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[2016] ZALMPPHC 11
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Phasha and Another v Premier: Limpopo Province and Others (2654/2016) [2016] ZALMPPHC 11 (24 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: 2654/2016
Reportable: No
Of interest to other judges: No
Revised.
24/10/2016
In
the matter between:
MASHILE
MAXMAN
PHASHA
FIRST
APPLICANT
BAROKA
BA NKWANA ROYAL FAMILY
SECOND
APPLICANT
and
THE
PREMIER: LIMPOPO
PROVINCE
FIRST
RESPONDENT
TLAKALE
MAVIS
PHASHA
SECOND
RESPONDENT
MANYAKU
ELIZABETH
MAIMELA
THIRD
RESPONDENT
POTLAKE
NKWANA STEVEN PHASHA FOURTH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1].
The
Applicants brought an application against the Respondents for an
order in the following terms:
1.1.
That
the decision of the Royal Family dated 8 September 2014 appointing
the First Applicant as the acting Kgoshi of the Baroka-Ba-Nkwana
Traditional Community is hereby declared as valid and binding.
1.2.
That
the First Respondent is directed to act in terms of Section
15(2) of the Limpopo Traditional Leadership and Institutions
Act 6 of
2005:-
1.2.1.by
issuing a certificate of appointment for the First Applicant and
1.2.2.by
informing the Provincial House of Traditional Leaders and the
relevant Local House of Traditional Leaders.
1.3.
That the First Respondent should comply with the above within 10 days
of service of this order upon him.
1.4.
That
the Second, Third and Fourth Respondents be and are interdicted
from:-
1.4.1.
arranging and/or holding meetings with the members of the Baroka Ba
Nkwana Community;
1.4.2.
approaching the Community or any third party in an attempt to solicit
donations or funding;
1.4.3.
entering into agreements in the name of the Second Applicant;
1.4.4.
using the stamp of Baroka –Ba-Nkwana Royal Council.
1.5.
Costs
in the event of opposition.
[2].
The Applicants essentially approach this Court primarily for a
declaratory relief and a
mandamus
.
The declaratory relief relates to the recognition and enforcement of
a decision of the Royal Family to appoint the First Applicant
as
acting Kgoshi. The Applicants contend that this decision is valid by
reason of it having been taken by the Royal Family in terms
of
Section 15(1) of the Limpopo Traditional Leadership and Institutions
Act 6 of 2005
(“the
Limpopo Act”). Section 15(1) in its relevant form, reads:
“
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.”
[3]. The relief of a
mandamus
is directed at the First Respondent
(“the Premier”)
that he be ordered to act in terms of section 15(2) of the Limpopo
Act to issue the First Applicant
with a recognition certificate.
Section 15(2) provides:-
“
The
Premier must, upon appointment of an acting traditional 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.”
[4]. The application is
opposed by the Second, Third and Fourth Respondents. The First
Respondent abides the decision of the Court.
The Second, Third and
Fourth Respondents dispute that the First Applicant is entitled to
the relief sought and/or that the appointment
of the First Applicant
as an acting Kgoshi is, under the prevailing circumstances, warranted
and justified.
Dramatis
Personae
[5].
There is a relatively long and controversial history of litigation in
the Baroka –Ba-Nkwana Community involving the parties
in the
present matter and others, all dating back to the period shortly
after the death of Kgoshi Nkwane Aubrey Phasha (“Kgoshi
Aubrey”).
[6]. Kgoshi Aubrey was
the first born of the late Kgoshi Potlake Steven Phasha (“Kgoshi
Steven”), the father of both
the First Applicant (“Maxman”)
and Kgoshi Aubrey. The latter succeeded Kgoshi Steven to the position
of Chieftancy.
He died in April 2003 in a car accident.
[7].
The Second Respondent (“Tlakale”) is the wife of the late
Kgoshi Aubrey, with whom she had no male child. However,
by virtue of
marriage Tlakale is the candle wife of Kgoshi Aubrey.
