Montshioa and Another v Motshegare (110/2001) [2001] ZANWHC 17; 2001 (8) BCLR 833 (B) (29 March 2001)

Source-derived case information.

Citation: [2001] ZANWHC 17
Parties: Applicant: Jeffrey Kgotleng Montshioa; Applicant: Member of the Executive Council for Traditional & Corporate Affairs; Respondent: Othusitse Israel Motshegare
Court: North West High Court, Mafikeng
Jurisdiction: South Africa
Case Number: 110/2001
Procedural Posture: Urgent Application / Final Judgment on Application and Counter Application
Outcome: Application for interdict dismissed; counter-application succeeds; appointment of first applicant as kgosi set aside; costs awarded against applicants jointly and severally.
Judges: MTR Mogoeng
Legal Topics: Retrospective Administrative Action, Constitutional Supremacy, Validity of Executive Acts, Appointment of Traditional Leaders, Interdict, Transfer of Executive Functions

Administrative Law Constitutional Law Retrospective Administrative Action Constitutional Supremacy Validity of Executive Acts Appointment of Traditional Leaders Interdict Transfer of Executive Functions

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Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2

Parties

Jeffrey Kgotleng Montshioa

Applicant

Member of the Executive Council for Traditional & Corporate Affairs

Applicant

Othusitse Israel Motshegare

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application and Counter Application

Legal Issues

1 Whether the Premier could retrospectively transfer the administration of legislation from one MEC to another by proclamation under s 137 of the Constitution.
2 Whether the appointment of the first applicant as kgosi was valid in light of the constitutional requirements for transfer of powers.
3 Whether the retrospective proclamation could cure the invalidity of the first applicant's appointment.

Ratio Decidendi

The court held that the transfer of the administration of the Act to the second applicant was invalid because it was not effected by proclamation as required by s 137 of the Constitution. Consequently, the appointment of the first applicant as kgosi was null and void ab initio, as the second applicant lacked the constitutional authority to make the appointment. The subsequent proclamation by the Premier, although purporting to operate retrospectively, could not cure the invalidity, as it adversely affected the respondent's vested right to continue as acting kgosi until a lawful appointment was made. The court found that the retrospective operation of the proclamation was unjustified and...

Court Disposition

Application for interdict dismissed; counter-application succeeds; appointment of first applicant as kgosi set aside; costs awarded against applicants jointly and severally.

Orders

The application for an interdict is dismissed and the rule nisi is discharged.
The counter-application succeeds.

Full Case Text

Judgment text and source record

90 paragraphs

CASE NO. 110/2001

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

JEFFREY KGOTLENG MONTSHIOA 1ST APPLICANT

MEMBER OF THE EXECUTIVE COUNCIL

FOR TRADITIONAL & CORPORATE AFFAIRS 2ND APPLICANT

and

OTHUSITSE ISRAEL MOTSHEGARE RESPONDENT

______________________________________________________________________

JUDGMENT

MOGOENG J.

INTRODUCTION

[1] The first Applicant launched an application for an order basically restraining the Respondent from interfering with the first Applicant in the execution of his duties as kgosi (chief) of the Barolong Boo-Ratshidi tribe. In response, the Respondent brought a counter-application for the setting aside of the designation of the first Applicant as kgosi of the Barolong Boo-Ratshidi. [2] The fundamental question that has arisen from these applications is whether a Premier may, in terms of s 137 of the Constitution of the Republic of South Africa Act 108 of 1996 (âthe Constitutionâ), by proclamation transfer the administration of a legislation from one member of the Executive Council (âMECâ) to another, retrospectively. I will revert to this question later. For now I will give a background to these applications. BACKGROUND [3] The Respondent was appointed as acting kgosi in 1999 by the late kgosi-kgolo (paramount chief) of the Barolong Boo-Ratshidi, Setumo Montshioa, and the tribal council at the time when the kgosi-kgolo was ill. On 01 July 2000 the kgosi-kgolo died and the tribal council decided that the Respondent would continue to rule the tribe as regent for kgosi-kgolo Setumo Montshioaâs son, Ratshidi, who is still a minor. The Respondent was allowed to administer the affairs of the tribe apparently without much opposition until 06 October 2000 when his leadership was openly challenged in a Court of law.

[2] The fundamental question that has arisen from these applications is whether a Premier may, in terms of s 137 of the Constitution of the Republic of South Africa Act 108 of 1996 (âthe Constitutionâ), by proclamation transfer the administration of a legislation from one member of the Executive Council (âMECâ) to another, retrospectively. I will revert to this question later. For now I will give a background to these applications.

