Moroka v Premier of the Free State and Others

• Jurisdiction: South Africa
• Judge: XM Petse AP and BH Mbha JA, FE Mokgohloa JA, Mothle JA and Hughes JA
• Judgment Date: 31 March 2022
• Docket Number: 295/20
• Hearing Date: 07 September 2021
• Court: Supreme Court of Appeal
• Citation: 2022 JDR 0776 (SCA)

Mokgohloa JA (Petse AP and Hughes JA concurring):

[1]

The issue in this appeal concerns the lawfulness of the decision taken by the first respondent, Premier of the Free State (the Premier) to refer the dispute regarding the senior traditional leadership of Barolong Boo Seleka to the second respondent, Commission of Traditional Leadership Disputes and Claims (the Commission) before affording the Free State House of Traditional Leaders (the House) an opportunity to deal with the dispute in terms of s 21(2)(b) of the Traditional Leadership and Governance Framework Act 41 of 2003 (the Act). The Free State Division of the High Court, Bloemfontein (the high court) found that the Premier did not contravene the Act and dismissed the application with costs.

[2]

Dissatisfied with the decision of the high court, the appellant (Ms Moipone Moroka), sought leave to appeal and raised a further ground of appeal that the

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Mokgohloa JA (Petse AP and Hughes JA concurring)

Commission had no authority to investigate and make recommendations to the Premier regarding the Barolong Boo Seleka senior traditional leadership. She relied on s 25(5) of the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (the Amendment Act). Based on this, the high court granted leave to this court.

[3]

There are two preliminary issues that I need to deal with before dealing with the merits of this matter. These are: (a) whether the appeal has become moot, and (b) whether this court can entertain an issue that is raised for the first time on appeal.

[4]

Before the hearing of this appeal, the parties were directed in writing to file written submissions answering the following: 'the sixth respondent in this case, Sehunelo Kingsley Moroka, having passed away on 15 August 2020, does this then not mean it is open to the Barolong Boo Seleka Royal Family to nominate another person to fill the vacancy? And if the nomination process needs to start all over again in accordance with the prescripts of the Free State Traditional Leadership and Governance Act 8 of 2005, does that not mean that the appeal has become moot?' Both the appellant and the first respondent delivered written submissions.

[5]

In his written submissions and at the hearing of the appeal, the Premier argued that the matter has become moot in that the son of the sixth respondent, Mr Letshego Archibald Moroka, has already been identified as a legitimate successor. Furthermore, that the Premier has appointed Mr Samuel Lehulere Moroka (Letshego's uncle) as a regent until Letshego is ready to ascend the throne.

[6]

The appellant, on the other hand, contended that the findings and recommendations of the Commission did not mention the name of Kingsley Moroka. According to the appellant, the findings of the Commission were, in essence, confined to the identification of the rightful ruling house of the Barolong Boo Seleka as the house of Richard Maramantsi. Consequently, while it may be open to the Barolong Boo Seleka Royal Family to nominate another person to fill the vacancy, the

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Mokgohloa JA (Petse AP and Hughes JA concurring)

Commission's report dictated that such person should come from the house of Richard Maramantsi and not the family of Kgosi Tsipinare that had for at least 137 years been the royal family of Barolong Boo Seleka.

[7]

I find the appellant's contention to have merit. Her attack on the findings and recommendation of the Commission was not in respect of a specific person recommended but of the house or bloodline the traditional leadership had to follow. Therefore this issue is still alive and has to be dealt with.

[8]

Regarding the argument raised for the first time on appeal, the most common situation when an appeal court may consider an argument raised for the first time on appeal is where the argument involves a question of law. Such argument must be apparent from the record, which could not have been avoided if raised at the proper juncture. In the context of the facts of this case, both the timing of the referral of the dispute to the Commission by the Premier and the date of commencement of chapter 6 of the Act are not only sufficiently canvassed on the papers but are, most importantly, also common cause. The attack on the Commission's authority is a point of law and this court can deal with it. Furthermore, this court's consideration of the new point of law will not occasion unfairness to the parties. Thus, the interests of justice do not militate against the consideration of the new argument raised by the appellant for the first time on appeal. I now turn to deal with the merits of the appeal.

