Bafokeng Petition on alleged gross human rights violations by the Bafokeng Tribal Authority

Meeting report

Opening remarks

The Chairperson welcomed everyone and said that although the Bafokeng Land Buyers Buyers Association (BLBA) had petitioned Parliament in 2008 and 2012, it had asked that the only petition the Committee had to regard was that on which the Committee had held a hearing, on 17 March 2013. He then outlined the procedure of a hearing.

Ms T Mokwele (EFF, North West) asked whether the proceedings of that day focused only on a response to the hearing of 2015 when the petitioners had interacted with the Committee, because the Committee had never really got the gist of what had transpired leading to the petition. The petitioners had simply indicated that the Chairperson of the Committee, as a Kgosi, had a personal interest in the matter. Therefore she wanted to understand that moving forward with a response from the office of the Kgosi of the Royal Bafokeng Nation, and with the Chairperson still presiding over proceedings, this did not present a challenge in terms of dealing with the matter.

Mr J Mohapi (ANC, Free State) asked the Chairperson to register who the delegations before the Committee were.

The Chairperson said that the issue raised by Ms Mokwele had no bearing on the hearing, as no decision would be taken during a hearing.

Ms Mokwele said that she was satisfied with the response. However, the Chairperson had to recall that some Members had not been part of Parliament in 2013, so how would the Committee then proceed in that regard concerning the petition?

The Chairperson said that the Management Committee (MANCO) had asked the petitioners to re-present their petition to the new Committee, because the MANCO had been battling to access the record of what had been captured in 2013. The petitioner had replied that they were not interested in doing that. However, that did not disqualify the petition as the Committee would go on with the response and then apply its mind to the available information. The MANCO had informed the petitioners that it was aware that they had appeared before the Committee but because it had been battling to find the relevant information in that regard, it had appealed to the petitioners to come to Parliament again, but to no avail.

Ms Mokwele said that the Committee saying to petitioners there was no record of their earlier petition had shown that Parliament had to be blamed for losing that record.

Mr D Ximbi (ANC, Western Cape) interjected on a point of order that the Chairperson had outlined the procedure of the hearings, so it was not logical to have a discussion before a hearing.

The Chairperson appealed to Ms Mokwele to allow the stakeholders to present to the Committee, as he had already outlined the procedure.

Ms Mokwele responded that the record would show that the Committee had not given the petitioners enough time to prepare for the hearing.

Royal Bafokeng Nation response to the Bafokeng Petition

Kgosana Modisaotsile Mokate, Bafokeng Royal Council, said the petition challenged whether the Bafokeng were a clan or a nation.

Brief history of the Bafokeng

Kgosana Mokate said the Bafokeng was a traditional community recognised in terms of the Traditional Leadership and Governance Framework Act (Act No 41 of 2003). It had existed as a nation even prior to the arrival of settlers in South Africa (SA). It was one of the oldest traditional communities in Africa. If one were to observe all the kwena totem nations of Botswana, Lesotho and SA, all would be found to originate from the Bafokeng, which was why even the King of Lesotho paid homage to the Kgosi of Bafokeng in Phokeng. In Botswana, when there were traditional festivities, the Royal Bafokeng Nation (RBN) presided over those as it was the senior Bakwena in SA. It was therefore a misnomer for the petitioners to refer to the RBN as a clan.

The land occupied by the Royal Bafokeng (RB) to date had become smaller compared to what it had occupied prior to the arrival of settlers in SA. Historically, the area from Krugersdorp to the mountains of the Pilanesberg had been the grazing land for the RB, but the arrival of the settlers had confined the RB to Rustenburg. Upon Paul Kruger’s arrival in Rustenburg and the enforcement of western law, the RB had been forced to purchase its ancestral land. Currently, all those settled within the RB land were a Mofokeng. To then state that the Bafokeng were not homogeneous was also not an anomaly, as other nations were also heterogeneous.

He then read the written response to the petition.

The Chairperson interjected that Kgosana Mokate could rather speak to the response instead of reading the petition word by word.    

Kgosana Mokate said that some of the signatories to the petition were not Bafokeng and even those that were Bafokeng still resided on the farms of the RBN. There had been a reference to a land claim of 1908 by Modisaking Petlele, a Kgosana of the RBN residing in the Thekwana community. That application had been dismissed by the court.

The allegation that farms bought by the RBN had been bought by individuals had no substance, as the Bafokeng had been known to have gone to Kimberley in the Northern Cape to work as a community so that they could purchase their ancestral land. Paul Kruger had informed the RBN that the English would be annexing the former Transvaal, and the only way for the RBN to protect its land would be to purchase it. Kgosi Mokatle had then sent platoons of young Bafokeng man to go and work in Kimberley. With their collective savings, the land had been purchased in the name of the church under the leadership of the Reverend Pinzon, who had held the land in trust for the RBN until the democratic dispensation. The land was still held in trust by the Department of Rural Development and Land Reform (DRDLR).

