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[2022] ZALMPPHC 53
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Thulare v Thulare and Others In Re: Thulare and Another v Thulare and Others (8767/2021) [2022] ZALMPPHC 53 (19 October 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO: 8767/2021
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: YES
REVISED.
In the matter between:
MANYAKU MARIA
THULARE
APPLICANT
and
MORWAMOHUBE ERNEST
THULARE
FIRST RESPONDENT
THOROMETJANE DEBORAH
THULARE
SECOND RESPONDENT
THE PREMIER, LIMPOPO
PROVINCE
THIRD RESPONDENT
THE MINISTER OF
CO-OPERATIVE
FOURTH RESPONDENT
GOVERNANCE &
TRADITIONAL AFFAIRS
THE PRESIDENT OF THE
REPUBLIC OF
FIFTH RESPONDENT
SOUTH AFRICA
LIMPOPO HOUSE OF
TRADITIONAL LEADERS
SIXTH RESPONDENT
In
Re
:
MORWAMOHUBE ERNEST
THULARE
FIRST APPLICANT
THOROMETJANE DEBORAH
THULARE
SECOND APPLICANT
and
MANYAKU MARIA
THULARE
FIRST RESPONDENT
THE PREMIER, LIMPOPO
PROVINCE
SECOND RESPONDENT
THE MINISTER OF
CO-OPERATIVE
THIRD RESPONDENT
GOVERNANCE &
TRADITIONAL AFFAIRS
THE PRESIDENT OF THE
REPUBLIC OF
FOURTH RESPONDENT
SOUTH AFRICA
LIMPOPO HOUSE OF
TRADITIONAL LEADERS
FIFTH RESPONDENT
JUDGMENT
MAKGOBA JP
[1]
This case brings back the sad memories in the tragic history of the
Bapedi Kingdom
in the Limpopo Province.
On 6 January 2021 the
King of the Bapedi nation, King Thulare Victor Thulare III died. At
the time of his death the late King Thulare
Victor Thulare III did
not have a candle wife and consequently there was no hereditary heir
to the throne. This created a vacuum
in the traditional leadership of
the Bapedi nation. As matters stood at the present moment, there is a
need for the Bapedi nation
to marry a candle wife in order for the
successor to the late King Thulare Victor Thulare III to be born.
The dispute in the
present matter is who should hold the fort in the meantime and who
should be a seed raiser to the candle wife
to be married.
[2]
The Applicant in the main application is Morwamohube Ernest Thulare
(“Morwamohube”).
He is the Respondent in the counter
application. The main Respondent in the application is Manyaku Maria
Thulare (“Manyaku”).
She is the Applicant in the counter
application.
For the sake of
convenience, and without any intention to disrespect them, they will
both be referred to by their first names.
[3]
In the main application the First Applicant, being Morwamohube seeks
an order declaring,
that the meeting held by the Thulare Royal Family
on 28 February 2021 was a properly constituted meeting of the royal
family. Furthermore,
he seeks an order declaring that the decision
taken by the Thulare Royal Family at the said meeting to appoint him
as the Acting
King of the Bapedi nation and seed raiser in the house
of the late King Victor Thulare III was a lawful decision of the
royal family.
[4]
In the counter application Manyaku seeks an order declaring:
4.1. that the
purported meeting by the individuals Morwamohube advances to be the
Thulare Royal Family on 28 February
2021 be set aside on account that
same was not a properly constituted meeting by a Royal Family,
alternatively the true and correct
Royal Family;
4.2. that the
meetings of the true Royal Family of the Royal Family of Thulare
Victor Thulare III held on 21 February
2021 and the 9
th
March 2021 be confirmed as a properly constituted meeting of the
Royal Family and for the purposes of appointing Manyaku as Queen
of
the Bapedi nation;
4.3. that the
decision taken by the Royal Family on the 21 February 2021 and 9
th
March 2021 that Manyaku be appointed as the Queen of the Bapedi
Nation be confirmed;
4.4. that
Morwamohube Ernest Thulare be excluded from the genealogy and lineage
of the House of Thulare Victor Thulare
III, and that he is not
eligible to be appointed King, Regent or otherwise of the Bapedi
Nation; and
4.5. that the
interdict order dated 5 August 2021 in her favour under case number
5197/2021 be confirmed and made a
final order of Court, under case
number 4253/2021.
[5]
Manyaku further sought an order against the President of the Republic
to recognise
her as the Queen of the Bapedi nation.
This prayer for such an
order against the President was abandoned at the hearing of this
matter as same was incompetent in that
it is beyond the powers of
this Court to grant such an order.
Factual Background
[6]
At the time of his death, the late King Thulare Victor Thulare III
did not have a
candle wife and consequently no child born of the
candle wife. The late King Thulare III therefore did not leave any
known hereditary
successor to the Kingship of the Bapedi nation.
This unfortunate
situation created a vacuum in the Bapedi Kingship. It is upon the
aforesaid predicament that the Thulare Royal
Family deemed it
necessary to convene a meeting to deliberate on the issue of
succession and to appoint an Acting King and seed
raiser in the house
of the late King Victor Thulare III.
[7]
On 31 January 2021, the royal family constituted a meeting to deal
with the issue
of the succession and there was no conclusion. The
meeting was then adjourned to be convened on 28 February 2022. The
royal family
meeting took place on the 28 February 2021 at
Mohlaletse, Tjate III, whereupon it was resolved that Morwamohube as
the eldest surviving
brother of the late King Victor Thulare III, be
appointed as the Acting King and seed raiser in the house of his late
brother in
accordance with the Bapedi custom and tradition.
