Bakgatla-Ba-Kgafela Communal Property Association v Minister of Rural Development And Land Reform and Others (LCC 80/2012) [2013] ZALCC 16 (14 June 2013)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

CASE NUMBER: LCC 80/2012

DATE: 14 JUNE 2013

BAKGATLA-BA-KGAFELA COMMUNAL PROPERTY...........................................181 Applicant

ASSOCIATION

And

THE MINISTER OF RURAL DEVELOPMENT AND

LAND REFORM............................................................................................................181 Respondent

DEPARTMENT OF RURAL DEVELOPMENT AND

LAND REFORM............................................................................................................2nd Respondent

THE COMMISSION OF RESTITUTION OF LAND

RIGHTS...........................................................................................................................3rd Respondent

THE REGISTRAR OF DEEDS.....................................................................................4th Respondent

THE PREMIER OF NORTH WEST PROVINCE......................................................5th Respondent

THE MINISTER OF AGRICULTURE........................................................................6th Respondent

THE DEPARTMENT OF AGRICULTURE.................................................................7th Respondent

THE MINISTER OF MINERALS AND ENERGY.....................................................8th Respondent

THE DEPARTMENT OF MINERALS AND ENERGY.............................................9th Respondent

THE NORTH WEST PARK AND TOURISM BOARD............................................10th Respondent

BAKGATLA-BA-KGAFELA TRIBAL AUTHORITY..............................................11th Respondent

KGOSI NYALALA MOLEFE JOHN PILANE.........................................................12th Respondent

Of BAKGATLA-BA-KGAFELA TRIBAL AUTHORITY

THE REGISTRATION OFFICER OF THE COMMUNITY

PROPERTY ASSOCIATIONS....................................................................................13th Respondent

THE DIRECTOR GENERAL DEPARTMENT OF

LAND AFFAIRS............................................................................................................14th Respondent

MOSES KOTANE LOCAL MUNICIPALITY...........................................................15th Respondent

Heard on 6th March 2013

Before Matojane J

Judgment given on 14 June 2013

JUDGMENT

Matojane J:

[1] The Applicant seeks an order declaring it to be a registered Communal Property Association in terms of section 8 of the Communal Property Associations Act 28 of 1996, alternatively, an order directing the thirteenth Respondent to register the Bakgatla-Ba-Kgafelela Communal Property Association;

CPA/07/2032/A as such in the manner prescribed by Act 28 of 1996;

further alternatively an order directing the thirteenth Respondent to issue a certificate of registration as envisaged by section 8(3) of the above-mentioned Act to the Applicant.

[2] The Applicant approached the Court by way of urgency. The Respondents opposed the merits, and raised in limine, a number of defences including the issue of whether this Court has jurisdiction to hear the application and the issue whether the Applicant has locus standi. Due to the material dispute of facts, which arose during argument, the court referred the matter for the hearing of oral evidence on the following issues:

2.1. Whether the Applicant is an association that was established by a Community as envisaged in the definition of "community" in the Communal Property Association Act 28 of 1996 (the "Act");

2.2. Whether the act is applicable to the Applicant in terms of section 2(1) thereof;

2.3. Whether the Applicant was entitled to be registered as an association by the thirteenth Respondent in terms of the Act;

2.4. Whether the Applicant has in fact been registered by the thirteenth Respondent as an association in terms of the Act;

2.5. whether any land has been registered in the name of the Applicant following a successful land claim by the Applicant.

The parties

[3] The Applicant is a universitas, In terms of its Constitution the Association is meant to operate as a separate legal entity. Most of the Respondents in these proceedings have no real or direct Interest in this matter save for the eleventh respondent, who is the Bakgatla-Ba-Kgafela Tribal Authority and the twelfth Respondent who is Chief Pilane (Senior traditional leader) of the Bakgatla-Ba-Kgafela Traditional Community and the Chairperson of the Traditional Council.

Factual Background

[4J The Bakgatla-Ba-Kgafela traditional Community launched various land claims in respect of portions of land in and around Moruleng, North West Province. Amongst these portions of land is the land situated within the boundaries of the present day Pilanesburg National Park, which is state owned. Chief Pilane launched one land claim and the other claim was launched by Mr. Lempone Moyo but in respect of different portions of land.

[5] The Community qualified for registration of an association in terms of section 2(1 )(b) of the CPA as a consequence of the settlement of their land claim in accordance with section 42(D) of the Restitution of Land Rights Act 1994. Several farms were awarded to the community.

