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[2017] ZALMPPHC 3
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Netshimbupfe and Others v Mualudi and Others (HCA02/2016) [2017] ZALMPPHC 3 (3 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
APPEAL
CASE NO:HCA02/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
3/3/2017
In
the matter between:
NETSHIMBUPFE
FUNZANI
ERNEST :FIRST
APPELLANT
MEMBERS
OF NETSHIMBUPFE ROYAL FAMILY :SECOND
APPELLANT
And
MUALUDI
VHANGANI
CATHCART :FIRST
RESPONDENT
CHAIRPERSON
OF THE HOUSE OF
THE
TRADITIONAL
LEADERS :SECOND
RESPONDENT
MEC
OF COGHSTA LIMPOPO PROVINCE :THIRD
RESPONDENT
THE
PREMIER OF LIMPOPO PROVINCE :FOURTH
RESPONDENT
NETSHIMBUPFE
MULATEDZI :FIFTH
RESPONDENT
APPEAL
JUDGEMENT
MULLER
J:
[1]
The erstwhile Council of National Unity for the Republic of Venda,
[1]
established the Mushasha Commission in 1990 in terms of the
provisions of the Commission Act, Act 8 of 1947.
[2]
The commission was tasked to inquire into the vhosi affairs in the
then Republic of Venda.
[3]
[2]
The upshot of the commission of inquiry was that the appointment of
the incumbent khosi Tshisevhe Edward Netshimbupfe
[4]
was set aside from 30 September 1991. In his stead khosi Munyadziwa
Netshimbupfe
[5]
was appointed as
traditional leader of the Tshimbupfe community. Khosi Munyadziwa
reigned until his death in 2013. The first appellant
is the eldest
son of khosi Tshisevhe and the fifth respondent is the eldest son of
khosi Munyadziwa. The fifth respondent was identified
at a meeting of
a royal council as the successor to the deceased khosi.
Simultaneously, the first appellant was also identified
as the
successor to the deceased khosi by a royal family. Both names were
forwarded to the premier of the Limpopo province for
recognition.
[3]
The main relief originally claimed was that condonation be granted
for the late filing of the application and that the decision
of the
chairman of the Council of National Unity of the government of Venda
to appoint a commission of inquiry be reviewed and
set aside as being
invalid and in contravention of the provisions of section 4 of the
Vhosi Administration Act, 14 of 1986 of the
Republic of Venda.
Although couched as substantive relief the appellants also claimed
for an order that the decision of the commission
be set aside on the
basis that it acted
ultra vires
the aforementioned Act.
[4].
However, on 16 April 2015 the appellants abandoned the main relief
originally claimed in the notice of motion.
[6]
The appellants nevertheless persisted with the alternative claim that
the decision taken on 25 July 2014 by the Tshimbupfe royal
council in
terms whereof the fifth respondent was identified as the successor to
the throne of the Tshimbupfe traditional leadership
be reviewed and
set aside. And, in the alternative, they also seek a
declarator
that the identification of the fifth respondent by the said royal
council is
ultra
vires
and inconsistent with the provisions of the Traditional Leadership
and Governance Framework Act.
[7]
Finally, the appellants seek an order that the first appellant be
declared the rightful and lawful successor to the vacant traditional
leadership position.
[5]
The appellants, in view of the amendment to the relief claimed in the
amended notice of motion, accept by necessary implication
that the
commission of inquiry was lawfully established by the previous
government. They also accept the lawfulness of the appointment
of
khosi Munyadziwa. It must be emphasised that khosi Munyadziwa is not
the successor of the dethroned khosi Tshisevhe. A successor
to khosi
Munyadziwa has to be appointed in terms of the customs of the
Tshimbupfe traditional community.
[6]
The appellants, on appeal argued, on the one hand, that the
identification of the fifth respondent as the successor to the late
khosi was not done in accordance with the prevailing custom of the
Tshimbupfe community, and, on the other, that the royal council
who
identified the fifth respondent as khosi was a defunct structure
which was created by the repealed Vhosi Administration Act
of the
Republic of Venda who had no authority in law to make a valid
identification.
[7]
Makgoba J (as he then was) dismissed the application with costs. He
came to the conclusion that the first appellant is not entitled
to
succeed him. He found, in essence, that the fifth respondent who is
the eldest son of the late khosi was properly and correctly
identified in terms of the customs of the tribe by the royal
family.
[8]
[8]
He also dismissed a subsequent application for leave to appeal with
costs. This appeal is with leave granted by the Supreme
Court Appeal.
[9]
The Framework Act gives effect to section 211 and 212 of the
Constitution. It was passed to recognise traditional communities
and
to provide a statutory framework within which traditional leadership
is identified and recognized by both national as well
as the
provincial authorities of the provinces where the traditional
communities are situated.
