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INTHE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, THOHOYANDOU

 

CASE NUMBER: 2016/2022

 

In the matter between:

 

MPHEPHU- RAMABULANA ROYAL FAMILY                             APPLICANT

 

AND

 

THE PREMIER LIMPOPO PROVINCE                                          1^ST RESPONDENT

MEMBER OF EXECUTIVE COUNCIL, CO-OPERATIVE

GOVERNANCE, HUMAN SETTLEMENTS AND T

RADITIONAL AFFAIRS                                                                 2^ND RESPONDENT

MINISTER OF CO-OPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS                                                              3^RD RESPONDENT

TONI PETER MPHEPHU-RAMABULANA                                   4^TH RESPONDENT

MASINDI CLEMENTINE MPHEPHU                                            5^TH RESPONDENT

 

JUDGEMENT

 

AML PHATUDI J

 

[1] On 12 April 2019, the Supreme Court of Appeal withdrew the certificate of recognition of the [Fourth Respondent] as King of Vha-Venda[1] community. The court stayed the order pending the final determination of the proceedings[2]by the High Court, Limpopo Division-Thohoyandou. The parties’ dissatisfaction prompted them to approach the Constitutional Court, with an aim to either vary or set aside the Supreme Court of Appeal’s order.

[2]        The Constitutional Court[3] set aside para 3(f) of the Supreme Court of Appeal’s order[4], “in order to give full effect of constitutional invalidity unless there are reasons that dictate otherwise”[5].

[3]        The Constitutional Court judgment and order left a vacuum in the position of Vha-Venda Kingship/Queenship. In its quest to fill in the vacancy, Mphephu-Ramabulana Royal Family, represented by Mr. S.O. Ravele, approaches this court with a drawn up notice of motion and seeks the following order.

1.       It is directed that this matter be dealt with as a semi-urgent application and the applicants non-compliance with ordinary rules of services in condoned.

2.       The first and second respondents’ action/or conduct of failing to take a decision to recognise Mr Mavhungu David Mphephu as acting King of Vha-Venda community:

2.1      Is declared unconstitutional, unlawful and invalid.

2.2      Is reviewed and set aside; and

2.3      Is replaced with the decision that Mr Mavhungu David Mphephu is recognised as the acting King of the Vha-Venda Community.

3.         Costs of the application against the first and second Respondents on attorneys and client scale, including costs of two (two) attorneys. No costs are sought against the third, fourth and Fifth Respondents save in the event that they oppose this application…”

[4]        Mphephu Ramabulana Royal Family’s dispute relating to Vha-Venda community Kingship that started way before 2012, continues. The Applicant is the Royal Family, believed to be the holder from which the throne of Vha-Venda Kingship or Queenship rest. Phophi Ramabulana, a biological sister to the late King Patrick Ramaano Mphephu and Mr. Mavhungu David Mphephu, deposed to the founding affidavit, duly authorised by the Royal Family through a resolution.

[5]        The first and second respondents are, the Premier – Limpopo Province and Member of Executive Council, Co-operative Governance Human Settlements and Traditional Affairs respectively. Adv. Z.S. Mothupi, briefed by State Attorney – Thohoyandou, represent them.

[6]        The third respondent, Minister of Co-operative Governance and Traditional Affairs, did not file either opposition or notice to abide. Counsel for the State Attorneys, states categorically that the State Attorneys hold no instruction from the third respondent.

[7]        The fourth respondent, Toni Peter Mphephu Ramabulana, whose certificate of recognition as King of Vha-Venda has been set aside by the Supreme Court of Appeal, filed a notice to abide by the decision of this court.

[8]        The fifth respondent, Masindi Clementine Mphephu, is the granddaughter to Phophi Ramabulana, King Patrick Ramaano Mphephu and Mr. Mavhungu David Mphephu. She is the one the Constitutional Court opined that the Supreme Court of Appeal ought to have anointed through substitution[6]. She opposes the application. Adv. J. Roux SC, assisted by Adv. L.F. Taljaardt are her legal representatives.

[9]        The first, second and fifth respondents ran out of time in filing their notice to oppose and answering affidavits. They wrote a letter to the applicant’s attorneys after realising that they were out of time in filing the opposing papers. They requested the applicant to indulge them by extending time limits for filing the required opposing papers. The applicant acceded to the respondents’ request. Counsel for the applicants confirmed on record that the applicant is not opposing their condonation application, notwithstanding the classical principle set in Republikeinse[7] case, save for costs. I stand to grant their condonation application.

[10]      The first, second and fifth respondents (herein referred to as respondents unless otherwise specifically stated) opine to first deal with in limine points raised in their opposing papers. Following the submissions made by all parties represented, I ruled that the “expert report” parties sought to introduce, whereas, neither of them relied on in their papers nor, as evidence should not be handed in as a record for purposes of this application. I further ruled that in limine points be determined separately.

[11]      In limine points raised are non-joinder, disputes of fact, urgency, locus standi, lack of exhaustion of internal remedies and, order of substitution of first respondents. I find it inevitable to first deal with, in limine point- “lack of urgency” the respondents contends, notwithstanding the order parties made submissions relating to in limine points.