[8]
The appointment of Morwamohube as alluded to above was apparently
made in accordance
with a recognised and long-established tradition
followed in the event of a King, Queen, principal traditional leader,
senior traditional
leader, headman, or headwoman having died without
leaving a successor.
[9]
Subsequent to the resolution taken at the royal family meeting on 28
February 2021,
the Council of the Elders (Bakgoma and Bakgomana) was
duly informed, and the resolution was acknowledged and supported.
Thereafter,
all protocols regarding the announcement of the
resolution, lodging of the resolution with the office of the Premier
of the Limpopo
Province were followed and the resolution was duly
acknowledged.
[10]
In the meantime, Manyaku and five (5) of her supporters convened a
meeting on 21 February 2021.
The said meeting was convened even
though there was an agreement to hold a royal family on 28 February
2021. It is alleged by Manyaku
that, her said meeting with her five
(5) supporters on 21 February 2021 constitutes a proper meeting of
the Thulare royal family.
It is common cause that
in the said meeting of the 21 February 2021, Manyaku was chosen to be
the Queen or Regent of the Bapedi
nation.
[11]
Amid the abovementioned process of announcing the resolution, Manyaku
launched an application
with this Court (under case no. 4235/2021) to
inter alia
interdict Morwamohube from claiming that he is the
rightful successor and King of the Bapedi nation.
It bears further
mentioning that Manyaku’s aforesaid application was preceded by
an application launched by Morwamohube (under
case number 4064/2021)
seeking an order to compel the Premier to consider and make a
decision concerning his request for recognition
as the Acting King of
the Bapedi nation in terms of the relevant statutes. That application
was withdrawn.
Manyaku initiated a
further application (under case no. 5197/2021) in essence
interdicting Morwamohube and others from implementing
the decision by
the Thulare royal family taken at the meeting of 28 February 2021
pending finalization of her application under
case no. 4253/2021.
Subsequently, Morwamohube
launched the present application (case no. 8767/2021) seeking the
abovementioned declarators in paragraph
[3].
[12]
For purposes of expediency and to bring the disputes between the
parties to finality, Morwamohube
sought an indulgence from this Court
to have all the applications pending before the Court to either be
subjected to case management,
consolidated and/or heard together.
A case management meeting
between the Judge President and the legal representatives of the
parties was held on the 24
th
June 2022 wherein it was
ordered that the various pending applications be decided under case
number 8767/2021. Applications filed
under case no. 4064/2021 and
case no. 2570/2022 were withdrawn.
[13]
Furthermore, the interdict granted under case no. 5197/2021 remains
operational pending finalization
of the application under case no.
8767/2021. As per the aforesaid directives, Manyaku filed a counter
application to Morwamohube’s
application under case no.
8767/2021. Amongst others, Manyaku seeks an order compelling the
President to appoint her as the Queen
of the Bapedi nation. The said
counter application is opposed by Morwamohube and the President of
the Republic and the Limpopo
House of Traditional Leaders.
[14]
The fact that the late King Victor Thulare III never married a candle
wife (mother of the heir
apparent) created this complication which is
the subject matter of the dispute between the parties.
The main contestants in
this matter are Manyaku and Morwamohube.
Issues to be Decided
[15]
The main dispute centers around the said two meetings, that is, the
meeting of the 21 February
2021 and that of 28 February 2021.
The issues to be decided
in this matter are:
15.1. Whether the group
of persons who gathered at a meeting held on 21 February 2021 and 9
March 2021 constituted the true Royal
Family of the late King Thulare
Victor Thulare III;
15.2. Whether the person
identified as Acting King/Queen on 21 February 2021 and 9 March 2021,
being Manyaku, qualifies as such
in terms of the customary law of the
Bapedi nation;
15.3. Whether a group of
persons who gathered at a meeting held on 28 February 2021
constituted the true Royal Family of the late
King Thulare Victor
Thulare;
15.4. Whether the person
identified as Acting King and seed raiser on 28 February 2021, being
Morwamohube qualifies as such in terms
of the customary law of the
Bapedi nation;
15.5. Whether Morwamohube
is the biological son of the late King Rhyne Sekhukune III, the
latter being the father of the late King
Thulare Victor Thulare III;
15.6. Whether Makgalake,
the mother of Morwamohube was married to the late King Rhyne
Sekhukune III in terms of customary law; and
15.7. Whether the interim
interdict order obtained by Manyaku against Morwamohube and others on
5 August 2021 under case number
5197/2021 should be confirmed and
made a final order of Court under case number 4253/2021.
Legislative Framework
[16]
The Constitution of the Republic of South Africa, 1996 recognises the
institution of traditional
leadership.
In addition to this there
are national legislation as well as provincial legislation that
establish and regulate the institution
of traditional leadership.
[17]
Section 211 of the Constitution which provides for the recognition of
traditional leadership
reads as follows:
(1)
The institution, status and role of traditional leadership, according
to customary law are recognized subject
to the Constitution.
(2)
A traditional authority that observes a system of customary law may
function subject to any applicable
legislation and customs, which
includes amendment to or repeal of that legislation or those customs.
(3)
The Courts must apply customary law when that law is applicable,
subject to the Constitution and any
legislation that specifically
deals with customary law.
[18]
Section 212 reads as follows:
“
(1)
National legislation may provide for a role for traditional
leadership as an institution at local level on
matters affecting
local communities.
(2)
To deal with matters relating to traditional leadership, the role of
traditional leaders, customary law and
the customs of communities
observing a system of customary law –
(a)
national or provincial legislation may provide for the establishment
of houses of traditional leaders,
and
(b)
national legislation may establish a council of traditional leaders.”
