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[2020] ZALMPPHC 97
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Mamadi and Another v Premier Limpopo Province and Others (4052/2018) [2020] ZALMPPHC 97 (26 November 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: 4052/2018
In
the matter between:
MADIDIMALO
KILSON MAMADI
FIRST
APPLICANT
BABIRWA
BA- GA
-
MAMADI
ROYAL FAMILY
SECOND
APPLICANT
and
PREMIER
LIMPOPO PROVINCE
FIRST RESPONDENT
MEC
FOR COGHSTA, LIMPOPO
SECOND RESPONDENT
LIMPOPO
HOUSE OF TRADITIONAL LEADERS
THIRD RESPONDENT
COMMISSION
ON TRADITIONAL LEADERSHIP DISPUTES
FOURTH RESPONDENT
AND
CLAIMS
ABOREKWE
THOMAS MAMADI
FIFTH RESPONDENT
BABIRWA
BA MAMADI ROYAL COUNCIL
SIXTH RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
matter concerns a long-standing dispute over the traditional
leadership lineage of the Babirwa-Ba-Ga-Mamadi Traditional Community
("the Mamadi Community"). The matter before this Court is
an application wherein the Applicants seek to review and set
aside
certain acts, together with declaratory and substituting relief in
consequence.
[2]
The
Applicants seek the following sustentative relief, per their amended
notice of motion dated 16 March 2019:
1.
That the decision of the Premier taken
on the 1
st
June 2018, not to recognise the identification of the First Applicant
as the Acting Traditional Leader be reviewed, set aside and/
corrected.
2.
That it be declared that the first
Applicant qualifies to assume the position of an Acting Traditional
Leader in terms of section
15 of the Limpopo Traditional Leadership
and Institutions Act 6 of 2005.
3.
That the First Respondent be compelled
to recognise the First Applicant as the Acting Senior Traditional
Leader of the Babirwa-ba-ga-Mamadi
traditional community.
4.
That the recommendations of Commission
on Traditional Leadership Disputes established in terms of section
26A (1) of the Traditional
Leadership and Governance Framework
Amendment Act 23 of 2009 be declared null and void.
5.
That the decision of the Premier to
recognise the Fifth Respondent as the Acting Senior Traditional
Leader as per decision taken
on the 20
th
September 2018 be reviewed, set aside and nullified.
[3]
The
application is brought in terms of the provisions of the Promotion of
Administrative Justice Act 3 of 2000 ("PAJA")
and is
opposed by the First, Second, Third and Fifth Respondents. In essence
there are three acts that are sought to be reviewed
and set aside,
namely:
3.1.
the First Respondent's
(Premier's) decision not to recognise the First Applicant as Acting
Traditional Leader;
3.2.
the recommendations of the Fourth
Respondent (the Commission); and
3.3.
the decision of the Premier to
recognise the Fifth Respondent as the Acting Senior Traditional
Leader.
[4]
In challenging the aforesaid three
decisions in this matter, the Applicants contend that
4.1.
the Premier failed to recognise
the First Applicant, Madidimalo Kilson Mamadi ("Kilson") as
Acting Traditional Leader
of the Mamadi Community as contemplated by
section 15 of the Limpopo Traditional Leadership and Institutions Act
6 of 2005. The
contention is that the Premier's failure or refusal to
recognise Kilson was based on the recommendations of the Commission
on Traditional
Leadership Disputes and Claims ("the Kgatla
Commission"), which found that in terms of the Mamadi customary
law of succession,
Kilson did not qualify to claim the Mamadi
traditional leadership; and
4.2.
subsequently recognised the Fifth
Respondent, Aborekwe Thomas Mamadi ("Aborekwe") as the
Acting Senior Traditional Leader,
again based on the findings of the
Kgatla Commission and the resolution that was adopted by the
Babirwa-Ba-Ga-Mamadi Royal Family.
[5]
The
First Second and Third Respondents ("the Government Repondents")
oppose this application on the basis, firstly, of
two preliminary
issues, which, if the Court accepts, will dispose of this
application:
5.1.
The
first preliminary point is that the Applicants do not have the
necessary
locus standi
to
institute this application on behalf of the Mamadi Royal Family, and
5.2.
the
second is that this application raises substantive dispute of facts
which cannot be decided on the papers.
The
Fifth Respondent joins issue on the aspect of a dispute of facts. The
Fifth Respondent contends that there are several averments,
key to
the Applicant's case, which are disputed by the Respondents, and
consequentially render the application incapable of resolution
on
affidavit alone.
