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[2023] ZANWHC 103
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Pilane and Others v Premier of the North West Province and Others (UM127/2020) [2023] ZANWHC 103 (4 July 2023)
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RTF formatIN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NUMBER: UM127/2020
In the matter between:-
KGOSI MOLEFE JOHN PILANE 1st Applicant
BAKGATLA BA KGAFELA TRADIONAL COUNCIL 2nd Applicant
BAKGATLA BA KGAFELA ROYAL FAMILY (MORULENG) 3rd Applicant
And
PREMIER OF THE NORTH WEST PROVINCE 1st Respondent
RANGWANE RAMONO PILANE LINCHWE 2nd Respondent
.
KGAFELA KGAFELA II 3rd Respondent
PHINEAS TJIE 4th Respondent
MERAFE RAMANO 5th Respondent
COMMISSION OF INQUIRY INTO THE 6th Respondent
TRADITIONAL LEADERSHIP DISPUTES IN
RESPECT OF BAKGATLA BA KGAFELA,
BATLHAKO BA LEEMA AND BAPO I AND II
COMMUNITY DISPUTE
NORTH WEST PROVINCIAL HOUSE OF
TRADITIONAL LEADERS 7th Respondent
MEC FOR LOCAL GOVERNMENT,
HUMAN SETTLEMENT AND TRADITIONAL AFFAIRS 8th Respondent
JUDGMENT
REID J (WAS SNYMAN)
Introduction
[1] This is an application in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) to review and set aside the decision taken by the first respondent (Premier of the North West Province: “the Premier”) on 26 February 2020 to appoint the fourth respondent as the Administrator (“the Administrator”) to manage and control the affairs of the second applicant (Bakgatla Ba Kgafela Traditional Council; “the Traditional Council”), with retrospective effect from 6 January 2020.
[2] This application for review is part B of an urgent application (Part A) which was dismissed for lack of urgency on 24 July 2020.
[3] In ancillary relief, the decisions of the Premier to withdraw the Recognition Certificate of the first applicant (Kgosi Molefe John Pilane: “Pilane”) from being Kgosi on 17 June 2020, and to issue a Recognition Certificate to the second respondent (Rangwane Ramono Pilane Linchwe “Linchwe”) as interim Kgosi to the Traditional Council and the third applicant (Bakgatla Ba Kgafela Royal Family, Maruleng: “Royal Family”) is sought to be reviewed and set aside.
[4] Lastly the applicants seek an order that the decisions and actions taken by the Administrator and Linchwe subsequent to their appointments, are declared to be invalid and of no force and effect.
[5] The decisions of the Premier follow recommendations made by the sixth respondent: Commission of Inquiry into the Traditional Leadership disputes in respect of Bakgatla Ba Kgafela, Katlhako Ba Leema and Bapo I and II Community Dispute (“the Commission”).
[6] In this judgment, for ease of reference and to avoid confusion, I will refer to the parties’ respective identities rather than their citations in as far as it is practical. I will also refer to the parties collectively as “the applicants” or “the respondents” where applicable.
[7] Adv ZZ Matebese SC and Av HL Kelaotswe appear on behalf of the applicants. Adv KD Ramolefe with Adv T Masike appear on behalf of the Premier, and Adv OAK Matsepo appear on behalf of Linchwe and the third respondent (Kgafela Kfafela II: “Kgafela II”).
Relief sought
[8] The following relief as set out in the amended notice of motion is sought by the applicants:
“1. Reviewing and setting aside the decision of the Premier taken on 26 February 2020 to appoint the Administrator to manage and control the affairs of the Traditional Council;
2. Declaring that the appointment of the Administrator with retrospective effect from 6 January 2020 is unlawful and invalid;
3. Declaring that the appointment of the Administrator is otherwise unconstitutional, unlawful and invalid and is of no force and effect as contemplated in section 6(2)(a)(ii) of the PAJA;
4. Declaring the appointment of the Administrator as unlawful and invalid and setting aside the appointment letter issued by the Premier to the Administrator on 26 February 2020;
5. Declaring that subsequent bona fide legal actions performed and executed by the Administrator and officials under his employ relying on the decision taken by the Premier on 26 February 2020 are invalid, unlawful and of no force and effect;
6. Reviewing and setting aside the decision of the Premier issued in terms of Proclamation 9 of 2020 published in the Extraordinary Provincial Gazette on 7 July 2020 on the grounds of review as contemplated in section (2)(a)(i)(c), (d), (e)(i), (ii) and (iii)(f)(i) and (ii); (h) and (i) of PAJA;
7. Declaring that the decision of the Premier to withdraw the Recognition Certificate issued to Pilane is unconstitutional, irrational, unlawful and invalid and is of no force and effect on the basis that it violates the principle of legality;
8. Declaring that Proclamation 9 of 2020 issued on 7 July 2020 is unlawful and unconstitutional and invalid and is of no force and effect;
9. Reviewing and setting aside the decision of the Premier to issue the Recognition Certificate to Linchwe as the interim Kgosi of Bakgatla Ba Kgafela: Moruleng;
10. Reviewing and setting aside the decisions taken by the Royal Family in Mochudi on 21 and 25 September 2019, 15 May 2020 and 5 June 2020;
11. Reviewing and setting aside the letters dated 21 and 25 September 2019 and 5 June 2020 issued by Linchwe and/or Kgafela Kgafela II; and
12. Declaring that bona fide legal actions performed and executed by the applicants and officials of the Traditional Council since the launch of review proceedings (being 27 September 2019) are lawful and valid as if the appointment of Linchwe and the Administrator never took place.”
[9] The Commission’s report was issued on 20 August 2019 and it detailed its findings and recommendations. The Commission of Inquiry is referred to by the parties as the “Commission into Traditional Succession disputes and claims: Bakgala Ba Kgafela Traditional Community” and the “Baloyi Commission” or “the Commission” interchangeably. In this judgment reference to any of the aforementioned is to the same Commission of Inquiry.
Issues before court
[10] From the onset it is important to mention that this judgment is not to determine whether the Premier’s decision and/or the Commission’s finding was right or wrong, or to determine the identity of the rightful Kgosi of the Traditional Council, or the identity of the rightful members of the Royal Family. That is not the nature of a review application. In Allpay Consolidated Investment Holdings v CEO SA Social Security Agency 2014 (1) BCLR 1 (CC) at 45 it was held that:
“The lens for judicial review of these actions, as with other administrative action, is found in PAJA. The central focus of this enquiry is not whether the decision was correct, but whether the process is reviewable on the grounds set out in PAJA”.
(own emphasis)
[11] In a review application and having cognisance of the principle of separation of powers, the Court can only interfere with an administrative power exercised by any Executive Authority (such as the Premier) if those powers were exercised in contravention of the law which includes the law relating to administrative justice.
[12] The issue to be determined is whether the Premier’s decisions and consequential actions are administratively sound or whether it should be reviewed and set aside.
Grounds for review
[13] The applicants bring this review application on the following grounds:
13.1. That the Premier failed to apply his mind properly and took irrelevant considerations into account whilst failing to take relevant considerations into account;
13.2. That the Premier’s decision was materially influenced by an error(s) of law;
13.3. That the Premier’s decision contravenes the law and is not authorised by the empowering provision(s); and
13.4. That the decision of the Premier is otherwise unconstitutional and unlawful.
[14] Prior to dealing with the individual grounds of review, it is necessary to set out the context relating to the factual background and the establishment and mandate of the Commission.
The Commission of Inquiry
[15] The Premier derives its powers to appoint a Commission of Inquiry from section 127(2)(e) of the Constitution 108 of 1996 (the Constitution), which reads as follows:
“127 Powers and functions of Premiers
(1) The Premier of a province has the powers and functions entrusted to that office by the Constitution and any legislation.
(2) The Premier of a Province is responsible for-
…
(e) appointing commissions of inquiry…”
[16] In terms of the North West Traditional Leadership and Governance Act 2 of 2005 the powers of the Premier and the Commissions of Inquiry are set out as follows in section 38:
“38 Commissions of inquiry into disputes and other matters relevant to bogosi or bogosana of traditional communities, and powers of Premier following commission's report
(1) The Premier may appoint a commission to inquire into and submit a report to him/her in regard to-
(a) any dispute in connection with the recognition of a kgosi or kgosigadi or the appointment of a kgosana; or
(b) the question as to whether any person recognised as kgosi or kgosigadi or confirmed as kgosana-
(i) is subject to a permanent infirmity of mind or body which renders him/her incapable of discharging the duties of his/her office or discharging them properly; or
(ii) generally acts or has acted or conducts himself/herself in a manner detrimental to good and effective government and/or administration of the traditional community in question, or fails or has failed to act or to conduct himself/herself in a manner conducive to good and effective government of such traditional community, or is otherwise unfit for the duties of his/her office; or
(iii) is the rightful incumbent of the office of kgosi or kgosigadi or kgosana (as the case may be);
(iv) is guilty of fraud or gross irregularity in connection with the administration of the affairs of the traditional community or is otherwise guilty of maladministration of such affairs.
(2)(a) At any inquiry by a commission referred to in subsection (1), representations may be made and evidence may be presented to the commission by or on behalf of the kgosi or kgosigadi or kgosana in relation to whom the inquiry is held, and by on behalf of any member of the traditional community in question and, where applicable, by or on behalf of the person claiming to be entitled to bogosi or bogosana (as the case may be).
(b) A failure or refusal on the part of any person referred to in paragraph (a) to attend an inquiry held by the commission or to make any representations or present any evidence in the course of the proceedings before the commission, shall not in any way invalidate the proceedings before or the findings of the commission.
(3) The commission shall, as soon as may be reasonably practicable after the conclusion of its inquiry, submit to the Premier its report, containing its findings and recommendations.
