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[2020] ZALMPPHC 75
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Komane and Another v Premier: Limpopo Province and Others (6711/2018) [2020] ZALMPPHC 75 (8 September 2020)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE
NO: 6711/2018
In
the matter between:
KGOSHI
MOHUBE PHILEMON KOMANE
FIRST APPLICANT
BAKONE
BA MAANAKANE TRIBAL COUNCIL
SECOND APPLICANT
and
PREMIER:
LIMPOPO PROVINCE
FIRST RESPONDENT
GERONAH
RESOURCES (PTY) LTD
SECOND RESPONDENT
NKWE
PLATINUM SOUTH AFRICA (PTY) LTD
THIRD RESPONDENT
KGAGUDI
KENNETH SEKHUKHUNE
FOURTH RESPONDENT
SEKHUKHUNE
TRIBAL COUNCIL
FIFTH RESPONDENT
KGATLEDI
LETTY KOMANE
SIXTH RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The First and Second Applicants brought an urgent application against
the Respondents for an in
the following terms:
1.
Dispensing with the forms and services provided for in the rules of
this Court and directing
that this application be heard on an urgent
basis in terms of Rule 6(12);
2.
That the Applicants’ failure to comply with practice directives
of the above Court,
if any, regarding urgent applications and setting
down thereof be and is hereby condoned;
3.
That the decision of the First Respondent of 10 October 2018, to
appoint Sixth Respondent
as Headwoman of Komane community is declared
unlawful and invalid and is hereby reviewed and set aside;
4.
That the First Respondent is prohibited from finalizing and issuing
to Sixth Respondent the
certificate of Headwoman or traditional
leader of Komane community;
5.
That the Second and Third Respondents are prohibited from working
with the Sixth Respondent
in relation to community trusts created to
administer funds generated from prospecting and mining activities at
Dekom farm and
other areas falling under Applicant’s
jurisdiction;
6.
That the Fourth Respondent is prohibited from interfering with
appointment of trustees and
administration of community trust funds
relating to Ga Komane community;
7.
That orders in prayer 4,5,6 and 7 operate as interim relief with
immediate effect pending
the outcome of review application of the
First Respondent’s decision of 10 October 2018;
8.
That the costs of this application in terms of Part A hereof to be
costs in the application
Part B below;
9.
That the Applicant be granted such and / or alternative relief as the
Court may deem fit.
[2]
In Part B of the Notice of Motion the Applicants sought the following
orders:
2.1.
That the orders in prayers 4,5,6 and 7 in Part A be made final;
2.2.
Declaring the decisions of the Premier of 10 October 2018 unlawful
and invalid.
2.3.
Reviewing and setting aside the decision of the Premier taken on 10
October 2018;
2.4.
That the costs of the application be paid by Respondents who oppose
the application, one paying others to
be absolved.
[3]
On the 13 November 2018 before Sikhwari AJ the following orders were
granted by way of a draft
order:
3.1.
That the Second and the Third Respondents are prohibited from working
with the Sixth Respondent in relation
to trust fund generated from
prospecting and mining operations at Dekom Farm, Ga-Komane and other
areas failing within the jurisdiction
of the Applicant;
3.2.
That the Fourth Respondent is prohibited from interfering with the
appointment of Trustees and administration
of community trust funds
of Ga-Komane community.
3.3.
That the Second and the Third Respondents are prohibited from working
with any person other than Bkone-Ba-Maakanane
Development Trust in
relation to community trusts funds.
3.4.
That prayers 3 and 4 of the notice of motion against the First
Respondent are abandoned.
3.5.
That the First Respondent is granted leave to join the Second and the
Third Respondents regarding the costs
of the application.
3.6.
That the matter be heard on 21 February 2019 for determination of
Part B of the application.
[4]
Prayers 3 and 4 of the Notice of Motion against the First Respondent
(the
Premier) were abandoned at the hearing of the urgent application when
it was discovered that the Premier had not made the alleged
decisions
of the
10
October 2018.
