ROYAL BAFOKENG NATION
SUBMISSIONS BY THE ROYAL BAFOKENG NATION
IN RESPECT OF THE COMMUNAL LAND RIGHTS BILL, 2003
1.
This memorandum is the response of the Royal
Bafokeng Nation (“the Bafokeng”) to Notice 2520 in Government Gazette No 25492
of 3 October 2003 in which the
Communal Land Rights Bill, 2003 is published for comment by the general public.
This submission will focus on the manner in which the Bill affects the Bafokeng
and other similarly placed communities.
2.
The Bafokeng is an indigenous community of some
300 000 members situated in the Bafokeng District near Rustenburg in the North-West Province.
3.
In this memorandum, the Bafokeng addresses the
following broad topics:
3.1
A brief history of Bafokeng occupation and
ownership of land;
3.2
The legal status of indigenous communities referred
to in the Bill as "communities";
3.3
The democratisation of the law and customs of
communities; and
3.4
The issues of transfer of communal land and security
of tenure in respect of communal land;
4.
This legislation is long overdue, as 9 years have
passed since the first democratic government was elected. Notwithstanding the delays the fact that a
Bill has been published is welcomed by the Bafokeng.
5.
In order to appreciate the Bafokeng’s position in
respect of the Bill we provide more detail in respect of the Bafokeng, its
structures and land holding.
HISTORY
OF BAFOKENG RIGHTS TO LAND
6.
The Bafokeng have a very ancient genealogy
traceable to the 1100's. Part of the
general southward movement of Batswana groups of people, the Bafokeng settled
in an area which included the whole of the present municipal area of
Rustenburg, Kroondal and Marikana, well before 1700.
7.
The approach adopted to land in Bafokeng law and
custom was one of communal tenure whereby ownership of the land vested in the
community and not in any individual.
8.
During the 1840’s the first white settlers arrived
in the Rustenburg area and began to displace the Bafokeng from the land on
which they had lived for many years.
9.
With the arrival of the Boer settlers in the Transvaal, came a
rudimentary system of land registration which became more sophisticated over
time. Each citizen or burgher of the Transvaal Republic could claim a
farm of 3000 morgan. Initially the grants of such farms were performed
informally by the landdrost who issued certificates of registration for land.
Such claims of land by burghers encroached on the land settled historically by
the Bafokeng. By the mid 19th century
all the land forming the greater Rustenburg region had been granted to Boer
farmers, who accordingly became the registered owners of the land. At law the registered owner of land had
absolute rights of ownership and possession.
Accordingly, whilst the Bafokeng continued to occupy portions of their
ancestral land, at that stage they enjoyed no rights of ownership. Thus for example the principal village which
was within the present municipal area of Rustenburg was vacated and moved to
the village of Kana situate on what
is today the farm Reinkoyalskraal 278JQ.
10.
In April 1844 the First Boer Constitution, being
the Thirty-Three Articles drawn up at Potchefstroom, expressed the attitude
that there would not be equality between blacks and whites as regards land
rights. Article 29 thereof provided:
"No natives shall be
allowed to settle near village lands, to the detriment of the inhabitants,
except with the consent of the full Raad".
11.
The Volksraad of The South African Republic (the “Transvaal Republic”) resolved in
November 1853 that Commandant-Generals and Commandants could grant farm land to
blacks provided:
"... that such a farm be
occupied by them and their descendants conditionally as long as they behave in
accordance with the law and obediently.
In case of disobedience such tenure may be declared lapsed, and, if so,
it shall always remain only a loan farm, and the conditions or rent may be
summed up in the words "good behaviour or obedience".
12.
In June 1855 the Volksraad passed a resolution
which provided that:
"... no one who is not a
recognised burgher shall have any right to possess immovable property in
freehold... All coloured persons are excluded herefrom, and the burgher-right
may never be granted or allowed to them (in accordance with the
Grondwet)."
13.
The Grondwet which was the constitution of the Transvaal Republic was adopted at
Rustenburg in 1858 and provided that:
"The people will not
permit any equalisation of coloured persons with white inhabitants neither in
Church nor in State".
14.
The issue of whether blacks could purchase land
arose when the Commandant of the Rustenburg district enquired of the Volksraad
whether blacks in his district could purchase land from a burgher. The Executive Council proposed to the Volksraad
that in such cases transfer should be made out in the name of the government,
the use of the farm being available to the native and his heirs as long as they
conducted themselves according to law.
One member of the Volksraad proposed that "according to law no land
should be sold to blacks", but this was rejected. The Volksraad referred the matter back to the
Executive Council for a report as to the best way in which to provide the
blacks with locations and what would be in accordance with the law. The Volksraad
appointed a Commission to enquire into and report on the matter. The Commission duly reported whereafter a
Volksraad resolution was passed in November 1871 which allowed for the purchase
of land
“... by Kaffir tribes,
subject to the condition that they shall not be allowed to in any way dispose
of this ground otherwise than with the consent of the Government ..."
15.
The government also retained a pre-emptive right to
land where black purchasers wished to dispose of land.
16.
This 1871 resolution of the Volksraad was however
not acted upon and did not become law. A
petition in 1872 which requested that land not be sold to blacks and that
blacks not be entitled to obtain freehold ownership was answered by the
Volksraad stating that it was unknown that transfer had ever been given to
blacks.
