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[2019] ZANCHC 52
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Ba Ga Phadima and Another v Premier: Northern Cape and Others (1050/16) [2019] ZANCHC 52 (4 October 2019)
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IN THE HIGH COURT OF SOUTH
AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBELEY)
Case No: 1050/16
Heard On:
17/05/2019
Delivered:
04/10/2019
In the matter between:
BATLHARO BA GA PHADIMA
1
st
Applicant
SEPHIRI ISAAC
DIOKA
2
nd
Applicant
And
THE PREMIER: NORTHERN CAPE
1
st
Respondent
NORTHERN CAPE COMMITTEE OF
THE
2
nd
Respondent
COMMISSION TRADITIONAL LEADERS
DISPUTES AND CLAIMS
MORONI FAMILY
REPRESENTATIVES
3
rd
Respondent
SEABOY
LENTSHIKANG
4
th
Respondent
JUDGMENT
PAKATI J
[1] The first
respondent, the Premier, Northern Cape Province (“the
Premier”), applies in terms of
Rule 30(2) (b) of the Uniform
Rules of Court for an order declaring; (a) the notice of motion
in counter-application issued
on 20 September 2017 and (b) the
review application in terms of Rule 53 by the 4
th
respondent, Mr Seaboy Lentshikang (Lentshikang), an irregular step
and be struck out and set aside.
[2] In response to
the notice of motion in the counter-application filed by Lentshikang
on 20 September 2017 the
Premier filed a notice of intention to
oppose same on 03 October 2017. Mr Ockert Jacobus Bester,
Lentshikang’s attorney
of record, filed an answering affidavit
dated 26 October 2018.
[3]
The Premier contends that on closer inspection of the notice of
motion filed by Lentshikang she is unable
to comprehend the issues
raised therein. Therefore she is not in a position to respond
to it in that state until the irregularities
are cured. After
noticing these errors she served a notice in terms of Rule 30 (2) (b)
on Lentshikang and other parties on
15 November 2017 and gave
Lentshikang an opportunity to remove the cause of complaint within
ten days from receipt of the said
notice. Lentshikang instead
filed a notice to oppose the application in terms of Rule 30(2) (b)
on 29 November 2017.
[4]
Batlharo Ba Ga Phadima Royal Council, a core customary institution
consisting of immediate relatives of the
ruling family who had been
so identified in terms of the customs of the Batlharo Ba Ga Phadima
with its seat of Traditional House
in Loopeng Village, Kudumane and
Kgosi Sephiri Dioka (“Kgosi Dioka Sephiri”), an adult
male in his capacity as the
official acting Senior Traditional
Leader/Kgosi of the Batlharo Ba Ga Phadima House are the first and
second applicants in the
main application. The Premier and the
Commission established as such in terms of Chapter 12 of the
Traditional Leadership
Governance Framework Act (the Framework
Act)
[1]
,
the Moroni Family Representatives (the Moroni Family), the house
which the recommendation of the Commission has identified to
be the
correct genealogical house to rule over the Batlharo Ba Ga Phadima
Traditional Community and Lentshikang are first to fourth
respondents
in this application. The Commission and the House of the Moroni
have been cited as interested parties and they
filed a notice to
abide the decision of the Court on 03 October 2017. Fi
rst
and second applicants, first, second and third respondents are
respondents in the counter-application. The second applicant
deposed to the affidavit in support of the counter-application. For
convenience, I will refer to the parties as cited in
the main
application.
[5] Lentshikang
launched review proceedings in terms of Rule 53(1) (a) of the Uniform
Rules of Court regarding
an alleged decision taken by the Commission
and sought the following orders:
“
1.