BACKGROUND

[3] The Respondent was appointed as acting kgosi in 1999 by the late kgosi-kgolo (paramount chief) of the Barolong Boo-Ratshidi, Setumo Montshioa, and the tribal council at the time when the kgosi-kgolo was ill. On 01 July 2000 the kgosi-kgolo died and the tribal council decided that the Respondent would continue to rule the tribe as regent for kgosi-kgolo Setumo Montshioaâs son, Ratshidi, who is still a minor. The Respondent was allowed to administer the affairs of the tribe apparently without much opposition until 06 October 2000 when his leadership was openly challenged in a Court of law.

[4] I must mention from the outset that the tribe of the Barolong Boo-Ratshidi is divided into two groups or factions. Each faction is led by a body of men who have some claim to the membership of the royal family. The two factions are the Barwa-Tawana Royal Family (âTawana factionâ) apparently under the leadership of Mr Morulaganyi Tawana and the other is the Royal House of Barolong Boo-Ratshidi under the leadership of the Respondent (âMotshegare factionâ). The Tawana faction support the first Applicant as the rightful heir to the throne whereas the Motshegare faction support Ratshidi as the right person to take over from his father. Each of these Royal Houses/Families claims to be the custodian of the chieftainship of the Barolong Boo-Ratshidi. [5] The Tawana faction was prepared to support the Respondent as acting kgosi pending the resolution of the dispute relating to the rightful heir to the throne, on condition that he would discharge his duties as kgosi in full consultation with a certain Mr Ronald Tawanyane Saane Tawana who would deputise him. The Respondent was not prepared to work with Mr Saane Tawana. As a result, the Tawana faction brought an application for an order directing the Respondent to work with Mr Saane Tawana to this Court under case No. 665/2000. That application was heard by my Brother Khumalo on 06 October 2000 and judgment was delivered on 07 October 2000. Khumalo J dismissed that application and found that the Respondent should continue to act as de facto kgosi pending the appointment of a kgosi in terms of s 36 of the Bophuthatswana Traditional Authorities Act No. 23 of 1978 (âthe Actâ).

[5] The Tawana faction was prepared to support the Respondent as acting kgosi pending the resolution of the dispute relating to the rightful heir to the throne, on condition that he would discharge his duties as kgosi in full consultation with a certain Mr Ronald Tawanyane Saane Tawana who would deputise him. The Respondent was not prepared to work with Mr Saane Tawana. As a result, the Tawana faction brought an application for an order directing the Respondent to work with Mr Saane Tawana to this Court under case No. 665/2000. That application was heard by my Brother Khumalo on 06 October 2000 and judgment was delivered on 07 October 2000. Khumalo J dismissed that application and found that the Respondent should continue to act as de facto kgosi pending the appointment of a kgosi in terms of s 36 of the Bophuthatswana Traditional Authorities Act No. 23 of 1978 (âthe Actâ).

[6] The dismissal of the application for a restraining order against the Respondent on 07 October 2000 coincided with a pre-arranged meeting at which the problems relating to the chieftainship of the Barolong people were to be discussed. That meeting was attended by representatives of all the major stakeholders. Kgosi Besele Montshioa, supported by the Tawana faction announced that the first Applicant was the rightful heir to the throne of the Barolong Boo-Ratshidi tribe. The Respondent challenged this announcement as a result of which a heated exchange ensued between the Tawana and the Motshegare factions. Thereafter, the second Applicant told the Respondent to stop acting as kgosi since he did not appear to be keen to run the affairs of the tribe in consultation with Mr Saane Tawana as was previously agreed. The second Applicant also announced at that meeting that a Mr Gauta Komane would take over the administration of the tribe with immediate effect. [7] About six days later, the Respondent brought an urgent application to this Court, under case No. 810/2000 for the setting aside of the appointment of Mr Komane. The one ground for the application, which is relevant to these proceedings, was that the second Applicant did not have the authority to appoint Mr Komane. More will be said about this in the judgment. This point was more pertinently raised by the Respondent in his affidavit dated 18 January 2001. It was further articulated in his heads of argument filed of record on 31 January 2001. [8] On 31 January 2001 the second Applicant and the Premier designated the first Applicant as kgosi of the Barolong Boo-Ratshidi tribe.

