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[2017] ZALMPPHC 43
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Mothapo and Another v Mothapo and Others (1247/2014) [2017] ZALMPPHC 43 (13 December 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 1247 / 2014
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
12/12/2017
In
the matter between:
KGOSHIGADI
MADIPOANE REFILOE MOREMADI MOTHAPO
1
ST
PLAINTIFF
BAKGAGA-BA-MOTHAPO
TRADITIONAL COUNCIL
2
ND
PLAINTIFF
and
TSHEPO
MATHULE MOTHAPO & 43 OTHERS
1
ST
–44
TH
DEFENDANTS
JUDGMENT
SIKHWARI
AJ
[1]
The first and second plaintiffs have brought an action against the
first to forty-fourth defendants in terms of combined summons,
with
particulars of claim, dated 20 August 2014. The defendants raised two
special pleas; to
wit
lack
of
locus
standi
on the part of the first plaintiff and lack of
locus
standi
on the part of the second plaintiff. The matter is set down for
determination of the two special pleas only.
[2]
The plaintiffs led evidence of two witnesses. The first witness to
testify is
Kgoshigadi
Madipoane Moremadi Mothapo, the first plaintiff. Briefly, her
evidence was that she is the senior traditional leader or
Kgoshigadi
of the Bakgaga-Ba-Mothapo traditional community. She was appointed by
the then Lebowa government on 16 November 1987 in terms of
Section
2(8) of the Black Administration Act 38 of 1927. She is approaching
the court as a first plaintiff on her capacity as the
Kgoshigadi
on
her community. She was further given mandate by the second plaintiff
in terms of the resolution to act on their behalf. At one
time the
father of the first defendant disputed her appointment as
Kgoshigadi
and
referred the dispute to Ralushai Commission; and later to Kgatla
Commission on traditional leadership disputes. The dispute
was
finalized in her favour in August 2017.
[3]
During cross-examination, the first plaintiff conceded that actually
she was appointed as an Acting
Kgoshigadi
or acting senior traditional leader in 1987; and she is still acting
as such. She testified under cross-examination that she was
never
issued with the certificate of appointment since the coming into
operation of
the Limpopo
Traditional Leadership and Institutions Act 6 of 2005
(“Act
6 of 2005”). She stated that she is familiar with Act 6 of 2005
as well as the
Traditional
Leadership and Governance Framework Act 41 of 2003
.
[4]
She conceded that her acting position was never subjected to review
by the Premier at the end of every 12 months after the coming
into
operation of Act 6 of 2005. She testified further that in 2014 when
the proceedings herein were launched she was the only
women member of
the second plaintiff. However, recently they have tried to comply
with provisions of section 4 of Act 6 of 2005
by including some women
in the traditional council. She testified that she is not aware if
the Premier has given recognition to
the second plaintiff by way of
issuing a notice in the Gazette as envisaged in section 4(9) of Act 6
of 2005. All she knows is
that names were submitted to the Premier.
She further conceded that in the traditional council of the second
plaintiff it is only
herself and one Lesetja Herman Modiba who are
senior traditional leader and traditional leader respectively; but
the rest of the
members are neither traditional leaders nor senior
traditional leaders.
[5]
The second witness to testify for the plaintiffs was Mabontshi Ramson
Mothapo. Briefly, his evidence was that he is a chairman
of the
bakgomana
which is a council of close male royal family members. He is also a
member of the second plaintiff. He testified that the second
plaintiff started following the provisions of section 4 of Act 6 of
2005 during 2015. At the time of the instituting of this action,
the
said prescripts for composition of the traditional council were not
followed.
[6]
He confirmed the version of the first plaintiff regarding the review
of the position of the first plaintiff by the Premier and
the
submission of names of elected councilors of the second plaintiff. He
stated further under re-examination that the second plaintiff
was
created by custom of the Bakgaga-Ba-Mothapo community and is not
created nor answerable to Act 6 of 2005.
[7]
Matters of a
ppointments
of acting
kgoshigadi
(or
acting senior traditional leader) are regulated in terms of Section
15(1) of the Limpopo Traditional Leadership and Institutions
Act 6 of
2005 which provides that:
“
15
Recognition of acting traditional leaders
(1) A royal family
may, in accordance with the customary law of the traditional
community concerned, identify a suitable person
who must be a member
of the royal family to act as a king, queen, senior traditional
leader, headman or headwoman, as the case
may be, where–
(a) a successor to the
position of a king, queen, senior traditional leader,
headman or headwoman has not been
identified by the royal family
concerned
in terms of this Act;
(b) the identification
of a successor to the position of a king, queen, senior traditional
leader, headman or headwoman is being
considered and resolved in
terms of this Act; or
(c) a king, queen,
senior traditional leader, headman or headwoman, as the case may be,
would be absent from his or her area of
jurisdiction under
circumstances other than those provided for in section 16(1) and for
a period of more than six months for–
(i) the treatment of
illness;
(ii) study purposes;
or
(iii) any other lawful
purpose.
