Preview: CPA case in the Constitutional Court 28 May*

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Name of case: Bakgatla-Ba-Kgafela Tribal Community Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Another CCT 231/14

Date of hearing: Thursday, 28 May 2015

Issue: Whether the applicant is duly registered under the Community Property Association Act

Background: This is a sad and protracted tale of greed, mismanagement and ineffectual land restitution. The Bakgatla-Ba-Kgafela community brought a successful land claim over properties in and around Pilanesberg National Park. This meant they had to create a legal entity capable of receiving ownership of the land on behalf of the community. The community initially voted to form a community property association, a vehicle specially created by the Act for the purpose of handling property acquired through a land claim, and drafted a constitution. But the tribal authority’s chairman, the second respondent in this case, Kgosi Pilane — who has been accused in the past of exploiting the community’s platinum-rich land for his own benefit, and whose wavering control over his community has already found him on the losing side in the Constitutional Court once before — said it was preferable to form a trust. (It might’ve occurred to him that, whereas CPAs provide for inclusive, democratic decision-making by the community, trusts concentrate decision-making power in a handful of trustees….) Lulu Xingwana, then Minister of Agriculture and Land Affairs, advised the community to register a provisional communal property association for a twelve-month interim period, during which the community’s dispute could be resolved. The provisional association was duly registered in September 2007, and the land transferred to it. And then things went quiet for almost four years. The association never adopted the constitution, as the Act requires, or asked to be upgraded to a permanent association — the plain implication being that the association had lapsed. Yet when the Department raised the issue in mid-2011, it implied in its correspondence that the association’s registration could be revived. When the folly in that suggestion became clear, and the association sought (in vain, as it turned out) to obtain a court order interdicting a development approved by Kgosi Pilane on land the community claimed, the community took the issue of their legal status to the Land Claims Court.

The Land Claims Court declared that the association had been permanently registered, more or less on the basis that it so clearly ought to have been permanently registered: the community had democratically voted for this, and the Department’s own memos showed it had recommended permanent registration. But the SCA steamrollered this logic, pointing out that the vote was passed, and the memo drafted, before the dispute with Kgosi Pilane arose and it was decided that the association should instead be provisional. No amount of handwringing, or indignation at the Department’s mismanagement of the affair, could change the fact that a certificate of permanent registration was never issued.

Things to watch: It will require great ingenuity to argue that the Act’s requirements and processes for permanent registration were truly complied with. But that is a consequence of the stringent Act and its poor implementation. It was meant to provide a helpful legal vehicle for disadvantaged communities to hold restored land for the benefit of all their members, and not only avaricious elites. But, without proper legal and administrative support, the Act’s prescripts are a very serious hindrance, not a help. The Department has recognised that compliance is sorely lacking throughout the country — a “bleak” situation for which it has admitted partial responsibility. So the Court’s handling of the Act will have implications for many communities — not only the Bakgatla-ba-Kgafela.

The Court can be impatient with austere legal rules that prevent what it considers the just outcome. In this case, however, the solution is far from clear. Conceivably there is room to say (as, on one reading, the Land Claims Court did) that the Act’s requirements were “substantially” complied with — a doctrine which was also at the centre of Intervalve, a judgment handed down last year in which the Court split 6–5. The majority held that a failure to comply with formal pre-litigation rules, which was not the fault of the claimants, was a bar to the pursuit of their claim. The community will be hoping that, in this case, substance trumps even the clearest of formal requirements. Or, if that is too much of a stretch, the Court could make a creative order, using its broad remedial powers to do whatever is “just and equitable”, to manage the consequences of the association’s non-registration — so that the community is still able to benefit from its land claim, and to resist Kgosi Pilane in court.

*This is an excerpt from a piece that was initially published as ‘Constitutional Court 2015: Term 2 preview‘ on the African Legal Centre blog on 7 May 2015. The African Legal Centre is an independent and open source non-profit organisation commenting, documenting and reporting on African human rights law.

opinion-grey Leo Boonzaier is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk to Justice Edwin Cameron at the Constitutional Court of South Africa.
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