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[2019] ZALMPPHC 48
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Maluleke v Hlaneki Traditional Council and Others (2505/2017) [2019] ZALMPPHC 48 (15 November 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE NO: 2505/2017
15/11/2019
In
the matter between:
MABULANI
JULIUS MALULEKE
APPLICANT
and
HLANEKI
TRADITIONAL COUNCIL
FIRST RESPONDENT
HLANEKI
ROYAL HOUSE
SECOND RESPONDENT
MAM
HLANEKI
THIRD RESPONDENT
THE MEC: CO-OPERATIVE
GOVERNANCE
FOURTH RESPONDENT
HUMAN
SETTLEMENTS AND
TRADITIONAL
AFFAIRS
THE PREMIER: LIMPOPO PROVINCIAL
GOVERNMENT
FIFTH RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
is a review application in which the Applicant seeks the review and
setting aside of the decision by the Fifth Respondent ("the
Premier") to recognise the third Respondent as the senior
traditional leader of the Hlaneki Traditional Community and the
successor to his late father, Hosi Jackson Chabane Maluleke Hlaneki
who passed away on 20 November 2015.
[2]
The
previous recognised Hosi of the Hlaneki Community, Hosi Jackson
Chabane Maluleke Hlaneki ("Hosi Jackson") reigned
from 1979
to November 2015 when he passed away. The Hlaneki Royal Family
(Second Respondent) identified and appointed the late
Hosi's eldest
son, the Third Respondent, as successor to the late Hosi Jackson in
accordance with the customs of the Hlaneki Traditional
Community. The
Premier duly recognised the Third Respondent as senior traditional
leader with effect from 13 April 2016. It is
this decision, and not
the decision of the Hlaneki Royal Family to appoint the Third
Respondent taken on 7 December 2015, that
the Applicant seeks to have
reviewed and set aside.
[3]
At
the hearing of this review application on 5 November 2019, and upon
hearing the submissions by Counsel for all the parties, I
pronounced
an order dismissing the review application with costs and indicated
that my written judgment would follow in due course.
I proceed to
give reasons for the order.
[4]
The
Hlaneki Royal Family (Second Respondent) duly constituted, met on 7
December 2015, identified and appointed the Third Respondent
as the
successor to the late Hosi Jackson and conveyed this decision to the
Fourth and Fifth Respondents. The Fourth Respondent
("the MEC")
approved the decision on 12 February 2016 and the Premier recognised
the Third Respondent with effect from
13 April 2016 as senior
traditional leader in terms of section 12(1)(b) of the Limpopo
Traditional Leadership and Institutions
Act, 6 of 2005 ("the
Limpopo Traditional Leadership Act"). The Third Respondent was
so informed by the Premier on 21
April 2016.
[5]
On
22 January 2017, some 9 months later, in a letter dated 22 January
2017 and received by the Premier's office on 31 January 2017
the
Applicant raised an objection to the appointment of
"
the acting chief of Hlaneki tribal authority" .
The
basis for the complaint is not disclosed in the letter, but reference
was made to two documents dated 24 March 2016 and 10 April
2016
(being annexures MJM1 and MJM2 to the founding affidavit) which were
not attached to the said letter to the Premier dated
22 January 2017.
The documents (annexures MJM1 and MJM2) relied upon by the Applicant
raised a complaint that not all members of
the "royal council"
who were eligible to sit as members of the royal council were present
at the meeting of the royal
family when the decision was taken on 7
December 2015 to appoint the Third Respondent as Hosi.
[6]
I
need to point out at this early stage of the judgment that the
aforesaid complaint raised in the documents dated 24 March 2016
and
10 April 2016 is not the complaint raised by the Applicant in the
present review application. In this application the Applicant
alleges
that the royal family which took the decision on 7 December 2015, is
the wrong royal family and that it could not have
taken the decision.
