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2020
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[2020] ZALMPPHC 44
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Thulare v Sekhukhune and Another (3494/2020) [2020] ZALMPPHC 44 (3 July 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE
NO: 3494/2020
In
the matter between:
THULARE
VICTOR THULARE
APPLICANT
(in
his personal capacity as KGOSHIKGOLO (KING)
OF
THE BAPEDI NATION)
AND
KGAGUDI KENNETH SEKHUKHUNE
FIRST RESPONDENT
SEKWATI
KHUTJO SEKHUKHUNE
SECOND RESPONDENT
JUDGMENT
MAKGOBA JP
[1]
This
is an application for an interdict brought on urgent basis by the
Applicant against the Respondents to protect the position
of the
Applicant as the duly appointed Kgoshikgolo (King) of the Bapedi
nation against the alleged illegal claims that the Second
Respondent
is to be inaugurated as the new King of the Bapedi.
[2]
In the Notice of Motion the Applicant
sought an order in the following terms:
2.1.
That the First Respondent be ordered to:
(a)
step down as Acting Kgoshikgolo
(Acting King) of the Bapedi in so far as he has until now has claimed
still to occupy that position;
(b)
stop claiming that his son, the
Second Respondent is the rightful King-to-be of the Bapedi Nation;
(c)
stop to claim or associate
himself with claims that the Second Respondent will be enthroned as
Kgoshikgolo of the Bapedi Nation
on 15 August 2020, or whenever or
whatsoever;
(d)
stop encouraging anyone to
collect money from members of the Bapedi Nation for any function to
enthrone his son as Kgoshikgolo;
(e)
do all things and to sign all
documents required by law and the custom of the Bapedi people to
publicly step down as Acting Kgoshikgolo
of the Bapedi and to hand
over the kingship to the Applicant;
2.2.
The
First Respondent is interdicted from referring to himself as the King
or acting King of the Bapedi;
2.3.
The
First Respondent is ordered to hand over to the Applicant control of
all the regalia, documentation, furnishings, furniture
and buildings
that were held by him in his capacity as the acting Kgoshi within 7
days from the date of this order;
2.4.
The
Second Respondent is ordered to stop claiming that he is the rightful
King-to-be of the Bapedi nation and to allow or encourage
anyone to
arrange for ceremonies to be arranged for him to be enthroned as the
King on 15 August 2020 or whenever or to allow that
money be
collected for this purpose from members of the Bapedi nation.
2.5.
The
costs of this application is to be paid by the Respondents jointly
and severally.
[3]
In essence the relief sought can be
summed up as follows:
3.1.
That
the First Respondent be ordered to publicly step down as Acting King
of the Bapedi, to stop claiming that his son, the Second
Respondent
is to be inaugurated as the new King on 15 August 2020, to stop
encouraging people to collect money for the said inauguration
and to
hand over all and any regalia of the Kingship that may still be under
his control to the Applicant.
3.2.
That
the Second Respondent is to be interdicted from referring to himself
to be the King-to-be of the Bapedi and to allow anyone
to arrange for
him to be enthroned on 15 August 2020 as the King of the Bapedi or on
any other date.
[4]
The
application is opposed by the Respondents. At the hearing of the
matter the Applicant abandoned the larger portion of prayer
4 of the
Notice of Motion where it concerns the handing over of furnishings,
furniture and buildings that were held by the First
Respondent in his
capacity as the Acting Kgoshi.
Factual
Background
[5]
On the 29 July 2010 the Commission on
Traditional Leadership Disputes and Claims announced, through the
President of South Africa,
its findings and recommendations regarding
the Kingship of Bapedi. In particular it was announced that the
Applicant is the rightful
King of Bapedi.
The First Respondent challenged
the findings and recommendations of the Commission. His application
to review and set aside the
findings and recommendations of the
Commission was dismissed by the Gauteng Division of the High Court,
Pretoria on 20 March 2018.
[6]
The Constitutional Court dismissed the
First Respondent's application for leave to appeal on 4 March 2020,
on the basis that there
existed no reasonable prospects of success.