(4) The Premier may, after having considered the report, findings and recommendations of the commission-
(a) settle or decide the matter in dispute in such manner as he/she deems fair and equitable and for that purpose issue such directions as he/she deems fit;
(b) in the circumstances contemplated by paragraph (a) of subsection (1)-
(i) in the case of a kgosi or kgosigadi, revoke his recognition as such;
(ii) in the case of a kgosana withdraw confirmation as such;
(c) in the circumstances contemplated by paragraph (b) of that subsection, depose the kgosi or kgosigadi or kgosana concerned (as the case may be), and, for the purposes of paragraph (b) or (c) of this subsection, recognise or confirm, as the kgosi or kgosigadi or kgosana respectively, any other member of the particular traditional community qualified for that purpose.”
(own emphasis)
[17] The Commission of Inquiry under review was established by the Premier in terms of Proclamation 19 of 2016 by the Provincial Gazette, Extraordinary, 15 June 2016 (the 2016 Proclamation). The terms of reference that were included in the 2016 Proclamation that were not included in the later proclamations, were:
“…
3. Batlhako ba Leema
Since the death of Kgosi Leema Batleng in October 2005 and the subsequent appointment of his widow Kosigadi Nkibi Batleng as regent for her then teenage daughter Semodieng, there has been discontent amongst members of the royal family and the Khuduthamaga. This has led to a split in the Khuduthamaga which has culminated in a number of court cases wherein the Premier was cited as a party. The daughter being of age has not been throned.
With the last court matter, an order of court was made to refer the matter to the Commission hence this appointment to look into the crux of the dispute and find solution and settlement to the matter.
There was also a High Court matter in this regard under case No M9/14 whereby a number of orders were sought, even subsequent interventions were unsuccessful hence this Commission with the following terms of reference:-
1.1. The role of a Paramount Chief in terms of the tradition and custom specifically in Botswana vis-à-vis in Moruleng;
1.2. The powers and procedure, if any, to appoint a senior traditional leader of Bakgatla Ba Kgafela in Moruleng;
1.3. To determine who the rightful heir is in terms of the tradition and custom had Tidimane Pilane not acted in the manner he did which led to the appointment (the manner and procedure is not in dispute) of Chief Nyalala Pilane;
1.4. The merits and demerits of Mr Ramono Merafe’s claim as senior traditional leader as was referred to in the North West Provincial Committee during 2014;
1.5. The role of senior traditional leader of Bakgatla Ba Kgafela in Moruleng;
1.6. The correct relationship between Kafela Kgafela II and the senior traditional leader in Moruleng under our Constitutional dispensation;
1.7. The role of the 32 sub villages officiating the appointment of the senior traditional leader of Moluleng Village;
1.8. The role of the 32 villages under Moruleng in the acquisition-making process;
1.9. The flow of financial benefits in any transactions conducted with any third party in the name of or on behalf of Bakgatla Ba Kgafela by any person;
1.10. In considering the content of customary law, the Commission shall be enjoined to apply sections 39(2) and 212 of the Constitution of the Republic of South Africa, 1996 and any relevant case law.”
(own emphasis)
[18] The Commission was initially to be led by the late Justice Maluleke but after his untimely passing, the Premier issued Proclamation 47 of 2017 on 28 November 2017 establishing the current Commission with Adv MS Baloyi SC as the Chairperson. The terms of reference between the “Maluleke” Commission and the “Baloyi” Commission vary, with the only change being the exclusion of the “Batlhako ba Leema succession and dispute” in the Baloyi Commission, as set out in paragraph [17] above.
[19] Proclamations 49 and 50 of 2017 as published in the Provincial Gazette Number 7838 dated 26 December 2017 and signed by the Premier and Member of the Executive (MEC) Arts, Culture and Traditional Affairs, reads as follows:
“PROCLAMATION 49 OF 2017
COMMISSION OF INQUIRY INTO THE TRADITIONAL LEADERSHIP DISPUTES IN RESPECT OF THE BAKGATLA BA KGAFELA COMMUNITY DISPUTE
I, Supra Obakeng Ramoeletsi Mahumapelo, hereby in my capacity as Premier of the North West Province and in terms of section 127(2)(e) of Act 108 of 1996 (Constitution of the Republic of South Africa), read with hereby appoint a Commission of Inquiry to investigate traditional succession disputes and claims around:-
(1) Bakgatla ba Kgafela traditional dispute and claim;
1. Bakgatla Ba Kgafela
Succession dispute broke at the time of Kgosi Tidimane Ramono Pilane, on or about 1993. Certain members of the Community have approached the High Court to seek various orders.
Furthermore Mr Merafe Ramono during 2013 referred the leadership dispute to the North West Provincial Committee of the Commission, where recommendations were not approved as per reasons advanced on 24/02/2016 hence this Commission to investigate and find solution and settlement of all issues raised as (in the) terms of reference.
....”
(own emphasis)
“PROCLAMATION 50 OF 2017
COMMISSION OF INQUIRY INTO THE TRADITIONAL LEADERSHIP DISPUTES IN RESPECT OF BAPO I AND II COMMUNITY DISPUTES RESPECTIVELY
I, Supra Obakeng Ramoeletsi Mahumapelo, hereby in my capacity as Premier of the North West Province and in terms of section 127(2)(e) of Act 108 of 1996 (Constitution of the Republic of South Africa), read with hereby appoint a Commission of Inquiry to investigate traditional succession disputes and claims around:-
(1) Bapo I and II traditional disputes.
2. Bapo I and II
There was also a High Court matter in this regard under Case No M9/14 whereby a number of orders were sought, even subsequent interventions were unsuccessful hence this Commission with the following terms of reference:-
1.1 To investigate whether the bogosi of the Bapo I and II traditional community is properly constituted and in accordance with the custom of the traditional community and determine the rightful successor to the bogosi of the Bapo I and II traditional community.
1.2 To determine the relationship amongst the Mogale clan, the Maimane sub-clan and the Moerane sub-clan.
1.3 To identify the legitimate members of the Royal Family and the Khuduthamaga of the Bapo I and II traditional community.”
(own emphasis)
[20] It is clear from the above quotation that community conflict and court orders were the motivation behind the establishment of the Commission. The terms of reference of the Commission was (broadly put) to investigate the legitimacy of the traditional leadership, specifically the rightful heirs from the time of Kgosi Tidimane Ramono Pilane in 1993, and to determine the rightful successor to the bogosi of the Bapo I and II Traditional Community.
[21] After the 2016 proclamation was issued in relation to the Maluleke Commission, the applicants directed a letter to the Premier and the MEC: Arts, Culture and Traditional Affairs on 21 July 2016. In this letter the following issues were raised:
“2. We wish to indicate, at the outset, that the entire royal Family of the Bakgatla Ba Kgafela in Moruleng, South Africa and under the leadership of Kgosi Nyalala Molefe John Pilane fully welcomes the establishment of the Commission of Inquiry to decisively deal with all the issues of concern that have been engulfing the community for some time.
3 We have perused the Terms of Reference pertaining to the Bakgatla-Ba-Kgafela traditional community and wish to specifically raise concern on the following Terms of Reference and which we kindly urge the Honourable Premier to reconsider. These are:
3.1 To determine who the rightful heir is in terms of the tradition and custom had Tidimane Pilane not acted in the manner he did which led to the appointment (the manner and procedure is not in dispute) of Chief Nyalala Pilane;
3.2 The merits and demerits of Mr Ramono Merafe’s claim as senior traditional leader as was referred to in the North West Provincial Committee during 2014;
3.3 The role of the 32 villages under Moruleng in the acquisition-making process;
3.4 The flow of financial benefits in any transactions conducted with any third party in the name of or on behalf of Bakgatla Ba Kgafela (BBK) by any person…”
4. In as far as the issues referred to in sub-paragraphs 3.1 and 3.2 above are concerned, it is our considered view that the Commission of Inquiry is requested to act as an “appeal” tribunal in respect of the matter that has been finally decided by a court of law.
5. Without seeking to provide legal arguments through correspondence, it is out firm view that during or about 1996, an application was launched out of the North West High Court in terms of which the appointment of Kgosi Nyalala Molefe John Pilane was challenged. This matter was fully ventilated by Hendler J and ruled in favour of the process undertaken by Kgosi Tidimane Pilane.
6. There was some dissatisfaction with the judgment and ruling hence an application for leave to appeal and a petition to the supreme Court of Appeal were launched without any success. We are advised that the matter is now res judicata and our constitutional legal system, which places a high premium on the role of the judiciary and its independence in settling disputes between litigants, does not allow a Commission of Inquiry to resuscitate a process that has finally been determined by a court of law.
…
10. In as far as the matters referred to in sub-paragraphs 3.3 and 3.4 are concerned, it is our considered view that the Terms of Reference are widely couched, open ended and may lead to different interpretations by various parties who have an interest in the work of the Commission of Inquiry.
…”
[22] After conducting its investigations, the Commission of Inquiry made the following findings on 20 August 2019:
“FINDINGS
On Governance
187. The TC (Traditional Council) has failed to prepare accounts and financial statements to account for all is entities. It has also failed to ensure that its entities comply with the requirements of the Companies Act and the King Codes applicable to them. No valid reason has been provided for the failure to prepare accounts and AFSs (Annual Financial Statements) of the TC and its entities.
188. Many of the financial statements presented in evidence are in draft form and not final. As a result, they cannot be relied upon as a true and complete reflection of the assets and income deriving from transactions with third parties. On the evidence before us, we are unable to find this to be the case. Similarly, we are unable to say with any degree of certainty that the financial statements are a true reflection of the flow of monies earned from transactions with third parties.
189. The TC has failed to hold its entities and their directors to account for their administration of the assets and monies of the community. From the evidence, the TC, willingly or unwillingly, abdicated to Kgosi Pilane and directors of entities its statutory responsibility and duty to the community to safeguard and oversee its assets.
