About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2021
>>
[2021] ZALMPPHC 31
|
|
Kobe and Others v Lebogo and Others (HCAA14/2020) [2021] ZALMPPHC 31 (28 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: HCAA14/2020
In
the matter between
HEADMAN
ENOS MATOME KOBE
FIRST
APPELLANT
MORUKHU
MATOME ALFRED
SECOND
APPELLANT
PHALA
NOTME SIMON
THIRD
APPELLANT
KGATLA
MASHILO PHILLIP
FOURTH
APPELLANT
KUBU
NGOAKO ABRAM
FIFTH
APPELLANT
LEBOGO
MOLOKO COURTLY
SIXTH
APPELLANT
LEKWARA
MATLOU ALBERT
SEVENTH
APPELLANT
MAILULA
KOLOBE PATRICK
EIGHT
APPELLANT
MANAKA
NHLODI SAMUEL
NINTH
APPELLANT
MABOYA
MKGODI WILSON
TENTH
APPELLANT
MALEKA
NTOME DALTON
ELEVENTH
APPELLANT
MONEYA
MADJADJI
TWELVETH
APPELLANT
THELEDI
MANTASE JACOB
THIRTEENTH
APPELLANT
AND
KGOSHI
NGOAKO ISSAC LEBOGO
FIRST
RESPONDENT
BAHANANWA
TRADITIONAL COUNCIL
SECOND
RESPONDENT
PREMIER
LIMPOPO
THIRD
RESPONDENT
MEC
OF COGHSTA
FOURTH
RESPONDENT
CHAIRPERSON
OF LIMPOPO
HOUSE
OF TRADITIONAL LEADERS
FIFTH
RESPONDENT
JUDGMENT
KGANYAGO J.
[1] The
appellants and/or their predecessors were the recognised
headmen/women of various villages which fell under
the authority of
senior traditional leaders Kgoshi Matome Wilson Lebogo who died in
1979, Kgoshi Matee Collin Lebogo who died in
1999, Kgoshi Ben Seraki
Lebogo who died in 2005, and Kgoshi Tlabo Joseph Lebogo whose senior
traditional leadership was set aside
by the Pretoria High Court on
28
th
January 2011. Subsequent to the setting aside of the
recognition of Kgoshi Tlabo Joseph Lebogo as a senior traditional
leader,
the Premier of Limpopo (third respondent) terminated the
recognition of Tlabo Joseph Lebogo and issued a certificate of
recognition
as a senior traditional leader to Kgoshi Ngoako Issac
Lebogo (first respondent) with effect from 29
th
April
2011.
[2]
The appellants avers that after the setting aside of the recognition
of Tlabo Joseph Lebogo as a senior
traditional leader, and following
the recognition of the first respondent as a senior traditional
leader by the third respondent,
the first respondent started purging
all headmen/women whom he labelled as being loyal to Tlabo Joseph
Lebogo. The appellants realized
that there were new headmen/women who
were taking over their responsibilities. On realizing that, on 30
th
April 2011 the appellants went to the tribal office to enquire about
their positions, but the first respondent and members of the
second
respondent chased them away telling them that they have lost their
case in the High Court and that the community does not
recognise them
as headmen/women. The first respondent even called the police to
remove them by force and were also told never to
lay foot in the
tribal office anymore.
[3]
During July and August 2011 whenever the appellants went to the
tribal office to sign pay rolls, the
first respondent and his council
members denied them access. The appellants lodged a complaint with
the fourth respondent who promised
to look into their matter. On 15
th
September 2011 the appellants received copies of the minutes and
resolutions taken by the second respondent at a meeting held on
9
th
September 2011. At that meeting the chairperson of the second
respondent told those attending the meeting that the headmen who
were
working with Tlabo Lebogo cannot be trusted and that the second
respondent had already written a letter to the fourth respondent
requesting it to suspend all the salaries of the headmen who were
supporting Tlabo Lebogo during their legal battle. The purpose
of
suspending their salaries was to eliminate them.
[4]
After receipt of the minutes and resolution of the meeting, the
appellants were approached by the task
team of the first respondent
who informed them to stop interfering with the newly identified
headmen/women. The appellants approached
the third and fourth
respondents to try and resolve their matter without success. On 12
th
April 2012 the first appellant obtained an order in the Pretoria High
Court against the first respondent wherein the first respondent
was
ordered to reinstate him as a headman with all the benefits. The
appellants submit that the first respondent never implemented
this
order.
[5]
According to the appellants, during August 2013 their salaries were
not paid, and when they complained
to the district manager they were
told that it was a mistake and that their salaries will be paid the
following month. During September
2013 the appellants received an
interdict order from magistrate Bochum obtained by the first
respondent on urgent basis wherein
the appellants were interdicted to
act as headmen/women.
