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[2019] ZASCA 130
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Bakgaka-Ba-Mothapo Traditional Council v Mothapo and Others (926/2018) [2019] ZASCA 130 (30 September 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 926/2018
In
the matter between:
BAKGAKA
- BA - MOTHAPO TRADITIONAL
COUNCIL APPELLANT
and
TSHEPO MATHULE MOTHAPO
& OTHERS RESPONDENTS
Neutral
citation:
Bakgaka
–
Ba
–
Mothapo Traditional Council v Tshepo
Mathule Mothapo & others
(926/2018
[2019] ZASCA 130
(30 September 2019)
Coram:
Cachalia, Tshiqi, Dlodlo, Mbatha JJA
and Tsoka AJA
Heard:
4 September 2019
Delivered:
30 September 2019
Summary
:
Customary law – locus standi – whether a Traditional
Council established in terms of customary law had locus standi
to
institute action on behalf of the Bakgaka – Ba – Mothapo
Traditional Community – whether the submission of
insufficient
number of men or women appointed as councillors to the Premier’s
office justified the Court a quo ordering that
the appellant had no
locus standi – whether Kgoshigadi had the locus standi even
though she derived authority to institute
action from a resolution
passed by Traditional Council.
ORDER
On
appeal from:
Limpopo Division of the
High Court, Polokwane (Sikhwari AJ sitting as court of first
instance):
The
appeal is dismissed with costs.
JUDGMENT
Dlodlo
JA (Cachalia, Tshiqi, Mbatha JJA and Tsoka AJA concurring):
[1] The issue in this
appeal is whether a Traditional Council established in terms of
customary law has locus standi to institute
an action on behalf of
Bakgaka – Ba – Mothapo Traditional Community. Kgoshigadi
Madipoane Refiloe Maremadi Mothapo
(‘Kgoshigadi’), an
adult female described in the pleadings as Kgoshigadi of Bakgaka –
Ba – Mothapo tribe
in Thabamoopo district, Ga – Mothapo
village (Limpopo Province) and the Tribal Council (Traditional
Council) instituted an
action against the seven respondents in the
High Court. The first, thirty first, thirty fourth, thirty sixth,
thirty eighth, forty
second and forty third are the seventh
respondents referred to above. The second to the thirtieth and thirty
second to the thirty
fourth respondents are alleged to be working in
collaboration with the first respondent in unlawfully allocating
residential and
business sites to various people including outsiders
on the properties known as Syferkuil 921 LS. It is alleged that the
unlawful
sale and allocation of business and residential sites by the
respondents continues notwithstanding court process initiated before
the Magistrate Court. They pleaded that the Traditional Council
performs functions in terms of s 4(1) of the Traditional Leadership
and Governance Framework Act 41 of 2003 (The Framework Act) to:
(a)
administer the traditional community in accordance with customs and
tradition;
(b)
assist, support and guide traditional leaders in the performance of
their functions.
[2]
The cause of action alleged in the particulars of claim is that
portions of Syferkuil 921 LS and Majeebaskraal 1005 LS are properties
allocated to Bakgaka – Ba – Mothapo tribe and are thus
under the jurisdiction and/or administration of Kgoshigadi and
the
Traditional Council. It is averred that the first respondent’s
conduct in receiving money for the purported sales of
land and the
issuing of purported permission to occupy was unlawful. The land in
question is tribal land held in trust by Kgoshigadi
and the
Traditional Council on behalf of Bakgaka – Ba – Mothapo
tribe. Such land, according to Kgoshigadi and the Traditional
Council, may not be sold by an individual. Any monies received on
behalf of Bakgaka – Ba – Mothapo should be deposited
into
the trust account opened by the Traditional Council on behalf of the
tribe.