[6] For purposes of transfer of the claimed properties, the Third Respondent enlisted the services of Mokonyane Incorporated, a firm of attorneys, to facilitate the process for establishment and registration of a legal entity that should hold the property on behalf of the community. Mokonyane Incorporated have submitted a report on the selected legal entity and adopted constitution.

[V2 - P251]

[7] According to the report compiled by Mokonyane Incorporated, an introductory meeting was held on 2nd September 2005 at the tribal hall to elect village committee members to participate in workshops for the formation of a legal entity. Mr. Isaac Peter and Mr. Ivan Leyds, authorised officials from the Third Respondent were present. The reason for the establishment of village committees was that the Bakgatla-Ba-Kgafela tribal Community consisted of twenty-nine Villages, which are scattered throughout and therefore it was impossible to hold workshops with all beneficiaries. Village committees consisted of a headman, two older persons, and two

young persons. The Eleventh and Twelfth Respondents, through their attorneys, raised certain concerns over the process and in order to address their concerns, a meeting was arranged between the Eleventh, Twelfth respondent, officials of the Third Respondent and Mokonyane. The Eleventh and Twelfth respondents agreed at the meeting to appoint three people, namely, Mr. Kobedi Pilane, Mrs. Grace Masuku and another person to represent them in the process. Various workshops were conducted between 8th October 2005 to 13th December 2005.

[8] The service provider, Mokonyane Inc. discussed and explained various legal entities such as Communal Property Associations, Trusts, Companies, Close Corporations, Partnerships, and Voluntary Associations. An opportunity was created for the participants to debate and ultimately choose one preferred legal entity. The participants chose a Communal Property Association as a preferred legal entity. The draft constitution was discussed in detail with the participants. On the 3rd December 2005 participants unanimously adopted the Constitution supervised by Mr. Ivan leyds, T Moroka and N Maleka who were officials from the Third Respondent. Mr. Lempone Moyo was elected a chairperson of the Communal Property Association.

[9] On 111,1 May 2007 an application for the registration of the Bakgatla-Ba- Kgafela Communal Property Association in terms of section 8(3) of the Act was approved by the Provincial Chief Director, Ms. Paula Mongae, who has been delegated the function to certify compliance with Section 5(2) of the Act. On 10th September 2007 the Director Tenure Reform Implementation System of the Second respondent, Mr. Thaelo Jeff Sebape, who has been delegated the function to satisfy himself that there has been substantial compliance with, amongst others, Section 8(2)(a) recommended that the Association should be registered.

[10] The Eleventh and Twelfth Respondent rejected the idea of a Communal Property Association as an entity that should receive and administer the restored land. The tribal authority and the chief preferred a trust as the vehicle that should hold the property on behalf of the community. The Eleventh Respondent and the Twelfth Respondent called a general meeting at which new elections were held. Mr. Motshegare, a community member was elected a chairperson and Mr. Moyo, who had lodged a separate daim for his village was elected a vice-chairman.

[11] Due to the dispute as to what legal entity should be used to own the land, the intervention of the then Minister of Agriculture and Land Affairs, Minister L Xingwana was sought. The Minister convened a meeting of relevant stakeholders. At this meeting the Minister directed that a Provisional Communal Property Association should be registered for a period of 12 months and that the Community should resolve their problems during that period.

[12] Pursuant to the Minister's instructions a provisional Bakgatla-Ba- Kgafela Communal Property Association was established and registered in terms of section 5(3) of the Communal Property Act 28 of 1996. The land was duly registered in the name of the Association. The Applicant failed to adopt a Constitution within a period of 12 months as allowed for it do so in terms of section 5(5) of the Act.

[13] It is necessary to consider the points in limine before the applicable legislation and legal arguments presented by the parties can be considered.

Jurisdiction

[14] Counsel for the respondents submitted In his heads of arguments and In Court that the Communal Property Association Act does not grant jurisdiction to the Land Claims Court over Communal Property Associations or their administration. The only jurisdiction expressly granted to the Land Claims Court, he argued, is that in respect of restitution claims lodged in terms of the Restitution Act and the Land Reform (Labour Tenants) Act. He submitted that Section 13 of the Act only gives certain specific powers to the High Court or a Magistrate’s Court relating to the administration, liquidation and deregistration of the Communal Property Associations.

[15] In my view, jurisdiction can be found in the provisions of section 22{2)(c) of the Restitution Act which reads as follows:-

“Subject to chapter 8 of the Constitution, the court shall have jurisdiction throughout the Republic and shall have-the power to decide any issue in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, If the Court considers it to be in the interest of justice to do so”

[16] What Is required to confer jurisdiction on this Court in terms of the above section is, firstly, that the issue to be decided is incidental to an issue within the jurisdiction of the Court and, secondly, that the Court considers it to be in the interests of justice to do so.

