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[2021] ZALMPPHC 28
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Seleka v Seleka Royal Family and Others (HCAA21/2018) [2021] ZALMPPHC 28 (28 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED
CASE NO: HCAA21/2018
In
the matter between:
ACTING
CHIEF PHETOGO DAVID SELEKA
APPELLANT
And
SELEKA
ROYAL FAMILY
FIRST
RESPONDENT
SELEKA
MOTLAHASEDI ROYAL COUNCIL
SECOND
RESPONDENT
PREMIER
OF THE LIMPOPO PROVINCE
THIRD
RESPONDENT
HOUSE
OF TRADITIONAL LEADERS, LIMPOPO PROVINCE
FOURTH
RESPONDENT
MEC
FOR THE DEPARTMENT OF CO-OPERATIVE
GOVERNANCE,
HUMAN SETTLEMENT AND
TRADITIONAL
AFFAIRS, LIMPOPO PROVINCE
FIFTH
RESPONDENT
JUDGMENT
Muller
J:
[1]
This appeal is before us in terms of an order by the Supreme Court of
Appeal granting leave to appeal to the Full Court of this
Division.
The appeal took a somewhat tortuous route which necessitated an
application for condonation to re-instate the appeal
which has
lapsed.
[2]
At commencement of the arguments counsel was requested to address
us
on the prospects of success of the appeal first of all, since we were
of the view that if the prospects are very good and is
likely to be
dispositive of the appeal, that condonation should be granted.
[3]
This appeal turns on what I believe to be an irregularity that
occurred
during the trial to which I will revert soon.
[4]
The Seleka Royal Family, together with the Seleka Sa Mothlasedi Royal
Council, instituted motion proceedings in the Gauteng High Court in
terms of which, in the main, the removal of the appellant as
the
senior traditional leader of his community, alternatively, withdrawal
of the certificate of recognition, was claimed.
[5]
By agreement, the proceedings were transferred to this Division for
adjudication as a special trial because of material disputes of fact.
It was agreed, rather surprisingly, that the affidavits delivered
by
the opposing parties be regarded as the pleadings. Both counsel were
in agreement that it caused more uncertainty than certainty
during
the trial since the disputes were not clearly and succinctly outlined
as when pleadings were delivered.
[6]
A protracted trial before MG Phatudi J commenced at the end of which
the learned Judge held in
favour of the applicants. The appellant
delivered a notice of appeal in terms of which appellant took issue
with an application
for a postponement which the appellant applied
for during the trial to obtain fresh legal representation which the
learned Judge
refused, on the one hand, and the locus standi of the
applicants, on the other. The dispute being that that the applicants
were
not the legitimate Royal Family.
[7]
I turn to the underlying facts which caused the appellant to apply
for a postponement. The appellant was represented by advocate Masipa
during the trial. The evidence of Beafe Ruben Seleka was called
by
counsel for the plaintiffs on 26 September 2017. He concluded his
testimony in chief and advocate Masipa, on behalf of the appellant,
commenced with cross examination. At 16h00 advocate Masipa requested
that the trial be postponed until the next day as he needed
time to
consult with certain witness before he will be able to conclude his
cross-examination of the witness. The request was duly
granted.
[8]
The next morning when the trial resumed advocate Masipa informed
the
court that his services have been terminated by the appellant. The
reason given, when he was invited by the learned Judge to
divulge the
reason for his withdrawal, was that the appellant was not satisfied
with the manner in which advocate Masipa was conducting
the
proceedings and that the appellant wished to employ the services of
senior counsel.
[9]
The learned Judge granted leave for advocate Masipa to withdraw.
The
appellant applied for a postponement which, despite being opposed was
granted. The appellant was ordered to pay the costs occasioned
by the
postponement.
[10]
The trial resumed again on 18 December 2017. The appellant who
appeared in person applied for a postponement on the basis that
his
attorneys informed him that very morning, at the proverbial eleventh
hour, that they have withdrawn as his attorneys.
[11]
The learned Judge refused the application for a postponement, despite
protestation by the appellant that he is able to proceed
unrepresented. The following exchange then took place between counsel
for the applicants and the learned Judge:
"
ADV MODISA
:
M'Lord our second witness was still under cross-examination. I do not
know whether that witness would be excused or what the procedure
should will be. Because, we intend to call Mr Dipou Seleka our next
witness, because we already led the evidence with Mr Reuben
Seleka
who was still under cross-examination. As per the transcript.
COURT
: So who was
under cross-examination?
