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[2007] ZAFSHC 65
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Mota v Premier of the Province Free State and Others (1039/2007) [2007] ZAFSHC 65 (7 September 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No: 1039/2007
In
the appeal between:
PARAMOUNT
CHIEF L C MOTA
Applicant
and
PREMIER
OF THE FREE STATE PROVINCE
1
ST
Respondent
THE
MEC FOR THE DEPARTMENT OF
LOCAL
GOVERNMENT AND HOUSING
2
ND
Respondent
SD
SEKONYELA
3
RD
Respondent
THE
FREE STATE HOUSE OF TRADITIONAL
LEADERS
4
TH
Respondent
CORAM:
C.J.
MUSI, J
JUDGMENT:
C.J.
MUSI, J
DATE
HEARD:
16
AUGUST 2007
DATE
DELIVERED:
07
SEPTEMBER 2007
Musi
J
:
[1]
On 16 August 2007 I made an order which
effectively confirmed the
Rule
nisi
in
this matter. These are my reasons for doing so.
[2]
On 9 March 2007 I made the following order:
“
1.
That condonation be granted for applicant’s non
compliance
with this Honourable
Court’s
rules with regard
to
time, procedures and service and that the application
be
heard
as an urgent application in terms of Rule 6 (12).
2.
That Condonation be granted for the short service of this application
on the first,
second
and fourth respondent, and thus, non compliance with section 35 of
the
General
Law Amendment Act.
3.
That a rule nisi be issued, returnable on Thursday, 19 April 2007 in
terms of which
the
respondents are called upon to show cause, if any, why the following
order
should
not be made final:
3.1
Interdicting and restraining the first, second and third respondents,
from
proceeding
with the proposed formal inauguration of the third respondent as
Chief of
the
Thibella District on Saturday, 10 March 2007;
3.2
interdicting and restraining the respondents, from forthwith
arranging and/or
holding
the formal inauguration function of the third respondent, until such
time as
the
Commission on Traditional Leadership Disputes and Claims has dealt
with and
finalised
the dispute referred by the applicant pertaining to the position held
by the
third
respondent as Senior Traditional Leader of Thibella District;
3.3
That those respondents who choose to oppose the application be
ordered to pay
the
costs of this application, jointly and severally, the one paying the
other to be
absolved.
4.
That the order, contained in paragraphs 3.1 and 3.2 hereof, serve as
interim
interdicts
with immediate effect.
5.
That the order be served on the respondents by the Sheriff of this
Honourable
Court,
in accordance with Rule
6.
That the Registrar of this Honourable Court be authorized and
directed to,
telephonically,
convey the contents of this order to the State Attorney,
Bloemfontein.”
[3]
The appellant styles himself as the King
(Paramount Chief) of the Batlokoa
Tribe.
He resides at Phomolong, Witsieshoek, Free State Province. The
first
respondent is the Premier of the Free State Province. The second
respondent
is the MEC for the Department of Local Government and
Housing
in the Free State Province. The third respondent is Mr SD
Sekonyela
and the fourth respondent is the Free State House of
Traditional
Leaders. The matter was defended by the first and second
defendants
only.
[4]
According to the applicant he is the
Paramount Chief of the Batlokoa Tribe
in
the whole Qwa Qwa region since 1989. He contends that the Batlokoa
consist
of three districts, with each district having its own Chief (a
Headman
or Senior Traditional Leader). The district in dispute in this
matter,
the Batlokoa ba Thibella, is one of the districts.
[5]
It is not in dispute that the third
respondent is officially recognised by the
first
respondent. His recognition was announced in the Free State
Provincial
Gazette no 39 of 14 May 2004. The applicant however avers
that
certain customary practices and protocols were not adhered to
during
the recognition process, inter alia:
5.1
The Royal Family, of which he is a member, was not consulted. The
recognition
of the third respondent only came to the knowledge or the
Royal
Family in March 2004;
5.2
A formal inauguration ceremony (installation) at which the third
respondent
is presented to the community over which he was appointed
was
not held.
[6]
Ignorant of the effect of the certificate of
recognition issued by the first
respondent
the Royal Family endeavoured to install their own nominee (M
K
Mota), on 25 August 2006, as traditional leader over the Thibella
District
for
which the third respondent was already “appointed” by the
first
respondent.
