Nesengani Royal Family and Others v Douglass and Others (148/2020) [2022] ZALMPTHC 9 (14 November 2022)

FLYNOTES: FLYNOTES: TRADITIONAL LEADERS AND GENDER DISCRIMINATION Customary law – Traditional leader – Exclusion of females who would otherwise qualify – Gender discrimination – Equality – Fair administrative action – Appointment of traditional leader set aside – Royal family to assemble to identify appropriate person taking into account gender imperatives of the Constitution.

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, THOHOYANDOU

CASE NO: 148/2020

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

REVISED.

14/11/2022

In the matter between:

NESENGANI ROYAL FAMILY 1st APPLICANT

NESENGANI SARAH MUTANGWA 2nd APPLICANT

NESENGANI THIFHELIMBILU 3rd APPLICANT

and

NESENGANI FHATUWANI DOUGLASS 1st RESPONDENT

THE CHAIRPERSON OF THE LIMPOPO 2nd RESPONDENT

PROVINCIAL COMMITTEE OF COMMISSION

ON TRADITIONAL LEADERSHIP DISPUTE AND CLAIMS

THE EXECUTIVE OF LIMPOPO PROVINCIAL 3rd RESPONDENT

HOUSE OF TRADITIONAL AFFAIRS

LIMPOPO PROVINCIAL HOUSE OF 4th RESPONDENT

TRADITIONAL LEADERS

VHEMBE LOCAL HOUSE OF TRADITIONAL LEADERS 5th RESPONDENT

MEC: LIMPOPO PROVINCIAL DEPARTMENT 6th RESPONDENT

OF CO-OPERATIVE GOVERNANCE,

HUMAN SETTLEMENT AND

TRADITIONAL AFFAIRS

THE PREMIER: LIMPOPO PROVINCE 7th RESPONDENT

NESENGANI TRADITIONAL COUNCIL 8th RESPONDENT

NESENGANI TRADITIONAL COMMUNITY 9th RESPONDENT

KING OF THE VHAVENDA NATION

10th RESPONDENT

NESENGANI MULOMONI ALFRED

11th RESPONDENT

CHAIRPERSON: LIMPOPO HOUSE OF

12th RESPONDENT

JUDGMENT

NAUDÈ-ODENDAAL J:

INTRODUCTION:

[1] Customary Law and Woman in Leadership Positions! In a report of the Executive Committee: House of Traditional Leaders dated 29 January 2019 sent to the Premier the following was stated:-

“On 13 February 2018 the Executive Committee met with the Nesengani Royal Family at the Nesengani Traditional Council. Ndumi Mufomoni Alfred Nesengani who represents the Nesengani Royal Family made a presentation on their behalf. He indicated that there are two

worrying factions within the Royal Family. There is one faction that support(s) Fhatuwani Douglas Nesengani and another one which

support(s) Thifhelimbilu Nesengani. Thifhelimbilu is a female and the only child of the Dzekiso wife. According to the culture and custom of Nesengani Royal Family; if the Dzekiso wife does not give birth to a male child, then the throne is inherited by the second house, provided there is a son who can be appointed to take over the throne and rule as a Senior Traditional Leader.” (own emphasis added)

[2] The 1st Respondent was accordingly identified as the heir to the throne and it was recommended to the Premier that he be appointed as Senior Traditional Leader of the Nesengani Traditional Community based on the culture, traditions and customs of the Nesengani Royal Family and by that the 3rd Applicant was automatically disqualified simply because she is a female.

[3] The 3rd Applicant, had she been a male would have been the rightful heir to the throne as:-

(a) her mother is a dzekiso/great wife of the late Chief;

(b) her mother is the first wife of the late chief;

(c) her mother is from the Masakona Royal Family; and

(d) her father was, before his death, a Senior Traditional Leader of the 1st Applicant.

The only ground upon which the 3rd Applicant was disqualified from succeeding to the throne was on the basis that she is a female.

[4] On the other hand, according to the Applicants’ the 1st Respondent is disqualified from succeeding the late Chief Nesengani Tshimbiluni Philemon Mbokota by reason of the following facts:-

(a) the father of the 1st Respondent (one Ramarumo Aldon Nesengani also known as Marumo) was never installed as a traditional leader of the Nesengani Traditional Community.

(b) the father of the 1st Respondent was disinherited by his (and the 2nd Applicant’s) late father Chief Kolokoshani Andries Nesengani because of his bad and rude behavior of assaulting innocent inhabitants and was therefore deemed not to be a possible good traditional leader of the 9th Respondent.

