Amahlubi Tribal Authority and Another v Premier, North-West Province and Others (233/99) [2001] ZANWHC 33 (28 June 2001)

REPORTABLE

Case No. 233/99

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

IN THE MATTER BETWEEN:

AMAHLUBI TRIBAL AUTHORITY 1ST PLAINTIFF

ZINIKELE ISRAEL MOLO 2ND PLAINTIFF

AND

THE PREMIER NORTH WEST PROVINCE 1ST DEFENDANT

THE MEC FOR THE DEPARTMENT OF 2ND DEFENDANT

LOCAL GOVERNMENT AND HOUSING

PELET MANELI 3RD DEFENDANT

MALVERN PETE 4TH DEFENDANT

COUNSEL FOR THE PLAINTIFFS: MR DE LA HARPE

COUNSEL FOR 1ST & 2ND DEFENDANTS: MR MOTHIBE

JUDGMENT

NKABINDE J:

Introduction

[1] The first and second plaintiffs (Amahlubi Tribal Authority and Z.I. Molo, respectively) have instituted an action against the defendants for an order in the following terms:

1.1 directing the first defendant (The Premier of the North West Province) to appoint second plaintiff as headman, alternatively foreman of Welverdiend in terms of the provisions of the Act. 1.2 directing the second defendant (The MEC for the Department of Local Government, Housing, Planning and Development, in his capacity as the MEC responsible for Traditional Affairs) to implement the appointment referred to in paragraph 1.1, above; 1.3 prohibiting and interdicting the third and fourth defendants, P. Maneli and M. Pete, respectively, from interfering with the administration of the Amahlubi Tribe at Welverdiend and from occupying the tribal offices at Welverdiend or any part thereof; 1.4 interdicting the third defendant from holding himself out as headman; 1.5 ordering defendants to pay the costs jointly and severally, the one paying the other to be absolved save that the third and fourth defendants are only liable for costs on an unopposed scale. [2] I need to mention that the plaintiffs also filed an application (under Case No. 234/99 for an interim relief, pending the finalization of this action), for relief more or less similar to the orders sought in this action. The parties however agreed, at the pre-trial conference and at the commencement of this trial, that a determination first be made under case no. 233/99. The third and fourth defendants did not file a plea. Factual Background (i) Undisputed facts

1.1 directing the first defendant (The Premier of the North West Province) to appoint second plaintiff as headman, alternatively foreman of Welverdiend in terms of the provisions of the Act.

1.2 directing the second defendant (The MEC for the Department of Local Government, Housing, Planning and Development, in his capacity as the MEC responsible for Traditional Affairs) to implement the appointment referred to in paragraph 1.1, above;

1.3 prohibiting and interdicting the third and fourth defendants, P. Maneli and M. Pete, respectively, from interfering with the administration of the Amahlubi Tribe at Welverdiend and from occupying the tribal offices at Welverdiend or any part thereof;

1.4 interdicting the third defendant from holding himself out as headman;

1.5 ordering defendants to pay the costs jointly and severally, the one paying the other to be absolved save that the third and fourth defendants are only liable for costs on an unopposed scale.

[2] I need to mention that the plaintiffs also filed an application (under Case No. 234/99 for an interim relief, pending the finalization of this action), for relief more or less similar to the orders sought in this action. The parties however agreed, at the pre-trial conference and at the commencement of this trial, that a determination first be made under case no. 233/99. The third and fourth defendants did not file a plea.

Factual Background

(i) Undisputed facts

[3] The words “headman” or “foreman” are used, for the purpose of this judgment, interchangeably as synonyms. It is necessary and important to mention from the onset that the administration of the Bophuthatswana Traditional Authorities Act 23 of 1978 (“the Act”) and the Black Authorities Act 68 of 1951 were assigned to the North West Province Government by Proclamation 110 of 1994(Published in Government Gazette 15813 of 1994). Therefore the words “President” and “Premier” are used, in this judgment, interchangeably. This action is a culmination of years of tensions, divisions and instability in the administration of Welverdiend, a State owned land occupied by people of diverse ethnic and cultural origins. The background and history of the matter as sketched in the evidence,

most of which was unchallenged, can be summarized as follows: 3.1 Nkosi Madoda Shadrack Zibi (“the Chief”) is the chairman of the first plaintiff and the current chief of the Amahlubi Tribe with its seat at Khayakulu Village district Madikwe, in the North West Province. During 1924 Chief Zibi’s grandfather, Nkosi Shadrack Zibi (“Nkosi Zibi Senior”), moved from the Eastern Cape to the farm Rhenosterboom (commonly known as Khayakulu), which the tribe acquired. Around Khayakulu there are several State owned farms. These include Welgeval, Welverdiend, Goedehoop, Miersrust (a grazing land and fields) and Rampampaspoort. During 1953 and in terms of Government Notice no. 1279 of 19 June 1953 the Governor General established a [Bantu] Tribal Authority for the Amahlubi Tribe under Nkosi Zibi Senior in respect of the tribal farm Rhenosterboom, and a trust farm of Welverdiend. The people of Welverdiend were, on the tendered evidence, told by Magistrate Nel from Pilansberg that they would henceforth fall under Chief Zibi Senior. The Tribal Authority then consisted of the Chief, not less than twelve and not more than eighteen councillors. Before Bophuthatswana came into power the trust farms were administrated by the [Bantu] Affairs Commissioner. The headmen in the trust villages were elected by the people.

[3] The words “headman” or “foreman” are used, for the purpose of this judgment, interchangeably as synonyms. It is necessary and important to mention from the onset that the administration of the Bophuthatswana Traditional Authorities Act 23 of 1978 (“the Act”) and the Black Authorities Act 68 of 1951 were assigned to the North West Province Government by Proclamation 110 of 1994(Published in Government Gazette 15813 of 1994). Therefore the words “President” and “Premier” are used, in this judgment, interchangeably. This action is a culmination of years of tensions, divisions and instability in the administration of Welverdiend, a State owned land occupied by people of diverse ethnic and cultural origins. The background and history of the matter as sketched in the evidence,

most of which was unchallenged, can be summarized as follows:

3.1 Nkosi Madoda Shadrack Zibi (“the Chief”) is the chairman of the first plaintiff and the current chief of the Amahlubi Tribe with its seat at Khayakulu Village district Madikwe, in the North West Province. During 1924 Chief Zibi’s grandfather, Nkosi Shadrack Zibi (“Nkosi Zibi Senior”), moved from the Eastern Cape to the farm Rhenosterboom (commonly known as Khayakulu), which the tribe acquired. Around Khayakulu there are several State owned farms. These include Welgeval, Welverdiend, Goedehoop, Miersrust (a grazing land and fields) and Rampampaspoort. During 1953 and in terms of Government Notice no. 1279 of 19 June 1953 the Governor General established a [Bantu] Tribal Authority for the Amahlubi Tribe under Nkosi Zibi Senior in respect of the tribal farm Rhenosterboom, and a trust farm of Welverdiend. The people of Welverdiend were, on the tendered evidence, told by Magistrate Nel from Pilansberg that they would henceforth fall under Chief Zibi Senior. The Tribal Authority then consisted of the Chief, not less than twelve and not more than eighteen councillors. Before Bophuthatswana came into power the trust farms were administrated by the [Bantu] Affairs Commissioner. The headmen in the trust villages were elected by the people.