[19]
The national legislation referred to by the Constitution is the
Traditional and Khoi-San Leadership
Act 3 of 2019 (“the
National Act”) which replaced the
Traditional Leadership and
Governance Framework Act 41 of 2003
. The provincial legislation
referred to in the Constitution is the Limpopo Traditional Leadership
and Institutions Act 6 of 2005
(“The Limpopo Act”). The
Limpopo Act is subject to the National Act. Both the National Act and
the Limpopo Act (“collectively
referred to as “The Acts”)
make provisions for the appointment of traditional leaders, including
acting traditional
leaders. In case of the position of the King the
Acts provide for an Acting King and a Regent.
[20]
The National Act defines a Regent as a person who holds a traditional
leadership position in
a temporary capacity when the successor to
that position is still a minor.
[1]
The Limpopo Act defines an acting traditional leader as someone who
holds the position on temporary basis where the successor has
not yet
been identified by the royal family concerned.
[2]
In the circumstances of
this case the definition of a Regent as per section 12 (1)(a)(i) of
the National Act is not applicable as
there is no incumbent who is
still a minor.
[21]
The provision for the recognition of the acting traditional leader is
provided for in terms of
section 13 of the Khoi-San Act which
provides as follows:
“
13
Recognition of acting traditional and Khoi-San leaders
(1)
Within 90 days of becoming aware of any of the instances mentioned in
subparagraphs (i), (ii) and (iii)
–
(a)
a royal family must identify a suitable person to act as a king,
queen, principal traditional
leader, senior traditional leader,
headman or headwoman, after taking into account whether any of the
grounds referred to in section
9(1) or 16(11)(h) or 16 (14) apply to
such person; or
(b)
a royal family or Khoi-San council, as the case may be, must identify
a suitable person to act
as a senior Khoi-San leader or branch head,
as the case may be, after taking into account whether any of the
grounds referred in
section 11 (1) or 16 (14) apply to such person,
Where –
(i) a successor –
(aa)
to the hereditary position of a king, queen, principal traditional
leader, senior traditional
leader, headman, headwoman or senior
Khoi-San leader has not been identified by the royal family concerned
in terms of section
8 or 10, as the case may be; or
(bb) …”
The Royal Family
[22]
The Acts define royal family as;
the core customary institution or
structure consisting of immediate relatives of the ruling family
within a traditional or Khoi-San
community, who have been identified
in terms of customary law or customs, and includes, where applicable,
other family members
who are close relatives of the ruling family
.
[23]
In the matter of
Maxwele
Royal Family v Premier of the Eastern Cape Province
[3]
it was held as follows:
“
[67]
Flowing from the definition of a royal family, it must be accepted
that the requirements for a valid or properly constituted
royal
family are:
(i)
it must consist of immediate relatives of a ruling family;
(ii)
within a traditional community;
(iii)
who have been identified in terms of custom, and includes, where
applicable, and
(iv)
other family members who are close relatives of the ruling family;
(v)
it is the core customary institution or structure.
[24]
In
Mphephu
v Mphephu – Ramabulana and Others
[4]
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
Manyaku purported to hold a meeting of the royal family on 9 March
2021 but the said meeting included 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 on 9 March 2021. More will be said about this aspect later in
this judgment.
[25]
The role and position of the Royal Family is of great significance in
traditional leadership.
The Royal Family is the fabric of traditional
leadership. The case of
Maxwele
Royal Family and Another v Premier of the Eastern Cape and Others
[5]
,
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.”
[26]
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.
It is clear from the
provisions of Section 17 of the Limpopo Act that it is a requirement
that a royal family must, when meeting
to discuss matters emanating
from this Act, function in accordance with customary law of the
traditional community concerned.
Who are members of the
Royal Family in the present case?
[27]
In the light of the definition of the Royal Family in terms of the
Acts as shown above, it will
be inappropriate to refer only to the
house of the late King Victor Thulare III without having regard to
the house of his father,
being the late King Rhyne Thulare Sekhukhune
III. I am therefore inclined to go into the genealogy of the family
of the late King
Rhyne Thulare Sekhukhune III.
[28]
I have been referred to the genealogy of the family of the late King
Rhyne Thulare Sekhukhune
III which is schematically illustrated on
the next page of this judgment. For the reasons that may appear later
in my judgment,
I accept that this indeed represent the genealogy of
the family of the late King Rhyne Thulare Sekhukhune III from where
the Kingship
of the late King Thulare Victor Thulare originated.
(Find picture in PDF)
[29]
In the meeting of 21 February 2021 only 6 (six) people attended
including Manyaku. Those people
are Manyaku’s son, Phatudi
Thulare, the late King Victor Thulare III’s two wives, Phindile
and Zimkitha, Ramphelane
Phillip Thulare and Lekgolane
Thulare-Maphumulo.
According to Manyaku
these 6 (six) people constitute the royal family of the Bapedi
nation.
On the other hand the
meeting of 28 February 2021 was attended by 46 (forty-six) people
whose names appear on annexure “
AA12
” of
Morwamohube’s answering affidavit in the counter application.
[30]
From the statutory definition of royal family, it is quite clear that
the royal family consists
of immediate relatives of the ruling family
and, where applicable, other family members who are close relatives
to the ruling family.
Therefore, it ought to
follow that the members of the royal family
in casu
consist of
the immediate relatives of the ruling family (that is the house of
the late King Victor Thulare III) and other family
members who are
close relatives of the ruling family, to wit, Ramphelane Thulare,
Thorometjane Thulare, Diphala Thulare (Ntwampe)
(who are the living
siblings of the late King Rhyne Sekhukhune III) as well as the late
King Victor Thulare III’s other siblings,
half-brothers as well
as the other close relatives.
