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[2015] ZACC 25
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Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others (CCT231/14) [2015] ZACC 25; 2015 (6) SA 32 (CC); 2015 (10) BCLR 1139 (CC) (20 August 2015)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
231/14
In the matter
between:
BAKGATLA-BA-KGAFELA
COMMUNAL
PROPERTY
ASSOCIATION
Applicant
and
BAKGATLA-BA-KGAFELA
TRIBAL AUTHORITY
First Respondent
KGOSI NYALALA
MOLEFE JOHN
PILANE
Second Respondent
MINISTER OF RURAL
DEVELOPMENT
AND LAND
REFORM
Third Respondent
DIRECTOR-GENERAL OF THE
DEPARTMENT OF
RURAL DEVELOPMENT
AND LAND REFORM
Fourth Respondent
Neutral
citation:
Bakgatla-Ba-Kgafela
Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority
and Others
[2015] ZACC 25
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J,
Theron AJ and
Tshiqi AJ
Judgments:
Jafta J
(unanimous)
Heard on:
28 May 2015
Decided on:
20 August 2015
Summary:
Communal Property Association Act 28 of
1996 — interpretation of section 5(4) — means provisional
association loses
right to use land on expiry of 12 months from date
of registration unless period is extended — provisional
association does
not cease to exist
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the Land Claims Court):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is
set aside.
4.
The order of the Land Claims Court is
re-instated.
5.
The Minister of Rural Development and Land
Reform and the Director General of the Department of Rural
Development and Land
Reform are ordered to pay the costs of
Bakgatla-Ba-Kgafela Communal Property Association in the Supreme
Court of Appeal and this
Court. Those costs are to include
costs of two counsel where applicable.
JUDGMENT
JAFTA J:
Introduction
[1]
This is an application for leave to appeal
against an order of the Supreme Court of Appeal which overturned a
judgment of the Land
Claims Court. The matter concerns the
interpretation and application of section 5 of the Communal Property
Association Act
(Act).
[1]
The Act establishes communal property associations for the
purpose of holding land restored to communities. It was
passed
to give effect to the constitutional right of communities to
restitution of land dispossessed in terms of discriminatory
laws or
practices of the apartheid regime.
[2]
The applicant is Bakgatla-Ba-Kgafela
Communal Property Association (Association). The Association
was established in terms
of the Act. It cited as respondents,
Bakgatla-Ba-Kgafela Tribal Authority (Tribal Authority) and Kgosi
Nyalala Molefe John
Pilane (Kgosi Pilane). The Minister of
Rural Development and Land Reform (Minister) together with the
Director-General of
the Department (Director-General) were joined in
this Court as the third and fourth respondents.
[3]
Underlying the demand for the applicant’s
registration is the Bakgatla Ba Kgafela community’s
desire to regain
ownership of the communal land it lost under
apartheid rule. For decades restitution of land was the
rallying point for the
struggle against colonialism and apartheid.
Regaining land ownership was the primary object of that struggle.
[2]
It is therefore not surprising that the Constitution guarantees land
restitution and reform.
[3]
Background
[4]
The Community occupies 32 villages in the
Moses Kotane Municipal area, North West Province. During the
apartheid era, this
Community was dispossessed of and forcibly
removed from its land, on which a game reserve was established.
Land dispossession
and forced removals of black people from their
land were commonplace in that era. To remedy this injustice,
the Constitution
guarantees the right of individuals and communities
to reclaim their lost land.
[5]
The Restitution of Land Rights Act
[4]
regulates the process of claiming restitution of land in the exercise
of this constitutional right. However this piece of
legislation
does not create mechanisms in terms of which communities may possess
land restored under the restitution process.
Those mechanisms
are established by the Act.
[6]
Acting in terms of the Restitution of Land
Rights Act, the Community lodged a claim for the restitution of land
it lost under the
apartheid regime. The claim was approved by
the Minister in October 2006 in terms of section 42D of the
Restitution of Land
Rights Act.
[5]
Meanwhile, the Community had set in motion the process of
establishing an association through which it intended to take
possession of the restored land. Meetings were held in various
villages which culminated in the adoption of a constitution
for the
Association on 3 December 2005. These meetings were held under
the supervision of officials of the Department of
Rural Development
and Land Reform (Department) whose role was to advise the Community
on the requirements of the Act.
[7]
The application for the registration of the
Association was submitted to the Department. The official who
was charged with
the responsibility of satisfying himself that the
Association qualified for registration under the Act recommended its
registration.