3.2 The tribal area of the Amahlubi Tribe was redefined (See: Government Notice No. 1 1990, Vol 19 dated 5 January 1990), in terms of s. 2 of the Act to include the trust farms mentioned above. The Tribal Authority of the Amahlubi Tribe was reconstituted to consist of the Kgosi, the headmen of three dikgotlas, the foreman of trust farms of Welverdiend, Welgeval, Goedehoop and Rampampaspoort and four other members of the tribe. The Government Notice no. 1279 of 19 June 1953 was accordingly withdrawn. It bears mentioning that before the incorporation of the trust land into the Amahlubi Tribal jurisdiction the community in the trust areas did not necessary belong to one ethnic group. It is also common cause that the community of Welverdiend consisted and still consists of diverse ethnic and cultural groups, including but not limited to the Tswanas, Swazis, Ndebeles, Thembus and Hlubis. 3.3 Chief Zibi’s father predeceased his father, Nkosi Zibi Senior. When Nkosi Zibi Senior died his grandson, Chief Zibi, was still pursuing his studies in Germany. According to the Chief, Mr German Tshobela was the headman for Welverdiend at that time. On his return from Germany Mr Tshobela had left to seek employment in the mines. Mr P. Lolwane became Mr Tshobela’s successor.

3.2 The tribal area of the Amahlubi Tribe was redefined (See: Government Notice No. 1 1990, Vol 19 dated 5 January 1990), in terms of s. 2 of the Act to include the trust farms mentioned above. The Tribal Authority of the Amahlubi Tribe was reconstituted to consist of the Kgosi, the headmen of three dikgotlas, the foreman of trust farms of Welverdiend, Welgeval, Goedehoop and Rampampaspoort and four other members of the tribe. The Government Notice no. 1279 of 19 June 1953 was accordingly withdrawn. It bears mentioning that before the incorporation of the trust land into the Amahlubi Tribal jurisdiction the community in the trust areas did not necessary belong to one ethnic group. It is also common cause that the community of Welverdiend consisted and still consists of diverse ethnic and cultural groups, including but not limited to the Tswanas, Swazis, Ndebeles, Thembus and Hlubis.

3.3 Chief Zibi’s father predeceased his father, Nkosi Zibi Senior. When Nkosi Zibi Senior died his grandson, Chief Zibi, was still pursuing his studies in Germany. According to the Chief, Mr German Tshobela was the headman for Welverdiend at that time. On his return from Germany Mr Tshobela had left to seek employment in the mines. Mr P. Lolwane became Mr Tshobela’s successor.

3.4 The controversy started when Mr Lolwane was appointed. Certain allegations of impropriety were made against Mr Lolwane. In pursuance of such complaints President Mangope, appointed the Viviers Commission to investigate the allegations against the headman of Welverdiend. It transpired, during the investigation, that the complainants at Welverdiend wanted their tribal affairs to be administered by an administrator directly and not by the Amahlubi Tribal Authority. On the tendered evidence, this is still the position. The Commission completed its investigation during 1992. It recommended, inter alia, that- (a) the demand by the complainants for the excision of the farm Welverdiend from the tribal area of the Amahlubi Tribal Authority and subsequent direct administration by the administrator be rejected; (b) the term of office of the foreman, Piet Lolwane, be terminated; (c) an election for a foreman and for four advisors be conducted under the supervision of the Administrator, Madikwe; (d) Kgosi Zibi and his tribal council be instructed to accept the outcome of such an election and to confirm the appointment of the elected foreman and the four advisors for a term of five years; (e) the foreman and the community of Welverdiend must consult the Kgosi and his tribal council in connection with all projects undertaken or to be undertaken in the area; (f) the foreman be granted the same jurisdiction as that of a kgosana in terms of the Act to try and determine certain court cases. The foreman would be a member of the tribal court at Khayakulu and must refer cases beyond his jurisdiction to Khayakulu for trial or appeals; (g) a sub-office be established at Welverdiend and that all prescribed accounting records and administrative records be maintained; (h) the foreman of Welverdiend remains a member of the Amahlubi Tribal Authority and should represent the community on that body.

3.4 The controversy started when Mr Lolwane was appointed. Certain allegations of impropriety were made against Mr Lolwane. In pursuance of such complaints President Mangope, appointed the Viviers Commission to investigate the allegations against the headman of Welverdiend. It transpired, during the investigation, that the complainants at Welverdiend wanted their tribal affairs to be administered by an administrator directly and not by the Amahlubi Tribal Authority. On the tendered evidence, this is still the position. The Commission completed its investigation during 1992. It recommended, inter alia, that-

(a) the demand by the complainants for the excision of the farm Welverdiend from the tribal area of the Amahlubi Tribal Authority and subsequent direct administration by the administrator be rejected;

(b) the term of office of the foreman, Piet Lolwane, be terminated;

(c) an election for a foreman and for four advisors be conducted under the supervision of the Administrator, Madikwe;

(d) Kgosi Zibi and his tribal council be instructed to accept the outcome of such an election and to confirm the appointment of the elected foreman and the four advisors for a term of five years;

(e) the foreman and the community of Welverdiend must consult the Kgosi and his tribal council in connection with all projects undertaken or to be undertaken in the area;

(f) the foreman be granted the same jurisdiction as that of a kgosana in terms of the Act to try and determine certain court cases. The foreman would be a member of the tribal court at Khayakulu and must refer cases beyond his jurisdiction to Khayakulu for trial or appeals;

(g) a sub-office be established at Welverdiend and that all prescribed accounting records and administrative records be maintained;

(h) the foreman of Welverdiend remains a member of the Amahlubi Tribal Authority and should represent the community on that body.

3.5 The President, pursuant to the recommendations of the Commission, suggested that Mr Lolwane should step down and that elections of a headman by the people of Welverdiend should be conducted. The headman for Welverdiend was duly elected by the people under the supervision of the late Mr Mooki, who was the then Governor of Madikwe. Mr Gqoloma was elected headman for Welverdiend. Chief Zibi then appointed him as headman. The third and fourth defendants, the second plaintiff and one Mr Mawela were elected as Mr Gqoloma’s councillors. Unfortunately, Mr Gqoloma did not remain in office as headman for a long period because of his untimely death. During May 1992 the third defendant was elected headman to succeed Mr Gqoloma. His term of office was five years. One Mr Dayel became a councillor. The third defendant’s term of office expired on 30 September 1997. During his term of office there was division in the Welverdiend tribal leadership. He, together with the fourth defendant, wanted Welverdiend to be excised from the Amahlubi Tribal Authority. Councillors Molo, Mawela and Dayel were opposed to such excision. It appears that the said division resulted in two factions in Welverdiend. The faction of people who supported the third and fourth defendants and the one which supported the other three councillors. 3.6 On 14 September 1997, and shortly before the expiration of the third defendant’s term of office, Councillors Mawela, Dayel and the second plaintiff and seven other persons signed a letter addressed to the Chief. The contents to the letters reads as follows: “REQUISITION OF TAKING PART IN WELVERDIEND.

