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2024
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[2024] ZALMPPHC 64
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Kobe and Others v Premier of the Limpopo Province and Others (11377/2023) [2024] ZALMPPHC 64 (10 July 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 11377/2023
(1)
REPORTABLE:
YES/
NO
(2)
OF INTEREST TO THE JUDGES:
YES/
NO
(3)
REVISED
DATE:
10.07.2024
SIGNATURE:
In
the matter between:
HEADMAN
MATOME ENOS KOBE
FIRST APPLICANT
MOLOKOMME
M.D.
SECOND APPLICANT
MONEPYA
M.R.
THIRD APPLICANT
MONYEBODI
D.E.
FOURTH APPLICANT
MORUKHU
M.A.
FIFTH APPLICANT
PHALA
ANDRIES
SIXTH APPLICANT
KGATLA
PHILIP
SEVENTH APPLICANT
KUBU
N.A.
EIGHTH APPLICANT
MOLOKO
LEBOGO
NINTH APPLICANT
LEKGWARA
M.A.
TENTH APPLICANT
MADIBANA
S.A.
11
TH
APPLICANT
MADIOPE
N.A.
12
TH
APPLICANT
BARNARD
MAILULA
13
TH
APPLICANT
MANAKA
CAIPHUS
14
TH
APPLICANT
MABOYA
ELROS
15
TH
APPLICANT
MALEKA
N.D.
16
TH
APPLICANT
STEPHINA
PHOLOBA
17
TH
APPLICANT
MANTASE
THELEDI
18
TH
APPLICANT
-and-
THE
PREMIER OF THE LIMPOPO PROVINCE
FIRST RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE LIMPOPO PROVINCE DEPARTMENT
OF
CO-OPERATIVE GOVERNANCE, HUMAN
SETTLEMENT
AND TRADITIONAL AFFAIRS
SECOND RESPONDENT
THE
CAPRICORN DISTRICT MANAGER,
TRADITIONAL
AFFAIRS
THIRD RESPONDENT
BAHANANWA
TRADITIONAL COUNCIL
FOURTH RESPONDENT
BETHUEL
MABOYA
FIFTH RESPONDENT
MATOME
SILAS MOTLAPEMA
SIXTH RESPONDENT
MPHATENG
JOHANNES MOLEBO
SEVENTH RESPONDENT
NTOME
FRANS MAELA
EIGHTH RESPONDENT
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The Applicants apply for the following relief:
1.1 Pending
implementation of the Full Court order per case number HCAA 14/2021
granted on the 28
th
of June 2021:
1.1.1 That the First,
Second and Third Respondents are interdicted from appointing and
recognizing the 5
th
, 6
th
, 7
th
and
8
th
Respondents as Headman of the Bahananwa Traditional
Community.
1.1.2 That the First,
Second and Third Respondents are interdicted from processing any
appointment of a headman or headwoman of
the Bahananwa Traditional
Community.
1.2 That the First,
Second and Third Respondents are ordered to pay the costs of this
application on Attorney and Client scale.
1.3 That the remaining
Respondents be ordered to pay the costs on attorney and client scale
in the event of opposition.
[2]
The application is opposed by the Fourth Respondent only.
[3]
The common cause facts relevant to these proceedings are the
following:
3.1 On the 11
th
of February 2019,
inter alia
the First Applicant and several
other individuals instituted a review application in the above
Honourable Court in terms whereof
they sought an order reviewing and
setting aside the decision to remove them as headman / headwomen and
ancillary relief.
3.2 The review
application was dismissed with costs on the 6
th
of
February 2020.
3.3 Thereafter
inter
alia
the First Applicant launched an appeal to the Full Court
against the whole judgment and order. The Full Court upheld the
appeal
with costs on the 28
th
of June 2021 (the ‘Full
Court order’).
3.4 The Fourth Respondent
and Kgoshi Ngoako Isaac Lebogo then obtained special leave to appeal
from the Supreme Court of Appeal.
