About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 47
|
|
Member of the Executive Council For Co-Operative Governance Human Settlement and Traditional Affairs, Limpopo Province and Another v Mathopo and Others (3762/2019, 3722/2019) [2019] ZALMPPHC 47 (20 September 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: 3762/2019 &
3722/2019
20/9/2019
MEMBER
OF THE EXECUTIVE COUNCIL FOR
CO-OPERATICE
GOVERNANCE HUMAN SETTLEMENT
AND
TRADITIONAL AFFAIRS, LIMPOPO PROVINCE
1
ST
APPLICANT
THE
PREMIER, LIMPOPO PROVINCE
2
ND
APPLICANT
And
MATHOPO
JUNIOR MONTSHA
1
ST
RESPONDENT
MABOGOANE
SHIME JOB
2
ND
RESPONDENT
TJIANE
BEN
3
RD
RESPONDENT
SEERANE
ALFRED
4
TH
RESPONDENT
KAMELA
MAKHUDU
5
TH
RESPONDENT
LESHABA
DAVID
6
TH
RESPONDENT
MOSEHLA
MATHUME
7
TH
RESPONDENT
MAAKE
ABRAM PHULUSHI
8
TH
RESPONDENT
MASHEGOANE
ANNAH
9
TH
RESPONDENT
TSHEGO JAN
10
TH
RESPONDENT
MAKABANE MARTHA
11
TH
RESPONDENT
TSHEGO LUCAS SPUNGA
12
TH
RESPONDENT
MALAPANE
SINAH
13
TH
RESPONDENT
MAKGOPA ABRAM
14
TH
RESPONDENT
MOKGWADI PA
15
TH
RESPONDENT
SEKELE
MP
16
TH
RESPONDENT
SEKELE A
17
TH
RESPONDENT
MOLAPO DITABENG
RICHARD
18
TH
RESPONDENT
MASHUBUKU
ISAAC
19
TH
RESPONDENT
MABOGWANEJ
20
TH
RESPONDENT
MAKOLA MS
21
ST
RESPONDENT
MOSOTHOA
22
ND
REPONDENT
PHASHA P
23
RD
RESPONDENT
MASHEGOANE
MOLAPO
24
TH
RESPONDENT
TALANE J
25
TH
RESPONDENT
Ms MOHLAHLO
26
TH
RESPONDENT
NKWANA IDAH
27
TH
RESPONDENT
MASHAO MORWASEHLA
ROBERT
28
TH
RESPONDENT
MAHLAMOLA RASEOGO
LIFI
29
TH
RESPONDENT
RAMAWELA THOMAS
30
TH
RESPONDENT
MOSHOLE
NGWAKO JAMES
31
ST
RESPONDENT
MOHALE
SIPHO
32
ND
RESPONDENT
MAGWAI SAMSON
33
RD
RESPONDENT
KOMA JANUARY JOHANNES
34
TH
RESPONDENT
MAHASHA ALEX
MATOME
35
TH
RESPONDENT
LESHIBA
MABIDI
36
TH
RESPONDENT
IVY MASHALANE
37
TH
RESPONDENT
KGOSHIGADI MATHEBE MC
38
TH
RESPONDENT
BANTWANE
TRIBAL COMMUNITY
KGOSHIGDI
KEKANE MF
39
TH
RESPONDENT
AMANDEBELE
TRIBAL COMMUNITY
KGOSHIGADI
DINKWENYANE TF
40
TH
RESPONDENT
BAPEDI BA DINKWENYANE TRIABAL
COMMUNITY
KGOSHIGADI MAMPURU
MB
41
ST
RESPONDENT
BAPEDI
BA MAMONE
KGOSHIGADI MADIHLABA N
42
ND
RESPONDENT
MAROTA MADIBONG
ACTING
KGOSHIKGOLO SEKHUKHUNE KK
43
RD
RESPONDENT
MAROTA
MOHLALETSI
KGOSHI
MADIHLA
DJ
44
TH
RESPONDENT
KWENA-MADIHLABA TRIBAL
COMMUNITY
KGOSHI RAMAUBE KS
45
TH
RESPONDENT
BAPEDI BA RAMAUBE TRIBAL
COMMUNITY
KGOSHIGADI NKOSI TE
46
TH
RESPONDENT
BANGWENYAMA YA MASWAZI
KGOSHI
MALEKANA NM
47
TH
RESPONDENT
BAHLAKWANA
BA MALEKANA
TRIBAL
COMMUNITY
KGOSHI
MAHLANGU PJ
48
TH
RESPONDENT
NDEBELE
TRIBA COMMUNITY
REGENT
MODJADJI MT
49
TH
RESPONDENT
MODJADJI
TRIBAL COMMUNITY
KGOSHI MATLALA
TP
50
TH
RESPONDENT
BAKONE TRIBAL COMMUNITY
KGOSHI MAJA
DC
51
ST
RESPONDENT
MAJA TRIBAL COMMUNITY
LIMPOPO KOMA
PRACTITIONERS
ASSOCIATION
52
ND
RESPONDENT
(Intervening
Party)
JUDGMENT
THE COURT: MAKGOBA JP et MG
PHATUDI J
Introduction
[1]
Member of the Executive Council for
Co-operative Governance, Human Settlement and Traditional Affairs,
Limpopo Province ("MEC
COGHSTA") and the Premier of Limpopo
Province ("the Premier") (hereinafter called "the
applicants") brought
an urgent application before this court
against the First to the Thirty Seventh Respondents seeking an order
