidence were not admitted was great. They could not locate another anthropologist with the relevant experience and resultant knowledge to give the evidence on the matters which were to be addressed by Gulbrandsen. By the time it became clear that Gulbrandsen could not testify it was in any event too late to seek out another witness. Significant resources had already been expended to procure the evidence in the form of a full report that contained detailed reasoning.

60.6 The core propositions of Gulbrandsen were put to and accepted by Rapetsana. The propositions arise from the principle that sovereignty resides with the people. Rapetsana endorsed the key principles identified by Gulbrandsen.

[61] The Court a quo admitted Gulbrandsen's evidence and dealt with this issue in paragraphs 12 to 21 of the judgment. The Court, having noted that Gulbrandsen's medical condition was not disputed, highlighted certain core submissions advanced on behalf of the respondents namely:

61.1 There was sufficient reason to admit the evidence.

61.2 The proviso in Rule 38 was not triggered, because Prof Gulbrandsen could not make himself available for cross examination other than via the means tendered (skype or telephone) which the RBN had elected to reject.

61.3 The RBN had conceded material portions of Gulbrandsen' s evidence and had otherwise failed to demonstrate why its remaining concerns with his evidence could not be addressed as matters going to the weight of his evidence. Accordingly,the RBN did not reasonably require Gulbrandsen's attendance for cross examination.

[62] The general rule in trials is that evidence should be given viva voce. This not only enables the Court to assess the witness giving the evidence but, more importantly, it also affords the party that has not called the witness the opportunity to cross examine the witness, both to test the evidence that the witness has given and, equally importantly, the opportunity to elicit evidence from the witness which supports the cross examiner's case.

[63] Rule 38(2) contains an exception to this general rule. An applicant who seeks to invoke the exception must prove that "sufficient reason" exists to do so. While this requirement confers a broad discretion on a Court, in determining whether sufficient reason exists a Court must bear in mind the disadvantages above of permitting this to both the Court and the other side, and then consider whether the interests of justice nonetheless requires that the evidence be admitted on affidavit. The Rule also contains an express proviso limiting the Court's discretion, namely that where it appears to the Court that a party reasonably requires the attendance of the witness for cross examination, and the witness can be produced, then the evidence of the witness shall not be given on affidavit.

[64] The determination of "sufficient reason" necessarily involves the exercise of a discretion which discretion has to be exercised judicially having regard to the options available to the Court. A Court on appeal may interfere with the exercise of discretion only if there has been a wrong application of legal principle or a misdirection of fact. The Court on appeal does not have the power to substitute its own discretion, on the basis that it would have exercised the discretion differently. In Griddey Nov JC Barnard and Partners[17], the Constitutional Court said:

"[19] The ordinary rule is that the approach of an appellate Court to an appeal against the exercise of a discretion by another Court will depend upon the nature of the discretion concerned. Where the discretion contemplates that the Court may choose from a range of options, it is a discretion in the strict sense. The ordinary approach on appeal to the exercise of a discretion in the strict sense is that the appellate Court will not consider whether the decision reached by the Court at first instance was correct, but will only interfere in limited circumstances; for example, if it is shown that the discretion has not been exercised judicially or has been exercised based on a wrong appreciation of the facts or wrong principles of law. Even where the discretion is not a discretion in the strict sense, there may still be considerations which would result in an appellate Court only interfering in the exercise of such a discretion in the limited circumstances mentioned above".

[65] In Colarossi v Gerber[18], the Court said the following in respect of the exercise of this discretion:

"More fundamentally, however, the exercise of the discretion will be conditioned by whether it is appropriate and suitable in the circumstances to allow a deviation ji·om the norm of requiring oral evidence in trials. And that requires a consideration of such factors as the nature of the proceedings, the nature of the evidence, whether the application for evidence to be adduced by way of affidavit is by agreement, and ultimately, whether in all the circumstances it is fair to allow evidence on affidavit".

[66] As staled supra, an important consideration must be whether the exclusion of affidavit testimony of a witness whose attendance cannot be secured at trial would likely lead to a miscarriage of justice, than to have evidence admitted on affidavit.