The RBN had since approached DRDLR to have their land returned so it could administer it directly. The RBN had wanted to administer the land directly, because it had been disadvantaged repeatedly on occasions when it could not directly contract with mining companies and outside individuals on how its land would be used. The process of indirect contracting involved the Minister of the DRDLR assenting to every transaction in the contract, and that process took an unnecessary time to get the approval. For example, the RBN would have contracted with Anglo American in 2005 were it not for the disappearance of documentation it had sent to the Ministry. It had then sent the same papers seeking approval for the second time, and that batch of documents had again disappeared. To date, Anglo American was mining on RBN land without having contracted with the RBN. The supreme council had then decided to approach the courts for a declaratory order, as there had been no response forthcoming from the DRDLR. The RBN had published the application as requested by the court, where the BLBA had responded opposing the application on the basis that they had not been consulted regarding the decision by the supreme council to apply for a declaratory order.

The supreme council of RBN was comprised of about 70 Kgosanas, 13 elected traditional councillors and others appointed by the Kgosi. In total, there were 90 supreme council representatives from the RBN community. It made decisions democratically because monthly there were Kgotlas chaired by a Kgosana to report back on council decisions and to relay suggestions to the council from the community. Bi-annually there was a Kgotha-Kgothe, where the audited financial statements and future plans were presented to the RBN nation. A plenary session would also follow for questions and answers, and when resolutions had to be taken, they would be made democratically through an open vote. Therefore the consultative process of the RBN was democratic enough to allow the supreme council to take a collective decision to conclude on certain matters.

The decision to go to court to have the land registered in the name of the entire RBN community had therefore been collective and democratic.

The RBN, including the petitioners, was comprised of 29 villages, all with the necessary social services infrastructure from the dividends obtained from the mining concessions in the area. The services included tarred roads, more than 50 schools, reservoirs and other water infrastructure, and a bursary scheme for all children of the RBN.

The Kgosi did not hold a cheque book, and all transactions and finances of the RBN were run by the Kgosanas -- so much so, that the Kgosi received a budget from the Kgosanas and the elected traditional councillors.   

To then say that there was no consultation in the collective decisions by the RBN was misleading. At the Kgotla level, there was what was called a needs analysis which was done by receiving the needs and suggestions from the community. These would then be taken to the joint sitting, where they would be analysed and prioritised.

The RBN was progressive, in that its programmes were intended to uplift all its community members.

He said that Mr Othusitse Rapoo was a member of the RBN and the Mokgono community was one of the senior clans within the RBN hierarchy, as King Mokgono had been amongst the founding members of the RBN. Mr Rapoo's own father had been a senior traditional council member of the RBN, as appointed by the Kgosi. For Mr Rapoo to then say that the RBN had annexed other clans was misleading. He was in fact distorting history, as the RBN history had been well documented in several books.

There was also a contradiction in the papers before court, because the BLBA had alleged that there had been no consultation regarding the application of the RBN for the declaratory order. However; in the petition before the Committee, there was a paragraph under subheading 'recent developments,' where Mr Rapoo had noted that the decision to approach the court had been raised in various makgotlas of the RBN for approval.

The Chairperson interjected that as the RBN should submit to the Committee supporting documentation regarding their response to the petition by the BLBA.

Kgosana Mokate replied that that all would be submitted to the Committee.

He said that the RBN had been working efficiently with the Rustenburg local municipality through a Memorandum of Understanding (MoU) until it had recently realised that in some of its villages there had been disputes between traditional and municipal councillors. The RBN had then proposed an amendment to the MoU, so that planning and the prioritisation of needs would be done jointly between the municipality and the RBN on the Infrastructure Development Planning (IDP) in order to foster coherence and cooperation. That cooperation was a model of how local government could work successifully with a traditional authority.

The Chairperson asked whether the Committee would prefer to ask questions after each presentation, or if it would prefer all presentations to be heard first, with questions thereafter.

Ms G Manopole (ANC, Northern Cape) proposed that the Committee hear all the presentations first.

The Committee agreed to listen to all presentations.

The Chairperson said that although the two Deputy Ministers had said they did not know what they had been invited for, if their two Departments wanted to submit written responses to the petition later, that was allowed. He then allowed the municipality to present.

Rustenburg local municipality response on Bafokeng Petition

Ms Sheila Mabale-Huma, Municipal Mayoral Committee; Planning Development and Transport, Rustenburg Local Municipality, said the municipality would also prefer to submit a written response as the invitation had been to attend the continuation of the petition. The municipality had never received a petition submission from the BLBA since 2008, nor even that which had been heard in 2013. Possibly the reason for there being no submission to the municipality could be that the petition had not been relevant, as the BLBA and the RBN were both constituencies of the municipality.