That the recommendations of the Commission on Traditional Leadership
Disputes and Claims (the second respondent), dated 27 March
2015 and
relating to the position of the family of Seaboy Lentshikang (fourth
respondent), as senior Traditional Leader of the
Batlharo Ba Ga
Phadima, be reviewed and set aside;
2.That
the recommendations and finding of the second respondent dated 27
March 2015, to the effect that the MORONI house is the
genealogically
correct house of the Chieftainship of the Batlharo Ba Ga Phadima to
be reviewed and set aside;
3. That the second
respondent forthwith recognise the fourth respondent’s brother,
Disang Patrick Lentshikang as chief of
the Batlharo Ba Ga Phadima
Traditional Community after reconsidering the
counter-application
of the fourth
respondent;
4. That the first
respondent be ordered to recognise the fourth respondent’s
brother, Disang Patrick Lentshikang, as Traditional
Leader of the
Batlharo Ba Ga Phadima Traditional Community as contemplated in
section 13 of the Northern Cape Traditional Leadership,
Governance
and House of Traditional Leaders, Act 2 of 2007;
5. That any of the
other respondents and applicants who oppose the granting of the order
sought in this counter-application, be
ordered the costs of this
review application jointly and severally, the one paying the other to
be absolved.”
[6] The Premier
alleges that there were certain errors in the notice of motion filed
by Lentshikang which needed
his attention. She listed the
following alleged errors as recorded in paragraphs 3.4.3 to 3.4.8 of
the notice of motion:
“
3.4.3
Subsection 2 [of Rule 53] provides that “The notice of motion
shall set out the decision or proceedings sought to be
reviewed and
shall be supported by affidavit setting out the grounds and the facts
and circumstances upon which applicant relies
to have the decision or
proceedings set aside or corrected.
3.4.4
The fourth respondent as an applicant in the counter-application has
called upon the respondents to show good cause why the
decision made
by the second respondent should not be reviewed and set aside whereas
the second respondent has not made any ‘decision’
but has
made ‘recommendations’ to the first respondent. In fact,
the second respondent does not have the authority
to make a decision
but is empowered to make only ‘recommendations’.
3.4.5
Moreover, the first, second and third orders sought by the fourth
respondent in its counter-application clearly demonstrate
that they
are directed at the ‘recommendations’ of the second
respondent and this is not in accordance with the prescripts
of Rule
53 procedure which states in no uncertain terms that the respondents
must show good cause why ‘a decision’
should not be
reviewed and set aside. As stated above, the second respondent does
not have the power to make a decision relating
to traditional
leadership disputes.
3.4.6
The notice of motion further cites the third respondent as ‘Moroni
Family Representatives’ without any further
clarification
whether or not they have a right to sue or be sued as a body of
persons. It would seem that the applicants ‘in
the main
application as well as in the counter-application
has clothed the ‘House of Moroni’ with a
locus
standi
to be used as a ‘
universitas
’
or an unincorporated body of persons where it seemingly does not
exist.
3.4.7
It is submitted that the ‘House of Moroni’ is neither a
‘
universitas
’
at common law nor an unincorporated body of persons contemplated in
Rule 14 of the Uniform Rules of Court. It is thus unclear
as to who
are the ‘representatives’ of the Moroni Family and
whether or not they have the necessary capacity to act
on behalf of
such a family in these proceedings as it is quite clear that they
have a direct and substantial interest when regard
is had to the
orders sought in this application.
3.4.8
Therefore the citation of the third respondent does not accord with
the prescripts of Rule 14 and/or 17 of the Uniform Rules
of the High
Court and the applicants in the main application as well as the
fourth respondent in the counter-application should
have cited
members of the ‘House of Moroni’ in their personal
capacity (ies) or at the very least, cite the Head of
the Moroni
Family.”
[7] The Premier
submits that she has been prejudiced by the conduct of Lentshikang
and would experience difficulty
in properly responding to the
submissions made as the orders sought in the
counter-application
were incompetent. She contends that the review application is
an irregular step or procedure and should be withdrawn or dismissed.
[8] Mr Ockert
Jacobus Bester, a practising attorney of KBVS Attorneys, attorney of
record of Lentshikang and deponent
to the answering affidavit, denies
that there were errors in Lentshikang’s notice of motion.
He states that in determining
who the rightful traditional leaders of
the Batlharo Ba Ga Phadima should be, was a
quasi-judicial
or
administrative decision or function in that the Commission had to
consider representations of interested parties. He submits
that
only Mr Sephiri, the second applicant, and Lentshikang made
representations to the Commission. He submits further that
if
the notice of motion is read together with the supporting affidavit
of Sephiri it would share clarity.
