Court prohibits traditional authorities from developing land without the approval of the municipality

Since the pre-colonial era, traditional leaders have allocated land to residents in terms of indigenous law. In the democratic era, traditional leaders continue to allocate land to residents and issue permissions to occupy (PTO). These PTOs are sometimes issued by traditional leaders to a resident that is willing to pay to occupy land that is owned by the municipality. This can give rise to illegal occupation of municipal land and municipalities having to incur enormous expenditure in trying to service these developments.

This article examines the implications of the Lepelle Nkumpi Local Municipality v The Bakgaga Ba Ga-Mphalele Traditional Authority and Others judgment in which the Limpopo High Court ruled that the Bakgaga Traditional Authority may not allocate land and issue PTOs without the approval of the municipality. It is argued that the judgment is a step in the right direction as it sets out the circumstances under which the indigenous power to allocate land by traditional authorities is unlawful in democratic South Africa.

Background

The Lepelle Nkumpi Local Municipality applied to the Limpopo High Court for a declaratory order, among other things, that it was the owner of portions of a farm situated within the traditional area of the Bakgaga Ba Mphahle traditional authority. The Municipality also wanted the Court to declare that the Bakgaga Traditional Authority may not approve any land use, including the power to dispose of and issue PTOs on the various portions of the said farm without its approval. This application was made to the Court following the occupation of various portions of the farm by members of the local community who had ‘purchased’ the land from the Bakgaga Traditional Authority.

Arguments

The Municipality contended that it was the owner of the relevant portions of the farm. It further contended that the allocation of portions of it by the Bakgaga Traditional Authority created an impression that the Authority was the owner of the land and therefore entitled to deal with the land commercially as it saw fit. The Municipality concluded by stating that it will not sit idly and allow the unlawful conduct of the traditional authorities to enrich themselves unlawfully. It argued that this was being done at the expense of law-abiding citizens who are awaiting land allocation in accordance with the Municipality’s system to ensure fair land distribution in the municipal area. The Traditional Authority defended its trading of the land. It argued that it has the power to appoint headmen to allocate sites in those farms under its authority (including the farms the Municipality claimed to own).

Court’s decision

After considering the arguments, the Court declared that the Municipality was the owner of the relevant portions of the farm. It also ruled that the Traditional Authority does not have the right or power to dispose or approve any land use on the relevant portions of the farm without the express, written approval of the municipality.

Commentary

The judgment is a step in the right direction. It clarifies a murky and controversial issue relating to the exercise of authority over land by traditional leaders. However, the judgment focused on land that was owned by the Municipality. What if the land that was traded by the traditional authorities and occupied by members of the community was not owned by the Municipality? Would the Traditional Authority be entitled to deal with the land commercially as it deems fit? It is submitted that the answer is no. Irrespective of whether the Municipality owns the land or not, its constitutional authority over “municipal planning” entitles it to decide whether a particular development within its municipal area is zoned for that purpose. On the one hand, this means that on land that is owned by the municipality, a traditional authority may not allocate land or issue a PTO in respect of that land without the express, written approval of the municipality as the owner. Moreover, it means that a traditional authority may not allocate land and authorise the construction of a mall, hotel, luxury houses or any development of significance on land that is under the jurisdiction of the municipality without meaningfully consulting the relevant municipality. This is because all proposed developments must be assessed by a municipality in line with its integrated development plan (IDP), land use scheme and municipal spatial development framework. It is on this basis that, even when it does not own the land, the municipality may still intervene and block such developments on the basis of its municipal planning power. On the back of this judgment, it is increasingly becoming important for traditional authorities and municipalities to find ways to cooperate on land use matters and for municipalities to ensure the active and meaningful participation of traditional authorities in their IDP and land use planning processes.

By Xavia Poswa, Doctoral Researcher