Member of the Royal House of Ba-ga-Nawa Tribe v Nawa and Another (91/02) [2002] ZANWHC 7 (28 March 2002)

CA NO.: 91/02

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

IN THE MATTER BETWEEN

MEMBER OF THE ROYAL HOUSE

OF BA-GA-NAWA TRIBE APPLICANT

AND

MOLATLHEGI SIMON NAWA FIRST RESPONDENT

MEC FOR TRADITIONAL CORPORATE

AFFAIRS NORTH WEST SECOND RESPONDENT

DATE OF HEARING: 8 MARCH 2002

DATE OF REASONS FOR JUDGMENT : 28 MARCH 2002

FOR THE APPLICANTS: MR KEKANA

FOR THE RESPONDENTS : MR HENDRICKS

REASONS FOR JUDGMENT

NKABINDE J:

Introduction

[1] This was an urgent application set down for hearing at noon on Friday, 8 March 2002. Argument was addressed to the Court and thereafter the Court dismissed the application with costs and reserved reasons. These are the reasons.

[2] The applicant sought an order in the following terms: “1. Dispensing with the forms provided for by the Rules of this Honourable Court and treating this matter as one of urgency; Interdicting the First Respondent and his followers from inaugurating the First Respondent as Chief of the Ba-Ga-Nawa Tribal Authority or Amandebele-a-Mfatlha; Interdicting the First Respondent and his followers from utilizing the monies or finance of the tribal authority for purposes of inaugurating the First Respondent or for any purpose at all pending the finalization of the action instituted against the First Respondent; Interdicting the First Respondent from acting as the Chief of the Ba-Ga-Nawa Tribal Authority; Interdicting the First Respondent from using the tribal offices of Ba-Ga-Nawa Tribal Authority pending the finalization of an action instituted; Interdicting the First Respondent from the offices of the tribal authority pending finalization of an action; Costs of suit against the Second and any subsequent Respondents in the event of opposition of this application.” [3] The application is brought against one Molalthegi Simon Nawa (“first respondent”) and the Member of the Executive Council for Traditional and Corporate Affairs North West (“second respondent”) by five persons who described themselves as “Members of the Royal House of Ba-Ga-Nawa Tribe”(“Applicant”). For convenience and ease of reference I shall refer to the said members collectively as “the applicants”. [4] The application was opposed by the first respondent through the office of the State Attorney in Mmabatho. The second respondent, also through the office of the State Attorney, filed a notice to abide by the decision of the Court. In the Answering Affidavit the first respondent raised preliminary points which will be dealt with hereunder. The Applicant did not file a Replying Affidavit. Before dealing with the points raised I shall briefly set the background to the application, in sequence of events, as it appears from the Affidavits filed by the parties. Factual Background.

[2] The applicant sought an order in the following terms:

“1. Dispensing with the forms provided for by the Rules of this Honourable Court and treating this matter as one of urgency;

Interdicting the First Respondent and his followers from inaugurating the First Respondent as Chief of the Ba-Ga-Nawa Tribal Authority or Amandebele-a-Mfatlha; Interdicting the First Respondent and his followers from utilizing the monies or finance of the tribal authority for purposes of inaugurating the First Respondent or for any purpose at all pending the finalization of the action instituted against the First Respondent; Interdicting the First Respondent from acting as the Chief of the Ba-Ga-Nawa Tribal Authority; Interdicting the First Respondent from using the tribal offices of Ba-Ga-Nawa Tribal Authority pending the finalization of an action instituted; Interdicting the First Respondent from the offices of the tribal authority pending finalization of an action; Costs of suit against the Second and any subsequent Respondents in the event of opposition of this application.”

[3] The application is brought against one Molalthegi Simon Nawa (“first respondent”) and the Member of the Executive Council for Traditional and Corporate Affairs North West (“second respondent”) by five persons who described themselves as “Members of the Royal House of Ba-Ga-Nawa Tribe”(“Applicant”). For convenience and ease of reference I shall refer to the said members collectively as “the applicants”.