[8].
The Third Respondent had a son with Kgoshi Aubrey. There is a dispute
as to whether they were married to each other. Their
son, born out of
wedlock, is the Fourth Respondent herein. The Third and Fourth
Respondents were parties in previous litigation
seeking the
appointment of the Fourth Respondent as a successor to Kgoshi Aubrey.
[9]. The Second
Respondent previously acted as a regent and was previously issued
with a recognition certificate to that effect
on 26 January 2011.
However, the certificate fell away on 12 December 2012 when it was
withdrawn and replaced by a certificate
of her appointment as an
acting Kgoshigadi. Her appointment as acting Kgoshigadi is a subject
of a pending litigation in the North
Gauteng High Court, Pretoria.
Factual
Background
[10]. Since the
passing away of Kgoshi Aubrey, the Baroka-Ba-Nkwana Community has
been embroiled in conflicts which have resulted
in a proliferation of
litigation in regard to numerous issues. Various Court applications
were instituted as summarised below.
Application
under case number: 13846/2003
(“the 2003
application”)
[11]. The 2003
application was brought by the Second Respondent in the present
application (Tlakale) and concerned the issue
as to who is the candle
wife of the late Kgoshi Aubrey.
The issue emanated from
the dispute as to who was entitled to bury Kgoshi Aubrey. In that
application Mojapelo DJP gave an order,
dated 28 May 2003, declaring
the Second Respondent (Tlakale) as the candle wife of Kgoshi Aubrey
and therefore entitled to bury
him. That order was never challenged
and/or rescinded.
In the present
application the First Applicant (Maxman) concedes that Tlakale is the
candle wife and that this issue was in fact
resolved by Mojapelo DJP
in the 2003 application. However, the Third and Fourth Respondents
seem to dispute this issue in another
pending litigation in the North
Gauteng High Court, Pretoria.
Application under case
number 4438/2008
(the 2008 application)
[12]. The 2008
application was brought by one of the Bakgoma
(Inner Circle member)
Lipson Ngaku Phasha, and concerned,
inter-alia
, the question
as to who constitutes members of the inner circle (Royal Family) of
the Community.
Rabie
J gave an order, dated 26 July 2010, declaring specific persons as
members of the inner circle (Bakgoma). By then they were
24 in
number.
Application under case
number 18879/2011
(the 2011 application)
[13].
The 2011 application was launched by Maxman ( the First Applicant
herein) essentially seeking the setting aside of the
Second
Respondent’s recognition as a regent and to have the
question as to who should succeed Kgoshi Aubrey referred
back
to the Royal Family for decision making. This application also dealt
with the issue of paternity of the Second Respondent’s
son.
Claassen
J ordered for the paternity test to be performed. He also made an
order that the dispute regarding who is the candle wife
should be
referred to trial. He furthermore ordered that pending the
finalisation of the dispute the
status
quo
as is existed before the launch of that application shall be
preserved. The order is dated 6 June 2011. It is common cause that
the trial envisaged by Claassen J has not yet been held. The matter
is thus still pending.
Application under case
number 4243/2013
(the
2013 application)
[14].
The 2013 application was brought by the Third and Fourth Respondents
(in the present application) as well as the late
mother of both
Kgoshi Aubrey and Maxman. The application was brought mainly to set
aside the decision of the Premier to recognise
the Second Respondent
(Tlakale) as an acting Kgoshigadi. By order dated 26 July 2013, Baqwa
J declared the appointment of Tlakale
as an acting Kgoshigadi to be
of no force and effect pending final determination and outcome of the
2011 application.
[15].
It is appropriate to quote the relevant order which is as follows:
“
2.
