Bakgaka – Ba – Mothapo Traditional Council v Tshepo Mathule Mothapo & others

The Bakgaka – Ba – Mothapo Traditional Council and Kgoshigadi Madipoane Refiloe Maremadi Mothapo instituted an action against seven respondents in the High Court regarding alleged unlawful allocation and sale of tribal land. The land in question (portions of Syferkuil 921 LS and Majeebaskraal 1005 LS) was allocated to the Bakgaka – Ba – Mothapo tribe and under the jurisdiction of Kgoshigadi and the Traditional Council. The first respondent and others were allegedly receiving money for purported sales of land and issuing permissions to occupy, which the applicants claimed was unlawful as tribal land is held in trust on behalf of the tribe and may not be sold by individuals. The respondents raised a special plea challenging the locus standi of both Kgoshigadi and the Traditional Council, arguing they had not been properly identified and recognized in terms of the Framework Act and the Limpopo Traditional Leadership Act. The Traditional Council had only 9 members with only one traditional leader and no women, failing to comply with statutory requirements that 60% must consist of traditional leaders, 40% elected members, and at least one-third must be women. The Premier had never recognized or gazetted the Traditional Council. The High Court found that Kgoshigadi had locus standi but the Traditional Council did not.

• Whether a Traditional Council established in terms of customary law has locus standi to institute an action on behalf of a traditional community without complying with statutory recognition requirements
• Whether the submission of an insufficient number of men or women appointed as councillors to the Premier's office justified the finding that the appellant had no locus standi
• Whether Kgoshigadi had locus standi even though she derived authority to institute action from a resolution passed by a Traditional Council that lacked locus standi
• Whether compliance with the Framework Act and the Limpopo Traditional Leadership Act is mandatory for a Traditional Council to have legal standing
• The relationship between customary law and statutory requirements for recognition of traditional councils

The appeal was dismissed with costs.

A Traditional Council does not have locus standi to institute and prosecute legal action on behalf of a traditional community unless it has been properly constituted and recognized in accordance with the provisions of the Traditional Leadership and Governance Framework Act 41 of 2003 and applicable provincial legislation (in this case, the Limpopo Traditional Leadership and Institutions Act 6 of 2005). The statutory requirements for composition of Traditional Councils - including that at least one-third of members must be women, 60% must consist of traditional leaders and members selected by the senior traditional leader, and 40% must be elected members - are mandatory and must be complied with. Recognition and gazetting by the Premier is a prerequisite for a Traditional Council to have legal standing. Where legislation provides clear processes for the constitution and recognition of Traditional Councils, parties cannot rely on customary law outside these statutory requirements to establish locus standi. The provisions regulating the composition and recognition of traditional councils are clear, unambiguous and consistent with the stated purpose of the legislation - the recognition of institutions of traditional leadership - and compliance is not optional.

The court noted that it was "perplexing" that the high court found that Kgoshigadi had the requisite locus standi despite the fact that she derived her authority to institute the action from a resolution passed by the Traditional Council which had no locus standi. However, as there was no cross-appeal on this point, the court stated it was not necessary to deal with this aspect. The court also commented on confusion regarding the number of members of the Traditional Council, noting that while the record indicated 9 members apart from Kgoshigadi, the special resolution attached to the petition showed 30 persons purporting to be members who had signed, observing that "compliance with relevant legislation also seeks to eliminate such confusion" and that "it must be known who are members of the Traditional Council recognised and Gazetted by the Premier." The court observed that no response had been received from the Premier to the alleged submission of members of the Council and that no enquiry was ever made as to why the Premier had not responded.

This case is significant in South African jurisprudence as it clarifies the mandatory nature of statutory compliance for Traditional Councils seeking legal recognition and standing. It establishes that customary law cannot be relied upon as an alternative basis for recognition where clear statutory requirements exist. The judgment reinforces the principle that the Framework Act and provincial traditional leadership legislation set out non-negotiable requirements for the composition and recognition of Traditional Councils, including gender representation and democratic election processes. This decision supports the constitutional objective of transforming traditional leadership institutions in line with democratic values, including gender equality and representivity. It demonstrates that traditional institutions, while recognized, must operate within the constitutional and legislative framework and cannot claim legitimacy based solely on customary practices that do not comply with statutory requirements. The case also highlights the importance of proper recognition and gazetting processes for traditional councils to have legal capacity to act on behalf of traditional communities.