[4] The application was opposed by the first respondent through the office of the State Attorney in Mmabatho. The second respondent, also through the office of the State Attorney, filed a notice to abide by the decision of the Court. In the Answering Affidavit the first respondent raised preliminary points which will be dealt with hereunder. The Applicant did not file a Replying Affidavit. Before dealing with the points raised I shall briefly set the background to the application, in sequence of events, as it appears from the Affidavits filed by the parties.

Factual Background.

[5] The applicants are represented by one James Nawa, also a member of the said Royal House, who deposed to the Answering and confirmatory affidavits. The application was launched to stop the inauguration of the first respondent as chief of the Ba-Ga-Nawa Tribe. The inauguration was to take place on Saturday, 9 March 2002. It is common cause that the dispute relating to the Chieftainship of the Ba-Ga-Nawa Tribe (“the Tribe”) has been going on for a considerable period of time. Two Commissions of Enquiry (Viviers Commission of Enquiry of 1979 and Moseki, Mmileng Commission of Enquiry of 1992) were appointed to enquire into the matter and give reports thereanent. According to the applicants there were rumours circulating strongly within the tribe about a plan to inaugurate the first respondent as Chief of the tribe on one of the suggested dates. [6] In a letter dated 11 September 2001 attached to the founding papers, annexure “BGNT3", the second respondent informed the applicants’ attorneys about its role in the appointment of the Chief and the procedure to be followed with regard to the coronation of the Chief. The letter reads as follows: “ The above matter and your correspondence of the of the 11th July and 3rd September 2001 bear reference. Kindly be informed that arrangements for the coronation ceremony is a matter for the Royal Family, Government is only invited to the ceremony as a matter of courtesy. The Government’s role ends with the issuing of a recognition certificate as a Chief, after the royal family had appointed a person and informed it of its decision.

We are however not aware of any coronation ceremony that is to take place on the 29th September 2001. As such we cannot give you any undertaking on a matter that falls outside government’s purview. Furthermore we are not aware of any negotiations on this matter as according to us government has done its bit by investigating as is always its attitude to do same once the royal family has appointed a person to ascend the throne, and communicated their decision to government.”.

...”.

[5] The applicants are represented by one James Nawa, also a member of the said Royal House, who deposed to the Answering and confirmatory affidavits. The application was launched to stop the inauguration of the first respondent as chief of the Ba-Ga-Nawa Tribe. The inauguration was to take place on Saturday, 9 March 2002. It is common cause that the dispute relating to the Chieftainship of the Ba-Ga-Nawa Tribe (“the Tribe”) has been going on for a considerable period of time. Two Commissions of Enquiry (Viviers Commission of Enquiry of 1979 and Moseki, Mmileng Commission of Enquiry of 1992) were appointed to enquire into the matter and give reports thereanent. According to the applicants there were rumours circulating strongly within the tribe about a plan to inaugurate the first respondent as Chief of the tribe on one of the suggested dates.

[6] In a letter dated 11 September 2001 attached to the founding papers, annexure “BGNT3", the second respondent informed the applicants’ attorneys about its role in the appointment of the Chief and the procedure to be followed with regard to the coronation of the Chief. The letter reads as follows:

“ The above matter and your correspondence of the of the 11th July and 3rd September 2001 bear reference. Kindly be informed that arrangements for the coronation ceremony is a matter for the Royal Family, Government is only invited to the ceremony as a matter of courtesy. The Government’s role ends with the issuing of a recognition certificate as a Chief, after the royal family had appointed a person and informed it of its decision.

We are however not aware of any coronation ceremony that is to take place on the 29th September 2001. As such we cannot give you any undertaking on a matter that falls outside government’s purview. Furthermore we are not aware of any negotiations on this matter as according to us government has done its bit by investigating as is always its attitude to do same once the royal family has appointed a person to ascend the throne, and communicated their decision to government.”.