17.
In 1873 the question of land ownership by blacks
was again raised before the Volksraad which referred the issue to the
government for a report and proposal.
Executive government submitted its report to the Volksraad in 1874 and
placed before it a proposed law on the transfer of land to blacks. The proposed law provided for the transfer
of:
"landed property to any
coloured persons who shall produce a certificate from the Field-Cornet of the
ward in which he abides or is resident, or from the Landdrost of the division
which he resides, that such person is well known to him as an honest, quiet,
industrious and peace-loving person, faithful to the Republic".
18.
The report and the draft law were both discussed by
the Volksraad and rejected. The resolution which rejected the proposed law
stated that it was in conflict with the Grondwet (Constitution). In law the status quo remained
unaltered. The Volksraad resolution of
1855 continued to apply, whereby blacks were excluded from holding property in
freehold.
19.
In January 1875 Kgosi Mokgatle of the Bafokeng
assisted by J.A. Butner enquired of the government whether a farm that the
Bafokeng had purchased could be transferred into their name, and, if that was
not possible, whether the farm could be transferred into the name of the
government in trust for the Bafokeng.
The response from the Executive referred Butner to a Volksraad
resolution of the previous year which, pursuant to a request by one Macapan
Aapie had refused to approve the transfer of land into the name of either an
indigenous community or the government in trust for such community.
20.
Up to the time of the British occupation in 1877
the grants of land for black occupation made by the government of the Transvaal Republic were according
to these principles.
21.
On 12 April 1877 Sir Theophilus
Shepstone annexed the Transvaal on behalf of Britain. The annexation
proclamation guaranteed “equal justice to
the persons and property of both white and coloured”, but “without the granting of equal civil rights”,
such as the right of voting, or their being entitled to “other civil privileges incompatible with their uncivilized condition”.
The proclamation guaranteed that all private bona fide rights to property,
guaranteed by the existing laws of the Transvaal Republic would be
respected.
22.
The British Administration altered the position in
that it initiated the principle of vesting land title for blacks in a
responsible representative of the government as official trustee. The Lagden
Commission Report was later to record this change in policy towards the
purchase of land by blacks which occurred during the British occupation as
follows:
"With the British
occupation of 1877 a modification of the principle of the South African Republic, which refused recognition of the right of Natives to
purchase land, was introduced.
It was considered inadvisable
to make a violent change by which Natives should have the right to purchase
land and to have it registered in their own names. The course adopted by the late Sir Theophilus
Shepstone was to make the Secretary for Native Affairs ex officio trustee for
the Native purchases; thus the latter were secured in their rights, and the
office being a permanent one, all risk of their being put to trouble and
expense, in the event of the death of a trustee, was obviated."
23.
The Lagden Commission Report also records that
until the time of annexation of the Transvaal:
"The Government of the
late South African Republic was, up to this point, unwilling to allow natives to
acquire land by purchase. In these
circumstances, the Natives resorted to the expedient of arranging with
Missionaries to buy land for them, which was registered in the name of the
Missionary. The purchase price was
collected by each Native Chief from his tribe, principally in cattle, and the
Missionary arranged the transaction.”
24.
As early as 1869 the Bafokeng had purchased and
paid the purchase price of £9 for a portion of land which was registered in the
name of a missionary. In 1871 the Bafokeng purchased and paid the purchase
price of £150 for a further portion of land. Further similar purchases followed
in 1874, 1876 and 1879 with all these farms being registered for the Bafokeng
in the names of missionaries with the Hermansburg Mission Society.
25.
Sir Theophilus Shepstone did not approve of land
purchased by indigenous communities being held by missionaries. He accordingly instructed:
"That until further
legislation on the subject, all lands purchased by or for natives are to be
held in trust by the Secretary for Native Affairs for such natives".
26.
Prior to July 1879 Kgosi Mokgatle of the Bafokeng
obtained an interview with Sir Theophilus Shepstone in regard to land ownership
by blacks. Shepstone indicated to Kgosi
Mokgatle that according to the law blacks could not obtain ownership in land
and that until such time as the law was amended no change in this respect could
be achieved. Accordingly Shepstone
enquired from Mokgatle as to what arrangements had been made in respect of the
land which had already been purchased by the Bafokeng. Mokgatle informed Shepstone that the land was
transferred into the name of a missionary, Reverend Penzhorn. The problem was that Penzhorn no longer
wished to shoulder this responsibility as he anticipated that the Bafokeng
would have problems in relation to the properties when Penzhorn died. Shepstone agreed with this and indicated that
it would be better if the land could be transferred into the name of one or
other government official in trust for the Bafokeng because the office of such
official would continue to exist even if the holder of that office died. Shepstone nevertheless advised Kgosi Mokgatle
that the Bafokeng leave matters as they stood for the present.
27.