In
the present application the Applicants seek a final order in the form
of an interdict against the rest of the Respondents. This
application
is opposed by the Fourth, Fifth and Sixth Respondents (“the
Respondents”).
Issues
for Determination
[5]
The following issues are for determination by this Court:
5.1.
Whether the First and Second Applicants have authority to bring this
application against the Respondents,
i.e their
locus standi
.
5.2.
Whether the Applicants should be granted a final interdict against
the Respondents herein. In other words,
whether the Applicants have
proven all the requirements of a final interdict against the
Respondents.
Condonation
[6]
The Respondents brought a substantive application for condonation of
their late filing of their
answering affidavit. The application is
opposed by the Applicants. The Applicants brought an application for
condonation of the
late filing of their replying affidavit, which
application is not opposed by the Respondents.
[7]
Rule 27(1) of the Uniform Rules of this Court provides:
“
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these Rules or by an
order of court or fixed by an order extending or abridging any
time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as to it
seems
meet
”
.
Rule
27(3) provides as follows:
“
The
court may, on good cause shown, condone any non-compliance with these
Rules. The sub-rule requires “good cause”
to be shown and
that gives the Court a wide discretion which must be exercised with
regard also to the merits of the matter seen
as a whole
”.
[8]
The principles governing an application for condonation can be
summarised as follows:
1.
Giving reasonable or acceptable
explanation for the default or delay.
2.
That there is a
bona
fide
case which prima facie will succeed.
3.
The applicant needs not illustrate a
probability of success, but rather the
existence
of an issue fit for trial.
4.
That there is no prejudice to the parties.
In
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A)
it
was stated that in deciding whether sufficient cause has been shown,
the basic principle is that the Court has a discretion
to be
exercised judicially upon a consideration of all facts, and in
essence is a matter of fairness to both sides. That among
the facts
usually relevant are the degree of lateness, explanation therefor,
the prospects of success and the importance of the
case.
Ordinary,
these factors are interrelated and they are not individually
decisive. They must be weighed against each other.
[9]
It is trite that amongst the factors that the Court has regard to
are: the degree of non-compliance,
the explanation of the delay, the
prospects of success, the importance of the case, the nature of the
relief, the other party’s
interest in finality, prejudice to
the other side, the convenience of the Court, the avoidance of
unnecessary delay in the administration
of justice and the degree of
negligence of the persons responsible for the non-compliance.
See
:
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae) 2008 (2)SA 472 (CC)
and
Commissioner
for the South Africa Revenue Service v Van der Merwe [2015]3 ALL SA
(SCA)
[10]
The Respondents’ notice of intention to oppose was filed on 14
November 2018 and the
dies
to file the answering affidavit
expired on 5 December 2018. The Respondents served and file their
answering affidavit on 21 February
2019, almost three months out of
time. However considering the
dies non
in the calendar of the
High Court (15 December to 15 January) the period can be set at about
two months.
Hereunder
the Respondents give the explanation for the delay in filing their
answering affidavit.
[11]
The Respondents’ explanation for the delay in filing their
answering affidavit within the prescribed
time determined by the
rules of this Court is contained in an affidavit of the Fourth
Respondent.
The
Fourth Respondent states that he is being sued herein in his capacity
as the Acting King of the Sekhukhune area within which
the area the
First Applicant falls. Due to the magnitude of the matter and the
fact that the dispute herein revolves around Traditional
Leadership
claims, he had to secure information orally from some elders within
the Royal Family and the community with regard to
the origin and
history of Bakone Ba Komane traditional community of which the
Applicant claims to be a leader.
[12]
After being served with papers in this matter the Respondents secured
the services of their present attorney
of record who duly filed a
notice to oppose within the prescribed time. Before they could file
their answering affidavit they had
to secure information regarding
the traditional leadership. Among other source the Fourth Respondent
had to visit archives to look
into the literature as well as
literature written by historians and ethnologists.