in the following terms:
1.
Interdicting and restraining the
Respondents and ordering that they desist from continuing with the
conduct of -
1.1
Illegal initiation schools in the
respective areas of the Thirty- eight to Fifty First Respondents.
1.2
Further opening illegal initiation
schools in any other area within the area of jurisdiction of Limpopo
Province as demarcated in
the Constitution of the Republic of South
Africa.
[1]
1.3
Intimidating, harassing or threatening,
impeding and/or in any other way interfering or harming any of the
Applicants employee's
agents, representatives of any government
provincial department, and/or any other person present at or in the
illegal initiation
schools ('Koma'); and
1.4
Inciting or instigating any person or
persons to conduct any unlawful activities in the area of authority
of the Thirty-Eight (38
TH
)
)
to Fifty first (51
ST
) Respondent;
2.
Directing the closure of the illegal
initiation schools and authorizing the members of the South African
Police Service (SAPS) in
all the regions where the schools are
operating, to assist the officials of the Department to close the
illegal schools;
3.
Directing that the initiates who are
presently in the illegal initiation schools be relocated to other
schools which have been opened
and are operating with permits issued
in terms of the Act;
4.
Directing the First to Thirty Seventh
Respondents to pay over all the monies that they have collected from
the initiates or the
initiates' parents or guardians over to the
legal initiations schools conducted by the Thirty-Eight to the Fifty
First Respondents,
as the case may be;
5.
Ordering any of the Respondents who
oppose this application to pay the costs of the application, jointly
and severally, the one
paying the others to be absolved." The
application is opposed by several respondents including the Fifty
Second Respondent
who is the intervening party.
[2]
On the 25 June 2019, sitting as a single
Judge, MG Phatudi J made an order that the above mentioned cases be
consolidated and be
heard in
tandem
on 02 July 2019.
[3]
Because of the complexity, novelty and
national significance of the issues raised in the application, this
court deemed it apposite
in the interests of equity and justice to
constitute a Full Bench to deal not only with the question of
urgency, but also to dispose
of the merits once and for all. It was
for these considerations that the matter was heard by Full Bench on
03 July 2019,
(Makgoba JP and MG
Phatudi J constituting Coram).
[4]
On 03 July 2019 upon hearing the matter,
the court in the interests of the public, admitted the 52
nd
Respondent as Intervening party to the proceedings. The Court also
took the view as a preliminary way of expeditious hearing of
and the
disposal of the proceedings, to dispense with arguments confined to
urgency only, but had to deal with the mater holistically.
[5]
Having heard argument on the merits, and
to a narrow extent on urgency of the matter, the Court made the
following order and undertook
to furnish reasons for the order in due
course.