[3] The relief sought was
to prohibit and restrain the respondents from allocating, selling or
in any other way alienating parcels
of tribal land under the
jurisdiction or under the control and authority of Kgoshigadi and the
Traditional Council. What Kgoshigadi
and the Traditional Council
sought before the High Court was also a declarator to the effect
that:
(a)
the respondents be ordered to account as to the whereabouts of monies
received in the purported sale agreements and the purported
permission to occupy the sold land; and
(b)
such purported sale agreements or permission to occupy be declared
null and void ab initio.
[4]
The seven respondents raised a special plea against both Kgoshigadi
and the Traditional Council. They pleaded that Kgoshigadi
has not
been duly identified and recognised as Kgoshigadi in terms of the
process prescribed in terms of the Framework Act. Additionally,
they
pleaded that Kgoshigadi is disqualified from being capable of being
recognised by virtue of the fact that she was not born
of royal blood
and that she is not related to the royal family. As to the
Traditional Council, the respondents pleaded that it
had no locus
standi to institute and prosecute the action against them by virtue
of the fact that the provisions of the Framework
Act, with reference
to the establishment and recognition of Traditional Councils, had not
being complied with. In particular, the
respondents pleaded that the
Premier has not, in terms of the provisions of s 3(3) of the
Framework Act, by notice in the Provincial
Gazette, recognised the
Traditional Council for the traditional community concerned. In reply
both Kgoshigadi and the Traditional
Council averred that they have
the necessary locus standi to institute the action. Kgoshigadi
contended that she was identified
and recognised in terms of the
process described in the Framework Act read in conjunction with s
33(2) of the Limpopo Traditional
Leadership and Institutions Act
6
of 2005
(the Limpopo Traditional Leadership Act).
The issues were separated in terms of Rule 33(4) of the Uniform Rule
of Court.
[5]
What the high court was called upon to determine was the question of
locus standi, that is, whether Kgoshigadi and the Traditional
Council
had standing to claim this relief. After having heard evidence the
high court delivered a judgment. It found that Kgoshigadi
had the
requisite locus standi. It found, however, that the Traditional
Council did not have the necessary locus standi to institute
this
action. The Traditional Council, aggrieved by these findings, applied
for leave to appeal. The application was dismissed by
the high court,
but this court subsequently granted the necessary leave. The
Traditional Council’s stance before the high
court was that it
had complied with both the Framework Act and the Limpopo Traditional
Leadership Act. But before this Court, the
Traditional Council
presented a different case. It contended that as the Traditional
Council was established in terms of customary
law, it had the
requisite locus standi to institute the action, by virtue of its
establishment under customary law.
[6]
In promulgating the Framework Act, Parliament sought to set out a
national framework, norms and standards defining the place
and the
role of traditional leadership within the new system of democratic
governance. The aim was not only to recognise the institution
of
traditional leadership but also to transform these institutions in
line with constitutional imperatives. It became necessary
that
provinces enact provincial legislation within the framework contained
in the Framework Act in order to provide for matters
peculiar to each
province.
[7]
Section 33(5) of the Limpopo Traditional Leadership Act under the
heading ‘Traditional arrangements’ states as follows:
‘
A
tribal authority or Tribal Council that, immediately before the
commencement of this Act, existed under the provisions of any
law, is
deemed to be a Traditional Council established under this Act:
provided that such Traditional Council must comply
with the
provisions of s 4 within one year of the commencement of this Act.’
[8]
Section 4 of the Limpopo Traditional Leadership Act mentioned above
determines the Constitution and composition of Traditional
Councils.
Section 4 of the Limpopo Traditional Leadership Act is substantially
mirrored in ss 28(4) and 3(2) of the Framework Act.
The key
difference is that the latter Act provides for a 7-year period from
the commencement (of the Framework Act) for the Tribal
Council to
comply with the relevant section. This period would have expired in
September 2011. As at the date when the action in
this matter was
instituted (August 2014), the Traditional Council had still not
complied with either the Limpopo Traditional Leadership
Act or
Framework Act. This was still the case when the matter came before
the high court in December 2017.
