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[2014] ZAGPPHC 524
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Amandebele-Ba-Lebelo and Another v Kekana and Others (42766/2013) [2014] ZAGPPHC 524 (2 April 2014)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
42766/2013
DATE: 2/4/2014
REPORTABLE
In the matter
between:
AMANDEBELE-BA-LEBELO
TRADITIONAL
COUNCIL
…
.........................................................................................
First
applicant
KGOSI
KGOMOTSO CORNELIUS KEKANA
…
...................................................
Second
Applicant
and
LLEKA
JACOB
KEKANA
.............................................................................................
First
respondent
LAWRENCE
TSOTETSI
.........................................................................................
Second
Respondent
JOHN
MATHABATE
..................................................................................................
Third
Respondent
LENNOX
MOGOLLA
...............................................................................................
Fourth
Respondent
JAKES
MALEKA
..........................................................................................................
Fifth
Respondent
ROBERT
MASHIGO
....................................................................................................
Sixth
Respondent
SAMUEL
CHAUKE
.................................................................................................
Seventh
Respondent
THE TRESPASSERS
ON PORTION 2 OF THE
FARM
TWEEFONTEIN
94JR
..................................................................................
Eighth
Respondent
THE
REGISTRAR OF DEEDS:
PRETORIA
...........................................................
Ninth
Respondent
AMANDEBELE-A-MOLETLANE
TRIBAL COUNCIL
.........................................
Tenth
Respondent
SETSOALO
MABUSELA INC
ATTORNEYS
.....................................................
Eleventh
Respondent
R
R
MABUSELA
.......................................................................................................
Twelfth
Respondent
VICTOR
MABE
....................................................................................................
Thirteenth
Respondent
THE MINISTER OF
RURAL DEVELOPMENT
AND
LAND
REFORM
........................................................................................
Fourteenth
Respondent
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
…
................................................................................................
Fifteenth
Respondent
ABSA
BANK
LIMITED
.........................................................................................
Sixteenth
Respondent
LLEKA JACOB
KEKANE N.O.
(in his capacity
as Trustee of the
Trust)
(Registration
number
IT3083/02)
......................................................................
Seventeenth
Respondent
DAVID LETHAMAGA
KEKANA N.O.
(in his capacity
as Trustee of the
Trust)
(Registration
number
IT3083/02)
.......................................................................
Eighteenth
Respondent
J U D G M E N T
AVVAKOUMIDES, AJ
INTRODUCTION
AND BACKGROUND
1.
The
first applicant is a Traditional Council established and recognised
in terms of section 5 of the Gauteng Traditional Leadership
and
Governance Act, Act 4 of 2010 (‘the Gauteng Act’).
The second applicant is the senior traditional leader
of the
Amandebele-Ba-Lebelo Traditional Community and the chairperson of the
first applicant.
2.
On 17
July 2013 a rule nisi returnable on 3 September 2013 was issued ex
parte and on an urgent basis in terms of Portion A of the
Notice of
Motion brought against the first to seventh respondents, the eighth
respondent, the tenth respondent and the sixteenth
respondent
relating to a property known as Portion 2 of Tweefontein 94 JR (held
under Deed of Transfer T4563/1924).
3.
The
rule nisi was extended on three separate occasions thereafter to the
date of this hearing. This is the return date.
4.
The
applicants seek confirmation of the rule nisi as well as the relief
contained in Portion B of the Notice of Motion, namely cancellation
of endorsement No BC002256/10 on Deed of Transfer No 7775/1916 and
endorsement No BC002256/10 on Deed of Transfer No 4563/1924
together
with consequential and declaratory relief.
5.
The
first respondent claims to be the Paramount Chief of the
Amandebele-A-Moletlane Tribal Council (the tenth respondent).
The first respondent acts in his personal capacity, on behalf of the
tenth respondent and (as the seventeenth respondent) in his
capacity
as Trustee of the Ingwenyama Royal Trust (“the Trust”).
He opposes both the confirmation of the interim order
as well as the
granting of the relief sought in Portion B of the Notice of Motion.
6.
The
tenth respondent is an association known as the
Amandebele-A-Moletlane Traditional Council or the
Amandebele-A-Moletlane Tribal
Council or the Kekana Royal Executive
Council Amandebele-A-Moletlane Traditional Authority. The tenth
respondent purports to function
under the control and the leadership
of the first respondent.
7.
The
seventeenth and eighteenth respondents are cited in their capacities
as Trustees of the Trust. The Trust appears to be the holder
of the
bank account into which the respondents and the Trustees deposited
monies, which the applicants say was unlawful. This is
dealt with
hereunder.
8.
At the
commencement of this application it was pointed out by Mr Van Wyk SC,
who appeared for the applicants with Mr Stoop, that
the eighteenth
respondent also filed an answering affidavit, but in his personal
capacity. The eighteenth respondent had previously
resigned as a
trustee but felt that he could file an affidavit in his personal
capacity, this notwithstanding. Ms Molema, an attorney
of this court,
appeared for the eighteenth respondent and submitted that her client
had deposed to his answering affidavit in his
personal capacity and
not in any other capacity.
9.
After
hearing argument from the parties on the admissibility of the
affidavit, I disallowed the affidavit on the basis that the
eighteenth respondent was not before court as party
personally
and he
could not participate in the hearing as a result. Apparently pursuant
to his resignation as a trustee the person to whom
he had entrusted
the registration of his resignation with the Master of the High
Court, failed to do so hence the current citation
of the eighteenth
respondent. I deal with this aspect in more detail hereunder.
10.
The
second to ninth and the eleventh to sixteenth respondents did not
oppose the relief sought by the applicants and played no part
in the
proceedings. The relevant respondents are thus the first and tenth
respondents.
PROCEDURAL
ISSUES AND POINTS IN LIMINE
11.
Mr
Sebola, an attorney of this court, who appeared for the first
respondent raised two procedural objections to the application
and in
particular disputed the following:
Whether
the Applicants were entitled to bring the application for interim
relief ex parte and on an urgent basis
11.1
The grounds upon which the applicants relied for the hearing of the
application ex parte and on an urgent basis are set out
in the
founding affidavit and were not disputed. The interim relief was
granted by Mr Justice Jordaan after he exercised his discretion
on
urgency and by necessary implication, that the application for
interim relief should be heard on an ex parte basis. Furthermore,
and in terms of Rule 6 (12) (c), the respondents were entitled
thereafter to set the matter down for reconsideration of the order.
This the respondents did not do and the first respondent’s
point
in limine
cannot
succeed, and is accordingly dismissed with costs. The applicants’
allegations in the founding affidavit stand uncontested
and the first
respondent did not advance any facts or grounds upon which the
granting of the interim relief could or should be
reconsidered.
That
the application cannot be decided on the papers and that there are
factual disputes which cannot be decided without the hearing
of oral
evidence
11.2 The first
respondent submitted that the facts contained in the founding
affidavit relate to a dispute about chieftainship,
ownership and
control of Portion 2 and 11 of the farm Leeukraal 92JR and Portion 2
of the farm Tweefontein 94JR (“the land”
or “the
properties”). The first respondent argued that due to the
nature of the dispute, this application requires
the hearing of oral
evidence.
11.3
The
disputes which the first respondent submits require the hearing of
oral evidence are identified in the answering affidavit.
These are:
11.3.1 who is the
legitimate chief of the Amandebele-A-Moletlane, second applicant or
first respondent?
11.3.2 was there a
tribe known as Amandebele-Ba-Lebelo?
11.3.3 was there a
chief for the Amandebele-Ba-Lebelo and if such chief has been
appointed properly in accordance with the customs
and culture of such
tribe?
11.3.4 whether the
Amandebele-Ba-Lebelo tribe owned any land and if so if they purchased
such land?
11.3.5 the
difference between Chief and Regent Chief; and
11.3.6
whether
the manner in which the land belonging to Amandebele-A-Moletlane
tribe was transferred to the Bophuthatswana Government
was fair,
justified and lawful.
11.4
The
applicants submitted that first three alleged disputes can be decided
on the papers without the hearing of any oral evidence
by virtue of
facts which are common cause and on the basis of the official
recognition of the applicants and the Amandebele-Ba-Lebelo
traditional community in terms of the applicable legislation.
