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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO LOCAL DIVISION, THOHOYANDOU

Case No: 291/2015

 Reportable: YES

Of interest to other judges: NO

Revised.

In the matter between:

MULAUDZI, AZWIFULUFHEDZI WILLIAM                                                        APPLICANT

And

HEAD OFFICE: VUWANI MAGISTRATE OFFICE                             FIRST RESPONDENT

MINISTER OF JUSTICE AND CORRECTIONAL

 SERVICE                                                                                      SECOND RESPONDENT

MUUNGAMUNWE COMMUNITY PROJECT                                        3^RD RESPONDENT

MINISTER OF RURAL DEVELOPMENT AND

LAND REFORM                                                                                      4^TH RESPONDENT

MEC OF AGRICULTURE & ENVIRONMENTAL

AFFAIRS                                                                                                 5^TH RESPONDENT

HA-MUTSHA TRADITIONAL COUNCIL                                                   6^TH REPONDENT

MUGIVHI ROYAL COUNCIL

 

JUDGEMENT

 

 

A.M.L. PHATUDI (J)

[1] The applicant seeks an order

‘1. Reviewing, correcting and setting aside the permission to occupy issued by the Vuwani Magistrate… on or about 21 September 1998 for allocation of 87 hectors of land for agricultural use to Muungamunwe Community Project (Khwekhwe)…

2. Declaring the said permission to occupy referred to in paragraph 1 above to be null and void ab initio; and to be of no legal force and effect…’[1]

[2] It is only the third respondent who is opposing the application. The first and second respondents filed their notice to abide. The 5^th respondent, without any indication on whether he/she will abide by the court’s decision or not, or whether he/she intends to oppose the application or not, filed through State Attorney, what it refers to as the “Records of proceedings”.

[3] It is averred that Muungamunwe Community Project, which was established in 1997 applied to Mugivhi Royal Council under the leadership of the Late Chief Thanyani Thompson Mugivhi for usage of a piece of land for agricultural purposes[2]. The Royal Council supported the application and recommended to Limpopo Department of Agriculture and Rural Development (LDARD) for demarcation of land to that effect. LDARD submitted all documentation to Vuwani Magistrates Court for issue of the permission to occupy the demarcated land to Muungamunwe Community Project[3]. The Permission to Occupy was issued on the 06 April 1999.[4]

[4] The 3^rd Respondent raises three (3) in limine points. I heard submissions in respect of the said points. On my consideration of the matter, it dawned on me that it is only the full bench[5] that can set the magistrate’s decisions, orders and or judgments aside. I then invited the parties’ legal representatives to make submissions as to whether a single High Court judge is competent to review Magistrate’s decision(s), order(s) and or ruling as a principle and in particular, the one sought to be reviewed, being that of Vuwani Magistrate over the Permission to Occupy issued.

[5] Mr Sikhwari, counsel for the applicant, submits that section 21(1)[6] of the Superior Courts Act, Act 10 of 2013 empowers the High Court to review the proceedings of all Magistrates’ Courts. He contends that the word “proceedings” enunciated in section 21(1) (b) does not only refer to judicial process. He opines that the meaning of the word is wide enough to mean any act and or performance executed in line with or within the magistrates’ scope and duties which includes the issuing of permissions to occupy. He lastly submits that it is only the Full Bench[7] or Full Court[8] of the Division that can set the magistrates’ decisions aside. He opines that this court should refer the matter to the Full Bench for adjudication.

[6]     In rebuttal thereto, Mr Mathivha, counsel for the 3^rd respondent submits that issuing of permissions to occupy does not fall within the scope and duties of magistrates as judicial officers. He submits that the power to issue permissions to occupy rests with the Councillor as defined and empowered by Venda Land Affairs Proclamation 45 of 1990[9](VLAP).He refers to section 27 (1) which stipulates:

‘(1) The Councillor may, in the manner prescribed and after consultation with the territorial council concerned, grant and record permission to any person to occupy-

(a)  A demarcated allotment; or

(b)  An erf in an approved town which is situated in the area of jurisdiction of a territorial council on government land or authority land

[7]     Counsel submits that the Councillor may delegate any power conferred upon him under the VLAP to be exercised by any officer in the service of the Government. He submits that an officer in the service of the Government who has been delegated by the Councillor to perform a duty or power conferred upon the Councillor will not have any other power other than the one delegated. He opines that the person or Vuwani Magistrate who issued the permission to occupy that is sought to be reviewed and set aside, did so as a Councillor and not as the magistrate in his/her capacity as such but acted as a Councillor as assigned[10] or delegated[11].

[8]     Counsel further submits that it was never and still not within the magistrates’ duty or function to issue permissions to occupy. Magistrates act as a Councillor when they issue permissions to occupy. He lastly submits that the Councillor was neither a judicial officer nor had powers to delegate such judicial powers. The Councillor, in delegating to magistrates to issue permissions to occupy, does so to magistrates as officers in the service of the Government and not as magistrates in their capacity as judicial officers.

