About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2017
>>
[2017] ZALMPPHC 44
|
|
Sekhukhune and Another v Piet (4571/2017) [2017] ZALMPPHC 44 (14 December 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 4571 / 2017
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
14/12/2017
In
the matter between:
KGOSHI
KENNETH KGAGUDI
SEKHUKHUNE
1
ST
APPLICANT
SEKHUKHUNE
TRIBAL
COUNCIL
2
ND
APPLICANT
and
SENONG
MMATANYANE
PIET
RESPONDENT
JUDGMENT
SIKHWARI
AJ
[1] The applicants
obtained an interim order and rule
nisi
in this honourable
court on 23 June 2017 in the following terms:
1.
Interdicting and prohibiting the respondent, or any other person on
his behalf, from holding any meeting, gathering or any other
form of
communal get-together, within the area of jurisdiction of the 2
nd
applicant, of which the 1
st
applicant is the reigning Kgoshi, for purposes of promoting,
instigating, causing or facilitating disharmony within the community
falling under the 1
st
and 2
nd
applicants on 25 June 2017, or any other day;
2.
Interdicting the respondent, or any other person on his behalf, from
influencing the members of the community falling under the
1
st
and 2
nd
applicants against each other, or against the 1
st
applicant in any manner whatsoever, including by alleging that
members are bewitched and have fallen under evil spirits;
3.
Interdicting and prohibiting the respondent, or any person on his
behalf, from in any manner interfering in, or instructing any
person
to interfere in the executive structures of the 2
nd
applicant;
4.
The Sheriff is ordered to serve this application on the respondent
personally;
5.
Directing the respondent, or any person on his behalf, to pay costs
of this application, jointly and severally;
6.
The respondent is called upon to show cause on 20 July 2017 why this
order should not be made final.
[2]
The matter appeared before me on the return date on 15 November 2017.
I discharged the above-stated rule
nisi
and also dismissed the interdict with costs against the applicants on
party and party scale, jointly and severally with the one
paying the
other to be absolved. The applicants then filed application for leave
to appeal.
[3]
Application for lave to appeal is regulated in terms of section
17
of the
Superior Courts Act 10 of
2013
, which states that:
“
17.(1) Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that–
(a) (i) the appeal
would have a reasonable prospect of
success; or
(ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision
sought on appeal does not fall within the ambit of
section 156(2)(a)
;
and
(c) where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the real
issues between the parties.”
[4]
The present application is based on
Section 17(1)(a)(i)
of the
Superior Courts Act of 2013
which states that leave to appeal would
be granted if
the appeal
would have a reasonable prospect of success.
[5]
At the hearing of the main matter the respondent abandoned his points
in
limine
and
preferred to argue the merits of the application. One of the
abandoned point in
limine
was lack of
locus
standi
on the part of the applicants.
[6]
On merits, the applicants’ application was one of a final
interdict. It is trite law that applicants have to satisfy three
requirements of a final interdict; being
:
firstly,
the
existence of a clear right;
secondly,
the infringement of the said right and / or reasonable apprehension
of irreparable harm to the said right;
thirdly,
the absence of adequate
remedy to protect the said right
(
See
Prest CB: “The Law & Practice of Interdicts”, Juta,
1993, pages 50-51).
[7]
It is trite law that
whether applicants have a clear right or not is a matter of
substantive law; and whether that right is clearly
established is a
matter of evidence. The phrase ‘clear right’ refers to ‘a
right clearly established’.
It refers to the degree of proof
required to establish the right and should strictly not be used to
qualify the right at all (
See:
Beukes v Crous
1975 (4) SA 215
(NC) at page 219).
[8]
The applicants’ application was based on the founding affidavit
of the first applicant who stated that he is approaching
the court in
his capacity as the Acting
Kgoshi
of Marota Mohlaletsi traditional authority and Acting Paramount
Kgoshi
of Sekhukhuneland. In support thereof, the first applicant attached a
certificate of appointment dated 26 October 2000. The first
applicant
stated that his clear right is emanating from this traditional
leadership positions which he holds.
[9]
Appointment of acting
Kgoshi
is 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.”
[10]
Although the first applicant was appointed an Acting
Kgoshi
in terms of section 2(8) of the now repealed Black Administration Act
38 of 1927, his 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.”
[11]
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.”
[12]
In this case, there was no affidavit of the second applicant. There
was no resolution or any document showing that the second
applicant
has authorised the proceedings on its behalf or has mandated the
first applicant to act on its behalf or to sign affidavits
on its
behalf. Effectively, there was no evidence of the second applicant
before the court. The second applicant was effectively
not before the
court.
[13]
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”
.
[14]
The position of a regent is similar to that of an Acting
Kgoshi
or acting Paramount
Kgoshi
when it comes to review of the said appointment after every 12
months. Section 14(1)(c) of Act 6 of 2005 is which regulates
appointment
of regents states that “
the
Premier must review the recognition of a regent every 12 months.”