3.5 The President, pursuant to the recommendations of the Commission, suggested that Mr Lolwane should step down and that elections of a headman by the people of Welverdiend should be conducted. The headman for Welverdiend was duly elected by the people under the supervision of the late Mr Mooki, who was the then Governor of Madikwe. Mr Gqoloma was elected headman for Welverdiend. Chief Zibi then appointed him as headman. The third and fourth defendants, the second plaintiff and one Mr Mawela were elected as Mr Gqoloma’s councillors. Unfortunately, Mr Gqoloma did not remain in office as headman for a long period because of his untimely death. During May 1992 the third defendant was elected headman to succeed Mr Gqoloma. His term of office was five years. One Mr Dayel became a councillor. The third defendant’s term of office expired on 30 September 1997. During his term of office there was division in the Welverdiend tribal leadership. He, together with the fourth defendant, wanted Welverdiend to be excised from the Amahlubi Tribal Authority. Councillors Molo, Mawela and Dayel were opposed to such excision. It appears that the said division resulted in two factions in Welverdiend. The faction of people who supported the third and fourth defendants and the one which supported the other three councillors.

3.6 On 14 September 1997, and shortly before the expiration of the third defendant’s term of office, Councillors Mawela, Dayel and the second plaintiff and seven other persons signed a letter addressed to the Chief. The contents to the letters reads as follows:

“REQUISITION OF TAKING PART IN WELVERDIEND.

We as the Amahlubi of Welverdiend request you, our honourable Chief to take your position in Welverdiend as this was resolved on the 5th June 1997 that Welverdiend is upon your powers. On the same date The Director, Mr Seboka said that Mr Maneli is the present headman but if he does not want to be the member of Amahlubi or under the control of Chief Zibi he better resign.

On the 9th June 1997 the Director stated that they will come to the residents and the residents must elect the headman. So we as the Amahlubi we deny that idea. The Amahlubi want the election be made by you Chief on your own.

Finally you are honourably requested by the Amahlubi that on the 4 October 1997 come and elect the headman on your own. ...”. The second plaintiff testified under cross examination that he represented nobody when he appended his signature to the letter. It emerged during cross examination that all the people who signed the letter represented a group which supported the Chief’s administration at Welverdiend. 3.7 In reaction to the aforementioned letter, the Chief appointed the second plaintiff as headman of Welverdiend on 18 October 1997 in accordance with the custom and traditions of the Amahlubi tribe. The Chief testified that when he appointed the second plaintiff he did not first obtain the confirmation of the first defendant (The Premier), and was not aware of any legislation which set out the procedure to be followed in the appointment of a headman. It is manifest, in the letter addressed by Chief Zibi to the Supervisor: Traditional Affairs Madikwe, that the community of Welverdiend elected four councillors. (ii) Facts in dispute

We as the Amahlubi of Welverdiend request you, our honourable Chief to take your position in Welverdiend as this was resolved on the 5th June 1997 that Welverdiend is upon your powers. On the same date The Director, Mr Seboka said that Mr Maneli is the present headman but if he does not want to be the member of Amahlubi or under the control of Chief Zibi he better resign.

On the 9th June 1997 the Director stated that they will come to the residents and the residents must elect the headman. So we as the Amahlubi we deny that idea. The Amahlubi want the election be made by you Chief on your own.

Finally you are honourably requested by the Amahlubi that on the 4 October 1997 come and elect the headman on your own. ...”.

The second plaintiff testified under cross examination that he represented nobody when he appended his signature to the letter. It emerged during cross examination that all the people who signed the letter represented a group which supported the Chief’s administration at Welverdiend.

3.7 In reaction to the aforementioned letter, the Chief appointed the second plaintiff as headman of Welverdiend on 18 October 1997 in accordance with the custom and traditions of the Amahlubi tribe. The Chief testified that when he appointed the second plaintiff he did not first obtain the confirmation of the first defendant (The Premier), and was not aware of any legislation which set out the procedure to be followed in the appointment of a headman. It is manifest, in the letter addressed by Chief Zibi to the Supervisor: Traditional Affairs Madikwe, that the community of Welverdiend elected four councillors.

(ii) Facts in dispute

[4] The plaintiffs’s case was that it is the prerogative of the Chief to appoint a headman in terms of the customs and traditions of the Amahlubi Tribe for each of the trust areas, aforementioned. The Chief testified that elections of a headman in a Western democratic sense was unknown in his customs and traditions. This was confirmed by Mr Lolwane and Mr Mthiwane who is a headman at Rampampaspoort. Evidence was tendered that the community had no say with regard to the appointment of the headman at Welverdiend except after the Viviers Commission. According to the Chief, the majority of the people at Welverdiend supported the appointment of the second plaintiff. The Issue: [5] The issues for determination are whether the Chief has powers to appoint the headman for Welverdiend in accordance with the customs and traditions of the Amahlubi tribe and whether the community of Welverdiend was part and parcel of the Amahlubi Tribe. Submissions on behalf of the plaintiffs [6] Mr de la Harpe submitted that it is the chief’s prerogative to appoint the headman for Welverdiend in terms of the customs and traditions of the Amahlubi. His contention was that the Welverdiend formed part of the Amahlubi Tribal area and therefore, the community formed part of the Amahlubi Tribe. He however correctly conceded that the area in question is populated by communities of diverse ethnic groups. Whilst Mr de la Harpe argued, on one hand that the Chief appointed the second plaintiff as headman/foreman in accordance with the customs and traditions of the Amahlubi, he argued, on the other hand, that the second plaintiff was properly appointed by the Chief as headman/foreman of Welverdiend in terms of the provisions of section 3 (4) of the Act read with Government Notice No 1 of 1990 (“the Notice”). Submissions of behalf of the first and second defendants

[4] The plaintiffs’s case was that it is the prerogative of the Chief to appoint a headman in terms of the customs and traditions of the Amahlubi Tribe for each of the trust areas, aforementioned. The Chief testified that elections of a headman in a Western democratic sense was unknown in his customs and traditions. This was confirmed by Mr Lolwane and Mr Mthiwane who is a headman at Rampampaspoort. Evidence was tendered that the community had no say with regard to the appointment of the headman at Welverdiend except after the Viviers Commission. According to the Chief, the majority of the people at Welverdiend supported the appointment of the second plaintiff.

The Issue:

[5] The issues for determination are whether the Chief has powers to appoint the headman for Welverdiend in accordance with the customs and traditions of the Amahlubi tribe and whether the community of Welverdiend was part and parcel of the Amahlubi Tribe.

Submissions on behalf of the plaintiffs

[6] Mr de la Harpe submitted that it is the chief’s prerogative to appoint the headman for Welverdiend in terms of the customs and traditions of the Amahlubi. His contention was that the Welverdiend formed part of the Amahlubi Tribal area and therefore, the community formed part of the Amahlubi Tribe. He however correctly conceded that the area in question is populated by communities of diverse ethnic groups. Whilst Mr de la Harpe argued, on one hand that the Chief appointed the second plaintiff as headman/foreman in accordance with the customs and traditions of the Amahlubi, he argued, on the other hand, that the second plaintiff was properly appointed by the Chief as headman/foreman of Welverdiend in terms of the provisions of section 3 (4) of the Act read with Government Notice No 1 of 1990 (“the Notice”).

