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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 2715/2010

In the matter between:-

RALEIE TSHEPO ROBERT MAAKANE …................................................First Applicant

JOSIA LEKOANE …..............................................................................Second Applicant

DANIEL M MODISANYANE …..................................................................Third Applicant

BILLY MESHAK MOLOTSANE …..........................................................Fourth Applicant

MOTLALEPULE YVONNE MATHEBE …..................................................Fifth Applicant

WONDER DIMAKATSO MOSINA ….........................................................Sixth Applicant

LESLEY FREDERICK KGOBANE …...................................................Seventh Applicant

MARGARET MAMOTSEKU SIKWANE …..............................................Eighth Applicant

EZEKIEL OMPHILE MAAKE …................................................................Ninth Applicant

AMANDA P NTHADI …............................................................................Tenth Applicant

BENSON LESEGO MAAKANE …......................................................Eleventh Applicant

and

THE PREMIER OF THE NORTH WEST PROVINCE …........................First Respondent

MR J MOLOTO ….............................................................................Second Respondent

THE ROYAL FAMILY OF THE BAPO BA MOGALE

COMMUNITY …....................................................................................Third Respondent

THE NORTH WEST HOUSE OF TRADITIONAL LEADERS …........Fourth Respondent

THE MEMBER OF THE EXECUTIVE COMMITTEE OF

THE NORTH WEST PROVINCIAL GOVERNMENT

RESPONSIBLE FOR LOCAL GOVERNMENT AND

TRADITIONAL AFFAIRS …..................................................................Fifth Respondent

CIVIL MATTER

DATE OF HEARING : 12 MAY 2011

DATE OF JUDGMENT : 23 JUNE 2011

COUNSEL FOR THE PLAINTIFF : MR EISER

COUNSEL FOR THE DEFENDANT : ADV KHOZA SC

with ADV CHWARO

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JUDGMENT

HENDRICKS J

[A] Introduction:-

[1] In this application, the Applicants seek an order in the following terms of the Amended Notice of Motion:-

“1. The application is heard as one of urgency and the usual forms and time periods stipulated in the rules of Court are dispensed with.

2.1 That the circular dated 5 November 2010 purportedly under the name of the Traditional Council of the Bapo Ba Mogale Community calling for nominations for persons to be elected as part of the 40% elected component of the so-called Traditional Council of the Bapo Ba Mogale Community is declared invalid and set aside.

2.2 Any decision of the Fourth Respondent which has the effect of terminating the period of office of the applicants as members of the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Traditional Authority prior to 21 May 2012 is hereby reviewed and set aside and declared to be unlawful and of no legal force or effect.

2.3 Any decision of the Fifth Respondent which has the effect of terminating the period of office of the applicants as members of the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Traditional Authority prior to 21 May 2012, including but not limited to the holding of elections for elected members of the said Authority or so called Council on or before 18 April 2011, is hereby reviewed and set aside and declared to be unlawful and of no legal force or effect.

2.4 Any decision of the Third Respondent which has the effect of terminating the period of office of the applicants as members of the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Traditional Authority prior to 21 May 2012 is hereby reviewed and set aside and declared to be unlawful and of no legal force or effect.

2.5 Any decision of the First Respondent which has the effect of terminating the period of office of the applicants as members of the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Traditional Authority prior to 21 May 2012, including but not limited to the holding of elections for elected members of the said Authority or so called Council on or before 18 April 2011, is hereby reviewed and set aside and declared to be unlawful and of no legal force or effect.

3. That the nomination of any person for election to the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Community with the intention of the nominated persons or any of them when elected displacing any of the applicants or of terminating their membership of the said Authority or so called Council prior to 21 May 2012 is declared and of no legal force and effect and is set aside.