3.5 The First to Third
Respondents also applied for special leave to appeal to the Supreme
Court of Appeal which application was
dismissed on the 18
th
of September 2023.
[4]
This court is now called upon to determine if an interdict
pendente
lite
should be granted in terms whereof the appointment of
alternative headman and headwoman are suspended pending the
finalisation of
the aforesaid Appeal.
[5]
The matter initially came before court as an urgent application on
the 12
th
of December 2023. On this day, this Court granted
a provisional order by agreement between the parties, and after
having been urged
by this court to consider an amicable settlement of
this matter,
inter alia
to the effect that:
5.1 Pending finalisation
of the appeal before the SCA under case number 1204/2021, the
Respondents are interdicted from appointing
and recognising any third
party as headman or headwoman of the following Bahananwa Villages:
5.1.1 Lesfontein Village.
5.1.2 Inveraan Village.
5.1.3 Eldorado Village.
5.1.4 Milbank Village.
5.1.5 Normandy Village.
5.1.6 Slaaphoek Village.
5.1.7 Addney Village.
5.1.8 Varedig Village.
5.1.9 Diepsloot Village.
5.1.10 Balckhill Village.
5.1.11 Leipzig Village.
5.1.12 Glenfirnis
Village.
5.1.13 Lemonside Village.
5.1.14 Naairn Village.
5.1.15 Bergendal Village.
5.1.16 Miltonduff
Village.
5.1.17 Papegaai Village.
5.1.18 Bulbul Village.
5.1.19 Lousenthal
Village.
5.1.20 Sweethome Village.
5.1.21 The Glen Village.
5.1.22 Escourringa
Village.
5.1.23 Ziest Village.
5.1.24 Springfield
Village.
5.2 There is nothing
effecting the appointment of headman / headwoman of other villages.
5.3 Costs are reserved.
[6] On the return date,
the matter was argued at length by the representatives of
respectively the Applicant and the Fourth Respondent.
It stands to be
noted that this matter was argued simultaneously with case number:
10954/2023, being a related matter between the
same parties raising
similar issues to be determined. Judgment in matter 10954/2023 will
be delivered separately but simultaneously
herewith.
[7]
From the onset, this Court raised the question if it would not serve
the purposes of justice if the
rule nisi
is made final –
especially considering the uncertainty prevailing in the community
pending finalisation of the appeal in the
Supreme Court of Appeal.
Counsel for the Applicant, Adv Monyemoratho agreed with the
contention and moved for the order to be made
final with costs.
[8]
Counsel for the Fourth Respondent, Adv. Gaisa however submitted that
they will abide by the said order if same is made final.
He
furthermore submitted that this Court is not bound to confirm the
interim
order and same can be dismissed. The Court must
ultimately have regard to the grounds of opposition in determining if
a case has
been made out for the relief prayed for in the Notice of
motion.
Application
of law to the facts:
[9]
Both counsels addressed the court extensively on the question if the
appeal is still pending in the Supreme Court of Appeal
having regard
to the fact that the said appeal was merely removed from the roll.
[10]
Counsel for the Applicants furthermore submitted that the Full Court
sat as a court of first instance and Leave to Appeal in
respect of
the merits should therefore have been granted by the Full Court and
not the Supreme Court of Appeal. In the Applicants’
view, the
pending appeal therefore only lies against the condonation aspect and
not the remaining order.
[11]
The difficulty that this court has with the reasoning is the fact
that it does not appear from the order granting Leave to
Appeal that
such leave was granted in respect of selective issues. This court is
not privy to the full extent of the documents
and arguments delivered
in the Supreme Court of Appeal. Having regard to the order granting
Leave to Appeal, this court must assume
that leave was granted
against the whole judgment and order.
[12]
The Applicants submit that, since leave to appeal was not requested
or obtained from the Full Court, the Supreme Court of Appeal
has no
jurisdiction to entertain an appeal on the merits. During argument,
this Court raised the concern that the Appeal served
before the
Supreme Court of Appeal in the past and it does not appear that
either the parties or the court raised the issue of
jurisdiction.