Lack
of
Locus Standi:
Applicants
[6]
The
Respondents contend that the people who make up the Second Applicant
are just a group of individuals without any defined roles,
who for
strange reasons include Kilson's own children. The Respondents argue
that this is a congregation that has been put in place
to satisfy
Kilson's thirst to become a traditional leader. By definition of
Royal Family, the institution is composed of the
"
immediate relatives of the ruling family within a traditional
community, who have been identified in terms of custom and
includes,
where applicable, other family members who are close relatives of the
ruling family'' .
[7]
It
is placed under dispute that the Second Applicant constitutes a Royal
Family collective or body that has been properly constituted
or
organised. This dispute stands unsettled on the papers. On this basis
the Respondents contend that the Second Applicant does
not have the
locus standi
to
bring this application on behalf of the real Royal Family. It is
further placed in dispute that the genealogy set out by the
Applicants is accurate. The findings made by Kgatla Commission (as
will be shown later in this judgment) were unequivocally that
the
genealogy as set out by Kilson is not an accurate depiction of the
royal lineage. Accordingly, in this matter, it is disputed
that the
individuals who identify themselves as the Second Applicant, the
ostensible royal family, are indeed the royal family
of the Mamadi
Community.
[8]
The
Applicants clothe themselves with the title of "Royal Family"
while choosing to refer to a structure that supports
Aborekwe as
"Royal Council". This is another aspect of material dispute
of facts in that the so-called Royal Council
is not recognized in
terms of customs and/or the traditional leadership legislation. This
material dispute of facts cannot be resolved
on affidavit alone.
[9]
The
Government Respondents alluded in their answering affidavit that the
Second Applicant is not the legitimate Royal Family. According
to the
genealogy annexed as
" NN4"
to their answering affidavit, the
descendants of Matshopa, from whence Kilson descends, are not
entitled to the chieftaincy of the
Mamadi Traditional Community.
[10]
The existence of material dispute of facts in this matter cannot be
denied on any reasonable
grounds. In my view this dispute was always
foreseeable owing to the fact that the Applicants contest being the
legitimate structure
of the community's leadership. The Respondents
submit that on this basis alone, this application should be
dismissed.
FACTUAL
BACKGROUND
[11]
The
factual background relating to the chieftaincy of the Mamadi
Community is set out hereunder as depicted by each of the contesting
parties in this matter. There are different versions given by each
contesting party.
Applicants'
Version
[12]
The
Applicants set out the genealogy and chieftainship of the Mamadi
Community as follows:
Kgoshi
Madidimalo married as his candle wife (masechaba) Ndiyeng and
together they produced two sons, Ramphefu and Maphula. Ramphefu
would
have been identified as Kgoshi and successor to his father but he
predeceased his parents.
By
the time Ramphefu died he had already married and had two sons,
Ramotshabi and Mabetha.
Ramotshabi was appointed as Kgoshi
succeeding his grandfather, Madidimalo Ramotshabi abandoned the
community and moved to the direction
of the then Rhodesia (Zimbabwe)
and never returned or traced.
[13]
After the disappearance of Ramotshabi,
Maphula, the second son of Madidimalo acted as Kgoshi. After the
death of Maphula the younger
brother of Ramotshabi, namely Mabetha
acted as Kgoshi. Mabetha was identified as a seed raiser to father
his brother's (Ramotshabi)
children with Dorothy Mabu Mamadi: Dorothy
Mabu had been married as a candle wife to revive the house of
Ramotshabi. However, Mabetha
died before he could bear children as a
seed raiser with Dorothy Mabu.
[14]
Masetha Frank Mamadi, a member of the
royal family was appointed as acting Kgoshi. He is the son of Marema.
Marema is the son of
Matshopa, the latter being the third wife of the
late Kgoshi Madidmalo. Masetha Frank Mamadi was identified as seed
raiser to father
children of his halfbrother Ramotshabi with the
candle wife, Mabu Dorothy Mamadi.
[15]
Out of the relationship between Masetha
Frank Mamadi and Dorothy Mabu Mamadi two sons were born, namely
Molatelo Warrick Mamadi
and Madidimalo Kislon Mamadi (the First
Applicant). Frank Mamadi and the candle wife Dorothy Mabu relocated
to Eldorado, an area
under Kgoshi Malebogo. During the years
1979-1984 the Government allocated a farm, Taaibosch to the Mamadi
tribe. Frank Mamadi
and the candle wife together with their children
moved to the new farm, Taaibosch where Frank Mamadi continued to rule
the community
as an acting Kgoshi.
