On the 20th of August 2015 the Constitutional Court issued a resounding and unanimous judgment in support of democratic control of land in traditional areas.
Finding in favour of the Bakgatla-Ba-Kgafela Communal Property Association, the Court set aside a 2014 decision of the Supreme Court of Appeal and ordered immediate implementation of an earlier ruling in the Land Claims Court that the CPA existed and should own and administer land won in a restitution claim.
The order will allow the permanent registration of the Bakgatla-Ba-Kgafela Communal Property Association and for the CPA to take ownership of land around Moruleng in North West Province, which was returned to the community in 2006 in terms of the Restitution of Land Rights Act. The land was taken from the community under apartheid and part of it was used in the creation of the Pilanesberg National Park.
The ruling (CCT 231/14) undercuts the Department of Rural Development and Land Affairs recent position that communal property associations should be discouraged in areas under the control of traditional leaders.
Writing for the whole court, Judge Christopher Jafta said: “The creation of an association introduces participatory democracy in the affairs of traditional communities. All members of the community are afforded an equal voice in matters of the association and the property it holds on behalf of the community.”
Calling the Communal Property Association Act “a visionary piece of legislation passed to restore the dignity of traditional communities”, Justice Jafta said it ensured, amongst other things, that unmarried women had equal rights on communal land.
“The Act seeks to transform customary law and bring it in line with the Constitution. At the same time, the Act extends the fruits of democracy to traditional communities that are still subject to customary law,” he wrote.
The Constitutional Court’s endorsement of the Communal Property Association Act in areas under traditional leadership is in contrast to the August 2014 draft of the Department of Rural Development and Land Reform’s Communal Land Tenure Policy which proposes that new CPAs be permitted only in areas where no traditional authorities exist. The policy seeks to limit CPAs to land outside the former Bantustans.
Dr Aninka Claassens, acting director of the Centre for Law and Society, said: “The judgment comes down firmly on the side of people having the right to choose the form of land-holding they prefer, instead of government dictating ‘tribal ownership’ as the only option in former Bantustan areas.
“The judgment sends a clear message that current policy, which proposes to transfer title deeds of land in the former homelands to traditional councils cannot fly constitutionally. The judgment shows that the Minister and Director-General failed to uphold the law by elevating the interests of traditional leaders over their duty to support the choice of the community and to fulfill the provisions of the CPA Act,” she said.
The Bakgatla-Ba-Kgafela community resolved after their land claim was granted, that they would form a CPA to own and administer it. They elected a committee and adopted a constitution for their association. But when they applied to have the CPA registered, the local traditional leader, Kgosi Nyalala Pilane, objected. He wanted the land to be held by a trust, which would be controlled by the Bakgatla-Ba-Kgalefa Traditional Council.
When the Bakgatla-Ba-Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned in 2012, the traditional council argued that the CPA no longer existed because its provisional registration in 2008 had never been confirmed and made permanent.
The Land Claims Court backed the CPA, but the Supreme Court of Appeal overturned the ruling on the grounds that the provisional CPA had never been made permanent and declared the land effectively without ownership.
The Constitutional Court lambasted the department for failing to help the community to register the CPA properly and to gain control over its land.
“It is clear from the scheme of the Act that once a traditional community expresses a desire to form an association, the Director-General must do everything permissible to assist the community to accomplish its goal. She is required to make certain that every obstacle in the way of registration of an association is removed,” Justice Jafta wrote.
The Court said the department did not help the community as required, but “adopted a wholly inappropriate response to the community’s legitimate request for registration”.
The Court said the wishes of traditional leaders should not trump the decisions of a majority of a community. The Court rejected a suggestion by the Traditional Council and the government that the case should be submitted for mediation: “The fact that a traditional leader or some members of the traditional community prefer a different entity to the association is not a justification for withholding registration and imposing mediation on parties.”
Thami Mdontswa of the Restitution Commission tweeted that the judgment affirms the department’s policy in respect of communal land tenure. It does the opposite. It shows that pretending communities can choose between Traditional Councils and CPAs is a pipe dream as long as the department refuses to support and register CPAs.
“Where a traditional community or the majority of its members as was the position in this case have chosen the democratic route contemplated in the Act, effect must be given to the wishes of the majority,” Justice Jafta wrote.
The Court acknowledged that this was the first decision concerning the implementation of the Communal Property Association Act. In an earlier ruling, however, the Court came down in favour of communities when Pilane sought to interdict people in his area from holding meetings without his permission.
Today’s ruling establishes important precedents in the approach to community rights in areas controlled by traditional leaders according to distorted versions of customary law codified under colonial and apartheid rule.
For further information contact the Centre for Law and Society at 021 650 5104.
Listen here for an SABC Joburg News Feature on the judgement
Download the Bakgatla CPA Judgment in PDF.