Mogale v Maakane and Others (1106/2010) [2010] ZANWHC 18 (29 July 2010)

NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: 1106/2010

In the matter between:

KGOSI BOP EDWARD MOGALE …...........................................APPLICANT

and

THSEPO MAAKANE …......................................................1ST

RESPONDENT

PETER MAIMANE ….........................................................2ND

RESPONDENT

JOSIA LEKOANE …..........................................................3RD

RESPONDENT

DANIEL MODISANYANE …..............................................4TH

RESPONDENT

BILLY MOLOTSANE ….......................................................5TH

RESPONDENT

MOTLALEPULE MATHEBE …..............................................6TH

RESPONDENT

WONDER MOSINA ….......................................................7TH

RESPONDENT

LESLELY KGOBANE ….......................................................8TH

RESPONDENT

MARGARET SIKWANE …..................................................9TH

RESPONDENT

OMPHILE MAAKE ….......................................................10TH

RESPONDENT

AMANDA NTHADI …......................................................11TH

RESPONDENT

BENSON MAAKANE …...................................................12TH

RESPONDENT

J R MOERANE ….............................................................13TH

RESPONDENT

J G MOGALE …..............................................................14TH

RESPONDENT

L MAIMANE …................................................................15TH

RESPONDENT

N MOKOMELE …............................................................16TH

RESPONDENT

O A MOLOTSANE ….......................................................17TH

RESPONDENT

M J MOGALE ….............................................................18TH

RESPONDENT

S MOGALE ….................................................................19TH

RESPONDENT

M M PETLELE …...............................................................20TH

RESPONDENT

J D

MODISAKENG …......................................................21ST

RESPONDENT

M MAKWE ….................................................................22ND

RESPONDENT

M D RALERU …...............................................................23RD

RESPONDENT

MR MAGWETE …............................................................24TH

RESPONDENT

MS KWAPENG …............................................................25TH

RESPONDENT

E R MOGALE …..............................................................26TH

RESPONDENT

THE PREMIER: NORTH WEST PROVINCE ….....................27TH

RESPONDENT

THE

TRADITIONAL AUTHORITY OF THE

BAPO BA

MOGALE TRIBE …..........................................28TH

RESPONDENT

DATE OF HEARING : 24 JUNE 2010

DATE OF JUDGMENT : 29 JULY 2010

FOR THE APPLICANT : ADV CHWARO WITH HIM ADV MASILO

FOR THE 1ST – 26th & 28TH RESPONDENTS: MR EISER

FOR THE 27TH RESPONDENT : ADV N GUTTA WITH HER ADV MPSHE

JUDGMENT

LANDMAN J:

1. Introduction

[1] The return date of a Rule Nisi for an interdict and a counter application for a declaration serve before me. The fundamental issues are: What is the governing body of the Bapo Ba Mogale Tribe (I purposefully use a neutral term) and who are its lawful members?

[2] On 14 May 2010 my brother Gura J granted the following order:

“1. THAT: The usual forms and service provided in the Rules of the above Honourable Court be dispensed with in order to dispose of this matter as one of urgency in terms of Rule 6 (12);

2. THAT: A Rule Nisi do hereby issued, calling upon the respondents to show cause, if any, on THURSDAY, the 10th June 2010 at 10H00 or so soon thereafter as he matter may be heard, why the following orders should not be made final:

2.1 Interdicting the First to Twenty Sixth Respondents from convening and/or attending a meeting of the Bapo Ba Mogopa community under the auspices of the Bapo Ba Mogale Traditional Council on Saturday, the 15th May 2010 and at any date and time thereafter until the final determination of this matter;

2.2 The 1st Respondent be restrained from coming within a radius of 200 metres of the office of Bapo Ba Mogale Traditional Community offices, at Bapo 1 North West Province, without the written approval of Applicant and accompanied by members of the South African Police Force;

2.3. The 1st respondent be and hereby restrained from coming within a radius of 200 metres of the office of Bapo Ba Mogale Traditional Community

offices, at No. 101 Coleman Street Cosmos Property, Hartebeespoortdam, North West Province without the written approval of Applicant and accompanied by members of the South African Police Force;

2.4 The 1st respondent be and hereby ordered to direct any correspondence and forms that he may need to submit to the Chief Executive Officer of Bapo Ba Mogale traditional community situated at Skoonplaas Section, Bapong Village, Bapo 1, in the North West Province between the hours of 8h00 and 16h00 from Monday to Friday;

2.5 The 1st respondent be and is hereby restrained from intimidating, insulting and/or threatening the Applicant in any manner whatsoever;

2.6 Respondent be and is hereby restrained from getting into contact with and/or giving instruction to members of the Bapo Ba Mogale Traditional Community Staff, under the auspices of Bapo Ba Mogale Traditional Council.

3. THAT: Pending the final determination of the application, the relief in paragraphs 2.1 to 2.6 serves as an Interim interdict with immediate effect.

4. THAT: Costs be costs in the application.”

[3] Before turning to the nub of the matter I must:

(a) deal with a number of points in limine which were argued on a previous occasion;

(b) provide reasons for the order I made on the application to intervene;

(c) consider other points in limine regarding the main application; and

(d) points in limine regarding the counter application.

Thereafter I intend dealing with the merits of the main application and counter application to the extent that this is required.

2. Preliminary points re main application raised on 3 June 2010

2.1 Anticipation of the rule

[4] Mr Chwaro, with him Mr Masilo, appeared for Kgosi Bop Edward Mogale, the applicant. Mr Chwaro abandoned the point in limine regarding the anticipation of the return day saying that due to the need to finalise this matter as soon as possible and the fact that there were challenges with service of the court process on the 1st to 26th respondents (the individual respondents) the applicant was willing to condone the steps taken by the individual respondents to anticipate the return date to 3 June 2010.

2.2 Non-joinder

[5] Mr Eiser, who appeared for the individual respondents (and later the Traditional Council, the 28th respondent) submitted that the non-joinder of the Premier of the North West Province should cause me to discharge the rule. Mr Eiser submitted that:

(a) The North West Traditional Leadership and Governance Act 2 of 2005 (the 2005 Act) regulates the administration of the tribe or traditional community as it is now termed. Section 10(1) of the 2005 Act stipulates that the traditional council (which he said is, at present, the Tribal Council known as the Traditional Authority of the Bapo Ba Mogale Tribe) and the Chief or Kgosi shall endeavour to perform their roles and functions in the best interests of the traditional community and be responsible to the Premier for the efficient and effective performance of the functions assigned to them.

(b) Section 9(2) states that the powers conferred in terms of section 9(1) must be performed under the supervision of the Northwest Provincial Government, of which the Premier is the head.

(c) One of the functions which the Traditional Authority must carry out is to administer the finances of the community in terms of section 9(1)(c). This is an ongoing day-to-day obligation, and the effect of the interdict in paragraph 2.6 is to stop the Traditional Authority from carrying out this vital function, as none of the 26 individual respondents are able to give instructions to the staff of the office in this connection. Thus the lawful financial administration of the community has stopped. This is a crucial matter which the Premier must know about if she is to exercise the powers given to her by section 9(3) to ensure proper administration and good governance. The more so as on the return day, the applicant will seek to have the interim interdict and order in this connection made final.

(d) The test to be applied in deciding whether or not a party should have been joined is whether the party concerned has a direct and substantial interest in the subject matter of the action, i.e. a legal interest which may be affected prejudicially by the judgment of the court.

(e) The individual respondents allege that the object of the application is to prevent the Traditional Authority from carrying out its lawful and statutory enshrined rights, obligations and duties, and enable the applicant, who was being manipulated by the persons mentioned in the answering affidavits, to seize control of the community’s vast cash assets, other assets and business relationships.

[6] On the other hand the Mr Chwaro submitted that the law regarding joinder and/or non-joinder is now settled. The court should concern itself with the question of the extent and manner of the order that it is to grant on the party that has not been joined. In other words, the question of joinder should not be based on the subject matter of the application before the court but rather on the extent to which an order, if granted, may have on the interests of that party. See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) and Gordon v Department of Health, KwaZulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA).