[16]
When Frank Mamadi died Warrick Mamadi
was appointed as Kgoshi of the Mamadi community. He was not in good
terms with the then government
because he was a member of AZAPO. In
1985 Warrick Mamadi was removed as Kgoshi by the commissioner,
Bonema. The property of Warrick
and his siblings were burnt and they
were forcefully removed from their homestead. Moraka Lucas Mamadi
(deceased) was then appointed
as acting Kgoshi of the Mamadi
Community in 1985.
[17]
After the death of Warrick Mamadi his
younger brother Madidimalo Kilson (First Applicant) pursued his
deceased brother's fight for
the chieftaincy of the Mamadi Community.
Kilson Mamadi was appointed as Acting Kgoshi by the royal family and
inaugurated by the
community. Moraka Lucas Mamadi died in 2010 and
thereafter his younger brother Aborekwe Thomas Mamadi (Fifth
Respondent) identified
himself as Kgoshi and followed his deceased
brother's footsteps.
[18]
The traditional leadership dispute of
the Mamadi Community was referred to the Kgatla Commission wherein
the two factions' disputes
and claims were investigated. The
recommendations of the Commission were forwarded to the Premier on 28
May 2017 and on 13 June
2017 the Premier approved and accepted the
Commission's recommendations. The Premier refused to recognize the
First Applicant as
an acting Kgoshi and on 4 July 2018 the Applicants
launched the present application before this Court.
[19]
The crucial issue that emanates from the
version of the Applicants is whether the First Applicant's mother,
Dorothy Mabu Mamadi
was indeed married as a candle wife (masechaba)
to revive the house of Ramotshabi. The contrary version of the
Respondents (as
will be shown hereunder) is that when Mabetha
(younger brother of Ramotshabi) took over the traditional leadership
he married a
candle wife by the name of MmaMoyahabo from whence the
lineage of chieftaincy developed until the position presently held by
the
Fifth Respondent.
[20]
One more crucial aspect emanating from
the First Applicant's version is his attempt to distance the
descendants of Mabetha (younger
brother to Ramotshabi) from the
Ramotshabi and Mabetha lineage. The First Applicant contends that
Joel Thokampe (Mabetha's son
with his second wife, MmaSephuma) was
not a biological son of Mabetha because he came with his another
MmaSephuma from Bokgalaka
(Zimbabwe) and also that Mabetha and
MmaSephua lived together as concubines as no lobola was ever paid by
Mabetha. This allegation
is vehemently denied by the Respondents. The
Kgatla Commission rejected such allegation and referred to the
allegation as a falsification
of evidence.The version of the
Respondents hereunder will show that Joel Thokampe was the legitimate
son of Mabetha and the father
of Lucas Moraka Mamadi and Aborekwe
Thomas Mamadi. Again, there is a material dispute of fact in this
regard.
Respondents'
Version
[21]
According to the version of the
Respondents, the genealogy and traditional leadership of the Mamadi
Community is as set out in Annexure
"NN4"
to the First, Second and Third
Respondents answering affidavit. For the sake of convenience and ease
of reference a printout of
Annexure
"
NN4"
is attached hereto and
same forms part of this judgment.
[See
PDF Version for Annexure NN4]
[22]
The following appears from Annexure
"
NN4" :
Kgoshi Madidimalo had
three wives, Ndiyeng (the senior wife and masechaba), second wife,
Malebepe and the third wife Matshopa. Ramphefu
and Maphula are the
sons of Kgoshi Madidimalo with Ndiyeng. Ramotshabi and Mabetha were
born of the house of Ndiyeng the candle
wife. After the disappearance
of Ramotshabi, Mabetha became the Kgoshi. He married MmaMoyahabo as
masechaba to restore the lineage
of Ramotshabi.
[23]
In the union between Mabetha and
MmaMoyahabo, Mabokwana Joseph was born. Despite his physical
impairment, Mabokwana Joseph was the
authentic heir in the Mamadi
dynasty. He died at a young age. In the absence of males from the
first house of MmaMoyahabo, males
from the second house of MmaSephuma
are destined to revive the lineage of Mabokwana Joseph. It is within
the prescripts of the
customary law of succession of the Mamadi
Community for descendants of MmaSephuma to revitalize the lineage of
Mabokwana Joseph.
