Pilane and Another v Pilane and Another (CCT 46/12) [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (28 February 2013)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2013
>>
[2013] ZACC 3
|

|

Pilane and Another v Pilane and Another (CCT 46/12) [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (28 February 2013)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 46/12
[2013] ZACC 3
In the matter between:
MMUTHI KGOSIETSILE PILANE
...........................................................
First
Applicant
RAMOSHIBIDU REUBEN DINTWE
...................................................
Second
Applicant
and
NYALALA JOHN MOLEFE PILANE
...................................................
First
Respondent
THE TRADITIONAL COUNCIL OF
THE BAKGATLA-BA-KGAFELA
TRADITIONAL COMMUNITY
.........................................................
Second
Respondent
Heard on : 13 September 2012
Decided on : 28 February 2013
JUDGMENT
SKWEYIYA J (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Van der Westhuizen J and Zondo J concurring):
[1] We are seized of an application for leave to appeal against the
decision of Landman J, sitting in the North West High
Court,
Mafikeng (High Court). The High Court granted three interdicts,
restraining the applicants from: convening any unauthorised
meetings
under certain auspices; acting in a manner contrary to applicable
statutory and customary law; and holding themselves
out as a
traditional authority using specified names and cognate titles. For
determination is the appropriateness of these three
interdicts. I
refer to the parties as they are in this Court.
The
parties
[2] The first and second applicants are Mr Mmuthi Kgosietsile Pilane
and Mr Ramoshibidu Reuben Dintwe, respectively. The applicants

are residents of the Motlhabe village, one of 32 villages that
comprise the Bakgatla-Ba-Kgafela Traditional Community (Traditional

Community), located in the Pilanesberg area of the North West
Province.
1
The applicants have for a number of years been dissatisfied with the
administration of their village by the official governance
structures
within the Traditional Community. The applicants are leaders of a
group that desires secession of the Motlhabe village
from the
Traditional Community.
[3] The first respondent is Mr Nyalala John Molefe Pilane, the senior
traditional leader or
Kgosi
of the Traditional Community. The
second respondent is the Traditional Council of the Traditional
Community (Traditional Council).
The respondents are the officially
recognised leaders of the Traditional Community in terms of sections
2(1)-(2) and 11 of the
Traditional Leadership and Governance
Framework Act
2
(Framework Act), read with sections 3 and 13 of the North West
Traditional Leadership Governance Act
3
(North West Act).
4
[4] It is common cause that the applicants have not been recognised
as traditional leaders by the Premier of the North West Province,
nor
are the villagers of Motlhabe recognised as a traditional community,
distinct from the Bakgatla-Ba-Kgafela Traditional Community.
Factual background
[5] Although all the villages that make up the Traditional Community
are situated in South Africa, the Traditional Community recognises
as
their
Kgosikgolo
5
a traditional leader who lives in Mochudi, Botswana.
6
His deputy, Mr Nyalala John Molefe Pilane, the first respondent,
administers the affairs of the Traditional Community in South
Africa
and is based at Moruleng, North West Province, which is also the
headquarters of the Traditional Council. There are headmen
or
dikgosana
and sub-councils assisting the
Kgosi
and the
Traditional Council with the administration of traditional affairs at
village level.
[6] The applicants and other members of the Motlhabe village have
been dissatisfied for several years with the alleged mismanagement
of
the affairs of the Traditional Community. They describe their village
as poor and under-developed. Their dissatisfaction springs
from the
alleged misallocation of resources amongst the villages comprising
the Traditional Community. The resources of the Traditional
Community
include those derived from platinum mining and the Sun City Resort.
7
The applicants allege that these resources do not reach the Motlhabe
village but are used for the benefit of those loyal to the

Traditional Council and the
Kgosi
.
[7] There is also a longstanding leadership dispute, in which the
first applicant claims to be the headman of the Motlhabe village,
but
has been denied official recognition under the relevant statutes.
Rather, Mr Tlhabane Pilane, who is not a party to these proceedings,

is the officially recognised
Kgosana
or headman of the
Motlhabe village. The applicants complain that Mr Tlhabane Pilane’s
leadership, firstly, does not reflect
the true leadership position
under customary law. Secondly, in spite of his officially recognised
position, he does not attend
to governance issues in the Motlhabe
village through, among other things, his failure to call meetings to
discuss community issues
as required by custom. The applicants have
made several unsuccessful attempts to resolve their grievances by
appealing to recognised
statutory structures with jurisdiction over
their village.
[8] On 20 July 2009, a letter was addressed to the Traditional
Council advising that the “Bakgatla-Ba-Kautlwale Pilane
Motlhabe
Tribal Authority” had resolved that they were an
“Independent Tribe” and would, effective from 1 July
2009, no
longer fall under the jurisdiction of the Traditional
Council. The first applicant signed the letter as chairperson of the
“Bakgatla-Ba-Kautlwale
Pilane Motlhabe Tribal Authority”.
This correspondence prompted a threat of litigation by the
respondents, in light of which
the attempted secession was not
pursued.
[9] Some months later, two government officials from the Department
of Local Government and Traditional Affairs
8
attended a community meeting at the Motlhabe village and advised
that, in order to secede, an application had to be made to, and

granted by, the Premier in terms of the Framework Act and the North
West Act. On this advice, the applicants decided to invite
the
residents of the Motlhabe village, as well as four neighbouring
villages, to a meeting on 6 February 2010, an invitation
to
which was circulated on 31 January 2010. The invitation was
signed by both the applicants, headed “Motlhabe
Tribal
Authority Kgotha Kgothe” and contained the following text,
which has been translated by the respondents from Setswana
into
English:
“
The
Residents of the Motlhabe Village
You are invited to a meeting on
the 06 February 2010, at 09:00 in the morning at Motlhabe Community
Hall.
Agenda
1. The reply from the Government
in connection with the [cessation and] independence of Motlhabe (from
Moruleng Bakgatla).
2. [Decision and] Resolution of
the Traditional Community in general in connection with the
independence (from Moruleng Bakgatla).”
9
[10] On 2 February 2010, a member of the South African Police Service
telephoned the first applicant and advised that he would
be arrested
if the meeting took place. The applicants decided that the meeting
should be cancelled. On 3 February 2010, the respondents’

attorneys sent a letter to the applicants requesting an undertaking
that the meeting would not be held. In line with the decision
already
taken to cancel the meeting, the applicants informed the members of
the community on 5 February 2010 that the
meeting had been
cancelled. However, despite the cancellation of the meeting and
contrary to the first applicant’s instructions,
we are told,
his erstwhile attorney informed the respondents’ attorneys that
the meeting would in fact proceed. It was this
erroneous advice that
prompted the respondents to launch the urgent interim interdict
application in the High Court.
Proceedings in the High Court
[11] On 5 February 2010, the respondents obtained an urgent interim
interdict in the High Court in the following terms:
“
. . .
2. That the [applicants] and all
persons acting through them or in collaboration with them, are
interdicted from:
2.1. proceeding with the meeting
planned for 6 February 2010 at 9:00 by M K (Mothi) Pilane and R
Dintwe . . . referred to in
an invitation/notice .   .  .
and/or anyone on their behalf or whom they may represent, which
meeting is planned
to be held at the Motlhabe Community Hall,
Saulspoort, Pilanesberg, District Rustenburg, North West Province;
2.2. organising or proceeding
with any meeting purporting to be a meeting of the Traditional
Community or of the Bakgatla-Ba-Kautlwale
Pilane without proper
authorisation by either of the [respondents] or order of this
Honourable Court first had or obtained;
2.3. taking any steps or
conducting themselves in any manner which is contrary to the
provisions of the [North West Act], the [Framework
Act] or the
customs of the traditional community in Moruleng and the customary
law, which steps or conduct is prejudicial to the
[respondents], or
disruptive to, or has any detracting or reducing or belittling effect
on the status, role and function of the
1
st
and 2
nd
[respondents];
2.4. acting for or on behalf of
the legitimate Kgosikgolo or Kgosi of the Bakgatla-Ba-Kgafela;
2.5. pretending to be authorised
by the legitimate Kgosikgolo or Kgosi of the Bakgatla-Ba-Kgafela
Traditional Community;
2.6. representing to any persons
that they are authorised either by the legitimate Kgosikgolo or Kgosi
of the Bakgatla-Ba-Kgafela
Traditional Community or by virtue of any
other reason to declare an independence or secession of the Motlhabe
Village from the
Bakgatla-Ba-Kgafela Traditional Community in
Moruleng;
2.7. pretending or holding
themselves out as a traditional community or a traditional authority
under the name or names Bakgatla-Ba-Kautlwale
or Bakgatla-Ba-Motlhabe
or the traditional Authority of Motlhabe or any similar name or title
or name title of whatever kind.”
[12] The gravamen of the respondents’ complaint in the High
Court was that the applicants were meeting to further what the

respondents characterised as an unlawful attempt to secede from the
Traditional Community. This complaint will be addressed more
fully in
due course.
[13] On the return day of the interim interdict, the High Court
rejected the respondents’ complaint regarding the unlawfulness