[7] Mr Chwaro submitted that, in the present matter, the order that is sought will have no direct bearing on the Premier per se. The applicant seeks to implement the provisions of the 2005 Act against persons who have not been recognized and whose names have not been published in the Provincial Gazette by the Premier as required by law.

[8] Clearly this matter is one in which the Premier has an interest. The good governance and good financial management of the traditional community is primarily entrusted to the institutions created by the 2005 Act. But the exercise of the institutions’ powers is subject to the supervision of the North West Provincial Government and at present there appears to be crippling uncertainty about which institutions are in charge of the tribe’s affairs.

[9] I have considered Mr Eiser’s submission that I should discharge the Rule on account of non-joinder but the applicant and the traditional community have been left in a state of uncertainty about the status and standing of their government. The joinder of the Premier, even at this stage, is not only necessary but convenient and beneficial for the proper resolution of the dispute.

2.3 Non-disclosure of material facts

[10] The application was brought as an urgent application, although, I accept that it was not initially intended to be moved on an ex parte basis. Mr Eiser listed the documents which were available to the applicant but were not attached to his papers namely:

(a) The judgment of this court by Sithole AJ date 24 July 2008;

(b) A letter dated 4 May 2010 addressed to the Premier by the applicant; and

(c) The agreement concluded by the CEO of the council which led to his suspension by the individual respondents.

[11] Good faith is a sine qua non in ex parte applications. If any material facts are not disclosed, whether they are willfully suppressed or negligently omitted, a court may on that ground alone dismiss an ex parte application. See Erasmus Superior Court Practice at B1-41. The court will also not hold itself bound by any order obtained under the consequent misapprehension of the true position.

See Trakman NO v Livshitz and Others 1995 (1) SA 282 (A).

[12] Mr Chwaro commenced his address on this point by submitting that the allegations relating to the alleged concealment of material facts relies on the ruling of my brother Sithole AJ. This ruling followed a counter-application brought by the applicant and others. He submitted that the individual respondents chose to quote and/or refer to some of the passages from the judgment and deliberately leave others out.

[13] Mr Chwaro went on to submit that the other allegations relating to the alleged disciplinary action against the CEO, the matters related to land claims and others are, strictly speaking, not relevant to this matter. The decisions by the individual respondents are a nullity for lack of legality. He contended that it was untrue and absurd to contend that the applicant has concealed material facts in launching this application.

[14] This application is not, as I understand it, an application to reconsider the issue of the rule nisi. It is rather an opposed application. An opposed application cannot be discharged simply on this ground although the manner of obtaining the rule may be relevant to the issue of costs.

[15] In the result I declined to discharge the rule but I ordered the Premier to be joined as a party and I postponed the application and extended the Rule. The order which I made reads as follows:

“1. The point in limine relating to non-disclosure is dismissed.

2. The point in limine relating to non-joinder is upheld.

3. The Premier of the North West Province is joined as the 27th respondent.

4. The applicant is to deliver a copy of this order and the papers to the 27th respondent on or before 8 June 2010.

5. The 27th respondent may file an answering affidavit which must be delivered on or before 15 June 2010.

6. The applicant may file a replying affidavit by 22 June 2010.

7. The Parties must file heads or supplementary heads of argument at the commencement of the hearing.

8. The application is postponed to 24 June 2010.

9. Costs are reserved.”

3. Urgent application by Traditional Authority to intervene

[16] The Traditional Authority (I assumed its existence but reserved costs in case it was not) brought an urgent application for intervention on 17 June 2010.

[17] The application was opposed by the applicant. Mr Masilo, who appeared for the applicant, submitted that the matter was not urgent and secondly that the intervention application raised the following issues:

(a) Whether a case of urgency has been made out by the Traditional Authority to warrant the court granting condonation and hearing the matter as one of urgency?

(b) Whether the Traditional Authority has locus standi to bring this application for intervention?

(c) Whether or not the meeting held on 8th June by the 1st, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 17th, 18th, 19th, 20th, 22nd and 23rd respondents by or under the auspices of Bapo Ba Mogale Traditional Authority, was duly mandated.

(d) Whether or not the 1st, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 17th, 18th, 19th, 20th, 22nd and 23rd respondents are part of the Bapo Ba Mogale Tribal Authority as it then was and as appears from “BEM1A”?

(e) Whether or not the 1st, 3rd, 4th, 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 17th, 18th, 19th, 20th, 22nd and 23rd respondents are part of the Bapo Ba Mogale Traditional Council as it appears “BEM2A’?

(f) If the answer is no to 2.4 and 2.5 above, the question is whether the meeting of 8 June can authorize the deponent to depose to the founding affidavit in the intervention application?

(g) Whether the Traditional Authority has any direct and substantial interest in the matter?

[18] The issues are certainly relevant ones but I did not consider it necessary to evaluate them individually. A consideration of these issues would involve a consideration and decision on the main issues. It would be inappropriate to do this. Moreover, these issues indicate precisely why the Traditional Authority should be allowed to intervene.

[19] I am convinced that the application is an urgent one. One of the reasons which persuaded me is that the circumstances have presented an occasion to redeem, if that be the correct expression, the uncertainty and distress which has been caused by the unexplained

failure of an acting judge of this court to deliver a judgment on related issues which has been reserved for almost two years.

[20] I was satisfied that the Traditional Authority had such an interest and I exercised a discretion to grant the relief.

[21] I therefore made the following order:

“1. The usual forms and service and time periods provided for in the Rules of this Court is dispensed with and this matter is heard as one of urgency in terms of Rule 6(12).

2. The Traditional Authority of the Bapo Ba Mogale Community is given leave to intervene in this application as the 28th respondent.

3. The Traditional Authority of the Community is given leave in terms of paragraph 2 above and it shall deliver its counter application, if any, by noon on 18 June 2010, the applicant in the main application and the 27th respondent in the main application shall deliver their answering affidavits, if any, by noon Tuesday 22 June 2010, and the Authority to reply by 10:00 on Wednesday 23 June 2010.

4. Costs are reserved”

4. Applications heard on 24 June 2010

5. Main application

5.1 Applications to strike out

[22] Mr Eiser brought two applications to strike out material found in the founding affidavit.

5.1.1 First application to strike out

[23] The applicant alleged that:

“At this stage I hasten to mention to this Honorable court that the respondents attendance at the traditional offices, intimidate and harass staff to give them letter heads and official stamps.

The staff as a result of such constant harassment, written to me requesting clarity as they are given contrary instructions by the respondents and are now confused as to whom they should listen to. I respectfully refer this Honorable court to a copy of the letter from staff dated 12th May 2010 annexed hereto marked “BEM4”.

This state of affairs brings about confusion in the staff and the administration of the affairs of the community. It also agitates staff and the community to such an extent that member of staff are ordered to bring confidential documents to meetings outside of the office held under the auspices of the Traditional Council.

Further that the Respondents possess a threat to the stability of the Traditional Community and its staff as they harass staff and use both resources and staff to convene their illegal meetings.”

[24] Mr Eiser seeks to strike out the allegations in:

(a) Para 29 of intimidation and harassment of the Traditional Authority's staff on the grounds that these allegations are clearly vexatious and should be struck out on these grounds alone. In addition these allegations are hearsay, and there is nothing in the founding affidavit that brings them within permissible hearsay evidence in urgent applications. Mr Eiser submits that the whole paragraph should be struck out, as without these offensive words the paragraph makes no sense.

(b) Para 30 the word “harassment”. He submitted that this is vexatious and hearsay and the whole paragraph should be struck out, as without this offensive, word it makes no sense. The only possibly relevant writing which is annexed to the founding affidavit is BEM 4, which says nothing of what is alleged in para 30.

(c) Para 31 the emotive words “confusion” and “agitate”. He submitted that they are not borne out by any evidence contained in the founding affidavit. Just as with the emotive words used in paragraphs 29 and 30, they are part of the vexatious scheme of the applicant’s case. Together with paragraphs 30 and 31, the first part of this paragraph up to and including the words “to such an extent” should also be struck out, as without these emotive words the said first part of this paragraph makes no sense. The second part of paragraph 31 beginning with the words “that members of staff” until the end of that paragraph, is also part of the vexatious scheme of the applicant’s case, is hearsay and should be struck out. Thus paragraph 31 should be struck out.

