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[2019] ZALMPPHC 15
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Langa v Premier, Limpopo Province and Another (4561/2017) [2019] ZALMPPHC 15 (3 May 2019)
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: 4561/2017
3/5/2019
In the matter between:
LANGA, KGABAGARE
DAVID
APPLICANT
and
PREMIER, LIMPOPO
PROVINCE
1
ST
RESPONDENT
LIMPOPO PROVINCE: MEC
FOR CO-OPEARATIVE
2
ND
RESPONDENT
GOVERNANCE, HUMAN
SETTLEMENT
AND TRADITIONAL
AFFAIRS
RALUSHAI COMMISSION OF
INQUIRY
3
RD
RESPONDENT
KGATLA COMMISSION OF
INQUIRY
4
TH
RESPONDENT
HANS MASEBE
LANGA
5
TH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Applicant brought an application against the Respondents for an
order in the following terms:
1.1. That
the decision of the First Respondent to withdraw a Certificate of
Recognition as Senior Traditional Leader
of the Mapela Traditional
Community, issued to the Applicant be declared unlawful and void
ab
initio
,
be reviewed and set aside;
1.2.
That the decision of the Third Respondent to recommend, to the First
Respondent, that the Fifth Respondent be installed
and recognised as
Senior Traditional Leader of the Mapela Traditional Community, be
declared unlawful and void
ab
initio
,
be reviewed and set aside;
1.3.
That the decision of the Fourth Respondent to recommend, to the First
Respondent, that the Fifth Respondent be
installed and recognised as
Senior Traditional Leader of the Mapela Traditional Community, be
declared unlawful and void
ab
initio
,
be reviewed and set aside;
1.4.
That the Court directs that the status
quo
ante
the
aforesaid unlawful decision referred to in 1.1 above be restored.
[2]
The Applicant was the Senior Traditional Leader of the Mapela
Traditional Community. The Fifth Respondent
has been recognised and
appointed as Senior Traditional Leader in the Applicant’s
stead, by the First Respondent (“the
Premier”).
Essentially, this is an application for the review and setting aside
of the First and Second Respondents’
decision to withdraw the
Applicant’s certificate of recognition as senior traditional
leader and appointing the Fifth Respondent
as the Senior Traditional
Leader with effect from 1 April 2017.
[3]
The First Respondent’s (the Premier’s) decision is
challenged on the basis that it is allegedly
not authorised by the
empowering legislation and therefore
ultra vires
. It is also
challenged on the basis that he allegedly failed to notify the
Applicant of his intended action and afford the Applicant
an
opportunity to make representations in the circumstances where the
law requires the Premier to do so. The Third and Fourth Respondents
decisions are challenged on the basis that they are allegedly
procedurally unfair, relevant considerations were not taken into
account; the decisions were influenced by material error of fact; the
decisions are arbitrary, unreasonable and irrational.
[4]
The Respondents’ standpoint is that the Applicant has not made
out a case to support the prayers
it is seeking and further that the
prayers are not supported by the facts of this case. The Respondents
furthermore state that
in the unlikely event of this Court setting
aside the Premier’s decision, and unless the Applicant proves
that this is an
exceptional case, the appropriate remedy that may be
granted is not to restore the status
quo ante
but to remit
this matter for reconsideration by the First Respondent (the
Premier).
Dramatis
Personae
[5]
The Applicant is the son of one Madikwe Hendrik Langa, a one-time
acting Kgoshi of the Mapela Traditional
Community. The Applicant was
appointed and issued with a Certificate of Recognition as Senior
Traditional Leader in terms of section
12(1)(b) of the Limpopo
Traditional Leadership and Institutions Act 6 of 2005 (“the
Limpopo Act”) by the then Premier
of Limpopo Province with
effect from the 6 November 2009. The current Premier (First
Respondent) withdrew the aforesaid certificate
of appointment and
recognition as Senior Traditional Leader and in the Applicant’s
stead appointed and recognised the Fifth
Respondent as such with
effect from 1 April 2017 after receiving and implementing the
recommendations of the Fourth Respondent.
[6]
The First Respondent (being the Premier of the Limpopo Province) is
cited herein by virtue of his oversight
function vis-à-vis the
Provincial Traditional Leadership Institution. He has the power to
recognise and issue a certificate
of recognition of amongst others
Senior Traditional Leaders in the Province in terms of section 12 of
the Limpopo Traditional Leadership
and Institutions Act 6 of 2005
(“the Limpopo Act”). In the present proceedings the
Premier acted in terms of sections
13 and 30 of the aforesaid Act in
terms whereof he removed the Applicant as Senior Traditional Leader
and replaced him with the
Fifth Respondent following the
recommendations of the Fourth Respondent.
[7]
The Second Respondent as the MEC for the Department of Co-Operative
Governance, Human Settlement and
Traditional Affairs, is cited herein
in his capacity as the political overseer of the institution of
traditional leadership in
the Province. The office of the Second
Respondent is responsible for the administration of the Limpopo
Province’s traditional
leadership affairs.
[8]
The Third and Fourth Respondents were delegated Provincial Committees
referred to in section 25 read with
26A of the Traditional Leadership
and Governance Framework Act 41 of 2003 (“the Framework Act”)
with the authority
to investigate and make recommendations on
traditional leadership disputes and claims in the Limpopo Province.