(c) the 1st Respondent is not the son of the late Chief Nesengani Tshimbiluni Philemon Mbhokota.

(d) the mother of the 1st Respondent is not a dzekiso wife.

(e) the mother of the 1st Respondent is not from a Royal Family.

[5] It was submitted by the Applicants that the 1st Respondent, accordingly, if regard is being had to the foregoing, that:

(a) the stringent conditions relating to the 1st Respondent’s mother (of not being a dzekiso wife) and not having been married from another Royal family, as well as that his father was not a chief have not been complied with; and

(b) the 1st Respondent does not qualify in terms of the customary law of the 9th Respondent to assume the position of the senior traditional leadership of the 9th Respondent.

[6] It is the appointment and recognition of the 1st Respondent on the above basis that prompted the Applicants to launch the present review proceedings. The Applicants apply that the decision and/or proceedings of the 2nd, 3rd, 4th and 12th Respondents in terms of which the Respondents found and recommended that the 1st Respondent is the legitimate successor to the position of Senior Traditional Leader of the 9th Respondent, be reviewed and set aside, alternatively corrected. Further, that the decision and/or proceedings of the 6th and 10th Respondents recommending the 1st Respondent as the rightful and legitimate successor to the vacant position of Senior Traditional Leader of the 9th Respondent be reviewed and set aside, alternatively corrected. The Applicants further apply that the 7th Respondent’s decision to recognize and appoint the 1st Respondent as the Senior Traditional Leader of the 9th Respondent be reviewed and set aside, alternatively corrected.

FACTUAL BACKGROUND:

[7] The first Senior Traditional Leader of the Nesengani Traditional Community was the 2nd Applicant’s grandfather, Nesengani Andries Kolokoshani (“Andries”). Andries ruled, in his capacity as a Chief, the Nesengani Traditional Community since in circa 1957 until his demise in 1964.

[8] After the demise of Andries and around the year 1987, the Nesengani Royal Family was divided into two main groups regarding the candidate to succeed the late Chief Andries. One of the two groups was headed by the sister of Andries, called Mutavhatshindi Nyawaisedza Tshimange (born Nesengani) who supported Nesengani Vele Obert (“Obert”),

whilst the other group was headed by Nesengani Tshikurukuru Abel (“Abel”), which group supported the late Chief Nesengani

Tshimbiluni Philemon (“Philemon”).

[9] Obert was incorrectly identified by the group which supported him and was appointed by the then Government of the Republic of Venda. When the then President of the then Republic of Venda intended to officiate the installation ceremony of Obert, he was interdicted from doing so by the then Supreme Court of Venda under case number M197/1987.

[10] As a result of the interdict, the President appointed a Commission of Inquiry into the Chieftainship of the Nesengani Traditional Community which was chaired by the former Magistrate Mr. M.J. Geyser.

[11] During the hearing of the Commission of Inquiry Nesengani Tshikurukuru Abel testified to the following effect:-

(a) a genealogical chart/family tree of the Nesengani Tribe starting from King Davhana is as follows:-

(i) King Davhana had three (3) sons namely, Masindi, Nesengani and Musathanyoko.

(ii) Chief Nesengani had three (3) sons namely, Billy Rasivhetshele Nesengani, Maatamela Nesengani Kingi Davhana and Kolokoshani Andries Nesengani.

(b) Kolokoshani Andries Nesengani was a Chief at Luvhola Village near Elim Hospital and then relocated to Mpheni Village and thereafter removed to a farm known as Schuinshoogte presently known as Ha-Nesengani or Tshino Traditional Community.

(c) Chief Andries had five wives and according to seniority were as follows:-

(i) Munzhedzi Nesengani (born Davhula)(dzekiso wife);

(ii) Makwarela Nesengani (born Mushasha);

(iii) Nyaphophi Nesengani (born Mukhaukhau);

(iv) Nyadenga Nyamukamadi; and

(v) Makwarela Nesengani (born Rathanya).

(d) The children of each of the wives of Chief Andries were as follows:-

(i) Children of Munzhedzi (dzekiso wife), according to seniority are as follows:-

(aa) Ramashia (Masindi) Luvhengo (Born Nesengani) (female and the deponent to the founding affidavit);

(bb) Marumo, also known as Ramarumo James Aldon

Nesengani (male and who passed away during 1983);

(cc) Tshitwamulomoni (male and who also passed away during 1983);

(dd) Tshimbiluni (alias Mbokota) Philemon;

(ee) Mutangwa (female); and

(ff) Vhangani (female).

