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[2022] ZALMPPHC 49
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Radingwana and Another v Premier: Limpopo Province and Others (Rev 4849/2020) [2022] ZALMPPHC 49 (4 October 2022)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
Case no: Rev 4849/2020
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In the matter between:
SENTSHO COLLENGE
RADINGWANA
1
ST
APPLICANT
RADINGWANA ROYAL
FAMILY
2
ND
APPLICANT
And
THE PREMIER: LIMPOPO
PROVINCE
1
ST
RESPONDENT
THE MEC: LIMPOPO
CO-OPERATIVE GOVERNANCE
HUMAN SETTLEMENTS AND
TRADITIONAL AFFAIRS
2
ND
RESPONDENT
LIMPOPO PROVINCIAL
COMMITTEE ON TRADITIONAL
LEADERSHIP DISPUTE AND
CLAIMS
3
RD
RESPONDENT
MATAU SARAH RADINGWANA
4
TH
RESPONDENT
JUDGMENT
MULLER
J:
[1]
The first applicant applies to review and set aside the
recommendation of the third
respondent and the decision of the
Premier
[1]
to accept the claim
of Moleme Jackson Radingwana
[2]
as the senior traditional leader of the Baroka Ba Radingwana
traditional community
[3]
as well
as the appointment of the fourth respondent as acting senior
traditional leader. The first applicant
[4]
also seeks to be declared to be the senior traditional leader of
Baroka Ba Radingwana traditional community.
[2]
The third respondent is the Limpopo Provincial Committee on
Traditional Leadership
Disputes and Claims
[5]
which was established by the Premier in terms of section 26A of the
Traditional Leadership and Governance and Framework Act.
[6]
[3]
The fourth respondent is the wife of the late Moleme who has passed
away in 2015.
She appeared before the Kgatla Commission on behalf of
the late Moleme by virtue of their marriage relationship at the time
of
his death.
[4]
The background facts are that Sentshso is the eldest son of Khudu
Benitta Radingwanal.
[7]
Khudu
was a candle wife. She was from the royal kraal from Maroteng. Her
sole purpose was to give birth to the rightful senior
traditional
leader. Sentsho states that Pholo Radingwana who had taken over as
senior traditional leader from the acting senior
traditional leader
Podile was the acting senior traditional leader until about 1969.
[8]
Pholo handed the chieftainship over to Khudu immediately after having
married her. Moloko Piet Radingwana
[9]
was identified and nominated by the royal family as the seed
raiser.
[10]
He accepted the
nomination. Khudu was blessed with three children. (The irony is that
none of her children were fathered by the
seed raiser.) The eldest
and youngest were females.
[11]
Sentsho, as the only male child, was formally recognised as the
senior traditional leader of the Baroka community from 15 April
2007
by the Premier.
[12]
[5]
Subsequent to the death of Pholo, Khudu moved back to her parental
kraal at Mohlaletse
as a result of being threatened to be killed by a
group of the community who were against the leadership of a female.
[6]
In 1977 Moleme was identified and recognised as regent until the heir
(Sentsho) was
old enough to take over the leadership. The mother
[13]
of Moleme who was not of the royal kraal was not a candle wife and
could not claim the leadership position.
[7]
According to custom, the mother of a senior traditional leader must
be a candle wife.
Moleme decided to marry a candle wife. The royal
family objected. He was not the rightful heir to take over the
leadership. In
2005 the royal family identified Sentsho as the
rightful heir. Moleme was removed as regent and Sentsho was
recognised and appointed.
[8]
In 2016 Sentsho attended the Kgatla Commission where he had made
representations.
He was not supported by family members because of an
unexpected death in the family. He was notified by letter on 20 March
2020
that his senior traditional leadership was dissolved and that
Moleme was recognised as the acting senior traditional leader by the
Premier in his stead.
[9]
The royal family was not requested to identify the senior traditional
leader by either
the Kgatla Commission or the Premier in relation to
the recognition and appointment of Moleme.
[10]
Sentsho raised a host of grounds to review the decision of the Kgatla
Commission and the Premier.
The most important ground is that Moleme
was never identified by the royal family as a senior traditional
leader and he, therefore,
is unable to be the rightful senior
traditional leader. Closely related to the aforegoing is that the
mother of Moleme was not
a candle wife and he as a result has no
right to have lodged a claim as the senior traditional leader. His
appointment is also
contrary to the provisions of Limpopo Traditional
Leadership Act.