...”.

[7] Upon receipt of the abovementioned letter, the applicants’ attorneys addressed a letter dated 23/11/2001, annexure “BGNT 4", to the first respondent requesting him, inter alia, to desist from portraying himself as the Chief of the tribe, to vacate the tribal offices and to stop conducting all tribal affairs in his assumed capacity of the Chief with immediate effect pending the decision of the court on the declaratory order sought. It was communicated to the first respondent further that if he failed to respond within three days of receipt of that letter the applicants would approach this Court on an urgent basis for a suitable and proper remedy at his costs. I may pause to mention that the first respondent did not respondent to the letter. [8] On 29th November 2001 the second respondent signed a recognition certificate, annexure “MSN1", in terms of s. 36 of the Traditional Authorities Act 23 of 1978. The certificate reads as follows: “LEKWALO LA INAKEMO LETTER OF DEIGNATION Go-tlhomamisiwa fano gore go ya ka dithata tse ke di abetsweng ka karolo 36 ya Molao wa Dipuso, 1978 (Molao 23 wa 1978), ke kgatlhegile go amogela mme ke supa fano motho yo o umakiwang fa tlase jauka *kgosi/... ya morafe go tloga ka letlha le le supilweng fa tlase.

This is to certify that, by virtue of the powers vested in me in terms of section 36 of the Traditional Authorities Act, 1978 (Act 23 of 1978), I have been pleased to recognised and hereby designate the person referred to below as the *kgosi/... of the tribe and with effect from the date as depicted below.”.

[7] Upon receipt of the abovementioned letter, the applicants’ attorneys addressed a letter dated 23/11/2001, annexure “BGNT 4", to the first respondent requesting him, inter alia, to desist from portraying himself as the Chief of the tribe, to vacate the tribal offices and to stop conducting all tribal affairs in his assumed capacity of the Chief with immediate effect pending the decision of the court on the declaratory order sought. It was communicated to the first respondent further that if he failed to respond within three days of receipt of that letter the applicants would approach this Court on an urgent basis for a suitable and proper remedy at his costs. I may pause to mention that the first respondent did not respondent to the letter.

[8] On 29th November 2001 the second respondent signed a recognition certificate, annexure “MSN1", in terms of s. 36 of the Traditional Authorities Act 23 of 1978. The certificate reads as follows:

“LEKWALO LA INAKEMO

LETTER OF DEIGNATION

Go-tlhomamisiwa fano gore go ya ka dithata tse ke di abetsweng ka karolo 36 ya Molao wa Dipuso, 1978 (Molao 23 wa 1978), ke kgatlhegile go amogela mme ke supa fano motho yo o umakiwang fa tlase jauka *kgosi/... ya morafe go tloga ka letlha le le supilweng fa tlase.

This is to certify that, by virtue of the powers vested in me in terms of section 36 of the Traditional Authorities Act, 1978 (Act 23 of 1978), I have been pleased to recognised and hereby designate the person referred to below as the *kgosi/... of the tribe and with effect from the date as depicted below.”.

[9] On 19 February 2002 the tribal authority distributed invitations for the meeting concerning the inauguration of the Chief. The meeting was scheduled to take place on 23rd February 2002. On 21 February 2002 an announcement through the Radio that the first respondent would be inaugurated on 9 March 2002 was made. On that same date (21 February 2002) the applicants instituted an action under case no. 79/002 for certain declaratory orders relating to the Chieftainship of the tribe. [10] On 25 February 2002 the applicants’ attorneys addressed a letter, annexure “BGNT 6", to the second respondent for the attention of the official of the second respondent, one Mr Mookeletsi, who is stationed at Temba. The contents of the letter read as follows: “ We have been instructed to issue summons challenging the Chieftainship of Bophuthing Ba-Ga-Nawa herein.

Summons under case no. 79/2002 issued at Mmabatho High Court are hereto attached for easy reference and same have been served on the MEC Traditional and Corporate Affairs in Mmabatho.

