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