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[2022] ZALMPPHC 17
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B.B.R v Limpopo House of Traditional Leaders and Others (HCAA11/2021 1459/2017) [2022] ZALMPPHC 17 (16 March 2022)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
APPEAL CASE NO:
HCAA11/2021
CASE NO: 1459/2017
REPORTABLE: YES/NO
OF INTEREST TO THE
JUDGES: YES/NO
REVISED.
In the matter between:
B[…] B[….]
R[....]
APPLICANT
and
LIMPOPO HOUSE OF
TRADITIONAL LEADERS
FIRST RESPONDENT
M[….]
R[….]
SECOND RESPONDENT
MEC: CO-OPERATIVE
GOVERNANCE HUMAN
THIRD RESPONDENT
SETTLEMENT AND
TRADITIONAL AFFAIRS
THE PREMIER: LIMPOPO
PROVINCE
FOURTH RESPONDENT
JUDGMENT
MAKGOBA
JP
[1] The Appellant in this
matter approached this Court on appeal against the judgment and order
of a single Judge of this Division
(Semenya J, as she then was) in
terms whereby their application was dismissed with costs.
[2] The Appellant had
launched an application in the Court
a quo
seeking an order in
terms of which the Fourth Respondent, the Premier of Limpopo
Province, is compelled to remove the Second Respondent
from her
position as acting traditional leader of R[....] Traditional
Community. It further sought an order that the matter of
the
identification of the appropriate senior traditional leadership be
referred back to the Appellant who will deliberate and identify
a
candidate for the position of acting senior traditional leader.
[3]
As a ground of appeal the Appellant stated, correctly in my view, in
their notice of appeal
[1]
that
the learned judge in the Court
a
quo
was
correct in finding that the main issue in the matter was whether the
request for the removal of the Second Respondent was at
the request
of the Royal Family.
In the appeal before us,
the parties are
ad idem
that the aforesaid main issue still
remains to be decided.
[4] The issue regarding
the appointment and removal of a traditional leader is governed by
the Limpopo Traditional Leadership and
Institutions Act 6 of 2005
(“the Limpopo Act”).
Section
15 of the Act provides:
Recognition
of acting traditional leaders
(1)
A royal family may, in accordance
with the customary law of the traditional community concerned,
identify a suitable person who
must be a member of the royal family
to act as a king, queen, senior traditional leader, headman or
headwoman, as the case may
be…
(2)
The Premier must, upon appointment
of an acting traditional leader in terms of subsection (1) –
(a)
issue a certificate of appointment;
and
(b)
inform the provincial house of
traditional leaders and the local house of traditional leaders.
(3)
The Premier must review the
appointment of the acting traditional leader every 12 months.
(4)
The Premier must upon request by the
royal family remove any person appointed in an acting capacity.
The Second Respondent in
the present case was appointed as acting senior traditional leader.
Her appointment and removal are regulated
by section 15 of the
Limpopo Act. In exercising his or her powers in terms of Section
15(4) of the Act, the Premier is required
to satisfy himself/herself
that it is the royal family that is requesting the removal and that
the person to be removed has been
duly appointed in an acting
capacity.
[5] It is common cause
that the royal family, in collaboration with the then acting
traditional leader, K[….] M[….]
R[....], identified and
married the Second Respondent as a candle wife of the R[....]
Traditional Community. The Second Respondent
was subsequently
identified by the royal family and recommended to the Premier (Fourth
Respondent) as a suitable person to act
as a senior traditional
leader of their traditional community. Pursuant to that
identification, the Premier appointed the Second
Respondent on 21
February 2014 and issued her with a certificate of
recognition/appointment in terms of section 15 (2)(a) of the
Act, to
act in that position.
[6] It is therefore
common cause that the Second Respondent was properly and duly
appointed as the acting senior traditional leader
of the R[....]
Traditional Community. Accordingly, the status of the Second
Respondent as an acting senior traditional leader is
not an issue
before us in this appeal. In any event same was never an issue before
the Court
a quo
.
[7] As time went on and
after the appointment of the Second Respondent as an acting
traditional leader, certain members of the R[....]
Traditional
Community, apparently including the Appellant, started complaining
about the traditional leadership of the Second Respondent,
in
particular that the Second Respondent was not lawfully appointed. A
move gathered momentum that she be removed as their acting
senior
traditional leader. The Appellant then laid a dispute with the First
Respondent, that is the House of Traditional Leaders.
[8]
The House of Traditional Leaders investigated the matter and
responded on the 1
st
of October 2015.