ADV MODISA
: Ruben
Seleka
COURT
:
Cross-examined by?
ADV MODISA
: By Mr
Masipa Counsel for,
COURT
: Yes. But he
is not before court.
ADV MODISA
: Yes I
am just saying will we be proceeding. I am no longer going to pose
any questions to Mr. Reuben Seleka. I am asking your
Lordship whether
that witness should be excused formally or should I call the next
witness?
COURT
: Yes. I
think I need to maybe excuse that witness and then to allow you to
call your next witness."
[12]
At the end of the exchange the next witness was called without the
appellant having been informed that he has the right to
cross-examine
the witness or having been given the opportunity to cross-examine the
witness.
[13]
This appeal turns on the question whether the failure to inform the
appellant, who appeared in person, has the right to cross-examine
and, of course, to allow him to continue with cross-examination of
the witness is an irregularity which
vitiates
the trial.
[14]
Section 34 of the Constitution, which is applicable to civil trials,
states:
"Everyone has the
right to have any dispute that can be resolved by the application of
the law decided in a fair public hearing
before a court or, where
appropriate, another independent and impartial tribunal or forum."
[15]
Section 35(3)(/) which applies to criminal trials states:
"Everyone accused
person has a right to a fair trial, which includes the right-
(a)....
(i)
to adduce and challenge evidence."
[16]
The Constitution makes a distinction between civil and criminal
trials. Criminal proceedings are governed by section 35 and
are not
regarded as 'disputes' in the ordinary sense. In addition, an accused
person has a statutory entrenched right in terms
of section 166(1) of
Criminal Procedure Act
[1]
to
cross-examine witness called by the State, which right is fortified
by the provisions of section 35(3)(1) of the Constitution.
[2]
The Constitutional Court in
S
v Pennington
[3]
stated:
"The words 'any
dispute' may be wide enough to include criminal proceedings, but it
is not the way such proceedings are ordinarily
referred to. That s 34
has no application to criminal proceedings seems to me to follow not
only from the language used but also
from the fact that that s 35 of
the Constitution deals specifically with the manner in which criminal
proceedings must be conducted."
[17]
These differences apart, both sections, significantly, require that
criminal and
civil trials be fair. The mere fact that different
sections require that civil and criminal trials be fair cannot be a
bar to a
court, in appropriate instances, to consider unfairness of a
civil trial with reference to similar instances of unfairness in
criminal
trials. Fairness in this context is a flexible term. In
de
Beer NO v North-Central Local Council and South-Central Local Council
and Others (Umhlatuzana Civic Association Intervening)
[4]
the
court referred to what a fair hearing is within the meaning of
section 34:
"This section 34
fair hearing right affirms the rule of law which is a founding value
of our Constitution. The right to fair
hearing before a court lies at
the heart of the rule of law. A fair hearing before a court as a
prerequisite to an order being
made against anyone is fundamental to
a just and credible legal order. Courts in our country are obliged to
ensure that the proceedings
before them are always fair. Since
procedures that would render the hearing unfair are inconsistent with
the Constitution courts
must interpret legislation and Rules of
Court, where it is reasonably possible to do so, in a way that would
render the proceedings
fair."
[18]
The right to cross-examine is a procedural right which relates to the
law of evidence
which has its origins in the adversarial trial
procedure that is practised in South Africa. The adversarial or
accusatorial procedure,
explained Schwikkard and Van Der Merwe,
[5]
proceeds
from the standpoint that it is a process that allows for opposing
parties to come near as possible to the truth by allowing
litigants
to adduce evidence which guarantees cross-examination of the
witnesses produced by the opponent, but also guarantees
the right of
the opponent to cross-examine your own witnesses. The right to
cross-examination is, therefore, a vital procedural
right in a
process which allows for a party to present evidence which is
favourable to its case.
[19]
In
Waterhouse
v Shields
[6]
Gardiner
J held that South African Courts, as a general rule, follow the
English law of evidence in civil cases. In the case the
question
arose whether a witness which was called to produce certain
documents, could be cross-examined on general issues. He concluded:
"In these
circumstances, according to the Law of England, the other party than
the one producing the witness has full right
of cross-examination,
and it seems to me that Mr Close is fully entitled to cross-examine
the witness generally upon the case."
