Monnakgotla and Others v Monnakgotla and Others (M239/17) [2017] ZANWHC 100 (16 November 2017)

Reportable:

YES

/ NO

Circulate to Judges:

YES

/ NO

Circulate to Magistrates:

YES / NO

Circulate to Regional Magistrates: YES / NO

IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: M 239/17

In the matter between:

IGNATIUS

MOKGWARI MONNAKGOTLA

1ST APPLICANT

SOLOMON

MPHUPHUTHE MONNAKGOTLA

2ND APPLICANT

MARAUME

HERMAN MONNAKGOTLA

3RD APPLICANT

IKAGENG

JACOB MONNAKGOTLA

4TH APPLICANT

OTSILE

MONNAKGOTLA

5TH APPLICANT

ITUMELENG

TIRO MONNAKGOTLA

6TH APPLICANT

LOTSI

RAPITSINALA MONNAKGOTLA

7TH APPLICANT

TSHIMANE

PHILEMON MONNAKGOTLA

8TH

APPLICANT

And

SOLOMON

MPHUPHUTHE MONNAKGOTLA

1ST RESPONDENT

CHAIRPERSON

OF THE HOUSE OF

TRADITIONAL

LEADERS NORTH WEST

2ND RESPONDENT

PROVINCE

PREMIER

OF THE NORTH WEST PROVINCE

3RD RESPONDENT

DISELE

JOHANNES PHOLOGANE

4TH

RESPONDENT

THE

BAKUBUNG BA RATHEO TRADITIONAL

5TH RESPONDENT

COMMUNITY

QUEEN

JOSEPHINE MONNAKGOTLA

6TH

RESPONDENT

LEAVE

TO APPEAL JUDGMENT

DJAJE J

[1] This leave to appeal was brought on 10 November 2017 against my judgment in which I made the following order:

“1. Application be and is hereby dismissed,

2. The Applicants to pay costs.”

[2] This application was only opposed by the first, fourth and sixth Respondents. No opposition was received from the other Respondents.

[3] The test to be applied in an application for leave to appeal is set out in section 17 (1) (a) of the Superior Courts Act 10 of 2013 which provides that:

“ (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;”

[4] The Applicants in essence raised five grounds of appeal as follows:

4.1 The Learned Judge misidentified the issues to be determined and dismissed the application when she was not called upon to do so;

4.2 The Learned Judge erred in finding that it could not be expected of the Respondents to make an undertaking of something unknown to them prior to the hearing of the application when the Respondents had actually given the same undertaking in Court during argument;

4.3 The Learned Judge misdirected herself in failing to find that the Applicants had made out a case entitling them to a final interdict;

4.4 That the Applicants’ appeal has reasonable prospects of success; and

4.5 That there are compelling reasons why the Applicants’ appeal should be heard.

[5] In argument the Applicants’ main contention was that the judgement focused mainly on prayer two of the notice of motion and did not deal with prayer three thereof. For ease of reference the notice of motion in the application was as follows:

“1. Dispensing with the forms, service and the time period stipulated in the rules for the conduct of proceedings in the above honourable court, and disposing of this application as an urgent application in accordance with the relevant provisions of rule 6(12)

1.25cm; margin-bottom: 0cm; line-height: 200%"> 2. Interdicting and prohibiting the respondents from altering, amending or, changing the Royal Family Tree of the Bakubung-Ba-Ratheo Community as officially recognised and published in the official programme for the enthronement of Kgosi Solomon Mphuphuthe Monnakgotla on 27 May 2017 which appears in annexure “B” attached to the applicant’s founding affidavit (“the legitimate Royal Family Tree”).

3. Interdicting and prohibiting the respondents from convening any meetings for purpose of proposing a new family tree for adoption, recognition and implementation which will be contrary to the legitimate Royal Family Tree.

4. Directing the respondents to pay the cost of this application as between attorney and client, jointly and severally.

5. Granting further and/or alternative relief as this honourable court may deem necessary.”

[6] It was argued by the Applicants that the entire judgement relate to the meeting of 27 May 2017 which is contained in prayer two of the notice of motion and ignored prayer three. As a result there are no reasons why the application in respect of prayer three was dismissed and on that basis there are reasonable prospects of success.

