Nesengani and Others v Chairperson of the Davhana Royal Council and Others (204/2008) [2016] ZALMPTHC 19 (19 September 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(THOHOYANDOU LOCAL DIVISION.)

CASE NO: 204/2008

DATE: 19th September 2016

Reportable: No

Of interest to other judges: No

Revised.

In the matter between:

DOVHELA PHANUEL NESENGANI 1st APPLICANT

DAVHANA/ NESENGANE ROYAL FAMILY 2nd APPLICANT

RAMAVHOYA ELVIS DAVHANA 3rd APPLICANT

and

CHAIRPERSON of the DAVHANA Royal Council 1st RESPONDENT

(Vha-Musanda vho Mulweli Khamusi Davhana)

DAVHANA ROYAL COUNCIL 2nd RESPONDENT

NESENGANE JULIUS DAVHANA 3rd RESPONDENT

DAVHANA DAVID DAVHANA 4th RESPONDENT

THE PREMIER OF LIMPOPO PROVINCE 5th RESPONDENT

JUDGMENT

MG PHATUDI J:

[1] INTRODUCTION:

1.1 This is an application brought in terms of the provisions of Rule 53 of the Uniform Rules of Court (“Uniform Rules”).

1.2 The Applicants seeks an Order reviewing and setting aside the decisions of Second and Fifth Respondents respectively, in terms of which the Fourth Respondent was identified by the Second Respondent and subsequently recognised by the Fifth Respondent, as a Senior Traditional Leader of Davhana Traditional Community. ("Khosi").

1.3 The Applicants also seek an Order that pending finalization of this application, further investigation and/or implementation of the decision of the Second Respondent with regard to identification of the Fourth Respondent and his installation as such be stayed. A costs Order against the Second, Fourth and Fifth Respondents is sought against them, respectively the one paying the others to be absolved.

1.4 This matter which is opposed, was comprehensively argued before Ebersohn AJ on the papers on 29 August 2011. In his Judgment dated 07 September 2011, the Learned Acting Judge, having considered the matter, expressed the view that the dispute would not be resolved on the papers and referred the matter for hearing of evidence viva voice in terms of Rule 6 (5) (g) of the Uniform Rules.[1]

1.5 In doing so, the court directed, inter alia, that the parties are required to hold a Pre-trial conference in terms of the applicable Practice Directives of this Division, and settle the Minutes thereof before the appointed hearing date.

1.6 The matter is opposed by the Second and Fourth Respondents. The Fifth Respondent however opposes the matter only in so far as a costs Order is sought against it. The Fifth Respondent in essence does not oppose the application, hence no notice to oppose was delivered. It abides the decision of the court.

1.7 At the commencement of the hearing, Counsel for the Applicants placed in on record that it abandons its claim against the First and Third Respondents who, at any rate made confirmatory affidavits in which both confirmed their intention not to oppose the present application.[2]

1.8 Furthermore, at the inception of the proceedings both counsel confirmed that the minutes of the Pre-Trial Conference dated 20 July 2012 and signed by the parties` legal representatives, be and form the basis of the issues identified therein for determination by this court.

1.9 The issues which in terms of the said minutes remain in contestation are mainly the following:-

1.9.1 Whether or not the Khadzi and Ndumi who performed the identification, did so in consultation with the Royal "Family" or the Royal "Council",

1.9.2 Whether or not the foregoing identification at a meeting held on 08 April 2007, was performed by the designated Khadzi one Tshamano Melta Mutavhatsindi (born Davhana) and if so, whether or not this was done in consultation with the designated Ndumi and in consultation with the Second Respondent, the Royal council, and

1.9.3 Furthermore, whether or not the said identification as performed at the said meeting of the Royal Council by the properly designated Khadzi in consultation with a properly designated Ndumi was responsive to the custom of Davhana Traditional Community.

[2] The primary issue for determination accordingly is whether was the identification of the Fourth Respondent performed strictly in accordance with applicable customary law practices and tradition of Davhana Royal House and ,therefore, procedurally regular and lawful in terms of the precepts or tenets of the provisions of Limpopo Traditional Leadership and Institutions Act, 2005[3] ("The Act").

[3] I propose to return to the interpretation of the provisions of the said Act later in the course of this Judgement.

[4] I now deal summarily with the applicants' evidence. Mr. Mulweni Khamusa Davhana testified on behalf of the applicants. His evidence was briefly the following:-

4.1 He testified that he was party to the identification of the Fourth Respondent in his capacity as Chairperson of Davhana Royal Council, the Second Respondent in this matter.

4.2 The process of identification of an heir apparent or a successor to a vacant position of a Senior Traditional Leader (“Khosi”) at Davhana Royal House is performed by the Royal Family as opposed to the so-called Traditional Council. The performance of identification

to fill in such a position is, in accordance with Venda law and custom, done by a designated Khadzi in consultation with Ndumi.(younger brother to the “Khosi” (Senior Traditional Leader) who also acts as deputy of the “Khosi”. The two of them, Khadzi and Ndumi jointly agree and identify an heir apparent as a successor, whereafter they summon a meeting of the Davhana Royal Family which formalise the identification process

4.3 He further testified that the so-called Royal Council is not, in terms of prevailing customary law and custom of his traditional community, competent to identify an incumbent as a successor. If is a function set apart and performed by a Khadzi and Ndumi and concretized by the Royal Family in a joint sitting.

4.4 He stated that the Royal “Council” is a "Khoro" (“Council”) that performs certain administrative duties on behalf of the Royal Family. It is, however, constrained to perform issues of identification of an heir apparent according to prevailing custom and tradition.