On 3 April 2020 the President of the Republic of South Africa issued
his recognition
of the Applicant as the King of the Bapedi by way of
publication in the Government Gazette no. 43206.
[7]
On 6 April 2020 a press statement was
issued under the banner of the
"
Office of the Kgoshikgolo of Bapedi His Majesty King KK Sekhukhune"
.
The press statement, inter alia,
rejects the Applicant as the King of the Bapedi as well as the High
Court and the Constitutional
Court's finding and the President's
recognition of the Applicant's Kingship. The press statement also
confirms the intended inauguration
of the Second Respondent as the
King of the Bapedi on 15 August 2020.
[8]
[8] It is appropriate to quote verbatim
the relevant portions of the press statement. They are as follows:
8.1
"2.
The
Office of the Kgosikgolo of Bapedi Nation has the honour to inform
South Africans and the Media that Sekhukhune Royal Family
has been
dramatically imposed with
a
new
King called Victor Thulare by President Ramaphosa as per Government
Gazette, 3 April 2020 No. 43206 notice of Department of
Traditional
Affairs of
03 April 2020
signed on
25
March 2020
which is said to
be in terms of
section 9(2a)
and (b) of Traditional Leadership
&
Governance Framework Act No.
41 of 2003 (Act 41 of 2003).
This
was done against the decision by the Royal Family to appoint HRH
Prince Sekwati Khutjo Sekhukhune
as
the next king of Bapedi Nation"
8.2
"3.1. Bakgoma and Bakgomana
met on
8 March 2020
and
deliberated on the issue of appointment of a person as King of
Bapedi. It was resolved that
-
Prince Sekwati II Sekhukhune
(Phaahl'a Bauba) is identified in terms of section
9(1)(a)(i)
and
(ii)
of
the Framework Act
as a
person
in terms of the customary law of Bapedi to assume the position of a
king of the Bapedi Kingship;"
8.3
"3.2. Meeting with the
Traditional Leaders few Chiefs and Headmen and Headwomen took place
at the royal palace on
17
March 2020.
The meeting was
convened to inform them about the Constitutional Court's decision on
04 March 2020,
but
most importantly to inform them about the process that is being
undertaken to identify HRH Prince Sekwati II Sekhukhune (Phaahl'a
Bauba) in terms of
section
9(1) of theFramework Act
to
assume the position of
a
king
in terms of the customary law as he is the firstborn-son of the
Candle Wife, Khudu Sekhukhune (Matladi'a Maswi).
-
Bapedi tradition, customary law and
cultural practices are locked and the only people with the key to
appoint
a
king
are Bakgoma and Bakgomana;"
8.4
"5. Bakgoma and Bakgomana
have the honour to inform the people of South Africa including the
Honourable President Matamela
Cyril Ramaphosa and his Cabinet that
the appointment of Sekwati II Sekhukhune was blessed by the Aunts and
Uncles of the Sekhukhune
Royal Family and it should be recognised as
such."
8.5
"7.
Notwithstanding
the President's consideration of the recognition of Victor Thulare as
the King of Bapedi Kingship as indicated on
the Government that he
signed on 25 March 2020 and issued on 03 April 2020 just
a
day before HRH Prince Sekwati II
Khutjo Sekhukhune (Phaahl'a Bauba) could be announced as the next
King of Bapedi Nation; Bakgoma
and Bakgomana of the Bapedi Kingship
have come to terms with the discrimination and pursuance of our
Kingdom by government and
judiciary alike. In this regard, the Office
of the Kgosikgolo of Bapedi Nation acting in good faith on behalf of
the Royal Family
and the Nation at large is informing the President
that our Traditional Leaders and their Communities have already
committed to
support and subject themselves to King Sekwati II Khutjo
Sekhukhune (Phaahl'a Bauba) even if the government has chosen not to
recognise
him in favour of Victor Thulare."
8.6
"11.