[31]
In the light of the description of the royal family set out
hereinabove, taking into cognizance
that the late King Victor Thulare
III never married a candle wife, it ought to follow that his paternal
uncles and aunts, including
his half-brothers constitute members of
the royal family. This include also those six people who attended the
meeting of 21 February
2021. The attendance of that meeting should
not have been limited to the six people only.
[32]
I come to the conclusion that the people who attended the royal
family meeting on the 28 February
2021 are members of the royal
family who are required to make the decisions, including the
identification of an Acting King and
seed raiser.
The contention by Manyaku
that the royal family consists only of herself, her two sons, her
daughter, one uncle and two common wives
of the late King Victor
Thulare III is rejected.
[33]
Manyaku initially disputed the Thulare royal family meeting of the 28
February 2021. However,
she later admitted that the meeting did take
place but was disrupted. She further disputes that the people who
attended the Thulare
royal family meeting of 28 February 2021 are
members of the royal family. Furthermore, she raises an issue that
she was not invited.
[34]
I reject Manyaku’s contention in this regard and accordingly
make a finding that those
people who attended the royal family
meeting of 28 February 2021 constituted the Thulare Royal Family.
On the other hand, the
composition of the said meeting of 21 February 2021 attended by
Manyaku and her children together with Ramphelane
alone does not
constitute the royal family meeting of the Bapedi nation.
Meeting of 21 February
2021
[35]
It is not in dispute that on 31 January 2021 a royal family meeting
was held which meeting was
postponed to 28 February 2021. Before that
meeting of 28 February 2021 could be held, Manyaku and her group of
five held on 21
February 2021 what they term a royal family meeting.
The meeting of 28 February 2021 eventually took place. The meeting of
the
21 February 2021 was attended by only six (6) people, namely,
Manyaku, Phatudi Thulare, Ramphelane Thulare, Lekgolane Thulare –
Maphumulo and the late King Victor Thulare III’s two wives,
Phindile and Zinkitha.
[36]
The handwritten minutes of the said meeting of 21 February 2021 are
reproduced hereunder.
[6]
[37]
The following was written under the heading “
Appointment
”:
“
The
meeting resolved to appoint Queen mother Manyaku Thulare as the Queen
Regent and to hold the…”
The rest is not legible.
[38]
There is also a document which identifies itself as: “MINUTES
OF THE (INNER CIRCLE) IMMEDIATE
THULARE ROYAL FAMILY HELD ON 21
FEBRUARY 2021 AT”. The subject of the said meeting was the:
“APPOINTMENT OF THE ACTING
KING/QUEEN IN THE PLACE OF THE LATE
THULARE III THULARE”. In that document it is stated that:
“SENIOR KGADI VICTORIA
LEKGOLANE THULARE-MAPHUMULO SUGGESTED
THE QUEEN-MOTHER MANYAKU THULARE TO ACT ON BEHALF OF THE LATE KING
THULARE VICTOR THULARE
DUE TO THE FACT THAT SHE HAS BEEN CLOSE TO HIS
SON THE KING AND ACTIVELY INVOLVED IN THE ADMINISTRATION OF THE
AFFAIRS OF THE KINGDOM
AND THAT SHE SHOULD ACT UNTIL THE TIME A
CANDLE-WIFE (QUEEN) IS MARRIED.”
Thereafter the
Queen-Mother was requested to give her succession plan and it is
recorded that: “THE QUEEN-MOTHER INDICATED
THAT, A CANDLE WIFE
WOULD BE MARRIED AND THAT ONE OF THE LATE KING’S SONS WHO ARE
STILL MINOR WILL BE ELIGIBLE TO RAISE SEEDS
WITH THE CANDLE WIFE
(QUEEN) AND BEAR THE NEXT KING, SEKHUKHUNE IV.”
[39]
The next document attached is titled the: DECISION OF THE INNER
THULARE ROYAL FAMILY MEETING
and the subject of the said meeting is:
APPOINTMENT OF THE ACTING KING/QUEEN OF BAPEDI. The document reads as
follows:
“
On
the 21
st
February 2021, the Thulare
Royal Family convened to appoint an Acting King/Queen in the place of
the late King Thulare III Thulare.
The royal family
anonymously agreed that the Queen-mother Manyaku Thulare, the mother
of the late King Thulare III should carry
the fort and act as the
Queen until the candle wife (Queen) is married.
Upon the marriage of
the candle-wife the appointment of the Queen-mother will be relooked.
The decision was
signed by all members of the royal family present.”
[40]
The third document is simply headed Agenda and the Contents thereof
are more or less the same
as the first document mentioned hereinabove
which is headed: MINUTES OF MEETING OF THE (INNER CIRCLE) IMMEDIATE
FAMILY OF THE LATE
THULARE ROYAL FAMILY. In both documents the
Chairperson reminds those present about the upcoming meeting of 28
February 2021.
[41]
The difference between the three (3) documents is that in the first
document, that is, the minutes,
it is recorded that Manyaku is to act
on behalf of the late King Victor Thulare III, whereas in the second
document it simply suggests
that Manyaku Thulare should act as the
Queen until the candle wife is married. There is a big difference
between the two decisions
as one cannot act on behalf of a deceased
King, but one can act as a Regent on behalf of a minor.
It is therefore confusing
on whether Manyaku was appointed as a Queen, a Regent or an Acting
Queen.
The decision of the so
called royal family taken on the 21 February 2021 does not comply
with the provisions of section 17 (2)(c)
of the Limpopo Act as
stipulated in paragraph [26] above.