[2]
The
House of Traditional Leaders concluded that:
8.1. The
identification and appointment of K[....] was done in terms of the
Provincial Act;
8.2. The
acting K[....] must remain acting K[....] as she has been properly
appointed and recognised by government;
8.3. A seed
raiser must be nominated as soon as possible; and
8.4. Senior
K[….] S[….] must be included in the Council so that she
can get something at the end of the
month.
The Appellant was not
satisfied with the decision of the First Respondent and proceeded to
lodge another dispute with the Fourth
Respondent (the Premier) on 29
January 2016.
[9] It is common cause
between the parties that the core inner circle of the royal family of
the R[....] Traditional Community is
made up of the children of the
late K[….] M[….] G[….] R[....]. These children
are S[…] R[....], M[….]
R[....], M[….] R[....]
and T[….] R[....].
This aspect was endorsed
even at the meeting of B[….] and D[….] held on 2 May
2015 at the Chief’s Residence.
The issue of the
withdrawal of the Second Respondent’s certificate of
appointment as acting senior traditional leader was
discussed at this
meeting.
The
minutes of the said meeting read
[3]
:
·
It
was agreed that the meeting be adjourned for 1 hour to give Inner
Circle to iron out some key issues that need them only (e.g.
withdrawal of certificate of M[….] T[….])
[4]
;
·
They agreed they shall report back later
that day at 12h00;
·
No agreement was reached amongst
themselves (Inner Circle);
·
It was taken back to b[….] and
d[….] to judge.
[10] The significance of
the meeting of 2 May 2015 is that the Inner Circle, which is the core
of the Royal Family, did not reach
an agreement that the certificate
of appointment of the Second Respondent as acting traditional leader
be withdrawn. In other words,
no resolution was adopted to request
the Premier to remove the Second Respondent as the acting senior
traditional leader.
[11] In terms of the
Limpopo Act the “Royal Family” means the core customary
institution or structure consisting of
immediate relatives of the
ruling family within a traditional community, who have been
identified in terms of custom, and includes,
where applicable, other
family members who are close relatives of the ruling party.
Within
this meaning the children of the late K[….] M[….] G[….]
R[....] i.e. the Inner Circle referred to above,
and their children
will form the royal family. The B[….] are certainly not
members of the royal family. A person will not
be regarded as a
member of the Royal Family merely by virtue of bearing the surname of
R[....] in the context of the present case.
The Appellant call
themselves “B[….] B[….] R[....]”. They may
be "B[….]” but they certainly
cannot be regarded as
members of the Royal Family without more.
[12] The Appellant avers
that it took a resolution to request the Fourth Respondent (Premier)
to remove the Second Respondent from
her position on 30 October 2016.
It is common cause that the Premier refused to remove the Second
Respondent from the position
of acting senior traditional leadership.
The essence of the resolution adopted on 30 October 2016 is as
follows:
The
B[….] le
D[….] Ba ga-R[....]
have resolved to request the Premier
to remove the acting K[….] M[….] R[....] from her
position as acting senior
traditional leader of the R[....]
Traditional Community with immediate effect, as envisaged in Section
15 of the Limpopo Traditional
Leadership and Institutions Act 6 of
2005 (
my underlining
).
[13] This then begs the
question whether those persons who gathered on 30 October 2016 and
adopted the resolution were indeed members
of the Royal Family or
whether they constituted the Royal Family.
The
Court
a quo
made a finding that the meeting of the 30 October 2016 was not that
of the royal family and consequently the decision to remove
the
Second Respondent was not taken by the royal family either in the
form of the immediate relatives or other family members.
For
reasons that follow hereunder, the decision of the Court
a
quo
cannot be faulted.
[14] There was only one
meeting of the inner core and out of the four children of the late
K[….] M[….] G[….]
R[....] only three attended
the meeting but they did not take the decision to remove the Second
Respondent. That meeting of the
2 May 2015 was attended by S[….],
M[….] and M[….] whereas T[….] was not present.
[15] The meetings of the
Royal Family are regulated by the provisions of section 17 of the
Limpopo Act, which provides that:
(1)
A royal family must, when
meeting to discuss matters emanating from this Act, function in
accordance with customary law of the traditional
community concerned.
(2)
Any royal family must keep a
minute book in which shall be recorded in respect of each meeting
thereof –
(a)
the date on which, the time at which
and the place where such meeting was held;
(b)
the names of the members of the
royal council present and their designations in accordance with their
custom; and
(c)
the decision taken.