Furthermore
we want to inform the nation that Bakgoma, Bakgomana, and Aunts were
supposed to have a small traditional function to
install Prince
Sekwati II Khutjo Sekhukhune (Phaahl'a Bauba) as the traditional
Leader of Bapedi Kingship on 04 April 2020 at Maroteng
Royal Palace
but due to National Lockdown as a result of Coronavirus the event has
been postponed until further notice as and when
government will allow
gathering to take place; however Phaahl'a Bauba has assumed his
official duties as from 01 April 2020.
The
bigger official ceremony to inaugurate him will take place on
15
August 2020
during the
celebratory event to commemorate the life and times of the legendary
King Sekhukhune I."
[9]
The press statement concludes with the
following:
"NB: As we said before,
His Majesty King Sekwati II (Phaahl'a Bauba) will be the King of
Bapedi Kingship even if he is not
recognised by the State and not
receiving benefits from the government. In any case government
recognition is all about benefits
including the salary. However, the
position of the royalty is all about blood and customary law of
succession it is not dependent
on recognition."
The press statement is attached as
annexure "T5" to the founding affidavit. It professes to be
issued by the office of
the Kgosikgolo of Bapedi His Majesty King KK
Sekhukhune. It bears a stamp with both a handwritten date
(06-04-2020) and with a
logo.
[10] On or
about 16 May 2020 a social media campaign was launched in terms of
which arrangements are confirmed
to ensure that the inauguration
referred to above takes place during August 2020. This social media
campaign is in the form of
a WhatsApp message that is circulating in
the community. It provides a bank account number with First National
Bank into which
members of the public would deposit the funds
required for the inauguration ceremony in respect of the Second
Respondent.
[11]
On 18 May 2020 the Applicant's attorneys
of record wrote a letter to the First Respondent, to stop stating
that the Second Respondent
will be inaugurated in August 2020 as King
of the Bapedi and to stop raising funds for such an inauguration. As
there was no positive
response forthcoming from the Respondents, the
Applicant launched the present application on 12 June 2020.
Issues
[12]
The following issues are to the
adjudicated in this matter:
12.1.
Whether the matter is urgent.
12.2.
Whether other parties need to be
joined.
12.3.
Whether First and/or Second
Respondents took part in or associated themselves with the campaign
to reject the Applicant as King
and to enthrone the Second Respondent
on 15 august 2020
12.4.
Whether the Applicant is entitled
to the interdictory relief sought in terms of the notice of motion to
the extent set out above.
Facts
not in Dispute
[13]
The following are the material facts
that are common cause or not in dispute;
13.1.
In terms of the findings of the
Commission on Traditional Leadership Disputes and Claims and the
decisions of the High Court and
the Constitutional Court, the
Applicant is the duly appointed King of the Bapedi.
13.2.
There exists a campaign to reject the
Kingship of the Applicant and enthrone the Second Respondent, though
there is a dispute whether
the Respondents associated themselves with
the campaign
13.3.
When the First Respondent applied to the
Constitutional Court for leave to appeal, his son, the Second
Respondent also applied to
take part in that application, claiming
that he was the rightful heir to the throne. These applications were
unsuccessful.
13.4.
The First Respondent does not in his
opposing affidavit claim any entitlement for himself or his son to
the Kingship.
13.5.
The campaign to inaugurate the Second
Respondent is also not in dispute, but the Respondents deny their
association with the campaign.
Urgency
[14]
The Respondents contend that this
application lacks urgency and as a result the application must be
struck from the roll. They argue
that the application was issued on
12 June 2020 for hearing on 30 June 2020 as opposed to the Practice
Directives of this Court
which in the circumstances the application
should have been set down for hearing on 23 June 2020. Furthermore
the Respondents argue
that the Applicant failed to explain why this
application was only brought on 12 June 2020 without an explanation
of what happened
between the 19 May 2020 and 11 June 2020.
The argument goes further to state
that the Applicant failed to give adequate account of events which
made this application to be
so urgent that everything must stop for
this Court to hear the application.
