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[2022] ZALMPPHC 58
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Kekana and Another v Premier, Limpopo Provincial Department and Others (REV126/2018) [2022] ZALMPPHC 58 (28 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: REV126/2018
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: YES
REVISED.
In the matter between:
LESIBA VAALTYN KEKANA
1
ST
APPLICANT
(Identity Number:
[....])
MOKOPANE TRADITIONAL
AUTHORITY
2
ND
APPLICANT
and
PREMIER, LIMPOPO
PROVINCIAL DEPARTMENT
1
ST
RESPONDENT
MEMBER OF THE
EXECUTIVE COUNCIL:
2
ND
RESPONDENT
DEPARTMENT OF
COOPERATIVE GOVERNANCE,
HUMAN SETTLEMENT AND
TRADITIONAL AFFAIRS,
LIMPOPO PROVINCIAL
GOVERNMENT
COMMISSION ON
TRADITIONAL DISPUTES AND
3
RD
RESPONDENT
CLAIMS
LESIBA VAALTYN
(LEKGOBO) KEKANA
4
th
RESPONDENT
(Identity Number:
[....])
MGOMBANE ROYAL
COUNCIL
5
TH
RESPONDENT
SENIOR ROYAL FAMILY OF
GA-KGUBUDI
6
TH
RESPONDENT
JUDGMENT
MAKGOBA JP
[1]
At the heart of this application is the First Applicant’s view
that the decision
taken by the Premier of Limpopo Province, based on
the recommendation of the Commission on Traditional Leadership
Disputes and
Claims, to remove the First Applicant as a senior
traditional leader of the Mokopane Traditional Authority is unlawful
and should
accordingly be reviewed and set aside.
[2]
During April 2003, after the
death of Acting Kgoshi Madimetja Alfred Kekana, the Premier
appointed
the First Applicant as the Senior Traditional Leader (Kgoshi) of the
Mokopane Traditional Authority
[1]
.
On 11 June 2018 the
Premier removed the First Applicant as the Senior Traditional Leader.
In so doing, the Premier acted on the
recommendation of the Third
Respondent, the Commission on Traditional Leadership Disputes and
Claims, dated 4 December 2017.
[3]
In his letter dated 11 June
2018, the Premier advised the First Applicant as follows:
[2]
“
1.
…
2.
I hereby inform you that the Limpopo Provincial Committee on
Traditional Leadership Disputes and Claims
has considered your
claim/dispute. I have considered the findings and recommendations of
the said Committee in terms of the provisions
of the Traditional
leadership and Governance Framework Act No 41 of 2003 as amended.
3.
Kindly be informed that the claim/dispute for restoration and/or
recognition of the Mgombane
Senior Traditional Leadership by Kekana
Lesiba “Lekgobo” Vaaltyn is declined.
4.
The senior traditional leadership in the House of Naomi Langa is
dissolved with immediate
effect.
5.
The Royal Council should marry a candle wife and the seed raiser be
appointed to procreate
the legitimate and rightful heir to succeed
Mgombane.
6.
…”
[4]
The present application is for the review and setting aside the
decision of the Premier
and the recommendation of the Third
Respondent.
The First Applicant
sought an order in the following terms:
4.1. The
decision of the First Respondent (Premier) effectively removing the
Applicant as Senior Traditional Leader
of the Mokopane Traditional
Authority is reviewed and set aside; and
4.2. The
decision of the Third Respondent recommending the removal of the
Applicant as the Senior Traditional Leader
is hereby reviewed and set
aside.
[5]
The late Acting Kgoshi Madimetja Alfred Kekana died in 2000. After
his death the Department
of Tradtional Affairs of the Limpopo
Provincial Government did an extensive consultation with, amongst
others, Amandebele Traditional
Authorities and thereafter recommended
the First Applicant to be appointed as the Senior Traditional Leader
of the Mokopane Traditional
Authority.
[3]
Following the recommendation the Premier on 9 May 2003 appointed the
First Applicant as the Senior Traditional Leader.
Fifteen (15) years later
on 11 June 2018, the Premier removed the First Applicant as the
Senior Traditional Leader of the Mokopane
Traditional Authority.
[6]
This application is opposed by the First, Second, Third, Fifth and
Sixth Respondents.
The Fifth and Sixth
Respondents are in agreement with the recommendations made by the
Third Respondent (“the Commission”)
which ultimately led
to the First Respondent’s decision and they intend to fully
implement them.
Factual Background
[7]
The First, Second, Third and Fifth Respondents in their answering
affidavits went
at length in describing the traditions of Mgombane
Traditional Community and provided a comprehensive historical account
of the
Mgombane Chieftaincy.
Save for differing with
the Respondents on issues relating to the candle wife and the
legitimacy of the First Applicant as the son
of a candle wife, all
the parties agree on the factual background relating to this case.
[8]
The line of succession and genealogy of the Mgombane Chieftaincy can
be illustrated
as follows:
Setsoamadi
↓
Mgombane (Mokopane)
↓
Vaaltyn (acting)
↓
Bernard Kgadabela
(acting)
↓
Piet Kojela (acting) –
Alfred’s paternal uncle
↓
Madimetja Alfred (acting)
[9]
The last fully fledged kgoshi of the Mgombane Traditional Community
is Kgoshi Mgombane
who passed away over 100 years ago. His wife bore
him a daughter who was not allowed, in terms of custom, to assume the
position
of Kgoshi owing to her gender.
Mgombane was succeeded by
his son in another house, Lesiba Vaaltyn (Lekgobo) Kekana who was
appointed in an acting capacity, so
is everyone else that followed
suit they were all acting Kgoshis.
[10]
In the early 1960’s Lesiba Barnard Kgadabela Kekana was
succeeded by Madimetja Alfred Kekana
who was also appointed in an
acting position. The said Madimetja Alfred Kekana was unfortunately
feeble minded and was unable to
perform his duties properly resulting
in one John Madimetja Molalakgori Kekana who was his junior paternal
uncle (Rangwane) being
appointed as his guardian. For the sake of
convenience, the latter will be referred to as “John
Molalakgori Kekana”
in this judgment.