[14]
[11]
Khudu confirmed in a confirmatory affidavit that she is the mother of
Sentsho and is a candle
wife of the Baroka Randingwnana community.
The Radingwana Royal Family
[15]
supports the application and confirmatory affidavits from several
members of the royal family are attached.
[12]
Sentsho served a supplementary affidavit. He repeated the contents of
the founding affidavit
and added more detail and attacked the
decision of the premier on the principle of legality and the
provisions of the Promotion
of Administrative Justice Act.
[16]
Sentsho commenced his version by pointing out that the complete
record of the proceedings before the Kgatla Commission was not
filed.
[13]
He proceeded to aver that the Kgatla Commission obtained the evidence
from Khudu unconstitutionally
because a researcher interviewed her.
The Kgatla Commission accepted the record of the interview. According
to Sentsho, Khudu stated
that the seed raiser was indeed Moloko but
that evidence was not taken into account in its final report and
recommendations.
[14]
Sebtsho maintaina that the Kgatla Commission’s report that
Khudu appointed her own seed
raiser is devoid of any truth. The
Kgatla Commission was biased. Khudu never divorced when she returned
to her kraal. She was allowed
to return, as if she was never
divorced. The Kgatla Commission failed to visit her kraal to
determine the true facts from her.
[15]
The Deputy Director of the second respondent, in opposition to the
application, deposed to an
answering affidavit on behalf of the
first, second and third respondent. She stated that the audio records
of the Kgatla Commission
could not be retrieved because of damage,
with the exception of the disc containing the interview of Khudu. She
stated that Podile
1 had two sons. The eldest and the rightful heir,
Mmotong passed away at a young age before he got married. His younger
brother
had a son Dichidi who also died before he got married. The
royal family then decided to marry a candle wife to give birth to the
heir. Khudu was married as a second candle wife, since Mamogale was
unable to give birth to a male child.
[16]
The deponent stated that the royal family agreed in 1969 with the
community on the need for a
candle wife. The lobolo for the candle
wife was collected from and paid by the community. In the event that
a traditional leader
is deceased the candle wife and her family will
be informed who the seed raiser is. Moleme was nominated as the seed
raiser. A
seed raiser is the most senior male closet to the inner
circle of the royal family. Khudu was allocated Moleme as her seed
raiser.
However, Moleme was very young and Moloke appointed himself
as the seed raiser. Khudu failed to follow tradition by taking Moloke
as seed raiser instead of Moleme. As a result, Khudu was expelled by
the royal family. The deponent stated that early in the1960’s
the Baroka community did have a candle wife system. Mamogale was the
first candle wife when the royal family decided to introduce
a candle
wife system. Her son died young without children. Moleme was the
acting chief from 1977 until 2007 when the chieftaincy
was handed to
Sentsho. The royal family has decided that the fourth respondent must
proceed with the claim after Moleme has passes
away. The deponent
stated that Moleme was not the rightful heir and that commission
recommended that the royal family must marry
a candle wife and
appoint a seed raiser so that she could give birth to the rightful
heir.
[17]
She avers that Sentsho had the opportunity at the sitting of the
commission to call witnesses
but elected not to do so with the result
that his evidence was not corroborated that Moloke was the nominated
seed raiser. Moloke
lacked support from the royal family. The royal
family met on 27 November 2019 and decided then that Moleme be
appointed as the
acting traditional leader until a candle wife and
seed raiser can be appointed.
[18]
Sentsho in his relying affidavit maintains that Mathume was not a
candle wife, but the wife of
Petlwane, not Podile 1. Moleme and his
brother are not the children of Podile. Mathume had them before she
came to the Baroka Community
when she married Podile. The truth of
the contents of a letter from the magistrate Sekhukhuneland dated 2
August 1976 is denied
by Sentsho. The letter states in relevant
part:
[17]
“
Selatole later
handed chieftainship to Podile son of Sentsho on his return. Podile
died and it went to Pholo.
Pholo in live handed it
to Khudu the expelled Chieftainess. Beside Sentsho and Podile all the
rulers were regents. The bakgemana
decided and agreed to marry a
ngwetsi for the chief lapa viz Mmotong who died young and childless.