The first and second respondents successfully applied, on 24
August
2006, for an interim interdict prohibiting the installation of M K
Mota
as
Chief of the Batlokoa ba Thibella. The interim interdict was not
opposed
and
confirmed on that basis on 21 September 2006. Paragraph 2 of the
order
reads as follows:
“
2
A rule nisi be issued calling upon respondents to give reasons, if
any, to this
Honourable
Court on Thursday, 21 September 2006 at 09h30 why: 2.1 respondents
shall not be interdicted and prohibited from staging
third
respondent’s inauguration as chief of the Batlokwa Tribe in
Thibella, arranged for Friday, 25 August 2006, or to be
arranged at
any stage thereafter, pending the decision of the Commission on
Traditional Leadership Disputes and Claims in respect
of the
Traditional Leadership Position of Chief of the Batlokwa Tribe in
Thibella, alternatively pending any application to have
the decision
of the MEC for Local Government and Housing in terms whereof Dira
Solomon Sekonyela was appointed and recognised as
Chief of the
Batlokwa Tribe in Thibella, be reviewed and set aside.”
[7]
On 6 November 2006 the applicant wrote to
the first
respondent
and registered the Royal House’s discontent and
requested
that the recognition of the third respondent should
be
withdrawn. He received no response.
[8]
On 22 January 2007 the applicant’s
attorneys wrote to the first, second
and
fourth respondents and pointed out that the Royal Family do not
recognise
the third respondent as the Chief of the Batlokoa ba Thibella.
They
inter alia stated that:
“
Due
to the fact that the ongoing dispute with regards to Mr Sekonyela’s
(third respondent) appointment could not be resolved
through various
discussion and correspondence, our clients now wish to formally
involve the procedures prescribed in the Traditional
Leadership and
Governance Framework Act number 41 of 2003 and the Free State
Traditional Leadership and Government Act number 8
of 2005. With
specific reference to section 21 (2) (b) it is our instructions that
the matter has
already
unsuccessfully been referred to the Free State House of Traditional
Leaders and our clients therefore request that the dispute
be
referred to the office of the Premier of the Free State so that the
issue could be resolved.”
It
was also pointed out that the matter requires urgent attention due to
the
tension
that existed between the various factions of the Thibella Tribe.
[9]
On 1 February 2007 the second respondent
responded and intimated that
the
provincial government regards the matter as closed and that they
“
await
the Commission on the Traditional Leadership Disputes to
pronounce
itself as stated in the judgement” with reference to the order
obtained
on 21 September 2006.
[10]
On 19 February 2007 the applicant was informed by Mr
Kaizer
Maxatshwana,
a Chief Director in the second respondent’s office, that the
third
respondent will be inaugurated on 10 March 2007. The applicant
wrote
a letter to the Director Traditional Affairs in the second
respondent’s
office
informing him yet again about the dispute and the fact that the
matter
was
referred to the Commission on Traditional Leadership Disputes (the
Commission).
On 6 March 2007 the Head of Department in the second
respondent’s
office wrote to the applicant and informed him that they are
not
aware that the dispute has been referred to the Commission and that
the
inauguration of the third respondent will go ahead on 10 March 2007.
The
applicant did lodge a complaint with the Commission. On 10 February
2006
the Commission sent him an acknowledgement of receipt which
reads
as follows:
“
I
hereby acknowledge receipt of claim forms. The Commission is
attending to the matter and will further communicate with you in
due
course.”
The
letter is signed on behalf of Prof. Nhlapo who is the Chairperson of
the
Commission.
[11]
The respondents’ evidence is to the effect that
the former area of Qwa
Qwa
comprised of two main tribal authorities, viz the Bakwena and the
Batlokoa
ba Mokotleng tribal communities. The Batlokoa was divided into
three
separate and distinct communities namely the Batlokoa ba
Mokotleng
ba Phomolong under the Chieftainship of the Mota Royal
Family,
the Batlokoa ba Mokotleng ba Linkweng under the Chieftainship of
the
Tsotetsi Royal Family and the Batlokwa ba Mokotleng ba Thibella
under
the Chieftainship of the Sekonyela Royal Family. The applicant only
has
jurisdiction over the Batlokoa ba Mokotleng ba Phomolong and not
over
the other two. The third respondent is the Chief of the Batlokoa ba
Mokotleng
ba Thibella and was so identified by the Royal House of
Sekonyela.
[12]
The respondents point out that the applicant’s
position as Paramount Chief
(King)
of the Batlokoa tribe is the subject of an inquiry by the Commission
and
as far as they are aware no decision has been taken by the
Commission
on this matter. On 9 March 2007 the secretary of the
Commission
wrote a letter to the Head: Local Government and Housing
Free
State Provincial Government, stating to the following:
“
DISPUTE:
THIBELLA SENIOR TRADITIONAL LEADERSHIP:
SD
SEKONYELA
1.
…
2.