As had been mentioned earlier, the municipality held MoUs with the three Makgosi in Rustenburg – those of the RBN, the Bakwena ba Mogopa and the Bakubung ba Ratheo. The MoU stipulated how basic services would be provided to those traditional communities.

The municipality generally held mayoral imbizos in its wards, and Mr Rapoo himself resided in Luka, a community under the RBN. Even during those imbizos around land claims, Mr Rapoo had never raised objections then.

The municipality had established a Mayoral Stakeholder Engagement Committee (MASECO), where it engaged with mining companies around Rustenburg. In those engagements, the municipality was compelling the mines to implement what had been identified by the communities as mining social responsibilities. The municipality also asked for a copy of the petition so that it could respond appropriately when submitting its response.

Department of Cooperative Governance and Traditional Affairs (COGTA) response on Bafokeng Petition

Mr Obed Bapela, Deputy Minister (DM), COGTA, said that his Department had not seen the petition, so it would be illogical for COGTA to comment or submit anything in response to a petition they had not read. COGTA did have a commission to deal with disputes and claims, and possibly anything related therein would be dealt with accordingly in future.

Department of Rural Development and Land Reform (DRDLR) response on Bafokeng Petition

Mr Mcebisi Skwatsha, DM, DRDLR, repeated similar sentiments to those of Mr Bapela, noting that the Department was quite conscious of the court case and would therefore refrain from commenting until the conclusion of that process.

The Chairperson apologised for the lack of document provision for all stakeholders and the Committee, and then invited Members of the Committee to raise questions.

Discussion

Mr Mohapi suggested that the Committee should note the submission of the RBN, and then possibly stipulate time frames as to when the remaining stakeholder submissions had to be lodged with Parliament. Over and above that, the Committee had to ensure that the petitioners would be present at the subsequent hearing, where the other stakeholders would be presenting their submissions. This would avoid accusations of distortions of facts against the Committee, and limit unnecessary suspicion. Therefore the Committee had to ensure all relevant stakeholders that needed copies of the petition would be provided with them within seven days. Thereafter, within the following seven days, a response had to be submitted to the Committee so that within a month, a hearing could be reconvened by the Committee to process the petition further.

Ms Mokwele said that her earlier point about the competence of Parliament had surfaced as evinced by the two Departments appearing without making any representation to the hearing process. It had to be considered very seriously, that two DMs had attended a Committee meeting without having been briefed about the proceedings, and similarly with the stakeholders appearing without a brief.

Mr Skwatsha interjected that translation services had to be afforded during the hearing, as not everyone understood Setswana.

The Chairperson replied that ordinarily the translation services would have been there. However, the Committee noted the comment of the DM and apologised.

Ms Mokwele continued that though Kgosana Mokate had been eloquent in his presentation, deliberations had two sides, and this was also the reason she had asked for a process from the Chairperson regarding the absence of the actual petitioners at the hearing. Seeing that the population of the the RBN numbered about 400 000 individuals, how participatory were the Kgotha-Kgothe meetings to the satisfaction of all, such that the resolutions were inclusive of all the Bafokeng in the land.  

Kgosana Mokate said that in terms of traditional law, when the Kgosi convened a meeting and invited the Bafokeng, all were expected to attend. As there were five regions of the RBN, the Kgotha-Kgothe was preceded by five regional meetings which the Kgosi presided over; to receive community complaints and suggestions. From all those regional meetings, a summary of issues raised by each region would be prepared and then presented at the Kgotha-Kgothe. Therefore an individual would possibly not make it to Kgotha-Kgothe, but having attended the regional meeting or the local kgotla, that individual could be assured his/her submissions would have been included in the summary. Wherever one was in SA, the expectation was that a Mofokeng would heed the call and attend the Kgotha-Kgothe. The kgotla sentiments had to be recognised and led the decision-making at the supreme council, so that the resolutions of the Kgotha-Kgothe would be around land use and property.

The Chairperson said that he had not invited the Department of Mineral Resources (DMR) because the petition had not spoken to that Department. However the National House of Traditional Leaders (NHTL) was in attendance and he would give them an opportunity to give an input, though they had not been summoned.

Inkosi Sipho Mahlangu, Deputy Chairperson, NHTL said the NHTL had no input. However, once it had processed the application and found some relevance for itself, it would then submit an input, as the petition related to the RBN, which worked within the NHTL.

The Chairperson said that as Mr Mohapi had proposed, the Committee would provide everyone --including the DMR -- with the petition and thereafter receive submissions from all stakeholders. The Committee would in the third quarter convene another hearing to finalise the petition and invite all the stakeholders.

Me Bapela said he noticed within all the documentation before the Committee that the matter of traditional courts had arisen, and he would therefore propose that the Department of Justice and Correctional Services (DoJCS) also be provided with the petition.

The Chairperson thanked all the Departments and stakeholder that had attended the hearing. The meeting was then adjourned.