Bakhatla Basesfikile Community Development Association obo Descendents of Molefe Molemi and Others v Bakgatla ba Kgafela Tribal Authority and Others (320/11) [2011] ZANWHC 66 (1 December 2011)

IN THE NORTH WEST HIGH COURT

(MAFIKENG)

CASE NO: 320/11

In the matter between:

BAKGATLA BASES’FIKILE COMMUNITY

DEVELOPMENT ASSOCIATION O.B.O

DESCENDANTS OF MOLEFE MOLEMI

AND 51 OTHERS …...........................................................1ST APPLICANT

SEATI CORNELIUS NTSHABELE …...............................2ND APPLICANT

and

BAKGATLA BA KGAFELA TRIBAL

AUTHORITY …..............................................................1ST RESPONDENT

CHIEF NYALALA PILANE ….......................................2ND RESPONDENT

MINISTER OF RURAL DEVELOPMENT

AND LAND AFFAIRS …...............................................3RD RESPONDENT

MINISTER OF MINERAL AND ENERGY ….................4TH RESPONDENT

DEEDS REGISTRY …..................................................5TH RESPONDENT

MOSES KOTANE LOCAL MUNICIPALITY …..............6TH RESPONDENT

JUDGMENT

LEEUW JP:

Introduction

[1] The applicants approached this Court per Notice of Motion seeking an order in the following terms:

“1. The third respondent transfer to the first applicant the title deed of the then undivided one and half (½)) part or share of and in the remaining extent of South Western portion of the quitrant farm Spitskop no. 298 situated in the district of Rustenburg Ward Elandrivier, measuring as such 1714 morgen and 66 square roads acquired by the Deed of transfer no 381909 dated the 03rd July 1909 and now known as Portion 2 of Farm Spitskop 410 KQ;

2. the transfer of title deed of Portion 2 of Farm Spitskop 410 KQ to Chief Ramono Kgamanyane Pilane in trust on behalf of the first applicant is unconstitutional;

3. Costs of suit;”

[2] This application was initially filed with the Registrar of the North Gauteng High Court on the 14 June 2010 and was transferred to this Division by order of that Court on 31 January 2011, probably because of lack of jurisdiction by that Court to adjudicate over this matter.

[3] The application is opposed by the first and second respondents. The third respondent filed a notice to abide by the decision of this Court, while the rest of the respondents did not file any notice to oppose the application.

[4] The first and second respondents (“the respondents”) took the following preliminary points against the application:

that there is no proof that the first applicant is a juristic person able to sue or be sued in its own name;

that the applicants, in so far as they claim to be a traditional community with its own leader and with a separate existence from the rest of the larger traditional community of the Bakgatla-Ba-Kgafela, should have shown that they have been duly recognised as such in terms of the provisions of the TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT NO. 41 OF 2003 (Traditional Leadership Act, 2003) and of the NORTH WEST TRADITIONAL LEADERSHIP AND GOVERNANCE ACT No.2 of 2005 (North West Leadership Act,2005)

that, the gravamen of this application, though couched otherwise, concerns restitution of land, a process that should have been undertaken

under the Restitution of Land Rights Act 22 of 1994 ( the Restitution of Land Rights Act ) which inter alia, grants the Land Claims Court exclusive jurisdiction to adjudicate over matters of this nature and it is therefore not within the jurisdiction of this Honourable Court;

that there is no evidence to confirm that the members of the first applicant, and in particular the second applicant who deposed to the Founding Affidavit on behalf of the first applicant, existed or experienced the occurrences and the allegations referred to in the said affidavit;

(v) that the resolution relied upon by the applicants does not authorise the institution of this Application.

Before I proceed with the points in limine, I will first deal with the background facts relied upon the applicants.

Background Information

[5] The second applicant (Ntshabele) states that he is the chairperson of the first applicant (Bakgatla Ba-Sesfikile Community) and one of the descendants of the fifty two (52) purchasers of the property, Portion 2 of Farm Spitskop 410 KQ, (The Farm) of the Bakgatla Ba-Sesfikile Community.