The Third Respondent
completed its work around 1997 and handed its
report to the First Respondent. The Fourth Respondent completed its
work in December
2016 and also handed its report to the First
Respondent. In the present case it is the findings and
recommendations of the Third
and Fourth Respondents which are sought
to be reviewed and set aside by the Applicant.
[9]
The Fifth Respondent is presently the incumbent of the Traditional
Leadership of the Mapela Traditional
Community after he was so
appointed and recognised by the Premier with effect from 1 April
2017. His appointment and recognition
as such follow the
recommendations of the Third and Fourth Respondents.
Record
of Decision sought to be reviewed and set aside
[10] In the
Notice of Motion the Applicant in terms of Rule 53(1)(b) of the
Uniform Rules of Court, called upon the
First, Second, Third and
Fourth Respondents to dispatch to and file with the Registrar of this
Court the record of the decision
sought to be reviewed and set aside
(including all correspondence, reports, memoranda, documents,
evidence, transcripts and recorded
proceedings and other information
serving before the First Respondent when the decision(s) were made)
together with such reasons
as they are by law required to give or
desire to make.
[11] In
response to the aforesaid notice and in terms of Rule 53(3) the
Respondents furnished various correspondences,
memoranda, copies of
Provincial Gazettes and among others and of importance the Reports by
the Commission on Traditional Leadership
Disputes and Claims of both
the Ralushai Commission (Third Respondent) and Kgatla Commission
(Fourth Respondent). The contents
of the aforesaid documents or
records form part of the evidential material in these proceedings.
They in fact constitute the decisions
or recommendations sought to be
reviewed and set aside by the Applicant.
Condonation
[12] All the
parties in these proceedings were remis
in
serving and filing some of their papers on time as prescribed by the
Rules of Court. The Applicant was six months out of time
in serving
and filing his supplementary founding affidavit. The First, Second,
Third and Fourth Respondent were three months out
of time in serving
and filing their answering affidavit whilst the Fifth Respondent
served and filed his answering affidavit six
months late. All the
parties made applications for condonation of their late filing of
their papers. They opposed each other’s
application for
condonation. By agreement between the parties and at the hearing of
this matter on 17 April 2019 the Court granted
each party condonation
for the late filing of their respective papers with an appropriate
order that the costs will be costs in
the cause.
FACTUAL
BACKGROUND
[13]
The factual background which includes the genealogical history of the
Mapela Community Traditional Leadership will put
this matter in
correct perspective.The history is traced from the reign or regime of
the late Kgoshi Hans Langa
I
to
the present day situation when the Applicant was relieved of his
duties as Kgoshi of the Mapela Traditional Community with effect
from
1 April 2017. It appears clearly from the papers filed of record that
since the death of the late Senior Traditional Leader,
Alfred Sedibu
Langa in 1937, the successors have hitherto and until the
installation of the Fifth Respondent been acting as Kgoshi
and / or
regents.
Genealogical
History
[14]
Kgoshi Hans Malesela Langa
I
was
the first traditional leader of the Mapela Community and built his
capital at the foot of Magope Hill. He had 29 wives but for
the
purpose of this case we shall concern ourselves to only five wives.
His senior wife was Malega Maria Langa who was also the
candle wife,
that is
masechaba
.
Alfred Sedibu Langa was born of the marriage relationship between
Kgoshi Hans Langa
I
and
Malega Maria Langa and therefore succeeded his father as Kgoshi of
the Mapela Community in 1918.
Alfred
Sedibu Langa did not have a male issue to succeed him as Kgoshi until
he died in 1937. Upon his death in 1937 Alfred Sedibu
Langa was
succeeded by his younger brother, Johannes Nkgalabe Langa who acted
as regent until his death in 1957.
[15]
The death of Johannes Nkgalabe Langa gave rise to a new line of
successors with the nomination of Godwin Motape
Langa in 1957 from
another house. The said Godwin’s mother was Madikana, the fifth
wife of the late Kgoshi Hans Langa
I
.
Godwin
was the elder brother of Hendrik Madikwe Langa. The two are born from
the fifth house of the late Kgoshi Hans Langa
I
and
were half-brothers of the late Kgoshi Alfred Sedibu Langa. Godwin
ruled for a short period of six months before he met his untimely
death in 1958. His death paved a way for his younger brother Hendrik
Madikwe Langa to be nominated and appointed as the acting
Kgoshi of
Mapela Community.
[16]
Henrik Madikwe Langa’s reign was terminated in 1976 when John
Masebe Langa, the son of Nkopo Hendrick Langa
from the second house
of Kgoshi Hans Langa
I
was
appointed in his place as acting Senior Traditional Leader of Mapela
Community. John was appointed with the sole mandate of
raising a seed
for the late Kgoshi Alfred Sedibu Langa by cohabiting with the candle
wife (masechaba) designate, Rosina Queen Langa.
It is against this
background that a
masechaba
in the name of Rosina Langa was married as a candle wife (masechaba)
in 1958. The then regent Hendrik Madikwe Langa rejected Rosina
and
refused to accept her as a masechaba. Hendrik further refused to
cohabit with Rosina. His refusal prompted the royal house
(
bakgomana
)
to nominate John Masebe Langa as his substitute and the latter was
installed as regent of the Mapela Community.The Fifth Respondent
(Hans Masebe Langa) was born out of the cohabitation of John, the
regent and Rosina, the
masechaba
.
[17] Having
rejected the rightful masechaba Hendrik Madikwe Langa went on to
marry his “own masechaba” by
the name of Athalia in 1960.