The said ngwetsi and thus candle
wife was Mamogale from Mohlaletse
who begot one daughter and a son Sanders Podile who died young.
Mamogale also died. Ditheba and
Podile again got a wife from a local
family viz Mamashu Radingwana and Podile begot a son from Mamashu and
his name was Moleme
Mmotong Radingwana.
Mamashu was not a candle
wife. The bakgoma, after Podile’s death and that of Ditheba,
decided and agreed to get a candle wife
once more for Mmtong’s
son who died young nl Sanders Podile Radingwana. We got a candle wife
form Mohlaletse in the person
of Khudu Radingwana now returned to
Mohlaletse and she was allotted to Moleme Mmotong Radingwana the
direct biological son of Podile
to look after Khudu although he was
much younger than Khudu. After Khudu’s arrival she ignored her
appointed bull and one
Peterus Moleke Radingwana appointed himself
the bull and this caused confusion in the tribe and among the
bakgoma. Before Moleke
Petrus Radingwana she slept with his elder
brother Sentsho Phole Radingwana even before she arrived at
Mohlaletse. When she stayed
openly with Petrus the tribe sort of
condoned the situation but he Petrus became harsh and aggressive
while Khudu ignored any advice
from the bakgoma na until the
situation erupted as we stated to you on the 23 August 1975. Our
final decision is contained in our
letter handed here on 27/10/75 and
we confirm that decision and stand by it as indicated in our of the
26/6/76. His full names
are MOLEME JACKSON RADINGOANA PIN 5217358. He
was born in 1950 and he is today 26 years of age. He is unmarried.
His highest scholastic
standard is std V and left off while doing std
VI in 1971. He is just at home and unemployed.”
[19]
Sentsho denies that Khudu was expelled or divorced but avers that she
was chased away. The finding
of the Kgatla Commission that Khudu
appointed a seed raiser herself is incorrect, according to him. Khudu
confirmed that Podile
is not the father of Moleme. His father is
unknown. He confirms that the custom is that the heir to the throne
can only be born
from a candle wife and further that in terms of
custom a seed raiser must be nominated by the royal family. Thus
Moleme could never
be a chief.
[20]
It is to my mind clear that the identification of Khudu by the royal
family (or bakgoma) as a
candle wife is common cause. The dispute is
whether Moleme or Moleke was nominated as ‘the bull’ or
seed raiser. This
dispute, it seems to me is at the heart of the
uncertainty which has plagued the Baroka since the 1970’s. The
Premier appointed
the Kgatla Commission to investigate to put the
dispute at rest. The dispute has now reached this court because it
has failed to
fulfil its task to investigate the competing claims and
the facts thoroughly when it had the opportunity to do so once and
for
all.
[21]
I now turn my attention to the work of the Kgatla Commission. The
record filed does not contain
all the evidence adduced at the hearing
of the commission. However, the
verbatim
statement made by
Khudu to a researcher of the commission has survived and is included
in the record. The remainder of the evidence
presented at the hearing
is missing.
[22]
Khudu confirmed during the recorded interview for the commission that
Moloke was still alive
at the time of the interview and also that he
was available to be interviewed.
[23]
The disputant, Moleme stated in a document with the title “Short
history of the traditional
Leadership of the Baroka-Ba-Radingwana
that it was decided by the Royal family and the traditional community
to marry a candle
wife, namely Khudu. In terms of the tradition ‘the
bull’ will sit with the candle wife at the wedding table at the
kraal of the candle wife. The lobolo will not be paid unless there is
agreement who the seed raiser is. When the bull is chosen
the most
senior male person or closest to the inner circle of the royal family
in seniority.
[18]
Moleme was
chosen. Khudu despite having being shown the seed raiser chose Moloke
as the seed raiser. He was further removed in
terms of family
relations from the inner circle than Moleme. Khudu’s misconduct
was not condoned by the community and it
was decided to send her back
to her parental kraal. She was divorced and returned with her
children. Moloke followed her. Moleme
was appointed as acting chief.
[24]
It is best to commence with the findings and the recommendation of
the Kgatla Commission made
to the Premier and what his decision was:
“
9.
FINDING/S
9.1 The
claim raised by the disputant is legitimate but does not qualify him
to be an heir for the Roka Radingoana
Traditional Community in terms
of their customary law of succession.
