IN THE NORTH WEST HIGH COURT, MAFIKENG

Transcription

1 IN THE NORTH WEST HIGH COURT, MAFIKENG CASE NO: 277/12 In the matter between:- MONNENG ROYAL HOUSE Applicant and PREMIER OF THE NORTH WEST PROVINCE COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS MOILOA JUBILEE KETSHABILE First Respondent Second Respondent Third Respondent REASONS FOR JUDGMENT DATE OF HEARING : 15 MARCH 2012 REASONS FOR JUDGMENT : 17 APRIL 2012 COUNSEL FOR THE APPLICANT : ADV COWLEY COUNSEL FOR THE THIRD RESPONDENT : ADV CHWARO REASONS FOR JUDGMENT 1

2 HENDRICKS J [A] Introduction:- [1] On 15 th March 2012 (the court order erroneously refer to 2011) I dismissed the application with costs and ordered that if reasons are required, same must be applied for within ten (10) days from the date of the order. On 03 rd May 2012 the file was brought to my chambers and it contain a notice requesting for reasons for judgment, which was filed with the office of the Registrar of this Court on 22 nd March [2] Upon investigating, Mr Omphile in the office of the Registrar of this Court indicated that when he received the notice requesting reasons for judgment, he perused the file and found that there are indeed reasons for judgment in the file. He overlooked the fact that the said reasons refer to a different case with a different case number altogether, which was a case decided by my brother Landman J and not me. [3] Had the notice requesting reasons for judgment been brought to my attention on the same day that it was filed in the office of the Registrar (22 nd March 2012), - which should be the practice to be implemented in the Registrar s office - the required reasons for judgment would have been provided long ago. The delay is indeed regrettable and must in the future be avoided at all costs. Be that as it may, here follows the reasons for my judgment.

3 [B] Background:- [4] The Applicant approached this Court on a semi-urgent basis requesting the following relief as set out in the notice of motion:- 1.That the use of forms and service provided for in the Uniform Rules of Court be herewith dispensed with and that the matter be heard as a matter of urgency; 2. That the Second Respondent is directed to forthwith investigate and determine the pending dispute about the identity appointment of the Kgosi of the Bahurutshe Ba Ga Moiloa ( the tribe ) herein after referred to as the dispute ; 3. That during the determination of the dispute the Second Respondent shall have the powers to establish the identity of the members of the tribe whom are validly entitled to be members of the Monneng Royal House; 4. That pending the final determination of the dispute by the Second Respondent that the First Respondent appoint an independent administrator as acting Kgosi of the tribe; 5. That the duration of the appointment of the independent administrator, such independent administrator shall have the authorities and powers which would normally vest in the Kgosi of the tribe; 6. That the Third Respondent be removed from the position as acting Kgosi; 7. That the Second Respondent is directed to investigate and 3

4 determine the dispute within a period of 3 (three) months from the date of this order; 8. That in the event that the Second Respondent is unable to complete its duties so imposed then the Second Respondent shall be compelled to approach the above Honourable Court for an extension of the time within which to finally determine the dispute; 9. That in the event that Second Respondent is required to apply for the abovementioned extension of time, then that the Second Respondent is directed to give notice of such application to the Applicant, First Respondent and the administrator who is appointed in terms of this order; 10.That the Third Respondent be directed to pay the costs of this application, together with those Respondents who oppose this application; 11.Further and/or alternative relief. This application was only opposed by the Third Respondent, who is the acting Kgosi (chief). [5] The purpose of this application was to obtain urgent interim relief pending the determination of a dispute regarding the successor to the position of Kgosi of the Bahurutshe Ba Ga Ramotshere tribe ( the tribe ). [C] History:-

