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[2018] ZALMPPHC 4
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Seleka Royal Family and Another v Premier of Limpopo Province and Others (2507/2016) [2018] ZALMPPHC 4 (8 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2507/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
8/2/2018
In
the matter between:
SELEKA
ROYAL
FAMILY
1
ST
PLAINTIFF
SELEKA
SA MOTLHASEDIROYAL
COUNCIL
2
ND
PLAINTIFF
and
THE
PREMIER OF LIMPOPO
PROVINCE
1
ST
DEFENDANT
HOUSE
OF TRADITIONAL LEADERS
(LIMPOPO
PROVINCE)
2
ND
DEFENDANT
MEMBERS
OF THE EXECUTIVE
COUNCIL
3
RD
DEFENDANT
GOVERMENCE,
HUMAN SETTLEMENT AND
TRADITIONAL
AFFAIRS (LIMPOPO PROVINCE)
ACTING
CHIEF PHETOGO DAVID
SELEKA
4
TH
DEFENDANT
JUDGMENT
M.G. PHATUDI J
[1]
INTRODUCTION
1.1
This matter found its origin as motion
proceedings launched in Gauteng Division, Pretoria under Case No
64467/2014. The matter was
by agreement subsequently transferred to
this Division for adjudication as a special trial action, it being
found by its predecessor
to have material disputes of fact which
could not be resolved on paper.
1.2
After several unnecessary postponements, mainly
at the instance of the fourth Respondent and his different legal
representatives
since 27 September 2016, the matter was finally
heard, though on intervals, on 27 September 2016. The action is
solely defended
by Fourth Defendant. The First Second and Third
Defendants did not strenuously contest the action as they probably
have no direct
and substantial interest in the dispute. Needless to
say, they were merely joined in the action as nominal defendants. The
fourth
Defendant was then assisted by legal counsel, adv. Masipa when
the matter was commenced with.
1.3
The
Plaintiffs in the main seek relief for the removal, alternatively the
withdrawal of the Fourth Defendant's recognition as Acting
Senior
Traditional Leader (acting kgosi) of Ga-Seleka traditional community.
The relevant recognition certificate has been issued
on 16 September
2006 in favour of the First Defendant by the First Defendant in terms
of section 15(2) (a) of the Limpopo Traditional
Leadership and
Institutions Act 2005
[1]
, ("the
Act") and ancillary relief.
[2]
Grounds for Removal:
In
order to establish its claim, the plaintiffs led evidence through its
witnesses. I shall refer to and survey the evidence briefly
it
unfolded.
2.1
The evidence of
Ms Tebogo
Dorcas Seleka
covered a brief history and
genealogical succession structure of the Seleka dynasty. Her
grandfather Rotere Mamane Seleka married
two customary wives, with
Dorcus Lehitlo Monemudi as a senior wife. Out of this union, two
males were born, namely, David Radibaki
and Zacharia Tompi Seleka.
Her status was that of a candle wife and she was on marriage
transferred from chief Langas's royal house.
2.2
She testified- further that the Fourth Defendant
Phetogo David, Seleka son of David Radibaki Seleka was identified as
acting chief
(kgosi) during 2007 at which occasion she was present.
2.3
The witness
was referred to the contents of a royal family resolution
[2]
,
a hand written document whose signatories (28) is attached thereto.
The witness indicated that the purpose of the said resolution
was to
"appoint" the Fourth Defendant born of Queen Kekana as a
"seed-raiser" , and, furthermore to "take
initiative
in marrying Mmasetshaba from Ga-Malome in terms of their tradition
and custom..."
2.4
She also testified that despite the
aforementioned resolution, the Fourth Defendant has to date failed or
refused to marry a candle
wife contrary to the wishes of the inner
circle. She stated as a reason for his refusal that he has already
married his common
law wife and found himself constrained not to wed
a candle wife.
2.5
According to the witness, the Fourth Defendant's
conduct since his recommended "appointment" to act as a
regent or seed-raiser,
he was plainly recalcitrant to the interests
of the royal family and the traditional council of Ga-Seleka. His
misconduct led to
a petition dated 17 May 2014 setting out grounds
for the removal of the fourth defendant as a regents who then was
already formally
recognized as such by the First defendant.
2.6
The
Petition document
[3]
allege
several grounds which according to the witness are sufficiently
weighty to constitute grounds for his removal as acting
kgosi
.