(d) Para 44.5 the words “threat” coupled with “harass” and now also “illegal”. He submitted that in order to make out the semblance of a case in para 44.5, the applicant has to use the words “threat” coupled with “harass” and now also “illegal”. Whilst the latter may not itself be vexatious, when coupled with the other two emotive words used and the whole scheme of the attempt by the applicant to make out a case where otherwise a case would not exist. This whole sub-paragraph is vexatious and again is based on hearsay which does not fall within permissible hearsay in urgent applications.

5.1.2 Second application to strike out

[25] The applicant alleges that:

“It is my humble submission that the Respondent is interfering harassing, intimidating employees of the Applicant, its operations and its property and this constitutes an encroachment of our employees’ right to be free from all forms of violence from either public or private resources.

The Applicant’s employees who must at all material times be sharp and soberly minded in order to help people realize their right of access to community services without fear and/or suffering from fear that the Respondent may cause them harm if they do not comply with their instructions.

Should the Respondents proceed with their meeting, I have apprehension that such a meeting may become violent especially when the 1st Respondent implement his threats, there is a risk that people may loose their lives and or limbs which cannot be restored by any

monetary award.

This meeting scheduled for the 15th May 2010, I am concerned that the Respondents will incite and agitate members of the community. Further that the 1st Respondent has already threatened that Bapong will burn, and since I did not call the meeting, did not arrive for official government observers, the result being that any resolution may be null and void thus causing both damage and possible violence against staff members who do not want to take instructions from the Respondents.”

[26] Mr Eiser referred me to:

(a) The inflammatory words in paragraphs 46, 47.3, 47.4 and 50.4. Mr Eiser submitted that in order to succeed with the interdicts against the group mentioned in paragraphs 2.1 and 2.6, the applicant has resorted to inflammatory words in paragraphs 46, 47.3, 47.4 and 50.4 for which there is no support anywhere in the founding affidavit or any of its annexures. The word “inflammatory” is used these heads as an aggravated form of vexatious. The words are “interfering”, “harassing”, “intimidating”, “violence”, “fear”, “harm”, “violent”, “people may lose their lives and limbs”, “incite” and “agitate”. It is emphasized that these inflammatory words are directed against the group as a whole. There is not a shred of evidence to support them anywhere in the affidavits.

(b) The closest that the applicant can come to this are the allegations directed against the first respondent but, even if they are true, which they are not, these allegations cannot taint the group as a whole. If the applicant had any fear about what the first respondent could have done, then the interdict should have been directed against him alone.

(c) All of the words, in whatever form they appear, should be struck out of all of the aforesaid paragraphs.

[27] The individual complaints about the words which the applicant has employed is justified. The applications to strike out succeed with costs.

5.2 Application to strike out – Abandoned

[28] I may mention that the applicant also brought an application to strike out certain averments in the answering affidavit but abandoned this application.

5.3 The competency of the applicant

[29] Mr Eiser has sought to have the rule discharged solely on the basis that the applicant is allegedly a man of limited mental capacity. He pointed out that the applicant does not deny that R. E. Mogale is “the Uncle to the Chief”. He has not disputed the allegations that because of his limited mental capacity he would attend to ritual matters only. Nor does he dispute that, as a result of his limited mental capacity, it was necessary for an “Uncle to the Chief” to be appointed to prevent the community being prejudiced. The “Uncle to the Chief” must in terms of community law and custom assist the applicant as stipulated in the judgment of Sithole AJ. Not only has this not occurred in this matter, but the applicant has taken action against the “Uncle to the Chief”, who is one of the group. The applicant has not even pretended to seek the assistance of anyone else in so doing.

[30] On this basis Mr Eiser submitted the applicant did not have a prima facie right at the time of the bringing of this application before the court.

[31] There may be merit in these submissions but the applicant has not been declared unfit to manage his own affairs nor has he been declared unfit to preside as Kgosi of the traditional community. The remarks made by Sithole AJ are not binding on me. I decline to dismiss this application on this ground alone.

6. The counter application

[32] The Traditional Authority, the twenty eighth respondent, brought a counter application seeking the following orders:

“1. That the usual forms and service and time periods provided for in the Rules of this Honourable Court be dispensed with and that this matter is heard as one of urgency in terms of Rule 6(12).

2. By virtue and in terms of General Notice number 9 dated 14 July 1989, read with and issued in terms of the Bophuthatswana Traditional Authorities Act 23 of 1978, the tribal government of Bapo Ba Mogale Tribe for the area defined in government notice number 1659 of 1968 was established.

3. By virtue and in terms of Government Notice No. 207 dated 25 May 1991, issued by the President of Bophuthatswana in terms of Traditional Authorities Act 23 of 1978, the said President redefined the tribal area of Bapo Ba Mogale Tribe as more fully set forth in the said government notice.

4. The Bapo Ba Mogale Community is the same as tribe referred to in paragraphs 2 and 3 above.

5. The Bapo Ba Mogale Community has for some years preferred its tribal government to be known as the Traditional Authority of the Bapo Ba Mogale Community.

6. By virtue of the contents of paragraphs 2 to 5 above, the Twenty Eighth Respondent, namely the Traditional Authority of Bapo Ba Mogale Community, is the tribal government of the Bapo Ba Mogale Community established in terms of the Bophuthatswana Traditional Authorities Act 23 of 1978 in the area re-defined in terms of Government Notice number 207 dated 25 May 1991.

7. The 28th Respondent, namely the Traditional Authority of Bapo Ba Mogale Community was established in terms of Bophuthatswana Traditional

Authorities Act 23 of 1978 as the tribal government of the Bapo Ba Mogale Community immediately before the coming into force of the national Traditional Leadership and Governance Framework Act 41 of 2003 (The Framework Act) and the North West Traditional Leadership and Governance Act No.2 of 2005 (the North West Act).

8. In terms of section 43(1) of the North West Act and section 28 of the Framework Act, the Traditional Authority of the Bapo Ba Mogale Community is a tribal authority established in terms of Act 23 of 1978 and continues until such time that it is substituted by the newly reconstructed traditional councils contemplated in section 6 of the North West Act and section 3 of the Framework Act.

9. The Traditional Authority of the Bapo Ba Mogale has not been reconstituted as a traditional council as contemplated in terms of section 6 of the North West Act and continues in existence as the Traditional Authority until reconstitution takes place.

10. By virtue of what is stated in paragraph 9 above, the Premier’s Notice No.1 signed by the Premier on the 20 May 2008 and published in the Provincial Gazette No. 6514 on 15 July 2008, under the heading “RECONSTITUTION OF TRADITIONAL COUNCILS IN

ACCORDANCE WITH THE NORTH WEST TRADITIONAL LEADERSHIP AND GOVERNANCE ACT NO.2 OF 2005” is null and void and of no force or effect insofar as it relates to and includes in item 30 “Bapo Ba Mogale” and all that is contained in the said item.

11. The Traditional Authority of the Bapo Ba Mogale is the lawful governing body of the Community and, in terms of section 43(4) of the North West Act, the Traditional Authority of the Bapo Ba Mogale Community has all of the powers and is entitled to exercise all of the rights set forth in section 9 of the North West Act, the North West Act generally, the Traditional Leadership and Governance Framework Act No. 41 of 2003, and in terms of any other applicable legislation.”

[33] The applicant and the Premier raised several points in limine as regards the counter application. It is to these that I turn.

7. The applicant’s points in limine

7.1 Lis pendens

[34] It is common cause that the Traditional Authority (the 28th respondent) brought an application under case no. 800 of 2008 in this court for almost the same subject matter, being its status and continuation as a “council” of the Bapo Ba Mogale Traditional Community. The application was set down and heard before an acting judge in July 2008. The judgment in the counter application brought by the applicant was handed down but judgment in the main application is still outstanding.