1.
"That, the time periods and
service requirements provided for in the Uniform Rules of Court, are
dispensed with and the case
is disposed of
as
one of urgency in terms of Rule 6(12)
(a) and (b).
2.
That, a final order is granted in
the following terms:
-
2.1
Interdicting and
restraining the first to Thirty Seventh Respondent from:
-
2.1.1
Continuing with the conduct of
illegal initiation school (Koma) in the areas referred to in the
present application; and
2.1.2
Further opening or to continue
conducting illegal initiation
schools
('Koma') within the areas of
Jurisdiction of the Thirty eight (38
th
)
to Fifty First (51
st
)
Respondents, or any other area in the province of Limpopo; and
2.1.3
Intimidating, harassing or
threatening, impeding and/or in any other way interfering with or
harming any of the Applicants' employees,
agents, representatives of
any government, provincial department, and/or any other person
present at or in the illegal initiation
schools
('Koma'); and
2.1.4
Inciting or instigating any
person or persons to conduct any unlawful activities in the area of
authority of the thirty (38
th
)
Fifty first (51
st
)
Respondent;
3.
Directing the closure of all
illegal initiation schools (“Dikoma” within Limpopo
Province which now or in future may
conduct illegal or unlicensed
initiation school, and authorizing members of the South African
Police Services (SAPS) in all the
provincial regions where such
schools are operating, to assist the applicant's officials to close
down the said schools; and
4.
Directing that the initiates who
are presently kept in the illegal initiation schools (Dikoma) be
relocated and/or transferred to
other initiation schools which
operate with valid permits issued in terms of the Limpopo Province
Circumcision Act of 1996 and
Regulations promulgated thereunder ("the
Act”
5
The operation of the orders in 3 and 4 above, are hereby suspended
for a period of twelve (12) months from the date of this order
pending compliance by the Respondent with the provisions of sections
3 and 4 of the Act and the provisions of sections 3 and 4
of the Act
and Regulations (sections 2,3,4,
5,
6,
7,
8, and 9A of the
Regulations)
6.
There is no order
as
to
costs.
What
then follows are the reasons for the orders made.
Factual Matrix
[6]
The applicants averred in their
application that the First to Thirty Seventh Respondents all of whom
are not "permitholders"
as defined in Section 1 of the
Regulations promulgated under Act 6 of 1996
[2]
(Limpopo
statutes,)
have unlawfully and in contravention of the relevant Act and
Regulations, opened and/or continued at the time with illegal
initiation schools within the areas where the Thirty Eight to Fifty
First Respondents exercise their authority as Senior Traditional
Leaders ("Magoshi").
A Senior Traditional Leader
("Kgoshi") is for the sake of completeness, defined in
section 1 of Act 41 of 2003
[3]
as amended, (the framework Act") as: -
"a
traditional leader of a specific traditional community who
exercises authority over
a
number of headmen or headwoman in
accordance with customary law, or within whose area of jurisdiction
a
number of headmen or headwomen exercise authority."
[7]
The Applicants averred further that the
First to the Thirty Seventh Respondents' conduct in operating the
initiation schools without
valid permits issued by the Second
Applicant is inherently unlawful as it violates the legislative
precepts laid down by the Limpopo
Legislature regulating traditional
schools of this nature. It is common cause that the Respondents have
not been issued with the
required permits by the Second Applicant.
[8]
The issues for determination in this
matter are crisp and are confined to the question whether a final
interdict sought by the Applicants
is a competent relief and whether
the conduct of the aforesaid Respondents is repugnant to the
applicable legislative framework
and, therefore, offend the principle
of legality and the rule of law.
Legislative and Regulatory
Framework
[9]
The customary practice of circumcision
that is associated with traditional circumcision schools ("Koma")
is an ancient
custom that was practised from time immemorial among
most African traditional communities as well as under ancient Jewish
law and
religion. Circumcision occurred mostly during childhood or
around puberty as part of a rite of passage to manhood or womanwood.
Circumcision was prevalent in the
religion of Judaism, Islam and Coptic Orthodox church. It was seen as
a sign of the
Covenant
with God.