[6]
However, the Association was not registered, owing to a dispute
between the Community on the one hand, the Tribal Authority
and Kgosi
Pilane on the other. The Tribal Authority and Kgosi Pilane
preferred a trust as an entity through which the land
was to be held,
while the Community wanted an association.
[8]
This dispute attracted the intervention of
the Minister who suggested that a provisional association be
registered to enable the
parties to resolve the matter within a
period of 12 months. The present Association which is the
applicant in these proceedings
was registered as a provisional
association. The land was transferred and registered in the
name of the Association.
[9]
But the dispute between the Community, the
Tribal Authority and Kgosi Pilane was not resolved within 12 months
as was envisaged
at the meeting with the Minister. Nor was
Bakgatla-Ba-Kgafela Communal Property Association registered as a
permanent association.
[10]
In January 2011, the Director-General
informed the Association that the term of office of members of its
executive committee had
lapsed and suggested that new members be
elected. Meetings were held in various villages, leading up to
the annual general
meeting of 30 July 2011 which was attended by 29
out of the 32 villages. The Association’s constitution
was re-adopted
at this annual general meeting. The meeting was
held in the presence of a representative of the Department, an
attorney in
private practice, whose role was to see to it that the
requirements of the Act were met.
[11]
Having declared the meeting to have
complied with the necessary requirements, the departmental
representative completed the relevant
form that contained a report to
the Department. This report shows that notice of the meeting
was widely published in the
relevant villages. Eighty six
people attended this annual general meeting and all voted in favour
of the constitution.
Notably, the report records “not
applicable” against the column that requires an indication to
be made if interests
of other persons would be negatively affected by
the adoption of the constitution.
Litigation history
[12]
When the Department failed again to
register the Association as a permanent one and issue a certificate,
it instituted proceedings
in the Land Claims Court. The initial
relief sought by the Association was an order directing the
Department to release the
Association’s certificate of
registration and interdicting and restraining Kgosi Pilane from
intimidating, interfering and
influencing officials of the Department
in their dealings with the Association. In its amended notice
of motion, the Association
abandoned the initial claim and instead
sought a declaration to the effect that it was established in
compliance with section 8
of the Act. It also sought an order
directing the Director-General to effect permanent registration of
the Association.
The application was opposed by the Minister,
the Tribal Authority and Kgosi Pilane.
[13]
Apart from raising
in
limine
points, the respondents disputed
some of the facts alleged by the Association in its papers. In
view of the dispute of facts,
the Land Claims Court
[7]
referred the matter for the hearing of oral evidence. Upon
conclusion of the hearing, that Court dismissed as lacking merit,
the
points that it had no jurisdiction to hear the case and that the
Association had no legal standing to institute the proceedings.
The Court granted the following order:
“
1.
The Applicant is declared an Association that was established by a
community as envisaged
in the definition of “Community”
in the Communal Property Association Act 28 of 1996;
2.
The Applicant was entitled to be registered permanently as an
association by
the Thirteenth Respondent;
3.
The Thirteenth Respondent is directed to effect the permanent
registration of
the Bakgatla-Ba-Kgafela Communal Property
Association: CPA/07/2032/A as such in the manner prescribed by Act 28
of 1996 and upon
registration to issue a certificate of registration
in terms of section 8(3) of such Act.”
In the Land Claims
Court, the Director-General was the fourteenth respondent. It
was he who was directed to register the Association.
Supreme Court of Appeal
[14]
Dissatisfied with the order, the Tribal
Authority and Kgosi Pilane appealed to the Supreme Court of Appeal.
The Supreme Court
of Appeal held that the Association’s status
was at the heart of the appeal and confined itself to deciding that
issue only.
[8]
In determining this issue, that Court based its decision squarely on
section 5(4) of the Act which it construed to mean
that a
provisional association exists for a period of 12 months from the
date of registration unless the Director-General extends
the period
for a further 12 months. Since it was common cause that no
extension had been granted, the Supreme Court of Appeal
concluded
that the Association had ceased to exist on the expiry of 12
months.
[9]
Consequently the order of the Land Claims Court was set aside.
Leave to appeal
[15]
The Association seeks to appeal against the
order of the Supreme Court of Appeal. For the Association to
succeed, it must
show that the matter falls within the jurisdiction
of this Court and that it is in the interests of justice for leave to
be granted.
As stated earlier, this case concerns the
interpretation and application of the provisions of the Act that was
passed to
give effect to the rights in section 25 of the
Constitution. The interpretation of this legislation
constitutes a constitutional
issue.
[10]
[16]
The interests of justice favour granting
leave. The matter raises a constitutional issue relating to the
restitution of land,
dispossessed under apartheid, to communities in
the realisation of the right guaranteed under section 25(7) of the
Constitution.