[12]      Rule 6(12) of the Uniform Rules of this Court governs urgency. For ease of reference, the Rule provides:

(12) (a) In urgent applications the court or a judge may dispense with the forms and service provided for in these Rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these Rules) as to it seems meet.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this sub rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

(c) A person against whom an order was granted in his absence in an urgent application may by notice set down the matter for reconsideration of the order.

[13]      The crux of urgency lie in Rule 6(12) (b). It is equally important to mention that the fact that the applicant wants to have the matter resolved urgently does not render the matter urgent. The correct and the crucial test is whether the applicant will not be afforded substantial redress at a hearing in due course if the matter was to follow its normal course as laid down by the rules (Rule 6(5). If the applicant will not or cannot be afforded substantial redress at, a hearing in due course, then the matter qualifies to be enrolled and be heard as an urgent application. If not, then the matter is not urgent and a struck off the roll order, with or without costs, must follow.

[14]      The applicant’s application falls short of explicit circumstances, which she avers, render the matter urgent. All that she says is that ‘this matter is self-evidently urgent. There is continuing violation of the Constitution and the Applicant’s constitutional rights by an organ of State. The violation concerned has already spanned for a period of six (six) months. The plight of the Applicant and the Vha-Venda people is continuously in jeopardy.

[15]      The applicant further states that ‘this semi urgent review relief is required in order to ensure that there should not be a vacuum in the Vha-Venda Kingship position, while the main review application for appointment of a King is pending before this Court. The Fifth Respondent’s attorney, in their letter dated 14 August 2022, addressed to the Second Respondent, are on record, stating that they are prepared to engage the Applicant, in the matter relating in the appointment of the acting King, as they are aware of the personnel in the Royal Family, who take care of the Royal Palace and who are compensated by the Second Respondent’.

[16]      I enquired from counsel for the applicant, as to which rule is the applicant relying on, when classifying this application as “semi urgent”. He concedes that there is no such a rule in the Uniform Rules of this Court. The Rules of this court do not make provision for “semi urgent” applications. If the matter is urgent, then Rule 6(12) applies. If the matter is not urgent, then rule 6(5) applies.

[17]      The practice directives of Limpopo Divisions and other Divisions save for Western Cape Division[8] respectively, are drawn to follow the classical principle set in Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makins Furniture Manufacturers) 1977 (4) SA 135 (W) 137A-E: It stipulates

‘(1) The question is whether there must be a departure at all from the times prescribed in Rule 6(5)(b).Usually this involves a departure from the time of 7(now 10) days which must elapse from the date of service of the papers until the stated day for hearing. Once that is so, this requirement may be ignored and the application may be set down for hearing on the first available motion day but regard must still be had to the necessity of filing papers with the Registrar by the preceding Thursday so that it can come onto the following week’s motion roll which will be prepared by the Motion Court Judge on duty for that week.

(2) Only if the matter is so urgent that the applicant cannot wait for the next motion day, from the point of view of the obligation to file the papers by the preceding Thursday, can he consider placing it on the roll for the next Tuesday, without having filed papers by the previous Thursday.

(3) Only if the urgency be such that the applicant dare not wait even for the next Tuesday, may he set the matter down for hearing on the next Court day at the normal time of 10:00 am or for the same day if the court has not yet adjourned.

(4) Once the court has dealt with the causes for that day and has adjourned, only if the applicant cannot possibly wait for the hearing until the next court day at the normal time that the court sits, may he set the matter down forthwith for hearing at any reasonably convenient time, in consultation with the Registrar, even that be at night, or during the weekend.

[18]      In the absence of the Rule that regulates “semi urgent” applications and the absence of an explanation for deviation from the rules, in my view, the application falls short of compliance and falls to be struck off the roll.

[19]      The applicant, it seems, says the circumstances that render the application urgent, ‘is to appoint an acting King to ‘ensure that there should not be a vacuum in the Vha-Venda Kingship position, while the main review application for appointment of a King is pending before this Court’.

[20]      Perhaps, before I deal with other in limine points raised, I find it prudent to consider the judgements[9] and the reasons articulated therein. Firstly, the Supreme Court of Appeal had this to say:

In light of these findings, the decision by the second respondent to recognise the first respondent as King of Vha-Venda is reviewed and set aside and the appeal must succeed. However, it would obviously be premature to consider a just and equitable remedy before the entire review is finalised. The outstanding issues and points in limine referred to the high court for evidence and adjudication have a direct bearing on any future identification and recognition of a person, even in an acting capacity, as King or Queen of Vhavenda. Thus, any attempt to appoint anyone to the Throne at this stage of the proceedings, would require a prior resolution of the very same issues pending adjudication in the high court. It would be in the interest of all the parties to have these matters resolved before the next process of identifying and recognising a leader in terms of s 9 of the Framework Act commences. Consequently, the effect of the review and setting aside of the first respondent’s recognition as King of Vhavenda and the withdrawal of his recognition certificate as King will have to be stayed, pending the completion of the proceedings, including any appeal process that might arise therefrom.(emphasis added).