Pending the final determination and outcome of the matter in this
Honourable Court under case number 18879/2011 and the relief
sought
in PART B of this application, the recognition of the fourth
respondent by the first respondent as acting Kgoshigadi in
terms of
section 15(2) of the Limpopo Traditional Leadership and Institutions
Act 6 of 2005, is hereby suspended and declared to
be of no force and
effect”.
[16].
The Court also confirmed that the result of the paternity test was
that the Second Respondent’s son is not the
biological son of
the late Kgoshi Aubrey.
[17]. It is common
cause that the matter as per Court order of Baqwa J is still pending
in as much as Part B of that application
has not yet been heard and
finalised and the trial as envisaged in the Court order of Claassen J
is still to be held.
The
Present Application
[18].
Before launching this application a letter regarding the appointment
of Maxman as the acting Kgoshi was addressed to
the Premier
requesting him to issue Maxman with the appointment certificate in
the light of the resolution of the Royal Family
dated 8
September 2014 and as envisaged in Section 15(2) of the Limpopo Act.
[19]. A response
was received from the Acting Head of the Department of Corporative
Governance, Human Settlements and Traditional
Affairs, Limpopo, in
which the acting Head of Department advised as follows:
“
Kindly
note that according to our records you are party to a litigation
that is pending
in Court under Case No.18879/2011. The department’s position is
that the pending dispute must first be disposed
of or finalised and
then a fresh application be made following a prescribed procedures.”
The
issue of lis pendens
[20]. The Second
Respondent raised a point of
lis pendens
in relation to
case
number 18879/2011 (the 2011 application) and case number 42437/2013
(the 2013 application).
It
is common cause that the 2011 application is still pending. The
matter has been referred to trial and has reached a stage where
the
Applicants in the case have filed their declaration to which the
Respondents therein have filed their plea. It would appear
that the
matter is indeed heading for trial as ordered by Claassen J.
[21].
Regarding the 2013 application, it is common cause that same has not
yet been finalised. Part B of the said application
which concerned
the issue of who is to be an acting Kgoshi is still pending. Needless
to say that the present application has to
do with the same issue of
acting Kgoshi as in the pending case under the 2013 application.
[22].
It should also be mentioned that in the 2011 application the Second
Applicant (Baroka-Ba-Nkwana Royal Family) has launched
an application
for intervention to be joined as the Fifth Respondent .
Interestingly, the First Applicant herein (Maxman) opposes
such
application for intervention. The latter application is also still
pending.
[23]. In my view
the whole dispute pertaining to the leadership of Baroka-Ba-Nkwana
Community is pending in two cases before
the North Gauteng High
Court, Pretoria. The present application amounts to a duplication or
attempts on the part of the First Applicant
to overtake the
proceedings before another Court.
Conclusion
[24].
I find it undesirable that the present application be entertained
until the matters under case number 18879/2011 and
case number
42437/2013 which remain pending before the High Court in Pretoria are
finalised.
[25].
During the hearing of this matter on the 17 October 2016 I made the
following proposal to the parties and their legal
representatives:
That
the two pending cases before the High Court in Pretoria be
consolidated and transferred to the Limpopo Division of the High
Court, Polokwane where the matters will be heard on trial with the
interested parties giving oral evidence so that this long outstanding
issue of the leadership of Baroka-Ba-Nkwana can be resolved once and
for all. Should the matters be transferred to this Court the
Judge
President shall give the parties a preferential date of trial as soon
as possible during the next term.
[26].
I got the impression that the parties are agreeable to my proposal.
However, it is not for me to make such an order but I
trust that the
parties will oblige in an effort to reach finality in this ongoing
feud.
[27]. The application is
accordingly dismissed with costs.
_________________________
E
M MAKGOBA JP
JUDGE PRESIDENT OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 17
October 2016
For
the Applicants
: P.G
Seleka SC
Instructed
by
:
Sefalafala Attorneys
For
Second Respondent
:
Mr. K K
Kekana
Instructed
by
: Maesela
Incorporated Attorneys
For
Third & Fourth
Respondents
: In
Person