Opportunistically the
said John Molalakgori Kekana effectively took over the
decision-making process and performed the functions
of the acting
Kgoshi Madimetja Alfred Kekana.
[11]
When the time came for the traditional community to marry a candle
wife, the royal family of
Mgombane appointed Madimetja Alfred Kekana
as a seed raiser in order to beget a legitimate and rightful
successor to the Mgombane
throne. Madimetja Alfred Kekana had a wife,
namely Anna Thabethe, whom he had voluntarily married as his love
wife. The Fourth
Respondent, Lesiba Vaaltyn (Lekgobo) Kekana is their
son.
[12]
Salome Langa from Mapela, was married as a candle wife for the
purpose of procreating an heir
to the throne. She was married by the
Community for such purpose and it was expected that Acting Kgoshi
Madimetja Alfred Kekana
would be the seed raiser.
However, John Molalakgori
Kekana secretly entered the house of Salome with an intention to
sleep with her, but she rebuffed his
advances. Such a refusal led to
John Molalakgori Kekana and his friends devising a scheme to try and
force Salome Langa to sleep
with John Molalakgori Kekana, but she
still refused to accept John Molalakgori Kekana. This resulted in
Salome Langa returning
to Mapela where she came from. She did not
have any children.
[13]
John Molalakgori Kekana acting on a frolic of his own and without the
authority of the Royal
Family went to Mapela and brought one Naomi
Langa whom she caused to marry Madimetja Alfred Kekana (acting
kgoshi) and to be his
“candle wife”. He did so without
the mandate of the Royal Family and/or the traditional community.
The Fifth Respondent
contends that Naomi Langa was never a candle wife whilst the First
Applicant contends that Naomi was a candle
wife.
John Molalakgori Kekana
took advantage of Madimetja Alfred Kekana’s feeble mindedness
and entered the house of Naomi Langa
and they started cohabitating.
Such illicit cohabitation led to three children being born and the
First Applicant is amongst the
three children.
[14]
John Molalakgori Kekana is Acting Kgoshi Madimetja’s Alfred
Kekana’s junior paternal
uncle, he therefore could not be a
seed raiser to Salome or Naomi, because both were in a position of
daughters-in-law to him.
[15]
John Molalakgori Kekana’s wife Agnes, complained about the
behavior of her husband and
Noami Langa which was destroying her
marriage. John Molalakgori Kekana was summoned to the Traditional
Council to come and account
for his misdemeanors, but he refused to
come. He was forcefully brought before the Traditional Council and
because of his abhorrent
behavior the Council disciplined him by
imposing a fine of R 10.00 and he was dismissed as Madimetja Alfred
Kekana’s guardian.
[16]
As a result, in 1974 Naomi Langa was banished or chased from the
community and she went back
to her parental home at Mapela. At more
or less the same time John Molalakgori Kekana fled to the nearby
Mahwelereng Township.
Naomi Langa died at Mapela and was buried there
and not at the royal place of Mgombane Community.
The conduct of John
Molalakgori Kekana was an affront to the cultural values of Mgombane
Traditional Community. His conduct was
regarded by the said community
as scandalous and was frowned upon.
[17]
The Respondents contend that the First Applicant was born out of a
relationship between John
Molalakgori Kekana and Naomi Langa. This on
its own disqualifies him from being referred to as a rightful heir to
the throne.
The First Applicant in
his papers does not account for Salome Langa at all. The picture he
paints is that his mother Naomi Langa,
is the one who was married as
a candle wife, furthermore, he presents himself as the son of
Madimetja Alfred Kekana.
[18]
The minutes of a “
Meeting
with Mokopane Local Government on Thursday 25 October 1990
”
[4]
are relevant and appropriate in this regard. The meeting was
organised and/or presided over by one Mr. P Lombard, an Ethnologist,
representing the then Lebowa Government.
Amongst the persons who
attended the said meeting was John Madimetja Molalakgori Kekana, who
played a leading role at the meeting.
In the minutes of the said
meeting John Molalakgori Kekana is referred to as Madimetja.
[19]
On page 3 of the minutes the following is recorded:
“
Madimetja
then explained that Naomi was not the first candle wife. The first
candle wife was married from Mapela. She had divorced.
She did not
tell the tribe why she divorced. It was only later on that they found
out that the Kgoṧi was not giving conjugal
rights. It was then
that when the second candle wife was married.
Mr.
Madimetja entered her bedroom. She was told before that Mr. Madimetja
would enter her. Mr. Madimetja was the senior Mokgomana
suitable to
do this.
The
problem started with other people who claimed bogoṧi because
they also wanted to sleep with the Mohumagadi. Mr. Madimetja
explained that even the Kgoṧi knew he was raising the children
with Mohumagadi.”
(my
underlining).
[20]
From the minutes of the aforesaid meeting John Molalakgori Kekana
clearly admitted:
20.1. That there had been
the first candle wife before Naomi Langa. This certainly referred to
Salome.
20.2. That he, John
Molalakgori Kekana, cohabited with Naomi.
20.3. That he was the
senior Mokgomana suitable to do that.
20.4. That even the
Kgoshi (Madimetja Alfred Kekana) knew that he was having children
with Mohumagadi, that is the candle wife.
[21]
On the basis of the admissions made by John Molalakgori Kekana, the
contention by the Respondents
that the First Applicant is the son of
John Molalakgori Kekana and not Madimetja Alfred Kekana becomes a
reality.
The truth of the matter
is that John Molalakgori Kekana was not appointed by the Royal Family
comprising of Bakgoma, Bakgomana and
Dikgadi to be a seed raiser. He
was immediately disqualified by the fact that as Rangwane (paternal
uncle) he was akin to a father
of Salome and Naomi.
