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[2018] ZALMPPHC 68
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Dikgale and Others v Premier, Limpopo Province and Others (2422/2018) [2018] ZALMPPHC 68 (22 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2422/2018
In
the matter between:
MANEE
MARGARET
DIKGALE 1
ST
APPLICANT
SEHLOMOLA
EDWARD
DIKGALE 2
ND
APPLICANT
and
PREMIER,
LIMPOPO
PROVINCE
1
ST
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL FOR 2
ND
RESPONDENT
CO-OPEARATIVE
GOVERNANCE, HUMAN SETTLEMENT
AND
TRADITIONAL AFFAIRS
SOLOMON
MALESELA
DIKGALE 3
RD
RESPONDENT
DIKGALE
TRADITIONAL
COUNCIL 4
TH
RESPONDENT
LIMPOPO
HOUSE OF TRADITIONAL LEADERSHIP 5
TH
RESPONDENT
CAPRICORN
HOUSE OF TRADITIONAL LEADERSHIP 6
TH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The First and Second Applicants herein are mother and son
respectively. On the 17 April 2018 the Applicants instituted
proceedings
in which they sought the following order:
First,
the review and setting aside of the appointment of the Third
Respondent as a Senior traditional leader of the Dikgale Traditional
Community and an order declaring the certificates which appoint the
Third Respondent as Kgoshi of Dikgale Community null and void.
Second,
an order directing the First Respondent to appoint the Second
Applicant as Senior traditional leader of the Dikgale Community,
alternatively
,
an
order directing the Third Respondent as the Senior Mokgomana to
convene a meeting of the royal house for the purpose of
identification
and appointment of the Senior traditional leader and
the report to this Court.
[2]
In essence the Applicants impugn the historical appointment of the
Third Respondent, SOLOMON MALESELA DIKGALE, as Kgoshi of
the Dikgale
Traditional Community. They seek order in terms of the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”)
to:
2.1.
review and set aside the appointment;
2.2.
remove the Third Respondent as Kgoshi;
2.3.
appoint the Second Applicant as Kgoshi of the Traditional Community.
[3]
The application is opposed by the First, Second, Third and Fourth
Respondents who, over and above opposing the merits of the
application, have raised the following points of law relating to:
3.1.
non-joinder of the Royal Family;
3.2.
the applicability of PAJA and the Provincial Legislation and
3.3.
unreasonably delay in seeking the review.
[4]
The application concerns a dispute of leadership within the
Traditional Community of Ga – Dikgale. The Applicants contend
that the position belongs to the Second Applicant in terms of the
applicable customs and cultural practices of the Community. On
the
other hand the Respondents contend that the appointment of the
incumbent leader (Third Respondent) was decided and announced
by the
Royal Family in July 1995, which decision culminated in the Premier
of the Limpopo Province issuing a certificate of recognition
/
appointment later that year.
The
Respondents contend further that the communication by the Royal
Family of the appointment of the Third Respondent as Kgoshi
is within
the knowledge of the Applicants, or they ought reasonably to have
become aware of it during 1995. Thus, under PAJA and
/ or the common
law they are non-suited to bring this application.
FACTUAL
BACKROUND
[5]
The Third Respondent is the son of the late RANTI EDWARD DIKGALE who
was the Kgoshi of the Dikgale Traditional Community from
1960 until
1982 when he died. He is the eldest male issue of the ten children of
the late Kgoshi Ranti Edward Dikgale. At the time
of the death of his
father, the Third Respondent was still young and at school to take
over the chieftainship. As a result one
WILLIAM LEKOTA DIKGALE, the
First Applicant’s late husband and father to the Second
Applicant, was approached by the Royal
Family as a regent in the
Third Respondent’s place and stead until the latter comes of
age.
[6]
The Third Respondent states that the appointment of William Dikgale
to act as Regent was not done in terms of the
customary
laws and custom of the Dikgale Traditional Community. It was more
motivated by the fact that some members of the community
feared him
and they did not want to be seen to be opposing him. When William
Dikgale took over the regency of the Dikgale traditional
leadership
he started doing things his own way, he was disrespectful to Bakgoma
and Bakgomana and flouted every customary law and
custom that was
applicable to the Dikgale Traditional Community.
[7]
Specifically, when William Dikgale had to take a wife, being the
First Applicant, he collected money from the traditional community
under the pretext that he was going to marry a woman from Lekota
family which family is recognised by the Dikgale Royal Family
for
purpose of marrying a candle wife (mmasechaba) but instead of going
to the Lekota family he decided to go and marry the First
Applicant
who was unknown to the community. The First Applicant was married
from Makgaleng family of the Nchabeleng Community in
Apel, Sekhukhune
during September 1984.
