Bafokeng to cite archaic law in land battle
THE beleaguered Royal Bafokeng Nation is so determined to maintain ownership of the platinum-rich land in the Rustenburg area that it looks set to try to use a precedent set by an archaic law to ward off one of the many land claims it faces.
The legislation in question is the Volksraad Besluit no. 159 of 1855, which aimed to prevent individual land ownership by black people. It said: “No one who is not a recognised burgher shall have any rights to possess immovable property in freehold. All coloured persons are excluded from burgher rights.”
This appears to be the main defence that the Royal Bafokeng Nation plans to use when it clashes with the Thekwana Community in the Randburg land claims court in September.
The Thekwana community wants 28 690 096 hectares transferred to it, claiming it was prevented from getting the title to the land because of racially discriminatory laws which only recognised the right of “des- ignated tribal authorities” to hold land on a group basis — which would prevent smaller communities and syndicates from holding land independently.
The community says it bought the land in 1870 through a syndicate of 29 community members, including its then-leader Rampete Petlele.
Though the community has lived on the land ever since, the title deed was taken over by a Hemansburg missionary known as Penzhorns who died in 1895. Then, without consulting the Thekwana community, Penzhorns’s executor simply transferred the property to the minister of Native Affairs.
Although the 1855 Besluit was repealed in 1901, the precedent remained, which meant the community was never able to register the land under its name again. The colonial government of the time then placed all communities under one chief so they could control them.
The Thekwane community was placed under the authority of chief August Mokhatle under the umbrella of the Bafokeng people and the property was transferred to the minister of Native Affairs for the Transvaal to hold it in trust. In 1908, Modisaking Petlele, the grandson of
How can someone who doesn’t know our culture say he is representing us?
Rampete Petlele, who initially led the Thekwane Bafokeng, launched legal action against chief Mokhatle.
But Petlele failed in court — a decision which the Thekwana community now say is flawed.
In their new legal claim, the Thekwana community argue that they were prevented from getting the title deed because of an overtly racist law that did not recognise ownership of land by indigenous people. They say this is a violation of their rights to human dignity.
But the Royal Bafokeng say chief August Mokhatle opposed the 1908 action by Petlele on the grounds that the land was bought by his predecessor Kgosi Mokhatle for the Bafokeng tribe. Back in 1908, the Bafokeng now argue, the judges of the Supreme Court found that the Bafokeng had in fact bought the land for the entire tribe.
The judges said that under customary law at the time, a section of the tribe could not own part of the property. The Bafokeng say the judgment in 1908 was final and definitive.
But if the Thekwana case goes against the Royal Bafokeng, it could have serious implications for chief Molotlegi Leruo’s troubled chieftaincy. Chief Leruo faces growing com- munity resentment and there are about 15 more communities wanting to secede from the tribe.
The Rustenburg region and its environs is endowed with almost 70% of the world’s platinum.
Gash Nape, a Thekwana village elder and veteran businessman who is leading the current land claim, is furious with the Royal Bafokeng. He even chased out one of the tribe’s representatives — David Patrick King — who had come to one of the Thekwana’s village meetings.
“This is not being racist. How can someone who doesn’t know our culture, Setswana, and doesn’t belong to any of the villages, say that he is representing Bafokeng?” he asked.
Nape and other community members of Thekwana sent Anglo American miners packing when they pitched up and started drilling right in the middle of the village without the community’s knowledge.