In December 1879 Reverend Penzhorn wrote to the
Colonial Secretary, M. Osborne, requesting that the Bafokeng be given evidence
of the fact that the government would transfer their land into the name of a
trustee on their behalf. In that letter
Penzhorn indicated that the Bafokeng intended to purchase a further farm and
that the seller was prepared to sell it, provided it could be transferred into
the name of Mokgatle or the government in trust. H. Shepstone in his minute to M. Osborne
regarding this letter said:
"The suggestion that the
land should be transferred to the Government in trust is a good one. There have been one or two similar
applications and the land has been transferred to me in my capacity as
Secretary for Native Affairs in trust for the native purchaser. I would suggest that a similar course be
adopted in this case".
28.
The Administrator of the Transvaal, W.O. Lanyon in
his minute regarding the same matter said:
"this shows how ready the natives are to
agree in the proposal to have a government trustee".
29.
In his Masters thesis on “The Question of Native
Property Rights in Land in the Transvaal” W. A Stals
states that the evidence shows that the British interim government for the
first time at the beginning of 1880 officially decided that the Secretary for
Native Affairs should be appointed ex
officio as trustee for land purchased by native tribes. Thereafter the policy laid down in the case
of the Bafokeng became general policy.
30.
This period of British occupation of the Transvaal ended the
following year at the battle of Majuba in February 1881. After that Boer victory the British accepted
defeat and restored the independence of the Transvaal Republic. The Pretoria
Convention signed in August 1881 contained the terms of cessation of war. Under that convention the British recognised
the complete self-government of the Transvaal subject to
certain reservations and limitations.
31.
The day before the Pretoria Convention was signed,
Sir Hercules Robinson, President of the Royal Commission and High Commissioner
for South Africa, delivered an
address to the Blacks of the Transvaal assembled at Pretoria. He explained the conventions upon which it
had been agreed that the country would be given back to its former Boer
rulers. In his address, which was later
gazetted, Robinson said the following:
"In the conditions, to
which as I have said they (Messrs Kruger, Pretorius and Joubert) agree, your
interests have not been overlooked. All
existing laws will be maintained, and no future enactment which specially
affects your interests will have any effect until the Queen has approved of
it. I am anxious that you should clearly
understand this today, and realise that although there will be a change in the
form of Government, your rights, as well as your duties, will undergo no
alterations.
You will be allowed to buy or
otherwise acquire land, but transfer will be registered in trust for you in the
names of three gentleman who will constitute a Native Location Commission. The Commission will mark out Native
Locations, which the great Native Tribes may peacefully occupy. In marking out these locations, existing
rights will be carefully guarded; and the Transvaal Government on the one hand
and the native tribes on the other, will always have to respect the boundaries
so defined ..."
32.
Article 13 of the Pretoria Convention formally
recorded this position:
“Natives will be allowed to
acquire land, but the grant or transfer of such land will in every case be made
to and registered in the name of the Native Location Commission hereinafter
mentioned, in trust for such natives".
33.
During March 1882 certain burghers in the
Rustenburg district sent a written request to the Volksraad that no land should
be transferred to blacks. The State
Secretary to the Transvaal Republic replied by way
of letter which document was subsequently approved by the Volksraad in August
1884. The letter of the State Secretary recorded:
“With reference to that
portion in which you request that no ground may be sold to natives, or directly
or indirectly transferred to their names, I have received instructions to refer
you to Article 13 of the Convention whereby provision is made for retaining
ground for Natives in the name of the Kaffir Location Commission, so that the
Natives cannot hold ground in their own names.
It is not possible for the
Government to comply with the request about the sale of the ground to natives,
and no laws exist or ever have existed which prohibit such".
34.
The Lagden Commission Report records that the
Volksraad resolution of August 1884 was interpreted to approve of the principle
that blacks could not hold ground in their own names, and that this principle
was acted upon by the Registrar of Deeds under the government of the second
British occupation.
35.
In 1882 and 1883 the farms Zanddrift and
Beerfontein which had been purchased by the Bafokeng were registered in the Deeds
Register in Pretoria and transferred
in “full and free ownership” to the
Native Location Commission in trust for the Bafokeng. (The Commission included among its members
Paul Kruger, Vice-President of The Transvaal Republic and George Hudson the
British Resident).
36.
The London Convention of 1884 replaced the Pretoria
Convention and essentially abolished British supervision over the Transvaal Republic. This Convention provided that all transfers
to the British Secretary for Native Affairs in trust for blacks remained in
force, but that an officer of the South African Republic would take the
place of such Secretary for Native Affairs. Consequently the Superintendent of
Natives took over this role on behalf of the Transvaal Republic.
37.
In 1896 the new constitution of the Transvaal Republic provided that:
“All persons who are within the territory of
this Republic shall have an equal claim to protection of person and
property"
but at the same time laid down that:
"The people will not
permit any equalisation of coloured persons with white inhabitants".
38.
In 1887 the farm Bierkraal purchased by the
Bafokeng was transferred to the Superintendent of Natives in trust for the
Bafokeng. In 1890 the farm Doornspruit
was similarly transferred. The transfer
of these farms to the Superintendent of Natives illustrates the prevailing
policy of the government of the Transvaal Republic in regard to
registration of land acquired by blacks.
39.
Prior to 1898 Kgosi August Mokgatle of the Bafokeng
requested the government to have all Bafokeng farms which were at the time
registered in the names of missionaries transferred to the Superintendent of
Natives in trust for them. However the
relevant documents were mislaid in the office of the Native Commissioner of
Rustenburg.
