Mamadi NO v Premier of Limpopo NO and Another (2888/2015) [2017] ZAGPPHC 855 (22 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 2888/2015

DATE: 22 NOVEMBER 2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

Kgosi Aborekwe Thomas Mamadi N.O

(in his capacity as Chief of the Babirwa Tribe

and on behalf of the Babirwa Tribal Authority) Applicant

and

The Premier of Limpopo N.O First Respondent

Stanley Mathabatha

The Department of Co-Operative Governance, Second Respondent

Human Settlement and Traditional Affairs

JUDGMENT

MOLEFE J

[1] This is an application by the applicant to compel the first respondent to recognise him as the senior traditional leader and

Kgoshi of the Babirwa Ba-Ga Mamadi tribe. The second respondent is cited for notice purposes insofar as it may be required to perform

administrative actions pursuant to any order granted against the first respondent, no relief is sought against the second respondent.

[2] Both the first and second respondents oppose the application.

Background

[3] The applicant's case is that his brother Kgoshi Moraka Lukas Mamadi, the late Kgoshi of Babirwa Ba-Ga Mamadi tribe, ("the Babirwa tribe") who was duly appointed in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 on 24 April 1985, passed away on 18 December 2010[1].

[4] The Babirwa tribe Royal House, comprising of the Royal Family members, identified and nominated the applicant as the heir to the position of Kgoshi of the Babirwa tribe, as he is the only rightful biological brother to the late Kgoshi Moraka Lucus Mamadi. After the nomination by the Royal House, the decision was communicated to the Royal Council, which in turn communicated same to the Babirwa Traditional Council.

[5] The Babirwa Traditional Council was then tasked to assist the Royal Council in the inauguration of the applicant as the new Kgoshi of the Babirwa tribe. A date for the official inauguration of the applicant as Kgoshi was set down for 2 April 2011 and the Premier of Limpopo (first respondent) was invited to the inauguration ceremony and a letter was accordingly addressed and sent to the secretary of the first respondent[2].

[6] No response was received from the office of the first respondent and the applicant instructed his attorney of record to submit a letter to the first respondent, requesting the first respondent to acknowledge the applicant as the new Kgoshi of the Babirwa tribe and to make the necessary arrangements, in co-operation with the Royal Council for the inauguration ceremony. The applicant submits first that the first respondent has failed to execute a statutorily mandated administrative act.

Condonation for the late filing of the applicant's replying affidavit

[7] The respondents ' answering affidavit was served and filed on 6 May 2015 and the applicant filed his replying affidavit on 6 June 2016, over a year after the delivery of the answering affidavit and not within the prescribed time frames in accordance with the Court Rules.

[8] Respondents' counsel[3] contends that no reasonable excuse and/or explanation for the late filing of the affidavit has been furnished and that the applicant's replying affidavit ought to be set aside.

[9] The applicant in his replying affidavit submitted that the reasons for the late filing of the replying affidavit are that since the respondents filed their answering affidavit, numerous attempts were made by the applicant's attorneys to settle the matter between the parties and to prevent further wasted costs. It is alleged that the applicant's attorneys approached a Mr Mothomogalo, the Head of the Department of Co-Operative Governance, Human Settlement and Traditional Affairs for his assistance and he requested time to trace the file of the late Kgoshi. He even promised to schedule a further meeting with the applicant's attorneys but failed to do so and failed to answer any of the telephone calls thereafter.

[10] Further meetings were held with the first respondent's representatives on 19 October 2015 and 26 January 2016 and the matter

could still not be resolved. The applicant consulted with his attorney on 28 January 2016, who in turn started drafting the replying affidavit. Due to the applicant residing in the rural areas of Limpopo, it was difficult for his attorney to phone him and obtain

instructions. The replying affidavit was finalised and submitted to him for signature on 25 May 2016.

[11] Although condonation is usually sought on notice, which is not the case in this matter, the Court may condone any non-compliance with the Rules, if the non-compliance is so severe that the litigation will amount to a nullity[4]. I have considered the facts in this case, as well as the reasons advanced by the applicant and I am satisfied that the applicant has shown good cause for the late filing of his replying affidavit and that the respondents will not suffer any prejudice. The applicant's non-compliance with the Court Rules, in the late filing of the replying affidavit, is therefore condoned.