of the attempt to secede. The Court accepted that the applicants were
entitled to meet to discuss their desired independence and
matters of
mutual interest, but found that the applicants were not entitled to
convene meetings under names that implied that they
were clothed with
statutory authority as an independent traditional community, when in
fact they were not. To do so, the High Court
held, would not be
permissible in a constitutional dispensation, and the applicants
should accordingly be interdicted from that
conduct.
[14] On 30 June 2011, the High Court delivered judgment
10
(High Court judgment) and granted the following order:
“
1. The
[applicants] and all persons acting through them or in collaboration
with them, are interdicted from:
1.1. Organising or proceeding
with any meeting purporting to be a meeting of the Traditional
Community or Motlhabe Tribal Authority
without proper authorisation
by either of the [respondents].
1.2. Taking any steps or
conducting themselves in any manner, which is contrary to the
provisions of the [North West Act], the Framework
Act or the customs
of the traditional community in Moruleng and the customary law.
1.3. Pretending or holding
themselves out as a traditional authority under the name or names
Bakgatla-Ba-Kautlwale or Bakgatla-Ba-Motlhabe
or the traditional
authority of Motlhabe or any similar name or title of whatever kind.
2. The [applicants] are to pay
the costs of the application jointly and severally, the one paying
the other to be absolved.”
[15] On 1 March 2012, the High Court refused the applicants leave to
appeal. The applicants were also denied leave to appeal by
the
Supreme Court of Appeal.
Applicants’ submissions
[16] The applicants
contend that the final interdicts were granted incorrectly by the
High Court and impermissibly limit their rights
to freedom of
expression, assembly and association. They advance that three
fundamental flaws permeate the interdicts.
[17] The first flaw is
that the High Court judgment is not based on the case made out by the
respondents in their founding affidavit,
notwithstanding that the
relief granted had been prayed for in the notice of motion. The
application in the High Court proceeded
from a claim that the
intended secession was unlawful and that, in turn, the planned
meeting to discuss secession was unlawful.
In other words, the
contention that, by utilising the term “Motlhabe Tribal
Authority”, the applicants held themselves
out as possessing
statutory authority was not an allegation pleaded in the founding
affidavit. It was argued that prayers in the
notice of motion may be
granted only if sustained by facts alleged in the founding affidavit.
[18] The second flaw is that the High Court’s reasoning is
based on the false premise that the applicants held out that they

were in fact empowered by statute, as indicated by the following
passage from the High Court judgment:
“
[I]n a
constitutional dispensation no person or body of persons may create
or reproduce structures otherwise than in terms of and
in accordance
with the constitutional processes contained within the Constitution
which is the supreme law. This has been elegantly
expressed in para
4.3 of the replying affidavit. I adopt and express it thus: Any
action by a parallel but unsanctioned structure
that is neither
recognised by the law or custom, seeking to perform and assume
functions which are clearly the exclusive preserve
of such recognised
authorities, ought to incur the wrath of the law.”
11
The
applicants contend that this proposition is incorrect for the
following reasons: (i) there is no statutory body known as
a
“Tribal Authority” under our current law; (ii) there
is no evidence that the applicants sought to perform any
function of
any statutory or otherwise legally recognised body; and (iii) the
applicants expressly disclaimed that they intended
to hold themselves
out as a statutory authority.
[19] The third flaw is that, on its own terms, the High Court order
cannot be sustained as it prohibits conduct that the judgment
found
to be permissible. On the evidence, the High Court found that the
applicants were part of a community that understands its
identity
with reference to a common ancestor; that they were entitled to meet
to discuss their desired independence; and that they
could not be
interdicted from holding themselves out as a traditional community
under the names mentioned. Despite this, the High
Court interdicted
the applicants and others from proceeding with any meeting
“purporting to be a meeting of the Traditional
Community”.
[20] The applicants have made detailed submissions on the specific
terms of each of the three interdicts, which are canvassed more
fully
below. In relation particularly to the first interdict, the
applicants contend that using the title “Motlhabe Tribal

Authority” cannot be unlawful as the Motlhabe Tribal Authority
is a non-entity in law.
12
While the term “Tribal Authorities” existed as a
statutory construct under the Black Authorities Act
13
and the Bophuthatswana Traditional Authorities Act,
14
both these statutes have been repealed. The applicants assert that
they did not employ the term in its technical, legal sense to
refer
to the official apartheid or any statutory structures, but rather to
refer to their leadership under customary law, as they
have done for
many years. Moreover, given Mr Tlhabane Pilane’s failure
to convene meetings of the community to discuss
their grievances, the
applicants aver that the community was, according to customary law,
entitled to meet for this purpose at
village level and to refer to
that meeting as a
Kgotha Kgothe
,
15
an issue which was canvassed more fully in oral argument.
[21] Lastly, the applicants submit that, in any event, they undertook
to refrain in the future from referring to themselves as
the
“Motlhabe Tribal Authority” or using any statutory
language that has a technical meaning that does not apply to
them.
During oral argument, the applicants advanced that their undertaking
ought to have disinclined the High Court from granting
the
interdicts.
[22] Regarding the second interdict, the applicants submit that it
should not have been granted as it is too broadly framed to
have a
determinable meaning. It lacks specificity on which provisions of the
stipulated legislation and custom must be observed
and in respect of
whom it operates. The overbreadth of the interdict, coupled with the
fact that breach of its terms would give
rise to contempt of court,
renders the interdict inappropriate.
[23] In relation to the third interdict, the applicants submit, in
essence, that there is no statutory or customary law impediment
to
representing one’s leadership as a traditional authority and
holding out the representatives of the Motlhabe community
as their
traditional authority. It is permissible under custom to do so and
the applicants, in so doing, did not seek to usurp
any power or to
exercise any function belonging to a statutory body.
Respondents’
submissions
[24] The respondents oppose the application for leave to appeal and
argue that the High Court was correct in granting the

interdicts. This is because it is only the respondents who are the
legitimate and recognised structures in terms of the North West
Act,
the Framework Act and custom, and that no other formation could
lawfully convene a meeting under the guise of an officially

recognised traditional leadership structure. Furthermore, according
to customary law, only the
Kgosi
or his duly recognised
appointee, like a
Kgosana
, may convene a meeting of the
Traditional Community or subsection of it, for the purpose of
discussing governance-related matters,
and refer to a meeting of that
kind as a
Kgotha Kgothe
. The respondents argue that the High
Court was correct in stating that—
“
in a
constitutional dispensation no person or body of persons may create
or reproduce structures otherwise than in terms of and
in accordance
with the constitutional processes contained within the Constitution
which is the supreme law.”
16
[25] The High Court judgment, the respondents argue, does not in any
way hamper a formation or an individual from organising a
meeting to
discuss governance-related issues, but that this must be done under a
different and permissible name. The applicants’
rights to
freedom of expression, assembly and association, when exercised
through unlawful means, justify limitation in the form
of an
interdict. The High Court accordingly struck the correct balance
between the rights of the parties involved, giving sufficient
weight
to the applicants’ rights to expression, assembly and
association on the one hand, and those of the respondents, on
the
other hand.
[26] Lastly, during the course of oral argument, the respondents
contended that the undertaking by the applicants not to refer
to
themselves as the “Motlhabe Tribal Authority” was not in
itself sufficient to obviate the necessity of the interdicts.
In
support of this contention, the respondents relied on the prior
attempt by the applicants to secede and their subsequent attempt
to
meet as the “Motlhabe Tribal Authority” as signifying a
persistent intention to flout the respondents’ lawful

authority.
17
[27] As far as the complaint about the vagueness and broadness of the
second interdict is concerned, the respondents submit that
the
complaint bears no merit because the terms of the second interdict,
when interpreted and understood within the context of the
High Court
judgment, are sufficiently precise.
Condonation
[28] Both the applicants and respondents have applied for
condonation. The applicants request condonation for the late filing
of the single supplementary volume of the record. No prejudice has
been caused to the respondents as the supplementary record is
very
short and the respondents are familiar with the full record from the
High Court proceedings. The respondents request condonation
for the
late filing of their notice of opposition and opposing affidavit,
which arrived one day late. The applicants have not been
prejudiced
by this minor delay in filing. I am satisfied that both applications
for condonation should be granted.
Leave to appeal
[29] It is trite law that this Court will grant leave to appeal only
where two conditions are met. First, the matter must raise
a
constitutional issue. Second, it must be in the interests of justice
to grant leave to appeal.
[30] The applicants allege that the grant of the interdicts occasions
infringements of their rights to freedom of expression,
18
assembly
19
and association.
20
I am satisfied that these rights are implicated here, as is the
constitutional principle of accountability,
21
insofar as it pertains to traditional governance structures and
leadership.
22
[31] I
have taken notice of the fact that numerous matters of a similar
nature involving the respondents have appeared before the
courts.
23
Resolving the present matter is also in the interests of justice as
it will provide clarity on the rights of people living in the

Traditional Community and in traditional communities more generally.
I consider there to be prospects of success, which are apparent
from
my discussion below. For these reasons, I am of the view that it is
in the interests of justice to grant leave to appeal.
Constitutional, statutory and customary scheme
[32] The Constitution clearly states that customary law exists and
must operate under its purview. Section 211 of the Constitution

provides:
“
(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.”
[33] Section 212(1) further provides for the enactment of national
legislation to give effect to the recognition and role of traditional

leadership at a local level.
24
This constitutional imperative was recognised through the enactment
of the Framework Act,
25
and complemented by the North West Act,
26
both of which regulate the governance of traditional communities.
[34] It is well established that customary law is a vital component
of our constitutional system, recognised and protected by the

Constitution, while ultimately subject to its terms.
27
The true nature of customary law is as a living body of law, active
and dynamic, with an inherent capacity to evolve in keeping
with the
changing lives of the people whom it governs.
28
[35] Our history, however, is replete with instances in which
customary law was not given the necessary space to evolve, but was

instead fossilised
29
and “stone-walled”
30
through codification, which distorted its mutable nature and
subverted its operation.
31
The Constitution is designed to reverse this trend and to facilitate
the preservation and evolution of customary law as a legal
system
that conforms with its provisions.
32
[36] On the present facts, the question of whether the interdicts
should stand or fall can be resolved in terms of the common law
on
interdicts alone. However, mindful of the constitutional issues
arising from the circumstances of this case, an assessment of
the
impact of the interdicts on constitutional rights is indispensable.
[37] I now turn to consider the merits of the appeal. It is
convenient to deal with each of the three interdicts in turn.
First interdict
[38] The first interdict prohibits the applicants from: “[o]rganising
or proceeding with any meeting purporting to be a meeting
of the
Traditional Community or Motlhabe Tribal Authority without proper
authorisation by either of the [respondents].”
33
[39] The
requisites for the right to claim a final interdict were articulated
by Innes JA in
Setlogelo v Setlogelo
.
34
An applicant desirous of approaching a court for a final interdict
must demonstrate: (i) a clear right; (ii) an injury actually