[22]
Even if Naomi Langa was a candle wife, which is denied by the
Respondents, none of her children
would have a claim to the
chieftaincy due to the illicit relationship between their parents,
namely John Molalakgori and Naomi
Langa. It is against this
background that it is strongly contended by the Respondents that
since Naomi Langa was not a candle wife,
then the First Applicant
does not have any claim to the throne.
Issues to be decided
[23]
The issues to be decided in this matter are the following:
23.1. Whether the First
Respondent (Premier) was correct in deciding that the First Applicant
be relieved of his royal duties immediately
and that the royal family
should marry a candle wife to raise the seed.
23.2. Whether the Second
and Third Respondents discharged their duties diligently when
investigating the chieftainship dispute and
claim.
23.3. Whether the
Applicants had a right to be consulted prior to the decision by the
Premier. If so, whether the Premier had a
duty to afford to the
Applicants an opportunity to make representations prior to the
decision of the Premier.
23.4. Whether this matter
was
res judicata
and that the Third Respondent (the
Commission) was not supposed to entertain the claim brought in by the
Fourth Respondent.
23.5. Whether the
deponent of the Answering Affidavit of the First, Second and Third
Respondents had the necessary authority to
depose to the Answering
Affidavit on their behalf.
[24]
I prefer to deal with the last two issues since same have been raised
in the form of points
in limine
. In the event of such points
in limine
being upheld, that will be dispositive of the
present application before me.
Points
in Limine
[25]
The Applicants contend that the decision of the Premier to appoint
the First Applicant as the
Senior traditional leader of the Mokopane
Traditional Authority was challenged by the Mgombane Royal Council
(Fifth Respondent)
in this Court and that challenge was dismissed
with costs. In this regard reference is made to the judgment of
Pretorius J in Case
number 34/2012 delivered on 1 March 2013.
[5]
The Court Order reads as
follows:
“
1.
The application is dismissed with costs.
2.
In as far as it is necessary the application for condonation is
dismissed with costs.”
Accordingly, the
Applicants contend that this matter is
res judicata
and that
the Commission was not supposed to entertain the chieftaincy claim by
the Fourth Respondent.
[26]
The Respondents contend that this matter does not fulfill the
requirements of
res judicata
and therefore
res judicata
is not applicable in this instance. The judgment of Pretorius J was
for a condonation application. That Pretorius J in her judgment
went
out of her way to quote seven (7) cases in support of the refusal to
grant the condonation application. No single reference
was made with
regard to the merits. Pretorius J made a few comments on the merits
in support of her judgment which was unavoidable.
[27]
In essence Pretorius J dismissed the application on the basis that
same was launched after the
lapse of a period of nine years contrary
to the provisions of section 7 of Promotion of Administrative Justice
Act 3 of 2000 (PAJA)
which provides that any proceedings for judicial
review in terms of section 6(1) must be instituted without
unreasonable delay
and not later than 180 days after the applicant
had become aware of the decision.
[28]
Pretorius J reasoned as follows in paragraph [23] of the judgment:
“
I
have considered all the facts and circumstances and listened to the
arguments by legal counsel. I have considered the authorities
and I
am of the opinion that the Applicant cannot succeed in the
application for condonation. The Court finds that the application
was
launched after an unreasonable time and that the Court should not
condone the unexplained length of time it took the Applicant
to
launch the present review application.”
[29]
The learned Judge continued to state as follows in paragraph [28] of
the judgment:
“
The
Court does not have to decide the merits of the matter, should the
Court find that the condonation for the late application
should not
be granted…”
Furthermore the learned
Judge concludes as follows in paragraph [30] of the judgment:
“
In
the circumstances the merits of the application is not such that it
can persuade the Court to grant condonation for the launch
of the
review application nine years after the decision has been taken.”
[30]
I am of the view that Pretorius J did not determine the merits of the
application, but it was
condonation for the late launching of the
review proceedings which was adjudicated and dismissed.
Therefore, the judgment
of Pretorius J does not render the present matter to be
res
judicata
. The point
in limine
on this aspect dismissed.
[31]
The Applicants in their Replying Affidavit raised an issue about the
deponent of the Answering
Affidavit of the First, Second and Third
Respondents to the effect that she does not have authority to depose
to the affidavit
and that she does not have personal knowledge of how
the First Respondent (Premier) made a decision and that her evidence
is hearsay.
[32]
The deponent on behalf of the First, Second and Third Respondents is
one Modjadji Melidah Malahlela
who identifies herself as a Deputy
Director General responsible for Traditional Affairs in the
Department of Co-operative Governance,
Human Settlement and
Traditional Affairs in the Limpopo Province.
She
further states that by virtue of her position she is authorized to
make the Affidavit.
[6]
She
states that the facts contained therein are within her personal
knowledge.
It was argued on behalf
of the Applicants that the decision that is the subject of the review
is not a departmental decision but
a “personal” decision
of the Premier.
That Ms. Malahlela does
not have any knowledge of what was in the mind of the Premier when he
made the decision, and that only the
Premier can tell the Court what
was in his mind.
I disagree.
[33]
Section 211(1) of the Constitution
[7]
provides for the recognition of institutions, status and role of
traditional leadership according to customary law.
Section 212 provides
further that national legislation may provide for a role for
traditional leadership as an institution at local
level on matters
affecting local communities.
[34]
At national level, the national legislation for the establishment of
houses of traditional leaders
is led by the State President and the
functions thereof are delegated to the Minister responsible for
Traditional Affairs. Likewise,
at provincial level, the provincial
legislation (in this case the Limpopo Traditional Leadership and
Institutions Act 6 of 2005)
for the establishment of houses of
traditional leaders is led by the Premier and the function is
delegated to the Member of the
Executive Committee (MEC) responsible
for traditional affairs.
[35]
Section 32 of the Limpopo Traditional Leadership and Institutions
Act, 2005 (the Limpopo Act)
provides as follows:
(1)
The Premier may delegate any of his or her powers or functions in
terms of this Act to any person.