"The
Petition is captioned "Notice of removal Royal Acting Chief
Phetogo David Seleka Royal/Council/Seleka sa Motlhasedi
Royal
Council"
2.7
Some of the grievances raised in the petition, as
confirmed by the witness ranged from desertion from the royal family,
He undermines
the authority of the royal family, and custom and
tradition obtaining at Ga-Seleka, thereby bringing the first
plaintiff chieftaincy
in to disrepute. This he illustrated by
introducing his friends who are not part of a core customary
structure of the royal family
to run the administrative affairs in
its stead. On 14 March 2014 he introduced his friends at the
Department of Mineral Resources,
Limpopo, with a view to secure
mineral rights professing to be members of plaintiff. He displays
propensity of violent conduct
e.g assaulting fellow royalists e.g Mr
Dipuo Seleka, Nthapeleng Seleka, Boedile Seleka and Mr Mmakata, to
the disruption of the
royal family/council meetings including failure
to attend tribal meetings (kgotla)
[3]
The witness further testified that since the submission of the
Petition document to offices of the First, Second and Third defendant
during May 2014, no decisive action was taken to execute the
plaintiff's resolution for Fourth defendant's removal as acting
chief.
[4]
After her evidence-in chief, Advocate Masipa proceeded with cross
examination which sought to negative the witness evidence.
[5]
It was put to the witness that the Fourth defendant's wife, Poncho
Anna Seleka is regarded as a candle wife for Seleka traditional
community as he married her with tribal dowry.
[6]
At the end of cross examination, the matter was adjourned to 23
January 2017 for further evidence. On the 23 January 2017, the
matter
could not proceed as the Fourth Defendants defaulted on grounds of
alleged ailment. Not only that, new counsel for the First,
Second and
Third Defendant introduced himself for the first time. Another new
counsel, Mr Ramaila also stepped in and sought a
further postponement
as the Fourth Defendant was desirous to employ Senior Counsel, who on
that day was already engaged elsewhere.
For these reasons, the matter
was again remanded to 04 April 2017. Again, the matter could not
proceed as scheduled on 04 April
2017. The reason advanced for a
further postponement was that the parties are "locked up in
settlement negotiations"
[4]
The matter was then postponed
sine
die.
[7]
The matter was re-called on 22 December 2017. Present at the hearing
were plaintiffs' counsel of record, the Fourth Defendant
who appeared
in person, and there was no appearance for the First, Second and
Third Defendants, despite a proper notice of set
down been served.
[8]
Before the matter could resume, the Fourth, Defendant again sought a
further postponement of the hearing as his erstwhile attorneys
Mamabolo and associates withdrew as attorneys of record following a
notice served on 13 December 2017 on the plaintiffs 'attorneys.
As
matter stand, he should have ordinarily known about his attorneys
withdrawal some 6 days prior to the hearing, and as a reasonable
man
in his position, and given the history of the inordinate delays on
his part in the matter, the Fourth Defendant should have
engaged a
substitute set of attorneys in good time, if he demonstrated respect
to the court. Because of the unreasonable delays
in the matter,
mainly at his own stance, the court ruled that it would not be
unconstitutional to deny him a further remand. His
application
therefore failed.
[9]
The court directed him to listen attentively to the evidence as
presented and that he be accorded an opportunity to cross-examine
the
witnesses and where necessary to contradict their version with his
own version. The Fourth Defendant accordingly remained in
attendance
as the proceedings unfolded.
[10]
The next witness,
Dipuo Joseph Seleka,
testified. He stated that the Fourth
Defendant is his nephew from his paternal side. They both are
resident in Ga-Seleka. He confirmed
that a petition was directed to
office of the Premier, the First Defendant, to remove the Fourth
Defendant as regent. It was issued
by the plaintiff. He also
mentioned that the dispute against the Fourth Defendant was over
mining issues. This was discussed in
community hall. While on the way
home, the Fourth Defendant threatened him with assault. He attempted
to hit him with a fist and
he also hurled a stone at him.
[11]
Cross-examined by the Fourth Defendant, he denied ever threatening to
assault the witness as alleged. He contented that he
was at all
material times in the tribal office, not anywhere near the hall where
a meeting was held. He put it to the witness that
he in fact went to
him while the witness stood near the fence outside the hall. I must
point that his version at this stage is
an indication of some contact
that he has had with the witness.
[12]
The next witness was
Madidimala Thousand Seleka.
He stated
that the Fourth Defendant is his paternal uncle. He too confirmed
that a Petition for the removal of the Fourth Defendant
had been
directed to the office of the First Defendant. He associated himself
with the grounds for his removal. His reasons were
inter alia
that:-
(a)
While acting as a chief, he was un-corporative.