[21]      The main review application, referred back to the Court of this division for further determination of issued raised thereat, pends before the Court of this Division under case number 773/2012.

[22]      In this- application, the applicant seeks an order to review and set aside, the first and second respondents ‘failure to take a decision to recognise Mr Mavhungu David Mphephu, as acting king of Vhavenda community.

[23]      The application of the principle of stare decisis dictates that this court is bound by the reasons for the decision, judgement and order of a higher court. This court is thus bound by the ratio decidendi of the higher court, The Supreme Court of Appeal. The Court stayed the identification and recognition of a person, even in an acting capacity as King or queen of Vhavenda community, until finalisation of review application before this division under case number 773/2012.

[24]      The Constitutional Court alerted the High Court to that effect, in saying, ‘[t]he findings and orders of the Supreme Court of Appeal declaring the Identification Decision and the Recognition Decision invalid are final and binding, and nothing the High Court will say can change that’.

[25]      It is common cause that one of the issues for the determination under case number 773/2012 is the identification and recognition of a person as a Queen or King of Vha-Venda community. It is clear that the Supreme Court of Appeal indicated that that’ should not be determined, not even in acting capacity, pending finalisation of the review application.

[26]      The determination of identification and recognition of a person, even in an acting capacity as a King or Queen of Vhavenda community prior to finalisation of issues in the review application under case number 773/2012, may result, in my view, as an exercise in futility. In this result, this application falls to be dismissed.

Costs

[27]      Determination of costs is no longer a usual recitation- “costs follow the event”. Kampepe J[10] demonstrates that, in determining which [party or] parties ought to bear the costs in litigation, “it is not correct to begin the enquiry by a characterisation of the parties”, for “the starting point should be the nature of the issues”[11]

[28]      The burning issue between parties is the vacancy created by the judgement and order of the Constitutional Court when it set aside para 3(f) of the Supreme Court Appeal order.

[29]      The Applicant is a Royal Family. It is an institution of customary law, exercising its powers in terms of customary law, custom and processes. It is trite law that the process leading to the recognition of a King, Queen Traditional leader, Headman or Headwoman, lies with a Royal family of the customary community concerned.

[30]      It is further trite law that after the royal family initiates a process of identifying a person to occupy the community leadership position, it recommends to either the President of South Africa or the Premier of the Province concerned, to recognise the identified person as such, as envisaged in terms of the Framework Act.

[31]      When the first communique was sent, both the applicant and, the first and second respondents, were ad feit with the judgements and orders of the Supreme Court of Appeal and Constitutional Court, with more emphasis on para [43] of the SCA judgment.

[32]      The fifth respondent is likely to be found to be a member of the applicant, because, she is the grand-daughter of Phophi Ramabulana, (the deponent of the applicants founding affidavit) and David Ramabulana (a person allegedly identified by the applicant for recognition as acting King of Vhavenda Community)

[33]      It is trite law that the first and or second respondents are bound to exercise the public power and to perform a public function of recognising a person identified by the Royal Family. The first and second respondents failed, if not, it skipped their minds to inform the applicant of the caveat created by the Higher Courts, more especially, the Supreme Court of Appeal, that no one shall be recognised, even in an acting capacity, pending finalisation of the review application.

[34]      It is clear from the first and second respondent’s version supported by an umpteenth exchange of communique between parties, including other members of Ramabulana communities, is that the determination of the review application under case number 773/2012, pends before the Court of this Division.

[35]      Failure on the part of the first and second respondents to highlight the caveat created by the higher court, prompted the applicant to approach this court with this application.

[36]      I, based on the view express above, I am of the view that the first and second respondents, falls to be mulcted with costs of the applicant and fifth respondent’s costs on party and party scale, the one paying, the other to be absolved.

[37]      I in the result, make the following order:

Order.

37.1    Application for condonation for the late filing of the first and second respondents’ notice of intention to oppose and answering affidavit is granted.

37.2    The applicant’s application is dismissed.

37.3    The first and second respondents are ordered to pay, on party and party scale, costs of the applicant and the fifth respondent, the one paying, the other to be absolved.

 

 

 

AML PHATUDI

JUDGE OF THE HIGH COURT

 

 

 

APPEARANCES

 

FOR THE APPLICANT                            :        MR S.O. RAVELE

INSTRUCTED BY                                    :        S.O. Ravele Attorneys

Makhado-Thohoyandou

Email                                                        :

 

FOR THE 1 and 2 RESPONDENTS:     Adv. Z.S. MOTHUPI

INSTRUCTED BY                                    :        State Attorneys.

Thohoyandou

FOR THE 5 RESPONDENT                     :        Adv. J ROUX SC

Adv. L.F. TALJAARDT

INSTRUCTED BY                                     :        Hammann-Moosa

Incorporated-

Thohoyandou

HEARD                                                      :        29 November 2022

JUDGMENT                                               :        13 December 2022

 

JUDGEMENT          DATE                        : Judgment handed down electronically by circulation to the parties’ legal representatives by email and publication through SAFLII. The date deemed handed down is 13 December 2022.

 

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