(2)
A delegation referred to in subsection (1) may be withdrawn at any
time by the Premier and does not
prevent the Premier from exercising
the power or function while the power or function is delegated.
[36]
It is common cause that Ms. Malahlela is a Deputy Director General
responsible for Traditional
Affairs within the Limpopo Department of
Co-operative Governance and Traditional Affairs. She is thereby duly
authorised and delegated
in terms of Section 32 of the Limpopo Act to
perform the powers and functions in terms of the Limpopo Act. In her
affidavit she
expressly stated that she is duly authorised and that
the facts therein contained are within her personal knowledge.
Therefore,
her evidence is not hearsay as she is responsible for
issues of traditional affairs in the Limpopo Province.
[37]
It is trite that a deponent to an affidavit in motion proceedings
need not be authorised by the
person concerned to depose to the
affidavit. It is the institution of the proceedings and the
prosecution thereof which must be
authorised.
[8]
More
recently in
Masako
v Masako and Another
[9]
the Supreme Court of Appeal, per Mabindla-Boqwana JA at paragraph 11
said that:
“…
It
stands to reason that a deponent to an affidavit is a witness who
states under oath facts that lie within her personal knowledge.
She
swears or affirms the truthfulness of such statements. She is no
different from a witness who testifies orally, on oath or
affirmation
regarding events within her knowledge.”
[38]
In the result the Applicants’ issue regarding the authority of
Ms. Malahlela to depose
to the Answering Affidavit on behalf of the
First, Second and Third Respondents is dismissed.
How First Applicant
was appointed as Senior Traditional Leader (Kgoshi)
[39]
After the candle wife, Salome left the Mgombane Royal House, John
Madimetja Molalakgori Kekana
(“Molalakgori”) and some
bakgomana took back the lobola for Salome and approached Naomi’s
mother to marry Naomi
as a candle wife. Naomi was brought to the
royal house as the second candle wife after Salome left. Molalakgori
entered the house
of Naomi to raise a seed with her. Molalakgori
alleged that he was the right Mokgoma to enter the house of a candle
wife (Masechaba).
[10]
[40]
Molalakgori and Naomi had three children, two daughters and a son
called Vaaltyn II who it is
alleged was born in 1969. However, the
First Applicant herein stated in his Founding Affidavit that he was
born in 1974.
Naomi left the royal
household together with her children in 1974 after Molalakgori’s
wife complained that Naomi was taking
her husband. Molalakgori left
the royal household soon after Naomi left and stayed at nearby
Mahwelereng Township.
[41]
Molalakgori was never seen at the royal household until in 1990 when
the Lebowa Government appointed
Mr. Lombard to sort out the
administrative issues of the then Mokopane Tribal Authority. This was
after the local magistrate at
the time, Mr. Hager had complained that
he was not clear about the correct Bakgomana of Mokopane Tribal
Authority. Meetings were
then arranged to sort out that problem.
[42]
In the first meeting
[11]
that
was held with Mr. Lombard, Molalakgori was appointed the assistant to
Acting Kgoshi Madimetja Alfred Kekana and the Bakgoma
and Bakgomana
were also identified at that meeting.
At
the second meeting
[12]
that
was held on 25 October 1990, Molalakgori requested that the children
of Naomi should be brought back and that he wanted Vaaltyn
II to
succeed to the chieftaincy.
[43]
The discussion and what was agreed in the meeting of 25 October 1990
ultimately led to the return
of the First Applicant to the
Mokopane/Mgombane royal house to take the position of senior
traditional leader, that is Kgoshi.
An extract of the minutes
of the said meeting is set out hereunder:
“
Mr.
Lombard asked why could the people not go and bring the children
back. Mr. Madimetja replied that the people could not go and
bring
the children back while he was absent. Now that he was present
arrangements would be made to reconcile and bring back the
children.
Afterall, they were chased away by people who claimed they were the
Bakgomana but were not. Now the rightful bakgomana
and the people
wanted them back.
Madimetja explained
that the Masetshaba was chased away on 17.01.1974. She died in 1978
and was buried at Mapela. Mr. Lombard asked
the bakgomana what their
plans now were since they had no Mmasetshaba. The bakgomana all
answered that they have no problem because
the Mmasetshaba had a son.
The son’s name is Vaaltyn II.
Madimetja said that he
did want Vaaltyn II to succeed to regency. The bakgomana should
discuss and arrange for Vaaltyn II to come
back.
Mr. Lomabard then
prompted the other bakgomana to respond. Edward said that they wanted
Vaaltyn II back and did not need to marry
another wife. All the other
bakgomana supported Edward.
Mr. Lombard said that
he appreciated their response. He urged them to discuss and report
when they want him back. Madimetja pointed
out the problem that the
children have been at Mapela for some time now, with nobody taking
care of them. He indicated that Vaaltyn
II was born in 1969 and was
now 21 years old.”
[44]
The person referred to as Madimetja at that meeting is none other
than Molalakgori. He played
a prominent role in the appointment of
the First Applicant as Kgoshi.
[45]
Acting Kgoshi Madimetja Alfred Kekana passed away in 2000. After his
death the Mgombane community
was divided into two groups. The first
group was led by Kekana Abram which group was behind the Fourth
Respondent, the son of Anna.
The second group was led
by Kekana Petrus who maintained that the First Applicant is the
legitimate Kgoshi.
The Fourth Respondent,
Lesiba Vaaltyn (Lekgobo) Kekana was subsequently appointed to succeed
his father, Madimetja Alfred Kekana.
[46]
The Fourth Respondent was relieved from the royal duties as Kgoshi
after a complaint was raised
with the Office of the Premier in 2003.
An investigation was conducted by the Provincial House of Traditional
leaders and the Strategic
Business Unit (SBU) of Traditional Affairs.
All the Amandebele Traditional Authorities that are related to
Mokopane Traditional
Authority were also consulted.