…
3.
With regard to the question as to how soon the matter can be expected
to be resolved, unfortunately the Commission cannot commit
to any
date as the “disputes”
will
be handled at Phase 2 of its investigations, which Phase have not
even been commenced with.
4.
The Commission is about to finalise Phase 1 of its investigations of
the currently recognised paramountees as dictated to by
the
Traditional Leadership and Governance Framework Act, 2003 (Act No 41
of 2003). However, it is our view that the High Court
may deal with
the matter since its jurisdiction is no affected by referral of this
matter to the Commission, more specifically
the Commission is not
seized with the matter and any Court of competent jurisdiction can
deal with it.”
[13]
Mr Bokaba on behalf of the respondents argued that the
applicant’s relief
is
of a final nature and therefore they should satisfy all the
requirements for
a
final interdict. Secondly that the applicants should have brought a
review
application,
to challenge the recognition of the third respondent by the first
respondent.
Lastly that this Court should declare the third respondent as
properly
recognised in terms of customary law and relevant legislation. Mr
Wessels
SC on behalf of the applicant argued that the relief is of an interim
nature.
He further argued that the respondents should have approached
the
court for an order declaring the third respondent to be the rightful
chief
as
that is what they are seeking to achieve, with their arguments.
[14]
Mr Bokaba’s arguments in relation to the nature of
the relief sought by the
applicants
are that the relief is final in nature although couched as an
interim
interdict, secondly that the Commission has already pronounced
itself
on the dispute referred to it by the applicants. I do not agree with
Mr
Bokaba’s
contentions. The applicant is clearly asking for relief
pendente
lite
.
He wants the matter to be resolved, finally, by the Commission. He is
not
requesting this Court to finally determine the issues between the
parties.
What he in effect wants to achieve is to have the first respondent’s
decision
reviewed by a statutory body. The final decision in this matter for
him
would be that of the Commission. In fact, the respondents (first and
second)
agree and actually advised the applicant to approach the
Commission.
It is also clear from the relief that the respondents received
on
21 September 2006 that they respondents in that matter
(including
current applicant) were prohibited from inaugurating their
nominee
pending the decision of the Commission. The relief sought is in
my
view interim relief. See, generally,
Airodexpress
(Pty) Ltd v
Chairman,
Local
Road
Transportation Board, Durban & Others
1986
(2)
SA 663 (A). In
Ferreira
v Levin NO and Others;
Vryenhoek
and
Others
v Powell NO and Others
1995
(2) SA 813
(W) at 827 B – C Heher
J
said the following:
“
The
Constitution unequivocally vests Provincial and Local
Divisions
with all powers, including inherent powers, which they possessed
prior to the date of its operation (s 101 (2)). One of
the powers of
these Courts has always been to grant interim relief where that is
necessary to protect persons against the
threatened
violation of a right irrespective of the subject – matter or
source of that right. It did not matter whether the
Provincial or
Local Division itself had ultimate jurisdiction over the
determination of that right. So, for example, the final
determination
might lie with the Appellate Division, the State President (as in the
case of executive clemency) or a Minister (as
in the case of a
banning or deportation order) or an administrative official or
private body (such as the Jockery Club).”
To
which I might add or an administrative /
quasi
judicial
Commission
that
is
created by statute (such as
the
Commission).
[15]
Mr Bokaba’s argument that the Commission
pronounced itself on this issue
is
without merit. The letter quoted in paragraph 12 above clearly states
that
the
Commission is aware of the dispute. It was lodged with them. They
don’t
know when the matter will be finalised because it will only be dealt
with
during the second phase. The fact of the matter is that the
Commission
will deal with it whether it is in the second, third or subsequent
phase.
Mr Bokaba, taking his cue from the said letter, requested me to
deal
with the matter as I have jurisdiction to do so. I can’t deal
with the
matter
on these papers. There is no relief sought that the third respondent
should
or should not be declared the Chief of the Batlokoa ba Thibella.
Likewise
there is no prayer for an order that the applicant should be
declared
a Paramount Chief / Chief over only the Batlokoa ba Phomolong.
If
the respondents wanted this Court to issue a
declarator
they
should have
brought
a counter application and requested that it be adjudicated
pari
passu
with
this application. That was not done. The argument that I should
deal
with the matter is therefore misplaced.
