Seleka v Seleka Royal Family and Others (HCAA21/2018) [2021] ZALMPPHC 28 (28 May 2021)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: NO

REVISED

CASE NO: HCAA21/2018

In the matter between: ACTING CHIEF PHETOGO DAVID SELEKA APPELLANT And SELEKA ROYAL FAMILY FIRST RESPONDENT SELEKA MOTLAHASEDI ROYAL COUNCIL SECOND RESPONDENT PREMIER OF THE LIMPOPO PROVINCE THIRD RESPONDENT HOUSE OF TRADITIONAL LEADERS, LIMPOPO PROVINCE FOURTH RESPONDENT MEC FOR THE DEPARTMENT OF CO-OPERATIVE GOVERNANCE, HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS, LIMPOPO PROVINCE FIFTH RESPONDENT

JUDGMENT

Muller J:

[1] This appeal is before us in terms of an order by the Supreme Court of Appeal granting leave to appeal to the Full Court of this Division. The appeal took a somewhat tortuous route which necessitated an application for condonation to re-instate the appeal which has lapsed.

[2] At commencement of the arguments counsel was requested to address us on the prospects of success of the appeal first of all, since we were of the view that if the prospects are very good and is likely to be dispositive of the appeal, that condonation should be granted.

[3] This appeal turns on what I believe to be an irregularity that occurred during the trial to which I will revert soon.

[4] The Seleka Royal Family, together with the Seleka Sa Mothlasedi Royal

Council, instituted motion proceedings in the Gauteng High Court in terms of which, in the main, the removal of the appellant as the senior traditional leader of his community, alternatively, withdrawal of the certificate of recognition, was claimed.

[5] By agreement, the proceedings were transferred to this Division for

adjudication as a special trial because of material disputes of fact. It was agreed, rather surprisingly, that the affidavits delivered by the opposing parties be regarded as the pleadings. Both counsel were in agreement that it caused more uncertainty than certainty during the trial since the disputes were not clearly and succinctly outlined as when pleadings were delivered.

[6] A protracted trial before MG Phatudi J commenced at the end of which the learned Judge held in favour of the applicants. The appellant delivered a notice of appeal in terms of which appellant took issue with an application for a postponement which the appellant applied for during the trial to obtain fresh legal representation which the learned Judge refused, on the one hand, and the locus standi of the applicants, on the other. The dispute being that that the applicants were not the legitimate Royal Family.

[7] I turn to the underlying facts which caused the appellant to apply

for a postponement. The appellant was represented by advocate Masipa during the trial. The evidence of Beafe Ruben Seleka was called by counsel for the plaintiffs on 26 September 2017. He concluded his testimony in chief and advocate Masipa, on behalf of the appellant,

commenced with cross examination. At 16h00 advocate Masipa requested that the trial be postponed until the next day as he needed time to consult with certain witness before he will be able to conclude his cross-examination of the witness. The request was duly granted.

[8] The next morning when the trial resumed advocate Masipa informed the court that his services have been terminated by the appellant. The reason given, when he was invited by the learned Judge to divulge the reason for his withdrawal, was that the appellant was not satisfied with the manner in which advocate Masipa was conducting the proceedings and that the appellant wished to employ the services of senior counsel.

[9] The learned Judge granted leave for advocate Masipa to withdraw. The appellant applied for a postponement which, despite being opposed was granted. The appellant was ordered to pay the costs occasioned by the postponement.

[10] The trial resumed again on 18 December 2017. The appellant who appeared in person applied for a postponement on the basis that his attorneys informed him that very morning, at the proverbial eleventh hour, that they have withdrawn as his attorneys.

[11] The learned Judge refused the application for a postponement, despite protestation by the appellant that he is able to proceed

unrepresented. The following exchange then took place between counsel for the applicants and the learned Judge:

"ADV MODISA: M'Lord our second witness was still under cross-examination. I do not know whether that witness would be excused or what the procedure

should will be. Because, we intend to call Mr Dipou Seleka our next witness, because we already led the evidence with Mr Reuben Seleka who was still under cross-examination. As per the transcript.