[9]

The dispute in this case arose against the backdrop of contestations in relation to various kingships or queenship by traditional leaders around the country. In order to attempt and resolve these contestations, Parliament, acting in terms of s 22 of the Act, established the Commission on Traditional Leadership and Disputes and Claims (the Commission). In terms of s 23(1)(a) of the Act, the Minister, [1] after consultation with the National House of Traditional Leaders, must appoint a chairperson and not more than four persons for a period not exceeding five years as members of the

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Commission. Such members must have knowledge of customary law, customs and the institution of traditional leadership. The Commission's functions included the investigation and resolution of traditional leadership claims and disputes in the Republic.

[10]

On 1 February 2010, the Act was amended extensively in terms of the Amendment Act. The functions of the Commission regarding resolution of traditional leadership disputes were altered so that the Commission could only deal with disputes dating from 1 September 1927. I shall return to this Amendment Act later.

[11]

The factual background of this matter can be summarised as follows. There appears to be a lengthy history of leadership contestation between the Barolong Boo Seleka Royal Family and the Barolong Boo Seleka Royal Khuduthamaga. This contestation dates back to the 1880s when the traditional leadership moved from one lineage to another. During the 1880s, Kgosi Moroka II married a woman by the name of Nkhabele who came with a child named Tshipinare. Therefore, Tshipinare became the stepson to Kgosi Moroka II. Tshipinare grew up to be a brave warrior and saved his stepfather Kgosi Moroka's life in the war against the BaSotho. As a result, Kgosi Moroka II decided that Tshipinare should be his successor. It is from this time that the traditional leadership of the Barolong Boo Seleka vested in the Tshipinare's lineage until the passing on of Kgosi Ramokgopa Moroka in 2011.

[12]

After the passing of Kgosi Ramokgopa, the royal family identified Kgosana Gaopalelwe Moroka, the appellant's brother, as a successor. However, Kgosana Gaopalelwe had, at that stage, not yet reached maturity and his mother, Kgosigadi AGG Moroka, the appellant's mother, was identified as the Regent. It seems that the other faction, led by the sixth respondent, the late Kingsley Sehunelo Moroka, objected to this and wrote a letter to the Premier in pursuit of its objection. The Premier responded in a letter dated 18 October 2011 as follows:

'4. Regarding the matter at hand I wish to respond as follows:

The Act (the Free State Traditional Act of 2005) defines the "Royal Family" as "the core customary institution or structure consisting of immediate relatives of the ruling family within

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the traditional community who have been identified in terms of custom, and includes, where applicable, other family members "who are close relatives of the ruling family". According to section 18 therefore only immediate relatives of the ruling Moroka Family of the late Kgosi Ramokgopa Moroka are entitled to identify the successor of the Chieftaincy. The Royal Family of Moroka has identified Kgosana Gaopalelwe Moroka as the successor to the Chieftaincy of the Barolong Boo Seleka, however according to the Royal Family Kgosana Gaopalelwe Moroka has not yet reached a matured age and is not yet ready to be installed as Kgosi. The Royal Family will inform the Premier when Kgosana Gaopalelwe Moroka is ready to take over. The Premier will recognize Kgosana Gaopalelwe Moroka as Kgosi by way of a notice in the Provincial Gazette and by issuing of a certificate of recognition to him.

5. In the light of the above, it would appear that your resolution of 25 August 2010 in which you resolved to relieve Kgosigadi AGG Moroka of all her responsibilities and duties in Barolong Boo Seleka is in conflict with the Free State Traditional Leadership and Governance Act No.8 of 2005.This also applies to your decision of 21 November 2010 to recognize SK Moroka (sixth respondent) as the rightful leader of Barolong Boo Seleka Tribe. Both these resolutions can only be taken by the Royal Family as defined in the Act.'

[13]

It is not clear as to what happened after the Premier's letter of 18 October 2011 but ultimately, Kgosi Gaopalelwe Moroka ascended the throne until his passing in July 2013, after which the dispute resurfaced. It is this dispute that the Premier referred to the Commission for investigation and this was done without affording the House an opportunity from the outset to deal with the dispute in terms of s 21 of the Act. This is evident from the minutes of the meeting of the Free State House of Traditional Leaders held on 30-31 January 2014, which records the following:

'It was unanimous that it was wrong that the House was not included in the initial stages of the dispute but appreciated that there are moves by the department to advice Premier to establish the commission or to the refer the matter to the Commission on...