(2) The premier must,
upon appointment of an acting leader in terms of subsection (1)–
(a) issue a
certificate of appointment; and
(b) inform the
provincial house of traditional leaders and the relevant
local house of traditional leaders.
(3) The Premier must
review the appointment of the acting traditional leader every 12
months.
(4) The Premier must
upon request by the royal family remove any person appointed in an
acting capacity.”
[8] Although the first
applicant was appointed an Acting
Kgoshigadi
in terms of section 2(8) of the now repealed Black Administration Act
38 of 1927 on 16 November 1987, her appointment is regulated
in terms
of Limpopo Traditional Leadership and Institutions Act 6 of 2005 as
from 1 April 2006 in terms of section 33(3) of the
latter Act which
reads that “
any person
who, immediately before the commencement of this Act, had been
appointed and was still recognised as a regent, or had
been appointed
in an acting capacity or as a deputy, is deemed to have been
recognized or appointed as such in terms of the relevant
provision of
this Act.”
[9]
Section 28(2)
of the
Traditional Leadership and Governance Framework Act 41 of 2003
which
came into operation on 24 September 2004 also provides that “
a
person who, immediately before the commencement of this Act, had been
appointed and was still recognised as a regent, or had been
appointed
in an acting capacity or as a deputy, is deemed to have been
recognized or appointed as such in terms of section 13,
14 or 15, as
the case may be.”
[10] In the case of
Mulaudzi v Head Office:
Vuwani Magistrate Office and Others (291 / 2015) [2017] ZALMPTHC 3
(21 February 2017)
at
paragraph 22, Phatudi J stated that
“
a
regent is recognised to hold office only for a period of 12 months
(see section 14(1)(c)). The applicant failed to produce a certificate
of recognition issued by the Premier of Limpopo either as at 2015 or
2016”
.
[11] The position of a
regent is similar to that of an Acting
Kgoshigadi
or acting senior traditional leader when it comes to review of the
said appointment after every 12 months. Section 14(1)(c) of
Act 6 of
2005 which regulates appointment of regents states that “
the
Premier must review the recognition of a regent every 12 months.”
[12] Section 14(2)(
b
)
of the
Traditional Leadership and Governance Framework Act 41 of 2003
states that:
“
14(2) An acting
appointment in terms of subsection (1) must be made in accordance
with provincial legislation, which legislation
must at least provide
for–
(a) …
(b) a review of the
acting appointment on a regular basis;”
[13] The first review of
the first plaintiff’s acting position should have taken place
in April 2007; and thereafter, at the
end of every subsequent 12
months’ period. Plaintiffs do not deny that the first
plaintiff’s appointment was never
reviewed since the coming
into operation of Act 6 of 2005 on 1 April 2006. However, the
plaintiffs tried to shift the blame to
the Premier for not doing his
duty of reviewing her appointment. The plaintiffs have a duty to
cause the Premier to effect the
review or process same; if need be,
by way of compelling him through the court process in view of the
fact that section 15(3) of
Act 6 of 2005 is phrased in peremptory
terms.
[14] The first plaintiff
is relying on the letter dated 15 May 2013 as implied ratification of
her acting appointment by the Premier.
The said letter is from the
Limpopo Province’s Department of Co-operative Governance, Human
Settlement & Traditional
Affairs (“COGHSTA”) and is
addressed to Bakgaga-Ba-Mothapo traditional community. The said
letter is confirming that
the first plaintiff is the
Kgoshigadi
of Bakgaga-Ba-Mothapo
Traditional Council with effect from 11 August 1987. It is not
uncommon for the Premier to communicate through
COGHSTA in matters of
traditional affairs.
[15] Act 6 of 2005 does
not prescribe the manner in which the review must be done. It does
not provide for the publication of the
notice or review process in
the government Gazette. I do not think that the Premier is expected
to issue a new certificate of recognition
of an acting appointment
every 12 months if there is no change of the incumbent. In my view,
it would suffice if the Premier may
simply issue a document
confirming that the incumbent’s appointment was reviewed in
terms of section 15(3) of Act 6 of 2005
and he or she will continue
to act as a king, queen, senior traditional leader, traditional
leader or regent or as the case may
be.
[16] The trite test to
determine
locus standi
is that
where
surrounding circumstances clearly confirm the existence of authority,
the minimum of formal evidence is required to prove
locus
standi
(See
Erasmus: “Superior Court Practice”, Service 1 of 2016, at
page D1-186).