[15]
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;”
[16]
The applicants in this case have missed the point that the fact that
the respondent has abandoned a point in
limine
for lack of
locus standi
does not absolve the
applicants from the duty to prove the existence of a clear right as a
first requirement for a final relief
of an interdict. The court did
not decide the case on the basis of applicants’ alleged lack of
locus standi
as stated in the grounds for the application for leave to appeal.
[17]
Applicants in this application for leave to appeal do not deny that
the certificate of recognition of the first applicant was
never
reviewed by the Premier since the coming into operation of Act 6 of
2005 on 1 April 2006. The first review should have taken
place in
April 2007; and thereafter every subsequent year.
[18]
In my view, the first applicant should have caused the premier to
review his appointment as envisaged in Act 6 of 2005.
Therefore, all the prayers of the applicants’ notice of motion
cannot be granted. The first applicant has no clear right
relating to
the protection or otherwise of his purported subjects. For the
purposes of a clear right, first applicant has no subjects;
and
cannot approach court on alleged clear right which is legally
non-existent. The court cannot protect an illegitimate authority
or
right.
[19]
Applicants are shifting the blame to the Premier for failure to
conduct the review of the appointment of first applicant after
every
12 months. This is a point which is raised for the first time in the
application for leave to appeal. It was not part of
the applicants’
case. On this ground alone, it will fall because it cannot stand as a
point of appeal.
[20]
Nevertheless, I disagree with the aforesaid submission of the
applicants for shifting the blame to the Premier. Applicants
have a
duty to initiate the process. If the Premier is dragging his feet,
applicants may even approach court for relief to enforce
compliance
with the enabling legislation. If the appointment is not reviewed
after the expiry of the 12 months’ period, then
the appointment
will automatically lapse by operation of the law.
[21]
The court has discharged the rule
nisi
and dismissed the interdict on the basis that the first applicant has
no clear right worth of protection by way of a final interdict.
The
duty to prove the existence of a clear right, and all other
requirements for interdict, does not depend on the concession made
by
the other party or the failure of the other party to plead
adequately. It is a requirement of law which the court must be
satisfied
that the said requirement has been fulfilled before
granting an order for final interdict.
[22]
In his answering affidavit(s), the respondent admitted the
locus
standi
of the applicants.
However, such a concession does not extend to constitute a proof of
the existence of a clear right on a balance
of probabilities. As far
as the second applicant is concerned, it has put no version before
the court and has authorised no one
to litigate on its behalf.
[23]
The test for establishing
locus
standi in iudicio
is lower
when it is compared with the applicable test for establishing a clear
right for the purposes of a final interdict.
Locus
standi
could be established
with the minimum form of evidence. In this case, the court was not
concerned with
locus standi
but the court was concerned with the existence of a clear right.
[24]
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)).”
[25]
On the other hand, the test for establishing a clear right was stated
in the case of
Lipschitz v
Wattrus NO
1980 (1) SA 662
(TPD)
at page 673D where Myburgh J stated that
“
a
mandatory order such as that sought in prayer (2) is a form of
interdict and can only be granted if all the requisites for an
interdict have been established. One of this is a clear right. Which
means that the alleged facts, if accepted, must establish
“a
clear legal right” vesting in the applicant.”.
[26]
This places a duty and or burden and or onus on the part of the
applicants to establish a clear right to justify the granting
of the
relief sought in their notice of motion. This onus is not dependant
on the concessions, if any, made by the respondent.
An application
for a final interdict which does not establish a clear right will
still be dismissed even if it is unopposed.
[27]
During argument of the application for leave to appeal, applicants’
counsel referred the court to the case of
Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes &
Claims and Others
2015 (3) BCLR 268
(CC
)
in an attempt to establish the clear right of the applicants. First
applicant herein was the fifth respondent in the said case.
Counsel
of the applicants herein submitted that the Constitutional Court has
ruled in the said Constitutional Court case that the
first applicant
is the
Kgoshi
of the Bapedi and as such there is no more need for the certificate
of appointment or for subsequent review of his acting capacity
by the
Premier in accordance with Act 6 of 2005.
[28]
I had an opportunity of reading the said judgment and I disagree with
the above submissions of applicants’ counsel. In
my view, the
said case had to do with the dispute relating to the hose in which
the kingship of the Bapedi should rest between
the house of
descendants of Sekhukhune I and the house of descendants of Mampuru
II. The two houses have originated from the two
rival sons of
Kgoshi
Sekwati I. the first
applicant in this application for leave to appeal is the descendant
of Sekhukhune I.
[29]
In that case of
Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes &
Claims and Others, supra,
it
was stated in paragraph 31 of the minority judgment by Jafta J (with
Nkabinde J concurring) that:
“
the Commission
determined that kingship of Bapedi could then also be acquired by
violent means. It defined this as the might and
bloodshed rule. It
held that Sekhukhune I had become king in terms of this rule. It was
for this reason that the Commission concluded
that the kingship of
Bapedi “resorts under the lineage of Sekhukhune”. This
decision led to the present litigation”
[30]
In the aforesaid case of
Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes and
Claims and Others, supra,
in paragraph 74, Khampepe J (with Moseneke DCJ, Cameron J, Leeuw AJ,
Madlanga J, Van der Westhuizen J and Zondo J concurring) stated
in
the majority judgment that:
“…
The
Commission thus found that Kgosi Mampuru II “did not ascend the
throne” and, for that reason, conclude that Kgosi
Mampuru II
could not have retaken the kingship, which remained with Kgosi
Sekhukhune I’ lineage.”