committed or reasonably apprehended; and (iii) the absence of an
alternative remedy.
35
Clear right
[40] It is not apparent from the papers filed in this Court or in the
High Court exactly on what clear right, if any, the respondents
seek
to rely. At a technical level, the respondents’ failure to
plead and prove the first essential requirement for claiming
a final
interdict ought to have dealt a fatal blow to their case in the High
Court. In my view, this on its own is enough to set
aside the first
interdict.
[41] An inkling of a right was alluded to by the respondents’
counsel when pressed during oral argument in this Court to
pinpoint
precisely the clear right on which they stake their claim. It was
submitted that a right to refer to, and to represent,
oneself as a
traditional community exists and stems from the definition of
“traditional community” in the Framework
Act and North
West Act. “Traditional community” is defined in both
statutes as a traditional community recognised in
terms of the
relevant recognition provisions in each statute. Those provisions
require formal recognition of a community as a traditional
community
by the Premier and, in the case of the North West Act, by the Premier
of the North West Province.
[42] On my understanding it was implied by counsel, though not
expressly articulated, that official recognition confers upon a

traditional community an exclusive right to refer to and represent
itself as that. It was further implied that a properly recognised

entity would be entitled to safeguard this right according to law.
However, a characterisation of their claim as a type of “public

law passing-off” was expressly disavowed by the respondents.
Despite counsel’s efforts to persuade us, the question
of the
right was and remains largely unanswered.
[43] As I
have already commented, the Constitution contemplates that
traditional leadership has an important role to play in our

constitutional democracy.
36
[44] The respondents have officially been recognised as the
traditional leadership of the Traditional Community by statute to
perform certain public functions, in accordance with the
Constitution. Accordingly, they are organs of state.
37
Their authority and power are devolved upon them as organs of state
from the Constitution itself. However, given that statutory
authority
accorded to traditional leadership does not necessarily preclude or
restrict the operation of customary leadership that
has not been
recognised by legislation, the position as it stands is far from
clear.
[45] Moreover, it is not for a court to identify the elements
necessary to sustain a claim, which ought properly to have been
pleaded by the parties. Courts should be slow to pronounce on
uncharted legal terrain, where they have not had the full benefit
of
argument, as in this instance. It is therefore fitting that a
determination of the right is left for a more appropriate occasion,

and I need not linger on the point further.
Kgotha Kgothe
[46] A
Kgotha Kgothe
is a traditional gathering at which members of a
traditional community publicly debate and decide on matters affecting
the community,
which may include evaluating and criticising the
performance of their leaders.
[47] The
parties, however, disagree on the manner in which a
Kgotha Kgothe
is to be convened. The applicants say that it may be convened either
at a village or traditional community level and may be convened

either by the appointed
Kgosana
or by the community itself in
the absence of the
Kgosana
where he fails to convene a
Kgotha
Kgothe
. They rely, to this end, on the expert evidence of
Professor Mbenga. The respondents say that a
Kgotha Kgothe
may
only be convened by the
Kgosi
or his authorised appointee,
like a
Kgosana
, and rely in this regard on the expert evidence
of Professor Bekker.
[48] This
factual dispute relating to the entitlement to convene a
Kgotha
Kgothe
according to customary law was not referred to oral
evidence in the High Court. In accordance with the principle
established in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
,
38
the High Court was obliged to decide the matter on the basis of the
averments the applicants, as respondents in the High Court,
raised in
their answering affidavit, and any of the allegations of the
respondents, as applicants in the High Court, that were
not denied or
were undeniable.
39
A proper resolution of the dispute would have favoured the
applicants’ evidence.
[49] What
is more, since the dispute was raised for the first time by the
present respondents in their replying affidavit in the
High Court,
and not in their founding affidavit, it need not be resolved to
decide this case. The respondents must stand or fall
by their
founding papers.
40
Actual or reasonable apprehension of injury
[50] Given
that no clear right has been established, it is not essential to
consider the possible injury that could have befallen
the respondents
through the applicants’ conduct. Indeed, since injury is the
violation of the right, failing to prove the
latter renders an
enquiry into the former purely hypothetical. Acknowledging this, I
proceed merely to make some observations concerning
possible injury
in the interest of giving clarity to the parties. I do so to
illustrate that, even if the applicants had been successful
in
demonstrating a clear right exclusively to refer to themselves as a
traditional authority, the first interdict still falls to
be set
aside for want of injury on the present facts.
[51] The
applicants are alleged to have engaged in a course of conduct that
evidenced an intention to continue to portray themselves
as a
traditional authority in a manner that was contrary to law and caused
ongoing injury to the respondents. Actual injury, rather
than a
reasonable apprehension of injury, was pleaded.
[52] It is
appropriate first to have regard to the alleged course of conduct.
[53] To
recapitulate, it was argued by the respondents that there was a link
between the applicants’ attempted secession of
20 July 2009 and
their intended meeting of 6 February 2010, and that the
latter was merely a furtherance of an unlawful
attempt to usurp the
authority and power of the respondents by purporting to create a
competing, parallel authority within the
Traditional Community. The
respondents’ case is that any injury to them was part of an
ongoing course of unlawful conduct,
which would have persisted, in
the absence of an interdict.
[54] On an
objective reading of the invitation to the proposed meeting of
6 February 2010,
41
the following becomes apparent. To begin, the term “Motlhabe
Tribal Authority” does not exist in law. It can draw upon
no
statutory or other source of law, and in consequence lacks legal
authority, despite explicit reference to the word “Authority”

in the term. However, it still remains to be asked whether the
applicants’ convening of a meeting under the style “Motlhabe

Tribal Authority” could portray them as being vested with any
of the statutory powers that inhere in the respondents.
[55]
Context is significant in this regard, two facts being of particular
import. First, the agenda for the meeting, which appears
in the
central part of the body of the invitation, states the purposes of
the meeting, namely to discuss the government officials’
advice
on the lawful methods of seceding from the Traditional Community and
to decide on a course of action to pursue independence.
Second, the
invitation was signed by both the applicants, who are known to the
Motlhabe community not to be members of the Traditional
Council and
to hold antipathy towards both the respondents.
[56] Both
the contents and context of the invitation could only have portrayed
the applicants, being would-be secessionists, in
a way that
emphasised the distinction between them and the respondents.
Furthermore, no evidence of any confusion was relied on
by the
respondents in support of their claim. It is thus difficult to see
how in these circumstances one might consider the applicants
to be
attempting to appropriate the identity, authority or powers of the
respondents, when the terms and tenor of their attempted
meeting, as
contained in this invitation, speak to the very disassociation from
the respondents that they seek. Furthermore, even
if the applicants
had used a particular name with the intention of bolstering their
legitimacy, it does not necessarily follow
that the use of that name
was intended to assume the identity of the respondents or purport to
assume the respondents’ statutory
authority. There may well be
other circumstances, in which the evidence may sustain a different
finding on those facts, but those
need not concern us for present
purposes.
Undertaking
[57] Even if the respondents had proved a clear and exclusive right
to refer to themselves as the traditional authority of the

Traditional Community and that the applicants’ conduct had in
fact resulted in actual injury to that right, it does not necessarily

follow that an interdict is justified.
[58] The
applicants were made aware for the first time of the respondents’
objection to their use of the title “Motlhabe
Tribal Authority”
during the proceedings in the High Court. That much is indicated
in their prior exchange of correspondence.
In view of this fact, it
is not possible to infer from the applicants’ previous use of
that title in their attempted secession
an intention to defy the
respondents’ lawful authority. In addition, nothing was placed
before the High Court to indicate
that the applicants’
undertaking not to use the term in future was not made in good faith
.
Accordingly, no reasonable apprehension of future injury remained.
42
This too renders the High Court order unsustainable.
[59] I am
not persuaded by the respondents’ reference, at the hearing, to
the
Tarita
case
43
as authority for the proposition that the applicants’
undertaking was insufficient to obviate the need for injunctive
relief.
That case was concerned with the enforcement of a restraint
of trade agreement against a former employee who had taken up
employment
with a competitor company. The Court held, correctly, that
the former employer was entitled, without enquiring into the good or

bad faith of the employee, to rely on the agreement in interdicting
her from working for a competitor. A comparable situation is
not
present in the matter currently before us.
[60] For
these reasons, I am satisfied that the first interdict should be set
aside, and I find it unnecessary to proceed to the
third requirement
of identifying any suitable alternative remedies.
Second interdict
[61] The
second interdict prohibits the applicants from: “[t]aking any
steps or conducting themselves in any manner, which
is contrary to
the provisions of the [North West Act], the Framework Act or the
customs of the traditional community in Moruleng
and the customary
law.”
44
[62] To
justify the grant of the second interdict, the respondents must show
that the applicants breached the Framework Act, the
North West Act,
or the customs of the Traditional Community and customary law
generally, or that a breach of that kind was reasonably
apprehended.
Since no breach or anticipated breach of either statute has been
proved, no decision on the content of the customary
law of the
Traditional Community was reached by the High Court, and no customary
law other than that of the Traditional Community
applies to the
parties, the second interdict is wholly inappropriate.
[63] This second interdict also raises rule of law
45
concerns, for lack of specificity and for the consequent contempt of
court that would result from a breach of any of its uncertain
terms.
In this regard, it also appears that the interdict is unsuitably
tailored.
Third interdict
[64]
Lastly, the third interdict prohibits the applicants from:
“[p]retending or holding themselves out as a traditional
authority under the name or names Bakgatla-Ba-Kautlwale or
Bagkatla-Ba-Motlhabe or the traditional authority of Motlhabe or any

similar name or title of whatever kind.”
46
[65] I
commence by considering the names “Bakgatla-Ba-Kautlwale”
and “Bakgatla-Ba-Motlhabe”. The applicants’

uncontested averments in the High Court were that—
“
[t]he
word ‘Bakgatla’ comes from the word ‘Kgabo’
which means ‘Monkey’. The monkey is the totem
for the
Bakgatla people. The name Bakgatla is shared by several groups of
people who live in South Africa and Botswana. The Bakgatla
people
are, in the main, Setswana speaking.
Not all Bakgatla people are part
of the Bakgatla-Ba-Kgafela traditional community: there are other
groups of Bakgatla people.”
It appears
that the names “Bakgatla-Ba-Kautlwale” and
“Bakgatla-Ba-Motlhabe” in themselves are not necessarily

