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[2013] ZAGPPHC 155
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Maeteletja v Maeteletja and Others (31565/2012) [2013] ZAGPPHC 155 (12 June 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE NO: 31565/2012
DATE:12/06/2013
In
the matter between:
PATRICK
MOTLATSO
MAETELETJA
...................................................................
APPLICANT
and
FRANS
MADULA
MAETELETJA
…..........................................................
1st
RESPONDENT
CHIEF
DAVID PHETOGO
SELEKA
..........................................................
2nd
RESPONDENT
PREMIER
OF LIMPOPO
PROVINCE
.........................................................
3rd
RESPONDENT
MEC
FOR LOCAL
GOVERNANCE
..............................................................
4
th
RESPONDENT
HOUSE
OF TRADITIONAL
LEADERS.
........................................................
5
th
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The Maeteletja village is a small community which falls under the
Seleka Tribal Office under the Chieftaincy of Chief David
Phetogo
Seieka. The 1st respondent has been appointed and inaugurated as the
headman of this community. The applicant is resisting
the appointment
and has thus approached this court for an order declaring: the
appointment of the 1st respondent as the headman
of the Maeteletja
Community as void ab initio; the applicant as the rightful heir and
successor of the late Lucas Moioko Maeteletja
as the headman
(induna); and directing the 2no to 5th respondents to inaugurate the
applicant as the headman of the Maeteletja
Community.
[2]
It is common cause that in terms of the long established customary
laws of South Africa a headman or headwoman (induna) is appointed
by
the Chief in terms of the established customary laws of that
particular community. The long established customary laws of the
Maeteletja Community are that their headmen (indunas) are appointed
in terms of the customary law of male primogeniture from the
Maeteletja family. The aforesaid customs and practices of the
Maeteletja Community are recognised and protected in terms of section
211 of the Constitution Act, 108 of 1996. The process of appointing
headmen and headwomen is encapsulated in section 11 of the
Traditional Leadership and Governance Framework Act 41 of 2003 (the
national legislation) read with section 12 of the Limpopo Traditional
Leadership and Institution Act 6 of 2005 (the provincial
legislation).
[3]
The applicant’s contention is that the 1st respondent’s
appointment does not comply with the customary laws of the
Maeteletja
Community or the provisions of section 11 of the national legislation
read with section 12 of the provincial legislation.
The applicant
avers that the 1st respondent’s father was not a headman, but a
regent, and, that the 1st respondent was born
out of wedlock. The 1st
respondent was not known to the Maeteletja family until after the
death of his father. He was also not
using the Maeteletja surname. He
changed to this surname after his father passed away.
[4]
The 1st respondent denies these allegations and contends that his
parents
were
married by customary law. He was using his mother’s maiden
surname because at the time of his birth, his mother’s
identity
document was not registered in his father’s surname. He was
able to change his surname to that of his father only
after the
passing away of his father.
[5]
The 2nd to 5th respondents are not opposing the matter.
[6]
The crisp issue to be determined is the validity of the appointment
of the 1st respondent as the headman of the Maeteletja Community.
[7] The institution,
status and the role of traditional leadership is recognised in the
constitution Act 108 1996 – Section
211 therefore provide that
“
(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. '[1]
[8]
The legislation applicable in regard to traditional leadership is the
national legislation read with the provincial legislation
as quoted
in paragraph [2] of this judgment The national legislation mirrors
the provincial legislation. It is, thus, not necessary
for purposes
of this judgment to analyse both legislations. The provincial
legislation specifically applies in the Limpopo Province
where the
Maeteletja Community is situated. I shall, therefore, in my analyses
concentrate on the provincial legislation.
[9]
The procedure for the appointment of a headman or headwoman is set
out in section 12 of the provincial legislation. In terms
of the
section -
“
(1)
Whenever a position of a senior traditional leader headman or head
woman is to be filled-
(a)
the royal family concerned must, within a reasonable time after the
need arises for any of those positions to be filled. and
with due
regard to the customary law of the traditional community concerned-
(i)
identify a person who qualifies in terms of customary law of the
traditional community concerned to assume the position in question:
and
(ii)
through the relevant customary’ structure of the traditional
community concerned and after notifying the traditional
council,
inform the Premier of the particulars of the person so identified to
fill the position and of the reasons for the identification
of the
specific person.
(b)
the Premier must, subject to subsection (2)-
(i)
by notice in the Gazette recognise the person so identified by the
royal family in accordance with paragraph (a) as senior traditional
leader, headman or headwoman, as the case may be;
(ii)
issue a certificate of recognition to the person so recognised; and
(Hi)
inform the provincial house of traditional leaders and the relevant
local house of traditional leaders of the recognition of
a senior
traditional leader, headman or headwoman.
