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[2021] ZALMPPHC 53
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Moropene and Others v Ga-seaphole Community Develeopment Committee and Others (5110/2019) [2021] ZALMPPHC 53 (26 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION; POLOKWANE.
CASE
NO:5110/2019
In
the matter between:
MICHAEL
MOROPENE
1
ST
APPLICANT
MASILO
MOROPENE
2
ND
APPLICANT
MODJADJI
ROYAL COUNCIL
3
RD
APPLICANT
and
GA-SEAPHOLE
COMMUNITY
DEVELOPMENT
COMMITTEE
1
ST
RESPONDENT
ADVOCATE
MATOME VICTOR
SEHUNANE
2
ND
RESPONDENT
LEBEA
MOTLATSI EVANS
3
RD
RESPONDENT
MAPULA
MERIAM RAKGWAHLA
4
TH
RESPONDENT
EDDIE
MALATJI
5
TH
RESPONDENT
SOLLY
MOROPENE
6
TH
RESPONDENT
NAKAMPE
EMMANUEL RAKGWAHLA
7
TH
RESPONDENT
MAMAROPENE
SELOWA
8
TH
RESPONDENT
SEKEDI
MACHETE
9
TH
RESPONDENT
ALBERT
LEBEA
10
TH
ESPONDENT
NOMLINDA
LEBEPE
11
TH
RESPONDENT
PART
OF COMMUNITY OF GA-SEAPOLE
WHO
ASSOCIATE THEMSELVES
12
TH
RESPONDENT
WITH
THE 1
ST
TO 11
TH
RESPONDENTS
MINISTER
OF RURAL DEVELOPMENT
13
TH
RESPONDENT
AND
LAND REFORM
LIMPOPO
MEC OF CO-OPERATE
14
TH
RESPONDENT
GOVERNMENT
AND TRADITIONAL AFFAIRS
GREATER
LETABA MUNICIPALITY
15
TH
RESPONDENT
JUDGMENT
SEMENYA
DJP
[1]
The applicants in this matter launched an application in which the
following order is sought:
1. That the 1
st
to 11
th
respondents be interdicted and restrained to
intimidate, incite violence or to interfere with the work of the 1
st
to 3
rd
applicants unless permitted by law to do so;
2. That the 1
st
to 9
th
respondents be interdicted and restrained from
allocating any stands to members of Ga-Seaphole village unless they
are permitted
by law;
3. Directing any member
of Ga-Seaphole who want stands to apply for stands in terms of the
practice and regulations which would
include the first to third
applicants;
4. Declaring that the
decision to suspend the 1
st
applicant and his tribal
[traditional] council is invalid and unlawful;
5. Directing the 1
st
to 11
th
respondents to remove any fence, bricks or items
which they have already put when allocating stands, failing which the
sheriff
is directed to do so at the expenses of the 1
st
to
11
th
respondents;
6. Declaring that
allocation of stands has to be done through the 1
st
to 3
rd
applicants and their Tribal Council, who are entitled to actively
participate in the development of the land at Ga-Seaphole village
together with the community;
7. Interdicting and
restraining the 1
st
to 11
th
respondents from
preventing, inciting violence or threatening any member of the
community, when attending Kgoro at Ga-Seaphole
village;
8. Interdicting and
restraining the 1
st
to 11
th
respondents from
assuming the powers of the first to third applicants unless permitted
to do so by law;
9. Directing that service
of the application to the 12
th
respondent be done by the
sheriff by posting four copies of this application next to the
entrance of Ga-Seaphole clinic;
10. Costs of the
application to be paid on attorney and client scale by the first to
twelfth respondents jointly and severally,
one paying the other to be
absolved.
No specific order is
sought against the 13
th
to 15
th
respondents. As
a result, reference to the respondents in this application will be in
relation to the 1
st
to 12
th
respondents only.