[16]
Having decided that the interdict is temporary in nature
I now turn to the
requirements
of an interim interdict. In
Herbstein
and
Van Winsen: The
Civil
Practice of the Supreme
Court
of South Africa 4
th
ed
at
page 1065
the
requirement are correctly stated as:
“
(a)
the right that forms the subject
matter
of the main action
and
that the applicant seeks to protect is prima facie
established,
even though open to some doubt. (b) there is a well-grounded
apprehension
of irreparable harm to the applicant if the interim relief is not
granted
and
he ultimately succeeds in establishing his right. (c) the balance of
convenience
favours
the granting of interim relief and (d) the applicant has no other
satisfactory
remedy.”
[17]
The principles by which an application for a temporary
interdict are judged
are
set out in the well known case of
Webster
v Mitchell
1948
(1) SA
1186
(W.L.D.) at 1189 viz
“
In
the grant of a temporary interdict, apart from
prejudice
involved,
the first question for the Court in my view is whether, if
interim
protection
is given, the applicant could ever obtain the
rights
he seeks to protect.
Prima
facie that has to be shown.
The
use of the phrase “prima facie established
though
open to
some
doubt” indicates I think that more is required than merely
to
look
at the allegations of the applicant, but something short of
a
weighing up of the
probabilities
of conflicting versions is
required.
The proper manner of approach I
consider
is to take
the
facts as set out by the applicant, together with any facts set
out
by the respondent which the applicant cannot dispute, and to
consider
whether,
having
regard to the inherent probabilities, the
applicants
could on those facts obtain
final
relief at a trial. The
facts
set up in contradiction by the respondent should then
be
considered.
If serious doubt is thrown on the case of the
applicant
he could not
succeed
in obtaining temporary relief, for
his
right, prima facie established, may only
be
open to “some
doubt.”
The
decision in
Webster
v Mitchell
(supra)
was
reconsidered in
Gool
v
Minister
of Justice and Another
1955
(2) SA 682
(C). Ogilvie Thompson
J
at 688 D – E qualified what was said in
Webster
v Mitchell
as
follows:
“
With
the greatest respect, I am of the opinion that the criterion
prescribed
in this
statement
for the first branch of the inquiry
thus
outlined is somewhat too favourably
expressed
towards the
applicant
for an interdict. In my view the criterion on an
applicant’s
own averred or admitted facts is: should (not could)
the
applicant on
those
facts obtain final relief at the trial. Subject
to
that qualification I respectfully
agree
that the approach
outlined
in Webster v Mitchell, supra, is the correct
approach
for
ordinary
interdict application.”
[18]
In casu the applicant states that he is the Paramount
Chief (King) of the
Batlokoa
ba Mokotleng the Free State and that the Chiefs of the other
Batlokoa
ba Mokotleng are only to be identified by the Royal House of
Mota
to which he belongs as it is the only Royal House of the Batlokoa ba
Mokotleng.
The respondents do not dispute that the applicant is the
Paramount
Chief of the Batlokoa ba Mokotleng. They allege that there are
three
Royal Houses in the Batlokoa ba Mokotleng tribe/ nation / peoples.
Mr
N P Malunga, Director: Traditional Affairs in the second respondent’s
office
however states categorically that the three groups “belongs to
one
King
(Paramount Chief).” See JM 6. On the papers before me it is
also
clear
(prima
facie)
that
there is only one Paramount Chief of the Batlokoa
ba
Mokotleng and that is the applicant. Even Dr T K Mopeli states that
“the
day
Chief W S Mota was appointed as the Paramount Chief of the
Batlokoa
tribe, Mr MD Sekonyela was appointed as Chief of the Thibella
district.”
It is common cause that the applicant is the successor to W S
Mota’s
title. There is again a clear distinction between the Paramount Chief
of
the Batlokoa and a Chief of a district. The applicant contends that
by
virtue
of him being the King or Paramount Chief he together with the Royal
Family
should identify any senior traditional leader, headman or
headwoman
of the Batlokoa. See section 11 of Act 41 of 2003. He must
officiate
at the inauguration of any senior traditional leader. He must also
introduce
the said leader to the people over which he is going to “govern”.
Applying
the test in
Webster
v Mitchell
supra
as
qualified in
Gool
v
Minister
of Justice
supra
I
am of the view that the applicant had shown
that
he has a
prima
facie
right
though open to some doubt.
[19]
A Paramount Chief / King, traditional leader or headman
or headwoman’s
power
is only as great as the willingness of the subjects or tribe members
to
obey his/her orders or decrees. In order to obey the King or leader
the
subjects
have to respect the leader. Institutional power, without the
concomitant
respect for such power, renders it fickle. The installation of a
Chief
is not just an ancillary activity. It is central to the whole
recognition
process.
The symbolism of the Paramount Chief or representative of the
Royal
House presiding over the installation of a chief is very important.