[9]
[10]
Section 11 of the Framework Act states:
“
Recognition
of senior traditional leaders, headmen or headwomen
(1)
Whenever the position of 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 applicable customary law -
(i)
identify a person who qualifies in terms of customary law to assume
the position in question, after taking into account whether
any of
the grounds referred to in section I2(l)(a), (b) and (d) apply to
that person; and
(ii)
through the relevant customary structure, inform the Premier of the
province concerned of the particulars of the person so
identified to
fill the position and of the reasons for the identification of that
person; and
(b)
the Premier concerned must, subject to subsection (3), recognise the
person so identified by the royal family in accordance
with
provincial legislation as senior traditional leader, headman or
headwoman, as the case may be.
(2)
(a) The provincial legislation referred to in subsection (1)(b) must
at least provide for -
(i)
a notice in the
Provincial Gazette
recognising the
person identified as senior traditional leader, headman or headwoman
in terms of subsection (1);
(ii)
a certificate of recognition to be issued to the identified person;
and
(iii)
the relevant provincial house of traditional leaders to be informed
of the recognition of a senior traditional leader, headman
or
headwoman.
(b)
Provincial legislation may also provide for -
(i)
the election or appointment of a headman or headwoman in terms of
customary law and customs; and
(ii)
consultation by the Premier with the traditional council concerned
where the position of a senior traditional leader, headman
or
headwoman is to be filled.
(3)
Where there is evidence or an allegation that the identification of a
person referred to in subsection (1) was not done in accordance
with
customary law, customs or processes, the Premier -
(a)
may refer the matter to the relevant provincial house of traditional
leaders for its recommendation; 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.
(4)
Where the matter which has been referred back to the royal family for
reconsideration and resolution in terms of subsection
(3) 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.”
[11]The
Limpopo Traditional Leadership and Institutions Act
[10]
was enacted by the province of Limpopo as envisaged by the
Constitution and the Framework Act and deals, in similar terms in
Chapter
4, with the identification of traditional leaders by
traditional communities and the recognition of such traditional
leaders by
the premier of the province.
[11]
[12]
Both Acts define “the royal family” to mean:
“
the core customary
institution or structure consisting of 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.”
And a “customary
institution or structure” is defined in terms of both Acts as:
“
those institutions
or structures established in terms of customary law.”
[13]
It is clear from a plain reading of both Acts that the royal family
is a statutorily entrenched institution or structure recognized
by
custom and that customary law applies to the process to be adopted
and followed for the identification of the successor of a
khosi. The
court must, therefore, direct its attention to the customs and
traditions of the
Tshimbupfe
community in terms whereof a successor of a khosi is identified.
[14]
In
Alexkor
Ltd & another v The Richtersveld Community & others
[12]
the Constitutional Court described indigenous law as a: „[S]ystem
of law that was known to the community, practised and passed
on from
generation to generation. It is a system of law that has its own
values and norms. Throughout its history it has evolved
and developed
to meet the changing needs of the community . . .”
[15]
The procedure followed by the royal family to identify a successor
has to be in accordance with the prevailing custom of the
Tshimbupfe
community on the date the successor is identified and must, in
addition, also accord with the relevant provisions of
the Limpopo
Act.
[13]
[16]
The appellants contend that the royal family consists of the children
of the late khosi Tshivhase. The respondents denied this
contention
and assert that the royal family consists of the children of the
reigning khosi Munyadziwa. It is argued by the respondents
that the
royal council and the royal family are the same institution and that
a reference to royal council is a reference to the
royal family.
What is clear is that there is a fundamental difference between
the parties who the royal family is and who
the members of the royal
family are. The difference of opinion has its roots, so it appears,
at the removal of khosi Tshisevhe
by the Venda Government.
[17]
There cannot be two different customary structures or entities in
existence at the same time within that community that was
the royal
family. Because of the view I take of the case, it is unnecessary to
decide whether there is a difference between the
royal council and
the royal family or whether the royal family consists of the family
and children of the late khosi Tshisevhe
or khosi Munyadziwa. I
refrain, therefore, from making any decision in this regard.
[18]
Two successors have been identified, the names of which have been
submitted to the premier of the Limpopo province for recognition
by
him, in accordance with the Limpopo Act. The conundrum is twofold.
One, the two successors were identified at meetings of different
royal families and on different occasions. Two, only one successor
may be identified and subsequently recognised by the premier.
[14]
It is the task of the royal family to identify a single person who is
qualified in terms of customary law to assume the position
in
question and must notify the premier through the relevant customary
structure of the particulars of the specific person so
identified.