The Applicant is born of the marriage between Hendrik and Athalia.
[18] While
John Masebe Langa continued with his reign, the disgruntled Hendrik
Madikwe Langa mobilized supporters who
turned amok against John and
his supporters. A civil commotion ensued in the Mapela Community with
the result that John fled to
Hammanskraal where he sought refuge with
his family, that is Rosina and the young Fifth Respondent. The
violence had erupted in
1977 and Hendrik moved the royal head kraal
to Fothane where he was reinstated as traditional leader. After his
death in 1990,
Hendrik was succeeded by his wife Athalia who ruled as
a regent until 2009 when she passed the baton to her son David
Kgabagare
Langa, the Applicant.
[19] I have
incorporated in this judgment a schematic illustration of the
official Langa genealogy concerning their
traditional leadership. I
have marked with letters “Y” and “X” the
positions of the Applicant and the Fifth
Respondent respectively
where they appear on their family tree.
Role
of the Commissions (Third and Fourth Respondents)
[20] The
Third Respondent (“the Ralushai Commission”) had an
opportunity to investigate, hear evidence and
make findings in
respect of the traditional leadership dispute of the Mapela
Traditional Community. The Ralushai Commission completed
its work in
1997 and made the following findings and recommendations:
“
The
Commission finds that the marriage to Athalia and the issuing to her
of the letter of appointment by the Lebowa Government was
contrary to
custom and tradition and thus irregular. The Commission recommends
that Athalia Langa be removed as acting chieftainess
and that Hans
II
be
installed as chief under the name Hans Langa
II
,
because
such actions will restore the bloodline of Chief Alfred Sedibu Langa.
If Athalia is not removed, and at one stage or another
her son takes
over, it will mean the creation of a new bloodline, starting with
Madikwe Langa who was acting chief. Hans
II
is,
for royal succession purpose, not the sociological son of John Langa
but of Alfred Langa. He is the biological son of John Langa,
who
acted for a very short time before he and Rosina were forced to flee
out by violence instigated by Madikwe Langa and his group.
Athalia’s
son is not the biological and, sociological son of Madikwe Langa and
as such, cannot succeed as permanent chief
of the Mapela tribe.”
[21] The
above recommendations of the Ralushai Commission were for unknown
reasons not implemented with the result that
Athalia continued ruling
until her son, the Applicant took over from her in 2009. The
Applicant was issued with a certificate of
recognition on 6 November
2009.
[22]
In 2013 the Mapela Traditional Leadership dispute and claim was
referred to another Commission namely the Fourth
Respondent (“the
Kgatla Commission”). Madimetja Joseph Langa, the last born son
of Kgoshi Hans Langa
I
disputed
the chieftainship of the then incumbent, Kgabagare David Langa (the
Applicant herein). He argued that Kgabagare is not
the rightful heir
to the throne. To him Hans
II
,
the Fifth Respondent whose mother consorted with John Langa, is the
rightful heir.
[23] The
Kgatla Commission conducted its proceedings in public and all
interested
parties including the Applicant were invited to attend the
proceedings and participate in the hearing. As proof that
the
Applicant was invited and did attend the Commission’s
proceedings a letter from Kaleka Mahapa Attorneys (Applicant’s
erstwhile attorneys) dated 20 January 2017 and addressed to the
Premier’s Office states the following:
“
3.
Ever since our client’s appearance before the Kgatla
Commission, he has never received the Commission’s report,
instead he received a letter dated 05 December 2016 from the
Commission on Traditional Leadership Disputes and Claims wherein he
was informed about the commission’s recognition of the lineage
of Alfred Sedibu Langa by Mr Langa Madimetja Joseph.”
The Applicant
participated at the Commission hearing to the extent that he even
called Kgoshigadi Maphuti Canatia Maraba of the
Maraba Traditional
Community at Kaalspruit and the daughter of Robert Lekgoa Langa to
testify in support of his case that he is
the rightful heir to the
throne.
[24] The
Kgatla Commission recommended that:
1.
The lineage of the late Hendrik Madikwe Langa as a ruling lineage be
terminated and that the current
incumbent, Kgoshi Kgabagare David
Langa be removed from his position in terms of the provisions of
section 12(1)(c) of
Traditional Leadership and Governance Framework
Act No 41 of 2003
read with section 13(1)(c) of the Limpopo
Traditional Leadership and Institutions Act No 6 of 2005.
2.
The lineage of the late Alfred Sedibu Langa be restored and Hans
II
Malesela
Langa (ID: 710401 5321 089) be recognised as a traditional leader of
Mapela Traditional Council in terms of section 12(1)
(b) of the
Limpopo Traditional Leadership and Institutions Act No 6 of 2005.
Withdrawal
of Applicant’s certificate of recognition
[25] In a
letter dated 5 December 2016, the secretary of the Kgatla Commission
notified the Applicant of the outcome
of the Commission hearing and
investigation thus:
“
2.
Kindly be informed that the claim for restoration and / or
recognition of the lineage of Alfred Sedubi Langa by Mr Langa
Madimetja
Joseph is accepted”
At
its meeting held on 6 December 2016 the Mapela Royal Family resolved
to appoint Hans Malesela Langa (Fifth Respondent) as the
Senior
Traditional Leader of the Mapela Traditional Community. The contents
of their resolution is that
“
We
do hereby acknowledge the appointment of Hans Malesela Langa as the
Chief of the Langa tribe of Mapela, as he is the legitimate
one to
hold the title of Hans Masebe
II
,
born of the house of Chief AlfredSedibu Langa of the Makgaripana Clan
(Kgoro ya Mošate)”.