4.5 The witness described a Khadzi as a sister of the Senior Traditional Leader (“Khosi”) and when performing installation of “Khosi” (Chief) is covered together with the successor with a blanket. A Khadzi is entrusted with ceremonial duties and performance of rituals when identification is performed in conjunction with Ndumi.

4.6 A Makhadzi on the other hand, is the “Khosi’s” sister, but could be either his younger or elder sister who is not necessarily covered with a blanket upon or during a successor's installation. He testified that Makhadzi is, therefore, not endowed with ceremonial identification of an heir in terms of custom.

4.7 He testified further that the identification of the Fourth Respondent was done following a meeting of the Second Respondent held on 08 April 2007. The proceedings of that Royal Council Meeting were minuted.[4]

4.8 Referring to Paragraph 5.1 of the Minutes he confirmed that it was he who suggested the name of the Fourth Respondent as a successor. All top six Royal Council members supported his nomination and, in addition, the traditional leadership dispute which was already lodged with "Nhlapo Commission" was in the same breathe also withdrawn.

He stated further that the Ndumi Julius Davhana,Third Respondent passed the responsibility of identification over to him after he (“Julius”) declined to effect the identification. He confirmed that he was not for that process a qualified Ndumi competent to perform the duty imposed, and lacked authority to have done so.

4.9 The rightful Khadzi Tshamano Melta Mutavhutsindi (born Nesengani/Davhana) was not present at the relevant meeting. The Makhadzi Masindi Ramanyimi who also lacked authority to identify an heir, refused to perform the duty at hand. According to him the purported identification of the Fourth Respondent was flawed as it was effected by members who otherwise were not in terms of customary law and prevailing custom, competent to have discharged that role as a Royal Council.

[5] He further said that pursuant to the letter addressed to the manager: Traditional Affairs in Thohoyandou dated 13 April 2007[5], and the Minutes of the Second Respondent, the Fifth Respondent recognised the Fourth Respondent as a Senior Traditional Leader for Davhana Traditional Community.[6] It was the letter addressed to General Manager in the office of the Fifth Respondent dated 02 May 2007, that triggered Fourth Respondent's recognition by the Fifth Respondent as a Senior Traditional Leader.

[6] Aggrieved by the effected recognition, the applicants launched an urgent interdict to restrain the intended coronation of the Fourth Respondent, in as much as the Royal Family was not advised on the matter befrorehand

[7] The First Applicant had rebuked the witness (Rhamusi Davhana) for having sought to inaugurate the Fourth Respondent without the knowledge and or consent of the Royal Family.

[8] He went on to justify as to why he and Third Respondent elected not to oppose the present application. This he said was because he on hind sight, came to realise that his conduct in the identification process of Fourth Respondent was both irregular and unwarranted.

[9] He again reiterated that the Fifth Respondent was prompted by the Royal Council's actions as alluded to when it effected Fourth

Respondent's recognition to the position.

[10] Extensive cross-examination ensued and at its conclusion, the Applicants closed their case, and no further witnesses were called.

THE RESPONDENTS’ CASE:

[11] The first witness to testify on behalf of the Respondents was Martinus Nesengani Davhana. He had this to say:-

11.1 He resides at Davhana Village and his position in the Royal House is that of Khosi Munene, that is, the chief’s younger brother (uncle in the royal house).

11.2 After the passing of the late Khosi (Chief) Hosias (“osias”) Nesengani Davhana in 1994 a royal family meeting was called to consider a successor. The meeting was held on 28.07.2006. It was summoned by the Khadzi. (sister to the Chief/Khosi who at installation of Khosi are covered with a common blanket together with Khosi. He mentioned one Tshamano Melta Mutavhatsindi as the convenor of the meeting.In doing so, she consulted with Acting Chief and Chairman then Vha-Musanda Vho-Ravele Leonard Davhana, and the Makhadzi's who are drawn from various Wards within the Davhana traditional community and Vhakololo (councillors). Not all royal councillors were present e.g. the First Applicant was absent at the meeting. The reason proffered was

that he often had quarrels with the late Khosi (“Osias”) and often disputed/challenged his status as Khosi.

11.3 At the meeting, the Khadzi and Ndumi removed themselves from the proceedings to caucus about some 50 metres away from the vanue. Upon her return the Khadzi: (Melta) informed the royalists present that she identified Davhana David Davhana (Fourth Respondent in the present application) as heir apparent. The alleged identification he said was unanimous.

11.4 Pursuant to the identification aforesaid, a certain form (annexure "A") was completed and signed in which the Fourth Respondent was "appointed" a "Chief" of Davhana Community.

11.5 He denied that the purpose of attending the meeting held at a certain church premises on 08.04.2007 was for purpose of identifying a successor. His role, he said, was to make peace with Mulweni Vhamusi Davhana ("Mulweni") as mandated by the royal council.

He further said that a successor was already selected the previous year in 2006.

11.6 He confirmed, however, that although his signature appeared on the letter to government dated 13.04.2007, it was intended solely to lure co-operation of Mulweni during the scheduled coronation of the Fourth Respondent. Evidence-in-chief was put to a rest at this point. Cross-examination ensued, where after re-examination followed.

[12] The next witness called was Tshamano Melta Davhana. Her evidence, in short, was the following:-

12.1 She resides at Davhana Village, and was related to the late Khosi Hozias “Osias” Davhana. She is also a Khadzi, and at his installation,(Hozias) Vho-Nesengani Julius Davhana (Third Respondent) was the relevant Ndumi.