[7] About six days later, the Respondent brought an urgent application to this Court, under case No. 810/2000 for the setting aside of the appointment of Mr Komane. The one ground for the application, which is relevant to these proceedings, was that the second Applicant did not have the authority to appoint Mr Komane. More will be said about this in the judgment. This point was more pertinently raised by the Respondent in his affidavit dated 18 January 2001. It was further articulated in his heads of argument filed of record on 31 January 2001.

[8] On 31 January 2001 the second Applicant and the Premier designated the first Applicant as kgosi of the Barolong Boo-Ratshidi tribe.

[9] On 14 February 2001 the Premier published a proclamation in terms of which notice was given of the change of name and transfer of powers, duties and functions from the Department of the Premier to the Department of Traditional and Corporate Affairs with effect from 01 November 2000 and the transfer of the powers, duties and functions of Traditional Affairs from the MEC responsible for Local Government, Housing, Planning and Development to the MEC for the Department of the Premier with retrospective effect from 13 October 1999. [10] On 22 February 2001 Leeuw J set aside the appointment of Mr Komane as the administrator of the Barolong Boo-Ratshidi tribe. The Respondent appears to have understood this victory to mean that since he successfully challenged the appointment of Mr Komane on the basis that the second Applicant did not have the power to appoint him, and as I understand it since he still disputed the legitimacy of the first Applicant as kgosi, then he was entitled to take over as acting kgosi pending the proper designation of an acceptable heir to the throne. As a result, on the afternoon of 22 February 2001 the Respondent addressed a crowd of people at the kgotla. He informed them that he was going to take over the administration of the affairs of the tribe the next day and called on his supporters to come to the office the next day in order to afford him protection. [11] The next day the second Applicant, through his officials, caused a force of about 30 to 40 policemen to be at the tribal offices. According to Mr Morulaganyi Tawana about 40 members of the tribe tried to gain entry into the administrative building saying that they intended to occupy those offices and about 100 other people were milling around in support of the taking over of the building. This resulted in the Applicants launching the present application and the Respondentâs counter-application. I will now discuss the validity of the first Applicantâs appointment. Is the appointment of the first Applicant valid

[10] On 22 February 2001 Leeuw J set aside the appointment of Mr Komane as the administrator of the Barolong Boo-Ratshidi tribe. The Respondent appears to have understood this victory to mean that since he successfully challenged the appointment of Mr Komane on the basis that the second Applicant did not have the power to appoint him, and as I understand it since he still disputed the legitimacy of the first Applicant as kgosi, then he was entitled to take over as acting kgosi pending the proper designation of an acceptable heir to the throne. As a result, on the afternoon of 22 February 2001 the Respondent addressed a crowd of people at the kgotla. He informed them that he was going to take over the administration of the affairs of the tribe the next day and called on his supporters to come to the office the next day in order to afford him protection.

[11] The next day the second Applicant, through his officials, caused a force of about 30 to 40 policemen to be at the tribal offices. According to Mr Morulaganyi Tawana about 40 members of the tribe tried to gain entry into the administrative building saying that they intended to occupy those offices and about 100 other people were milling around in support of the taking over of the building. This resulted in the Applicants launching the present application and the Respondentâs counter-application. I will now discuss the validity of the first Applicantâs appointment.

Is the appointment of the first Applicant valid

[12] Mr Lever, for the Applicants, submitted that the appointment of the first Applicant as kgosi of the Barolong Boo-Ratshidi tribe on 31 January 2001 was validated by the subsequent publication of a proclamation by the Premier on 14 February 2001. This proclamation, as indicated above, inter alia, transferred the administration of the Act, in particular, from the Department of Local Government to the second Applicantâs Department with retrospective effect to 13 October 1999. The effect of that retrospective transfer of a function was to normalise or legalise the appointment of the first Applicant as kgosi. Mr Monare, for the Respondent, submitted that the second Applicant did not have the authority to designate the first Applicant as kgosi since the power to administer the Act was never transferred to him in compliance with s 137 of the Constitution. He further submitted that the purported transfer of power by the Executive Council from the Department of Local Government and Housing to the Department of the Premier on 13 October 1999, was invalid and null and void ab initio. This, he said, was based on the fact that that conduct of the Executive Council was inconsistent with the provisions of s 137 and it is therefore invalid in terms of s 2 of the Constitution. For these reasons he submitted that the appointment of the first Applicant must be regarded as invalid and for that reason be set aside. [13] The source and scope of governmentâs powers, the supremacy of the Constitution and the consequences of non-compliance with constitutional provisions were aptly explained as follows:

[13] The source and scope of governmentâs powers, the supremacy of the Constitution and the consequences of non-compliance with constitutional provisions were aptly explained as follows:

âConstitutionalism is the idea that government could obtain its powers from a written Constitution and that its powers should be limited to those set out in the Constitution. . . A Constitution limits the power of the government in two ways. First, it imposes structural and procedural limitations on power. Only certain institutions may exercise certain forms of power, and may only do so if specific procedures are followed. For example, only an elected Parliament may make law for the Republic and may only do so by majority vote. Second, principally through the operation of the Bill of Rights, substantive limitations are imposed. But neither of these limitations on the power of government will be effective without three associated principles of law: constitutional supremacy, justiciability and entrenchment. The first principle, constitutional supremacy, dictates that the rules of the Constitution are binding on all branches of the government and have priority over any other rules made by the government. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of constitutional supremacy.â The Bill of Rights Handbook (2nd edition) (Juta) by J. de Waal, I. Currie and G. Erasmus at p.7; Executive Council of the Western Cape Legislature V President of the Republic of South Africa 1995(4) SA 877 (CC); 1995(10) BCLR 1289 (CC) para 62. [14] The administration of the Act could only have been transferred by the Premier from one MEC to another in terms of s 137 of the Constitution which reads thus: âThe Premier by proclamation may transfer to a member of the Executive Council:- (a) the administration of any legislation entrusted to another member; (b) any power or function entrusted by legislation to another member.â

The first principle, constitutional supremacy, dictates that the rules of the Constitution are binding on all branches of the government and have priority over any other rules made by the government. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of constitutional supremacy.â

The Bill of Rights Handbook (2nd edition) (Juta) by J. de Waal, I. Currie and G. Erasmus at p.7; Executive Council of the Western Cape Legislature V President of the Republic of South Africa 1995(4) SA 877 (CC); 1995(10) BCLR 1289 (CC) para 62.

[14] The administration of the Act could only have been transferred by the Premier from one MEC to another in terms of s 137 of the Constitution which reads thus:

âThe Premier by proclamation may transfer to a member of the Executive Council:-

(a) the administration of any legislation entrusted to another member;

(b) any power or function entrusted by legislation to another member.â

What happened in this case is that the Executive Council passed a resolution in terms of which it âconfirmed the transfer of the Traditional Affairs function from the Department of Development of Local Government and Housing, to the Department of the Premier.â

As head of the Executive Council who is enjoined by s 132(7) to preside over all meetings, the Premier must have been present at that meeting and instrumental in this decision. I will, therefore, accept that it was his decision to transfer the aforegoing function and reject Mr Monareâs submission to the contrary. The difficulty raised by Mr Monare about this manner of transfer is that it was not done by proclamation as required by s 137. Since the transfer was not done by proclamation it did not comply with the above provisions of s 137 and the transfer was therefore inconsistent with s 137. The procedural limitation that this section imposes on a Premier is that he/she can only effect the aforegoing transfer by proclamation. That is the only mechanism or procedure open to a Premier for the legal and constitutional transfer of such power.

[15] Section 2 of the Constitution gives expression to the principle of constitutional supremacy. It provides that the âConstitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.â

There can be no doubt that the transfer of power to the second Applicant by the Premier on 13 October 1999 is invalid by reason of non-compliance with the provisions of s 137. Similarly, the designation of the first Applicant as kgosi in terms of s 36 of the Act by the Premier and second Applicant is invalid since the second Applicant did not have the authority he purported to exercise. Section 140(2) provides for a MEC to countersign a written decision of a Premier if that decision concerns a function assigned to that member. That provision relates to a MEC to whom a function was constitutionally assigned and the second Applicant is clearly not such a MEC. The question then arises whether the aforementioned non-compliance has resulted in the transfer of power and the resultant appointment being merely voidable or null and void ab initio. I think it is null and void ab initio for the reasons that follow. [16] Void administrative acts have no legal force or effect. Thus if the Court has declared an administrative act invalid, no subject need pay any heed to the act. If a Minister repeals an act of parliament by regulation without authority to do so, no one need obey the regulation (See Administrative Law (Butterworths) 1985 by M. Wiechers at p 155). The administrative act is declared void ab initio, in such a case the act is deemed never to have been performed. It seldom happens that an administrative act is so grossly defective that it may be said to be void ab initio. Absolute invalidity arises from the total absence of an essential requirement for the existence of a valid act or the absence of a factual basis which can constitute the object of the administrative act. (Wiechers pp 156-7). When a Court declares an administrative act null and void ab initio the Court finally and authoritatively confirms the actâs total nullity in the eyes of the law. (An example is the transfer of a liquor licence which does not comply with the peremptory provisions of s 43(4) of the old Liquor Act 39 of 1928 as was found in VENTER v KROONSTAD LIQUOR LICENSING BOARD 1970 (2) SA 66 (O); See also S v PRINSLOO 1970 (3) SA 550 (O) at 553; and S v VAN DER WALT 1979 (4) SA 130 (O)).

