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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 264/13

In the matter between:

KGOSI J JEM RAMOKOKA .....................................................First Applicant

BAPHALANE TRADITIONAL COUNCIL ..........................Second Applicant

and

BOSMAN NOAH RAMOKOKA .............................................First Respondent

COMMISSION ON TRADITIONAL

LEADERSHIP DISPUTES AND CLAIMS ........................Second Respondent

NORTH WEST COMMITTEE OF COMMISSION

ON TRADITIONAL LEADERSHIP .....................................Third Respondent

and

THE SALTIEL DIKELEDI

RAMOKOKA ROYAL FOUNDATION .............Applicant/ Intervening Party

and

KGOSI J JEM RAMOKOKA ..................................................First Respondent

BAPHALANE TRADITIONAL COUNCIL .......................Second Respondent

BOSMAN NOAH RAMOKOKA ...........................................Third Respondent

COMMISSION ON TRADITIONAL

LEADERSHIP DISPUTES AND CLAIMS ........................Fourth Respondent

NORTH WEST COMMITTEE OF COMMISSION

ON TRADITIONAL LEADERSHIP .......................................Fifth Respondent

________________________________________________________________

JUDGMENT

________________________________________________________________

LANDMAN J:

Introduction

[1] Kgosi James Joy Ernest Manotshe Ramokoka and the Baphalane Traditional Council (the first and second applicants) seek a final interdict restraining the Committee alternatively its parent Commission (the second and third respondents) from investigating, conducting hearings, compiling and submitting a report in respect of the dispute regarding chieftaincy over the Baphalane Tribe lodged by Bosman Noah Ramokoka (the first respondent) with the Committee on 23 April 2008. The Saltiel Dikeledi Ramokoka Royal Foundation seeks leave to intervene in the proceedings.

[2] The applicants also seek an order interdicting the first respondent from pursuing the dispute. And finally the applicants seek a punitive costs order against the Committee and the Commission who have opposed the application. The applicants want the Committee to pay the costs of this application on an attorney and own client scale, alternatively, that any of the respondents who opposes this application be ordered to pay the costs on an attorney and own client scale jointly and severally with the Committee, the one paying the other to be absolved.

[3] There was no appearance for the first respondent. Counsel for all the other parties agreed that I should decide the point of law.

The intervening party

[4] The intervening party may well have some interest in the outcome of this litigation but the outcome, no matter what I decided, would not bind them in any way. Whether they have recourse to the Commission is not an issue which I need decide.

The facts

[5] The first applicant is the current Kgosi (Senior Traditional Leader) of the Baphalane Traditional community situated at Ramokokastad in the North West Province. He is also the Chairperson of the Baphalane Traditional Council (the second applicant).

[6] The first respondent is a former Kgosi of the Baphalane Traditional Community who was removed as a Kgosi in 1996 and replaced by the first applicant’s father, Kgosi Kobeta Ramokoka. (Kgosi Kobeta).

[7] The second respondent is the Commission on Traditional Leadership

Disputes and Claims (the Commission) established in terms of section 22 of the Traditional Leadership and Governance Framework Act 41 of 2003 (the

Framework Act).

[8] The third respondent is the North West Committee of the Commission.

[9] The Saltiel Dikeledi Ramokoka Royal Foundation seeks to intervene in these proceedings.

[10] The Baphalane Tribe was ruled by Kgosi Rammalana Saltiel from 1955 until 1980. In 1980 the chieftaincy was taken over by the first respondent until he was dethroned in 1996.

[11] During 1994, while the first respondent was the Kgosi of the Baphalane Tribe, a Commission of Enquiry was established. It was chaired by Adv Molefe Martin Mabiletsa (the Mabiletsa Commission of Enquiry). Adv Mabiletsa was assisted by Kgosi Lucas Mabalane and Mr P P Ramonyane (an Etnologist). Mr G E Lobelo acted as a secretary. Adv Mogoeng Mogoeng (as he then was) together with Mr Tshepiso Mphahlane were the investigators and evidence leaders.

[12] The first respondent was represented at the Mabiletsa Commission by Mr Mdaka, an attorney. The dispute about the chieftaincy/Bogosi of the Baphalane Tribe was between the first respondent and the first applicant’s father, Kgosi Kobeta. The Mabiletsa Commission heard evidence from the royal family and other persons including the first respondent. The Mabiletsa Commission concluded and recommended that Kgosi Kobeta was the only one who was rightfully entitled to the throne and that the first respondent was in terms of the law bound to give way to Kobeta as Kgosi or Chief of the Baphalane Tribe.