[13]
The Respondent was bound to consult with the Fifth as well as the
Sixth Respondent who resides at Dekom farm.
The area has no proper
communication network and transport infrastructure which made it
difficult to communicate with the Sixth
Respondent. Furthermore the
Respondents also had to consult with the First, Second and Third
Respondents in order to get their
views and standpoint regarding this
matter.
[14]
After consultation with their attorney of record and identification
of counsel to assist in the consultation
and preparation of the
opposing papers, it was then that the answering affidavit was
prepared, finalised and filed of record. All
these efforts took more
than two months to accomplish.
[15]
In opposing the application for condonation the First Applicant in
his opposing affidavit was not able to
gainsay the facts as set out
in the Fourth Respondent’s affidavit save to state that the
aforesaid facts do not justify the
late filing of the answering
affidavit and that such facts do not constitute good cause for the
Respondents’ late filing
of their answering affidavit.
[16]
The Applicants had an opportunity to file their reply to the
Respondents’ answering affidavit. Their
replying affidavit was
also file out of time and the Respondents acceded thereto. Nowhere in
their replying affidavit or their
affidavit opposing the condonation
application of the Respondents, do the Applicants state that they
suffered any prejudice as
a result of the Respondents’ late
filing of their answering affidavit.
[17]
In the light of cumulative facts stated by the Fourth Respondent in
his affidavit coupled with the lack of
prejudice to any party, this
Court is inclined to grant condonation for the late filing of the
Respondents’ answering affidavit.
On the papers filed of record
I am of the view that the Applicants have a weak case in this
application.
On
the other hand the Respondents have prospects of success in their
case as will appear later in this judgment.
Accordingly,
the application for condonation is granted and the Respondents’
late filing of their answering affidavit is condoned.
The
Applicants’
Locus Standi
[13]
The Respondents raised a point that the First and Second Applicants
herein lack authority to bring the present
proceedings before Court.
The Respondents submitted that the Applicants have no authority and
no
locus standi
to institute this application on behalf of the
community they purport to act for and on behalf of
Bakone-Ba-Maanakane Community
Development Trust. The First Applicant
claims his authority or
locus standi
by virtue of him being a
Senior Traditional Leader (Kgoshi). For reasons that will follow
later in this judgment, this is incorrect.
The
First Applicant falls outside the provisions of section 12 of the
Limpopo Traditional Leadership and Institutions Act No 6 of
2005.
The
equivalent provision on national level is
section 11
of the
Traditional Leadership and Governance Framework Act No 41 of 2003
.
[19]
The Respondents submitted further that the Second Respondent, which
is named Bakone Ba Maanakane Tribal Council
does not exist as a
traditional community and falls outside the purview of
sections 3
and
4
of the Limpopo Traditional Leadership and Institutions Act. That
the community has not been recognised as a traditional community
in
terms of section 3 of this act and further that the Second Applicant
has not been regconised as a traditional council in terms
of section
4 of the Act.
[20]
The Applicants concede in their papers that Bakone Ba Maakane’s
status as the traditional community
and the First Applicant as
a Senior traditional leader (kgoshi) of Bakone Ba Maakane were not
“created” by the
Traditional Leadership and Governance
Framework Act, 2003
and its provincial counterpart, the Limpopo
Traditional Leadership and Institutions Act, 2005.
The
Applicants contend that their status existed long before the
enactment of the abovementioned statutes. The First Applicant states
that he took over from his late father as the Kgoshi of Bakone Ba
Maakane, in accordance with their traditions and customs. The
First
Applicant concedes that he holds no Certificate of Appointment issued
by the Premier of Limpopo.
It
is not denied that the Second Applicant was never constituted and
recognised by the Premier in terms of section 4 of the Limpopo
Traditional Leadership and Institutions Act, 2005.