[24]
Joel Thokampe is the son of Mabetha with
the latter's second wife, MmaSephuma. Hence Joel Thokampe took over
from Mabetha as acting
Kgoshi after the death of Mabetha. Lucas
Moraka Mamadi and Aborekwe Thomas Mamadi are sons of Joel Thokampe.
After the death of
Joel Thokampe his eldest son, Lucas Moraka was
appointed acting Kgoshi in 1985. Lucas Moraka died in 201O and left
behind two wives,
Margaret and Cathrine. Only Catherine has a child
with Lucas Moraka, namely Lerato, who is still a minor and for whom
Aborekwe
Thomas is acting Kgoshi since 2018.
[25]
It is to be noted on the genealogy,
Annexure
" NN4"
that
the First Applicant, Madidimalo Kislon belongs to the house of
Matshopa, the third and junior wife of Kgoshi Madidimalo. It
is
common cause that of the three wives of Kgoshi Madidimalo, Ndiyeng is
the candle wife. Madidimalo Kislon is the son of Mabetha
Frank
Mamadi. The latter is the son of Marema, out of the house of
Matshopa, the latter being the junior house of Kgoshi Madidimalo.
[26]
The Respondents deny that Mabu Dorothy
was married as masechaba and aver that she was merely the wife of
Masetha Frank. The Kgatla
Commission in its finding stated that the
issue of Mabu Dorothy having married as a masechaba is highly
contentious. That it is
unheard-of for a tribe to have parallel
candle wives.
[27]
Accordingly, this Court is faced with
two mutually distructive versions, one propagated by the Applicants
that Mabu Dorothy was
a candle wife and the other version of the
respondents that MmaMoyahabo (wife of Mabetha) was married as a
masechaba or candle
wife. This dispute of facts cannot be resolved on
papers before me.
Findings
of the Kgatla Commission
[28]
Having heard evidence presented before
it and analyzing such evidence, the Commission made the following
findings:
28.1.
The Mamadi senior traditional leadership
is characterized by intermittent cessations. After the disappearance
of Ramotshabi, there
was a period of cessation. Other cessation
occurred after the deaths of Mabetha, Joel Thokampe and Lucas Moraka
Mamadi. The latter
died in 2010.
28.2.
In terms of the Mamadi customary law of
succession, the house of Ndiyeng is the rightful one for
chieftainship than the house of
Matshopa.
28.3.
The allegation of illegitimacy of Joel
Thokampe cannot be authenticated. Madidimalo Kislon Mamadi is not a
credible witness. His
evidence is characterized with flaws.
28.4.
To a greater extent customary law has
been followed correctly. In terms of Mamadi Customary law of
succession Madidimalo Kislon
does not qualify to claim Mamadi
chieftainship. He is the descendant of Matshopa.
28.5.
The genealogy presented by Madidimalo
Kilson is very shallow, wanting and misleading compared to the one
submitted by the respondent,
Aborekwe Thomas Mamadi which is
comprehensive and elaborate.
[29]
It is appropriate to refer to the
criticism leveled against the First Applicant by the Kgatla
Commission in its report. It reads
thus:
" The claimant, Madidimalo
Kilson is not au fait with the history of Mamadi. In the genealogy
that he presented to the Commission
for instance, he describes Kgoshi
Maphula to be from the "smaller house". This is void of the
truth. The genealogy of
his father Masetha Frank shows Maphula to be
the younger brother of Mphefu and son of Ndiyeng, the masechaba.
Again, Madidimalo
Kilson describes Mabetha as younger brother to
Maphula. According to Masetha Frank however, Mabetha is the younger
brother of Ramotshabi
and not Maphula .... The evidence of Madidimalo
Kilson is unreliable
[1]
."
[30]
It is clear from the evidence of the
First Applicant as quoted above, that the First Applicant attempted
to do all he could in order
to remove the Mabetha lineage away from
the lineage of Ramotshabi so as to show that the Mamadi Chieftaincy
was never along the
Mabetha lineage. This aspect perpetuates the
dispute of facts in this matter.
DISPUTE OF FACTS
[31]
At the hearing of this matter on 15
October 2020 and during oral submission I raised a question to the
Counsel for the Applicants
concerning the numerous disputes of facts
raised by the Respondents, the substance of which cannot be decided
on the papers. Counsel
conceded to the existence of material disputes
of facts and thus rendering the issue common cause between the
parties. When asked
how to resolve the issue, Counsel submitted that
since Rule 53 of the Uniform Rules of Court prescribed that judicial
reviews could
only be made on application, the Applicants did not
have a choice but to follow the procedure despite the existence of
the disputes.