[13] The Mabiletsa Commission of Inquiry was established and submitted its report after the elections of the Democratic Government of the Republic of South Africa.

[14] In September 1996 the Premier of North West Procvince, Mr Popo Molefe, in the company of all relevant stakeholders announced the findings of the Mabiletsa Commission to the Royal Family of Baphalane Tribe to the effect that Kgosi Kobeta was the rightful Chief and not the first respondent.

[15] Subsequently a new Tribal Council of the Baphalane Tribe was established and Kgosi Kobeta was inducted accordingly and recognized by the Premier. Kgosi Kobeta, the biological father of the first applicant, died in February 2010.

[16] The Premier then appointed a Regent to temporarily reign over the Baphalane Tribe until the first applicant returned to the Province. The first applicant says that the current Premier of the North West Province, Ms Modise, then recognized him, with effect from 10 January 2011, on the recommendation and with the blessing of the Royal family of the Baphalane Tribe as the Kgosi of the Baphalane Tribe. The certificate of recognition bears this out.

[17] The first applicant says that the recommendations of the Mabiletsa Commission as well as the recognition of Kgosi Kobeta, his father, were not challenged by anyone including the first respondent and have not been challenged to date.

[18] On 1 February 2010, Chapter 6 of the Framework Act was amended, as a result of which the Traditional Council was reconstituted and officially launched on 21 April 2011.

The first respondent’s claim

[19] A dispute about or claim to the first applicant’s chieftaincy was submitted by the first respondent to the Commission on 23 April 2008.

[20] The first applicant became aware of this dispute on or about 19 January 2013 when he was telephoned by Ms Mapaseka Majaja, an official of the provincial Committee of the Commission. She informed him that a dispute about his chieftaincy had been raised by the first respondent and that he should attend a briefing meeting on 23 January 2013. The first applicant attended the meeting.

[21] On 1 February 2013 the first applicant received a letter from Mr Majolla confirming the discussions at the meeting of 23 January 2013. The first applicant was granted twenty one days to prepare for the matter. The Committee would furnish him with the Mabiletsa Commission report and inform him of the date on which the first respondent’s claim was lodged. The letter also indicated that the Committee would send researchers to meet with him and the Royal family to gather more information on the matter. The next meeting was scheduled for 12 February 2013. The first applicant was also invited to a public hearing on 21 February 2013.

[22] After discussing the letter with the Baphalane Traditional Council on 5

February 2013 a response was sent. The response was to the effect that the dispute regarding the chieftaincy of Baphalane Tribe had been resolved and settled by the Mabiletsa Commission. The recommendations had been accepted and had been given effect to by the Premier.

[23] An attorney was appointed on 15 February 2013. On 18 February the attorney wrote to the chairperson of the Commission and the secretary of the Committee on 18 February 2013 affirming the applicants’ attitude.

[24] Mr Majolla, of the Commission responded on 19 February 2013 stating, inter alia, that since the Committee had been established in terms of the Framework Act, it is not "an appendage of the Mabiletsa Commission nor is it an Appeals Committee of the decisions that were taken by the Mabiletsa Commission."

[25] The Commission made it clear that the Committee would proceed with its scheduled public hearing on 21 February 2013 to receive inputs from the community with or without the presence of the first applicant. It would also continue to investigate the matter and make its findings accordingly.

[26] The first applicant contends that the Committee in essence is not even prepared to look at the report of the Mabiletsa Commission, not to mention taking it into account.

[27] It is unnecessary for me to set out any details of the Commission’s and the Committee’s response. Nor do I need to set out the details of the application to intervene. This is because the matter is to be decided on a narrow point of law. The facts set out in the founding affidavit are sufficient for this purpose.

Applicant’s submissions

[28] Adv Skosana, who appeared on behalf of the applicants, submitted that:

(a) the findings of the Mabiletsa Commission together with the endorsement thereof by the Premier were not challenged and have not been challenged to date by the first respondent or any other person.

(b) however, the Committee seeks to investigate and make findings or recommendations on the first respondent’s claim which he lodged with the Committee on 23 April 2008. His claim raised the same dispute that had been addressed by the Mabiletsa Commission ie whether the first applicant's predecessor was the rightful chief or himself.