[9] Lentshikang
applies for condonation of the late filing of the answering affidavit
deposed to by Mr Bester.
In the same affidavit he raises a
point
in limine
that the Premier “
has no locus standi
in iudicio in both the Second and Fourth Respondent’s
application for review against the Second Respondent’s
decision
of its recommendation.”
CONDONATION
[10] Mr Bester explained that
‘
the main reason for the delay is that our client was not in
the position to provide funds for this matter’.
[11] The Premier contends that
Lentshikang has failed to explain the entire delay which took him
almost a year in filing his
answering affidavit and take the Court
into his confidence. According to the Premier the issue
relating to the provision
of funds arose during the hearing of the
matter on 14 September 2018 when it was heard on an unopposed basis
and the court gave
Lentshikang an opportunity to organise funds and
report back on 12 October 2018.
[12] Notably, the founding
affidavit was filed on 15 November 2017 and the notice to oppose, on
29 November 2017. The
answering affidavit deposed to by Mr
Bester dated 26 October 2018 was filed the same day, more than a year
after filing the notice
to oppose. The answering affidavit
mentions lack of funds without detail as the reason why the answering
affidavit was filed
late. Other reasons could be gleaned for
the first time from the heads of argument where Mr Bester mentions
two reasons for
the delay namely:
“
(a).a
lack of funds, even up to now; (b) First and Second Respondents by
the Commission attorneys just dumped the record of proceedings
by the
Commission at the Registrar of the above Honourable Court without
serving a copy of it on the Fourth Respondent’s
attorney of
record. The record consists of four volumes.”
Lentshikang alleges that his legal
team had to peruse four volumes to see whether the documentation
produced by him also formed
part of the said volumes.
[13] Regarding condonation the
Constitutional Court in
VAN WYK v UNITAS HOSPITAL
remarked:
“
[20]
This court has held that the standard for considering an application
for condonation is the interests of justice. Whether
it is in
the interests of justice to grant condonation depends on the facts
and circumstances of each case. Factors that are relevant
to this
enquiry include but are not limited to the nature of the relief
sought, the extent and cause of the delay, the effect
of the delay on
the administration of justice and other litigants, the reasonableness
of the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success.
[22]
An applicant for condonation must give a full explanation for
the delay. In addition, the explanation must cover the entire
period of delay. And, what is more, the explanation given must be
reasonable.”
[2]
[14] The
explanation tendered by Lentshikang does not even come close to the
requirements as stated above. No explanatory
affidavit for
condonation was submitted. Mr Bester’s explanation as
contained in the answering affidavit falls far
short of these
requirements. It is superficial and unconvincing. It
amounts to saying that during the entire period
of approximately over
a year he was considering to answer to the Premier’s founding
affidavit. He has not furnished
any explanation as to how
Lentshikang overcame his funding difficulty. On 14 September
2018 the matter was postponed to unopposed
roll of 12 October 2018
for Lentshikang to report back on his efforts to attain legal
representation. On 12 October 2018 he was
represented by Mr
Oosthuizen and the following order was granted:
“
1.That
the matter is postponed
sine
die
.
2.
That the 4
th
respondent files opposing papers on or before 26 October 2018.
3.
That the applicant files replying papers on or before 09 November
2018.
4.
That the applicant files Heads of Argument on or before 30 November
2018.
5.
That the 4
th
respondent files Heads of Argument on or before 07 December 2018.
6.
Costs in the application.”
[15] In
my view, Lentshikang did not take this Court into his confidence and
tell it how exactly he overcame his difficulty
in raising funds.
The delay is clearly inordinate. However, I will deal with the
first respondent’s application
in terms of Rule 30(2) (b) of
the Uniform Rules of Court for the sake of finality.
POINT IN
LIMINE
[16]
Lentshikang argues that the Premier has no
locus standi
regarding his and Sephiri’s, review application against the
Commission’s recommendations because the Premier did not
play a
part in the preparation of the recommendations and/or was a party
before such proceedings were held. He requests for
an amendment
of the notice of motion in the counter-application by deleting
paragraph 4 (see note [5]
supra
).