[32]
Counsel for the Applicants further
submitted that since a litigant is not given a choice as to how to
bring a judicial review, the
Court confronted with material disputes
of facts should not adopt a robust approach by dismissing the
application, but is expected
to refer the matter to oral evidence.
[33]
This Court then made it clear to the
parties that due to the clear dispute of fact, it could not determine
the application on the
affidavits before it, and requested the
parties to prepare supplementary heads of argument on the above
question in respect of
the appropriate remedy in the circumstances,
that is, whether a dismissal of the application or referral to oral
evidence would
be appropriate. I am indebted to all Counsel for their
assistance with the heads of argument submitted.
[34]
The Respondents submitted that the
matter should be dismissed as a referral to oral evidence would be
inappropriate in the circumstances.
The Respondents submit further
that the referral of the matter to oral evidence as desired by the
Applicants is not only opportunistic
but incorrect in law.
The Law regarding Dispute of
Facts
[35]
The starting point in respect of a
dispute of fact in motion proceedings wherein final relief is sought
is the following passage
from
Plascon
- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
"It is correct that, where
in proceedings on notice of motion disputes of fact have arisen on
the affidavits,
a
final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant's affidavits
which
have been admitted by the respondent together with the facts alleged
by the respondent, justify such an order".
This
is regardless whether the relief is sought through the procedure laid
out under Rule 6 or 53 of the Uniform Rules of Court.
In terms of the Plascon - Evans
rule, the facts deposed to by the respondent, unless they are
uncreditworthy, far - fetched or untenable,
are to be accepted for
purposes of determining whether a case has been made out for the
relief claimed by the Applicant - See
Marais
and Another NNO v Maposa and Others
[3]
.
[36]
Ultimately, where a litigant ought
reasonably to have anticipated that issues of dispute of fact would
arise in the proceeding and
elects to proceed on motion nonetheless,
the appropriate order is that the application is dismissed with costs
-Adbro Investment Co Ltd v Minister
of lnterior
[4]
.
It is however possible for a
litigant who recognizes that a dispute will arise on the papers in
the review, to apply for referral
on the disputed issues to the
hearing of oral evidence. Such request for hearing of oral evidence
should be made at the outset
of the proceedings and not in the middle
of the hearing of the matter, particularly in circumstances where the
dispute was known
by the applicant, as it was so in
casu.
[37]
In
Minister
of Land Affairs and Agriculture v D&F Wevell Trust
[5]
the Court stated the following regarding the timing of the request
for a referral to oral evidence:
"...
This argument comes
down to the following:
the respondents require a
referral to evidence or to trial in the hope that they would thereby
obtain the necessary evidence to
substantiate their defence. Should
they have presented evidence of probative value in their affidavits
sufficient to defeat the
Applicant's case, I would on that evidence
have dismissed the application.
Fact
is, the evidence was insufficient.
The
respondents cannot ask for
a
referral
to evidence or to trial in order to make up shortcomings in their own
case".
(my
underlining)
See also
De Reszke v Maras and
Others
[2006] 2 ALL SA 115
(SCA)
where it was held that the
general rule of practice remains that an application to refer for
oral evidence should be made prior
to argument on the merits.
[38]
Rule 6(5)(g) of the Uniform Rules of the
High Court provides that:
"Where an application
cannot properly be decided on affidavit the Court may dismiss the
application or make such order as to
it seems meet with
a
view to ensuring
just and expeditious decision. In particular, but without effecting
the generality of
a
foregoing, it may
direct that oral evidence be heard on specific
issues
with
a
view to resolving
any dispute of fact and to that may order any deponent to appear
personally or grant leave for him or any other
person to be
subpoenaed to appear and be examined and cross-examined
as
a
witness or it
may refer the matter to trial with appropriate directions
as
to pleading or
definition of
issues
or otherwise."
In
Stellenbosch
Farmers Winery Ltd v. Stellenvale Winery Pty Ltd
[6]
it was held
that:
"Where there
is
a dispute
as
to facts a final
interdict should be granted on notice of motion proceedings if the
facts
stated
by the Respondent together with the admitted facts in the Applicants
affidavits justify such and order."
In
simplified terms the matter is as a general rule to be decided on the
Respondent's evidence and not on the Applicant's evidence.