9.2 He
was the most senior in the Baroka-Ba-Radingoana royal family.
9.3 He
was removed when Collenge
[19]
was appointed the chief of Baroka-Ba-Radingoana
9.4
Randingoana Sentsho Collenge is not the rightful heir because he was
not sired by the seed raiser appointed by
the royal family.
10.
RECOMMENDATION/S
The Commission recommends
that the Baroka-Ba-Radingoana should marry a candle wife. The royal
family must appoint a seed raiser
and the son born from the union
would resuscitate the house of Mmotong of Baroka-Ba-Radingoana.”
[25]
The Premier accepted the recommendation made by the Kgatla Commssion
on 6 June 2017. The Premier
notified Sentsho on 29 May 2019 as
follows:
“
1. ….
2. ….
3.
I have considered the findings and recommendations of the committee
in terms of the provisions of the Traditional
Leadership and
Governance Framework Act, 2003 (Act 41 of 2003) as amended.
4.
The claim/dispute for restoration and/or recognition of the Baroka Ba
Radingoana Senior Traditional
Leadership by Radingoana Moleme Jackson
is granted.
5.
In the view of the above, you are therefore informed that your senior
traditional leadership
is dissolved with immediate effect.”
[26]
The Kgatla Commission was appointed in terms of
section 25
of the
Traditional Leadership and Governance Framework Act
[20
]
to investigate and make recommendations on the particular leadership
dispute. Section 25(3)(a) of the Framework Act stipulates
also that:
“
When considering a
dispute or claim, the Commission must consider and apply customary
law and the customs of the relevant traditional
community as they
applied when the events occurred that gave rise to the dispute or
claim.”
[27]
Customary law and customs of a traditional community which find
application cannot be applied
in isolation from the law of the land.
Section 25(3)(a) cannot be given an interpretation that customs and
customary laws are the
only laws applicable to the community as if
the community is severed from the rest of the Republic and thus not
subject to the
laws of the land. To refer to an outlandish example.
If the community custom prescribed that if the child of the candle
wife is
born with a deformity it must be killed, must the Commission
slavishly find that such a killing is excused? A community is an
integrated
part of the Republic and does not operate in a vacuum or a
bubble which insulate the community. Its custom remains subject to
the
Constitution and the laws of the land.
[28]
Little is known of Moleme from the facts. The so-called letter from
the magistrate Sekhukhuneland
which purports to be a record of a
meeting that was held between the bakgoma and the magistrate on 28
June 1976, is important evidence
of the state of affairs at the time
which cannot simply be ignored. Proper weight must be accorded to its
contents.
[29]
Moleme whose identity number is [....]
[21]
turned 18 years of age in 1969 when he married Khudu as seed raiser
for the future senior traditional leader. He was still attending
school in 1971 doing standard VI.
[22]
He dropped out of school in 1971whilst doing standard VI.
[30]
Section 1 of the Age of Majority Act
[23]
provided that:
(a)
“All persons, whether male or female, attains the age of
majority when they attain
the age of twenty-one years.”
[31]
However, section 11(3) of the Black Administration Act
[24]
provided
that:
“
The capacity of a
Black to enter into any transaction or to enforce or defend his
rights in any court of law shall, subject to any
statutory provision
affecting any such capacity of a Black, be determined as if he were a
European: Provided that-
(b)
If the existence or extent of any right held or alleged to be held by
a Black or of any
obligation resting or alleged to be resting upon a
Black depends upon or is governed by any Black law (whether codified
or uncodified)
the capacity of the Black concerned in relation to any
matter affecting that right or obligation shall be determined
according
to the said Black law.”
[32]
The marriage of a candle wife to a seed raiser is customary law
issue. The question whether Moleme
was a major when the marriage
ceremony took place must, therefore, be determined in terms of the
customary law applicable at the
time and not in terms of Age of
Majority Act.
[33]
Moleme was still school going and could not have established his own
kraal. In 1976 he was ‘just
at home and unemployed.’
[25]
‘Home’ in this context refers, in my view, to his
parental home. There can also not be any doubt that Khudu entered
into this marriage on the insistence and with the encouragement of
the Radingwana royal family, knowing full well what her role
as
candle wife will entail and who the seed raiser is.