[6]
During March and April 2014 the fourth respondent delegated a task
team to investigate whether the first
respondent had followed proper
procedures in removing the appellants from their positions, and also
whether customs and procedures
were followed in identifying the new
headmen/women. All the affected parties were invited to a meeting
which was held at the tribal
offices. At the end of the meeting the
fourth respondent promised them that the report of its findings will
be made within three
months. However, that never materialized, and
each time the appellants enquired about the report, they were
informed that the report
was with the office of the third respondent.
[7]
On 27
th
June 2015 the appellants attended a meeting which
was arranged by the chairperson of the traditional council. The
purpose of that
meeting was to reconcile the two factions of the
community. At that meeting the appellants learnt that the third
respondent had
removed them as headmen/women and had recognised new
headmen/woman.
[8] On 13
th
July 2015 the appellants and other headmen made a representation to
the third respondent that he internally review and nullify
his
decision to terminate the appellants recognition as headmen/women. On
5
th
August 2015 the appellants wrote a follow-up letter to
the third respondent about the progress of their representation. The
third
respondent replied them per his letter dated 13
th
August 2015 informing them that their representation has been
forwarded to the relevant person, and that they will be informed
about the progress.
[9]
The fourth respondent arranged a meeting with the appellants which
was held on 17
th
November 2015, and in that meeting the
third and fourth respondents were represented by Mr Lekganyane. In
that meeting it was agreed
that the other headmen/women who had
already instituted their review applications in the High Court must
instruct their attorneys
to put their matters on hold to enable the
third respondent to resolve the matter amicably. The ten headmen who
had already launched
their applications in the High Court instructed
their attorneys to put their applications on hold.
[10] On
19
th
July 2016 the appellants attended a meeting arranged
by Kgoshi Mathebe (advisor to third respondent), advocate Rammutla
(legal
advisor to third respondent), and Mr Mohlala (director and
anthropologist). In that meeting the internal review and the
memorandum
of complaints were discussed. At the end of the meeting it
was agreed that Kgoshi Mathebe will have an urgent meeting with the
third, fourth and fifth respondent wherein the appellants’
dispute will be discussed; that Kgoshi Mathebe at that meeting
will
recommend that the appellants’ matter be reopened for
investigation, and that the appellants were free to call Kgoshi
Mathebe about the progress of their matter.
[11] On 15
th
November 2016 the appellants held a meeting with the fourth
respondent, and at that meeting the fourth respondent was represented
by Mr Mohlala. In that meeting the issues that were discussed were
that the appellants were not given reasons why their salaries
as
headmen/women were stopped; why the third respondent terminated the
appellants’ recognition as headmen/women without following
proper procedures; and that the second respondent should at its own
meeting take a resolution in determining which issues should
receive
preference. According to the appellants, on 19
th
November
2016 the appellants and the second respondent held a meeting wherein
it was resolved that the third respondent should
continue to resolve
the issues of the headmen/women as a matter of urgency.
[12] On 21
st
February 2017 the appellants, second respondent, third respondent and
fourth respondent held a meeting. In that meeting it was
resolved
that the court order of reinstating the first appellant under case
number 69730/2011 be implemented as a matter of extreme
urgency, and
that the fifth respondent release a report of the investigations
conducted during 2014 by the committee of customs
and traditions led
by Kgoshi Sekororo and Kgoshi Kibi Lebogo, which report will guide
the third respondent regarding the appellants’
disputes.
[13] During
July 2017 the appellants received an invitation that all
headmen/women should combine their representation
and make one
representation about their dispute before the chairperson and the
executive of the Provincial House of Traditional
Leaders on 20
th
July 2017. The appellants complied with the invitation. After their
presentation, the appellants allege that they were informed
by the
chairperson of the executive committee that the first respondent had
already made his representation, and that he was told
that he did not
have the authority to remove the headmen in terms of section 13 of
the Limpopo Traditional Leadership Act 6 of
2005. The appellants aver
that at that presentation, the executive committee had assured them
that they will be reinstated as headmen/women
as a matter of urgency,
and further that they will be paid all their outstanding salaries
from the date the third respondent had
unlawfully removed them. The
appellants further aver that they were promised by the executive
committee that they will be provided
with the written report before
the end of the year of 2017. They did not receive the report as
promised.
[14] Seeing
that the report was not forthcoming, during February 2018 the
appellants sent their delegates to the House
of Traditional Leaders
to enquire about the report. Their delegates were advised that the
report has been sent to the third respondent
for implementation. When
the delegates enquired from advocate Rammutla about the report, he
told them that the report never reached
the third respondent’s
office. According to the appellants from February 2018 to September
2018 they were taken from pillar
to post about the report.
[15] According to
the appellants it was during September 2018 that they felt that they
have exhausted all the internal remedies
and took a decision to
embark on a legal route. The appellants launched their review
application on 11
th
February 2019. In their review
application they are seeking orders for condonation for late filing
of their review application;
that the decision taken by the third
respondent to remove them or their predecessors as headmen/women be
reviewed and set aside;
and that they be reinstated to their
positions with full back-pay without any loss of benefits.