See:
Plascon - Evans Paints Ltd v. Van Riebeeck P ints (Pty) Ltd (Supra)
[39] What
is much more important and also relevant for the purposes of this
matter is the further basic
and procedural rule or principle that in
the case of a foreseeable dispute of facts, which cannot be resolved
upon the papers,
an application can be dismissed solely for that
reason.
That rule or principle has been
explained as follows in the well-known judgment of Murray AJP in
Room
Hire Co (Pty) Ltd v. Jeppe Street Mansions (Pty) Ltd
[7]
which can be
regarded as the
locus
classicus:
"It is obvious that a
claimant who elects to proceed on motion runs the risk that a dispute
of fact may be shown to exist.
In that event (as is indicated infra)
the Court has a discretion as to the future course of the
proceedings. If it does not consider
the case such that the dispute
of fact can properly be determined by calling viva voce evidence
under Rule 9, the parties may be
sent to trial in the ordinary way
either on the affidavits as constituting the Pleadings, or with
a
direction that
Pleadings are to be filed.
Or
the application may even be dismissed with costs, particularly when
the Applicant should have realized when launching his application
that
a
serious
dispute of fact was bound to develop. It is certainly not proper that
an Applicant should commence proceedings by motion
with knowledge of
the probability of
a
protracted
enquiry into disputed facts not capable of easy ascertainment, but in
the hope of inducing the Court to apply Rule 9
to what is essentially
the subject of an ordinary trial action."
See also
Adbro Investment Co
Ltd v Minister of Interior (Supra) .
[40]
The Supreme Court of Appeal summarized
the position as follows in
Lombaard
v. Droporp CC
[8]
"[31]
Motion proceedings are not designed or intended to resolve dispute of
fact. Therefore, if a party has
knowledge of a material and bona fide
dispute, or should reasonably foresee its occurrence and nevertheless
proceeds on motion,
that party will usually find the application
dismissed."
Was the Applicant compelled to
proceed on motion under Rule 53?
[41]
At the hearing of the matter, and in
response to questioning from the Court, Counsel for the Applicants
argued that the Applicants
were compelled to bring the applicant on
motion in terms of Uniform Rule 53 and relied on a portion of the
commentary on Uniform
Rule 53 contained in
Erasmus
and which reads as follows:
"A party who is obliged by
the subrule to bring proceeding by way of notice of motion, in the
event of
a
conflict of fact
arising on the papers which can be resolved only by oral evidence,
cannot be penalized on the basis that he should
have anticipated the
conflicts and proceeded in another way. Similarly,
a
party who seeks
to discharge an onus of proof which rests upon him by asking for an
opportunity to adduce oral evidence or to cross
examine deponents to
answering affidavits, should not lightly be deprived of that
opportunity in view of the fact that such
a
party
was obliged to proceed by way of notice of motion proceeding.
[9]
It was argued that the provisions
of Uniform Rule 53 are peremptory and that, accordingly, the matter
should be referred to oral
evidence because the Applicants were
compelled by Uniform Rule 53 to approach the Court on motion and
should not be penalized due
to the ensuing dispute of fact.
[42]
I disagree. The learned authors of
Eramus
go
further to state that:
"The provisions of this
subrule are not peremptory and in appropriate circumstance the Court
is entitled to condone noncompliance
with the provisions by, for
example , hearing review proceedings brought by way of summons or by
way of motion under Rule 6"
A party is not compelled to
proceed on motion in terms of Uniform Rules 53. In
Nelson
Mandela Bay Metro v. Erastyle
[10]
Goosen J
analysed the position and found that review proceedings may be
brought by way of an action, and concluded that "a
plaintiff
is not obliged to proceed in terms of Rule 53"m
and
consequentially,
"it
is not required to seek condonation for its so-called non
compliance with that procedure
[11]
"
See
also
Jockey Club of SA v. Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 661 E- F.
[43]
In the present case the Applicants
elected to proceed on motion at their own peril and ought not be
allowed to seek refuge in the
language of Uniform Rule 53 despite the
authority to the contrary.
[44]
The present matter is to be determined
against the backdrop of the orders sought by the Applicant in the
amended notice of motion.
The Applicants essentially seek an order to
review and set aside:
44.1.
The Premier's failure or refusal to
recognise the First Applicant as acting Senior Traditional Leader;
and
44.2.
The Premier's recognition of Aborekwe
Thomas Mamadi as Senior Traditional Leader.
