Court prohibits a traditional leader from allocating municipal land

In November 2022, an article which examined the implications of the Lepelle Nkumpi Local Municipality v The Bakgaga Ba Ga-Mphalele Traditional Authority and Others judgment was published in the Bulletin. In that judgment, the Limpopo High Court ruled that the Bakgaga Traditional Authority may not allocate municipal land and issue PTOs without the approval of the municipality.

This article examines the implications of a recent judgment of the North West High Court, namely, Mafikeng Local Municipality v Velaphi Gwiriri and Others where the Court ordered a traditional leader to stop allocating, selling or alienating land that is owned by the municipality. The courts are clear and stern, traditional leaders do not have the authority to allocate or sell municipal land even if that land falls within their areas of jurisdiction.

Background

On 18 September 2019, the Mafikeng Local Municipality approached the Court for an interdict to stop a traditional leader and some members of the community from invading the portion of land known and described as Portion 2 of the Farm Rooigrond No. 135 and the remainder of Erf 428 owned by the Municipality. On 7 November 2019, the Court granted the order. On 19 May 2022, the Municipality yet again approached the court seeking to interdict the traditional leader and others (the respondents) from allocating, selling or alienating land on Portion 2 of the farm Rooigrond No. 135 and the Remainder of Erf 428 Mafikeng. In this matter, only the second respondent, namely Chris Mosiane, who is a traditional leader, filed an answering affidavit opposing the application.

Arguments

The Municipality contended that the respondents were allocating and selling stands to members of the public on the very same land they were ordered not to invade on the 7th of November 2019. The Municipality further argued that despite a court order the respondents were continuing to sell and allocate stands on the said portion of the farm. In opposing the application, the traditional leader argued that he had not allocated stands since the order of the 7th of November 2019 and, as such, he is not guilty of anything relating to the allocation or sale of stands on Portion 2 of the Farm Rooigrond. Additionally, the traditional leader argued that there was a dispute regarding ownership of the said piece of land between the Council of Barolong Boora Tshidi and the Municipality, which has not been resolved. The traditional leader submitted that he was given the responsibility of acting as a custodian over a portion of the Erf and not the entire Erf 428 by the Traditional Council of Barolong Boora Tshidi. As such, he was not acting in his personal capacity.

Court’s decision

The issue before the Court was whether to interdict the traditional leader from allocating or selling stands on a piece of land belonging to the Municipality. The Court held that the matter started with an order granted against the traditional leader and others interdicting them from invading the said land and erecting any structures on this land. This order of November 2019, the Court held, was never appealed against and, therefore, still stood. This meant that the standing order needed to be enforced against the traditional leader and others to stop the allocation or selling of stands on municipal land. Having ruled in the Municipality’s favour, the Court imposed a cost order against the traditional leader.

Commentary

This judgment is yet another step in the right direction in terms of clarifying the controversial issue relating to the exercise of authority over land by traditional leaders. The jurisprudence of the courts is clear, traditional leaders need to refrain from allocating or selling land which belongs to municipalities. The courts are increasingly becoming stern towards this unlawful practice. Failure to respect the court’s decision may lead to a traditional leader being hit with a hefty personal cost order as was done in this case. This does not mean traditional leaders may not allocate land in terms of customary law, rather, they may not allocate municipal land. What if the land that was allocated or sold by the traditional leader and occupied by members of the community was not owned by the municipality? Would the traditional leader be entitled to deal with the land commercially as he deemed fit? It is submitted that the answer is no. Irrespective of whether the municipality owns the land or not, the constitutional authority of a municipality over “municipal planning” entitles it to decide whether a particular development within its municipal area is zoned for that purpose. The authority to manage land use in rural areas governed by traditional leaders is shared between municipalities and traditional leaders. This means that both institutions may make land use decisions but the exercise of that authority must be to achieve orderly and planned development guided by the integrated development plan, municipal spatial development and land use scheme of the municipality.

In conclusion, rural residents, prospective rural residents and developers also have a duty to ensure that the area in which they purchase stands to build houses and other structures is zoned for that particular purpose. To assess if that is the case, means they need to approach the municipality after getting approval from the traditional leader. Following this process may be the difference in incurring financial losses often associated with the erection of illegal structures or developments.

By Xavia Poswa, Doctoral Researcher