About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 258
|
|
Moipone v Premier of the Free State Province and Others (4504/2018) [2019] ZAFSHC 258 (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 4504/2018
MOROKA
MOIPONE Applicant
and
THE
PREMIER OF THE FREE STATE
PROVINCE 1
st
Respondent
THE
COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES
AND
CLAIMS 2
nd
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 3
rd
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE 4
th
Respondent
AND
TRADITIONAL AFFAIRS
FREE
STATE HOUSE OF TRADITIONAL LEADERS 5
th
Respondent
MOROKA
SEHUNELO
KINGSLEY 6
th
Respondent
MOROKA
LEBOHANG
HILARY 7
th
Respondent
HEARD
ON:
29 JULY 2019
CORAM:
JORDAAN, J
et
MURRAY AJ
JUDGMENT
BY:
MURRAYAJ
DELIVERED
ON:
19 SEPTEMBER 2019
[1]
The Applicant, Ms Moipone Moroka, a female State Prosecutor in the
Free State Office of the Director of Public Prosecutions
instituted
this review application to set aside a decision by the Premier of the
Free State Province ("the Premier").
The said decision
declared the Sixth Respondent, one Kingsley Sehunelo Moroka, to be
the rightful Senior Traditional Leader of
the Barolong boo Seleka
community. The Applicant denies that he is entitled to be so
declared.
[2]
The Applicant avers that the Premier's decision, which was
communicated to the Barolong boo Seleka Royal Household on
10
November 2017, was based upon a report by the Commission on
Traditional Leadership Disputes and Claims ("the Commission")
published on 29 February 2016 and which, according to the Applicant,
was procedurally flawed and factually incorrect and therefore
also
stands to be reviewed and set aside. The reasons for the decision
were provided on 8 March 2018. This Court granted condonation
for the
late filing of this review application.
[3]
Only the First Respondent opposed the application. In its answering
affidavit, the First Respondent indicated that the
only areas of
dispute were matters for legal argument and that all specific factual
allegations were denied.
[4]
Adv AP Berry and with him Adv D Grewar appeared for the Applicant,
and Adv SM Lebala SC and with him Adv L Manye represented
the First
Respondent.
[5]
Mr Berry submitted that the issues tobe determined were whether the
decisions of the 1
st
and 2
nd
Respondents were
in compliance with
The Traditional Leadership and Governance
Framework Act 41 of 2003
("the Acr). Mr Lebala denied
non-compliance with the Act and averred that there was a material
factual dispute, that the Applicant
lacked
locus standi
to
bring the application and that the application was really an appeal
'dressed as a review' since the Applicant attacked the contents
of
the Premier's decision.
[6]
Mr Berry
argued that the Commission's recommendations and the Premier's
decision contravened the provisions of s 21(2)(a) and (b)
of the
Act
[1]
which provide that
disputes pertaining to Senior Traditional Leaders must first be
referred to the relevant Provincial House of
Traditional Leaders. The
House must then, in accordance with its internal rules and
procedures, seek to resolve the dispute and
only if it is unable to
do so, must the dispute be referred to the Premier.
[7]
He conceded that the Commission did report that the Provincial House
indeed attempted to resolve the dispute but that
it was unable to do
so because one of the parties involved in the dispute was serving as
its Deputy Chairperson. According to Mr
Berry, the report indicated
that the House therefore requested the Premier to handle the matter
through the MEC in order to ensure
the fair adjudication of the
dispute.
[8]
The Applicant stated that the Deputy Chairperson concerned was her
mother, Gaongalelwe Audrey Moroka, who deposed to a
confirmatory
affidavit, and who allegedly averred that the House never considered
the dispute in terms of s 21(2) of the Act. The
said affidavit,
however, was merely a general confirmation of the contents of the
Founding Affidavit.
[9]
According to Mr Berry the Deputy Director General in the Premier's
Office, Mr Kopung Ralikontsane, met with the Royal
Household on 10
November 2017 to communicate the Premier's decision, and only after
that, on 14 November 2017, met with the FS
House of Traditional
leaders.
[10]
Based on the above, the Applicant averred that, contrary to the
provisions of s 21(2)(b) of the Act, the Premier's decision
had been
made prior to the meeting with the House instead of only after the
House had already attempted to resolve the dispute
and failed to do
so.