[9]     It is trite law that the Republic of Venda was a homeland within South Africa. A “homeland” means a part of the Republic which, before the previous Constitution took effect, was dealt with in South African legislation as an independent or a self-governing territory. (See section 1: Schedule 6 of the Constitution of the Republic of South Africa 1996). Transitional arrangements of incorporation of the laws and regulations of homelands into those of the democratic Republic of South Africa are governed in terms of Schedule 6 of the Constitution of the Republic of South Africa Act 1996 (Constitution).[12]  Section 2(1) of Schedule 6 provides that ‘[a]ll law that was in force when the new Constitution took effect, continues in force, subject to—

(a) any amendment or repeal; and

(b) consistency with the new Constitution.

[10]   I cannot agree more with the respondent’s counsel that Venda Land Affairs Proclamation 45 of 1990 has not been repealed by any law to date. VLAP is still in full force an effect. VLAP stipulates that the chairman of the Council of National Unity may assign the administration of any provision in the Proclamation to the Councillor any power, duty or function or in so far as such provision relates to any matter mentioned in such assignment[13]. The Councillor who delegates any power conferred upon him/her under this Proclamation to any person who is an officer in the service of the government, does so only in so far as such powers go.

[11]   I cannot agree more with the respondent’s counsel that delegata potestas non potest delegari (no delegated powers can be further delegated). The Councillor can thus not delegate to the magistrate judicial functions or duties which he/she as the Councillor has not been conferred by the Proclamation. Put differently, the Proclamation does not confer the Councillor any judicial duty or function other than that stipulated in VLAP. All that the Proclamation does is to confer to the Councillor the administrative power, duty or function espoused in the Proclamation. Such power, duty or function includes, among others, the issuing of the “Permission to Occupy” as provided for in terms of section 27 of Venda Land Affairs Proclamation 45 of 1990.

[12]   It is trite law that the judicial authority of the Republic of South Africa is vested in the courts[14]. The Constitutional Court is at the apex and the Magistrates Courts at the bottom of the pyramid (see section 166 of the Constitution). The High Court has jurisdiction to hear and adjudicate reviews and or appeals emanating from the Magistrates’ Courts[15] that fall within the Division’s geographical jurisdiction[16].

[13]   Reviews and or appeals from the Magistrates’ Courts are adjudicated over and heard by two judges (full bench). Magistrates’ orders, decisions and or judgments reviewable may either be criminal or civil cases[17]and taxations[18] of legal practitioners’ bills of costs. Reviews emanating from criminal cases may either be automatic[19] or special[20] as provided in terms of Criminal Procedure Act 51 of 1977. In both instances, the High Court will determine if the proceedings at the Magistrates’ Courts were in accordance with justice. If the proceedings are found not to be in accordance with justice, only two judges adjudicating over the matter may set the order, decision and or judgment aside without hearing any parties or they may call upon parties to make either written or viva voce submissions in open court.

[14]   Reviews on civil matters may be adjudicated over and heard as provided for in the Superior Courts Act 10 of 2013[21]. Equally, two judges must adjudicate or call upon the parties to make either written or viva voce submissions in an open court.

[15]   In my final analysis on whether this court has jurisdiction to determine and hear this matter, I find that Vuwani Magistrate (first respondent) was acting as a Councillor with powers, duties or functions set out in VLAP and not as a judicial officer when issuing the permission to occupy that is sought to be set aside. I thus find that this court (single judge) has jurisdiction to hear this matter. I now turn to in limine points raised by the 3^rd respondent.

LOCUS STANDI

[16]   The applicant alleges to have been duly recognised by the relevant authorities including the Premier of Limpopo Province as a regent of Muungamunwe Village within Ha-Mutsha Traditional Council under Mugivhi Royal Council with effect from 05 May 2014. He attached a letter from the Department of Co-Operative Governance, Human Settlements and Traditional Affairs.[22] The letter stipulates:

‘You are kindly informed that the Honourable Premier has with effect from 05 May 2014 approved the recognition of Mulaudzi Azwifhulufhedzi William as Regent of Muungamunwe village in terms of section 14(1) (b) of Limpopo Traditional Leadership and Institutions Act no 06 of 2005.’

[17]   In rebuttal to the applicant’s contention, the respondent avers that ‘when the Premier of the Limpopo Province recognises a person to fill the position of a vacant Headman by recognising a regent, he does so by notice in the Provincial Gazette; issue certificate of recognition and then inform the Provincial House of Traditional Leaders and the relevant Local House of Traditional Leaders of the recognition’. The respondent further avers that the letter annexed as proof of appointment is ‘neither a notice in the gazette recognising the applicant nor is it a certificate of recognition required in terms of section 14 of the Limpopo Traditional Leadership and Institution Act no:06 of 2005’.