It is alleged that you summoned Mr Molalthegi Simon Nawa to your office at Temba and informed him of his appointment as Chief of Ba-Ga-Nawa Tribe, Lebotloane. Further allegations are that you agreed on an installation and coronation date being 9 March 2002 with Mr Simon Molatlhegi Nawa and his delegation.

Rumours has it that your office has promised to assist financially with the sum of R12 000.00 (twelve thousand rand) for the said ceremony and that you also hand authority to use part of Bophuthing Ba-Ga-Nawa Tribal Authority Funds in the region of ±R30 000.00 (thirty thousand rand) for the installation. ...

We request that your office undertake not to proceed with the arrangement for the coronation and installation ceremony scheduled for the 9 March 2002 as alleged.

We will appreciate your response by not later than 27th February 2002, as we have instructions to approach the Court if we do not hear from you then. ...”.

[9] On 19 February 2002 the tribal authority distributed invitations for the meeting concerning the inauguration of the Chief. The meeting was scheduled to take place on 23rd February 2002. On 21 February 2002 an announcement through the Radio that the first respondent would be inaugurated on 9 March 2002 was made. On that same date (21 February 2002) the applicants instituted an action under case no. 79/002 for certain declaratory orders relating to the Chieftainship of the tribe.

[10] On 25 February 2002 the applicants’ attorneys addressed a letter, annexure “BGNT 6", to the second respondent for the attention of the official of the second respondent, one Mr Mookeletsi, who is stationed at Temba. The contents of the letter read as follows:

“ We have been instructed to issue summons challenging the Chieftainship of Bophuthing Ba-Ga-Nawa herein.

Summons under case no. 79/2002 issued at Mmabatho High Court are hereto attached for easy reference and same have been served on the MEC Traditional and Corporate Affairs in Mmabatho.

It is alleged that you summoned Mr Molalthegi Simon Nawa to your office at Temba and informed him of his appointment as Chief of Ba-Ga-Nawa Tribe, Lebotloane. Further allegations are that you agreed on an installation and coronation date being 9 March 2002 with Mr Simon Molatlhegi Nawa and his delegation.

Rumours has it that your office has promised to assist financially with the sum of R12 000.00 (twelve thousand rand) for the said ceremony and that you also hand authority to use part of Bophuthing Ba-Ga-Nawa Tribal Authority Funds in the region of ±R30 000.00 (thirty thousand rand) for the installation. ...

We request that your office undertake not to proceed with the arrangement for the coronation and installation ceremony scheduled for the 9 March 2002 as alleged.

We will appreciate your response by not later than 27th February 2002, as we have instructions to approach the Court if we do not hear from you then. ...”.

I may pause to mention that neither the second respondent nor Mr Mookeletsi responded as requested. On 28 February 2002 invitation letters were distributed for the inauguration ceremony scheduled to take place on 9 March 2002. Preliminary points raised. [11] I now turn to deal with the various points raised by the first respondent. The points raised are the following: (a) lack of urgency. (b) lack of locus standi. (c) final interdict sought in the absence of a clear right. I propose to deal with the last point first. Final or interim interdict [12] Mr Hendricks, on behalf of the respondents, submitted that the court was in effect being asked to grant a final interdict and that James Nawa (who deposed to the founding papers and a confirmatory affidavit) had no clear right to bring the application on behalf of the applicant. Mr Kekana, who appeared on behalf of the applicant, contended that the notice of motion clearly indicates that the relief sought was in a form of an interim relief. He submitted further that if the relief sought was of a final nature it would render the action nugatory. Test to be applied

I may pause to mention that neither the second respondent nor Mr Mookeletsi responded as requested. On 28 February 2002 invitation letters were distributed for the inauguration ceremony scheduled to take place on 9 March 2002.

Preliminary points raised.

[11] I now turn to deal with the various points raised by the first respondent. The points raised are the following:

(a) lack of urgency.