[15]
Section 12 as
a whole envisaged a single person to be identified by the royal
family, and that the person that has been identified,
be recognized
by the premier of the province as the traditional leader.
[19]
It is common cause between the parties that in terms of the custom of
the Tshimbupfe community a successor must be identified
by the
khadzi
[16]
and the ndumi.
[17]
They are members of the royal family. They play an important role in
the identification of a successor. It is,
inter
alia
,
their duty to be present at a specially convened meeting of the royal
family to identify a successor of a khosi that has passed
on, even
where it is obvious who the successor is. The identification of the
successor by the khadzi and the ndumi is an indispensable
part of the
identification process to be valid. Neither the khadzi nor the ndumi
attended the meeting where the fifth respondent
was identified as the
successor to the deceased khosi. However, they were present at a
meeting where the first applicant was identified
as successor.
[20]
The submission made on behalf of the respondents was that they were
invited to the meeting but they have deliberately elected
not to
attend with the result that a successor was identified by the meeting
in their absence.
[21]
Both legal representives were invited by the court to suggest what
the position in customary law would be if a khadzi or ndumi
declined
to attend a meeting where they are obliged to perform their
respective duties in accordance with custom. They were unable
to
recall that it has ever happened before and were unsure if provision
for such an eventuality in the custom of the community
exists.
[22]
Of course, custom may be proved by a party who is relying on a
particular custom, if the rules of the custom are not readily
ascertainable with sufficient certainty so that judicial notice may
be taken thereof.
[18]
In
casu
,
the parties are in agreement that it is the custom that the khadzi
and ndumi must be present at a meeting of the royal family
convened
to identify a successor to a traditional leader. That being the
custom, the identification of the fifth respondent at
a meeting of
the royal family without the khadzi and ndumi being present and
without their identification of the fifth respondent
for whatever
reason, is not in accordance with the custom of the community.
[23]
The respondents are unable to rely on an existing customary rule that
empowered the royal family to identify a successor in
the absence of
the khadzi and ndumi where they have elected not to participate in
such a meeting. It is, therefore, not open to
this court to conjure
up an alternative procedure if there is none in terms of customary
law. Nor can their absence simply be condoned.
[24]
Makgoba J erred, with respect, in finding that the identification of
the fifth respondent was regular and that it must follow
that he will
succeed his late father because he is in any event the eldest son of
the deceased khosi, born from a dzekizo wife.
That may well be true,
but is not the question the learned judge was called upon to decide.
This case does not deal with succession.
It deals with the legality
of the identification of a successor to the late khosi by the royal
family. The learned judge also did
not consider the effect of the
provisions of section 12(2) of the Limpopo Act.
[25]
The names of the two identified successors that have been identified
have been forwarded to the premier, who has not yet recognised
anyone
in terms of the Limpopo Act.
[19]
Section 12(2) of the Limpopo Act clothed the premier with a
discretion in instances where there is evidence or an allegation that
the identification of a person was not done in accordance with
customary law to:- (a) refer the matter to the provincial house
of
traditional leaders and the local house of traditional leaders for
their recommendation; or (b) he/she may refuse to issue a
certificate
of recognition; and (c) must refer the matter back to the royal
family for reconsideration and resolution where a certificate
of
recognition has been refused. If a matter has been referred back to
the royal family for reconsideration and resolution and
if the
dispute has been resolved, the premier must recognize the person
identified, if the premier is satisfied that the matter
has been
resolved in accordance with customary law.
[20]
[26]
Section 12(2) of the Limpopo Act provides a mechanism whereby any
dispute as to the eligibility of a person identified may
be resolved
internally. The dispute between the parties can best be addressed by
the premier who is the designated person in terms
of the legislation
to take the appropriate steps to resolve the dispute internally
before he/she is called upon to recognize the
identified person as a
traditional leader. Provision is made for institutions that are best
suited to deal with the current dispute.
They are endowed with an
intimate knowledge of the customs of the
Tshimbupfe
community
to bring about a resolution of the dispute once and for all. It is in
the interest of the members of the relevant community
to have clarity
who their traditional leader is, and it is in the interests of
justice to have stability within the larger community.
[27]
The premier acknowledged receipt of a letter the contents of which is
not attached to the papers relating to the chieftainship.
I accept
that the premier was made aware of the existing dispute. In any
event, the mere fact that two persons were identified
is evidence
that the identification of these persons is not in accordance with
customary law or custom and not in accordance with
the precepts of
the section 12. Until such time that the premier has made a decision,
the dispute remains an internal matter for
which an internal remedy
is available.
[21]
In my view
the internal remedy provided for must first be exhausted before this
court may be approached for relief.
[28]
The Constitutional Court recently held that the internal remedies
provided for in section 21 of the Framework Act do not apply
to
disputes between the premier and traditional communities.