[16] The
appellants grounds of review are that the third respondent when he
took the decision to remove the appellants
as headmen/women did not
follow procedures for misconduct as laid down in Schedule 2, Part B,
and item 2 of Act 6 of 2005; that
the third respondent when he took
decision to remove the appellants did not follow the provisions of
section 13 of the Limpopo
Traditional Leadership and Institutions Act
6 of 2005; that first and second respondents have replaced the
appellants with other
persons who are not even members of the
appellants royal families; and that some of them are not even members
of the appellants
respective communities; that the first respondent
or first respondent’s royal family is not a proper customary
structure
to remove the appellants as headmen/women; and that the
respondents took the decision to remove the appellants without
informing
them, and also without giving them an opportunity to make
representations.
[17] On
receipt of the record filed by the respondents regarding the basis of
their decision to remove the appellants
as headmen/women, the
appellants filed a supplementary affidavit. In the supplementary
affidavit the appellants dispute receiving
a letter dated 24
th
February 2012 which was allegedly from the first respondent informing
the appellants of his intention to apply to the third respondent
for
an approval and decision to remove them as headmen/women. In that
letter the appellants are invited to make representation
before the
Bahananwa Royal Family on 17
th
March 2012 at 10h00. The
said letter was allegedly served by the sheriff on one Gilbert
Lebogo-Leader on 10
th
March 2012 on behalf of all the
appellants. The appellants state that Gilbert is not a headman, and
not an employee in the tribal
office. The appellants further submit
that had they been served with that letter, they would have appeared
before the royal family
and community on 17
th
March 2012
and make their representation. The appellants also dispute the
correctness of the contents of that letter.
[18] The
appellants further submit that according to the resolution of the
Bahananwa Royal Senior Council taken at the
meeting of the 17
th
March 2012 and signed by the first respondent and other members of
the royal family, the first respondent was supposed to have
notified
all affected headmen/women of their intention to be removed. The
appellants alleges that the first respondent never notified
them
about that resolution. The appellants further submit that the senior
royal family was not a proper structure to remove them
as
headmen/women, and that it was their respective royal families which
should have done so.
[19] The
first and second respondents in their opposing answering affidavit
have raised four points in limine. The first
point in limine being
that of undue delay by the appellants in bringing the review
application; second one being that of non-joinder
of Bahananwa royal
family; third one that of non-joinder of so-called village royal
family; and the fourth one that of misjoinder
of the fourth, sixth
and thirteenth appellants.
[20] The
first and second respondents in their answering affidavit have
submitted that the protracted legal battle between
the first
respondent and Tlabo has created division between some royal family
and headmen/women within first respondent’s
area of
jurisdiction. According to the first and second respondents, Gilbert
Malebogo is a member of the royal family and he supported
Tlabo, and
that the headmen/women who supported Tlabo viewed Gilbert as their
leader, and second in command to Tlabo.
[21] The
first and second respondents aver that after the inauguration of the
first respondent as senior traditional
leader during April 2011, the
first respondent made several attempts to unify his subjects.
According to the first and second respondents,
some of his subjects
did welcome his reconciliatory efforts, and were reinstated to their
former positions as headmen/women. However,
those who supported Tlabo
and Gilbert did not embrace his reconciliatory efforts, and even
refused to turn up for meetings, and
also to come and sign the
payroll. That on 19
th
January 2012 the first respondent
wrote a letter to the third and fourth respondents notifying them
that the appellants did not
come to sign the payroll due to their
allegiance to Tlabo whom they regard as their leader.
[22] The
first and second respondents aver that the senior royal family took a
resolution that the headmen/women who
have rejected the first
respondent’s reconciliatory efforts did not display any
allegiance to the traditional authority,
were in transgression of
their customary rules and principles through their conduct, and were
persistent in their negligent non-performance
of their duties as
headmen/women, ought to be relieved of their duties as headmen/women.
That the headmen/women who were identified
for removal were invited
by both the senior royal family and second respondent on numerous
occasions to attend meetings but, they
failed to honour the
invitations. That the royal family of the first respondent even
formed a task team to try and reach out to
those who still showed
their allegiance to Tlabo without success.
[23] The
first and second respondents alleges that after these efforts of
trying to reconcile with those who support
Tlabo had failed, they
wrote a final letter to the appellants which was served by the
sheriff of the court on Gilbert Lebogo on
10
th
March 2012.
According to the first and second respondents, on 10
th
March 2012 the sheriff went to the homestead of the late Seraki Ben
Lebogo whose residence was used by the appellants as their
offices/workplace with the intention to serve the letters on the
appellants. On arrival at Seraki’s homestead, the sheriff
was
met by Gilbert. Gilbert informed the sheriff that he will receive the
letters addressed to the headmen/women and will make
sure that each
of them receive those letters.
[24] The first and
second respondents aver that on 17
th
March 2012 the
Bahananwa Royal Family took a resolution that the appellants be
removed from their positions as headmen/women since
appellants have
failed to come and make representations despite being duly notified.
