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Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M139/2015) [2016] ZANWHC 44 (22 September 2016)

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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

CASENO: M139/2015

In the matter between:

ABBEY ABRAM MAFATE                                                                              1ST APPLICANT

TSHEPO  RELEIE MAAKANE                                                                       2ND APPLICANT

AND

BAPO BA MOGALE TRADITIONAL COUNCIL                                       1ST RESPONDENT

KGOSI BOB EDWARD MOGALE                                                            2ND RESPONDENT

PREMIER OF THE NORTH WEST PROVINCE                                        3RD RESPONDENT

 

DATE OF HEARING                                             : 08 SEPTEMBER 2016

DATE OF JUDGMENT                                         : 22 SEPTEMBER 2016

 

COUNSEL FOR THE APPLICANTS                     : ADV. BOSCH

COUNSEL FOR THE RESPONDENT                   : ADV. KGARIYA

JUDGMENT

DJAJE AJ

[1] This is an application for an order reviewing and setting aside the decision by the First Respondent to suspend the Applicants as its members. The Applicants also seek an order reinstating them as members of the First Respondent and payment of the remuneration that they would have received in their capacity as members of the First Respondent but for their suspension.  No order is sought against the third Respondent.

Background

[2] The Applicants were elected as members of the First Respondent during the elections which took place on 8 January 2014 , in accordance with section 6 of the North West Traditional Leadership and Governance Act 2 of 2005  ("NWA").  In March 2014 they were informed of the outcome of the elections.

[3] On 1 July 2014 the First Applicant attended a council meeting and there were accusations made against him at the said meeting. He was accused of leaking council information to members of the community and preventing the Kgosi's uncle from addressing the community in Wonderkop regarding the Equity Agreement with Lonmin Platinum Mine. It was at the said meeting that he was subjected to a body search and escorted out of the council chambers. The First Applicant then received a letter on 22 July 2014 from the First Respondent informing him of his suspension without pay. Again on 11 August 2014 he received a letter from the First Respondent to attend a hearing with the General Royal Council to discuss his suspension. He decided not to attend the said hearing, reason being that as a council member he had never heard of the existence of such a council. Thereafter, he addressed a letter to the First Respondent trying to address his suspension but received no response and he remains suspended without pay.

[4] The Second Applicant's suspension was different from that of the First Applicant. He attended a council meeting on 15 May 2014 and on his arrival at the Royal Palace he was denied access into the meeting. The explanation given to him was that the office of the Kgosi, the Kgosi being the Second Respondent in this application, has resolved not to engage or associate with him because of his attacks on that office. He then wrote a letter to the First Respondent enquiring about his suspension and there was no response. His constituency was informed that they would be invited to a meeting at the Royal Palace to address their concerns. The said meeting did not materialise.

[5] In July 2014 the Second Applicant was invited by the First Respondent to a meeting to discuss his conduct towards the Kgosi. His constituency, including his head man did not allow him to attend the said meeting. Thereafter, the Second Applicant, through his Attorney wrote to the First Respondent in an attempt to resolve the impasse but it proved unsuccessful.

Point in limine 

[6] The Applicants raised a point in limine that the deponent to the answering affidavit, Mr Radibokonyane Emias Mogale ("Mr Mogale"), was not duly authorised to do so on behalf of the First Respondent. It was argued on behalf of the Applicants that the letter attached to the answering affidavit is signed by the "Head of External Affairs and Communications" in the office of the Kgosi. The letter does not make any mention of the council. The letter provides that Mr Mogale is granted permission to depose to the founding affidavit on behalf of the office of the Kgosi. The contention was that the deponent's lack of authority renders the matter unopposed.

[7] In contention the Respondent argued that the deponent to the answering affidavit is the Rangwane to the Kgosi (Kgosi's uncle) and he is the current administrator of the Bapo BaMogale Traditional Authority . Therefore he is authorised to depose to the answering affidavit on behalf of both the First and Second Respondent.

[8] It is trite that where an association institutes legal proceedings, it must appear that the person who makes the petition on behalf of that association is duly authorised by it to do so. See: Yiba and Others v African Gospel Church 1999(2) SA 949.

[9] In the matter of Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) at 351D-G the following was stated:

". . . . . . . . . . . . . . . . . ...Unlike an individual, an artificial person can only function through its agents and it can only take decisions by the passing of resolution in the manner provided  by its constitution."

[10] In chapter 6 of the NWA on Governance matters section 32 provides as follows:

"Any legal proceedings by or against a traditional community or traditional council may be instituted by or against the kgosi or kgosigadi of that traditional community or traditional council in his/her official capacity "

[10] The deponent to the answering affidavit has referred to a document attached to the answering affidavit as a resolution of the

council authorising him to act on behalf of the council  and  the Kgosi. The said document is on the letter heads of "OFFICE OF THE KGOSI" and addressed to "TO WHOM IT MAY CONCERN". The contents are as follows :

"These serves as confirmation that Motalane Kgariya Incorporated Attorneys have been appointed by the office of the Kgosi of the Bapo Ba Mogale as legal representatives of the Bapo Ba Mogale Traditional Council for the application for review under case number M139/15 at the High Court of South Africa ( North West Division) brought against Kgosi Bob Edward Mogale and the Bapo Ba Mogale Traditional Council by Mr Abbey Mafate and Mr Tshepo Maakane.

