About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 203
|
|
Bakgatla-Ba-Kgafela Tribal Authority v Bakgatla-Ba-Kgafela Tribal Community Property Association (939/2013) [2014] ZASCA 203 (28 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 939/2013
Not
reportable
In
the matter between:
BAKGATLA-BA-KGAFELA
TRIBAL
AUTHORITY
........................................................................................................
FIRST
APPELLANT
KGOSI
NYALALA MOLEFE JOHN
PILANE
............................................
SECOND
APPELLANT
And
BAKGATLA-BA-KGAFELA
TRIBAL
.......................................................................
RESPONDENT
COMMUNITY
PROPERTY ASSOCIATION
Neutral
citation:
Bakgatla-Ba-Kgafela Tribal
Authority v Bakgatla-Ba-Kgafela Tribal Communal Property Association
(939/13)
[2014] ZASCA 203
(28 November 2014)
Coram:
Lewis, Majiedt, Wallis and Pillay JJA and Dambuza AJA
Heard:
12 November 2014
Delivered:
28 November 2014
Summary:
Provisional Communal Property
Association registered in terms of s 5 of Community Property
Association Act 28 of 1996 – 12
month period not extended -
association ceased to exist – no Community Property Association
registered in terms of s 8 of
the Act.
ORDER
On
appeal from:
The Land Claims Court
(Matojane J sitting as court of first instance)
1
The appeal is upheld, each party to pay its own costs.
2
The order of the Land Claims Court is set aside and is replaced with
the following order:
‘
The
application is dismissed’.
JUDGMENT
DAMBUZA
AJA (Lewis, Majiedt, Wallis and Pillay JJA concurring)
[1]
This is an appeal with leave of the court a quo, against the judgment
of Matojane J in the Land Claims Court (the LCC) in terms
of which
the respondent was declared to be an association established in terms
of the Communal Property Association Act 28 of 1996
(the CPA Act).
The order directed the Registration Officer of the Community Property
Associations to effect registration of ‘Bakgatla-Ba-Kgafela
Communal Property Association: CPA/07/2032/A’ as prescribed in
the Act and to issue a registration certificate in terms thereof.
[2]
The first appellant, the Bakgatla-Ba-Kgafela Tribal Authority, is a
Traditional Council whose chairman is the second appellant,
Kgosi
Nyalala Molefe John Pilane. The Council exercises administrative
authority over the Bakgatla-Ba-Kgafela, a traditional community
(‘the
community’) comprising members from 32 sub-villages located
within the Moses Kotane Municipal Area on the North
East side of the
Bojanala district in the North West Province.
[3]
The background to the application brought in the LCC is the
following: in October 2006 the Department of Rural Development and
Land Reform (the Department of Land Affairs at the time) (‘the
Department’) approved the restoration of lost land rights
to
the Bakgatla-Ba-Kgafela Community in respect of a land claim lodged
by the Kgosi Pilane on behalf of the community. The land
claim
related to land in and around Moruleng, the community’s
headquarters. On finalisation of the land claim the land had
to be
transferred to a legal entity which would hold it on behalf of the
community. A disagreement ensued between members of the
community as
to which of two legal entities, a Community Property Association
(CPA) or a Trust, would be registered to take transfer
of the land.
[4]
The respondent consisted of the members of the community who favoured
registration of a CPA. In both this court and the LCC
their case was
that the Bakgatla-Ba-Kgafela CPA was registered in terms of s 8 of
the Act. However the Department refused to issue
a registration
certificate in respect of the CPA. An appeal to the office of the
Minister of land affairs for intervention did
not yield any results.
It is against this background that an application was brought in the
LCC
,
on an
urgent basis, seeking, essentially, confirmation of the registration
of the CPA and issue of the registration certificate
in respect
thereof.
[5]
The appellants took issue with the respondent’s locus standi
and the merits. They insisted that no CPA was registered
as
alleged. They also contended that the matter was not urgent and that
the respondent should have simply requested the CPA registration
certificate in terms of s 4 of the Regulations issued under the Act.
They contended that their failure to do so rendered the application
premature.
[6]
The LCC referred the application for the hearing of oral evidence due
to perceived disputes of fact on the papers. The oral
evidence turned
out to obfuscate the issues rather than clarify them. The case could
have been decided on the papers alone. In
the premises there was no
need to refer to the oral evidence at all in this judgment.
[7]
At the heart of this appeal is the respondent’s status; the
order of the court below was founded on this issue alone.
[8]
It was common cause in the court a quo that because of the
disagreement that prevailed in the community as to the legal entity
that would take transfer of the land, the intervention of the
Minister was solicited. Pursuant to her advice, an agreement was
reached that a provisional CPA would be registered. On the common
cause facts this was an interim arrangement, for 12 months, to
give
the community time to resolve their differences.
[1]
[9]
The provisional CPA was registered on 10 September 2007. Thereafter
nothing of significance happened, until January 2011 when
Mr S H
Gumbi, an official of the Department, alerted the respondent to the
fact that the term of the interim executive committee
of the
provisional CPA had expired. Mr Gumbi then facilitated the holding of
meetings with the aim of reviving the registration
of the CPA.
Various meetings were held, culminating in an Annual General Meeting
and election of an Executive Committee on 30 July
2011.
[10]
In June 2011 the Department appointed a firm of attorneys to assist
the respondent with further processes, including the verification
of
members of the beneficiary communities; ‘regularising the
dysfunctional aspects of the CPA’; ascertaining whether
‘the
CPA was under administration’; and a ‘change in committee
members’. The Tribal Council did not participate
in these
elections and rejected the process. The Department questioned the
validity of resolutions taken at the annual general
meeting on the
grounds that they failed to comply with prescribed procedures. It is
at this stage that the respondent adopted the
view that, in any
event, all processes necessary for registration of a CPA under
section 8 of the Act (a permanent CPA) had been
complied with and
demanded that the Department issue a registration certificate for the
registered CPA, to no avail.