Submissions of behalf of the first and second defendants

[7] Mr Mothibe submitted that the Chief does not have the prerogative to appoint a headman for the Welverdiend community in terms of the customs and traditions of the Amahlubi Tribe. He further submitted that the appointment of the headman by the Chief could only be done in accordance with the provisions of section 36 (3) of the Act. He argued that the appointment of the second plaintiff was invalid as it was not done in accordance with the provisions of the Act. Mr Mothibe submitted further that the provisions of s. 3 (4) of the Act read with s. 2 of the Notice related to the appointment of a foreman as a councillor to the tribal authority and not his appointment to the office of headman/foreman. Recognition of cultural diversity and protection by the law [8] South Africa consists of indigenous societies with heterogenous cultures. There often exist, especially in rural communities, a belief that certain cultures are superior to all other cultures. This results in domination and cultural imperialism. As a result of this, ethnic minorities tend to wage struggles to realise their ideals. This in turn, inevitably, results in conflicts, displacement of people on a large scale, instability, tensions and unconscionable violations of human rights. It is true that apartheid has spawned a legacy of ignorance and misconception about the indigenous African cultures and that has resulted in profound resentment.

[7] Mr Mothibe submitted that the Chief does not have the prerogative to appoint a headman for the Welverdiend community in terms of the customs and traditions of the Amahlubi Tribe. He further submitted that the appointment of the headman by the Chief could only be done in accordance with the provisions of section 36 (3) of the Act. He argued that the appointment of the second plaintiff was invalid as it was not done in accordance with the provisions of the Act. Mr Mothibe submitted further that the provisions of s. 3 (4) of the Act read with s. 2 of the Notice related to the appointment of a foreman as a councillor to the tribal authority and not his appointment to the office of headman/foreman.

Recognition of cultural diversity and protection by the law

[8] South Africa consists of indigenous societies with heterogenous cultures. There often exist, especially in rural communities, a belief that certain cultures are superior to all other cultures. This results in domination and cultural imperialism. As a result of this, ethnic minorities tend to wage struggles to realise their ideals. This in turn, inevitably, results in conflicts, displacement of people on a large scale, instability, tensions and unconscionable violations of human rights. It is true that apartheid has spawned a legacy of ignorance and misconception about the indigenous African cultures and that has resulted in profound resentment.

[9] International law protects people belonging to ethnic, religions or linguistic minorities. Article 27 of the International Covenant on Civil and Political Rights 1966 (“The ICCPR”) stipulates that such people shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Needless to say, the objective was, inter alia, to protect individuals in a cultural diversity. Other international instruments also give expression to the recognition and protection of cultural rights (See, for instance, Article 15 (1)(a); International Covenant on Economic, Social and Cultural Rights of 1996; The International Labour Organization Convention on Indigenous and Tribal Population 109 of 1957). The recognition of cultural equality, minority and individual rights also emerged from the speech of the former President, F W de Klerk, to the South African Parliament on 2 February 1990 when he enumerated the objectives of his government during the negotiation process, as being:- “A new democratic constitution; no domination; equality before an independent judiciary; the protection of minorities as well as of individual rights.”. (See Debates of Parliament 2 February 1990 Col 15, also quoted by Prof G.E. Devenish in his article “Minority rights and cultural pluralism-The protection of language and cultural identity in the 1996 Constitution” 1999 THRHR 201 at 215). [10] The Constitution of the Republic of South Africa 108 of 1996 (“the Constitution”) caters for both individual and collective self-identities. Section 31 of the Constitution protects both individual and group interest in cultural integrity. It is said that its objective is to enable the members of a community to prescribe its distinct existence against the forces of discrimination or assimilation to which it would otherwise be vulnerable (See I Currie, infra, at 35-16). In many of the rural communities in South Africa power has historically vested in the indigenous chiefs. We now face a problem how to resolve the conflicting demands of modernization or westernization on one hand, and indigenous communalism on the other, which manifest itself under the aegis of culture. The constitution, laudably, gives some guidance how the conflict of these rights should be resolved. The law and application thereof

[9] International law protects people belonging to ethnic, religions or linguistic minorities. Article 27 of the International Covenant on Civil and Political Rights 1966 (“The ICCPR”) stipulates that such people shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Needless to say, the objective was, inter alia, to protect individuals in a cultural diversity. Other international instruments also give expression to the recognition and protection of cultural rights (See, for instance, Article 15 (1)(a); International Covenant on Economic, Social and Cultural Rights of 1996; The International Labour Organization Convention on Indigenous and Tribal Population 109 of 1957). The recognition of cultural equality, minority and individual rights also emerged from the speech of the former President, F W de Klerk, to the South African Parliament on 2 February 1990 when he enumerated the objectives of his government during the negotiation process, as being:-

“A new democratic constitution; no domination; equality before an independent judiciary; the protection of minorities as well as of individual rights.”.

(See Debates of Parliament 2 February 1990 Col 15, also quoted by Prof G.E. Devenish in his article “Minority rights and cultural pluralism-The protection of language and cultural identity in the 1996 Constitution” 1999 THRHR 201 at 215).

[10] The Constitution of the Republic of South Africa 108 of 1996 (“the Constitution”) caters for both individual and collective self-identities. Section 31 of the Constitution protects both individual and group interest in cultural integrity. It is said that its objective is to enable the members of a community to prescribe its distinct existence against the forces of discrimination or assimilation to which it would otherwise be vulnerable (See I Currie, infra, at 35-16). In many of the rural communities in South Africa power has historically vested in the indigenous chiefs. We now face a problem how to resolve the conflicting demands of modernization or westernization on one hand, and indigenous communalism on the other, which manifest itself under the aegis of culture. The constitution, laudably, gives some guidance how the conflict of these rights should be resolved.

The law and application thereof

[11] Chapter 12 of the Constitution deals with the institution of Traditional Leaders. Section 211 thereof provides as follows: “(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.”

[11] Chapter 12 of the Constitution deals with the institution of Traditional Leaders. Section 211 thereof provides as follows:

“(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.”

It is clear from the wording of s. 211 that the application of customary law is subject to the Constitution. It is also clear from the wording of section 211 that the observance of a system of customary law will also be subject to the applicable legislation (in this case the Bophuthatswana Traditional Authorities Act 23 of 1978, as amended including the Notice). Section 211 also enjoins the courts to apply customary law in legal disputes where such customary law is applicable and appropriate and subject to the constitution and any legislation that specifically deals with customary law. The limitation in s. 211 is understandable in the light of the fact that the institution of traditional leadership rests on patriarchal and authoritative foundations rather than on democratic values. (The evidence of the Chief gives credence to this.) In terms of s. 1 (1) of the Law of Evidence Amendment Act 45 of 1988 Customary Law may be applied by any court provided it can be readily ascertained. In the instant case, the customary law in question is not, on the evidence tendered, ascertainable in respect of the Welverdiend community. According to I. Currie, infra, at 36-18, customary law will apply where the parties would have expected it to apply to the matter. He states further that it should be applied to people who, on an objective assessment of their lifestyle and their participation in cultural activities, can be said to adhere to an African culture. [12] It is necessary to deal, first, with the constitutional imperatives before dealing with the legislation which specifically deals with customary law. I have briefly dealt with s. 31 above. Section 9 of the Constitution provides as follows: “(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”.