[4]
In African cultural philosophy,
however, it is seen as an entry or passage into rite of
manhood/womanhood.
[10]
For present purposes, the Limpopo Government has ordained legislation
for the "control of
holding circumcision schools" in
accordance with the Act and the regulations promulgated thereunder.
[11]
Section 3 of the said Act provides that:
"No
person shall hold a circumcision school without a valid permit issued
to him or her in terms of section 2(1)."
[12]
Circumcision school’s permit for
holding of such school ("Koma") is issued by the Premier of
Limpopo as envisaged
in section 2(1) of the Act, In
casu,
the Second Applicant. In terms of
section 7 thereof it is an offence for any person to contravene "any
provision" of the
Act or fail to comply with any condition
imposed in terms of Section 2(1) of the Act.
[5]
[13]
The Premier or his /her authorised
officer may under the provisions of section 2(1) issue to a "Kgoshi"
(Senior Traditional
Leader) a permit granting permission to conduct
an initiation school. A "permit holder" usually a "Kgoshi",
is entitled to apply to the Premier or authorized officer for a
permit to conduct an initiation school.
[6]
[14]
It was submitted on behalf of the
applicants that none of the Respondents (the First to Thirty Seventh
Respondents) were in possession
of a valid permit to conduct
initiation schools within the area of authority of the Thirty-Eight
to Fifty First Respondents. Needless
to mention, none of the affected
Respondents complaint of are Senior Traditional Leaders entitled to
seek permission to hold initiation
schools as such. This submission
is in our view well founded and correct.
[15]
It is worthy to mention that the
affected respondents have, by and large, relied on lack of urgency of
the application and generally
made no effort to attack the
application on the merits. The reason is not hard to find. This is
simply because none of the affected
respondents had a valid permit to
conduct Koma as envisaged in section 2(1) of the Act read with
Regulation 2(1).
[16]
For all the foregoing considerations it
follows that by their conduct, the affected Respondents have violated
the principle of legality
and the rule of law. The illegality stems
from unlawful opening and holding of initiation schools in the arears
referred to without
authorised permits. The Act makes it an offence
with criminal sanctions attached to conduct illegal Koma.
Furthermore,
in instances where the initiation schools were already in session
when the application was launched, traditional surgeons
or nurses
were not permitted to perform initiations and/or circumcision
procedure on initiates.
Cultural and Religious Rights of
Communities
[17]
It is trite principle that "persons
belonging to a cultural, religious or linguistic community may not be
denied the right,
with other members of
"
that community
[7]
”
to enjoy their culture, practise their religion and use their
language. The rights referred to, however, may not be exercised
in a
manner inconsistent with any provision of the Bill of Rights. Closely
interlaced with the above principle, is the right under
section 30 to
"participate in cultural life" of their choice which, in
our view, covers the right to undergo
initiation
schools for circumcision purposes.
Such rights are, however,
Circumscribed by the limitation clause enshrined in the Bill of
Rights.
[8]
[18]
It is so that the rights referred to
must be interpreted and applied through the prism of the
Constitution. The enjoyment of these
rights whether traditional or
customary practices will be at odds with the Bill of Rights if the
practice is left uncontrolled
or unregulated, thus posing a danger to
the initiates' right to life, health care and the right to human
dignity.
[9]
Accordingly, the state is enjoined to take reasonable measures within
its available resources (including regulatory framework)
to achieve
the progressive realisation of each of these rights.
[19]
The Limpopo Province Circumcision
Schools Act ("Act") is framed in peremptory language and
lacks ambiguity.
[20]
In
Sutter v
Scheepers
[10]
Wessel JA
stated
that:
"
If a provision is couched in a negative form it is to be regarded
as
peremptory
rather than as
a
directory mandate
...."
We venture to add that where for
instance Section 3 of the Act provides that "no person shall
hold a circumcision school without
a valid permit issued to him/her
in terms of section 2(1)," it clearly discloses peremptory
mandate than directory. Compliance
therewith is imperative and
non-compliance attracts legal consequence to which a sanction is
attached.