synonymous with a form of authority nor, on the applicants’
version, do they purport to be. Rather, they appear to be signifiers

of the applicants’ ancestral lineage and their place of
settlement. It also seems that the High Court went to great

lengths to state this very point, when it held as follows:
“
The
[applicants] belong to a group which has a distinct identity. To an
extent identity is what a group of people call themselves.
It is
their cultural right to do so even if others identify the group
differently or decline to recognise their identity.
. . .
The use of the names to describe
their identity or to affirm their historical antecedents as described
in the papers is an entirely
different issue. . . . It is their
belief that they are (to a degree which may be disputed) a distinct
people. There is nothing
on the papers which goes to show that this
is a pretence or a sham which requires that to be interdicted.”
47
[66] The
third interdict, therefore, at least insofar as it pertains to the
use of the names “Bakgatla-Ba-Kautlwale”
and
“Bakgatla-Ba-Motlhabe”, seems inconsistent with the
reasoning of the High Court. In addition, it effectively prevents
the
applicants from using terminology that is descriptive of their
identity as a people.
[67] What
remains is to consider the effect of interdicting the applicants from
holding themselves out as “the traditional
authority of
Motlhabe”. It is common cause that the applicants are not
recognised under statute as traditional leaders. They
nonetheless
aver that they are in fact leaders of their community according to
customary law, which is denied by the respondents.
This dispute the
High Court did not settle. In spite of the parties’
contradictory positions in this regard, in my view the
applicants’
undertaking to refrain from using these statutory terms to refer to
themselves, as I have already discussed,
ought to have been
considered sufficient reason for declining to confirm this interdict.
[68] For
these reasons, I am satisfied that the third interdict also should be
set aside.
Constitutional considerations
[69] This Court has on more than one occasion recognised the
significance of the rights to freedom of expression, association and

assembly in the functioning of a democratic society.
48
It strikes me that the exercise of the right to freedom of expression
can be enhanced by group association. Similarly, associative
rights
can be heightened by the freer transmissibility of a group’s
identity and purpose, expressed through its name, emblems
and labels.
These rights are interconnected and complementary.
49
Political participation, actuated by the lawful exercise of these
rights, can and should assist in ensuring accountability in all
forms
of leadership and in encouraging good governance. The judgment of my
Colleagues Mogoeng CJ and Nkabinde J expresses concern
that not to
allow the first interdict to stand would provide an avenue for the
erosion of the rule of law. I do not share these
concerns. I see no
reason to believe that the lawful exercise of the applicants’
rights would result in chaos and disorder.
Rather, there is an
inherent value in allowing dissenting voices to be heard
50
and, in doing so, permitting robust discussion which strengthens our
democracy and its institutions.
51
[70] The
three challenged interdicts adversely impact on the applicants’
rights to freedom of expression, association and
assembly. In the
absence of more convincing argument from the respondents in relation
to their own rights against which the applicants’
interests are
to be balanced, one is hard-pressed to find in the respondents’
favour.
[71] The
restraint on the applicants’ rights is disquieting, considering
the underlying dissonance within the Traditional
Community and the
applicants’ numerous unsuccessful attempts to have this
resolved. The respondents’ litigious record
also portrays a
lack of restraint on the part of the Traditional Community’s
official leadership in employing legal devices
to deal with
challenges that should more appropriately be dealt with through
engagement.
52
This could be seen as an attempt to silence criticism and
secessionist agitation and, if so, would not be a situation that the

law tolerates.
[72] This
situation cries out for meaningful dialogue between the parties,
undertaken with open minds and in good faith. One hopes
that this
will produce harmonious relations within the Traditional Community.
Nonetheless, it bears mentioning that it is within
the rights of the
members of the Traditional Community to meet to discuss secession,
unless a restriction on their constitutional
rights is reasonable and
justifiable in an open and democratic society.
[73] It
follows that the High Court should not have confirmed any part of the
interim order granted on 5 February 2010.
Costs
[74] The
applicants have asked for costs, including the costs of two counsel.
As successful litigants, I am satisfied that their
prayer for costs
should be granted. Regarding the costs order granted by the High
Court, counsel for the respondents rightly conceded
during oral
argument that if the respondents were unsuccessful in this Court, the
applicants should also be awarded their costs
in the High Court.
Order
[75] In
the circumstances, the following order is made:
1.
Condonation is granted.
2. Leave
to appeal is granted.
3. The appeal is upheld.
4. The order of the North West High Court, Mafikeng on 30 June 2011
is set aside.
5. The
Rule issued by the North West High Court, Mafikeng on 5 February 2010
is discharged.
6. The
respondents are ordered to pay the applicants’ costs in this
Court and in the North West High Court, Mafikeng including
the costs
of two counsel.
MOGOENG CJ
AND NKABINDE J
Introduction
[76] This
application has a long and toxic history. It has its genesis in
concerted efforts by the first applicant and his father
over the
years to assume the headmanship of the Motlhabe community. The basis
for this claim was that the current lawfully appointed
and recognised
headman and his father were, according to the applicants, not the
legitimate traditional leaders of that community.
When it became
apparent that none of the senior traditional leaders of the community
of the Bakgatla–Ba–Kgafela in
Botswana and South Africa
were persuaded by the leadership claim of the first applicant, the
latter chose to act as if he were
the headman of Motlhabe and
virtually ceased to recognise the first respondent as his traditional
leader.
[77] The
failure to earn this recognition was followed by a “unilateral
declaration of independence” of the Motlhabe
community from the
Bakgatla–Ba–Kgafela Traditional Community which is
essentially the claim for the secession of the
community. It is
against this background that subsequent events culminating in the
respondents’ application to the North
West High Court, Mahikeng
(High Court) to restrain the applicants from convening a meeting in
2010, should be viewed. This background
also gives context to the use
of the expressions “Motlhabe Tribal Authority” and
“Kgothakgothe”.
[78] The Constitution recognises the institution of traditional
leadership.
53
Moreover, indigenous law, customary law and traditional leadership
are listed as functional areas of concurrent national and provincial

legislative competence and, in each, the competence is subject to the
Constitution.
54
Traditional leadership is a unique and fragile institution. If it is
to be preserved, it should be approached with the necessary

understanding and sensitivity. Courts, Parliament and the Executive
would do well to treat African customary law, traditions and

institutions not as an inconvenience to be tolerated but as a
heritage to be nurtured and preserved for posterity, particularly
in
view of the many years of distortion and abuse under the apartheid
regime.
[79]
Bearing in mind the need to help these fledgling institutions to
rebuild and sustain themselves, threats to traditional leadership
and
related institutions should not be taken lightly. The institution of
traditional leadership must respond and adapt to change,
in harmony
with the Constitution and the Bill of Rights. But courts ought not to
be dismissive of these institutions when they
insist on the
observance of traditional governance protocols and conventions on the
basis of whatever limitation they might impose
on constitutional
rights. Like all others, the constitutional rights the applicants
seek to vindicate are not absolute.
55
They co-exist within a maze of other rights to which expression must
also be given.
[80] We have had the benefit of reading the main judgment of our
Colleague, Skweyiya J. We agree that leave to appeal be granted

and that the appeal be upheld in respect of the second and third
interdicts by reason of their over-breadth. The point of our
disagreement relates to the first interdict in respect of which we
would have dismissed the appeal. What follows are our reasons.
Parties
[81] The
applicants are residents of Motlhabe village within the
Bakgatla–Ba–Kgafela Traditional Community. The
respondents
are the leader and governance structure of the
Bakgatla–Ba–Kgafela in terms of the Traditional
Leadership and Governance
Framework Act
56
and the North West Traditional Leadership and Governance Act.
57
Factual and litigation history
[82] The
factual background is comprehensively dealt with in the main
judgment. It will be sufficient to mention only background
facts and
litigation history pertinent to this judgment.
[83] The
applicants describe their village as poor and undeveloped, deprived
of the benefits that the Bakgatla–Ba–Kgafela
Traditional
Community derived from platinum mining. Because of their discontent
with the manner in which the traditional community’s
finances
were distributed for development and the alleged dereliction of duty
by the appointed Kgosana or Headman of the Motlhabe
village, Mr
Tlhabane Pilane, they have decided to pursue independence from the
Bakgatla–Ba–Kgafela traditional community.
They were
advised by certain government officials to apply to the Premier in
terms of the relevant legislation for authorisation
to secede under
customary law.
[84] The disputes between the parties have their origin in the
invitations dated 31 January 2010, regarding a meeting planned

for 6 February 2010 at Motlhabe village. The meeting is described in
the invitations as “Kgothakgothe”,
58
a general traditional meeting or gathering
59
which, in Setswana, stems from an adage that “Morafe o
kgobokanngwa ke mong wa ona.” Freely translated, this means

that “a tribe or traditional community may only be convened or
assembled in a ‘Kgothakgothe’ by the owner(s)
of that
tribe.” Morafe in this instance denotes all villages of the
Bakgatla–Ba–Kgafela Traditional Community
and not
individual villages.
[85]
According to the applicants, the meeting was to be attended by the
residents of Motlhabe and people from neighbouring villages.
The
purpose was to discuss the lawful processes available to the Motlhabe
traditional community to obtain official recognition
as an
independent traditional community.
[86] The invitations are headed “Motlhabe Tribal Authority
Kgothakgothe”.
60
The contents of the invitations, as copied from the record and
inserted below, read:
PICTURE
TEXT ON PDF
61
[87]
Notably, one invitation is signed by the first applicant and the
other by the second applicant. The following translated invitation,