(ii) Children of Makwarela (born Mushasha)(2nd wife) according to seniority:-

(aa) Mutshinyani (female);

(bb) Munyadziwa (female); and

(cc) Mavhungu (female).

(iii) Children of Nyaphophi (3rd wife) according to seniority:-

(aa) Vhengani (female);

(bb) Tshavhungwa (female);

(cc) Vele Obert (male), and

(dd) Pauline Luambo (female).

(iv) Children of Nyadenga Nyamukamadi (4th wife) according to seniority:-

(aa) Mushiasano (male); and

(bb) Joseph (male).

(v) Children of Makwarela (born Rathanya) (5th wife) according to seniority:-

(aa) Mulwanndwa (female);

(bb) Balanganani (female);

(cc) Mulomoni (male), and

(dd) Ndwayamala (male).

[12] The person who should have succeeded the late Chief Nesengani Kolokoshani Andries was the 2nd Applicant, but since she was not a male she was disqualified because of the gender inequality then in force. The 2nd Applicant’s mother’s house qualified to give birth to a successor to the throne by virtue of her having been a dzekiso/great wife.

[13] Chief Nesengani Kolokoshani Andries disinherited or disqualified the 2nd Applicant’s younger brother Marumo or Ramuro because of his misbehavior as a troublemaker who assaulted members of the community of the 9th Respondent and also went on to disinherit the younger brother of the 2nd Applicant and Marumo, one Tshitwamulomoni, due to the fact that Chief Nesengani Kolokoshani Andries did not want to create enmity between the two brothers Marumo and Tshitwamulomoni by allowing the latter to become the future chief of the 9th Respondent.

[14] Chief Nesengani Kolokoshani Andries then chose his son, Nesengani Tshimbiluni Philemon Mbokota as successor to his throne. After several court battles and the outcome of the Commission of MJ Geyser, the late Chief Nesengani Tshimbiluni Philemon Mbokota was finally identified, recognized and appointed as Chief of the 9th Respondent with effect from 28 April 1990.

[15] Chief Nesengani Tshimbiluni Philemon Mbokota passed away on 12 May 2016 whereafter the 1st Respondent was recommended and his recognition as Senior Traditional Leader of Ha-Nesengani Community (9th Respondent) was accordingly approved by the 7th Respondent on the 16th of October 2018 in terms of Section 12(1)(b) of the Limpopo Traditional Leadership and Institutions Act 6 of 2005.

POINTS IN LIMINE RAISED:

[16] Before dealing with the merits, the respective parties raised several points in limine. At the commencement of the hearing of this matter, the Applicants’ Counsel, as well as the 2nd, 3rd, 4th, 6th, 7th and 12th Respondents’ Counsel abandoned all their points in limine. Counsel for the 1st, 8th, 9th and 11th Respondents abandoned their points in limine except for the following points in limine raised in respect of:

(a) The lack of authority of the 1st Applicant to bring this application as the 1st Applicant does not consist of the entire Royal Family but only a faction thereof;

(b) Non-joinder in that the entire Nsengani Royal Family is not a party to these proceedings, but only a faction - it was submitted that the remaining faction of the Royal Family was not a party to these proceedings;

(c) Lack of locus standi in that the 1st Applicant does not constitute the entire Royal Family but merely a few disgruntled members of the legitimate Nesengani Royal Family who are not acting in the interests of the Nesengani Royal Family. It was submitted that the 1st Applicant therefore does not have the necessary locus standi to bring this application.

[17] All three points in limine, which in my view are intertwined based on the fact that the 1st Applicant only consists of a faction of the Nsengani Royal Family were dismissed with no order as to costs. The 2nd Applicant attached a resolution to her founding affidavit, which resolution was obtained at a meeting held on the 1st of December 2019 at the Chief’s Palace at Tshino. The Applicants also attached confirmatory affidavits of members of the Royal Family being:-

17.1 Nesengani Tshifhiwa Sammuel,

17.2 Davhana Rastshilumela Phillip;

17.3 Nesengani Mutangwa Sarah;

17.4 Mifamadi Vhangani Nesengani;

17.5 Phaswana (Nesengani) Madipane Wilson;

17.6 Nesengani Mushaisano;

17.8 Rasengani (Davhana) Aletta Johannes;

17.9 Nesengani Tshifheimbilu Princess; and

17.10Nesengani Matodzi Muriel.

[18] The submission by the Respondents that each and every member of the Royal Family should have been joined in their personal capacity simply does not have any merit. In my view, having established that the 1st Applicant constitutes the core and more senior families of the Royal Family, the 2nd Applicant on behalf of the 1st Applicant managed to prove that the 1st Applicant has locus standi and authority to institute these proceedings and in the result also these two points in limine should fail. I now turn to the merits of the application.

