Mosome v Makapan NO and Another

• Jurisdiction: South Africa
• Judge: Steyn JA, Van Den Heever JA and Van Der Merwe JA
• Judgment Date: 07 October 1982
• Citation: 1986 (2) SA 44 (BA)
• Hearing Date: 07 October 1982
• Court: Bophuthatswana Appellate Division

Van den Heever JA:

Chief Amos Mosome of the Bakwena-ba-Modimosana-ba-Morare tribe died in April of 1976. A dispute arose as to the successor, the rival contenders being D his eldest son, the present appellant, and second respondent. The latter contended that his own father was properly appointed as chief of the tribe but deposed as such as a result of a criminal offence whereupon appellant's father was appointed as acting chief, without this step depriving the son of the deposed chief of the right to succeed to the chieftaincy.

The President appointed a commission to inquire into the E matter, in terms of s 37 of the Bophuthatswana Traditional Authorities Act 23 of 1978, which describes itself as being one

"to define the constitution, powers, authorities and functions of tribal, community and regional authorities in Bophuthatswana, to provide for the levy of tribal rates, to regulate the appointment, deposition, discharge and discipline F of chiefs and headmen and to define their powers, functions and duties, and to provide for other incidental matters".

The commission so appointed submitted its report containing its findings and recommendations to the President. The report was discussed at a meeting, arranged by the President, with the Traditional Authorities Committee. The conclusion was reached G that the recommendations of the commission of inquiry should be adopted. As a result, second respondent was appointed as chief of the tribe in terms of s 36 (2) of the Act and appellant launched an application for an order that the President's decision to recognise second respondent as chief be set aside, with costs. He cited as first respondent Chief H Victor Makapan in his capacity as a Deputy Minister in the Cabinet and the political head of the Government department responsible for the recognition and appointment of all chiefs of tribes resident in Bophuthatswana.

In that application the true content of the applicable tribal law and custom was placed in issue. Appellant contended that I the deposition of a chief terminated all rights of succession, respondents disputing this.

Counsel for the respondents took the points in limine (a) that the true context of the tribal law was for present purposes irrelevant since s 36 (1) of the Act does not bind the President; and (b) that first respondent had been incorrectly cited since it was common cause that the President himself as the Minister of Traditional Authority Affairs had...