[22]
The dispute in the present case has not yet reached that stage. The
premier has not made a decision yet to recognize any of the
persons
identified or to invoke any of the provisions of section 12(2) of the
Limpopo Act. However, a considerable period of time
has lapsed since
the dispute was brought to the attention of the premier.
[23]
There cannot be any doubt that the premier is duty bound to make a
decision and that it is in the interests of the community that
it is
done without any further delay.
[29]
In the result, the appeal must fail, albeit for different reasons set
out herein. There is also no reason why costs should
not follow the
result.
ORDER
1.
The appeal is dismissed with
costs.
_________________
G.C
MULLER J
JUDGE
OF THE HIGH COURT: LIMPOPO DIVISION POLOKWANE
I
agree
__________________
M.G
PHATUDI J
JUDGE
OF THE HIGH COURT: LIMPOPO DIVISION POLOKWANE
I
agree
________________
M.F
KGANYAGO J
JUDGE
OF THE HIGH COURT: LIMPOPO DIVISION POLOKWANE
[1]
Under the chairmanship of brigadier-general Ramushwana.
[2]
In terms of proclamation 10 of 1990 published in Government Gazette
of the Republic of the Venda Vol 18 No 71 dated 18 May 1990.
[3]
Proclamation 10 of 1990.
[4]
Hereinafter referred to as khosi Tshisevhe.
[5]
Hereinafter referred to a khosi Munyadziwa
[6]
In terms of an amended notice of motion.
[7]
Act 41 of 2003 (Hereinafter the Framework Act).
[8]
“Only a male child birthed by a great wife qualifies to be an
heir to the headman. In order to qualify as a“dzekiso”
wife, a woman must have been married whilst a virgin, must be
royalty and the bride wealth that married her should have come
from
the father of the headman” See
Tshivulana
Royal Family v Neshivhulana
(CCT48/16) [2016] ZACC47 (14 December 2016) p3 (fn 3).
[9]
See
Sigcau
v President of the Republic of South Africa
2013 (9) BCLR 1091
(CC) at para 4.
[10]
Act 6 of 2005 came into force 1 April 2006. (Hereinafter the Limpopo
Act.)
[11]
“
12
Recognition
of senior traditional leader, headman or headwoman
(1)
Whenever a position of a senior traditional leader, headman or head
woman 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, headman 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, headman or headwoman.
(2)
Where there is evidence or an allegation that the identification of
a person referred to in subsection (1) was not done 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]
[2003] ZACC 18
;
2004 (5) SA 460
(CC) par 53 and 57.
[13]
A decision by the royal family to recognize a traditional leader
under section 12(1)(a) is reviewable under the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). “PAJA defines
administrative action as a decision or failure to take a decision
that adversely affects the rights of any person, which has a direct,
external legal effect. This includes “action that
has the
capacity to affect legal rights” per Mogoeng CJ in
Viking
Pony Africa Pumps t/a Tricon Africa v Hidro-Tech Systems (Pty) Ltd
2011
(1) SA 327
(CC) at par 37. See also
Nesengani
and Others v Chairperson of the Davhana Royal Council and Others
(204/2008) [2016] ZALPPTHC (19 September 2016) par 57. Also
Mphephu
and Another
v
Mphephu-Ramabulana and Others
;
Limpopo High Court (Case no 773/2012) (30 January 2017) par 77.”
[14]
Section 12(1)(b)(i).
[15]
Section 12(1)(a)(i).
[16]
The khadzi is a sister of the khosi. The khadzi and the ndumi
must jointly agree who the successor is. The khadzi is also
entrusted with ceremonial duties.
[17]
The ndumi is the younger brother of the khosi. See
Nesengani
and Others v Chairperson of the Davhana Royal Council and Others
supra
at
par 4.3-4.6.
[18]
Section 1 of the Law of Evidence Amendment Act, Act 45 of 1988. Also
Maisela
v Kgolane
NO
2000 (2) SA 370
(T) at 376H.
[19]
Section 12(b)(i)-(iii). A person is recognized by the premier if the
premier is satisfied that the identification of the person
by the
royal family was done in accordance with custom. The premier must
then recognize the person by notice published in the
gazette and the
premier must at the same time issue a certificate of recognition to
that person and inform the provincial house
of traditional leaders
of the recognition.
[20]
Section 12(3).
[21]
Koyabe
and Others v Minister for Home Affairs and Others
2010 (4) SA 327
(CC) at par 34-40
.
Nichol and Another v Registrar of Pension Funds and Others
2008 (1) SA 383
(SCA) at par 15-18.
[22]
Tshivhulana
Royal Family v Netshihulana
supra
.
[23]
A decision should be made within a reasonable time.