which leaves out the heading “Motlhabe Tribal Authority
Kgothakgothe” is copied from the record and reads:
PICTURE
TEXT ON PDF
[88]
Prompted by the invitations which were sent out on 31 January 2010
and intended to convene a “Kgothakgothe” or
general
meeting of the Bakgatla–Ba–Kgafela in Motlhabe village,
the second respondent authorised the first respondent
on
2 February 2010 to seek a court order restraining the
applicants from “proceeding with the intended meeting
of 6
February 2010 as well as organising or proceeding with any meeting
purporting to be a meeting of the Traditional Council or
of the
Bakgatla–Ba–Kautlwale Pilane or Motlhabe Tribal Authority
without proper authorisation”.
62
[89] The
respondents addressed a letter dated 2 February 2010 to the first
applicant.
63
The letter states, among other things, that “[t]he prerogative
to convene a ‘
Kgotha-kgothe
’ resides with the
Kgosi” in consultation with the Traditional Council and that
the meeting was not sanctioned by the
respondents. It cautioned that
the meeting was therefore illegal. Under threat of arrest, the
meeting was allegedly cancelled,
but the respondents did not receive
an undertaking from the applicants that the meeting would not be
held. The respondents thereafter
launched an urgent ex parte
application in the High Court.
High
Court proceedings
[90] In
the High Court, the respondents sought and obtained certain interim
interdicts including an order restraining the applicants
and all
persons acting through or in collaboration with them, from inter
alia: (a) proceeding with the meeting referred to in the
invitation
as the “Motlhabe Tribal Authority Kgothakgothe”; (b)
organising or proceeding with any meeting purporting
to be a meeting
of the Traditional Community or of the Motlhabe Tribal Authority
without proper authorisation by the respondents;
(c) pretending to be
authorised by the legitimate Kgosikgolo or Kgosi of the
Bakgatla–Ba–Kgafela Traditional Community;
(d)
representing to any person that they are authorised either by the
legitimate Kgosikgolo or Kgosi to declare independence or
secession
of the Motlhabe village from the Bakgatla–Ba–Kgafela
Traditional Community; and (e) pretending or holding
themselves out
as a traditional community or a traditional authority under the name
of the traditional authority of Motlhabe.
[91] The
bases for seeking these interim interdicts were that the applicants’
actions, which are allegedly contrary to the
provisions of the
relevant statutes and customary law, threatened to undermine the
position of the Kgosi, the certificate of recognition
and the order
and sanctity of the hierarchy of the Moruleng traditional community.
The respondents contended that the applicants
had no authority and
mandate to act on the affairs of the Moruleng tribal community and
that by convening a “Kgothakgothe”,
which was not
sanctioned, they violated the constitutional right of the Kgosi,
including the rights of the Bakgatla–Ba–Kgafela

Traditional Community without lawful cause.
[92] They
said that if the meeting proceeded, the Moruleng traditional
community would be misled and the conduct would result in
(i)
confusion and chaos concerning the status of the Kgosi and Royal
Family of the Bakgatla–Ba–Kgafela and (ii) an

ungovernable tribe which could lead to conflict, violence and
threaten the lives and property of its people as well as its
leadership.
According to the respondents there was no other remedy to
protect their rights and those of the traditional community of
Moruleng.
They said that the applicants would suffer no prejudice if
the order was granted.
[93] In
their answering affidavit the applicants contended that the
respondents failed to make out a case for the grant of the
interdicts. They stated, on the one hand, that “[t]he only case
that is made out on the papers relates to the unlawfulness
of the
meeting planned for 6 February 2010.” On the other, they
pointed out that “[t]he meeting is a lawful meeting”

convened to discuss the advice received from the government. The
applicants stated that the meeting was also “intended to

provide an opportunity to consult further with nearby communities who
may be affected by a process of that sort.”
[94] It is
averred that: (i) community meetings for Motlhabe village are also
referred to as “Kgothakgothe”; (ii) the
first
respondent’s appointment did not have the support of all
members of the various royal families of the relevant traditional

communities in Moruleng and that his “legitimacy is in
question”; (iii) his leadership of the Bakgatla–Ba–Kgafela

is statutorily recognised; (iv) under custom it lies within the power
of the leadership of clans and the community itself to call
meetings
of the Motlhabe community and not the first respondent; and (v)
people from neighbouring villages were also invited to
attend. The
applicants maintained that they were acting lawfully and denied that
they purported to act on behalf of the respondents
or
Bakgatla–Ba–Kgafela or that they required the authority
of the respondents. They maintained that the leadership
no longer has
legitimacy. It is contended that the respondents failed to use
customary systems of dispute resolution before launching
these
proceedings.
[95] In
their reply, the respondents denied that the applicants have the
authority to convene a “Kgothakgothe”. They
said that the
applicants had no right either by statute or customary practice to
convene a “Kgothakgothe” under the
auspices of an illegal
and unlawful structure and should thus be interdicted. The
respondents stated that the applicants had not
suggested that they or
others associated with them had ever challenged the legality of the
appointment and position of the Headman
of Motlhabe village in a
court of law or elsewhere. The respondents do not deny that the
applicants have the rights and freedom
to associate, meet and discuss
any aspects of their lives subject to permissible limitations under
custom and the Constitution.
The respondents state that the
applicants have used technical words to disguise and disown their
creation known as “Motlhabe
Tribal Authority”.
[96]
Regarding the requirements of an interdict, the respondents argued
that they had a reasonable apprehension of fear that, if
the
scheduled meeting took place, chaos, violence and lawlessness would
ensue in Moruleng and the lawful structures of governance
would be
compromised. This is particularly so because the meeting was to be
attended not only by members of Motlhabe village but
also people from
neighbouring villages. They argued that their meetings are always
disciplined and orderly and that the fears of
the planned meeting
descending into chaos and violence were unfounded.
[97] In
confirming the rule nisi, the High Court held that it was not
“necessary to examine the traditional law and customs
in order
to determine the nature of the traditional community meetings which
may be held at the level suggested in their papers
by the
[applicants]”; in other words, whether they were entitled to
convene a “Kgothakgothe” of the local community
of
Motlhabe. However, it concluded that the “proposed meeting
could not have been a traditional meeting” of the
Bakgatla–Ba–Kgafela
Traditional Community. The High Court
remarked that:
“
The
invitations were sent out under the auspices of the Motlhabe Tribal
Authority. The [applicants] cannot escape this fact.
. . .
It is abundantly clear that in a
constitutional dispensation no person or body of persons may create
or reproduce structures otherwise
than in terms of and in accordance
with the constitutional processes contained within the Constitution
which is the supreme law.
This has been elegantly expressed in para
4.3 of the replying affidavit. I adopt and express it thus: Any
action by a parallel
but unsanctioned structure that is neither
recognised by the law or custom, seeking to perform and assume
functions which are clearly
the exclusive preserve of such recognised
authorities, ought to incur the wrath of the law.”
64
[98] The High Court held that although the respondents do not approve
of secession they cannot prohibit discussion about it. The
Court
accepted that the respondents are obliged to administer the affairs
of the tribe in accordance with traditional law, custom
and the
applicable national and provincial legislation
and prevent
others from usurping their powers. While the High Court recognised
that the Constitution protects the applicants’
rights to
assemble, to speak and to associate, it held that the purported
creation of the “Tribal Authority” and the
use of the
name was done to demonstrate and bolster the legitimacy of their
cause and that a “non-government body may not
hold themselves
out to be part of the organs of state . . . nor may they appropriate
to themselves any symbols of state to proclaim
a legitimacy which
they lack.”
65
[99] The
applicants unsuccessfully petitioned the Supreme Court of Appeal.
In this Court
[100] In their submissions, the applicants have exploited technical
loopholes against the respondents. They pointed to three fundamental

flaws which, they submit, permeate the final interdicts granted by
the High Court. First, the High Court judgment is based on the
false
premise that the applicants held out that they have the necessary
statutory authority whilst the evidence is to the contrary.
In this
regard, they argued that there is no statutory body known as a
“Tribal Authority” since the repeal of the Black

Authorities Act.
66
Second, that the High Court judgment is not based on the case made
out in the founding papers. The third flaw relates to whether
the
requisites for an interdict were established. We deal with these in
turn.
Alleged
first flaw
[101] It
is necessary to remind ourselves of the objects of the Framework Act
and the North West Act. These statutes were enacted,
among other
things, not only for legalising, regulating and giving recognition to
traditional leadership in areas like Moruleng,
but also to
incorporate observance of a system of customary law and community
custom to the extent they are consistent with the
Bill of Rights.
These legislative enactments broadly set out norms and standards to
define the place and role of traditional leadership
with a view to
transform the institution in line with constitutional imperatives.
They also give recognition to the institution,
status and role of
traditional leadership and governance according to custom and promote
nation building, harmony and peace among
all the people.
67
It is against this backdrop that we determine the lawfulness of the
applicants’ conduct which gave rise to the urgent ex
parte
application.
[102] It
is correct that since the repeal of the Black Authorities Act
68
and the Bophuthatswana Traditional Authorities Act
69
there has been no statutory body known as a “Tribal Authority”.
However, the contention that the concept was replaced
by that of a
traditional authority elevates form above substance. It is clear that
these bodies and the roles they play are fundamentally
the same.
Also, it cannot be denied that the appellation “Tribal
Authority” would be understood by those concerned
to refer to a
body with authority.
[103]
Contrary to assertions made by the applicants, it is not just anybody
who can convene a “Kgothakgothe” which is
otherwise known
as an “imbizo” or “people’s assembly”.
We find the following observations by the
Congress of Traditional
Leaders of South Africa, described as a voluntary association of
progressive traditional leaders commonly
known as CONTRALESA,
instructive:
“
While
accession to the seat of power by traditional leaders evolved to a
stage where it became hereditary, the system of government
was
characterised by transparency, consultation and consensus seeking
amongst those who would be affected by decisions taken; in
other
words government was democratic. The hierarchy of power structures
comprised of sub-headman, headman, chief, and kings (these
terms,
save the latter, are not acceptable to traditional leaders who prefer
the vernacular titles, but are used here purely for
purposes of
clarity). The sub-headman was the head of a small community occupying
a small piece of land. He had his own council
which was made up of
some of the family heads of his area of jurisdiction . . . . One of
the most important forums for decision
making is the people’s
assembly (imbizo). Each one of the authorities has power to convene
imbizo within his area of jurisdiction.”
70
[104] It
is important to note that the people’s assembly is convened by
a particular leader who has the authority to do so
and within his or
her area of jurisdiction. The authorities identified are a
Sub-headman, a Headman, a Senior Traditional Leader
(Kgosi) and a
King. These assemblies, unlike any other meeting, cannot be convened
by any member of the Royal family or a particular
clan who wishes to
do so. If anybody other than the authorities who are duly empowered
to convene a people’s assembly were
to purport to do so, it
would be open to the authority vested with the power to convene that
assembly at that level or above to
have the imposter restrained from
doing so.
[105] The
applicants did not explain why, if the meeting was a community
gathering of the people of Motlhabe village, the people
from
neighbouring villages were also invited to attend a Motlhabe village
“Kgothakgothe”. In their answering affidavit
they said
that the leadership of Mochudi in Botswana and Moruleng “has
lost legitimacy in [their] eyes” in respect
of the Motlhabe
Community. The inference is irresistible that what they sought to
achieve was to replace the alleged “no
longer legitimate
leadership” with their own leadership or governance structure,
which they described in the invitations
as the “Motlhabe Tribal
Authority”, thereby approbating to themselves symbols of state
in order to claim legitimacy
for and to bolster their conduct. The
applicants do not deny having used the appellation “Motlhabe
Tribal Authority”
to refer to what they describe as their
“traditional leadership”. They used the appellation to
convene a “Kgothakgothe”,
which according to them was to
be attended also by people from neighbouring villages, a power they
do not have. We agree with the
High Court that the applicants cannot
appropriate to themselves symbols of state to proclaim a legitimacy
they lack.
Alleged
second flaw
[106]
Regarding the second flaw, it is contended that reference to the term
“Motlhabe Tribal Authority” was not made
in the founding
affidavit and that that was not the case the applicants were brought
to court to meet. However, it is noted that
the respondents attached
the invitations, containing the term “Motlhabe Tribal
Authority”, to the founding affidavit.
[107] The
law on pleading and raising a point not covered in the pleadings is
settled.
71
However, it needs to be remembered that pleadings are for the court
and the court is not for pleadings.
72
A court is bound to consider the substantial issues between the
parties.
73
If the issues in dispute are clear, in the absence of prejudice
technical objections ought not to be upheld.
74
[108] It
is inaccurate that the appellation “Motlhabe Tribal Authority”
was not specifically mentioned in the founding
papers. The first
respondent referred to the applicants’ ambition which allegedly
reared its head as long ago as 20 July
2009, when the first applicant
addressed a letter to the so-called “Moruleng Tribal
Administration”. The letter was
annexed to the founding
affidavit.
75
As the letterhead shows, the first applicant’s purported new
tribal authority was the “Bakgatla–Ba–Kautlwale