(b) lack of locus standi.

(c) final interdict sought in the absence of a clear right.

I propose to deal with the last point first.

Final or interim interdict

[12] Mr Hendricks, on behalf of the respondents, submitted that the court was in effect being asked to grant a final interdict and that James Nawa (who deposed to the founding papers and a confirmatory affidavit) had no clear right to bring the application on behalf of the applicant. Mr Kekana, who appeared on behalf of the applicant, contended that the notice of motion clearly indicates that the relief sought was in a form of an interim relief. He submitted further that if the relief sought was of a final nature it would render the action nugatory.

Test to be applied

[13] The Court, in deciding whether the interdict is a final or temporary one, looks at the substance rather than the form (see BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (WLD) at 55E). By the reading of the Notice of Motion and supporting affidavit the interdict sought in this case is one only to endure until the finalization of the pending action. Clearly, the substance is that the interdict is being sought which will run for a limited period of time. Accordingly, I found that the relief sought is not in the nature of a final interdict but rather in the nature of an interim interdict. Requirements for an interim interdict [14] To obtain an interim interdict by way of application an applicant must establish the following: (a) that the right that forms the subject matter of the main action and which the applicant seeks to protect is prima facie established, even though open to some doubt; (b) that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted; (c) that the balance of convenience favours the granting of interim relief; and (d) that the applicant has no other satisfactory remedy.

[13] The Court, in deciding whether the interdict is a final or temporary one, looks at the substance rather than the form (see BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (WLD) at 55E). By the reading of the Notice of Motion and supporting affidavit the interdict sought in this case is one only to endure until the finalization of the pending action. Clearly, the substance is that the interdict is being sought which will run for a limited period of time. Accordingly, I found that the relief sought is not in the nature of a final interdict but rather in the nature of an interim interdict.

Requirements for an interim interdict

[14] To obtain an interim interdict by way of application an applicant must establish the following:

(a) that the right that forms the subject matter of the main action and which the applicant seeks to protect is prima facie established, even though open to some doubt;

(b) that there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted;

(c) that the balance of convenience favours the granting of interim

relief; and

(d) that the applicant has no other satisfactory remedy.

[15] Mr Kekana submitted that the applicants had prima facie rights to bring the application although there was a defect in the citation of the parties. He submitted further that the balance of convenience favoured the applicants because if the court refused to grant the order sought the community would suffer psychologically. I cannot accepts Mr Kekana’s contentions. I may remark that counsel’s opinion and/or submission from the Bar in this regard is not supported by facts in the founding papers. It is evident from the founding papers that the applicants were aware, when they launched the application, that a substantial amounts of money in the region of R42 000.00 was budgeted for the celebration. It is reasonably assumed that the applicants, on 8 March 2002, knew or must have known that the money or part thereof had already been expended. They were also aware that invitations had already been distributed for the inauguration. Counsel for the first respondent submitted that the applicant failed, on the papers, to establish the requirements for an interim interdict. It is, in the applicants’ version, clear that the balance of convenience favoured the first respondent and that by the action instituted a more satisfactory remedy would be available to them. It was manifest, on the papers before me, that the requirements for an interim interdict in (b), (c) and (d) above, have not been established. Having so found, it will not be necessary to deal with all the submissions advanced in this regard. Locus standi [16] The second point raised was that the applicants lacked locus standi to bring the application. Counsel for the first respondent submitted that there was no resolution to the effect that James Nawa was authorised to bring the application and to depose to the founding papers on behalf of the Members of the Royal House. Mr Kekana contended that the defect in the citation of the parties was not such as to suggest that James Nawa lacked authority to bring the application on behalf of the applicants. He submitted that the confirmatory affidavits of the applicants made it clear that they had authorized James Nawa to launch the application and to depose to the founding papers on their behalf. General rule with regard to Locus Standi