[6] He asserts that the Farm was purchased on the 28 October 1910 by the 52 purchasers from its owners Hirschowitz and Romm Firm, for an amount of eight hundred British Pounds (£800) raised by way of cash and donations in a form of livestock contributed by the aforesaid 52 purchasers. According to Ntshabele, these 52 purchasers came from the second respondent’s community as well as surrounding areas of the Farm. Because of the racial and discriminatory laws at the time which prohibited Africans from owning immovable property as individuals, save through the Chief or Kgosi on behalf of the tribe, the 52 purchasers approached Chief Ramono Kgamanyane Pilane (Kgosi Ramono Pilane) and requested him to buy the Farm on their behalf.

[7] In terms of the Title Deed relied upon by the Applicants, the Farm was initially held by the Minister of Native Affairs in trust and transferred to Chief Ramono Kgamanyane Pilane in “trust for the Bakgatla Tribe of Natives.” The Farm was subsequently transferred by way of an endorsement on the Title Deed to the President of the Republic of Bophuthatswana in Trust for the Bakgatla Tribe, and is currently registered under the Government of the Republic of South Africa and held in trust for the Bakgatla Tribe.

[8] It is common cause that the first respondent, the Bakgatla-Ba-Kgafela Community is comprised of 32 sub-villages. The members of the village occupying the Farm are known as the Bakgatla Ba Ses’fikile Community, which is one of the 32 sub-villages falling under the first respondent (Tribal Authority).

[9] The capital village of the Bakgatla-Ba-Kgafela is at Moruleng also known as Saulspoort, where the seat of the second respondent (Kgosi Nyalala Pilane) as the Senior Traditional Leader of the Bakgatla-Ba-Kgafela Traditional Community is located. The community which is under his leadership, consists of approximately 300 000 (three hundred thousand) people. However, Ntshabele states in his affidavit that the “traditional incorporation of Sesfikile village to Bakgatla Ba-Kgafela was influenced by their property being held in trust on their behalf by the second respondent’s predecessor who was for the first respondent’s tribe”.

[10] It is also common cause that historically, the Bakgatla-Ba-Kgafela community consists of the Bakgatla-Ba-Kgafela (based in Saulspoort) as well as the Bakgatla Ba-Kgafela who have settled at Mochudi in Botswana, and are connected in consanguinity under the leadership of the paramount chief in Mochudi, Botswana. Furthermore, it is their tradition that the Kgosi is appointed by the Paramount Chief of the Bakgatla-Ba-Kgafela based in Botswana. The present Paramount Chief Kgosikgolo Kgafela of Botswana appointed the present Kgosi Nyalala Pilane and enthroned him in 1996 as Chief Kgosi of the Bakgatla-Ba-Kgafela in Saulspoort.

[11] Kgosi Nyalala Pilane’s appointment was approved by members of the Royal Family of the Bakgatla-Ba-Kgafela as well as the Traditional Council of the Bakgatla-Ba-Kgafela Community at a duly constituted meeting held in accordance with the customary laws and customs of the Bakgatla-Ba-Kgafela Traditional Community. The appointment of Kgosi Nyalala Pilane as well as the Traditional Council have been established and recognised by the Premier of the North West in accordance with section 3 of the Traditional Leadership Act No.41 of 2003 read with the North West Traditional Leadership Act, 2005. The Traditional Council has been duly constituted and recognized as the governing authority of the Bakgatla Ba-Kgafela, under the leadership of Kgosi Nyalala Pilane.

[12] The Applicants assert that the forebears of the Bakgatla-Ba-Sesfikile bought the Farm which was transferred on 12 July 1912 to Chief Ramono Kgamanyane “Linchwe” Pilane who unconditionally held the Farm in trust on their behalf. They further contend that the transfer of the then undivided one and half share of the remaining extent of the South Western portion of the property, previously known as Farm Spitskop No.298 to Chief Ramono Kgamanyane Pilane in trust, was unconstitutional. I will deal with the latter issue later in my judgment and will proceed to deal with the points in limine raised by the respondents.

Points in limine

[13] “That there is no proof that the first applicant is a juristic person able to sue or be sued in its name.”