[12] Respondent's counsel submitted that in the event that the Court condones the late filing of the replying affidavit, paragraphs 10.1 to 10.2 and 21.1 to 21.6 of the replying affidavit, should be struck out as they are irrelevant to the issues to be determined by this Court. During the hearing of the application, the applicant's counsel[5] conceded that the above-mentioned paragraphs should be struck out.

Applicable Legal Framework

[13] Traditional leaders in Limpopo Province are officially recognized by the Premier in terms of section 12(1) of the Limpopo Traditional Leadership and Institutions Act, no 6 of 2005 ("the Act').

[14] Section 12(1) of the Act provides as follows:

"12. Recognition of senior traditional leader, headman or headwoman

(1) Whenever a position of a 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 the customary law of the traditional community concerned-

(i) identify a person who qualifies in terms of customary law of the traditional community concerned to assume the position in question; and

(ii) through the relevant customary structure of the traditional community concerned and after notifying the traditional council, inform the Premier of the particulars of the person so identified to fill the position and of the reasons for the identification of the specific person.

(b) the Premier must, subject to subsection (2) -

(i) by notice in the Gazette recognize the person so identified by the royal family in accordance with paragraph (a) as senior traditional leader, headman or headwoman, as the case may be;

(ii) issue a certificate of recognition to the person so recognized; and

(iii) inform the provincial house of traditional leaders and the relevant local house of traditional leaders of the recognition of a senior traditional leader, headman or headwoman.

(2) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, customs or processes, the Premier -

(a) may refer the matter to the provincial house of traditional leaders for their recommendations; or

(b) may refuse to issue a certificate of recognition; and

(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been

refused".

In terms of the provisions of the Act mentioned above, the power to recognize senior traditional leaders vests in the Premier, acting on the notification and request by the relevant Royal Family.

[15] The respondents raised the following points in limine against this application:

15.1 Relief is bad in law

15.1. Applicant seeks in the notice of motion relief against "respondent'. In paragraph 2 of the applicant's founding affidavit respondent is defined as "the Department of Co-operative Governance, Human Settlements and Traditional Affairs who by legislation is compelled to officially

recognize the appointment as Kgoshi of the Baberwa Ba-Ga Mamadi Tribe after I was appointed by the Royal House as set out hereunder”[6] .

15.1.2 Respondents' counsel contends that it is clear, that the relief is not sought against the Premier but against the Department of Co-operative Governance, Human Settlements and Traditional Affairs (second respondent), who does not possess authority to recognise traditional leaders in terms of the Act. Counsel argues that the relief sought against the second respondent is bad in law for lack of effectiveness and that the application must be dismissed on this ground alone.

15.1.3 Counsel for the applicant submitted that there is an obvious typographical error in the notice of motion and sought an amendment to add "first respondenf' to the notice of motion. Applicant's counsel, did not however, clarify the contents of paragraph 2 of the founding affidavit.

15.1.4 I do not agree that the error was pertaining to typing (typographical) but was a mistake on the part of the applicant. However, it is common cause between the parties that the provisions of section 12(1) of the Act, clearly prescribes that the first respondent is the only party who has the authority to recognize traditional leaders and not the second respondent. This is also evident from the respondents' answering affidavit. Accordingly, this point in limine should fail.

15.2 Non-Joinder

15.2.1 Section 12(1) of the Act confers the power on the Royal Family of a traditional community to identify a successor to the senior traditional leader of the traditional community in question and to communicate its decision in this regard of the person so identified, to the first respondent for his recognition in terms of the Act

15.2.2 It is submitted on behalf of the respondents that the Babirwa Ba-Ga Mamadi Royal Family is an important and necessary party to these proceedings with a direct and substantial interest in the outcome thereof and ought to have been joined as such.

15.2.3 In my view the relief sought by the applicant in prayer 1 of the notice of motion has a direct bearing on the statutory powers conferred on the Royal Family to identify a successor and to communicate same to the first respondent for recognition. The question whether all the necessary parties have been joined depends upon the manner in which and the extent to which the Court's orders may affect the interest of third parties[7].

15.2.4 In Burger v Rand Water Board and Another[8] , the Court remarked as follows:

"[7] The right to demand joinder is limited to specified categories of parties such as joint owners, joint contractors and partners and where the other party (s) has a direct and substantial interest in the issues involved and the order which the court might make".