12.2 In terms of applicable custom of the Masingo's clan, at Davhana, her role is to identify or point out a successor to the Khosi’s, vacant position.

12.3 In doing so, the Khadzi acts in consultation with Ndumi whereafter a royal council meeting is convened to pronounce an heir apparent. This process was done during July 2006 already, according to her evidence. She called all relevant customary structures entitled to attend the meeting. At that meeting, the Fourth Respondent was identified, and the decision was supported by the royal councillors present thereat.

12.4 Furthermore, a decision was also taken that a formal letter be directed in the local offices of government (“now Cogsta”) to inform the officials on the preparations of the forthcoming installation ceremony.

12.5 She, like the previous witness, denied knowledge of the meeting held at a certain church premises in or during April 2007 to point out a chief's (“Khosi”) successor. However, she confirmed having tasked the Martinus Nesengani to pacify Mulweni to co-operate with the installation process planned.

That, in a nut -shell, summarises her evidence in Chief. She too was cross-examined,where after re-examination followed.

[13] Ravhele Leonard Davhana, the third witness, also gave evidence. He stated that:-

13.1 He resides at Mpheni Village within Davhana Traditional Community of which he is a Headman since 1994. He is also a Chairman and member of Davhana Royal Council, and not Mulweni as he alleged to be.

13.2 He was nominated Acting Chief after the passing on of late Khosi (Hosias or “O.K" as he was commonly known) between 1994-2007.

13.3 He testified that the meeting of 23.07.2006 held at Davhana Royal House was convened by the Khadzi, Melta Tshamano at her instance. It was attended by all relevant customary structures forming the Royal Council.

13.4 At that meeting, Khadzi after consultation with Ndumi (Julius Davhana) returned and pronounced the Fourth Respondent as a successor to the deceased Khosi. The meeting also resolved to apprise the Local Government Department's Officials about the process followed, and then filled in a certain form which he personally completed and signed.

13.5 In doing so, he denied that he was "appointing" a successor, as that role was a responsibility entrusted to a Khadzi in terms of custom, which role she has already performed in 2006.

13.6 He stated that the relevant form after being completed and signed by him, it was submitted to the Fifth Respondent (Premier) for recognition of the "appointed" incumbent as a chief or acting chief.

13.7 Pursuant to the submission of the said form the Fifth Respondent, a recognition letter was received from the local office of traditional affairs. According to one Mr Mahada, the form was directed to the Fifth Respondent's office for consideration.

That constituted this witness's testimony. He too was exposed to cross-examination, and re-examination that ensued.

[14] It was at this stage that the Respondents' case was closed with no further witnesses called to testify.

[15] The crisp questions for determination are three-fold, namely, whether:-

(a) The identification of the successor by the Royal Council in its meeting held on 23-07-2006 was responsive to the tenets of custum applicable at Davhana Traditional Community, and if so,

(b) Was the identification performed, in fact actuated the Fifth Respondent to have issued the Certificate of Recognition to the Fourth Respondent, and that if so,

(c) Whether the said recognition was effected in terms of applicable legislative framework.

[16] I propose to scrutinize each of the issues referred to herein in the course of this Judgement. Before I do so however, I consider it apposite to pay brief attention to the issues the partie`s legal representatives minuted during their Pre-Trial Conference held and signed on 20 July 2012.

I must remark that the said pre-trial conference was held not only in compliance with the provisions of Rule 37 (6) of the Rules, but also pursuant to an Order of this Court made by Ebersohn AJ on 29.08.2011. The said minutes were identified and incorporated

as part and parcel of the record of the present proceedings.[7] If the respondents had heeded to common cause issues during the hearing, a vast variety of disputes would have been whittled down and saved time on peripheral issues.

[17] COMMON CAUSE ISSUES IDENTIFIED:

During their pre-trial conference, the parties' legal representatives identified the following common cause issues:-

17.1 The Fourth Respondent was identified as the rightful successor of the "Khosi" by the Second Respondent. (Davhana Royal Council) on 08 April 2007.

17.2 That, the identification aforementioned was submitted by the Second Respondent to the Fifth Respondent through the office of the Local Traditional Affairs (now Coghsta) under cover of a letter dated 13 April 2007.

17.3 The Fifth Respondent as a result, recognised the Fourth Respondent as a successor by way of a recognition certification issued to him.

17.4 Further that, the proper Khadzi to point out the rightful successor is one Tshamano Meita Mutavhantsindi.

17.5 Further that, the court is only required to determine the question whether or not the identification process was procedurally regular in terms of custom. The issue of the merits as to who the rightful heir is was therefore left outside, and

17.6 Further that, in terms of the provisions of Section 12 (a) (i) of Act 6 of 2005 ("The Limpopo Act") it is the "Royal Family" that must perform the identification process.

[18] At issue was the question whether or not the Khadzi and Ndumi perform the identification in consultation with the "Royal Council" or "Royal Family", and whether the proper

identification during the meeting aforesaid, was done by a proper Khadzi and a proper Ndumi after consultation with the Royal Family.

[19] APPLICABLE CUSTOM AND LEGAL FRAMEWORK

19.1 I consider it necessary to first examine closely whether there has been compliance with custom that obtains at Davhana dynasty when the alleged identification was performed. If it be found that prevailing custom was followed, the next leg of inquiry is be whether that identification has a bearing on the Fifth Respondent's decision when be recognised the Fourth Respondent.