[35] Mr Chwaro also pointed out that:

(a) The order sought is in respect of the same subject matter and the Traditional Authority does not allege that it has abandoned the previous application. Neither does it take the court into its confidence as to why it now seeks the court to consider the same subject matter in respect of partly the same parties.

(b) Some of the parties in the 2008 application are before this court in the current matter under the auspices of the 28th respondent; some are not before this court. The subject matter is still the same, i.e. the declaration of the Traditional Authority as the duly constituted and legitimate body charged with administrating the affairs of the Bapo Ba Mogale Traditional Community.

(c) Finally he submitted that even if it can be argued that the relief sought in the 2008 application is different from the present relief sought, which is denied, the subject matter for adjudication and the parties remain the same, i.e. the lawfulness, legitimacy and competency of the Traditional Authority to administer the affairs of Bapo Ba Mogale as a traditional council and therefore the point raised should succeed.

(d) It is a well established principle of our law that a party to proceedings brought in respect of the same parties, same cause of action and the same subject matter in either the same court or different court, may take an objection of lis pendens that another action and/or application in respect of the identical subject matter is already pending.

(e) The court is vested with a discretion, which must be exercised judicially, whether to grant the stay of the proceedings, pending the decision of the first action or whether to allow it to proceed.

[36] A plea of lis pendens is not an absolute bar to a court entertaining a matter. In this case I am of the opinion that it is in the interests of all the parties, and will further the interests of justice if I were to hear the matter. I am also greatly influenced by the fact that my colleague, an acting judge, has reserved judgment for a considerable period and that there is no reliable indication when judgment will be delivered.

7.2 Failure to comply with the Promotion of Administrative Justice Act

[37] The Traditional Authority seeks an order that the Premier’s notice is to be regarded as null and void and of no force and effect in so far as it relates to the Bapo Ba Mogale Traditional Community.

[38] Mr Chwaro submits that:

(a) The order sought by the Traditional Authority amounts to a setting aside of an administrative and/or executive decision taken by the Premier as empowered by the provincial statute.

(b) The implementation of legislation in this regard by the executive has been recognised as an administrative action by the Constitutional

Court.

(c) The Traditional Authority has failed to comply with section 7(1)(a) and (b) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and has not presented an application for exemption in terms of section 7(2)(c) of PAJA.

(d) On the basis of its failure to comply with the strict provisions of PAJA the counter application in this regard must be dismissed with costs, including the costs of two counsel.

[39] I am of the view that PAJA is applicable. I am also of the view that the relief cannot be considered in view of the non-joinder of the persons (or some persons) whose names appeared in the Provincial Gazette. They certainly have an interest in the application as the outcome may affect them.

7.3 Premier’s points in limine

[40] The Premier has raised four points in limine: urgency, lis pendens, locus standi and use of the wrong procedure.

[41] The lis pendens point is essentially the same as the point raised by the applicant. It must, however, fail for the same reasons. There is some merit as regards urgency. The point as regards locus standi of the Traditional Authority has also turned out to be decisive although not for the reasons advanced on behalf of the Premier. In my view the Traditional Authority created by the Bophuthatswana Traditional Authorities Act 23 of 1978 (the 1978 Act) has ceased to exist. I will deal with the reasons for this decision fully later in this judgment.

7.4 Conclusion

[42] In the premises the counterclaim is dismissed with costs. The costs are to be paid by the persons who signed the resolution to institute the counter application. The costs are to include the costs of two counsel for the applicant (respondent in the counter application) and the 27th respondent (respondent in the counter application).

8. The merits of the main application

9. The law

[43] The applicant seeks a final interdict. In order to achieve this, the applicant must prove: a clear right, an injury actually committed or reasonably apprehended and that there is no other appropriate remedy.

[44] As far as disputes of fact are concerned, these disputes must be resolved as provided for in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E–F where it was said:

“Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a final interdict, together with ancillary

relief, on the papers and without resort to oral evidence. In such a case the general rule was stated by VAN WYK J (with whom DE

VILLIERS JP and ROSENOW J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E - G, to be:

"... where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order... Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.”

10.1 Locus standi or right of the applicant

[45] Mr Eiser complains in his second heads of argument that I did not consider his argument regarding the prima facie right of the applicant to seek some of the relief which he sought. It is correct that he raised this issue and commenced arguing it but Mr Chwaro objected as the parties had agreed that they would confine themselves to the points in limine, due to the lateness of the hour, and that the merits would be argued if the points in limine failed.

[46] Mr Eiser submitted that:

(a) The applicant is the recognized and duly appointed Kgosi or Chief of the Tribe. He is endowed with several statutory functions. One of them is to administer the affairs of the traditional community. See section 18(1)(a) of the 2005 Act. Another is a general power to promote the interests of the traditional community and to take such reasonable steps which may be necessary to promote the wellbeing and advancement of the community. See section 18(1)(i) of the 2005 Act. His powers are not unlimited and some of his powers must be exercised in conjunction with the other institutions provided for in the Act. Assuming that the facts and the law are found to be as the applicant has stated them to be, then I am of the opinion that he is entitled to seek the assistance of this court to remedy the situation.

(b) The applicant is required to establish an injury actually committed or reasonably apprehended, in other words proof of some act actually done showing interference with his rights or of a well grounded apprehension that acts of the kind will be committed by the first respondent.

(c) The absence of any possible prejudice to the applicant will result in the refusal of the interdict. Unless he shows that he is suffering or will suffer some injury, prejudice or damage or invasion of right peculiar to himself and over and above that sustained by members of the public in general, the applicant has no locus standi in interdict proceedings. See Erasmus (supra) E8-6D.

(d) He submitted that that the applicant cannot show an injury actually committed or reasonably apprehended that will justify the interdicts in paragraphs 2.2 and 2.3. The applicant also cannot show any possible prejudice to himself if these interdicts are not made final.

(e) In this connection it is necessary to draw to the court’s attention the version of the applicant in paragraph 36. If the applicant is to be believed, the first respondent threatened violence and destruction against the whole Community of Bapong. If this was the case, then any person who received such a threat would have laid a charge of public violence or at the very least a threat thereof to a very large number of people. Instead he laid a charge of personal intimidation.

(f) Thus out of the mouth of the applicant himself, there is another fundamental contradiction which, in this case lies at the heart of the relief which he seeks against the first respondent.

10.2 Intimidation para 2.5 of the rule

[47] The applicant seeks confirmation of paragraph 2.5 of the rule that:

“The 1st respondent be and is hereby restrained from intimidating, insulting and/or threatening the Applicant in any manner whatsoever.”

[48] The allegations relating to the alleged intimidation of the applicant relate to events on 28 April 2010 and 13 May 2010. I shall deal first with the events in April before considering the events of 13 May 2010.

10.2.1 April 2010

[49] The applicant says that on 28 April 2010, when he was leaving the office of the traditional community with Mr George Mogale in his vehicle, followed by the CEO and Mr Rakgatlha Mogale (presumably in another vehicle), the first respondent came driving towards them on their side of the road. He parked his vehicle so as to block their passage, alighted and came to the applicant. He was agitated when he spoke to the applicant. He asked questions. He then allegedly said: that there is a problem with the CEO and Bapong is going to burn. The applicant says he asked him who is going to burn Bapong. The applicant then said to him that if Bapong burns it means that it is you who will burn it. The applicant then laid a complaint of intimidation against the first respondent.

[50] The first respondent has responded as follows:

“On the day in question, I was driving in the opposite direction to the applicant’s car. I flashed my vehicle’s lights, so that the driver thereof would stop, as I wished to speak to him. At that time I was not aware that there was anyone else in the car.

The applicant’s vehicle stopped and so did I. I got out of my vehicle and approached the applicant’s vehicle to speak to the driver. As I got closer I saw that the applicant and Mr G Mogale were in the car together with the driver.

On seeing that the applicant was in the vehicle I addressed him. We greeted one another in a friendly manner. I informed the applicant that he should attend Authority meetings as there were matters that needed to be dealt with, and I mentioned the suspension of the Chief Executive Officer. I also told the applicant that the community in general wanted to know what was happening in that connection, and in addition had heard about the R486 million investment. The community was unhappy about this and was looking to the Authority and him to remedy the situation. I told the applicant a meeting must be called. I also said to the applicant that it was the function of himself and of the Authority to manage the situation, and not react to it. I added that, so agitated were members of the community that they were threatening to burn tyres.