[11]
Section 5(4) of the Act provides that:
‘
Upon
registration of a provisional association –
(
a
)
The provisional association may acquire a right to occupy and use
land for a period of 12 months from the date of the registration
of
the provisional association: Provided that the Director-General may
extend the period of 12 months for a further period of 12
months only
if he or she extends the period referred to in subsection (5) for a
further period of 12 months….’
[12]
In this case it was common cause that no extension had been sought
from the Director-General on expiry of 12 months from the
date of
registration of the provisional CPA. The association had therefore
ceased to exist. There had also been no steps taken
to comply with
the requirements prescribed in section 8 of the Act for registration
of a CPA.
[13]
In insisting that it is a duly registered CPA, or that it is entitled
to registration as such, the respondent relied on a distortion
of the
facts and the comedy of errors by the officials of the Department in
handling the respondent’s registration. Mr Lempone
Noah Moyo
(who describes himself as the chairperson of the Bakgatla-Ba-Kgafela
CPA) deposed to the founding affidavit. In it he
incorrectly alleged
that the provisional CPA was registered in October 2006 and that
thereafter the respondent complied with the
requirements under s 8(2)
of the Act for registration of the CPA, with the result that the CPA
was duly registered on 10 September
2007. In support of this
contention he relied on a recommendation made by the Provincial Chief
Director of the Department, on 11
May 2007, in terms of s 8(3) of the
Act, confirming that there had been substantial compliance with the
provisions of s 8(2) and
recommending registration of the CPA.
[2]
[14]
The correct position is that the provisional CPA, and not a permanent
CPA was registered on 10 September 2007. That much is
clear from the
registration certificate which forms part of the record.
The
recommendation dated 11 May 2007 was prepared prior to the agreement
to register a provisional CPA. Equally, the draft constitution
that
the respondent relied on was adopted on 29 August 2007, prior to
registration of the provisional CPA. These documents were
not
evidence of compliance with the requirements of s 8(2). Mr Moyo was
well aware of these facts because at the time he signed
documents
recording them and became a member of the committee of the
provisional CPA on that basis.
[15]
The respondent also relied on an incorrect registration number of the
provincial CPA in the records kept by the Department.
The correct
registration number of the provincial CPA was ‘CPA/07/1032/P’;
the ‘P’ denoting the provisional
status of the
association. However, in some of the records of the Department the
registration number was incorrectly recorded as
‘CPA/O7/2032/A’;
with the ‘A’ giving the impression that the CPA was
permanently registered.
[16]
The incorrect registration number appears in the Department’s
2009/2010 ‘Communal Property Association Annual report’
and was taken up in the LCC’s order. The respondent contended
that the (incorrect) registration number was proof that a CPA
was
registered in terms of s 8 of the Act. This argument could only mean
that on 10 September 2007 the Registration officer registered
both a
provisional and a permanent CPA for the Bakgatla-Ba-Kgafela
community. This contention is untenable. On the record only
one
registration certificate was issued, and that was in respect of the
registration of a provisional CPA. Registration of the
provisional
CPA followed a resolution by members of the community that a
provisional CPA would be registered. There is no evidence
that any
further steps were taken to either extend the life of the provisional
CPA or to register a permanent CPA. It would appear
that the next
step that was taken regarding the CPA was in 2011 when Mr Gumbi
alerted the respondent to the lapse of the period
for the executive
committee that was appointed in 2007. Mr Moyo had been a member of
that interim committee.
[17]
It is unfortunate that long after the lapse of the provisional CPA
the Department, on whom the community relied for guidance,
still led
the respondent to believe that they could forge ahead with the
charade of an existing CPA. The meetings that were held
from 2011 at
the instance of and with the support of the Department were
misdirected, insofar as they were intended to revive an
executive
committee of a CPA. No CPA was ever registered as provided for in s 8
of the Act. For these reasons the appeal must succeed.
[18]
Consequently:
1
The appeal is upheld, each party to pay its own costs.
2
The order of the Land Claims Court is set aside and is replaced with
the following order:
‘
The
application is dismissed’.
____________
N
Dambuza
Acting
Judge of Appeal
APPEARANCES:
For
Appellant: R Mogagabe SC (with him OK Chwaro)
Instructed
by:
Mothuloe
Attorneys, Johannesburg
Phatshoane
Henney Inc., Bloemfontein
For
Respondent: GC Muller SC
Instructed
by:
Leofi
Leshabana Inc., Pretoria North
Moroka
Attorneys, Bloemfontein
[1]
Section
5(4) of the Act provides for registration of a provisional CPA. Its
provisions are set out below.
[2]
Section
8(2) of the Act provides for registration of Communal Property
Associations as follows:
‘…
(2) An
association shall qualify for registration if—
(
a
)
the provisions of this Act apply to the community concerned;
(
b
)
the association has as its main object the holding of property in
common;
(
c
)
the constitution adopted by it complies with the principles set out
in
section
9
;
(
d
)
the constitution adopted by it deals with the matters referred to in
the
Schedule
;
(
e
)
the meeting or meetings referred to in
section
7
were
attended by a substantial number of the members of the community;
and
(
f
) the
resolution to adopt the draft constitution was supported by the
majority of the members of the community present or represented
at
the meeting or meetings:
Provided that the
Director-General may cause an association to be registered if he or
she is satisfied that—
(i)
there has been substantial compliance with the provisions of
paragraphs
(
a
)
to
(
f
)
of
this subsection;
(ii) the
constitution reflects the view of the majority of the members of the
association; and
(iii)
the constitution has been adopted through a process which was
substantially fair and inclusive’.