Mogale v Maakane

• Jurisdiction: South Africa
• Judge: Landman J
• Judgment Date: 29 July 2010
• Docket Number: 1106/2010
• Hearing Date: 24 June 2010
• Court: North West High Court, Mafikeng

Landman J:

1. Introduction

[1]

The return date of a Rule Nisi for an interdict and a counter application for a declaration serve before me. The fundamental issues are: What is the governing body of the Bapo Ba Mogale Tribe (I purposefully use a neutral term) and who are its lawful members?

[2]

On 14 May 2010 my brother Gura J granted the following order:

"1.

THAT: The usual forms and service provided in the Rules of the above Honourable Court be dispensed with in order to dispose of this matter as one of urgency in terms of Rule 6 (12);

2.

THAT: A Rule Nisi do hereby issued, calling upon the respondents to show cause, if any, on THURSDAY, the 10th June 2010 at 10H00 or so soon thereafter as he matter may be heard, why the following orders should not be made final:

2.1

Interdicting the First to Twenty Sixth Respondents from convening and/or attending a meeting of the Bapo Ba Mogopa community under the auspices of the Bapo Ba Mogale Traditional

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Council on Saturday, the 15th May 2010 and at any date and time thereafter until the final determination of this matter;

2.2

The 1st Respondent be restrained from coming within a radius of 200 metres of the office of Bapo Ba Mogale Traditional Community offices, at Bapo 1 North West Province, without the written approval of Applicant and accompanied by members of the South African Police Force;

2.3.

The 1st respondent be and hereby restrained from coming within a radius of 200 metres of the office of Bapo Ba Mogale Traditional Community offices, at No. 101 Coleman Street Cosmos Property, Hartebeespoortdam, North West Province without the written approval of Applicant and accompanied by members of the South African Police Force;

2.4

The 1st respondent be and hereby ordered to direct any correspondence and forms that he may need to submit to the Chief Executive Officer of Bapo Ba Mogale traditional community situated at Skoonplaas Section, Bapong Village, Bapo 1, in the North West Province between the hours of 8h00 and 16h00 from Monday to Friday;

2.5

The 1st respondent be and is hereby restrained from intimidating, insulting and/or threatening the Applicant in any manner whatsoever;

2.6

Respondent be and is hereby restrained from getting into contact with and/or giving instruction to members of the Bapo Ba Mogale Traditional Community Staff, under the auspices of Bapo Ba Mogale Traditional Council.

3.

THAT: Pending the final determination of the application, the relief in paragraphs 2.1 to 2.6 serves as an Interim interdict with immediate effect.

4.

THAT: Costs be costs in the application."

[3]

Before turning to the nub of the matter I must:

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(a)

deal with a number of points in limine which were argued on a previous occasion;

(b)

provide reasons for the order I made on the application to intervene;

(c)

consider other points in limine regarding the main application; and

(d)

points in limine regarding the counter application.

Thereafter I intend dealing with the merits of the main application and counter application to the extent that this is required.

2. Preliminary points re main application raised on 3 June 2010

2.1

Anticipation of the rule

[4]

Mr Chwaro, with him Mr Masilo, appeared for Kgosi Bop Edward Mogale, the applicant. Mr Chwaro abandoned the point in limine regarding the anticipation of the return day saying that due to the need to finalise this matter as soon as possible and the fact that there were challenges with service of the court process on the 1st to 26th respondents (the individual respondents) the applicant was willing to condone the steps taken by the individual respondents to anticipate the return date to 3 June 2010.

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2.2

Non-joinder

[5]

Mr Eiser, who appeared for the individual respondents (and later the Traditional Council, the 28th respondent) submitted that the non-joinder of the Premier of the North West Province should cause me to discharge the rule. Mr Eiser submitted that:

(a)

The North West Traditional Leadership and Governance Act 2 of 2005 (the 2005 Act) regulates the administration of the tribe or traditional community as it is now termed. Section 10(1) of the 2005 Act stipulates that the traditional council (which he said is, at present, the Tribal Council known as the Traditional Authority of the Bapo Ba Mogale Tribe) and the Chief or Kgosi shall endeavour to perform their roles and functions in the best interests of the traditional community and be responsible to the Premier for the efficient and effective performance of the functions assigned to them.