[31]
In conclusion, the Constitutional Court dismissed the appeal and
upheld the decision of the Commission. Khampepe J stated in
paragraph
109 of the aforesaid judgment that
“
the
above considered, I find no reason to set aside the Commission’s
decision. The decision was neither irrational, nor did
it ignore
relevant facts. The appeal must be dismissed.”
There
is no where it was stated by the Constitutional Court in the
aforesaid judgment or the Commission or the Supreme Court of
Appeal
that the first applicant as a person is the
Kgoshi
of the area.
[32]
The second applicant cannot rely on the affidavit of the first
applicant without a resolution to do so. Even if the second
applicant
may rely on the said affidavit, the facts stated thereon are not
sufficient to sustain the relief sought in the notice
of motion on
behalf of the second applicant. The respondent has never threatened
nor violated any right of the second applicant.
[33]
In the case of
Mulaudzi v
Head Office: Vuwani Magistrate Office and Others (291 / 2015) [2017]
ZALMPTHC 3 (21 February 2017), supra, a
t
paragraph 22, Phatudi J stated further that
“
the
applicant contended in his replying affidavit that he acts in his
capacity as a leader of the traditional leadership / royal
house of
the Royal Family which is ruling at Muungamunwe village. There is no
power of authority or a resolution by either the
“traditional
leadership” or the “Royal Family” authorising him
to either depose to or institute the action
before this court. I thus
find that the applicant lacks the required
locus
standi in iudicio
”
.
The same principle as stated by Phatudi J in
Mulaudzi
matter is applicable in so far as the requirement for a clear right
is concerned on the part of the second applicant.
[34]
The court has further found that there are disputes of fact which are
not capable of resolution on papers. The case of both
applicants
cannot survive the disputes of fact arising from the papers. In
the
case of
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T
)
at pages 1162 and 1168, it was held that the court will dismiss an
application if the applicant should have realized when launching
his
application that a serious dispute of fact, incapable of resolution
on the papers, was bound to develop.
[35]
The respondent’s
version was that he is not a prophet but a traditional healer; the
intended ceremony was organised by respondent’s
graduates as
part of their graduation ceremony where he accompanies them to their
respective homes; he is not the organizer of
the ceremony but was
invited by people who needed his services; no confirmatory affidavit
of Ntoampe Philemon Sekhukhune to support
the hearsay allegations
attributed to him; applicants’ case is based on allegations of
witchcraft which, in my view, borders
on criminal conduct and
possible contravention of the Suppression of Witchcraft Act 3 of
1957; first applicant has never attended
any of the respondent’s
ceremonies and is therefore acting on hearsay; the interdict will
affect the rights of other trainee
graduates who could not resume
trade prior to the graduation in the form of the ceremony,
etc
.
The above facts constitute genuine disputes of fact between the
parties.
[36]
In my view, the applicants have failed to prove the existence of a
clear right. The attached certificate of appointment as
an Acting
Kgoshi
or Acting Paramount
Kgoshi
issued in 2000; and not reviewed since April 2007 does not bestow “a
legal right vesting in the applicant”. The disputes
of fact do
not justify the granting of the interdict or confirmation of the rule
nisi
.
Without evidence proving existence of a clear right, the remaining
requirements become moot. The application has to
fail
(See Setlogelo v Setlogelo1914 AD 221 at page 227)
.
[37]
In the absence of a clear right, there will be no talk of an injury
committed against the applicants or reasonable apprehension
of harm.
Be that as it may, it is trite law that the word ‘injury’
in the law of interdict must be understood in the
wider sense to
include any prejudice suffered by the applicants as a result of the
infringement of their rights by the respondents.
The injury does not
have to be capable of pecuniary evaluation. The applicants were
required to show that they are reasonable to
apprehend that injury
will result. The test for apprehension is an objective one
(See
Cilliers AC, Loots C & Nel HC: “Herbstein & Van Winsen
on the Civil Practice of the High Courts and the Supreme
Court of
Appeal”, Juta Co, Vol. 2, 5
th
Ed, 2009, at page 1464).
[38]
In my view, the applicants’ application must fail. The
applicants have no reasonable prospects of success on appeal.
There
are no bases why costs should not follow the event.
[39] I accordingly make
the following order:
1. The
application for leave to appeal is dismissed with costs.
__________________________
MS
SIKHWARI AJ
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
For Applicant : Adv M
Bresler
Instructed by : Espag
Magwai Attorneys
For Respondent : Adv N
Phatudi
Instructed by : Mankoe
Attorneys
Date of Hearing : 12
December 2017
Date
of Judgment : 14 December 2017