190. As the custodians of the community’s assets, the directors of the entities and the TC, including the Chairperson, have fallen short of what is expected of reasonable persons entrusted with the assets and finances of the community. The TC in particular has not exercised any meaningful oversight over its Chairperson and BBK companies. They have failed to comply with the applicable obligatory provisions of the Act and the Code of Conduct, and to ensure that the companies of BBK comply with the provisions of the Companies Act, 2005 and regulations, and the principles of the King Codes as applicable to each entity. For the same reason, the TC is unsurprisingly unable to provide a proper account of these entities in its own accounts and AFSs.
191. The TC has failed to submit its accounts and financial statements for audit by the Auditor-General as it is obliged to do by sec 31(1) of the NW Act (North West Act). No valid reason was given for this failure to comply with the law. In this regard, it is instructive to have regard to King Code I which state that “in addition to being a statutory requirement, an external audit provides an independent and objective check on the way in which the financial statements have been prepared and presented by the directors. An annual audit is an essential part of the checks and balances required and is one of the cornerstones of corporate governance.” Whether or not the King Codes apply to the TC, the purpose of an external audit, which the audit in terms of section 31(1) is, is as much valid for the TC as it is for its entities governed by the Companies Act, 2005.
192. Members of the TC have failed to hold each other to account to the TC and to the community. This was apparent from the evidence of members of Kobedi Pilane, Lebogang Maname and Marcus Diphoko who expressed frustration about the manner in which the business of the TC is conducted with members deferring to Kgosi Pilane primarily.
193. Members of the TC lack the financial and commercial skills to effectively hold Kgosi Pilane and persons involved with the entities of BBK to account for their management and administration of the assets and financial benefits deriving therefrom. The level of skills of members of the TC understandably affects their ability and effectiveness to engage with the often complex transactions that BBK, through the Kgosi, have concluded with third parties. The Department has not taken meaningful steps, if any, to provide skills to members of the TC to enable them to perform their functions and discharge their duties properly and effectively.
194. Kgosi Pilane has failed since December 2012 to convene meetings of the community as he is obliged to do so by sec 18(1)(g) of the NW Act. As a result, the TC has not accounted to the community about the administration of their assets and the financial matters relating thereto, including the application of income derived from transactions with third parties.
195. Notwithstanding the power and duty to take steps to ensure proper administration and good governance in terms of sections 9(3); 10(2); 34(3) and 35, the Premier and the Department have failed to take any measures to support the TC in the administration of assets of the community. They have also failed to hold the TC and the Kgosi to account for the administration of the finances of the community.
On administration of finances
196. Except for income paid into and disbursed out of the D-Account, the TC, Nyalala Pilane in particular, has, in contravention of sec 31(1) NW Act, administered monies through accounts held and controlled by attorneys CDH and Werksman, and through BBK company Lexshell 703 which is designated as “payment agent”. We are unable to state with any degree of certainty that all the monies and BBK accounts held with the attorneys have been fully accounted. From the evidence available to us, it is clear that not all monies due to BBK from the transactions and bank accounts through which the monies have been administered are accounted for before us.
197. The investment of surplus funds of the BBK with PSG in the amount of R926,555,590 million was done without the approval of the Premier as required by sec 30(4). This conduct is unlawful.
198. The TC has failed to prepare and to ensure that its prepared audited financial statements and that its own statements are audited by the Auditor-General as prescribed by sec 31(1). As a result, little reliance, if any, can be placed on the reliability of the financial information on which the evidence before us is based. The failure to comply with sec 31(1) is unlawful.
199. Not all monies expended appear to have been expended for the benefit of BBK. One example is the expenditure of approximately R500 million to fund an investment which appears to have benefited Orkid S.a.r.l, a company which on the evidence before us is unknown to the TC and has no apparent connection to BBK. There is no explanation at all for what appears to be a generous gift to an unrelated company.
200. An amount of R20 million was paid to the company Selaleo Consultant purportedly for facilitating the issuance of a mining licence by the DMR. There is no evidence that the entity rendered the service, what service was rendered and why the service was required considering the nature of the service.
201. BBLFS is not registered as Asset Manager with the Financial Services Board as required by the Financial Services Act. As a result, it acts in breach of the law. The TC has failed to ensure that the company complies with the law relating to registration of Asset Managers.”
(own emphasis)
[23] On the basis of its findings, the Commission made the following recommendations to the Premier:
“Governance
…
7. The Premier must exercise his powers in terms of sec 9(3) of the NW Act to-
7.1 Instruct Kgosi Pilane to resign from all positions that he holds in BBK and associate entities within 30 calendar days of the instruction from the Premier, or such other longer time as the Premier may consider but not exceeding 60 calendar days.
7.2 Instruct Kagiso Pilane to resign from all positions that he holds in BBK and associate entities within 30 calendar days of the instruction from the Premier, or such other longer time as the Premier may consider but not exceeding 60 calendar days.
7.3 Instruct member of the TC to convene a meeting of the community for the purpose of appointing persons that will represent the community in BBK and associate companies, such persons not to include Kgosi Pilane. The TC should be required to report its choice to the Premier within 60 days of the instruction.
…
8. Paragraph I
8.1 Appointment of an Administrator to take over the affairs of the TC
8.1.1 The Premier should act in terms of section 9(3) and 10(2) to urgently appoint an Administrator to take control of the affairs of the TC.
8.1.2 The Administrator must have the power to exercise and perform any power, authority or function conferred or imposed by law, including customary law, upon the TC and shall be deemed to have been exercised or performed by the TC.
8.1.3 The Administrator should be competent and have the power to exercise any power, authority or perform functions that would ordinarily be conferred upon the TC in respect of the subsidiary companies and shall be deemed to have been exercised or performed by the TC.
8.2 The appointment of an Administrator should be reviewed by the Premier after a period of 180 days and extended as the Premier may decide.
8.3 The Administrator should oversee the development of a governance framework suitable for the TC, taking into account –
8.3.1 the nature of the entities under its control and in which it has interests.
…”
[24] The recommendations were accepted by the Premier on 26 August 2016 and form the subject matter of this review application.
Material factual background
[25] It is not possible to adjudicate the grounds of review without having regard to the material facts underlying the application for review. This is due to the nature of this review application: the court is essentially to establish whether the Premier, having regard to the grounds of review, came to an administratively justifiable, valid and fair conclusion. See: Afriforum NPC v Minister of Tourism and Others and a similar matter 2022 (1) SA 359 (SCA) in which it was held at paragraphs [34] and [53] that:
“The result was that the validity of the Minister's direction must be determined with reference to the grounds of review set out in s 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).”
[26] The historical background dealing with the community disputes of the same Traditional Community and Royal Family, has been dealt with in detail by this court and are best set out by Hendricks J (as he then was) in the matter of Pilane and Another v Pheto and Others (582/2011) [2011] ZANWHC 10 dated 30 September 2011. For the sake of completeness, I deem it important to quote the following from the judgment:
“[C] Historical background:-
[4] The Bakgatla-Ba-Kgafela Traditional Community (hereinafter referred to as “the Traditional Community” or Bakgatla-Ba-Kgafela) comprises of 32 sub-villages and approximately 300 000 (three hundred thousand) tribes-people. The capital village is Moruleng or Saulspoort. Moruleng and Saulspoort mean the same village and the names are frequently used interchangeably. Moruleng often also refers to this conglomeration of villages of the Bakgatla-Ba-Kgafela.
[5] The Traditional Community in Moruleng have a historical consanguinity and attachment to the Bakgatla-Ba-Kgafela in Mochudi, Botswana. This affinity manifests itself in the tribal administration of the two tribes, among several other ways, in that the Kgosi of the Traditional Community in Moruleng is appointed by the Paramount Chief of Bakgatla-Ba-Kgafela, who is based in Mochudi, Botswana.
[6] Historically, the Mochudi Bakgatla-Ba-Kgafela and the Traditional Community in Moruleng was one tribe. The Mochudi based Bakgatla-Ba-Kgafela then relocated further to the west and settled in Mochudi, about 50 km North-East of Gaborone, the capital city of Botswana. When this happened a few decades ago, the then ruling monarch of the Bakgatla-Ba-Kgafela, Kgosikgolo Linchwe I Pilane, appointed his brother, Ramono to hold the fort for him in Moruleng as he also relocated with the Mochudi section of the tribe. Paramount Chief Kgamanayane Pilane was succeeded by the Paramount Chief Linchwe I, who was succeeded by his son Kgosikgolo Kgafela, then Kgosikgolo Molefi and finally the Paramount Chief (or Kgosi Kgolo) Linchwe II. Kgosikgolo Linchwe II passed away in 2007 and has now been succeeded by his eldest son Kgosi Kgolo Kgafela Kgafela.
[7] The Paramount Chief in Mochudi rules both sections in Mochudi and in Moruleng of the Bakgatla-Ba-Kgafela but does so with the Kgosi representing him over Moruleng. This function is at present discharged by the First Applicant. The two villages are not independent, but are inter-dependent, both in substance and in form. The communities are substantially intertwined. This long-standing position remains in force and applicable even today. The fact that the one village is in Mochudi, Botswana and the other in Moruleng, South Africa neither inhibits nor prevents the exercise of traditional laws and customs of the Bakgatla-Ba-Kgafela for the two communities. As Landman J so eloquently put it in the unreported judgment of Nyalala John Molefe Pilane and Another v M K Pilane and Another, case no 263/2010, “The Bakgatla-Ba-Kgafela Traditional Community or tribe straddles the border of South Africa and Botswana.”
[8] The Paramount Chief in Mochudi has vested powers to appoint and enthrone the Kgosi to rule over the Traditional Community in the North West Province, Moruleng by virtue of his office and status as Kgosikgolo. The Paramount Chief is also consulted on and approves any material governance issues in Moruleng. On the 6 April 1996, the late Paramount Chief Linchwe II appointed and enthroned the First Applicant as the Kgosi/Chief or Senior Traditional Leader of the Traditional Community in Moruleng. The installation by the Paramount Chief was subsequent to the approval by both the members of the Royal Family of the Bakgatla-Ba-Kgafela, and the members of the Traditional Community resident in the North West Province in a properly constituted tribal community meeting in terms of customary law and custom.