[34]
The Kgatla Commission accepted that the Baroka customary law of
succession is based on a system
of male primogeniture where the
eldest son born of the traditional leader and a candle wife, ascends
the throne. If the candle
wife fails to bear a male issue, a second
candle wife is sought from the same family. The same rule applies if
she died without
giving birth to a male issue. A seed raiser is
selected by the royal family in accordance with the principle of
seniority.
[35]
The Commission makes the following observation in its report:
“
The candle wife’s
position is a very significant position in the royal family and
community. An heir can marry a candle wife
either after the death of
his mother or after he is kgoshi and his mother is unable to perform
her role as a candle wife. (Monnig:
256 The Pedi Monnig HO 1967 Van
Schaik)”
[36]
According to Sentsho, the acting chief at that time was Pholo. Pholo
is his father and was still
alive. He asserts that his father Moleke
was the seed raiser and that he is the rightful successor.
[37]
The customary institution relating to a candle wife is, in my view, a
sui generis
institution. The sole purpose of a candle wife is
to bear the future senior traditional leader from a male identified
by the royal
family to be a seed raiser. The candle wife (who must be
from a royal kraal) is chosen by the royal family with the consent of
the community. The community contributes to the
lobolo
agreed
upon between the royal family and the family of the candle wife. The
parties entered freely into the relationship. A fiction
is created as
a result of this arrangement whereby children born of such relation
are regarded for all purposes as the legitimate
children of the
deceased traditional leader. The eldest succeeds the deceased.
[38]
Section 31 of the Constitution provides:
“
(1)
Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other
members of that community-
(a)
to enjoy their culture, practice their religion and use their
language, and
(b)
to form, join and maintain cultural, religious and linguistic
associations and other organs
of civil society.
(2)
The right in subsection (1) may not be exercised in a manner
inconsistent with any provision of the
Bill of Rights.”
[39]
A senior traditional leader is expected by the royal family and the
community to have relations
with a candle wife which was picked by
hand for him to produce his successor, even against his will, if his
wife is not of royal
blood. It matters little that his wife might be
against such an arrangement. A seed raiser is exactly what the name
tells us. His
purpose is to procreate a male child to become the next
senior traditional leader.
[40]
In an open and democratic society based on human rights, as set out
in the Bill of Rights, the
future of the cultural practice of
identifying a candle wife with the sole purpose of conceiving a child
with a seed raiser, will
no doubt, come under scrutiny as being
inconsistent with the Constitution.
[26]
I am nonetheless convinced that a great number of communities have
already made the required changes that the Constitution demands
to
accommodate woman as senior traditional leaders.
[27]
[41]
The Kgatla Commission recommended that this practice be followed for
the next senior traditional
leader to succeed the deceased leader,
without addressing the constitutional validity of the institution.
The Premier followed
suit. And so, also Sentsho and Moleme.
[42]
The constitutionality of the custom was not raised in the papers nor
in argument. Before I leave
the topic, a word of caution is
necessary; a court should not generalise when dealing with custom,
when no evidence is placed before
it what the particular customs and
traditions of a community are. It is quite common that customs are
differently practiced by
different communities. Experience, in this
court, has taught that litigants rarely, if ever, explain what the
custom is appertaining
to the dispute before the court, in the
papers.
[43]
The Commission erroneously treated the claimants as adversaries.
[28]
The
Commission allowed Sentsho and Moleme to adduce evidence in respect
of their competing claims.
Sentsho was criticised by the Commission for not calling
corroborating witnesses, presumably to “prove his case”
whilst
the
Commission had the obligation to investigate these competing claims
by calling Khudu, Moloke and members of the royal family,
or to
introduce expert evidence, if necessary, to determine the line of
succession of traditional leadership. It was necessary
particularly,
where there is evidence to suggest that the nomination of a candle
wife was not customary at the time and because
the royal family ‘sort
of condoned the situation’ that Khudu had a son the father of
which was not the nominated seed
raiser.
[44]
For a practice to be recognised as law, such practice must be
reasonable, certain and uniformly
practiced for a long time.
[29]
Customary law is vibrant and evolving, and must be allowed to
develop. The court is obliged to apply customary law as it was
practiced
at the relevant time. For that purpose evidence of what the
practice was at relevant the time is of importance to determine what
the custom was.
