Mr Rapetsana, a key witness for RBN, testified that the Kgotha-Kgothe (Bafokeng general assembly) is not the highest decision making structure of the RBN, contrary to the RBN chief’s previous submissions. Mr Rapetsana who metaphorically scored a number of magnificent own goals, was grilled in a witness box for a period of four days.
Shimane Phiri, a community activist from Thekwana exclaimed sarcastically: ‘He stole the show for us, our star witness!’
Mr Rapetsana testified that it was not necessary for the Bafokeng Supreme Council or the chief to have consulted with the communities when lodging an application in 2008 at the Mafikeng High Court to have some 61 farms held by the Minister of Land Reform and Rural Development in trust for the Bafokeng tribe, transferred and registered in the name of the RBN. The communities opposed the application and claimed that the chief was not properly authorised; that the chief committed and ought to have consulted with them; more so that the affected land was in dispute as communities claimed the land to be theirs and not RBN’s; and therefore that registration of title deeds should be made in the individual communities’ names and not the RBN’s.
The communities had in the previous week launched a notice with the Court, of their intention to challenge the constitutionality of the RBN’s actions in terms of Rule 16A.
The star witness Mr Rapetsana, was cheered by the Bafokeng ‘tribes’, the communities, when he contradicted and refuted claims by his fellow expert witness, Prof JC Bekker. Prof Bekker had claimed in a witness statement that he had recently met with Mr Rapetsana, Mr Setshedi and Mr Eric Nkele who informed him that consultation with communities had taken place. Mr Rapetsane denied having met and discussing the case with Prof Bekker.
On a question of whether the Bafokeng Supreme Council, a customary structure, was competent to authorise the chief to lodge the main application, the Judge made a statement in passing that the Supreme Council could possibly confer unto itself certain statutory powers from specific legislation, as long as those powers are not expanded.
The communities claim the Supreme Council is an arbitrary structure; manipulated by the chief; to pass important decisions without quorums, meaningful debate or consultation; and that the Supreme Council have usurped the powers of the statutory Traditional Council, and arguably also that of the Kgotha-Kgothe.