[21]
Having regard to the aforegoing
considerations and bearing in mind the facts in the present case, we
find that a proper case has
been made out for the granting of some
relief sought in the application.
Considerations in dealing
with Permit Applications
[22]
While it is perfectly trite principle
that granting of circumcision schools permit resides primarily in the
hands of the Second
Applicant ("Premier") subject, of
course, to certain conditions the Premier may deem desirable to
impose,
[11]
it is necessary to bear in mind that the decision to grant permission
to conduct "Koma" becomes an administrative action
and
requires, prompt consideration by the administrator concerned.
[12]
[23]
The aforementioned observations are
particularly important to prospective applicants seeking to organize,
prepare logistics, create
site establishment and all infrastructure
necessary to conduct an initiation school in compliance with all
stringent terms and
conditions referred to in section 2(2)(a) - (e);
section 3(1) to section 4(1) and 4(2); and section 5 of the
initiation schools'
regulations. ("the Regulations").
[24]
According to the applicants in the
present instance, the process to start entertaining applications for
permits commence annually
at the beginning of the year, roughly in
February.
[13]
This is when persons seeking permits ("prospective permit
holders) usually Senior Traditional Leaders (Magoshi) apply to the
applicants to conduct "Koma" in their respective areas.
[25]
A reading of annexure
"MMM"
to the Applicant's Founding
Affidavit indicates that the Acting Head of Department attached to
the First Applicant issued out an
open invitation as early as 23
October 2018 to all District Heads calling upon them to inform all
"Magoshi" in the Province
to submit their applications to
hold "Koma" and that the closing date is 28 February 2019.
Subsequently, a compulsory
workshop on initiation schools for
traditional leaders was held in Polokwane on 23 May 2019 where
approximately 258 traditional
leaders registered their presence.
Permits were issued to those
applicants who were compliant with relevant conditions attached to
the permit.
Delay in the Consideration
and issue of Permits
[26]
Be that as it may, some of the affected Respondents have expressed
disquiet on how the applicants'
delay in giving reasons for rejecting
their applications were proffered, it being alleged that the reasons
were predicated on shacky
grounds, to say the least.
[27]
Counsel for the 52
nd
Respondent (Limpopo Koma
Practitioners Association) in opposing the application, aptly
advanced argument against undue delay by
the applicants in deciding
on whether or not to grant approval of the permits sought. Mr Moloto
submitted on behalf of the Intervening
Party that the present
application bordered on mootness because the matter was brought very
late to court, on an urgent basis,
even though the initiation schools
were already long in progress having commenced on or about 08 June
2019. The initiates were
due to graduate some two (2) days from 03
July 2019, the day on which the matter was called for hearing by this
Court.
[28]
This submission holds water. The applicants' Director:
Anthropological and Institutional Support
Services for COGHSTA (First
Applicant) in his answering affidavit deposed to on 24 June 2019
opposing the 07
th
Respondent's application,
[14]
(Petrus Ntshintshimale Moela) stated as a matter of fact that the 7
th
Respondent (Main applicant) applied for permits to hold both male and
female initiation schools on 21 February 2019. The said respondent
made certain enquiries relating to their application at the First
Applicant's headquarters during March and April 2019, but to
no
avail. Quite significantly, is the concession that
"on
29 May 2019 the applicants were informed of a decision that the
application was not successful."
This
was a period of three weeks before the applicants in this matter
brought their application now before us.
[29]
If indeed the Applicants knew about the
pending application for the required circumcision permit and have
also known, as they averred,
that the permit sought was applied for
by Marota Mohlaletse Traditional Authority, ("Mohlaletsi")
it defies logic as
to why the Applicants failed to inform the 7
th
Respondents on good time of the refusal of the permit
applied
for. The reason given was that the 7
th
Respondent lacked
"locus standi"
to have sought the required permit,
and worst still, it was quite nebulous a reason for having raised
locus standi
without explaining the notion.