11.5
The
alleged dispute whether the Amandebele-Ba-Lebelo owned land and if
they purchased it is not relevant as it is not the case of
the
applicants that they owned any land or that they purchased it.
11.6
There
is no dispute as to the difference between Chief and Regent Chief and
such alleged dispute is not relevant to any of the relief
sought in
the application.
11.7
The
alleged dispute as to whether the land which belonged to the
Amandebele-A-Moletlane tribe was transferred to the Bophuthatswana
Government in a manner that was fair, justified and lawful is also
irrelevant. The applicants pointed out that the land never belonged
to the Amandebele-A-Moletlane but was held in trust for the use by
the Ndebele tribe. The Ndebele tribe was renamed and became
known as
the Amandebele-Ba-Lebelo traditional Community since 1990. The
transfer of the land to the Bophuthatswana Government as
trustee and
in trust for the Ndebele tribe has not affected the use of the land
by the Ndebele tribe.
11.8
The
first respondent’s application for recognition as Senior
Traditional Leader is pending before the Commission on Traditional
Leadership Disputes and Claims.
12.
The
applicants, in submitting that the application can be decided without
the hearing of oral evidence, advanced the following argument:
12.1
The
main dispute between the applicants and respondents is whether the
control of the beneficial occupation and use of the land
vests
exclusively in the applicants in terms of the Traditional Leadership
and Governance Framework Act, Act 41 of 2003 (‘the
Framework
Act”) and the Gauteng Act to the exclusion of first and tenth
respondents. This issue can be decided on the papers
without oral
evidence and on facts which are common cause.
12.2
On 16
August 1990 the President of the then Bophuthatswana renamed the
Amandebele Tribe and the Amandebele Tribal Authority to the
Amandebele-Ba-Lebelo Tribe and the Amandebele-Ba-Lebelo Tribal
Authority respectively. The tribal area of the Amandebele-Ba-Lebelo
Tribe and of the Amandebele-Ba-Lebelo Tribal Authority was defined by
this notice as Portions 2 and 11 of Leeuwkraal 92JR and Portion
2 of
Tweefontein 94JR.
12.3
The
Amandebele-Ba-Lebelo tribe and the Amandebele-Ba-Lebelo Tribal
Authority which had been recognised as such with its tribal area
and
area of jurisdiction as portions 2 and 11 of Leeuwkraal 92JR and
portion 2 of Tweefontein 94JR since 16 August 1990 in terms
of
Government Notice 172 of 1990, was deemed to be a traditional
community and a traditional council on the date of commencement
of
the Framework Act (on 24 September 2004) in terms of section 28(3)
and 28(4) of the Framework Act.
12.4
The
Amandebele-Ba-Lebelo traditional community was therefore a
traditional community recognised in terms of the Gauteng Act and
the
Amandebele-Ba-Lebelo traditional authority was therefore recognised
in terms of the Gauteng Act as a traditional council.
12.5
By
virtue of Notice 3259 of 2012 dated 18 November 2012 published in
terms of section 5(8) of the Gauteng Act, the MEC responsible
for
Local Government, Gauteng Province recognised the
Amandebele-Ba-Lebelo Traditional Council.
12.6
It is
common cause on the papers that the “tribe” renamed by
the President of Bophuthatswana, was the Ndebele tribe
which was
formerly known as the Amandebele-A-Ba-Ka-Moletlane and which is now
known as the Amandebele-Ba-Lebelo Traditional Community.
12.7
Section
211(2) of the Constitution provides as follows:
“
(2)
A
traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of, that legislation or those
customs
.”
12.8
The
Framework Act and the Gauteng Act comprise the applicable legislation
referred to in section 211(2) of the Constitution. The
purpose of
these acts is, inter alia, to recognise traditional communities and
to provide a statutory framework for leadership
positions within the
institution of traditional leadership.
12.9
The
second applicant was appointed in 2000 as acting Kgosi of the
Amandebele-Ba-Lebelo traditional community and is deemed
to be
the traditional leader on the date of commencement of the Framework
Act (on 24 September 2004) in terms of section 28(1)
of the Framework
Act.
12.10
The
second applicant was recognised as Senior Traditional Leader of the
Amandebele-Ba-Lebelo Traditional Community in terms of Notice
296 of
2013 published in the Provincial Gazette dated 17 January 2013.
12.11
The
respondents’ contention that a dispute of fact has arisen is
clearly premised on the erroneous assumption that the court
would be
entitled to disregard the validity of the administrative actions and
the notices published on the strength thereof in
terms of the Gauteng
Act and the other legislation (in respect of the official recognition
and appointment of the applicants) and
to arrogate to itself the
power to recognise the first respondent as Traditional Leader and the
tenth respondent as the Traditional
Council of the
Amandebele-A-Moletlane Traditional Council instead.
12.12
The
applicants submitted that the court has no such power. I agree. Until
set aside, the above notices (and the administrative decisions
that
preceded the publication thereof in each case), are valid and binding
on the applicants and the respondents alike.
12.13
These
recognitions can also not be challenged before this court because the
parties, who have a real and substantial interest therein,
are not
before this court: the MEC responsible for Local Government, Gauteng
Province and the Premier, Gauteng Province. Mr Sebola
conceded that
the Premier and the MEC would have had to be joined in this
application in order for the court to consider this argument.
13.
It is
the applicants’ case that in terms of sections 4(1)(a) and
(l), and 19 of the Framework Act, sections 7(1)(a),
52(1), 52(a) and
(b), and 54(1)(c) of the Gauteng Act read with the definitions of
“traditional leader”, “traditional
council”
and “traditional community” in section 1 of the Framework
Act and in section 1 of the Gauteng Act, only
a traditional council
and a traditional leader who are recognised in terms of the Framework
Act and the Gauteng Act as the traditional
council and traditional
leader of a recognised traditional community may manage the affairs
of the recognised traditional community
in accordance with the
customary law and customs of the community concerned.
14.
The
applicants, in order to illustrate the severity of the first
respondent’s conduct, drew my attention to section 77 of
the
Gauteng Act which reads as follows:
“
77.
Offences
and penalties
(1) A person who-
(a)
purports
to be a traditional leader in terms of this Act without having been
recognised as contemplated in this Act.
(b)
wilfully
obstructs the performance of any function by any traditional leader,
any traditional council, the Provincial House, any
Local House as
contemplated in this Act or any other law is guilty of an offence.
(2)
A person convicted of an offence contemplated in subsection (1) is
liable to a fine of R12 000 or imprisonment not exceeding
12 months,
or, in serious cases, both such fine and imprisonment
.”
15.
In
terms of section 24 of the Gauteng Act the funds of traditional
councils consist of:
“
(a)
all monies which, in accordance with the customary law of the
traditional community concerned, are payable to the traditional
council;
(b) fines
collected by the traditional leader or council in accordance with the
traditional community's laws and customs;
(c) all monies
derived from any property in possession of the traditional community
concerned;
(d) any donations
made by any person for the benefit of the traditional community
concerned;
(e) any monies
paid to the traditional council under any law; and
(f)
any monies allocated by the Provincial Government as a direct charge
to the Provincial Revenue Fund
.”
16.
In
terms of section 25 of the Gauteng Act:
“
(1)
The MEC must open or cause to be opened for each traditional council
a trust account from which all expenditure incurred in
connection
with any matter specified within the duties and functions of the
traditional community concerned must be met.
(2) In addition,
the MEC may on good cause shown by a traditional council and being
satisfied that there are sufficient controls
and financial systems,
permit such a traditional council to open another trust account, into
which must be paid such amounts and
from which all expenditure
incurred in connection with any matter specified in subsection (3)
within the duties and functions of
the traditional community
concerned must be met.
(3) There must be
paid into an account opened as referred to in subsection (2)-
(a)
all
fees, charges and voluntary contributions which are payable to the
traditional community;
(b)
all
cash proceeds derived from any property or right to title of the
traditional community;
(c)
any
donation or gift made by any person, institution or organisation to
and for the benefit of the traditional community; and
(d) any other
amounts derived from any source whatsoever for the benefit of a
traditional community.
(4)
Subject to the approval of the MEC, a traditional council may invest
any surplus funds from a traditional community's account
with any
financial institution or body corporate: Provided that the Premier
may prescribe conditions as he or she may deem fit
in connection with
such investment
.”
