ConCourt land ruling welcomed

The Constitutional Court. File picture: Tiro Ramatlhatse

The Constitutional Court. File picture: Tiro Ramatlhatse

Published Aug 27, 2015

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Moruleng – The Bakgatla-Ba-Kgafela Traditional Authority (BBKTA) in Moruleng near Rustenburg on Thursday welcomed the Constitutional Court ruling that confirmed a communal property association set up by the tribe as the rightful owners of restituted land it lost under apartheid.

“As a traditional authority, we embrace Communal Property Associations [CPAs] that are within our area of jurisdiction and look forward to a co-operative relationship with the CPA in the administration of properties which falls within its jurisdiction,” said chairman of the traditional authority, Thari Pilane.

The Constitutional Court handed down a judgment in favour of the Bakgatla Ba Kgafela Communal Property Association (BBKCPA) in a matter concerning the proper interpretation of Section 5(4) of the Communal Property Association Act on August 20.

In a unanimous judgment, the Constitutional Court set aside the decision of the Supreme Court of Appeal. It found that reference to the period of 12 months under the Act was in relation to the exercise of the right to occupy and use land and not in regard to the lifespan of an association.

The applicant, the Bakgatla-Ba-Kgafela Communal Property Association was a provisional association created in accordance with the impugned provision.

The association was formed by members of the Bakgatla-Ba-Kgafela traditional community, which occupies 32 villages in the Moses Kotane Municipal area in the North West Province. The community was dispossessed of and forcibly removed from its land during the apartheid era, on which a game reserve was later established.

The community lodged a claim under the Restitution of Land Rights Act. The claim was approved in October 2006.

The community initiated a process to register a communal property association in 2005 in order to be able to take possession of the restored land.

However, a dispute arose concerning the nature of the entity through which the land was to be held. On the advice of the land affairs minister, a provisional association was registered for a period of 12 months pending the registration of a permanent association. The land was then transferred to the association.

There were two attempts within 24 months to register the association but both failed.

The communal property association then sought the intervention of the Land Claims Court. The main issues before that court were whether the association was properly registered under the Act so as to be able it to institute an action before the court, and whether the association was entitled to be registered as a permanent association.

The Land Claims Court found in favour of the association on grounds that under Section 5(4) of the Act, after 12 months the association only lost the right to alienate land but not its legal personality.

The court directed the director-general in the department of land reform and rural development to effect a permanent registration.

The Tribal Authority and Kgosi Nyalala Pilane appealed to the Supreme Court of Appeal which overruled the Land Claims Court. The Supreme Court of Appeal held that under the impugned provision the association ceased to exist on the expiry of 12 months and therefore lacked legal standing to bring the action.

But the BBKCPA before the Constitution Court argued that the Supreme Court of Appeal erred in its interpretation of the Act and in its conclusion that the association’s existence terminated 12 months after the provisional registration.

Kgosi Pilane and the Tribal Authority argued that the matter did not raise a constitutional issue and did not meet the jurisdictional requirements of the Constitution Court.

The Constitutional Court ruled that the Supreme Court of Appeal misinterpreted the meaning of the impugned provision. The court also stated that Kgosi Pilane’s opposing view could not override the majority’s choice to form an association. Further, the court ruled that the association had met all the requirements for registration and therefore should be registered as a permanent association.

Thari Pilane said the judgment confirmed the Bakgatla Ba Kgafela Communal Property Association (BBKCP) as registered owners of properties restituted to the Bakgatla-Ba-Kgafela traditional community which are located in the Pilanesberg National Park.

“We implore the BBKCPA to cooperate with the North West and Tourism Board in the administration of the said properties on behalf of morafe wa [community of ] Bakgatla, as these properties are regulated under the Protected Areas Act 57, of 2003.”

The CPA would managed seven properties within the Pilanesberg National Park.

ANA

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