The following are areas of concern:

• Acquisition of Communal Land;
• Juristic Personality;
• Ownership;
• Traditional Councils and Land Administration Committees, and the
• Land Rights Board.

The main object of the Bill is to provide security of tenure by transferring communal land to communities. The Bill defines:

It is our view that the Bill is silent on the question of land which was purchased by the Communities with private funds, or if it deals with it, it does not differentiate it from the land acquired from the State by Proclamation.

The reality in our Community is that there three types of land:

• land which was privately purchased by the Bafokeng;
• land currently held in Trust by the Minister of Land Affairs on behalf of the Bafokeng; and
• land which was proclaimed by Government Regulations.

The land privately purchased by the Bafokeng is owned and registered under the Bafokeng which is a Universitas Personarum. The history of the acquisition of land by Bafokeng, as set out in paragraph 6 to 60 of the submission to the committee, clearly puts into perspective how the Bafokeng acquired their land.

Section 3 of the Bill provides that communities will be recognised as juristic personalities upon registration of the community rules in terms of section 19(1) of the Bill. Paragraphs 61 to 63 of the submission sets out the Bafokeng’s structure and we do not believe that it is necessary to provide for the recognition and conferring of the status of legal personality by way of reference to community rules.

The Bafokeng administer their land through a Land Committee which has representatives from Dikgosana, democratically elected councillors, and officers of Royal Bafokeng Administration. The Land Committee has the power to acquire and dispose of their communal land subject to the resolution of Kgotha Kgothe.

Pitso ya Kgotha Kgothe is a bi-annual general meeting which consists of all adult members of the community entitled to attend, to address the gathering and to vote on issues relating to land, mineral resources and all other major decisions affecting the community.

With reference to land currently held in Trust by the Minister of Land Affairs on behalf of the Bafokeng, it is important to note that this land was acquired and purchased privately by the Bafokeng. We are of the view that the Bill does not prescribe how this land should be administered. The Bill only deals with State land held in Trust on behalf of communities.

We suggest that our rights in this land must be confirmed and converted by the Minister in terms of Section 18 (3) (d). We further suggest that this land be administered in accordance with the rules and customs of the Bafokeng which currently regulates the land privately purchased and registered under the Bafokeng as set out above.

When dealing with the land which was proclaimed by Government Regulations, we suggest that the Minister must make a determination in terms of Section 18. The Bill empowers the Minister to transfer the entire communal land to the community subject to condition in section 18(4). Section 18(2) provides that the Minister must, where applicable, determine the location and extent of the land to be transferred to a community or person.

Section 18 (3) (a) provides that subject to the conditions in subsection (4), the Minister may determine that the whole of an area of communal land … is to be registered or remain registered in the name of a specified community.

Subsection 18 (3) (b) empowers the Minister to subdivide the above (sub-section (a) ) communal land into portions of land, each of which must be registered in the name of a person and not a community.

The history of the Bafokeng set out in the submission clearly does not support the determination made in terms of subsection 18 (3) (b) and the conversion contemplated in Section 9. The history of the Bafokeng supports traditional communal ownership of land which in our case is controlled by everyone in the community through Kgotha Kgothe.

The Bill seems not to appreciate traditional communal ownership of land by introducing the opportunity for applications by individuals to "upgrade" their rights to free hold. This approach entrenches individual’s rights to the detriment of the community thus undermining and not conferring full security of tenure to communities.

The Bill defines "communal land" to mean:

The rules and customs of the Bafokeng when dealing with communal land are that the Land Committee administers the land subject to resolution by the Kgotha Kgothe. Section 21(1) read with 21(2) of the Bill requires an establishment of a Land Administration Committee and allows for a recognised traditional council to exercise the powers and perform the duties of a Land Administration Committee.

It is our submission that this Section is not prescriptive and we suggest that the word "may" in Section 21 (2) be replaced with the word "must".

Section 24(2) limits the powers of the Land Administration Committee to dispose the land without the approval of the Board. We are of the view the land proclaimed to the Bafokeng be registered in their name and be administered without such limitation. Section 5 (2) (a) provides that on making of a determination by the Minister in terms of section 18, the ownership of communal land vest in the community on whose behalf such land is held or in whose interest such registration was effected, and such land remains subject to all obligations imposed on it, and remains entitled to all rights accruing to it.

Ownership without the power to dispose of the land limits ones rights to deal freely with it and amounts to an imperfect tenure.

The Bill must be drafted in a way that accommodates well established structures of traditional communities. The Board not only limits the powers of the Land Administration Committee dealing with land but in exercising the powers set out in Section 28 it introduces non-community members into the structures of the traditional community to control the communal land. We submit that the Traditional Councils have the capacity to perform the duties and exercise the powers conferred to the Board.

We therefore suggest that the Bill be amended to allow Traditional Councils to perform the duties and exercise the powers of the Board as it allows the Traditional Councils to perform the duties of the Land Administration Committee.

We believe that the Bill attempts to provide security of tenure of land to communities but it has to take into consideration the issues raised above.