5 [6] The former paramount Chief of the tribe Kgosi Monnaamere Joseph Godfrey Moiloa ( the deceased Kgosi ) died on the 27 th June After the death of the deceased Kgosi, Seiso Godwin Moiloa ( Seiso ), was appointed as temporary Kgosi of the tribe. On the 31 st October 2007 a meeting of the tribal council of the tribe was held at Dinokana, at which meeting it was resolved that the entitled heir to the position of Kgosi is Israel Keobutsitse Moiloa ( Israel ). [7] An application was launched in which it was claimed that Israel was not entitled to be appointed as Kgosi of the tribe. On the 8 th November 2007 the Third Respondent succeeded to obtain a court order which effectively replaced Seiso with him and directed that the dispute about the appointment of the entitled Kgosi has to be resolved by the North West Provincial House of Traditional Leaders, alternatively, by the First Respondent, alternatively, by the Second Respondent. Seiso vacated the tribal offices and was consequently replaced by the Third Respondent. [8] After the court order was made, the North West House of Traditional Leaders directed a report to the First Respondent, dated 15 th November 2007, in which it was recommended that Israel should be appointed as the entitled Kgosi of the tribe. Notwithstanding the aforementioned report the dispute remained unresolved. In an attempt to resolve the dispute the First Respondent appointed Mr Justice Ralph Zulman to head a commission with a view of determining the dispute ( the Zulman commission ). The findings of the Zulman commission were 5

6 published in an unsigned and incomplete commission report. According to the available information the Zulman commission considered evidence and argument and came to the conclusion that there are two possible tribal members who may qualify for the position of Kgosi, namely Israel and one Tebogo Charles Moiloa ( Charles ). It is recommended by the Zulman commission that a meeting had to be convened by an unspecified list of members of the tribe who would then vote on which of the two candidates, mentioned above, should be the Kgosi of the tribe. [9] The findings and recommendations of the Zulman commission were clearly at odds with the customary law and probably accounted for the First Respondent to take the position that the dispute should be determined by another commission headed by Mr J M Mafereka, the Second Respondent. The Second Respondent is yet to determine the dispute in accordance with the provisions of the Act. The Act is peremptory on the issue that when a dispute arises about the appointment of a Kgosi then the dispute must be determined in accordance with the provisions of section 22 of the Act. [10] On the 18 th May 2010 a meeting was held by persons purporting to have the authority to convene the meeting as envisaged by the Zulman commission. These unauthorised persons then voted that Charles was the Kgosi. [11] On the 27 th June 2011 the office of the First Respondent directed a letter to the Third Respondent having inter alia the following important content:-

7 1. That the Honourable Premier has given instructions for us to communicate to the Chairperson of the Zulman commission of Enquiry, Judge Ralph Zulman, to demand that they provide us with a report that details their findings on all matters raised in the Commission s terms of reference, which we have already done. We are in constant communication with the Judge in that respect, seeing that the report was submitted was not signed and/or sanctioned by him as Chairperson. The Honourable Premier has therefore not accepted the recommendations of the Commission; 2. You are further informed that the matter has also been referred to the National Commission on Traditional Leadership Disputes and Claims, chaired by Mr J M Mafereka, appointed in terms of the provisions of Section 26A of the Traditional Leadership and Governance Framework Act, 2003 (Act No 41 of 2003 as amended); 3. With the benefit of information provided above we wish to advise you that your decision to install Kgosi, when matter pertaining to identification of the rightful heir to the Chieftainship are still to be finalised, is prematurely conceived and not in the best interest of all parties involved. As we indicated before the Premier issued a statement indicating that the Provincial Government has yet to take a final decision on the matter; 4. We therefore request you to desist from proceeding with the installation of Kgosi pending finalisation of all disputes in this regard. You will agree that it is critical that finalisation of this matter should yield the correct and 7

8 therefore sustainable resolution to the dispute in the best interest of Bahurutshe Ba Moiloa Traditional Community. It is upon the considerations above that your appointment as Kgosi is not recognised by the Provincial Government. We have therefore been requested to inform you, as we hereby do, that government will not participate in the proceedings, should you disregard this and proceed with the installation. That also means that the normal emoluments that are payable to Kgosi will not be provided to the incumbent Kgosi until this matter has been fully investigated and finalised. [12] Notwithstanding the fact that Charles was not entitled to be appointed as Kgosi of the tribe, the Third Respondent attempted to install Charles as Kgosi. In reaction the tribe did not recognise Charles as the Kgosi. After the failed attempt to install Charles as Kgosi the Third Respondent again assumed the position of temporary Kgosi. [D] Urgency:- [13] On the hearing of this application it was contended on behalf of the Third Respondent that this application is not at all urgent and should never have been placed on the semi-urgent roll to take precedence over all other matters where the parties have set them down in the normal way on the ordinary roll. This is mainly informed by the Applicant s own version in respect of the chronology of events since the appointment of the Zulman Commission of Enquiry until the final report of the said Commission was presented to the former Premier.