17.
It is
clear from sections 24 and 25 of the Gauteng Act that:
17.1
all
moneys which are payable in accordance with the customary law of the
recognised traditional community to the recognised traditional
community are payable to the traditional council which is recognised
for such community if terms of the Gauteng Act; and
17.2
all
monies derived from any property in possession of the recognised
traditional community forms part of the funds of the recognised
traditional council and must be paid into the trust account of the
recognised traditional council.
17.3
the
recognised traditional council administers the trust account of the
traditional council in terms of the Gauteng Act.
17.4
a
purported traditional leader and traditional council such as first
and tenth respondent who have not been recognised as a traditional
council in terms of the Act and who purport to administer the use and
occupation of property occupied by a recognised traditional
community
and within the area of jurisdiction of the recognised traditional
community, by subdividing, developing and disposing
the property and
by paying the proceeds thereof into bank accounts held or controlled
by first and/or tenth respondent or the Ingwenyama
Royal Trust, are
contravening section 77 of the Gauteng Act.
18.
The
first respondent, as submitted by the applicants, purports to be a
traditional leader recognised by the Gauteng Act because
he purports
to fulfil functions which are bestowed upon second applicant as the
recognised senior traditional leader of the recognised
Amandebele-Ba-Lebelo Traditional Community for the area of
jurisdiction of the recognised Amandebele Traditional Community.
19.
The
applicants submitted that the first and tenth respondents are
wilfully obstructing the performance of the functions of first
and
second applicant (the administration of the affairs of the recognised
Amandebele-Ba-Lebelo Traditional Community within its
area of
jurisdiction) by purporting to manage the use and occupation of the
property occupied by the recognised Amandebele-Ba-Lebelo
traditional
community and within the area of jurisdiction of the recognised
traditional community by subdividing, developing and
disposing
thereof and by paying the proceeds thereof into bank accounts held or
controlled by first and or tenth respondent or
the Ingwenyama Royal
Trust.
20.
Under
these circumstances the applicants submitted that it stands
undisputed that the applicants and the Amandebele-Ba-Lebelo
traditional
community are recognised in terms of the Gauteng Act, the
validity of which cannot now be challenged. The first respondent, the
tenth respondent and the Amandebele-A-Moletlane tribe are not
recognised as traditional leader, traditional council or traditional
community respectively in terms of the Gauteng Act or any other Act.
21.
The
applicants submitted further that because the first respondent is not
recognised as a traditional leader and because the tenth
respondent
is similarly not recognised in terms of either the Framework Act or
the Gauteng Act the respondents are bound by the
notices and
decisions referred to above and no dispute of fact has arisen on the
papers which should be referred to oral evidence.
I am inclined to
agree.
Whether First
respondent’s application is pending before Commission on
Traditional Leadership Disputes and Claims
22.
The
first respondent submitted that an application to have him recognised
as the Principal Leader of the Amandebele-A-Moletlane
Traditional
Community is pending before the Commission and that the present
application is premature and that the court cannot
as a result
adjudicate the matter. I found the submission strange in the
light of the Tolo Commission having made it decision
already. I deal
with this aspect hereunder.
23.
In
response the applicants contended that the first respondent’s
submissions are without merit. The first respondent relies
upon a
letter dated 15 November 2012 written on his behalf recording his
objection to the recommendation of the Tolo Commission.
A follow up
letter was written dated 10 July 2013, approximately eight months
later requesting a response. During this period the
respondents
failed to take any steps.
24.
The
Tolo Commission investigated the senior traditional leadership
dispute of the Kekana claimants which included the second applicant
and the first respondent and recommended that the second applicant be
confirmed as permanent senior traditional leader of the
Amandebele-Ba-Lebelo traditional community. The MEC Responsible for
Local Government, Gauteng Province accepted the findings of
the Tolo
Commission and appointed the second applicant as Senior Traditional
Leader of the Amandebele-Ba-Lebelo traditional community.
25.
The
first respondent did not take the Commission on review neither did he
challenge the decision of the MEC Responsible for Local
Government,
Gauteng Province to recognise the second applicant as Kgosi of the
Amandebele-Ba-Lebelo traditional community.
26.
Accordingly
in my view the first respondent cannot now challenge the findings and
recommendation of the Tolo Commission and decision
by the MEC
Responsible for Local Government, Gauteng Province because the
Commission and the MEC who are interested parties are
not before the
court neither is this court a court sitting in a review application.
27.
The
first respondent’s submission that his application before the
Commission is pending and that this application should be
stayed
pending finalisation of the dispute is clearly without any substance
or merit. Moreover, at the commencement of the application
I was
advised by the parties, and this is confirmed in a letter from the
Deputy Judge President, that the parties agreed to the
time limits
for the exchange of affidavits in respect of this application and had
agreed to the date for the hearing of this application.
This was done
pursuant to a meeting with the Deputy Judge President. The
respondents could and should have advised the Deputy Judge
President
if their contention was indeed that this application was pre-mature
instead of agreeing to the application being heard
as a special
motion.
28.
The
applicants argued that the first respondent is also not authorised to
act on behalf of the Trust. The first respondent opposed
the
application in his capacity as trustee of the Trust and in support
hereof refers to a resolution apparently attached to the
answering
affidavit. This resolution was not annexed to the answering affidavit
and the applicants consequently disputed the authority
of the first
respondent to act on behalf of the Ingwenyama Royal Trust.
29.
Furthermore,
clause 10.4 of the Trust Deed provides that there shall at all times
be not less than three no more than five trustees
acting under the
Trust Deed. In the light of the resignation of the eighteenth
respondent it is highly unlikely that the resolution
could have been
passed in terms of the Trust Deed.
30.
The
first respondent was silent on the fact that one of the three
trustees named in the letters of authority of the Trust, one SB
Kekana, is deceased. The first respondent also confirmed that
the eighteenth respondent had resigned as Trustee.
31.
The
provision contained in the Trust Deed requiring that at least three
trustees must hold office is a capacity-defining condition
and under
circumstances where the first respondent is the only Trustee, the
Trust suffers from an incapacity that precludes the
first respondent
from acting on its behalf. Consequently I must find that the first
respondent cannot be authorised to act for
the Trust.
THE
RELEVANT LEGISLATION
32.
The
applicants submitted that both the confirmation of the rule nisi as
well as the granting of the final relief set out in prayers
7.4 to
7.6 of Portion B of the Notice of Motion, depend on the
interpretation and application of the following legislation which
should serve as background against which the relevant facts should be
evaluated:
32.3
The
Constitution of the Republic of South Africa.
32.4
The
Framework Act.
32.5
The
Gauteng Act.
33.
The
institutional status and role of traditional leadership, according to
customary law, is recognised in terms of section 211 of
the
Constitution of the Republic of South Africa, subject to the
Constitution.
34.
In
terms of section 211 of the Constitution a traditional authority that
observes a system of customary law may function subject
to applicable
legislation and customs, including amendments to or repeal of that
legislation and those customs, and courts must
apply customary law
where it is applicable, subject to the Constitution and relevant
legislation.
35.
The
legislation subject to which customary law must be applied and
subject to which a person and authority may act as traditional
leader
and as traditional council are the Framework Act and the Gauteng Act.
36.
Both
Acts provide for the recognition of traditional communities; the
establishment and recognition of traditional councils; a statutory
framework for leadership positions within the institution of
traditional leadership; the recognition and removal from office of
traditional leaders; define the functions and roles of traditional
leaders and traditional councils; and provide for dispute resolution
and the establishment of the Commission on Traditional Leadership
Disputes and Claims.
The Constitution:
37.
Chapter
12 of the Constitution of Republic of South Africa deals with
Traditional Leaders. Sections 211 and 212 of the Constitution
provide
as follows:
“
211.
Recognition
(1)
The
institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.
(2)
A
traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of, that legislation or those
customs.
(3)
The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.
212. Role of
traditional leaders
(1)
National
legislation may provide for a role for traditional leadership as an
institution at local level on matters affecting local
communities.
(2)
To
deal with matters relating to traditional leadership, the role of
traditional leaders, customary law and the customs of communities
observing a system of customary law-
(a)
national
or provincial legislation may provide for the establishment of houses
of traditional leaders; and
(b)
national
legislation may establish a council of traditional leaders
.”