Does this court therefore have the required jurisdiction to make a
finding in respect of the jurisdiction of the
Supreme Court of Appeal
in the absence of any objection raised by the parties or the court
during the hearing of the Appeal? I
think not.
[13]
A very similar question
was raised in the matter of
National
Credit Regulator v Lewis Stores (Pty) Ltd and Another
[1]
.
At paragraphs [56] the court found that the correct procedure is the
following:
‘
For those
reasons I conclude that an appeal from the decision of a High Court
... whether constituted of a single judge, or two
judges, or as a
full court, lies with leave of that court sitting as a court of first
instance. Such leave should be sought in
terms of s16(1)(a) of the SC
Act and not by way of an application for special leave to appeal from
this court.’
[14]
The Supreme Court of Appeal however found that special circumstances
existed for the court to exercise its inherent jurisdiction
to
regulate its own procedure and to condone the irregular manner in
which the appeal is brought. It is thus apparent from this
decision
that the Supreme Court of Appeal has an inherent jurisdiction to
condone irregular proceedings of such a nature. Especially
in
instances where correcting the irregularity will result in a
duplication of proceedings and unnecessary costs being incurred.
[15]
It is again reiterated that it is not for this Court to consider if
such an irregularity has transpired. It would not be appropriate
for
this court to question the jurisdiction of the Supreme Court of
Appeal having regard to the fact that such jurisdiction was
not
questioned by the Supreme Court of Appeal itself.
[16]
For purposes of these proceedings, the Court will assume that there
are pending proceedings in the Supreme Court of Appeal.
It must
therefore be determined if the Applicants are entitled to the relief
prayed for
pendente lite.
[17]
The Fourth Respondent raised numerous technical objections, the first
being the lack of urgency of the application. This court
is of the
view that the issue of urgency was rendered moot when the
interim
order was granted by consent. A finding that the matter was not
sufficiently urgent would in any event only resulted in the matter
being struck from the urgent roll with the appropriate cost order,
and not a dismissal of the case on the merits.
[18]
The Fourth Respondent has
also raised the non-joinder of the ‘Bahananwa Royal Family’.
The Fourth Respondent consequently
refers to the matter of
Absa
Bank Ltd v Naude NO
[2]
in
its Answering affidavit
.
The Court has carefully
considered the contents of this case and could find no reference to
the recognition of headman as contemplated
in paragraph 36 of the
said Answering affidavit. The case deals with business rescue and not
traditional leadership.
[19]
It is indeed correct that Section 12 of the
Limpopo Leadership and
Institutions Act,
Act 6 of 2005 provides for the Royal Family’s
involvement in identifying the candidate to assume the position in
question.
Section 12(1)(b) and Section 12(2) however makes it clear
that the prerogative to formally recognise the candidate lies with
the
Premier and not the Royal Family.
[20]
In this court’s view, one must have regard to the nature of the
relief prayed for. The Applicant’s to a certain
extent wants to
preserve the
status quo
pending the finalisation of the Fourth
Respondent’s appeal pending in the Supreme Court of Appeal.
They are not asking for
new Headman to be recognised pursuant to such
individual being identified by the Royal Family, nor are they asking
for the reconsideration
and resolution consequential upon the
Premier’s refusal to issue a certificate of recognition. In the
aforesaid instances,
the involvement of the Royal Family is apposite.
[21]
The Royal Family has a direct and substantial interest in as far as
they have the right to identify a possible candidate for
recognition.
What renders the issue problematic is the dispute as to the relevant
Royal Family that should be involved. The Applicants
submit that no
such Royal Family as the ‘Bahananwa Royal Family’ exists.
In the Applicants view, the Royal Family concerned
must be the Lebogo
Royal Family.
[22]
The Fourth Respondent does not submit any proof or corroborating
evidence of the existence of the ‘Bahananwa Royal Family’.
In this court’s view, the Fourth Respondent has therefore
failed to show, on a balance of probabilities, that this entity
indeed exists and should be joined.