In this case, the surrounding circumstances are that the first
plaintiff was appointed an Acting
Kgoshigadi
in 1987, and she has been reigning as such. Both parties submitted
that a challenge to her authority which was initiated by first
defendant’s father and later prosecuted further by the first
defendant was finalized in August 2017 in favour of the first
plaintiff. The existence of the COGHSTA letter has weakened the
special plea as against the first plaintiff. Consequently, I will
apply the minimum evidence test to determine
locus
standi
of
the first plaintiff.
[17]
It is trite law that the onus is on the first plaintiff to allege and
prove her
locus
standi
.
In the case of
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
(A)
at
page 575H-I, Nestadt J (as he then was) stated that
“
in
accordance with the general rule that it is for the party instituting
proceedings to allege and prove that he has
locus
standi
,
the
onus
of establishing that issue rests upon the applicant.”
[18]
In the case of
Mall
(Cape) (Pty) Ltd v Merino Ko-operasie Bpk
1957 (2) SA 347
(C) at page
352A
,
Watermeyer J stated that
“
each
case must be considered on its own merits and the Court must decide
whether enough has been placed before it to warrant the
conclusion
that it is the applicant which is litigating and not some
unauthorized person on its behalf. Where, as in the present
case, the
respondent has offered no evidence at all to suggest that the
applicant is not properly before the Court, then I consider
that a
minimum of evidence will be required from applicant (
cf
.
Parson v. Barkly Est Municipality, supra; Thelma Court Flats (Pty)
Ltd v. McSwigin
,
1954 (3) SA 457
(C)).”
[19]
The court should guard against the abuse of the special plea of lack
of
locus
standi
as a tactic was just a tactic to frustrate and delay the resolution
of the real dispute between the parties, especially where there
is no
prejudice against the party raising the special plea. In the case of
Tattersall
and Another v Nedcor Bank Ltd
[1995] ZASCA 30
;
1995 (3) SA 222
(AD)
at
page 228I-J, where Nestadt JA stated that
“
it
would seem that the denial was what may be called a tactical one. The
tactic must fail. This is a case in which the approach
adopted in
Mall’s
case (at 352B), namely that when the challenge to authority is a weak
one, a minimum of evidence will suffice, applies.”
[20] In my view, the
letter from COGHSTA is indicative that as on the 11 August 2013, the
Premier still recognized the first plaintiff
as the Acting
Kgoshigadi
.
The COGHSTA letter, with its formal defects, constitute sufficient
minimum evidence to establish
locus
standi
on the part of the
first plaintiff. Unlike in the
Mulaudzi
matter, in this case the
letter is backed up by certificate issued in 1987.
[21] The second ground
for challenging locus standi of the first plaintiff was that she is
not a member of the Mothapo royal family.
It was stated in the
special plea that she is a commoner from Mphahlele family. She has no
royal lineage to qualify her to act
as a
Kgoshigadi
of the Bakgaga-Ba-Mothapo
traditional community. No evidence was led to back this ground. I
indicated to the parties from the onset
that I am not sitting as a
court of review in terms of rule 53 or PAJA to review the 1987 acting
appointment of the appointment
of the first plaintiff. I cannot take
this ground any further as it was not substantiated. I take it as
abandoned.
[22] In my view, the
special plea relating to lack of
locus
standi
against the first
plaintiff has to fail. The main action may proceed to trial on merits
with the first plaintiff standing as the
only plaintiff.
[23] As regards the lack
of
locus standi
of the second plaintiff, the court was referred to the provisions of
section 4 of Act 6 of 2005 which states that:
“
4.
Traditional Councils
(1) The Premier must,
when recognising traditional community in terms of section 3(4), and
with due regard to the needs of the traditional
community concerned,
determine the number councillors for its traditional council to be
established in terms of subsection (2):
Provided that the total
number must not exceed 30.
(2) A traditional
community recognized by the Premier in terms of this Act must within
30 days after the traditional community has
been informed accordingly
in terms section 3(4) establish a traditional council for that
traditional community, consisting of men
and women who in accordance
with the customary law of the traditional community concerned are
recognised as councillors as well
as other members of the traditional
community concerned elected democratically.
(3) The senior
traditional leader of the traditional community referred to in
subsection (2), must convene a meeting of all adult
members of the
traditional community for the purposes of election of members of the
traditional council, by giving reasonable notice
of such meeting in
accordance with the custom of such traditional community. The senior
traditional leader or his or her designate
presides over such
meeting.
(4) The elected
members of the traditional council must as far as possible be
sufficiently representative of the wards of the traditional
community
concerned.
(5) 60 percent of the
members of the traditional council must consist of traditional
leaders and members of the traditional community
selected by the
senior traditional leader and the other 40 percent must consist of
elected members.