[2]
The 1
st
applicant in this matter is the Headman of
Ga-Seaphole traditional community falling under the Modjadji
Traditional Council. He
is recognised as such in terms of the Limpopo
Traditional Leadership and Institutions Act 6 of 2005 (the Limpopo
Act) read with
Traditional Leadership and Governance Framework Act 41
of 2003.The third applicant is the Tribal [traditional] Council
recognised
as such in terms of the Limpopo Act. The second to
eleventh respondents are all members of the community of Ga-Seaphole
and form
part of the first respondent.
[3]
The 1
st
applicant is the deponent to the founding
affidavit on behalf of the applicants. He avers that in the year
2010, he presided over
a meeting which approved the extension of the
land occupied by Mohale Evans Maake, Simon Mawasha and many other
villagers. During
2013, the 1
st
to 8th respondents formed
an entity known as Ga-Seaphole Community Development Committee (the
Committee). It is alleged that the
Committee was organised
specifically to challenge the decisions to extend the land inherited
by Mohale Evans Maake (Mr Maake) and
other people who were not
residing in the village of Ga-Seaphole. The Committee expressed their
desire to have Maake removed from
an extended portion of land. This
led to a series of litigation involving the applicants, Maake and the
Committee.
[4]
On the 26 November 2014 members of the Committee addressed a letter
to Maake in which they accused him of disrespecting them
by remaining
on their land which, according to Committee, was allotted to him
illegally by the 1
st
applicant. On the 3 January 2015
members of the Committee approached 1
st
applicant and
wanted to force him to sign a letter in which it was written that he,
the 1
st
applicant, had at a meeting attended by the
members of the Committee and the Modjadji tribal office, informed
those who were present
that he had never extended the land that Maake
was occupying. He states that the 2
nd
respondent who is an
Advocate of the High Court bullied and threatened him to sign the
letter. He refused to succumb to the bullying.
Pursuant to the
refusal to sign the document, the Committee reported him to the
Modjadji Royal Nation. The 1
st
applicant was
suspended from performing his duties as headman of Ga-Seaphole
village.
[5]
Following the 1
st
applicant’s refusal to sign the
letter which was intended to evict Maake, the 1
st
to the
9
th
respondents allegedly incited members of the community
to protest by barricading Maake’s farm. Maake obtained an
interdict
against members of the Committee. The 1
st
applicant aver that the 7
th
respondent delivered a letter
marked Annexure “MM13” to the founding affidavit to the
2
nd
applicant who is a member of the traditional council
tasked with the responsibilities of allocating stands to members of
the community
of Ga-Seaphole. The 2
nd
applicant was
informed in the letter that the community is aware that he is
allocating stands without their permission and further
that he will
be reported to the police should he continue to do so. The 7
th
respondent thereafter took over the duties of allocating stands to
members of the community from June 2019 which led to the 3
rd
applicant summoning him to their office. In response to the summons,
the Committee wrote a letter to the 3
rd
respondent,
annexed to the founding affidavit as annexure “MM14”,
informing it that the committee has been performing
the functions of
the 1
st
applicant for a period of four to five years after
the suspension of the 1
st
applicant and that they shall
continue to do so despite the summons. The committee further informed
the 3
rd
applicant that any interference by the 3
rd
applicant will be met with mass rolling action.
[6]
The 1
st
applicant alleges that he has a clear right to
launch the application by virtue of his appointment as a headman in
terms of the
Limpopo Act. He is further an interested party in that
he is a resident of Ga-Seaphole. He alleges that the injury suffered
by
the applicants stems from him being prevented from exercising his
right to convene kgoro and from running the affairs of the community.
The 1
st
applicant further alleges that the
applicants do not have a remedy other than that of approaching this
Court for an interdict and
ancillary orders.
[7]
Section 18 of the Limpopo Act provides as follows:
“
Role and
functions of traditional leadership
A traditional leader
performs any function provided for in terms of customary law, or
assigned to him or her in terms of any law,
subject to section 20 of
the Framework Act and without derogating from the generality of the
aforegoing. The traditional
leader performs in addition, in
consultation with the traditional council, the following functions:
(a)
Promote
the interests of the traditional community concerned;
(b)
In
co-operation with relevant municipalities and State departments,
assist with the administration of the traditional community;
(c)
Actively
participate in the development of the area of his or her traditional
community;
(d)
At
the request of any government department or the relevant
municipality, make known to all residents of the traditional
community
concerned the provisions of any new law; and
(e)
Performance of any functions allocated by any organ of State
in accordance with this Act.”