[23]
It must again be highlighted that the order granted in this matter,
does not in any way prejudice the rights of the applicable
Royal
Family to identify potential candidates for the remaining villages.
No prejudice is therefore suffered if this court does
not embark on
an investigation into the correct identity of the applicable Royal
Family.
[24]
It must furthermore be noted that the Bahananwa Royal Family was not
joined, nor did they intervene as a party to the main
case or the
proceedings in the Supreme Court of Appeal. As such, and in lieu of
the prevailing circumstances
in casu,
the point
in limine
pertaining to the joinder of the Bahananwa Royal Family is
dismissed.
[25]
As to the misjoinder of the Fifth, Sixth, Seventh and Eight
Respondents, this Court disagrees with the Fourth Respondent’s
submissions. Parties may be joined to proceedings in as far as they
may hold a vested interest in the outcome of the proceedings.
The
Applicants presumably heard that the Fifth to Eight Respondents will
be recognised as Headman. The purpose of the proceedings
is to stay
the recognition process. In this Court’s view the interest that
these Respondents have in the outcome of these
proceedings are
sufficient to warrant their joinder. This point
in limine
can
therefore also not succeed.
[26]
As to the merits of the matter, the Fourth Respondent reiterated that
the pending appeal has suspended the order of the Full
Court. The
Fourth Respondent repeatedly states that the pending appeal restores
the
status quo ante.
In paragraph 50.3 of the Answering
affidavit, the Fourth Respondent specifically records:
With the status quo
restored, the royal family of the senior traditional leader of the
Bahananwa traditional community is at liberty
to identify headman and
continue to bring governance to its territory.
[27]
In paragraph 53.3 the Fourth Respondent furthermore declares that:
Consequently, the
applicants have no right (whether clear or prima facie) to call
themselves headman or to claim the relief that
they seek.
[28]
Having considered the general gist conveyed by the Fourth
Respondents, it is apparent that the appointment of Headman in
respect
of the Villages forming the subject of the dispute in the
pending Appeal, will not be voluntarily suspended pending a
determination
of the said Appeal.
[29]
The requirements for
interlocutory
or
interim
relief
have been stated and restated in numerous cases, the standard
formulation of the requirements being the following:
[3]
‘
Briefly these
requisites are that the applicant for such temporary relief must show
–
(a)
That the
rights which is the subject matter of the main action and which he
seeks to protect by means of interim relief is clear
or, if not
clear, is prima facie established, though open to some doubt;
(b)
That, if
the right is only prima facie established, 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)
That the
balance of convenience favours the granting of the interim relief;
and
(d)
That the
applicant has no other satisfactory remedy.’
[30]
In as far as the Appeal
is pending, the right of the Applicants to the relief prayed for, is
prima
facie
established.
It is also reasonable to apprehend that injury will result should the
relief not be granted.
[4]
The
appointment of alternative Headman to the Villages that forms the
subject of the pending appeal, will cause considerable confusion,
uncertainty and ultimately pandemonium in the community. It follows
that the balance of convenience favours the granting of the
relief.
The potential prejudice to be suffered by the Applicants should the
interlocutory
relief
not be granted, far outweighs any inconvenience suffered by the
Fourth Respondent should the relief be granted.
[31]
As to the existence of an alternative remedy, the Fourth Respondent
raised the issue that the Applicants should have applied
in terms of
Section 18(3) for the execution of the order pending appeal. This
Court does not agree with the reasoning. The Applicants
are not
applying for the recognition process to be finalised in their favour,
nor are they applying for any relief akin to benefitting
from their
potential appointments as Headman. They merely want to suspend the
recognition process
in toto
pending finalisation of the
appeal. There is therefore no other remedy available to them that
would yield the same, or a similar
result than the current remedy
before court.
[32]
This court appreciates that revised relief has been prayed for during
the hearing to the extent that the applicable villages
that should be
excluded from any identification and recognition process, was
specified in the
interim
order. This was not the position in
the Notice of Motion. The Applicants conceded that the appointment of
headman / headwoman should
not be suspended
in toto
as
contemplated in prayer 2.2 of the Notice of Motion.
