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Landmark Bakgatla-Ba-Kgafela community victory highlights land claims issues

25 August 2015 10:23 AM
Whose land is it anyway? The Bakgatla-Ba-Kgafela land claims case shows that rights and restitution claims are complex at best.

After seven years of litigation and conflict within a North West community, the Constitutional Court handed down a judgement allowing them to now legally hold the rights to land they were deprived of during apartheid.

The Bakgatla-Ba-Kgafela community is made up of 32 villages in the Moses Kotane district municipality in North West province.

The community had disagreed with their chief, Kgosi Nyalala Pilane, and the tribal authority about how their land should be shared.

The dispute arose when, after the community’s land was returned to them following a successful land restitution claim, the community wanted the land to be held collectively in the form of a communal property association (CPA) while the tribal authority wanted the land to be held in a trust.

Traditional council resisting restitution

Presenter Redi Tlhabi spoke with Dr Aninka Claassens, acting director of the Centre for Law and Society, who says the case is significant because it tackles CPA's and corrupt traditional leaders.

It is the first case that the Constitutional Court has had about communal property associations. The court unanimously upheld that the community had the right to chose who will own their land. It addresses potential abuse of power by traditional leaders.

Dr Aninka Claassens, acting director of the Centre for Law and Society

Customary law at loggerheads with the Constitution

Professor Ben Cousins, Chair and senior researcher at the Institute for Poverty, Land and Agrarian studies (Plaas) at the University of the Western Cape (UWC) says that CPA's allow democracy and customary law to align.

Cousins says that the roles and powers of traditional leaders have been disputed for several years and traditional leaders have been unfairly privileged over rural communities in current governance structures.

It is a fundamental question about our interpretation of democracy.

Professor Ben Cousins, Chair and senior researcher at Plaas

Researcher and analyst Nomboniso Gasa advises that South Africa needs to have ongoing conversations about different forms of ownership to avoid creating a distorted version of customary law that dispossess people.

Listen to the full conversation from the Redi Tlhabi Show:

25 August 2015 10:23 AM

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