[9] The Premier of the North West Provincial Government recognised the First Applicant’s appointment as Kgosi of the Traditional Community in terms of the then applicable Act. In recognition of his appointment there was a publication of the enthronement in the Government Gazette. In addition, he was issued with the statutorily prescribed Letter of Designation by the office of the Premier of the North West Province.
See:- Pilane v Linchwe and Another 1995 (8) BCLR 932 (B); also reported in 1995 (4) SA 686 (B).
This case was never overturned on appeal and therefore stands. Unless clearly wrong, I am bound to follow it based on the principle of stare decissis. After a careful study of the aforementioned case, I am of the view that Hendler J was correct in his findings.”
[27] The Pilane v Pheto matter has not been overturned on appeal, leave to appeal having been refused in the court a quo and in the Supreme Court of Appeal.
[28] The community disputes that relate to the identity of the members of the Royal Family, and succession of the kgosi, have also received the attention from the Constitutional Court. In Pilane and another v Pilane and Another 2013 (4) BCLR 431 (CC) the Constitutional Court on appeal dealt with interdicts issued by this court in relation to whether certain individuals were members of the Royal Family and/or Traditional Council who would entitle them to call traditional gatherings / community meetings.
[29] The Pilane v Pilane matter is instructive on the constitutional application of the legislation in regard to traditional authorities and succession. The following was found in Pilane v Pilane:
“Editor’s Summary
Applicants, residents of the Motlhabe village, one of 32 villages comprising the Bakgatla-Ba-Kgafela Traditional Community in the Pilanesberg area of the North West Province, were leaders of a group that desired the secession of the Motlhabe village from the Traditional Community. Respondents, Mr Nyalala John Molefe Pilane, the Kgosi (senior traditional leader) of the Traditional Community, and the Traditional Council of the Traditional Community, were the officially recognised leaders of the Traditional Community in terms of sections 2(1), 2(2) and 11 of the Traditional Leadership and Governance Framework Act 41 of 2003 read with sections 3 and 13 of the North West Traditional Leadership Governance Act 2 of 2005.
When Applicants sought to convene a KgothaKgothe (a traditional gathering) to discuss the proposed secession, Respondents applied to the North West High Court for urgent interdicts restraining Applicants. The High Court granted seven interim interdicts. On the return date, the High Court confirmed three of the interim interdicts, restraining Applicants from convening any unauthorised meetings under certain auspices; acting in a manner contrary to applicable statutory and customary law; and holding themselves out as a traditional authority using the names Bakgatla-Ba-Kautlwale or Bakgatla-Ba-Motlhabe or the Traditional Authority of Motlhabe.
Applicants appealed to the Constitutional Court against the granting of the interdicts.
By a majority (per Skweyiya J, with Moseneke DCJ, Cameron, Froneman, Jafta, Khampepe, Van der Westhuizen and Zondo JJ concurring) the Constitutional Court upheld the appeal and set aside all three interdicts.
As to the first interdict, Respondents, in the view of the majority, had failed to prove the first requirement for an interdict, namely a clear right. Although Respondents had officially been recognised by statute as the traditional leadership of the Traditional Community to perform certain public functions, in accordance with the Constitution, the fact that statutory authority was accorded to traditional leadership did not necessarily preclude or restrict the operation of customary leadership that had not been recognised by legislation.
As to the second interdict, it lacked specificity and was overbroad.
As to the third interdict, it would effectively prevent Applicants from using terminology that was descriptive of their identity as a people. As the High Court had observed, Applicants belonged to a group which had a distinct identity. What a group of people called themselves was part of their identity. It was their cultural right to do so even if others identified the group differently or declined to recognise their identity. It was Applicants’ belief that their group was a distinct people. There was nothing on the papers to show that this was a pretence or a sham which required that it be interdicted. Accordingly, for the High Court to have granted the third interdict seemed inconsistent with its own reasoning. In addition, it effectively prevented Applicants from using terminology that was descriptive of their identity as a people. In any event, Applicants had given an undertaking to refrain from using the statutory term, “the traditional authority of Motlhabe”, to refer to themselves. This undertaking ought to have been considered sufficient reason to decline to confirm the third interdict.
The majority observed that the interdicts had an adverse impact on Applicants’ rights to freedom of expression, association and assembly. These were important rights. There was an inherent value in allowing dissenting voices to be heard in a constitutional democracy.
In a dissenting judgment Mogoeng CJ and Nkabinde J held that they would have dismissed the appeal in respect of the first interdict but upheld it in respect of the second and third interdicts only by reason of their overbreadth. Applicants had made use of the title “Motlhabe Tribal Authority” which could only be understood to mean an authority clothed with statutory recognition. They purported to convene a KgothaKgothe, a power they did not have. Applicants, by previously declaring their independence and stating that they did not recognise First Respondent’s legitimacy, in effect sought to undermine and threaten the Kgosi’s position or remove him as a senior traditional leader in disregard of the relevant customary law and statutes. Respondents, as the lawful authorities, were entitled to approach the High Court to resist the usurpation of their rights by Applicants who had no authority to convene the KgothaKgothe under customary law and the relevant statutes. The minority found further that while it was correct that courts should be slow to grant interdicts that have the effect of limiting constitutional rights, the grant of the first interdict in the circumstances in casu did not breach Applicants’ rights to free association and free speech.”
Legislative framework
[30] On a national level, the Traditional Leadership and Governance Framework Act 41 of 2003 (Traditional Governance Act) was repealed by the Traditional and Khoi-San Leadership Act 3 of 2019 (Traditional and Khoi-San Act). The Traditional and Khoi-San Act was assented to on 20 November 2019 and commenced on 1 April 2021.
[31] The decisions of the Premier sought to be set aside were made on 26 February 2020 and 17 June 2020. As such, the Traditional Governance Act is applicable.
[32] The Traditional Governance Act specifies in the preamble that it has the purpose to:
“To provide for the recognition of traditional communities; to provide for the establishment and recognition of traditional councils; to provide a statutory framework for leadership positions within the institution of traditional leadership, the recognition of traditional leaders and the removal from office of traditional leaders; to provide for houses of traditional leaders; to provide for the functions and roles of traditional leaders; to provide for dispute resolution and the establishment of the Commission on Traditional Leadership Disputes and Claims; to provide for a code of conduct; to provide for amendments to the Remuneration of Public Office Bearers Act, 1998; and to provide for matters connected therewith.”
[33] In terms of section 10A of the Traditional Governance Act principal traditional leaders are recognised as follows:
“10A Recognition of principal traditional leaders
(1) Whenever the position of a principal traditional leader is to be filled, the following process must be followed:
(a) The royal family must, within a reasonable time after the need arises for the position of a principal traditional leader to be filled, and with due regard to applicable customary law-
(i) identify a person who qualifies in terms of custom and customary law to assume the position of principal traditional leader, after taking into account whether any of the grounds referred to in section 10B (1) (a), (b) and (d) apply to that person; and
(ii) through the relevant customary structure-
(aa) inform the Premier of the Province, of the particulars of the person so identified to fill the position of a principal traditional leader; and
(bb) provide the Premier with the reasons for the identification of that person as a principal traditional leader.
(b) The Premier must, in accordance with provincial legislation and subject to subsections (2) and (3), recognise a person so identified in terms of paragraph (a) (i) as a principal traditional leader, taking into account-
(i) the need to establish uniformity in the Republic in respect of the status afforded to a principal traditional leader;
(ii) whether a recognised principal traditional community exists-
(aa) that comprises the areas of jurisdiction of a substantial number of senior traditional leaders that fall under the authority of principal traditional leader;
(bb) in terms of which the principal traditional leader is regarded and recognised in terms of customary law and customs as a traditional leader of higher status than the senior traditional leaders referred to in subparagraph (aa); and
(cc) where the principal traditional leader has a customary structure to represent the traditional councils and senior traditional leaders that fall under the authority of the principal traditional leader; and
(iii) the functions that will be performed by the principal traditional leader.
(2) A principal traditional leader to be recognised in terms of subsection (1) must be [a] senior traditional leader of a specific traditional community who exercises authority over a number of senior traditional leaders in accordance with custom and customary law.
(3) The provincial legislation referred to in subsection (1) (b) must at least provide for-
(a) notice in the Provincial Gazette recognising the person identified as a principal traditional leader in terms of subsection (1);
(b) a certificate of recognition to be issued to the identified person; and
(c) the relevant provincial house of traditional leaders to be informed of the recognition of a principal traditional leader
(4) (a) The Premier may, by notice in the Provincial Gazette, make regulations concerning-
(i) the traditional or ceremonial role of a principal traditional leader;
(ii) the responsibilities of a principal traditional leader in respect of nation building; and
(iii) other functions or roles of a principal traditional leader.
(b) Regulations made in terms of paragraph (a) must be tabled in [the] provincial legislature after their publication in the Provincial Gazette.”
(own emphasis)
[34] On a provincial level, the North West Traditional Leadership and Governance Act 2 of 2005 (North West Traditional Leadership Act) is applicable, and provides as follows in its preamble:
“Preamble: To provide for the recognition of traditional communities, traditional leadership, institutions; to define the role and functions of traditional leaders; to define the functions of traditional councils; to provide for the appointment, recognition, removal of traditional leaders; to provide for the payment of allowances (sitting, subsistence and travelling) to traditional leaders; to promote co-operative governance and transformation of the traditional leadership institutions; to provide for the provincial code of conduct for traditional leadership; to provide for mechanisms for dispute resolution; to regulate the administration of traditional institutions; and to provide for other incidental matters.
"Traditional Council" means the Council, which is constituted in accordance with the laws and customs of a particular traditional community;
"traditional community" means a traditional community recognised as such in terms of section 3 of this Act;
"traditional leader" includes a kgosi/kgosigadi, a kgosana and/or regent.
