About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 59
|
|
Bakgoma Ba Mothapo Council v Mothapo and Others (8368/2019) [2022] ZALMPPHC 59 (3 November 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 8368/2019
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
BAKGOMA
BA MOTHAPO
COUNCIL
APPLICANT
And
THATO
PALEDI
MOTHAPO
FIRST RESPONDENT
MASHOTO
MOTHEO MAREKETLE MAHLANGU
SECOND RESPONDENT
ACTING
KGOSHIGADI REFILWE MADIPONA
MOTHAPO
THIRD RESPONDENT
PALEDI
ISAAC MOTHAPO
FOURTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant which describes itself as the inner circle of Mothapo
royal family, has brought an application
against the respondents
seeking orders that the 1
st
and 2
nd
respondents
make themselves available for DNA testing with a member of the
applicant’s royal family; and that the costs of
the DNA test be
borne by the applicant. The founding affidavit of the applicant was
deposed by Legodi Johannes Mothapo who describes
himself as the
secretary of the applicant, and that he was authorised to depose that
affidavit by virtue of the resolution that
was taken by the applicant
on 16
th
June 2019.
[2]
The applicant in its founding affidavit have stated that they have
instituted an application in this
court under case number 6241/2018
in which they are seeking orders that the 3
rd
respondent
be relieved of her duties as both kgoshigadi and mmakgoshi of Mothapo
Traditional Council; and further that the Premier
of Limpopo be
interdicted from inaugurating or inducting any other person from
being the next kgoshi(gadi) of Mothapo Royal Council.
[3]
The applicant has stated in its founding affidavit that when the 3
rd
respondent was married into Mothapo royal family as mmakgoshi, the
purpose for that marriage was for her to bear the Mothapo family
a
child who would one day become the future kgoshi of Mothapo tribe.
Further that the 3
rd
respondent was to bear a child with a
senior mokgoma who is now deceased. It is the applicant’s
contention that the 3
rd
respondent had refused to engage
in intimacy with the deceased, but engaged in intimacy with men
unknown to Mothapo royal family,
which resulted in her bearing
children by these men who are not from Mothapo royal family.
[4]
The applicant avers that it is having a reasonable apprehension that
the 3
rd
respondent as well as the ordinary members of the
community are seeking to inaugurate the 1
st
respondent as
the next acting Kgoshi. The 1
st
and 2
nd
respondents are the children of the 3
rd
respondent. The
applicant has further stated that the 3
rd
respondent had
already issued letters to COGHSTA, Premier of Limpopo Province and
Magistrate Court Mankweng requesting that the
1
st
respondent should be next heir of the people of Mothapo. The
applicant has submitted that they doubt whether the 1
st
respondent was born from the royal blood, and therefore they are
seeking DNA test to be conducted. Further that they are of the
view
that if it is found that the 1
st
respondent is not of
royal blood, the 3
rd
respondent might seek to inaugurate
the 2
nd
respondent as the next kgoshi(gadi), and they are
also seeking that blood tests be also be done on the 2
nd
respondent as they do not know her paternity.
[5]
The 1
st
to 3
rd
respondents (respondents) are
opposing the applicant’s application. The 4
th
respondent did not file any opposing papers, but has filed has an
affidavit in support of the opposition to the applicant’s
application by the respondents. The 3
rd
respondent had
deposed the answering affidavit on behalf of all the respondents. The
respondents in their answering affidavit have
raised technical
objections only, and did not deal with the merits of the applicant’s
application. The respondents have raised
the points
in limine
of lack of authority; non-joinder or misjoinder; material dispute of
fact; and defective application, frivolous, vexatious, scandalous
and
unreasonable application by the applicant.
[6]
In relation to lack of authority, the respondents have stated that
the structure known as Bakgoma-Ba-Mothapo
Council does not exist
within Mothapo royal family, and that the structure that exist is
known as Bakgomana-Ba-Mothapo. In support
of their contention the
respondents have attached an order of Le Roux J of the TPD dated 27
th
October 2015 under case number 3001/1994. In that order the first
applicant has been described as “
The Bakgomana of the
Bakgaga-Ba-Mothapo Tribe.”
It is the respondents’
contention that the citation of the applicant as Bakgoma-Ba-Mothapo
Council is a misjoinder as that
institution is non-existent.
[7]
The respondents have further submitted that there is another case
which is pending in this court under
case number 6241/2018 which the
first applicant has been cited as Bakgoma-Ba-Mothapo Council and the
second applicant as Bakgomana-Ba-Mothapo
Council. The respondent has
submitted that it is interesting why in the present application
Bakgomana-Ba-Mothapo Council have not
been joined to the proceedings.
That for the above reasons, the applicant’s application is bad
in law, defective, frivolous,
scandalous, vexatious and unreasonable.
[8]
The respondents submit that annexure “E” attached to the
applicant’s founding affidavit
is a letter dated 17
th
September 1997 by Bakgaga Traditional Authority addressed to
Magistrate Mankweng. In that letter the Bakgaga-Ba-Mothapo
Traditional
Councillors (Bakgomana) have recommended that the 1
st
respondent be registered as the heir and the kgoshi of the Mothapo
tribe. It is the respondents’ contention that the letter
was
written by Bakgomana-Ba-Mothapo which are the highest decision-making
body within the royal family to recommend the 1
st
respondent, and that it was not written by 3
rd
respondent.