[33]
At the inception of this judgment, this court recorded that the
Applicants moved for the
interim
order to be made final. The
Fourth Respondent essentially conceded that they will abide by the
order should it be made final.
[34]
What is of particular importance in this matter is the fact that the
uncertainty surrounding the appointment of headman / headwoman
has
been the prevalent
status quo
since their removal in 2013. I
can only fathom the extent of the legal costs that has accrued in
this matter to date hereof.
[35]
As stated during the
hearing, the people in the community are the ones that suffer.
Justice demands that there is finality to litigation.
Should the
Court exercise its discretion and refuse the interdictory relief,
this may result in further extensive and costly litigation.
It is
trite law that the court has an overriding discretion whether to
grant or refuse an interdict and to regulate the further
proceedings
of any application before it.
[5]
In the exercise of the discretionary power, the court may impose such
terms as it may think fit upon the granting of the said interdict.
[6]
[36]
Having regard to all the circumstances of this matter, this court
finds that the
interim
order stands to be confirmed to the
extent set out herein after.
Costs:
[37]
The Applicants are substantially successful in the relief prayed for.
The Fourth Respondent’s opposition was not entirely
unwarranted
in as far as the relief claimed in the Notice of Motion was couched
in extremely wide terms and therefore potentially
detrimental to
them.
[38]
The Court retains a discretion to award costs that is fair to all
parties concerned. Despite the fact that the
interim
order is
made final to certain extent, I am of the view that the normal rule
that costs should follow the result, will not bring
about a fair
result. Under the circumstances, each party is ordered to pay its own
costs.
Order:
[39]
In the result the following order is made:
40.1 The
interim
order granted on the 12
th
day of December is made
final to the following extent:
40.1.1 The First to
Fourth Respondents are interdicted from appointing and recognising
any third party as headman / headwoman in
respect of the following
Bahananwa Villages:
a.
Lesfontein
Village.
b. Inveraan Village.
c. Eldorado Village.
d. Milbank Village.
e. Normandy Village.
f. Slaaphoek Village.
g. Addney Village.
h. Varedig Village.
i.
Diepsloot
Village.
j. Balckhill Village.
k. Leipzig Village.
l. Glenfirnis Village.
m. Lemonside Village.
n. Naairn Village.
o. Bergendal Village.
p. Miltonduff Village.
q. Papegaai Village.
r. Bulbul Village.
s. Lousenthal Village.
t. Sweethome Village.
u. The Glen Village.
v. Escourringa
Village.
w. Ziest Village.
x. Springfield
Village.
40.1.2 The aforesaid
order does not affect the appointment and recognition of headman /
headwoman of other villages falling under
the Bahananwa Traditional
Council.
40.2 Each party is
ordered to pay its own costs.
M
BRESLER
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
FOR
THE APPLICANTS
:
Adv MB Monyemoratho
INSTRUCTED
BY
:
Mamphiwa Phihlela Attorneys
MPhilelaAttorneys@gmail.com
FOR
THE 4th RESPONDENT
:
Adv. EN Gaisa
INSTRUCTED
BY
:
Espag Magwai Attorneys
lit7@espagmagwai.co.za
DATE
OF HEARING
:
10 April 2024
DATE
OF JUDGMENT
:
10 July 2024
[1]
2020 (2) SA 390
(SCA)
[2]
2016 (6) SA 450
(SCA)
[3]
As per the decision in
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969
(2) SA 256
(C) at 267A – F
[4]
See
Free
State Gold Areas Limited v Merriespruit (Orange Free State) GM CO
Ltd
1961
(2) SA 505
(W) at 518
[5]
See
Knox
D’Arcy Ltd & others v Jamieson & others
1995
(2) SA 579
(W) at 693 G – H
[6]
See
Shoprite
Checkers Ltd v Blue Route Property Managers (Pty) Ltd & others
1994
(2) SA 172
(C) at 184H – 185D