- The North West High Court declared the 2022 committee elections of the Baphalane Ba Ramokoka Communal Property Association unlawful due to serious constitutional violations.
- Judge A Reddy ruled that CPA elections are acts of self-governance governed by the association’s constitution, not administrative action under PAJA.
- The court ordered sweeping disclosure of financial records and land dealings and placed the association under temporary state administration.
For years, members of the Baphalane Ba Ramokoka Communal Property Association (CPA) say they watched their communal land generate commercial value through mining, telecommunications, and farming leases, while ordinary beneficiaries were left in the dark.
That tension finally reached the North West High Court in Mahikeng, where six members challenged the legitimacy of the association’s leadership and demanded accountability.
In Kukama and Others v Baphalane Ba Ramokoka Property Association and Others, Judge A Reddy firmly rebuked how the association conducted its internal affairs, setting aside the election of its committee and ordering unprecedented disclosure of records.
At the centre of the dispute was an Annual General Meeting (AGM) allegedly held on 1 October 2022. Members argued that the meeting was unlawfully convened, poorly communicated, and fundamentally non-compliant with the association’s constitution. The court agreed.
“Several procedural safeguards for the constitution of a lawful meeting were absent,” Judge Reddy found. These failures, he said, “conjunctively… led to the contravention of the critical clauses of the Baphalane Ba Ramokoka Constitution.”
The court identified multiple defects, including the failure to deliver notices by hand or post, the absence of the required fourteen-day notice period, the lack of an agenda, and the failure to provide written confirmation that nominated candidates had been independently verified.
“Undoubtedly this impacts on resolutions and decisions taken,” the judge wrote, making clear that the defects went to the heart of the election’s legality.
Why was this not a PAJA review
The association attempted to shield the election behind the Promotion of Administrative Justice Act (PAJA), arguing that the applicants were pursuing a disguised review without complying with procedures. Judge Reddy rejected this approach as conceptually flawed.
“When a community holds an AGM, it is participating in a process of self-governance sanctioned by its Constitution,” the judgment states. The constitution of a communal property association, the court emphasised, “is a founding document which forms a contract between the association and its members.”
On that basis, Judge Reddy held that internal elections do not amount to administrative action. “A failure to comply with the intent of the Constitution of a communal entity is a breach of its Constitution rather than a failure of administrative justice,” he ruled.
Even if the election carried public significance because of state oversight or the scale of land involved, the court stressed that legality principles would still apply. “All power must be exercised lawfully, rationally and in accordance with enabling law,” Judge Reddy said, underscoring that constitutional compliance cannot be avoided by technical arguments.
No real dispute of fact
Baphalane Ba Ramokoka also argued that the matter should be referred to oral evidence because of factual disputes about what happened at the AGM. The court dismissed this contention.
“Given these material irregularities, any suggestion that a dispute of fact is extant is simply misplaced,” Judge Reddy held. Referring to established authority, he reiterated that motion proceedings are not designed to resolve probabilities where facts are clear.
“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts,” he wrote, quoting directly from precedent to underline why the association’s defence could not stand.
The judge concluded that referring the matter to oral evidence would be inconsistent with settled legal principles and would merely delay accountability.
Transparency ordered, committee stripped of power
Beyond invalidating the election, the court imposed far-reaching remedial measures. Judge Reddy ordered the association and the Department of Rural Development and Land Reform to disclose extensive documentation, including membership lists, financial statements, land transactions, and records of companies linked to the association.
The court was particularly troubled by allegations that the association had failed to produce audited financial statements for long periods, despite controlling assets worth hundreds of millions of rand. Judge Reddy warned that the absence of basic records pointed to deeper dysfunction.
“Baphalane Ba Ramokoka must have a record-keeping system,” he noted, adding that failure to maintain such records could justify more drastic intervention in the future.
Pending new elections, the court authorised the Director-General to administer the association and imposed strict prohibitions on the existing committee, including bans on convening meetings, executing property transactions, borrowing funds, or paying remuneration.
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