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[2015] ZAGPPHC 460
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Manamela v Premier of Limpopo Provincial Government and Others (18155/2013) [2015] ZAGPPHC 460 (26 June 2015)
IN
THE
HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No:
18155/2013
(
1 ) REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
…
..23/06/2015…..
.
.................
In the matter between:
MAPHUTI
JONA
MANAMELA
Applicant
and
THE
PREMIER OF LIMPOPO
PROVINCIAL
GOVERNMENT
First Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
COOPERATIVE GOVERNANCE, HUMAN
SETTLEMENT
AND
TRADITIONAL
AFFAIRS
Second Respondent
KWENA
DARIUS
MANAMELA
Third Respondent
KGOSHIGADI
MATLALA
Fourth Respondent
REASONS
D
S FOURIE, J:
[1]
On 5 March 2015 I granted an order in terms whereof this application
was dismissed with costs. Thereafter, on 3151 March
2015 the
applicant requested reasons for the said order. These are my reasons.
- 2 -
[2]
The applicant applied for an order that the decision of the first
and/or second respondent to terminate the appointment of the
applicant as the acting headman and to appoint the third respondent
as headman of the GaManamela Community be reviewed and set
aside. The
application was opposed by the third and fourth respondents. It is
common cause that the applicant and the third respondent
are brothers
and the sons of Paul Manamela, the former headman of the GaManamela
Community who passed away during 1984. One Maleka
Manamela, a nephew
of Paul Manamela, was then appointed as acting headman, a position he
held until 1991.
[3]
According to the applicant the third respondent was then appointed as
headman on condition that he should reconcile and remarry
his former
wife, or another woman of his choice, within 12 months of his
appointment. Apparently he failed to do so as a result
whereof his
appointment was withdrawn and the applicant was then appointed as
acting headman of the GaManamela Community. According
to the
applicant his appointment was terminated on 30 October 2012 when he
received a letter from the Bakone Traditional Council
dated 27
November 2012 (annexure "FA4" to the founding affidavit) in
terms whereof he was informed as follows:
"You are kindly
informed
that
the Honourable
Premier
has
in
terms
of
section
15(2)
of
Limpopo
Traditional
Leadership
and
Institution Act,
Act
No
6 of 2005
withdrawn
Manamela
Maputhi Jona
and recognised
Manamela
Kwena Darius
of
ga-Manamela
Village under
Bakone
ba
Matlala Traditional
Council
with
effect
from
30
October 2012."
-
3 -
[4]
It was pointed out by the applicant in his founding affidavit that he
had no prior knowledge that his appointment would be withdrawn,
nor
was he given any notice of the intended withdrawal. He therefore
submitted that the first and/or second respondents had been
acting
unlawfully by not affording him the opportunity to be heard and to
oppose the intended withdrawal of his appointment.
[5]
According to the record of proceedings filed on behalf of the first
and second respondents it appears that:
•
The
third respondent is the elder brother of the applicant and he has
been challenging the position of headmanship since 2003. The
dispute
between the two brothers was then referred to the House of
Traditional Leaders in 2005 for investigation;
•
A
Committee on Custom, Culture and Tradition was mandated to attend to
the dispute. The committee invited the two brothers with
their family
in an effort to resolve the on-going dispute. It was found that the
family of Manamela does not deny the third respondent
the opportunity
to lead the community, but that he should marry a wife before he
could be enthroned as headman;
-
4 -
•
On 11 September 2008 the
chairperson of the House of Traditional Leaders informed Traditional
Affairs that "the marital status
of Darius Manamela cannot be
used to deny him what is rightfully due to him in terms of culture
and law"; After its investigation
the committee
recommended on 19 December 2005 that the third respondent
be appointed as headman to replace his
younger brother.
•
On
17 August 2012 the Department arranged a meeting at the Traditional
Council to facilitate the process of withdrawing acting headman
Jona
Manamela. The family again indicated that one can only be enthroned
if he has married a wife, but on 18 September 2012 the
Bakone
Traditional Council indicated that the third respondent should be
appointed as headman notwithstanding his marital status;
•
During
October 2012 the Department of Co-operative Governance, Human
Settlements and Traditional Affairs made a recommendation to
the
first respondent in terms whereof it was recommended that the
applicant be removed and the third respondent be recognised as
headman of the GaManamela Community in terms of section 12(1)(b) of
the Limpopo Traditional Leadership and Institutions Act No
6 of 2005;
- 5 -
•
On 27 November 2012 the
applicant was informed that he had been withdrawn and the third
respondent appointed as headman with effect
from 30 October 2012.
[6]
During argument it was pointed out to counsel who was appearing for
the applicant that according to the record of proceedings
it appears
that a committee was mandated to investigate the issue between the
two brothers, that they and their family were invited
to resolve the
on-going dispute and that the applicant had the opportunity to put
his case before the committee. It was then conceded
that the
applicant had been informed about this process and that there had
been discussions with regard to the position of headman.
C.ounsel for
the applicant thereafter informed me that he was no longer insisting
on an order as prayed for and he conceded, rightly
so in my view,
that the application should be dismissed with costs.
[7]
Having regard to the record of procedings I was also unable to find
that the first and/or second respondents acted procedurally
unfair or
that the applicant was not afforded the opportunity to be heard. The
first respondent acted on the recommendation of
a committee after the
issue had been investigated properly. For these reasons I was of the
view that the applicant did not make
out a case and that his counsel
was justified in not insisting on an order as prayed for.
_________________
D
S FOURIE
JUDGE
OF THE HIGH COURT
23/6/2015