Nephawe v President of the Republic of South Africa

• Jurisdiction: South Africa
• Judge: S P Mothle J
• Judgment Date: 01 April 2013
• Docket Number: 696/2010
• Hearing Date: 01 March 2013
• Court: Limpopo Local Division, Thohoyandu

Mothle J:

INTRODUCTION:

[1]

The Applicant ("Nephawe") brought an application for an urgent interdict, in terms of Rule 6(12) of the Uniform Rules of Court against the First Respondent ("the President") on Wednesday, 7 August 2013 in this court.

[2]

The interdict is sought for the purpose of prohibiting the President from attending a ceremony scheduled for 8 August 2013, wherein he is to be bestowed the accolade of "The Royal Order of the King Makhado" by the Third Respondent ("Ramabulana"). Nephawe disputes the appointment by the President of Ramabulana as King of VhaVenda and contends that the dispute is still a subject of adjudication by the

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Supreme Court of Appeal and/or the Constitutional Court. He therefore seeks an interdict order from this Court, "pending the outcome of the petition and appeal process by the Applicant against the judgment and orders of Legodi J to the SCA and/or Constitutional Court of South Africa ("CCT"), as the case may be".

[3]

At the conclusion of the hearing of this urgent application on Wednesday, 7 August 2013, I handed down an order dismissing the application with costs and indicated to the parties that the reasons for my decision will be stated in a written judgment to be delivered in due course. I now proceed to give the reasons hereunder. Before doing so, however, I need to outline the background to this application.

B. BACKGROUND:

[4]

In 2005, Nephawe, Ramabulana and other traditional leaders of VhaVenda each lodged a claim with the Second Respondent ("the Commission") to have him declared King of VhaVenda in terms of the relevant provisions of the Traditional Leadership Framework Act, 41 of 2003 ("the Act"). After conducting the hearing and receiving representations from the Applicants as provided for in terms of the Act, the Commission made a recommendation to the President.

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[5]

When hearing that the President was of the intention to accept the recommendation of the Commission, Nephawe delivered a review application against the Commission in terms of the Promotion of Administrative Justice Act, 3 of 2000 ("PAJA"). The review application came before Mr Justice Legodi who heard it from the 12 to 16 of August 2012 and reserved judgment. On 6 September 2012 Legodi J delivered his judgment dismissing the Applicant's review application with costs.

[6]

Following the dismissal of the application, the President issued a certificate recognising Ramabulana as King of VhaVenda on 14 September 2012. Seven days thereafter, on 21 September 2012, Nephawe delivered an application for leave to appeal which Legodi J dismissed in a judgment dated 30 May 2013. Simultaneously with the application for leave to appeal, the Court also heard an application in terms of Rule 49(11). This Rule provides that where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of Court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the Court which gave such order on the application of a party, otherwise directs. It is not clear from the Court's judgment as to which party brought the application in terms of Rule 49(11). It would seem that this application

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was brought by either the President's office or Ramabulana. Be that as it may, the Court granted this application.

[7]

Nephawe, in the affidavit deposed to by his attorney in support of this application alleges that during or about 1 August 2013 it came to his attention that Ramabulana intends to bestow an honour on the President. This he learns from a pamphlet which makes reference to an e-mail that is supposed to have come from the President's office to Ramabulana. The honour is to be bestowed on the President in a public ceremony to be held on Thursday, 8 August 2013 at the University of Venda.

[8]

Nephawe now seeks an order from this Court by way of urgency, to interdict the President from attending the ceremony. This is contended for on a number of grounds which I will deal with in this judgment, in the course of stating the reasons for my decision. It is, however, important to note that the...