[8]
After his marriage William Dikgale was approached and confronted by
members of the Lekota family, in particular one Manyoro
Lekota and
upon so approached he decided to organize people to kill Lekota after
which he was charged for murder. That was the
beginning of his
problems with the community which culminated in him being chased out
of the community. In 1995 he was then removed
from his acting
position as Kgoshi by the Bakgoma and Bakgomana. His removal was
approved by Cabinet of the then Northern Province
Provincial
Government. Such letter of approval of his removal was addressed to
him and attached to the Third Respondent’s
answering affidavit
and marked Annexure “MSD2”.
[9]
On or about 31 July 1995 in a meeting of the Dikgale Royal Family
held at Moshate, Dikgale, the Royal Family identified the
Third
Respondent as the Kgoshi to take over the traditional leadership of
the Dikgale Traditional Community. The Third Respondent
states in his
answering affidavit that during this meeting the First Applicant was
present at Moshate as she resides there. The
First Applicant was
aware of the decision and was informed of same by the Bakgoma and
Bakgomana as a member of the family.
On
29 September 1995 the Office of the Premier, Northern Province issued
a certificate of recognition and appointment of the Third
Respondent
as Kgoshi of the Dikgale traditional community. A copy of the
certificate of recognition is attached to the answering
affidavit and
marked Annexure “MSD4”. A certificate of appointment
dated 16 August 1995 duly signed by the then Premier
of Limpopo, N A
Ramatlhodi is attached as Annexure “MSD5” to the Third
Respondent’s answering affidavit. The
First Applicant was
present at Moshate and never raised any objrctions to the appointment
and recognition of the Third Respondent.
The Second Applicant, who
was born in 1987 was still a child of 8 years at that time.
[10]
Pursuant to the Third Respondent’s appointment and recognition
as Kgoshi he was introduced to the community as its Kgoshi
and a
ceremony was then arranged for his inauguration as a Kgoshi of the
Dikgale traditional community. The ceremony took place
on the 6 June
1996. The ceremony took place at Moshate and everyone within the
traditional community of Dikgale was invited. The
First Applicant was
once more present at Moshate during the ceremony. There were
officials from the government including the Premier
of the then
Northern Province, now Limpopo, and other dignitaries.
[11]
During September 2017 the Third Respondent started receiving letters
from the First Applicant’s attorneys in which they
advised that
their client has written to the Premier for the Premier to review the
Third Respondent’s appointment. They alleged
that the Third
Respondent is an acting Kgoshi and as such his position should be
reviewed in terms of section 15(3) of the Limpopo
Traditional
Leadership and Institutions Act 6 of 2005. The Third Respondent
responded to the attorneys’ letter and advised
them that his
appointment is not an acting appointment but that of a Kgoshi.
[12]
It is significant and also appropriate to put it on record that the
Applicants did not file any replying affidavit to the Respondents’
answering affidavits. The factual background of this case as outlined
above is set out in the Third Respondent’s answering
affidavit.
There is nothing to gainsay the version of the Third Respondent as
outlined above. The version of the Third Respondent
is undisputed.
The case will therefore be decided factually on the version of the
Third Respondent. Suffice to say that the version
of the Applicants
has been denied by the Third Respondent in so far as their facts are
not common cause.
POINTS
OF LAW
IN
LIMINE
Non-joinder
of the Royal Family
[13]
A decision to identify a Senior Traditional Leader (Kgoshi) rests
with, in terms of section 12 of the Limpopo Traditional Leadership
and Institutions Act, 2005, the Royal Family of a particular
traditional community. Likewise, when a person who is holding a
position
of traditional leader is replaced the Royal Family must, as
a matter of law and established culture and traditions within the
Province
of Limpopo, be involved. The Premier cannot act to impose an
appointment of a traditional leader on any Royal Family. In the
circumstances,
the Royal Family of Dikgale Traditional Community has
a direct and substantial interest in the final decision to be made by
this
Court. It is therefore imperative that the Royal Family be cited
as a party in these proceedings.
[14]
Joinder of a party may be demanded where the other party(s) has a
direct and substantial interest in the issues involved and
the order
which the Court might make (
See United Watch & Diamond Co v
Disa Hotels
1972 (4) SA 409
(CPD) at 415E – F; Burger v Rand
Water Board
2007 (1) SA 30
(SCA) para 7).