[26] On the
28 February 2017 the Office of the Second Respondent (MEC COGHSTA)
sent out a memorandum to the Premier
requesting the Premier to
approve the relief of royal duties of Kgabagare David Langa
(Applicant) and recognise Hans Malesela Langa
(Fifth Respondent) as
the Senior Traditional Leader of the Mapela Traditional Community.
The memorandum was approved by the Premier
on 1 April 2017 whereafter
the certificate of recognition as Senior Traditional Leader issued to
the Applicant was withdrawn and
the Fifth Respondent was appointed
and recognised as the new Senior Traditional Leader of the Mapela
Traditional Community.
[27] In
implementing the recommendations of the Kgatla Commission the Premier
purported to have acted in terms of section
30 of the Limpopo
Traditional Leadership and Institutions Act No 6 of 2005. By then the
Fifth Respondent had already been identified
by the Royal Family at
its meeting of the 6 December 2016.
[28] The
removal of the Applicant as Senior Traditional Leader and the
recognition of the Fifth Respondent as Senior
Traditional Leader were
duly published in the Provincial Government Gazette dated 16 August
2017.
GROUNDS
OF REVIEW
[29]
The Applicant’s review application is not concerned with or
based on the merits of the decision of the First
Respondent but is
concerned with whether the decision was arrived at in an acceptable
manner. The focus is on the process and on
the way the decision-maker
arrived at the challenged conclusion
[1]
.
The Applicant avers that the decisions taken by the First Respondent
(Premier) have not been authorised by the empowering legislation
on
which it relies and that these decisions are therefore unlawful and
ultra
vires
.
[30] The
Applicant pointed out the following aspects as his grounds of review:
30.1.
That irrespective of the evidence deposed to by the Respondents
The resolution by the
Royal Family on 6 December 2016 does not identify a person who
qualifies to become a Senior Traditional Leader
and that the Royal
Family has not given reasons for its decisions. This, according to
the Applicant, shows a gross irregularity
on the part of the
Respondents which entitles the Applicant to an order reviewing and
setting aside the decisions taken by the
First Respondent.
30.2.
That in terms of section 12(1)(a) of the Limpopo Act the Royal
Family should identify a
person who is qualified to assume the traditional leadership position
and inform the Premier and also inform
the Traditional Council of the
recognition of the new Senior Traditional Leader in terms of section
12(1)(a)(ii) of the Act. Furthermore
that in terms of section
12(1)(b)(iii) of the Act the Premier was to inform the Provincial
House of Traditional Leaders of the
recognition of the new Senior
Traditional Leader. The Applicant avers that all these provisions of
the Limpopo Act have not been
complied with.
30.3.
That the provisions of section 13(2)(a) of the Limpopo Act have not
been complied with.
Section 13(2)(a) provides that when the Royal Family decides to
remove a Senior Traditional Leader, the Royal
Family concerned must
within a reasonable time and through the relevant customary structure
inform the Premier of the province
concerned and furnish reasons for
the removal.
30.4.
That the provisions of section 30 of the Limpopo Act have not been
complied with. Section 30 of the Act deals with the implementation
of
decisions of Commissions. I shall deal with this aspect fully
hereunder when I examine the legislative framework in my judgment.
30.5.
That the Premier failed to follow a procedurally fair decision as is
envisaged
inter alia
in section 3 of the Promotion of Administrative Justice Act, 3 of
2000 (PAJA) in that the Premier failed:
(1)
To
give the Applicant adequate notice of his proposed decision. That the
Applicant was never informed by the Premier that he intended
to make
a decision to withdraw the Applicant’s Certificate of
Recognition.
(2)
That
the Applicant was not given a reasonable opportunity to make
representations.
(3)
The
Applicant was never given a clear statement of the Premier’s
intention to withdraw the Applicant’s Certificate of
Recognition.
(4)
The
Applicant was not given adequate notice of his right to appeal and /
or take the decision on review.
(5)
The
Applicant was not informed of his right to request reasons for his
decision.
LEGISLATIVE
FRAMEWORK
[31] Section
12(1) of the Limpopo Traditional Leadership and Institutions Act 6 of
2005 (“the Limpopo Act”)
provides as follows:
12
Recognition of Senior Traditional Leader, Headman or Headwomen
(1)
Whenever
a position of a senior traditional leader, headman or headwoman is to
be filled –
(a)
The
royal family concerned must, within a reasonable time after the need
arises for any of those positions to be filled, and with
due regard
to the customary law of the traditional community concerned –
(i)
Identify
a person who qualifies in terms of customary law of the traditional
community concerned to assume the position in question;
and
(ii)
Through
the relevant customary structure of the traditional community
concerned and after notifying the traditional council, inform
the
Premier of the particulars of the person so identified to fill the
position and of the reasons for the identification of the
specific
person.
(b)
The
Premier must, subject to subsection (2) –
(i)
by
notice in the Gazette recognise the person so identified by the royal
family in accordance with paragraph (a) as senior traditional
leader,
headman or headwoman, as the case may be;
(ii)
issue
a certificate of recognition to the person so recognised; and
(iii)
inform
the provincial house of traditional leaders and the relevant local
house of traditional leaders of the recognition of a senior
traditional leader, headman or headwoman.