It is clear from the wording of s. 211 that the application of customary law is subject to the Constitution. It is also clear from the wording of section 211 that the observance of a system of customary law will also be subject to the applicable legislation (in this case the Bophuthatswana Traditional Authorities Act 23 of 1978, as amended including the Notice). Section 211 also enjoins the courts to apply customary law in legal disputes where such customary law is applicable and appropriate and subject to the constitution and any legislation that specifically deals with customary law. The limitation in s. 211 is understandable in the light of the fact that the institution of traditional leadership rests on patriarchal and authoritative foundations rather than on democratic values. (The evidence of the Chief gives credence to this.) In terms of s. 1 (1) of the Law of Evidence Amendment Act 45 of 1988 Customary Law may be applied by any court provided it can be readily ascertained. In the instant case, the customary law in question is not, on the evidence tendered, ascertainable in respect of the Welverdiend community. According to I. Currie, infra, at 36-18, customary law will apply where the parties would have expected it to apply to the matter. He states further that it should be applied to people who, on an objective assessment of their lifestyle and their participation in cultural activities, can be said to adhere to an African culture.

[12] It is necessary to deal, first, with the constitutional imperatives before dealing with the legislation which specifically deals with customary law. I have briefly dealt with s. 31 above. Section 9 of the Constitution provides as follows:

“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”.

Section 10 of the Constitution provides as follows: “Everyone has inherent dignity and the right to have their dignity respected and protected.”. It may be argued, by some traditional leaders who hold a view that the constitution lacks legitimacy, that the placing of individual or minority right above that of customary law or the indigenous dominant group is the eradication of the structures and nature of customary legal system particularly where the institution of chieftainship and indigenous law are still influential. One does not have a quick fix solution to this save to say that the principles of equality and democratic values of the Constitution must be adhered to. Devenish, supra, at 217, describes the problem as “a jurisprudential and political conundrum.”. [13] The framework for equality analysis under the Constitution was laid down in some decisions of the Constitutional Court, for instance, President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) also reported in [1997] ZACC 4; (1997) (6) BCLR 708; Prinsloo v Van der Linde and Another 1997 (3) SA 1012 also reported in [1997] ZACC 5; (1997) (6) BCLR 759; Harkzen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC). The majority of the Court held as follows in the President of the Republic of South Africa and Another case, supra: “At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of a particular group. The achievement of such a society in the context of our deeply ineqalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”.

Section 10 of the Constitution provides as follows:

“Everyone has inherent dignity and the right to have their dignity respected and protected.”.

It may be argued, by some traditional leaders who hold a view that the constitution lacks legitimacy, that the placing of individual or minority right above that of customary law or the indigenous dominant group is the eradication of the structures and nature of customary legal system particularly where the institution of chieftainship and indigenous law are still influential. One does not have a quick fix solution to this save to say that the principles of equality and democratic values of the Constitution must be adhered to. Devenish, supra, at 217, describes the problem as

“a jurisprudential and political conundrum.”.

[13] The framework for equality analysis under the Constitution was laid down in some decisions of the Constitutional Court, for instance, President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC) also reported in [1997] ZACC 4; (1997) (6) BCLR 708; Prinsloo v Van der Linde and Another 1997 (3) SA 1012 also reported in [1997] ZACC 5; (1997) (6) BCLR 759; Harkzen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC). The majority of the Court held as follows in the President of the Republic of South Africa and Another case, supra:

“At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of a particular group. The achievement of such a society in the context of our deeply ineqalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”.

[14] Evidence was tendered on behalf of the plaintiffs that the population of Welverdiend is approximately 300-400. Whilst it is accepted that the decision by majority is the basis of legislation in a democratic state, it is equally true, I consider, that such a majority decision will be subject to constitutional challenge(s) where it disregards the wishes and/or choices of the vulnerable minority group(s), such as the Welverdiend community. It seems to me that it is a matter of common sense that if a chief governs his or her tribe democratically, the elected tribe members should be able to agree with the chief on most matters. Again, if the members are democratically elected they are likely to protect the democratic values and rights of the members of their tribes or communities who elected them. It is common cause that the Welverdiend area was incorporated, through legislation, within the area of jurisdiction of the Amahlubi Tribal area. Needless to say, the legal inclusion subjected the Welverdiend community to the governance of Chief Zibi. The question then arises whether it was or could have been the intention of the legislature, when it redefined the Amahlubi Tribal area, to subject such a community to the customs and traditions of the Amahlubi Tribe and deprive them of their democratic rights. That could hardly have been the intention of the framers of the Act. First of all, the said redefinition and incorporation of Welverdiend within Chief Zibi’s tribal area was through a non-democratic process (during the apartheid era) which was not within the control of individual members of the disadvantaged minority group of Welverdiend and, in this sense, was immutable. Secondly, the Welverdiend community consists of people of diverse ethnic and cultural origins. It would make little or no sense, in a democratic state to deprive such people of their rights to choose their leader and to live according to their own customs and traditions. It is inevitable that any endeavour to govern such minority according to the customs and traditions foreign to them will not only bring tension and instability, but will also be unfair, discriminatory and undemocratic. Any such attempts should be resisted. Thirdly, the system in Feudal law of people declaring themselves the men or people of the King or the lord of whom they hold and bound themselves is not foreign in the customary law. For instance, the Zulu called the custom Ukukhonza. Schapera says the following about the Tswana: “Single persons or families may similarly change their tribal affiliation. Normally a man belongs to the tribe into which he is born. But he may transfer his allegiance to the chief of some other tribe. He may go there as a fugitive from justice or oppression, or he may have been banished by his own chief, or he may have some other good reason for leaving his own people. Once accepted by the chief to whom he has appealed, he becomes a member of the latter tribe and is allotted a place in its territory. Every tribe includes among its members people admitted in this way.”. (See Schapera: A Tswana Handbook of Tswana Law and Custom (1977), 5.) The situation in the instant case is however distinguishable because the people of Welverdiend, according to the evidence tendered, resided in a trust land which was incorporated by Government within the Amahlubi tribal area. They did not, out of choice, declare themselves the people of Chief Zibi nor did they bind themselves to him. Moreover, undisputed evidence was tendered that the people at Welverdiend paid their individual tax directly to the administrator Madikwe and not to the Chief. Fourthly, evidence was tendered on behalf of the plaintiffs that the people of Welverdiend did not have a say in the appointment of the second plaintiff by the Chief.