THE APPLICANTS’ SUBMISSIONS:

[19] The Applicants’ grounds for review against the decision or administrative action taken by the 2nd, 3rd, 4th, 6th, 7th, 10th and/or 12th Respondents are as follows:-

19.1 The said Respondents (a) were biased or reasonably suspected of bias, (b) took the action which was and still is procedurally unfair, (c) took an action for an ulterior purpose or motive, (d) took an action as they did because irrelevant considerations were taken into account and relevant considerations were not considered, (e) took an action because of the unauthorized or unwarranted dictates of the 11th Respondent.

19.2 The action itself (a) contravenes the law in that it contravenes the provisions of the Constitution of the Republic of South Africa, Act 108 of 1996, and (b) is not rationally connected to the information placed before the said Respondents.

[20] The Applicants submitted that Section 9(3) of the Constitution of the Republic of South Africa, Act 108 of 1992 (“the Constitution”) states as follows:-

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex,

pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

[21] The Applicants submitted that in addition to the above quoted passage from the report of the Executive Committee: House of Traditional Leaders dated 29 January 2019, the appointment of the 1st Respondent as the Senior Traditional Leader of the 9th Respondent and more so his “identification” is based on a dubious proposition or statement which can be found in the memorandum of the MEC COGHSTA (6th Respondent) dated 10 August 2017, to the effect that:-

“After their death, the royal family withdrew the acting appointment of Mutavhatsindi Nyawasedza Tshimange in 1989 and appointed Nesengani Tshimbiluni Phillemon, the younger brother of the late Nesengani Ramarumo Aldon, as a successor. Nesengani Tshimbiluni Philemon ruled the area until he died on the 12th March 2016.

The late Khosi Nesengani Tshimbiluni PHillemon was married to Masakona Peggy (dzekiso) and they were blessed with one daughter namely

Thifhelimbilu. According to the Nesengani royal family, the first born son from the dzekiso becomes heir to the throne. If there is no male issue, the throne is inherited by the second house. After realizing that the late Khosi Nesengani Tshimbiluni Phillemon did not leave behind a male issue, the royal family then resolved to appoint the first born son fo the late Nesengani Ramarumo Aldon as a successor.(own emphasis)”.

[22] It was submitted by the Applicants that the above statement is directly in conflict with Section 9(3) of the Constitution in that it unfairly discriminates against the 1st Applicant on the ground of gender and is therefore unconstitutional and should be reviewed and set aside.

[23] In respect of the ground relied upon by the Applicants that the decision or administrative action was taken with bias or there is a reasonable suspicion of bias, it was submitted by the Applicants that it is evident from the last paragraphs of the report of the Secretariat: House of Traditional Leaders dated 6 April 2018, as well as the report from the Executive Committee: House of Traditional Leaders dated 29 January 2019 that the 2nd, 3rd, 4th and 12th Respondents sided with or took or adopted the explanation of the 11th Respondent as the one reflecting the correct position which is diametrically in opposition to the submissions made by the 1st Applicant in an objection raised to the proposed appointment of the 1st Respondent as the Senior Traditional Leader addressed to the Office of the Premier:Limpopo Provincial Government and the MEC: COGSTHA, as well as the House of Traditional Leaders: Vhembe District Office dated 12 April 2016.

[24] It was further submitted that the submissions by the 1st Applicant were ignored or disregarded and not taken into account. The Applicants submitted that taking into account the fact that the 3rd Applicant fulfilled the requirements to be appointed as Traditional Leader and qualifies to be appointed as such, yet she was not

appointed and was rejected, but instead the 1st Respondent was appointed whilst he is disqualified to be appointed as Senior Traditional Leader, implies that the Respondents were biased or can reasonably be suspected of bias.

[25] It was further submitted by the Applicants that the action taken was procedurally unfair as the Respondents only took into account the version of the 11th Respondent who represented the 1st Respondent and failed to give the Applicants any opportunity to present their version. The 2nd, 3rd, 4th, 6th, 7th, 10th, and/or 12th Respondents denial of the Applicants to present their version renders the administrative action to be unlawful, unreasonable and

procedurally unfair.