[30]
The confusion is apparently caused by
the fact that for some inexplicable reasons, such traditional leaders
as Headmen/Headwomen
as defined in the National Act,
supra
(TLGF Act, 2003) and the Limpopo
Traditional Leadership and Institutions Act, 2005
[15]
("LTLGF") were, until the coming into effect of the Limpopo
Circumcision Act in 1996 by tradition, entitled to conduct
"Koma"
in the wards ("Dikgoro") under which a Kgoshi ruled. In
terms of custom, once a Kgoshi authorizes "Koma"
to a
particular Headman/Headwoman under his/her jurisdiction, there was No
requirement to seek further permission from authorities
in
government.
[31]
This is where battle lines are drawn
between tradition that is anchored in deep African tradition and
culture flowing from traditional
law and cultural practices on the
one hand, and legislative framework the applicants are now relying
upon for closure of the initiation
schools conducted in violation of
the law, on the other hand.
[32]
Again in fortifying the submissions made
against the unreasonable delay by applicants in considering the
applications and, in addressing
the media on 04 June 2019 Mr Basikopo
Makamu (MEG: COGHSTA) stated
inter
alia
that:
"This
year initiation schools
(sic)
programme is scheduled to
commence from 07 June and end on 14 July 2019"
With this empathetic media
announcement, and against the date of 23 May 2019 in which the the
Respondent's application was declined,
one remains at sea why if it
was known of the commencement date of most "Koma" did it
take applicants up to 23 May 2019
to inform respondents of the
adverse decision disapproving the permit/s. It is not surprising that
most of the respondents affected
had already set up establishments
sites and having already admitted the initiates before applicants
brought the application seeking
an injunction.
[33]
It is upon a consideration of these
developments that this court was persuaded on the principle of
mootness and the impracticability
of some of the prayers sought by
the applicants that the orders referred to in paragraph 5
supra
of this judgment, were immediately
granted.
[34]
Although the applicants contended that
the decision for granting or refusing to grant permits· for
conducting Koma resorts
squarely in the provincial administration,
and because the decision falls within the ambit of PAJA, our view is
that such decision
which might invariably affect adversely the
cultural rights of the Respondents, need not be unreasonably delayed
before it is made
known, lest it is rendered procedurally unfair.
Such a delay may in appropriate circumstances amount to
"a
refusal to take the decision"
on
time when circumstances so dictate. (Own emphasis derived from
Section 1 PAJA) Consistent with the foregoing observations, it
is
necessary for and it is incumbent on the applicants who are the
custodians for approval or otherwise of this equally important
instruments of traditional and cultural practice, to ensure that upon
receipt of applications for circumcision permits, a prompt
decision
be taken and not to await the eleventh hour and only to grant or
refuse the application. If and when granted, assuming
for a moment,
it is expected that the permit holder or applicant must comply with
the stringent conditions envisaged in the regulations,
the delay in
making a decision is obviously prejudicial to the applicants.
[35]
It is the duty of this court to ensure
that applicants seeking to conduct "Koma" which, of course,
is their cultural or
traditional right to do so, must comply with the
legal framework mainly to ensure that the facilities operate not only
legally,
but within a healthy environment as envisaged in the present
Regulations. The Regulations were in our view not intended by the
lawmaker to undermine tradition, custom or any cultural practices to
which traditional communities are entitled to follow and practice.
[36]
In order to develop and promote cultural
practices contemplated in section 31(1)(a) of the Constitution, this
court is required
to strike a balance between lawful traditional or
cultural practices and compliance with the legal framework regulating
such customary
or cultural practices within traditional communities.
[37]
It was for that reason that perhaps
Murphy J stated in the case of
Centre
for Child Law and Others v MEC for Education and Others
[16]
that: -
"As a society we wish to be
judged by the humane and caring manner in which we treat our
children. Our Constitution imposes
a duty upon us to aim for the
highest standard, and not to shirk from our responsibility"
[38]
The aforegoing observation is in harmony
with the salutary provisions found in section 18(2) of the
Constitution to the effect that:
-
"A child's best interest are
of paramount importance in every matter concerning the child."
It is therefore imperative that
compliance by the respondents with existing regulatory framework is
jealously guarded as the "best
interests" of the minor
children who are initiates at legally run initiation schools are
protected.