This Court has not considered a case of this
nature before. Moreover, it is likely that this Court will
construe the
relevant provisions differently. Consequently
there are prospects of success and leave to appeal must be granted.
Issue
[17]
The main issue arising from the judgment of
the Supreme Court of Appeal is whether the Association had legal
standing to institute
these proceedings. The answer to this
question depends on a proper interpretation of section 5(4) of the
Act, which was the
foundation of the conclusion reached by the
Supreme Court of Appeal. But before construing the relevant
provision, it is
necessary to outline the scheme of the Act.
Scheme of the Act
[18]
The Act derives its force from the
Constitution to which it is inextricably linked.
[11]
In section 25(7), the Constitution recognises and protects rights in
land which go beyond registered ownership.
[12]
Where it is possible, the Constitution entitles a community to claim
restitution of the dispossessed land or equitable redress.
The
purpose of the Act is to enable communities to form communal property
associations through which they may acquire and possess
land that
belongs indivisibly to the entire community.
[13]
[19]
There are two forms of associations that
may be established in terms of the Act. They are a provisional
association and a
permanent association. Ordinarily a
provisional association is created as a preliminary step to
establishing a permanent
association which must satisfy the more
exacting requirements of section 8. A community that desires to
register a provisional
association must apply to the Director-General
for registration.
[14]
If the Director-General is satisfied that the provisional association
qualifies to be registered, she must give written consent
to the
Registration Officer who must register the association.
[15]
[20]
A provisional association qualifies for
registration only if it meets the requirements of section 5(2).
[16]
The application for registration must show that the applicant
community constitutes a community envisaged in section 2 of
the Act.
The application must also reflect the name of the provisional
association, the names of its members and where readily
available,
their identity numbers. It must also identify in clear terms
the land to be acquired by the provisional association.
[17]
[21]
Section 5(2)(e) and (f) demonstrates beyond
any doubt that a provisional association enjoys a limited lifespan.
These provisions
require the application for registration to provide
the names of the members of the interim committee who would be
charged with
the responsibility of representing the provisional
association before it is registered as a permanent association.
Members
of the interim committee must, the section demands, be
democratically elected. The interim committee must furnish an
undertaking
signed by the members, to the effect that pending the
adoption of a constitution by members of the provisional association
and
the registration of the association in terms of section 8, the
provisional association will comply with the principles stated in
section 9 of the Act.
[22]
Section 8 governs the registration of a
permanent association. Therefore the reference in section
5(2)(f) to an undertaking
that the provisional association will
comply with section 9 pending registration in terms of section 8
means that the Act contemplates
a conversion of a provisional
association into a permanent one. This construction is further
buttressed by section 5(4)(b),
which precludes a provisional
association from alienating rights in land before a permanent
association is registered.
[18]
[23]
Registration of a permanent association is
approved by the Director General in terms of section 8.
Such an application
must be accompanied by a report compiled by an
authorised official in terms of section 7(2) of the Act.
[19]
The contents of this report relate to what happened at the meeting at
which the association’s constitution was adopted.
They
include whether there was proper and effective notice of the meeting;
the number of members of the community present; the
number of those
who voted in favour of the constitution and the number of those who
voted against it; views of dissenting persons;
and whether the
interests of any person are likely to be adversely affected by the
adoption of the constitution. If the Director General
or
her legal delegate is not satisfied that the application complies
with the Act, she is obliged to inform the applicant community
about
the shortcomings in their application so that they can be
rectified.
[20]
In addition, the Act requires the Director-General to assist the
community to achieve a permanent registration of an association.
[21]
[24]
An association qualifies to be registered
in terms of section 8(2) 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
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.”
[25]
One of the essential requirements of
section 8 is that the constitution of the association must comply
with the principles in section
9 of the Act. This section lists
five principles that underscore the democratic nature of associations
established in terms
of the Act. The first principle is that an
association’s constitution must embrace fair and inclusive
decision-making
processes that afford members the opportunity to
participate in the association’s decisions. These include
decisions
to dispose of or encumber the association’s property,
and termination of membership of any person on reasonable grounds,
following a fair hearing.
[26]
The second principle is equality. An
association’s constitution must proscribe discrimination of any
kind, irrespective
of whether it is direct or indirect, in particular
discrimination based on “race, gender, sex, ethnicity or social
origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture or language”.
[22]
Notably, this equality clause does not leave room for fair
discrimination. The only exception recognised is
differentiation
based on different classes of membership that existed
before the Act was enacted. But even then, all members in a
single
class must enjoy equal rights.