The Applicants cited
the Traditional Council in these proceedings. This is unnecessary. By
failing to join the Royal Family, the
Applicants have committed a
non-joinder of a party having substantial interest in the outcome of
this matter.
The
applicability of the Provincial and National Legislation
[15]
The provisions of section 12 of the Limpopo Traditional Leadership
and Institutions Act 6 of 2005 (“the Provincial Act”)
which provides for the appointment of traditional leaders, are
anchored on the applicable provisions of the Traditional Leadership
and Governance Framework Act 41 of 2003 (“the Framework Act”).
Section 21 of the Framework Act provides for the dispute
and claim
resolution mechanism relating to traditional leadership and the
applicable customary law. The section established a specialised
forum
for resolution of disputes relating to traditional leadership, namely
the Commission on Traditional Leadership Disputes and
Claims.
[16]
Where there is a dispute as to the chieftainship the Framework Act
provides for a mechanism for raising such disputes. It embraces
the
provisions of section 25 and 26 of the Framework Act. In
Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes and
Claims and Others
2015 (3) BCLR 268
(CC)
the Constitutional Court
dealt with and defined the role of the Commission and stated that:
“
[68]
The Commission on Traditional Leadership Disputes and Claims was
established by
section 22(1)
of the
Traditional Leadership and
Governance Framework Act. It
was a specially constituted body which
had authority to decide on any traditional leadership dispute and
claim contemplated in
section 25(2) of the Framework Act. This
included cases where there is doubt as to whether a kingship…was
established in
accordance with customary law and customs. The
Commission could institute investigations on request from interested
parties or
of its own accord.”
The
Applicants in this case should have taken their dispute of
chieftainship to the Commission. There is no explanation why the
dispute was not raised as soon as the Second Applicant attained the
age of majority. The Applicants have not, before embarking
on this
application, taken advantage of the provisions of the Framework Act
to challenge the appointment of the Third Respondent
as the
traditional leader of the Dikgale Traditional Community.
The
Applicability of the Promotion of Administrative Justice Act 3 of
2000 (PAJA)
[17]
This application is premised on the provisions of PAJA. PAJA came
into effect in 2000. It is a trite principle of law that
legislation
does not apply retrospectively unless the legislature has clearly
expressed a contrary intention. PAJA has no express
provisions that
it operates retrospectively. The impugned decision in the present
case was taken in 1995, long before the coming
into effect of PAJA.
In
Associated
Institutions Pension Fund & Others v Van Zyl & Others
2005
(2) SA 302
(SCA) para 46
,
it was held that since PAJA only came into operation on 30 November
2000, after the impugned decision in that case was taken,
the
validity of the defence of unreasonable delay had to be considered
with reference to common law principles.
[18]
I accordingly make a finding that the provisions of PAJA are not
applicable to the present dispute. The review application
was brought
on a wrong basis.
Unreasonable
delay in seeking the Review
[19]
It is desirable and in the public interest that finality be reached
within a reasonable time, in respect of judicial and administrative
decisions and litigation in general. It was a longstanding rule that
Courts have the power, as part of their inherent jurisdiction
to
regulate their own proceedings, to refuse a review application if the
aggrieved party has been guilty of unreasonable delay
in initiating
the proceedings. The rationale for the long-standing rule is twofold:
First, the failure to bring a review within
a reasonable time may
cause prejudice to the Respondent. Secondly, there is a public
interest element in the finality of administrative
decisions and the
exercise of administrative functions.
See
Associated
Institutions Pension Fund & Others v Van Zyl & Others, supra
at para 46 – 47.
[20]
In
Van
Zyl
para 48, it was stated that the reasonableness or unreasonableness of
a delay is dependent on the facts and circumstances of each
case. It
is a matter of factual enquiry upon which a value judgment is called
for in the light of all the relevant circumstances,
including any
explanation that is offered for the delay. It is an investigation
into the facts of the matter in order to determine
whether, in all
the circumstances of the case, the delay was reasonable.
[21]
In the present case the Applicants have not put forward any
explanation for bringing this application only recently during
April
2018 when the impugned decision was taken in July 1995 when the
Bakgoma and Bakgomana identified the Third Respondent as
Kgoshi or
when he was inaugurated as Kgoshi at a ceremony held at Moshate in
June 1996.
[22]
There is a long-standing rule of our common law that proceedings for
judicial review of the decisions of public bodies must
be instituted
without undue delay. If there has been an unreasonable delay, a Court
may in the exercise of its inherent power to
regulate its own
proceedings, refuse to determine the matter. In this manner an
invalid decision may, in a sense, be validated.