COURT: So who was under cross-examination?

ADV MODISA: Ruben Seleka

COURT: Cross-examined by?

ADV MODISA: By Mr Masipa Counsel for,

COURT: Yes. But he is not before court.

ADV MODISA: Yes I am just saying will we be proceeding. I am no longer going to pose any questions to Mr. Reuben Seleka. I am asking your Lordship whether that witness should be excused formally or should I call the next witness?

COURT: Yes. I think I need to maybe excuse that witness and then to allow you to call your next witness."

[12] At the end of the exchange the next witness was called without the appellant having been informed that he has the right to cross-examine the witness or having been given the opportunity to cross-examine the witness.

[13] This appeal turns on the question whether the failure to inform the appellant, who appeared in person, has the right to cross-examine

and, of course, to allow him to continue with cross-examination of the witness is an irregularity which

vitiates the trial.

[14] Section 34 of the Constitution, which is applicable to civil trials, states:

"Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."

[15] Section 35(3)(/) which applies to criminal trials states:

"Everyone accused person has a right to a fair trial, which includes the right-

(a)....

(i) to adduce and challenge evidence."

[16] The Constitution makes a distinction between civil and criminal trials. Criminal proceedings are governed by section 35 and are not regarded as 'disputes' in the ordinary sense. In addition, an accused person has a statutory entrenched right in terms of section 166(1) of Criminal Procedure Act[1] to cross-examine witness called by the State, which right is fortified by the provisions of section 35(3)(1) of the Constitution.[2] The Constitutional Court in S v Pennington[3] stated:

"The words 'any dispute' may be wide enough to include criminal proceedings, but it is not the way such proceedings are ordinarily referred to. That s 34 has no application to criminal proceedings seems to me to follow not only from the language used but also from the fact that that s 35 of the Constitution deals specifically with the manner in which criminal proceedings must be conducted."

[17] These differences apart, both sections, significantly, require that criminal and civil trials be fair. The mere fact that different sections require that civil and criminal trials be fair cannot be a bar to a court, in appropriate instances, to consider unfairness of a civil trial with reference to similar instances of unfairness in criminal trials. Fairness in this context is a flexible term. In de Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) [4] the court referred to what a fair hearing is within the meaning of section 34:

"This section 34 fair hearing right affirms the rule of law which is a founding value of our Constitution. The right to fair hearing before a court lies at the heart of the rule of law. A fair hearing before a court as a prerequisite to an order being made against anyone is fundamental to a just and credible legal order. Courts in our country are obliged to ensure that the proceedings before them are always fair. Since procedures that would render the hearing unfair are inconsistent with the Constitution courts must interpret legislation and Rules of Court, where it is reasonably possible to do so, in a way that would render the proceedings fair."

[18] The right to cross-examine is a procedural right which relates to the law of evidence which has its origins in the adversarial trial procedure that is practised in South Africa. The adversarial or accusatorial procedure, explained Schwikkard and Van Der Merwe,[5] proceeds from the standpoint that it is a process that allows for opposing parties to come near as possible to the truth by allowing litigants to adduce evidence which guarantees cross-examination of the witnesses produced by the opponent, but also guarantees the right of the opponent to cross-examine your own witnesses. The right to cross-examination is, therefore, a vital procedural right in a process which allows for a party to present evidence which is favourable to its case.

[19] In Waterhouse v Shields[6] Gardiner J held that South African Courts, as a general rule, follow the English law of evidence in civil cases. In the case the question arose whether a witness which was called to produce certain documents, could be cross-examined on general issues. He concluded:

"In these circumstances, according to the Law of England, the other party than the one producing the witness has full right of cross-examination, and it seems to me that Mr Close is fully entitled to cross-examine the witness generally upon the case."[7]

[20] In Caroll v Carroll[8] the permissibility of a witness being told what a previous witness has testified about a subject and asked if the witness contradicts

the evidence, was in dispute. The Court applied the rules of English law and stated:

"The objects sought to be achieved by cross-examination are to impeach the accuracy, credibility, and the general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examining party."