[27]
The third principle is that the
constitution must create democratic processes that govern the manner
in which the association’s
meetings are to be conducted.
The constitution must confer upon all members the rights: to receive
adequate notice of all
general meetings; to attend, speak and vote at
the meetings; to receive copies of minutes and records of decisions
taken at those
meetings; and to inspect and make copies of financial
statements of the association.
[23]
[28]
The fourth principle entails fair access to
the property of the association. The constitution must require
the association
to obtain consent of the majority of the members
before it can sell or encumber property. Further, the
constitution must
also require the association to manage property for
the benefit of all members in a participatory and non-discriminatory
manner.
Members of the association may only be excluded from
access to its property in accordance with the procedures set out in
its constitution.
[24]
[29]
The last principle relates to
accountability and transparency. The constitution must enable
members to hold the association
accountable by imposing fiduciary
responsibilities on members of the executive committee in relation to
the association and its
general members. The constitution
should require committees to exercise their powers in the best
interest of all members,
without any advantage to themselves.
Effective financial management must form part of the constitution’s
requirements,
which must include opening a bank account in the name
of the association into which all its cash should be deposited.
The
constitution must also require that the association’s
financial records be subjected to an independent verification
annually.
[30]
There can be no doubt that these principles
safeguard the interests of members of traditional communities and
empower them to participate
in the management of a communal
property. 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.
[31]
The Act is a visionary piece of legislation
passed to restore the dignity of traditional communities. It
also serves the purpose
of transforming customary law practices.
For example, in some traditional communities where communal land is
held and controlled
by a traditional leader, women are excluded from
the allocation of land for individual occupation and use.
[25]
This practice is inconsistent with the equality clause in the Bill of
Rights which prohibits discrimination based on, among
other grounds,
gender or marital status.
[26]
This inconsistency necessitates the development of customary law as
mandated by section 39(2) of the Constitution.
[27]
This duty has been affirmed by this Court in a number of cases.
[28]
Customary law remains in force to the extent that it is in line with
the Constitution and Acts of Parliament dealing with
matters to which
customary law applies. Under the Act unmarried women who are
members of traditional communities enjoy rights
equal to those held
by men, when it comes to access to communal property, and management
of the affairs of an association.
[32]
The democratic principles set out in
section 9 of the Act also curb the general power of removal in terms
of which traditional leaders
banished people from their
neighbourhoods for political reasons and without any hearing.
[29]
Before the establishment of a democratic order in this country,
courts held that banishment orders issued by traditional
leaders were
not contrary to the principles of natural justice despite the fact
that those on whom such orders applied were not
given a hearing
before the orders were issued.
[30]
In later decisions the banishment orders issued by traditional
leaders were called “trekpass” orders.
[31]
The traditional leader was required to consult the tribal council
only before issuing the order. The case law referred
to here
shows that, by executive decree, traditional leaders restrained the
personal freedom of members of their communities.
This brought
about untold suffering to those on whom the trekpass orders applied.
[33]
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. This is the context in
which these
provisions must be read and understood.
Approach to statutory
interpretation
[34]
It is by now trite that section 39(2) of
the Constitution has introduced a new approach to the interpretation
of statutes. The
section obliges courts to promote “the
spirit, purport and objects of the Bill of Rights” when
construing legislation.
This new approach has been described as
“a mandatory constitutional canon of statutory
interpretation.”
[32]
The duty to seek an interpretation that promotes the objects of the
Bill of Rights arises even where the parties have not
raised the
issue because the obligation imposed by the section is, as was
observed in
Phumelela
,
[33]
mandatory.
[34]
[35]
Consistent with section 39(2), this Court
laid down the right approach to construing legislation similar to the
Act in
Goedgelegen Tropical Fruits
.
[35]
There, Moseneke DCJ reaffirmed the approach in these terms:
“
It
is by now trite that not only the empowering provision of the
Constitution but also of the Restitution Act must be understood
purposively because it is remedial legislation umbilically linked to
the Constitution. Therefore, in construing ‘as
a result
of past racially discriminatory laws or practices’ in its
setting of section 2(1) of the Restitution Act, we are
obliged to
scrutinise its purpose. As we do so, we must seek to promote
the spirit, purport and objects of the Bill of Rights.