19.2 It appears plain that the inner circle comprising mainly the royalists is convened by a Khadzi in consultation with a proper Ndumi. It is at this meeting where a Khadzi points out or announces a successor to the Khosi (Senior Traditional Leader) whose position shall have been vacant. The announcement which is usually confirmed by Ndumi is made in the presence of other members of the royal house, entitled to attend the meeting according to their customary structures' protocol within the inner cycle.

19.3 The customary ritual observed is that at the installation of Khosi, the Khadzi is covered with a blanket with the heir apparent who is to be a new successor. This ritual is part of a ceremonial function

observed during installation of a successor, and not necessarily during the identification of a successor. This ceremony usually takes place within the premises of the royal house ("Musanda"). This ritual distinguishes the status of a Khadzi competent to identify a successor as opposed to Makhadzi.

19.4 Once this customary ritual or practice had been accomplished, the next procedural step is for the royal family to inform the Premier of the province concerned of the particulars of the person identified to fill the position, and to furnish the reasons for the identification of the relevant incumbent.

19.6 In the present case, the first question for consideration is whether the identification of the Fourth Respondent on 23.07.2006 was done in accordance with custom and by recognised customary structure, regard been had to applicable customary law prevailing within the Davhana Traditional Community.

[20] Following the testimony of both Tshamano Meita (Melta) Mutavhatsindi (nee. Davhana) and Ravhele Leonard Davhana, proceedings that unfolded from the meeting of the royal family on 23.07.2006 were, in my opinion, in accordance with custom applicable to the Vha-Singo's of the Davhana Traditional Community. This is particularly so that the main Khadzi, Tshamano Meita Mutavhatsindi ("Meita or Melta") the eldest daughter of the late "Khosi” Matamela King, Davhana acted as a Khadzi during the installation of the late Khosi Ndaleni Hosias ("Ozias"/OK") Davhana, for whose succession battle this application relates.

Furthermore, it was also at this occasion that the Third Respondent Nesengani Julius Davhana, acted as Ndumi.

[21] Melta, therefore, in accordance with applicable custom, acts in consultation with Ndumi, in this case, the Third Respondent. Given the rituals and the formulae observed at the identification process, it cannot be contended that custom was not followed and that therefore, the procedure was flawed. To that extent, the court is satisfied that on that aspect, the procedure followed and observed was congruent to the customary tenets applicable to the Davhana dynasty.

[22] The inquiry, however, does not end there. The Second leg of the inquiry is whether the identification so performed on 23.07.2006, in fact actuated the Fifth Respondent to have issued a Certificate of Recognition to the Fourth Respondent. This is the work aorta of the dispute herein.

[23] In its "answering affidavit", the Fifth Respondent ("AA") was clear and succinct to the point.[8] In articulating its understanding of the factual and legal position, it was submitted that:-

23.1“The Fifth Respondent is not competent in law to "identify" a person who qualifies in terms of customary law to become a Senior Traditional Leader ("Khosi") Headman or Headwoman.

23.2 It is the responsibility of the relevant royal family through the relevant customary structure of the traditional community concerned, to notify the customary structure (royal family or council) as the case may be of the identification, where after to "inform" the Fifth Respondent ("Premier") of its decision and the reasons therefore.

23.3 Upon receiving such information, the Fifth Respondent Must in terms of law, recognize the person so identified by the royal family, and issue a Certificate of Recognition to the person so recognized.

23.4 Where, however, there is evidence or an allegation that the identification of a person was no done in accordance with customary law, customs or process, the Fifth Respondent may refuse to issue such a certificate, or refer the matter to the relevant House of Traditional Leadership, and if required, must refer the matter back to the royal family concerned for reconsideration and resolution where the certificate of recognition has been refused”.

[24] In the present case, the Fifth Respondent through its Thohoyandou satellite or local office, was placed in possession of the letter dated 13.04.2007 and the minutes thereof[9].

[25] In terms of this letter and the minutes referred to, the Second Respondent identified the Fourth Respondent as a successor to the "throne" of chieftainship of the late "O.K" Davhana of Davhana Royal House. The identification was effected on 08.04.2007. In the same meeting, (Ndumi) Nesengani Julius Davhana was appointed Acting Chief pending the appointment of a successor. The meeting was attended by the "TOP SIX (6)" of Davhana Royal Council.

[26] Acting on the contents of the letter and the minutes, (Annexures "MD2" and "MD3") one Mr. G.S Mahada, Manager:

Vhembe Support Centre, issued a letter addressed to the General Manager, office of the Premier dated 02.05.2007 [10] in which he was advised of the "agreement of identifying

Mr. Davhana David Davhana" as a rightful successor to his late father Khosi "O.K" Davhana who passed on in 1994. Because of the alleged unity within the royal house, Mr. Mahada, in conclusion thereof said, his office "strongly recommended" the Fourth Respondent to be recognized as "Khosi” of Davhana Traditional Community and for that purpose, be remunerated accordingly.

The relevant letter ("MJP 1") was accompanied by the following annexure:-

26.1 A copy of the letter from Davhana Royal Council dated 13.04.2007 ("MD2")

26.2 A copy of the minutes of Davhana Royal Council held on 08.04.2007 ("MD3")

26.3 An historical and genealogical of background of Davhana Chieftainship, annexure as "MD1"[11], and ancillary supporting documents.

[27] Based on the foregoing considerations, it seems plain that Annexure "MJP1" was written after the receipt by the Thohoyandou office of the letter withdrawing the dispute lodged with the "Nhlapo Commission" in respect of this dispute[12].

