Mabalane v Premier of the North West Provincial Government and Others (1575/2009) [2010] ZANWHC 22 (29 April 2010)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: 1575/2009

In the matter between:-

INGRID REFILWE MABALANE ….........................................................Applicant

and

PREMIER OF THE NORTH WEST PROVINCIAL GOVERNMENT ..1st Respondent

BAPHIRING BA MABALANE ROYAL FAMILY …......................2nd Respondent

BAPHIRING BA MABALANE TRIBAL COUNCIL …....................3rd Respondent

MOEFI EDWARD MABALANE …...............................................4th Respondent

LUCAS MANYANE MABALANE …............................................5th Respondent

JUDGMENT

GURA J

Introduction

[1] The applicant lodged an urgent application seeking the following relief:

“1. Dispensing with the forms and service required by the rules and dealing with this matter as one of urgency at such time in such place and in such manner as to it seems meet;

2. That a rule nisi do issue calling upon the respondents to show cause on a date to be fixed by this honourable Court why –

a. the decision of the second respondent dated 19 March 2009 endorsing the fourth respondent as King of the Baphiring Ba Mabalane Traditional Community should not be reviewed and set aside;

b. the decision of the first respondent recognizing the fourth respondent as King and the resulting issue of a certificate of recognition should not be reviewed and set aside;

c. unless and until the dispute over the succession to the throne of the said traditional community, contemporaneously file before the Commission on Traditional Leadership Disputes and Claims, is resolved in favour of the fourth respondent –

i. the first respondent should not be interdicted, restrained and prevented from giving effect to the recognition aforesaid;

ii. the second respondent should not be interdicted, restrained and prevented from treating the fourth respondent as King of the said community.

d. The first respondent should not pay the costs of this application jointly and severally with such other respondents as might oppose it;

e. The applicant should not be granted alternative relief.

3. That the said rule nisi do operate as an interim interdict pending the determination of this application on the return day.

4. For costs of suit against such of the respondents as oppose this application.”

[2] After argument the court issued the following order:

1. The application is struck off with costs due to lack of urgency.

2. Reasons for judgment are reserved.

Here then are the reasons (for judgment).

Factual Background

[3] Applicant contends that she is the rightful Kgosi of the Baphiring Ba Mabalane. Fourth respondent also claims that he, and not applicant, should be the Kgosi of this tribe.

[4] Applicant has referred the dispute about chieftainship to the Commission on Traditional Leadership Disputes and claims established by Section 22 of the Traditional Leadership and Governance Framework Act, 41 of 2003.

[5] On 3 April 2007 the Royal Family resolved that applicant should be recognised as Kgosi to succeed her late father who was also Kgosi of this tribe.

[6] Contrary to the decision of 3 April 2007, on 19 March 2009 Serobe resolved to nominate fourth respondent as Kgosi. In consequence thereof, on 19 June 2009 first respondent (the Premier) issued a certificate (in terms of the North West Traditional

Leadership and Governance Act, 2 of 2005) in terms of which she recognised fourth respondent as Kgosi.

[7] In the meantime on 8 May 2009 fifth respondent brought an application against all the respondents. In that application he submitted that the Premier had improperly withdrawn him as an acting Kgosi of this tribe.

[8] On 23 April 2009 applicant addressed a letter to the Royal family and to the Premier protesting against the resolution to nominate and recognise fourth respondent as Kgosi.

[9] Meanwhile, on 18 June 2009 Landman J heard argument in the application which was lodged by fifth respondent (as applicant). On 29 June 2009 Landman J, handed down judgment in that application.

[10] In her founding affidavit applicant (Ingrid) submitted that:

It is vital that the de facto power should not pass to either of the contenders for the throne until the dispute has been resolved by the Commission;

The de facto exercise of power can over time ripen into a de jure entitlement;

Alternatively, it is most undesirable that either of the contenders for the throne should exercise such power and appropriate the benefits attaching to the position; and

Failure to treat this matter as urgent would cast the community and its leaders into a state of confusion as to the identity of the incumbent of the throne.

Submissions

[11] At the commencement of the hearing, respondents raised some points in limine but the court directed that only one of them, being urgency, be argued first. Mr Lever SC submitted that there was no urgency in this matter and, if there was one, then it was self created by applicant.

[12] In response to this challenge, applicant proceeded as follows:

Applicant (Ingrid) was under the impression that the Premier would not issue a certificate of recognition of fourth respondent until judgment by Landman J had been handed down. When the Premier issued the said certificate, the present application became one of immediate urgency. Applicant filed her application immediately after the Premier issued the certificate. The decision of Serobe to nominate fourth respondent as Kgosi could competently take effect only if it was recognised by the first respondent.

Urgency

[13] Urgency involves the abridgment of times prescribed by the Rules and the departure from established filing and sitting times of court (Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makins’ Furniture Manufacturers) 1977 (4) SA 135 (W) at 136 H.

Rule 6(12)(b) provides:

“. . . the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course”.

See also Mangala v Mangala 1967 (2) SA 415 (E).

Evaluation of Evidence

[14] The applicant holds the view that what precipitated the present application was the recognition of fourth respondent as Kgosi by the Premier, when she issued the certificate on 18 June 2009. If the applicant’s submission is correct, then it would be obvious that applicant brought the application immediately after 18 June 2009, being on 22 June 2009. In my view however, the real question is whether but for the decision of Serobe (on 19 March 2009) nominating fourth respondent as Kgosi, would the Premier have issued the recognition certificate on 18 June 2009. In terms of the relevant legislation, the Premier could only act on a recommendation of the relevant body from the tribe. Consequently therefore, the act which gave rise to applicant’s

grievance is that of 19 March 2009 – the nomination of fourth respondent by Serobe.

[15] The next question is what did applicant do between 19 March 2009 and 22 June 2009. On 23 April 2009, she directed a letter to second respondent indicating her displeasure and opposition to the resolution of 19 March 2009. On 8 May 2009 she filed an affidavit, in support of the fifth respondent’s urgent application before Landman J. In that affidavit she intimated that she intended to launch a review application on the decision of 19 March 2009. Only on 20 June did she sign her founding affidavit in this regard. It is clear that from 19 March 2009 to 20 June 2009 a period of about three months elapsed before this application was brought.

[16] There is no allegation in the papers that the applicant will not be able to be afforded substantial relief in future if she does not approach court on urgent basis. In any event, the reasons which have been advanced (in her founding affidavit) as grounds for urgency are not weighty enough to justify urgency. There was no valid reason why she had to wait for fifth respondent’s application to be finalised before she could launch the present one. In that application fifth respondent wanted to be reinstated as acting Kgosi. This had nothing to do with Ingrid’s case because she wanted to be recognised as a permanent and not an acting Kgosi of this tribe. In my view therefore, applicant has failed to prove urgency in this matter.

_________________

SAMKELO GURA

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 30 JUNE 2009

DATE OF JUDGMENT : 29 APRIL 2010

COUNSEL FOR APPLICANT : ADV. PRASSLEY SC with him ADV.RAMOLEFE

COUNSEL FOR RESPONDENTS : ADV. H. LEVER SC with him DR SENATLE

ATTORNEYS FOR APPLICANT : SM MOOKELETSI ATTORNEYS

ATTORNEYS FOR RESPONDENTS : THE STATE ATTORNEY