These serves further as confirmation that the office of the Kgosi of the Bapo Ba Mogale and the Kgosi have familiarised themselves with the facts of the matter and duly authorises Mr Radibokonyane Emias Mogale to depose to the founding affidavit on behalf of the Kgosi."

[11] A close reading of the above contents makes no reference to a resolution taken by the Bapo Ba Mogale Traditional Council that Mr Radibokonyane Emias Mogale is authorised to act on behalf of the council. It is the office of the Kgosi that authorised him to depose to the "founding affidavit" on behalf of the Kgosi.  This is in compliance with the provisions of section 32 of the NWA that legal proceedings against a traditional council should be against the Kgosi in his official capacity . It is therefore proper that the office of the Kgosi gave the authorisation to the deponent of the answering affidavit on behalf of the First Respondent. The answering affidavit is therefore properly before court and the point in limine stands to be dismissed.

Issue

[12] The issue raised in this application is whether the suspension of the Applicants by the First Respondent is lawful and in accordance with the provisions of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").

Main Application

[13] The Applicants argued that the empowering statute in the establishment of traditional councils and the disqualification of members from the councils is the NWA read with the Traditional Leadership and Governance Framework  Act  41  of  2003 ("TLGFA"). It was the submission of the Applicants that the First Respondent did not comply with the above legislation in suspending them. Another argument advanced for the Applicants was that the decision of the First Respondent to suspend them constitutes an administrative action which is ultra vires, irrational and procedurally unfair. Further that the exercise of public power by the First Respondent was not authorised by law as provided by section 6(2) (a) (i) of PAJA which provides that an administrative action is subject to judicial review where the administrator  who took it "was not authorised to do so by the empowering provision".

[14] It was the Respondent's contention that the Applicants elected not to attend the hearings with the General Royal Council to discuss their suspensions . Further that the General Royal Council was convened by the Kgosi and his Uncle in terms of the Council's by­ laws which are binding on the Applicants when they accepted the positions of being members of the traditional council.  Therefore, the failure by the Applicants to attend the hearing resulted in their removal as members of the traditional council and other members of council were then elected. In relation to PAJA the Respondent argued that the Applicants had not exhausted internal remedies as provided for in section 7(2) before approaching this court. The said internal remedies being the hearing that was held on 22 August 2014 which they elected not to attend.

[15] Section 6 of the NWA provides that the Premier must publish the composition of any traditional council with the names of the members of such council. In section 8 (1) of the NWA provision is made for the vacation of a seat by a member of the traditional council. The section provides that the seat of a member shall become vacant (a) at the death of such a member; (b) if such member resigns; (c) if such member ceases to hold the position of kgosilkgosigadi,kgosana, as the case may be. Section 27 of the NWA refers to a code of conduct and the breach of the code which applies to the kgosi/kgosigadi or kgosana and the traditional council. However there is no prov1s1on in the section of the procedure to be followed in case of a breach of the code of conduct by a member of the council. Similarly the NWA does not make provision for the suspension of a member of the council or that a member is subjected to disciplinary processes by the traditional council.

[16] It has not been disputed that the decision by the First Respondent constitute administrative action as defined by PAJA. The traditional council is an organ of the state as it exercises public power and performs a public function in terms of legislation. The council derives its powers and functions from the NWA. The decision by the First Respondent to suspend the Applicants was not authorised by legislation and is therefore subject to judicial review.

[17] The Respondents had raised the issue of delay as provided for in section 7 of PAJA that the proceedings  should  be  instituted  no later than 180 days after the date on which the person affected was informed of the administrative action or became aware of such action. The Applicants were suspended in May and July 2014 respectively and this application was only filed on 30 April 2015. However, the Applicants have in the founding affidavit dealt with the reasons for the delay extensively and the reasons thereof. I do not wish to repeat the explanation furnished except to say that it was due to lack of resources for the Applicants as they are unemployed and have no means to afford legal representation. I find the said explanation reasonable and that it is in the interest of justice that the period of delay be extended as provided for in section 9 of PAJA. There is also no prejudice suffered by the Respondents.

[18] The First Respondent in suspending the Applicants had no lawful basis or authorisation by any empowering statute. According to the Applicants there  were  no  internal  remedies  provided  for  in the empowering legislation that they could have exhausted before approaching the court for review. The Respondents failed to provide this court with the Council By-laws that empowered the First Respondent to suspend the Applicants or convene bodies that have the power to suspend members of the traditional council. As such it is my view that the action of the First Respondent in suspending the Applicants was irrational, procedurally unfair and falls to be set aside.

[19] In conclusion, the Applicants have made out a case for the relief sought and are as a result entitled to the costs of the application.

Order

Consequently, I make the following order:

"1. The decision by the First Respondent on 1 July 2014 to suspend the First Applicant is hereby reviewed and set aside.

2.    The decision by the First Respondent to suspend the Second Applicant is hereby reviewed and set aside.

3.   The First and Second Applicants should be reinstated as members of the First Respondent.

4.    The First Respondent is directed to pay to the Applicants the remuneration they would have received in their capacity as members of the First Respondent but for their suspension.

5.  The First and Second Respondent to pay the costs of the application.



DJAJE AJ 

ACTING JUDGE OF THE HIGH COURT