[7] The Applicants further dealt with the issue of the requirements of a final interdict in that they will be able to demonstrate on appeal that the requirements of a final interdict had been made out. It was argued that the Applicants as members of the Royal family whose names appear on the official family tree have a clear right to be granted a final interdict. Further that the Applicants are members of the Khuduthamaga which is a core structure consisting of the senior adult descendants of the first house of Kgosi Ratheo. This therefore entitles them to continue to be part of the Royal Family.

[8] It was the Applicants’ case that there is a well- founded apprehension of harm in that the existing officially recognised Royal family tree would be excluded which would negatively affect the challenge to the management of the financial affairs and interests of the Bakubung Ba Ratheo Community.

[9] On the third requirement of a final interdict the Applicants submission was that if the Royal family tree is changed many of the well-established blood descendants of the Royal family will be excluded and there will be no alternative remedy. During argument

counsel for the Applicants submitted that if the Family tree is changed it will too late for the applicants to do anything about it as there would be confusion about the identity of the leaders and most importantly the control of the community would fall into the hands of the first and fourth Respondents who are alleged to be engaged in a conspiracy with the so-called financial advisors of the community to deprive the community of its funds and resources.

[10] It was contended by counsel for the Respondents that the Applicants in their grounds for leave to appeal have not made out a case for prospects of success. The Respondents’ argument was that the Court was fully aware of the relief sought in prayer three of the notice of motion and dealt with it. In relation to the undertaking made during argument of the application by the Respondents it was submitted that the Applicants had persisted with a final relief and rejected the solution suggested by the Respondents. Further that the Court was not bound to make the solution offered by the Respondents an order of Court.

[11] The Respondents submission was that the Applicants have not made out a case for a final interdict. Firstly that the Applicants have not produced any evidence that they will be removed or excluded from the Royal family tree. Further that the Applicants have no authority to act on behalf of the Royal family. As such they have failed to establish a clear right entitling them to a final interdict.

[12] It was argued for the Respondents that in the absence of a clear right there can be no apprehension of injury. Further that the Applicants have not given any evidence what the new family tree would be and if they would indeed be excluded from it.

[13] It is the Respondents contention that if the family tree is indeed changed and the Applicants are excluded then there is a remedy available to them which is to approach court on urgent basis to have the decision set aside. Having regard to the above stated submissions the Respondents argued that the application for leave to appeal should be dismissed

[14] The Applicants approached this Court on an urgent basis for an order as stated in the notice of motion. As indicated in prayer two the Applicants sought an order interdicting the Respondents from continuing with a meeting that was purported to be taking place on 27 May 2017 wherein the Royal family tree was to be changed. The Applicants brought the urgent application pursuant to a letter received from one Mr Simon Ruthoane of the North West Provincial Government stating that: “certain long-standing and well-recognised members of the Royal Family of the Community lack the requisite status as per the Family Tree of the Bakubung Ba Ratheo Royal Family and therefore they cannot hold themselves out as members of the Khuduthamaga”

[15] In arguing the main application the Applicants could not give any evidence of when a meeting was to be held and the purpose thereof. The issue that prompted the Applicants to come to court is the alleged change of the Royal Family Tree by the Respondents. However throughout their papers the Applicants were not able to provide any evidence of such an intention and whether they would be excluded from the Royal Family Tree.

[16] In paragraphs [13] to [15] of my judgment I extensively dealt with the absence of any evidence of a meeting where the purpose thereof was to change the Royal Family Tree or whether the Applicants are to be excluded. The Applicants brought an application based on “a believe” which was unsubstantiated and as such they were not able to make out a case for both prayer two and three. The evidence required for the relief sought in prayer two and three was for the Applicant to establish whether there was an intention by the Respondents to exclude them from the Royal Family Tree. Failure to provide such evidence could not and cannot entitle the Applicants to a final interdict.

[17] After careful consideration of the submissions on behalf of both the Applicants and the Respondents, I am of the view that there is no reasonable prospect that another Court might come to a different conclusion. Consequently the application must fail. There is no plausible reason why costs should not follow the result.

Order

[18] Consequently, the following order is made:

1. The application for leave to appeal is dismissed.

2. The Applicants are ordered to pay costs of the application.

____

J T DJAJE

JUDGE OF THE HIGH

COURT

APPEARANCES

DATE

OF HEARING

: 10 NOVEMBER 2017

DATE

OF JUDGMENT

:

16 NOVEMBER 2017

COUNSEL

FOR THE APPLICANTS

:

MR VAN

HUYSSTEEN

COUNSEL FOR 1st, 4th & 6th RESPONDENTS :

ADV G NEL