[17] The issue before the Court as I understand it, is whether the Bakgatla-Ba-Kgafela Association is a duly registered Association. This, in my view, is incidental to the issue of whether an Association or another legal entity should be formed to own the land obtained by means of the Land Restitution Act. Though the latter issue is not before the Court there is sufficiently close relationship between the land claim and the establishment and registration of the association in terms of the Communal Property Association Act to render the issue in dispute incidental to an issue within the jurisdiction of this Court.

[18] I am satisfied that the interest of justice requires this Court to assume jurisdiction because when the matter was argued in the opposed motion court, the parties agreed to a draft order which was made an order of Court. The parties have led evidence and witnesses were cross-examined. This Court

has heard argument on the merits of the matter and is seized with all the facts to make a decision and finalise the matter. Most importantly, the parties have submitted to the jurisdiction of this. See Mediterranean shipping Co v Speedwell shipping Co. Ltd 1986 (4) SA 329D at 333 E-G. It is therefore in the interest of justice that the issue before me, been incidental to a land claim, be determined by this court.

Locus standi

[19] The Respondents disputed the locus standi of the Applicant on the basis that the lifespan of the Provisional Communal Property Association came to an end after a period of 12 months with effect from the date of registration and accordingly, no legal persona known as the Bakgatla-Ba-Kgafela Communal Property Association exists.

[20] Section 5(4) of the Act provides as follows:

“(4) Upon registration of a provisional assodation-

(a) the provisional association may acquire a right to occupy and use land for a period of 12 months from the date of registration of the provisional association: Provided that the Director-General may extend the period of 12 months for a further period of 12 months only If he or she extends the period referred to in subsection (5) for a further period of 12 months;

(b) the provisional association shall not, until the registration of an association in terms of this Act, in any way alienate such right in land;

(c) the provisional association shall be a juristic person with the capacity to sue or be sued."

[21 ] It is clear that a Provisional Communal Property Association does not cease to exist after 12 months. It only loses the right to use the rights in land it acquired if it is not registered in terms of the Act within the stipulated period. The Applicant remains a juristic person and has only lost the right to occupy and use the land as a registered owner. As indicated earlier, the land in issue Is a National Park accordingly, the right to use the rights In land has reverted back to the state.

The evidence

[22] The Applicant called only one witness, Mr Lempone Moyo. The first, second, thirteenth and fourteenth Respondents called three witnesses, namely Ms. Barati Mosiapoa, Mr. Thaelo Sebape and Mr. Isaac Peter to give evidence on their behalf.

[23] Mr. Moyo testified about the process Mokonyane attorneys followed and how the decision was taken that a Communal Property Association should be established. He was subsequently elected a chairperson of the Association in 2005. All steps were taken and all requirements had been met for registration of the permanent association. He relied on various documentations and numbering in various memoranda produced by the department, including the annual report submitted to Parliament to conclude that registration had Indeed taken place.

[24] Mr Moyo testified that in the discussion with the Minister it was agreed that an interim structure should be formed for purposes of creating a permanent

association.

[25] Ms. Mosiapowa, a project officer in the office of the Second Respondent at the time, testified that she started working with the claim during the second attempt to register a legal entity. She was never given a handover report and was not aware of the Mokonyane report. She held various workshops with the Bakgatla-ba-Kgafela Community and the tribal authority, during which they were advised as to the different options available as far as land ownership is concerned. She testified that the Community supported the idea of a Communal Property Association. The Eleventh Respondent and the Twelfth Respondent were against the formation of an association, and in favour of the establishment of a trust.

[26] The Regional Land Claim Commissioner requested the then Minister, Ms L Xingwana, to intervene and convince the Twelfth Respondent to agree to an association. The Minister convened a meeting during or about the end of 2006. At this meeting, the Minister proposed that a provisional association should be registered for a period of 12 months and that the Community should resolve

[27] She testified that ail the parties at the meeting with the Minister, including the Chief and the elected committee agreed that a provisional association should be registered. After registration of the provisional association and after the handing over ceremony was held, she again went back to the Chief to discuss the future of the land claim. The chief was adamant that he wanted a trust to be established and chased them away.