Pilane Motlhabe Tribal Authority”. The contents of the letter
read:
“
THE
SECRETARY
MORULENG TRIBAL ADMINISTRATION
MORULENG
. . .
We, Dikgoro tsa Bakgatla Ba
Kautlwale Pilane, Kgosing, Marema, Morokologadi, Mabodisa and
Mapotsane, at Motlhabe village, in the
North West Province, at our
meeting held on the 26
th
March 2009, resolved as follows.
1. That with effect from 1
st
July 2009, we are no longer Part of your Tribal Administration and we
shall no longer take part in any activity and even observe
any
[protocol] to your Administration.
2. That as an Independent Tribe,
we shall be known as BAKGATLA BA KAUTLWALE PILANE.
3. That, the Tribal
Administration shall be officially opened on the 1
st
August 2009.”
[109] On 2
February 2010 the respondents, in a letter authored by the first
respondent and addressed to the Chief Director of the
Department of
Local Government and Traditional Affairs, requested the latter to
intervene in the matter regarding the “‘so-called’

Motlhabe Tribal Authority Kgothakgothe”. A copy of the
invitation was attached. In their answering affidavit, the applicants

explain that they used the term “Tribal Authority”, which
they have used for many years, to refer to their traditional

leadership in the Motlhabe village. The respondents were concerned
that the meeting would “ultimately result in instability”

within the community. We should not focus on the formalistic question
whether the term “Motlhabe Tribal Authority”
is used in
the founding affidavit. Rather the true enquiry is whether the
complaint has been pleaded and supported by established
facts on
record.
76
In the light of the above, it cannot be said that the applicants did
not understand the case they were brought to Court to meet.
[110]
There is thus no basis for the complaint that the term “Motlhabe
Tribal Authority” was not used in the founding
papers.
Therefore, the purpose of the use of the appellation in the
invitations was indeed none other than to lend a cloak of authority

or legitimacy to the meeting the applicants sought to convene. There
is no acceptable reason why the applicants chose not to refer
to the
meeting as the “community meeting of the people of Motlhabe
village” as described in the answering affidavit
or as the
“Motlhabe Community meeting”.
[111] The
next question is whether the requisites for an interdict were
established.
Requisites
for an interdict
[112] It
is correct that courts should be slow to grant interdicts that have
the effect of limiting constitutional rights.
77
However, we are of the view that, in the circumstances of this case,
the grant of the first interdict did not breach the applicants’

rights to free association and free speech. The applicants contend
that even if the community understood the reference “Motlhabe

Tribal Authority” to mean something clothed with statutory
recognition, the requirements for the granting of the interdict
were
not met. We do not agree.
[113] The
requirements for a final interdict are well-known, namely (a) a clear
right; (b) an injury actually committed or reasonably
apprehended;
and (c) the absence of similar protection by any other alternative
and adequate remedy.
78
Additionally, where an application for an interdict is made ex parte,
there should be a full disclosure of facts.
79
However, where there has been non-disclosure of facts, there is no
rule of law which compels the court to set aside the interim

interdict granted.
80
The granting or withholding of interdicts still remains a
discretionary power.
81
A final interdict should only be granted in motion proceedings if the
facts as stated by the respondent, together with the admitted
facts
in the applicant’s affidavits, justify the order.
82
[114]
There can be no doubt that the respondents are the legally recognised
traditional leadership structures in the Bakgatla–Ba–Kgafela

Traditional Community.
83
As is apparent from the invitations, both applicants assigned
themselves the position of “chairperson” of the “Motlhabe

Tribal Authority”, which position is unfamiliar within the
traditional leadership structures. By convening a “Kgothakgothe”,

which was to be attended not only by the members of Motlhabe but also
people from neighbouring villages that fall under the jurisdiction
of
the respondents, the applicants attempted to usurp the powers of the
Headman and the respondents. And by declaring their independence
and
stating that they do not recognise the first respondent’s
legitimacy, the applicants in effect sought to undermine and
threaten
the first respondent’s position or remove him as a senior
traditional leader of the Motlhabe village or community,
in total
disregard of section 12 of the Framework Act.
84
[115]
Professor Bekker has expressed very strong reservations about the
lawfulness of the secession planned by the applicants. He
records,
that in years gone by, a leader of a secession and his followers
would leave the community and the land in which they
live, sometimes
even their belongings. The Commission
85
is, in terms of sections 21
86
and 25
87
of the Framework Act, vested with the power to deal with issues
similar to those raised by the applicant. That authority does not

seem to vest in the Premier.
88
This blends with the purpose for which the “Kgothakgothe”
was to be held.
[116] In
the circumstances, the respondents, as the lawful authorities were
entitled to approach the High Court to resist the usurpation
of their
rights by the applicants, who had no authority under customary law
and the relevant statutes to convene a meeting of that
nature and
form. Although the applicants have promised not to repeat what they
have done, this was not a once-off event. They previously
undermined
the authority of the existing legitimate structures when they stated
that they “were no longer part of [the respondents’]

Tribal Administration, and . . . shall no longer take part in any
activities and even observe any protocol to [the respondents’]

Administration.” They declared their own independence and that
their community would be known as “Bakgatla–Ba–Kautlwale

Pilane”. Their subsequent conduct reinforces the position that
they seek to continue to operate as if the “unilateral

declaration of independence”
89
has already been given effect to.
[117]
Disorderliness is on the rise in this country and traditional
communities are no exception. If it were to be permissible,
the
applicants’ form of secession would have to be led by a
legally-recognised leader of the community. Meetings that are
meant
to pave the way for secession should not be clothed with authority
the applicants do not enjoy.
[118] The
lawlessness and possible chaos the respondents feared may be implied
from what the applicants stated in their letter of
20 July 2009. In
addition, the convening of a general meeting of almost all the
villagers in Motlhabe as well as people from neighbouring
villages
without any legal authority had the potential of creating factions
and disorder which could make the Moruleng community
ungovernable. In
the circumstances, it cannot be said that the apprehension of harm
was not reasonable.
[119] We
are of the view that a proper balancing of the rights implicated is
necessary. The setting aside of the first interdict
will, in our
view, provide an avenue for undermining legitimate traditional
structures, leadership and governance and the erosion
of the rule of
law. The fact that the applicants have undertaken not to repeat the
use of the appellation “Tribal Authority”
in the future
is, in the circumstances, insufficient because of their continued
disregard for the recognised leadership.
90
The applicants have steadfastly maintained that the leadership of the
respondents lacks legitimacy in their eyes and those of the

community.
[120] The
respondents had sought the intervention of the police and the Chief
Director of the Department of Local Government and
Traditional
Affairs before launching the ex parte application. It has not been
suggested by the applicants that an alternative
remedy was available.
Conclusion
[121] In
the circumstances we would have granted leave to appeal. We would not
have interfered with the exercise of the High Court’s

