The battle of the Bakgatla-Ba-Kgafela Community: Access to and control of communal land

Abstract

Like numerous other traditional communities in South Africa, the Bakgatla-Ba-Kgafela community lost portions of their ancestral land in the pre-constitutional era. Under an all-encompassing land reform programme, which also provides for the restitution of land in particular circumstances, a land claim was lodged. Having been successful with the land claim as all of the requirements set out in the Restitution of Land Rights Act 22 of 1994 were met, the first battle of the community in reclaiming their land had been won. The initial victory was short-lived as a second battle ensued, dealing with the governance of and form of control over the newly restored land. While the community wanted a communal property association, provided for in the Communal Property Associations Act 28 of 1996, the  traditional leader preferred a trust. In this regard the various options of forms and constructs of collective ownership came into play. The second battle resulted in the Constitutional Court's deciding in favour of a communal property association in the light of the overall scheme of the Communal Property Associations Act, its objectives, the particular role of the Director-General of the Department of Rural Development and Land Reform, and all that had transpired in this particular case. This contribution deals with both of these battles, first setting out the struggle to reclaim the lost land, and then discussing the conflict over ownership and governance issues brought to finality in Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority 2015 6 SA 32 (CC). In this regard the judgment is analysed and thereafter reflected on with respect to recent developments linked specifically to communal property association legislation and then to other developments impacting on communal land and traditional communities in general. With regard to the former, recent draft amendments to the Communal Property Associations Act are highlighted, whereas policy developments and draft legislative measures are discussed with regard to the latter. While it is possible that some of the recent suggested amendments embodied in the Amendment Bill would have streamlined the process had these amendments been in operation when the Bakgatla-Ba-Kgafela community fought the second battle, various problems remain. In this context markedly different - conflicting - approaches emerged from the Constitutional Court judgment and official policy measures. Whereas the Court confirmed more democratic forms of ownership and governance in general, but specifically with respect to traditional communities, official policy documents coupled with draft legislative measures relating to traditional courts entrench traditional leadership constructs. In this regard more democratic forms of governance and ownership are seemingly reserved for areas outside traditional communal areas, most notably outside the former homelands. While the judgment handed down in the Constitutional Court may have brought closure to the Bakgatla-Ba-Kgafela community regarding the formation of a communal property association, the struggle of other traditional communities opting for communal property associations may just be beginning.

Keywords:Restitution of land; traditional communities; communal property association; communal land tenure; traditional leadership; Bakgatla-Ba-Kgafela community; homeland.