[21] In Distillers Korporasie (SA) Bpk v Kotze[9] counsel for the defendant applied to call a witness after counsel for the plaintiff pointed to certain shortcomings in the evidence. The application was granted on the bais that the evidence should be confined to only one matter. The defendant who had not previously

given evidence was called to give evidence as to the make and model of a tractor. Counsel for the plaintiff when he cross-examined the defendant insisted that his cross-examination not be confined to the make and model of the tractor but that he may also ask questions in relation to the credibility of other witnesses. The learned Judge refused cross-examination on any other aspect than the one point. On appeal the Appellate Division held:

"The first question to be considered was whether there had been an irregularity. The answer could not be in doubt. The disallowance of proper questions sought to be put a witness by cross-examination is an irregularity which entitles the party represented by the cross-examiner to relief from a Higher Court, unless that Court is satisfied that the irregularity did not prejudice him."[10]

[22] The court was satisfied that an irregularity occurred which prejudiced the plaintiff.

[23] I have come to the conclusion from a consideration of the authorities that the right to cross-examination in civil cases is a deeply engraved procedural right which is the bedrock of a fair trial, as envisaged by section 34 of the Constitution.

[24] The appellant was prevented from exercising his right to consider crossexamination of the witness in the first place, when the witness was excused from further attendance without any reference to the appellant who was present in court, and in the second place, because he was unable to exercise his right to cross-examine the witness. The appellant was without any doubt prejudiced by the irregularity to fully cross-examine the witness. The irregularity was so serious that it resulted in an unfair trial in terms of section 34 of the Constitution.

[25] I am satisfied that the prospects of success on appeal are excellent and for this reason alone condonation should be granted.

[26] It was pointed out by counsel for the respondents that the attention of the learned Judge was drawn to the fact that the witness was still under cross-examination. Counsel for the respondents readily conceded that an irregularity was committed by the learned Judge, but left it to the court to decide whether it was prejudicial to the appellant to the extent that the proceedings be set aside.

[27] The learned Judge has delivered a judgment after taking the credibility of all the witnesses into account. It seems to me, therefore, that it is not advisable to refer the case back to the court a quo.

[28] Item 2 of Part B of the Limpopo Traditional Leadership and Institutions Act[11] requires from the traditional council of a traditional community to investigate alleged misconduct (as defined in Item 1) of a traditional leader and if satisfied that a traditional leader is guilty of misconduct may in consultation with the royal family refer the matter to the Premier with a recommendation on the appropriate measure to be taken. This course must be followed before the traditional council or the royal family may approach the court for relief. Item 1 of Part B reads:

"A traditional leader is guilty of misconduct and may be dealt with in accordance with the provisions of item 2, if the traditional leader-

(a) contravenes or fails to comply with any provisions of this Act or

fails to perform any duty or to discharge any obligation imposed upon the traditional leader by or under any other law;

(b) is negligent, careless or indolent in the discharge of his or her duties;

(c) is unable to execute his or her duties in an efficient manner;

(d) disobeys, disregards or makes wilful default in carrying out a lawful order given to him by a person having authority to give it;

(e) conducts himself or herself in a disgraceful, improper or unbecoming manner,

(f) is found guilty by a court of law, for any offence with an element of violence or dishonesty."

[29] Neither in the Limpopo Act nor the in the Traditional Leadership and Governance Framework Act[12] are any references to an institution or a body called the "Royal Council." It is thus with surprise that the founding affidavit refers to the second applicant as the "Seleka SA Motlhasedi Royal Council" which, as the deponent stated, is a council constituted and formulated in terms of the Limpopo Act. Statutory recognition is afforded to the "Royal Family"[13] as defined in both Acts together with "traditional councils."[14] The said council is most likely a committee within the Royal Family, and might therefore be another "customary institution or structure," as defined in the Limpopo Act. A Royal Council cannot in terms of the Limpopo Act make any binding decision to remove a traditional leader. It is the function of the Royal Family. The Royal Family has the obligation, under section 13(2), to inform the Premier of its decision to remove a traditional leader. But the power to remove a traditional leader from his/her position ultimately lies with the Premier.[15]

[30] Under Part B to the Limpopo Act, a traditional council has the duty to investigate alleged misconduct, in consultation with the Royal Family when that route is followed.