[32] The
question is whether the provisions of section 12(1) (a) and (b) of
the Act have been complied with. The Applicant
maintains that the
provisions of the Act have not been complied with.
[33] It is
common cause that on the 6 December 2016 and after the
recommendations
of the Kgatla Commissions have been made known a meeting of the
Royal Family was held and a resolution was
adopted to the effect that
the Royal Family “
acknowledge
the appointment of Hans Malesela Langa as the Chief of the Langa
tribe of Mapela
”.
The resolution goes on to give reasons for the Royal Family’s
decision thus: “
As
he is the legitimate one to hold the title of Hans Masebe
II
,
born of the House of Chief Alfred Sedibu Langa of the Makgaripana
Clan
.”
Whether
the resolution indicates “acknowledge” instead of
“identify” is neither here nor there. It is a
matter of
semantics.
In any
event by the time the dispute was before the Kgatla Commission the
name of the Fifth Respondent was already known as the
identified
person to assume the traditional leadership of the Mapela Community.
Hence when the recommendations of the Commission
were released the
name of the Fifth Respondent was already mentioned in the report of
the Commission as it appears in paragraph
[24] above. It cannot be
suggested that the Premier just picked up the Fifth Respondent’s
name from nowhere. It is clear
that the name was furnished to him by
the Royal Family.
[34] It is
clear from the plain wording of section 12(1) of the Limpopo Act that
the House of Traditional Leaders plays
no role in the identification
and recognition of a chief. All that is envisaged by these provisions
is that it will be informed
of the result of the process before the
appointment of a chief is announced to the public. No provision is
made for the Premier
to await any further input from the House before
proceeding to publish his or her decision to recognise the candidate.
It cannot
be said that the Legislature intended the failure to inform
the House to nullify the entire recognition process. The Applicant’s
argument that the provisions of section 12(1)(a) and (b) of the
Limpopo Act have not been complied with can therefore not hold
water.
[35] The
Applicant did not produce sufficient evidence to show that the
provisions of section 12(1)(a) and (b) of the
Act have not been
complied with. It could not have been the intention of the
Legislature when enacting section 12 of the Act that
all the
provisions of the section have to be complied with to the letter.
In
African
Christian Democratic Party v Electoral Commission
[2]
O’Reagan J delivering the majority judgment for the
Constitutional Court said the following at para 25:
“
[25]
The question thus formulated is whether what the applicant did
constituted compliance with the statutory provisions viewed
in the
light of their purpose. A narrowly textual and legalistic approach is
to be avoided as Olivier JA urged in Weenen Transitional
Local
Council v Van Dyk…..”
[36]
The Constitutional Court followed this approach in
Liebenberg
N.O and Others v Bergrivier Municipality
[3]
where Mhlantla AJ (as she then was) writing for the majority said the
following at para 25 and 26:
“
[25]
In African Christian Democratic Party v Electoral Commission and
Others, this Court, in the context of assessing a local authority’s
compliance with municipal electoral legislation, held that “[a]
narrowly textual and legalistic approach is to be avoided”.
Rather, the question is whether the steps taken by the local
authority are effective when measured against the object of the
Legislature,
which is ascertained from the language, scope and
purpose of the enactment as a whole and the statutory requirement in
particular.
[26]
Therefore, a failure by a municipality to comply with relevant
statutory provisions does not necessarily lead to the actions
under
scrutiny being rendered invalid.
The question is
whether there has been substantial compliance, taking into account
the relevant statutory provisions in particular
and the legislative
scheme as a whole.”
[37] In my
view the provisions of section 12 of the Limpopo Act have been
complied with and even if it may be argued
to the contrary I hold the
view that there has been a substantial compliance with the provisions
of section 12 of the Act with
regard to the identification of the
Fifth Respondent as a suitable person to be recognised as a
traditional leader by the Premier.
A mere failure to inform the
Traditional Council and / or the House of Traditional Leaders if any,
cannot render the process invalid.
[38] Section
13 of the Limpopo Act provides as follows:
13
Relief of royal duties
(1)
Relief of royal duties shall be on the grounds of-
(a)
conviction
of an offence with a sentence of imprisonment for more than 12
months without an option of a fine;
(b)
physical
incapacity 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 or her office.
(2)
Whenever
any of the grounds referred to in subsection (1)(a), (b), (d) and (e)
come to the attention of the royal family and the
royal family
decides to remove a senior traditional leader, headman or headwoman,
the royal family concerned must, within a reasonable
time and through
the relevant customary structure-
(a) inform the Premier
of the province concerned of the particulars of the senior
traditional leader, headman or headwoman to be
removed from office;
and
(b) furnish reasons
for such removal.
[39] Section
13 of the Limpopo Act deals with the relief of royal duties. The
Applicant avers that the Respondents failed
to comply with the
provisions thereof in particular section 13(2)(a) of the Act.
There is no merit in this
submission. Section 13(2)(a) is only applicable where the removal of
the traditional leader or the relief
of his royal duties is at the
instance of the Royal Family concerned, that is on the grounds listed
in subsections 1(a)(b)(d) and
(e). In the present case the relief of
the royal duties is based on subsection 1(c), that is on the ground
of wrongful appointment
or recognition.
[40] Section
30 of the Limpopo Act provides as follows:
30
Implementation of decisions of commission
(1)
The
Premier must, within seven days of receipt of the decision of the
commission in terms of
section 26(2) of the Framework Act, refer such decision to the
provincial house of traditional leaders for
its advice on
implementation.