4. That the first and/or second and/or third respondents and/or fourth respondent and/or fifth respondent are interdicted and restrained from:

4.1 proceeding with any nomination process for the election of any person as part of the 40% elected component of the members of the so called Traditional Council of the Bapo Ba Mogale Community or the Traditional Authority of the Bapo Ba Mogale Community in terms of section 3 of the Traditional Authorities Leadership and Governance Framework Act 41 of 2003 as amended, and/or in terms of North West Traditional Leadership and Governance Act 2 of 2005 which will have the effect of terminating the period of office of the applicants as members of the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Community prior to 21 May 2012.

4.2 proceeding with any election of any person as part of the 40% elected component of the members of the so called Traditional Council of the Bapo Ba Mogale Community or the Traditional Authority of the Bapo Ba Mogale Community in terms of section 3 of the Traditional Authorities Leadership and Governance Framework Act 41 of 2003 as amended, and/or in terms of the North West Traditional Leadership and Governance Act 2 of 2005 which will have the effect of terminating the period of office of the applicants as members of the Traditional Authority or so called Traditional Council of the Bapo Ba Mogale Community prior to 21 May 2012.

5. The first respondent is ordered to pay the costs of this application on the scale between attorney and own client.

6. Further and alternative relief.”

[2] As far as paragraph 1 is concerned, the matter came before this Court as an urgent application on 18 November 2010 but was struck from the roll due to lack of urgency. The matter then followed the normal cause. I need not express myself any further with regard to this prayer. It is evident from the contents of the Amended Notice of Motion that it prays for:-

[i] a declaratory order;

[ii] a review; and

[iii] an interdict.

[B] Background:-

[3] Section 212 of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”) provide for:-

“Role of traditional leaders

212. (1) National legislation may provide for a role for traditional leadership as an institution at local level on matters affecting local communities.

(2) To deal with matters relating to traditional leadership, the role of traditional leaders, customary law and the customs of communities observing a system of customary law-

1. national or provincial legislation may provide for the establishment of houses of traditional leaders; and

2. national legislation may establish a council of traditional leaders.”

[4] In compliance with section 212 of the Constitution, Parliament enacted the Traditional Leadership and Governance Framework Act 41 of 2003 as amended by Act 23 of 2009 (the NFA), to regulate and to provide a statutory framework for leadership positions within the institution of traditional leadership in South Africa, with the aim to democratise traditional leadership within traditional communities in order to bring it in line with the Constitution.

[5] The NFA stipulated transitional arrangements that in effect recognised Tribal Authorities that existed at the time of its promulgation and deemed them to be Traditional Councils as contemplated in section 3 of the NFA. It was a requirement that such Traditional Councils should comply with the provisions of section 3 (2) in that part of the council must consist of elected members, which should also include women.

[6] The Bapo Ba Mogale Community (“the Community”) had a Tribal Authority, consisting of males drawn from the community before the commencement of the NFA. This Traditional Authority was recognised by the erstwhile Bophuthatswana regime in terms of the Bophuthatswana Traditional Authority Act 23 of 1978.

[7] In 2005, this Community endeavoured to transform itself in accordance with the provisions of the NFA. In compliance with section 3 of the NFA, the Chief nominated members of the Royal Family who constituted 60% of the members of the Traditional Council and the other 40% was elected by members of the Community. These people formed the newly constituted Traditional Council of the Bapo Ba Mogale Community.

[8] The North West Traditional Leadership And Governance Act 2 of 2005 (“the NW Governance Act”) came into operation on 20 March 2007. It repealed the Bophuthatswana Traditional Authority Act 23 of 1978 in terms of which the old Traditional Authorities of the North West were constituted. The coming into operation of this Act did not have a bearing on the existence of the Traditional Council of this Community although that Traditional Council did not strictly comply with the provisions of the NFA relating to the representation of women. The Traditional Council that was constituted in 2005 could continue to function as such until its term of office expired after the passage of five years.