We must
prefer a generous construction over a merely textual or legalistic
one in order to afford claimants the fullest possible
protection of
their constitutional guarantees. In searching for the purpose,
it is legitimate to seek to identify the mischief
sought to be
remedied. In part, that is why it is helpful, where
appropriate, to pay due attention to the social and historical
background of the legislation. We must understand the provision
within the context of the grid, if any, of related provisions
and of
the statute as a whole including its underlying values. Although
the text is often the starting point of any statutory
construction,
the meaning it bears must pay due regard to context. This is so
even when the ordinary meaning of the provision
to be construed is
clear and unambiguous.”
[36]
(Footnotes omitted.)
[36]
Therefore in construing section 5(4) of the
Act, we are obliged not only to avoid an interpretation that clashes
with the Bill of
Rights but also to seek a meaning of the section
that promotes the rights of the Bakgatla-Ba-Kgafela Traditional
Community to restitution
of land. Had the Supreme Court of
Appeal borne this duty in mind, it could have attached a different
meaning to the section.
A meaning that would be consonant with
the purpose of the Act.
Meaning of section 5(4)
[37]
Section 5(4) of the Act reads:
“
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 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;
(b)
the provisional association shall not,
until the registration of an association in terms of this Act, in any
way alienate such right
in land;
(c)
the provisional association shall be a
juristic person with the capacity to sue or be sued.”
[38]
A closer examination of the text reveals
that upon registration, a provisional association assumes a
particular status in law.
It is clothed with the legal standing
to sue or be sued. The section further confers certain rights
on the provisional association.
It acquires the right to occupy
and use the land identified in its application for registration.
It will be recalled that
the purpose of forming a provisional
association is to acquire communal rights in land. But since
registration of a provisional
association constitutes a temporary
measure, the right to occupy and use land may be exercised for a
limited period of 12 months,
pending registration of a permanent
association.
[39]
The applicant community is afforded time to
comply with the requirements of section 8 which will enable it to
obtain a permanent
registration. But if, for example, a final
constitution is not adopted by the community within 12 months, the
Director General
may be requested to extend the period within
which the provisional association occupies and uses the land for a
further 12 months.
However the Director General’s
power to grant an extension depends on the condition that an
extension is also granted
in terms of section 5(5). It will be
remembered that this section empowers the Director-General to give an
extension for
the purposes of adopting a final constitution so that a
permanent registration may be granted.
[40]
If the Director-General does not extend the
period for the adoption of the constitution, she or he cannot grant
an extension for
the provisional association to continue to exercise
the right to occupy and use the land, beyond the initial period of 12
months.
Section 5(5) also authorises the Director-General to
prepare a constitution for the provisional association where the
association
fails to adopt one. However, the constitution
prepared by the Director-General must be approved by the Minister
before a
permanent registration is effected.
[41]
The exercise of land rights by a
provisional association does not include the right to alienate the
land in question or the disposal
of other rights. This is
expressly precluded by section 5(4)(b) of the Act.
[42]
In the context of section 5(4), reference
to the period of 12 months is made simply in relation to the exercise
of the right to
occupy and use land. The section makes no
mention of the provisional association’s lifespan at all.
Consequently,
the Supreme Court of Appeal erred in assigning to the
section the meaning that the provisional association ceases to exist
upon
the expiry of the initial 12 months, unless an extension is
granted. As a result, the conclusion that the present
Association
did not have legal standing to institute these
proceedings cannot be sustained.
[43]
But the construction of section 5(4) is not
the only ground that renders incorrect the Supreme Court of Appeal’s
finding on
standing. The evidence on record shows plainly that
at the time of the Minister’s intervention, the constitution
for
the Association had been adopted and other requirements for
registration had been met. The official to whom the power to
approve registration was delegated, had recommended registration on
being satisfied that the Association qualified for it.
[44]
In terms of the definitions section of the
Act, a permanent association “means a communal property
association which is registered
or qualifies for registration in
terms of section 8”. The plain meaning of this definition
is that this type of an
association comes into existence in two
ways. The first is where it is registered in terms of section
8. The second
is where it qualifies for registration in terms
of that section and its registration is still to be effected.
Therefore,
on the face of the Act, the Association was established as
soon as it qualified for registration.
[45]
A proper reading of the definition of a
permanent association indicates that where a provisional association
was registered, at
some point, the provisional association may
co-exist with the permanent association. This would arise as
soon as the requirements
for permanent registration are met and
before the application for its registration is made. From that
moment it appears that
the two associations would continue to exist
side by side until deregistration of the provisional association.
Section 13
of the Act empowers the Director-General to deregister a
provisional association upon a written application for deregistration
made to him or her. Such application must meet the conditions
listed in section 13(2).
[37]
What is important though is the fact that a permanent association
acquires rights only upon registration.