[15]
There is no merit in the issue of
urgency raised by the Respondents. The delay on its own is not a good
ground to prevent the granting
of an urgent relief. The Court still
bears the obligation to decide whether after taking account all the
circumstances of the matter,
urgent relief is warranted. The test is
whether the circumstances of the case are such that the applicant
will or will not be afforded
substantial redress at a hearing in due
course.
In
Mogalakwena
Municipality v Provincial Executive, Limpopo and Others
[1]
Tuchten J said:
"It
seems
to me that when
urgency
is
in
issue
the
primary investigation should be to determine whether the applicant
will be afforded substantial redress at
a
hearing in due
course. If the applicant cannot establish prejudice in this sense,
the application cannot be urgent' .
[16]
The circumstances in the present case
have already been outlined or described in the factual matrix of this
case in paragraphs [5]
to [11] above.
Regarding the notion of delays, it
was held as follows in
East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd and Others
(11/33767) [2011] ZAGPJHC 196 pages 3-4
[2]
"[8]
In
my view the delay in instituting proceedings is not, on its own
a
ground for
refusing to regard the matter as urgent. A court is obliged to
consider the circumstances of the case and the explanation
given. The
important issue is whether, despite the delay, the applicant can or
cannot be afforded substantial redress at
a
hearing in due
course. A delay might be an indication that the matter is not as
urgent as the applicant would want the Court to
believe. On the other
hand
a
delay
may have been caused by the fact that the Applicant was attempting to
settle the matter or collect more facts with regard
thereto.
"[9] It means that if
there is some delay in instituting the proceedings an Applicant has
to explain the reasons for the delay
and why despite the delay he
claims that he cannot be afforded substantial redress at
a
hearing in due
course. I must also mention that the fact the Applicant wants to have
the matter resolved urgently does not render
the matter urgent. The
correct and the crucial test is whether, if the matter were to follow
its normal course as laid down by
the rules, an Applicant will be
afforded substantial redress. If he cannot be afforded substantial
redress at
a
hearing in due
course then the matter qualifies to be enrolled and heard
as
an urgent
application. If however despite the anxiety of an Applicant he can be
afforded
a
substantial
redress in an application in due course the application does not
qualify to be enrolled and heard
as
an urgent
application".
[17]
The present case has to do with
interdicting the Respondents from their continuing conduct in defying
the Court orders confirming
the Kingship of the Applicant, and
planning the inauguration of the Second Respondent as a King on 15
August 2020. Surely such
remedy should be granted to the Applicant as
a matter of urgency because the Applicant will not be afforded any
substantial redress
at a hearing in due course; particularly after
the 15 August 2020 when the proverbial horse shall have bolted.
This matter is therefore urgent.
Joinder of other Parties
[18]
The Respondent raised the points of
non-joinder in respect of the following persons or institutions:
18.1.
Non-joinder of the President of
the Republic of South Africa.
18.2.
Non-joinder of the First
Respondent's family.
18.3.
Non-joinder of the Royal Family/
Bakgoma and Bakgomana.
18.4.
Non-joinder of Marota-Mohlaletsi
Traditional Authority.
18.5.
Non-joinder of Lerumo La Setshaba
Movement.
[19]
The point of non-joinder in respect of
all the above-mentioned persons and institutions as raised by the
Respondents is ill-conceived.
None of the above has any direct or
substantial interest in the present case.
The Applicant's case is aimed at
curbing the unlawful conduct of the Respondents in their refusal or
reluctance to accept the Applicant
as the rightful and duly appointed
King. The case has nothing to do with the recognition of the
Applicant by the State President
as a King. In any event the
Respondents do not dispute the appointment and / or recognition of
the Applicant as a King. It is just
that they do not like it or that
they deliberately want to defy the authority of the Courts and that
of the State President.
[20]
It cannot be heard to be said that all
the above-mentioned persons or institutions sought to be joined in
this case have an interest
in the defiant attitude and conduct of the
Respondents.