(c) the findings and recommendations of the Mabiletsa Commission as well the endorsement thereof by the Premier constitute administrative actions. Both the actions of the Mabiletsa Commission and the former Premier were informed by virtue of legislation that was valid at the time.

(d) this administrative action was not challenged either by way of review or otherwise.

(e) this administrative action is valid and stands until it is set aside by a court of law. Only a court of law, and no another Commission, can set aside the administrative order. The quasi judicial nature of proceedings of commissions of inquiry makes the principle of res judicata applicable thereto in so far as the ill that the principle seeks to avoid such a multiplicity of actions and the consequent prejudice and injustice created thereby.

(f) anything done in terms of the Acts which are repealed by the North West Traditional Act Leadership and Governance Act 2 of 2005 ("North West Traditional Act") which is capable of being done under the North West Traditional Act, is deemed to have been done under the North West Traditional Act. See section 42(2) read with section 43(4) of the North West Traditional Act. The Bophuthatswana Traditional Authorities Act 23 of 1978 is the main enactment upon which the Mabiletsa Commission was established and was repealed by schedule 1 of the North West Traditional Act in its entirety.

(g) it follows therefore that the actions of the Mabiletsa Commission should be deemed to have been performed in terms of the current North West Traditional Act. This is yet another reason why the administrative action is still valid.

(h) the first respondent failed to take reasonable steps to investigate the reviewability of the administrative action but took an indifferent attitude for many years until twelve (12) years after the first applicant's predecessor had been installed. In fact a delay in challenging an administrative action validates it.

(i) Section 12 of the Interpretation Act 33 of 1957 contains a presumption against retrospectively. Section 12 reads:

“(1) Where a law repeals and re-enacts with or without modifications any provision of a former law, references in any other law to the provision so repealed shall, unless the contrary intention appears, be construed as references to the provision so re-enacted.

(2) Where a law repeals any other law, then unless the contrary intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as is in this subsection mentioned,

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed.”

(j) section 12 makes it clear that the repeal of a law does not necessarily lead to the undoing of what has been done in terms of the repealed law unless the contrary intention appears.

(k) section 25(2)(iii) of the Framework Act does not empower the Committee or the Commission to reverse a completed administrative action of another body of the same status. So too section 28(1) of the Framework Act. Both these sections of the Framework Act on which the respondents seems to rely heavily, do not deal with a situation where another Commission has made a decision or a finding.

[29] Mr Skonsana submitted, in the alternative, that the provisions of section 2B(1)(a) of the Framework Act does not apply in that the first applicant's predecessor was not merely appointed by virtue of provincial legislation but there was an investigation and findings with regard to such chieftaincy by the Mabiletsa Commission and an endorsement thereof by the former Premier. His appointment therefore stands on a different leg than the other normal appointment of Chiefs.

[30] Mr Skosana submitted that the Committee has tainted itself in a number of respects including the following:

(a) After finding the dispute raised by the first respondent, the third respondent immediately proceeded to investigate the matter without involving the first applicant thereby infringing upon his procedural right to be heard. Only after it had accumulated information did it then approach the applicant in January 2013, with pre- determined dates for public hearings, to participate. This was a mere lip service to the procedural compliance.

(b) It refuted the relevance of the Mabiletsa Commission Report to its process and investigation when it stated clearly that such report would not influence it in any way.

(c) The third respondent also clearly decided that the meeting of 21 February

2013 would proceed regardless of what the applicants might say especially with regard to the Mabiletsa Commission

[31] Therefore, he submitted, that the high-handed attitude of the third respondents, including its apparent bias, disqualified it from impartially adjudicating upon the dispute between the first applicant's predecessor and the first respondent, which was in any event conclusively decided by the Mabiletsa Commission.

[32] In conclusion Adv Skosana submitted that:

(a) There is also a failure on the part of the first respondent to exhaust internal remedies before approaching the third respondent as contemplated by section 21 of the Framework Act.

(b) The respondents are not entitled to deal with the dispute before and until the dispute has been addressed, by, or attempts made to resolve it through, the entities mentioned in this section.

(c) Consequently, it is submitted that the respondents have no power to deal with this dispute in this basis as well.