[26] In respect of the Applicants ground for review that irrelevant considerations were taken into account and relevant considerations were ignored, it was submitted that submissions made by the 11th Respondent that were taken into account are as follows:-

“Ndumi Mulomi Alfred Nesengani who represents the Nesengani Royal Family made a representation on their behalf. He indicated that there are two worrying factions within the Royal Family. There is one faction that support Fhatuwani Douglas Nesengani and another one which support Thifhelimbilu Nesengani. Thifhelimbilu is a female and the only child of the Dzekiso wife. According to the culture and custom of Nesengani Royal Family, if the Dzekiso wife does not give birth to a male child, then the throne is inherited by the second house, provided there is a son who can be appointed to take over the throne and rule as a Senior Traditional Leader.”

[27] The Applicants submitted that it is not the culture and custom of the 1st Applicant that “if the Dzekiso wife does not give birth to a male child, then the throne is inherited by the second house, provided there is a son who can be appointed to take over the throne and rule as a Senior Traditional Leader.” According to the Applicants, this proposition is entirely incorrect, the 2nd, 3rd and 4th Respondents and/or the 6th, 7th, 10th and 12th Respondents however accepted this proposition without any doubt or further enquiry.

[28] It was submitted by the Applicants that the 2nd, 3rd, 4th and/or 6th, 7th, 10th and 12th Respondents took the administrative action of finding, recommending, appointing and recognizing the 1st Respondent as the successor to the throne because of the unauthorized and/or unwarranted dictates of the 11th Respondent.

[29] The Applicants further submitted that the administrative action taken by the Respondents was not rationally connected to the information provided to them and despite the information and facts placed before the Respondents, they nevertheless proceeded in the final analysis, to appoint and recognize the 1st Respondent as the Senior Traditional Leader of the 9th Respondent. It was submitted that the appointment and recognition of the 1st Respondent as successor to the throne despite the overwhelming weight of the evidence and information placed before the said Respondents by the Applicants, renders such power to be so unreasonable that no reasonable person or body could have exercised that power.

[30] It was further submitted that the administrative action taken by the said Respondents was materially influenced by an error of law in that the Respondents seem to have been unaware of the provisions of the Bill of Rights relating to the prohibition of discrimination based on, inter alia, gender and sex. Had the Respondents been aware of the provisions of the Bill of Rights as contained in Chapter 2 of the Constitution of South Africa, Act 108 of 1996, they would not have disqualified the 3rd Applicant from succeeding the throne and recommended the 1st Respondent when it is clear and admitted that the 3rd Applicant is the first born child of the dzekiso wife (great wife) who must take over the chieftainship.

THE 1st, 8th, 9th and 11th RESPONDENTS’ SUBMISSIONS:

[31] The 1st, 8th, 9th and 11th Respondents’ in opposition submitted that it is denied that the 1st Respondent is disqualified from assuming the position of Senior Traditional Leader of the 9th Respondent. It was submitted that the 1st Respondent is eligible to ascend the throne in terms of customary law by virtue of the fact that his father, namely Ramarumo (otherwise known as Marumo), was unlawfully disqualified allegedly for misconduct from ascending the throne, with the result that Nesengani Tshimbiluni Philemon, the 3rd Applicant’s father was appointed as senior traditional leader of the 9th Respondent.

[32] The 1st Respondent further submitted that it is therefore the 3rd Applicant who is disqualified from ascending the throne by virtue of the fact that her father, Nesengani Tshimbiluni Philemon was not eligible for appointment as Senior Traditional Leader of the 9th Respondent in preference to his father who was the eldest son of the first house and who had not been lawfully disqualified from ascending the throne. It was submitted that it was not competent of Chief Nesengani Kolokoshani Andries during his lifetime either to disinherit or declare disqualified any of his children from ascending the throne or to nominate any of them as successor to the throne, it being exclusively the province of the royal family to do so and then only upon the death of the incumbent senior traditional leader.

[33] The 1st Respondent further submitted that the 3rd Applicant is disqualified from ascending the throne notwithstanding that her mother is a dzekiso wife, not because she is a female, but because (a) according to the customs, tradition, and practices of the Nesengani Royal Family her father should not have ascended the throne in the first place in preference to the 1st Respondent’s father who was the eldest son of the relevant house, because the latter was still alive and had not been lawfully disqualified from ascending the throne, so that according to the principle of primogeniture to which the Nesengani Royal Family subscribes, the 1st Respondent’s father and not the 3rd Applicant’s father, was eligible to ascend the throne and (b) in addition at the time of the identification of the rightful successor to the throne the 3rd Applicant was found to have had a child fathered by a man whose identity she has refused to disclose.