The resolution of the
said dispute was that the First Applicant be confirmed as the Kgoshi.
The First Applicant was then appointed
Senior Traditional Leader of
Mokopane Traditional Authority on 16 April 2003 and inaugurated on 3
October 2003.
[47]
In 2004 the Fourth Respondent and other members of the royal family
approached Court to have
the recognition of the First Respondent as
the senior traditional leader reviewed and set aside. The application
was however abandoned.
The Fourth and Fifth
Respondents went back to Court again in 2012 to challenge the
decision of the Premier recognising the First
Applicant as the senior
traditional leader.
The matter was brought to
Court about 9 (nine) years after the incident and the parties had to
apply for condonation for the late
launching of the application. The
application for condonation was unsuccessful and the application was
dismissed by Pretorius J
on 1 March 2013.
[48]
During 2016 the Fourth and Fifth Respondents approached the Third
Respondent (Commission on Traditional
Leadership Disputes and Claims)
to dispute the legitimacy of the traditional leadership of the First
Applicant.
The Commission
investigated and made recommendations that the First Applicant must
be removed as a Senior Traditional Leader and
that the royal family
should marry a candle wife and that a seed raiser be appointed to
procreate the legitimate and rightful heir
to succeed Mgombane.
This is the decision
which the Applicants are challenging in the present application.
Proceedings of the
Commission i.e. Third Respondent
[49]
During 2016 the Fourth and Fifth Respondents approached the Third
Respondent to lodge a claim
about recognition of the First Applicant
as the senior traditional leader of Mgombane. All the parties
concerned were invited to
the hearing including the First Applicant.
The First Applicant
declined the invitation and instead launched an urgent court
application on 20 September 2016 to interdict the
hearing of the
Commission. The matter was postponed
sine die
to date. The
First Applicant never attended the hearing despite invitation by the
Commission.
[50]
The hearing of the Commission was conducted in September 2016. The
Third Respondent (Commission)
was requested to investigate the
following issues by the Fourth and Fifth Respondents:
50.1. to establish if the
disputant/claimant (being the Fourth Respondent) is the legitimate
and rightful heir to the Mgombane Traditional
Authority throne;
50.2. if he is the
rightful and legitimate heir, why and how he lost his position; and
50.3. to establish if the
incumbent (being First Applicant) is the rightful and legitimate
heir, if not, how did he manage to ascend
to the throne. Was he
properly installed in accordance with the customs and customary law
of succession of the Mgombane Traditional
Authority.
[51]
The Traditional Leadership and Governance Framework Act 41 of 2003
(Framework Act) established
the Commission in terms of section 22(1).
Section 25(1) empowers the Commission to decide on any traditional
leadership disputes
and claims contemplated in terms of section 25(2)
which arise from any province.
Section 25(2)(a) gives
the Commission authority to investigate and make recommendations on:
(i)
any case where there is doubt as to whether a kingship, senior
traditional leadership or headman
was established in terms of the
customary law and customs;
(ii)
a case where there is doubt as to whether a principal traditional
leadership, senior traditional leadership
or headmanship was
established in accordance with customary law and customs;
(iii) a
traditional leadership position where the title or right of the
incumbent is contested;
(iv) …
[52]
The Framework Act was passed to deal with traditional leadership
institutions created by the
former apartheid government that were
illegitimate and enforced upon the communities. Before 1994 many
traditional leaders were
removed from office and others were demoted.
The result of this is that a number of traditional leadership
institutions were established
and people who did not qualify under
customary law were appointed as traditional leaders.
It was therefore
befitting that all traditional leaderships including that of Mgombane
Traditional Authority be subjected to the
scrutiny of the Commission.
Whether the First Applicant was properly appointed or not, his
leadership was still subject to the
investigation by the Commission
at the instance of any person who claimed to have been removed from
the position of a Senior Traditional
Leader.
The Fourth Respondent,
supported by the Fifth Respondent was such a person who brought the
dispute before the Third Respondent.
[53]
In order to restore the dignity of traditional leadership, the
Framework Act was enacted to resolve
and restore the integrity and
the legitimacy of the institution of traditional leadership in line
with customary law and practices.
[54]
In the present case the evidence that was led on behalf of the Fourth
and Fifth Respondents at
the Commission was undisputed. This is so
because the Applicants declined the invitation and thus failed to
attend the hearing.
[55]
The evidence led at the Commission is summarised as follows:
55.1. Evidence adduced
shows that Salome was legitimately married as the candle wife, but
unfortunately, on her arrival at Moshate,
she refused to be seed
raised by Madimetja Alfred’s junior paternal uncle,
Molalakgori, and she went back to her parental
home.
55.2. There is no
convincing evidence to confirm that Naomi was the candle wife. When
Molalakgori married Naomi as the “candle
wife”, he did
that unilaterally, without the participation and consent of the
Bakgoma, Bakgomana and the Dikgadi. Molalakgori
further entered
Naomi’s house without being appointed seed raiser and had an
illicit relationship with her. Because of this
misconduct,
Molalakgori was disciplined and was fined R10.
55.3. The three chiefs
who investigated the matter, namely, Chiefs Kutama, Tshabalala and
Sumbana who were members of the Executive
of the House of Traditional
Leaders in Limpopo, could not find any proof to confirm that Naomi
was a candle wife.
55.4. Annah was not a
candle wife, if she was a candle wife they would not have later
married Salome as the candle wife therefore
the disputant is not a
child of a candle wife.
55.5. Molalakgori is
Madimetja Alfred’s junior paternal uncle, he therefore, cannot
be the selepe (seed raiser) to Naomi,
because she is in a position of
a daughter-in-law to him. The contention that Molalakgori was
appointed seed raiser with Salome
or Naomi was unthinkable, the Royal
family could not have appointed him to seed raise for Madimetja his
“son”.