Section 13 of the
Limpopo Act provides for the circumstances under which a traditional
leader may be relieved of his or her duties.
[8]
The 1
st
to 11
th
respondents contended that the
Maake issue is irrelevant to the determination of this this matter in
that it was decided upon by
this court in various other matters.
Although I partially agree with the contention, I am of the view that
this court cannot overlook
the fact that it appears that it is this
issue that sparked the chaos that led to the present litigation. As
it stands now the
appeal against the decision taken previous
litigation between the Committee and Maake is still pending.
[9]
The respondents deny that they have unlawfully interfered with the
functions of the applicants. They further deny that they
have
suspended the 1
st
applicant from his position as headman
of Ga-Seaphole. They nonetheless admit that they are the ones who
wrote a letter to the
applicants referred to as annexure “MM13”.
It is clear from the contents of the letter that the respondents were
informing
the 1
st
applicants to desist from performing his
duties of allocating stands to other members of the community. It is
not in dispute that
the 1
st
applicant has been performing
this function prior to the extension of Maake, Mawasha and other
people’s land. The respondents
stated in the said letter that
the function of allocating stands rests only with the Committee which
has the power to allocate
stands to people or individuals in a fair
and open manner.
[10]
In paragraph 21 and 22 of the founding affidavit, the applicants are
alleging that on the 16 June 2019, the respondents called
a meeting
of the community in which it was resolved that all stands allocated
by the 1
st
applicant shall be review by the 1
st
respondent.
It was further resolved that the 1
st
applicant is suspended by the 1
st
respondent. The 1
st
applicant states that he cannot disclose the name of a person who
gave him the information regarding the resolutions taken at the
meeting for fear of victimization. The 1
st
applicant further stated that the 7
th
respondent took over the functions of allocating stands after the
meeting of the 16 June 2019.The 7
th
respondent refused to talk about this issue when he was visited by
the 1
st
applicant
and the regent, Honourable Mpapatla Modjadji. The 3
rd
applicant summoned the 7
th
respondent to attend the traditional Court. Instead of the 7
th
attending, the 1
st
respondent addressed a letter which is annexed to the papers as
“MM14”.
[11]
It is stated in “MM14” that the 1
st
applicant
had been indefinitely suspended in writing as ntona of the village of
Ga-Seaphole. It is further stated that the affairs
of the Ga-Seaphola
are run by the 1
st
respondent since the suspension of the
1
st
applicant and that members of the community are no
longer reporting death cases to the 1
st
applicant but to
the 1
st
respondent. It was stated that all stands which
have been allocated by the first applicant are invalid.
[12]
Although the respondents contended that the applicants are relying on
hearsay evidence in that the informant’s identity
was not
disclosed nor did he or she confirm the allegation, I find that the
evidence can be accepted in that the said allegations
about the
resolution taken at the meeting are basically confirmed by the
respondents in “Annexure MM14”.
[13]
Section 13 of the of the Limpopo Act provides that relief of royal
duties shall take place on the following grounds:
(a) Conviction
of an offence with a sentence for more than 12 months without an
option of a fine;
(b) Physical 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
office.
[14]
Part B of Schedule 2 defines what constitute misconduct and states
that:
Part B All traditional
leaders
1
Misconduct
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.
The procedure that is to
be followed in cases of misconduct is laid down is item 2 Part B.
[15]
It follows from the admissions made by the respondents in their
letters that they are interfering with the functions of the
applicants. The respondents threatened the applicants with mass
action should they continue to perform their statutory functions.
It
is this fact that renders the respondents’ denial that they
have threatened the applicants to be without merit, more so
in that
it had already happened to Maake. The Limpopo Act provides that the
1
st
applicant as the headman must perform his functions in
consultation with the traditional council. The respondents’
contention
that it is the community which must allocate stands is
therefore rejected. The conduct of the respondents constitutes
usurpation
of the statutory functions conferred on the applicants.