13.1 The Respondents’ counsel argued that the first applicant described itself in the papers as “a community and a juristic person established and recognised as such” and yet there is nothing attached to their papers in support thereof.

13.2 It is correct that the applicants should have substantiated the allegation that the Bakgatla-Ba-Sesfikile is a juristic person in order to have locus standi to institute this application in its own name as required by Rule 14 of the Uniform Rules of Court.

13.3 However, if the applicants have approached this court as an association, it would not be necessary as a community, to have a written constitution in order for it to sue or be sued in its own name separate from its members. See Ex parte Doornfontein-Judiths Paarl Ratepayers Association 1947 (1) SA 476 (W). Burger vs Rand Water Board 2007 (1) SA 30 SCA at 34E and EX – TRTC United Workers Front & Others vs Premier Eastern Cape Province 2010 (2) SA 114 (ECB).

13.4 The applicants’ counsel contended that the Bakgatla-Ba-Sesfikile approached this Court in terms of section 38 (e) of the Constitution of the Republic of South Africa Act of 1996 (the Constitution) which provides that:

“38. Enforcement of rights. - Anyone listed in this section has the right to approach a competent Court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –

(a) . . . . .

(b) . . . . .

(e) an association acting in the interest of its members.”

13.5 The applicants can approach a court as an association on the basis of section 38(e) of the Constitution only if they allege that a right in the Bill of Rights has been infringed or threatened. In the present application, Ntshabele alleges that the right infringed is the arbitrary deprivation of their right to the Farm which right is protected by section 25 of the Constitution.

13.6 In Burger vs Rand Water Board and Another supra at p.34 the Court per Brand JA et Mlambo JA, held the following view:

“[11] Prior to the introduction of Rule 14, the citation of unincorporated associations of natural persons presented difficulty. In essence, each individual member of the association had to be joined and cited by the name. If not, the summons would fall foul of the non-joinder rule (see e.g. Sliom v Wallach’s Printing and Publishing Co Ltd 1925 TPD 650 at 655). The purpose of the Rule is therefore to simplify procedure by avoiding technical defences of non-joiner. After all, as

is the situation in the present case, on the facts pleaded, the plaintiff may not even know who the individual members of the association are. At the same time, as Harms JA said in D F Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) ([2002] 3 All SA 1) at 301H-J (SA), the Rule does not turn an association into a juristic person and it has no impact on substantive rights at all.

[12] Therefore, if we find that Rule 14 applies in this case, we do not suggest that it will make any inroad into the substantive rights of the member of the Club Twelve. If, for example, the individual members are, in fact, the owners of the structures involved, they will retain those rights. The only effect of such a finding will be that the appellant will be able to avoid the citation of all the individual members whose names are unknown to it. Otherwise stated, the members of Club Twelve will be regarded as if they had been cited individually by name which would, of course, provide a conclusive answer to the appellant’s special plea.”

13.7 I am of view that the Bakgatla-Ba-Sesfikile is not a juristic person but an association which lacks the essential elements of a

universitas but which in the circumstances, and in accordance with Rule 14, can be cited in lieu of its individual members and thus have locus standi to sue in its own name.

[14] Is this an application in terms of the Restitution of Land Rights Act No.22 of 1994?

14.1 It is submitted by Counsel for the respondents that from the allegations made in the founding affidavit of Ntshabele, it is evident that the Bakgatla-Ba-Sesfikile profess to have been dispossessed of their ancestral land by virtue of the then discriminatory laws that did not allow land to be registered in their own name but rather in the name of the Chief or Kgosi who held the farm in trust on their behalf.

14.2 Although the applicants’ Counsel argued that this is not a case which falls to be adjudicated under the Restitution of Land Rights Act, the reason being that the Bakgatla-Ba-Sesfikile were not physically dispossessed of the Farm, Ntshabele, to the contrary, alleges that

they were “arbitrarily deprived of their property for no reason without compensation in contravention of section 25 of the

Constitution of the Republic of South Africa Act 108 of 1996.” He further states that:

“. . . according to racial discriminatory laws, the first applicant’s ascendants were prohibited in their personal capacity as individuals, association and/or company to make transactions concerning the land.”