55.6. It is not clear why
both claimant/disputant and respondent are named “Lesiba
Vaaltyn”, whereas both are sons of
Madimetja Alfred. However,
explanation from Mokono Malesela John Knox is that the respondent
changed his name from Kgabagare Langa
to Lesiba Vaaltyn in
preparation for ascension to the throne.
55.7. Kekana Matsobana
Joyce, Kekane Mokgaetsi Lucky, Mokono Malesela John Knox and Kekana
Lesiba Bernard testified that they know
Salome as the only wife of
the late Madimetja Alfred, who was married as the candle wife, they
however conceded that Salome refused
to be seed raised by John
Molalakgori and she voluntarily returned to her parental home.
55.8. The disputant wants
the respondent, Lesiba Vaaltyn, to be removed from chieftaincy
because, he alleges, the respondent is
not the rightful and
legitimate heir, his mother, Naomi, was not a candle wife. The
respondent, Vaaltyn, on the other hand, alleges
that Annah was not a
candle wife and the disputant/claimant, Lesiba Vaaltyn, cannot be the
legitimate and rightful heir.
It is apparent that the
appointment of the respondent was made on the belief and
recommendation that Naomi was a candle wife. The
Commission however
found that both the claimant and the respondent are not born of
candle wives, and consequently they cannot be
the legitimate and
rightful heirs.
55.9. The House of
Traditional Leaders recommended that the Mokopane Royal Council
should marry a candle wife and appoint a mokgoma
to be the seed
raiser. Both parties rejected this suggestion. Consequently, the
Department of Traditional Affairs recommended on
the 27 November
2002, that the respondent be appointed chief. The Commission finds
the decision of the House of Traditional Leaders
to be correct and
should have been applied/followed.
[56]
Upon analyzing the evidence the Commission made the following
findings:
56.1. Both the claimant
(Fourth Respondent) and respondent (First Applicant) are not the
legitimate and rightful heirs to succeed
Mgombane, the last
undisputed Kgoshi of the Mgombane (Mokopane) Senior Traditional
Community.
56.2. The decision by
Molalakgori to substitute Naomi for Salome is void and does not mean
that Naomi becomes the candle wife in
Salome’s stead.
[57]
It is against that background that the Commission made the following
recommendations that are
the subject of the present litigation:
57.1. That the dispute
against Kekana Lesiba Kgabagare Vaaltyn (ID No. [....]) by Kekana
Lesiba Lekgobo Vaaltyn (ID No. [....])
for his reinstatement as the
senior traditional leader of the Mgombane Traditional Community is
dismissed; and
57.2. That the current
incumbent Lesiba Kgabagare Vaaltyn Kekana be removed as a Senior
Traditional Leader of Mgombane Traditional
Council.
57.3. That the Royal
Family should marry a candle wife, and the seed raiser be appointed
to procreate the legitimate and rightful
heir to succeed Mgombane.
[58]
The method of investigation followed by the Commission is that of an
analysis of submissions
by all parties to the dispute, the review of
literature, interviews and public hearings.
[59]
In the Constitutional Court case of
Bapedi
Marota Mamone v The Commission on Traditional Leadership Disputes and
Claims
[13]
it was said that:
“
A
level of deference is necessary – and this is especially the
case where matters fall within the special expertise of a particular
decision-making body. We should as the Court counselled in Bato Star,
treat a decision of administrative bodies with “appropriate
respect” and give due weight to findings of fact… made
by those with special expertise and experience.”
In the present case and
having regard to the undisputed evidence led at the Commission. I
have no basis to differ with the Commission
and I accordingly defer
to the findings of the Third Respondent (Commission).
In my view the Second and
Third Respondents discharged their duties diligently when
investigating the Mgombane Chieftaincy dispute.
Whether the Applicants
had a right to be consulted and make representations prior to the
decision of the Premier
[60]
It is the Applicants’ case that the decision taken by the
Premier to remove the First Applicant
as a Senior Traditional Leader
was procedurally unfair and therefore should be reviewed and set
aside in terms of the provisions
of section 6(2)(c) of PAJA for the
following reasons that:
60.1. Prior to the
decision been taken by the Premier the Applicant was not given any
notice of the intended action or decision
and was therefore not given
an opportunity to make representations as to why such a decision
should not be taken.
60.2. None of the Bakgoma
or the royal family was informed of the intended action or decision
by the Premier. As a result, none
of the Bakgoma or the royal family
members were given any opportunity to make representations as to why
the adverse decision by
the Premier should be made.
[61]
It is common cause that the Premier made the impugned decision
without giving the Applicants
the right to be heard. The Respondents
contend that the Premier is not obliged to give the affected party a
hearing before making
such a decision. The Respondents submit that
there is no provision in the Limpopo Act and the Framework Act that
gives the First
Respondent (Premier) a duty to call upon the First
Applicant to make a representation to the First Respondent before a
decision
that will affect the First Applicant could be taken.
[62]
It is common cause that the First Applicant was given an opportunity
to present his case against
the claims made by the Fourth Respondent
to the Third Respondent (Commission) and he refused and threatened
the Second and Third
Respondents with an urgent court application to
interdict the hearing.
[14]
[63]
Section 30(3) of the Limpopo Act
[15]
empowers the Premier to implement the recommendations of the
Commission within certain days upon receipt of the report from the
Commission. Neither the Limpopo Act nor the Framework Act makes
provision for the First Respondent (Premier) or Second Respondent
to
give the senior traditional leader an opportunity to make
representations before a decision that affects him can be taken.
[64]
In
Langa
v Premier of Limpopo and Others
[16]
this Court stated the following at paragraph 48:
“
It
must be pointed out from the onset that when the Premier took the
aforesaid decision he acted in terms of Section 30 of the Limpopo
Traditional Leadership and Institutions Act 6 of 2005 in that he was
implementing the recommendations of the Kgatla Commission.
Nowhere in
Section 30 of the Act or in any other section of the Act is it
provided that the Premier should hold any enquiry or
invite the
affected traditional leader to make representations or submissions
before the decision to relieve the traditional leader
of his royal
duties is taken.”