In my view any person who does
wrong things does so in his own right. Furthermore, this case has
nothing to do with a dispute over
traditional leadership or kingship
so as to call for the involvement of other traditional leadership
structures like bakgoma, bakgomana
and the traditional authority. The
case is simply to deal with those individuals like the Respondents
who have resorted to rebel
against the authority of the newly
appointed King of the Bapedi and in fact also against the Court
orders.
[21]
I accordingly dismiss all the points of
non-joinder raised by the Respondents.
Merits
[22]
Regarding the merits of this case it has
to be established whether the First and / or the Second Respondents
took part in or associated
themselves with the campaign to reject the
Applicant as King and enthrone the Second Respondent on the 15 August
2020.
As a corollary to that is whether
the Applicant is entitled to the interdictory relief sought in the
notice of motion.
[23]
As already indicated above, the
Respondents do not dispute the fact that the Applicant is the
rightful and duly appointed King.
They do not dispute that there is a
campaign to reject the Applicant's Kingship and enthrone the Second
Respondent as it appears
in the press statement, the contents of
which have been outlined in paragraph [8] above.
Furthermore, they do not dispute
the existence of a social media campaign in the form of a WhatsApp
message calling upon members
of the public to contribute funds for
the inauguration ceremony on 15 August 2020.
[24]
The First and Second Respondents '
defence is that they are not responsible for the issue of the press
statement and the WhatsApp
message and that they disassociate
themselves therewith. This was in essence the argument put forward by
their Counsel, Mr Tebeila.
In this matter only the First
Respondent filed an opposing affidavit to deal with the allegations
in the founding affidavit. The
Second Respondent did not file an
opposing affidavit to deny what is alleged against him by the
Applicant. Consequently, the allegations
against the Second
Respondent remain unchallenged.
[25]
The press statement bears a stamp with
the words:
Office of the Kgoshikgolo
of Bapedi His Majesty K K Sekhukhune.
In
the face of this, the First Respondent’s answer is a bare
denial that he is associated with the contents of the press
statement. His actual answer is:
"
The applicant
is
put
to proof that the first respondent issued the press statement”'.
In my view, the failure by the
Respondents to act to correct the press statement and to make it
clear that the First Respondent
is no longer
" His Majesty
the King"
and that the Second Respondent will not take part
in the inauguration, under the circumstances, at the very least
amount to tacit
participation by the Respondents in the campaign.
The First Respondent does not
explain how it comes that the press release goes out in the name of
the Office of the King referring
to him as His Majesty the King,
bearing the stamp of the Office of the King.
A
bare denial is not sufficient in these circumstances.
[26]
Save for denying material allegations in
his opposing affidavit, the First Respondent failed to give any
explanation why his name
featured so prominently in the press
statement. The First Respondent presented no countervailing evidence,
but rather availed himself
to a bald denial of his involvement in the
press statement and the campaign to enthrone the Second Respondent.
[27]
The First Respondent's bare denial does
not raise real, genuine and
bona fide
disputes of fact in the
circumstances of this case.
In
Wightman
t/a
JW
Construction v Headfour (Pty) Ltd
[3]
it was held
that:
" A real, genuine and bona
fide dispute of fact can exist only where the court is satisfied that
the party who purports to
raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course
be instances where
a
bare denial meets
the requirement because there is no other way open to the disputing
party and nothing more can therefore be expected
of him. But even
that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis
is laid for disputing
the veracity or accuracy of the averment”' .
[28]
It is trite that an applicant who seeks
final relief on motion must in the event of conflict, accept the
version set up by his opponent
unless the latter's allegations are,
in the opinion of the Court, not such as to raise a real, genuine or
bona fide
dispute
of fact or are so far-fetched or clearly untenable that the Court is
justified in rejecting them merely on the papers.
See
Plascon-Evans
Paints v Van Riebeeck Paints (Pty) Ltd
[4]
.
In the present case the version
set up by the First Respondent is clearly untenable that this Court
is justified in rejecting same
merely on the papers.