[33] As far as the decision of the e-tolling case is concerned, it is argued on behalf of the respondents that the relief sought by the applicant defeats the purpose of the statute and infringes upon the doctrine of separation of powers, and this is against the findings in the National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) (the OUTA case). This contention is ill-founded in that what the respondents seek to do in this case is exactly the opposite of what happened in the OUTA case In the present case the respondents seek to usurp the function of the judiciary being the court, by setting aside the administrative decision taken during 1994 and 1996 in the guise that they are exercising statutory power under the Framework Act.

The Commission and Committee’s submissions

[34] Adv Arendse SC (with him Adv Matebesi) who appeared on behalf of the Commission and Committee submitted that:

(a) The order sought by the applicants against the respondents is not legally permissible in that it seeks to prevent the second and third respondents from performing their statutory functions.

(b) The second and third respondents have a statutory mandate derived from the Constitution of the Republic of South Africa of 1996 and the Framework Act to investigate and make recommendations on any traditional leadership position where the title or right of the incumbent is contested.

(c) Furthermore section 25(2)(a) of the Framework Act provides that subject to subsection (5) the commission may only investigate and make recommendations on those disputes and claims that were before the commission on the date of coming into operation of chapter six. See section 211 of the Constitution read with section 25(2)(a) (iii) of the Framework Act as amended by Act 23 of 2009.

(d) Chapter six came into operation on 1 February 2010.

(e) It is common cause that the Baphalane community chieftaincy dispute was already before the Commission as at the coming into operation of chapter 6 of the Framework Act.

(f) Section 28(1) of the Act, as amended, provides:

“Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a Traditional Leader immediately before the commencement of this Act, is deemed to have been recognised as such in terms of section 10A or 11, subject to a decision of the commission in terms of section 26."

(g) The Baphalane community chieftaincy dispute is a dispute that still has to be investigated by the Commission and the Committee for as long as it has been lodged with the Commission and Committee.

(h) In the circumstances the order sought by the applicants in this matter, it being a final interdict, has the effect of preventing or restraining the Commission and the Committee from performing their statutory mandate.

(i) The order sought by the applicants if granted will infringe upon the doctrine of separation of powers and is therefore not legally permissible.

(j) In the OUTA case at 240 - 241 para 63 - 66 (the OUTA judgment) and in

particular para 66 Moseneke DCJ after referring to the decisions in Doctors for Life lnternational v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC) and International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 018 (CC) para 59 and 95 said this:

"[66] A court must carefully consider whether the grant of a temporary restraining order pending a review will cut across or prevent the proper exercise of a power or duty that the law has vested in the authority to be interdicted. Thus courts are obliged to recognise and assess the impact of temporary restraining orders when dealing with those matters pertaining to the best application, operation and dissemination of public resources. What this means is that a court is obliged to ask itself not whether an interim interdict against an authorised state functionary is competent but rather whether it is constitutionally appropriate to grant the interdict."

(k) There are no reasons advanced by the applicants why this court should interfere with the statutory mandate granted to the Commission and the Committee by the Legislature by granting the final interdict sought by the applicants in this matter.

(l) The nature of the relief sought by the applicant herein is one intended and that will have the consequence of preventing the respondents from performing their statutory mandate for an indefinite period contrary to the provisions of the Constitution and the Act.

(m) The relief sought therefore is impermissible and incompetent as it will defeat the object of a statutory enactment.

(n) In the circumstances we submit that this application deserves to be dismissed with costs on this basis alone.

Evaluation

The Traditional Leadership and Governance Framework Act

[35] The Traditional Leadership and Governance Framework Act 41 of 2003 came into operation on 24 September 2004. It was subsequently amended by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 which came into effect on 25 January 2010. According to the preamble to the Act it seeks:

“to set out a national framework and norms and standards that will define the place and role of traditional leadership within the new system of democratic governance;

to transform the institution in line with constitutional imperatives; and

to restore the integrity and legitimacy of the institution of traditional leadership in line with customary law and practices;”

[36] The Act established with effect from 25 January 2010 (being the date of coming into operation of the Amendment Act of 2009) a commission known as the Commission on Traditional Leadership Disputes and Claims (the New Commission). Section 22(1). In terms of section 28(11)(a) of the Act this Commission (established by section 22 as amended by the Amendment Act, 2009), is the successor in law of the Commission as it existed immediately before the Amendment Act. All disputes and claims that were before the old Commission are deemed to have been lodged with the new Commission. See section 28(11)(b).