Thereafter the royal family waited for a year
before they sent their
resolution to the third respondent. According to the first and second
respondents, the reason why they waited
for a year before they sent
their resolution to the third respondent was that they hoped that the
appellants will come forward
and reconcile with the first respondent.
Seeing that the appellants were not coming forward, on 29
th
March 2013 the royal family informed the third respondent of their
decision to remove the appellants as headmen/women.
[25] The
third to fifth respondents have raised three points in limine in
their opposing answering affidavit. Their
points in limine are that
of abuse of the court processes, res judicata and lack of locus
standi. On the merits of the application,
the third to fourth
respondents submitted that a headman is never born, but identified
and appointed by the senior traditional
leader and the royal family
concerned, and can therefore be changed from one family to another in
terms of the customs and practices
of Bahananwa traditional
community. The third to fifth respondents avers that the appellants
during their tenure as headmen/women,
were found guilty of certain
offences and misconduct by first and second respondents that resulted
in them being relieved of their
responsibilities as headmen/women.
The third to fifth respondents submit that according to their
records, the appellants were given
an opportunity to state their case
by the first and second respondents before their removal.
[26] When
this matter came before MG Phatudi J, despite the points in limine
raised by the respondents, the parties
agreed to argue the merits of
the application. MG Phatudi J dismissed the appellants’
application for condonation for late
launching of their review
application, and also dismissed the application for review and
setting aside of the decision of the third
respondent to remove the
appellants or their predecessors as headmen/women.
[27] The
appellants are appealing the whole judgment and order of MG Phatudi
J, and the appeal is with the leave of
the Supreme Court of Appeal.
The appellants’ grounds of appeal are that the court a quo
erred in refusing to grant the appellants
condonation for late filing
of their review application; and further that the court a quo erred
in dismissing the appellants’
application notwithstanding the
fact that the removal of the appellants as headmen was not done in
accordance with section 13 of
the Limpopo Traditional Leadership and
Institutions Act 6 of 2005.
[28] The
issues which this court is required to determine are whether the
court a quo was correct in refusing to grant
the appellants
condonation for late filing of their review application, and also in
dismissing the appellants’ review application.
The other
question is whether a condonation application was necessary in this
application.
[29]
The main factor for consideration whether to grant condonation for
the late filing of the appellant’s application
is whether it is
in the interest of justice to do so. In
Van
Wyk v Unitas Hospital
[1]
the
Court said:
“
This
court has held that the standard for considering an application for
condonation is the interest of justice. Whether it is in
the interest
of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant to
this enquiry
include but are not limited to the nature of the relief sought, the
extent and cause of the delay on the administration
of justice and
other litigants, the reasonableness of the explanation for the delay,
the importance of the issue to be raised in
the intended appeal and
the prospects of success.”
[30]
The appellants have brought their review application in terms of Rule
53 of the Uniform Rules of Court (the Rules)
and section 6 of
Promotion
of Administrative Justice Act
[2]
(PAJA).
Section
7(1) and (2) of PAJA read as follows:
“
(1)
Any proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay
and not
later than 180 days after date-
(a)
Subject to subsection (2)(c), on which any
proceedings instituted in terms of internal remedies as contemplated
in subsection (2)(a)
have been concluded; or
(b)
Where no such remedies exist, on which the person
concerned was informed of the administrative action, became aware of
the action
and reasons for it or might reasonably have been expected
to have become aware of the action and reasons.
(2)(a) Subject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless any internal
remedy provided for
in any other law has first been exhausted.
(b) Subject to paragraph
(c), no court or tribunal must, if not satisfied that any remedy
referred to in paragraph (a) has been
exhausted, direct that the
person concerned must first exhaust such remedy before instituting
proceedings
in a court or tribunal
for judicial review in terms of this Act.
(c) A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such
person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[31]
According to the first and second respondents, Bahananwa royal family
took a resolution on 17
th
March 2012 to remove the
appellants as headmen/women. However, there is no proof that the
appellants were notified of that resolution
immediately after it was
taken. The first and second respondents notified the third respondent
about that resolution a year later
on 29
th
March 2013. The
third respondent took a decision to remove the appellants as
headmen/women on 29
th
July 2013. There is no proof that
the third respondent at any stage brought its decision to the
attention of the appellants.
[32] Before
the third respondent took a resolution to remove the appellants as
headmen/women, the appellants had already
initiated a process of
trying to resolve their dispute with first and second respondents by
engaging the third and fourth respondents.
Even after the appellants’
salaries were stopped during August 2013, the appellants continued
trying to resolve the matter
internally. Whilst this process of
trying to resolve the matter internally was unfolding, other headmen
instituted their review
applications. However, there was an agreement
between Mr Lekganyane representing third and fourth respondents that
those review
applications be held in abeyance to give that process of
resolving their dispute internally to run its course. That led to a
meeting
that was held 21
st
February 2017 where the
appellants made their presentations to a committee formed by the
third and fourth respondents to resolve
the appellants dispute.