[7]
[20]
In
Caroll
v Carroll
[8]
the permissibility of a witness being told what a previous witness
has testified about a subject and asked if the witness contradicts
the evidence, was in dispute. The Court applied the rules of English
law and stated:
"The objects sought
to be achieved by cross-examination are to impeach the accuracy,
credibility, and the general value of
the evidence given in chief; to
sift the facts already stated by the witness, to detect and expose
discrepancies or to elicit suppressed
facts which will support the
case of the cross-examining party."
[21]
In
Distillers
Korporasie (SA) Bpk v Kotze
[9]
counsel
for the defendant applied to call a witness after counsel for the
plaintiff pointed to certain shortcomings in the evidence.
The
application was granted on the bais that the evidence should be
confined to only one matter. The defendant who had not previously
given evidence was called to give evidence as to the make and model
of a tractor. Counsel for the plaintiff when he cross-examined
the
defendant insisted that his cross-examination not be confined to the
make and model of the tractor but that he may also ask
questions in
relation to the credibility of other witnesses. The learned Judge
refused cross-examination on any other aspect than
the one point. On
appeal the Appellate Division held:
"The first question
to be considered was whether there had been an irregularity. The
answer could not be in doubt. The disallowance
of proper questions
sought to be put a witness by cross-examination is an irregularity
which entitles the party represented by
the cross-examiner to relief
from a Higher Court, unless that Court is satisfied that the
irregularity did not prejudice him."
[10]
[22]
The court was satisfied that an irregularity occurred which
prejudiced the plaintiff.
[23]
I have come to the conclusion from a consideration of the authorities
that the right
to cross-examination in civil cases is a deeply
engraved procedural right which is the bedrock of a fair trial, as
envisaged by
section 34 of the Constitution.
[24]
The appellant was prevented from exercising his right to consider
crossexamination of the witness
in the first place, when the witness
was excused from further attendance without any reference to the
appellant who was present
in court, and in the second place, because
he was unable to exercise his right to cross-examine the witness. The
appellant was
without any doubt prejudiced by the irregularity to
fully cross-examine the witness. The irregularity was so serious that
it resulted
in an unfair trial in terms of section 34 of the
Constitution.
[25]
I am satisfied that the prospects of success on appeal are excellent
and for this
reason alone condonation should be granted.
[26]
It was pointed out by counsel for the respondents that the attention
of the learned
Judge was drawn to the fact that the witness was still
under cross-examination. Counsel for the respondents readily conceded
that
an irregularity was committed by the learned Judge, but left it
to the court to decide whether it was prejudicial to the appellant
to
the extent that the proceedings be set aside.
[27]
The learned Judge has delivered a judgment after taking the
credibility of all the
witnesses into account. It seems to me,
therefore, that it is not advisable to refer the case back to the
court a quo.
[28]
Item 2 of Part B of the Limpopo Traditional Leadership and
Institutions Act
[11]
requires
from the traditional council of a traditional community to
investigate alleged misconduct (as defined in Item 1) of a
traditional leader and if satisfied that a traditional leader is
guilty of misconduct may in consultation with the royal family
refer
the matter to the Premier with a recommendation on the appropriate
measure to be taken. This course must be followed before
the
traditional council or the royal family may approach the court for
relief. Item 1 of Part B reads:
"A traditional
leader is guilty of misconduct and may be dealt with in accordance
with the provisions of item 2, if the traditional
leader-
(a)
contravenes or fails to comply with any provisions of this Act or
fails to perform any duty or to discharge any obligation imposed upon
the traditional leader by or under any other law;
(b) is negligent,
careless or indolent in the discharge of his or her duties;
(c) is unable
to execute his or her duties in an efficient manner;
(d) disobeys,
disregards or makes wilful default in carrying out a lawful order
given to him by a person having authority
to give it;
(e)
conducts himself or herself in a disgraceful, improper or unbecoming
manner,
(f)
is found guilty by a court of law, for any offence with
an element of
violence or dishonesty."
[29]
Neither in the Limpopo Act nor the in the Traditional Leadership and
Governance Framework Act
[12]
are
any references to an institution or a body called the "Royal
Council." It is thus with surprise that the founding
affidavit
refers to the second applicant as the "Seleka SA Motlhasedi
Royal Council" which, as the deponent stated, is
a council
constituted and formulated in terms of the Limpopo Act. Statutory
recognition is afforded to the "Royal Family"
[13]
as
defined in both Acts together with "traditional councils."
[14]
The said council is most likely a committee within the Royal Family,
and might therefore be another "customary institution
or
structure," as defined in the Limpopo Act. A Royal Council
cannot in terms of the Limpopo Act make any binding decision
to
remove a traditional leader. It is the function of the Royal Family.