9 [14] The Third Respondent submitted that following the presentation of the Zulman Commission s report, there was litigation between the parties during or about June 2011 where the deponent to the founding affidavit and some of the persons who have deposed to confirmatory affidavits in this application brought an urgent application against the Third Respondent and Tebogo Charles Moiloa. They had ample opportunity of canvassing the points that are all of a sudden canvassed some eight months after the events. An attempt at using recent spate of community unrest not related to the dispute can only be described as a desperate measure to justify the placing of this matter on the urgent roll. [15] Uniform Rule 6 (12)(b) in instructive in this regard as it provides that a party who has placed a matter on the urgent roll must not only set forth explicitly the circumstances which he avers render the matter urgent but must also set forth the reasons why he claims that he could not be afforded substantial redress at a hearing in due course. This rule is mandatory and when an applicant has failed to show the reasons as to why he could not be granted substantial redress in due course, then such an application stands to be struck from the urgent roll and be placed on the ordinary roll. [16] The aforegoing was emphasised in the matter of Luna Meubels Vervaardigers (Edms) Bpk v Markin and Another 1977 (4) SA 135 (W) at 137A-F where the court recognised the fact that there are varying degrees of urgency in certain instances and the learned judge went on to hold that:- 9

10 Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the rules and of the ordinary practice of the court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirements of Rule 6(12)(b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent to the departure from the norm, which is involved in the time and day for which the matter be set down. [17] Where an applicant is dilatory in the pursuit of its claim, like in the present matter, such an applicant cannot be entitled to be heard as a matter of urgency and must accordingly follow the ordinary practice of setting the matter down. In the final analysis, this Court must weigh the prejudice which the Applicant would suffer if it was to be accorded a hearing in the ordinary course, the prejudice that other litigants would suffer if preference was to be given to the Applicant and the prejudice that the Respondents might suffer by the abridgment of the time periods. [18] It was submitted on behalf of the Third Respondent that this matter must be struck off the roll for lack of urgency with costs. In the exercise of my discretion, I decided not to strike the matter from the roll due to lack of urgency but to even entertain the merits of the application and to dismiss it with costs. It would have been a futile and costly exercise for the litigants if the matter is struck from the roll due to lack of urgency and later again entertained when

11 there are no merits in the application itself. To save costs and time, I listened to the submissions and granted the abovementioned order. The Lack of authority [19] It is trite law that a party who alleges to be acting on behalf of an entity like the Applicant must allege and prove that it has the necessary legal standing to bring the application. The onus to establish this issue rests upon that party throughout the proceedings. Both the North West Traditional Leadership and Governance Act, 2 of 2005 ( the North West Act ) and Traditional Leadership and Governance Framework Act, 41 of 2003 ( the National Framework Act ) make provision for an institution known as the royal family, which is an entity that can sue and be sued on its own name and as such for any party to claim that he is instituting proceedings on behalf of the royal family, such party must have the necessary mandate and/or authority in the form of a resolution. [20] It was contended by the Third Respondent that the deponent to the founding affidavit is not a member of the Applicant and secondly, the persons who purported to have resolved to institute these proceedings on behalf of Monneng Royal House are not the rightful members of the Applicant. [21] By their own version, the Applicant, through the deponent to the founding affidavit and those who form common cause with them, seek an order, in paragraph 3 of the notice of motion, which 11