[33] At the
end of the appellants’ presentation, the appellants were
promised to receive the outcome of that investigation
before the end
of year of 2017. The appellants waited for the outcome until
September 2018, and seeing that nothing was forthcoming,
the
appellants felt that they have exhausted all internal remedies and
took a decision to go the legal route. The appellants’
review
application was instituted on 11
th
February 2019.
[34]
It was never disputed by the respondents that during 2016 there was
an agreement between the appellants and Mr
Lekganyane representing
both third and fourth respondents that the review applications
of other headmen be held in abeyance
pending the finalisation of the
internal remedies the parties have embarked on. The meeting of the
executive committee of the 21
st
February
2017 was never disputed by the respondents. The respondents also did
not dispute the appellants’ version that they
never received
the outcome of the meeting of 21
st
February
2017. In my view, this matter dragged for a long time as a result of
the parties trying to resolve the matter internally.
In terms of
section 7(2)(a) of PAJA any party who intends to review an
administrative action must first exhaust internal remedies.
In terms
of section 21(1) of the
Traditional
Leadership and Governance Act
[3]
which
is a national legislation which provides for traditional leadership
as an institution at local level on matters affecting
local
communities, disputes concerning customary law or customs between the
traditional communities must first be resolved internally
in
accordance with customs or claim.
[35]
In
Netshimbupfe
and Another v Carthcart and Others
[4]
Mothle
AJA in the majority judgment at para 18 said:
“
The
legislative framework in my view is couched in terms which expert
parties to a dispute which arise out of customary law, custom
or
processes, to first turn to the statutory processes provided for in
legislation, before approaching courts. This view
finds
support in the Framework Act and court precedents. Section 21(1) of
the Framework Act, dealing with disputes and claim resolution,
provides that the parties to the dispute or claim must seek to
resolve the dispute internally and in accordance with customs before
such dispute or claim may be referred to the Commission’ (my
emphasis). Section 21(2) (a) of the same Act also refers to
the house
of traditional leaders being obliged to resolve the dispute or claim
in accordance with its internal rules and procedures
(my emphasis).”
[36] All
these years the parties were trying to resolve the matter internally.
It was only in September 2018 that the
appellants felt that they have
exhausted all the internal remedies. When the appellants instituted
their review application on
11
th
February 2019, it was
still within the 180 days as stipulated in section 7(1) of PAJA.
Therefore, there was no need for the appellants
to have brought a
condonation application for late filing of their review application.
[37] Even if
the appellants were required to bring a condonation application, the
interest of justice would have required
the granting of condonation
of the appellants late filing of their review application. This is a
sensitive matter that has divided
the communities on which the first
and second respondents had to exercise authority. It is a dispute
which should be resolved on
its merits even if the outcome of it will
not satisfy everybody, for the matter to be laid to rest once and for
all. The court
a quo correctly pointed out that matters of this
nature should be approached with caution because of the impact it has
on the lives
of the people. The court a quo went on to state that it
will make an order to resolve the matter and that reasons for the
order
will follow.
[38] The
reasons for the court a quo to refuse the appellants’
condonation application appears in the judgment
for leave to appeal.
From the judgment of leave to appeal, the court a quo only considered
one factor which is the degree of lateness.
The court a quo took into
consideration that the decision which the appellants are seeking to
review was taken during July 2013
which was six years down the line.
What the court a quo overlooked was firstly, there was no evidence as
to when this decision
to remove the appellants was brought to the
attention of the appellants for them to be aware of it. Secondly,
there were other
headmen who instituted review proceedings, but there
was an agreement to hold those review proceedings in abeyance in
order to
give the parties an opportunity to exhaust their internal
remedies. The court a quo therefore did not give any weight to the
internal
remedies that the parties have embarked on. Thirdly, the
court a quo did not deal with the explanation for the delay,
prospects
of success and the prejudice which the appellants might
suffer as a result of the refusal of their condonation application.
In
my view, the court a quo erred in refusing to grant the appellants
condonation for late filing of their review application, whilst
in
actual fact it was not even necessary for them to have brought a
condonation application.
[39]
Turning to merits, the first issue to be determined is whether the
appellants were given a fair hearing before the first and
second
respondents notified the third respondent to remove them as
headmen/women. The audi-alteram partem rule is a fundamental
principle of our law which is enshrined in our constitution. Section
33(1) and (2) of
The
Constitution of the Republic of South Africa Act
[5]
read
as follows:
“
(1)
Everyone has a right to administrative
action that is lawful, reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to
be given written reasons.”
[38]
In
South
African Roads Boards v Johannesburg City Council
[6]
Milne
JA said:
“
For
the audi principle applies where the authority exercising the power
is obliged to consider the particular circumstances of the
individual
affected. Its application has a two-fold effect. It satisfies the
individual’s desire to be heard before he is
adversely
affected; and it provides an opportunity for the repository of the
power to acquire information which may be pertinent
to the just and
proper exercise of the power.”