[7]
According
to the Applicant a mistake was made in 1924 when at the passing away
of the senior traditional leader at the time, the
successor was
appointed from the second house and not the first house and that
through all the successive appointments for traditional
leaders since
then, including the appointment of the late Hosi Jackson on 01 June
1979, these appointments remained in the wrong
house and that he, the
Applicant, is the real successor and that his family is the royal
family.
[8]
The
Respondents raised
inter alia
the
following defences which are all fatal to the application:
8.1.
By
the time that the Applicant raised his dispute, which is not even the
dispute on which he relies in the review application, the
Premier had
already taken his decision and was
functus
officio.
8.2.
The
Applicant did not take the decision of the royal family (Second
Respondent), of which he was aware by March 2016, on review.
He only
takes the Premier's decision to recognise the Third Respondent on
review. This decision was already taken on 13 April 2016
and the
application is well out of time.
8.3.
To
the extent that the Promotion of Administrative Justice Act, 3 of
2000 (PAJA) is applicable to the decision of the Premier under
review, the failure by the Applicant to institute the proceedings for
judicial review without unreasonable delay and not later
than 180
days after the date on which the Applicant became aware of the action
and reasons for it, or may reasonably have been
expected to have
become aware of the action and the reasons, is fatal to this
application. In the alternative and to the extent
that the common law
is applicable to the review application, the failure by the Applicant
to institute these proceedings within
a reasonable time, is similarly
fatal to the application.
8.4.
The
relief sought by the Applicant that the recognision by the Premier in
terms of section 12(1)(b) of the Limpopo Traditional Leadership
Act
be reviewed and set aside will have no practical effect because the
recognition by the Premier is a confirmation of the decision
of the
Royal Family. To review and set aside the recognition by the Premier
to appoint a senior traditional leader does not automatically
result
in the setting aside of the decision of the Royal Family. The
decision of the Royal Family is not the subject of this review
application.
8.5.
The
Traditional Leadership and Governance Framework Act 41 of 2003, ("the
Framework Act") when it was promulgated in 2004,
established a
Commission specifically to deal with historical disputes such as
this. When the term of this Commission expired,
a second Commission
was established by the Framework Act which was specifically
authorised to hear such disputes if those disputes
could not be
settled internally. The Applicant failed to raise such dispute with
either of the two Commissions, which were specialised
bodies created
to determine such disputes and cannot do so now on review. The
Applicant was obliged to follow the procedure laid
down in terms of
section 21 of the Framework Act.
[9]
The
Commission on Traditional Leadership Disputes and Claims was
specifically established in terms of the Framework Act to investigate
and decide on the historical leadership disputes and claims, either
on request by an affected party or its own accord. The Applicant
has
failed to raise the dispute that he now relies on in the review
application, when he should have done so when the Commission
was
still in existence and which was created specifically to investigate
such claims and disputes
[1]
.
[10] The
applicable provisions of the Framework Act and the Limpopo
Traditional Leadership Act as well as
the merits of this review
application should be determined against the facts of this case as
well as the genealogy of the Hlaneki
Traditional Community. The
appointment and recognition of a senior traditional leader is
regulated by section 11 of the Framework
Act and its equivalent,
section 12 of the Limpopo Traditional Leadership Act.
[11]
Section 12 of the Limpopo Traditional Leadership Act reads as
follows:
"12
Recognition of senior traditional leader, headman or headwoman
(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, head 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.
(2)
Where there is evidence or an
a/legation that the identification of
a
person referred to in subsection (1)
was not in accordance with customary law, customs or processes, the
Premier
-
(a)
May refer the matter to the
provincial house of traditional leaders and the relevant local house
of traditional leaders for their
recommendations; or
(b)
May refuse to issue
a
certificate of recognition; and
(c)
Must refer the matter back to the
royal family for reconsideration and resolution where the certificate
of recognition has been
refused.
(3)
Where the matter which has been
referred back to the royal family for reconsideration and resolution
in terms of subsection (2)
has been reconsidered and resolved, the
Premier must recognise the person identified by the royal family if
the Premier is satisfied
that the reconsideration and resolution by
the royal family has been done in accordance with customary law".