(own emphasis)
[35] The relevant sections of the North West Traditional Leaders Act are as follows:
“10 Administration of a traditional community
(1) A Traditional Council and kgosi/kgosigadi shall endeavour to perform their roles and functions in the best interest of their traditional community and be responsible to the Premier for the efficient and effective performance of the functions assigned to such Traditional Council and kgosi/kgosigadi in terms of this Act.
(2) The Premier may, subject to the provisions of this Act and the Constitution and with due observance of the traditions applicable in a traditional community, take such steps as may be necessary to ensure the due performance of the functions referred to in subsection (1).
(3)(a) On the recommendation of the Royal family the Premier may, if satisfied that a Traditional Council is unable to perform the functions assigned to it in terms of the Act in an efficient and effective manner or in a manner which is conducive to good governance and administration, appoint any person to assist the Traditional Council concerned to perform the functions assigned to such Traditional Council.
(b) An officer appointed in terms of paragraph (a) shall be competent to exercise and perform any power, authority or function conferred or imposed by law upon any such Traditional Council and shall be deemed to have been exercised or performed by such Traditional Council.
(c) The appointment of any officer in terms of this section shall be reviewed after a period of 180 days.
13 Recognition of a kgosi/kgosigadi
(1) Bogosi of a traditional community shall be in accordance with the customary law and customs applicable in such a traditional community.
(2) The designation of a kgosi/kgosigadi to bogosi of a traditional community shall be made by the Royal family in accordance with its customary law and customs.
(3) The Premier may recognise a person designated as contemplated in subsection (1) as kgosi/kgosigadi of a particular traditional community.
(4) The Premier shall issue a person recognised as kgosi/kgosigadi with a certificate of recognition.
(5) The Premier shall issue a notice in the Gazette recognising a kgosi/kgosigadi and such notice shall be served on the Provincial House of Traditional Leaders for their information.
14 Removal of kgosi/kgosigadi
(1) A kgosi or kgosigadi may be removed from office on the grounds of-
(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;
(b) mental infirmity which, based on acceptable medical evidence, makes it impossible for that kgosi or kgosigadi to function as such;
(c) wrongful appointment or recognition; or
(d) a transgression of a customary rule, principle or code of conduct that warrants the removal from office.
(2) Whenever any of the grounds referred to in subsection (1) come to the attention of the Royal family and the Royal family decides to remove the kgosi or kgosigadi, the Royal family must within a reasonable time inform the Premier of such decision and the reasons therefor.
(3) The Premier shall upon receipt of such decision and reasons therefor, withdraw the certificate of recognition of such a kgosi/kgosigadi by-
(a) publishing a notice of withdrawal of recognition of such kgosi/kgosigadi in the Gazette;
(b) informing the Royal family concerned, the kgosi/kgosigadi concerned and the Provincial House of Traditional Leaders of such removal.
(4) The Royal family shall after taking a decision to remove a kgosi or kgosigadi, identify a successor in accordance with the applicable customs and customary law and the provisions of this Act.
16 Recognition of an acting kgosi/kgosigadi
(1) The identification of an acting kgosi/kgosigadi to bogosi of a traditional community shall be made by the Royal family in accordance with its customary law and customs.
(2) The Premier may recognise a person identified as contemplated in subsection (1) as an acting kgosi/kgosigadi of a particular traditional community.
(3) The Premier must issue a person recognised as an acting kgosi/kgosigadi with certificate of recognition.
(4) The Premier must issue a notice in the Gazette recognising an acting kgosi/kgosigadi and such notice must be served on the Provincial House of Traditional Leaders for their information.
24 Royal family
The Royal family must-
(a) take such lawful steps that may be necessary to protect the bogosi of the traditional community concerned; and
(b) in accordance with the customary law and customs of the traditional community designate a person who is the rightful incumbent and/or successor to the bogosi of the traditional community.
27 Code of conduct and breach of the code
(1) The code of conduct contained in the Schedule II applies to a kgosi/kgosigadi or kgosana and a Traditional Council.
(2) Whenever there is reasonable suspicion that a traditional leader has breached any provision of the code of conduct, the Premier may charge him or her in writing with such alleged breach and may appoint a suitable person to conduct an enquiry of the alleged breach in line with the provisions of the code.
(3) A kgosi/kgosigadi or kgosana who is suspended from his or her office for the alleged breach of a provision of the code of conduct as contemplated in Schedule II is not entitled or competent to exercise and perform any function conferred or imposed on or associated with his or her office by or in terms of any law.
30 Traditional Council accounts
(1) The Premier shall cause to be opened for each Traditional Council a trust account, into which shall be paid such amounts as are hereinafter specified and from which all expenditure incurred in connection with any matter specified within the duties and functions of the traditional community concerned shall be met.
(2) The Premier may on good cause shown by a Traditional Council and being satisfied that there are sufficient controls and financial systems, permit such a Traditional Council to open a trust account, into which shall be paid such amounts as are hereinafter specified and from which all expenditure incurred in connection with any matter specified within the duties and functions of the traditional community concerned shall be met.
(3) There shall be paid into an account opened as referred to in subsections (1) and (2)-
(a) all fees, charges and voluntary contributions which are payable to the traditional community;
(b) all cash proceeds derived from any property or right to title of the traditional community;
(c) any donation or gift made by any person, institution or organization to and for the benefit of the traditional community;
(d) any other amounts derived from any sources whatsoever for the benefit of a traditional community.
(4) Subject to the approval of the Premier, a Traditional Council referred to in subsection (1) may invest any surplus funds from a traditional community's account with any financial institution or body corporate: Provided that the Premier may prescribe such conditions as it may deem fit in connection with such investment.
(5) A Traditional Council shall, in respect of each financial year submit to the Premier for his/her approval estimates of the revenue and expenditure for each traditional community account referred to in subsection (1): Provided that such estimates shall reach the Premier not later than the last day of February of the year preceding such financial year.
(6) No expenditure shall be incurred and no payments shall be made from an account referred to in subsection (1), except in accordance with the estimates of expenditure from such account approved in terms of subsection (5): Provided that any recurring expenditure, as determined from time to time may be paid as well as such payments which a Traditional Council may be obliged to make in accordance with any contract, agreement or debt lawfully entered into or incurred or in accordance with an order of any competent court.
(7) Notwithstanding the provisions contained in subsection (6) the Premier may authorise the payment of any amount from account referred to in subsection (1) on the submission of any revised estimates of expenditure from such account if the Premier is satisfied that such amount is due, that the payment thereof is necessary and that funds are available.
31 Auditing of books and accounts of traditional communities
(1) The books and accounts of every traditional community, recognised in terms of section 3 must be audited by the Auditor-General.
(2) The Auditor-General shall as soon as possible after an audit of the books and accounts of a traditional community, transmit a copy of his/her report on the books and accounts of such traditional community concerned to the Premier and to such traditional community: Provided that the Auditor-General may at any time, if he/she considers it desirable, transmit a special report on any matter connected with his/her powers and duties under this Act to the Premier and to such traditional community.
(3) In the execution of any audit in terms of subsection (1) of the books and accounts of any traditional community contemplated in subsection (5), the provisions of section 188 of the Constitution Act 1996 and section 3 of the Auditor-General Act, 1995 shall be applicable.
(4) A report contemplated in subsection (2) of this section shall, within the period prescribed by regulation in terms of this Act, be submitted to the Traditional Council of the community concerned for consideration, and after consideration thereof such authority shall submit to the Premier its comments thereon, including its findings and decisions thereon.
SCHEDULE II CODE OF CONDUCT
1. A traditional leader-
(a) must perform the functions allocated to him or her in good faith, diligently, honestly and in a transparent manner;
(b) must fulfil his or her role in an efficient manner;
(c) may not conduct himself or herself in an improper or unbecoming manner;
(d) must comply with any applicable legislation;
(e) must act in the best interest of the traditional community or communities he or she serves;
(f) must promote unity amongst traditional communities;
(g) may not embark on actions that would create division within or amongst traditional communities;
(h) must promote nation building;
(i) may not refuse to provide any service to a person based on political or ideological grounds;
(j) must promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery;
(k) must foster good relations with the organs of state with whom he or she interacts;
(l) must promote the principles of a democratic and open society; and
(m) must disclose gifts received.
2. A Traditional Council must-
(a) perform the functions allocated to it in good faith, diligently, honestly and in a transparent manner;
(b) execute its duties in an efficient manner;
(c) comply with any applicable legislation;
(d) act in the best interest of the traditional community it serves;
(e) give effect to the principles governing public administration set out in section 195 of the Constitution;
(f) must promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery; and
(g) foster good relations with the organs of state with whom it interacts.”
(own emphasis)
[36] Having regard to the factual background in the matter before court, the recommendations made by the Commissions and the decisions taken by the Premier, I now turn to determine whether the individual grounds for review of the Premier’s decisions are sustainable and administratively just in terms of PAJA.
1st ground: Premier’s failure to apply his mind, relevant and irrelevant factors taken and not taken into consideration
[37] It is argued on behalf of the applicant that the Premier’s decision should be reviewed and set aside in terms of section 6(2)(e) of PAJA, which reads as follows:
“6 Judicial review of administrative action
(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative action if-
(i) for a reason not authorised by the empowering provision;
(ii) for an ulterior purpose or motive;
(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another person or body;
(vi) arbitrarily or capriciously.”
[38] In discussing the submissions and the arguments made under this ground of review, I will deal with each submission separately.
[39] The applicants claim that the audi alteram partem principle was not adhered to as the Traditional Council and Royal Family was not granted an opportunity to be heard on the issues that were investigated by the Commission.
39.1. It is noted that there is a division in the Royal Family. One part of the Royal Family brought irregularities concerning the Traditional Council to the attention of the Premier seeking intervention from the Premier, which was the catalyst for the establishment of the Commission. Another part of the Royal Family is cited as the third applicant seeking the review of the Premier’s decision.