[11]
Mr Berry accordingly submitted that the House had not been afforded
an opportunity to resolve the dispute before its referral
to the
Premier, which contravenes s 21(2)(a) and 21(2)(b) of the Act.
According to him that constituted an irregularity reviewable
in terms
of s 6(2)b) and 6(2)(c) of PAJA in that, respectively:
"a mandatory and
material procedure or condition prescribed by an empowering provision
was not complied with”, and "the
action was unfair".
[12]
With reference to the minutes of the 14 November 2018 meeting annexed
to the Founding Affidavit, Mr Berry averred that the
House was simply
informed of the report and the Premier's decision without any
meaningful consultation taking place. He based this
averment on the
following extracts from the Minutes:
"The Government is
giving the report to the house for the purpose of noting. The report
is official and nothing can be done.”
"Government has
resolved not to involve the House because BAROLONG BOO SELEKA has
always been riddled with disputes.”
"The house
was invited to the commission. So they were represented.”
[13]
He argued that the Applicant's mother in her capacity as Deputy
Chairperson of the House, could simply have been excused from
the
meeting to allow the House to perform its functions in terms of s
21(2)(a).
[14]
On behalf of the Applicant it was averred, also, that the Premier's
decision was arbitrary and failed to take cognisance of
all the
relevant facts. The first point of criticism was that he allegedly
failed to pay attention to the Royal Household's non-acceptance
of
the report on 10 November 2017, and also failed to take into account
the Applicant's representations on 16 November 2017 regarding
substantive and procedural issues, and failed, furthermore to provide
adequate reasons for his decision. According to the Applicant
he
merely said why he accepted the Commission's recommendations, not why
he dismissed the views of the Barolong boo Seleka Royal
Household.
[15]
It was submitted, moreover, that the Commission's recommendation was
irrational. It was averred that it was based on the decision
of one
Kgosi Maroka II, sometime after 1833, to appoint one Tshipinare, whom
he loved as his 'own blood son' to succeed him. This
decision,
according to the Commission's report was the "shifting of
chieftancy from the Seleka lineage ... to the Tshidi lineage
of
Barolong". The report further stated that the chieftancy of
Barolong Boo Seleka had been in the Tshipinare lineage since
1880.
According to the Applicant the report deals with the succession to
the point where she 'became the Senior Traditional Leader
of BAROLONG
BOO SELEKA".
[16]
The Applicant alleges that the Commission's recommendation and the
Premier's decision to declare Sehunelo Kingsley Moroka the
rightful
Senior Traditional Leader of the Barolong boo Seleka resulted in the
history, consistency and chieftancy of some 137 years
being undone,
without the Premier's having provided reasons why he would undo 180
years of history or reject the views of the BAROLONG
BOO SELEKA Royal
Household.
[17]
On that basis it was submitted that the Premier's 'decision to bypass
the requirements of the Act' was reviewable and stood
to be set
aside. According to the Applicant the Premier not only erred in
failing to refer the matter to the House of Traditional
Leaders
before he appointed the Commission to render a report and make
recommendations, but also, before making his final decision,
failed
to comply with the provisions of s 21(2)(b)(i) and (ii) which provide
that he may only resolve the dispute after consultation
with
"(i)
the parties to the dispute; and (ii) the provincial house of
traditional leaders concerned."
[18]
The Applicant has to make out her case in her Founding Affidavit. Her
contention that the Premier circumvented the prescribed
statutory
procedure in s 21(2) of the Act by making his decision before the
House had attempted to resolve the dispute, fails however.
It is
clear that the leadership dispute between the Barolong Boo Seleka
Royal Family and the Barolong Boo Seleka Royal Khduthamaga
has a
lengthy history, spanning several decades, and that what happened
since the death of Kgosi G Moroka in 2013 is material to
the current
dispute andpertinent to this application, not only the events of 2017
and 2018 on which the Applicant relies. The Premier's
decision and
the contents of the Minutes of the meeting in which the decision was
communicated, have to be viewed in its proper
context.