40.
In October 1899 Britain declared war on
the Transvaal Republic, formally
annexed the territory and renamed it the Transvaal Colony. War continued until
peace talks were concluded with the treaty of Vereeniging in May 1902. In
consequence of the British victory the Superintendent of Natives was formally
succeeded by a British official, the Commissioner of Native Affairs.
41.
Lord Milner, the Administrator of the Transvaal, repealed and
declared of no force and effect a large number of Transvaal Republic laws. Those included the Constitution of 1858 and
1896, various Volksraad resolutions and government notices published under the Transvaal Republic.
42.
Under the second British occupation Sir G.Y. Lagden
was appointed the Commissioner of Native Affairs. In 1903 a portion of the farm
Kookfontein which had been purchased by the Bafokeng was transferred to "Commissioner of Native Affairs in
trust” for the Bafokeng.
43.
In July 1904, the Lagden Commission issued its
"Report Relative to the Acquisition
and Tenure of Land by Natives in the Transvaal" in which was stated in
respect of the class of land held by the Bafokeng:
“Land Owned by Natives:
These properties were almost
entirely acquired under the late Government. Being property purchased by
communal subscription, it is not practicable to exercise the same control as
over Government Locations. ....
The title to such property is
or is about to be vested in the Commissioner for Native Affairs in trust for
the owners, who cannot, therefore, encumber or dispose of their interests
without the consent of the Government”.
44.
In 1904 the farm Vaalkop which had been purchased
by the Bafokeng was similarly transferred to “The Commissioner of Native Affairs, his successors in office, in trust”
for the Bafokeng.
45.
In April 1905 judgement was handed down by the
Supreme Court of the Colony of the Transvaal in case of Tsewu
v Registrar of Deeds. On the basis that all the inhabitants of the country
enjoy equal civil rights under the law the court held that an aboriginal native
of South Africa was entitled to claim transfer in the deeds office
of any land of which he was the owner.
The court unanimously upheld the right of a black to obtain registration
of transfer into his own name. The court
held that there was no law which justified the position adopted by the
Registrar in refusing to register land in the name of the black plaintiff.
Chief Justice Innes stated:
"No doubt the practice
has prevailed for years in this country of not allowing transfer of land to be
made direct to any native, but insisting upon transfer being taken in trust for
him by an official appointed by the State.
But the existence of that custom cannot in my judgement justify the
attitude of the respondent. It is for
the legislature to deal with the matter if it is thought right to make special
provisions in regard to natives. When we
find nothing in the statute book which would warrant us in drawing any
distinction we are bound to draw none".
46.
In the Tsewu
case the court referred to the Volksraad resolution of 1855 and accepted that
had this not been repealed blacks would have been directly prohibited from
holding landed property in the Transvaal.
47.
In September 1906 the farm Klipgat purchased by the
Bafokeng was transferred to the Commissioner of Native Affairs for the Transvaal in trust for
the Bafokeng. Soon thereafter the
Bafokeng purchased two further farms, Turffontein and a portion of Beerfontein
from the Hermansburg Missionary Society for a purchase price of £680.
On 11 July 1910 a resolution
was passed by the Bafokeng that the transfer of these farms be passed from the
missionaries to the Minister of Native Affairs in trust for the Bafokeng.
48.
The Transvaal was granted
Responsible Government in the Colony of the Transvaal in 1907. This change saw Johann Rissik appointed the Minister
of Native Affairs in the Transvaal. He succeeded
the Commissioner for Native Affairs.
49.
In accordance with the recommendation regarding
land owned by blacks contained in the Lagden Report, the Transvaal Government
commenced the transfer of land nominally held by missionaries as
representatives of indigenous communities into the name of the Minister of
Native Affairs for the Transvaal. Accordingly in June 1907 six farms which had
previously been purchased by the Bafokeng and nominally held by missionaries,
were transferred free of transfer duty to Rissik in his capacity as Minister of
Native Affairs for the Transvaal, in trust for
the Bafokeng.
50.
In November 1909 the farm Reinkoyaalskraal was
purchased by the Bafokeng and similarly transferred to the Minister of Native
Affairs in trust.
51.
On 31 May 1910 the Union of
South Africa came into being. The
Minister of Native Affairs of the Union of South Africa succeeded to the office
of the Minister of Native Affairs of the Transvaal Colony.
52.
The Native Land Act of 1913 came into
operation on 19 June 1913 and divided
land in South Africa into areas in
which blacks could own land and areas where it was illegal for blacks to own
land. To this end the Act established areas known as “scheduled native
areas”. Any person other than a black person required the approval of the
Governor-General to acquire land in a scheduled area. The Native Land Act of 1913 stipulated that
blacks could not enter into any agreement or transaction for the purchase or
acquisition of land from a person other than a black outside a scheduled area,
except with the approval of the Governor-General. This legislation had devastating consequences
for blacks with only some 7% (later to increased to 13%) of the land area of South Africa being available
for acquisition by blacks.
53.
The Bafokeng continued to purchase land after 1913
but the effect of the Native Land Act was to make it very difficult to acquire
further tracts of ancestral land. Three further portions of the farm
Kookfontein which fell within the scheduled area were however transferred to
the Minister of Native Affairs in trust.