[28] According to the deponent to the Fifth Respondents “Answering affidavit,”[13] the (premier) Fifth Respondent, recognised the Fourth Respondent as a Senior Traditional Leader (“khosi”) of Davhana

traditional community in terms of annexure “MJP[14] dated 21.01.2007. In terms of this letter, the executive council per decision no.191/2007, approved recognition of the Fourth respondent as a senior traditional leader (“khosi”) of Davhana traditional community in terms of the provisions of section 12 (1) (b) of Act 06 of 2005 (“The act”).

[29] Attorney acting on behalf of two members of the Second Applicant viz A.R Madia attorneys wrote a letter of objection against the identification and installation of the Fourth Respondent as Khosi. The letter is dated 31.03.2008 and addressed to a structure called Davhana Royal council and office of the Premier. (Annexure “MJP5”

198”AA”).

In their objection it was contended that the said recognition and installation would not only be wrong, but irregular, in that the

so-called “royal council” cannot comprise six (6) members and for that matter, lacked authority to have performed the alleged identification in terms of custom. Conversly, it was said Davhana Royal family is the only legitimate customary structure that is competent to identify a successor. The Davhana “council” also did not consult Davhana royal “family” either on the matter.

[30] It was also contended that if the purported “identification” was recognised by the Fifth Respondent, the recognition would also not be wrongful, but also invalid. The identification flawed as it were, misled the Fifth Respondent in issuing the contested certificate.

[31] It was this “recognition certificate” that triggered the present review proceedings.

[32] On closer scrutiny of the contents of the response proferred on behalf of the Fifth Respondent it admits of no doubt that it was what was contained in annexures “MJP 1” being a letter written by Mr Mahada alluded to herein that actually prompted the Fifth Respondent and its executive council to have decided and/or approved the recognition afore stated.

[33] What is contentious however is whether the “TOP SIX” Davhana royal councillors referred to, were in terms of custom,

entitled to have identified an heir apparent.

[34] From the minutes of the meeting of Davhana Royal council held on 08.04.2007, the following emerges:-

34.1 The meeting was attended by only top six (6) Members of the entire customary structure.

34.2 Its main business to be transacted was to identify an incumbent to succeed the late Khosi “OK” Davhana and to appoint an acting chief of the community.

34.3 (Item 5, annexure “MD3”, “FA”)

The matter was left in the hands of Vho-Makhadzi (as opposed to Khadzi) one Vho-Masindi Ramanyimi to “identify” the incumbent who in turn proposed Vho- Ndumi, Vho-Julius Davhana to lead the process. The chain of responsibility passed from one member to the other in an apparent suggestion that they avoided taking a lead.

34.4 Be that as it may, Vho-Masindi, vho Mulweli Khamusi Davhana (formerly cited as second respondent) finally broke the ice and proposed a successor to the “throne”. He was unanimously supported by Vho Julius Davhana, Vho Masindi Ramanyimi, Vho M.M. N Davhana, Vho J.K. Rasengani and Vho T.J Davhana flowing from the minutes of that meeting, it stands to reason that the process of identification of the fourth respondent was performed by Vho-Mulweni Davhana and not a Khadzi (Melta) in consultation with a designated Ndumi as prescribed by custom.

34.5 It is also apparent that Khadzi Melta was not present at the meeting held on 08.04.2007, something wanting in terms of custom. According to Davhana custom and tradition, any identification of a successor done by any customary structure without Khadzi`s participation therefore would therefore be fatal to the proceedings.

34.6 It is also common cause that by the same token, that the said royal council meeting, it was Mulweni Davhana who also put forward the name of Ndumi, vho-Khotsimunene (the paternal uncle) vha-venda vho-Julius Wesengani Davhana the Third Respondent, in this matter, as Acting Chief of the community of Davhana.

34.7 Further that, the attendance register noted at the meeting[15], reveals the conspicuous assence of khadzi Tshamano meita Mutavhatsindi (Meita) from the gathering.

[35] The top six (6) royal councillors arranged that a certain “annexure A”[16] form be completed in triplicate confirming the “appointment” of the Fourth Respondent as “chief ”of Davhana community ward under chief Davhana. In this document it was also certified that Acting Chief R.L. Davhana has, after consultation with the family of the chieftainship Davhana community in terms of the powers vested in him by section 11 (1) of the Venda Traditional Leaders Administration Proclamation 1991. (Proclamation no. 29 of 1991), appointed Mr. Davhana David Davhana as Chief of Davhana community” to replace late O.K.N Davhana who passed on 11 september 1994. (own

underlining).

This document was signed by one T.J. Davhana and another unidentified co signatory on 26.07.2006. It did not however, reach its intended destination at the Fifth Respondent`s office, and there was no evidence to that affect.

[36] According to Khamusi Davhana, he personally appointed the Fourth Respondent and agreed to withdraw the dispute of chieftainship

previously lodged with the “Nhlapo Commission”. He also testified that he was not himself a Ndumi in terms of custom and consequently, had no authority to have performed the identification, let alone the purported “appointment” of the Fourth Respondent.

[37] In addition, according to the evidence of Khamusi Davhana, it was the letter dated 13.04.2007, addressed to the local office of traditional affairs together with the minutes referred to dated 08.04.2007, that influenced the Fifth Respondent to have issued a recognition certificate in respect of the fourth respondent. His evidence is corroborated by the fifth respondent`s answering affidavit which states at paragraph 6.6.7 at page 191as follows:-

“the decision to recognize the 4th Respondent as a senior traditional leader was made by the 5th Respondent on the basis of a single notification from the royal council of Davhana and it was made before the letter of objection

from the applicant`s attorneys of record marked “MJP5”.”