In Paragraph 1.2 of the notice of
motion, the Applicants seek a declaratory order that First Applicant
actually qualifies to assume
the position of a traditional leader. If
the court finds in the Applicants' favour, the next prayer is for the
Premier to be compelled
to recognise First Applicant as acting
traditional leader.
Furthermore,
the Applicants seek a declaratory order to the effect that the Kgatla
Commission's report is null and void.
[45]
Against this backdrop Counsel for the Government Respondents
correctly submits that the declaratory
orders sought by the
Applicants, read in context with the remainder of the orders they
seek, are capable of being obtained in action
proceedings. I agree.
In the circumstances action procedure was to be preferred where it
appeared inevitable that the matter raises
material disputes of fact
which are not determinable in motion proceedings.
[46]
In my view Rule 53 merely regulates the manner in which the review
proceedings are to be brought
before a Court and does not seek to
restrict or change the law relating to how dispute of facts are dealt
with. The Applicants
in
casu
had a choice of procedure to use
when approaching this Court.
Should the Court refer the
matter to oral evidence or dismiss the Application?
[47]
The Respondents argued that, in the
circumstances of the present matter, it would not be appropriate to
refer the matter to oral
evidence and that, accordingly, the matter
should be dismissed.
The Fifth Respondent submits that
the dispute of facts was foreseesble by the Applicants prior to the
launch of the application,
or at the very least since it was clearly
raised by the Fifth Respondent in his answering affidavit served on
the Applicants on
10 May 2019.
[12]
The
Fifth Respondent relies on the authority of
Room
Hire (Supra)
where
it was stated that
"..
.application may
be dismissed with costs, particularly when the applicant should have
realized when launching his application that
a serious dispute of
fact was bound to develop. It is certainly not proper that an
applicant should commence proceedings by motion
with knowledge of the
probability of a protracted enquiry into the disputed facts not
capable of easy ascertainment what is essentially
the subject
of
an ordinary trial action.
[13]
See also
Lombaard v Droprob CC
and Others
2010 (5) SA 1
(SCA) at 11.
[48]
The general rule of practice is that
an application to refer for oral evidence should be made prior to
argument on the merits.
[14]
In
Law
Society, Northern Provinces v Magami
[15]
the Supreme
Court of Appeal re-affirmed the general rule as follows:
"An
application for the hearing of oral evidence must, as
a
rule, be made in
limine and not once it becomes clear that the Applicant is failing to
convince the Court on the papers or on appeal.
The circumstances must
be exceptional before
a
Court will permit
an Applicant to apply in the alternative for the matter to be
referred to evidence should the main argument fail.
"
In
the present matter, no application for referral to oral evidence was
made in limine but only when Counsel for the Applicans was
engaged by
the Court during the hearing on the merits.
[49]
In his further submissions that this
matter should be referred to oral evidence, Counsel for the
Applicants argued that the aim
of this Court should be to resolve the
disputes of the Mamadi Chieftaincy. That if this matter is referred
to oral evidence or
trial the Applicants will be in a better position
to discover in terms of the Rules, a number of documents extracted
from the Archive
File 54/1074/4 which became available to the
Applicants when this matter was already set down for hearing. Counsel
pointed out
that the said documents will give clarity to the
following disputed issues:
49.1.
That the documents will provide clarity
that Masetha Frank Mamadi ruled until his death in 1981.
49.2.
The documents will also prove that
Molatelo Warrick Mamadi ruled between 1981 to 1985.
49.3.
The documents will also prove that the
First Applicant was the secretary of the Mamadi Community from 1966
until 1985
[50]
What the Applicants are asking for
is that the matter be referred to oral evidence so as to enable them
to fortify their otherwise
floundering application. This cannot be
allowed.
In
Dodo v Dodo
[16]
the following
was said:
"The Respondent's case
stands or falls on his own averment. I think the Respondent's request
for oral evidence fails in this
regard. The Respondent may not seek
to lead evidence to make out
a
defence for the
first time, by way of such oral evidence, where his defence is not
already made out by him on papers
"
Similarly,
in
Carr v
Uzent
[17]
the Court held
that:
"[The Applicant] has
failed, in my opinion, in his affidavits, read as a whole, to make
out this case, and Rule 9 was never
designed to enable an applicant
to amplify affidavits by additional evidence where the affidavits
themselves, even if accepted,
do not make out a clear case, but leave
the case ambiguous, uncertain, or fail to make out
a
cause of action
at all."
