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[2024] ZALMPPHC 115
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Kgoete v Kgoete and Others (3597/2023) [2024] ZALMPPHC 115 (12 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE
12/9/2024
CASE
NO: 3597/2023
In
the matter between:
KGOSHI
MAMPHAHLANE RALPH KGOETE
Applicant
And
NTHAREDI
JOYCE KGOETE & OTHERS
Respondents
JUDGMENT
GAISA
AJ
INTRODUCTION
[1]
This is an application for a final
interdict brought by Kgoshi Mamphahlane Ralph Kgoete ("the
Applicant") against Ntharedi
Joyce Kgoete and other members of
the royal family ("the Respondents") of the Baroka-Ba-
Mamphahlane Traditional Community.
The Applicant seeks to restrain
the Respondents from interfering with his role and functions as the
Senior Traditional Leader of
the community.
BACKGROUND
[2]
The Applicant is the recognized Senior
Traditional Leader of the Baroka-Ba-Mamphahlane Traditional
Community, having been appointed
and recognized in terms of the
Limpopo Traditional Leadership and Institutions Act 6 of 2005. The
First Respondent is the Applicant's
estranged wife and "candle
wife" of the community. The other Respondents are members of the
royal family.
[3]
The Applicant alleges that the Respondents
have been interfering with his role as Senior Traditional Leader by
holding unauthorized
meetings, making decisions on behalf of the
community, and generally undermining his authority. He seeks an
interdict to prohibit
this conduct.
[4]
The Respondents deny interfering with the
Applicant's role. They contend that the Applicant has abandoned his
duties by residing
in Polokwane rather than with the community, and
that they are merely fulfilling necessary leadership functions in his
absence.
ISSUES
FOR DETERMINATION
[5]
The key issues to be determined are:
5.1 Whether the Applicant
has the necessary locus standi to bring this application.
5.2 Whether the
Applicant's attorneys are properly authorized to institute these
proceedings.
5.3 Whether the Applicant
has established the requirements for a final interdict.
5.4 Whether the conduct
of the Respondents amounts to unlawful interference with the
Applicant's role as Senior Traditional Leader.
5.5
Whether the application constitutes an abuse of
court process.
ANALYSIS
[6]
Locus Standi
6.1
The Respondents challenge the Applicant's
locus standi on the basis that he has not provided a valid resolution
from the Traditional
Council authorizing this litigation. However, I
find that the Applicant does have the necessary standing to bring
this application
in his personal capacity as the recognized Senior
Traditional Leader.
6.2
The
Supreme Court of Appeal, in
Firm-O-Seal
CC v Prinsloo & Van Eeden Inc and Another
[1]
held
that standing is a question of substance concerning the sufficiency
of a litigant's interest in the proceedings. The real inquiry
is
whether the events constitute a wrong against the litigant.
6.3
In this case, the Applicant, as the
recognized Senior Traditional Leader, has a direct and substantial
interest in protecting his
position and authority. Any interference
with his role as Senior Traditional Leader constitutes a wrong
against him personally.
Therefore, he has sufficient locus standi to
bring this application in his personal capacity, regardless of
whether the Traditional
Council
has authorized the litigation.
[7]
Authorization of Legal Representation
7.1 The Respondents also
challenge the authorization of the Applicant's attorneys to institute
these proceedings. However, based
on the common cause facts
presented, it is clear that the Applicant consented to and authorized
the institution of these proceedings
by his legal representatives. As
held in
Firm-OSeal CC
supra,
this is sufficient to
establish proper authorization.
[8]
Requirements for Final Interdict
To
obtain a final interdict, the Applicant must establish:
8.1 A clear right
8.2
An injury actually committed or reasonably
apprehended
8.3
The absence of an alternative remedy
8.4
Clear Right
The Applicant has
established a clear right by virtue of his position as the recognized
Senior Traditional Leader of the community.
This position is
confirmed by his certificate of recognition and confers specific
powers and functions on him under the applicable
legislation. Mr
Makofane who appeared for the respondents wisely conceded this point.
8.5
Injury Committed or Apprehended
8.5.1.
The evidence indicates that the Respondents
have held meetings and made decisions on behalf of the community
without the Applicant's
authority. While some of their actions may
have been well-intentioned given the Applicant's absence from the
community, they nevertheless
infringe on the Applicant's
exclusive authority as Senior Traditional
Leader. There is a reasonable apprehension of ongoing interference if
not restrained.
8.5.2.
The Applicant has also demonstrated that
the Respondents
actions
potentially
violate
his
constitutional rights, including the right to equality (section 9),
freedom and security of person (section 12), and access
to courts
(section 34).
8.6
No Alternative Remedy
While there are dispute
resolution mechanisms available under the relevant legislation, these
are not suitable alternatives in this
case given the ongoing nature
of the interference and the need for urgent relief to clarify the
roles and authority within the
community leadership structure.
[9]
Unlawful Interference
9.1
The applicable legislation clearly
delineates the roles and functions of Senior Traditional Leaders,
royal families, and Traditional
Councils. The royal family's role is
primarily in the identification and appointment of traditional
leaders, not in the day-to-day
administration of community affairs.
By holding unauthorized meetings and purporting to make decisions on
behalf of the community,
the Respondents have exceeded their
authority and infringed on the exclusive powers of the Senior
Traditional Leader.
9.2
However, the Applicant's prolonged absence
from the community is concerning and contrary to the spirit and
intent of the relevant
legislation. While his safety concerns are
understandable, alternative arrangements should have been made to
ensure the proper
functioning of community leadership structures in
his physical absence.
[10]
Abuse of Court Process
10.1
The Respondents argue that this application
constitutes an abuse of court process as there are ongoing
discussions between the Applicant
and the Royal Family, as well as
engagements with the Premier's Office regarding the Applicant's
position and functions.
10.2
While it is true that there are ongoing
processes, the court finds that the application is not frivolous or
vexatious. The Applicant
has a legitimate interest in protecting his
position and authority, and the application seeks to address ongoing
conduct that he
perceives as undermining his role. Therefore, it does
not amount to an abuse of court process.
CONCLUSION
[11]
The
Applicant
has
established
the
requirements
for
a
final
interdict.
However,
the
interests
of
justice
and
the
community
require
that
any
order take into account the complexities of
the situation and the need for functional
leadership
structures
ORDER
1.
The Respondents are interdicted and restrained from:
a) Holding themselves out
as having the authority of the Senior Traditional Leader;
b) Holding unauthorized
meetings in the name of the Traditional Council or community
leadership;
c) Making decisions or
taking actions that fall within the exclusive authority of the Senior
Traditional Leader or Traditional Council.
2.
Each party shall bear their own costs.
N GAISA
Acting Judge
High Court of South
Africa
Limpopo Division,
Polokwane
APPEARANCES
For
the applicant:
Instructed
by:
Email:
For
the respondents:
Instructed
by:
Email:
Date
of hearing:
Date
of judgement:
Adv
J Mohoto (Heads of argument by Adv K Mokwena)
MS
Moloto inc
msmolotoinc@gmail.com
Adv
VL Makofane
Ramokone
Selepe Attorneys
ramokone.selepe@gmail.com
10
September 2024
12
September 2024
This judgment is
handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 12 SEPTEMBER 2024 at 10:00.
[1]
[2023]
ZASCA 107