Article from Posted on 17 Jun 2015
By Michael Clark
The Bakgatla ba Kgafela court case hits at the heart of South Africa’s land restitution programme, and at people’s land rights protected by the Constitution. On 28 May 2015 the Constitutional Court heard the case of Bakgatla ba Kgafela Tribal CPA v Bakgatla ba Kgafela Tribal Authority and Others. The case was about whether the Communal Property Association Act 28 of 1996 (the CPA Act) allows the Bakgatla ba Kgafela CPA – a provisional CPA – to continue to exist and hold land. The CPA has struggled for many years to get registered permanently as a result of serious administrative mismanagement by the Department of Rural Development and Land Reform (the Department) and the ongoing resistance to the establishment of a CPA by the traditional council in the area.
The Bakgatla ba Kgafela community brought a successful land claim over various pieces of land in the North West. This meant that they had to create a legal entity that was able to receive ownership of the land on behalf of the community. In 2005, the claimant community voted in favour of the creation of a Communal Property Association (or CPA) to hold the land, elected a committee to run the CPA and adopted a draft constitution. The community then made an application to have the CPA registered. However, the traditional council and traditional leader, Chief Nyalala Pilane, were unhappy about the decision to form a CPA. They wanted the community to create a trust instead.
As a result of his intervention, Lulu Xingwane, the then Minister of Agriculture and Land Affairs, intervened by suggesting that the community register a provisional CPA in terms of section 5(4) of the CPA Act for 12 months (rather than a permanent CPA in terms of section 8 of the CPA Act). The Department proceeded to register the provisional CPA in line with the Minister’s instruction, in spite of internal memos that show that the Department recommended that the CPA be permanently registered. In 2008 the land claimed by the community was transferred to the provisional CPA. Thereafter, the Department had almost no contact with the community – specifically, it did not help the community to convert the provisional CPA into a permanent CPA.
When the Bakgatla ba Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned in 2012, the traditional council argued it no longer existed. The traditional council argued that section 5(4) of the CPA Act meant that a provisional CPA is only valid for 12 months – after 12 months, if the CPA has not been turned into a permanent CPA, it no longer exists.
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