[40] The first and second
respondents in discharging their duties are performing a public
function, and therefore their action amount
to an administrative
action. A party to an administrative action inquiry must be afforded
an opportunity to state his/her case,
if such a decision is likely to
affect his/her rights. The administrative decision that is
prejudicial must be communicated to
the affected party to enable that
party to rebut such facts.
[41] The
appellants were accused by the first and second respondents of not
having an allegiance to the first respondent,
and the first and
second respondents wanted the appellants to give reasons why
they should not be removed as headmen/women.
It was clear that any
adverse decision to be taken against the appellants in relation to
these accusations was going to affect
their rights and also
prejudicial to them. According to the first and second respondents,
the appellants were served with notification
letters on the 10
th
March 2012 to attend a hearing which was set down on 17
th
March 2012. The purpose of that hearing was to give the appellants an
opportunity to make representations before the traditional
council as
to why they should not be removed as headmen/women. According
to the sheriff’s return of service, the appellants’
letters were served on one Gilbert Lebogo. It is the first and second
respondents’ contention that Gilbert has informed the
sheriff
that he will receive the letters on behalf of the appellants and that
he will make sure that each of them receive those
letters. The
appellants deny receipt of those letters.
[42] The
question is whether the manner in which the appellants were served
can be regarded as proper service. According
to the first and second
respondents, the sheriff was going to serve the letters to the
appellants at the house of the late Seraki
Ben Lebogo, which house
the appellants were using as their office/workplace. The appellants
before their removal were headmen/women
from various villages, of
which each village will have its own traditional office wherein these
headmen/women will conduct their
usual day to day business. At this
stage they were not yet removed as headmen/women. Therefore, their
offices would have been their
respective traditional offices. Service
of any documents should have been effected at their homesteads or
workplaces.
[43] This was a personal
matter wherein the status of each headman/woman was going to be
decided, and it was therefore vital to
have effected personal service
on each headman/woman. There is no evidence that Gilbert served the
documents on the appellants,
except for sheriff in his affidavit
alleges that Gilbert told him that he will receive those letters on
behalf of the appellants.
The appellants aver that their place of
employment was Bahananwa tribal offices and that Gilbert was not
employed there. In my
view, the manner in which the appellants were
served with the letters to attend their hearing was not proper. The
appellants aver
that had they received their notifications, they
would have attended the hearing and made their representations. They
were denied
that opportunity as a result of the manner in which
service of the letters was effected on them. In my view, the
procedure that
the first and second respondents have followed in
dealing with the appellants’ issues was procedurally unfair,
and has offended
the provisions of section 33(1) of the
Constitution.
[44] The first and second
respondents have convened a meeting on 9
th
September 2011.
Those who have attended that meeting, were informed by the
chairperson of the second respondent that they had already
written a
letter to the fourth respondent to suspend the salaries for all
headmen who did not support the first respondent so that
they could
eliminate them. The newly identified headmen were assured that their
positions were safe. It was known that those who
did not support the
first respondent were the appellants. A decision to eliminate the
appellants was taken even prior to the 17
th
March 2012.
Even if the appellants have attended that hearing and make their
representations on 17
th
March 2012, it would not have
served any purpose as that hearing was not meant to acquire
information which may be pertinent for
the first and second
respondents to exercise their powers in a just and proper manner. The
purpose of that hearing was a mere formality
to remove them. In my
view, with that preconceived decision, the appellants would not have
received a fair hearing even if they
had attended it.
[45] The decision of the
17
th
March 2012 had adversely affected the
appellants, however, the first and second respondents did not notify
the appellants
and also give the appellants written reasons for that
decision before transmitting that decision to the third respondent
for implementation,
despite the decision been taken in the absentia
of the appellants. The appellants realised that they were no longer
headmen/women
at a meeting of the 27
th
June 2015, two
years after the decision, and also without any notification and
reasons for that. The first and second respondents
have therefore
offended the provisions of section 33(2) of the Constitution in
failing to give the appellants written reasons for
their decision of
the 17
th
March 2012.
[46]
The appellants’ successors were identified by the royal family
of the senior traditional leader. The procedure for recognising
a
headman/woman is regulated by section 12 of the
Limpopo
Traditional
Leadership
and Institution Act
[7]
(LTLTA)
which
read as follows:
“
(1)
Whenever a position of a senior traditional leader, headman or
headwoman is to be filled-
(a)
The royal family concerned must, within a
reasonable time after the need arises for any of the positions to be
filled, and with
due regard to the customary law of the traditional
community concerned-
(i)
Identify a person who qualifies in terms of
customary law of the traditional community concerned to assume the
position in question;
and
(ii)
Through the relevant customary structure of the
traditional community concerned and after notifying the traditional
council, inform
the Premier of the particulars of the person so
identified to fill the position and of the reasons for the
identification of the
specific person.
