Mokhatle & Others v Union Government (Minister of Native Affairs)

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, De Villiers JA, Kotzé JA and Wessels JA
• Judgment Date: 14 October 1925
• Citation: 1926 AD 71
• Hearing Date: 23 September 1925
• Court: Appellate Division

Kotzé, J.A.:

The appellants, nine in number, are members of the Bafokeng tribe residing in the district of Rustenburg in the Transvaal Province. This tribe forms a sub-division of the Baralong people, who in turn constitute a material section of the Bechuana nation. On the 3rd October, 1924, the Governor-General as Supreme Chief, issued an order directing that the appellants were forthwith to leave the Phokeng location, or any land in the tribal ownership of the Bafokeng tribe, and were not to return without permission of the Supreme Chief. The grounds for this order are stated to be that the appellants have consistently defied the authority of their duly appointed chief August Mokhatle, and have promoted dissension in the tribe, particularly in setting up and maintaining an unauthorised court or council, persisting in an attitude of insult and abuse toward the said chief, and in organising and encouraging opposition to the recognised tribal control. The order further sets out that the appellants have frequently been warned, in respect of their insubordinate conduct, especially on the 7th April, 1924, after full enquiry by the Under Secretary for Native Affairs, when they were definitely informed that a continuation of the disorganisation and confusion brought about by their conduct in the tribe would not be tolerated. The order was executed against the appellants on the 22nd October, 1924.

The appellants subsequently instituted an action in the Transvaal Provincial Division praying for a declaration that the order issued and executed against them may be declared null and void. At a latter stage an amendment of the declaration was allowed by the insertion of a claim for £1,000 damages sustained by each of the

Kotzé, J.A.

appellants. The Court, however, save judgment against them, thereby upholding the validity of the order.

The record in this case is somewhat voluminous, although not without interest, on the subject of native law and custom. Several witnesses were called and examined on both sides, as to the power of a head or supreme chief in dealing with natives of his tribe who, oppose themselves to his government and authority. Two questions in connection with this matter were raised and considered by the court below, namely, (1) can a paramount chief, according to native law and custom, remove a recalcitrant or rebellious native from his tribe or the tribal property; and (2) if so, can this power of removal be exercised without an investigation or trial of the native or natives who have been so removed? The Provincial Division decided both questions in the affirmative, and there is certainly a good deal of evidence in support of that finding.

If we examine the statements of the witnesses who were called on behalf of the appellants, and of those on behalf of the Government, we find that while these statements are often in conflict, the principal witnesses for the defence have made admissions which go in support of the case for the respondent. Thus, the Rev. Mr. Behrens, who is a missionary in charge of a station at Bethanie in the Rustenburg district, says, at p. 18.3 of the record, that if a number of natives refuse to recognise the authority of their chief, an& set up a council of their own (which I may here add are the acts for which the appellants, according to the order served on them, have been removed from the tribal property by the Supreme Chief), the head chief would investigate the matter, either personally or through his councillors, and would then order the rebellious natives to be removed to some other part of the territory. Similarly, there is the evidence of the aged headman Taetele, who is a member of the same tribe as the appellants, and he states, at p. 197, that a paramount chief can banish or remove a native of the tribe opposing his chief and on p. 199- "I do not know that it is necessary to try him first." Then we have the statement of Solomon Plaatjes, a very intelligent and educated native, who is the author of a well known book, Native Life in South Africa. He is a member of the Baralong tribe, and describes himself as a social worker. His education has evidently influenced him in the forming of his opinions, which incline towards the introduction of modern civilised principles in the government of native tribes by their chiefs.

Kotzé, J.A.

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