[42]
Manyaku and her group purported to hold another meeting on the 9
March 2021. This meeting was
attended by what she referred to as
“Leaders of Various Magoro (Dikgoro)” that is the clans.
The purpose of the
meeting was to endorse or approve the decision taken at the meeting
of 21 February 2021.
The following members of
the so-called “Magoro” attended the meeting, namely:
1.
Ntwampe Issac Mampuru;
2.
Motubatse Mampuru;
3.
Mohlabani Morewane Hlakudi;
4.
Phalele Mabogoane;
5.
Mapurunyane Makgata;
6.
Baloshi Samuel Phala;
7.
Shikwane Philemon Maleka;
8.
Setlagane Obed Thipa Maredi;
9.
Kgetjepe Mogwadi Marabe.
None of these people bear
the surname of Sekhukhune or Thulare. It is not indicated how they
are related to the family of the late
King Victor Thulare III.
[43]
A roll call or register of the aforesaid attendees at the meeting of
9 March 2021 does not indicate
the designation of each of them. It is
not indicated that anyone of those persons is a member of the Royal
Family of the late King
Victor Thulare III.
[7]
In the circumstance such
meeting was not a true and lawful meeting of the royal family as
required in terms of Section 17 of the
Limpopo Act. Whatever decision
that was taken at the meeting of 9 March 2021 is therefore null and
void.
Meeting of 28 February
2021
[44]
At the time of his death on 6 January 2021 the late King Victor
Thulare III had not as yet married
a candle wife and as such there
was no hereditary successor born or identified at the time.
There was therefore a
need for the appointment of an Acting King/Queen and a seed raiser.
[45]
The National Act provides that the royal family must identify a
suitable person to act as a King/Queen
within ninety (90) days of
becoming aware that a successor to the hereditary position of a King
has not been identified.
[8]
It
is common cause that the royal family met on 31 January 2021 in order
to deal with the issue of succession as a result of the
passing away
of the late King Victor Thulare III. It is also common cause that the
said meeting was adjourned to 28 February 2021.
Indeed, the meeting
continued on 28 February 2021. From the record it does appear that
Manyaku did not attend the said meeting as
she claimed that she was
not invited and her group allegedly held a meeting on the 21 February
2021.
[46]
Section 17 of the Limpopo Act prescribes the requirements of a royal
family meeting. It requires
that a royal family must keep a minute
book in respect of each meeting and record, (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.
[9]
[47]
It is quite clear from the minutes of the meeting of 28 February 2021
that the provisions of
section 17 have been complied with. The date,
time and the place of the meeting is clear from the minutes. The
names and the designation
of the members of the royal family present
in such a meeting have been recorded. The decision of the meeting has
been clearly recorded.
The submission by Manyaku that the meeting of
28 February 2021 does not comply with the provisions of section 17 of
the Limpopo
Act does not have merits at all.
[48]
Various members of the royal family who attended the said meeting of
28 February 2021 filed affidavits
to confirm their attendance. When
it was also pointed out to Manyaku that even Prince Ramphelane
Thulare, a member of her grouping
also attended the meeting, her
denial of the existence of the meeting of 28 February 2021 became
untenable and eventually her story
changed from no meeting to the
meeting was disrupted.
Manyaku even went on to
state that she was not invited to the said meeting. Taking into
account that she was part of the meeting
of the 31
st
of
January 2021, which was adjourned or postponed to 28 February 2021,
the submission that she was not invited is untenable and
is rejected.
It is quite clear that
Manyaku would make any allegation in order to try and discredit the
properly constituted royal family meeting
of 28 February 2021.
[49]
As indicated earlier in this judgment, the decision taken in the
meeting of 21 February 2021
does not comply with the requirements and
provisions of section 17 of the Limpopo Act.
On the other hand, the
decision taken in the meeting of 28 February 2021 was clearly set out
and all the persons who attended the
meeting (forty-six (46) in
number) gave their designations as “Bakgoma”, “Bakgomana”
and “Dikgadi”.
Amongst the said “Dikgadi”
were Thorometjane Thulare and Diphala Thulare (Ntwampe) the two being
the siblings of the
late King Rhyne Sekhukhune III and the aunts of
the late King Victor Thulare III.
[50]
The decision taken in the meeting of 28 February 2021 is recorded as
follows:
“
4.1
Succession
Bakgoma and Bakgomana
deliberated on the issue of succession.
Two reports were
submitted for consideration as follows:
1.
Prince Ramphelane presented a report of meetings held during the
month of February.
He indicated that in their deliberation they
agreed that Manyaku Thulare should succeed Thulare III.
2.
Report number two from the children of King Sekhukhune III was
presented by Tswaledi
Sekhukhune. In his report he outlines history
of succession starting from King Sekhukhune I to King Thulare II
where the uncle
was the only one succeeding where there is no candle
wife.
In conclusion the
meeting unanimously agreed that the half-brother to the late King
Thulare III by the name of Prince Morwamohube
Thulare should succeed
his brother to raise seed in his house.
The chairperson made
an announcement of the successor.”
[51]
In my view the decision taken at the meeting of 28 February 2021 is
clearly set out and recorded.
It was a unanimous decision taken in
the presence of Ramphelane Thulare who earlier came up with the name
of Manyaku as a candidate
to succeed the late King Victor Thulare
III.
[52]
I therefore make a finding that the meeting of 28 February 2021 was a
duly constituted meeting
of the royal family of the late King Victor
Thulare III.
Consequently, the
decision taken at the said meeting is valid.
Marriage of the Late
King Rhyne Sekhukhune III and Makgalake, the Mother of Morwamohube
[53]
Manyaku disputes the marriage of the Mother of Morwamohube
(Makgalake) to the late King Rhyne
Sekhukhune III.