(b)

Section 9(2) states that the powers conferred in terms of section 9(1) must be performed under the supervision of the Northwest Provincial Government, of which the Premier is the head.

(c)

One of the functions which the Traditional Authority must carry out is to administer the finances of the community in terms of section 9(1)(c). This is an ongoing day-to-day

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obligation, and the effect of the interdict in paragraph 2.6 is to stop the Traditional Authority from carrying out this vital function, as none of the 26 individual respondents are able to give instructions to the staff of the office in this connection. Thus the lawful financial administration of the community has stopped. This is a crucial matter which the Premier must know about if she is to exercise the powers given to her by section 9(3) to ensure proper administration and good governance. The more so as on the return day, the applicant will seek to have the interim interdict and order in this connection made final.

(d)

The test to be applied in deciding whether or not a party should have been joined is whether the party concerned has a direct and substantial interest in the subject matter of the action, i.e. a legal interest which may be affected prejudicially by the judgment of the court.

(e)

The individual respondents allege that the object of the application is to prevent the Traditional Authority from carrying out its lawful and statutory enshrined rights, obligations and duties, and enable the applicant, who was being manipulated by the persons mentioned in the answering affidavits, to seize control of the community's vast cash assets, other assets and business relationships.

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[6]

On the other hand the Mr Chwaro submitted that the law regarding joinder and/or non-joinder is now settled. The court should concern itself with the question of the extent and manner of the order that it is to grant on the party that has not been joined. In other words, the question of joinder should not be based on the subject matter of the application before the court but rather on the extent to which an order, if granted, may have on the interests of that party. See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) and Gordon v Department of Health, KwaZulu-Natal 2008 (6) SA 522 (SCA).

[7]

Mr Chwaro submitted that, in the present matter, the order that is sought will have no direct bearing on the Premier per se. The applicant seeks to implement the provisions of the 2005 Act against persons who have not been recognized and whose names have not been published in the Provincial Gazette by the Premier as required by law.

[8]

Clearly this matter is one in which the Premier has an interest. The good governance and good financial management of the traditional community is primarily entrusted to the institutions created by the 2005 Act. But the exercise of the institutions' powers is subject to the supervision of the North West Provincial Government and at present there appears to be crippling

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uncertainty about which institutions are in charge of the tribe's affairs.

[9]

I have considered Mr Eiser's submission that I should discharge the Rule on account of non-joinder but the applicant and the traditional community have been left in a state of uncertainty about the status and standing of their government. The joinder of the Premier, even at this stage, is not only necessary but convenient and beneficial for the proper resolution of the dispute.

2.3

Non-disclosure of material facts

[10]

The application was brought as an urgent application, although, I accept that it was not initially intended to be moved on an ex parte basis. Mr Eiser listed the documents which were available to the applicant but were not attached to his papers namely:

(a)

The judgment of this court by Sithole AJ date 24 July 2008;

(b)

A letter dated 4 May 2010 addressed to the Premier by the applicant; and

(c)

The agreement concluded by the CEO of the council which led to his suspension by the individual respondents.

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[11]

Good faith is a sine qua non in ex parte applications. If any material facts are not disclosed, whether they are willfully suppressed or negligently omitted, a court may on that ground alone dismiss an ex parte application. See Erasmus Superior Court Practice at B1-41. The court will also not hold itself bound by any order obtained under the consequent misapprehension of the true position. See Trakman NO v Livshitz and Others 1995 (1) SA 282 (A).

[12]

Mr Chwaro commenced his address on this point by submitting that the allegations relating to the alleged concealment of material facts relies on the ruling of my brother Sithole AJ. This ruling followed a counter-application brought by the applicant and others. He submitted that the individual respondents chose to quote and/or refer to some of the passages from the judgment and deliberately leave others out.

[13]

Mr Chwaro went on to submit that the other allegations relating to the alleged disciplinary action against the CEO, the matters related to land...