14.3 The question as to whether or not the Bakgatla-Ba-Sesfikile were deprived of the Farm arbitrarily, and whether they are entitled to the restitution of the Farm by relying on the common law or the Restitution of Land Rights Act, is an issue that has to be determined when the substantive issues on the merits are dealt with later in my judgment.

14.4 Furthermore, the Farm at issue was allegedly purchased in 1910, whereas the Restitution of Land Rights Act provides for land dispossessed after June 1913.

14.5 I need not deal with the merits of this case at this stage other than to find that the preliminary point raised by the respondents shall not succeed solely on the basis that the applicants’ counsel submitted that the applicants do not place any reliance on this Act.

[15] “The applicants have failed to show that they are a recognised traditional community in terms of the Traditional Leadership and Framework Act and the North West Traditional Leadership Act.”

15.1 As to whether or not the Bakgatla-Ba-Sesfikile should first be recognised as a traditional community in accordance with the provisions of the Traditional Leadership Act 2003 as well as the North West Traditional Leadership Act 2005, is an issue which must be proved by the applicants on a balance of probabilities by the applicants when their substantive rights to the Farm are being established. This question has no bearing on the right of the applicants to bring an application asserting their purported right to the Farm.

15.2 The locus standi of the Bakgatla-Ba-Sesfikile must be established from the fact that it is an association which under adjectival law has the locus standi to institute this application, but does not necessarily elevate the associstion to the status of a “traditional community” as defined in the abovementioned Acts.

[16] The resolution relied upon by Ntshabele does not authorise him to institute this application

16.1 Ntshabele purports to have been duly authorised to depose to the founding affidavit on behalf of the Bakgatla-Ba-Sesfikile Community and in his capacity as a chairperson and descendent of “one of the fifty-two family members of the first applicant”, whereas the Resolution attached to his founding affidavit (SCN1) only contains 40 signatures and the identity of those persons as descendants of the 52 purchasers of the Farm is not established.

16.2 For the same reasons stated in paragraph 13 above, I am of the view that the applicants can approach the court as an association in terms of Rule 14 of the Uniform Rules of Court. I will however deal with this issue later in my judgment.

Analysis of issues (the Merits)

[17] The questions to be decided on the merits are:

Whether the transfer of the Farm to Chief Ramono Pilane and his successors in title held in trust for the Bakgatla Tribe, can be declared unconstitutional;

Whether the Farm at issue was held in trust by Chief Ramono Kgamanyane Pilane on behalf of the 52 purchasers of the Bakgatla-Ba-Sesfikile Community or was held in trust on behalf of the Bakgatla-Ba-Kgafela Community inclusive of the Bakgatla-Ba-Sesfikile;

Related to (b) whether the 52 purchasers of the Bakgatla-Ba-Sesfikile Community, that is the forebears of the applicants, purchased the Farm to the exclusion of the Bakgatla-Ba-Kgafela; and

Whether the applicants are entitled to an order transferring the Farm to them as an association, to the exclusion of the other members of the thirty-one (31) sub villages which comprise the Bakgatla-Ba-Kgafela.

[18] With regard to the above issues, it is common cause that the Farm, according to the title deed, was registered on 12 August 1912 in the name of Kgosi Ramono Kgamanyane Pilane and “his successors in office” who hold it in trust on behalf of the Bakgatla Tribe. The said Farm was bought for £800.

[19] It is also common cause that on the 11 September 1918, the said Farm was subsequently transferred to the Minister of Native Affairs who held the Farm “in trust for the Bakgatla Tribe under Chief Linchwe K. Pilane”.

[20] It is also not in dispute that the Farm was registered under the then Bophuthatswana Government and subsequently transferred to the Republic of South Africa, and held in trust by the Kgosi for the Bakgatla Tribe.