[9] On 27 March 2008, the Chief purported to dissolve the Traditional Council. The Traditional Council refused to recognise its purported dissolution by the Chief and took the decision on review. The matter was heard by Sithole AJ and judgment was by then reserved. In the interim, while awaiting the outcome of the reserved judgment, and because of the fact that the affairs of the Community were not being governed by anyone and/or that the Traditional Council was dysfunctional, mainly because of the decision of the Chief, the First Respondent, in consultation with the Royal Family, appointed an Administrator in terms of section 10 of the North West Governance Act.

[10] Towards the end of his term of office, the Administrator facilitated elections of a “new” Traditional Council. This was done while the judgment by Sithole AJ was still awaited. He sought to get the members of the purportedly dissolved Traditional Council to resign their seats and accept payments of R25 000-00 in lieu thereof. Some members apparently accepted this proposal and others did not. The Applicants contend that they, together with Mr. P.B. Maimane, were elected instead as members of the Traditional Council. [Although they still call it the Traditional Authority.] Mr. Maimane is not party to these proceedings.

[11] The long awaited reserved judgment was handed down during February 2011. In terms of this judgment, the decision of the Chief to dissolve the Traditional Council was reviewed and set aside, with the effect that the Traditional Council that existed when that review application was launched was reinstated. It remains a contentious and unresolved issue as to whether the Applicants were indeed properly and constitutionally elected as replacements of the members who opted to resign. No proof of such resignations is attached to the papers. Neither is there any confirmatory affidavits attached of those who allegedly resigned. In any event, the resignation of these members is disputed by the Respondents. Be that as it may, it is not necessary, for the purpose of this judgment, for this Court to pronounce on the validity of the elections of the Applicants as members of the Traditional Council or whether the Administrator had the necessary authority to conduct the elections. At best for the Applicants, if it is accepted that they replaced the members who had resigned, they would step into the shoes of such members.

[12] It is common cause that the lifespan of the Traditional Council is a period of five (5) years. The period of the Traditional Council was with effect from 23 September 2005 and was to expire on 24 September 2010. Seeing that the five year period had expired on 24 September 2010, it was contended on behalf of the First Respondent that it is incumbent to begin a process of electing a new Traditional Council. Nominations for possible candidates for election as traditional councillors for the community were invited. Elections were scheduled to take place on 18 April 2011. It is commonly known that the elections did not take place. However, the request for nominations prompted the launch of the present application.

[C] Issues to be decided:-

[13] The vital important issue to be decided is the effect of the amendments to the NFA and coincidental thereto, whether the Applicants are entitled to apply for an order interdicting the Respondents from holding the planned elections.

Section 28 (4) of the NFA as originally enacted when it came into force on 24 September 2004, stipulated:-

“A tribal authority that, immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional council contemplated in section 3 and must perform the functions referred to in section 4: Provided that such a tribal authority must comply with section 3 (2) within one year of the commencement of this Act.”

Section 3 (2)(c)(ii) of the Traditional Leadership and Governance Framework Act 41 of 2003, as amended, provides as follows:-

“3 Establishment and recognition of traditional councils

1. …..

2. …..

(c) The members of the traditional council must comprise-

(ii) other members of the traditional community who are democratically elected for a term of five years aligned with the term of office of the National House of Traditional Leaders and who must constitute 40% of the members of the traditional council.”

[14] Section 28 (4) of the NFA as originally enacted required compliance with the proviso to it within a period of one year of the act coming into force. This year expired on 23 September 2005. National Parliament retrospectively amended the NFA by Act 23 of 2009, which came into force on 1 February 2010. It is contended by the Applicants that the effect of the retrospective amendment of the NFA is that the window period in section 28 (4) was extended to 7 years, which means that the term of office of the members of the Traditional Council of this community will expire on 23 September 2011.

[15] Furthermore, it was submitted on behalf of the Applicants, that the term of five years of each elected member is not simply five years, but is five years aligned with the term of office of the House of Traditional Leaders. The legislation governing the National House of Traditional Leaders which was in force when the amendment to the NFA took effect, is the National House of Traditional Leaders Act 22 of 2009 (“the NHA”), which came into force on 27 January 2010.