The Bafokeng resolution which authorised this transfer further resolved
that a two pound levy be imposed on each adult male member of the Bafokeng in
order to raise the funds for the purchase price.
54.
The farm Doornspruit Annex was purchased from the
Government by the Bafokeng for the sum of £175 in August 1935. This farm was
transferred by way of a Crown grant to the Minister of Native Affairs in trust
for the Bafokeng. As this was a sale of
government land, the transfer was made not only with the approval of the
Minister of Native Affairs but also required the approval of Parliament. It is
apparent from the resolution approved by Parliament on 21 May 1934, and from the relevant
Executive Council minute, that the government and Parliament regarded the sale
of Doornspruit Annex as a transaction whereby freehold ownership in this land
would pass from the State to the Bafokeng.
55.
In September 1935 the farm Toulon was exchanged
for a portion of the State owned farm Tweedepoort and registered in the name of
the Minister of Native Affairs in trust for the Bafokeng. Again both the
Minister of Native Affairs and Parliament approved the transfer.
56.
The Native Trust and Land Act of 1936 provided that
where a black was the owner of the mineral rights, no person could prospect for
minerals without the written permission of the Minister of Native Affairs. This legislation discriminated directly against
blacks and the Bafokeng.
57.
It is quite apparent from the records surrounding
the lease of mineral rights over various of the Bafokeng farms, that the
government officials in the Native Commissioner's office, the Secretary for
Native Affairs, the Minister of Native Affairs and the Bafokeng all regarded
the Bafokeng as the owner of the land and as such entitled to deal with mineral
rights on such properties as the owner thereof.
For example, on 14 September 1953 the Secretary for Mines in a letter to
the Secretary for Native Affairs regarding a proposed prospecting contract
between the Bafokeng and a mining company in respect of 6 portions of Bafokeng
land stated:
"It would appear that
the ownership of both the surface and mineral rights in respect of the land in
question vests in the said Bafokeng Tribe and the land therefore ranks as
private land for the purposes of the mineral laws".
58.
There is no recorded instance where the government
of the Republic of South Africa sought to deal with Bafokeng land contrary to
the wishes of the Bafokeng. On the
contrary the trustee inevitably adopted the attitude that he should act as
required by the Bafokeng in land related transactions.
59.
In dealing with their land the Bafokeng have always
exercised rights consistent with ownership.
The government functionaries holding the land in trust for the Bafokeng
have never purported to exercise rights inconsistent with the Bafokeng's rights
of ownership. The single notable
exception to this was President Lucas Mangope of Bophuthatswana who purported
in 1990 to conclude mining contracts on behalf of the Bafokeng against the will
of the Bafokeng. The circumstances of
this attempt to interfere with the Bafokeng’s right to deal with their own
mineral rights is recorded below in part 2 hereof.
60.
The Bafokeng are an indigenous community governed
by their own system of indigenous law.
In Bafokeng indigenous law a decision to dispose of communal land can
only be taken at a general meeting (pitso)
of the Bafokeng. This principle of
indigenous law has been recognised by the South African courts. The precise
role of the government functionaries who held the Bafokeng land as
"trustees" was never spelt out. In practice through the course of
more than a century of Bafokeng land being held in trust in this way, the government
functionaries who were trustees never sought to interfere in the Bafokeng’s
right to deal themselves with their own land or mineral rights. In short the
trustees did what the Bafokeng instructed them to do with the land.
ESTABLISHMENT
AS A JURISTIC PERSON
61.
THE CONSTITUTION
61.1
Section 211 and 212 of the Republic of South Africa
Constitution Act, Act 108 of 1996 provide:
“211 Recognition
(1) The
institution, status and role of traditional leadership, according to customary
law, are recognised, subject to the Constitution.
(2) A traditional authority that observes a
system of customary law may function subject to any applicable legislation and
customs, which includes amendments to, or repeal of, that legislation or those
customs.
(3) The courts must apply customary law when
that law is applicable, subject to the Constitution and any legislation that
specifically deals with customary law.
212 Role of traditional leaders
(1) National legislation may provide for a
role for traditional leadership as an institution at local level on matters
affecting local communities.
(2) To deal with matters relating to
traditional leadership, the role of traditional leaders, customary law and the
customs of communities observing a system of customary law-
(a) national or provincial legislation may
provide for the establishment of houses of traditional leaders; and
(b)
national
legislation may establish a council of traditional leaders”
62.
THE COMMON LAW
62.1
The Bafokeng and other indigenous communities enjoy
full legal personality as unincorporated associations and can sue and be
sued.
62.2
In law there are two classes of persons - natural
persons and artificial or juristic persons.
There are various classes of juristic persons including unincorporated
associations. Unincorporated
associations may have full legal capacity to contract and may enjoy locus standi to sue and be sued,
provided such associations have certain characteristics. Such an association is known as a "universitas personarum", commonly
referred to simply as a universitas. A universitas
is a legal fiction constituted by an aggregation of individuals forming a
persona or entity which has a capacity to acquire rights and incur obligations
in much the same way as a natural person.
There are of course inherent limitations in the kind of rights and
obligations which a universitas,
being an artificial person, may acquire.