[28] Mr. Sibape is the Director in the Directorate for Tenure Security within the Second Respondent. He is also the Registration Officer of the Communal Property Associations appointed in terms of the Act by the Director-General to keep the register of Associations. He testified that Ms. Munyai, who was the authorised officer, called him to a meeting with the Minister and other interested parties to be a witness. No one objected when the Minister instructed Ms. Munyai to see to it that a Provisional Communal Property Association should be registered. He admitted under cross-examination that the registration of a permanent association in terms of section 8(3) was recommended, that he approved the recommendation on 10th September 2007 but failed to comply with his own instruction (now acting as Registrar) when he registered the provisional Communal Property association on the insistence of the Minister.

[29] Mr. Isaac Peter testified that during June 2006 he was a chief planner in the office of the Regional Land Claims Commissioner for North West and Gauteng Provinces. He was involved in the initial processes aimed at establishing a legal entity for the Bakgatla-Ba-Kgafela community. He confirmed that a service provider, Mokonyane Incorporated, was hired to assist in facilitating workshops. They consulted the tribal office and explained the process. The chief appointed three people to work with them namely, Mr.Kobedi Pilane, Mrs. Grace Masuku and a third person. He explained how the Community was structured for the purposes of establishing village committees. In each of the twenty-nine villages, five people including the headman were elected and constituted a village committee. He testified that in all the villages, a Communal Property Association was chosen as a preferred vehicle to own the restored land.

Applicable legislation

[30] The registration of Communal Property Associations is regulated by the Communal Property Associations Act 28 of 1996 and the regulations promulgated under the said Act. The relevant sections of the Act are the following:

“8. Registration of associations - (1) The Director-General shall consider an application for registration of an association together with any prescribed information, the report referred to in section 7(2) and the constitution adopted by the association.

(2) An association shall qualify for registration if-

(a) the provisions of this Act apply to the Community concerned;

(b) the association has as Its main object the holding of property in common;

(c) the constitution adopted by it complies with the principles set out in section 9;

(d) the constitution adopted by it deals with the matters referred to in the Schedule;

(e) the meeting or meetings referred to in section 7 were attended by a substantial number of the members of the community; and

(f) the resolution to adopt the draft constitution was supported by the majority of the members of the Community present or represented at the meeting or meetings:

Provided that the Director-General may cause an association to be registered if [he] or she is satisfied that-

(i) there has been substantial compliance with the provisions of paragraphs (a) to (f) of this subsection;

(ii) the constitution reflects the view of the majority of the members of the association; and

(iii) the constitution has been adopted through a process which was substantially fair and inclusive.

(3) (a) if the Director-General is satisfied that the association qualifies for registration he or she shall refer the application, constitution and his or her own written consent, to the Registration Officer, who shall register the association in the prescribed manner, allocate a registration number, and issue a certificate of registration.

(b) The Registration Officer shall keep a register of registered provisional associations, associations and similar entities to which the provisions of this Act have been made applicable in terms of section 2(3).”

[31] It would appear from a departmental memorandum dated 11th May 2007 that the Provincial Chief Director of the Second Respondent investigated an application made by the Association for the registration of the association in terms of section 8(3) of the Act. The Provincial Chief Director recorded that the Constitution had been adopted at a meeting that was arranged for that purpose. She further recorded that there had been substantial compliance with Section 8(2) of the Act and recommended to the Director-General that the Association be registered in terms of Section 8(3) of the Act. The Director-General approved that recommendation on 10th September 2007.

[32] Section 8(3)(a) provides that if the Director-General is so satisfied he shall refer the application, Constitution and his own written consent to the Registration Officer who shall register the association in the prescribed manner. Section 8(4) provides that if the Director-general is not satisfied that the association qualifies for registration he shall notify the Community of the steps to be taken to procure registration of a permanent association.

[33] Mr. Sebapi, who was delegated by the Director General, In terms of

section 8(2) of the Act, to satisfy himself that there has been a substantial compliance with section 8(2)(a) to (f) of the Act, was satisfied himself that there has been compliance with section 8(2)(a) to (f) of the Act and thereafter referred the application to himself (in his other capacity) as a Registration Officer for

registration. The Act defines the "Registration Officer" as an officer of the Department of Land Affairs appointed by the Director-General as a Registration Officer. If follows that the Director-General and a Registration Officer cannot be one and the same official, for this reasons alone, the action of Mr. Sebapi in referring the application to himself (in his other capacity) as a Registration Officer for registration is null and void for absurdity. Consequently, the application that qualified for registration was, in my view, never registered.