[51]
I am of the view that absent that
request from the onset of the application, should a dispute arise on
the papers, as it did in
the present matter, the Court is bound by
the Plascon-Evans rule and must decide the matter in favour of the
Respondents. Referring
the matter for oral evidence will not, in the
circumstances of this case, help the Applicants. Authorities referred
to above and
coupled with the discretionary powers of the Court, do
not allow the Applicants to fortify their weak case through oral
evidence.
[52]
The genealogy annexed as
"
NN4"
to the Respondents'
answering affidavit as well as the findings of the Kgatla Commission
show that the descendants of Matshopa from
whence the First Applicant
descends, are not entitled to the chieftaincy of the Mamadi
Traditional Community. A decision to hear
oral evidence is premised
on the question whether there exists prospects of success for the
applicant seeking such hearing. In
Kalil
v Decotex (Pty) Ltd and Another
[18]
the court held as follows:
"The applicant may,
however apply for an order referring the matter for the hearing of
oral evidence in order to try to establish
a
balance of
probabilities in his favour. It seems to me that in these
circumstances the Court should have
a
discretion to
allow the hearing of oral evidence in an appropriate case.
...
Naturally, in
exercising this discretion the Court should be guided to
a
large extent by
the prospects of viva voce evidence tipping the balance in favour of
the applicant. Thus, if on the affidavits the
probabilities are
evenly balanced, the Court would be more inclined to allow the
hearing of oral evidence than if the balance were
against the
applicant. And the more the scales are depressed against the
applicant the Jess likely the Court would be to exercise
the
discretion in his favour. Indeed, I think that only in rare cases
would the Court order the hearing of oral evidence where
the
preponderance of probabilities on the affidavits favoured the
respondent"
[53]
On the conspectus of the evidence on
affidavits in this matter, the Applicant have shown no prospects of
success. The parties have
appeared and testified (together with their
witnesses) before the Kgatla Commission where they were subjected to
questioning or
cross examination. The First Applicant came out second
best in the evidence before the Commission. His credibility was
questioned
and his evidence was labeled unreliable. I do not foresee
the First Applicant improving from his poor performance before the
Commission
lest he perjures himself in his oral evidence before this
Court.
[54]
The Applicants' remedy lies in an
action procedure and their election to proceed on motion was fatally
misconceived from inception.
A referral to oral evidence will not
serve to cure the deficiencies of this matter in an expeditious and
just manner. Accordingly,
the request to refer the matter to oral
evidence is refused.
[55]
On the merits of the application, I am of the view that the
Applicants have not made out a case
for the relief that they seek in
this application. The dispute of facts is such that the matter should
be decided in favour of
the Respondents.
[56]
In the result, the application is dismissed with costs, such costs to
include the costs of two
Counsel where so employed.
EM MAKGOBA
JUDGE PRESIDENT OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 15
October 2020
Judgment
delivered on
: 26
November 2020
For
the Applicants
: Adv.
M.S Sikhwari
Instructed
by
: Baloyi
Sihlare Attorneys
For
1
st
,
2
nd
& 3
rd
Respondent
: Adv.
M
Z Makoti
Adv. N Ntuli
Instructed
by
: GR Egan
Instructed
by
: Chris
Greyvenstein Attorneys
c/o Tumisang Phasha Attorneys
[1]
See Commission Report : at Page 374-375 para [7.9]; Record Vol 4
[2]
1984 (3) SA 623 (A)
[3]
2020 (5) SA Ill (SCA) at para (33)
[4]
1956 (3) SA 345
(A) at Page 349 -350
[5]
2008 (2) SA 184 (SCA)
[6]
1957 (4) SA 234 (C)
[7]
1949 (3) SA 1155
(T)
at 11 62
[8]
2010 (5) SA 1
(SCA)at para [31]
[9]
See Erasmus Superior Court Practice Vol 2 Part 01
[10]
2019 (3) SA 559 (ECP)
[11]
At Page 5684
[12]
See Fifth Respondent's Answering Affidavit, at para 5, Bundle 2,
paginated page 126
[13]
Room Hire Co (Pty) Ltd v Jeppe Mansions (Pty) Ltd 19
49 (3) SA 1155
(T) at 1162
[14]
See De Reszeke v Maras and Others 2006 (1) SA 401 (C)
[15]
2010 (1) SA 1
86 (SCA) at 195 C- D
[16]
1990 (2) SA 77
(W) at 91 H-I
[17]
1948 (4) SA 383
(W) at 390
[18]
1988 (1) SA 943
(A) at 979 F-I