62.3
Generally an association which has no constitution
is not a universitas. This general rule is not an absolute
one. Where there is no written
constitution the common law recognises that a body which does possess the
characteristics of a universitas may
nevertheless enjoy legal personality. In
the absence of a written constitution the courts have regard to the nature of
the body, its objects, activities and powers in order to determine whether the
association possesses the requisite characteristics of the universitas.
62.4
In order to possess legal personality, a
voluntary association must have:
62.4.1
perpetual succession (i.e. a continued existence
despite changes in its members and governing body from time to time); and
62.4.2
the capacity to acquire certain rights apart from
the rights of the members which form the association.
This
requirement is often expressed as the right or power to hold property in the
association's own name and apart from its members.
62.5
The Bafokeng clearly enjoys perpetual succession as
it continues to exist despite the fact that the Bafokeng may acquire new
members and existing members may die or leave the community. There is no doubt that the Bafokeng has power
to own property apart from its members.
The common law requisites for a universitas
are therefore satisfied. It follows that
at common law the Bafokeng has legal personality to contract and locus standi to sue and be sued.
62.6
There is moreover a body of case law which
recognises the locus standi of
indigenous communities. The Appellate
Division has considered the question of locus
standi of indigenous communities in
the cases of Matope v Day 1923 AD 367 and in Rathibe v Reid &
Another 1927 AD 74. In the latter
judgment De Villiers JA delivering the unanimous judgment of the Appellate
Division held that:
"The Tribe is the universitas
recognised by the law and by virtue of being recognised as a universitas is
capable of owning property." (pg 86)
62.7
Later in the same judgment and in the course of
rejecting an allegation that a portion or section of an indigenous community
constitutes a separate legal entity the learned judge stated:
"The Tribe as represented by the Chief is the universitas. The Chief is not merely the connecting link
between the various sections of the Tribe.
But the Tribe as a persona preserves its unity through the common Chief,
and there is consequently no room for separate legal identities." (pg
88)
63.
CUSTOMARY LAW
STRUCTURES
63.1
The Bafokeng traditional and customary system of
government is made up of the Kgosi (chief), the bakgosing or tribal council
(also called the council of noblemen), the dikgosana or council of headmen and
the pitso or tribal assembly. Professor
M W Prinsloo, erstwhile professor of Indigenous Law at the Rand Afrikaans
University, writes that for legislation and other important matters which
affect the whole indigenous community, Bafokeng procedure at customary law
required that the Kgosi consult and inform the indigenous community at a tribal
assembly or pitso. Matters of such
importance to the indigenous community as a whole as would require a pitso
would include not only legislation but would for example include the
disposition of tribal land or mineral rights.
In executive matters which are of lesser importance to the Bafokeng,
such as the building of roads, schools and matters regarding mines, the Council
of Headmen meets with and advises the Kgosi. In the case of the Bafokeng there
are 72 headmen recognised as such in terms of Bafokeng custom. Further the custom of the Bafokeng is that
each headman is entitled to be accompanied by one or two wardmen chosen by that
headman to assist him and to accompany him to meetings of the Council of
Headmen. The full complement of
councillors at a meeting of the dikgosana and wardmen therefore potentially
totals some 216 persons. Historically the practice was that smaller council
(referred to for convenience as the "Tribal Council") administered
the day to day affairs of the Bafokeng.
This Tribal Council consisted of a much smaller number of persons
(approximately 16 persons) nominated by the constituencies of the headmen and
appointed by the Kgosi. This Tribal
Council operated as a policy and decision making body in relation to day to day
operations of the Bafokeng. Important
decisions or those involving large amounts of money were required to be taken
by the dikgosana, wardmen and councillors of the Tribal Council sitting
together.
63.2
The system of traditional authority observed under
indigenous law recognised by the Bafokeng immediately prior to the commencement
of the 1993 constitution was preserved by that constitution. Similarly, the powers and recognition of
traditional leaders according to customary law were recognised by the final
Constitution.
63.3
The Bophutatswana Traditional Authorities Act 23 of
1978 (“the Traditional Authorities Act”) creates a Tribal Authority for each
indigenous tribe. The Tribal Authority, where there is an existing “tribal
government functioning in accordance with the law and customs observed by that
tribe, shall be that tribal government”.
The chief is an ex officio member and chairman of the Tribal Authority.
The Tribal Authority consists of:
63.3.1
those members of the tribe who are recognised as
councillors in accordance with the law and customs of the tribe and who, with
the chief constitute tribal government; and
63.3.2
such additional members of the tribe as may be
appointed to the Tribal Authority by the chief with the approval of such
officiating councillors.
63.4
Section 4 of the Traditional Authorities Act
describes the statutory duties of a Tribal Authority which are generally to
administer the affairs of the tribe and to assist, support and guide its chief
in the exercise or performance of the powers conferred upon him by the Act or
under any law.
63.5
The Tribal Authority is under a duty to establish a
proper administration and appoint personnel to manage that administration.
Legal proceedings against a Tribal Authority may be instituted by or against
the chairman of that authority (i.e. the chief) in his official capacity.