The
Framework Act and the Gauteng Act comprise the national and
provincial legislation referred to in section 212 of the Constitution
The Framework Act
38.
The
Framework Act came into operation on 24 September 2004. The Act
provides for the recognition of traditional communities, the
establishment, the recognition of traditional councils and the
recognition of traditional leaders and the roles and functions of
the
latter.
39.
The
Framework Act states the following in its preamble as its purpose:
“
to
set out a national framework and norms and standards that will define
the place and role of traditional leadership within the
new system of
democratic governance;”
“
to
transform the institution in line with constitutional imperatives;”
“
the
institution of traditional leadership must be transformed to be in
harmony with the Constitution and the Bill of Rights so that-
democratic
governance and the values of an open and democratic society may be
promoted; andgender equality within the institution
of traditional
leadership may progressively be advanced
.”
40.
Section
2 of the Framework Act makes provision for the recognition of
traditional communities. In terms of Section 2(2)(a) it authorises
the Premier of a province to, by notice in the Provincial Gazette,
recognise a community as a traditional community.
41.
Once
the Premier has recognised a traditional community that traditional
community must establish a traditional council in line
with the
principles set out in provincial legislation.
42.
The
Framework Act defines ‘senior traditional leader’ to mean
a traditional leader of a specific traditional community
who
exercises authority over a number of headmen or headwomen in
accordance with customary law, or within whose area of jurisdiction
a
number of headmen or headwomen exercise authority.
43.
The
term ‘traditional leader’ is defined in the Framework Act
as any person who, in terms of Customary Law of the traditional
community concerned, holds a traditional leadership position and is
recognised in terms of the Framework Act. A traditional
leader
performs the functions provided for in terms of customary law and
customs of the traditional community concerned and in
applicable
legislation.
44.
In
terms of section 11 of the Framework Act the Premier of a province
must recognise a person as a senior traditional leader, headman
or
headwoman by publication of a notice to that effect in the Provincial
Gazette after the latter has been identified as such in
accordance
with provincial legislation by the royal family of that traditional
community.
45.
Whenever
a dispute or claim concerning customary law or customs arises between
or within traditional communities or other customary
institutions on
a matter arising from the implementation of the Framework Act which
cannot be resolved as provided for in the Act,
the dispute must be
referred to the Commission on Traditional Leadership Disputes and
Claims established in terms of section 22(1)
of the Framework Act
(hereinafter ‘the National Commission’).
46.
The
National Commission has authority to investigate and make
recommendations on a case where there is doubt as to whether a
kingship
or principal traditional leadership, senior traditional
leadership or headman ship was established in accordance with
customary
law and customs.
47.
Section
28 of the Framework Act provides for the recognition and continued
existence of traditional leaders, tribes and tribal authorities
who
were appointed and recognised as such prior to 24 September 2004 (the
date of commencement the Act):
47.1. Any
traditional leader who was appointed as such in terms of applicable
provincial legislation and was still recognised as
a traditional
leader immediately before the commencement of the Act, is deemed to
have been recognised as such (section 28(1);
47.2 Any 'tribe'
that, immediately before the commencement of this Act, had been
established and was still recognised as such, is
deemed to be a
traditional community contemplated in the Act subject to the
withdrawal of its recognition in accordance with the
provisions of
section 7 of the Act or a decision of the National Commission
(section 28(3);
47.3 A tribal
authority that, immediately before the commencement of this Act, had
been established and was still recognised as
such, is deemed to be a
traditional council contemplated in the Act and must perform the
functions referred to in section of the
Act (section 28(4).
48.
The
functions of a traditional council are set out in section 7 of the
Framework Act and include administering the affairs of the
traditional community in accordance with customs and tradition and
performing the functions conferred by customary law, customs
and
statutory law consistent with the Constitution.
The Gauteng Act
49.
The
Gauteng Act came onto operation on 6 June 2011. Section 2 of the Act
empowers the Premier to recognise a community as a traditional
community by notice in the Provincial Gazette under certain
circumstances.
50.
The
Gauteng Act further states in its preamble: “that the Province
of Gauteng, in accordance with the Constitution, National
Policy
Framework and the Traditional Leadership and Governance Framework
Act, 2003 (Act 41 of 2003), acknowledges the existence
of traditional
communities in the Province, and seeks to-
“
recognise,
protect, preserve, transform, as well as to provide an enabling
environment for the development of, traditional communities,
traditional institutions, customary law and customs;
“
define
a place and role for traditional leadership within the system of
democratic governance in South Africa
”
.
51.
In
terms of section 52 read with 54 of the Gauteng Act, a traditional
leader performs any function provided for in terms of customary
law
(subject to section 20 of the Framework Act) and has to promote the
interests of the traditional community concerned in consultation
with
the traditional council.
52.
A
traditional leader is bound by the decisions of a traditional council
for the development and general socio-economic upliftment
of the
traditional community concerned.
53.
The
functions of recognised traditional councils are set out in section 7
of the Gauteng Act and include managing the affairs of
the
traditional community in accordance with the customary law and
customs of the community.
54.
The
funds of a traditional council consists of all monies which, in
accordance with the customary law of the traditional community,
are
payable to the traditional council. In terms of section 25(1), the
MEC must open or cause to be opened a trust account for
each
traditional council from which all expenses of the council should be
met.
55.
Any
person who purports to act as a traditional leader in terms of the
Gauteng Act without being recognised as such in terms of
that Act or
who obstructs the performance of functions by any traditional leader
or traditional council which has been recognised
as such in terms of
the Gauteng Act, is guilty of an offence and liable on conviction to
a fine or imprisonment or both in terms
of section 77 of the Gauteng
Act.
56.
The
applicants submitted that the effect of the Constitution, the
Framework Act and the Gauteng Act on traditional leadership in
terms
of customary law in Gauteng is that:
56.1
traditional
leadership is transformed, established and recognised in accordance
with the Constitution;
56.2
the
composition of traditional councils was transformed to provide for
elements of democracy (40% of members must be elected) and
gender
representation (a third must be women);
56.3
traditional
leadership in terms of customary law may not:
56.3.1
purport
to be a traditional leader in terms of the Gauteng Act without being
recognised as such in terms that Act;
56.3.2
obstruct
the performance of functions by any traditional leader or traditional
council which has been established and recognised
in terms of the
Gauteng Act.
THE ISSUES ON THE
MERITS IN RESPECT OF THE RELIEF CLAIMED IN PRAYERS 7.4 TO 7.6 OF
PORTION B OF THE NOTICE OF MOTION
57.
The
main issues on the merits between applicants and first respondent
are:
57.1
whether
the Amandebele-Ba-Lebelo Traditional community is the successor in
name of the Ndebele Tribe under Chief Johannes Kekana
and is entitled
to beneficial occupation and ownership in respect of Portions 2 and
11 of Leeuwkraal 92 JR in terms of Deed of
Transfer T7775/1916 and in
respect of Portion 2 of Tweefontein 94 JR in terms of Deed of
Transfer T4563/1924;
57.2
whether
the control of the beneficial occupation and use of the Portions 2
and 11of Leeuwkraal 92 JR and of Portion 2 of Tweefontein
94 JR vests
exclusively in the applicants in terms of the Framework Act and the
Gauteng Act (and in terms of custom);
57.3
what
the name of the tribe or traditional community is which resides and
occupies the aforesaid properties;
57.4
who the
owner of the land is which were held in trust for the Ndebele tribe
by the fourteenth respondent;
57.5
whether
first and tenth respondents together with eleventh to thirteenth
respondents unlawfully and illegally transferred the beneficial
use
and or occupation of the land from the fourteenth respondent to tenth
respondent.
58.
These
disputes relate to the same tribe and/or traditional community, with
the same area of jurisdiction and for whose benefit and
occupation
the same land had been held in trust by the fourteenth respondent
until 2010. During 2010 first and tenth respondents
together with
eleventh to thirteenth respondents unlawfully and without permission
or knowledge of the fourteenth respondent caused
the unlawful
endorsements of the title deeds of the land which resulted in the
transfer of management or control of the use and
occupation of the
land from the Ndebele Tribe to the tenth respondent.
59.