[31] I have alluded to the fact that the appeal was noted against the finding that the applicants had locus standi. The question pertaining to locus standi must still be addressed. I do not propose to make any finding in this regard.

[32] Section 13 of the Limpopo Act provides a mechanism for a traditional leader to be relieved of his/her royal duties under specific circumstances. Section 13(1) states:

"(1) Relief of royal duties shall be on the grounds of-

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without the option of a fine;

(b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for that senior traditional leader, headman or headwoman to function as such;

(c) wrongful appointment or recognition;

(d) a transgression of a customary rule or principle that warrants removal; or

(e) persistent negligence or indolence in the performance of the functions of his or her office."

[33] The applicants elected to take the route of section 13(2) to remove the appellant instead of taking the misconduct route, under Part B. The allegations set out in the notice of removal attached to the founding affidavit (annexure MTS 6) may very well be good grounds for removal of the appellant as senior traditional leader in terms of section 13(2) of the Limpopo Act, if proved to be true. It is not for this Court to make any predictions and I specifically refrain from voicing any opinion in this regard.

[34] The parties were agreed that if the trial should start de novo that it be ordered that pleadings be delivered to clearly and succinctly define the various disputes. It is, in my judgment, a proper course to take under the circumstances. I am inclined to order that the trial commence de novo before another Judge.

[35] The appellant is successful on appeal although the irregularity in the proceeding was not pertinently raised in the notice of appeal. Under the circumstances, it will be fair if the parties pay their own costs for the condonation application and the appeal.[16]

ORDER

1 . Condonation is granted for the late filing of the notice of appeal.

2. The appeal is re-instated.

3. The appeal is upheld.

4. The order of the court a quo is set aside.

5. The trial is to start de novo before another Judge.

6. The notice of motion will be regarded as a simple summons.

7. The answering affidavit will be regarded as a notice of intention to defend.

8. The applicants (the first and second respondent) shall deliver a declaration within 15 days from the date of this order.

9. The rules of court will apply in relation to the continuation of the proceedings from the date the declaration is delivered.

10. No costs order is made.

I agree

GC MULLER

JUDGE OF THE HIGH COURT LIMPOPO

DIVISION: POLOKWANE

MV SEMENYA

ACTING JUDGE OF THE HIGH COURT LIMPOPO

DIVISION:POLOKWANE

EM MAKWELA

APPEARANCES

For the Appellant : GJ Scheepers SC

For the Respondent : HOR MODISA SC

Date judgment reserved : 7 May 2021

Date the judgment delivered : 28 May 2021

[1] Act 51 of 1977.

[2] S v Msimango 2010 (1) SACR 544 (GSJ) par 4.

[3] 1997 (4) SA 1076 (CC) par 46.

[4] [2001] ZACC 9; 2002 (1) SA 429 (CC) par 11.

[5] Schwikkard PJ and van def Merwe SE Principles of Evidence 3rd ed (2009) 9.

[6] 1924 CPD 155.

[7] 157-158.

[8] 1947 (4) SA 37 (D & CLD) 40.

[9] 1956 (1) SA 357 (A).

[10] 361G-H

[11] Act 6 of 2005. (Hereinafter “the Limpopo Act”).

[12] Act t 41 of 2003 (Hereinafter "the Framework Act".

[13] Royal family means the 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."

[14] Established in terms of section 4 of the Limpopo Act and in terms of section 3 of the Frame Work Act.

[15] Section 13(3).

[16] Bokoni Platinum Mines v Moropane (1035/2019) [2020] ZASCA 168 (11 December 2020) par 27.