The issue considered in this appeal was whether a Traditional Council (regulated in terms of customary law) had locus standi to institute action proceedings on behalf of Bakgaka – Ba – Mothapo Traditional Community (the “Appellant”). Furthermore, whether the argument of insufficient number of men/women appointed as councilors to the Premier’s office justified the order made by the Limpopo Division of the High Court, Polokwane (the “Court a quo”), which was that the Appellant had no locus standi.
| An adult female, Kgoshigadi Madipoane Refiloe Maremadi Mothapo (Kgoshigadi”) together with the Appellant instituted proceedings against the Respondents, who are allegedly receiving money for the purported sale of land and issuing purported permission to occupy the land unlawfully. Kgoshigadi derived her authority to institute action proceedings by way of a resolution passed by the appellant. |
The land in the dispute is situated within a village in the Limpopo Province and constitutes tribal land (“Tribal Land”). According to Kgoshigadi and the Appellant, the Tribal Land is held in trust byKgoshigadi and the Traditional Council and as such may not be sold by any individual. Furthermore, any monies received should be deposited into the Traditional Council’s trust account.
| THE COURT A QUO The Appellant and Kgoshigadi sought to prohibit and restrain the Respondents from allocating/selling Tribal Land under the jurisdiction and authority of the Appellant and Kgoshigadi. The Respondents raised a special plea that Kgoshigadi and the Appellant had no locus standi to institute the action proceedings against the Respondents, on the basis that: |
1. Kgoshigadi was disqualified from being capable of being recognised in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (the “Framework Act”), as she was not born of royal blood; and
2. the Appellant did not comply with its requirements set out in the provision of the Framework Act and the Limpopo Traditional Leadership and Institutions Act 6 of 2005 (“Limpopo Traditional Leadership Act”).
| Both the aforementioned Acts regulate traditional councils and their communities. |
The High Court found that the Kgoshigadi had locus standi. However, despite the Appellant’s argument that it had the requisite locus standi to institute action proceedings by virtue of its establishment in terms of customary law, the High Court argued that it did not comply with the Act and the Limpopo Traditional Leadership Act.
The High Court found, inter alia, that of the nine members of the Appellant, only one member was a traditional leader. The Appellant had no women in the list, which was allegedly submitted to the Premier for approval (as contained in section 4 of the Limpopo Traditional Leadership Act). Section 4 of the Limpopo Traditional Leadership Act expressly deals with the recognition of traditional councils and the significant involvement of the Premier in recognising these councils.
The Appellant did not comply with its requirements contained in the Limpopo Traditional Leadership Act in order to be recognised and gazetted by the Premier. The High Court stated that the composition and recognition of traditional councils is clear and consistent with legislation, thus traditional councils ought to comply with these provisions in order to avoid any confusion. The Appellant failed to do so.
| In the Constitutional Court (the “CC”) judgement in Sigcau v Minister of Cooperative Governance and Traditional Affairs  ZACC 28, 2018 (12) BCLR 1525 (C), an argument was raised that the court must allow the dispute regarding Kingship to be resolved by way of customary law, which would be to refer the dispute to the royal family. However, the Framework Act provides that a commission is required to investigate the dispute and submit a report to the President. The report contained recommendations of who the rightful individual to the throne should be.|
The CC held that once the commission resolved a dispute and has conveyed its decision to the President, the President “must publish a notice in the Government Gazette recognising the person decided upon and must issue a certificate of recognition to that person”.
Thus, the Supreme Court of Appeal held that in instances where two pieces of legislation regulate the constitution and requirements for the recognition of the Traditional Council, a party cannot rely on customary law which falls outside such statutory requirements.
The SCA accordingly dismissed the appeal with costs.
A party cannot rely on customary law in instances where there are two pieces of legislation which provide for how the Traditional Council is constituted and regulated (i.e when customary law falls outside the ambit of the statutory requirements for the recognition of a Traditional Council).
Written by Katya Oberzhitsky Checked by Stefan Bezuidenhout
06 November 2019