The
first respondent contended that he as the paramount Chief of the
Amandebele-A-Moletlane tribe and second to seventh respondents
as
members of the tenth respondent were entitled to subdivide, develop,
occupy, dispose or move onto or use portion 2 of Leeuwkraal
92JR and
the southern portion of Portion 2 of Tweefontein 94JR (“the
land”) because the Amandebele-A-Moletlane tribe
owns this land.
60.
The
grounds upon which the first respondent opposes this application, are
as follows:
60.1
The
Amandebele-A-Moletlane traditional community resided on the land
since 1916.
60.2
The
change of the name from the Amandebele-A- Moletlane traditional
community to Amandebele-Ba-Lebelo was unlawful.
60.3
Any
reference to the Amandebele-Ba-Lebelo traditional community is a
reference to the Amandebele-A-Moletlane traditional community
and it
is the latter community that resides on the land;
60.4
The
first respondent is, as legitimate direct descendant of Chief
Johannes Mokonyama Kekana, the paramount chief of the
Amandebele-A-Moletlane
and by necessary implication therefore also
the tribe that now resides on the land and which is (unlawfully
according to the first
respondent) known as the Amandebele-Ba-Lebelo;
60.5
The
Amandebele-A-Moletlane tribe does not recognise the second applicant
as their Chief despite the MEC for Local Government of
Gauteng having
recognised him as such;
60.6
The
second applicant was therefore appointed as senior traditional leader
of a tribe that does not exist and which cannot and does
not own any
land and the first applicant was appointed as the traditional council
of a tribe which does not exist and applicants
can therefore not
exercise any control over the land;
60.7
The
first respondent is recognised as the paramount traditional leader of
the Amandebele-A-Moletlane tribe in terms of customary
law and the
customs of the Amandebele-A-Moletlane tribe and that he has the
status of principal traditional leader.
61.
The
applicants submitted that the crux of the matter is not what the name
of the tribe or traditional community should be or whether
the tribe
or community owns the land but what traditional leader and which
traditional council is entitled to control and dispose
of the land
which was set aside for the occupation and use of the tribe or
traditional community and which is situated within the
area of
jurisdiction of the first applicant.
62.
The
applicants submitted further that nothing turns on the issue of what
the name of the tribe or traditional community is, or should
be, as
all other disputes relate to the same tribe and traditional community
with the same area of jurisdiction and control of
the same land.
63.
The
first respondent’s contention that the Amandebele-Ba-Lebelo
tribe or traditional community does not exist because its
name is not
the Amandebele-Ba-Lebelo tribe but the Amandebele-A-Moletlane tribe
appears does not make any sense. The applicants
submitted that the
existence of this tribe or traditional community is not dependant on
what name is assigned to it by the traditional
community or by the
Government. It has officially been recognised as a traditional
community in terms of the Gauteng Act with an
area of jurisdiction.
64.
The
first respondent’s contention that because the
Amandebele-Ba-Lebelo Tribe’s name should be the
Amandebele-A-Moletlane
tribe and that the applicants are not able to
act as traditional leader or as traditional council of this tribe or
traditional
community in respect of the land occupied by them and
which is held for their benefit and occupation also appears to
without substance.
65.
The
Amandebele-Ba-Lebelo tribe has been recognised as a traditional
community, the first applicant as traditional council, and the
second
applicant as senior traditional leader of the Amandebele-Ba-Lebelo
traditional community in terms of the Gauteng Act.
66.
The
applicants’ power to control the land stems from:
66.1 the
Amandebele-Ba-Lebelo traditional community being the successor in
name of the Ndebele tribe for which the land has been
held in trust
by the Minister of Native Affairs and his successors since 1916 and
1924; and
66.2 the Framework
Act and the Gauteng Act and their establishment and recognition in
terms of these Acts as traditional council
and senior traditional
leader of this Amandebele-Ba-Lebelo community (which is also
recognised in terms of the Gauteng Act) for
this land which
constitutes their area of jurisdiction since 1990.
67.
As a
result of the unlawful endorsements to the Title deeds of the land
caused by first, and tenth to thirteen respondents during
2010, the
tenth respondent is at present indicated in the title deeds as the
beneficiary for whom the properties are being held
in trust. The
certificates issued by the ninth respondent further indicate the
tenth respondent as the owner of the two farms.
This important
aspect was not denied by the first respondent in argument.
68.
The
applicants thus submitted that the unlawful endorsements of Title
Deeds T7775/1916 and T4563/1924 should be set aside in view
thereof
that it cannot be disputed (and it is in fact not disputed by any of
the respondents) that the endorsements were effected
and based on
perjurious affidavits and without the knowledge of fourteenth
respondent as the Trustee of the properties.
69.
By
virtue of Deed of Transfer T7775/1916, a portion of the farm
Leeuwkraal No 396 called Michielskraal situated in the district
of
Pretoria was registered in 1916 in the name of the Minister of Native
Affairs in trust for the Ndebele Tribe under Chief Johannes
Kekana.
In terms of the Trust Deed, the Ndebele Tribe was entitled to this
land in accordance with local custom.
70.
On 26
May 1924 by virtue of Deed of Transfer T4563/1924, a portion of the
farm Tweefontein No 275 was registered in the name of
the Minister of
Native Affairs in trust for the Ndebele Tribe under Chief Regent
Abraham Kekana. The Trust Deed states that the
Ndebele Tribe was
entitled to this land in accordance with local custom.
71.
In view
of the facts hereunder, which are common cause, the applicants submit
that the Amandebele-Ba-Lebelo traditional community
is the successor
in name and title of the Ndebele tribe for which the land has been
held in trust by the Minister of Native Affairs
and his successors
since 1916 and 1924. These facts are the following:
71.1. In a
Proclamation dated 14 January 1927 and in a Proclamation dated 6
April 1939 reference is made to the Ndebele Tribe occupying
the above
two properties as to the Amandebele-A-Ba-Ka-Moletlane and the
Amandebele-A-Ba-Ka-Moletlane Tribe of Natives, respectively.
71.2. In Government
Notice 755 dated 29 May 1957, the State President defined the area of
the Amandebele Tribe under Chief Hans
John Carl Kekana and of the
Amandebele Tribal Authority as the area in the Pretoria District
consisting of the farms Leeuwkraal
No 396 and Tweefontein No 275.
71.3. The land on
which the above farms are situate was transferred to the former
Republic of Bophuthatswana and on 16 August 1990
the President of
Bophuthatswana renamed the Amandebele Tribe and the Amandebele Tribal
Authority to the Amandebele-Ba-Lebelo Tribe
and the
Amandebele-Ba-Lebelo Tribal Authority respectively. The tribal area
of the Amandebele-Ba-Lebelo Tribe and of the Amandebele-Ba-Lebelo
Tribal Authority was defined by this notice as Portions 2 and 11 of
Leeuwkraal 92JR and Portion 2 of Tweefontein 94JR.
71.4. The property
known as Tweefontein No 275 was renamed as Portion 2 of Tweefontein
94JR. The property known as Leeuwkraal 396
was renamed to Portion 2
of Leeuwkraal 92JR.
71.5. After the
re-incorporation of Bophuthatswana into the Republic of South Africa
in 1994, the Amandebele-Ba-Lebelo Tribal area
formed part of the
North West Province until 2005 when it was incorporated as part of
Gauteng Province.
71.6. The authority
and control of the Amandebele-Ba-Lebelo Traditional Council over the
property is further evidenced by the fact
that on 26 August 2003 the
Premier, North West Province, approved a by-law made by the
Amandebele-Ba-Lebelo Tribal Authority relating
to the payment of
affiliation fees within the tribal area.
72.
In
terms of the two title deeds of 1916 and 1924 the properties were
held by the Minister of Native Affairs and his successors,
which
include the fourteenth respondent, in trust for the Ndebele tribe.
The Minister of Native Affairs was the trustee and registered
owner
of the properties and the fourteenth respondent is now the trustee
and registered owner of the properties.
73.
The
certificate issued by the ninth respondent setting out that the tenth
respondent is the owner of the properties, is therefore
clearly
incorrect.
74.
The
remaining and main issue between applicants and first and tenth
respondents is whether first and tenth respondents have been,
and
are, entitled to regulate the subdivision, development, occupation,
disposal or use of the land held in trust for the traditional
community and whether such right vests exclusively in the applicants
in terms of the Gauteng Act as the officially recognised and
appointed traditional leader and traditional council for this
recognised traditional community.