(2)
The
provincial house of traditional leaders must submit its advice
contemplated in
subsection (1) to the Premier within 14 days of receipt: Provided
that the Premier may, if he or she deems it necessary,
require the
provincial house of traditional leaders to submit its advice within a
specified shorter period.
(3)
The
Premier must implement the decision of the commission within 30 days
of receipt of such decision from the commission.
[41] Section
30(1) of the Limpopo Act provides that the Premier must within 7 days
of receipt of the decision of the
Commission refer such decision to
the Provincial House of Traditional Leaders. Section 30(2) provides
that the Provincial House
must submit its advice to the Premier
within 14 days. Section 30(3) provides that the Premier must
implement the decision of the
Commission within 30 days of the
receipt of such decision from the Commission.
The
First to Fourth Respondents conceded that not all the provisions of
this section have been complied with in that the Premier
did not
refer the decision of the Commission to the Provincial House. It was
argued on behalf of the Applicant that such failure
to refer the
decision of the Commission to the Provincial House invalidates the
whole recognition process by the Premier. I disagree.
[42]
The question is whether the Premier’s failure to refer the
decision to the Provincial House of Traditional
Leaders in breach of
section 30(1) of the Act nullified the recognition process. Section
30(1) is couched in peremptory terms.
It is so that the disregard of
peremptory provisions of a statute is fatal to the validity of the
proceeding affected
[4]
. But as
the Supreme Court of Appeal explained in
Nkisimane
& Others v Santam Insurance Co Ltd
[5]
:
“
Statutory
requirements are categorized as “peremptory or “directory”.
They are well-known, concise and convenient
labels to use for the
purpose of differentiating between the two categories. But the
earlier clear-cut distinction between them
(the former requiring
exact compliance and the latter merely substantial compliance) now
seems to have become somewhat blurred.
Care must therefore be
exercised not to infer merely from the use of such labels what degree
of compliance is necessary and what
the consequences are of non or
defective compliance. These must ultimately depend upon the proper
construction of the statutory
provision in question, or, in other
words, upon the intention of the lawgiver as ascertained from the
language, scope and purpose
the enactment as a whole and the
statutory requirement in particular”.
[43]
It is trite that the subject-matter of the prohibition, its purpose
in the context of the legislation, the remedies
provided in the event
of any breach of the prohibition, the nature of the mischief it was
designed to remedy or avoid and any cognizable
impropriety or
inconvenience which may follow from invalidity are all factors which
must be considered when the question was necessarily
to be visited
with nullity
[6]
. And the vital
question to ask in this exercise is whether the Legislature intended
the breach to nullify the entire recognition
process.
[44]
In
Ludidi
v Ludidi & Others
[7]
the MEC (Premier in our case) recognised Ms Ludidi as a chief and
issued a recognition certificate to that effect. He further published
the notice of recognition in the Government Gazette in terms of
section 18(1)(b) of the Traditional Leadership and Governance Act,
2005 (Eastern Cape) (Act 4 of 2005) – the equivalent of section
12(1) of the Limpopo Act. However he did not inform the House
of
Traditional Leaders of the recognition before it was so published as
required by section 18(2) of the said Provincial Act.
The
Supreme Court of Appeal had to decide whether the MEC’s (the
Premier’s in our case) failure to inform the House
of
Traditional Leaders about the recognition of a traditional leader
before the relevant notice was published in the Gazette, in
breach of
section 18(2) of the Provincial Act, nullified the recognition
process. The Court decided that the recognition process
is not
nullified.
[45] Maya P,
writing for the unanimous Court said at para 31:
“
Thus,
the prohibition has nothing to do with the decision itself but is
merely directed at the publication of such decision before
the House
has been informed thereof. The object of the provisions is simple.
The newly appointed chief becomes a member of and
sits in the House
as a traditional leader. It is a matter of common sense that it would
be improper for the House to learn of a
new addition to its
membership from a public announcement. The requirement of prior
notification to the House is in the nature
of courtesy to that body.
It can hardly be concluded in the circumstances that the Legislature
intended to unravel the entire recognition
process by reason of a
mere failure to observe the contemplated administrative formality.
That would undoubtedly bear a disproportionate,
inequitable and
impractical result
”
[8]
.
[46] In the
present case the Provincial House of Traditional Leaders was
ultimately informed (though belatedly) of the
withdrawal of the
Applicant and recognition of the Fifth Respondent in a memorandum
dated 31 August 2018.
I
accordingly make a finding that the failure to strictly comply with
the provisions of section 30 of the Limpopo Act does not invalidate
the recognition of a traditional leader.
[47] A
further ground of review relied on by the Applicant to set aside the
decision of the Premier is that the Premier
failed to follow a
procedurally fair decision as is envisaged in section 3 of PAJA. He
alleges that the Premier failed to give
him adequate notice of his
proposed decision and that he was never given an opportunity to make
representations or submissions
to the Premier in regard to the
decision to withdraw the Applicant’s Certificate of Recognition
as Traditional Leader.
[48] It must
be pointed out from the onset that when the Premier took the
aforesaid decision he acted in terms of section
30 of the Limpopo
Traditional Leadership and Institutions Act 6 of 2005 in that he was
implementing the recommendations of the
Kgatla Commission. Nowhere in
section 30 of the Act or in any other section of this Act is it
provided that the Premier should
hold any enquiry or invite the
affected traditional leader to make representations or submissions
before the decision to relief
the traditional leader of his royal
duties is taken.