[18]   Section 14(1) of the Limpopo Traditional Leadership and Institution Act provides:

(1) Where the successor to the position of king, queen, senior traditional leader, headman or headwoman is still regarded as a minor in terms of applicable customary law or customs-

(a) the royal family concerned must, within a reasonable time-

(i) identify a regent to assume leadership on behalf of the minor; and

(ii) through the relevant customary structure, inform the Premier of the particulars of the person identified as regent and the reasons for the identification of that person; and

(b) the Premier must, with due regard to applicable customary law or customs, and subject to subsection (2)-

(i) by notice in the Gazette recognise the regent identified by the royal family in terms of subsection (1);

(ii) issue a certificate of recognition to the regent so recognised; and

(iii) inform the provincial house of traditional leaders and the relevant local house of traditional leaders of the recognition of the regent concerned; and

(c) The Premier must review the recognition of a regent every 12 months 

[19]   Mr. Mathivha submits that the applicant has not been recognized as a regent. He submits that the letter only states that Premier has only approved the application for recognition of the applicant as a regent. He further submits that if the Premier has recognized the applicant, the Premier ought to have (i) recognized him by notice in the Gazette and (ii) issued a certificate of recognition. On the other hand, Mr. Sikhwari submits that the letter annexed is an official document that proves the applicant’s recognition as a regent which is sufficient enough to prove his locus standi.

[20]   It is trite that in motion proceedings, parties stand and fall by their papers. It is further trite that the parties’ locus standi must appear ex facie the pleadings.[23] Equally, a person who wishes to challenge a party’s authority in circumstances where, the challenged authority may, on the face of it, be deemed to be authentic, a party so challenged may confirm the existence of such authority with at least minimum formal evidence.[24]

[21]   The applicant averred that he has been duly recognised by the relevant authorities including the Premier of Limpopo Province. In support thereto, the applicant annexed a letter indicating the “approval” of his recognition. The respondent contends that the usage of the words “been duly recognised as such” meant that the applicant has been recognised in terms of section 14 of the Limpopo Traditional Leadership and Institution Act. In his replying affidavit, the applicant simply states that he stands by the contents of his founding affidavit and that he is ‘the de facto and de jure traditional leader of Muungamunwe village’ as a regent. The words “have been duly recognised” indicates, in my view, that the applicant has been recognised as a regent in accordance with the provisions stipulated in section 14(1) (b) of the Act. If the applicant was indeed recognised as a regent, he would have attached a certificate of recognition issued by the Premier of Limpopo Province[25]as minimum formal evidence to that effect. Annexure M1 was issued on the 28 May 2014. In my view, M1 was issued in the process of “recognising” the applicant as a regent. The said letter is not a certificate of recognition. The applicant deposed to the replying affidavit on the 06 May 2016. In my view, the applicant ought to have attached a certificate of recognition issued by the Premier of Limpopo with his replying affidavit evidencing such recognition. Put differently, the applicant was expected or reasonably expected to have had such a certificate by the time he received the respondent’s answering affidavit challenging his locus standi. I agree with the respondent’s counsel that the letter the applicant relies on is not a certificate of recognition as a regent.

[22]   I digress to mention that a regent is defined as “any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position in a temporary capacity until a successor to that position who is a minor, is recognised”. A regent is recognised to hold office only for a period of 12 months (see section 14(1) (c)).[26]The applicant failed to produce a certificate of recognition issued by the Premier of Limpopo either as at 2015[27] or 2016.[28] In my view, the applicant ought to have at least made a full disclosure of the certificate of recognition issued by the Premier of Limpopo Province as opposed to a letter which was issued in the process of recognising him as regent. The applicant contended in his replying affidavit that he acts in his capacity as a leader of the traditional leadership/royal house of the Royal Family which is ruling at Muungamunwe village. There is no power of authority or a resolution by either the “traditional leadership” or the “Royal Family” authorising him to either depose to or institute the action before this court. I thus find that the applicant lacks the required locus standi in judicio.

[23]   Lack of locus standi in judicio brings an end to the matter. It will thus be moot to deal with other in limine points raised.

[24]   It is trite that costs follow the event. The respondent substantially succeeds with its opposition and thus entitled to the costs occasioned by this litigation.

[25]   I in the result, make the following order.

ORDER

25.1  The application is dismissed with costs

A.M.L. PHATUDI

Judge of the High Court.

For the Applicant:  Adv. MS Sikhwari

Instructed by:  Messrs Mvundlela and Associates Attorneys

For the Respondent:  Mr VR Mathivha

Instructed by:  Messrs Mathivha Attorneys

Date of Judgment: 21 February 2017

 

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