The applicant’s response was that if there were burnings it would be my fault. My reply was that the burning would be his fault.”

[51] In view of the conflicting versions I am obliged to apply the rule in the Plascon case. On the first respondent’s version there was no intimidation. Certainly, and Mr Eiser concedes this, there was much disharmony in the community and the first respondent might not have shown the applicant the respect and courtesy which his rank

requires. But I cannot find that the first respondent intimidated the applicant. This paragraph of the rule must be discharged.

10.2.2 May 2010

[52] The applicant alleges that:

“I wish to mention that at this stage that on Thursday 13th May 2010 the 1st Respondent and three other Respondents came at the offices in Cosmos, in the company of the SAPF to serve letters of domestic violence from the Ga-Rankuwa Magistrate court. The said letter hereto marked “BEM8”.

The 1st Respondent then went and waited outside the yard for some time. The SAPF members on realizing this conduct had to wait and observe what their intention was.

Due to the First Respondent’s conduct, George Mogale and I had to lock ourselves inside the office to avoid the 1st Respondent and his accomplices from coming into the offices to harass us. While they continued to shout and create such havoc outside. I attach hereto and marked “BEM9” a confirmatory affidavit of Mr George Mogale.”

[53] The first respondent answered these allegations as follows:

“I went to the Bethanie Magistrates Court on 11 May 2010, for another remand hearing as a result of the charge which had been laid against me by the applicant. I advised the Magistrate what happened at the meeting with the MEC, and he recommend that I should go to the Garunkua Magistrates Court to obtain a peace order against the applicant. I did this on 13 May 2010, and obtained a peace order. As I anticipated that there would be trouble between the applicant and me I attempted to deliver the peace order to him, I went to the police at Hartebees, and police officers accompanied me to the offices being occupied by the applicant and Kenoshi.

On 11 May 2010 the Authority passed a resolution as the result of the meeting with the MEC, that it would continue with the suspension of Kenoshi and that the disciplinary hearing would be held on 17 May 2010. I was given the letter addressed to Kenoshi informing him of this. I intended using the visit to deliver the peace order to the applicant, to deliver the letter to Kenoshi.

The police delivered the peace order to the applicant. I attempted to gain access to the offices to deliver the letter to Kenoshi, but he refused to allow me in. I asked the senior officer, a warrant officer, to deliver the letter to Kenoshi, and he entered the offices with the letter, but Kenoshi refused to accept delivery thereof.

Everything went of peacefully, and the allegations by the applicant to the contrary are simply false. AA 11 is the entry made by the police in their official record book confirming that all was peaceful.”

[54] I do not find annexure “AA11” in my papers. But the applicant has attached a subpoena issued by the Domestic Violence Officer of the Magistrate’s Court at Ga-Rankuwa dated 13 May 2010 requesting him to attend court on 19 May 2010. This lends credence to the first respondent’s account of the events of that day.

[55] The applicant’s account is no better than the first respondent’s account and I say this without applying the Plascon Rule. In the result the applicant has not established any intimidation or threat of intimidation.

11. Traditional Council

[56] I now come to the crux of the matter. It concerns the following paragraphs of the rule:

“2.1 Interdicting the First to Twenty Sixth Respondents from convening and/or attending a meeting of the Bapo Ba Mogopa community under the auspices of the Bapo Ba Mogale Traditional Council on Saturday, the 15th May 2010 and at any date and time thereafter until the final determination of this matter;

2.3 The 1st respondent be and hereby restrained from coming within a radius of 200 metres of the office of Bapo Ba Mogale Traditional Community

offices, at No. 101 Coleman Street, Cosmos Property, Hartebeespoortdam, North West Province without the written approval of Applicant and accompanied by members of the South African Police Force;

2.4 The1st respondent be and hereby ordered to direct any correspondence and forms that he may need to submit to the Chief Executive Officer of Bapo Ba Mogale traditional community situated at Skoonplaas Section, Bapong Village, Bapo 1, in the North West Province between the hours of 8h00 and 16h00 from Monday to Friday; . . . . .

2.5 Respondent be and is hereby restrained from getting into contact with and/or giving instruction to members of the Bapo Ba Mogale Traditional Community Staff, under the auspices of Bapo Ba Mogale Traditional Council.”

[57] These interdicts are sought on the basis of the applicant’s contention that he has validly dissolved the traditional council, that the Traditional Authority has been disestablished, a new traditional council has been constituted and the most of the individual respondents are not members of this council. The alleged conduct of the individual respondents has little bearing on the application for interdicts mentioned in these paragraphs of the Rule. I should add that there seems to be no lawful reason why the individual respondents should be prohibited from coming to the community office in their private capacities. It is because they believe that they are lawful members of the governing body that the applicant seeks to interdict them.

11.1 The legal history and background

[58] For purposes of this decision I need only begin with fact that the Bapo Ba Mogale Tribe was recognized and a tribal authority for the tribe was established in terms of the Bophuthatswana Traditional Authorities Act 23 of 1978 (the 1978 Act).

[59] The 1978 Act remained of full force and effect at the commencement of the new democratic dispensation and the validity of this Act continued in terms of the Constitution of the Republic of South Africa Act of 1996 (the Constitution). See section 241 read with item 2(1) and (2) of Schedule 6.

[60] The Traditional Leadership and Governance Framework Act 41 of 2003 (the NFA) was passed by the National Parliament and came into operation on 24 September 2004 and, of course, applies through out the Republic.

[61] In accordance with its obligation to promote collaboration between the institutions of traditional leadership and traditional authorities and the three spheres of government in line with the dictates of co-operative government (and for other reasons) the Legislature of the North West Province enacted the North West Traditional Leadership and Governance Act 2 of 2005 (the 2005 Act). This Act came into operation on 20 March 2007.

[62] The Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (the NFA Amendment Act) was passed by the National Parliament and came into operation on 25 January 2010.

11.2 Relationship between the NFA and the 2005 Act

[63] The 2005 Act stipulates that it is subject to the Constitution of the Republic of South Africa of 1996 (the Constitution) and the NFA. See section 2(2).

[64] The Constitution provides for the legislative competency of the three spheres of government. The Constitution regulates the legal relationships between Acts passed by the National Parliament and a Provincial Legislature on a subject which falls within the competency of both institutions. See section 146 and Schedule 4 of the Constitution.

[65] In Speaker, National Assembly: Re National Education Policy Bill 1996 (3) SA 289 (CC) at 298I – 298B the court explained how conflicts between competent national and provincial legislatures are to be resolved in terms of the Interim Constitution. It said:

“Section 126 of the Constitution does not restrict this power; what it does is to provide in ss (3) and (4) how a conflict or potential conflict that may exist between an Act of Parliament and provincial legislation is to be resolved.

Section 126(5) of the Constitution requires that, if it is possible to do so, an Act of Parliament and a provincial law should be construed as being consistent with each other. If, or to the extent that, this cannot be done, then the provisions of s 126(3) and (4) determine which of the conflicting provisions is to prevail. The solution provided is as follows. To the extent that the criteria specified in ss (a)–(e) of s 126(3) are met the provisions of an Act of Parliament that is of general application will prevail; if, or to the extent that, such criteria are not met the provisions of the provincial law will prevail.”

[66] And

“Hogg discusses the difference between inconsistency and invalidity in chap 16. He concludes that:

‘Once it has been determined that a federal law is inconsistent with a provincial law, the doctrine of federal paramountcy stipulates that the provincial law must yield to the federal law. The most usual and most accurate way of describing the effect on the provincial law is to say that it is rendered inoperative to the extent of the inconsistency. Notice that the paramountcy doctrine applies only to the extent of the inconsistency. The doctrine will not affect the operation of those parts of the provincial law which are not inconsistent with the federal law, unless of course the inconsistent parts are inseparably linked with the consistent parts. There is also a temporal limitation on the paramountcy doctrine. It will affect the operation of the provincial law only so long as the inconsistent federal law is in force. If the federal law is repealed, the provincial law will automatically “revive” (come back into operation) without any reenactment by the provincial legislature.”