[12] As
laid down in this Court recently in the matter of
Mulamula
& Others v Premier of the Province of Limpopo & Others,
a
judgment of 6 September 2019
[2]
the Premier is obliged to ("must") recognise the person so
identified and effect the appointment by notice in the provincial
gazette, by issuing a certificate of recognition and by informing the
relevant house of traditional leaders of the recognition.
The only qualification placed on
the Premier to recognise the person identified, is when there is
evidence that the identification
was not done in accordance with
customary law, in which event the Premier may either refer the matter
to the house of traditional
leaders, or refuse to issue the
certificate and refer the matter back to the Royal Family for
reconsideration.
[13]
In
the present case the aforementioned qualifications or circumstances
did not arise either before the Premier recognised the Third
Respondent, or at the time the Applicant allegedly raised his
"dispute" with the Premier in January 2017.
[14]
The
following facts relating to the genealogy of the Hlaneki royal family
and the circumstances relating to the appointment of the
Third
Respondent as the senior traditional leader are common cause or not
seriously disputed.
14.1.
An ancestor of both the Applicant and
the Third Respondent, Hosi Matshema (Macema) Jan Hlaneki ruled the
Hlaneki Tribe until he
passed away on 28 March 1916. At the meeting
of the then Royal Family convened by the Native Commissioner,
Pietersburg, and also
attended by a number of senior headmen of the
community, the late Hosi Matshema Jan Hlaneki's son, Tshabane
(Chabane) Hlaneki was
appointed as his successor and duly recognised
as such by the authorities in 1917. Hosi Tshabane passed away in 1928
and was succeeded
by his eldest son from his first wife, Mkhachani
(Mkhatshane) William Hlaneki who was appointed on 6 August 1928 and
reigned as
Hosi until he passed away in 1946.
14.2.
The late Hosi Mkhachani William
Hlaneki's eldest son, Jackson Chabane Maluleke Hlaneki (the Third
Respondent's father) was still
a minor at the time and one of his
uncles George Hlaneki Maluleke was appointed as Regent, acting in his
stead from 1946 until
he passed away in 1978.
14.3.
It is further common cause that Hosi
Jackson Chabane Maluleke Hlaneki was thereafter duly appointed on 1
June 1979 as Hosi of the
Hlaneki tribe (as it was then known).
14.4.
Hosi Jackson Hlaneki passed away on 20
November 2015. It is further common cause that the Third Respondent
is the eldest son of
the late Hosi and entitled in terms of the
customs of the Hlaneki tribe to succeed his father.
14.5.
It is further common cause that on 7
December 2015 the Hlaneki Royal Family at a meeting identified and
appointed the Third Respondent
as successor to the late Hosi Jackson,
that this appointment was confirmed at a further meeting of the Royal
Family held with representatives
of the Fourth Respondent on 9
February 2016 and that the Premier, after receiving confirmation of
the appointment and the recommendation
from the MEC (Fourth
Respondent) recognised the Third Respondent as Hosi on 13 April 2016.
14.6.
It is further common cause that the
Premier has complied with the provisions of section 12(1)(b) of the
Limpopo Traditional Leadership
Act by recognising the Third
Respondent as senior traditional leader by notice in the Gazette,
that he has issued a certificate
of recognition of the Third
Respondent and informed the provincial house of traditional leaders
and the local house of traditional
leaders of his recognition.
[15]
The Applicant's case on review seems to
be that in 1924, when Chabane Hlaneki Maluleke, who is the
grandfather of the late Hosi
Jackson and the great grandfather of the
Third Respondent was appointed as Hosi, a mistake was committed in
that Chabane Hlaneki
Maluleke was from a junior house and that one
Hlatlani Hlaneki, who was allegedly born of the late Hosi's first
wife, should have
been appointed. According to the Applicant he was
born from what he says was historically the first house and that the
Premier
should have recognised him as a senior traditional leader and
not the Third Respondent. These facts are disputed by the First to
Third Respondents. Therefore, in law the various disputes of fact in
the present matter should be decided on the Respondents'
version
[3]
.