[38]
The assets of a provisional association are transferred to the
permanent association at the time the provisional association
is
deregistered.
[39]
Duties of the
Director-General
[46]
The Act imposes various duties on the
Director-General. In the main, the Act requires the
Director-General to ensure that
its objects are realised.
[40]
In implementing the Act, the Director-General is charged with the
responsibility of furnishing all traditional communities
with
information about the Act. This may take the form of pamphlets
and other documents prepared and distributed by the Director-General
in various communities. These documents must be in the language
spoken in a particular community for them to be widely accessible.
[47]
If a traditional community contemplates
adopting a constitution for an association, it must inform the
Director-General, who must
assign an authorised officer to attend the
meeting where the constitution would be adopted. The authorised
officer must compile
a report on issues listed in section 7(2) and
pertaining to the meeting. This report forms part of
information considered
in determining whether to register an
association or not. If the constitution is not adopted because
of some dispute, it
falls on the Director-General to appoint a
conciliator to facilitate resolution of the dispute.
[41]
The Director-General is also mandated to appoint a suitably qualified
person to assist a traditional community in drafting
a
constitution.
[42]
[48]
Once the constitution is adopted, the
relevant community must submit it, together with other prescribed
information, to the Director-General.
Any member of the
community who has a complaint against the process leading up to the
adoption of the constitution may lodge the
complaint with the
Director-General who may withhold registration of the association,
pending the resolution of the complaint.
[43]
It is also the duty of the Director-General to examine a constitution
submitted for registration to determine if it complies
with the
principles in section 9. The Director-General may suggest
amendments to make that constitution compliant with section
9.
[44]
If a community fails to adopt a constitution during the currency of a
provisional association, the Director-General is empowered
to draft a
constitution for that community.
[45]
[49]
Once registration is effected, the
Director-General assumes other responsibilities in respect of the
registered association.
She may inspect the affairs of the
association to determine whether it continues to comply with the Act
and its constitution.
[46]
In performing this function, the Director-General may demand to be
furnished with any relevant information.
[47]
In carrying out inspections, the Director-General may peruse and make
copies of any document relating to the affairs of an
association and
may also subpoena any person with relevant information.
[48]
If a dispute arises within an association, the Director-General must
hold an enquiry or appoint a conciliator to assist in
resolving the
dispute.
[49]
She may even initiate proceedings to have an association placed under
administration, if the association is unable to pay
its debts.
[50]
The Director-General must help any member of an association to
challenge the validity of transactions which do not comply
with
section 12 of the Act.
[50]
All these obligations illustrate the deep
involvement of the Director-General in ensuring that the objects of
the Act are achieved.
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.
[51]
In this matter, the Director-General did
not approach the process of registration in the spirit demanded by
the Act. He opposed
registration on the basis of shortcomings
without helping the community to remedy them. This conduct by
the Director-General
was not consistent with the recommendation made
by his delegate. Under a mistaken understanding of the Act, the
Director-General
adopted a wholly inappropriate response to the
Community’s legitimate request for registration.
Remedy
[52]
It follows that the order of the Supreme
Court of Appeal must be set aside. The effect of this would be
that the order of
the Land Claims Court is revived. There
appears to be no basis for this Court to interfere with factual
findings made by
the Land Claims Court that the requirements of
section 8 were satisfied. Some of the crucial findings of that
Court were
accepted by the Supreme Court of Appeal, even though it
narrowed down the issue before it to the question of standing.
[53]
Moreover, the recommendation that the
Association qualifies for registration constitutes an administrative
action that remains in
existence until set aside. For as long
as it is not set aside the recommendation is capable of giving rise
to a valid
registration, regardless of whether the
recommendation was valid or not. In
Kirland
Investments
[51]
this Court emphasised the fact that void administrative actions may
have legal consequences if not set aside and that officials
may not
disregard them. In that case Cameron J said:
“
The
question is thus whether, despite its vulnerability to review, the
approval given to Kirland constituted administrative action.
To
argue otherwise is at odds with both the Constitution and PAJA, which
proceed on the premise that administrators may err, and
even that
they may err grossly. When they do, their actions are not
nullities. They exist in fact and may have legal
consequences.
The solution is to challenge the decision on review.”
[52]
[54]
Although the Minister supported the setting
aside of the order of the Supreme Court of Appeal, his counsel argued
that the matter
be referred to mediation. There is simply no
legal basis for the request in the context of the present matter.
Once
an association qualifies to be registered, the Director-General
or her delegate has no discretion but to register the association.
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
the parties.