[49] In
casu,
following the Fourth Respondent’s (Kgatla Commission)
submission of its recommendations to the Premier, the Premier invited
the Royal Family to provide the particulars of the person who
qualified in terms of section 12(1)(a)(i) of the Limpopo Act. Having
received the name of the Fifth Respondent, the Premier recognised
him. The Applicant does not state at which of these stages did
the
Premier fail to invite his input. The Applicant was informed of the
process leading to the withdrawal of his recognition certificate
and
was invited to make representations before his recognition
certificate was withdrawn. The Applicant was invited at the Kgatla
Commission proceedings and he attended. He was allowed to put his
version before the Commission and even called Kgoshigadi Maphuti
Canatia Maraba to testify as his witness at the commission and even
before the recommendations were made to the Premier.
[50] In terms
of section 30(3) of the Limpopo Act the Premier is obliged to
implement the recommendations of the Commission
within thirty days of
the receipt of such recommendations from the Commission. There is no
room made for the Premier to hold a
further enquiry or invite inputs
from the affected traditional leader.
[51] After
the conclusion of the Commission hearing the Fourth Respondent did by
way of the letter dated 5 December
2016, advised the Applicant that:
“
the
claim for the restoration and / or recognition of the lineage of
Alfred Sedibu Langa by Mr Langa Madimetja Joseph is accepted”.
The
fact that the Fourth Respondent’s recommendation was conveyed
to the Applicant is confirmed by the Applicant’s former
attorney in the letter dated 20 January 2017 which appears on page 39
of the review record.
Being
aware of the Third and Fourth Respondents’ recommendations to
the effect that he be withdrawn as traditional leader
and be replaced
by the Fifth Respondent, the Applicant cannot be heard to say that he
still expected the Premier to invite his
input. The decision had
already been made at the Commission level. Such decision still stands
until set aside
[9]
.
[52] There is
no provision in the Limpopo Act or the Framework Act which obliges
the Premier to invite further input
from the Applicant on the receipt
of the Fourth Respondent’s recommendations. The Applicant does
not state which or what
input he intended to make to the Premier and
in which way that would have influenced the Premier’s decision
when inviting
the Royal Family to submit the particulars of the
identified person. The process of identifying the Fifth Respondent
had nothing
to do with the Premier. The Applicant is in any event a
member of the Royal Family. The Applicant should have known that
short
of reviewing and setting aside the Fourth Respondent’s
recommendation, the Premier had no option or discretion other than
implementing the Fourth Respondent’s recommendation as enjoined
by legislation.
[53] Counsel
for the Applicant relied heavily on the unreported case in the then
Bophutatswana Provincial Division of
Emmanuel Segwagwa Mamogale v
The Premier, North West and Others (Case No. 227/2006)
that
failure by the Premier to grant a traditional leader an opportunity
to be heard before withdrawing his certificate of recognition
amounts
to an irregularity which can result in the setting aside of the
decision. The case relied on by Counsel is distinguishable
from the
present case before me. In the
Mamogale
matter there was a
particular statute which stipulated that the Premier was obliged to
hold an enquiry and have the traditional
leader’s version
before a decision could be made to relieve the traditional leader of
his position. That was provided for
in terms of section 42 of the
Bophutatswana Traditional Authorities Act No 23 of 1978. This
enactment is at any rate no longer
in our statue book.
As
I have already indicated in paragraph [52] above that there is no
equivalent provision in the Limpopo Act and the Framework Act.
[54] The
Applicant has not made out a case for review based on the provisions
of section 3 of PAJA.
REVIEW
OF DECISIONS OF THIRD AND FOURTH RESPONDENTS
[55] The
Applicant seeks to review and set aside the decisions of the Third
and Fourth Respondents on the grounds that
the decisions were
procedurally unfair, relevant considerations were not taken into
account, the decisions were influenced by a
material error of fact,
the decisions are arbitrary unreasonable and irrational.
[56] In his
founding affidavit as well as the supplementary affidavit the
Applicant did not bring forth evidence to
support the grounds on
which he purports to challenge the decision of the Third and Fourth
Respondents. All he did was to sketch
a brief history of his family
tree and how he fits in as a legitimate traditional leader. The
version he gave does not present
any evidential material to show how
the decision of the Third and Fourth Respondents can be challenged on
the grounds alleged by
him. He concludes his founding affidavit by
saying the following in paragraph 48:
“
From
the aforesaid facts and background it is clear that the conclusions
and recommendations made by the Third and Fourth Respondents
are
incorrect, that I was not informed of the aforesaid decisions, that I
never took part in the process in arriving at the purported
decisions
and that as a result of the aforesaid the decisions made by the Third
and Fourth Respondents should be reviewed and set
aside.”
[57] It
certainly can never be true that the Applicant did not take part in
the process in arriving at the decisions
and that he was never
informed of the decision. I have shown in this judgment that the
Applicant participated in the process and
was furnished with the
findings and decisions of the Third and Fourth Respondent. When the
First Respondent makes a decision to
recognise an incumbent, he acts
independently in his administrative decision, and requires no
consultation by an affected party.
[58] It is no
surprise that Counsel for the Applicant did not present any argument
on the review of the decisions of
the Third and Fourth Respondents in
his heads of argument as well as in his oral argument.