(b)
He not only undermined the royal family, but has
no respect for its authority;
(c)
He also once attacked him.
[13]
This witness was also cross-examined by the Fourth Defendant. He,
instead of challenging or disputing the evidence against
him, he
resorted to attack the witness genealogical standing in the royal
family. He intimated that the dispute in the community
is around the
mining issues as he refused to sign for certain mining documents. He
denied threats of assault.
[14]
Captain
Mathetja Jacobeth Rakobela
also
took a stance. She gave evidence about a certain police docket
wherein one D.S Mamakata was a complainant against the fourth
Defendant. The charge was however later withdrawn. As the quality of
the evidence was not damaging the Fourth Defendant he did
not subject
the witness to any cross examination.
[15]
The last witness was
Boedile Godfrey Seleka.
He stated that he knew the Fourth Defendant
as his uncle's son. He facilitated his recommendation as an acting
chief. He said both
the late Ms Alice and Mr. Z.T. Seleka were not
keen to "appoint" him for an acting stint because of his
wayward conduct.
The witness confirmed that he too was one of the
signatories to the Petition referred to.
He
confirmed that since his "appointment", the Fourth
Defendant has since deserted the royal kraal. He nominated his
friends, who are non members of the royal family to co-manage
the council's affairs. He was also man handled by him in a meeting
held on 14 July 2014. He was threatened with assault. He brought
Seleka chieftaincy into disrepute. Crucial among the misconduct
he
committed was failure or refusal on his part as a "seed-raiser"
to marry a candle wife as dictated by custom after
his "appointment".
[16]
It was on a semblance of the foregoing considerations that the royal
family resolved to have him removed from his acting position.
[17]
I must remark that this witness was not cross-examined as the Fourth
Respondent left the court room without leave of court.
This is
unprecedented conduct amounting to contempt of court as he was
previously warned to participate in the proceedings. This
is
particularly so that, he submitted to the hearing as he had already
cross-examined two previous witnesses. There was nothing
therefore to
gainsay this witness' testimony.
[18]
With the evidence so far presented, the plaintiff's case was closed.
[19]
The legal issue is whether is there sufficient evidence of misconduct
against the Fourth Defendant to justify his removal from
his acting
positions as
kgosi.
LEGAL
FRAMEWORK:
[20]
Section 13 of Act 6 of 2005 provides that:
RELIEF OF ROYA
DUTIES:
Section13 (1):
"Relief
of royal duties shall be on the grounds of-
(a)........................
(b).............
...........
(c)........................
(d)
a
transgression of
a
customary rule or principle that warrants
removal; or
(e)
Persistent negligence or indolence in the performance of the
functions of his/her office"
[21]
In the present case, the following factors are common cause, namely"-
21.1.
The Fourth Defendant has been previously
"appointed" or identified as a "seed-raiser" by
the royal family on
23 August 2005 and also required to marry a
candle wife thereafter. This identification process was, to my mind,
analogous to the
provisions of Section 15 of the Act regarding the
recognition of acting Traditional Leaders. His appointment was for
him to act
as a Senior Traditional Leader. (acting kgosi)
21.2.
While acting in that capacity, he was required by
custom to become a "seed-raiser" as resolved by the royal
family.
21.3.
Acting on the decision of the royal family and
following the prevailing legal precepts, the First Defendant issued a
certificate
of recognition as Acting Kgosi to the Fourth Defendant
effective from 16 September 2006.
21.4.
The said incumbent held on to that acting stint
until the same royal family in a Petition dated 17 May 2014, which
was accompanied
by several grievances was lodged at the offices of
the First to Third Defendants including the Premier's office. The
Petition was
signed by no fewer than 34 royal members. The effect of
the Petition called for the Fourth Defendant's removal from his
acting
position.
21.5.
The First
Defendant in a letter to one G.P Seleka dated 23 May 2014,
acknowledged receipt of the plaintiff s notice of removal as
sought
on 17 May 2014
[5]
[22]
No decision despite a lengthy effluxion of time since the notice of
removal alluded to, has been taken by the First Defendant
and no
reasons were advanced for the inaction.
[23]
In matters of this nature, it is generally accepted that the
plaintiff bear the onus to found its evidence on a balance of
probabilities. In this instance, the court heard oral testimony of no
fewer than four witnesses, of all which, except the evidence
of
Captain Rakobela, corroborated each other in many material respects.
Prominent, is the general misconduct of the Fourth Respondent
as
contained in the Petition filed. The contents thereof were, by and
large, confirmed under oath.