[19]
This is evident from the letter which Mr Morena LS Moloi,
Chairperson: Free State House of Traditional Leaders wrote to the
HOD: Cooperative Governance and Traditional Affairs, on 3 February
2014 and which was provided by the First Respondent in its Notice
of
Compliance in terms of Rule 53 of the Uniform Rules of Court.
[20]
The letter is titled: "Barolong Boo Seleka Succession Dispute
Resolution: Request for Establishment of the Commission
of Enquiry or
Referral of the Dispute to the Commission on Traditional Leadership
Disputes and Claims". It states, first of
all, that the Barolong
Boo Seleka Royal Family and the Barolong Boo Seleka Royal Khduthamaga
have for years been engaged in a leadership
succession dispute.
[21]
As appears from paragraph 4 of the letter, after the death of Kgosi G
Moroka in 2013 the same conflict regarding Barolong Boo
Seleka
resurfaced
"prompting the
department of Cooperative Government and Traditional Affairs,
representatives of the Free State House of Traditional
Leaders, State
Law advisors in August 2013 to meet the clashing Barolong boo Seleka
Royal Family and Barolong boo Seleka Royal
Khduthamaga to discuss
amicable ways to resolve the dispute. The meeting resolved that
matter should be referred to the Premier
to either (letters
confirming resolutions attached):
4.1 Establish the
commission of enquiry in terms of section 127(e) of Constitution of
the Republic of South Africa or
4.2 Refer the matter to
the Commission on Traditional Leadership Disputes and Claims in terms
of section 21 of Traditional Leadership
Framework Act 41 of 2003 as
amended to investigate and make recommendations."
[22]
Mr Moloi stated in paragraph 5 that the executive committee of the
Free State House of Traditional leaders during its sitting
on 21
January 2014 acknowledged that the Barolong boo Seleka succession
dispute had been ongoing for a number of years and had
been addressed
on various platforms;
"while
numerous
attempts by the House
and the Department of Cogta
to resolve it proved unssuccesful
"
[my emphasis]. He indicated that the meeting unanimously
decided that the institution of traditional leadership and service
delivery
was being negatively affected by the situation in Thaba Nchu
and that the situation needed urgent resolution.
[23]
He stated that, in order to effect an urgent solution to the
leadership dispute, the executive committee of the House then
resolved to:
- Refer the dispute to
the Premier for intervention in line with the resolution that was
taken on 27 August 2013 between the House
representatives, Head of
department of Cogta, Barolong boo Seleka Royal Family and Barolong
boo Seleka Royal Khduthamaga; and
- To include the item in
the order paper of the full sitting of the House for further
discussion.
[24]
He reported, furthermore, that on 30 - 31 January 2014 the full
sitting of the House argued that the involvement of the House
in this
dispute resolution might have created doubts of biasness because some
of the family members who are involved in the succession
dispute are
members of the House and
"considering that a number of
interventions did not yield success"
[my emphasis] the
sitting
"concurred with the resolution that the matter
must be resolved by the neutral body".
[25]
Paragraph 7 clearly stated that
"Taking into account that
the available provincial avenues to resolve the dispute have been
exhausted, the Free State House
of Traditional Leaders humbly
requests the Premier to consider one of the options referred to in
paragraphs 4.1 and 4.2 above to
resolve [the] Barolong boo Seleka
succession dispute."
[26]
Clearly, therefore, there is no merit in the Applicant's contention
that the Premier circumvented the provisions of s 21(2)
of the Act by
making his decision before the House has had the opportunity to
attempt to resolve the dispute and has failed to
do so. As appears
from the Chairperson's letter, the House has indeed on numerous
occasions unsuccessfully attempted to resolve
the matter.
[27]
That is confirmed, also, in a letter dated 18 March 2104 in which Mr
Mokete Duma, the HOD: Cooperative Governance and Traditional
Affairs,
stated that 'all the endeavours of the department and the Free Stale
House of Traditional Leaders to resolve the matter
amicably weren't
fruitful. There Is therefore a void in the functioning of that
traditional council and thereby necessitating an
urgent intervention
lo break the stalemate in that traditional community." He
explained that it was therefore necessary to
request the Commission
on Traditional Leadership Disputes and Claims to investigate the
matter and advise the Premier.
