Bafokeng Private Land Buyers Association and Others v Royal Bafokeng Nation and Others (999/08) [2016] ZANWHC 27 (31 May 2016)

Bafokeng Private Land Buyers Association and Others v Royal Bafokeng Nation and Others (999/08) [2016] ZANWHC 27 (31 May 2016)

The court found that the Supreme Council of the Royal Bafokeng Nation validly authorised the litigation in question by passing a resolution on 22 September 2005. The Supreme Council, as a joint sitting of the Tribal Council and Executive Council (functioning as the Traditional Council), possessed the requisite statutory and customary authority to institute litigation. While consultation with the broader community is a valued principle in Bafokeng custom, there is no enforceable legal requirement that every major decision, including litigation over land, must be ratified by the kgotha kgothe. The prerogative to consult rests with the Kgosi, who may be influenced by advisers and community...

Citation
[2016] ZANWHC 27
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
Judgment Date
31 May 2016
Case Number
999/08
Procedural Posture
Civil Application / Rule 7 Application; Referral to Oral Evidence
Outcome
Application dismissed. The attorneys for the Royal Bafokeng Nation have satisfied the court that they have the necessary authority to act in the main proceedings.
Judges
A A Landman
Legal Topics
Customary Law Authority, Rule 7 Uniform Rules, Tribal Land Ownership, Consultation in Customary Law, Traditional Leadership Powers, Authority to Litigate
Land and Property Civil Procedure Administrative Law Customary Law Authority Rule 7 Uniform Rules Tribal Land Ownership Consultation in Customary Law Traditional Leadership Powers +1 more

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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

Civil Application / Rule 7 Application; Referral to Oral Evidence

Legal Issues

  1. 1 Whether the Supreme Council of the Royal Bafokeng Nation validly authorised the litigation instituted in the main application.
  2. 2 Whether, under customary law, the Supreme Council has the power to authorise litigation without broad consultation within the traditional community.
  3. 3 Whether the Supreme Council's decision was overturned or reversed by subsequent events, particularly the kgotha kgothe meetings in 2006.

Ratio Decidendi

The court found that the Supreme Council of the Royal Bafokeng Nation validly authorised the litigation in question by passing a resolution on 22 September 2005. The Supreme Council, as a joint sitting of the Tribal Council and Executive Council (functioning as the Traditional Council), possessed the requisite statutory and customary authority to institute litigation. While consultation with the broader community is a valued principle in Bafokeng custom, there is no enforceable legal requirement that every major decision, including litigation over land, must be ratified by the kgotha kgothe. The prerogative to consult rests with the Kgosi, who may be influenced by advisers and community...

Court Disposition

Application dismissed. The attorneys for the Royal Bafokeng Nation have satisfied the court that they have the necessary authority to act in the main proceedings.

Orders

  • Attorneys Fasken Martineau have satisfied this court that they have the necessary authority to act on behalf of the Royal Bafokeng Nation in the main proceedings instituted under case number 999/2008.
  • No order as to costs.