Just and Equitable Remedy
[39]
As already indicated in paragraph 16
above, the conduct of the affected Respondents violated the broader
principle of legality and
the rule of law. However, because of the
principle of mootness, logic, convenience and pragmatism, it would
have been a gross taboo
to have abruptly uprooted any "Koma"
which were already in session and about to graduate a few days to
come merely because
there has been failure by the said respondents to
have secured permits.
[40]
Following the hallowed approach adopted
in
Allpay Consolidated Investments
Holdings (Pty) Ltd and Others v Chief Executive
,
Officer
of South African Security Agency and Others
[17]
,
this Court, having considered
the practical effect of the relief sought and the exigency of the
matter as a whole, arrived at the
conclusion that it would be a grave
violation of deep rooted custom to order effective closure of the
initiation schools. This
decision was by no means condonation of
illegality and any benefit which we thought should accrue to the
initiates themselves.
The illegal operators must therefore be held
accountable for want of compliance with the law.
[41]
Consequently, this court having
considered the matter not only logically but having interpreted the
issues through the prism of
the Bill of Rights, in particular,
section 39(2) of the Constitution decided in its discretion, to grant
partial success on the
relief sought.
[42]
The reasoning adopted was anchored in
the provisions of section 172(1)(b) that: -
"When deciding
a
constitutional
matter within its powers,
a
court
(a).........................
....
(b)
May make any order that is just and equitable including
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions to allow the competent authority to
correct the
defect."
[43]
On closer examination of the aforesaid
provisions, it follows that courts are bestowed with judicial
discretion to make in appropriate
instances an order that is "just
and equitable" in any given situation when it is expedient to do
so.
[44]
This court in the case of
Ephraim
Mogale Local Municipality v lnkokeli Projects (Pty) Ltd and
Others
[18]
had an opportunity to deal with
relief that sought a "just and equitable" remedy, when it
said in paragraph 40 that: -
"[40]
In the same vein, the court in
Bengwenyama Minerals (Pty) Ltd v
Genorah Resources (Pty) Ltd
remarked as follows: -
"I do not think it is wise to
attempt to lay down inflexible rules in determining a just and
equitable remedy following a declaration
of unlawful administrative
action. The rule of law must never be relinquished, but the
circumstances of each case must be examined
in order to determine
whether factual certainty requires some amelioration of legality and
if so, to what extent... ...... ....
"
[45]
It goes without saying that every
improper violation of the rule of law and enactment would mostly
implicate the Constitution and
entitle the aggrieved party to
appropriate relief. In each case the remedy must fit the injury. The
remedy must be fair to those
affected by it such as the present
respondents and yet indicate effectively the right violated. The
relief must therefore be just
and equitable in the light of the
facts, the implicated constitutional framework, the objective in casu
being to pre-empt, correct
or reverse an improper conduct, in order
to entrench the rule of law.
See also the sentiments echoed in
Steenkamp N.O.
v Provincial Tender Board, Eastern Cape.
[19]
[46]
Ultimately, we venture to say that the approach we adopted was to
view factual certainty that
required some amelioration of legality
and to a defined extent, with a repository of the facts presented.
The equitable remedy
was as provided for in the court order we made
on the 3 July 2019
Proposed Remedial Action
[47]
In order to properly regulate future
handling of initiation schools permit, we propose without being
prescriptive, while bearing
in mind the
doctrine
of separation of powers implied in
Chapters 4 to 8 of the Constitution, the following steps: -
47.1
Upon receipt of an application for a
circumcision permit on the prescribed form, a Committee comprising
certain members of the Provincial
House on Traditional Leadership an
designated officials of COGHSTA
must
within
Thirty
(30) days
of receipt of the
application scrutinise the application for compliance with
Regulations 2; 3; 4 and 5 of Regulations promulgated
under the Act.
47.2
If the relevant application is fully
compliant with the Regulations, it
must
forthwith
(within
21 days)
be submitted together with
the recommendations to the MEC for COGHSTA in the province for
consideration and decision whether or
not it is approved.