15.2.5 In casu, the Royal Family has a direct and substantial interest in the issues involved and the relief sought and should have been joined as a party to these proceedings. Applicant cannot represent or act on behalf of a body which is not a party to the proceedings. This point in limine should therefore succeed.

15.3 No cause of action

15.3.1 The authority of the first respondent to recognize a senior traditional leader in terms of the Act is subject to compliance with the following jurisdictional factors:

(a) The relevant Royal Family must have formally identified the person who qualifies to occupy the position of senior traditional leader;

(b) The Premier must have received a formal notification from the relevant Royal Family in which the Premier is requested to recognise

the person so identified;

(c) The aforesaid request by the Royal Family must have been communicated to the Premier through a customary structure of the traditional community concerned.

15.3.2 Respondents' counsel submitted that the Babirwa Ba-Ga Mamadi Royal Family did not submit any request/notification to the first respondent to recognise the applicant as senior traditional leader of the Babirwa Ba-Ga Mamadi traditional community, in accordance with the provisions of the Act.

15.3.3 Applicant's counsel submits that the applicant in this application seeks an order compelling the first respondent to perform a peremptory

administrative action or function and in this regard, relies on Sepadi and Another v Premier of Limpopo Provincial Government and Others[9] , counsel further submitted that the first respondent was duly informed of the applicant's particulars on at least three occasions, namely:

15.3.3.1 the applicant's election was acknowledged by the Traditional Council, an entity within the office of the Premier in annexure "ATM3"[10] .

15.3.3.2 a letter addressed to the office of the Premier by the Royal Council as annexure "ATM5", informing the Premier of the applicant's name, identity number, position to assume and date of inauguration[11] ; and

15.3.3.3 a letter from applicant's attorney Chris Greynenstein, dated 22 January 2013, annexure "ATM 8", explaining the relevant chronology and attaching the relevant documentation and requesting the Premier to acknowledge the applicant's appointment as Kgoshi.

It is further submitted on behalf of the applicant that the above-mentioned documentary evidence (annexures "ATM 3", "ATM 5" and "ATM 8"), demonstrates compliance with section 12(1)(a) of the Act.

15.3.4 Annexure "ATM 3" is a letter dated 4 March 2011, written on the Babirwa Traditional Council letter head and addressed to Mr Chris Greyvenstein (applicant's attorney) from P M Mothemela, "Senior Admin Officer, Babirwa Traditional Council, Office of the Premier''.

The contents of the letter are inter alia:

"On the 3rd March 2011, the royal council requested a special meeting with traditional council to brief them over the royal council resolution to appoint senior mokgoma Aborekwe Thomas Mamadi as the Kgoshi of Babirwa ba Ga-Mamadi as a result of the death of Kgosi Moraka Lucas Mamadi.

Attached please find a copy of both traditional council and royal minutes over the matter".

15.3.5 The provisions of section 12(1) of the Act are not ambiguous. The Royal Family, through the relevant customary structure of the Traditional Council, must inform the Premier of the particulars of the person identified to fill the position of the senior traditional leader. I do not understand the reliance by the applicant on above­ mentioned annexure "ATM3", a letter addressed to the applicant's attorney, as documentary evidence of the applicant's compliance with the Act. In my view there is no merit on this argument.

15.3.6 The applicant also relies on annexure "ATM 5", a document addressed to the Secretary, Office of the Premier, Limpopo from Babirwa Royal Council and which reads as follows:

"Invitation to the inauguration ceremony

You are cordially invited to the official inauguration ceremony of Kgoshi Aborekwe Thomas Mamadi of identity number [...] as a chief of Babirwa ba ga Mamadi Tribe. The ceremony will be held on:

Date: 02 April 2011

Venue: Taaiboschgroet Chief’s Kraal

Time: 10h00 in the morning

Your presence will be highly appreciated".

15.3.7 Applicant's counsel argued that the Act does not prescribe the manner in which the first respondent is to be informed of the particulars of the applicant to fill the position as the chief and it is counsel's submission that annexure "ATM 5", is in fact documentary evidence that the Premier was so informed in terms of the Act.