[55]
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. In his report in terms of section
7(2) of the
Act, the Department’s representative recorded that
there were no interests negatively affected by the adoption of the
Association’s
constitution. Accordingly, there is no
impediment to the registration of the Association. Instead, by
effecting registration,
the Department would be creating a platform
for democracy to flourish among the Bakgatla-Ba-Kgafela Traditional
Community.
Costs
[56]
As the Association has succeeded in this
Court, I cannot think of any reason why it should not be awarded
costs. The respondents
did not advance any reason for denying
the Association costs. However it is fair to order the Minister
and the Director-General
to pay those costs. It was the
Minister’s intervention and the stance adopted by the
Director-General subsequently
which prevented the registration of the
Association. They should bear the costs both in this Court and
in the Supreme Court
of Appeal.
Order
[57]
In the result the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of the Supreme Court of Appeal is
set aside.
4.
The order of the Land Claims Court is
re-instated.
5.
The Minister of Rural Development and Land
Reform and the Director General of the Department of Rural
Development and Land
Reform are ordered to pay the costs of
Bakgatla-Ba-Kgafela Communal Property Association in the Supreme
Court of Appeal and this
Court. Those costs are to include
costs of two counsel where applicable.
For the Applicant:
For the First and Second
Respondents:
For the Third and Fourth
Respondents:
G Muller SC and N Ngoepe
instructed by Leofi Leshabana Incorporated Attorneys.
S Mogagabe SC, L
Moloisane-Montsho SC and K Chwaro instructed by Mothuloe Attorneys.
C Jansen and N Muvangua
instructed by the State Attorney.
[1]
28 of 1996.
[2]
Struggle songs like “
Sikhalela
Izwe Lwethu
” (we mourn the loss
of our land) were composed and sung by activists at meetings.
[3]
See section 25(7) of the Constitution. This
section provides:
“
A
person or community dispossessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices
is
entitled, to the extent provided by an Act of Parliament, either to
restitution of that property or to equitable redress.”
[4]
22 of 1994.
[5]
Section 42D gives the Minister the power to
settle a land claim if satisfied that a claimant is entitled to
restitution.
[6]
Section 8(3)(a) of the Act provides:
“
If
the Director-General is satisfied that the association qualifies for
registration he or she shall refer the application, constitution
and
his or her own written consent, to the Registration Officer, who
shall register the association in the prescribed manner,
allocate a
registration number, and issue a certificate of registration.”
[7]
Bakgatla-Ba-Kgafela Communal Property
Association v Minister of Rural Development and Land Reform and
Others
[2013] ZALCC 16
per Matojane J.
[8]
Bakgatla-Ba-Kgafela Tribal Authority v
Bakgatla-Ba-Kgafela Tribal Communal Property Association
[2014] ZASCA 203
at para 7.
[9]
Id at para 12.
[10]
Camps Bay Ratepayers and Residents Association
and Another v Harrison and Another
[2010]
ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC);
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC); and
Dudley
v City of Cape Town and Another
[2004]
ZACC 4; 2005 (5) SA 429 (CC); 2004 (8) BCLR 805 (CC).
[11]
See para 35 below.
[12]
Above note 3.
[13]
The long title of the Act provides:
“
To
enable communities to form juristic persons, to be known as communal
property association in order to acquire, hold, and manage
property
on a basis agreed to by members of a community in terms of a written
constitution; and to provide for matters connected
therewith.”
[14]
See section 5(1) of the Act.
[15]
See section 5(3) of the Act.
[16]
Section 5(2) provides:
“
An
application for registration in terms of subsection (1) shall
contain—
a)
the intended name of the provisional
association;
b)
information demonstrating that the
community is a community as contemplated in section 2;
c)
a clear identification of any land or
right to land or other right which may be acquired by the
provisional association;
d)
a list of names and, where readily
available, identity numbers of the intended members of the
provisional association: Provided
that where it is not reasonably
possible to provide the names of all intended members concerned, the
application shall contain—
i.
principles for the identification of other
persons entitled to be members of the provisional association; and
ii.
a procedure for resolving disputes
regarding the right of other persons to be members of the
provisional association;
e)
a list of the names of the interim
committee democratically elected to represent the provisional
association during the period
prior to registration as an
association;
f)
an undertaking signed by the members of
the interim committee that, pending the adoption of the final
constitution by the members
of the provisional association in terms
of section 7 and the registration thereof in terms of section 8, the
provisional association
will comply with the principles as stated in
section 9;
g)
any other information reasonably required
by the Director-General relating to the right to occupy and use land
and the settlement
of the community on such land.”
