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Mamogale v Premier, North-West Province (1156/2007)  ZANWHC 50 (20 September 2007)
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IN THE HIGH COURT OF SOUTH AFRICA
BOPHUTHATSWANA PROVINCIAL DIVISION
CASE NO.: 1156/2007
In the matter between:
EMMANNUEL ABRAM SEGWAGWA MAMOGALE APPLICANT
PREMIER, NORTH WEST PROVINCE RESPONDENT
 The applicant Mr Emmanuel Abram Segwagua Mamogale, of Bethanie, has acted as regent on behalf of the heir to the Bogosi of the Bakwena Ba Mogapa Tribe. The applicant seeks an order –
“1. Declaring that the applicant is the lawful acting chief of the Bakwena Ba Mogopa Tribe (“the Tribe”).
2. That the first respondent be directed to recognize the applicant as acting chief of the Bakwena Ba Mogopa Tribe in terms of section 15 of the North West Traditional Leadership and Governance Act 2 of 2005.
3. That the first respondent be directed to issue the applicant with a recognition certificate in terms of section 16(3) of the North West Traditional Leadership and Governance Act 2 of 2005.
4. That the recognition certificate referred to in paragraph 3 above shall be valid for a period of three (3) years with effect from 30 November 2006.
5. Directing the respondent to, within 30 (thirty) days from the date on which the order is granted, convene a public meeting of the Tribe at Bethanie, North West Province and publicly inform the Tribe of the applicant’s recognition as acting chief as contemplated in paragraphs 2 to 4 above.
6. That the costs of this application be paid by the respondent.”
Background information and sequence of events
 Kgosi Letlhogile Royal David Mamogale of the Bakwena Ba Magopa Tribe died in September 2003. His heir Motheo Mamogale was a minor and therefore could not take up the office of kgosi (chief). The applicant was recognised in terms of the Act by the Premier to act as regent on behalf of the heir for a period of three years.
 In October 2005, the Premier removed the applicant from his position as regent of the Tribe and recognised Christine Motlalepule Mathibedi as regent. In 2006, the applicant successfully brought an application to review and set aside the decision of the respondent to remove him from his position as regent. An application by the respondent for leave to appeal was unsuccessful. A petition directed to the President of the Supreme Court of Appeal was dismissed.
 The applicant’s recognition as regent of the Tribe ended in November 2006. On 30 November 2006, the Royal Family again identified and appointed the applicant as “acting chief” to assume leadership of the Tribe for another period of three (3) years.
 A copy of the resolution passed by the Royal Family on 30 November 2006 was sent to the Premier. She received it on 12 December 2006. The Premier was requested to recognise the applicant as regent of the Tribe and to issue him with a recognition certificate.
 The Premier reacted to the request, by letter dated 7 June 2007, as follows:
“3. On the issue relating to Mr ES Mamogale’s second appointment as regent by the Royal Family the Honourable Premier has reservations [about] issuing a certificate for the following reasons –
3.1 In terms of traditional Setswana rules of succession the Khuduthamaga of a Royal Family, made of senior members of the Royal Family, decides on the succession of bogosi of a traditional community. In this case it seems that non-members of the Khuduthamaga were involved in taking the decision to appoint Mr. ES Mamogale as regent.
3.2 The Khuduthamaga of Bakwena Ba Mogopa was accepted by the Royal Family on 13th March 2006 as:
Mr J T Mamogale (Chairperson)
Ms Baile More
Mrs C. Mathibedi; and
Mr A.G. More”.
 As a consequence of this letter the applicant launched the application which serves before me.
 The North West Traditional Leadership and Governance Act 2 of 2005 (“the Act’) regulates, inter alia, the appointment, recognition and removal of traditional leaders. Section 13 (1) of the Act provides that the bogosi of a traditional community (the position held by a kgosi i.e a chief) shall be in accordance with the customary law and customs applicable in such a traditional community. The designation of a “kgosi to bogosi” of a traditional community must made by the Royal Family in accordance with its customary law and customs. The Premier may recognise a person designated as kgosi/kgosigadi of a particular traditional community and must then issue a certificate of recognition. The Premier must also publish a notice in the Gazette recognising a kgosi/kgosigadi and this notice must be served on the Provincial House of Traditional Leaders for their information.
 In the case of the Bakwena Ba Mogopa Tribe the heir to the chieftanship, Motheo Mamogale, was a minor and consequently he was incapable of taking up the office of a kgosi. It was necessary for a regent to be appointed to rule on his behalf. Section 15 of the Act provides for the recognition of regents. It reads:
“Where the successor to a position of kgosi/kgosigadi or kgosana identified in terms of section 13 or section 19 is still regarded as a minor in terms of applicable customs or customary law –
(a) the Royal Family concerned must, within a reasonable time –
(i) identify a regent in accordance with the applicable customs and customary law, to assume leadership on behalf of the minor; and
(ii) inform the Premier of such appointment, and the reasons for such an appointment;
(b) the Premier may, with due regard to the applicable customary law and customs, recognise the regent identified by the Royal Family;
(c) the Royal Family shall review the regency of an acting kgosi every three years and submit a report to the Premier.”
The concept of a Royal Family is defined in s 1(1) of the Act as follows:
“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.”
The Act goes on to provide in s 24 that the Royal Family must:
“(a) take such lawful steps that may be necessary to protect the bogosi of the traditional community concerned; and
(b) in accordance with the customary law and customs of the traditional community designate a person who is the rightful incumbent and/or successor to the bogosi of the traditional community.”
 The meetings of the Royal Family are regulated by s 25 of Act. It reads:
“(1) A Royal Family must, when meeting to discuss matters emanating from this Act, function in accordance with prescripts of this Act, customs and customary law of the traditional community concerned.