[16] Void administrative acts have no legal force or effect. Thus if the Court has declared an administrative act invalid, no subject need pay any heed to the act. If a Minister repeals an act of parliament by regulation without authority to do so, no one need obey the regulation (See Administrative Law (Butterworths) 1985 by M. Wiechers at p 155). The administrative act is declared void ab initio, in such a case the act is deemed never to have been performed. It seldom happens that an administrative act is so grossly defective that it may be said to be void ab initio. Absolute invalidity arises from the total absence of an essential requirement for the existence of a valid act or the absence of a factual basis which can constitute the object of the administrative act. (Wiechers pp 156-7). When a Court declares an administrative act null and void ab initio the Court finally and authoritatively confirms the actâs total nullity in the eyes of the law. (An example is the transfer of a liquor licence which does not comply with the peremptory provisions of s 43(4) of the old Liquor Act 39 of 1928 as was found in VENTER v KROONSTAD LIQUOR LICENSING BOARD 1970 (2) SA 66 (O); See also S v PRINSLOO 1970 (3) SA 550 (O) at 553; and S v VAN DER WALT 1979 (4) SA 130 (O)).

[17] This is one of those rare instances where an administrative act is so grossly defective that it may properly be said to be null and void ab initio. The publication of the proclamation is an essential requirement for the valid transfer of the administration of legislation from one MEC to another MEC. Constitutional responsibilities are not to be taken lightly by government officials. This is accentuated not only by s 2 but also by the peremptory language of s 125(6)(a) which provides that the provincial executive must act in accordance with the Constitution. The transfer of the administration of the Act to the second Applicant on 13 October 1999 and the subsequent appointment or designation of the first Applicant by the second Applicant are both a total nullity in the eyes of the law. This then brings me to the question whether the proclamation published by the Premier subsequent to the appointment of the first Applicant had the effect of regularising or validating an otherwise invalid transfer of power and appointment since that proclamation applies with retrospective effect to 13 October 1999. Retrospectivity [18] As a general rule, laws and decisions must operate prospectively to regulate only the present and the future. This principle and one of its six exceptions, which is relevant to the proceedings, were articulated by the old authorities in the following terms: âLaws not retrospective. - It is certain further that laws give shape to affairs of the future, and are not applied retrospectively to acts of the past.

They are rules of action, precepts regulating the lives of men, and they have to be promulgated before they have obligatory force, as we said above. Thus those things which were done prior to a new law under precept of ancient right stand fast. If a penalty has to be imposed for wrongdoing committed before a new law which perhaps sharpens the penalties, then it must be inflicted according to the terms of the old and not of the succeeding new law. How, asks the Emperor, did past time sin when, ignorant of the present law, it pursued the ancient practice of its rights?

Retrospectivity

[18] As a general rule, laws and decisions must operate prospectively to regulate only the present and the future. This principle and one of its six exceptions, which is relevant to the proceedings, were articulated by the old authorities in the following terms:

âLaws not retrospective. - It is certain further that laws give shape to affairs of the future, and are not applied retrospectively to acts of the past.

Exceptions - (i) Retrospectivity expressed. - An exception is when the legislator has nevertheless expressed himself otherwise in clear words, treating both of past time and of present affairs. This particularly happens when special favours are conferred by new laws; for there is no injustice in extending such grants, by enlargement as it were of the favours, to cases which have indeed already arisen, but have not yet been decided or set at rest by compromise. Neither equity nor public safety admits of affairs, long since set at rest by the dictates of ancient right, being revived or upset by the happening of a new law. That would provide a very great handle for litigation, confusion and uncertainty of things and rights. It is to avoid such inconveniences, and to protect the general interests of the people that things not done according to law are sometimes found to be approved. Much less should things be altered which have been already done, settled or decided either according to the letter of the law, or to a fixed interpretation which has always been given to it. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii) Cases of clear injustice or disgrace. - The same applies to affairs to which some obvious and ingrained or disgrace attaches.â The Selective VOET being the COMMENTARY on the PANDECTS Translated by PERCIVAL GANE [BOOK 1 at 47-8].