[34] In my view, the action of Mr. Sebabi is invalid on another ground, as the Act does not give a Registration Officer the discretion to decide whether to register or not to register an association; once the registration of an association is approved by the Director General, the Registration Officer must register it as such. Mr. Sebapi failed to comply with his own instruction and registered the association provisionally instead on instructions from the Minister. The Act does not give the Minister nor the stakeholders any power to set aside a recommendation by the Director-General. I disagree with the submission by counsel for the eleventh and twelfth Respondents that the parties could validly reach an agreement with the Minister, to override the recommendations by the Director-General and convert an approved application for permanent registration to a provisional one and instruct the Registration Officer accordingly. The Minister has no role to play in the registration process.

[35] Neither counsel appearing for the Respondents made any reference to the [V2 - P251] Mokonyane report nor was the evidence of Mr Peter, that all the requirements for the Applicant to be registered permanently has been met, challenged. Mr. Gumbi and Mr. Sebapi alleged that the recommendation by Ms.Mongae to register the Association in terms of section 8 of the Act was made in error but fails to explain what the error was and why the supposed erroneous recommendation was approved by Mr. Sebapi. Mr. Sebapi for

his part could not give a satisfactory explanation why he failed to comply with his own instruction.

[36] It is clear from the following documentary evidence that the Second Respondent was aware and accepted that the Applicant had been registered in terms of Section 8 of the Act. Firstly, the Second Respondents Departmental Annual Report 2009/2010 to Parliament Indicated that the Association was permanently registered. Secondly, the original Register of Associations that was produced in Court Initially indicated that a permanent registration had taken place but was subsequently amended by the deletion of the “A” and substituting that with HP". There is nothing to show that the rectification of the register was done in a formal and authorised manner. Thirdly, on the 20 April 2011 the department wrote a letter to the Chairman of the Association admitting that a committee was elected in 2007 and that Its term of office had expired and fresh elections should be held- it would not have been necessary to call for fresh elections if indeed the association was registered provisionally. Fourthly. Mr. Gumbi who deposed to an answering affidavit on behalf of First, Third, Thirteenth and Fourteenth Respondent conceded that certain documents in the possession of the Commission created an impression that final registration may have taken place, lastly, Ms.Mongae, the authorised officer in North West, certified that all requirements had been met for final registration.

[37] Counsel for the First, Third, Thirteenth and Fourteenth Respondents pointed out that the Second Respondent is busy trying to mediate the dispute In this matter, He submitted that the dispute is pre-eminently, the type of dispute that must be mediated in terms of Section 13 of the Restitution Act. He urged the Court to order that the proceedings be stayed in terms of Section 35A(1Xb) pending finalisation of the existing mediation process.

[38] The dispute in this matter is whether the newly restored land should be controlled and administered by a traditional authority or by a democratically elected Association. The evidence of Mr Peter and the Mokonyane report shows that the traditional authority took part in a transparent and democratic process that led to the eventual adoption of a Constitution and election of the Communal Property Association. The Eleventh and the Twelfth Respondent must accept that the rule of law is a system in which no one, including government, is above the law, decisions are made by voting with a majority determining the position of the entire group. The majority decision of the Bakgatla-Ba-Kgafela traditional community is that a Communal Property Association is a preferred legal entity to own the land. In my view, it is not necessary to refer the dispute to mediation, as the people have spoken. This is in line with section 195(1) of the Constitution, which requires public administration to be governed by the democratic values and principles.

[40] In my view, the registration of the provisional association was not authorised by law. All the requirements for the registration of a permanent association have been met and the Registration Officer failed to carry out a recommendation by the Director-General to register the Association in terms of section 8(3) of the Act. The association can accordingly be registered.

[41] In the result the following order Is made:

1. The Applicant is declared an Association that was established by a community as envisaged in the definition of “Community’’ In the Communal Property Association Act 28 of 1998;

2. The Applicant was entitled to be registered permanently as an Association by the Thirteenth Respondent;

3. The Thirteenth Respondent is directed to effect the permanent registration of the Bakgatla-Ba-Kgafela Communal Property Association: CPA/07/2032/A as such in the manner prescribed by Act 28 of 1996 and upon registration to issue a certificate of registration in terms of section 8(3) of such Act.

KE MATOJANE J LAND CLAIMS COURT

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

Heard on 11th October 2013

In the matter between:

BAKGATLA-BA-KGAFELA COMMUNAL PROPERTY............................................18t Applicant

LAND REFORM.............................................................................................................1st Respondent

BAKGATLA-BA-KGAFELA TRIBAL AUTHORITY.............................................11 th Respondent

KGOSINYALALA MOLEFE JOHN PILANE..........................................................12th Respondent

Order

Having read the papers and having heard Counsel, the following order is made:

1. Leave to appeal to the Supreme Court of Appeal is granted.

2. Cost are to be cost in the appeal.