[9]
Section 4 of the Limpopo Traditional Leadership Act reads:
‘
Traditional
Councils
(1)
The Premier must, when recognising a traditional community in terms
of s 3(4), and with due regard to the needs of the traditional
community concerned, determined the number of councillors for its
traditional council to be established in terms of subsection
(2):
Provided that the total number must not exceed 30.
(2)
A traditional community recognised by the Premier in terms of this
Act must within 30 days after the traditional community has
been
informed accordingly in terms of s 3(4) establish a traditional
council for that community, consisting of men and women who
in
accordance with the customary law of the traditional community
concerned are recognised as councillors as well as other members
of
the traditional community concerned elected democratically.
(3)
The senior traditional leader of the traditional community referred
to in subsection (2), must convene a meeting of all adult
members of
the traditional community for the purposes of election of members of
the traditional council, by giving reasonable notice
of such meeting
in accordance with the custom of such traditional community. The
senior traditional leader or his or her designated
presides over such
meeting.
(4)
The elected members of the traditional council must as far as
possible be sufficiently representative of the wards of the
traditional
community concerned.
60
percent of the traditional council must consist of traditional
leaders and members of the traditional community selected by the
senior traditional leader and other 40 percent must consist of
elected members.
(5)
(a)
At least a third of the members of the traditional council
must be women, unless the Premier-
(i)
is satisfied upon certification by the senior traditional leader
concerned that there is sufficient number of women; and
(ii)
determines the lower threshold of women to be included in the
particular traditional council.
(b)
The senior traditional leader must, after the required number of men
and the available number of women have been elected, if
satisfied
that there is insufficient number of women to fill the remainder of
vacancies required to be filled by women, adjourned
the elections and
refer the matter to the Premier in writing for the Premier’s
directive in terms of paragraph
(a).
(b)
The senior traditional leader must, upon receipt of the Premier’s
directive referred to in paragraph
(b)
resume the elections
within 14 days of such receipt in accordance with such directive.
(c)
The Premier must review the threshold of women to be elected into the
traditional council prior to the election of the new traditional
council.
(6)
Election of members of the traditional council must be done by way of
voting in manner determined by the Premier or any person
designated
by the Premier to oversee the elections.
(7)
Particulars of the establishment of the traditional council and the
names of the members therefore must be submitted to the
Primer in
writing, within 60 days after the traditional council has been
established in terms of subsection (2).
(8)
The Premier must, upon receipt of the particulars referred to in
subsection (8), if satisfied that the provisions of the Act
have been
complied with, within 30 days recognise the traditional council by
notice in the
Gazette
.’
[10]
According to the evidence led before the high court, the Limpopo
Traditional and Leadership Act was not complied with. Of the
nine
members of the Traditional Council there was only one traditional
leader. There were no women in the list allegedly submitted
to the
Premier for approval. This despite the fact that s 4(4) and (5) of
the Limpopo Traditional Leadership Act provides that
elected members
of the council must be sufficiently representative of the wards of
the Traditional Community concerned; 60 percent
of the Traditional
Council must consist of Traditional Leaders and members of the
Traditional Community selected by the Senior
Traditional Leader. The
remaining 40 percent must consist of the elected members. At least a
third of the members of the Council
must be women. Both Kgoshigadi
and Mr Ranson Mothapo, who testified on behalf of the Traditional
Council, conceded that there was
non- compliance with these
requirements.
[11]
The evidence led reveals that no response had been received from the
Premier to the alleged submission of members of the Council
It also
appears that no enquiry was ever made as to why the Premier had not
responded. Be that as it may, it is common cause that
the Traditional
Council was not recognised and gazetted by the Premier.
[12]
The provisions regulating the composition and recognition of
traditional councils are clear, unambiguous and consistent with
the
stated purpose of the legislation. The purpose is the recognition of
the institutions of traditional leadership. These provisions
must be
complied with.