[21] The grounds relied upon by the applicants for declaring unconstitutional the transfer of the title deed of the Farm to Chief Ramono Kgamanyane Pilane, can be summarised as follows:-

(a) That during 1910, the applicants’ forebears as Africans, were prohibited from owning immovable property or having same registered

in their own names because of the racial and discriminatory laws that prevailed at the time;

(b) that the forebears of the applicants contributed to the purchase amount of the Farm which they were buying for themselves, but in order to bypass the discriminatory laws as aforesaid, the Farm was transferred to Chief Ramono Kgamanyane Pilane to hold it in trust on their behalf. The reason therefore was that it was then permissible for a Chief to own land under those circumstances, on behalf of the tribe. Ntshabele asserts that their forebears’ efforts to own land was “fruitless as what they gained was solely informal [sic] right of land use”. Ntshabele further contends that “the second respondent acts as if the first applicant have [sic] a right in respect of ‘the property’ by rendering servitude right to mining prospectus over ‘the property’

without the first applicant’s consent . . . ”.

(c) The Farm was in actual fact bought by funds contributed by the forebears or the 52 purchasers of the various families of the Bakgatla-Ba-Ses’fikile, who were “arbitrarily deprived of ‘the property’ for no reason without compensation and against section 25 of the Constitution”.

[22] I have already alluded to the fact that it is common cause that the Bakgatla-Ba-Kgafela Traditional Community comprises of 32 sub-villages inclusive of the Farm where the Bakgatla-Ba-Ses’fikile are residing. Kgosi Nyalala Pilane, asserts that the Farm is owned by the Bakgatla-Ba-Kgafela Tribe, as communal property and that they are joint and collective beneficiaries of any benefits derived therefrom.

[23] When this matter was argued in Court, the provisions of the Communal Land Rights Act No 11 of 2004, which came into operation on 20 July 2004, were not brought to my attention. The purpose of the Act amongst others, is to “…

provide for the conduct of land rights enquiry; to determine the transition from old order rights to new order rights; to provide for the democratic administration of communal land by communities.” Section 1 of this Act defines “communal land” as “land contemplated in section 2 which is, or is to be, occupied by members of a community subject to the rules or customs of that community”.

[24] Section 2(c) of the Act prescribes that this Act applies to “land acquired by or for a community whether registered in its name or not”. Section 5 (2) of the Act provides that:-

“(2) Despite any other law –

On the making of a determination by the Minister in terms of section 18, the ownership of communal land which is not State land but which is registered in the name of –

.……

A traditional leader or traditional leadership whether recognised in terms of law or not;

………

………

Vests in the community on whose behalf such land is held or in whose interest such registration was effected, and such land remains subject to limitations and restrictions in relation to and rights or entitlement to such land.” (Emphasis added)

[25] Section 5(2)(b) provides that “the community referred to in paragraph (a) succeeds in all respects as the successor in the title to such . . . traditional leader or traditional leadership . . .”

[26] Kgosi Nyalala Pilane, in his answering affidavits, stated the following regarding the communal ownership of the Farm and other property under his Tribal Authority:-

“[7] Every single one of the 32 villages of the Bakgatla-Ba-Kgafela Community co-owns all the lands and farms on which the other villages are, in an equal and undivided share method, theoretically analogous to the equal and undivided share in a Community of Property marriage situation. Consequently, should the Applicants be successful in their application, that will, adversely affect the land ownership rights of the other members of Bakgatla-Ba-Kgafela Traditional Community who will all thenceforth be deprived communal ownership rights over Portion 2 of Farm Spitskop 410 KQ. Commensurately, the reverse thereof is also true in that the group of the Applicants will themselves no longer communally own any of the lands away from this farm. This is an extremely untenable situation which requires radical and extreme legal steps.”

[27] In reply, Ntshabele states the following in paragraph 31 of his replying affidavit:-

“[31] The allegations contained herein are denied. The communal ownership of the land refers to the land formally referred to as Native Trust Land. Even under that system the residents of a particular village have right to plough and acquire residential stands on that land to the exclusion of residents of another village. The applicants are not entitled to use the land of other villages of the second respondent and they do not benefit anything out of farming or mining activities that are on their land in those villages. The other land on which there is communal ownership was not bought similar to the applicants’ condition, but it was acquired through occupation and it was categorized under Native Trust Land.”

[28] I am of the view that the Farm at issue falls within the purview of the definition of “communal land” referred to in section 1 read with section 2 (c) and 5(2)(a)(ii) of the Communal Land Rights Act.

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