[38] This said, I am satisfied, on a balance of probabilities that the documentation referred to and as acknowledged by the Fifth Respondent as a “single notification” had in fact prompted the issuing of the offensive recognition certificate in respect of the Fourth Respondent.

[39] This then raises another pertinent question as to whether in doing so, did the Fifth Respondent ever applied its mind, if it did, before issuing the recognition certificate, or if it did , was the decision rational taking into account the relevant legislative precepts’ applicable in instances such as these.

[40] The legislative framework applicable in these instances are the provisions of section 12(1) (a) and (b) and section 12 (2) (a) to (c) of Act 6 0f 2005, as amended. Nationally the provision of section 11 of 41 of 2003 finds application.

[41] Given the facts in this case, it appears that the customary structure that first identified the Fourth Respondent during the meeting held on 23 July 2006 was Davhana Royal “Council”. The Fifth Respondent submitted in its answering affidavit, as part of its input to this impasse, that notification that often leads to recognition has almost always been received from so-called “Royal Councils”, even though the notion is not defined in the relevant provincial legislation.

[42] The Limpopo Act referred to (Act 6 of 2005) defines a “Royal family” as follows:-

Section 1:-

“Royal family” means a core customary institution or structure consisting of immediate relatives of the ruling family within a traditional community, who have been identified in terms of custom, and includes where applicable, other family members who are close relatives of the ruling family”.

[43] Employing ordinary canons of construction to the definition given three ingredients can be extracted, namely:

(a) Core customary institution or structure (comprising immediate relatives),

(b) Identified in terms of custom, and includes,

(c) Other family members (who are close relatives of the ruling family).

[44] The meeting held by one such core customary structure on 23 July 2006 when the Fourth Respondent was identified was, in my view, a “royal family” comprising the core customary institution or structure made of immediate relatives of the Dahvana ruling family, as identified by custom. The meeting included such other family members as Vho-Makhazi, Khadzi, Ndumi, Vho – Khodzimunene and Vhakololo (Senior male relatives) who together from the nucleus of the inner circle of that customary structure. The identification of the fourth Respondent was, therefore, in my view validly done in response to custom or customary law, of Davhana community. The only issue that disturbs the equation however is that, no sufficient evidence was presented in which it could be said, the identification made in 2006, ever reached the Fifth Respondent and, therefore, impacted on its decision. To hold otherwise would be far- fetched and pure conjecture.

[45] As already seen, it was the concession made by the Fifth Respondent that it was in fact the “single notification” of the 13 April 2007 sent by Second Respondent together with the minutes attached there to, that led to its decision. Furthermore Annexures “MJP1” “MJP2” AND “MJP3”, when read together, clearly had an immense influence on the mind the Fifth Respondent when it made the decision to recognize the Fourth Respondent.

Such a decision was taken allegedly before the contents of the letter “MJP2” dated 12 August 2006 was dispatched and or received by the officials of the fifth Respondent. As to why it did not immediately retract such recognition upon eruption of the dispute, is another question.

[46] In view of the fact that the Fourth Respondent was “appointed” by Davhana Royal “Council” as a chief on 26 July 2006 in terms of the outlawed section 11 (1) of the Venda Proclamation 21of 1991,it follows that such purported “appointment” was not only irregular, but also void ab initio. This is so particularly that Limpopo Legislative framework was already in place as in July 2006 when the ill-fated “appointment”

was made by the said royal “Council”.

[47] Furthermore, while Mulweni Khamusi Dahvana`s “identification” of the Fourth Respondent as a successor in the meeting of the royal council on 08 April 2007, was repugnant to established custom for lack of his authority, it leaves no doubt that their decision as a royal family was in itself voidable, until reviewable and set aside by a court of competent jurisdiction. That, the absence of Melta at the subsequent royal council meeting (08.04.2007) was a lapse of customary requirement, cannot be overstated because of the attendant irregularity that struck cancerously at the roots of the purported “appointment” of the Fourth Respondent it follows that the decision that stemmed therefrom, is correspondingly flawed and therefore, liable to be set aside on review.

[48]. There is living case law in this Division that governs the legal requirements for the recognition of a successor where a vacuum exists within a royal family. Such case law was moulded around prescribed legislative regime. This court shall where necessary, draw guidance from the relevant precedents.

[49]. Counsel for the Applicants, Adv. J.S.Maake, aptly isolated the salient factual points that discredited the meeting of the Royal Council held on 08.04.2007 at which the Fourth Respondent was identified as the rightful successor. They are the following:-

49.1. Khamusi Mulweni Davhana, who was then allegedly the chairperson of Second Respondent, was he who actually “identified” the Fourth Respondent as a successor.

49.2. His evidence, largely corroborated by the Minutes of such a meeting, (“MD3”) was to the effect that such meeting was convened by the Second Respondent (“Davhana Royal Council”) as opposed to Second Applicant.

49.3. In terms of Davhana custom, the process of identification of a successor during the sitting of the Royal family assembled for that purpose, vests squarely in the hands of a Khadzi in consultation with Ndumi. The designated Khadzi (“Meita”) was not present at that meeting, even though Ndumi Nesengani Julius Davhana was present, it was he who identified a successor, despite the fact that he was neither Ndumi nor competent to have done so. To that extent, the entire process was thrown into disarray, and nullified the entire identification process,

49.4. Following the ill-fated process, by a letter dated 13.04.2007, addressed by the Second Respondent to the Manager: office of Traditional Affairs Thohoyandou, attached to the Fifth Respondent’s Regional Office, to which the Minutes referred to, were attached, the latter office was notified of the identification process, with a request that the Fifth Respondent proceed to recognize the Fourth Respondent. In essence, this is how that it came about that the Fifth Respondent recognized the Fourth Respondent.

