The collapse of the Royal Bafokeng case at the Mafikeng High Court

The case on the attempted ‘land-heist’ by the Royal Bafokeng Nation’s (RBN) chief to have 61 farms around Rustenburg registered in his name has finally been heard before Justice Landman at the Mafikeng High Court.  Three interlocutory cases were heard over the two days of 31 October and 01 November 2013.

The first one dealt with the RBN’s Rule 6(5)g application that the matter be heard through trial proceedings instead of motion proceedings. However, the respondents, who are communities forming the Bafokeng ‘tribe’,  says that this new application is late in that the respondents have, through their intervening and answering papers, already incurred enormous costs in responding to well over 5 000 pages of the RBN’s founding papers and that the case should thus not be referred to trial, but instead be dismissed with costs. The RBN should have withdrawn the case as soon as it received Intervening (opposing) papers from communities. RBN should not have delayed and later demanded that communities file their Answering affidavits. Again, the RBN was well aware from the onset that there would be disputes of fact in their main application, and therefore that the right procedure they should have followed in lodging the case should have been through summons and not motion/application proceedings. RBN’s ludicrous claim that they were not aware of other claims on ‘their’ land, and that they did not expect to be opposed was contradicted by clear evidence presented, showing that the RBN was in fact aware.

Members of the Bafokeng communities from various Bafokeng villages were at pains to contain themselves from the absurd weak presentation by the RBN’s Advocate Mark Antrobus’ opening argument on the matter. ‘These RBN lawyers are just wasting and siphoning our tribal monies. They are taking advantage of our gullible chief. The chief is playing with tribal money on this useless, indefensible case. He plays with our money as if he didn’t have toys to play with as a toddler’, said Land Buyers’ Association chairperson Lucas Mekgwe. ‘These RBN lawyers are simply undermining the legal profession and insulting the intelligence of Geoff Budlender. How much has the chief paid them already? Can’t he learn from the embarrassing blunder he made with paying billions to Niall Carroll?’, he added.

The Legal Resources Centre (LRC) team led by Advocate Geoff Budlender, appeared for the Bafokeng Land Buyers’ Association, the Thekwana Community and the Setuke Family. Adv Budlender was annoyed by the amateurish, unprofessional practice by the RBN’s legal team to present new disputes during argument, when they should have made written submissions and arguments in their papers.

In the second matter, the Rule 7 application, the LRC and the communities contend that the Bafokeng chief and his Supreme Council did not have the power nor the authority to approach the Court to have the farms registered in the chief’s name. The Judge questioned the Bafokeng lawyers on which law they relied on by claiming the chief was properly authorized. The Judge hinted that traditional authority is governed by statutory law, in this case the Traditional and Leadership Governance Framework Act (TGLFA) and not necessarily by customary law, which must however be noted. The argument is that the TGLFA regulates and provides only for the establishment of the Traditional Council, and not the Supreme Council or Kgotha-Kgothe. The latter two are therefore strange, extra judicial and undemocratic structures created by the Bafokeng chieftaincy and not by statutory law. It is probably therefore the Traditional Council not the Supreme Council or Kgotha-kgothe, after having consulted meaningfully with affected persons and claimants, that should have given the chief the authority to lodge. No such consultation ever took place during and after the passing of the disputed September 2005 Supreme Council resolution. If however there was such consultation, the Supreme Council’s decision was still overturned by communities’ opposition during the 29 July 2006 Kgotha-kgothe meeting.

The third Stay Application was postponed until further notice. The communities (LRC) contend that the whole case be suspended until promulgation of a new law by Parliament as directed by the Constitutional Court in the CLARA case. The new envisaged law will determine how traditional communities should be governed.

Judgment was reserved. The communities are hopeful that judgment will be delivered within three months.

In an interesting twist of events, it is reported that the State has now lodged papers to oppose the Bafokeng chief in the main case. The communities have lodged a petition with Parliament, SCOPA and the Public Protector to have the chief deposed. The communities claim the chief is unfit to rule, an agent provocateur, and that they have thus lost trust and confidence in him.