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) Cases of clear injustice or disgrace. - The same applies to affairs to which some obvious and ingrained or disgrace attaches.â

The Selective VOET being the COMMENTARY on the PANDECTS Translated by PERCIVAL GANE [BOOK 1 at 47-8].

This is our law as it stands now. Parliament or any institution vested with original legislative authority must ordinarily legislate prospectively. However, it may pass legislation which has a retrospective effect if (i) retrospectivity is expressed or

strongly implied; (ii) where determinations of questions of doubt must be made; (iii) in cases where a clear injustice or disgrace would result from prospective operation; (iv) in interpretations of former doubtful laws; (v) to deal with an absurdity which would arise if the law is not applied to the past; and (vi) some beneficial exception or exemption is brought in by the new law. (See Die Uitleg van Wette (5de uitgawe) (Juta) by Steyn at 82 and 236; Wiechers supra at 196; MEUMAN & HEYNEKE (Pty) Ltd v JOINT MUNICIPAL PENSION FUND 1978 (4) SA 652 (W) and the cases referred to).

[19] Mr Lever submitted that the objection to the retrospective effect of the proclamation in question must fall away since the proclamation is purely procedural and does not affect any vested rights (MINISTER OF SAFETY AND SECURITY v MOLUTSI & ANOTHER 1996 (4) SA 72 (A) at 90F-H; YEW BON TEW v KENDERAAN BAS MARA [1983] I A.C. 553, 558 (âYewâ); NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v CAROLUS & OTHERS 2000 (1) SA 1127 (SCA) (âCarolusâ) at 1141H-1142A). He likened the retrospective transfer of power in this case to the statutory amendment in terms of which the right to compensation which had previously vested in a Compensation Court was made to vest retrospectively in a provincial or local division of the High Court in the case of MINISTER OF PUBLIC WORKS v HAFFEJEE NO. [1996] ZASCA 17; 1996 (3) SA 745 (A) (âHaffejeeâ). Just as no prejudice resulted from the shifting of forums from the Compensation Court to the High Court in the Haffejee case, so said Mr Lever, no prejudice is likely to be suffered by the Respondent since the power to designate a

kgosi has at all material times been vested in a member of the executive council. Shifting the power from the one MEC to another retrospectively should really be of no consequence to the Respondent or any member of the tribe since that did not affect any of their vested rights. Besides, so the argument went, the Premierâs power in terms of s 137 is original and not delegated, derived directly from the Constitution. As a result, the Premierâs power to make the exercise of the function by the second Applicant operate retrospectively is, according to Mr Lever, equivalent to such power when exercised by Parliament in enacting legislation, the source of which power is also the Constitution. He relies on GCALI NO. & ANOTHER v MEC FOR HOUSING & LOCAL GOVERNMENT, EASTERN CAPE & OTHERS 1996 (4) SA 456 (Tks) (âGcaliâ) and BEUKES v ADMINISTRATEUR-GENERAL, SUIDWES-AFRIKA EN ANDERE 1980 (2) SA 664 (SWA) at 674C-675F (âBeukesâ) as authority for this proposition. I will accept without deciding that the Premier enjoins original powers which entitled him to order that the proclamation in question operate retrospectively. The question that I will address is whether or not the proclamation is purely procedural or whether it affects existing rights adversely. [20] The proclamation envisaged by s 137, though it has procedural dimensions, is not, in my view, purely procedural as would become apparent later in this judgment. Marais J had the following to say on the subject in Molutsi at 90G-H: â It is sufficient to say that while there can be no vested right in purely procedural provisions, it is now well recognised that even although a statute may have procedural dimensions, if it adversely affects vested rights which are not purely procedural, it will be construed as pro tanto prospective.â

[20] The proclamation envisaged by s 137, though it has procedural dimensions, is not, in my view, purely procedural as would become apparent later in this judgment. Marais J had the following to say on the subject in Molutsi at 90G-H:

â It is sufficient to say that while there can be no vested right in purely procedural provisions, it is now well recognised that even although a statute may have procedural dimensions, if it adversely affects vested rights which are not purely procedural, it will be construed as pro tanto prospective.â