The reasons for the
rule are said to be twofold. First, it is desirable and important
that finality should be reached within reasonable
time in relation to
judicial and administrative decisions or acts. It can be contrary to
the administration of justice and the
public interest to allow such
decisions or acts to be set aside after an unreasonable long time has
elapsed. The second reason
is the inherent potential for prejudice
involved in failure to bring a review within a reasonable time, not
only to a party affected
by the decision but also to the effective
functioning of the public body in question and to third parties who
may have arranged
their affairs in accordance with the decision. For
this reason proof of actual prejudice to the Respondent is not a
precondition
for refusing to entertain review proceedings by reason
of undue delay. The extent of the prejudice is, however, a
relevant
consideration and may be decisive when the delay has been
relatively slight. The application of the rule requires answering of
two questions, namely:
(a)
was there an unreasonable delay?
(b)
if so, should the unreasonable delay be condoned?
[23]
Although the first question implies a value judgment, it entails a
factual
enquiry.
The Second question involves the exercise of judicial discretion.
Both questions must of course be answered in light of
the facts and
circumstances of the particular case. (See
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)
at 38H – 42D; Setsokosane Busdiens (Edms) Bpk v Voorsitter,
Nationale Vervoerkommissie, en ‘n Ander
1986 (2) SA 57
(A) at
86A – G; Associated Institutions Pension Fund & Others v
Van Zyl & Others
2005 (2) SA 302
(SCA) at paras 46 – 48;
Gqwetha v Transkei Development Corporation Limited 2006 (3) All SA
(245) paras 22 – 24
).
[24]
Whether there has been an unreasonable delay depends largely on the
extent of the delay and the acceptability of the explanation
tendered, if any. In this regard it may sometimes not be sufficient
to simply claim ignorance of the decision. In
Associated
Institutions Pension Fund
Brand JA said the following at para
[51]:
“
In
my view there is indeed a duty on applicants not to take an
indifferent attitude but rather to take all reasonable steps
available
to them to investigate the reviewability of administrative
decisions adversely affecting them as soon as they are aware of the
decision. These considerations are, in my view, also reflected in
both s 7(1) of PAJA and in the provisions of
s 12(3)
of the
Prescription Act 68 of 1969
. Whether the applicants in a particular
case have taken all reasonable steps available to them in compliance
with this duty, will
depend on the facts and circumstances of each
case. (Compare
Drennan
Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA)
).”
In
my view the same considerations are applicable to the question of
knowledge of the decision. It should be legally insufficient
for a
litigant to rely on ignorance of a decision in circumstances where
the existence of the decision would have become known
by the taking
of reasonable steps in the circumstances. The Court should therefore
determine whether the existence of a decision
would have been
uncovered by the taking of reasonable steps in the particular
circumstances and the period of delay should be reckoned
from that
date, event or period.
[25]
The factors relevant to the exercise of the discretion to
nevertheless overlook an unreasonable delay, include the extent of
the delay, the explanation therefor, any prejudice to the Respondent
and / or third parties and the nature of the impugned decision.
[26]
In
Wolgroeiers
,
supra the Court found that the Appellant had unreasonably delayed the
institution of the review. The Court also refused to exercise
its
discretion to overlook the unreasonable delay, even though it found
that the review would have succeeded.
Wolgroeiers
therefore
provides clear authority that the prospect of anything meaningful
being achieved by the Applicant in the event of the
review
application succeeding is a relevant consideration in the exercise of
the discretion to condone the unreasonable delay of
review
proceedings.
[27]
In
Gqwetha
there was a divergence of opinion on the question
whether, apart from the consideration mentioned in
Wolgroeiers,
the prospect of success in the review application itself was a
relevant consideration. Mpati DP, with whom Farlam JA concurred, held
at paras [18] and [19] that it clearly was. Nugent JA, with
whom Navsa JA and Van Heerden JA concurred, was of the opinion
at
paras [34] and [35] that the prospect of the challenged decision
being set aside is not a material consideration in the absence
of an
evaluation of what the consequences of setting the decision aside are
likely to be. However, the issue has since been settled
by the
Constitutional Court. In
Khumalo and Another v MEC for Education,
KwaZulu-Natal
2014 (5) SA 579
CC
the following was said on behalf
of the majority at para [57]:
“
An
additional consideration in overlooking an unreasonable delay lies in
the nature of the impugned decision. In my view this requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.”