(2)
Where there is evidence or an allegation that the identification of a
person referred to in subsection (1) was not done in accordance
with
customary law, customs or processes, the Premier-
(a)
may refer the matter to the provincial house of traditional leaders
and the relevant local house of traditional leaders for
their
recommendations; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to the royal family for reconsideration
and resolution where the certificate of recognition has been
refused.
(3)
Where the matter which has been referred hack to the royal family for
reconsideration and resolution in terms of subsection
(2) has been
reconsidered and resolved, the Premier must recognise the person
identified
by the royal family if the Premier is satisfied that the
reconsideration
and
resolution by the royal family has been done in accordance with
customary law."
[10]
Subsection (1) (a) of the provincial legislation stipulates that in
the appointment of a headman or headwoman the royal family
must with
due regard to the applicable customary law identify a person who
qualifies in terms of customary law to assume the position
in
question. The provisions of this subsection are peremptory and must
be followed to the letter. In this instance, the royal family
in the
Maeteletja Community were therefore compelled in terms of this
subsection to identify a person who qualified in terms of
customary
law to assume the position of the headman.
[11]
Customary Saw is a body of rules and norms that has developed over
centuries. An enquiry into the position under customary
law will
therefore invariably involve a consideration of the past practices of
a community. The content of customary law must be
determined with
reference to both the history and the usage of the community
concerned. See SHILUBANA & OTHERS v NWAMITWA
2009 (2) SA 66
(CC)
at paras [44] and [46],
[12]
In this instance, the parties are agreed that the Maeteletja family
have always followed the custom of male primogeniture in
appointing a
headman for the community. Primogeniture is the right, by law or
custom, of the firstborn son to inherit the entire
estate, to the
exclusion of younger siblings. It is therefore common cause that the
indunas in
the
Maeteletja Community have always been appointed in terms of this
system. This factor, according to the parties is well known
in the
community. A person who would qualify as a headman in terms of
customary law practised in the Maeteletja Community must
therefore be
the first born son of the reigning headman.
[13]
It is also common cause that the first headman (induna) of the
Maeteletja Community was Sebatana Frans Maetetetja (Sebatana).
When
Sebatana passed away he was succeeded as headman by his son Lucas
Moioko Maeteletja (Moioko). Moioko passed away on 22 October
1992. At
that time his eldest son, the applicant, was still young and could
not take his late father’s throne. The applicant’s
uncle,
Joseph Pale Maeteletja (Pale), was appointed as a regent. Pale was
the half-brother to the applicant’s father. Subsequent
to
Pale’s death, another applicant’s uncle, Moses Thema
Maeteletja (Thema), was appointed regent. Thema was the youngest
brother in the family of the applicant’s father. When Thema
passed away, the applicant was permanently living and working
in
Gauteng. He was at this time ready to take over the throne. The
family agreed that the 1st respondent, who is the son to Thema,
be
appointed as regent until the applicant came back from Gauteng. The
applicant eventually came to settle permanently in the Maeteletja
village. The respondents, however, refused to appoint him as the
headman and instead appointed and inaugurated the 1st respondent.
[14]
The parties are agreed that, in terms of the applicable customary law
the
applicant
was to succeed his father. The royal family instead identified the
1st respondent to assume the position of headman even
though he was
not in iine as per the customary law of primogeniture. The 1st
respondent's iegal representative conceded in argument
that by
identifying the 1st respondent as such, the royal family deviated
from the custom that had been followed for many years
by the
community. The deviation, according to the 1st respondent, had to be
done because it was revealed at that time that the
applicant’s
father, Moloko, was not the biological son of Sebatana, the
applicant’s paternal grandfather. These allegations
are denied
by the applicant.
[15]
This revelation, according to the 1st respondent, was done by
Adelaide Moeteletji the daughter of Sebatana. The revealed
information
was confirmed by Mokgaetsi Letitia Maeteletja (Mokgaetsi)
whose confirmatory affidavit to the 1st respondent’s opposing
affidavit
forms part of the papers before me.
[16]
At the commencement of the hearing I requested the parties’
legal representatives to address me on the question of the
disputes
of facts emanating from the papers, in particular the issue of the
legitimacy of the applicant’s father, Moloko.
The 1st
respondent’s legal representative submitted that it wiii not be
possible for the 1st respondent to provide any other
evidence, except
as already provided for in the papers, to prove that the applicant’s
father was not the biological son of
Sebatana. The 1st respondent
would also not be able to lead viva voce evidence in respect of this
issue due to the fact that the
two ladies, Adelaide and Mokgaetsi
have since passed away.
[17]
Affidavits in application proceedings constitute not only the
evidence but also the pleadings, and therefore, while it is
not
necessary that the answering affidavit set out a formal plea, it must
contain, in the evidence it sets out, all that would
have been
necessary in a trial. See SAUNDERS VALVE CO LTD v INSAiViCOR fPTY)
LTD
1985 (1) SA 144
(TPD) at 149C.