[65]
The decision of this Court on this issue was confirmed by the
Constitutional Court in the case
of
Langa
v Premier, Limpopo and Others
[17]
.
At paragraphs 42 – 43 the Court said:
“
[42]
But if a Premier is not empowered by section 13(3) to remove a
traditional leader on the grounds of wrongful appointment or
recognition, is there another legal basis for doing so? While section
12(1)(c) of the Framework Act and section 13 (1)(c) of the
Limpopo
Act clearly authorise the removal of a senior traditional leader on
either of these grounds, these provisions do not prescribe
the
procedure that must be followed, nor do they say who is empowered to
exercise this power of removal. However, as I explain,
when these
provisions are read with sections 25 and 26 of the Framework Act, it
is clear that the Premier, acting on the recommendation
of a
commission, has the power to remove a senior traditional leader on
the ground of either wrongful appointment or recognition.
[43]
Section 25 (2)(b)(ii) of the Framework Act specifically confers on a
commission the authority to investigate, either on request
or of its
own accord, a traditional leadership position where the title or
right of the incumbent is contested. Upon undertaking
such an
investigation, a commission may very well conclude that the incumbent
does not have a legitimate claim to the position
and should be
replaced on the ground that he or she was wrongfully appointed.
Section 26 of the Framework Act then requires the
commission to
communicate its recommendation
to
the Premier, who in turn is obliged to decide whether to accept the
recommendation and implement it
.
If the Premier decides to accept and implement a recommendation
regarding the outcome of a traditional leadership dispute which
requires the removal of the incumbent traditional leader, the removal
would be authorised by section 12 (1)(c) of the Framework
Act and
section 13 (1)(c) of the Limpopo Act, to the extent that it is
applicable. Section 30 of the Limpopo Act (to the extent
that it is
applicable) would then empower the Premier to implement the removal.”
(
emphasis
)
[66]
The function of the Premier in terms of such matters is not to be a
tribunal or to chair a hearing
or to investigate but to decide on the
recommendation of the Commission and provide value or principle.
The proper forum where
the First Applicant could have been given a hearing was at the
Commission and before any decision was made.
It is a known fact that
the First Applicant deliberately avoided to attend the hearing of the
Commission to give his version or
make representations.
[67]
Together, section 26 of the Framework Act and section 30 of the
Limpopo Act empower the Premier
to take a decision on a
recommendation made by the Commission and to implement that
recommendation, provided the requirements of
each provision are met.
Giving the affected traditional leader a hearing by the Premier is
not a requirement to be satisfied by
the Premier.
[68]
Accordingly, once the Commission has made a decision or
recommendation, such decision or recommendation
is final and stands
unless set aside by a Court of law on review.
[18]
It is not open for the
Premier to give the affected traditional leader any notice of the
intended action or decision or an opportunity
to make representations
as to why such a decision should be taken.
Whether the First
Applicant qualifies as a Senior Traditional Leader in terms of
Customary Law
[69]
All parties in this matter are in agreement that according to the
Ndebele customs and traditions,
a senior traditional leader (Kgoshi)
is legitimate if he meets the following requirements:
69.1. He is the
first-born son of Masechaba (candle wife);
69.2. Masechaba was
married by the tribe for Kgoshi;
69.3. If Kgoshi is
impotent, the inner circle nominates one of his senior brothers to
get into Masechaba’s house without the
knowledge of Kgoshi to
procreate for him;
69.4. If Masechaba cannot
bear children, her younger sister is married to bear children on her
behalf.
[70]
These customs and traditions are practiced or followed by all the
Ndebele tribal authorities
that are related to the Mgombane
(Mokopane) Traditional Authority, i.e. the Mapela Traditional
Authority, Bakenberg Traditional
Authority, Lekalakala Traditional
Authority and the Zebediela Traditional Authority. This information
came to the fore during an
investigation which was done by the SBU of
Traditional Affairs in 2002 that led to the appointment of the First
Applicant as a
senior traditional leader.
The same information was
canvassed and used by the Third Respondent (Commission) when
compiling their report together with the oral
submissions made at the
hearing.
[71]
The question that arises in the present matter is whether the First
Applicant meets the aforementioned
requirements in order to qualify
as a Kgoshi.
Anyone alleging to be the
legitimate Kgoshi in the Ndebele culture should meet all the
requirements as stated in paragraph [69]
above.
[72]
The Respondents contend that the First Applicant falls short of these
requirements based on the
fact that there is no conclusive proof that
his mother, Naomi was married by the tribe as a candle wife and that
she was a daughter
of the royal family. Furthermore that the lobola
for Naomi was paid direct to her mother by Molalakgori and his group.
I agree.
[73]
In my view Naomi was not the candle wife in terms of the Ndebele
customs and culture.
The Third Respondent
(Commission) was correct in finding that the decision of Molalakgori
to substitute Naomi for Salome is void
and does not mean that Naomi
becomes the candle wife.
Even if Naomi was a
candle wife, which fact is denied, none of her children will have a
claim to the chieftaincy due to the illicit
relationship between
their parents namely John Molalakgori Kekana and Naomi Langa.
Molalakgori can never be
a seed raiser to Naomi in terms of the Ndebele custom. He was a
paternal uncle of Acting Kgoshi Madimetja
Alfred Kekana. Only a
senior brother to the Kgoshi at the time can be a seed raiser, not an
uncle as is the position in this case.
[74]
This is inconsistent with the Ndebele culture and customs which
disqualifies the First Applicant
to be a legitimate Kgoshi. The First
Applicant by virtue of being born of Molalakgori who is the uncle of
Acting Kgoshi Madimetja
Alfred Kekana, is by all means and purpose, a
brother to Acting Kgoshi Alfred.
Therefore, the First
Applicant cannot be the son of Acting Kgoshi Alfred and an heir to
the throne.