75.
The
applicants submitted that the right or entitlement to regulate the
subdivision, development, occupation, disposal or use of
the land
held in trust for the traditional community vests exclusively in the
applicants as the officially recognised and appointed
traditional
leader and traditional council for this recognised traditional
community for the following reasons:
75.1
The MEC
responsible for Local Government, Gauteng Province recognised the
Amandebele-Ba-Lebelo Traditional Council;
75.2
The
Tolo Commission investigated the dispute between the second applicant
and amongst others the first respondent concerning the
chieftainship
of the first applicant and recommended that the second
applicant’s claim to the chieftainship of the
Amandebele-Ba-Lebelo Traditional Community be confirmed; the MEC:
Co-Operative Government and Traditional Affairs: Gauteng Province
accepted the findings of the Tolo Commission and on 10 October 2012
the second applicant’s appointment as Senior Traditional
Leader
of the first applicant was confirmed in line with the provisions of
section 61(3) of the Framework Act;
75.3
On 12
December 2012 the MEC issued a Certificate of Recognition,
recognising the Second Applicant as the Kgosi of the
Amandebele-Ba-Lebelo
community;
75.4
The
second applicant was recognised as Senior Traditional Leader of the
Amandebele-Ba-Lebelo Traditional Community in terms of Notice
296 of
2013 published in the Provincial Gazette dated 17 January 2013;
75.5
It
appears to be common cause between applicants and first and tenth
respondents that:
75.5.1
the
traditional community residing on the land is officially recognised
as the Amandebele-Ba-Lebelo traditional community;
75.5.2
the
first applicant is officially recognised as the Traditional Council
of this traditional community in terms of the Gauteng Act;
75.5.3
Second
applicant is officially recognised as the senior traditional leader
of this traditional community in terms of the Gauteng
Act;
75.5.4
portions
2 and 11 of Leeuwkraal 92JR (previously Leeuwkraal 396) and portion 2
of Tweefontein 94JR (previously Tweefontein 275)
have been designated
and recognised as the tribal area of the Amandebele-Ba-Lebelo tribe
and of the Amandebele-Ba-Lebelo Tribal
Authority since 16 August
1990;
75.5.5
the
Amandebele-A-Moletlane Tribe was not established or recognised as a
tribe in terms of legislation which was in force before
the
commencement of the Framework Act;
75.5.6
the
Amandebele-A-Moletlane Tribe has not been recognised as a traditional
community or principal traditional community in terms
of the
Framework Act or the Gauteng Act;
75.5.7
no
traditional community with the name Amandebele-A-Moletlane has been
recognised as a traditional community or principal traditional
community in terms of the Framework Act, in terms of the Gauteng Act
or in terms of any other Act before or after 1990;
75.5.8
the
tenth respondent has not been established or recognised as a
principal traditional council or a traditional council in terms
of
the Framework Act or the Gauteng Act or in terms of any other Act
which were in force before the commencement of the Framework
Act;
75.5.9
the
first respondent has not been recognised as a king, principal
traditional leader, senior traditional leader, traditional leader,
or
headman in terms of the Framework Act, the Gauteng Act or in terms of
any other Act which were in force before the commencement
of the
Framework Act;
75.5.10
the
first respondent has not been appointed or recognised as chief or
paramount chief of the Amandebele-A-Moletlane Tribal Council
or tribe
in terms of any Act of Parliament or by the National Government of
South Africa, the Provincial Government of Northwest,
The Provincial
Government of Gauteng or the Government of Bophuthatswana;
75.5.11
Portions
2 and 11 of Leeuwkraal 92JR (previously Leeuwkraal 396) and portion 2
of Tweefontein 94JR (previously Tweefontein 275)
have not been
designated as the area of jurisdiction of the Amandebele-A-Moletlane
Tribal Council in terms of the Framework Act,
the Gauteng Act or in
terms of any other act which were in force before the commencement of
the Framework Act or the Gauteng Act.
76.
It was
argued, based on the aforegoing, that the second
applicant is entitled to exercise exclusive control over the
allocation, subdivision, development and use of the properties on
behalf of the Amandebele-Ba-Lebelo Traditional Community who
is the
beneficial owner of the property, for the following reasons:
76.1
The
functions bestowed on applicants as traditional leader and
traditional council which had been recognised ito Framework Act and
by Gauteng Act include managing the affairs of the
Amandebele-Ba-Lebelo traditional community on Portions 2 and 11 of
Leeuwkraal
92JR (previously Leeuwkraal 396) and portion 2 of
Tweefontein 94JR (previously Tweefontein 275).
76.2
The
first, and tenth respondents (and second to seventh respondents are
obstructing the performance of these functions by the applicants
as
the recognised traditional Council and as traditional leader
recognised in terms of the Framework Act and the Gauteng Act by
changing the identity of the persons or entity who is entitled to the
beneficial use and enjoyment of the property and by purporting
to
subdivide and or to dispose of portions thereof and they are
therefore committing an offence in terms of section 77 of the Gauteng
Act.
77.
The
applicants submitted that as a result they are entitled to the
declaratory orders prayed for in Prayers 7.4 to 7.6 of Portion
B of
the Notice of motion.
RELIEF SOUGHT IN
PRAYERS 7.2 AND 7.3 OF PORTION B OF THE NOTICE OF MOTION
78.
The respondents admit that on or about 20 January 2010, the tenth to
thirteenth respondents and the first respondent, unlawfully
and
without having any permission to do so, caused the name of the
“Ndebele Tribe” to be changed to “Amandebele-A-Moletlane
Tribal Council” on:
78.1. Deed of
Transfer T7775/1916 by virtue of endorsement BC002256/10; and
78.2. Deed of
Transfer T4563/1924 by virtue of endorsement BC002256/10.
79.
In
order to effect the aforesaid endorsements, the tenth respondent’s
attorney (Mr Mabe) on 14 January 2010 applied to the
Registrar of
Deeds for certified copies of the aforesaid Title Deeds. On the
same day, Mr Mabe also filed an affidavit to
effect a name change in
terms of section 3(1)(v) of the Deeds Registries Act, Act 47 of 1937.
80.
The
respondents do not dispute that the entire contents of the affidavit
by their attorney deposed to in support for their application
for
certified copies of the Title Deeds was incorrect (including the
allegation that the original two deeds of transfer were lost).
81.
The
respondents also admit that the entire contents of the affidavit by
their attorney deposed to in support for the application
for a name
change was incorrect in that (amongst others):
81.1. the Ndebele
Tribe was not the registered holder of the Deeds of Transfer T
7775/1916 or T 4365/1924. The Minister of Native
Affairs (now the
Minister of Rural Development and Land Reform) was the registered
holder in his capacity as trustee for the Ndebele
Tribe;
81.2. the name of
the Ndebele Tribe was not changed to the Amandebele-A-Moletlane
Tribal Council or Traditional Authority but to
the
Amandebele-Ba-Lebelo Traditional Community or Traditional Authority;
81.3. there existed
no evidence that the name of the Ndebele Tribe was changed to the
Amandebele-A-Moletlane Traditional Authority;
81.4. there existed
no evidence that any Amandebele-A-Moletlane Traditional Authority or
Amandebele-A-Moletlane Traditional Council
situated at or near
Hammanskraal had been established or was officially recognised in
terms of any legislation or otherwise;
81.5. there exists
ample authority that the name of the Ndebele Tribe was changed to the
Amandebele-Ba-Lebelo traditional Authority
with the second respondent
as traditional authority and that the Ndebele Tribe has officially
been renamed and recognised as such
since 1990;
81.6. the change of
the name of the Ndebele Tribe to the Amandebele-A-Moletlane
Traditional Council in the two deeds of transfer
resulted in a change
of legal personality of the traditional authority for whom the two
farms were registered in trust, meaning
from the Ndebele Tribe (now
the Amandebele-Ba-Lebelo Traditional Community) to the
Amandebele-A-Moletlane Traditional Authority.
82.
The
effect of the endorsements on the Title Deeds of the properties is
that these properties are no longer held by the Minister
in trust for
and on behalf of the Ndebele Tribe (and for the Amandebele-Ba-Lebelo
Traditional community).