63.6
In law the Tribal Authority is that system of
tribal government functioning in accordance with the law and custom of the
Bafokeng. It is incorrect to regard as two separate and distinct bodies the
Tribal Authority and the dikgosana or headmen in council together with the
wardmen and councillors (being the councillors of what we have termed the
Tribal Council). In any event it is entirely impractical to administer two
parallel councils the membership of which is co-extensive as is the case with
the Bafokeng. Since the inception of the Tribal Authority Act in 1978 only a
single council has in fact operated. This is the body which has de facto
represented the Bafokeng.
63.7
In considering the modern administration of the
Bafokeng there is one further administrative body which must be taken into
account, namely the Executive Authority/Council. Following democratic elections
by the Bafokeng in 1996 a “Constitution of the Executive Authority / Council of
the Royal Bafokeng Nation” was signed (“the Bafokeng Council constitution”).
This was assented to by the Kgosi of the Bafokeng as well as the chief
negotiators of a number of interested stake holders in the Bafokeng. This
constitution recognises and upholds the indigenous law of the Bafokeng, the
authority of the Kgosi and the seniority of the council of the dikgosana (which
is the Council of Headmen) as the legislative authority of the Bafokeng nation.
This Bafokeng Council constitution does not purport to be the Constitution of
the Bafokeng Royal Nation itself (i.e. the Tribe), but is a constitution only
of the body styled the Executive Authority/Council of the Bafokeng. This
Executive Authority/Council was established to replace the traditional Tribal
Council as the body which administered the day to day affairs of the Bafokeng
and to ensure that it is a democratic body rather than one where the members
are simply appointed by the chief as was the case historically with the Tribal
Council. It is important t note that this Council must include women.
63.8
Like the Tribal Council before it, the Executive
Authority/Council has both policy and decision making powers in relation to the
day to day operations of the Bafokeng. Under the Bafokeng Council constitution
the management and administration of the affairs of the Bafokeng are entrusted
to the Executive Authority/Council. Similarly the finances and property of the
community and all matters provided for in the Traditional Authorities Act are
entrusted to the Executive Authority/Council.
63.9
The Bafokeng believe that in the light of Sections
211 and 212 of the Constitution and the above exposition of the common law, the
provisions of Section 3 of the Bill are unnecessary. The law is that communities such as the
Bafokeng already possess legal and juristic personality.
64.
DEMOCRATISING
THE LAW AND CUSTOMS OF COMMUNITIES
64.1
The Bill provides that communities will be
recognised as juristic personalities upon registration of the community rules
in terms of section 27 of the Bill. The
Bafokeng 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. Similarly it is submitted that
the transfer of land should not be linked with and interwoven with the
conferring of legal personality.
64.2
Insofar as the Bafokeng are concerned, its law and
custom is largely oral although several academics have in various publications
recorded aspects pertaining to Bafokeng law and customs;
Prior to
conducting elections for a democratically elected council in December 1996, the
Bafokeng adopted a constitution
governing the role and functions of such council.
64.3
The reducing of the oral tradition and custom to
writing is a process which will take a considerable period of time. The reduction to writing of law and customs
will to a certain extent cast in stone such law and customs and will, it is
submitted, reduce the dynamism of such law and custom. This notwithstanding the Bafokeng are of the
view that in a developing and ever increasingly complex society the need to
reduce their law and custom to writing is welcomed.
64.4
Indigenous law or customary law must be seen as
integral part of our law and its validity must be determined by reference to
the Constitution of South Africa. In terms of section 211(3) of the
Constitution, the courts are obliged to apply customary law when it is
applicable subject to the Constitution and any legislation that deals with
customary law. In the Richtersveld Community judgment, it was held that the
Constitution acknowledges the originality and the distinctiveness of indigenous
law as an independent source of norms within the legal system and while the
constitution gives indigenous law force, it makes it clear that such law is
subject to the constitution and has to be interpreted in the light of its
values. It was further held that
indigenous law is not a fixed body of formally classified and easily
ascertainable rules as the laws change when the patterns of life of the people
who live by its norms change. The Court referred to Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa 1996
where it was held that:
“The
(Constitutional Assembly) cannot be constitutionally faulted for leaving the
complicated, varied and ever developing specifics of hoe… customary law should
develop and be interpreted, to future social evolution, legislative
deliberation and judicial interpretation.”
The court held that in
applying indigenous law, it is important to bear in mind that indigenous law is
not written but it is a system of law that is known to the community, practised
and passed from generation to generation and it will continue to evolve within
the context of its values and norms consistently with the Constitution.
64.5
What is problematic for the Bafokeng is that the
transfer of land from the nominal trustee to the Bafokeng (thus entitling the
Bafokeng to deal with its land in an unfettered fashion as would any other
private land owner but obviously in accordance with their law and customs), is
dependent on the registration of these community rules. In the Bafokeng's view the land ought to be
transferred to them without reference to the community rules on the simple
basis that the Bafokeng is in fact owner of the land and the system of
trusteeship pertaining to registration of the land is a colonial and apartheid
relic based on racial discrimination. The detail is set out earlier in this
submission.
64.6
The issue of democratising the law and customs of
communities is not an issue to be avoided.
It is correct that certain criteria should be stipulated to encourage
transformation and further democratisation of communities. This however is a process which cannot be
achieved overnight and it is submitted that to continue to delay the transfer
of land to communities which like the Bafokeng are entitled to such transfer,
perpetuates previous discrimination against those communities.