The Position of the
Sixth Respondent
[75]
The position of the Sixth Respondent in the Mgombane Traditional
Authority and its role in the
present application is dubious. The
Sixth Respondent call themselves as “Senior Royal Family of
Ga-Kgubudi”.
The Sixth Respondent was
initially not cited by the Applicants in this application. They
became involved in this matter by virtue
of an unopposed application
for intervention and were ultimately cited as Sixth Respondent.
[76]
The Fifth Respondent contends that the Sixth Respondent does not have
any role to play in the
affairs of the Fifth Respondent, that is
Mgombane Royal Council. That they are actually unknown to the Fifth
Respondent and it
is categorically denied that they are a Senior
house of the Fifth Respondent.
[77]
The First Applicant also denies that there is such an entity or royal
family called Ga-Kgubudi
Royal Family in their traditional community.
The
deponent to the answering affidavit of the Sixth Respondent alleges
that the Commission (Third Respondent) has recommended that
the Royal
Family of Ga-Kgubudi should marry a candle wife.
[19]
No such recommendation appears from the report of the Commission.
[78]
The participation of the Sixth Respondent is misconceived and
opportunistic. There is absolutely
no basis for them at all to be
participating in this matter. In the first place there is no evidence
that they have ever laid a
claim of Chieftainship, either with the
Commission or the Traditional Authorities in the Limpopo Province.
They did not participate
in the Commission hearing.
[79]
In my view their participation in this matter is without any
justification and it is intended
to delay the finalization of the
Chieftainship dispute between the First Applicant and the Fifth
respondent.
Furthermore, their
participation is intended to divert the implementation of the
Commission and Premier’s decision that “
The Royal
Council should marry a candle wife, and seed raiser be appointed to
procreate the legitimate and rightful heir to succeed
Mgombane
”.
Conclusion
[80]
On the conspectus of the evidence before me as outlined in the
papers, I arrive at the following
conclusions:
80.1. The First Applicant
is not the correct Senior Traditional Leader of Mgombane (Mokopane)
Royal Council and that his mother
Naomi is not the candle wife. Naomi
was not married by the community according to Ndebele customs and the
person (Molalakgori)
who was the seed raiser to Naomi, could not have
been a seed raiser according to Ndebele custom or any other African
culture. Molalakgori
was an uncle to Acting Kgoshi Madimetja Alfred
Kekana.
80.2. There was a real
and material dispute concerning the leadership of the Mgombane
(Mokopane) Traditional Community which was
ultimately resolved when
the Third Respondent (Commission) found that neither the First
Applicant nor the Fourth Respondent have
any claim to the chieftaincy
and that a seed raiser be appointed and a candle wife married to
procreate the lawful heir to the
throne.
80.3. The Third
Respondent (Commission) conducted a thorough investigation that was
well structured and properly mandated by the
Framework Act. The Third
Respondent took into consideration all the relevant information
through relevant and interested parties
that attended the hearings as
well as information that was with the Provincial Government.
The First Applicant
declined the invitation to attend and participate in the hearing.
80.4. The Applicants have
failed to make out a case for the review and setting aside of the
decision of the First Respondent i.e.
the Premier.
The Premier is the
supreme authority concerning the resolution of traditional leadership
disputes. He is far from being a rubber
stamp to the decisions of the
Commission and may either agree or disagree with the Commission’s
findings.
Order
[81]
In the result the following order is granted:
1.
The Application is dismissed with costs.
2.
The Sixth Respondent shall not be entitled to the costs of this
application.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION
APPEARANCES
Heard on
: 13 October 2022
Judgment delivered
on
: 28 October 2022
For the
Applicants
: Adv. M M Mojapelo
: Adv. M R Maphutha
Instructed
by
: Makhafola & Verter Inc.
c/o
CJ Ntsoane Attorneys
For the 1
st
,
2
nd
& 3
rd
Respondent
: Adv. F Thema
Instructed
by
: State Attorney
For the 5
th
Respondent
: Adv. L A Nkoana
Instructed
by
: Mokgotho Attorneys
For the 6
th
Respondent
: Adv. K M Kgomongwe
Instructed
by
: Popela Maake Inc.
[1]
See
Annexure “
LVK
7
”,
page 79 of paginated papers.
[2]
Annexure
“
LVK
20
”,
page 133 of the paginated papers.
[3]
Annexure
“
LVK
6
”,
page 73 of the paginated papers.
[4]
Annexure
“
LVK
4
”,
page 60 of the paginated papers.
[5]
Annexure
“
LVK
8
”,
page 80 of the paginated papers.
[6]
1
st
,
2
nd
& 3
rd
Respondents Answering Affidavit, paragraph 1, page 488.
[7]
Act
108 of 1996 as amended.
[8]
See
Ganes
and Another v Telkom Namibia Ltd
2004 (3) SA 615 (SCA).
[9]
2022
(3) SA 403 (SCA).
[10]
See
minutes of Meeting of 25 October 1990, Annexure “
LVK
4
”
Volume I, page 62 of the paginated papers.
[11]
Annexure
“
LVK
2
”
Vol I, pages 39-45.
[12]
Annexure
“
LVK
4
”
Volume I, pages 60-62.
[13]
[2015]
3 BCLR 268 (CC).
[14]
Annexures
“
LVK
17
”
& “
LVK
18
”
Volume I, pages 125 – 129.
[15]
Section
30(3) states that the Premier must implement the decision of the
Commission within 30 days of receipt of such decision
from the
Commission.
[16]
2019
ZALMPPHC 15 (3 May 2019).
[17]
Langa
v Premier, Limpopo and Others
[2021]
ZACC 38.
[18]
Wesizwe
Feziwe Sigcau and Another v Minister of Cooperative Governance and
Traditional Affairs and Others
[2018]
ZACC 28
at paragraph 45.
[19]
6
th
Respondent Answering Affidavit, paragraph 27; Volume I, page 203.