In her affidavit she
states:
“
10.4.4
The Honourable Court will note that Fifth Respondent is not included
in the genealogy neither is his mother as she was never
married by
customary union or otherwise to anyone, least of all to my husband as
the statement claims.
10.4.5 The allegation
of the mother of the Fifth Respondent being the wife of my husband,
the late Rhyne Thulare Sekhukhune III
only surfaced as recently as
after the funeral of my son the late Thulare Victor Thulare III and
neither the Fifth Respondent or
his mother and his siblings were
known to the family at all.”
[54]
If Manyaku is to be believed, the whole Thulare royal family is not
aware of Makgalake’s
marriage to the late King Rhyne Sekhukhune
III and they only became aware after the funeral of his son, the late
King Thulare Victor
Thulare III, that is in 2021.
The family that it is
alleged was not aware of the existence of the marriage between King
Rhyne Sekhukhune III and Makgalake would
include the two sisters,
(Thorometjane and Diphala) to the late King Sekhukhune III. Manyaku
does not attach to her denial any
affidavit from the siblings of the
late King Rhyne Sekhukhune III to substantiate this outrageous
allegation.
[55]
On the other hand, the two (2) sisters of the late King Rhyne
Sekhukhune III, being Thorometjane
Deborah Thulare and Diphala Asnath
Ntwampe, confirm that their brother was married to Makgalake.
[10]
And further the delegates who were involved during the day of the
marriage/wedding between King Sekhukhune III and Makgalake have
also
filed affidavits. In addition, thereto there is a funeral programme
of the late King Rhyne Sekhukhune III and the minutes
of the Nhlapo
Commission both of which confirm that the late King Sekhukhune III
was married to four (4) wives and those four (4)
wives included
Makgalake.
[56]
Mr. Mojapelo, counsel for Morwamohube submitted, correctly in my
view, that there is at least
on the record eight undeniable pieces of
evidence that points to the marriage between Makgalake and the late
King Sekhukhune III.
And those are:
56.1. An affidavit by
Thorometjane Deborah Thulare, the sister of the late King Sekhukhune
III that confirms that Makgalake was
married to the late King
Sekhukhune III. She also confirms that Morwamohube is the first born
of the marriage between King Rhyne
Sekhukhune III and Makgalake.
56.2. Kgoshigadi Diphala
Asnath Ntwampe who is also the sister to the late Rhyne Sekhukhune
III, also confirms the marriage between
Makgalake and the late King
Sekhukhune III.
56.3.
The affidavit of Moruthane Sekhukhune who was the delegate for the
marriage of Mante, who was married to the late King Sekhukhune
III on
the same day with Makgalake in 1973. He confirms that the late King
Sekhukhune III married both Makgalake and Mante on the
same day in
1973 and further confirms that Morwamohube is the first-born son of
the late King Sekhukhune III.
[11]
56.4.
The affidavit of Sekwati Phillemon Thulare, the half-brother of the
late King Rhyne Sekhukhune III who grew up together with
the late
King Rhyne Sekhukhune III and went to the same initiation school. He
is the uncle to the late King Victor Thulare III
and Morwamohube. He
also confirms the marriage of the late King Sekhukhune III to two (2)
wives on the same day, and those two
(2) wives being Makgalake and
Mante. He further states that; “
The
marriage of Makgalake was given birth to a son Morwamohube the
Applicant, son of King Sekhukhune III”
.
[12]
56.5.
The affidavit of Bishop Kgetjepe Stephen Makotanyane who also
confirms that the late King Sekhukhune III had four (4) wives,
which
wives included Makgalake. And he further confirms that Morwamohube is
the first-born son of Makgalake and King Rhyne Sekhukhune
III.
[13]
56.6.
The affidavit of Motubatse Frans, who was the delegate for the
marriage of Manyaku. He confirms that during the marriage of
Manyaku
she was told about the two (2) wives of the late King Sekhukhune
III.
[14]
56.7.
The Nhlapho Commission report which records that the late King
Sekhukhune III had four (4) wives, and those four (4) wives
included
Makgalake. And further the commission records that Makgalake and the
late King Sekhukhune III had three (3) children and
those children,
include Morwamohube, although his name has been misspelled as
Morwamoche.
[15]
56.8.
The funeral programme (obituary) of the late King Sekhukhune III
which records that the late King Sekhukhune III was survived
by four
(4) wives.
[16]
[57]
In addition, thereto, an identity book of Makgalake which was
re-issued in 2011 clearly shows
that her surname was Thulare.
[17]
I agree with Counsel that
the denial of the above pieces of evidence of marriage between King
Sekhukhune III and Makgalake by Manyaku
puts a serious dent on her
credibility in this matter.
[58]
Manyaku attaches the affidavit of Phillip Ramphelane Thulare the
brother to the late King Sekhukhune
III. What is telling about this
affidavit is that there is nowhere that Ramphelane disputes the
marriage between Makgalake and
his brother the late King Sekhukhune
III.
[18]
Manyaku attached
affidavits of people who at best can only state that they are unaware
of the marriage between King Sekhukhune III
and Makgalake.
There is also an
affidavit of Frans Morewane Hlakudi who alleges to have been a
delegate in the marriage of Manyaku. He only denies
that Manyaku was
ever told about “
Any wives of the late Sekhukhune III as
same is not and have never been part of the Bapedi customs”
.
Again in this affidavit, Hlakudi does not deny the existence of
marriage between King Sekhukhune III and Makgalake.