[18]
There is no other evidence before me, in respect of this dispute,
except the confirmatory affidavit of Mokgaetsi. The 1st respondent
in
his answering affidavit does not state the source of Adelaide’s
information. Mokgaetsi in her confirmatory affidavit does
not state
the source of her information as well.
[19]
Adelaide and Mokgaetsi’s revelations, in my view, are secondary
facts and do not constitute evidential material capable
of supporting
the allegation raised. I therefore, find myself constrained to can
accept their evidence as admissible for purposes
of this hearing.
Even if this allegation by Adelaide and Mokgaetsi was true, I would
still be challenged to accept it at this stage
when ii was never
raised at the time Moloko was inaugurated as the headman of the
Maeteletja Community. It is common cause that
Moioko reigned as the
headman between 1989 and 1992, it follows that his lineage must
succeed him.
[20]
The objective inference to be made in the circumstances of this case
is that Moioko was the first born child of Sebatana. Moioko,
correctly so, succeeded Sebatana and his lineage must succeed him as
well. Following the custom of primogeniture the applicant
as the
eldest son of Moioko stood in line to succeed him.
[21]
To my mind, the applicant is correct the 1st respondent’s
father was not in line to be a headman and as a result the
1st
respondent could not have been in line to be a headman. By
appointing, the 1st respondent as headman, the royal family, wrongly
so, deviated from the customs and traditions of the Maeteletja
Community when identifying a person as headman.
[22]
In terms of section 2 of the provincial legislation where there is
evidence or even a mere allegation that the identification
of a
person as a headman or headwoman was not done in accordance with
customary law, customs or processes, of a particular community
the
Premier is open to two options:
(i)
to either refer the matter to the Provincial House of Traditional
Leaders and the relevant Local House of Traditional Leaders
for their
recommendations; or
(is)
to refer the matter back to the Royal Family.
The
Premier has no discretionary power to resolve the dispute on his own,
his power and/or function is expressly restricted by legislation
to
refer the matter to one of the two forums referred to above to obtain
a recommendation or otherwise refer the matter to the
Royal Family
for a resolution. See the unreported judgment in N i LEBQHO &
OTHERS v THE PREMIER OF LIEVfPOPO £ OTHERS
Case No. 37898/2007
delivered on 28 January 2011 at para [26],
[23]
It is the applicant’s contention that he raised the issue of
the failure by the royal family to comply with the provincial
legislation with Chief Seleka who it appears informed the premier.
According to the applicant the grievance was dealt with by Mr
Ramahasha, Ms Kutumela and Mr Shai who were representing the 3rd and
4th respondents. The three officials, aided by what is referred
to as
an anthropologist’s report, took a unilateral decision and
announced the 1st respondent as the successor to Moloko.
The three
officials representing the 3rd and 4th respondents failed to follow
the grievance procedure set out in subsection 2 of
the provincial
legislation.
[24]
Based on the two grounds, namely, failure to comply with the
requisites of the customary law and the provisions of subsection
2 of
the provincial legislation I am inclined to grant the applicant the
relief sought in respect of prayer 1 of his notice of
motion.
[25]
Although it is so that I have considered prayer 2 and 3 of the notice
of motion and have also expressed an opinion as to the
non-compliance
with the processes and procedures. I am, however, hesitant to grant
the relief sought in respect of these prayers.
I am in respectful
agreement with my brother Raulin'ga J when he stated the following:
“
Much
as the court might have formed an opinion on this matter, it would be
disingenuous of me to make an order in terms of prayer
1.3. This will
be tantamount to installing or recognising Ngako Isaac Leboho as
"Kgoshi" and thereby usurping the powers
of the Premier and
all the relevant structures. While it might be necessary to make an
order in exceptional instances, I am not
tempted to do that in this
case. Even if one is of the view that the proper procedures and
processes were not followed in the recognition
of the 2nd Respondent,
one is also mindful of the separation of powers and the respect that
must be accorded to the executive and
its administration. I am
therefore inclined to making an order in terms of prayer 1.1 without
any correction and 1.2. Prayer 1.3
is therefore considered but not
granted. Proper procedures and processes must still be followed to
identify and recognise the "Kgoshi"."
See
the unreported judgment in N I LEBOHO & OTHERS v THE PREMIER OF
LIMPOPO & OTHERS above at para [44],
[26]As
is trite costs follow the successful party. The applicant being the
successful party is therefore entitled to his costs.
[27]
In the premises prayers 1 and 4 of the Notice of Motion are granted.
E.
M. KUBUSHI ---------
JUDGE
OF THE HIGH COURT
Appearances:
HEARD
ON THE : 27 MAY 2013
DATE
OF JUDGMENT : 12 JUNE 2013
APPLICANT’S
ATTORNEY : MALOKA THULARE ATTORNEYS
RESPONDENT’S
ATTORNEY : OBI MATLAILA ATTORNEYS