[15] Mr Kekana submitted that the applicants had prima facie rights to bring the application although there was a defect in the citation of the parties. He submitted further that the balance of convenience favoured the applicants because if the court refused to grant the order sought the community would suffer psychologically. I cannot accepts Mr Kekana’s contentions. I may remark that counsel’s opinion and/or submission from the Bar in this regard is not supported by facts in the founding papers. It is evident from the founding papers that the applicants were aware, when they launched the application, that a substantial amounts of money in the region of R42 000.00 was budgeted for the celebration. It is reasonably assumed that the applicants, on 8 March 2002, knew or must have known that the money or part thereof had already been expended. They were also aware that invitations had already been distributed for the inauguration. Counsel for the first respondent submitted that the applicant failed, on the papers, to establish the requirements for an interim interdict. It is, in the applicants’ version, clear that the balance of convenience favoured the first respondent and that by the action instituted a more satisfactory remedy would be available to them. It was manifest, on the papers before me, that the requirements for an interim interdict in (b), (c) and (d) above, have not been established. Having so found, it will not be necessary to deal with all the submissions advanced in this regard.

Locus standi

[16] The second point raised was that the applicants lacked locus standi to bring the application. Counsel for the first respondent submitted that there was no resolution to the effect that James Nawa was authorised to bring the application and to depose to the founding papers on behalf of the Members of the Royal House. Mr Kekana contended that the defect in the citation of the parties was not such as to suggest that James Nawa lacked authority to bring the application on behalf of the applicants. He submitted that the confirmatory affidavits of the applicants made it clear that they had authorized James Nawa to launch the application and to depose to the founding papers on their behalf.

General rule with regard to Locus Standi

[17] It is trite law that a person who claims relief from Court in respect of any matter must, as a general rule, establish that he/she has a direct interest in the matter in order to acquire the necessary locus standi to seek relief (see Roodepoort Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 101; Cabinet of the Transitional Government of SWA v Eins 1988 (3) SA 369 (AD) at 388-9). Section 19 (1) (a) (iii) of the Supreme Court Act 59 of 1959 confers the power upon this Court- “in its discretion, and at the instance of any interested person, to enquire into and to determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief, consequential upon the determination.”. [18] The applicants are some of the members of the Royal House. According to the contents of annexure “BGNT 3" above it is the prerogative of the members of the Royal House to decide who the appointee to the throne should be before a recognition certificate may be issued. It seems to me therefore that the applicants, by virtue of their membership to the Royal House and the role they play in the determination of the rightful successor to the throne, may be regarded, prima facie, as interested persons as envisaged by the provisions of s. 19 (1) (a) (iii) above. In my view, their interest in the issue of chieftainship could not and should not be regarded as being remote. Accordingly, I found that the applicants had a direct interest in the matter. The members of the Royal House had signed affidavits wherein they mandated James Nawa to act on their behalf. I will not express views on the correctness or otherwise of the citation of the applicant. Urgency

[17] It is trite law that a person who claims relief from Court in respect of any matter must, as a general rule, establish that he/she has a direct interest in the matter in order to acquire the necessary locus standi to seek relief (see Roodepoort Maraisburg Town Council v Eastern Properties (Prop) Ltd 1933 AD 101; Cabinet of the Transitional Government of SWA v Eins 1988 (3) SA 369 (AD) at 388-9). Section 19 (1) (a) (iii) of the Supreme Court Act 59 of 1959 confers the power upon this Court-

“in its discretion, and at the instance of any interested person, to enquire into and to determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief, consequential upon the determination.”.

[18] The applicants are some of the members of the Royal House. According to the contents of annexure “BGNT 3" above it is the prerogative of the members of the Royal House to decide who the appointee to the throne should be before a recognition certificate may be issued. It seems to me therefore that the applicants, by virtue of their membership to the Royal House and the role they play in the determination of the rightful successor to the throne, may be regarded, prima facie, as interested persons as envisaged by the provisions of s. 19 (1) (a) (iii) above. In my view, their interest in the issue of chieftainship could not and should not be regarded as being remote. Accordingly, I found that the applicants had a direct interest in the matter. The members of the Royal House had signed affidavits wherein they mandated James Nawa to act on their behalf. I will not express views on the correctness or otherwise of the citation of the applicant.