I
accordingly make a finding that the First and Second Respondents
participated in or associated themselves with the campaign to
reject
the Applicant's Kingship and are involved in the arrangements to
enthrone the Second Respondent on
15
August 2020.
[29]
The Respondents' conduct is in defiance
of Court orders. Despite litigation having come to a final end the
Respondents in defiance
of the Court judgments continued to present
themselves as the Acting King and the King-to-be that is going to be
enthroned on 15
August 2020. This is done with intent to undermine
the position of the Applicant and to hamper him in the exercise of
his powers
and complying with his duties to govern and serve the
Bapedi nation as a King. They attempt to sow division and serious
risk of
violence and loss of life may result.
In the result the Applicant seeks
an order to the effect that the First Respondent be interdicted from
referring to himself as King
or acting King and to stop all actions
that are associated with the Kingship, including announcing that his
son will be installed
as the King of the Bapedi nation.
Conclusion
[30]
It is clear that the First Respondent
has not done anything to publicly hand over the power to the
Applicant and by his conduct
supports the defiance and the
presentation of the Second Respondent as the person that has already
taken over as the King and will
be publicly inaugurated on 15 August
2020. The actions of the First and Second Respondents amount to
undermining authority and
amount to illegal resistance to the lawful
government structures and they are acting contrary to the rule of
law.
[31]
The conduct of the two Respondents has
not been as could be expected in a democratic society where the rule
of law is respected.
Their conduct makes it necessary for the
Applicant to obtain the order prayed for in order to prevent harm not
only to the Applicant,
but also to the Bapedi people and law and
order.
[32]
In the result I grant the following
order:
1.
The First Respondent is ordered to:
(a)
step down as Acting Kgoshikgolo (Acting
King) of the Bapedi in so far as he has until now has claimed still
to occupy that position.
(b)
stop claiming that his son, the Second
Respondent is the rightful King-to-be of the Bapedi Nation.
(c)
stop to claim or associate himself with
claims that the Second Respondent will be enthroned as Kgoshikgolo of
the Bapedi Nation
on 15 August 2020, or whenever or whatsoever.
(d)
stop encouraging anyone to collect money
from members of the Bapedi Nation for any function to enthrone his
son as Kgoshikgolo.
(e)
do all things and to sign all documents
required by law and the custom of the Bapedi people to publicly step
down as Acting Kgosikgolo
of the Bapedi and to hand over the kingship
to the Applicant.
2.
The
First Respondent is interdicted from referring to himself as the King
or acting King of the Bapedi.
3.
The
First Respondent is ordered to ensure that any regalia associated
with Kingship is made available to the Applicant within 10
(ten) days
of this order, and in so far as not under control to make known to
the Applicant where it can be found and still in
the possession of
the First Respondent not be used in any way or manner for any purpose
whatsoever.
4.
The
Second Respondent is ordered to stop claiming that he is the rightful
King-to-be of the Bapedi nation and to allow or encourage
anyone to
arrange for ceremonies to be arranged for him to be enthroned as the
King on 15 August 2020 or whenever or to allow that
money be
collected for this purpose from members of the Bapedi nation.
5.
The
cost of this application, including the cost of two Counsel shall be
paid by the Respondents jointly and severally, the one
to pay the
other to be absolved.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 30 June 2020
Judgment
delivered on
: 03 July 2020
For
the Applicants
: Adv. JL Van der Merwe SC
Adv. L K Van der Merwe
Adv. M Malatji
Instructed
by
: Phosa Loots Inc
c/o Pratt Luyt & De Lange
Attorneys
For
the Respondents
: Adv. S S Tebeila
Instructed
by
: Mampa & Machete Inc
c/o M S Moloto inc
[1]
(35248/ 14) [ 2014] ZAGPPHC 400;
[2014] 4 All SA 67
(GP) at para 64
[2]
(11/33767) [2011] ZAGPJHC 1 96 PP 3- 4
[3]
2008 (3) 371 (SCA) at 375 para [13]
[4]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E - 635C