83.
According
to certificates issued by the Deeds Registry Pretoria, the
Amandebele-A-Moletlane Traditional Authority is now indicated
as the
registered owner of the properties.
84.
It was
submitted that these certificates issued by the Deeds Registry are
incorrect. In terms of the endorsed title deeds the fourteenth
respondent remained the registered owner and trustee of the
properties held on behalf of the Amandebele-A-Moletlane Traditional
Authority.
85.
It was
submitted that endorsement BC002256/10 of Deeds of Transfer
T7775/1916 and T4563/1926 dated 20 January 2010, which changed
the
name of the beneficiary on behalf of which the properties were held
in trust, from the “Ndebele Tribe to the
“Amandebele-A-Moletlane
Tribal Council” should be set
aside and be declared invalid on the following grounds:
85.1. the name of
the “Ndebele Tribe” on behalf of which these properties
were registered in these Deeds of Transfer
in the name of the
Minister of Native Affairs in trust and for the benefit of this tribe
was changed to the Amandebele-Ba-Lebelo
Traditional Authority in
1990;
85.2. this name was
changed to and officially recognised in terms of the Framework Act
and the Gauteng Traditional Act as the Amandebele-Ba-Lebelo
Traditional Community with the first applicant as its council and
governing body and with second applicant as its Senior Traditional
Leader;
85.3. the name of
the Ndebele tribe on behalf of which these properties were registered
in these Deeds of Transfer in the name of
the Minister of Native
Affairs in trust and for the benefit of the Ndebele tribe has since
1959 to date not been changed to or
recognised in terms of any law as
the Amandebele-A-Moletlane Tribe or the Amandebele-A-Moletlane
Traditional Authority or the Amandebele-A-Moletlane
Tribal Council;
85.4. the tenth
respondent, the Amandebele-A-Moletlane Traditional Authority, or the
first respondent has not been appointed or
recognised as such in
terms of the Framework Act or in terms of any other Act to date;
85.5. the tenth
respondent did not have any power or entitlement to resolve that the
name of the “Ndebele Tribe” in
these deeds of transfer be
changed to the “Amandebele-A-Moletlane Traditional Authority”
or to cause that the name
of the “Ndebele Tribe” in these
deeds of transfer be changed to the “Amandebele-A-Moletlane
Tribal Council”;
85.6. the effect of
the name changes on these deeds of transfer caused by tenth and first
respondents is, that the beneficial use
of these properties was
changed unlawfully from the “Ndebele tribe” to the
Amandebele-A-Moletlane Tribal Council without
the knowledge or
permission of the:
85.6.1 applicants;
and
85.6.2 the “Ndebele
Tribe”; and
85.6.3 the Minister
of Rural Development and Land Reform as the Trustee and registered
owner of these properties;
85.7. The tenth
respondent’s name was inserted unlawfully into the tittle deeds
of the two properties;
85.8. The first
respondent admitted that the transfer of the land to the name of
Amandebele-A-Moletlane was unlawful because it
was done without
consulting the Minister of Rural Development and Land Reform as
Trustee of the land;
85.9. The
endorsements were the result of an unlawful scheme devised and put
into operation by the first and the tenth respondents
to take away
the first applicant’s beneficial use and control over the
properties without the knowledge or permission of
the first applicant
and the Minister who is the Trustee and Registered owner thereof;
85.10. The Registrar
of Deeds was in terms of section 93(1) of the Deeds Registries Act
entitled to register a change of name if
he was satisfied that no
change of legal personality was implied in such change of name. The
change of name did imply a change
of legal personality and the
Registrar was intentionally and unlawfully misled by the false
affidavit deposed to by Mr Mabe on
behalf of the tenth respondent, to
effect the change of name;
85.11. The
Amandebele-A-Moletlane Traditional Authority or the tenth respondent
have not been appointed or recognised as such in
terms of the
Framework Act or the Gauteng Act and the tenth respondent had no
power or entitlement to apply to the Registrar of
Deeds for the name
change;
86.
The applicants submitted that they have made out a case for the
granting of the final relief in prayers 7.2 and 7.3 of Part
B of the
Notice of Motion. I am inclined to agree.
THE RELIEF SOUGHT
IN PRAYER 7.1 OF PORTION B OF THE NOTICE OF MOTION
87.
Section 98 of the Deeds Registries Act, Act 47 of 1937 provides that
if a copy of a registered deed or other document has been
issued, in
manner prescribed by regulation, in substitution of a deed or other
document which has been lost or is believed to have
been destroyed,
the original deed or other document, if still in existence, shall
thereupon become void.
88.
It was submitted that, because the two original deeds of transfer are
still kept in safe custody by the Department of Rural
Development and
Land Reform on behalf of the Minister, the applicants are also
entitled to an order:
88.1 declaring the
original deeds of transfer to be the valid deeds of transfer of the
properties;
88.2 declaring that
the original certificated copies of the deeds of transfer which had
been issued by the ninth respondent to first
and/or tenth respondents
be declared of no force and effect;
88.3. that the
respondents be ordered to forthwith surrender the original
certificated copy of the aforesaid deeds of transfer;
alternatively
to state under oath the whereabouts of such copies if known to them.
CONFIRMATION OF
THE RULE NISI
89.
The applicants submitted that the following facts have not been
disputed by the respondents:
89.1. The first
applicant and the Amandebele-Ba-Lebelo Traditional Community on 24
July 2005 resolved unanimously that the existing
settlements on the
properties be redeveloped. The Minister of Land Affairs as Trustee of
the Amandebele-Ba-Lebelo Traditional Community
on 17 July 2006
approved of this resolution and in terms of section 19(1)(b)(iii),
10(1)(b)(vi), 10(1)(3) and section 10(1)€(ii)
of the Provision
of Land and Assistance Act, Act 126 of 1993, for the securing,
upgrading and registering of tenure rights.
89.2. In terms of
the approval granted, the first applicant intends to develop the
southern portion of Portion 2 of Tweefontein
94JR situated south of
Lucas Mangope Drive by dividing the property into 6341 residential
stands and 18 business stands. It also
intends to erect 3 primary
schools, 1 secondary school, 3 community facilities, 5 crèches,
4 churches, 6 clinics and 6 taxi
stands on the vacant portion of
Tweefontein.
89.3. The first
applicant has not since obtaining approval for the development,
permitted any person to occupy, subdivide, demarcate
stands or
allocate of sell stands thereon.
90.
The first respondent maintains that the Amandebele-Ba-Lebelo
Traditional Community does not exist. This argument I find difficult
to accept in the light of the applicants’ submissions, the
facts admitted by the first respondent and the applicable
legislation.
According to the first respondent the community that
resides on the properties is the Amandebele-A-Moletlane Traditional
Community
and that he, and not the second applicant, is the Senior
Traditional leader of the Amandebele-A-Moletlane Traditional
Community,
and is entitled to develop the land.
91.
The respondents admit that the first respondent during a meeting held
on Monday 27 May 2013 made it clear to (amongst others)
the first
applicant, representatives of the Municipality, the second to eighth
respondents and members of the Amandebele-Ba-Lebelo
traditional
community that he was the paramount chief of the
Amandebele-A-Moletlane, that he has the title deed to the land and
that he will allocate the land.
92.
The respondents do not deny that:
92.1 during a radio
interview on 10 June 2013, the fifth respondent stated that they (the
fourth, fifth and sixth respondents) were
appointed by the first
respondent who was the owner and title holder of Tweefontein 94JR and
that the first respondent instructed
them and gave them permission to
start the process of allocating stands thereon to the community;
92.2 during a radio
interview on 25 June 2013, the First respondent again affirmed that
he was the owner and title holder of the
properties and the King of
the Amandebele-A-Moletlane and that he was entitled to allocate
stands on this land;
92.3 after 25 June
2013, first to seventh respondents started to subdivide the vacant
portion of Portion 2 of Tweefontein 94JR south
of Lucas Mangope Drive
into stands which they are allocating and selling to members of the
local community including the ninth
respondent at R700 per stand;
they utilise 3 show houses erected on the property for the allocation
and selling of stands and some
425 people have already registered
with the respondents for the allocation of sites;
92.4 the eighth
respondent has after 25 June 2013 moved onto the southern portion of
the Farm Tweefontein, which was vacant, during
daytime, and started
to mark out stands and to clear the vegetation thereon; on Sunday 7
July 2013 the eighth respondent commenced
to erect temporary
structures on that portion of the property;
92.5 six incomplete
structures have been erected by the respondents on the property and
as soon as these are completed, the eighth
respondent will move into
these temporary structures and commence to reside therein; this is
likely to lead to a chaotic and uncontrolled
invasion of the vacant
southern portion of the Farm Tweefontein by eighth respondent and
others which are likely to become permanent;
92.6 the respondents
paid the proceeds they obtained from of the sale of the stands into
ABSA bank account no 4[...] kept by the
Trust at Temba City Centre
Hammanskraal.