[13]
The Traditional Council indeed had no locus standi to institute and
prosecute the action against the respondents in that it
did not
comply with the provisions of both the Framework Act and the Limpopo
Traditional Leadership Act. That much was conceded
by counsel for the
appellant. The special resolution passed by the Traditional Council
which authorised Kgoshigadi to institute
the proceedings was attached
to the petition that had to be considered by this court. In that
special resolution 30 persons purporting
to be members of the
Traditional Council signed. Strangely, the record of proceedings in
this appeal says, apart from Kgoshigadi,
there are only 9. Compliance
with relevant legislation also seeks to eliminate such confusion. It
must be known who are members
of the Traditional Council recognised
and Gazetted by the Premier.
[14]
During the hearing appellant’s counsel, in support of his
contention that it was not necessary for the Traditional Council
to
be recognised, referred this court to
Pilane
and another v Pilane and another
.
[1]
In
Pilane
,
a clan which was part of the Bakgaka – Ba – Kgafela
unsuccessfully tried to protect their local assets and hold an
officially recognised Traditional Leader (Nyalala Pilane) to account.
Their attempts to secure accountability through traditional
structures and by approaching government had been a failure. These
individuals took a decision to secede from the Bakgaka –
Ba –
Kgafela Tribe. They were successfully interdicted from holding
meetings in order to discuss the secession. The traditional
leader
contended that it was only himself and the officially recognised
Traditional Council that had the power to call meetings.
The
group of individuals approached the Constitutional Court challenging
the North West High Court decision. In a majority judgment,
the
Constitutional Court set aside the interdicts holding that stopping
people from meeting infringed many rights protected in
the
Constitution, including the right to freedom of expression, freedom
of association and assembly. The Constitutional court found
that
allowing traditional communities to hold traditional leaders and
councils accountable to ensure that they perform their functions
appropriately. Pilane, therefore does not support the appellant in
this matter. It is clearly distinguishable.
[15]
In
Sigcau
v Minister of Cooperative Governance and Traditional Affairs
,
[2]
an argument was advanced that the court must allow the dispute
regarding the Kingship of the Amaphondo AseQaukeni to be resolved
in
the customary manner by referring it to the royal family. This
argument was put forth despite the provisions in the Framework
Act
which created a commission whose mandate is to investigate the
dispute and submit a report to the President recommending the
rightful person to the throne. The Framework Act provided what the
President needed to do upon receiving the report from the
Commissioner.
The Constitutional Court found that once the Commission
has resolved a dispute or a claim applying customary law and has
conveyed
its decision to the President, the President must simply
carry out the steps provided in s 9(2) (
a
)
and (
b
);
that is, the President must publish a notice in the Government
Gazette recognising the person decided upon, and must issue a
certificate of recognition to that person.
[3]
The court further held that where the Commission has identified and
decided upon the person entitled to be king or queen, the royal
family may not reopen the s 9(1) process to identify the person
entitled to be king or queen. Similarly, in the matter before
us,
once two pieces of legislation provide how the Traditional Council is
constituted, a party cannot rely on customary law outside
the
statutory requirements for the recognition of a Traditional Council.
[16]
It is indeed perplexing that the high court found that Kgoshigadi had
the requisite locus standi despite the fact that she
derived her
authority to institute the action from a resolution passed by the
Traditional Council (which had no locus standi).
In view of the fact
that there is no cross-appeal, it is not necessary to deal with this
aspect at all. The parties agreed that
costs should follow the
result.
[17]
The appeal is dismissed with costs.
_________________
D V Dlodlo
Judge of Appeal
APPEARANCES:
For
the Appellant: KK Kekana and TL Mahasha
Instructed
by: Maesela Incorporated, Johannesburg
Phalatsi
& Partners Inc, Bloemfontein
For
the Respondents: JC Erasmus
Instructed
by: Rheeder Attorneys, Polokwane
McIntyre
Van der Post, Bloemfontein
[1]
Pilane
and another v Pilane and another
[2013] ZACC 3
; 2013(4) BCLR 431 (CC).
[2]
Sigcau
v Minister of Cooperative Governance and Traditional Affairs
[2018]
ZACC 28; 2018 (12) BCLR 1525 (CC).
[3]
Sigcau
para 44.