Deputy Minister of Tribal Authorities and Another v Kekana

• Jurisdiction: South Africa
• Judge: Van der Merwe J
• Judgment Date: 18 April 1983
• Citation: 1983 (3) SA 492 (B)
• Hearing Date: 07 February 1983
• Court: Bophuthatswana Supreme Court

Van der Merwe J:

This is an application in terms of Rule 30 to set aside as an irregular proceeding the summons issued by respondent against applicants in case No 906/82 on the grounds E that the relief sought in the action amounts to a review of the decisions of first applicant. It is claimed that review proceedings should be instituted in terms of Rule 53 and not by way of action.

Respondent is the plaintiff in case No 906/82. He sues in his personal capacity and in his capacity as the duly authorised F representative of the Kekana Royal Executive Council. Plaintiff is described as a senior member of the Royal Family of the Amandebele-a-Moletlane tribe ("the tribe").

First applicant, the Deputy Minister of Tribal Authorities ("the Minister"), is the first defendant in that action and second applicant is the second defendant. In the action the G latter is described as the Chief of the tribe.

According to the particulars of claim the chieftainship of the tribe, the appontment and succession thereto, is governed by and determined in accordance with the traditional laws and customs of the tribe. The relevant traditional laws and customs H are set out. It is also alleged that the succession to the chieftainship has been in dispute for many years and that no permanent chief has been appointed in accordance with traditional law and custom. The history of the dispute is set out.

The particulars of claim further allege that the Minister appointed a commission in terms of s 37 of Act 23 of 1978 during 1981 to enquire into the dispute in connection with the recognition of a permanent

Van der Merwe J

chief for the tribe. The history of this enquiry is set out. It is alleged, inter alia, that one Nathaniel Sello Kekana was recognised as acting chief of the tribe during 1977 and that he received an instruction emanating from the Minister during A October 1981 to vacate the office of acting chief. On the authority of the Minister, second applicant was installed as permanent chief of the tribe during November 1981.

It is further alleged that the deposition of Nathaniel (Sello Kekana) and the recognition of second applicant as chief of the tribe is invalid because the Minister failed to have due regard B to the traditional laws and customs of the tribe when he so deposed Nathaniel and recognised second applicant.

The particulars of claim conclude:

"15.

In the premises:

(a)

The installation of the second defendant as the permanent chief of the tribe should be C set aside and the first defendant should be required to withdraw his recognition of the second defendant as the permanent chief.

(b)

Nathaniel should be installed as the acting chief of the tribe pending the determination and decision of the Kekana Royal Family who D comprise the chief's council as to the person to be appointed permanent chief of the tribe."

Thereafter the prayer is set out:

"Wherefore plaintiff claims:

A.

An order setting aside the installation of the second defendant as chief of the tribe.

B.

An order setting aside the recognition by the first defendant of the second defendant as chief of the tribe.

C.

An order directing that Nathaniel Sello Kekana be re-installed as acting chief of the tribe, pending the determination and decision of the Kekana Royal Family F who comprise the chief's council as to the person to be appointed as the permanent chief of the tribe.

D.

Costs of suit as against those of the defendants who oppose this action.

E.

Further or alternative relief."

Before I am required to decide whether the nature of G respondent's claim and the relief sought thereunder amounts to a review of the Minister's decisions, I have to decide a point in limine raised by Mr Pearson for respondent.

According to Mr Pearson applicants adopted the wrong procedure by approaching the Court in terms of...