Bafokeng Private Land Buyers Association and Others v Royal Bafokeng Nation and Others (999/08) [2016] ZANWHC 45 (1 September 2016)
The court found that, following the referral to oral evidence, the litigation by the Royal Bafokeng Nation was properly authorized. However, the judge acknowledged that another court might reach a different conclusion on the issue of authorization. Consequently, leave to appeal was granted to the respondents against...
Source-derived case information.
- Citation
- [2016] ZANWHC 45
- Parties
- Applicant: Bafokeng Private Land Buyers Association; Applicant: Setuke Family; Applicant: Thekwana Community; Respondent: Royal Bafokeng Nation; Respondent: Minister of Land Affairs; Respondent: Registrar of Deeds; Respondent: Mogono Community; Respondent: Chaneng Community; Respondent: Khunou Family; Respondent: Motepe Family; Respondent: Rantshabo Family; Respondent: Tsitsing Community; Respondent: Makgatlha Community; Respondent: Baphiring Community; Respondent: Mokgatle Family; Respondent: Mputle Family; Respondent: Commissioner for Restitution of Land Rights: North West Region
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 999/08
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment on Rule 7 Authorization.
- Outcome
- Leave to appeal granted to the respondents against the whole of the judgment, except for the cost order, to the full Bench of the Division. Costs are to be costs in the appeal.
- Judges
- AA Landman
- Legal Topics
- Rule 7 Authorization, Tribal Land Ownership, Oral Evidence, Leave to Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bafokeng Private Land Buyers Association
Applicant
Setuke Family
Applicant
Thekwana Community
Applicant
Royal Bafokeng Nation
Respondent
Minister of Land Affairs
Respondent
Registrar of Deeds
Respondent
Mogono Community
Respondent
Chaneng Community
Respondent
Khunou Family
Respondent
Motepe Family
Respondent
Rantshabo Family
Respondent
Tsitsing Community
Respondent
Makgatlha Community
Respondent
Baphiring Community
Respondent
Mokgatle Family
Respondent
Mputle Family
Respondent
Commissioner for Restitution of Land Rights: North West Region
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Rule 7 Authorization.
Legal Issues
- 1 Whether the Royal Bafokeng Nation and its attorneys were properly authorized to institute proceedings against the Minister of Land Affairs.
- 2 Whether the litigation was properly authorized following oral evidence.
- 3 Whether leave to appeal should be granted to the respondents.
Ratio Decidendi
The court found that, following the referral to oral evidence, the litigation by the Royal Bafokeng Nation was properly authorized. However, the judge acknowledged that another court might reach a different conclusion on the issue of authorization. Consequently, leave to appeal was granted to the respondents against the whole of the judgment, except for the cost order, to the full Bench of the Division. The costs were ordered to be costs in the appeal.
Court Disposition
Leave to appeal granted to the respondents against the whole of the judgment, except for the cost order, to the full Bench of the Division. Costs are to be costs in the appeal.
Orders
- Leave is granted to the LRC clients to appeal against the whole of the order to the full Bench of this Division.
- Costs are to be costs in the appeal.
Full Case Text
Judgment text and source record
61 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH WEST DIVISION, MAHIKENG)
CASE NO.: 999/08
In the matter between:
BAFOKENG PRIVATE LAND BUYERS ASSOCIATION 1ST APPLICANT
SETUKE FAMILY
2NDAPPLICANT
THEKWANA COMMUNITY
3RD APPLICANT
and
THE ROYAL BAFOKENG NATION
1ST RESPONDENT
MINISTER OF LAND AFFAIRS
REGISTRAR OF DEEDS
2ND RESPONDENT
MOGONO COMMUNITY
3RD RESPONDENT
CHANENG COMMUNITY
4TH RESPONDENT
KHUNOU FAMILY
5TH RESPONDENT
MOTEPE FAMILY
6TH RESPONDENT
RANTSHABO FAMILY
7TH RESPONDENT
TSITSING COMMUNITY
8TH RESPONDENT
MAKGATLHA COMMUNITY
9TH RESPONDENT
BAPHIRING COMMUNITY
10TH RESPONDENT
MOKGATLE FAMILY
11TH RESPONDENT
MPUTLE FAMILY
12TH RESPONDENT
COMMISSIONER FOR RESTITUTION OF
13TH RESPONDENT
LAND RIGHTS: NORTH WEST REGION
JUDGMENT ON LEAVE TO APPEAL
Landman J:
Introduction
[1] The third, fourth and fifth respondents (the respondents) seek leave to appeal against the whole of my judgment (save the cost order) delivered on 31 May 2016.
[2] The judgment concerned an application in terms of rule 7 of the Uniform Rules of Court where the issue whether the Royal Bafokeng Nation (the RBN), a tribe or traditional community, and in consequence their attorneys, were authorized to launch an application against, inter alia, the Minister of Land Affairs (the Minister) for an order declaring that the Bafokeng tribe is the registered owner of the land held by the Minister of Land Affairs in “in trust for” for the Bafokeng tribe. I referred three issues or oral evidence and found that the litigation had been authorized.
[3] The respondents seek leave to appeal against my judgment on the grounds set out in their application and amplified in their heads of argument.
[4] I had referred the matter to oral evidence because I was convinced that it was important to decide the issue before hearing the merits. These considerations still apply even though the evidence led by the LRC clients seemingly accepts that the main application should be heard. The submission made during that application or leave to appeal that we don’t have the transcription of our evidence but the court must be wrong was, in my view, not the appropriate way to present a case.
[4] Nevertheless, I cannot say that another court would not have decided the matter differently so that there is a reasonable prospect of success on appeal. Leave should be granted to the respondents to appeal against the whole of my judgment. The issues are not of importance save to the parties. Leave should be granted to appeal to the full Bench of this Division. Costs should be costs in the appeal.
Order
[5] I make the following order:
1. Leave is granted to the LRC clients to appeal against the whole of my order to the full Bench of this Division. Costs are to be costs in the appeal.
2. Costs are to be costs in the appeal.
AA Landman
Judge of the High Court
APPEARANCES:
Date of hearing:
29 July 2016
Date of Judgment:
1 September 2016
Counsel for the Applicant:
Adv Loxton SC, Adv Antrobus SC & Adv Wesley instructed by Fasken Martineau Attorneys
Counsel for the Respondents:
Adv Budlender SC, Adv Cowen & Adv Tshetlo instructed by The Legal Resources Centre