[21]
Section 3 of the Limpopo Traditional Leadership and Institutions Act,
2005 provides for the recognition of
traditional communities. Such
community may apply to the Premier in writing for recognition. The
community so recognised by the
Premier as such, shall establish a
Traditional Council for that Traditional Community. In terms of
section 4 of the Act, the Premier
shall recognise the Traditional
Council by notice in the Gazette. It is common cause that the Second
Applicant, who is referred
to as the “Tribal Council” was
never recognised as a Traditional Council. For this reason the Second
Applicant does
not exist, and therefore cannot have the
locus
standi
in the present proceedings.
See
Bakgakga-Ba-Mothapo
Traditional Council v Tshepo Mathule Mothapo & Others (926/2018)
[2019] ZASCA 130
(30 September 2019) at para 13
.
[22]
The position of the First Applicant cannot be better.
The
recognition of a senior traditional leader, headman or headwoman is
regulated in terms of section 12 of the Limpopo Traditional
Leadership and Institutions Act, 2005.
In
terms of this section the traditional leader is identified by the
royal family who submit the name to the Premier. The latter
must
then recognise such person so identified by the royal family by
issuing a notice in the Gazette. A certificate of appointment is
then
issued by the Premier to such senior traditional leader, headman of
headwoman, as the case may be.
It
is common cause that the First Applicant never went through this
process and was never issued with a Certificate of Appointment.
In
the circumstance the First Applicant does not have the authority to
act as Senior traditional leader (kgoshi) as he claims to
be.
[23]
At the hearing of this matter the Court requested Counsel for the
Applicants to produce, if any, authorisation
of the First Applicant
to bring this application on behalf of the community he professes to
lead. The Court was referred to a document
marked as “Annexure
BBK1” to the founding affidavit. The document purports to be a
resolution of Komane Tribal Authority
adopted on 1
st
November 2018. The document is reproduced and forms part of this
judgment as shown hereunder:
[24]
The document is referred to as a Resolution to Challenge the
Appointment of Letty Kgatledi Komane(Sixth Respondent)
as Headwoman
of Komane Community and nothing else. No authority is given to the
First Applicant to bring the present interdict
proceedings against
the Fourth and Fifth Respondents.
Furthermore
the eight persons who signed the document purport to be Council
members. Apparently they are Council members of the
Second Applicant.
I have already made a finding that the Second Applicant does not
exisit.
[25]
In the result, I make a finding that the First and Second Applicants
have no authority or a
locus standi
to litigate in this
application. On this ground alone, the application should be
dismissed.
Whether
the Applicants satisfied the requirements of a final interdict
[26]
For more than a century our law has authoritatively required an
applicant seeking a final interdict to:
(1)
demonstrate a clear right;
(2)
show an injury in the form of irreparable harm actually committed or
reasonably apprehended and;
(3)
the absence of an alternative remedy
See
Setlogelo v Setlogelo 1914 A 221 at 227
Where
an applicant seeks an interim interdict, two further qualifications
are added:
(1)
The
right need not be clear provided it is
prima
facie
established,
even if open to some doubt; and
(2)
The
balance of convenience must favour the relief claimed.
See:
Webster v Mitchell
1948 (1) SA 1186
(W) at 1189 to 1190
Gould
v Minister of Justice and Another
1955 (2) SA 682
(C) at 688
[27]
I have already made a finding that both the First and Second
Applicants have no authority or the
locus standi
to bring the
present matter before Court. It follows that they cannot demonstrate
any clear right which is required for a final
interdict to be granted
against the Respondents. I need not even deal with the other
remaining two requirements of a final interdict
where the Applicants
have failed to establish a clear right.
[28]
In the result the application is dismissed with costs.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 27 August 2020
Judgment
delivered on
: 08 September 2020
For
the Applicant
: Adv. J S Matsimela
Instructed
by
: Mathule Tjabane Attorneys
c/o
F P Mugivhi Attorneys
For
the 4
th
,5
th
& 6
th
Respondents
: Adv. K K Kekana
Instructed
by
: Lamola Attorneys
c/o
Mphahlele Attorneys