[17] The
Premier submits that she has
locus standi
in this matter
because Lentshikang also seeks an order against her in her official
capacity. The Premier submits that what
Lentshikang says that
she did not have any part to play in the recommendation made by the
Commission “
is inexplicable and disingenuous to say the
least.
”
[18] In
his notice of motion Lentshikang seeks an order against the Premier
to recognise him as the rightful traditional leader
of the Batlharo
Ba Ga Phadima.
[19]
Rule
30 (1) (2) (a) and (b) of the Uniform Rules of Court provides:
“
30
Irregular proceedings
(1)
A
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2)
An
application in terms of subrule (1) shall be on notice to all parties
specifying particulars of the irregularity or impropriety
alleged,
and may be made only if –
(a)
The
applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
The
applicant has, within ten
days
of becoming aware of the step, by written notice afforded his
opponent an opportunity of removing the cause e of complaint
within
ten days.”
The Premier alleges that she has not
taken a further step.
[20] In
this matter the Premier has indeed not taken a further step in the
proceedings. Instead of the fourth respondent
taking the
opportunity of removing the cause of complaint he asks the
respondents including the Premier to show cause why the
recommendations of the Commission and Premier should not be reviewed
and set aside and the relief sought not be granted. In
the
notice of motion he states:
“
KINDLY
TAKE NOTICE
that
the affidavit of George Ookame Sephiri together with its annexures
will be used in support of this Counter-Application.
KINDLY
TAKE FURTHER NOTICE
that the Applicants and First, Second and Third Respondents are
hereby called upon in terms of Uniform Rule 53 (1) (a), to show
good
cause why the abovementioned decision of the CTLDC [Commission] and
of the Second Respondent should not be reviewed and set
aside, and
the relief sought, should not be granted.
KINDLY
TAKE FURTHER NOTICE
that the First, Second and Third Respondents are called upon in terms
of Rule 53 (1) (b) of the Rules of the above Honourable Court
to
despatch within 21 days after receipt of this Notice of Motion of the
Counter-Application and the attachments thereto, to the
Registrar of
the above Honourable Court a record of all documents and all
electronic records in
NUMERICAL
ORDER
(including transcripts, any correspondence, memoranda, advices,
recommendations and reports prepared by the functionaries and/or
employees of the First, Second and Third Respondents as the case may
be and all information especially relating to the recommendation,
motivation and decision of the Second Respondent relating to the
position of the Third and Fourth Respondents) and the finding
that
the Moroni House is the genealogically correct house of the
Chieftainship of the Batlharo Ba Ga Phadima that is related to
the
making of the decision which is sought to be reviewed and set aside
together with such further reasons as the First, Second
and Third
Respondents may be required by law or are desirable to provide and to
notify the Fourth Respondent’s Attorney that
this has been
done.”
[21]
The Premier derives her powers from various legislation namely, the
Framework Act
(as
amended in 2009) the National Act read with the Northern Cape
Traditional Leadership Governance and House of Traditional Leaders
Act
[3]
(the Traditional
Leadership Act).
[22] In
terms of section 11(1) (b) of the Framework Act the Premier is
entrusted with the authority to recognise a traditional
leader of a
recognised community. Section 26(2) (b) of the Act provides:
“
26
Recommendation of Commission
A
recommendation of the Commission must, within two weeks of the
recommendation having been made, be conveyed to-
(a)…
(b)
the relevant provincial government and any other relevant functionary
to which the recommendation of the Commission applies
in accordance
with applicable provincial legislation in so far as the consideration
of the recommendation does not relate to the
recognition or removal
of a king or queen in terms of section 9, 9A or 10.”
[23] It is
therefore evident that the issues before this Court cannot be
disposed of without the indulgence of the Premier
as the one who made
the decision which may be subject to review in these proceedings.
E
ven
if paragraph 4 of the prayers in the notice of motion would be
amended taking into account the fourth respondent’s notice
of
intention to amend its notice of motion filed on 06 September 2018
that would not change anything.