11.3 The NFA (a National Act)

[67] The purpose of the NFA is, inter alia, to transform the institutions of traditional leadership to be in harmony with the Constitution and the Bill of Rights so that, inter alia, –

democratic governance and the values of an open and democratic society may be promoted; and

gender equality within the institution of traditional leadership may progressively be advanced.

[68] Section 2 of the NFA provides for the recognition of traditional communities while section 3 provides for the establishment and recognition of traditional councils.

[69] The NFA does not start with a clean slate. It builds upon a heritage which was in place at the time the NFA became operative. Section 28, which provides for transitional provisions, deems a traditional leader, who was appointed in terms of applicable Provincial Legislation and was still recognized immediately prior to the commencement of the NFA, to have been recognized by the NFA. See section 28(1). The same applies to a regent, an acting traditional leader or deputy traditional leader. See subsection (2). A similar provision applies to any tribe which is deemed by the NFA to be a traditional community in terms of the Act. See subsection (3).

[70] What is of importance for this matter is the deeming provision as regards a “tribal authority” (which I believe includes a Traditional Authority). Section 28(4) of NFA reads:

“[A] tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4: Provided that such a tribal authority must comply with section 3(2) within one year of the commencement of this Act.”

[71] The NFA also provides that any “community authority” continues to exist until it is disestablished in accordance with provincial legislation. This must be done within two years from the commencement of the NFA. See section (5) of the NFA.

[72] The NFA makes provision for the disestablishment of regional and other authorities. The responsible provincial Member must disestablish these bodies within one year from the date of commencement of the NFA. See subsection (6) of the NFA.

11.4 The 2005 Act (a Provincial Act)

[73] The 2005 Act like the NFA, provides in section 3 for the recognition of traditional communities while section 6 provides for the constitution of traditional councils.

[74] Section 6 of the 2005 Act reads:

“(1) A traditional community recognised in terms of section 3 shall have a traditional council constituted in accordance with this Act as read with the Framework Act.

(2)(a) The Premier must determine, in accordance with a prescribed formula, the number of members of a traditional council, taking into consideration the population of the traditional community;

(b) Such may not be more than 30 members depending on the needs of the traditional community concerned;

(c) At least a third of members of a traditional council must be women; and

(d) A Senior Traditional Leader shall be the chairperson of the traditional council concerned.”

(3) The Premier must publish, by notice in the Gazette, the composition of any traditional council referred to in subsection (1) reflecting the names of the members and the area of jurisdiction of such traditional council.”

[75] Section 43 of the 2005 Act provides for transitional arrangements. Subsection (1) provides that:

“All tribal authorities established in terms of the 1978 Act shall continue until such a time that it is substituted by the newly

reconstituted traditional councils contemplated in section 5 of the Act.”

[76] The reference to subsection (5) is clearly meant to refer to section 6, and the reference to Tribal Authority is clearly meant to include to a Traditional Authority.

[77] Section 43(3)(a) enjoins the Premier, within one year of the commencement of the 2005 Act, by notice in the Provincial Gazette, to, disestablish, inter alia, tribal authorities that have been established in terms of applicable legislation before the commencement of the Act.

11.5 Parts of Act 2005 inoperative?

11.5.1 Recognition of tribe/traditional community

[78] Mr Eiser submitted that:

(a) The Tribe must first be recognized as a traditional community before the Premier may reconstitute the tribal authority or traditional authority as a traditional council. He points to section 3(1) of the NFA which states that:

“Once the Premier has recognised a traditional community that traditional community must establish a traditional council in line with the principles set out in provincial legislation.”

(b) Thus, he submits, recognition of a traditional council must precede establishment of the council and accordingly reconstitution. Section 3(1) of the 2005 Act states, that the Premier may on application by a community recognise that community as a traditional community in the prescribed form. Section 41(1)(a) of the 2005 Act states the Premier may make regulations providing for the form of application for recognition as a traditional community. No such regulations and forms have been published.

(c) Sections 3(1), 3(2), 3(3) and 3(4) of the 2005 Act set out what the Premier must do in connection with and as a result of the application for recognition, and stipulates that the Premier must make a decision whether or not to recognise a community within 12 months of receipt of the application. None of this has been done. Nor could it have been done until 25 January 2010 when the NFA amendment Act extends the window period.

(d) In terms of section 43(3) of the 2005 Act, before there can be a re-constitution of the Traditional Authority into a traditional council, there has to be disestablishment of the Traditional Authority, and the sub-section sets out what has to be contained in the notice of disestablishment. Apart from the legislative requirement, because of the vast assets of the community, strict compliance with section 43 is imperative. This has also not happened, and can occur only after compliance with sections 3 and 6 of the 2005 Act, so that there is no vacuum between disestablishment of the Traditional Authority and birth of the traditional council.

[79] I cannot accept these submissions. The provisions, upon which reliance is placed, are provisions which apply where a premier recognizes a new traditional community or part of an existing traditional community which has separated from the main body. These sections do not apply where the transitional provisions are operative. The basic premise of section 28 of the NFA is that a tribe and its traditional leaders are recognized for purposes of the Act. The tribe becomes known as the traditional community. The 2005 Act accepts this for it does not, in the transitional provisions, regulate this. This is provided for in section 28(3) of the NFA. An existing tribe need not apply for recognition; a process which may take up to but may not exceed 12 months.

11.5.2 Tribal authority/traditional council

[80] Section 28(4) provides that a tribal authority (which would include a body known as a traditional authority) that, immediately before the commencement of the NFA, had been established and was still recognised as such, is deemed to be a traditional council

contemplated in section 3 and must perform the functions referred to in section 4.

[81] The NFA deems the tribal authority to be a traditional council. This can only mean that the tribal authority concerned ceases to exist and the members of the tribal authority are deemed to be members of the traditional council. The functions of the traditional council are set and governed by the NFA. The 1978 Act has been repealed.

[82] The membership of this initial traditional council is, of course, different from the membership of a traditional council which may be established for a newly recognized traditional community. The membership may, and probably will be different from the ideal spread of the membership of a traditional council which should be appointed within a year (or within seven years).

[83] Therefore the membership of this initial traditional council is a temporary measure. The membership of the traditional council (consisting of former tribal authority members) must be transformed within a year as from 24 September 2004 as regards gender and an element of democratic representation.

[84] It follows that I am of the opinion that section 43(1) and (3) (but only as regards a tribal authority) of the 2005 Act is in conflict with section 28 of the NFA.

[85] As I was concerned that the parties did not address me sufficiently on this point. I invited them to submit representations on the point which I phrased as follows:

“Is section 43(1) of the North West Traditional Leadership and Governance Act 2 of 2005 consistent with section 28(4) of the Traditional

Leadership and Governance Framework 41 of 2003 or is it incompatible with it in the sense that if a tribal/traditional authority is deemed to be a traditional council there is no authority to be disestablished?”

11.6.1 The applicant’s submissions

[86] Mr Charwo submits that:

(a) The provisions of the NFA relating to the deeming of traditional councils supersede the 2005 Act in as far as the latter seeks to contradict what is provided for in the NFA.

(b) The answer to the question whether section 28(4) is consistent with section 43(1) is in the affirmative. To the extent that section 28(4) deemed tribal authorities to be traditional councils, and to the extent that section 43(1) seeks to empower tribal authorities to continue until they are substituted by newly reconstituted traditional council.

(c) Section 43(1) basically seeks to do that which was already done by section 28(4). However, it goes further to want to authorise tribal authorities to continue as is until substituted by newly constituted traditional council. It is clear that the 2005 Act cannot authorize the continuity of the tribal authorities as they were since the NFA has already provided for their continuity under the auspices of the newly traditional council. Such an act of authorizing continuity of tribal authorities as they were is inconsistent with the NFA.