(See
also
Beweging
vir Christelik-Volkseie Onderwys and Others v Minister of Education
and Others
2012 (2) All SA 462
(SCA) at para [47]
)
[28]
Applying the legal principles outlined in the authorities referred to
above to the facts of the present case, I come to a conclusion
that
the Applicants’ delay in bringing this application is
inordinate and thus unreasonable. Same cannot be condoned. In
the
circumstances the Applicants are non-suited to bring the review
application.
THE
MERITS
[29]
On the undisputed facts that have been canvassed above and as set out
in the Third Respondent’s answering affidavit,
it has been
established that the Third Respondent is the rightful Kgoshi of the
Dikgale Traditional Community. In their founding
affidavits the
Applicants failed to show that the First Applicant is the candle wife
(mmasechaba) and that the Second Applicant,
as the son to the late
acting Kgoshi William Dikgale is the rightful heir to the
chieftainship.
[30]
As already stated above, the Applicants failed to file any replying
affidavit to gainsay crucial facts contained in the Third
Respondent’s answering affidavit. The following facts are
contained in the Third Respondent’s answering affidavit and
are
undisputed:
“
24.1.
The contents of this paragraph are denied. The First Applicant was
married by the then Acting Chief of Dikgale Community Mr
William
Dikgale
,
who married her from Makgaleng family. The First Applicant’s
marriage did not comply with our customs for her to can be
a
Mmasechaba. As such the First Applicant was never recognised by the
Dikgale community and her marriage was never celebrated in
terms of
the customs of Dikgale community.
24.2.
The First Applicant is not a Mmasechaba and this is proven by the
fact that she never participated in any activity and
let alone in the
meetings of the Royal Family. It is custom that a Mmasechaba must
participate in the decision making of the Royal
Family, but this has
never been the case with the First Applicant.
24.3.
The First Applicant is alleging to be a Mmasechaba but yet she is not
even aware of the activities taking place in the
Royal Family. She
mentioned elsewhere in her supplementary founding affidavit that she
only became aware of my appointment as Kgoshi
of Dikgale Community on
the 15
th
of June 2018. If indeed the First Applicant was
the Mmasechaba she could have known of my appointment as Kgoshi of
Dikgale Community
a long time ago.
25.2.
Her marriage with the former Acting Kgoshi William Dikgale was never
nullified for a simple reason that it never had
any effect on the
Chieftainship of Dikgale Community. The First Applicant was never
married to be a Kgoshi bearer. In terms of
our custom a Mmasechaba
may only be married from the Lekota family and the First Applicant is
from Makgaleng Family.”
CONCLUSION
[31]
In the light of the conclusive evidence before me, I make the
following findings:
31.1.
The Third Respondent, Malesela Solomon Dikgale is the only son
amongst the ten children of the late Kgoshi Ranti Edward
Dikgale.
Upon the death of his father the Third Respondent was identified by
the Royal Family as the successor to the traditional
leadership.
However, due to the fact that he was still young, the late William
Dikgale was nominated to act as Kgoshi of the Dikgale
Traditional
Community until the Third Respondent comes of age.
31.2.
In terms of the customary law and customs and statutorily in terms of
section 12 of the Limpopo Traditional Leadership and
Institutions Act
6 of 2005 it is the prerogative of the Bakgoma and Bakgomana (the
Royal Family) to decide what must happen to
the traditional
leadership position of a traditional community.
31.3.
During 1995 and due to his acts of misconduct the late William
Dikgale was chased out of the traditional community and removed
from
his traditional leadership and from his acting position. The Second
Applicant, being the son of William Dikgale never had
any entitlement
to the traditional leadership and was never earmarked as such.
31.4.
The Third Respondent, is the eldest son of the late Kgoshi Ranti
Edward Dikgale and as such, was duly and correctly identified
by the
Royal Family as a successor to the chieftainship of the Dikgale
Traditional Community.
[32]
The Applicants have not made out a case for the relief they seek. In
the premises the application is dismissed with costs including
costs
of Senior Counsel where employed.
_________________________
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on: 14 November 2018
Judgment
delivered on: 22 November 2018
For
the Applicants: Mr M E Phooko
Moloko
Phooko Attorneys
For
the 1
st
& 2
nd
Respondents: Adv. M Makoti
Adv.
Moshoeu
Instructed
by: State Attorney
For
the 3
rd
Respondent: Adv. Z Z Matebese SC
Instructed
by: Maboku Mangena Attorneys