[37] The Commission is obliged to carry out its functions in a manner that is fair, objective and impartial. See section 22(2).

[38] The Commission operates nationally in plenary and provincially in committees and has authority to investigate and make recommendations on any traditional leadership dispute and claim contemplated in subsection (2). Section 25(1).

[39] Section 25(2)(a) provides that the Commission has authority to investigate and make recommendations on—

(i) a case where there is doubt as to whether a kingship or, principal traditional leadership, senior traditional leadership or headmanship was established in accordance with customary law and customs.

(ii) a case where there is doubt as to whether a principal traditional leadership, senior traditional leadership or headmanship was established in accordance with customary law and customs;

(iii) a traditional leadership position where the title or right of the incumbent is contested;

(iv) claims by communities to be recognised as kingships, queenships, principal traditional communities, traditional communities, or headmanships;

(v) the legitimacy of the establishment or disestablishment of “tribes” or headmanships;

(vi) disputes resulting from the determination of traditional authority boundaries as a result of merging or division of “tribes”;

(viii) all traditional leadership claims and disputes dating from 1 September 1927 to the coming into operation of provincial legislation dealing with traditional leadership and governance matters; and

(ix) gender-related disputes relating to traditional leadership positions arising after 27 April 1994.

[40] Section 25(2)(b)  provides for the lodging of a dispute or claim. The Commission may decide not to consider a dispute or claim if it has not been provided with relevant or sufficient information or the provisions of section 21 have not been complied with. Section 25(2)(c).

[41] The Commission, when considering a dispute or claim, must consider and apply customary law and the customs of the relevant traditional community as they applied when the events occurred that gave rise to the dispute or claim. Section 25(3)(a).

[42] The Act provides in section 25(4)(a) that subject to subsection (5) the Commission may only investigate and make recommendations on those disputes and claims that were before the Commission on the date of coming into operation of chapter Six on 1 February 2010. See section 20 read with section 29 of the Amendment Act of 2009.

[43] Section 25(5) and (6) provide that:

“(5) Any claim or dispute contemplated in this Chapter submitted after six months after the date of coming into operation of this Chapter may not be dealt with by the Commission.

(6)  The Commission—

(a) may delegate any function contemplated in this section excluding a matter related to kingships or queenships to a committee referred to in section 26A; and

(b) must coordinate and advise on the work of the committees referred to in section 26A.”

[44] Section 26 provides for recommendations by the Commission. Section 26A provides for the establishment, composition, powers and functions of committees.

[45] Section 21(1)(a) provides how disputes and claims concerning customary law or customs which arises between or within traditional communities or other customary institutions must be processed. Essentially it provides that the traditional community or customary institution concerned must seek to resolve the dispute or claim internally and in accordance with customs before such dispute or claim may be referred to the Commission. A dispute or claim that cannot be resolved must be referred to the relevant provincial house of traditional leaders. The house must then seek to resolve the dispute or claim in accordance with its internal rules and procedures. Section 21(2)(a). If the dispute remains unresolved must be referred to the Commission.

[46] Section 28 of the Act provides for transitional arrangements. Subsection (1) provides that any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of the Act, is deemed to have been recognised as such in terms of the Act, subject to a decision of the Commission in terms of section 26.

[47]  The Commission must, in terms of section 25 (2), investigate the position of paramountcies and paramount chiefs that had been established and recognised, and which were still in existence and recognised, before the commencement of this Act, before the Commission commences with any other investigation in terms of that section.

[48] In terms of section 28(10) the Commission must review all claims and disputes that have not been disposed of on the date of the coming into operation of the Amendment Act of 2009 and if the Commission is of the opinion that any such claim or dispute should not be dealt with by the Commission or a provincial committee, subject to section 21 refer the claim or dispute to the relevant province for resolution of the claim or dispute and inform the parties to the matter concerned accordingly.

First respondent’s claim/dispute

[49] The presumption in terms of section 12 of the Interpretation of Statutes Act 33 of 1957 must give way to the clear intention of the legislature. The recommendation of the Mabitsela commission is just that a recommendation. But it led to the appointment or recognition of the first applicant. That recognition endures. The Framework Act read with the North West Traditional Act ensures this. See section 28(1) of that Act and section 13 of the North West Act. However, the Framework Act specifically allows for and provides for the investigation of claims and disputes. These include disputations which may have been resolved but which, as it were, are still smouldering. Provided they fall within the criteria specified, the Commission and committee may consider them. The Frame work Act provides that all traditional leadership claims and disputes dating from 1 September 1927 to the coming into operation of provincial legislation dealing with traditional leadership and governance matters may be referred to the Commission.