discretion in relation to the first interdict. Accordingly, we would
have dismissed the appeal in respect of the first interdict
but
upheld it in respect of the second and third interdicts with no order
as to costs.
For the
Applicants: Advocate G Budlender SC and Advocate S Cowen instructed
by the Legal Resources Centre.
For the
Respondents: Advocate J Gauntlett SC and Advocate O Chwaro
instructed by Mothuloe Attorneys.
1
The
North West Province is one of nine provinces in the Republic,
established under section 103 of the Constitution. Adjacent
to the
North West Province is the sovereign state of Botswana.
2
41
of 2003.
3
2
of 2005.
4
See
below n 25 and n 26 for the recognition provisions under the
Framework Act and North West Act respectively.
5
The
North West Act does not define the term “Kgosikgolo”.
Translated from the Setswana language, it means great chief.
The
Kgosikgolo
of the Traditional Community is therefore its
highest ranking traditional leader. It is unnecessary to determine
whether the
Kgosikgolo
is recognised under South African
legislation.
6
Historically,
the Bakgatla-Ba-Kgafela resided as one tribe based in Saulspoort. A
section of Bakgatla-Ba-Kgafela then relocated
further west and
settled in Mochudi, Botswana. The two sections of the
Bakgatla-Ba-Kgafela, however, remain closely connected.
7
The
Sun City Resort is a luxury leisure resort located in the North West
Province. It was established in what was then the homeland
of
Bophuthatswana, where the Resort offered gambling facilities which
were not permitted in apartheid South Africa.
8
The
two government officials are Mr Ruthwane and Mr Motswasele. Mr
Ruthwane is a Director in the Traditional Affairs Directorate
in the
Department of Local Government and Traditional Affairs of the North
West Province. Mr Motswasele is a District Co-ordinator
for
Traditional Affairs in the same Directorate.
9
The
applicant disputes the translation of the words in square brackets.
It is not necessary in the present case to settle this
dispute.
10
Pilane
and Another v Pilane and Another
[2011]
ZANWHC 80.
11
Id
at para 21.
12
Rather
it is the term “Traditional Community”, which was not
employed, that has a specified legal meaning in terms
of the
relevant legislation. See [33] below for a discussion on the
relevant legislation.
13
68
of 1951.
14
23
of 1978.
15
See
[46] below for a description of
Kgotha Kgothe
.
16
High
Court judgment above n 10 at para 21.
17
We
were referred to
IIR South Africa BV (incorporated in the
Netherlands) t/a Institute for International Research v Tarita and
Others
2004 (4) SA 156
(WLD) (
Tarita
).
18
Section
16 of the Constitution.
19
Id
section 17.
20
Id
section 18.
21
Id
sections 1, 41 and 152.
22
Id
section 212.
23
See
cases referred to in the High Court founding affidavit of Mr Nyalala
John Molefe Pilane (Case No 1369/2008, 2482/2008 and
1250/2009,
North West High Court, unreported).
24
Section
212(1) of the Constitution provides:
“
National legislation may
provide for a role for traditional leadership as an institution at
local level on matters affecting local
communities.”
25
The
Framework Act provides a national framework for the recognition of
traditional communities and leaders as well as the establishment
and
recognition of traditional councils. The relevant provisions for
recognising traditional communities and leadership in the
Framework
Act are set out below:
“
2 Recognition of traditional communities
(1) A community may be recognised as a traditional
community if it—
(a) is subject to a system of traditional leadership in
terms of that community’s customs; and
(b) observes a system of customary law.
(2) (a) The Premier of a province may, by notice in the
Provincial Gazette, in accordance with provincial legislation and
after
consultation with the provincial house of traditional leaders
in the province, the community concerned, and, if applicable, the

king or queen under whose authority that community would fall,
recognise a community envisaged in subsection (1) as a traditional

community.
(b) Provincial legislation referred to in paragraph (a)
must—
(i) provide for a process that will allow for
reasonably adequate consultation with the community concerned; and
(ii) prescribe a fixed period within which the Premier
of the province concerned must reach a decision regarding the
recognition
of a community envisaged in subsection (1) as a
traditional community.
. . .
11 Recognition of senior traditional leaders,
headmen or headwomen
(1) Whenever the position of senior traditional leader,
headman or headwoman 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 applicable customary law—
(i) identify a person who qualifies in terms of
customary law to assume the position in question, after taking into
account whether
any of the grounds referred to in section 12(1)(a),
(b) and (d) apply to that person; and
(ii) through the relevant customary structure, inform
the Premier of the province concerned of the particulars of the
person so
identified to fill the position and of the reasons for the
identification of that person; and
(b) the Premier concerned must, subject to subsection
(3), recognise the person so identified by the royal family in
accordance
with provincial legislation as senior traditional leader,
headman or headwoman, as the case may be.”
26
The
North West Act provides for the recognition of traditional
communities and leadership and defines the roles and functions
of
traditional leaders and traditional councils. It endeavours to
provide an enabling environment for the recognition, protection,

preservation, transformation and development of traditional
communities, institutions, customary law and customs in the North

West Province.
The relevant provisions for
recognising traditional communities and leadership under the North
West Act are set out below:
“
3
Recognition of
traditional community
(1) The Premier may, on application by a community,
recognise a community as a traditional community in the prescribed
form: Provided
such a community—
(a) is subject to a system of traditional leadership in
terms of that community’s customs and practices; and
(b) observes a system of customary law.
(2) The Premier shall consult with the community
concerned, any other community affected by such application, the
Local House
of Traditional Leaders having jurisdiction within the
area in which the applicant community resides, and the Provincial
House
of Traditional Leaders.
(3) The Premier shall, subject to the provisions of
subsection (2), within a period of 12 months from the date of
receipt of the
application for recognition decide on such
application.
(4) The Premier shall, by notice in the
Gazette
,
publish any decision made in terms of subsection (1) within 30 days
from the date of such decision.
(5) The Premier may at any time after the publication
of the notice referred to in subsection (4) reverse his or her
decision
if it is subsequently established that the group of people
who have been recognised as a traditional community—
(a) are not subject to a system of traditional
leadership in terms of that community’s customs and practices;
(b) do not observe a system of customary law; and or
(c) recognition as a traditional community was
erroneously granted.
. . .
19 Identification of kgosana
(1) Bogosana of a traditional community shall be in
accordance with the customary law and customs applicable in such a
traditional
community.
(2) The identification of a kgosana of a traditional
community shall be made by the Royal Family in accordance with its
customary
law and customs.
(3) The Premier may recognise a person identified as
contemplated in subsection (1) as kgosana of a particular
traditional community.
(4) The Premier shall issue a person so recognised as
kgosana with a certificate of recognition.
(5) The Premier shall issue a notice
in the
Gazette
recognise
a kgosana and such notice shall be served on the Local House of
Traditional Leaders for information.”
27
Shilubana
and Others v Nwamitwa
[2008] ZACC 9
;
2009 (2) SA 66
(CC);
2008
(9) BCLR 914
(CC) (
Shilubana
) at para 43;
Bhe and Others v
Magistrate, Khayelitsha and Others (Commission for Gender Equality
as
Amicus Curiae
); Shibi v Sithole and Others; South African
Human Rights Commission and Another v President of the Republic of
South Africa and
Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) (
Bhe
) at para 41; and
Alexkor Ltd and
Another v Richtersveld Community and Others
[2003] ZACC 18
;
2004
(5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at para 51.
28
Bhe
above n 27 at paras 87 and 90.
29
Id
at para 43.
30
Gumede
v President of Republic of South Africa and Others
[2008]
ZACC 23
;
2009 (3) SA 152
(CC);
2009 (3) BCLR 243
(CC) at para 20.
31
Shilubana
above n 27 at para 45 and
Bhe
above n 27 at paras 43 and
81-3.
32
Gumede
above n 30 at para 22.
33
High
Court judgment above n 10 at para 36.
34
1914
AD 221.
35
Id
at 227.
36
See
[33] and [34] above.
37
Section
239 of the Constitution, in relevant part, defines “organ of
state” as:
“
(a) any department of state or administration in
the national, provincial or local sphere of government; or
(b) any other functionary or institution—
(i) exercising a power or performing a function in
terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public
function in terms of any legislation”.
38
1984
(3) 620 (AD).
39
Id
at 634E-635C.
40
In
Director of Hospital Services v Mistry
1979 (1) SA 626
(AD)
at 635H-636B, the Appellate Division held:
“
When . . . proceedings are
launched by way of notice of motion, it is to the founding affidavit
which a Judge will look to determine
what the complaint is. As was
pointed out by Krause J in
Pountas’
Trustees v Lahanas
1924 WLD 67
at 68 and as has been said in many other cases:
‘
. . . an applicant must stand
or fall by his petition and the facts alleged therein and that,
although sometimes it is permissible
to supplement the allegations
contained in the petition, still the main foundation of the
application is the allegation of facts
stated therein, because those
are the facts which the respondent is called upon either to affirm
or deny’.
Since it is clear that the applicant stands or falls by
his petition and the facts therein alleged, ‘it is not
permissible
to make out new grounds for the application in the
replying affidavit’ (per Van Winsen J in
SA Railways
Recreation Club and Another v Gordonia Liquor Licensing Board
1953 (3) SA 256
(C) at 260).”
In
South African Transport and Allied Workers Union and Another v
Garvas and Others
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8)
BCLR 840
(CC) (
Garvas
) at para 114, this Court held as
follows:
“
Holding parties to pleadings
is not pedantry. It is an integral part of the principle of legal
certainty which is an element of
the rule of law, one of the values
on which our Constitution is founded. Every party contemplating a
constitutional challenge
should know the requirements it needs to
satisfy and every other party likely to be affected by the relief
sought must know precisely
the case it is expected to meet.”
41
The
content of the invitation is reproduced at [9] above.
42
Condé
Nast Publications Ltd v Jaffe
1951 (1)
SA 81
(CPD) at 86G-H.
43
Above
n 17.
44
High
Court judgment above n 10 at para 36.
45
Section
1 of the Constitution provides:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
. . .
(c) Supremacy of the constitution and the rule of law.”
46
High
Court judgment above n 10 at para 36.
47
Id
at paras 32-3.
48
See
Garvas
above
n 40 at para 63;
Oriani-Ambrosini,
MP v Sisulu, MP Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 588
(CC) (
Ambrosini
)
at para 49;
Print
Media South Africa and Another v Minister of Home Affairs and
Another
[2012]
ZACC 22
;
2012 (6) SA 443
(CC);
2012 (12) BCLR 1346
(CC) at para 54;
National Union of
Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and
Another
[2002]
ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC) at para 31;
Khumalo
and Others v
Holomisa
[2002]
ZACC 12
;
2002
(5) SA 401
(CC);
2002
(8) BCLR 771
(CC) at para 24; and
South
African National Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para 8.
49
In
South African National Defence Union
above n 48 at para 8 it
was held that—
“
[freedom of expression] is
closely related to . . . freedom of association (s 18) . . . and the
right to assembly (s 17). These
rights taken together protect the
rights of individuals not only individually to form and express
opinions, of whatever nature,
but to establish associations and
groups of like-minded people to foster and propagate such opinions.
The rights implicitly recognise
the importance, both for a
democratic society and for individuals personally, of the ability to
form and express opinions, whether
individually or collectively,
even where those views are controversial.”
See
also
S v Mamabolo (E TV and Others Intervening)
[2001] ZACC
17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 28.
50
In
Ambrosini
above n 48 at para 49 this Court stated:
“
The need to recognise the
inherent value of . . . dissenting opinions was largely inspired by
this nation’s evil past and
our unwavering commitment to make
a decisive break from that dark history. South Africa’s
shameful history is one marked
by authoritarianism, not only of the
legal and physical kind, but also of an intellectual, ideological
and philosophical nature.
The apartheid regime sought to dominate
all facets of human life. It was determined to suppress dissenting
views, with the aim
of imposing hegemonic control over thoughts and
conduct, for the preservation of institutionalised injustice. It is
this unjust
system that South Africans, through their Constitution,
so decisively seek to reverse by ensuring that this country fully
belongs
to all those who live in it.” (Footnotes omitted.)
51
In
Democratic Alliance
and Another v Masondo
NO and Another
[2002]
ZACC 28
;
2003
(2) SA 413
(CC);
2003
(2) BCLR 128
(CC) at para 43 this Court, albeit in the
legislative context, stated:
“
It should be underlined that
the responsibility for serious and meaningful deliberation and
decision-making rests not only on
the majority, but on minority
groups as well. In the end, the endeavours of both majority and
minority parties should be directed
not towards exercising (or
blocking the exercise) of power for its own sake, but at achieving a
just society where, in the words
of the Preamble, ‘South
Africa belongs to all who live in it. . .’.”
52
See
above n 23 for an enumeration of similar matters involving the
respondents.
53
Section
211 of the Constitution.
54
Id
Part A of Schedule 4.
55
Prince
v President of the Law Society of the Cape of Good Hope and Others
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001 (2) BCLR 133
(CC) and
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10) BCLR 1051
(CC).
56
41
of 2003 (Framework Act).
57
2
of 2005 (North West Act).
58
It
is described by the respondent as a general meeting of the full
traditional authority and not of a ward or village. It is also
said
to be a people’s assembly or an “imbizo”. See
[103] below.
59
Notably,
the legally appointed Headman/Kgosana of Motlhabe explains that he
does not have the power to convene a “Kgothakgothe”.
60
Under
the repealed Bophuthatswana Traditional Authorities Act 23 of 1978
(B), the appellation “Tribal Authority” was
used to
describe the “Traditional Council” or “Authority”
of each “Tribe” or traditional
community. See Annexure
“B4” as part of Annexure “MP10”, the letter
by the then Bakgatla–Ba–Kgafela
Tradition Council,
addressed to the Human Rights Commission in which the
Bakgatla–Ba–Kgafela Traditional Council
is referred to
as the Bakgatla–Ba–Kgafela Tribal Authority.
61
For
a translation and typed version see [87] below.
62
This
was the resolution of the Bakgatla–Ba–Kgafela
Traditional Council taken at Moruleng.
63
The
relevant parts of the letter read:
“
2. Your notice stating that
you intend to convene a
Kgotha-kgothe
or general meeting of
the
Bakgatla–Ba–Kgafela in Motlhabe Village . . . has been
referred to us by . . . both Kgosi M.J. Pilane and the
Traditional
Council of the Bakgatla–Ba–Kgafela . . .
3. The prerogative to convene a
Kgotha-kgothe
resides
with the Kgosi, in this case, Kgosi
Pilane, in consultation with the Traditional Council. Your meeting
has not been sanctioned
and permitted by both Kgosi Pilane and the
Traditional Council and is therefore an illegal gathering.
4.
. . .
5. Your intentions are unequivocally to discuss
[secession] from the Bakgatla–Ba–Kgafela Traditional
Authority as
set out in your notice. . . . Much as the Constitution
. . . enshrines the freedom of association, . . . your actions will,
by
their very nature, impinge on the very same and other
constitutional rights of the rest of the Bakgatla–Ba–Kgafela