[24]
While he had the privilege in court to refute the damming evidence
adduced against him, the Fourth Defendant failed to provide
a version
controverting the version put against him. He later for some
inexplicable reasons left the court room without leave.
As a result,
he is deemed to have divested himself of challenging or disputing the
adverse evidence against him, particularly in
respect of the last
witnesses called.
[25]
The totality of the evidence as it were, particular transgressions he
allegedly committed, failure or refusal by him to marry
a candle
wife, when appointed a "seed-raiser" is, in my view, no
more than a "transgression of a customary rule
or principle"
that warrants his removal within the meaning of Section 13(1) of the
Act.
[26]
Furthermore, the fact that he deserted the royal kraal and rendered
the traditional council dysfunctional through his recalcitrant
behavior, plunged the plaintiff's administration into disarray. If
failure to attend ordinary "kgoro" meetings, when
notified
to do so does not constitute "negligence or indolence" in
the performance of his duties as acting chief (kgosi)
then then he
ought to be pardoned, if necessary for his con duct, so to speak.
[27]
The kind of conduct complaint of is in my opinion quiet grave to call
for his removal. This observation is fortified by the
evidence of the
plaintiff s evidence which, in any event, remain uncontroverted. I
have no reason not to accept as weighty the
evidence presented. Their
evidence is found not only reliable, but persuasive to justify that
the Fourth Defendant be impeached
from his position.
[28]
Accordingly, where it has been decided that he be removed from his
acting stint, the First Defendant is by law enjoined to
withdraw the
recognition certificate from the date removal. The First Defendant
has no discretion whether or not to fulfil the
wishes of the royal
family. In this case, undoubtedly, the plaintiffs have long informed
the First Defendant of their decision.
An acknowledgement of receipt
thereof speaks for itself as already shown.
[29]
Similarly, the First Defendant is obliged to publish a notice
detailing the particulars of the removed incumbent in the Provincial
Gazette, and in addition;
[30]
To inform the affected royal family, and the incumbent, concerned and
the provincial house of traditional leaders, of the said
removal.
See
section 13(3) of the Act regulating the position in this instance.
[31]
Counsel for the plaintiff submitted that the foregoing measures find
no application in respect of acting traditional leaders
in terms of
Section 15 of the Act. I find myself at variance with this
submission. A person appointed whether a regent or acting
Senior
Traditional Leader, perform in either of those capacities "royal
duties" associated with it. If reasonable cause
exists that fall
within the purview of section 13(1) nothing precludes the royal
family to impeach the person concerned. In this
instance, the Fourth
Defendant was recommended for appointment in terms of section 15 of
the Act.
[32]
The decision by the office of the First Defendant being a purely
administrative decision is, on a proper case made out, reviewable
if
there is an abdication of power or duty. As already shown, Section 13
referred to is peremptory.
[33]
This court is therefore at large to order compliance with the said
provisions and to prompt the First Defendant to act in the
manner the
Act prescribes he/she must act or perform.
[34]
Section 8(i)(ii) read with 8(2)(a) of Act 3 of 2000
[6]
is instructive in instances such as these to provide remedies in
proceedings for judicial review.
[35]
In the circumstances I grant relief as follows:-
ORDER
(a)
That, the First Defendant is ordered to withdraw
the certificate of recognition issued to the Fourth Defendant
(Phetogo David Seleka).
(b)
That, the First Defendant must publish a notice
with the particulars of the Fourth Defendant in the Provincial
Government Gazette
soon after his removal from his position as acting
Kgosi.
(c)
That, the Fourth Defendant is interdicted from
assaulting or committing threats of assault and hurling insults on
members of the
plaintiff and/or any member of Ga-Seleka Community;
(d)
Further that, the Fourth Defendant is ordered to
return to the plaintiffs all books of account, financial records,
cheque books
and similar legal instruments in his possession
immediately upon the granting of this order and upon his removal.
(e)
Further that, the Fourth Defendant is personally
ordered to pay the costs of suit and costs for employment of counsel.
______________________
M.G
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
Date
heard: 22 December 2017
Date
Delivered: 08 February 2018
[1]
Act 6 of 2005,as amended
[2]
Vol I, (Discovered documents)P63, Paginated index) Resolution date
23.08.2005
[3]
Annexture "MTS6 "Vol I, Page 11 - 15,
[4]
Record, P52, line 15-20
[5]
Vol I, p 19 (Discovered documents)
[6]
Promotion of administrative Justice ("PAJA")