The Respondent has acted as kgosi for an uninterrupted period of at least eleven months. Since he was not recognised in terms of s 36 of the Act as acting kgosi, he ran the tribal administration as de facto acting kgosi. Even the Tawana faction, when they brought their application under case No. 665/2000 were not challenging his position as acting kgosi. They merely wanted the Court to direct that he performs his functions in full consultation with Mr Saane Tawana. In my view, the Respondent was not only recognised by his tribesmen as de facto acting kgosi, but he had also earned the right to continue as de facto acting kgosi pending the lawful termination of his acting position by the appointment of either an administrator in terms of s 34 or an acting or permanent kgosi in terms of s 36 of the Act. Mr Komane was not lawfully appointed and his appointment could not therefore have had the effect of interrupting the position of the Respondent as de facto acting kgosi before the eyes of the law. Similarly, the Respondentâs right to run the affairs of the tribe as de facto acting kgosi subsisted even after the appointment of the first Applicant since that appointment, just like that of Mr Komane, was fundamentally flawed. The Respondent therefore has the right to continue as de facto acting kgosi until the kgosi is properly appointed. This right to continue acting pending some lawful intervention in terms of the Act, is adversely affected by the proclamation which applies retrospectively. The proclamation is therefore not purely procedural in that it also has an adverse effect on the right of the Respondent to continue acting as kgosi until he is removed in terms of the law. For these reasons the proclamation cannot be allowed to operate retrospectively in respect of the appointment of the first Applicant. It shall, instead, operate pro tanto prospectively. [21] Similar views were expressed in a United States case of UNITED STATES OF AMERICA v CERTAIN FUNDS CONTAINED IN ACCOUNT NOs 600-306 211-006, 600-306 211-011 AND 600-306 211-014 LOCATED AT THE HONG KONG AND SHANGHAI BANKING CORPORATION et al 96 F 3d 20 (2nd Cir, 1996) which was referred to by Farlam AJA, as he then was, in the Carolus case at 1141I-J. It was said that:

[21] Similar views were expressed in a United States case of UNITED STATES OF AMERICA v CERTAIN FUNDS CONTAINED IN ACCOUNT NOs 600-306 211-006, 600-306 211-011 AND 600-306 211-014 LOCATED AT THE HONG KONG AND SHANGHAI BANKING CORPORATION et al 96 F 3d 20 (2nd Cir, 1996) which was referred to by Farlam AJA, as he then was, in the Carolus case at 1141I-J. It was said that:

â The decision rested on two bases. One was that, as the statute in question was procedural, in that it conferred jurisdiction, it could be applied retrospectively. The other basis (at 24) was that the new statute did ânot take away any rights possessed by a party, increase liability, or attach new legal consequences to past conduct. The claimants never had any right to property resulting from illegal gains, and their alleged drug smuggling and money laundering have always carried criminal penalties.ââ (My emphasis) This proclamation also has the effect of attaching new legal consequences to the past conduct of the second Applicant of appointing or designating the first Applicant as kgosi in circumstances where the second Applicant did not have the constitutionally conferred authority to appoint him. It seeks to validate the unlawful appointment of the first Applicant and to prejudice the Respondent in his right or at least legitimate expectation to be unseated through the means which is sanctioned by our Constitution and the law.

This proclamation also has the effect of attaching new legal consequences to the past conduct of the second Applicant of appointing or designating the first Applicant as kgosi in circumstances where the second Applicant did not have the constitutionally conferred authority to appoint him. It seeks to validate the unlawful appointment of the first Applicant and to prejudice the Respondent in his right or at least legitimate expectation to be unseated through the means which is sanctioned by our Constitution and the law.