[16] Annexure
BBR1A
to the Appellant’s founding affidavit contains a list of 57
persons who attended the meeting of the 30 October 2016 when
a
decision to remove the Second Respondent was taken. The list shows
the names of such persons, their cellphone numbers and their
signatures. There is no designation of the individuals whose names
appear on the roll call. It is not known who these 57 individuals
are
and their position or relationship with the royal family.
Annexure
BBR1B
to
the Appellant’s founding affidavit is another list of 94
persons alleged to have attended that meeting. This list of persons
is in my view of no use. It does not have a heading to show that it
constitutes a roll call of members of the royal family who
attended
the meeting. It does not have a date, time and place of the meeting.
[17] The Appellant
contends that the decision to remove the Second Respondent was taken
on the 30
th
of October 2016. This meeting of 30 October
2016 was attended by 57 individuals whose designations or positions
in the royal family
is clearly unknown. This affects the legitimacy
of the structure which purported to have taken a decision to remove
the Second
Respondent.
The
Appellant’s contention that members of the inner core of the
royal family (namely children of the late K[….] M[….]
G[….] R[....]) were also present at the meeting of the 30
October 2016 does not take its case any further. This is so because
that meeting was attended by many people who are certainly not
members of the royal family.
[18]
In
Mphephu
v Mphephu – Ramabulana and Others
[5]
the Supreme Court of Appeal held that the fact that the Royal Family
meeting was attended by members of the Royal Council who were
not
part of the Royal Family invalidated any decision that was taken and
purported to be a resolution of the Royal Family.
In the present case the
Appellant purported to hold a meeting of the royal family but the
said meeting included quite a large number
of people who were not
supposed to be part of the Royal Family. This in itself has
invalidated the resolution purported to have
been taken by the Royal
Family.
[19]
The role and position of the Royal Family is of great significance in
traditional leadership. The Royal Family is the fabric
of traditional
leadership. Counsel for the First, Third and Fourth referred us to
the case of
Maxwele
Royal Family and Another v Premier of the Eastern Cape and Others
[6]
,
which is appropriate with regard to the legitimacy of a royal family.
In that case Notyesi AJ said the following at paragraphs
[34] –
[35]:
“
[34]
A royal family serves a primary source of knowledge on the prevailing
customary law and customs on the succession of traditional
leadership. These are all legislative functions for a royal family
when identifying a suitable person as a traditional leader or
acting
traditional leader. The royal family is also responsible for the
removal of traditional leaders because they must initiate
that
process before the administrative action of the premier or other
relevant government functionary.
[35]
There is an obligation to ensure that an entity performing or
purporting to perform functions of a royal family, must be a
legitimate structure and not a bogus one. The definition of a royal
family is important in this regard. The ultimate objective
is to
ensure that traditional leaders are identified by legitimate royal
families, not bogus structures. This is in line with the
dignity,
importance, and respect for the institution of traditional
leadership. In the definition of a royal family, some important
other
composite words which are separately defined in section 1 are
incorporated. This aspect is delved into details when dealing
with
the locus standi of the applicants.”
[20] It is incumbent upon
the Premier (Fourth Respondent) to satisfy himself/herself that the
structure that called for the removal
of the Second Respondent is a
legitimate structure.
In
my view the Appellant failed to put forth evidence to back up its
contention that the names of the people on the list of 57 individuals
is that of the legitimate Royal Family members of the R[....]
Traditional Community.
[21] In the result the
appeal is dismissed with costs.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION
I
agree,
G C MULLER
JUDGE OF THE HIGH
COURT,
LIMPOPO
DIVISION, POLOKWANE
I agree,
K L PILLAY
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
For
Appellant
: Adv AC Diamond
Instructed
by
: Hammann – Moosa Inc
For First, Third &
Fourth Respondents
: Adv EM Baloyi
– Mere SC
Instructed
by
: State Attorney, Polokwane
For Second
Respondent
: Mr. R
Mashifane
Ratale
Mashifane Attorneys
Heard
on
: 11 March 2022
Judgment delivered
on
: 16 March 2022
[1]
See
Notice of Appeal, page 256 of the paginated papers at paragraph 1.1.
[2]
Annexure
“BBR3” to Founding Affidavit at page 34 of paginated
papers.
[3]
See
Annexure “MR2” to Second Respondent’s Answering
Affidavit at pages 83 – 87.
[4]
The
name “M[….] T[….]” refers to the clan name
given to Second Respondent as a candle wife in the R[….]
Royal Family.
[5]
[2019]
ZASCA 58
(12 April 2019).
[6]
(2970/2020)
[2021] ZAECMHC 10 (23 March 2021).