[14] Evidence was tendered on behalf of the plaintiffs that the population of Welverdiend is approximately 300-400. Whilst it is accepted that the decision by majority is the basis of legislation in a democratic state, it is equally true, I consider, that such a majority decision will be subject to constitutional challenge(s) where it disregards the wishes and/or choices of the vulnerable minority group(s), such as the Welverdiend community. It seems to me that it is a matter of common sense that if a chief governs his or her tribe democratically, the elected tribe members should be able to agree with the chief on most matters. Again, if the members are democratically elected they are likely to protect the democratic values and rights of the members of their tribes or communities who elected them. It is common cause that the Welverdiend area was incorporated, through legislation, within the area of jurisdiction of the Amahlubi Tribal area. Needless to say, the legal inclusion subjected the Welverdiend community to the governance of Chief Zibi. The question then arises whether it was or could have been the intention of the legislature, when it redefined the Amahlubi Tribal area, to subject such a community to the customs and traditions of the Amahlubi Tribe and deprive them of their democratic rights. That could hardly have been the intention of the framers of the Act. First of all, the said redefinition and incorporation of Welverdiend within Chief Zibi’s tribal area was through a non-democratic process (during the apartheid era) which was not within the control of individual members of the disadvantaged minority group of Welverdiend and, in this sense, was immutable. Secondly, the Welverdiend community consists of people of diverse ethnic and cultural origins. It would make little or no sense, in a democratic state to deprive such people of their rights to choose their leader and to live according to their own customs and traditions. It is inevitable that any endeavour to govern such minority according to the customs and traditions foreign to them will not only bring tension and instability, but will also be unfair, discriminatory and undemocratic. Any such attempts should be resisted. Thirdly, the system in Feudal law of people declaring themselves the men or people of the King or the lord of whom they hold and bound themselves is not foreign in the customary law. For instance, the Zulu called the custom Ukukhonza. Schapera says the following about the Tswana:

“Single persons or families may similarly change their tribal affiliation. Normally a man belongs to the tribe into which he is born. But he may transfer his allegiance to the chief of some other tribe. He may go there as a fugitive from justice or oppression, or he may have been banished by his own chief, or he may have some other good reason for leaving his own people.

Once accepted by the chief to whom he has appealed, he becomes a member of the latter tribe and is allotted a place in its territory. Every tribe includes among its members people admitted in this way.”.

(See Schapera: A Tswana Handbook of Tswana Law and Custom (1977), 5.)

The situation in the instant case is however distinguishable because the people of Welverdiend, according to the evidence tendered, resided in a trust land which was incorporated by Government within the Amahlubi tribal area. They did not, out of choice, declare themselves the people of Chief Zibi nor did they bind themselves to him. Moreover, undisputed evidence was tendered that the people at Welverdiend paid their individual tax directly to the administrator Madikwe and not to the Chief. Fourthly, evidence was tendered on behalf of the plaintiffs that the people of Welverdiend did not have a say in the appointment of the second plaintiff by the Chief.

[15] Evidence was also tendered that the system of election of a headman is foreign to the customs and traditions of the Amahlubi Tribe. A matter for surprise is that the Chief accepted the directive by President Mangope that the headman for Welverdiend be elected. Subsequent to the recommendations of the Viviers Commission, the late Mr Gqoloma was elected. Four councillors were also elected. After Gqoloma’s untimely death the third defendant and four councillors were elected by the people of Welverdiend. I need to mention also, on the tendered evidence, that the Chief told the people of Welverdiend at the funeral of Mr Gqoloma that the successor would be elected. He did not tell them that the headman for Welverdiend would be appointed in terms of the customary law of the Amahlubi Tribe. Nevertheless, it would seem to accord with the Constitution, good order and logic that the people of Welverdiend should continue to elect their headman. [16] I now turn to deal with the contention in respect of the legislation which deals specifically with customary law. Mr de la Harpe submitted that the Notice read with s. 3 (4) (b) of the Act empowered the Chief to appoint the second plaintiff. It is necessary, for the sake of completeness, to deal fully with the said provisions. Section 3 of the Act provides for the constitution of the tribal authority. Sub-section 4 thereof provides as follows: “(4) Subject to the provisions of subsection (3) a tribal authority consists of- (a) those members of the tribe who in accordance with the law and customs of the tribe are

recognised as councillors who, with the chief or headman constitutes the tribal government; and

[15] Evidence was also tendered that the system of election of a headman is foreign to the customs and traditions of the Amahlubi Tribe. A matter for surprise is that the Chief accepted the directive by President Mangope that the headman for Welverdiend be elected. Subsequent to the recommendations of the Viviers Commission, the late Mr Gqoloma was elected. Four councillors were also elected. After Gqoloma’s untimely death the third defendant and four councillors were elected by the people of Welverdiend. I need to mention also, on the tendered evidence, that the Chief told the people of Welverdiend at the funeral of Mr Gqoloma that the successor would be elected. He did not tell them that the headman for Welverdiend would be appointed in terms of the customary law of the Amahlubi Tribe. Nevertheless, it would seem to accord with the Constitution, good order and logic that the people of Welverdiend should continue to elect their headman.

[16] I now turn to deal with the contention in respect of the legislation which deals specifically with customary law. Mr de la Harpe submitted that the Notice read with s. 3 (4) (b) of the Act empowered the Chief to appoint the second plaintiff. It is necessary, for the sake of completeness, to deal fully with the said provisions. Section 3 of the Act provides for the constitution of the tribal authority. Sub-section 4 thereof provides as follows:

“(4) Subject to the provisions of subsection (3) a tribal authority consists of-

(a) those members of the tribe who in accordance with the law and customs of the tribe are

recognised as councillors who, with the chief or headman constitutes the tribal government; and

(b) such other members of the tribe as the chief or headman may from time to time, with the approval of the officiating councillors, appoint as councillors; ...”. The relevant portion of the Notice reads as follows: “2. Under section 3 (1) (a) of the Act, the tribal authority of the Amahlubi tribe as referred to in the said Government Notice number 1279 of 1953 consists of the following: (a) the kgosi; (b) the heads of the following dikgotla: Nkosana; Mnxiba; Mlanjana; (c) the following members appointed in terms of section 3(4)(b) of the act; (i) the foreman of the following farms:- Rampampaspoort Goedehoop

Welgeval Welverdiend (ii) Four others members of the tribe.”.

(b) such other members of the tribe as the chief or headman may from time to time, with the approval of the officiating councillors, appoint as councillors; ...”.

The relevant portion of the Notice reads as follows:

“2. Under section 3 (1) (a) of the Act, the tribal authority of the Amahlubi tribe as referred to in the said Government Notice number 1279 of 1953 consists of the following: (a) the kgosi;

(b) the heads of the following dikgotla: Nkosana; Mnxiba; Mlanjana;

(c) the following members appointed in terms of section 3(4)(b) of the act;

(i) the foreman of the following farms:- Rampampaspoort Goedehoop

Welgeval Welverdiend

(ii) Four others members of the tribe.”.

A proper reading of section 3 (4) (b) read with the Notice reveals that the meaning which the plaintiffs seek to attribute to the provisions is erroneous. Mr Mothibe submitted, correctly in my view, that the appointment of a headman by the Chief in terms of s. 3 (4) (b) is for the purpose of councillorship in the Tribal Authority and not the appointment into the office of foreman or headman. Section 3 is silent on how the foreman or headman should be appointed. In any event, the Chief testified that he appointed the second plaintiff in terms of the customs and traditions of the Amahlubi Tribe and that he was not aware of any legislation in terms of which the appointment had to be made. [17] The appointment of the headman is dealt with under section 36 of the Act. A headman may be appointed either by the Chief, in terms of sub-section (3) or by the President in terms of sub-section (5). Sub-section (3) provides as follows: “(3) A chief may, subject to confirmation by the President first having had and obtained- (a) appoint any person designated for that purpose in accordance with the law and customs of the tribe concerned-

(i) as headman or acting headman; or (ii) as sub-headman or acting sub-headman; and (b) discharge any headman or sub-headman.”. Sub-section (5) provides as follows: “(5) The President may- (a) appoint any person designated for that purpose in accordance with the law and customs of the community concerned- (i) as headman or acting headman; (ii) as sub-headman or acting sub-headman; and (b) discharge any headman or sub-headman.”.