(2) A Royal Family must keep a minute book in which shall be recorded minutes of each meeting –
(a) the date, the time and venue of the meeting;
(b) the names of the members of the Royal Family members present and their respective designation;
(c) the issues for consideration; and
(d) the decisions of the meeting.”
 The appointment and recognition of a regent is of course intended to be of limited duration. It would expire ex lege on the appointment or installation of the heir on whose behalf the regent has governed.
 Some discussion ensued about whether the Premier ought to have limited the recognition of the applicant’s term of office to three years. If the term could not be limited, this would mean that the applicant’s term as regent is still ongoing as the heir has not yet been installed as kgosi. Both sets of counsel urged me to decide the matter on the basis that recognition for a term is permissible. I am inclined to do this because it does not affect the outcome I have in mind. I consequently do not decide this issue but proceed on the assumption that it is correct.
 On receipt of the letter from the Bakwena Ba Mogopa Royal Family requesting the further recognition of the applicant as regent, the Premier was required by s 15 of the Act to:
(a) consider the necessity for a regent i.e is there an heir and, if so, and when will the heir reach the age of majority taking into account the law and customs of the Tribe, the Act (including the definition of regent) and any other applicable legislation.
(b) satisfy herself that the request to recognised the person appointed as regent emanates from the Royal Family.
(c) consider the request with due regard to the applicable customary law and customs.
(d) satisfy herself about the fitness of the regent for office. This would (as inferred from other provisions of the Act) include the following:
the regent must not have been convicted of an offence with a sentence of imprisonment not for more than 12 months without the option of a fine;
the regent must not suffer from a mental infirmity or infirmity of the body which, based on acceptable medical evidence, makes it impossible for the regent to function as a regent;
the regent must not have transgressed a serious customary rule, principle or code of conduct;
the regent must not have acted or conducted himself or herself in a manner detrimental to good and effective government and/or administration of the traditional community in question, or have failed to act or to conduct himself/herself in a manner conducive to good and effective government of traditional community, or be otherwise unfit for the duties of his or her office;
the regent must not be guilty of fraud or a gross irregularity in connection with the administration of the affairs of the traditional community or otherwise be guilty of maladministration of those affairs;
(e) recognise or not recognise the regent identified by the Royal Family.
 The Premier has not refused to recognise the applicant as regent. She can also not be deemed to have refused to do so on account of the delay in responding to the Royal Family’s request. The Premier explains that she did not wish to act while litigation concerning her and the applicant was still pending. When the Supreme Court of Appeal dismissed her petition for leave to appeal against Mogoeng JP’s judgment she responded to the request.
 I have previously set out the Premier’s reply to the Royal Family. She is entitled to say that she wishes to investigate aspects of the matter before coming to a decision. I am, however, of the opinion that the line of investigation which the Premier proposes will not assist her to make a proper decision. It may well lead her to make an incorrect decision which could lead to further litigation.
 The Premier has been advised that in accordance with the law and customs applicable to the Tribe that the Tribe must have and has a khuduthamaga. A khuduthamaga according to the answering papers is composed of the senior member of each Royal House of the tribe. I will accept this interpretation for now, although there are some indications that a khuduthamaga’s membership is wider than this. See R D Coertze Die Familie-, Erf- en Opvolgingsreg van die Bafokeng van Rustenburg (1971) at 109. The proposed investigation is predicated upon the premise that the khuduthamaga chooses the regent. Now it may well be that this is a role which the khuthamaga has played in the past. But although the Act preserves and seeks to revive the past it may amend traditional law and custom and it is binding on all persons to whom the Act applies.
 The Act is very clear that the regent must be recommended by the Royal Family. The khuduthamaga and the Royal Family are not synonymous. The khuduthamaga may be the vehicle or medium through which the recommendation of the Royal Family is conveyed to the Premier. But the views or recommendation of the khuduthamaga are not, in terms of the Act, decisive save to the extent that they coincide with those of the Royal Family. The Premier is obliged to consider the views of the Royal Family as defined in the Act.
 The dispute about whether the Tribe has even had a khuduthamaga or whether one has been proposed and validly established (and its membership) is the focus of a dispute between the applicant and the Premier’s office. I do not intend to address this dispute because it does not have a valid role to play in the recognition of a regent.
 It follows that the application should be dismissed for being premature.
 The Tribe has been without leadership since the applicant’s terms of office expired in November 2006. The applicant has requested that should I refuse the application, he be recognised as regent pending the Premier’s decision. This would be in the interest of the Tribe but I cannot accede to this request. Counsel, as I have mentioned earlier, are adamant that I should treat the facts as an application for the recognition of a regent and not as an application to extend the recognition of a regent. In the former case (which prevails here) I would not be able to do so. To do so would be to impinge on the rights conferred by the Act on the Premier.
 I turn to consider the issue of costs. The applicant has been unsuccessful but the effect of the application has been to draw the attention of the Premier to the proper considerations to be considered, namely the recommendation of the Royal Family and not that of the khuduthamaga. It seems to me that justice will be best served by having each party pay its own costs.
 In the premises the application is dismissed. There will be no order for costs
A A LANDMAN
JUDGE OF THE HIGH COURT
FOR THE APPLICANT : ADV T KENNEDY
FOR THE RESPONDENT : ADV PISTOR SC WITH ADV TSHABALALA
FOR THE APPLICANT : S E MONARE & PARTNERS
FOR THE RESPONDENT : STATE ATTORNEY
DATE OF HEARING : 30 AUGUST 2007
DATE OF JUDGMENT : 20 SEPTEMBER 2007