[16]
It appears from the respondents’ papers that they were not
satisfied with the manner in which the applicants were allocating
stands within their village. However, they failed to act in terms of
the procedure laid down in Part B of Schedule 2 of the Limpopo
Act
when they suspended the 1
st
applicant and usurped his
functions. The applicants are entitled to the relief sought in the
notice of motion.
[17]
The applicants submitted that they have satisfied the requirements of
a final interdict as laid down in
Setlogelo
v Setlogelo
[1]
.
The 1
st
applicant as a
recognised traditional leader of Ga-Seaphole and the 3
rd
respondent as the
traditional council have a clear right to safe guard the interest of
the Ga-Seaphole traditional community. The
2
nd
respondent is an
interested party by virtue of him being the person tasked with the
duty to allocate stands within the community.
The respondents have
caused a continuing injury to the applicants in the form of, among
others, usurping their customary and statutory
functions as envisaged
in section 18 of the Limpopo Act. I agree with the applicants that
they do not have any alternative remedy
other than that sought in the
notice of motion.
[18]
With regard to costs, the applicants as the successful parties are
entitled and should be granted costs. Counsel for applicant
contended
that the court should order the 2
nd
respondent to pay the
costs. Counsel for the applicant’s contention is based on the
submission that he is a lawyer and that
it is clear that the 1
st
respondent was taking advice from the 2
nd
respondent in
that some of the 1
st
respondent’s letters are on his
office’s letterheads. It appears clearly from the papers that
the 2
nd
respondent was acting in concert with all other
respondents (1
st
to 12
th
). It will not be
reasonable to order him to carry the burden of paying costs alone.
[19]
This application served before Naudé AJ on the 25 January
2021. It was removed from the roll due to the applicant’s
non-appearance. Costs of that date were reserved. Counsel for the
respondents submitted that this court should order the applicants
to
pay punitive costs for that date. It was contended on behalf of the
applicant that they have not set the matter down for that
date and
that they do not know how it happened to be on the roll. I have no
reason to disbelieve the applicants.
[20]
In the results I make the following order:
1. The 1
st
to
12
th
respondent are interdicted and restrained from
intimidating, inciting violence against the applicants, interfering
with the applicants
in the execution of their statutory and/or
customary functions as the traditional leaders and council of
Ga-Seaphole village;
2. The 1
st
to ninth respondents are interdicted and restrained from unlawfully
allocating stands to members of Ga-Seaphole village;
3. It is declared that
the 1
st
to 11
th
respondents’ decision to
suspend the 1
st
applicant and the traditional council is
unlawful and invalid;
4. The 1
st
to
11
th
respondents are directed to remove any fence, bricks
or items which they have put when allocating stands to members of
Ga-Seaphole
village, failing which the sheriff of this court is
directed to do and the costs of the removal are to be borne by the
respondents;
5. It is declared that
the allocation of stands is to be done through the 1
st
and
2
nd
respondent and the traditional council, who are
entitled to actively participate in the development of land at
Ga-Seaphole village
in together with the community;
6. The 1
st
to
11
th
respondents are interdicted and restrained from
preventing, inciting violence or threatening any member of the
Ga-Seaphole village
when they are attending kgoro;
7. The 1
st
to
11
th
respondents are interdicted and restrained from
unlawfully assuming the powers of the 1
st
and 3
rd
applicants;
8. The 1
st
to
12
th
respondents are ordered to pay the costs of the 25
January 2021 and of the 9 June 2021.
M V SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION;
THOHOYANDOU.
APPEARANCES:
Date
of hearing:
9
June 2021
Date
delivered:
26
August 2021
For
the applicants:
N
E KUBAYI
Attorney
with right of appearance in the High Court
For
the 1
st
to 12
th
respondents:
ADVOCATE
M V SEHUNANE
Instructed
by:
SEHUNANE
INCORPORATEATTORNEYS
[1]
1914
AD 221
at 227