The chief is a chief through the people: Using Rule 7(1) to test the authority of a chief to litigate on behalf of his people

Abstract

This note discusses the judgement handed down by the North West High Court in Mafikeng in an interlocutory application in the matter of the Royal Bafokeng Nation (RNB) vs the Minister of Rural Development and Land Affairs and Others. The application was brought by several ‘sub’-communities under the jurisdiction of the RBN, challenging the latter’s authority to litigate on their behalf. This application relates to a growing tension between the political authority of traditional leaders and the fundamental right of their ‘subjects’ to speak for themselves. It may be argued that the judgement represents an important step beyond the established frame of this discussion in the North West courts, namely which representative traditional structure is the proper one, to a question as to the duty upon those structures to comply with customary requirements of broad consultation and consent. In the event, it demonstrates the potential substantive significance of a procedural formality such as regulated by Rule 7(1).