Urgency

[19] It was also contended in limine that the application lacked urgency and/or that urgency, if any, was self-created. In an application of this nature it is for the Court to decide whether the matter is really one of urgency and whether the circumstances warrant a departure from the normal procedure. Rule 6 (12) (a) permits the Court, in urgent applications to:- “dispense with the forms and service provided for in these rules and dispose of such matter at such time and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seem meet.”. The applicant, in an affidavit in support of such an application must:- “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.”. [20] The extent to which an applicant should set out his/her grounds have been dealt with in various cases (See for instance Eniram (Pty) Ltd v New Woodholme Hotel (Pty) Ltd 1967 (2) SA 491(ECD) at 493A-B; Sihwe v SA Mutual Fire v General Insurance Co. Ltd 1977 (3) SA 438 (W) at 440H; Luna Meubel Vervaardigers (Edms) Bpk v Makin t/a Makin’s Furniture Manufacturers 1977 (4) SA 135 (W) at 137F; IL & B Marcow Carterers (Pty) Ltd v Greatermans SA Ltd 198(C) at 110H-111A). In the instant case the alleged

urgency is set out in paragraphs 10 and 12 (e), (f) and (g) of the founding papers. Briefly the facts set forth to establish the alleged urgency are that- (a) there were baseless but strong circulating rumours within the tribe about the plan to inaugurate the first respondent and certain date were suggested; (b) the applicants’ attorneys verified the matter and were informed of the said plan;

[19] It was also contended in limine that the application lacked urgency and/or that urgency, if any, was self-created. In an application of this nature it is for the Court to decide whether the matter is really one of urgency and whether the circumstances warrant a departure from the normal procedure. Rule 6 (12) (a) permits the Court, in urgent applications to:-

“dispense with the forms and service provided for in these rules and dispose of such matter at such time and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seem meet.”.

The applicant, in an affidavit in support of such an application must:-

“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.”.

[20] The extent to which an applicant should set out his/her grounds have been dealt with in various cases (See for instance Eniram (Pty) Ltd v New Woodholme Hotel (Pty) Ltd 1967 (2) SA 491(ECD) at 493A-B; Sihwe v SA Mutual Fire v General Insurance Co. Ltd 1977 (3) SA 438 (W) at 440H; Luna Meubel Vervaardigers (Edms) Bpk v Makin t/a Makin’s Furniture Manufacturers 1977 (4) SA 135 (W) at 137F; IL & B Marcow Carterers (Pty) Ltd v Greatermans SA Ltd 198(C) at 110H-111A). In the instant case the alleged

urgency is set out in paragraphs 10 and 12 (e), (f) and (g) of the founding papers. Briefly the facts set forth to establish the alleged urgency are that-

(a) there were baseless but strong circulating rumours within the tribe about the plan to inaugurate the first respondent and certain date were suggested;

(b) the applicants’ attorneys verified the matter and were informed of the said plan;

(c) the attorneys were given the date of 9 March 2002 as the date for the inauguration; (d) the respondents were requested to give and undertaking, not later than 27 February 2002, not to proceed with the inauguration which they failed to do so; (e) the applicants were aware that the plan continued to be in the offing; (f) members of the public were invited in writing and through the media, on 21 February 2002 to attend the inauguration on 9 March 2002. According to the applicants there was more than overwhelming evidence and indisputable facts after the announcement that the ceremony plan was in the offing; (g) that the matter was urgent given the facts that the date was already occassigned or arranged for that purpose.