15.3.8 Annexure "ATM 5" is clearly an undated invitation to the Premier to attend the applicant's inauguration ceremony to be held on 2 April 2011. Section 12 (1) (a) (iii) of the Act provides that " inform the Premier of the particulars of the person so identified to fill the position and of the reasons for the identification of the person", with a clear intention and purpose that the Premier should act in terms of section 12 (2) of the Act. In my view, such intention and purpose cannot be inferred from an invitation to the Premier to attend a ceremony to formally admit applicant as a chief, without the Premier having recognized the applicant as senior tradition leader, issuing a certificate of recognition and informing the Provincial House of Traditional Leaders of such recognition[12] .

15.3.9 Counsel for the applicant submitted, that even if the Court does not construe annexure "ATM 5", as informing the first respondent of the applicant's recognition that through the relevant customary structure of the traditional community, the applicant had indeed been identified to fill the position as chief. This is illustrated in the letter addressed to the first respondent, dated 22 January 2013 and attached to the founding affidavit as annexure "ATM 8" clarifying the position to the first respondent. It is further argued by applicant's counsel that there is no statutory prescript regarding the form or manner in which the first respondent is to be informed and that annexure "ATM 8" contains the necessary details to suffice such notification.

15.3.10 I do not agree with the submission and argument made by applicant's counsel. Annexure "ATM 8" is a letter from applicant's attorney who is not the relevant customary structure of the Baberwa Ba Ga-Mamadi traditional community as contemplated in section 12(1)(a)(ii) of the Act. Furthermore, the Act is clear in the statutory prescript regarding the process, form and manner of informing the Premier.

[16] As afore-mentioned, the main issues to be determined is whether there is a pending notification/request by the Royal Family of Babirwa Ba Ga-Mamadi, to the first respondent, to recognise the applicant as the senior traditional leader in accordance with the provisions of section 12 of the Act, which the first respondent failed to carry out. The only basis upon which the Premier can recognise a senior traditional leader in terms of the Act is upon strict compliance with the prescribed jurisdictional factors which inter alia are that the Premier must have received a formal notification from the Royal Family concerned, in which the Premier is requested to recognise the person so identified and the aforesaid request by the relevant Royal Family must have been communicated to the Premier through a customary structure of the traditional community concerned.

[17] The legislative measures, particularly section 12(1)(a) are designed to ensure that in the make of multiplicity of traditional leadership

claims and disputes, the Premier acts only on the unequivocal request of a legitimate authority. The Court in Leboho and Others v Premier of Limpopo and Others[13] held that:

"The requirements, procedures and processes for identification by the Royal Family and the recognition by the Premier of a "Kgoshi" of the Bahananwa Traditional Community should be regulated by the provisions of Act 41 of 2003 and Act 6 of 2005. Anything done outside the provisions of Act 41 of 2003 and Act 6 of 2005 is ultra vires and beyond the scope of the empowering legislation".

[18] Based on the above-mentioned facts, it is my conclusion that the Babirwa Ba Ga-Mamadi Royal Family did not submit any request or notification to the first respondent to recognise the applicant as the senior traditional leader and Kgoshi of the Babirwa Ba Ga-Mamadi traditional community within the scope of the Act, which the first respondent has ignored.

[19] Accordingly the following order is made:

The applicant's application is hereby dismissed with costs.

D S MOLEFE

JUDGE OF THE HIGH COURT

APPEARANCES

Counsel on behalf of Applicant: Adv. G Egan

Instructed by: Chris Greyvenstein Attorneys

Counsel on behalf of Respondent: Adv. M P Raphahlelo

Instructed by: State Attorney

Date Heard: 13 September 2017

Date of Judgment: 22 November 2017

[1] Record page 16 Annexure “ATM1”

[2] Record page 21 Annexure “ATM5”

[3] Advocate M P Raphahlelo

[4] See Minister of Prisons v Jongilanga 1985 (3) SA 117 (A) at 123.

[5] Advocate G R Egan.

[6]Record page 1.

[7] Van Loggerenberg and Farlam in Erasmus: Superior Court Practice pages B1-94

[8] 2007 (1) SA 30 (SCA) paragraph 7 Van Loggerenberg and Farlam in Erasmus: Superior Court Practice pages B1-94

[9] 1863, 1864/2014 [2015] ZAGPPHC.

[10]Record page 18.

[11] Record page 21.

[12] Section 12(2) of the Limpopo Traditional Leadership and Institutions Act, no 6 of 2005.

[13] 2011 JDR 0100 (GNP) paragraph 26.