(b)
The Premier must, subject to subsection (2)-
(i)
By notice in the Gazette recognise the person so
identified by the royal family in accordance with paragraph (a) as
senior traditional
leader, headman or headwoman, as the case may be;
(ii)
Issue a certificate of recognition to the person
so recognised; and
(iii)
Inform the provincial house of traditional leaders
and the relevant local house of traditional leaders of the
recognition of a senior
traditional, headman or headwoman.
(2)
Where there is evidence or allegation that the identification of a
person referred to
in subsection (1) was not in accordance
with customary law, customs or processes, the Premier-
(a)
may refer the matter to the provincial house of traditional leaders
and the relevant local
house of traditional leaders for their
recommendations; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to the royal family for
consideration and resolution where the
certificate of recognition has
been refused.
(3) Where the
matter which has been referred back to the royal family for
reconsideration and resolution in terms of subsection
(2) has been
reconsidered and resolved, the Premier must recognise the person
identified by the royal family if the Premier is
satisfied that the
reconsideration and resolution by the royal family has been in
accordance with customary law.”
[47] What
follows is whether the royal family of the first and second
respondents which is the royal family of the senior
traditional
leader, had the powers to identify the successor of the appellants.
In terms of section 1 of the LTLTA a headman/woman
is under the
authority of or exercises authority within the area of jurisdiction
of a senior traditional leader. When the appellants
were still
headmen/women, they therefore fell under the authority of the first
respondent. As I have already pointed out in paragraph
46 above, the
successors to the appellants have been identified by the royal family
of the first respondent.
[48] The
LTLTA is silent as to which royal family between that of the senior
traditional leader and headmen/women has
the authority and powers to
identify a successor to the headman/woman. The royal family plays a
pivotal role in the identification
of senior traditional leader and
headman. In the case of identifying a senior traditional leader,
there are no complications since
it is only one royal family
involved. With regard to the headman/woman, the question is which
royal family has the power and authority
to identify a successor of a
headman/woman since the headman/woman is under the authority or
exercises authority within the area
of jurisdiction of a senior
traditional leader. Since the senior traditional leader is having
authority over the headman/woman,
does that mean that the senior
traditional leader has the authority and power to unilaterally
identify the successor and impose
him/her to the royal family of the
headman/woman.
[49]
The LTLTA recognizes the establishment of a royal family for senior
traditional leader and that of headman/woman. If it was
the intention
of the legislature of the LTLTA that the royal family of the
headman/woman plays a lessor role, it would have clearly
stated that,
and the limited role which it was supposed to play. In my view, the
royal family of the senior traditional leader
will be responsible for
the identification of a successor to a senior traditional leader,
whilst that of the headman/woman will
be responsible for the
identification of the successor of the headman/woman. (See
Tshibvumo
Royal
Family
and Another v Rambuda and Others
[8]
.
It
therefore follows that the successors to the appellants’
positions were not properly identified and recognised. The
appellants’
successors were even identified by the first and
second respondents before the 9
th
September
2011, before the appellants could be given an opportunity to make
representations. Had this issue of identification of
the appellants’
successors been left to the appellants’ royal family, this
situation would not have arisen.
[50] As per
memorandum dated 29
th
March 2012, which was a
representation by the first and second respondents to the third
respondent for the removal of the appellants
as headmen/women, at the
hearing of the 27
th
March 2012 the appellants were found
guilty of ten counts of misconduct. Schedule 2 Code of Conduct, Part
B item 2 of the LTLTA
deals with the procedure to be followed in case
a traditional leader was accused of misconduct.
[51] Item 2
read as follows:
“
(1)
If a traditional leader is accused of misconduct as defined in item1,
the traditional council of the traditional community concerned
must
enquire into the allegations in accordance with the customary law of
the traditional community concerned. An enquiry in terms
of this
subsection must observe the rules of natural justice.
(2) If the
traditional council is, after the enquiry referred to in subitem (1)
of the opinion that a traditional leader
is guilty of misconduct, the
traditional council may, in consultation with the royal family, refer
the results of its enquiry together
with a recommendation on the
appropriate measures to the Premier.
(3) (a) The
Premier must, within seven days of receipt of the results of the
enquiry in terms of subitem (2), refer
the matter to the provincial
house of traditional leaders for its recommendation.
(b) The provincial house
of traditional leaders must consider the matter and refer its
recommendation to the Premier within 14 days
of receipt of the matter
from the Premier.
(4)
If after receipt of the recommendation of the provincial house of
traditional leaders the Premier
is satisfied that the traditional
leader is guilty of misconduct, the Premier may, with due regard to
the recommendations of the
traditional council and the provincial
house of traditional leaders-
(a) caution or reprimand
the traditional leader;
(b) impose on the
traditional leader a fine;
(c) direct that the
traditional leader must not be paid remuneration for a specific
period;
(d) impose a combination
of paragraphs (b) and (c); or
(e) refer the matter to
the royal family with an instruction that the matter be dealt within
accordance with section 13 of this
Act, if the Premier is satisfied
that the matter falls within the ambit of the said section.