[28]
Mr Duma indicated that COGTA in accordance with the provisions of s
28 of the
Free State Traditional Leadership and Governance Act,
2005
consulted with Barolong boo Seleka to appoint and recognise
the successor to Kgosi Gaopalelwe Moroka, and that "on 19 July
2013, two names of Ms Moipone Maria Moroka and Mr Kinsley Sehunelo
Moroka were forwarded to Premier from both opposing groups of
which
the matter constituted a dispute."
[29]
There is therefore no merit in the submission that s 21(b)(i) and
(ii) was contravened by the decision having been made without
due
consultation with the relevant parties, either. Mr Moloi's letter
also confirms that in 2013, after the death of Kgosi G Moroka,
COGTA,
representatives of the FS House of Traditional Leaders and State Law
Advisors met with both the Barolong boo Seleka Royal
Family and the
Barolong boo Seleka Royal Khduthamaga to discuss ways to resolve the
dispute and that that meeting, which therefore
included both the
'clashing parties', resolved to refer the matter to the Premier to
either appoint a Commission of Enquiry
or
to refer it to the
Commission on Traditional Leadership Disputes and Claims to
investigate and make recommendations.
[30]
Both parties to the leadership dispute were therefore part of that
decision, and, furthermore, responsible for the selection
of
potential candidates from which to declare the rightful Senior
Traditional Leader of the Barolong boo Seleka. It is clear,
furthermore, that all available avenues to resolve the dispute were
indeed exhausted and that the request to the Premier was the
last
resort.
[31]
Evidently, then, the allegation that no proper consultation took
place before the Premier's decision was made, has no merit.
Furthermore, it is clear that the Premier's decision was neither
irrational nor taken without good reason: on the contrary he acted
upon the direct request from the House of Traditional Leaders itself
to intervene and to make the decision as a 'neutral body'
to ensure
the fair adjudication of the dispute.
[32]
The Premier therefore did not fail to comply with s 21 of the
The
Traditional Leadership and Governance Framework Act 41 of 2003
("the
Act") as alleged and the application cannot succeed.
[33]
In view of our finding, there is no need to deal with the arguments
and the point
in limine
raised on behalf of the First
Respondent. There is no reason, either, to deviate from the normal
order that costs follow the outcome.
WHEREFORE
I make the following order:
1.
The application is dismissed with costs.
________________
MURRAY
AJ
I
concur and it is so ordered.
________________
JORDAAN
J
For
the Appellant: Adv AP Berry
Adv
D Grewar
Instructed
by:
M
Rohde
c/o
Matsepesd Inc
26/28
Aliwal Street BLOEMFONTEIN
For
the First Respondent: Adv SM Lebala SC
Adv
L Manye
Instructed
by:
Mr
MA Mohobo
Office
of the State Attorney
11
th
Floor Fedsure Building
49
Charlotte Maxeke Street
BLOEMFONTEIN
[1]
"S 21 Dispute and claim resolution
(1)(a)
Whenever a dispute or claim concerning customary law or customs
arises between or within traditional communities or other
customary
institutions on a matter arising from the implementation of this
Act, members of such a community and traditional leaders
within the
traditional community or customary institution concerned must seek
to resolve the dispute or claim internally and
in accordance with
customs before such dispute or claim may be referred to the
Commission.
(1)(b)
If a dispute or claim cannot be resolved in terms of paragraph (al,
subsection 12) applies.
(2)(a)
A dispute or claim referred to in subsection(11that cannot be
resolved as provided for in that subsection must be referred
to the
relevant provincial house of traditional leaders, which house must
seek to resolve the dispute or claim in accordance
with its internal
rules and procedures.
(b)
If a provincial house of traditional leaders is unable to resolve a
dispute or claim as provided for in paragraph (a),the
dispute or
claim must be referred to the Premier of the province concerned, who
must resolve the dispute or claim after having
consulted –
(i)
the parties to the dispute or claim;
(ii)
the provincial house of traditional leaders concerned.
(c)
A dispute or claim that cannot be resolved as provided for in
paragraphs (a) and (b) must be referred to the Commission.
(3)
Where a dispute or claim contemplated in subsection (1) has not been
resolved as provided for in this section, the dispute
or claim must
be referred to the Commission.