[50]. Counsel for Second and Fourth Respondent, attorney Mr. S.O Ravele, contended on their behalf that on 23.07.2006, members of the Davhana Royal Family held a meeting to identify a successor to late “O.K.Davhana. Khadzi vho Meita Mutavhatsindi identified Fourth Respondent as an heir apparent. This was done in consultation with Third Respondent who was Ndumi of the late Khosi “OK” Davhana.

[51]. Subsequent thereto, a letter dated 26.07.2006 was directed to office of the Fifth Respondent in which a request was made to “install” the Fourth Respondent as a chief of Davhana Traditional Community. Attached to the said letter was “Annexure A” form[17], which was allegedly directed to the Fifth Respondent‘s local Regional office.

[52]. It is however, a moot point whether or not such a letter together with annexures thereto had in fact been received by the relevant support office, let alone the headquarters of the Fifth Respondent. The manner of service of such documents also remained obscure. In fact, to sum it all, none of the witnesses could specifically confirm if indeed the Fifth Respondent had in fact received such information. To that extent, counsel for Respondents could not be heard to argue that the relevant documentation was, as a matter of fact, received by the Fifth Respondent and that as a result it had therefore, influenced its decision to have recognised the Fourth Respondent as a successor.

[53]. The submission that the fact of recognition by the Fifth Respondent of the Fourth Respondent is not in dispute, is a half-truth.

The crisp issue is which of the two “Royal Councils” ’meetings (2006 or 2007) actually triggered the Fifth Respondent to have issued the certificate or letter of recognition in respect of the Fourth Respondent.

[54]. According to the exposition given on behalf of the Fifth Respondent [18]in its affidavit, it was the “single notification” encapsulated in “MJP1”, that actuated the Fifth Respondent to issue a recognition certificate in respect of the Fourth Respondent. It is the response proferred by the Fifth Respondent that settled the alleged dispute.

[55]. Although it appears that since the recognition aforementioned was effective from 07.12.2007, it is worthy to mention that the decision to recognize the Fourth Respondent remain extant until reviewed and set aside by a Court of law by way of judicial review proceedings as it is presently the case.

[56]. Counsel for the Respondent’s submission at Paragraph 2.15 of its heads of argument seems self-defeating when it is contended

that:-

Paragraph 2.15:

“In the present matter, the First Respondent in identifying the Fourth Respondent did not improperly exercise his power. He simply possessed no conferral of powers to identify the traditional leaders.”

This submission, in my view, is not in contrast with the Applicant’s version in the main. It actually consolidates the fact that Mulweli Khamusi Davhana was not entitled, in terms of prevailing custom, to have “identified” the Fourth Respondent during the royal council meeting held on 08.04.2007. It was this purported identification that was fraught will illegality and therefore invalidated the process so to speak.

[57]. The power exercises by the Fifth Respondent in deciding on issues

Of the recognition of traditional leaders, as defined, falls squarely within the province of administrative justice governed by the Promotion of Administrative Justice Act 2000[19] (“PAJA”) read with the Constitution of the Republic of South Africa Act 1996.[20] Such decisions are reviewable under normal judicial review proceedings. This Court is therefore at large to intervene.

[58]. Counsel for the respondents also had a quarrel with the affidavit deposed to on behalf of the Fifth Respondent in which both counsel termed it a “clarification affidavit”. This affidavit came about as a result of the Court Order ordained by Acting Justice C.B.Mann on 13.07.2009. In terms of this Court Order, the learned Acting Justice Mann said that:-

Prayer 2:

“That should the Fifth Respondent wish to file any affidavit in the matter; he shall do so by not later than 11 August 2009.” That is precisely what it did.

[59]. I must remark that it was the contents of this so-called “clarification affidavit” that had thrown light as to the circumstances that led the Fifth Respondent to have effected its decision as it did. Without its existence, one would not have had the benefit to gauge as to how it came to that decision which is the nub of this review matter. Consequently, I find therefore that the reliance by the respondents on the principle in Southern Sun Hotels Interests (Pty) v CCMA & Another[21], does not constitute a “reliable defect”, merely because the Fifth Respondents did not testify. In fact the Fifth Respondent

interjected merely to shed more light on the matter, rather than to opposing the application thereby sparing the costs of opposition.

[60]. In Ouderkraal Estates (Pty) Ltd v The city of Cape Town & Others[22], the Supreme Court of Appeal per Howie P and Nugent JJA, had occasion to consider the question whether or in what circumstances, an unlawful administrative act might simply be ignored, and on what basis the law might give recognition to such acts. The Court remarked at Paragraph 26 of the Judgment as follows:

“[26].

For those reasons it is clear, in our view, that the Administrator’s permission was unlawful and invalid at the outset… But, the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully …until the Administrator’s approval (and thus the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside”.

[61]. The apparent anomaly that an unlawful act can produce legally effective consequences stems, in my view, from the latin Maxim Omnia praesumuntur rite esse acta. (presumption of validity of administrative acts). It is not strange that it has been argued in other circles that unlawful administrative acts are voidable merely because they have to be visited with nullity proceedings.

[62]. It follows, therefore, that an administrative act is still an act capable of producing legal results as it bears no label of invalidity upon its forehead. Save where the necessary steps are initiated at law to establish the cause of nullity, and to get it set aside or upset, it will remain effective and extant for its purported purpose as the most unimpeached acts.