Therefore
to say that the Premier has no
locus
standi
in these proceedings cannot stand.
[24]
Lentshikang
argues
that the Commission called upon interested parties to make
representations and by so doing was performing a
quasi-judicial
and/or administrative function as alluded to earlier. This,
according to him, suggests that the said recommendations were
reviewable in terms of Rule 53 of the Uniform Rules of Court
alternatively, by considering the representations from other parties
its conduct would amount to an administrative decision under the
auspices of
Promotion of Administrative Justice Act 3 of 2000
and
therefore reviewable.
[25] For
Lentshikang to suggest that the Commission was performing a
quasi-judicial
function and therefore its decision is
reviewable is absurd. That is so because section 25 of the
Framework Act provides
that the Commission operates nationally in
plenary and provincially in committees and has authority to
investigate and make recommendations
on any traditional leadership
dispute and claim contemplated in subsection (2).
[26]
Rule 53 of the Uniform Rules of Court provides:
“
Reviews
(1)
Save
where any other law provides, all proceedings to bring under review
the
decision or proceedings
of any inferior court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions shall
be by way of notice of motion directed and delivered by the party
seeking to review such decision or proceedings to the magistrate,
presiding officer or chairperson of the court, tribunal or board or
to the officer, as the case may be, and to all other parties
affected-
(a)
Calling
upon such persons to show cause why
such
decision or proceedings
should not be reviewed and corrected or set aside…” My
emphasis
[27]
Clearly ‘
to investigate and make recommendations’
cannot be a decision subject to review. The Commission’s
mandate is to call for submissions or representations from
various
parties on the information placed before it before finalising the
recommendations thereby observing the audi alteram partem
rule
.
Evidently, the orders sought by the fourth respondent in his
counter-application are impossible in terms of Rule 53 because
the
second respondent can only make recommendations and not decisions.
[28] In
his notice of motion Lentshikang also referred to the Moroni Family
and cited them as “
The Moroni
Family Representatives
”
without any clarification as who this is and whether or not they have
a right to sue and be sued. It is also clear
that these people
have an interest in the matter taking into account the orders he
seeks.
[29] Rule 17(4) (b) of the
Uniform Rules of Court provides:
“
(4)
Every summons shall set forth
(a)…the
surname and first names or initials of the defendant by which the
defendant is known to the plaintiff, the defendant’s
residence
or place of business and, where known, the defendant’s
occupation and employment address and, if the defendant
is sued in
any representative capacity, such capacity; and
(b)
The full names, gender (if the plaintiff is a natural person) and
occupation and the residence or place of business of the plaintiff,
and if the plaintiff sues in a representative capacity, such
capacity.”
See
also
Bassett
v Platt
1954 (1) SA 264
(N).
[30] In the instant case the
citation of the Moroni Family Representatives clearly does not accord
with Rule 17.
[31] In my view, Lentshikang’s
counter-application has to fail and the Premier’s application
in terms of Rule
30(2) (b) has to succeed with costs.
In
the circumstances I grant the following order
1.
The
fourth respondent’s (Seaboy Lentshikang’s) notice of
motion issued and filed on 20 September 2017 is declared an
irregular
step as contemplated in Rule 30(2) (b) of the Uniform Rules of Court
and is set aside.
2.
The
fourth respondent’s review application is declared an irregular
step as contemplated in Rule 30(2) (b) of the Uniform
Rules of Court
and is set aside.
3.
The
fourth respondent is ordered to pay costs of the application on a
scale as between party and party.
BM PAKATI
JUDGE-NORTHERN CAPE
DIVISION, KIMBERLEY
On
Behalf of the 1
st
Applicant : Adv
K Nondwango
Instructed
by: STATE
ATTORNEY
On
Behalf of the 4
th
Respondent: Adv W Strydom
Instructed
by: HUGO
MATHEWSON & OOSTHUIZEN
[1]
The
Traditional Leadership and Governance Framework Act, 41 of 2003
.
[2]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at p477 para [20] and [22]
[3]
The Northern Cape Leadership Governance and House
of Traditional Leaders
Act
,
Gazette No. 1156 of 04 December 2007