39.2. To illustrate this division in the Royal Family one needs to look no further than the relief sought by the applicants (which include the Royal Family as fourth applicant), in prayer 6 of the Notice of Motion, which reads as follows:
“Reviewing and setting aside the decisions taken by the Royal Family in Mochudi on 21 and 25 September 2019, 15 May 2020 and 5 June 2020.”
39.3. The applicants claim that the letters of the State Attorney dated 8 January 2020 and 17 June 2020 in which the State Attorney confirmed that the Premier did not have regard to the submissions made by the various parties to the Commission, but to the report of the Commission, in itself provide prima facie proof thereof that the Premier did not adhere to the audi alteram partem principle.
39.4. It is argued on behalf of the Premier that the liquidations of the companies referred to in the Commission’s report, the correspondence between the parties and the failure to inform the Commission of the liquidations are used as a “red herring” since the Royal Family indicated in a letter dated 9 June 2020 that it is ready and willing to meet with the Premier, but that they have not been afforded sufficient opportunity to discuss the issues with their legal representatives, and prefer to do so prior to meeting with the Premier.
39.5. The applicants claim that the Premier acted irregular in failing to grant the Royal Family an opportunity to discuss the issues with their legal representatives, and proceeding with the appointments of an Administrator and interim Kgosi without due consultation with the Royal Family. On the converse, it is argued on behalf of the respondents that the Commission granted the applicants enough time to consult with their legal representatives, and the applicants gave no indication when they would be ready to consult with the Premier.
39.6. It is argued by the applicants that the Premier could not appoint an interim Kgosi or Administrator without being so requested by the Royal Family, as the wording of the North West Traditional Leaders Act compels that any action taken by the Premier, is to be done in accordance with, or on application from, the Royal Family.
39.7. The Premier has written to KMJ Pilane on 15 June 2020 to inform him that the Royal Family brought to his attention certain irregularities relating to continued maladministration of the affairs of Bakgatla Ba Kgafela, that the Royal Family considers the irregularities as set out in the letter as serious, and that the Premier is considering to invoke section 14(3) of the North West Traditional and Governance Act 2 of 2005. KMJ Pilane was afforded 5 days to make written representations as to why the Premier should not decide to withdraw his (KMJ Pilane’s) recognition certificate on the basis of the decision and reasons given by the Royal Family. As such KMJ Pilane was aware of the Premier’s intention to consider the withdrawal of his recognition certificate as he was informed of the resolution of the Royal Family of Bakgatla Ba Kgafela. On this basis it is argued on behalf of the respondents that the audi alteram partem rule was indeed followed.
39.8. Lastly, the applicants bemoan their plight to not have been allowed to address the Premier directly.
39.9. The Premier duly appointed the Commission in terms of section 127(2)(e) of the Constitution and the appointment and/or mandate of the Commission is not under scrutiny. Save for situations legislatively allowed, the applicants (excluding the Kgosi and the Royal Family) have no right to address the Premier directly on an issue for which the Premier has appointed a Commission. Should the Premier allow the parties investigated and interviewed in the Commission of Inquiry, the purpose of the Commission and work done by the Commission would become obsolete. On the applicant’s contention, the Premier would essentially be doing the work of the Commission of Inquiry if all the parties involved were granted direct access to the Premier. The Traditional Council, and every other applicant, had been granted the opportunity to address the Commission and they have done so.
39.10. In addition to the above, the Premier granted the Royal Family, Pilane and the Traditional Council an opportunity to respond to the pre-empted decision to withdraw the recognition certificate of Pilane. The Royal Family only indicated that they have the intention to meet with their legal representatives prior to meeting with the Premier, but did not substantively respond to the issues raised by the Premier in the correspondence inviting them to do so.
39.11. As a result, I do not find that the Premier failed to adhere to the audi alteram partem principle.
[40] It is further argued on behalf of the applicants that the findings of the Commission that financial transactions were entered into by the applicants, were outside the scope of the terms of reference of the Commission.
40.1. The applicants contend that the Commission should have dealt with the flow of the financial benefits and the role of the 32 villages under Moruleng in the acquisition-making process. In this regard it is argued on behalf of the applicants that the terms of reference in the Commission’s mandate were too vague and the Commission had no power to investigate and make recommendations on the functioning of the Traditional Council.
40.2. It is true that the terms of reference in relation to the investigation of financial transactions conducted by and on behalf of the BBK, were set out in more detail in the 2016 proclamation for the late Justice Maluleke Commission as opposed to the Baloyi Commission. This, however, was also regarded by the applicants as being too vague, as addressed in their letter of concern.
40.3. The mandate of the Commission included:
“To determine the relationship amongst the Mogale clan, the Maimane sub-clan and the Moerane sub-clan.”
40.4. Part of the investigation to determine the relationship between the various sub-clans, entailed a scrutiny of the financial records of the Traditional Community.
40.5. Set out in detail in paragraph [22] above and from paragraph 169 of the Commissioner’s report, the Commission discovered unlawful and illegal financial conduct and several serious financial irregularities in the conducting of the financial affairs of the BBK and Traditional Council. These include transactions to the excess of billions rand and contraventions of the Companies Act 71 of 2008, the Close Corporation Act 69 of 1984, the Traditional Leadership and Governance Framework Act 41 of 2003 and the North West Traditional Leadership Governance Act 2 of 2005.
40.6. In order to determine the scope of the powers of the Commission and whether the Commission was entitled to investigate the financial position of the Tribal Council without such specific mandate but under the broader mandate of the inter-clan relationships, I take guidance from the matter of City of Cape Town v Premier, Western Cape and Others 2008 (6) SA 345 (C). This was an appeal with two judges from a single judge. The following finding in paragraph [89] at 378J to 379B is apposite:
“The Premier having almost untrammelled constitutional power to appoint commission of enquiry into affairs further, as to the alleged lack of rational connection between the Premier's decision to appoint the commission and the purpose of his commission-appointing power, that before the Premier could lawfully decide to establish a commission with coercive powers to investigate the affairs of a municipality, the subject-matter of the investigation had to be such that intervention by the Province under s 139 of the Constitution could rationally result from the commission's report.”
40.7. In application of the principle stated in City of Cape Town v Premier, Western Cape it was held that the Premier’s “almost untrammelled constitutional power to appoint (a) commission of enquiry…” should be on a subject-matter(s) of the investigation that had to be of such a nature that intervention by the Province under section 139 of the Constitution could rationally result from the Commission's report. The investigation of the Traditional Council’s finances, which finances are safeguarded by the legislation as set out in paragraphs [32] to [35] and [40.5] above, will in my view resort under powers that the Premier would be entitled to intervene in terms of the legislation.
40.8. To argue that the Commission did not have the mandate to investigate financial matters, is in my view an argument that disregards one of the fundamental causes of the disputes in the community and one of the reasons that motivated the Premier to institute a Commission of Inquiry.
40.9. In the premise, I do not find that the investigations and findings of the Commission in relation to financial issues were outside the scope of appointment of the Commission.
[41] It is further argued on behalf of the applicants that, in appointing the Administrator to take over the Traditional Council, the Premier acted for an ulterior purpose that was not authorised by the empowering provisions in the terms of reference of the Commission.
41.1. It is argued that the true purpose of the Premier was to emasculate the Bakgatla Ba Kgafela and its Traditional Council for personal gain and to remove the status of the Royal Family. This argument is based on the following:
41.1.1. It is argued that there was a liquidation application against the Royal Family which was done prior to the report of the Commission, but the liquidation is not mentioned in the report of the Commission.
41.1.2. It is also argued that one of the primary functions of a Premier is to assist and enable the Traditional Council to properly function, and not to act against the Royal Family and Traditional Council by appointing an Administrator and interim Kgosi.
41.1.3. Included in the recommendations and the report of the Commission of Inquiry, there was an opinion of two legal counsel. This opinion was dated 28 May 2020. The recommendation in that opinion was that KMJ Pilane should be requested to resign and that should KMJ Pilane not resign voluntary, the Administrator Kgafela II should be approached to take a decision to remove KMJ Pilane. The argument is thus that the decision to remove KMJ Pilane was all part of a pre-planned execution to devoid KMJ Pilane off chieftainship.
41.2. The applicants argue that the above indicate that the Premier made the appointments of an Administrator and an acting Kgosi despite the Commission of Inquiry acting beyond its powers.
41.3. The applicants argue that a closer reading of the terms of reference that an Administrator is to be appointed, should need be, reveal that it is the purpose of the Provincial Government to gain access to the finances of the community. This argument is made on the basis that the terms of reference, as the Commission is authorised to “instruct the MEC of COGTA and/or the Department COGTA to take steps to assess the skills of members of the TC and to provide appropriate training in terms of sec 35.”
41.4. During the investigation of the relationships between the clans, the Commission discovered gross financial irregularities and unlawful financial conduct. The Commission had a duty to report gross financial and unlawful financial conduct to the Premier.
41.5. On the basis that the mandate of the Commission included an investigation between the clans, and this investigation revealed financial irregularities, I do not find that the Premier acted with an ulterior motive in establishing the Commission of Inquiry and accepting the recommendations as he did.
41.6. This ground of review can therefore not be successful.
[42] It is argued on behalf of the applicants that the abovementioned factors, combined, indicate that the Premier failed to consider relevant information and considered irrelevant issues in making the decisions under review.
42.1. The arguments made by the parties mirror the arguments previously made.
42.2. The argument under this ground of review is that the Premier’s actions were not administratively sound for the reasons as set out above.
42.3. In my view, these arguments do not indicate that the Premier had regard to irrelevant facts and disregarded relevant facts. The arguments also do not indicate that the Premier acted for any ulterior motive. The fact that the terms of reference included that the Commission should assess the skills of the Traditional Council members, and provide the appropriate training, militates against the argument that the Premier had ulterior motives. In my view, it would rather support the contrary: that the responsible people should be enabled and trained to do the work.
42.4. I do not find that the Premier had regard to irrelevant factors and no regard to relevant issues in coming to a decision.
[43] The first ground of review is consequentially bound to be dismissed.