It is
the
manner in which the Paramount Chief says to his subjects that he has
delegated
some powers to the chief and he simultaneously request them
to
obey and respect the person on whom he has bestowed chieftaincy. If
the
Paramount Chief and the Royal Family do not participate in the
proceedings
the subjects might perceive the Paramount Chief as a figure
head
who does not have to be consulted in such important matters. On the
other
hand some of the subjects might perceive the non participation or
consultation
of the Paramount Chief as an insult to their customs, traditions
and
monarchy. I am therefore not surprised that the applicant says that
he
and
the Royal Family will lose face if the installation proceeds without
them
being
consulted. The nation might lose confidence not only in the Royal
Family
and the Paramount Chief but long standing tribal traditions, laws
and
customs will be ignored. The result of the uncertainty and tension
might
well be a fractious nation engaged in an internecine war. Such war
might
lead to injury, loss of life and property.
[20]
The third respondent currently enjoys all the privileges
attached to his
recognition
by the first respondent. He is not prejudiced at all. That is
probably
the reason why he is not opposing this application. If the
installation
is done and the third respondent is introduced to the Batlokoa
as
the Chief of the Batlokoa ba Mokotleng ba Thibella it will greatly
undermine
the Royal Family and the applicant. It would be in everybody’s
interest
that this matter be adjudicated by the Commission in order to lay it
to
rest. The respondents will have sufficient opportunity, at that
forum, to
ventilate
all the issues and to present full argument as to why the applicant
does
not have jurisdiction over the Batlokoa ba Mokotleng ba Thibella.
[21]
It is clear that the applicant had no other remedy but
to approach this court
for
the order that it sought.
[22]
Mr Bokaba also referred me to
Oudekraal
Estate (Pty) Ltd v City of
Cape
Town and Others
2004
(6) SA 222
SCA at
341H
to 242 A – B.
Where
Howie P and Nugent JA said the
following:
“
In
other words, was the
Cape
Metropolitan Council entitled to
disregard
the Administrator’s approval and all
its
consequences
merely
because it believed that they were invalid provided that
its
belief was correct? In our view it was not. Until the Administrator’s
approval (and
thus
also the consequences of the approval) is set aside by a court in
proceedings
for
judicial review it exists in fact and it has legal consequences that
cannot simply
be
overlooked. The proper functioning of a modern State would be
considerably
compromised
if all administrative acts could be given effect to or ignored
depending
upon
the view the subject takes of the validity of the act in question.”
The
Oudekral
Estate
case
supra
is
distinguishable from this
case.
In casu the
recognition
of the third respondent by the
first
respondent is respected.
The
third respondent currently
enjoys
all the consequences of his
recognition.
What the
applicant
seeks to do is to have that recognition and
consequences
thereof set aside by a competent Statutory
Commission
that
was
set up to deal exactly with disputes of
this
nature. Should the
Commission
find that the applicant is
wrong
or that the respondents are
correct
the Commission
will
within two weeks after reaching its decision
send
same to
the
President for immediate implementation. (See section 25
and
26 of Act 41 of 2003). The effect of this would actually
be
more than a
review
it is tantamount to a review, setting
aside
and a
declarator
.
The
English
Romantic Poet Percy
Bysshe
Shelley once wrote that kings are
like
stars – they
rise
and set, they have the worship of the world but no
repose.
The Commission’s decision will give the applicant
some
repose
and,
if it rules in his favour, restore his subject’s
worship.
[23]
In my view the Rule nisi should be confirmed. Paragraph
3.1 of the notice
of
motion has been overtaken by events and it would be senseless to
confirm
it.
[24]
The applicant was successful. The applicant specifically
requested that the
respondents
who choose to oppose the application should be ordered to
pay
the costs of the application jointly and severally. Only the first
and
second
respondents opposed the application. The first and second
respondents
as well as the applicant were represented by two counsel.
There
is no reason why the costs of both counsel should not be paid.
Likewise
there is no reason why the costs should not follow the event in
this
matter.
[25]
It
is for the above reasons that I made the following order:
(1)
That paragraphs 1, 2 and 3.2 of the notice of motion are confirmed.
(2)
The first and second respondents are ordered to pay the costs of
this
application jointly and severally the one paying the other to be
absolved,
such costs shall include the costs occasioned by the
employment
of two Counsel.
_________________
C.J.
MUSI, J
On
behalf of the appellant: Adv. M.H. Wessels SC
Assisted
by: Adv. S. Grobler
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. T.J.B. Bokaba
Assisted
by: Adv. K.M. Molemoeng
Instructed
by:
The
State Attorney
BLOEMFONTEIN