The objective facts, as supported by the Fourth and
Fifth Respondents' explanatory affidavit also show that there is no
merit
in any of the grounds upon which the Applicant seeks to review
and set aside the Premier's decision.
[16]
What
the Applicant in reality attempts to do, is to seek the review and
setting aside of a decision that was taken (on his own version
of
facts) in 1924 when, according to him the position of Hosi of the
Hlaneki traditional community was allocated to the wrong house
and
remained in the wrong house in the subsequent appointments in the
long line of successive Hosi who were appointed since then.
I agree
with the First to Third Respondents' Counsel's submission that this
is legally untenable, both under common law (which
was applicable
throughout the whole period) and under administrative law under the
Constitution which is now the supreme law of
the country. There is no
basis to do so almost a century after the fact, particularly not when
the Applicant had remedies available
to him during this period and
left the appointment of successors unchallenged.
[17]
In
my view the Applicant's
bona fides
in
instituting these review proceedings and his credibility as a witness
are brought into question. This is the first time that
the Applicant
raises this so-called dispute. The Applicant is about 86 years old
and has lived through Vuhosi (chieftaincy) appointed
according to
Hlaneki customs and traditions all his life, yet he failed to raise
any dispute until now. He had many opportunities
to do so. He could
have recently in 1979 reviewed the appointment of the Third
Respondent's father, Hosi Jackson. Moreover from
about 1996 there
were various Commissions in the Limpopo Province on traditional
leadership, namely the "Ralushai Commission"
established in
1996, the "Nhlapo Commission" of 2004 and the "Kgatla
Commission" of 2015. The Applicant did
not raise this alleged
dispute at any of these occasions and / or commissions and should not
be allowed to do so now.
[18]
Counsel for the Applicant argued that the Applicant did raise a
dispute against the identification
and / or the appointment of the
Third Respondent as a senior traditional leader. Counsel argued
further that such a dispute was
raised before the Premier could
recognise the appointment of the Third Respondent. In this regard
Counsel relied on the correspondence
dated 24 March 2016 and 10 April
2016 (Annexures MJM1 and MJM2 to the founding affidavit). In my view
the aforesaid correspondence
do not disclose any dispute that the
Premier, could give any attention to, even if he had not by then
already issued the Certificate
of Recognition. The heading of the
correspondence states that the objection is to the appointment of
"the Acting Chief of Hlaneki Tribal Authority".
The
truth is that no acting chief was being appointed. Therefore this
correspondence had nothing to do with the appointment of the
Third
Respondent who was being recognised as a senior traditional leader of
the Hlaneki Traditional Community.
[19]
For what it may be worth, I set out the
contents of one of the letters.
Paragraph 1 of the letter reads as
follows:
"I, MJ Maluleke,
a
full member of
the legitimate Hlaneki Tribal Council wish to raise an objection to
the appointment of an Acting Chief of Hlaneki
Tribal Authority who
was appointed by an illegitimate Hlaneki Tribal Council without
having properly constituted
a
legitimate
Hlaneki Tribal Council, for reasons unknown to me and other
legitimate Hlaneki Tribal Council members."
[20]
Whatever
complaint is contained in the aforesaid letter is without merit. The
Applicant is not and was never a member of the Hlaneki
Tribal
Council. It is the Royal Family that took the decision to identify
the Third Respondent as successor to the late Hosi Jackson
and not an
"illegitimate Hlaneki Tribal Council" as alleged. The
Hlaneki "Tribal Authority" does not have authority
to take
such decision and it is common cause that the Royal Family took this
decision and not the Tribal Authority or Council.
The complaint in
this letter therefore had no basis in either the Framework Act or the
Limpopo Traditional Act and is not a complaint
that would have
obliged the Premier to exercise his discretion in terms of section
12(2) of the Limpopo Traditional Leadership
Act to refer the dispute
to either the house of traditional leader s, back to the Royal
Family, or on which he could have refused
to issue a certificate of
recognition, which by then he had already issued.