[67] It is not disputed that:

a) Gulbrandsen was initially too ill to give viva voce evidence;

b) The RBN questioned why Gulbrandsen could not give evidence orally by video link or skype or on commission;

c) Gulbrandsen's doctor at a later stage agreed that he could be examined either by telephone or skype;

d) The respondents tendered to make Gulbrandsen available for cross examination through telephone or skype;

e) The RBN rejected the tender and insisted that Gulbrandsen testify by video link and not skype;

[68] The RBN was thus afforded an opportunity to cross examine Gulbrandsen viva voce which offer they declined and instead insisted that Gulbrandsen's evidence only be given by video link. The RBN's rejection of the tender resulted in the application falling within the ambit of Rule 38(2) and the Court a quo correctly exercised its discretion to admit Gulbrandsen's evidence on affidavit. Furthermore, Landman J was alive to the fact that

Gulbrandsen did not have intimate knowledge regarding the RBN custom and on perusal of the judgment it is apparent that he attached the relevant weight to his evidence in particular to the concession made by Rapetsana on material aspects relating to the RBN governance

documents and the RBN custom. As stated supra, Gulbrandsen expessed his opinion that the matter should have been referred to consultation and Rapetsana's evidence confirmed that consultation lies at the heart of the Bafokeng governance system. Rapetsana agreed that one of the purposes of consultation is to ascertain in advance whether there is going to be a dispute. Gulbrandsen's evidence that the Court a quo relied upon in my view was not prejudicial to the RBN and served the interest of justice.

[69] Accordingly, I am of the view that Landman J exercised his discretion judicially when he admitted the affidavit of Gulbrandsen and this Court cannot interfere with the exercise of his discretion on appeal as there was no wrong application of legal principle or

misdirection of fact.

D. ORDER

[70] In the result,

1) The appeal is upheld with costs, which costs are to include the costs of two counsel.

2) The counter-appeal is dismissed with costs, which costs are to include the costs of two counsel.

_________________________

N GUTTA

JUDGE OF THE HIGH COURT

I agree

________________________

A M KGOELE

T.J DJAJE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING

: 08 DECEMBER 2017

DATE OF JUDGEMENT

: 09 MARCH 2018

COUNSEL FOR APPELLANT

: ADV BUDLENDER

COUNSEL FOR RESPONDENT

: ADV AUTROBUS SC

: ADV WESLEY

ATTORNEYS FOR APPELLANT

: NIENABER & WISSING

ATTORNEYS FOR RESPONDENT

: STATE ATTORNEY

ATTORNEYS FOR 1ST RESPONDENT : KGOMO MOKGETLE & TLOU ATTORNEYS

(Fasken Martineau)

ATTORNEYS FOR 12th RESPONDENT : GURA TLALETSI ATTORNEYS

[1] Section 21l(l) and (2) of the Constitution of the Republic of South Africa Act 108 of 1996

[2] MM v MN 2013(4) SA 415 (CC) at para 46

[3] Alexkor Ltd and Another v The Richtersveld Community and Others 2004(5) SA 460 (CC) at paras 53 - 54

[4] MM v MN supra at para 24(a) and (b), Also see Shilubana and Others v Nwamitwa 2009(2) SA 66 (CC) at para 48

[5] MM v MN supra, at para 24. Also see Bhe and Others v Khayelitsha Magistrate and Others 2005(1) SA 580 (CC) at para 81

[6] Bhe and Others supra at para 82

[7] 2009(2) SA 66(CC)

[8] MM vs MN 2013(4) SA 415 (CC) para 46

[9] Bhe and others v Magistrate, Khayelitsha, and others (Commission for Gender Equality As Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005(1) SA 580 (CC) at para 45. Confirmed by the Constitutional Court in MM v MN at para 24(1) and (g) and see to para 50. Ngcobo CJ in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) at para 91 said: 'The notion of participatory democracy is also an African one.

[10] Shilubana and Others supra at [44] - [49], [56]

[11] 2009(2) SA 66(CC) at para 42 to 49

[12] 2013(4) 4 J5(CC) at para 23 to 25

[13] MM v MN supra at para 24

[14] 2006(6) SA 416 (CC) at para 101

[15] 2008(1) SA 474 (CC) at para 82

[16] Doctors of life International v Speaker of the National Assembly 2006(6) SA 416 (CC) and MEC for Education: KwaZulu Natal, Thulani

Cele: School Liaison Officer, Anne Martin: Principal of Durban Girls's High School, Fiona Knight: Chairperson of the Governing Body of Durban Girl's High School v Navaneethum Pillay, Governing Body Foundation, National Tamil Vedic Society Trnst, Freedom of Expression Institute 2008 (2) BCLR 99 (CC)

[17] 2007(5) SA 525 (CC) at para 19. See also Trencon Construction v Industrial Development Corporation 2015(5) SA 245 (CC) at paras 83 and 87

[18] [2005] JOL 15118(E) at paras 10 to 13