The Royal Family has the obligation, under section 13(2),
to inform
the Premier of its decision to remove a traditional leader. But the
power to remove a traditional leader from his/her
position ultimately
lies with the Premier.
[15]
[30]
Under Part B to the Limpopo Act, a traditional council has the duty
to investigate
alleged misconduct, in consultation with the Royal
Family when that route is followed.
[31]
I have alluded to the fact that the appeal was noted against the
finding that the
applicants had locus standi. The question pertaining
to locus standi must still be addressed. I do not propose to make any
finding
in this regard.
[32]
Section 13 of the Limpopo Act provides a mechanism for a traditional
leader to be
relieved of his/her royal duties under specific
circumstances. Section 13(1) states:
"(1) Relief of royal
duties shall be on the grounds of-
(a) conviction of
an offence with a sentence of imprisonment for more than 12 months
without the option of a fine;
(b) physical
incapacity or mental infirmity which, based on acceptable medical
evidence, makes it impossible for that senior
traditional leader,
headman or headwoman to function as such;
(c) wrongful
appointment or recognition;
(d) a transgression
of a customary rule or principle that warrants removal; or
(e) persistent negligence
or indolence in the performance of the functions of his or her
office."
[33]
The applicants elected to take the route of section 13(2) to remove
the appellant instead of
taking the misconduct route, under Part B.
The allegations set out in the notice of removal attached to the
founding affidavit
(annexure MTS 6) may very well be good grounds for
removal of the appellant as senior traditional leader in terms of
section 13(2)
of the Limpopo Act, if proved to be true. It is not for
this Court to make any predictions and I specifically refrain from
voicing
any opinion in this regard.
[34]
The parties were agreed that if the trial should start de novo that
it be ordered
that pleadings be delivered to clearly and succinctly
define the various disputes. It is, in my judgment, a proper course
to take
under the circumstances. I am inclined to order that the
trial commence de novo before another Judge.
[35]
The appellant is successful on appeal although the irregularity in
the proceeding
was not pertinently raised in the notice of appeal.
Under the circumstances, it will be fair if the parties pay their own
costs
for the condonation application and the appeal.
[16]
ORDER
1 . Condonation is
granted for the late filing of the notice of appeal.
2.
The appeal is re-instated.
3.
The appeal is upheld.
4.
The order of the court a quo is set aside.
5.
The trial is to start de novo before another Judge.
6.
The notice of motion will be regarded as a simple summons.
7.
The answering affidavit will be regarded as a notice of intention to
defend.
8.
The applicants (the first and second respondent) shall deliver a
declaration within 15 days from the
date of this order.
9.
The rules of court will apply in relation to the continuation of the
proceedings from the date the declaration
is delivered.
10. No costs order is
made.
I
agree
GC
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
agree
MV
SEMENYA
ACTING
JUDGE OF THE HIGH COURT LIMPOPO
DIVISION:POLOKWANE
I
agree
EM
MAKWELA
ACTING
JUDGE OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
APPEARANCES
For the Appellant : GJ
Scheepers SC
For
the Respondent : HOR MODISA SC
Date
judgment reserved : 7 May 2021
Date
the judgment delivered : 28 May 2021
[1]
Act 51 of 1977.
[2]
S v Msimango
2010 (1) SACR 544
(GSJ) par 4.
[3]
1997 (4) SA 1076
(CC) par 46.
[4]
[2001] ZACC 9
;
2002 (1) SA 429
(CC) par 11.
[5]
Schwikkard PJ and van def Merwe SE Principles of Evidence 3
rd
ed
(2009) 9.
[6]
1924 CPD 155.
[7]
157-158.
[8]
1947 (4) SA 37
(D & CLD) 40.
[9]
1956 (1) SA 357 (A).
[10]
361G-H
[11]
Act 6 of 2005. (Hereinafter “the Limpopo Act”).
[12]
Act t 41 of 2003 (Hereinafter "the Framework Act".
[13]
Royal family means the core customary institution or structure
consisting of immediate relatives of the ruling family within
a
traditional community, who have been identified in terms of custom,
and includes, where applicable, other family members who
are close
relatives of the ruling family."
[14]
Established in terms of section 4 of the Limpopo Act and in terms of
section 3 of the Frame Work Act.
[15]
Section 13(3).
[16]
Bokoni Platinum Mines v Moropane (1035/2019)
[2020] ZASCA 168
(11
December 2020) par 27.