(5) The
Premier may, in his or her discretion, before acting in terms of
subitem (4), appoint a committee to carry out
a further inquiry into
the alleged misconduct.
(5) The
Premier may order that the provisions of Limpopo Commissions of
Inquiry Act, 2001 (Act 4 2001) must apply to
any inquiry in terms of
subitem (5).”
[52] What
transpired in the appellants’ case was that after they were
found guilty of various counts on misconduct
on 17
th
March
2012, the first and second respondents immediately took a resolution
that the appellants be removed as headmen/women. That
resolution
together with their memo was sent to the third and fourth respondent.
In turn the fourth respondent prepared a memo
on 9
th
July
2013 to third respondent recommending the removal of the appellants.
The said memo was supported by general manager Traditional
Affairs,
senior general manager Local Governance and Head of Department. The
third respondent approved the recommendations for
the removal of the
appellants on 29
th
July 2013. It is clear that third
respondent has not complied with the provisions of Schedule 2, Part
B, item 2, before approving
the appellants’ removal as
headmen/women.
[53] What
transpired in this matter was a serious miscarriage of justice. The
appellants were found guilty of various
counts of misconducts by an
inquiry constituted by the first and second respondents. What should
have followed after that guilty
verdict, was for the first and second
respondents to have sent the results of that inquiry with their
recommendations to the third
respondent. At that stage it was still
premature for the first and second respondents to have taken a
resolution to remove the
appellants. The third respondent on receipt
of the results of the inquiry was supposed to act in terms of item 2
of Part B of Schedule
2 Code of Conduct of which he has failed to do
so. Instead of following that procedure the fourth respondent
embarked on its own
procedure not provided for in the Code. The first
and second respondents would have been competent to take a
resolution, (if they
had those powers to recommend for the removal of
the appellants) if the third respondent had opted to act in terms of
item 2(4)(e)
of Part B of Schedule 2 Code of Conduct.
[54] The
manner in which the inquiry was held by the first and second
respondents was procedurally unfair towards the
appellants; the royal
family of the first and second respondents did not have authority and
powers to identify the successors to
the appellants; and the third
and fourth respondents in removing the appellants as headmen/women
have disregarded the material
procedure provided for in Part B of
Schedule 2, Code of Conduct. Therefore, in terms of section 6(2)(b)
of PAJA, this court is
empowered to review the administrative action
taken by the third respondent. In my view, the procedure followed by
the respondents
in removing the appellants is full of several serious
irregularities which will not be condoned.
[55] In the
result the following order is made:
55.1 The appeal is upheld
with costs.
55.2 The order of the
court a quo is set aside and substituted with the following:
“
55.2.1
That there is no need for the applicants to bring a condonation
application.
55.2.2 That the
decision of the Limpopo Premier to remove the applicants’
and/or their predecessors as headmen or headwomen
of their respective
villages of Bahananwa Traditional Community which was taken on 29
th
July 2013, is reviewed, set aside and nullified.
55.2.3 That the
applicants and/or their predecessors are reinstated as headmen or
headwomen of the Bahananwa Traditional Community
with immediate
effect.
55.2.4 That the
Premier of the Limpopo Province is ordered to pay the applicants
and/or their predecessors monthly salary arrears
from the date of
their removal (29 July 2013) until the date of the granting of this
order. The arrears to include annual increments
to be calculated by
the Human Resource Department of the Premier and the Department of
Co-operative Governance, Human Settlement
and Traditional Affairs.
55.2.5 The respondents
jointly and severally to pay the costs of the applicants in the
review application, the one paying, the other
to be absolved.”
MF
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
EM
MAKGOBA JP
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
G
MULLER J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARENCES
FOR
THE APPELLANTS
:
ADV M MONYEMORATHO
INSTRUCTED
BY
:
MMAMPHIWA PHIHELA ATTORNEYS
FOR
1
ST
& 2
ND
RESPONDENT
:
ADV J SCHOEMAN
INSTRUCTED
BY
:
ESPAG MAGWAI ATTORNEYS
FOR
3
RD
,4
TH
&5
TH
RESPONDENTS
:
ADV R TSHIKORORO
INSTRUCTED
BY
:
STATE ATTORNEY POLOKWANE
DATE
HEARD
:
28
TH
MAY 2021
DATE
OF JUDGMENT
:
28
TH
JUNE
2021
[1]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para 20
[2]
3
of 2000
[3]
Act
41 of 2003
[4]
[2018]
ZASCA; 2018
3 ALL SA 397
(SCA) (4 June 2018)
[5]
108
of 1996
[6]
1991
(4) SA 1
(A) at 13B-C
[7]
6
of 2005
[8]
[2020]
ZALMPTHC 9 (9 October 2020) in paras 21-25