A proper reading of section 3 (4) (b) read with the Notice reveals that the meaning which the plaintiffs seek to attribute to the provisions is erroneous. Mr Mothibe submitted, correctly in my view, that the appointment of a headman by the Chief in terms of s. 3 (4) (b) is for the purpose of councillorship in the Tribal Authority and not the appointment into the office of foreman or headman. Section 3 is silent on how the foreman or headman should be appointed. In any event, the Chief testified that he appointed the second plaintiff in terms of the customs and traditions of the Amahlubi Tribe and that he was not aware of any legislation in terms of which the appointment had to be made.

[17] The appointment of the headman is dealt with under section 36 of the Act. A headman may be appointed either by the Chief, in terms of sub-section (3) or by the President in terms of sub-section (5). Sub-section (3) provides as follows:

“(3) A chief may, subject to confirmation by the President first having had and obtained-

(a) appoint any person designated for that purpose in accordance with the law and customs of the tribe concerned-

(i) as headman or acting headman; or

(ii) as sub-headman or acting sub-headman; and

(b) discharge any headman or sub-headman.”.

Sub-section (5) provides as follows:

“(5) The President may-

(a) appoint any person designated for that purpose in accordance with the law and customs of the community concerned-

(i) as headman or acting headman;

(ii) as sub-headman or acting sub-headman; and

It is clear, from the wording s. 36 of the Act, that the appointment of a headman by the Chief, on one hand, may be done in accordance with the law and custom of the “tribe” concerned but subject to him having obtained the confirmation by the Premier. The appointment of a headman by the President, on the other hand, must be of a person designated for such a purpose in accordance with the law and customs of the “community” concerned. I must hasten to mention that the customs or usages of the Amahlubi Tribe are not the usages of the diverse ethnic groups at Welverdiend. It is common cause that the Chief, when he appointed the second plaintiff in terms of the customary law, did not first obtain the confirmation aforementioned. Mr Mothibe submitted therefore, correctly in my view, that the appointment was invalid for lack of compliance with the provision of the applicable legislation. [18] Although the word “tribe” is defined in the Act to include a community(s. 1 of the Act), a different use of the word is found in ss 36, 14 (2) and 14(b) of the Act. Community in section 14 (2) does not denotes a group or groups constituting a tribe in accordance with traditional law and customs. I am fortified in this view by what Iain Currie says on ‘Minority Right: Education, Culture and Language’ (“Constitutional Law of South Africa” Chaskalson et al Juta 35-i) that “At its most general the word ‘community’ can mean simply an aggregation of people (similar to “state” or “society”). More precisely the modern usage of the word denotes an aggregation of people with a particular quality of relationship, held together by something in common.” (At 35-15) (See also the definition of ‘community’ by the social anthropologist Anthony Cohen ‘The Symbolic Construction of Community (1985)at 15 and Robert Thornton & Mamphela Ramphela “The Quest for Community” in E Boonzaaier & J Shar (eds) South African Keywords (1988) at 29). Tribe is defined, inter alia, as :- “(a) a group of person forming a community and claiming descent from a common ancestor.”.

It is clear, from the wording s. 36 of the Act, that the appointment of a headman by the Chief, on one hand, may be done in accordance with the law and custom of the “tribe” concerned but subject to him having obtained the confirmation by the Premier. The appointment of a headman by the President, on the other hand, must be of a person designated for such a purpose in accordance with the law and customs of the “community” concerned. I must hasten to mention that the customs or usages of the Amahlubi Tribe are not the usages of the diverse ethnic groups at Welverdiend. It is common cause that the Chief, when he appointed the second plaintiff in terms of the customary law, did not first obtain the confirmation aforementioned. Mr Mothibe submitted therefore, correctly in my view, that the appointment was invalid for lack of compliance with the provision of the applicable legislation.

[18] Although the word “tribe” is defined in the Act to include a community(s. 1 of the Act), a different use of the word is found in ss 36, 14 (2) and 14(b) of the Act. Community in section 14 (2) does not denotes a group or groups constituting a tribe in accordance with traditional law and customs. I am fortified in this view by what Iain Currie says on ‘Minority Right: Education, Culture and Language’ (“Constitutional Law of South Africa” Chaskalson et al Juta 35-i) that

“At its most general the word ‘community’ can mean simply an aggregation of people (similar to “state” or “society”). More precisely the modern usage of the word denotes an aggregation of people with a particular quality of relationship, held together by something in common.” (At 35-15)

(See also the definition of ‘community’ by the social anthropologist Anthony Cohen ‘The Symbolic Construction of Community (1985)at 15 and Robert Thornton & Mamphela Ramphela “The Quest for Community” in E Boonzaaier & J Shar (eds) South African Keywords (1988) at 29).

Tribe is defined, inter alia, as :-

“(a) a group of person forming a community and

claiming descent from a common ancestor.”.

(See The Shorter Oxford English Dictionary Vol 11 at 2359). Surely, not all the people of Welverdiend, on the tendered evidence, are descendants of the common ancestor with Chief Zibi. Community area is, in terms of section 14 A(b) of the Act, land the ownership of which vests in the State and which is lawfully occupied by the members of the community or communities in question. On a proper reading of the provisions of the Act, it does not appear to me that the legislature specifically intended to empower the Chief to appoint a headman for the community of Welverdiend in terms of the customs and usages of his tribe. It does not also appear to me, on a proper reading of the provision of the Act, that the legislature intended to exclude any possibility of elections taking place by the members of the community at Welverdiend. I am fortified in my view by the provisions of s 14 B(with regard to the election of councillors of Community Authorities), read with s. 14 C of the Act.

(See The Shorter Oxford English Dictionary Vol 11 at 2359).

Surely, not all the people of Welverdiend, on the tendered evidence, are descendants of the common ancestor with Chief Zibi. Community area is, in terms of section 14 A(b) of the Act, land the ownership of which vests in the State and which is lawfully occupied by the members of the community or communities in question. On a proper reading of the provisions of the Act, it does not appear to me that the legislature specifically intended to empower the Chief to appoint a headman for the community of Welverdiend in terms of the customs and usages of his tribe. It does not also appear to me, on a proper reading of the provision of the Act, that the legislature intended to exclude any possibility of elections taking place by the members of the community at Welverdiend. I am fortified in my view by the provisions of s 14 B(with regard to the election of councillors of Community Authorities), read with s. 14 C of the Act.