2nd Ground: Decision materially influenced by errors of law
[44] The applicants contend that the Premier’s decision is reviewable in terms of section 6(2)(d) of PAJA and the Constitution on the basis that the decision was materially influenced by an error of law, in terms of section 6(2)(d) of PAJA which reads as follows:
“6 Judicial review of administrative action
(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative action if-
…
(d) the action was materially influenced by an error of law…”
44.1. It is argued on behalf of the applicants that the recommendations of the Baloyi Commission constitute an error of law as it can neither be inferred nor arise from the terms of reference of the Commission.
44.2. It is argued on behalf of the applicants that the Premier erred in law to act on the recommendations of the Commission where the Commission’s recommendations were beyond the scope of the terms of reference.
44.3. The terms of reference of the Commission as issued by the Premier in Proclamations 49 and 50 of 2017, can be summarised in two (2) main categories:
44.3.1. The determination of the legitimate members of the Royal Family and traditional community; “To identify the legitimate members of the Royal Family and the Khuduthamaga of the Bapo I and II traditional community” and
44.3.2. To determine the relationship between the clans; “To determine the relationship amongst the Mogale clan, the Maimane sub-clan and the Moerane sub-clan.”
44.4. The recommendations made by the Commission, which was accepted by the Premier, to appoint Linchwe as interim Kgosi and withdraw the Recognition Certificate of Pilane was made on the basis of the findings of the Commission in the identification of the legitimate Royal Family and traditional community.
44.5. The decision of the Premier to appoint the Administrator was made on the basis of the Commission’s findings made as a result of its investigation of the relationship between the specific clans, as well as the irregular and unlawful financial activities discovered in the financial reports of the Traditional Council.
44.6. After carefully considering the terms of reference as quoted above and the recommendations of the Commission, I do not find that the Commission acted outside the scope of their terms of reference.
44.7. As such, I do not find that the Premier erred in law, or in fact, to accept the recommendations of the Commission.
[45] It is argued on behalf of the applicants that the Premier erred materially in making the appointments of the Administrator and the interim Kgosi, despite a pending review matter between the parties under case number M539/2019 and as such the decisions amount to an error of law.
45.1. On 27 September 2019 the applicants launched an application under case number M539/2019 to review and set aside the decision of the Premier taken on 26 August 2019 to approve of the recommendations of the Commission which recommendations are dated 20 August 2019. That application seeks the same relief that is sought in this current application. The applicants indicated that they intend to only proceed with the issue of costs in the matter under case number M539/2019.
45.2. The applicants are dominis litis and therefore the choice to institute or pursue any legal proceedings, are at their discretion. An administrative action, once made, has to be given effect to and stands until it has been set aside on review. The mere institution of review proceedings did not bar the Premier from executing his decisions.
45.3. On this basis I do not find that the Premier’s decision is reviewable on this ground.
[46] It is argued on behalf of the Premier that the appointments of Linchwe and the Administrator was made without indicating that the Premier has considered other applicable legislation than the provisions of section 10(2) and section 10(3) of the North West Legislation.
46.1. It is trite that a decision maker need not stipulate each and every factor taken into consideration in coming to the conclusion that the decision maker does.
46.2. The fact that the appointments of the Administrator and interim Kgosi was made without indicating that all legislative aspects were considered, does not in itself indicate that the Premier has not considered all the applicable legislation.
46.3. In the premise, I do not find the Premier’s decision is reviewable on the basis that he failed to consider other applicable legislation.
[47] It is argued on behalf of the applicants that the legislation prescribes that the Premier erred in law in that he was not requested by the Royal Family to institute a Commission as he did.
47.1. The argument of the applicants is that the position of Administrator and interim Kgosi was done in the absence of the Royal Family requesting the Premier’s intervention, resulting in the appointments made in error of law.
47.2. This argument loses sight thereof that the Premier was requested by the Royal Family to intervene in certain alleged irregularities relating to continued maladministration of the affairs of Bakgatla Ba Kgafela, that the Royal Family considers the irregularities as set out in the letter as serious, and that the Premier is considering to invoke section 14(3) of the North West Traditional and Governance Act 2 of 2005. This much was set out the letter of the Premier addressed to KMJ Pilane on 15 June 2020.
47.3. Sections 9 and 10 of the North West Legislation read that “the traditional community shall administer the affairs of the traditional community in accordance with customs and tradition and perform such other functions conferred by customary law and customs, consistent with statutory law and the constitution”.
47.4. It is also argued that the Premier may not take steps inconsistent with the Act to ensure proper administration and good governance by the Traditional Councils. The Premier may only make such decision on the recommendation of the Royal Family and only then the Premier may, once satisfied that the Traditional Council is unable to perform the functions assigned to it in terms of the Act in an efficient and effective manner or in a manner which is conducive to good governance and administration, appoint any person to assist the Traditional Council concerned to perform the functions assigned to such Traditional Council.
47.5. The powers bestowed on the Premier includes the establishment of a Commission of Inquiry with specific terms of reference determined by the Premier. The Premier’s decision to accept the recommendations of the Commission fall within his legislative powers to provide leadership where disputes arise in the Province, and within the frame of the legislation.
47.6. As set out above, the documents before court indicate that there is a split in the Royal Family. The correspondence of the Premier dated 15 June 2020 stipulate that the Royal Family brought concerns to the attention of the Premier, which was the catalyst for the establishment of the Commission.
47.7. The Premier acted on request of one part of the Royal Family and as such, I do not find that the Premier erred in law in appointing a Commission of Inquiry in the absence of a request from the remaining part of the Royal Family.
47.8. This ground of review can therefore not be upheld.
[48] It is argued on behalf of the applicants that legislation do not provide for a situation where the Traditional Council could be dissolved during the tenure of the Administrator who was appointed.
48.1. The argument is that the Commission’s mandate is in contradiction with the legislation, since the Commission is authorised to initiate a process that would effectively annul the incoming Traditional Council.
48.2. The argument evolves that the terms of reference is ultra vires the powers of the Administrator in terms of the applicable legislation. The same argument is made in relation to the Commission’s term of reference to engage and call tribal meetings for the purpose of reporting back to obtain a new mandate and tribal resolutions.
48.3. The argument on behalf of the applicants is that the customs and traditions of the Traditional Community can only be convened by the Kgosi who is Pilane, which appointment as Kgosi remains valid in terms of the customary law and practices of the Traditional Community in Moruleng.
48.4. This argument, however, loses sight of the legislative powers that the Premier has in terms of the Traditional Councils Act and the North West Traditional Leaders Act, and the powers bestowed on the Premier to institute a Commission of Inquiry. The North West Traditional Leaders Act stipulates in section 10(2) thereof that:
“The Premier may, subject to the provisions of this Act and the Constitution and with due observance of the traditions applicable in a traditional community, take such steps as may be necessary to ensure the due performance of the functions referred to in subsection (1).”
48.5. The North West Traditional Leaders Act also determines in section 10(3) that the Premier, once satisfied that the Traditional Council is unable to perform its legislative duties, may appoint a suitable person to assist the Traditional Council to perform its functions. Section 10(3) of the North West Traditional Leaders Act reads as follows:
“(3)(a) On the recommendation of the Royal family the Premier may, if satisfied that a Traditional Council is unable to perform the functions assigned to it in terms of the Act in an efficient and effective manner or in a manner which is conducive to good governance and administration, appoint any person to assist the Traditional Council concerned to perform the functions assigned to such Traditional Council.
(b) An officer appointed in terms of paragraph (a) shall be competent to exercise and perform any power, authority or function conferred or imposed by law upon any such Traditional Council and shall be deemed to have been exercised or performed by such Traditional Council.
(c) The appointment of any officer in terms of this section shall be reviewed after a period of 180 days.”
48.6. The report of the Commission indicated that the Traditional Council failed to provide annual financial reports audited by the Auditor General, as legislatively prescribed. The last financial reports were presented in 2012.
48.7. After being satisfied that the Traditional Council is not performing its legislative duties, the Premier accepted the recommendation of the Commission to appoint an Administrator.
48.8. As such, I do not find that the Premiers decisions were made in an error of law.
[49] On the basis of the above, the second ground for review can also not be sustained.
3rd ground: Decision contravenes the law and is not authorised by the empowering provision
[50] It is argued on behalf of the applicants that the Premier acted ultra vires the North West Traditional Leaders Act and the Constitution. The applicants argue that the decisions of the Premier are consequently reviewable in terms of section 6(f)(i) of PAJA which reads as follows:
“6 Judicial review of administrative action
(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative action if-
(a) the administrator who took it-
…
(i) contravenes a law or is not authorised by the empowering provision…”
[51] The arguments advanced are a rehash of the grounds rendered in the second ground for review.
[52] For the same reasons as set out in the second ground for review, I do not find that the decision of the Premier to accept the recommendations of the Commission is reviewable and liable to be set aside.
[53] The third ground for review therefore stands to be dismissed.
4th Ground: Decision unconstitutional and unlawful
[54] It is argued on behalf of the applicant that the Premier had a duty to act fairly and failed to do so, and that the decision of the Premier to accept the recommendations of the Commission was unconstitutional and unlawful on the basis set out as follows.
[55] The Premier made a media statement on 24 October 2019 in the Motseding FM during the Tselele le Tselele Talk Show to the effect that Pilane is appealing and reviewing the recommendations of the Commission, and there has to be due observance or respect for the law and its processes. It is argued by the applicants that, despite such media statement, the Premier did not respect the due process and proceeded with the appointment of an interim Kgosi.
[56] The applicants became aware of the appointment of an Administrator and interim Kgosi through the media on 20 December 2019 and during May 2020 they became aware of the appointment letters. The argument on behalf of the applicant is that (a) the appointment and (b) the retrospective nature of the appointment of the Administrator is unlawful.
[57] It is also argued on behalf of the applicants that the North West Traditional Leaders Act determines in section 10(2) that the best interest of the community is to be adhered to, subject to provisions of that act. The argument is that the Premier should have taken steps to enable the appointment of the Traditional Council’s choice of appointment of the Kgosi, being that of Pilane.