[50] It seems that where there has been a waiver or settlement of claim or dispute by agreement that a party to that dispute, it may be said that there is no longer a dispute. But this will not apply when the solution has been imposed on a party.

[51] The Commission has authority to investigate and make recommendations on inter alia:

(ii) a case where there is doubt as to whether a principal traditional leadership, senior traditional leadership or headmanship was established in accordance with customary law and customs;

(iii) a traditional leadership position where the title or right of the incumbent is contested; and

(viii) all traditional leadership claims and disputes dating from 1 September 1927 to the coming into operation of provincial legislation dealing with traditional leadership and governance matters.

[52] The intention of the legislature in enacting the Framework Act is precisely summed up by Prof Bekker in “The establishment of kingdoms and the identification of kings and queens in terms of the traditional leadership and governance framework act 41 of 2003” Potchefstroom Electronic Journal 2008 (3) 1-13 at 1-2:

“In one of its efforts to eliminate all of the real or perceived wrongs of colonialism and apartheid, the post-apartheid government decided to redesign traditional leadership positions. The reason was that –

In the main, according to custom, three levels of traditional leadership positions are recognised, namely kingship, chieftainship and headmanship. However, colonial powers and the apartheid government introduced new and foreign levels of traditional leaders. The introduction of such levels within the institution of traditional leadership was, in many instances, politically motivated and included levels such as 'supreme chief', 'paramount chief', 'subchief', and 'independent headmen'. For example, the level of a 'supreme chief' was introduced by the previous regime to arrogate the power to rule over Africans to the Governor-General and, later, the State President. Other levels such as paramount chiefs, independent headmen and subchiefs were introduced to elevate/demote certain people to new positions.

After deliberations it was decided to create only three positions, namely kingship, senior traditional leadership, and headmanship.^”

[53] The result is that provided a matter falls within the ambit of section 25(2)(a) it is of no consequence that the matter, dispute or claim has been settled or determined by any other body in the past.

[54] The first respondent’s claim or dispute (there must be one because the new Commission may not institute investigations mero motu) was lodged in 2008 ie after the Act came into operation and before the Amendment Act came into operation. The Commission must deal with it in one of the ways specified. See section 28(10) of the Act ie the commission itself must deal with it, it may refer it to a committee of the commission or refer it to the relevant provincial government. If it wishes to refer it to a provincial government the section 21 procedure must be followed but not otherwise.

[55] The Commission has decided to refer the claim to its Committee. This is a competent action. It is premature to assume that the Committee will act in a biased way or ignore the Mabitsela Commission or similar evidence.

[56] The application for a final order must therefore be dismissed as the applicants have no clear right to the relief they seek.

Costs

[57] The applicants have been unsuccessful and it follows that costs should follow the result. The first respondent would have been entitled to his costs but neither he nor his legal representative attended the hearing. I make no order as regards his costs.

[58] The applicant must pay the costs of the second and third respondents. It is unlikely that the committee has a separate legal existence.

[59] The application to intervene is refused and cost should follow the result. The intervening parties must also pay the costs of the second and third respondents.

[60] In the premises:

1. The application is dismissed.

2.1. No order is made as regards the first respondent’s costs.

2.2. The applicant must pay the costs of the second and third respondents.

2.3. The intervening parties must pay the costs of the applicant and the second and third respondents.

A A LANDMAN

JUDGE OF THE HIGH COURT

APPEARANCES:

date of hearing : 14 March 2013

date of judgment : 22 March 2013

counsel for applicants : adv skosana

counsel for the 1^st & 2^nd Respondents : Adv arendse sc with him adv matebesi

counsel for intervening applicant : adv machaba

attorneys for applicants : Mphela and associates attorneys c/o jerry sithole attorneys

attorneys for 1^st respondent : r s tau attorneys

attorneys for 2^nd & 3^rd respondents: : badrish daya attorneys c/o kgomo mokhetle & tlou

attorneys for intervening applicant : mathopo attorneys c/o koikanyang inc

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