About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 36
|
|
Matsaung and Another v Matsaung and Others (2506/2022) [2022] ZALMPPHC 36 (30 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 2506/2022
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED
In
the matter between:
THATO
KHOLOFELO MATSAUNG
FIRST
APPLICANT
MAMAHULE
TRADITIONAL AUTHORITY
SECOND
APPLICANT
And
REBECCA
MAMODUPI MATSAUNG
FIRST
RESPONDENT
SEBETJA
ELIAS THOMAS LETSOALO
SECOND
RESPONDENT
RAMASELA
FLORA SETWABA
THIRD
RESPONDENT
FIRST
NATIONAL BANK OF SA (PTY) LTD
FOURTH
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On 24
th
May 2022 the applicants approached this court on
urgent basis wherein they appeared before Naude AJ and obtained an
order wherein
the fourth respondent was ordered to unfreeze several
bank accounts of the second applicant, together with other orders
related
to the applicants’ application. The order was duly
served on the fourth respondent. However, the fourth respondent has
failed
to comply with the court order, and the applicants have
launched a contempt of court application on urgent basis against the
fourth
respondent.
[2]
The fourth respondent is opposing the applicants’ contempt of
court application. The fourth respondent
has also filed a Rule 7
notice challenging the authority of the first applicant to represent
the second applicant, and also the
applicants’ attorney’s
authority to represent the second applicant as its attorneys of
record. In reply to the fourth
respondent’s Rule 7 notice, the
applicants have attached copy of a resolution by Bakone Ba-Mamahule
Matsaung Royal Family,
and copy of a power of attorney signed by the
first applicant nominating Elliot Attorneys to represent him (first
applicant).
[3]
The fourth respondent in its answering affidavit has raised several
points
in limine
which are (i) that the applicants have failed
to comply with Rule 41A; (ii) there is no urgency in the application;
(iii) the first
applicant lacks authority to bring the application on
behalf of the second applicant; (iv) the applicants have inexcusably
failed
to cite and join Mmamaele Georgina Matsaung (who claims to be
the Regent) and a representative of the Royal Family; (v) that the
order of 24
th
May 2022 is both incomplete and incapable of
being implemented because of the controversy between the applicants
and first to third
respondents regarding the identity of the current
chairperson of Mamahule Traditional Authority, (vi) that the
applicants are seeking
final relief in their application, yet they
failed to make out a clear case in their founding affidavit; and
(vii) that the applicants
pursue the application for a final relief
notwithstanding the presence of foreseeable (reasonable and actual)
material disputes
of fact.
[4]
When the parties appeared in court on 28
th
June 2022, they
agreed to first argue the fourth respondent’s point
in
limine
regarding the applicants’ alleged lack of
locus
standi
to bring this application. Counsel for the fourth
respondent had submitted that the full court of this division in the
appeal judgment
under case number HCAA15/2021 heard on 10
th
June 2022 and electronically circulated on 15
th
June 2022
has found that second applicant had not yet been recognised by the
Premier of Limpopo and therefore lacks
locus standi
to
institute and prosecute action against the appellants in the appeal
case. That the first applicant brings the current application
on the
basis of an entity that is non-existing. Further that as per the
applicants’ resolution attached to their Rule 7 reply,
the said
resolution refers to the first applicant been duly appointed as a
senior traditional leader of Bakone Ba-Mamahule Ga-Matsaung
of the
Mamahule Community to represent the Mamahule Traditional Authority in
terms of section 14(1)(a)(i) of the Limpopo Traditional
Leadership
and Institutions Act no 6 of 2005 as amended.
[5]
Counsel for the fourth respondent submit that if the second
respondent does not exist in terms of statutes,
the first applicant
could not have been lawfully appointed as a chairperson of an entity
that does not exists. Neither the first
or the second applicant have
the authority to bring this application. That the mandate given to
the Elliot Attorneys by the first
applicant, is in his personal
capacity, and does not extend to the second applicant. Elliot
attorneys has no authority to represent
the second applicant, and
further that this matter will not be decided in the absence of the
second applicant.
[6]
Counsel for the applicants submitted that the appeal was heard on
10
th
June 2022 and judgment delivered on 15
th
June 2022, whilst the main application before Naude AJ was obtained
on 22
nd
May 2022. It is the applicants’ contention
that the judgment of the full court does not apply retrospectively,
and that the
current application emanates from a judgment that was
heard before the 15
th
June 2022.
[7]
It is trite that in litigation proceedings, the first thing to
establish is the
locus standi
in iudicio
of the
litigant. The first applicant has deposed the founding affidavit in
this application, and has described himself as current
chief of
Bakone Ba Mamahule GaMatsaung. The first applicant has further stated
that he has the
locus standi
to bring the contempt of court
application by virtue of being the applicant in the main application
and also the chairperson of
Mamahule Traditional Authority Community.