[16] Section 2 of the NHA stipulates that the term of the National House of Traditional Leaders established thereby is five years. This section goes on to say that notwithstanding the dissolution of the house created in terms of section 21 (which is at the end of its term of office or a vote of two thirds of the full complement of the members of the house) every person who was a member of that house remains a member of the new house. This is obviously a reference to the members of the National House of Traditional Leaders who were members of the National House of Traditional Leaders under the repealed Act.

[17] The NHA stipulates that the term of office of the National House of Traditional Leaders would continue until expiration of the five-year period thereof. The five-year period will expire on 21 May 2012. It was contended on behalf of the Applicants that five days later, the retrospective amendment of the of the NFA came into force and, among other things, amended the period of office of members of the Traditional Authority of communities to be aligned with the period of office of the members of the National House of Traditional Leaders. Irrespective of the date, so it was submitted, (as long as it was between 24 September 2004 and 31 January 2010) on which members where elected to their positions, their period of office is deemed to have commenced on 22 May 2007 and will expire on 21 May 2012.

[18] In my view, the legislature never intended to extend the period of Traditional Councils that were elected in 2005 so as to align these with the term of office of the National House of Traditional Leaders which took office in 2007, rather it was intended that upon the expiry of the five year period in 2010, the new Traditional Council’s period be aligned with the period of the current National House of Traditional Leaders.

[19] Section 25 of the National House of Traditional Leaders Act 22 of 2009, which came into effect on 27 January 2010, cannot be read as extending the term of office of the Traditional Councils, which are of course, not Traditional Leaders by definition. To the contrary, what section 25 of Act 22 of 2009 seeks to achieve is to recognise the members of the National House of Traditional Leaders who were elected into office in terms of the repealed Act to remain as such until the expiry of the five year term in 2012.

[20] I am of the view that the constitutional scheme of all these relevant provisions is to ensure consistency and uniformity in terms of the periods of office of all institutions of Traditional Leadership and to assume otherwise will be to offend against the spirit and purpose of bringing the institution of Traditional Leadership in synch with constitutional norms and practices.

[D] Interdicts:-

[21] The orders sought by the Applicants are, by all intents and purposes, final interdicts in nature and the Applicants would then have to satisfy the three well known requirements for the granting of a final interdict. It is common cause that the term of office of the Traditional Council has expired on 24 September 2010.

[22] It is accepted, for the sake of argument, that the Applicants were elected as replacement members for the members that had resigned, then the Applicants’ terms of office has expired by passage of time on 24 September 2010 and they thus have no real right which entitles them to the relief sought and cannot claim any apprehension of prejudice thereto.

[E] Review:-

[23] The Applicants allege that they have all the facts to this matter and as such a Rule 53 review is not necessary. I do not agree with this allegation. Not only has this Court been denied an opportunity to receive the record and reasons of all the relevant stakeholders who are part of the decision making in the reconstitution of Traditional Councils, but it also undoubtedly proofs that the Applicants have an alternative remedy in the form of a review in terms of Rule 53 which process will allow the full ventilation of all the issues.

[F] Conclusion:-

[24] In the premises, the Applicants have not satisfied the requirements for the granting of a final interdict and also have not made out a case for the other relief sought.

[G] Costs:-

[25] The First Respondent’s counsel submitted that in the event the application be dismissed, the cost order should be as between attorney and client. This contention is based on the premise that the application is frivolous and that the Applicants must have been aware or, in the alternative, should have been legally advised that they do not have a right to stop the intended elections. I agree with this submission.

[26] First Respondent’s counsel furthermore submitted that such costs should include the costs occasioned by the employment of two counsel. Having regard to the complexity of this matter, I am of the view that the employment of two counsel was justified.

[H] Order:-

[27] Therefore the following order is made:-

The application is dismissed with costs on an attorney and client scale which costs to include the costs occasioned by the employment of two counsel.

R D HENDRICKS

JUDGE OF THE HIGH COURT

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