12 effectively supports the contention of the Third Respondent to the effect that they are not members of the Applicant. If, on their own version the aspect related to who are the rightful members of the Monneng Royal House is in dispute, they should have anticipated a dispute of fact and instituted the proceedings in their own names. The Non-joinder of interested parties [22] The Applicant failed to join Tebogo Charles Moiloa and the Zulman Commission in these proceedings. They are respectively parties with substantial legal interest in the orders sought in this matter. The deponent to the founding papers and those who form common cause with him are quite aware that the outcome of the Zulman Commission were communicated by the former Premier to all interested parties and that Tebogo Charles Moiloa was recommended for recognition as Kgosi of the tribe. To seek an order that effectively nullifies the findings and report of the Zulman Commission and in doing so fail to cite the interested parties emanating therefrom, renders this application defective. [23] Similarly, and on their own version, the deponent to the founding affidavit and those who support him recognise this fact in relation to Israel Moiloa by stating the following:- Due to the fact that Israel has a direct interest in the resolution of the dispute, the Applicant was advised that the founding affidavit should rather be made by by (sic) a more neutral person such as me. [24] It is common cause that the dispute as to who should be the Kgosi is about two persons, being Israel and Charles. The Applicant

13 cannot state on the one hand, that the one party to the dispute has a direct interest and on another hand deny that the other party have a direct interest. Is this matter ripe for hearing? [25] It was submitted by the Third Respondent, that this application is rather prematurely brought in the sense that the report and findings of the Zulman Commission are still live issues that have not been brought to a logical conclusion by the First Respondent. A closer look at the letter attached to the replying affidavit as annexure OA3 reveals a massive contradiction and indecisiveness from the First Respondent in dealing with this matter. [26] This indecisiveness and the sending of confusing signals is the cause for concern and the First Respondent s decision to oppose this application and thereafter making an about-turn to file a notice to abide is indicative of her indecisiveness. [27] It is therefore incumbent upon the First Respondent to deal with the findings of the Zulman Commission in a decisive manner that will bring closure and finality for all interested parties. Having been appointed in accordance with the law, the Zulman Commission report cannot just be swiped under the carpet and expect all interested parties to accept such a decision which, as annexure OA3 indicates, is yet to be finally decided upon. [28] If it happened that the First Respondent has decided not to accept 13

14 the Zulman Commission s report, then she was supposed to provide reasons for such decision which reasons would have enabled all interested parties to consider and take appropriate legal action in the event the reasons so given are reviewable in terms of the recognised statutory grounds and those under the common law. [29] Similarly, the following dictum from the Dawood v Minister of Home Affairs 2000 (1) SA 997 (C) at 1030H-J case is instructive in this regard on whether the matter can be adjudicated upon prior to the decision by the Premier. In that matter, the court held as follows:-..as pointed out by applicants' counsel, under administrative law an application to a Court would indeed be premature if the relevant public authority had not yet completed its decisionmaking processes (see Lawrence Baxter Administrative Law (1984) at ). In constitutional matters, on the other hand, the doctrine of ripeness 'prevents a party from approaching a court prematurely at a time when s/he has not yet been subjected to prejudice, or the real threat of prejudice, as a result of the legislation or conduct alleged to be unconstitutional'. Until such time that the First Respondent has unequivocally decided upon the matter, this application remains not ripe for hearing. The Merits of the application Insofar as it concerns the appointment of the Second Respondent

15 (paragraphs 2, 3, 7, 8 and 9 of the Notice of Motion) [30] The First Respondent exercised public powers derived from the Constitution and the provincial statute to appoint a commission of enquiry to deal with the dispute around the chieftainship of the Bahurutshe Ba Ga Moiloa tribe. The Proclamation in that regard was duly published in the Extraordinary Provincial Gazette No of the 22 July [31] Pursuant to the proclamation, the commission commenced with its work and presented interim and final reports to the First Respondent. It is common cause that such a report and its findings were communicated to all interested parties. The letter dated 27 th June 2011 and attached as annexure OA3 to the replying affidavit which was directed to the Third Respondent, was a reaction to the intended inauguration of Charles Tebogo Moiloa as the Kgosi of the tribe and following the findings of the Zulman Commission. [32] As alluded to earlier on, a proper reading of the entire letter clearly shows that the First Respondent is non-committal and indecisive in finalising the matter and for all intents and purposes, she has as yet not taken a final decision on the matter. Having received the Zulman Commission s report and having failed to provide reasons for its rejection and/or acceptance in an unequivocal manner since then to date, it remains the sole prerogative of the First Respondent to decide once and for all to bring finality and closure to this matter. 15