[45]
There was in addition, no clarity with regard the allegation that
Khudu divorced Moleme by returning
to her parental kraal nor whether
she was actually chased away because her position as candle wife was
unacceptable in terms of
custom as a result of her not having had
children with Moleme. In
Shilubana
and Others v Nwamitwa
[30]
the Constitutional Court stated:
‘
.
. . the practice of a particular community is relevant when
determining the content of a customary-law norm. As this court held
in
Richtersveld
,
the content of customary law must be determined with preference to
both the history and the usage of the community concerned.
“Living”
customary law is not always easy to establish and it may sometimes
not be possible to determine a new position
with clarity. Where there
is, however, a dispute over the law of a community, parties should
strive to place evidence of the present
practice of that community
before the courts, and courts have a duty to examine the law in the
context of a community and to acknowledge
developments if they have
occurred.’
[31]
[46]
The criticism levelled at the perfunctory manner with which the
commission was conducted itself
is, in my view, well founded. An
important witness, like Moloke, who is alive, was not called by the
Commission. The Commission
considered it prudent to obtain evidence
from Khudu by sending its researcher to consult with her. The failure
to utilise the opportunity
to consult Moloke. at the same time, is
simply unacceptable and is a glaring failure to obtain crucial
evidence from the person
who could have shed light on the custom, and
whether Moloke was a seed raiser or not. Khudu and Moloke are
presently both eldery
persons, but that alone cannot be a bar to them
being called to appear before the Commission to present evidence.
[47]
Counsel for the applicant in the heads of argument contended that the
failure to present an order
of court as proof that Khudu was divorced
prove that she was only chased from the community of the Baroka and
is also proof that
the Commission was biased.
[48]
I disagree. The proposition advanced has not taken into account that
the so-called customary
union was entered into in 1969. A candle wife
is traditionally not regarded as being married of the seed raiser. It
is a symbolic
marriage. Divorce in terms of customary law occurred
when the wife is returned to her family. Return of the
lobolo
is clear sign of divorce. Dissolution of the customary union is also
possible if the parties and the guardian of the wife consent
although
it is rare
[32]
. When a wife
intends to divorce her husband she returns to her parental home. She
reports her departure to the traditional leader.
If the husband
accepted her actions, they are considered to be divorced.
[33]
It is to be recalled that Khudu regarded Moleme as a child - which he
indeed was at the time. She returned to her parental home
after she
was chased away from the Baroka. As such, it is clear indication that
the community and the royal family did not condone
that she has
indicated that she will not have relations with the seed raiser to
bear a child whom she considered a child. This
arrangement was a
failure from inception. It is accepted, too, that custom does not
permit a candle wife to choose a seed raiser.
Anyone cannot be a seed
raiser. He is chosen by the royal family from the family of the
deceased traditional leader on the basis
of seniority (not age).
[49]
In terms of section 25(7) of the Framework Act, sections 2, 3, 4, 5,
and 6 of the Commissions
Act
[34]
apply, with necessary changes to the Commission.
Section
3 provides:
“
(1)
For the purpose of ascertaining any matter relating to
the subject of its investigations, a commission shall in
the Union
have the powers which a Provincial Division of the Supreme Court of
South Africa has within its province to summon witnesses,
to cause an
oath or affirmation to be administered to them, to examine them, and
to call for the production of books, documents
and objects.
(2)
A summons for the attendance of a witness or for
the production of any book, document or object before a
commission
shall be signed and issued by the secretary of the commission in a
form prescribed by the chairman of the commission
and shall be served
in the same manner as a summons for the attendance of a witness at a
criminal trial in a superior court at
the place where the attendance
or production is to take place.
(3)
If required to do so by the chairman of a
commission a witness shall, before giving evidence, take an oath
or
make an affirmation which oath or affirmation shall be administered
by the chairman of the commission or such official of the
commission
as the chairman may designate.
(4)
Any person who has been summoned to attend any
sitting of a commission as a witness or who has given evidence
before
a commission shall be entitled to the same witness fees from public
funds, as if he had been summoned to attend or had given
evidence at
a criminal trial in a superior court held at the place of such
sitting, and in connection with the giving of any evidence
or the
production of any book or document before a commission, the law
relating to privilege as applicable to a witness giving
evidence or
summoned to produce a book or document in such a court, shall apply.”