[58] It is contended on behalf of the applicants that the Premier is only empowered to appoint legislatively, thus in order to assist the Traditional Council. The argument is that the Premier over-stepped as it is not allowed to interfere in the business of the Traditional Council.
[59] It is also argued on behalf of the applicants that the Premier overreached as he exercised more powers than was recommended in the report. The argument is that the Premier is not entitled to interfere in the report, but to ensure that the Traditional Community regulate themselves.
[60] Lastly, the applicants contend that the appointment of an Administrator should only be at the instance of the Royal Family.
[61] It is argued that the Premier acted outside the scope of his duties in appointing Kgafela II as the Administrator, on the basis that:
61.1. The appointment of Kgafela II as Administrator was illegal;
61.2. The Commission’s recommendations are in relation to actions that legislatively regulate the functions of the Traditional Council. The legislation does not empower the Premier to execute inconsistent actions;
61.3. The Premier should ensure proper and good administration, which was not done by the appointment of the Administrator.
[62] The Commission’s report indicates that the Kgosi has not convened a community meeting since 2012 as legislatively compelled. Paragraph 194 reports the conduct of Pilane and the Traditional Council as follows:
“194. Kgosi Pilane has failed since December 2012 to convene meetings of the community as he is obliged to do so by sec 18(1)(g) of the NW Act. As a result, the TC has not accounted to the community about the administration of their assets and the financial matters relating thereto, including the application of income derived from transactions with third parties.”
[63] The powers of the Premier in relation to the retraction of a Certificate of Recognition of a Kgosi is set out in the North West Traditional Leaders Act section 27 reads as follows:
“Whenever there is reasonable suspicion that a traditional leader has breached any provision of the code of conduct, the Premier may charge him or her in writing with such alleged breach and may appoint a suitable person to conduct an enquiry of the alleged breach in line with the provisions of the code.”
[64] The withdrawal of the certificate of recognition and issuing of a certificate of recognition by the Premier is set out in the North West Traditional Leaders Act in paragraphs 14 and 16 which reads as follows:
“14 Removal of kgosi/kgosigadi
(1) A kgosi or kgosigadi may be removed from office on the grounds of-
…
(d) a transgression of a customary rule, principle or code of conduct that warrants the removal from office.
(2) Whenever any of the grounds referred to in subsection (1) come to the attention of the Royal family and the Royal family decides to remove the kgosi or kgosigadi, the Royal family must within a reasonable time inform the Premier of such decision and the reasons therefor.
(3) The Premier shall upon receipt of such decision and reasons therefor, withdraw the certificate of recognition of such a kgosi/kgosigadi by-
(a) publishing a notice of withdrawal of recognition of such kgosi/kgosigadi in the Gazette;
(b) informing the Royal family concerned, the kgosi/kgosigadi concerned and the Provincial House of Traditional Leaders of such removal.
…
16 Recognition of an acting kgosi/kgosigadi
(1) The identification of an acting kgosi/kgosigadi to bogosi of a traditional community shall be made by the Royal Family in accordance with its customary law and customs.
(2) The Premier may recognise a person identified as contemplated in subsection (1) as an acting kgosi/kgosigadi of a particular traditional community.
(3) The Premier must issue a person recognised as an acting kgosi/kgosigadi with certificate of recognition.
(4) The Premier must issue a notice in the Gazette recognising an acting kgosi/kgosigadi and such notice must be served on the Provincial House of Traditional Leaders for their information.”
[65] The mere fact that Pilane and/or the Traditional Council has not submitted or caused to submit any annual financial report to the Auditor General since 2012 is shocking. Paragraph 191 of the Commission’s report reads as follows:
“191. The TC has failed to submit its accounts and financial statements for audit by the Auditor-General as it is obliged to do by sec 31(1) of the NW Act (North West Act). No valid reason was given for this failure to comply with the law.”
[66] A careful reading of the legislation establishes that the Premier is to ensure accountability of the Traditional Council to the traditional community. The prescripts encapsulated in the legislation quoted above is a thorough system of checks and balances to ensure compliance with the principles of the code of conduct. In addition, the legislation that determines annual audit reports to be submitted to the Auditor General, ensures transparency of a Traditional Council and was not adhered to. The Commission’s report revealed same.
[67] On the basis of the above, and since the Premier has complied with the legislation set out above, the actions of the Premier to appoint a Commission of Inquiry, to have cognisance of the recommendations and implement the recommendations was not done unlawful or unconstitutional.
[68] This ground of review can therefore also not be successful.
Summation
[69] In summation, it is argued by Adv Ramolefe on behalf of the Premier that the appointment of the Kgafela II came as a consequence of the findings and recommendations of the Baloyi Commission, and the applicants failed to deal with the content of the report. It is argued on behalf of the respondents that the applicants need not address the content of the Commission’s report, more specifically the financial transactions, but argue that the Premier should be bound to the decisions of the Traditional Council. This cannot be. The Premier is legislatively appointed as the “overseer” of the traditional communities in his province. In this instance the Premier was entitled, and had the legislative duty, to investigate and act on the recommendations made by the Commission of Inquiry.
[70] It is further argued by Adv Ramolefe that the Baloyi Commission report came about as a result of the investigation and recommendations made to the Office of the Premier, and the Premier acted within his powers to act in making the decisions as he did. For the reasons set out above in detail under the various grounds of review, I agree with Adv Ramolefe that the Premier acted within his scope of powers in appointing an Administrator and interim Kgosi and recalling the recognition certificate of Pilane.
[71] Adv Ramolefe argues on behalf of the Premier that the Premier acted in terms of the legislation to provide clarity on the identity of the rightful traditional leader on the basis that the Traditional Community could not come to a conclusion and agree on who the rightful leader is. This much is set out in the Commission’s mandate. He further argued that the legislation makes provision for the Premier to act when the community cannot come to a decision. The legislation is set in place for situations such as these where there is no transparency of the Traditional Council or Kgosi.
[72] Adv Matsepo argued on behalf of Linchwe and Kgafela II that the Premier acted within its powers to appoint an Administrator in the stead of a malfunctioning Traditional Council. He argues that the report of the Baloyi Commission of Inquiry was done rightfully and the recommendations were made lawfully to the Premier. He argues that the appointment of the Premier of the Administrator and Interim Kgosi was done in terms of a duly considered and lawfully exercised duty. Having regard to the reasons set out in the various individual grounds of review, I agree with these submissions.
[73] Having considered the arguments and the ground of review, I do not find the decisions of the Premier to be susceptible to be reviewed and set aside. Community disputes led to the Royal Family approaching the Premier, which led to the Premier appointing the Commission of Inquiry. The Premier acted in the scope of his powers and administratively sound in making the decisions that he did, as per the recommendations of the Commission of Inquiry.
[74] The ancillary relief of declaratory orders sought by the applicants can only be granted if I would have found that the appointment of the Administrator, interim Kgosi and withdrawal of Pilane’s certificate of recognition was viable to be reviewed and set aside.
[75] Since I found that there is no ground to review the Premier’s decision in accepting the recommendation of the Commission and set it aside, it follows that no declaratory order is to be granted.
[76] In the premise, I find that the applicant has failed to make a case for the relief as requested and that the application is doomed to be dismissed.
Costs
[77] The normal rule is that the successful party is entitled to its costs. I find no reason why this rule should not be followed.
[78] Both the applicants and respondents employed two (2) counsel. In my view, the applicable legal principles and the volume of documents in the application indeed justify the instruction of two (2) counsel.
[79] I find no reason to deviate from the normal scale of cost being that of party – and – party and no argument has been made by any party that there should be a deviation from the normal scale of cost.
[80] I therefore find that the respondents’ costs are to be paid by the applicants and that costs include the cost of two (2) counsel, where so employed.
ORDER
In the premise I make the following order:
i) The application is dismissed with costs;
ii) The costs include costs of two (2) counsel (including Senior Counsel) where so employed.
FMM REID (WAS SNYMAN)
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG
APPEARANCES:
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DATE OF HEARING: |
26 OCTOBER 2022 |
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DATE OF JUDGMENT: |
04 JULY 2023 |
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FOR THE APPLICANT: |
ADV ZZ MATEBESE SC |
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WITH ADV HL KELAOTSWE |
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INSTRUCTED BY: |
BHADRISH DAYA ATTORNEYS |
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C/O M E TLOU ATTORNEYS & ASS |
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43 CNR BADEN POWELL & VISSER STREET |
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MAHIKENG |
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TEL: 018 011 0036 |
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FAX: 018 011 0527 |
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REF: MR TLOU/B0166/CIV |
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FOR THE 1ST , 4th , 6th & 8th RESPONDENT: |
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ADV KD RAMOLEFE |
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WITH ADV T MASIKE |
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INSTRUCTED BY: |
STATE ATTORNEYS MAHIKENG |
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1ST FLOOR MEGA CITY COMPLEX |
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MMABATHO |
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TEL: 018 348 0296 |
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REF: 0842/20/P9 |
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EMAIL: mselowa@justice.gov.za |
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FOR THE 2ND AND 3RD RESPONDENTS: |
ADV OAK MATSEPO |
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INSTRUCTED BY: |
A MASHILA INCORPORATED |
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EMAIL: |
amashilaincorporate@gmail.com |
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C/O RS TAU ATTORNEYS |
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23 VICTORIA STREET |
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GOLFVIEW MAHIKENG |
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REF: COR 112/22 |
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TEL: |
018 381 8691 |
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EMAIL: |
michael@rstauattorneys.co.za |
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FOR THE 5TH RESPONDENT: |
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INSTRUCTED BY: |
TSHIVHASE INC |
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WOODMEAD BUSINESS PARK |
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142 WESTERN SERVICE ROAD WOODMEAD |
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CELL: 082 318 8040 |
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TEL: 011 656 0804 |
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EMAIL: TonyT@tshivhaseinc.com |