THE 2nd, 3rd, 4th, 6th, 7th and 12th RESPONDENTS SUBMISSIONS:

[34] The 2nd, 3rd, 4th, 6th, 7th and 12th Respondents (“State Respondents”) submitted in opposition to the application that it is denied that the 3rd Applicant is the person who should have taken over the chieftainship after her father. It was further denied that the 2nd, 3rd, 4th and 12th Respondents took any decision to the effect that the 1st Respondent should be appointed as the Senior Traditional Leader of the 9th Respondent. It was submitted that the administrative action or decision in this regard was taken at a properly constituted meeting of the Nesengani Royal Family and the 7th Respondent.

[35] The State Respondents submitted that the Nesengani Royal Family found that the 3rd Applicant was unfit for the appointment and appointed the 1st Respondent as the Senior Traditional Leader for reasons as stated by the 1st, 8th and 11th Respondents in their Answering Affidavit.

[36] It was further submitted by the 2nd, 3rd, 4th, 6th, 7th and 12th Respondents that they admit the procedure to be followed in the identification of a successor to the throne as set out in paragraph 12 of the Applicants’ Founding Affidavit, but in respect of the requirement that the father of the would-be successor to the throne must have been a traditional leader and if not the candidate could not be considered, they however submit that there are exceptional circumstances such as in the present matter where the Royal Family concerned would be justified to deviate from the general rule and would want to restore the succession lineage which was previously hijacked.

[37] It was further submitted that the 2nd Respondent did not take any decision in the present matter, nor did the 3rd Respondent. The 3rd Respondent only made recommendations. The same applies to the 4th Respondent who also only made recommendations. It was further submitted that the 12th Respondent did not take any decision other than chairing the meeting of the House of Traditional Leaders. Save for the 4th Respondent, the 2nd, 3rd and 12th Respondents did not make any findings and therefore the 2nd, 3rd, 4th and 12th Respondents did not take any administrative decision which is subject to review as contemplated in Section 1 of PAJA.

[38] The said Respondents further submitted that the 11th Respondent holds the position of Ndumi of the entire Nesengani Royal Family and by virtue of such position he wields enormous power and authority within the Royal Family. It was further submitted that the culture and custom of the Nesengani Royal Family has always been that in the absence of a male child born from a dzekiso (great) wife, the heir is considered from the second house.

[39] The 2nd, 3rd, 4th, 6th, 7th and 12th Respondents submitted further that the 1st Applicant could not have had any history in respect of the Senior Traditional Leadership and could not have been able to exchange documents with the Respondents. There were no meetings held between the Applicants and the Respondents in which the findings and recommendations of MJ Geyser’s Commission of Enquiry into Nesengani Chieftainship, the record of the civil proceedings and court order under case number M197/1987 in the matter between Nesengani Tshimbiluni Philemon Mbhokota v Nesengani Vele Obert or the Installation Certificate as issued on 26 April 1990 in terms whereof Tshimbiluni Phillemon Nesengani was appointed as Khosi

(Senior Traditional Leader) of the 9th Respondent, and which appointment was not in an acting capacity.

THE LAW AND APPLICATION OF THE LAW TO THE FACTS:

[40] Section 12(1) of the Limpopo Traditional Leadership and Institutions Act, 6 of 2005 stipulates as follows:-

“Recognition of senior traditional leader, headman or headwoman

(1) Whenever a position of a senior traditional leader, headman or head woman is to be filled-

(a) the royal family concerned must, within a reasonable time after the need arises for any of those positions to be filled, and with due regard to the customary law of the traditional community concerned-

(i) identify a person who qualifies in terms of customary law of the traditional community concerned to assume the position in question; and

(ii) through the relevant customary structure of the traditional community concerned and after notifying the traditional council, inform the Premier of the particulars of the person so identified to fill the position and of the reasons for the identification of the specific person.

(b) the Premier must, subject to subsection (2)-

(i) by notice in the Gazette recognise the person so identified by the royal family in accordance with paragraph (a) as senior traditional leader, headman or headwoman, as the case may be;

(ii) issue a certificate of recognition to the person so recognised; and

(iii) inform the provincial house of traditional leaders and the relevant local house of traditional leaders of the recognition of a senior traditional leader, headman or headwoman”

[41] Section 12(2) of the Limpopo Traditional Leadership and Institutions Act, 6 of 2005 stipulates as follows

“(2) Where there is evidence or an allegation that the identification of a person referred to in subsection (1) was not done in accordance with customary law, customs or processes, the Premier-

(a) may refer the matter to the provincial house of traditional leaders and the relevant local house of traditional leaders for their recommendations; or

(b) may refuse to issue a certificate of recognition; and

(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused.”

