Blackhill Engineering & Construction CC v Barolong Booratshidi Tribal Authority

• Jurisdiction: South Africa
• Judge: Lever AJ
• Judgment Date: 22 October 2009
• Docket Number: 385/2009
• Court: North West High Court, Mafikeng
• Hearing Date: 03 June 2009
• Citation: 2009 JDR 1096 (NWM)

Lever AJ:

[1]

The main application involves certain disputes relating to mining rights on tribal land. The present application and counter – application are ancillary to this main application. In the main application the Applicant cited the First Respondent as the BARALONG BOORATSHIDI TRIBAL AUTHORITY. The First Respondent in the main application took certain points in limine, inter alia that it was incorrectly cited as the Barolong Boo – Ratshidi Tribal Authority as that entity had ceased to exist on the promulgation of the TRADITIONAL LEADERSHIP AND GOVERNANCE FRAMEWORK ACT No: 41 OF 2003 ("the National Act"), which came into effect on the 24th September 2004. First Respondent pointed out that at the time that the main application was issued out of this Court on the 19th March 2009, tribal authorities had ceased to exist and were replaced

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by traditional councils. The Applicant then brought an application to substitute the Barolong Boo – Ratshidi Tribal Authority with the Barolong Boo – Ratshidi Traditional Council. The First Respondent opposes this application and has brought a counter – application. The Notice of Motion in the Counter – Application is somewhat clumsily worded. However, it is clear that the First Respondent seeks to have the name of Kgosi Kgotleng Jeff Montshioa inserted as the First Respondent representing the traditional community. The First Respondent contends that on a proper interpretation of section 32 of the NORTH WEST TRADITIONAL LEADERSHIP AND GOVERNANCE ACT No: 2 OF 2005 ("the Provincial Act") that Kgosi Montshioa is the correct person to be cited in proceedings against that traditional community. The National Act [1] contemplates Provincial Legislation. In fact Traditional Leadership is listed in Schedule 4 of the Constitution [2] and it is therefore subject to concurrent National and Provincial legislative competence. Despite the First Respondent's counter – application and the fact that it only sought costs if the counter – application was opposed, the Applicant persisted with its application for substitution of the Tribal Authority with the Tribal Council. I now turn to considering the merits of both the application for this substitution and the First Respondent's counter – application to substitute the citation of the Tribal Authority with the name of Kgosi Montshioa.

[2]

Mr. Swart on behalf of the Applicant argued that section 4 (1)(a) of the National Act created the Traditional Council as a statutory body and endowed the Traditional Council with corporate status, which then implied that it could sue and be sued in its own name. Mr. Swart further argued that section 32 of the Provincial Act provides the Applicant with what he terms is a "conditional option" to sue either the Traditional Council or the Kgosi. Consequently, he concluded that the Applicant's application for substitution should be allowed and the First Respondent's counter – application should

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be dismissed. The submissions made by both parties on costs will be dealt in detail later in this judgment.

[3]

Mr. Molemoeng appeared for the First Respondent and he argued that there was nothing in section 4 of the National Act that conferred corporate status on the Traditional Council. He pointed out that section 4 of the National Act only outlined the functions of the Traditional Council and that the same functions were also given to the chief. Further, he pointed out that section 3 of the National Act created the Traditional Council and that nothing in section 3 conferred corporate status on the Traditional Council. He also argued that the only trace of contractual powers conferred on Traditional Councils by the National Act appeared in section 5 which empowered Traditional Councils to enter into service delivery agreements with Municipalities. On this point Mr. Molemoeng concludes that the Traditional Council is not a statutory body in the sense that the statute confers upon it corporate status with the corresponding capacity to sue and be sued in its own name. In respect of section 32 of the Provincial Act Mr. Molemoeng argued that use of the word "may" in the phrase "…may be instituted by or against the kgosi or kgosigadi of that traditional community or traditional council in his/her official capacity: Provided - …", was peremptory and that properly construed this section in the Provincial Act meant that all actions by or against the traditional community had to be instituted by or against the Kgosi or Kgosigadi in his or her official capacity.

[4]

In considering the relative merits of the present application and counter – application I will have to consider two main issues. Firstly, whether it is evident from section 4(1)(a) of the National Act that Parliament, intended to and did in fact create traditional councils as statutory bodies endowed with corporate status. Secondly, whether or not the wording of section 32 of the Provincial Act offers the applicant a choice to sue either the Kgosi or the Traditional Council. The question as to whether use of the word "may" in section 32 of the Provincial Act is peremptory or merely directory is interlinked

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with this issue. Depending upon the answer as to whether or not the Applicant has an election to cite either the Kgosi of the Traditional Council, it may not be necessary to determine whether use of the word "may" in the context of section 32 of the Provincial Act bears its usual meaning conferring a discretionary power or whether in the context of the said section its meaning is peremptory. However, for the sake of completeness and clarity, I will consider the meaning of the word "may" in the present context as a separate issue.

[5]

Both Mr. Swart and Mr. Molemoeng referred to Erasmus [3] in motivating their respective positions on whether or not traditional councils were statutory bodies. In this regard Erasmus states:

"Statutory bodies. There are many bodies which owe their existence to special Acts of Parliament, and in many cases these bodies are endowed by the legislature with corporate status so that they can sue and be sued in their own names. It is not possible to give an exhaustive list of such bodies which are not mentioned under other headings. In the case of all these bodies the applicable Acts must be looked to in order to fix the status of the bodies." [4]

[6]

The National Act does not expressly create traditional councils as statutory bodies endowed with corporate status and the power to sue and be sued in their own names. The next step is then to consider whether by virtue of the powers and functions accorded traditional councils in the National Act, it can be said that by necessary implication, Parliament intended that they should be statutory bodies enjoying corporate status with the power to sue and be sued in their own names. In this regard the only provision of the Act upon which the Applicant relied is set out in section 4(1)(a) of that Act and it is the meaning of this section that has to be established. The National Act does not contain any of the more traditional indicators that Parliament intended a traditional council to

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be a statutory body enjoying corporate status. For example, the National Act does not confer upon the Traditional Council the right to hold, acquire and deal with property in its own name. Mr. Molemoeng points out that the only contractual rights that a traditional council enjoys in terms of the National Act are contained in section 5 thereof. These rights are...