Bafokeng Private Land Buyers Association and Others v Royal Bafokeng Nation and Others (999/08) [2016] ZANWHC 45 (1 September 2016)
- Citation
- [2016] ZANWHC 45
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North West High Court, Mafikeng
- Panel
- AA Landman
- Case number
- 999/08
More details
- Court
- North West High Court, Mafikeng
- Panel
- AA Landman
- Case number
- 999/08
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
02
Material facts
Parties
Bafokeng Private Land Buyers Association
Applicant Counsel: Adv Loxton SC, Adv Antrobus SC & Adv WesleySetuke Family
Applicant Counsel: Adv Loxton SC, Adv Antrobus SC & Adv WesleyThekwana Community
Applicant Counsel: Adv Loxton SC, Adv Antrobus SC & Adv WesleyRoyal Bafokeng Nation
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloMinister of Land Affairs
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloRegistrar of Deeds
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloMogono Community
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloChaneng Community
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloKhunou Family
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloMotepe Family
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloRantshabo Family
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloTsitsing Community
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloMakgatlha Community
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloBaphiring Community
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloMokgatle Family
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloMputle Family
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv TshetloCommissioner for Restitution of Land Rights: North West Region
Respondent Counsel: Adv Budlender SC, Adv Cowen & Adv Tshetlo03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Rule 7 Authorization.
04
Questions and positions
Legal issues
- 01
Whether the Royal Bafokeng Nation and its attorneys were properly authorized to institute proceedings against the Minister of Land Affairs.
- 02
Whether the litigation was properly authorized following oral evidence.
- 03
Whether leave to appeal should be granted to the respondents.
Party arguments
- Applicant
- The applicants argued that the Royal Bafokeng Nation, as a tribe or traditional community, was duly authorized to launch the application against the Minister of Land Affairs for a declaration of ownership of land held in trust. They submitted that oral evidence confirmed the authorization and that the litigation was properly instituted.
- Respondent
- The respondents contended that the Royal Bafokeng Nation and its attorneys were not properly authorized to institute the proceedings. They challenged the sufficiency of the oral evidence and maintained that the court erred in finding that the litigation was authorized. They argued that there was a reasonable prospect that another court would reach a different conclusion.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 7
A court may refer disputed issues of authority to oral evidence where necessary to resolve factual disputes.
- 02
Section 17(1)(a), Superior Courts Act 10 of 2013
Leave to appeal should be granted where there is a reasonable prospect that another court may come to a different conclusion.
06
Ratio, limits and disposition
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.
Obiter and limits
- The issues raised are not of general importance but are significant to the parties involved.
- The absence of a transcription of evidence does not justify disregarding the findings of the court.
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.
- 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.
Source and reliance status
North West High Court, Mafikeng
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North West High Court, Mafikeng
Judgment
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
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