(c) the attorneys were given the date of 9 March 2002 as the date for the inauguration;

(d) the respondents were requested to give and undertaking, not later than 27 February 2002, not to proceed with the inauguration which they failed to do so;

(e) the applicants were aware that the plan continued to be in the offing;

(f) members of the public were invited in writing and through the media, on 21 February 2002 to attend the inauguration on 9 March 2002. According to the applicants there was more than overwhelming evidence and indisputable facts after the announcement that the ceremony plan was in the offing;

(g) that the matter was urgent given the facts that the date was already occassigned or arranged for that purpose.

[21] Despite the fact that the first respondent was designated as Chief during November 2001 and radio announcements were made of the first respondent’s inauguration on 9 March 2002 the applicants chose to approach this Court at the eleventh hour when the planning and arrangements for the celebrations had supposedly been completed. As regards the relief sought in paragraphs 4,5, and 6 of the Notice of Motion the contents of annexure “BGNT 4" above clearly reveal the absence of urgency. The applicants threatened, during November 2001, to approach this Court on urgency for such relief. It is inconceivable that the applicants, having a direct interest in the matter, were not aware of the recognition certificate which was issued during November 2001. What compounds the applicants’ problems in this regard was that they failed to approach this Court when the respondents failed to respond to their letter not of 23 November 2001 but also of 25 February 2002. Reasons for such failure were not advanced. I must say that paying mere lip service to the requirements of Rule 6 (12)(b) with regard to urgency could not do. Having regard to the circumstances of this matter I found that the delay in bringing the application was so unreasonable that the application could, for this cause alone, be dismissed. I was convinced that the matter became urgent owing to circumstances for which the applicants themselves were to blame. I must also hasten to mention that nowhere in the application did the applicants set forth, explicitly, reasons why they claimed that they could not be afforded ‘substantial redress at a hearing in due course’. Under these circumstances I had not to accede to the applicants’ counsel’s request. I was unpersuaded that the case was urgent, that the applicant could not be afforded substantial redress at the hearing in due course, that they would suffered irreparable harm if the interdict was not granted and that the balance of convenience favoured the granting of the relief sought. B.E NKABINDE JUDGE OF THE HIGH COURT ATTORNEYS FOR THE APPLICANTS : TLHAPI & MOOKELETSI ATTORNEYS FOR THE RESPONDENTS : STATE ATTORNEY

[21] Despite the fact that the first respondent was designated as Chief during November 2001 and radio announcements were made of the first respondent’s inauguration on 9 March 2002 the applicants chose to approach this Court at the eleventh hour when the planning and arrangements for the celebrations had supposedly been completed. As regards the relief sought in paragraphs 4,5, and 6 of the Notice of Motion the contents of annexure “BGNT 4" above clearly reveal the absence of urgency. The applicants threatened, during November 2001, to approach this Court on urgency for such relief. It is inconceivable that the applicants, having a direct interest in the matter, were not aware of the recognition certificate which was issued during November 2001. What compounds the applicants’ problems in this regard was that they failed to approach this Court when the respondents failed to respond to their letter not of 23 November 2001 but also of 25 February 2002. Reasons for such failure were not advanced. I must say that paying mere lip service to the requirements of Rule 6 (12)(b) with regard to urgency could not do. Having regard to the circumstances of this matter I found that the delay in bringing the application was so unreasonable that the application could, for this cause alone, be dismissed. I was convinced that the matter became urgent owing to circumstances for which the applicants themselves were to blame. I must also hasten to mention that nowhere in the application did the applicants set forth, explicitly, reasons why they claimed that they could not be afforded ‘substantial redress at a hearing in due course’. Under these circumstances I had not to accede to the applicants’ counsel’s request. I was unpersuaded that the case was urgent, that the applicant could not be afforded substantial redress at the hearing in due course, that they would suffered irreparable harm if the interdict was not granted and that the balance of convenience favoured the granting of the relief sought.

B.E NKABINDE

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANTS : TLHAPI & MOOKELETSI

ATTORNEYS FOR THE RESPONDENTS : STATE ATTORNEY