[17]
Section 2(1) of the Act provides:
“
The
provisions of this Act shall apply to a community—
a)
which by order of the Land Claims Court is
entitled to restitution under the restitution of Land Rights Act,
1994 (Act 22 of 1994),
where that Court has ordered restitution on
condition that an association be formed in accordance with the
provisions of this
Act;
b)
entitled to or receiving property or other
assistance from the State in terms of an agreement or in terms of
any law, on condition
that an association be formed in accordance
with the provisions of this Act;
c)
approved by the Minister in terms of
subsection (2), and to which any property has been donated, sold or
otherwise disposed of
by any other person on condition that an
association be formed in accordance with the provisions of this Act;
d)
approved by the Minister in terms of
subsection (2), and which is a group acquiring land or acquiring
rights to land and which
wishes to form an association in accordance
with the provisions of this Act.”
[18]
Section 5(4) is quoted in para 37 below.
[19]
Section 7(2) reads:
“
An
authorised officer shall attend the meeting or meetings contemplated
in subsection (1), to take minutes of the proceedings,
to witness
the adoption of the constitution and to prepare a report setting out
his or her observations in relation to—
a)
whether the notice of the meeting was
effective in ensuring the presence of members of the community at
the meeting;
b)
the number of members of the community
present at the meeting or validly represented at the meeting, and
whether various interest
groups in the community were represented at
such meeting;
c)
the number of members of the community who
voted in favour of and the number who voted against the adoption of
the constitution
or any specific provisions thereof;
d)
whether the interests of any person or
group of persons are likely to be adversely affected as a result of
the adoption of the
constitution;
e)
the views of any dissenting person; and
f)
any other matter which the Minister may
prescribe or which may be relevant to the exercise of the
Director-General’s discretion.”
[20]
See section 8(4) of the Act.
[21]
See section 8(5) of the Act.
[22]
See section 9(1)(b)(i) of the Act.
[23]
See section 9(1)(c)(i) to (v) of the Act.
[24]
See section 9(1)(d)(i) to (iii) of the Act.
[25]
Bennett
Customary
Law in South Africa
1 ed (Juta and
Company Ltd, Cape Town 2004) at 391.
[26]
See sections 9(3) and 9(4) of the Constitution.
[27]
Section 39(2) provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
[28]
See for example
Shilubana
and Others v Nwamitwa
[2008] ZACC 9
;
2009 (2) SA 66
(CC);
2008 (9) BCLR 914
(CC);
Bhe
and Others v Khayelitsha Magistrate and Others
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC);
Alexkor
Ltd and Another v Richtersveld Community and Others
[2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC).
[29]
Above n 26 at 386-7.
[30]
Mokhatle and Others v Union Government
1926 AD 71
;
R v Mpanza
1946
AD 763
;
Kuena v Minister of Native
Affairs
1955 (4) SA 281
(T);
Lengisi
v Minister of Native Affairs
1956 (1)
SA 786
(C); and
Masenya v Seleka Tribal
Authority and Another
1981 (1) SA 522
(T) (
Masenya
).
[31]
Masenya
id at
524.
[32]
Fraser v ABSA Bank Limited
[2006] ZACC 24
;
2007 (3) SA 484
(CC);
2007 (3) BCLR 219
(CC) at para
43.
[33]
Phumelela Gaming and Leisure Limited v
Grundlingh and Others
[2006] ZACC 6;
2006 (8) BCLR 883 (CC).
[34]
Id at paras 26-7.
[35]
Department of Land Affairs and Others v
Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
para 53.
[36]
Id.
[37]
Section 13(2) provides:
“
The
Director-General shall, pursuant to an administration order referred
to in subsection (1), have such powers to manage the
affairs of the
association or provisional association as the Court, subject to the
provisions of this Act, may determine.”
[38]
See section 8(6) of the Act.
[39]
Section 8(6)(f) provides:
“
Upon
registration—
in the case of an application by a provisional association, the
provisional association shall be deregistered and its assets
transferred to the association.”
[40]
Section 10 of the Act.
[41]
Section 10(2) of the Act.
[42]
Section 6(2) of the Act.
[43]
Section 7(4) of the Act.
[44]
Section 6(4) of the Act.
[45]
Section 5(5) of the Act.
[46]
Section 11(2) of the Act.
[47]
Section 11(3) of the Act.
[48]
Id.
[49]
Section 11(6)(a) and (c) of the Act.
[50]
Section 13(1) of the Act.
[51]
MEC for Health, Eastern Cape and Another v
Kirland Investments (Pty) Ltd
[2014]
ZACC 6; 2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC).
[52]
Id at para 90.