[50]
Section 3(2) authorizes the secretary of a commission to issue a
summons which must be in the
form prescribed by the commission’s
chairperson.
In
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma
[35]
the
constitutional court explained:
“
What
is apparent from the text of section 3(2) is that if the attendance
of a witness is sought, a summons should be issued, directing
the
witness to appear before the commission on a specified date. Under
the section the authority to issue the summons vests in
the
commission’s secretary who should sign the summons presented to
him or her if it is in the prescribed form. No substantive
application on affidavit is required for that purpose. Nor is the
witness to be summoned entitled to a hearing or an opportunity
to
make representations before the summons is issued.”
[36]
[51]
The Commission considered Khudu a necessary witness.
The
provisions of section 3(1) vest the Commission with powers equal to
those enjoyed by a High Court with regard to summoning witnesses;
taking their evidence under oath or affirmation and demanding the
production of documents and other objects which constitute
evidentiary
material.
If
Khudu was unable to testify before the Commission, as a result of ill
health,
[37]
or for whatever
other acceptable reason, her evidence should have been obtained on
commission, before a commissioner.
[38]
However, it could not have done so without a commissioner having been
appointed by the Commission for that purpose nor to have
the witness
Khudu testify before its own researcher and without her having taken
the oath.
[39]
Section 3(1) of
the Commissions Act affords the Commission the power to appoint a
commissioner for purposes of obtaining the evidence
of a witness who
is unable to testify before the Commission. The researcher was not
authorised by the Commission to act as commissioner
to take down the
evidence of Khudu under oath or affirmation, that much is clear from
his opening remarks at the commencement of
his question and answer
session.
[52]
The record of the proceedings before the Commission is not at the
disposal of this court. It
is accepted, for the purposes of this
judgment, that the Commission deliberated whether Khudu should be
called as a witness prior
to requesting the researcher to visit her
at her home and to record her version of the events in connection
with the identity of
the seed raiser who was allocated to her and
also whether she had chosen her own seed raiser.
[53]
The record shows that her evidence was not under oath or affirmation
and also that her evidence
was not recorded by a commissioner
appointed by the Commission for that purpose. In my considered
judgment the record of the evidence
of Khudu should not have been
admitted as evidence. I hold that her statement is inadmissible.
[54]
There is no doubt that the best evidence that could have been
presented, was the evidence of
Khudu, Moloke as well as those members
of the Bakgoma who were still alive and able to testify. It is
disappointing that the Commission
failed to call those persons to
testify at the hearing, save for admitting the recorded version of
Khudu.
[55]
Sentsho, in my view, cannot be heard to say that he was not afforded
an opportunity to be heard.
He participated at the hearing and was
invited to call witnesses, but elected not to do so. It is rather
surprising that he has
not elected to call both his parents, who,
after all, were at the centre of the controversy since 1969.
[56]
But, be that as it may, reference was made elsewhere in the judgment
of the meeting of the Bakgoma
in 1976 with the magistate when the
Bakgoma placed on record that Khudu was identified as the candle wife
and Moleme as the seed
raiser, despite being much younger than her.
These minutes by the magistrate is evidence that pointed to Moleme as
the seed raiser.
The Bakgoma made it very clear to the magistrate, in
1975, in a letter addressed to the magistrate prior to the meeting,
and also
at the meeting in 1976, that the seed raiser was Moleme.
That evidence supports the claim of Moleme. There is, moreover, no
dispute
that Sentsho is the son of Moleke. This court is by no means
convinced on the evidence presented that Sentsho is the rightful
heir.
[57]
None of the members of the royal family testified at the hearing. The
view of royal family who
is responsible for the identification of
their senior traditional leader was not placed before the Commission.
The royal family
is the guardian and custodian of the custom to
select a successor which is deeply rooted I the custom of the
community. Their role
cannot be over emphasised. It is true that the
application is supported by a number of members of the royal family.
I am not convinced
that they make up the whole of core members of the
royal family. Two opposing factions emerged within the royal family
as far back
as 1976 and they clearly still hold opposing views. The
royal family must speak from one mouth. The time has arrived that
they
do so. The decision whether a candle wife should be identified
and nominated is a function of the royal family. The Commission has
recommended that a candle wife be appointed without having had the
benefit of the views of the royal family.