[19] Mr. de la Harpe further submitted that President Mangope had no prerogative to change the provisions of the Traditional Authorities Act by implementing the recommendations of the Viviers Commission. There is no merits in this submission. It must be borne in mind that customary law, just like the common law, is not unchanging. It develops with the passage of time to meet the changing circumstances and pattern of the society in which it is applied. To put it differently, customary law adapts itself to new circumstances (See

S.G. Mothibe ‘The future of customary law of succession and the history and development of the law of intestate succession in the Republic of Bophuthatswana (1990) p. 2). An example of the development of customary law, because of new circumstances, may be found in Mabena v Letsoalo 1998 (2) SA 1068 (T) at 1074H where the court held that it is not contrary to the “living” customary law to recognise that women heads of households can negotiate and receive lobola, notwithstanding that “official” customary law does not recognise the practice. I also share the views expressed by Allot AN (New Essays in African Law; Butterworths African Law Series Butterworths London (1970)) quoted

by Mothibe, supra, that - “Chiefs have from time immemorial had the power to change the law, either by abolishing or amending an existing usage or establishing a new rule of conduct. Within relatively recent times legislation of this kind has become fairly common, owing to the new conditions

created by the impact of Western civilisation... .”. Even assuming that the Chief had previously appointed the headman of Welverdiend, it would not be unreasonable to assume that the Chief amended the customary practice and usages in respect of the appointment of a headman for Welverdiend: he accepted the Viviers Commissions’ recommendation and the directive of President Mangope; he subsequently aligned himself with the elections of Mr. Gqoloma and his councillors and third defendant and his councillors and he told the people of Welverdiend at the funeral of Mr. Gqoloma that the successor would be elected.

[19] Mr. de la Harpe further submitted that President Mangope had no prerogative to change the provisions of the Traditional Authorities Act by implementing the recommendations of the Viviers Commission. There is no merits in this submission. It must be borne in mind that customary law, just like the common law, is not unchanging. It develops with the passage of time to meet the changing circumstances and pattern of the society in which it is applied. To put it differently, customary law adapts itself to new circumstances (See

S.G. Mothibe ‘The future of customary law of succession and the history and development of the law of intestate succession in the Republic of Bophuthatswana (1990) p. 2). An example of the development of customary law, because of new circumstances, may be found in Mabena v Letsoalo 1998 (2) SA 1068 (T) at 1074H where the court held that it is not contrary to the “living” customary law to recognise that women heads of households can negotiate and receive lobola, notwithstanding that “official” customary law does not recognise the practice. I also share the views expressed by Allot AN (New Essays in African Law; Butterworths African Law Series Butterworths London (1970)) quoted

by Mothibe, supra, that -

“Chiefs have from time immemorial had the power to change the law, either by abolishing or amending an existing usage or establishing a new rule of conduct. Within relatively recent times legislation of this kind has become fairly common, owing to the new conditions

created by the impact of Western civilisation... .”.

Even assuming that the Chief had previously appointed the headman of Welverdiend, it would not be unreasonable to assume that the Chief amended the customary practice and usages in respect of the appointment of a headman for Welverdiend: he accepted the Viviers Commissions’ recommendation and the directive of President Mangope; he subsequently aligned himself with the elections of Mr. Gqoloma and his councillors and third defendant and his councillors and he told the people of Welverdiend at the funeral of Mr. Gqoloma that the successor would be elected.

[20] Before the claims against the third and fourth defendants are considered one other subject call for comment. This subject relates, on the evidence tendered, on whether Welverdiend area should be excised from the Amahlubi Tribal jurisdiction. This issue is clearly outside the scope of my determination. It is therefore not necessary, for the purpose of this judgement, to get into great details about whether Welverdiend should be excised or not. It suffices to say that, in its recommendations, the Viviers Commission rejected the excision of Welverdiend from the Amahlubi Tribal jurisdiction. In the view of this Court the situation which exists at Welverdiend necessitates the exercise, by the Premier, of the powers conferred upon him by the Act to excise Welverdiend from the Amahlubi Tribal jurisdiction: to dissolve and redefine the Amahlubi Tribal Authority and establish a Community Authority for Welverdiend. All these may be done if “good government so requires” for the sake of cultural tolerance, harmonious relationships, materialization of human rights, justice, fairness and stability. [21] In so far as the claims against the third and fourth defendants are concerned, there are serious allegations against them of improper conduct and interference in the administration of Welverdiend. The third and fourth defendants have not opposed the action. I am satisfied, on the merits, that the plaintiffs have discharged the onus with regard to their claims against them. [22] In the result, I will grant the following order : (a) The plaintiffs’ claims against the first and second defendants be and are hereby dismissed with costs; (b) The third and fourth defendants be and are hereby prohibited and interdicted from interfering with the Administration of the Amahlubi Tribal Authority at Welverdiend and from occupying the tribal offices at Welverdiend or any part thereof ;

[20] Before the claims against the third and fourth defendants are considered one other subject call for comment. This subject relates, on the evidence tendered, on whether Welverdiend area should be excised from the Amahlubi Tribal jurisdiction. This issue is clearly outside the scope of my determination. It is therefore not necessary, for the purpose of this judgement, to get into great details about whether Welverdiend should be excised or not. It suffices to say that, in its recommendations, the Viviers Commission rejected the excision of Welverdiend from the Amahlubi Tribal jurisdiction. In the view of this Court the situation which exists at Welverdiend necessitates the exercise, by the Premier, of the powers conferred upon him by the Act to excise Welverdiend from the Amahlubi Tribal jurisdiction: to dissolve and redefine the Amahlubi Tribal Authority and establish a Community Authority for Welverdiend. All these may be done if “good government so requires” for the sake of cultural tolerance, harmonious relationships, materialization of human rights, justice, fairness and stability.

[21] In so far as the claims against the third and fourth defendants are concerned, there are serious allegations against them of improper conduct and interference in the administration of Welverdiend. The third and fourth defendants have not opposed the action. I am satisfied, on the merits, that the plaintiffs have discharged the onus with regard to their claims against them.

[22] In the result, I will grant the following order :

(a) The plaintiffs’ claims against the first and second defendants be and are hereby dismissed with costs;

(b) The third and fourth defendants be and are hereby prohibited and interdicted from interfering with the Administration of the Amahlubi Tribal Authority at Welverdiend and from occupying the tribal offices at Welverdiend or any part thereof ;

(c) The third defendant be and is hereby interdicted from holding himself out as headman, alternatively foreman for Welverdiend ; and (d) The third and fourth defendants are ordered to pay the costs of the action, jointly and severally, on an unopposed scale, the one paying the other to be absolved. B E NKABINDE JUDGE OF THE HIGH COURT Date of hearing: 18-20 June 2001 Date of judgment : 28 June 2001 Attorneys for plaintiffs: Smit, Stanton & Mothlabane Attorneys for the 1st and 2nd Defendants: State Attorney

(c) The third defendant be and is hereby interdicted from holding himself out as headman, alternatively foreman for Welverdiend ; and

(d) The third and fourth defendants are ordered to pay the costs of the action, jointly and severally, on an unopposed scale, the one paying the other to be absolved.

B E NKABINDE

JUDGE OF THE HIGH COURT

Date of hearing: 18-20 June 2001

Date of judgment : 28 June 2001

Attorneys for plaintiffs: Smit, Stanton & Mothlabane

Attorneys for the 1st and 2nd Defendants: State Attorney