(d) Section 43(1) is compatible to an extent with section 28(4) in that the seeks to authorise tribal authorities which were in place at the commencement of the NFA to continue as such contrary to section 28 which transforms tribal authorities and authorizes them to continue as traditional council. To that end the notice contemplated in section 43(3) is clearly intend to disestablish community authorities as well as regional authorities. Any attempt to disestablish tribal authorities as provided for in section 43 would be inconsistent with the NFA.

(e) The retrospective effect of the amendment to the NFA, to provide for seven years within which to transform traditional councils can be inferred from the wording of the amendment. This simply means that tribal authorities which were deemed in section 28(4) as traditional councils under the NFA dispensation are still traditional councils, the only window period for strict compliance with the requirements of section 3(2) is extended to a period of seven years reckoned from the date of commencement of the NFA.

(f) Though this retrospective effect is not specifically provided for in the NFA Amendment Act, it must be inferred by necessary implication in that to hold otherwise would result in a complete misdirection and chaos in the transformation of traditional leadership institution.

(g) Similarly, the fact that the seven years extension contained in the NFA Amendment Act is reckoned from the commencement of the initial and/or principal Act and not from the date of commencement of the Amendment Act itself is indicative enough of the Legislature’s intention to provide for retrospective application.

(h) It is correct to conclude that there is no tribal authority to be disestablished as they are already traditional councils and thus not necessary to disestablish tribal authorities before reconstituting traditional councils.

(i) It is also correct to conclude that the 28th Respondent (Traditional Authority) is not the body that was deemed by section 28(4) to be a traditional council, even if the Premier’s notice was to be said to lack compliance with the 1/3 requirement for women in the traditional council since this strict compliance has a window period of seven years.

[87] In summary the applicant’s submissions are that:

(a) Section 43(1) is inconsistent with section 28(4) of the NFA.

(b) In such an instance as provided in section 2 of the 2005 Act, the NFA and the Constitution must take precedence over the 2005 Act.

(c) There is no tribal authority to be disestablished as tribal authorities no longer existed after the commencement of the NFA on 24th September 2004.

11.6.2 The 1st to 26th respondents’ submissions

[88] Mr Eiser submits that this construction is not the correct one. He contends that because the proviso to section 28 (4) refers to “a tribal council” that this means that a tribal council remains intact and needs to be disestablished. I do not agree. The main part of the subsection deems the tribal authority or traditional authority to be a traditional council. A proviso cannot be used to restrict the ambit of the dominant section. Furthermore if the national legislature intended the tribal or traditional authority to exist until it has been transformed, in the sense that I have used this word, then it would have provided for its disestablishment as it did in relation to other institutions. What is more the statutory framework which provided for a tribal authority or traditional authority has been repealed.

[89] Lastly I do not think that any support can be found in the words “Provided that such a tribal authority must comply with section 3(2) within one year of the commencement of this Act.” Assuming that the tribal authority continues to exist it cannot comply with the section. The tribal authority cannot itself comply with the sections. Only an outside agency namely the Premier can determine the numbers of members and publish the names of the members. See section 28(4) of the NFA and section 6 of the 2005 Act.

[90] The NFA does not require the disestablishment of the tribal authority. The tribal authority as an institution has been transformed by the deeming provision into a traditional council; albeit it one which may not corresponds with the end product which the Legislature had in mind. The tribal authority as an institution no longer exists once it is deemed to be a traditional council.

11.6.3 The Premier’s submissions

[91] Ms Gutta (with her Ms Mpshe) for the Premier supports the contentions of Mr Eiser. She submits that one should interpret section 43(1) of the 2005 Act to read that a tribal authority established in terms of the 1978 Act “shall continue” as a traditional council in lieu of the deeming provision in section 28(4) of the NFA. She argues that a tribal authority has to be disestablished even though it is deemed to be a traditional council because of the difference in composition of the two institutions.

[92] The problem is that if it is accepted that a tribal authority is to continue until a traditional council is established, one is left with a tribal authority or traditional authority which cannot perform the functions of a traditional council which is what section 28(4) requires a traditional council to perform the duties of a Traditional Authority. The mechanisms that the NFA uses to achieve this result, is to deem the tribal authority to be a traditional council. The 2005 Act leaves the tribal authority in limbo. Its empowering Act has been repealed and it is not effectively linked to the new dispensation. If it continues to exist it would have no functions in terms of the new dispensation.

[93] I am of the view that the sections mentioned above and to the extent mentioned are inoperative by reason of the application of section 146 of the Constitution.

12. Who are the members of the traditional council?

[94] On 1 January 2000 the Traditional Authority of the Bapo Ba Mogale Traditional Authority consisted of the persons whose names are listed in paragraph 3 of the letter of the Acting Director: Traditional Authority Affairs dated 23 February 2000. A list has not been produced of the names of the Traditional Authority members who were members immediately prior to the NFA coming into operation on 24 September 2004.

[95] The applicant and Bakae Edward Mafate (not a respondent) were members at the critical date and are members of the traditional council. I am not able to determine with certainty who the other members of the traditional council are.

13. Applicant’s dissolution of the traditional council

[96] The next development that took place was when the applicant purported on 5 May 2010 to dissolve the traditional council by which I understood that he dismissed all the members or, and this is to the same effect, declared all the seats vacant. He may have been able to do so, I put it no higher than this, in terms of section 8(2) if one or all the members fell within the circumstances set out in section 8(1).

[97] A traditional council is a permanent institution. Its existence cannot be terminated by any member of the institution including a traditional leader. Nor is it permissible for a traditional leader to dismiss the members of the traditional council.

[98] The membership of a traditional council terminates only in the following circumstances:

(a) where the term of office, five years, expires;

(b) on the death of a member;

(c) if a members is or become disqualified to hold office as a member. See section 8 of the 2005 Act.

[99] A person is disqualified from membership if he or she –

(a) is under eighteen years of age;

(b) is an unrehabilitated insolvent;

(c) has been declared by a competent authority to be mentally incapable in terms of the Mental Health Care Act No. 17 of 2002 or other related legislation;

(d) has been convicted of a criminal offence without the option of a fine;

(e) has been removed from an office of trust on account of misconduct. See section 7 of the 2005 Act.

14. Application for relief

[100] In order to maintain the record of events it is necessary to note that the Traditional Authority brought an application under Case No. 800 of 2008 in this court for almost the same subject matter, being its status and continuation as a traditional council authority of Bapo Ba Mogale Traditional Community. The application was set down and heard before an acting judge in July 2008. Judgment in the main application is still outstanding.

15. Premier’s notice

[101] The then Premier of the North West Province was presumably not advised of the relationship between a national and provincial enactment. Neither was the Premier advised about the applicable time limit. In consequence and on 20 May 2008 she made a decision in terms of sections 6(3) and 43(3) of the 2005 Act. This decision was promulgated in the Extraordinary Provincial Gazette no. 6514 of 15 July 2008 GN1/15 July 2008. The relevant portions of the notice and the provisions applied to the Bapo Ba Mogale Tribe read as follows:

PREMIER’S

NOTICE

No. 1 15 July 2008

RECONSTITUTION

OF TRADITIONAL COUNCILS IN ACCORDANCE WITH THE NORTH WEST TRADITIONAL LEADERSHIP AND GOVERNANCE ACT NO.2 OF 2005.

I, Mrs Bomo Edna Molewa, Premier of the North West Province, in terms of the provisions of section 6(3) of the North West Traditional Leadership and Governance Act No.2 of 2005, hereby reconstitute traditional Councils in accordance with the areas of jurisdiction as provided for under schedule A. The traditional authorities which existed under the repealed Bophuthatswana Traditional Authorities Act No. 23 of 1978 are now substituted by the traditional Councils as provided for under Schedule A.

Everything that was done under the repealed Bophuthatswana Traditional Authorities Act relating to traditional councils shall now be dealt with in accordance with the relevant provisions of the North West Traditional Leadership and Governance Act 2 of 2005.

GIVEN UNDER MY HAND AT MAFIKENG THIS 20TH DAY OF MAY TWO

THOUSAND AND EIGHT

______

MRS B E E

MOLEWA

PREMIER:

NORTH WEST

PROVINCE

. . . . .