[22] It is important to bear in mind that this extraordinary provincial gazette was necessitated by the Respondentâs consistent challenge to the authority of the second Applicant to administer the Act. He challenged him on the basis that s 137 of the Constitution was not complied with when the power to administer the Act was transferred to him in that no proclamation to that effect was promulgated by the Premier, and also that that function was not properly transferred from the Department of the Premier to the Department of Traditional and Corporate Affairs. As a result the proclamations are on all fours with the concerns raised by the Respondent in case No. 810/2000 and the extraordinary provincial gazette in question carries a general notice which announces the dissolution of Barolong Boo-Ratshidi Traditional Authority and reconstitution thereof. The retrospective operation of the proclamation has far-reaching implications. It seeks to transfer powers from the Department of Developmental Local Government and Housing, to the Department of the Premier with effect from 13 October 1999, to transfer the same powers from the Department of the Premier to the Department of Traditional and Corporate Affairs with effect from 01 November 2000 and to thereby cure the invalidity of the first Applicantâs appointment, and regularise the unlawful termination of the Respondentâs role as de facto acting chief with effect from 08 December 2000 and the appointment of Mr Komane, etc. I think that retrospectivity should be resorted to when it is strictly necessary and when the author of the retrospective act does not have another convenient option. In this case the government had other options to retrospectivity. As soon as it realised that the power was not properly transferred to the second Applicant and that the first Applicantâs appointment was invalid it could have caused the MEC, of Developmental Local Government and Housing, who still had the power to administer the Act, together with the Premier, to designate the first Applicant as kgosi and this would have been valid. Alternatively, since he does not appear to have taken over as kgosi at least before 14 February 2001 as appears from Annexure âO1M3", the first Applicantâs appointment could have been withdrawn by government and he could then have been appointed after the publication of the proclamation. It is important to remember that it is the first Applicant and government, as represented by the second Applicant, who initiated these proceedings. At the time of the launching of this application they had already been warned by the Respondent of the constitutional problems that surround the second Applicantâs authority to administer the Act. When the constitutional issue was again raised, government should have seriously reconsidered its position and withdrawn the application. This is one of the few options it had regard being had to the fact that the second Applicant was pre-warned. The retrospective operation of the proclamation therefore appears to me to be unjustified and radical regard being had to how it affects the interests of other members of the tribe, the Respondent in particular, and the options the government had. The proclamation should therefore be treated as pro tanto prospective in respect of this matter. No injustice would result from this finding. The other ancillary consideration is of course that in terms of s 237 of the Constitution all constitutional obligations, or responsibilities I may add, must be discharged diligently and without delay. The delay in the publication of the proclamation was rather too inordinate. [23] I have already found that the appointment of the first Applicant as kgosi is null and void ab initio. It is therefore just as good as never having been made with the result that the retrospective operation of the proclamation would not have cured or validated such appointment anyway. His appointment is, therefore, liable to be set aside irrespective of whether or not the retrospective operation of the Act has the effect of affecting the Respondentâs vested rights adversely. [24] The first Applicant is not entitled to occupy the tribal offices owing to the invalidity of his appointment. He therefore lacks the right that the interdict applied for was intended to protect. The appointment of the first Applicant as kgosi must, therefore, be set aside and his application must accordingly be dismissed with costs. In the light of the view I take of the matter, it will not be necessary to deal with the other requirements of an interdict suffice it to say that it is doubtful whether the Applicants have shown a reasonable apprehension of harm.

[23] I have already found that the appointment of the first Applicant as kgosi is null and void ab initio. It is therefore just as good as never having been made with the result that the retrospective operation of the proclamation would not have cured or validated such appointment anyway. His appointment is, therefore, liable to be set aside irrespective of whether or not the retrospective operation of the Act has the effect of affecting the Respondentâs vested rights adversely.

[24] The first Applicant is not entitled to occupy the tribal offices owing to the invalidity of his appointment. He therefore lacks the right that the interdict applied for was intended to protect. The appointment of the first Applicant as kgosi must, therefore, be set aside and his application must accordingly be dismissed with costs. In the light of the view I take of the matter, it will not be necessary to deal with the other requirements of an interdict suffice it to say that it is doubtful whether the Applicants have shown a reasonable apprehension of harm.

[25] The application for an interdict is accordingly dismissed and the rule nisi is discharged. The counter-application succeeds, and the Applicants are ordered to pay costs to the Respondent jointly and severally, the one paying the other to be absolved. M.T.R. MOGOENG JUDGE OF THE HIGH COURT APPEARANCES DATE OF HEARING : 15 MARCH 2001 DATE OF JUDGMENT : 29 MARCH 2001 COUNSEL FOR APPLICANT : ADV H. LEVER SC (with him ADV SNYCKERS) COUNSEL FOR 1ST & 2ND RESPONDENTS : ADV S.E MONARE ATTORNEYS FOR APPLICANT : STATE ATTORNEY ATTORNEYS FOR RESPONDENTS : S.E. MONARE & PARTNERS

M.T.R. MOGOENG

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 15 MARCH 2001

DATE OF JUDGMENT : 29 MARCH 2001

COUNSEL FOR APPLICANT : ADV H. LEVER SC (with him ADV SNYCKERS)

COUNSEL FOR 1ST & 2ND RESPONDENTS : ADV S.E MONARE

ATTORNEYS FOR APPLICANT : STATE ATTORNEY

ATTORNEYS FOR RESPONDENTS : S.E. MONARE & PARTNERS

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