IT’S not often you read judgments that you know could change literally millions of lives. Yet this month the courts delivered not one, but two, such decisions. As the driving force in one of the cases, Bridgman Sojane of the platinum-rich Pilanesburg area in North West Province says, their impact on ordinary people will be “phenomenal”.
Both matters deal with people living in areas where tradition runs deep and where traditional authorities generally make many of the most important decisions for the communities. But while the Constitution recognises customary law which operates in these areas, it also says that such law needs to be in conformity with the values of the Constitution and the Bill of Rights.
In these two cases we see the courts interpreting the law in a way that allows rural, traditional communities fully into the post-1994 dispensation, so that their local political rights are respected and given meaning.
One decision comes from the Constitutional Court and it will therefore have a wide impact on judges and communities all over South Africa. The other is a full bench decision, with three judges sitting to hear a dispute in the high court, Bhisho. Its direct impact is more geographically limited, but for the Eastern Cape, where the local communities largely follow customary law, it marks the start of a new era, and it will be persuasive authority in other regions as well.
The case decided by the Constitutional Court concerns a community removed during apartheid years. The people won the land back after a claim spear-headed by Sojane and his community who sold cattle and other possessions to fund the legal costs.
But who would actually own the precious land once it was decided that it should be given back? The community was overwhelmingly in favour of the land being owned and managed by the people themselves through a Community Property Association. The local traditional leader and his council preferred that the land should be owned by a trust. According to members of the community a trust is easier for strong traditional authority figures to manipulate, and they wanted a more obviously democratic mechanism.
The Minister of Rural Development and Land Reform suggested that the community form a provisional association pending a way being found to resolve the dispute between the people and the traditional authorities.
Whether it was to ensure that the traditional leadership had its way or whether it was simply bureaucratic ineptitude is not clear, but officials of the Department of Rural Development and Land Reform badly mismanaged the community’s attempts to be registered as an association. So much so that the 12 month cut-off for registration came and went and it appeared that the community had lost its chance to become rightful owners of their ancestral lands.
Asked for help, the Land Claims Court said the provisional association should be registered permanently but when the minister and the traditional authorities challenged this outcome at the Supreme Court of Appeal, the judges said the 12 month cut-off was an insuperable barrier.
The community then appealed to the Constitutional Court and the outcome of the appeal was delivered this week.
The court made it clear that it would interpret the legislation in order to ensure that the constitutional rights of the community to their land was upheld. The judges were also very aware of the significance of the outcome to the far wider community, across South Africa. “This court has not considered a case of this nature before”, said the judges in their unanimous decision.
“For decades restitution of land was the rallying point for the struggle against colonialism and apartheid. Regaining land ownership was the primary object of that struggle. It is therefore not surprising that the Constitution guarantees land restitution and reform,” they wrote.
They noted all the steps that the community had taken to ensure that it could get the land back and the disappointing behaviour of government officials who did not give the help required.
The judges looked closely at the wording of the section that appeared to say there was a 12 month cut-off for a provisional association to become a permanent association. And they interpreted it to mean something else: that the right of the provincial association to occupy and use the land had to be extended after a year.
“The section makes no mention” of the lifespan of the association at all, concluded the judges. They therefore set aside the appeal court decision, and reinstated the Land Claims Court outcome, meaning that the association must now be registered as a permanent body that owns the land and that may benefit from it.
Something else they did that’s noteworthy: they awarded costs against the minister and the Director General in both the Constitutional Court and in the appeal court. The costs order went along with some scathing remarks about how the government failed the community. The director general’s duties were to “do everything permissible” to help a community reach its goal of being registered as a permanent association, but in this case he had not shown “the spirit demanded” by the law and had “adopted a wholly inappropriate response” to the community’s wish to be registered.
This brings us to the impact of the judgment. For the community that asked for help the Constitutional Court has been a liberation: their local traditional leader, Kgosi Nyalala Pilane, is a multi-millionaire who has already made extensive deals with mining companies over the use of the land; now the community will own their rich ancestral lands they will benefit directly.
Asked his reaction to the judgment Sojane exlaimed, “Euphoria! It’s wonderful.” He said the community’s real work would now begin. Although a committee had already been appointed other crucial tasks lay ahead. One of these was to commission a forensic audit of the money already paid by the mining companies into accounts administered by Kgosi Pilane.
Notice had already been given to the mining companies that in future payments had to be made into the accounts of the communal property association, said Sojane. And the community would be asking government for the assistance that the court had found should be forthcoming when a property association was established to hold and administer land.
He said they had been inundated by calls from communities all over South Africa offering congratulation and asking for advice. “Our case sets a precedent for them all,” he said. “The law allowed a land claim to get back what was lost. But when it was actually implemented they gave the land to the chiefs and traditional councils and that was a disaster.”
“We find from all these calls that there is a common problem everywhere: they say, You have opened the door for us to solve the problem of the local chiefs.”
Michael Clark, legal researcher with the Centre for Law and Society at the University of Cape Town, works with women in communities that will be affected by the judgment.
He said the decision was critically important, with the approach articulated by the highest court standing in stark contrast to the new draft policy put out by the government last year. Under that policy no new communal property associations were to be established in areas where traditional authorities exist.
Reading between the lines: government wants traditional leaders and their councils to take over the running of land returned after successful claims. An estimated 17.5-million people live in such areas and would be affected by this policy if it were to be approved, said Clark.
But the court’s new decision means that this draft policy must surely be reconsidered: the present law, described as “visionary” by the court, aims to “restore the dignity of traditional communities”, the judges say, adding that it also serves the purpose of “transforming customary law practices”.
The court held that communal property associations introduce participatory democracy into the affairs of traditional communities, so that “all members of the community are afforded an equal voice in matters of the association and the property it holds on behalf of the community”.
With such praise for the system of associations and their potential it’s hard to imagine that the draft, with its strong preference for traditional authorities above the community, will remain unchanged.
The court also had strong views on how the original dispute between the community and the traditional authorities should have been handled: “The fact that a traditional leader or some members of the traditional community prefer” a trust to a communal property association “is not a justification for withholding registration” or for imposing mediation on the parties.
And where a majority of the community, as in this case, chose “the democratic route”, “effect must be given to their wishes”. In doing so, the government would be “creating a platform for democracy to flourish” among the local community.
This column was first published in Legalbriefs, 26 August 2015