30. BAPO BA

MOGALE

. . . . .”

[102] Besides the difficulties which I have adverted to above the notice suffers from several other defects. They are:

(a) The authority to disestablish a tribal authority was required to be done within a one year time limit as from the date of commencement of the 2005 Act. This time period had expired prior to the then Premier taking the decision. There was therefore no authority for this act.

(b) The constitution or appointment of members of the traditional council was long overdue and it took place after the period of one year set by section 28(4) of the NFA had expired. There was therefore no authority for this act.

(c) The fact that the notice as regards the constitution of the traditional council refers to certain sections as authority for the act may not be decisive if the act is authorized by another section. Even so the notice, as far as this tribe is concerned, does not comply. The composition of the members does not comply with the gender requirements of the NFA and the 2005 Act.

(d) Section 3(2)(b) provides that at least a third of the members of a traditional council must be women. See also section 6(2)(c) of the 2005 Act. There is an exemption clause in the NFA. Section 3(2)(d) of the NFA provides:

“Where it has been proved that an insufficient number of women are available to participate in a traditional council, the Premier concerned may, in accordance with a procedure provided for in provincial legislation, determine a lower threshold for the particular traditional council than that required by paragraph (b).”

(e) In the case of the North West Province there is no legislative provision which caters for such a situation. The then Premier’s notice offends against the principle of legality which requires organs of state to act in accordance with the law.

16. The time period extended by the NFA Amendment Act

[103] Section 28(4) of the NFA was amended by Act 23 of 2009. This Act came into operation on 25 January 2010. Section 28(4) as amended now reads:

“A tribal authority that, immediately before the commencement of this act, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4: Provided that such a tribal authority must comply with section 3(2) within seven years of the commencement of this act.”

17.1 The applicant’s submissions on the NFA Amendment Act

[104] Mr Chwaro submitted that:

(a) The provincial legislature has a concurrent competency to legislate on traditional affairs with the National Parliament and in the absence of any inconsistent provision in the national legislation, the provincial legislation that empowers the Premier to publish a notice of reconstitution of traditional councils will pass both legality and constitutional muster.

(b) If it were to be argued that the Premier published the notice some time after the expiry of the initial one year period provided for in the NFA and thereby rendering such notice to be null and void for want of compliance with national legislation, which prevails over the provincial legislation in terms of section 146 (2)(b), such an argument will have no merit in that the amendment to the NFA which came into effect on the 25 January 2010 has cured such a defect. It applies retrospectively and in its current reading, the then Premier acted within the required seven years period.

(c) It therefore means that the traditional councils has been reconstituted in accordance with the notice of the Premier within the seven year period provided for in the NFA and in accordance with section 6 of the 2005 Act.

17.2 The 1-26th & 28th respondents’ submissions on the NFA Amendment Act

[105] Mr Eiser, however, submitted that:

(a) The effect of the two pieces of legislation cited, of which the NFA is the pre-eminent one, is that the critical date for the continuation of the status of the previous Traditional Authority, is that it was established and recognised at the date of coming into force of the NFA, which preceded the 2005 Act by some two and a half years. Section 28(4) gives the Traditional Authority seven years from 24 September 2004 to comply with section 3(2) of the NFA, upon which it will be reconstituted into a traditional council. Until then it remains a Traditional Authority.

(b) Because of the non-compliance, re-constitution in respect of the community cannot have any legal validity, and, insofar as the community and its Traditional Authority is concerned, the notice is null and void and of no legal force or effect.

(c) The consequence of this must be, that the Traditional Authority of the Bapo Ba Mogale Community continues to exist both in terms of section 28(4) of the NFA and section 43(1) of the 2005 Act and is the lawful governing body of the community.

17.3 Premier’s submission on the NFA amendment Act

[107] As I understood Ms Gutta she took the view that as the traditional council had been constituted during the seven year period. Ms Gutta was of the view that the Premier’s act was valid even though it was done prior to the enactment of the NFA Amendment Act.

17.4 Conclusion as regards the NFA amendments

[108] The proviso is not very happily worded. The tribal authority is deemed to be a traditional council but the proviso continues to speak of a tribal authority which is now traditional council. But the meaning is clear the institution of the tribal council is deemed to a traditional council and it follows that the members of the former tribal authority are then members of the traditional council. As the membership of the tribal authority may not correspond with the gender and democratic requirements expressed in section 3(2) the transformation of the membership (if it is required) this must be done in terms of the amended NFA within 7 years of the commencement of the NFA. The Premier still has time until 23 September 2011 to do so.

[109] One of the consequences of the 2009 amendment to the NFA is to validate contracts which a traditional council, consisting of former members of the tribal authority, has made. To this extent the amendment is retrospective and validates the contracts which were made by the traditional council (which had not been reconstituted timeously). See section 23 of the Amended NFA. But the amendment does not deal at all with the validation of an unauthorized act by the Premier of a province. It is therefore not retrospective as regards the Premier of the North West Province’s acts including the notice published in the Provincial Gazette.

18. Conclusion as regards paras 2.1, 2.3 and 2.4 of the Rule

[110] The applicant is not entitled to the relief which he claims and the Rule as regards these paragraphs must be discharged.

19. Conclusion as regards para 2.5 of the Rule

[111] Although the applicant did not intend this, he is correct that only the lawful members of the traditional council can issue instructions to members of the office staff. Which of the individual respondents are not members? Even if I accept the letter of the Directorate of Traditional Affairs dated 23 February 2000 as the best evidence of the composition of the Traditional Authority as at 24 September 2004 the crucial date, I have difficulty in deciding who are not members. Some of the respondents, judging by their names would appear not to be members of the former Traditional Authority. The names of other respondents show that they may have been members of that Traditional Authority. The onus of proving who should be interdicted rests upon the applicant. He has not done so. Para 2.5 of the Rule must also be discharged.

20. Costs

[112] Costs should follow the result. I intend to award the costs to the individual respondents. I do not consider it necessary to make an order that the applicant should personally pay the costs. They were incurred in his capacity as Kgosi.

To sum up:

(a) The Traditional Authority of the Tribe (a tribal authority for purposes of the NFA) was deemed as from 24 September 2004 to be the traditional council of the traditional community and the members of the Traditional Authority became the members of the traditional council.

(b) The traditional council should have been transformed within one year of the crucial date as regards gender and democratic representation.

(c) This was not done and the traditional council comprising former Traditional Authority members remained members of the Traditional Council for the Bapo Ba Mogale Traditional Community.

(d) The attempt by the community or the applicant to dissolve the traditional council was and is of no legal effect.

(e) The purported disestablishment of the Traditional Authority by the then Premier was done in terms of a section of the 2005 Act which was and is inoperative.

(f) The purported constitution of the traditional council by the then Premier on 15 July 2008 as required by section 3 of the NFA was unauthorized and defective as it was made outside the prescribed period and did not comply with the NFA and 2005 Act as regards gender representation.

(g) In the absence of a proper application to set the Premier’s decision aside it remains standing even though for purposes of this judgment I find it to be fatally defective.

(h) The contracts concluded by the traditional council made between 24 September 2004 and 25 January 2010 have been validated.

(i) The Premier may reconstitute the traditional council in terms of the amended NFA and this must be done by 23 September 2011

21. The order

[113] In the premises;

1 The applicant is to pay the costs associated with the abandoned application to strike out.

2. The two applications to strike out are granted with costs which are to be paid by the applicant.

3 The rule is discharged with costs which are to be paid by the applicant.

4. The counter application is dismissed with costs which costs are to include the costs of two counsel for the applicant and the 27th respondent and are to include the applicant’s costs reserved on 13 June 2010.

5. These costs are to be paid by the persons who signed the resolution dated 8 June 2010 jointly and severally, the one paying the other to be absolved.

A A LANDMAN

JUDGE OF THE

HIGH COURT

ATTORNEYS

For the Applicant (and respondent in counter application): S M MOOKELETSI

For the 1 – 26TH Respondents: MINCHIN & KELLY

For the 27th respondent (and respondent in the counter application): STATE

ATTORNEY

For the applicant (in the counter application): MINCHIN & KELLY