93.
The applicants submitted that they, as the duly appointed and
recognised traditional council and senior traditional leader of
the
Amandebele-Ba-Lebelo traditional community respectively, are
responsible (amongst others) to manage the affairs of the
Amandebele-Ba-Lebelo
traditional community on the land described as
Portions 2 and 11 of Leeuwkraal 92JR (previously Leeuwkraal 396) and
portion 2 of
Tweefontein 94JR (previously Tweefontein 275).
94.
The second applicant is bound by the decisions of the first applicant
including the first applicant’s decision for the
development
and general socio-economic upliftment of the traditional community
concerned.
95.
The first respondent is not recognised as traditional leader in terms
of the Gauteng Act and by wilfully obstructing the performance
of the
functions of the first and the second applicant (by purporting to
deal with the land), he committed an criminal offence
which is
punishable by a fine of R12 000.00 or imprisonment not exceeding 12
months, or, in serious cases, both such fine and imprisonment.
96.
As a result and in the premises, the applicants have demonstrated:
96.1. they have a
clear right to the relief set out in Part A of the Notice of Motion;
96.2. the existence
of an injury actually committed or reasonably apprehended;
96.3. that they have
no satisfactory alternative remedy.
97.
It was submitted that based on the aforegoing the applicants:
97.1. have made out
a case for the confirmation of the rule nisi; and
97.2. are also
entitled to an order that account no 6232330875 opened and/or
operated in the name of the first respondent and/or
tenth respondent
and/or seventeenth and eighteenth respondents be frozen pending the
outcome of an action to be instituted against
the first, tenth and
seventeenth respondents by the first applicant for the following
relief:
97.2.1 an account
setting out full particulars of all amounts obtained from any
respondent in respect of the purported subdivision
and/or sale of
stands on the land described as Portions 2 and 11 of Leeuwkraal 92JR
(previously Leeuwkraal 396) and portion 2 of
Tweefontein 94JR
(previously Tweefontein 275);
97.2.2 payment to
the first applicant of any amount obtained from any respondent in
respect of the purported subdivision and/or
sale of stands on the
aforesaid land;
97.2.3 first
applicant is ordered to return all monies so paid over to it by the
first and/or tenth and/or seventeenth respondent
to the person(s) who
originally paid such monies over to the said respondent(s) and to
report under oath back to the Honourable
Court what the first
applicant has done.
97.3. The applicants
submitted that they are entitled to the relief set out in paragraph 2
of the draft order handed up to me. I
deal with this hereunder.
THE FIRST
RESPONDENT’S ATTEMPT TO FILE A SUPPLEMENTARY ANSWERING
AFFIDAVIT
98.
The first respondent attempted to file a supplementary answering
affidavit on 18 February 2014 but was informed by the Deputy
Judge
President Judge that he is not entitled to do so and must apply for
leave to do so from the Court at the hearing of this
application.
99.
No such formal application was made before me other than submission
from the bar and it is unnecessary to deal with this aspect
any
further save that the first respondent’s supplementary
answering affidavit was disallowed.
CONCLUSION
100.
Consequently I am of the view that the applicants have made out a
proper case for the relief sought and under the circumstances
I make
the following order:
1.
The
rule
nisi
issued
on 17 July 2013 is confirmed.
2.
The ABSA account no 4[...] at Temba City Centre Hammanskraal opened
and/or operated in the name of the first respondent and/or
tenth
respondent and/or seventeenth and/or eighteenth respondents or in the
name of the Ingwenyama Royal Trust shall remain frozen
pending the
outcome of an action to be instituted against the first, tenth and
seventeenth respondents by the first applicant
within
30 days from the date of this order, for the following relief:
2.1
An
account setting out full particulars of all amounts obtained from any
of the respondents in respect of the purported subdivision
and/or
sale of stands on the land described as portions 2 and 11 of
Leeuwkraal 92 JR (previously Leeuwkraal 396) and portion 2
of
Tweefontein 94 JR (previously Tweefontein 275);
2.2
Payment
to the first applicant of any amount obtained from any of the
respondents in respect of the purported subdivision and/or
sale of
stands on the aforesaid land;
2.3
The
first applicant is ordered to return all monies so paid over to it by
the first and/or tenth and/or seventeenth respondent to
the person(s)
who originally paid such monies over to the said respondent (s) and
to report under oath to the above Honourable
Court on what the first
applicant has done
3.
The
certification by the Registrar of Deeds of the copies of Title Deeds
T7775/1916 and T4563/1924 in terms of regulation 68 under
the Deeds
Registrations Act, Act 47 of 1937 dated 20 January 2010 is hereby set
aside.
4.
The
respondents are ordered to forthwith surrender the original
certificated copies of the deeds of transfer referred to in paragraph
3; alternatively to state under oath the whereabouts of such copies
if known to them.
5.
The
ninth respondent is ordered to cancel the endorsement No BC002256/10
dated 20 January 2010 on the Deed of Transfer no 7775/1916
in respect
of Portion 2 of the farm Leeuwkraal 92JR
6.
The
ninth respondent is ordered to cancel the endorsement No BC002256/10
dated 20 January 2010 on the Deed of Transfer No 4563/1924
in respect
of Portion 2 of the farm Tweefontein 94JR.
7.
It is
declared that the Amandebele-Ba-Lebelo Traditional Community is the
successor in name and title of the Ndebele Tribe under
Chief Johannes
Kekana and is entitled to the beneficial occupation and use of
Portions 2 and 11 of Leeuwkraal 92JR in terms of
Deed of Transfer
T7775/1916.
8.
It is
declared that the Amandebele-Ba-Lebelo Traditional Community is the
successor in name and title of the Ndebele Tribe under
Chief Johannes
Kekana and is entitled to the beneficial occupation and use of
Portion 2 of Tweefontein 94JR in terms of Deed of
Transfer
T4563/1924.
9.
It is
declared that the control of the beneficial occupation and use of
Portions 2 and 11 of Leeuwkraal 92JR and Portion 2 of Tweefontein
94JR vest exclusively in the Applicants in terms of the
Traditional
Leadership and Governance Framework Act, Act
41 of 2003 and the
Gauteng Traditional Leadership and Governance Act, Act 4 of 2010 in
terms of custom.
10.
It is
declared that the original Deed of Transfer No T7775/1916 in respect
of Portions 2 and 11 of the farm Leeuwkraal 92JR currently
in the
possession of the Fourteenth Respondent (a copy whereof is attached
as Annexure ‘KC32.1’ to the Founding Affidavit
filed
under the above case number) is the valid Deed of Transfer in respect
of the said property.
11.
It is
declared that the original Deed of Transfer No T4563/1924 in respect
of Portion 2 of the farm Tweefontein 94JR currently in
the possession
of the fourteenth respondent (a copy whereof is attached as Annexure
‘KC32.2’ to the founding affidavit
filed under the above
case number) is the valid Deed of Transfer in respect of the said
property.
12.
The
first, tenth and seventeenth respondents are ordered to pay the costs
of the application, jointly and severally the one to pay
the other to
be absolved, which costs shall include the costs consequent upon the
employment of two counsel and the costs of all
previous postponements
of this application.
___________________________
AVVAKOUMIDES, AJ
JUDGE
OF THE HIGH COURT
Representation for
the Applicants:
Counsel: Adv L Van
Wyk SC
Adv B Stoop
Instructed by:
Bernhard Van Der Hoven
Representation for
First and Tenth Respondents:
Counsel: Attorney
Sebola
Instructed by: P
Sebola Inc.