47.3
In terms of the present regulatory
regime, the Premier
must,
within
twenty-one (21) days
after
receipt from the said MEC of the recommendation, decide whether or
not to issue a permit for holding of circumcision school
subject to
the conditions attached.
(See 2(1)
(of the Act)
47.4
Where the Premier has rejected the
application for the permit, he/she
must
furnish the applicant with
written
reasons for the adverse decision
within
five (5) business days.
46.5 An applicant aggrieved by the
decision declining the required permit may lodge an Appeal to the
relevant Appeal Committee constituted
by the Premier for
intervention, setting out grounds of appeal. The appeal
must be
lodged fifteen (15) days
after the decision appealed against.
Such an
Appeal Committee
may
confirm, set aside or amend a decision of the Premier thereafter
must
promptly (5 days) inform the appellant accordingly of its
decision.
[48]
Because the decision to either grant or
refuse a permit for holding of an initiation school is purely an
administrative action,
it creates an avenue for aggrieved applicants
to upset such adverse decision by way of judicial review under PAJA.
It will certainly
obviate a situation where anyone would initiate
"Koma" seeing that no decision was timeously forthcoming.
It is critical
that a decision to grant or refuse a permit be
timeously communicated to an applicant in order to exercise his/her
administrative
rights properly, in the main, to review such a
decision if offensive.
See
also,
Oudekraal Estate (Pty) Ltd v City
of Cape Town and Others.
[20]
[49]
Finally, the Premier is enjoined to
proclaim as a matter of urgency into law, the Limpopo Initiation
Schools Act, 2016.
[21]
The new Act will in our view correct or pre-empt the discrepancies
inherent in the existing Regulations made under Act 6 of 1996.
The
provisions in Regulations 7(1) and (2) are in our view, not only
mutually contradictory, but are unconstitutional violating
the
children's' rights under section 28(3) of the Constitution. We say so
because Regulation 7(1) appears, by necessary implication,
to be
allowing a minor child of between 12 to 17 years old to be admitted
to an initiation school, and yet Regulation 7(2) imports
another
dimension. This is untenable. A "child" is defined in the
Constitution as a person under the age of 18 years.
[22]
[50]
It is for all the above reasons that the
Court granted the order on 3 July 2019.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
MG
PHATUDI
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
[1]
The Constitution of the Republic of South Africa, Schedule 1A
of the Twelfth amendment.
[2]
Limpopo Province Circumcision Schools Act, 1996 and the Regulations
promulgated thereunder, GN95 dated 28 May 2002, as amended
by PG 897
Dated 20 May 2003.
[3]
Traditional Leadership and Governance Framework Amendment Act, 2003.
["TLHF Act]
[4]
Genesis 17:13 "Good News Bible" - Each one must be
circumcised, and this will be a physical sign to show that my
Covenant with you is everlasting."
[5]
Limpopo Province Circumcision Schools Act 6 of 1996- the Preamble
thereof
[6]
Section 2, The Initiation Schools Regulations"
[7]
Section 31(1); 31(2} of the Constitution Act
[8]
Section 36(1), Ibid
[9]
Sections 10; 11 and 27(1)(a) Ibid
[10]
1932 AD 165
at 173-174
[11]
Section 4, the Act
[12]
Section l(a)(ii), Promotion of Administrative Justice Act 3 of 2000
("PAJA")
[13]
Paginated Index 1, P19 Para: 70 - Founding Affidavit ("FA")
[14]
Third and Fourth Respondents' Answering Affidavit, Case no:
3722/2019, Pages 3 and 4 ("AA")
[15]
Act 6 of 2005 ("LT LTE Act")
[16]
2008 (1) SA 223 (T)
[17]
2014
(4) SA
179 (CC)
[18]
(Case no: 3298/2018) [ZALDHC] delivered on 04 February 2019
(Reportable)
[19]
2007 (3) SA 121
(CC) Paragraph; 29
[20]
2010 (1) SA 333
(SCA) at Para: [26]
[21]
Issued in terms of Notice 65 of 2018
[22]
Section 28(3) Constitution