[21]
In
the result the Applicant has failed to show that he has lodged any
timeous and valid complaint against the decision of the Royal
Family
to identify the Third Respondent as successor to the late Hosi
Jackson Hlaneki or that he has placed evidence or an allegation
before the Premier or the Fourth Respondent (the MEC) that the
identification of the Third Respondent was not done in accordance
with customary law, customs and processes as contemplated in section
12(2) of the Limpopo Traditional Leadership Act.
[22]
.
The Royal Family (the Second Respondent
in this case) plays a very significant role in the determination of
who the rightful person
is to fill a position of traditional
leadership. Only recognised Royal Family members are entitled to
participate in the process.
[4]
The term "royal family" is defined as follows in section 1
of both the Framework Act and the Limpopo Traditional Leadership
Act:
""royal family"
means the core customary institution or structure consisting 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."
[23]
The Royal Family as contemplated in
section 12(1) of the Limpopo Traditional Leadership Act and section
11(1) of the Framework Act
is the immediate and core family of the
late Hosi Jackson Hlaneki. The Applicant is not a member of the Royal
Family. The family
of the person the Applicant claims should have
been appointed as Hosi in 1924 and who, according to the Applicant is
the "legitimate
Royal Family" are not members of the Royal
Family as defined in the Framework Act and the Limpopo Traditional
Leadership Act.
This in my view, is fatal to the Applicant's case.
[24]
The late Hosi Jackson Hlaneki was a duly
recognised and appointed Hosi from the year 1979 until his death in
2015. In terms of section
28(1) of the Framework Act a traditional
leader who was appointed in terms of the applicable provincial
legislation and was still
recognised as a traditional leader
immediately before the commencement of the Framework Act is deemed to
have been recognised as
such in terms of section 9 or 11 of the
Framework Act. The Third Respondent was therefore duly identified and
recognised as the
rightful successor to the late Hosi Jackson.
[25]
The Applicant who presently challenges
the appointment of the Third Respondent could and should have lodged
a claim or dispute with
either of the aforementioned Commissions when
they were in existence had he disputed the late Hosi Jackson
Hlaneki's appointment
as Hosi on the basis that it was not in
accordance with customary law. No such dispute was declared by him
and the Commission therefore
made no decision on the late Hosi
Jackson's recognition as Hosi. Accordingly, Hosi Jackson was deemed
to have been recognised as
a traditional leader in terms of the
Framework Act and duly succeeded by his son, the Third Respondent.
The Applicant admits in
his replying affidavit that he never
challenged the whole line of succession and that no one else
challenged this during the past
century. This is also fatal to the
Applicant's review application.
[26]
The administrative decision taken in
1979 when the late Hosi Jackson Hlaneki was appointed and thereafter
recognised as Hosi, had
the result that his core family was and
remains the Royal Family of the Hlaneki as defined in the Framework
Act and the Limpopo
Traditional Leadership Act. The Applicant never
took that decision on review and cannot do so now 40 years later.
As was pointed out by Makgoba J
(as he then was) in
Netshimbupfe v Mulaudzi & Others 2015 JDR
2344 (GP)
in paragraph 6 of the judgment:
"is trite that until an
administrative decision is set aside by
a
Court in
proceedings for judicial review, it exists in fact and it has legal
consequences that cannot simply be overlooked."
See: Oudekraal Estates (Pty)
Ltd v City of Cape Town
&
Others
2004 (6)
SA 222(SCA).
The decision in the Oudekraal
Estate case was confirmed by the Constitutional Court in Camps Bay
Rate Payers'
&
Residents'
Association and Another v Harrison and Another
2011 (4) SA 42
(CCO at
[62] where it was held:
"Administrative decisions
are often built on the supposition that previous decisions were
validly taken and, unless that previous
decision is challenged and
set aside by
a
competent Court,
its substantive validity is accepted
as
a
fact."