[59]
Instead of dealing with the affidavits of the sisters to the late
King Rhyne Sekhukhune III confirming
the marriage, Manyaku chooses to
raise issues which are irrelevant. For an example, she raises an
issue about Thorometjane Deborah
Thulare having taken away a leopard
skin regalia and further raises an issue about Diphala Asnath Ntwampe
not being a senior Kgadi.
The affidavits on the late King Sekhukhune
III by his sisters Diphala and Thorometjane remain unchallenged.
On the issue of the
mentioning of four (4) wives in the Nhlapo Commission, Manyaku simply
states that such was done without her
involvement or consultation.
[60]
The totality of evidence before me has proved that there was indeed a
customary marriage between
the late King Rhyne Sekhukhune III and
Makgalake. This marriage took place during 1973 when Morwamohube was
eight years old as
he was born in 1965.
The argument by Counsel
for Manyaku that in 1995 Makgalake allegedly got married to a certain
Mr. Mabetha at Penge, does not take
this case any further. By 1995
Morwamohube was already a grown up man of 30 (thirty) years.
The alleged marriage of
his mother to another man does not affect Morwamohube’s status
as the son of the late King Rhyne Sekhukhune
III.
Traditional Leadership
Practice of the Bapedi (Sekhukhune) Nation
[61]
The proper and undisputed traditional leadership practice of the
Bapedi nation is summed up in
the affidavit of Sekwati Philemon
Thulare as follows
[19]
:
“
The
Bapedi nation thereafter married Lekgolane the daughter of Khoshi
Ramphelane of Manganeng Chiefdom in 1939 as candle wife of
King
Thulare II my father. The number of the wives of King Thulare II now
became five (5) in number, unfortunately King Thulare
II did never
have enough life. He passed away soon in 1941. Candle wife Lekgolane
also passed away in 1944.
The younger brother of
the late King Thulare II, namely Morwamoche III (“the nickname
of Morwamohube”) was according
to custom, practice and usage of
Bapedi nation appointed Acting King and seed raiser in the stead of
his elder brother, King Thulare
II.
The Acting King
Morwamoche III and the Bapedi nation went back to Manganeng Chiefdom
and married the younger sister of the late
candle wife Lekgolane as
candle wife and surrogate for Lekgolane in the house of King Thulare
II, namely Mankopodi.
Acting King Morwamoche
III (“nickname of Morwamohube”) and the candle wife
Mankopodi procreated King Sekhukhune III,
the father of King Thulare
III and Morwamohube, the Applicant. Therefore, King Sekhukhune III
biologically is the son of the Acting
King Morwamoche III and
surrogate candle wife Mankopodi and sociologically is the rightful
son of King Thulare II and candle wife
Lekgolane.
[62]
Sekwati Phillemon Thulare went further to explain that the Kingship
of King Sekhukhune III and
his candle wife Manyaku is redundant as it
has now passed to their son the late King Victor Thulare III and
Morwamohube, the Applicant.
He further states that the royal family
is fully aware that the Kingship of the Bapedi nation is now rested
on the line of the
new generation of the late King Victor Thulare
III. And since the late King Victor Thulare III passed away without a
candle wife,
his brother Morwamohube is obliged by custom to
accomplish what the late King has left without accomplishing.
[63]
This was confirmed in the North Gauteng High Court per Mlambo JP in
the matter of
Kgoshikgolo
Kgagudi Kenneth Sekhukhune and Another v The Commission on
Traditional Leadership Disputes and Claims and Others
[20]
,
at paragraph 46 which provides as follows:
“
[46]
The Commission dealt with this issue and stated: “Assuming that
Sekhukhune III could not ascend the throne for any reason,
according
to the customs and customary law of Bapedi, the next eligible son
would be the second born son of the candle wife [Mankopodi],
in this
case, Ramphelane. Failing which the sons of Thulare from the other
houses in order of rank: Malekutu, Phetedi, Sekwati,
Matsebe,
Phatudi, Morore and Mafete respectively.
In
the event that any of the sons within the house of the deceased king,
cannot take over the most senior mokgoma (being the brother
of the
deceased king), should raise seed on behalf of the deceased king
.
After the death of Thulare II, Morwamoche III brother of Thulare II
raised seed on behalf of his brother. [our emphasis]
[64]
This is also confirmed by Ramphelane Thulare who stated in a meeting
of the 21
st
February 2021 that “
Bogoṧi is
forward moving – meaning that the most senior members of the
royal family now are the children of the late
King Thulare III and
his house”
. The most important factor that Ramphelane
forgot to mention was that the late King Victor Thulare III died
without a candle wife
as a result he has not as yet established his
house, however his house needs to be resurrected. And that should be
done by marrying
a candle wife on his behalf.
[65]
In the minutes of the meeting of 21 February 2021, wherein Manyaku
was nominated, she was apparently
given an opportunity to outline her
succession plan. In the said succession plan it is recorded as
follows:
“
Rangwane
Phillip Thulare requested the Queen-Mother to outline the succession
plan.
·
The Queen-Mother indicated that a candle wife
would be married and that one of the late King’s sons who are
still minor will
be eligible to raise seeds with the candle wife
(Queen) and bear the next King Sekhukhune IV”.
[66]
What Manyaku effectively means is that a candle wife would have to be
married on behalf of the
late King Victor Thulare III who died
without a candle wife. This is indeed according to tradition and
custom.
However, she further
suggests that the sons of King Victor Thulare III will then have to
procreate with the candle wife who has
been married to their father
in order to produce the next King. With respect, that is tantamount
to a son sleeping with his mother
or his father’s wife. Such a
taboo can never be tolerated by the Bapedi nation or any
self-respecting African nation for
that matter. At the hearing of
this matter I raised this taboo with Mr. Coetzee, Counsel for
Manyaku. In response Mr. Coetzee conceded
that such a practice will
also never be accommodated in the culture of White People.