in one or more or even all of the undermentioned ways.
6. Our instructions are further to advise you and your
association or group as follows:—
6.1 Your said conduct of seeking [secession] has the
following legal requirements, before you and your associates can
even hold
these prohibited meetings:
a) the consent and approval of the general tribal
meeting of the entire federation of the 32 villages commonly called
“kgothakgothe”
which form the Bakgatla–Ba–Kgafela
in MORULENG;
b) the consent and approval of the Traditional
Authorities of both MORULENG and MOCHUDI;
c) the consent and approval of both Kgosi N.M.J Pilane
and H.M. Kgosikgolo Kgafela Kgafela;
d) the consent and approval of the commission as well
as the office of the Premier of the North West Province.”
64
Pilane
and Another v Pilane and Another
[2011] ZANWHC 80
(High Court
judgment) at paras 19 and 21.
65
Id
at para 24.
66
68
of 1951.
67
See
the preambles of the Framework Act and North West Act.
68
Above
n 66.
69
23
of 1978.
70
These
submissions were made to the Constitutional Assembly on the
constitutional role of traditional leaders in 1995. See Annexure
“B”
to affidavit of Professor Mbenga.
71
Barkhuizen
v
Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR
691
(CC) at para 39.
72
Robinson
v Randfontein Estates GM Co, Ltd
1925 AD 173
at 198. See also
Firstrand Bank Ltd v Venter
[2012] ZASCA 117
at para 30.
73
Freitan
(Pty) Ltd v Ciscryl (Pty) Ltd
[1998] ZAECHC 1
at para 6. See
also
Shill v Milner
1937 AD 101
at 105.
74
Joubert
v Impala Platinum Ltd
1998 (1) SA 463
(B) at 471E.
75
Annexure
“B”: Notice by the Bakgatla–Ba–Kautlwale
Pilane Motlhabe Tribal Authority dated 20 July 2009.
Copies of the
letter were sent to the MEC for Local Government and Traditional
Affairs, Mahikeng; the Chairperson, House of Traditional
Leaders,
Mafikeng; Mr Motswasele of the Traditional Affairs Mogwase Regional
Office; the Station Commissioner, Mogwase Police
Station; and the
Executive Mayor of Moses Kotane Local Municipality.
76
Competition
Commission of South Africa v Senwes Ltd
[2012] ZACC 6
;
2012 (7)
BCLR 667
(CC) at para 29 and 44-5.
77
President
of the Republic of South Africa and Others v United Democratic
Movement (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as Amici Curiae)
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC).
78
Setlogelo
v Setlogelo
1914 AD 221
at 227.
79
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma and Another v National Director of Public Prosecutions
and
Others
[2008] ZACC 13
;
2009 (1) SA 1
(CC);
2008 (12) BCLR 1197
(CC) at para 296.
80
Prest
The Law & Practice of Interdicts
(Juta & Co, Ltd,
1996) at 245.
81
Id
at 253.
82
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD)
at 624D-E and
Stellenbosch Farmers’ Winery Ltd v
Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(CPD) at 235E-G.
83
See
para [3] above.
84
Section
12 provides in relevant part:
“
Removal of senior traditional leaders, headmen
or headwomen
A senior traditional leader, headman or headwoman may
be removed from office on the grounds of—
conviction of an offence with a sentence of
imprisonment for more than 12 months without an option of a fine;
physical incapacity or mental infirmity which, based
on acceptable medical evidence, makes it impossible for that senior
traditional
leader, headman or headwoman to function as such;
wrongful appointment or recognition; or
a transgression of a customary rule or principle that
warrants removal.”
85
The
Commission
o
n Traditional Leadership
Disputes and Claims.
86
Section
21(1) of the Framework Act provides:
“
(a) Whenever a dispute or claim concerning
customary law or customs arises within a traditional community or
between traditional
communities or other customary institutions on a
matter arising from the implementation of this Act, members of such
a community
and traditional leaders within the traditional community
or customary institution concerned must seek to resolve the dispute

internally and in accordance with customs.
(b) Where a dispute envisaged in paragraph (a) relates
to a case that must be investigated by the Commission in terms of
section
25(2), the dispute must be referred to the Commission, and
paragraph (a) does not apply.”
87
Section
25 of the Framework Act sets out the functions of the Commission.
88
See
paras 10-6 of Professor Bekker’s expert opinion:
“
In this case the [first applicant] has decided
to ‘secede’ by staying put by just re-arranging the
deckchairs. He
does not say how he would acquire a territory nor how
he would determine who his ‘loyal’ followers are to be .
.
.
In terms of the Black Authorities Act 58 of 1951 the
government literally froze all tribes that existed at the time . . .
If all
those . . . who were willy-nilly bundled into a tribal area
[are] to be told they are legally entitled to secede it would create

chaos. Hence the need for the Nhlapo Commission. . .
Any community that feels that it has been done an
injustice may apply to the Commission for redress. The [first
applicant] has
done so, but has abandoned (so it seems) the claim
because the Commission was lackadaisical . . .
While [the first applicant] may in an objective and
calculating manner prepare a case for the Nhlapo Commission, a
populist approach
may lead to unrest and even insurrection. . .
[Section 21(1) of the Framework Act provides:]
Whenever a dispute concerning customary law or customs
arises within a traditional community or between traditional
communities
or other customary institutions on a matter arising
from the implementation of this Act, members of such a community
and traditional
leaders within the traditional community or
customary institution concerned must seek to resolve the dispute
internally and
in accordance with custom.
Where a dispute envisaged in paragraph (a) relates to
a case that must be investigated by the Commission in terms of
section
25(2), the dispute must be referred to the Commission, and
paragraph (a) does not apply.
It is inconceivable that a Premier has concurrent
powers to adjudicate on a dispute.”
89
High
Court judgment at para 17.
90
See
IIR South Africa BV (Incorporated in the Netherlands) t/a
Institute
for
International Research
v
Tarita and Others
2004 (4) SA 156 (W)
at 166I-167C.