Chief Molotlegi and Another v President of Bophuthatswana and Another

• Jurisdiction: South Africa
• Judge: Theal Stewart CJ, Gatgut AJA and Kotze AJA
• Judgment Date: 04 September 1991
• Citation: 1992 (2) SA 480 (BA)
• Hearing Date: 05 June 1991
• Court: Bophuthatswana Appellate Division

Stewart CJ:

This is a dispute concerning the respective competitive appointments of a 'deputy' and an 'acting' chief of the Bafokeng tribe.

The first appellant has at all material times been and still is the recognised and duly appointed chief of the tribe. I shall refer to him F as Edward Molotlegi. He has been in exile in Botswana since 19 March 1988.

In or about February 1986 he purported to appoint the second appellant, Tumagole, as 'deputy' chief of the tribe in circumstances which will be referred to later, as will the word 'deputy'.

The first respondent is the President of the Republic of G Bophuthatswana. On 9 December 1988, with effect from 13 September 1988, he purported to appoint the second respondent, to whom I shall refer as George Molotlegi, as 'acting' chief of the tribe. The primary dispute between the parties is whether, regard being had to the circumstances under which this appointment was made, it is valid.

H A secondary dispute arises out of the dismissal of Tumagole by George Molotlegi from his employment with the Bafokeng Administration - George Molotlegi claiming to have the power to dismiss Tumagole by reason of his appointment as acting chief.

The matter came before the Court a quo by way of an application brought by the appellants for an order declaring the appointment of I George Molotlegi as 'acting' chief by the President to be invalid and setting it aside. They also sought an order setting aside as invalid the dismissal of Tumagole by George Molotlegi.

Each side sought to justify the appointment of its appointee by filing one or more affidavits from persons with expert knowledge of the law of J the Bafokeng tribe.

Stewart CJ

A These affidavits respectively contained opinions to the effect that the appointee in support of whom the affidavits were filed was properly qualified, according to such law and customs, for appointment as acting chief, while the appointee of the opposing side was not. Each also referred to the events leading up to the respective appointment and the B role played by the respective parties in these events. Each disputed the correctness of the version of the other. In addition, each side relied upon provisions in the Republic of Bophuthatswana Constitution Act 18 of 1977 (the Constitution) and in the Bophuthatswana Traditional Authorities Act 23 of 1978, which, each said, authorised the appointment each had respectively made.

C In addition, the appellants contended that the President had an ulterior motive in appointing George Molotlegi, namely his belief that Edward Molotlegi supported the attempted coup d'etat against the President in February 1988. The President denies that he had such a motive.

During the hearing a procedural dispute arose in regard to certain of D the affidavits filed on behalf of the appellants and the President applied to strike out certain portions of these affidavits. In the result the appellants amended their claim and the Court was finally asked to decide the issues as formulated in the following terms:

'1.

Applicants move that:

(a)

E the application to strike out be dismissed and that first respondent pay the costs thereof including the costs of the second respondent;

(b)

leave be granted to the first respondent to file supplementary affidavits in relation to the new matter in the replying affidavits and that first respondent pay the wasted F costs occasioned by having to file such supplementary affidavits at this stage;

(c)

leave be granted to reinstate the application for hearing once the further affidavits have been filed;

(d)

second respondent be ordered to pay the wasted costs caused by its argument in limine.

G Wherever costs are sought and referred to herein, this is to include the costs of two counsel.

2.

Alternatively, and by reason of judgment not yet having been given on the application to state what relief applicants seek on the assumption that the striking out is refused, applicants move that the matter be referred to oral evidence on the issues H listed in the applicants' heads of argument in para 10 on pp 34-6 to enable the Court hearing such evidence to grant the relief sought in prayers 1.1, 1.3 and 1.4.

3.

Further alternatively, and in the event of the relief sought in paras 1 and 2 above being refused, applicants move for the I relief in prayers 1.1, 1.3 and 1.4.'

The issues listed in the applicants' heads of argument on the pages mentioned are:

'(a)

Whether or not customary law pertaining to the recognition and appointment of chiefs permitted the appointment of an acting chief (as distinct from a deputy whom the chief himself J delegates to help

Stewart CJ

A in the discharge of the chief's duties) in circumstances where the holder of the substantive office of a chief is alive and not lawfully deposed.

(b)

Whether or not in the purported appointment of second respondent as acting chief the first respondent properly applied his mind and more particularly: B

(i)

whether or not the first respondent took into account that the first applicant had already appointed the second respondent to perform functions which the second respondent would be performing if he were appointed;

(ii)

C whether or not the first respondent applied the correct principles in purporting to make the appointment, and whether or not he appreciated the distinction between the principle involved in appointing an "acting chief" and the principle of appointing a "deputy" to the substantive chief still holding office; D

(iii)

whether or not the first respondent properly took into account the history of the tribe in the area, the wishes of the majority of the inhabitants and the history of the second applicant in de facto discharging various of the functions of the chief;

(iv)

whether or not the first respondent took into account the E relevant fact...