What Manyaku is
suggesting about the succession to the Kingship of Bapedi nation is
not according to custom and is therefore rejected.
Conclusion
[67]
I am of the view that Morwamohube’s identification as the
Acting King and seed raiser in
the house of his late brother King
Victor Thulare III follows the custom and the long-established
tradition of the Bapedi nation
as outlined in paragraphs 61-63
hereinabove.
In terms of the family
genealogy (paragraph 28 hereinabove) Morwamohube is placed second in
rank to the late King Victor Thulare
III as he is the eldest
surviving son of the late King Rhyne Sekhukhune III.
[68]
The primary objective of Morwamohube’s appointment as a seed
raiser is to revive the house
of the late King Victor Thulare III.
This process will naturally be followed by the marriage of the candle
wife by the community
in accordance with the custom and customary
laws of the Bapedi nation. The candle wife thus bears an heir to the
throne in the
kingship of his brother the late King Victor Thulare
III.
[69]
Accordingly, the succession plan as outlined by Manyaku is not only
untenable but a taboo and
never heard of in terms of the custom of
the Bapedi nation. Manyaku suggests that the children of the late
King Victor Thulare
III will raise seed with the candle wife (who
will be regarded as their mother) and then bear a successor in their
father’s
house.
Manyaku further asserts
that her entitlement to act on behalf of her son, the late King
Victor Thulare III, is purely due to the
fact that she has been close
to her son and actively involved in the administration of the affairs
of the kingdom. This contention
is not only thin and of no moment in
the context of the prevailing circumstances but further offends
against the long-established
tradition and custom of the Bapedi
nation.
[70]
On the conspectus of evidence before me I make the following
findings:
70.1. The meeting of 28
February 2021 is the rightful meeting of the royal family of the late
King Victor Thulare III. The other
meeting organized by Manyaku and
five (5) other people on 21 February 2021 is not the rightful meeting
of the royal family.
70.2. The notion that the
royal family of Bapedi nation consists of only five (5) people is
rejected.
70.3. The said meeting of
21 February 2021 occurred contrary to the agreement reached by the
royal family on 31 January 2021 wherein
there was an agreement to
postpone that meeting to the 28
th
of February 2021.
70.4. The meeting of 28
February 2021 did indeed take place and a resolution was adopted. It
is not clear what decision was taken
in the meeting of 21 February
2021. Whether such meeting was to appoint Manyaku as a Regent, as an
Acting Queen, or a Fully-fledged
Queen. Even if the said meeting
appointed her as such, she does not qualify as the Kingship has
already moved from her house to
her son, the late King Victor Thulare
III.
[71]
In the result the main application by Morwamohube should be granted
and the counter application
by Manyaku should be dismissed.
Order
[72]
I accordingly grant the following order:
1.
The main application brought by Morwamohube is granted and it is
declared that:
1.1.
The meeting held by the Thulare Royal Family on 28 February 2021 was
a properly constituted meeting of “a
royal family”; and
1.2.
The decision taken by the Thulare Royal Family at the meeting of 28
February 2021, to appoint Morwamohube
as the Acting King of the
Bapedi nation and seed raiser in the house of the late King Victor
Thulare III, was a lawful decision
of “a royal family”.
2.
Manyaku shall be liable to pay the costs of the application, such
costs to include the costs
of two Counsel.
3.
The Counter application brought by Manyaku is dismissed with costs of
two Counsel.
4.
That the interim interdict order dated 5 August 2021 in favour of
Manyaku under case number
5197/2021 is discharged and the application
brought by Manyaku under case number 4253/2021 is dismissed with
costs.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT,
LIMPOPO DIVISION
APPEARANCES
Heard on
: 29 September 2022
Judgment delivered
on :
19 October 2022
For the Applicant in
the
Main Application
:
Adv. M M Mojapelo
Adv. K Maleka
Instructed
by
: Ledwaba Mazwai
c/o Moabelo attorneys
For the Applicant in
the
Counter
Application
:
Adv. P J Coetzee
Instructed
by
: Phosa Loots Inc.
c/o Jacob Oberholzer
Attorneys
[1]
Section
12 (1)(a)(i) of the National Act.
[2]
Section
15 (1)(a) of the Limpopo Act.
[3]
(2970/2020)
[2021] ZAECMHC 10 (23 March 2021).
[4]
[2019]
ZASCA 58
(12 April 2019).
[5]
(2970/2020)
[2021] ZAECMHC 10 (23 March 2021).
[6]
Annexure
REP6
pages
515 – 518.
[7]
See
pages 513 – 514 of the paginated papers.
[8]
Section
13 (1)(a)(i)(aa) of the Khoi-San Act.
[9]
Section
17 (2) of the Limpopo Act.
[10]
Annexure
“
AAC3
”
and
“
AAC4
”
,
pages 790 and 791 respectively.
[11]
Annexure
“
AAC5
”
:
page 797.
[12]
Annexure
“
AAC6
”
:
page 799.
[13]
Annexure
“
AAC7
”
:
page 801.
[14]
Annexure
“
AAC8
”
:
page 802.
[15]
Annexure
“
AA6
”
,
page 804, paragraph (Y).
[16]
Annexure
“
AAC10
”
,
page 807.
[17]
Annexure
“
AAC11
”
:
page 808.
[18]
Confirmatory
Affidavit of Ramphelane Thulare: page 917 to 923.
[19]
Page
799 of the paginated papers.
[20]
[2018]
ZAGPPHC 969.