[58]
The royal family must perform its function to identify a successor in
terms of the customs of
the Ba-Baroka Radingwana traditional
community. And to the extent necessary to identify an acting chief.
[59]
The recognition of the fourth respondent as acting traditional leader
dated 11 March 2021by a
faction of the royal family was done on the
basis that the recommendation by the Kgatla Commission is correct
without taking into
account that there is pending litigation to
review and set aside its recommendation.
[60]
The royal family must identify without delay a successor to the
vacant position of senior traditional
leader in terms of section 12
of the Limpopo Traditional Leadership and Institutions Act, Act 6 of
2005, and also identify an acting
senior traditional leader.
[61]
The first applicant is entitled to the costs. He was successful to
review the recommendation
and the decision of the premier. The first,
second and third respondents are liable to pay costs, such costs to
include the costs
subsequent upon the employment of two counsel.
ORDER.
(1)
The recommendation of the Kgatla Commission (the third respondent)
dated
12 April 2017 is reviewed and set aside.
(2)
The decision of the Premier (the first respondent) based on the
recommendation
of the Kgatla Commission dated 6 June 2017 is reviewed
and set aside.
(3)
The identification of the fourth respondent as acting senior
traditional
leader is reviewed and set aside.
(4)
The first, second and third respondents are ordered to pay the costs
jointly
and severally, the one paying the other to be absolved, such
costs to include the costs subsequent upon the employment of two
counsel.
GC
MULLER
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For the applicants
: Adv L Mfazi
: Adv P Hopane
2.
For the respondents
: Adv C Madavha
3.
Date judgment reserved : 11 August
2022
4.
Date judgment delivered : 4 October
2022
[1]
The first respondent.
[2]
Hereinafter called “the late Moleme”.
[3]
Hereinafter “the Baroka community”.
[4]
Hereinafter called “Sentsho”.
[5]
Hereinafter called “the Kgatla Commmission”.
[6]
Act 41 of 2003.
[7]
Hereinafter called “Khudo”.
[8]
The fathers of Podile and Pholo were brothers. Podile’s father
was the eldest.
[9]
Hereinafter
called Moloko
[10]
Sometimes also referred to as “the bull”.
[11]
Both sisters Mamogale and Mankopodi have passed away.
[12]
Premier Notice No 1: Provincial Gazette 1898 dated 8 February 2011.
[13]
Dikgapi Mmamushu Leutle. She was not of royal blood.
[14]
Act 6 of 2005. Hereinafter called “the Limpopo Act”.
[15]
The second applicant.
[16]
Act 3 of 2000. Hereinafter “PAJA”.
[17]
Only the relevant part of the document is quoted.
[18]
Not in years but in family relation to the deceased chief.
[19]
The first applicant Sentsho.
[20]
Act 41 of 2003. Hereinafter “the Framework Act”.
[21]
Traditional Leadership Dispute and Claim form dated 30 August 2012
of Moleme as well as his death certificate.
[22]
Grade 8 today.
[23]
Act 57 of 1972. Commencement date June 1972. The Act repealed
article 123 of the Volksraad Resolution December 1853.
[24]
Act 38 of 1927.
[25]
Report of the Magistrate
supra.
[26]
Section 9 and 10 of the Constitution.
[27]
Section 9 of the Constitution.
[28]
Sigcau
and Another v The President of the Republic of South Africa
and
Others (961/2020) [2022] ZASCA 121 (14 September 2022).
[29]
Van
Breda v Jacobs
1921 AD 330
,334.
[30]
2009 (2) SA 66 (CC).
[31]
Par
46.
[32]
Bekker JC and Coertze JJJ
Seymour’s
Customary Law
4th ed Juta (1982) 175.
[33]
Bennett TW
Customary
Law in South Africa
Juta (2004) (Reprint 2014) 271.
[34]
Act 8 of 1947.
[35]
2021 (5) SA 1 (CC).
[36]
Par 12.
[37]
Old
age alone is no excuse.
Trollip
v Tromp and Van Zweel
(1880) 1 NLR 32
;
Joseph
v Parker
1917 EDL 281.
[38]
Rule 38(3) to (8) of the Uniform Rules of the High Court could have
given guidance.
[39]
‘
British
Yeoman’ v Hunt Leuchars & Hepburn
1912
NLR 418
, 419-22.