[42] In the present matter the 7th Respondent in accordance with the provisions of Section 12(2)(a) of the Limpopo Traditional Leadership and Institutions Act, 6 of 2005 referred the dispute to the Provincial House of Traditional Leaders. The premier upon their recommendation then recognized and appointed that 1st Respondent as Senior Traditional Leader in terms of Section 12(1)(b) of the Limpopo Traditional Leadership and Institutions Act, 6 of 2005.

[43] In order for the Applicants to succeed with this review application in terms of the provisions of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”), the Applicants must allege and prove the grounds upon which they rely in terms of Section 6 of PAJA.

[44] Section 6 of PAJA stipulates as follows:-

“6. Judicial review of administrative action

(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

(2) A court or tribunal has the power to judicially review an administrative action if-

(a) the administrator who took it –

(i) was not authorized to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorized by the empowering provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of law;

(e) the action was taken-

(i) for a reason not authorized by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;

(iv) because of the unauthorized or unwarranted dictates of another person or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously;

(f) the action itself –

(i) contravenes a law or is not authorized by the empowering provision; or

(ii) is not rationally connected to –

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;

(g) the action concerned consists of a failure to take a decision;

(h) the exercise of the power or the performance of the function authorized by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or

(i) the action is otherwise unconstitutional or unlawful.

(3) …”

[45] In Mphephu v Mphephu-Ramabulana & Others (948/17) [2019] ZASCA 58 (12 April 2019) the Supreme Court of Appeal at paragraph 16-17 held as follows:-

“[16] The scheme of the Framework Act governs the taking of decisions by the second, third and fourth respondents, the Commission, Members of the Executive Council for Traditional Affairs (MECs) and Traditional Councils. All these officials and entities are organs of state, exercising public power or performing public functions in terms of the Framework Act, which may adversely affect the rights of persons where it has direct legal effect in the manner envisaged in the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Their decisions are of an administrative nature, made under empowering legislative provisions, which include the Framework Act and thus constitute administrative action, which is reviewable under PAJA.

[17] The royal family stands on a different footing. It is not an organ of state, but an institution of customary law, exercising its powers in terms of customary law, custom and process. The genesis of the process leading to the recognition of a traditional leader lies with a royal family. In performing that function, the royal family initiates a process of identification of a person, which process leads to the exercise of public power and performing a public function of the recognition of that person, by the President or the Premier, in terms of the Framework Act. The identification of a traditional leader or successor to a traditional leader is, as the high court correctly observed, only the initial part of an administrative action, which would only become ripe for review after the organ of state has taken the decision. It is after that stage that an aggrieved party whose rights have been adversely affected, may exit the process and approach a court for appropriate relief. Pending the decision to recognize, the President or the Premier is obligated by the Framework Act to ensure that the identification process complied with customary laws, custom and processes. These are the internal processes to the Framework Act, provided for in Chapter 6, which must be followed before a review of the decision is referred to court.”

[46] In the present matter the 3rd Applicant was not identified to ascend to the throne as Senior Traditional Leader due to gender discrimination which offends the Bill of Rights in the Constitution. As is evident from the quoted texts supra, precedence was declared that only men would qualify for the position. The effect of this criterion is that the 3rd Applicant and any other woman who may meet the criteria to succeed to the throne, would be disqualified purely by her gender. This issue, contrary to what was submitted by the Respondents, is very much alive as it establishes a criterion which upholds the principle of primogeniture that offends the right to equality in the Bill of Rights.

[47] Customary laws and processes must be developed in such a way as to harmonise them with the Bill of Rights and the ethos of the Constitution of the Republic of South Africa. Any customary law, practice or system which disregards the fair administrative action is contrary to the ethos of the Constitution of South Africa and needs to be developed. Ordinarily, the criterion that promotes gender discrimination should be declared unconstitutional, invalid and consequently be set aside. However, the Constitutional Court in Shilubana & Others v Nwamitwa 2009 (2) SA 66 (CC), considered the question of a traditional community’s authority to develop their customs and traditions so as to promote gender equality in the succession of traditional leadership, in accordance with the Constitution.

[48] It was held in Shilubana & Others v Nwamitwa supra at para 73-74 by the Constitutional Court as follows:-

“[73] This is not only undesirable; it is contrary to the Constitution. Section 211(2) specifically provides for the right of traditional

communities to function subject to their own system of customary law, including amendment or repeal of laws. A community must be empowered to itself act so as to bring its customs into line with the norms and values of the Constitution. Any other result would be contrary to section 211(2) and would be disrespectful of the close bonds between a customary community, its leaders and its laws.