64.7
The legislation should deal separately with what
are two separate issues:
64.7.1
Transfer of registered ownership of community land
should be effected immediately;
64.7.2
Targets should be set for the achievement of
community rules which comply with the Bill and the Constitution. Such targets should be such as to
realistically allow for consultation with indigenous communities so as to allow
time for a process of reducing laws and custom to writing.
The reduction of law and
customs to community rules covering the topics set out in section 27 to section
32 to writing should be pursued and communities should be afforded a reasonable
time to do so. A period of 2 years
should suffice.
64.8
The approach of recognition of a community as a
juristic person subsequent to the entire process relating to community rules
being completed is with respect a throw-back to the colonial past, where,
particularly under the British regime, recognition of amakhosi and bakgoshi was
dependant on the whim of the colonial administration. Whilst it is extremely unlikely that the
present State will adopt such an approach, the mere use of a mechanism so badly
tainted is undesirable. In any event
these communities are already possessed of legal personality.
CONVERSION
OF REGISTERED NEW ORDER RIGHTS INTO FREEHOLD OWNERSHIP
65.
TRANSFER AND
REGISTRATION OF COMMUNAL LAND TO COMMUNITIES
65.1
There are three main aspects which require
attention:
65.1.1
The transfer of land to communities;
65.1.2
Registration of land in the name of the community;
and
65.1.3
The rendering of adequate security of tenure.
65.2
These aspects are interwoven in the Bill and with
respect this creates a number of problems.
In the Bafokeng's view these are related aspects that should be dealt
with separately.
65.3
The Bill does not do this. Rather it creates conflicts between an
individual and the community. Thus in
section 5 (1) the Bill grants an individual the right to apply for the transfer
of communal land. Whilst it is so that
this right is subject to the provisions of sections 6 of the Bill, the right of an individual
should be a right dealt with separately in the legislation. To deal with the transfer to individuals in
the same section which deals with the transfer of communal land to the
community entitled to that land causes confusion and will undoubtedly create
conflict within communities. This was
precisely the point at issue in the Rathibe v Reid case referred to
above when the Appellate Division declined to recognise the separate legal
identify of a portion of the indigenous community.
65.4
The land purchased by the Bafokeng Community
belonged to the community and not individuals. Section 9 of the Bill read with
section 13 provides for a holder of a registered new order right to apply to
the community owning the land to which such rights relates for conversion of
such right into freehold ownership and the Minister may , with the written
agreement of the holder of an old order right and on conditions as may be
agreed to, cancel the old order right. New order right is defined by the Bill
as a tenure right in communal or other
land which has been confirmed, conferred or validated by the Minister in terms
of section 26. Old order right means tenure or other right in or to communal
land which is formal or informal, registered or unregistered, derives from or
is recognised by law including customary law, practice or usage and exist immediately
prior to a determination by the Minister in terms of section 26. The Bafokeng
is opposed to individuals holding land in their own right because as it has
been shown above the Bafokeng land is for the Bafokeng community.
65.5
The provisions of section 21(2)(c) will, with
respect to the Bafokeng, cause an immense administrative burden. The Bafokeng support the extension and
securing of land tenure. However, the
provisions of section 21(2)(c) mean that the land rights enquirer in terms of
the process envisaged by this Bill will be delayed. The Bafokeng is opposed to further extensive
delays in the transfer of land which as has been pointed out was its ancestral
land and which because of the colonial and racist past they were obliged to
repurchase. The Bafokeng is committed to
granting its members security of tenure and would be prepared to accept
endorsements on the title deeds reflecting such a commitment.
65.6
Section 5 should either explicitly or in due course
by way of regulation provide a period during which the necessary land tenure
rights and communal land register be achieved.
65.7
It is correct that the Bill in chapter 6 provides a
dispute settlement mechanism but in our view this chapter will lead to great
difficulty in its application. The
dispute resolution provision confers jurisdiction upon the Customary Court,
Magistrate's Court or Land Claims Court.
It is inadvisable that there be a choice of forums as it will lead to a
divergence of authority and raises questions of creating precedent and there
being an automatic right of review generally from the Customary Court and the
Magistrate's Court. In the Bafokeng's
view it is preferable that the disputes be resolved by the Land Claims Court or
at very least that the decisions of the Land Claims Court explicitly be made
binding on the Magistrate's Court.
CONCLUSION
66.
The Bafokeng support the broad principles of the
Bill namely:
66.1
The transfer of land to communities;
66.2
The entrenchment of security of tenure in respect
of Communal Land ;
66.3
The democratisation of structures and
administration of indigenous communities.
67.
The Bill as presently drafted achieves some of
these objects but fails in respect of others.
68.
The Bafokeng are opposed to their entitlement to
transfer being subject to registration of community rules. They are firmly of
the view that they have been discriminated against for centuries and that they
should be entitled to deal with their land at their own discretion in
accordance with their customary law subject to the Constitution.
69.
The Bafokeng are opposed to proposals which allow
individuals to acquire title of communal land. There are sufficient safeguards
to protect individuals in terms of the Bafokeng’s own law and customs.
LEGAL & CORPORATE
AFFAIRS DEPARTMENT