Mamahule Traditional Authority is the second applicant, and the bank
accounts which were
frozen by the fourth respondent are in the names
of the second applicant. The first applicant has further stated that
he was duly
authorised to depose the founding affidavit by virtue of
the resolution taken by the Royal Family on 16
th
June
2021.
[8]
It is in that resolution wherein the Royal Family has resolved that
the first applicant was the duly
appointed senior traditional leader
and paramount chief and will represent Mamahule Traditional Authority
in terms of section 14(1)(a)(i)
of the Limpopo Traditional Leadership
and Institutions Act 6 of 2005 as amended. In the judgment of the
full court of this division
in the matter of
Mamaele
Georgina
Matsaung
and 2 Others v Mamahule Traditional Authority
[1]
it was found that the Premier of Limpopo has not yet recognized the
second applicant as a traditional authority, and that it lacked
locus
standi
to
institute and prosecute the action against the appellants since they
have not yet complied with the provisions of both the Framework
Act
and the Limpopo Traditional Leadership Act. That judgment has not yet
been appealed upon, and it will remain valid and enforceable
until
set aside by a court of competent authority.
[9]
The first applicant purports to have been authorised by the
resolution of the Royal Family of the Traditional
Authority of
Mamahule Community. The Premier of Limpopo has not yet recognized
that community as a community that is capable of
establishing a
recognized traditional authority which comply with the provisions of
the Limpopo Traditional Leadership and Institutions
Act. In
Bakgaka
– Ba –
Mothapo
Traditional Council v Tshepo Mathule Mothapo & Others
[2]
Dlodlo JA said:
“
It
is indeed 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 a Traditional Council (which
had no
locus
standi
).”
[12]
In my view, the Bakgaka – Ba – Mothapo Traditional
Council case is not distinguishable from the
present case. The full
court has already found that the second applicant has not yet
complied with the appropriate legislation
for it to be recognized a
traditional authority. Therefore, the purported resolution which
authorizes the first applicant to institute
and prosecute the action
against the respondents is void. The power of attorney by the first
applicant which appoints Elliot Attorneys,
is in the first
applicant’s personal capacity and not inclusive of the second
applicant. Therefore, Elliot attorneys has
not been authorized to
represent the second applicant, and the second applicant is not
properly before court. The bank accounts
which have been frozen by
the fourth respondent is in the names of the second applicant.
Without the second applicant been properly
before court, the first
applicant will be unable achieve the relief he is seeking. Therefore,
there is merit in the fourth respondent’s
point
in limine
.
[13]
However, that is not the end of the matter, there is an order by
Naude AJ which will remain valid no matter
how defective it may look
until it has been set aside by a court of competent authority. That
order was obtained before the 15
th
June 2022. The
applicants have launched the contempt of court application on 15
th
June 2022, the same date the appeal judgment was circulated. Even if
when the applicants launched their contempt of court application
might not have yet been aware of the full court judgment, by the time
the current application was heard, they were aware of the
judgment of
the full court. They were also aware of the extend of the grave
repercussion the judgment of the full court was having
on them. The
second applicant was a party in the full court appeal and has taken
part in that appeal. He therefore could not simply
overlook that
judgment and opted to proceed with contempt of court application with
the hope this court might find that since order
of Naude AJ was prior
to the appeal judgment, it will not be affected.
[14]
Despite the order of Naude AJ remaining valid until set aside, this
court will not disregard the consequences
to follow should it grant
its order based on an order which is not competent to be enforced.
Should this court grant the applicants
the orders that they are
seeking, it will be validating what it has already found to be
invalid, and cause confusion. It will not
be in the best interest of
justice to do that. I have already found that the applicants lack
locus standi
in this matter, and also that the second
applicant is not proper before this court. A court is empowered to
refuse to grant an
order because the applicants lacks
locus
standi
.
[15]
In the result I make the following order
15.1 The fourth
respondent’s point
in limine
of the applicants’
lack of
locus standi
is upheld.
15.2 The applicants’
application is dismissed with costs on party and party scale.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the applicant
:
Adv M Mphse SC
Adv
Mzilikazi
Instructed
by
:
Elliot Attorneys
Counsel
for the fourth respondent
:
R Glover
Instructed
by
:
Glover Kannieappan Inc
Date
heard
:
28
th
June 2022
Electronically
circulated on
:
30
th
June 2022
[1]
[2022] ZALMPPHC 30 (15 June 2022)
[2]
[2019] ZASCA 130
(30 September 2019) at para 16