[74] It follows that if the traditional authority has only those powers accorded it by the narrow view, it would be contrary to the Constitution and frustrate the achievement of the values in the Bill of Rights. Section 39(2) of the Constitution obliges this Court to develop the customary law in accordance with the spirit, purport and aims of the Bill of Rights. This power should be exercised judiciously and sensitively, in an incremental fashion. As the Supreme Court of Canada has held in relation to the common law, “[t]he judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.” The same remarks apply to customary law. It is appropriate for the Court to exercise its section 39(2) powers in a manner that will empower the community itself to continue the development.”

[49] The contention, as is evident from the extracts quoted from the reports, and amongst others the report of the Executive Committee: House of Traditional Leaders dated 29 January 2019 sent to the Premier, that only men should succeed to the throne in the Nesengani Traditional Community impedes compliance with the purpose and scope of the Traditional Leadership And Governance Framework Act, 41 of 2003 (as amended). The Framework Act, as amended, provides in its preamble that the State, in accordance with the Constitution, seeks to transform the institution of traditional leadership in line with constitutional imperatives and to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices. In the preamble it is further stated that the institution of traditional leadership must be transformed to be in harmony with the Constitution and the Bill of Rights so that democratic governance and the values of an open and democratic society may be promoted and gender equality within the institution of traditional leadership may be progressively advanced. The institution of traditional leadership must promote freedom, human dignity and the achievement of equality and non-sexism.

[50] The Respondents have an obligation to develop the criteria for identification of a Senior Traditional Leader to bring it in line with the Bill of Rights. In the present matter the 2nd, 3rd, 4th, 6th, 7th and 12th Respondents (State Respondents) thus failed to consider the issue in terms of Section 6(2)(e)(i) and (iii) of PAJA when effecting the identification and recognition respectively of the 1st Respondent as Senior Traditional Leader of the 9th Respondent.

[51] The State Respondents on their own version stated that the version of the Applicants was not taken into account or considered, which also impedes the audi alteram partem rule.

[52] Furthermore, the State Respondents on their own version, confirmed that they attached a lot of weight to the 11th Respondent’s version as he is the Ndumi. This portrays and creates the impression that the State Respondents in considering who the successor to the throne should be was indeed biased and did not afford the Applicants a fair opportunity to present their version in respect of who the successor to the throne should be. In light of the above, the decisions to identify and recognize the 1st Respondent should thus be reviewed and set aside.

[53] In my view, there is no reason why the general rule applicable to costs in that the costs should follow the event, should not be applicable in the present matter. There were no submissions made by any party to deviate from the general rule either. In any event, in these circumstances, the Biowatch-principle dictates that the costs must be borne by the State. This approach safeguards the “over-arching principle of not discouraging the pursuit of constitutional claims.”

[54] I therefore make the following order:-

1. The points in limine raised in respect of lack of authority, non-joinder and lack of locus standi are dismissed.

2. The decision of the 2nd, 3rd, 4th, 6th and 12th Respondents in terms of which the said Respondents found and then recommended that the 1st Respondent is the legitimate successor to the Senior Traditional Leadership of the 9th Respondent is reviewed and set aside.

3. The decision of the 7th Respondent in recognizing and appointing the 1st Respondent as the Senior Traditional Leader of the 9th Respondent is reviewed and set aside.

4. The identification and recognition of the 1st Respondent as the Senior Traditional Leader of the 9th Respondent is reviewed and set aside.

5. The Nesengani Royal Family shall assemble at a place and on a date determined by them, to identify an appropriate person who qualifies in terms of customary law to assume the position of a Senior Traditional Leader taking into consideration the gender imperatives as prescribed by the Constitution of the Republic of South Africa, and thereafter submit the name of such person to the 7th Respondent (the Premier) for recognition.

6. The 2nd, 3rd, 4th, 6th, 7th and 12th Respondents are ordered to pay the costs of the application, jointly and severally, the one to pay the other to be absolved.

M. NAUDÈ-ODENDAAL

JUDGE OF THE HIGH COURT,

POLOKWANE

HEARD ON: 30

AUGUST 2022

JUDGMENT DELIVERED ON: 14 NOVEMBER 2022

APPEARANCES:

For the Applicants: Adv.

TP Matodzi

Instructed by: Tshilidzi

Makuya Attorneys

Thohoyandou

ettmkr@gmail.com

For the 1st, 8th, 9th and 11th Respondents: Adv. NL Malange

Instructed by:

A.R. Madia Attorneys

armadiaattorneys@gmail.com

For the 2nd, 3rd, 4th, 6th, 7th and

12th Respondents: Adv.

M.J. Mushasha

Instructed by: The

State Attorney,

mushashamaele@gmail.com