16 [33] As alluded to above, the First Respondent must furnish reasons for whatever decision she takes on the matter to enable all interested parties to weigh their legal options accordingly, if needs be. Section 38 (4)(a) of the North West Act is also instructive on the manner in which the First Respondent must deal with the findings and recommendations of a commission of enquiry. In the premises and on the basis of the ripeness, the Applicant cannot succeed at this stage as the dispute is yet to be finalised by the First Respondent. The relief sought in the aforementioned prayer could not be granted. Insofar as it concerns the appointment of an administrator (paragraphs 4, 5 and 6 of the Notice of Motion) [34] The appointment of an administrator for a particular traditional community is a matter that is regulated in accordance with the provisions of the North West Act. Section 10 (3)(a) and (b) of the North West Act are apposite in this regard and provide as follows:- (3)(a) On the recommendation of the Royal family the Premier may, if satisfied that a traditional council is unable to perform the functions attached to it in terms of the Act in an efficient and effective manner or in a manner which is conducive to good governance and administration, appoint any person to assist the traditional council concerned to perform the functions assigned to such traditional council. (b) An officer appointed in terms of paragraph (a) shall be competent to exercise and perform any power, authority or function conferred or imposed by law upon any such traditional

17 council and shall be deemed to have been exercised or performed by such traditional council. [35] The above quoted legislation is clear in the sense that firstly, the royal family of the tribe should make a recommendation to the Premier and if the latter approves such a recommendation, she will secondly, appoint such an administrator to perform and exercise the functions of a traditional council and not those functions that are performed or exercised by Kgosi. The orders prayed for cannot be granted in that the Applicant has failed to demonstrate that as a lawfully constituted royal family, it took a resolution to the Premier as the law prescribes and that the Premier refused such request irrationally or for any other reasons. [36] The appointment of an administrator is a purview bestowed on the First Respondent by legislation and the Courts must surely defer from assuming roles that are executive and/or administrative in nature in the absence of any congruent reasons to do so. In dealing with the deference expected of courts, the following dictum from the Constitutional court s decision in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 at paragraph 48 is quite apposite:- In treating the decisions of administrative agencies with the appropriate respect, a Court is recognising the proper role of the Executive within the Constitution. In doing so a Court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience 17

18 in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decisionmaker. [37] The North West Act further states and differentiates between the role and functions of the Kgosi and the function of a traditional council respectively. These sections clearly illustrates what is the ceremonial duties of a Kgosi vis-a-vis the administrative duties entrusted upon a traditional council. It is for the aforementioned reasons that the relief sought in the abovementioned prayers could not be granted. Removal of the Third Respondent as acting Kgosi (paragraph 6 of the notice of motion) [38] Similarly, the removal of Kgosi or acting Kgosi is a matter that is regulated by statute. Section 14 of the North West Act is instructive of the grounds upon which a Kgosi (or acting Kgosi) may be removed as well as the steps that must be taken for such a removal. These are all matters that are vested within the authority of the First Respondent. The Applicant is at liberty to make full recommendations to the First Respondent in accordance with section 14 (2) of the North West Act and the latter to do what the law enjoys her to do. [39] In my view, this is a matter where this Court must surely defer from assuming roles that are executive and/or administrative in nature in the absence of any congruent reasons to do so, especially since

19 the present application is not a review. [E] Conclusion:- [40] It is for the aforementioned reasons that I dismissed the application with costs, as there is no plausible reason why costs should not follow the event and be awarded in favour of the successful party. R D HENDRICKS JUDGE OF THE HIGH COURT ATTORNEYS FOR THE APPLICANT:- D C KRUGER ATTORNEY 19