No
case is made out for the review and setting aside of the decision of
the Third and Fourth Respondents.
THE
CHIEFTAINSHIP OF THE MAPELA COMMUNITY
[59] I have
already set out and explained the genealogical history of the Langa
family in relation to their traditional
leadership and hierarchy. It
is appropriate that the position of the Applicant and the Fifth
Respondent be investigated further
in order to determine their status
in relation to the chieftainship they both claim. As already pointed
out earlier, the Applicant
is the son of Hendrik Madikwe Langa and
Athalia Langa. The Fifth Respondent is the son of John Langa and
Rosina Queen Langa. One
must then proceed to determine who is the
rightful heir to the throne between them.
[60]
Sufficient evidence is provided to prove that Rosina Queen Langa was
married as a candle wife (
masechaba
) in 1958. The subsequent
marriage of Athalia in 1960 as another candle wife was a great
irregularity and a serious violation of
African custom. It is against
custom to have two candle wives of the same generation at a time,
much as we cannot have two chiefs
ruling the same community
simultaneously.
By custom therefore the
marriage of Athalia as another candle wife (according to Hendrik
Madikwe Langa) is invalid.
[61]
To all intends and purposes, Hendrik belonged to one of the most
junior houses of Kgoshi Hans Masebe Langa
I
.
His mother, Madikana was ranked fifth. In line with the wide spread
and deep rooted principle of seniority governing Africans,
no way can
Madikana house be catapulted to the first rank among the Mapela
Community. The house of Madikana can never produce chiefs,
at best it
can procreate regents. Therefore Hendrik could hardly become a chief.
His self-imposition as chief of the Mapela Community
was not only
fallacious but a violation of custom as well.
[62]
Hendrik’s rejection of Rosina was a well calculated subterfuge
designed to create his ruling lineage, which
he succeeded doing in
that upon his death, his wife Athalia, became a regent and later
their son, the Applicant assumed chieftainship.
Hendrik fully
recognised that his association with Rosina, the candle wife, would
hem in his ambitious plan as Rosina was already
chosen according to
custom. Hendrik’s self-imposition to the throne as chief was
irregular. His fifthly ranked mother was
not even a candle wife. He
was far in line of succession.
[63] The
position of senior traditional leadership is ascribed by birth and is
inheritable, yet regency is acquired
through nomination and therefore
cannot be inherited. Hendrik achieved the regency position through
nomination by the royal family.
It was therefore inappropriate for
him to be succeeded by his wife and ultimately his son. On the other
hand the Fifth Respondent
is the son of Rosina, the candle wife.
Rosina was married to the Mapela Community with the purpose of
bearing a future Kgoshi.
The Fifth Respondent is therefore the
rightful and legitimate traditional leader of the Mapela Community.
CONCLUSION
[64] The
Applicant is seeking an order to review and set aside the decision of
the Premier in withdrawing his certificate
of recognition and
recognising and appointing the Fifth Respondent in his stead. I have
already made a finding that the Applicant
has not made out a case for
the review sought. The appropriate order would be to dismiss the
application and I intend to do so.
[65] Even if
the Applicant was to be successful and I grant an order setting aside
the decision of the Premier, such
an order would be cold comfort for
the Applicant. The granting of the order in favour of the Applicant
would entail referring the
issue back to the Premier for
reconsideration. Such reconsideration entails the Premier following
the procedural steps he might
have defaulted on previously. In my
view the end result will still be the recognition of the Fifth
Respondent because the latter
is the only rightful and legitimate
heir to the throne by virtue of being the son of the candle wife,
Rosina. Under no circumstances
will the Applicant ever qualify to be
recognised as a senior traditional leader no matter how meticulous
the prescribed procedures
may be followed by the Premier in the
process of recognition.
[66] The
application is accordingly dismissed with costs.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 17 April
2019
Judgment
delivered on
: 03 May
2019
For
the Applicant
: Adv.
C.A Da Silva SC
Instructed
by
Friedland Hart
Solomon &
Nicolson
Attorneys
c/o
Nelis Britz Attorneys
For
the 1
st
, 2
nd
& 3
rd
Respondents
: Adv. T.C Lithole
Instructed
by
: State
Attorney
For
the 5
th
Respondent
: Adv.
JLH Letsoalo
Instructed
by
:
AB Maharajh Attorneys
c/o
Kgohlishi A Mamabolo
Attorneys
[1]
Hoexter: Administrative Law in
South Africa (2
nd
Ed) at p 108 and Rustenburg Platinum Mines v CCMA 2007(1) SA (SCA)
at para 31
[2]
[2006] ZACC 1
;
2006 (3) SA 305
(CC)
[3]
2013 (5) SA 246 (CC)
[4]
Schierhout v Minister of
Justice
1926 AD 99
at 110
[5]
1978 (2) A 430 (A) at 433H –
434A; Lupacchini NO & Another v Minister of Safety and Security
2010 (6) SA 457 (SCA)
[6]
Palm Fifteen (Pty) Ltd v Cotton
Tail Homes (Pty) Ltd
1978 (2) SA 872
(A) at 885D - G
[7]
Ludidi v Ludidi & Others
(658/2017)
[2018] ZASCA 104
(23 July 2018)
[8]
See Pottie v Kotze
1954 (3) SA
719
(A) at 727F - H
[9]
See Oudekraal Estates (Pty) Ltd
v City of Cape Town & Others
2004 (6) SA 222
(SCA)