The respondents further submit that failure by the applicant to join
Bakgomana-Ba-Mothapo in these proceedings renders
the applicant’s
application to be defective, which defect cannot be rectified.
[9]
The respondents have also submitted that the applicant should have
foreseen that there was going to
be a material dispute of fact, and
therefore not approach the court by way of motion proceedings. It is
the respondents’
contention that the deponent of the affidavit
under case number 6241/2018 was well aware that existence of the
applicant was disputed,
but in the current application chose only to
cite Bakgoma-Ba-Mothapo knowing very well that such a structure was
non-existent and
disputed. Further that the deponent of the founding
affidavit should have foreseen that there was going to be a serious
material
dispute insofar as his status and blood lineage is concerned
in that it is within the deponent’s knowledge that he is not
born out of Mothapo Royal blood, but was fathered by one late Fokisi
Molepo.
[10]
In court counsel for the applicant conceded to the respondents’
points
in limine
. He submitted that the applicant’s
application does not meet the standard required in terms of the law,
and that the applicant’s
problems were created by the order
granted on 27
th
October 1995. That if that order was
complied with, they will not be having the problems that they are now
encountering. That until
such time the Premier of Limpopo resolve
these issues, they will continue encountering these problems.
[11]
What this court must first determine is the question whether the
applicant had
locus
standi
to claim the relief that it is seeking. In
Four
Wheel Drive v Rattan
NO
[1]
Schippers JA said:
“
The
logical starting point is
locus standi
– whether in the
circumstances the plaintiff had an interest in the relief claimed,
which entitled it to bring action. Generally,
the requirements for
locus standi
are these. The plaintiff must have adequate
interest in the subject matter of the litigation, usually described
as a direct interest
in the relief sought, the interest must not be
too remote; the interest must be actual, not abstract or academic;
and it must be
a current interest and not a hypothetical one. The
duty to allege and prove
locus standi
rests on the party
instituting the proceedings.”
[12]
The question whether the applicant had standing to institute the
proceedings must be determined with reference
what is stated in the
applicant’s founding affidavit. The applicant in its founding
affidavit has stated that it had
locus standi
to bring this
application as it is having an interest in the matter, as it is
firstly part of the royal family, and thus have the
right and
influence as to who will be inaugurated as the next kgoshi(gadi).
Secondly that its standing is based on the fact that
they are
residence of Mothapo tribe and have an interest on who will be their
ruler.
[13]
The respondents have disputed existence of a structure or institution
called Bakgoma-Ba-Mothapo Council within
Mothapo royal family. The
respondents have also disputed that the deponent of the applicant’s
founding affidavit is of royal
blood. The legitimacy of the applicant
has been disputed, and that has been conceded to by their counsel.
The concession made by
their counsel is fatal to the applicant’s
case. Without the applicant been a legitimate structure within the
royal family,
and also the deponent of the applicant’s founding
affidavit not being of royal blood, the do not have any say or role
to
play in the identification as to who will the next senior
traditional leader.
[14]
Section 12 of
Limpopo
Traditional Leadership and Institution Act
[2]
prescribe the procedure to be followed in identifying a senior
tradition leader. The section also prescribes the procedure to be
followed in case there is a dispute in relation to the person
identified. In terms of section 12(1)(a), it is the responsibility
of
the royal family to identify the person who qualifies. Since the
applicant is not within the structure of the royal family,
it had no
direct and substantial interest as to who will be identified as the
next senior traditional leader of Bakgaga–Ba–Mothapo
tribe, and therefore has no standing in bringing this application. On
this point alone, the applicant’s application stands
to be
dismissed.
[15]
The respondents have also submitted that under case number 6241/2018
which the applicant is one the applicants,
the respondents are
disputing the existence of the applicant in the current case. The
applicant has there therefore instituted
these proceedings by way of
motion well knowing that a serious dispute of fact was bound to ensue
in relation to its existence
within the royal family of Mothapo.
[16]
It is trite that an applicant who elects to proceed by way of motion
proceedings despite being aware that
a serious dispute of fact was
bound to develop, runs the risk that the application may be
dismissed. It is not proper that an applicant
should commence
proceedings by way of motion procedure with the full knowledge that a
serious dispute of fact might arise. (See
Room
Hire Co (Pty) Ltd v
Jeppe
Street Mansion (Pty) Ltd
[3]
).
On this point also, the applicant’s application stands to be
dismissed.
[17]
In the result I make the following order:
17.1 The applicant’s
application is dismissed with costs on party and party scale.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
applicant
: Prof/Adv JLH Letsoalo
Instructed
by
: PMK Tladi & Associates
Counsel for the
respondents
: Adv KK Kekana
Instructed
by
: Makgoba Kgomo Makgaleng Inc
Date
heard
: 24
th
October 2022
Electronically
circulated on
: 3
rd
November 2022
[1]
2019
(3) SA 451
(SCA) at para 7
[2]
of
2005
[3]
1949
(3) SA 1155
(T)