(6) (a) At least a
third of the members of the traditional council must be
women, unless the Premier
(i) is satisfied upon
certification by the senior traditional leader
concerned
that there is a sufficient number of women; and
(ii) determines
the lower threshold of women to be included in the
particular traditional council.
(b) The senior
traditional leader must, after the required number of
men
and the available number of women have been elected, if
satisfied that there is
insufficient number of women to fill the
remainder
of vacancies required to be filled by women, adjourn
the
elections and refer the matter to the Premier in writing for the
Premier’s directive in terms
of paragraph (a).
(c) The senior
traditional leader must, upon receipt of the Premier’s
directive referred to in paragraph
(b) resume the elections within
14
days of such receipt in accordance with such directive.
(d) The Premier must
review the threshold of women to be elected
into
traditional council prior to the election of the new traditional
council.
(7) Election of
members of the traditional council must be done by way of voting in
the manner determined by the Premier or any
person designated by the
Premier to oversee the elections.
(8) Particulars of
members of the traditional council and the names of the members
thereof must be submitted to the Premier in writing,
within 60 days
after the traditional council has been established in terms of
section (2).
(9) The Premier must,
upon receipt of the particulars referred to in subsection (8), if
satisfied that the provisions of the Act
have been complied with,
within 30 days recognise the traditional council by notice in the
Gazette.”
[24] On the evidence of
the plaintiffs, it became glaringly clear that there have been
several violations of the enabling Act 6
of 2005. Plaintiffs admitted
that there is only one traditional leader (Lesetja Herman Modiba) out
of 9 members of plaintiffs’
traditional council. This was a
violation of section 4(5) of Act 6 of 2005. There was a concession by
both witnesses of the plaintiffs
that the traditional council of the
plaintiffs had no women members. This was a violation of section
4(6)(a) of Act 6 of 2005.
[25] There was no sound
explanation from plaintiffs as to why they did not cause the Premier
to comply with section 4(9) of Act
6 of 2005 regarding their
recognition by way of a notice in the government Gazette. As it
stands, the Premier has not yet satisfied
himself that the
composition of the second plaintiff complies with Act 6 of 2005.
Secondly, and perhaps more importantly, the Premier
has not yet given
recognition to the plaintiffs’ traditional council. Such a
council does not exist in law.
[26] The peremptory duty
on the Premier in terms of section 4(9) of Act 6 of 2005 is the most
important one in that it constitutes
the act of giving recognition to
the traditional council. It is a certification that the Council is
compliant with the legislation.
It is an act of giving legal
existence and or legal authority on the traditional council; without
which there is no traditional
council. The failure to comply with
this requirement, irrespective of the reason thereof, is fatal
against the purported traditional
council, second plaintiff.
[27]
The defence raised in evidence by the plaintiffs that their
traditional council was created in terms of custom, and not
necessarily
Act 6 of 2005, is misplaced and lacks legal substance.
Section 33(5) of Act 6 of 2005 provides that “
a
tribal authority or tribal council that, immediately before the
commencement of this Act, existed under the provisions of any
law, is
deemed to be a traditional council established under this Act:
Provided that such traditional council must comply with
the
provisions of section 4 within one year of the commencement of this
Act.”
[28]
As stated above, the said period of one year has expired on 1 April
2007. However,
section 28(4)
of the
Traditional Leadership and
Governance Framework Act 41 of 2003
, as amended, has extended the
above period of one year to seven years. In this case it means that
the cut-off was the 23 September
2011. The plaintiffs had not yet
complied as on 21 August 2014 when the combined summons commencing
the main action was issued
as well as at the hearing of the matter on
12 December 2017.
[29]
In my view, the defendants’ special plea for lack of
locus
standi
against the second plaintiff must succeed. The second plaintiff is
not a traditional council as envisaged in
section 4
of Act 6 of 2005.
There is no documentary proof that as of now when the matter was
heard, the second plaintiff had duly complied
with the above
provisions of Act 6 of 2005.
[30]
Costs are within the judicial discretion of the presiding Judge. In
this case both parties are equally successful in that one
special
plea is dismissed and another is upheld. In the circumstances, costs
for the special pleas will be costs in the main action.
[31] I
accordingly make the following order:
1. That the special plea
for first plaintiff’s lack of
locus standi
is dismissed.
2. That the special plea
for second plaintiff’s lack of
locus standi
is upheld.
3. That costs are in the
main action.
__________________________
MS
SIKHWARI AJ
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
For Plaintiffs : Adv
JC Erasmus
Instructed by :
Rheeder Attorneys
For Defendants : Mr RE
Maesela
Instructed by :
Maesela Incorporated
Date of Hearing :
11-12 December 2017
Date of Judgment : 13
December 2017