In a unanimous judgment delivered on Friday 09 March 2018, the Appeal Court at the North West High Court upheld Bafokeng communities’ appeal to dismiss Royal Bafokeng Nation’s 2008 Court application (‘main application’) to have some 61 farms registered in its name. The farms are currently held by the Minister of Land Reform and Rural Development in trust for the Bafokeng ‘tribe’.
In the main application, the RBN argues that the trust instrument created by apartheid legislation that land belonging to Bafokeng people be held in trust on their behalf was racially discriminatory, and that the ‘trust’ does not conform with current laws regulating trust formations.
Bafokeng communities organsised under the banner of the Bafok eng Land Buyers’ Association (‘BLBA’), argued that the sought transfer and registration of Bafokeng land should be done in the names of the original buyers of Bafokeng land, being various communities or villages that forms the Bafokeng ‘tribe’.
Communities claim they were forced around 1883 by the British government to amalgamate their land to form what is now known as the Bafokeng ‘tribe’.
The communities later challenged the authority of the chief to have launched the main application in 2008 without proper authorisation and ‘tribal’ consultation.
Judge Landman found in the lower Court that the chief ought to have consulted first with the people when he applied at North West High Court for the land to be transferred and registered in RBN names. The Judge however held that the chief could exercise a discretion not to consult, as it was his prerogative to or not to consult. It was these findings which BLBA, Thekwane Community and Setuke Family appealed against.
The Appeal court found that Judge Landman erred in his ruling. The Appeal Court found that RBN and the chief ought to have consulted, and that failure to consult was fatal to RBN case. It was therefore not necessary to determine validity of the authorisation o litigate, and whether if the Supreme Council was properly constituted at its meeting of 22 September 2005 to authorise the said 2008 main application by the RBN. The Appeal Court importantly found that the Supreme Council did not possess powers mandating the chief to apply to the Court to have the said transfer and registration of farms in RBN name.
The Court found that the so-called Supreme Council had habitually and unlawfully exercised powers ordinarily reserved for and vested with the statutory Traditional/ Executive Council.
The overall result is that RBN’s 2008 main case is therefore dismissed with costs. Further to that, the appellants succeeded in their appeal against Judge Landman’s order, and RBN ordered again to pay costs of the appeal.
The Bafokeng chief is found by many within the Bafokeng to be autocratic in his style of leadership. He is as such likely to approach the highest Court of the land. BLBA is of the view that should the chief attempt a Constitutional Court review, that such application would be reckless and wasteful, and that the chief should then be held personally liable for delinquent conduct.
BLBA intends approaching the Royal Family and the Traditional Council to commence impeachment proceedings against the chief, should he persist with his conduct at the ‘tribe’s’ expense. Such conduct has brought the ‘tribal’ affairs into disrepute.
BLBA shall discuss the implications of the case at its upcoming Annual General Meeting scheduled for 21 March 2018 (formerly Sharpeville Day). The meeting shall be preceded by a protest demonstration to create awareness about human rights injustice the Bafokeng communities are subjected to by the mining complex (mines, banks, government) operating in their areas.
See Appeal judgment here: BLBA and two others v RBN Case No CIV APP 3/17 in case 999/08 NWHC