[27]
The effect of this is that the
unchallenged appointment of Hosi Jackson Chabane Hlaneki in 1979, and
that of his predecessors after
the alleged dispute arose according to
the Applicant in 1924, is that the core family of the late Hosi
Jackson Chabane Hlaneki
is the Royal Family of the Hlaneki
traditional community, as defined in the Framework Act and the
Limpopo Traditional Leadership
Act. That Royal Family is the only
Royal Family that could have identified a successor to the late Hosi
Jackson Hlaneki. It indeed
took such deceision on 7 December 2015 to
identify the Third Respondent as successor, which decision the
Premier in the absence
of contrary evidence of an allegation as
contemplated in section 12(2) of the Limpopo Traditional Leadership
Act was obliged to
accept. The Applicant's family has no standing and
has not been recognised under the Framework and Limpopo Acts. See in
this regard
the judgment by MG Phatudi AJ (as he then was) in
Sepadi
v Premier of Limpopo Provincial Government 2015 JDR 2262 (GP)
/
[2015] ZAGPPHC 1097 (13 October 2015)
at paras [13] - [18].
If these principles are applied to
the Applicant's family, they cannot claim to be the "Royal
Family" of the Hlaneki who
should have taken the decision as to
who the successor to the late Hosi should be. The late Hosi Jackson
Hlaneki's family members
are and remain the
"immediate
relatives of the ruling family within
a
traditional community"
as contemplated in the definition of "Royal Family".
[28]
Since the appointment of Hosi Jackson
Hlaneki in 1979 was never disputed, his family is the Royal Family
and not the unnamed "royal
family" that the Applicant says
should have taken the decision. As pointed out in an appeal in this
division in
Netshimbupfe &
Another v Mulaudzi [2017] ZALMPPHC 3 (3 March 2017)
at
paragraph 17
[5]
that there
" cannot be two
different customary structures or entities in existence at the same
time within that community that was the
Royal Family".
[29]
I come to a conclusion that in the
circumstances of this case the Premier was obliged to accept the
decision of the Royal Family
taken on 7 December 2015 and to
recognise the Third Respondent as Hosi. There is no merit in the
Applicant's review application
and it should fail.
[30]
The Application is accordingly dismissed
with costs including the costs consequent upon the employment of
Senior Counsel.
EM
MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 5 November 2019
Order
pronounced on
:
5
November 2019
Judgment
delivered on
:
15 November 2019
For
the Applicant
: Adv A C
Diamond
Instructed
by
: Diamond Inc
For
the 1
st
, 2
nd
& 3
rd
Respondents : Adv Havenga SC
Instructed
by
: M P Koekmoer Attorney
For
the 4
th
& 5
th
Respondents
: Adv S S Green
Instructed
by
: State Attorney
[1]
See Mamone v Commission on Traditional Leadership Dispute s and
Claims 201 2 (JDR 1755 GP) by Makgoba J, which was confirmed
on
appeal by both the SCA, see (2004]
3 All SA 1
(SCA) and by the
Constitutional Court in Bapedi Marota Mamone v Commission on
Traditional Leadership Dispute and Claims &
Other s 2015 (3)
BCLR 268 (CC).
[2]
As yet unreported but available on SAFLII and reported as Mulamula &
Others v The Premier of the Province of Limpopo &
Others
(5948/2018)2019 [ZALMPPHC 44] (6 September 2019) and on Juta's daily
reports as 2019 JDR 1942 (LP).
[3]
See Plascon - Evans Paints Ltd v Van Riebeeck Pain t s (Pty) ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-6 36C; Ludidi v Ludidi and Others
[2018]
4 All SA 1
(SCA) par 18 .
[4]
Lurhani v The Premier of Eastern Cape Province Government 2018 JDR
0629 (ECM) PAR 13-15; and Makaula v Zulu Royal Family of Ncapai
Kamadzi k ne Kazul u 2016 JDR 0794 (ECM) par 56
[5]
This was an unsuccessful appeal against the judgment of Makgoba J
(as he then was) in Netshimbupfe & Another v Mulaudzi 201
5 JDR
2344 (GP) by Muller J with whom MG Phatudi J and Kganyago J agreed.