[63]. In a matter whose facts are analogous to the present application, Makgoba J ( as he then was) had occasion to consider whether the decision by the First Respondent (“Premier Limpopo Province”) to recognize the Third Respondent (one Ngoako Isaac Leboho) as a Senior Traditional Leader and Kgoshi of Bahananwa Traditional Authority was done in compliance with the provisions of Act 6 of 2005, and whether its decision to issue a certificate of recognition to Third Respondent was in terms of applicable legislation, and rational to the information at his disposal.[23]

[64]. The Learned Judge having analysed the merits of the review application before him, and the relevant legislative framework,

remarked as follows:-

[“33]

It needs to be pointed out that as a matter of law the Premier does not have a discretionary power in regard to recognition of a Kgoshi and that once the relevant jurisdictional conditions are present, he is in fact compelled by law to formally recognise one as kgoshi and to formally issue him with a certificate of recognition.”

[65]. At paragraph 34, the Learned Judge continued as follows:-

[“34].

“ The question that falls to be decided is whether the First Respondent (the Premier) in recognising and issuing a certificate of recognition to the Third Respondent (Ngoako Isaac Leboho) complied with the letter and spirit of Section 12 of the Limpopo Traditional Leadership Act.”

I must remark although orbiter that the crisp issues that preceded the review application in that instance, were already disposed of by Raulinga J under Case No: 37898/2007 (“Gauteng Division”). In essence, the matter was res iudicata. The Court concluded that in that matter, the procedure followed by the Premier then was correct and could not be disturbed. The review application was dismissed with costs.

[66]. The principles enunciated in the preceding case regarding the procedure, identification and qualification of a successor, and also the recognition by the sitting Premier, were considered followed and applied by MG Phatudi AJ ( as he then was) in Sepadi & Another v The Premier of Limpopo Provincial Government & Others[24].

[67]. On a conspectus of the facts in this matter, I am satisfied on balance of probabilities that the decision of the Fifth Respondent in having recognised the Fourth Respondent based on the identification by the Second Respondent in its meeting held on 08.04.2007, was irrational, not being supported by credible information at its disposal. In short the Fifth Respondent did not properly apply its mind, if it did, to the facts and applicable legal framework before him before it could issue the disputed certificate of recognition.

His decision was clearly repugnant to the principle of rationality, the Rule of law and administrative Justice thus invalid. For the reasons outlined above, the application for review ought to success. I accordingly pronounce an order as follows:-

1. The decision of the Second Respondent in terms of which the Fourth Respondent was identified as a Senior Traditional Leader (“khosi”) in its royal “council” meeting held on 08 April 2007,declared invalid and is reviewed and set aside,

2. The decision of the Fifth Respondent in terms of which the Fourth Respondent was recognized as a Senior Traditional Leader (“Khosi”) is declared invalid and is reviewed and set aside,

3. That, the Fifth Respondent is directed and ordered to cause a meeting of all relevant members of the Second Applicant, (“Davhana/Nesengani Royal Family”) to be convened as a matter of urgency to properly identify a successor to late Khosi OK Davhana in line with Act 4 of 2005.

4. That Second Applicant must thereafter within 30 days inform the Fifth Respondent in writing of its Resolution and Minutes of the meeting identifying a successor.

5. Further that, the Second, and Fourth Respondents are jointly and severally to pay the costs of application on party and party scale the one paying the other to be absolved, such costs to include costs attendant upon the employment of counsel.

_________________________

M.G. PHATUDI J

JUDGE OF THE HIGH

COURT OF SOUTH AFRICA, LIMPOPO DIVISION,

POLOKWANE

REPRESENTATIONS

1. Counsel for Applicants : Adv. J.S Maake

Instructed by : S.A.R. Madia

Thohoyandou

2. Attorneys for 02nd and 04th Respondents: S.O. Ravele

3. Date heard : 20.06.2016 to 22.06.2016

4. Date Delivered : 09.2016

[1] Uniform Rules of Court

[2] Annexures “MD6” and “MD8” at Pp 120 and 135, Vol I, Record.

[3] Act 6 of 2005.

[4] . Annexure “MD3”– pp 26-29, Vol I,Record.

[5] Annexure “MD2”.

[6] Para 5.1, 5.2 P187, 5th Respondent`s “AA”.

[7] Pp 292-295, Vol. iii-Bundle. (Pre-trial) minutes”)

[8] Pp 186-192, Vol, “AA” (5th Respondent)

[9] P24, Vol I,” FA” –“MD” and “MD” ANNEXTURE TO “FA”.

[10] Annexure “MJP 1” P193 Paginated Index. Vol II

[11] Annexure “MD1”, P23 “FA”.

[12] Annexure “MJP3 P196, “FA”

[13] P188,Vol, “AA” Paginated Index, Para 506

[14] P197, Vol II,”AA” & P198, Vol II,AA

[15] Annexure “MD4” P29 volI, Paginated index

[16] PP50-52,Vol I, “FA“

[17] Trial Bundle Vol I, p.83 et seq

[18] Trial Bundle Vol II, P191.

[19] Act 3 of 2000.

[20] Act 108 of 1996, as amended.

[21] 2010 31 ILJ P452

[22] 2004(6) SA 222 (SCA)

[23] Case No: 57191/2011, delivered on 15.04.2014- marked “Reportable”)

[24] Cases No: 1863 & 1864/2014, delivered on 13.10.2015(Marked “reportable)