President of the Republic of Bophuthatswana and Another v Milsell Chrome Mines (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Waddington J
• Judgment Date: 23 February 1995
• Docket Number: M 401/93
• Hearing Date: 30 November 1994
• Counsel: P M Wulfsohn SC (with him J H F Pistor) for the first applicant. No appearance for the second applicant. F J Bashall (with him T J Bruinders) for the first respondent. No appearance for the second and third respondents.
• Court: Bophuthatswana Supreme Court

C Waddington J:

This is the decision of the Court on a point taken by the first respondent in limine. The first respondent applies for an order in terms of Rule 15(4) of the Uniform Rules of Court in the following terms:

'1.

That the substitution of Mr Simon Popo Molefe, Premier of the North-West Province of the Republic of South Africa, as first applicant in this application D be set aside.

2.

That the first and second applicants and the said Mr Simon Popo Molefe pay the costs of this application jointly and severally.'

The circumstances giving rise to the application are common cause and are as follows:

E During December 1993 Mr L M Mangope, the President of the former Bophuthatswana, together with the Bafokeng Tribe ('the tribe') launched the main application. The object of that application was to obtain a declaratory order to the effect that the first respondent's rights held under an agreement with Mr Mangope in his capacity F as trustee of the tribe's lands had expired. The tribe desired, as it still does, to persuade the trustee to award those rights, or rights similar thereto, by contract to an undisclosed third party. Before the main application, which the first respondent opposed, could be heard, political events overtook Mr Mangope and he was deposed as President. G Bophuthatswana became part of South Africa again on 27 April 1994 if not earlier, when South Africa assumed control of the former Bophuthatswana. It is also common cause that Mr Mangope ceased to be trustee when he fell from power. On 17 October 1994, a notice in terms of Rule 15(3) of the Uniform Rules of Court was delivered by the applicants' attorneys to the respondents, informing them that Mr Simon Popo Molefe, H Premier of the North-West Province, 'in his capacity as trustee of the Bafokeng Tribe', desired 'to be substituted as first applicant in this application for the said President of the Republic of Bophuthatswana'. Within the period allowed by the Rules of Court, the first respondent filed a notice opposing the substitution and made the application in limine for I an order the terms of which are set out in full above.

During argument on the point in limine it was submitted on behalf of the first respondent that in terms of the Constitution of the Republic of South Africa Act 200 of 1993 (the Constitution) the President of South Africa and not Premier Molefe has succeeded Mr Mangope as trustee. Therefore, the argument proceeded, the main application should be J dismissed as neither Premier Molefe as substituted nor the second

Waddington J

A applicant (for quite different reasons) enjoyed locus standi to bring the application. On the other hand, it was submitted on behalf of the applicants that Premier Molefe and not any other holder of high office in the State succeeded Mr Mangope as trustee. It is only he who may continue the main application as trustee, so went the argument.

B Before this dispute is considered, two other subjects call for comment. The first relates to the position of the second applicant. The second relates to the jurisdiction of this Court to adjudicate upon the substance of the point taken in limine.

The second applicant C

Mr Wulfsohn, appearing for the first applicant, informed the Court from the Bar that the first applicant's prayer in the name of the second applicant was withdrawn, that relief would be sought only in the name of the first applicant and that the second applicant D should be regarded from then on as nothing more than a witness for the first applicant. This 'withdrawal' and the fact that the second applicant is not an applicant in the instant preliminary application has been foreshadowed. In the first applicant's heads of argument it is stated that

'. . . the applicants need rely solely upon the first applicant as the relevant applicant'.

E (Paragraph 8(a).)

These heads of argument were filed on 13 October 1994, ie before the notice of substitution was delivered. In the second applicant's replying affidavit there are a number F of statements made by the deponent, M G Molotlegi, which suggest that the second applicant's earlier claim that the tribe was entitled to be cited as an applicant with locus standi to bring the main application jointly with the first applicant was ill-founded. (See paras 7.3, 7.4, 7.5, 8.1, 11.1, 14.2 and 22.)

The 'withdrawal' in question and the failure of the second applicant to appear before this G Court becomes easier to understand furthermore when the judgment of Smith J in The Bafokeng Tribe v Impala Platinum Ltd and Others (case No M47/88) (unreported) is considered. That judgment concerned an application brought by the tribe in its own name in which it was contended on behalf of the tribe that the tribe was the beneficial owner of land held by its trustee (the President of the former Bophuthatswana) and that it was 'fully H entitled to deal on its own with its own property'. Both contentions were rejected by the learned Judge who held, inter alia, that the then trustee of the tribe's land had received transfer of it

'. . . with the essential purpose of securing to the tribe the use of the various
I farms in perpetuity and preventing alienation of the land by the chief or the tribe itself'

(at 22 and 29 of the judgment).

After considering the effect of the 'withdrawal' Mr Bashall, appearing for the first respondent, pointed to another statement in the first applicant's heads of argument which J reads:

Waddington J

A 'The structure of the founding affidavit showed clearly that the second applicant in respect of land in question acted from time to time through a trustee and more recently through the President as the first applicant, as its trustee.'

(Paragraph 5(e).)

B Mr Bashall contended that this passage suggests that the applicants were persisting in their original argument that the tribe enjoys locus standi as an applicant.

In the light of the apparent conflict between this passage on the one hand and the 'withdrawal' and the statements in the second applicant's replying affidavit (supra) on the C other, Mr Bashall indicated that the first respondent would persist in its application that the second applicant as well as the first applicant be declared to have no locus standi to bring the application.

Mr Wulfsohn's rejoinder to these submissions, as I understood him, was that the inclusion D of para 5(e) referred to above was due to nothing more than an error on his part and that the application regarding the second applicant was unnecessary. There is no reason why this Court should not accept Mr Wulfsohn's assurances at their face value. It should be emphasised that the 'witdrawal' in question, as enunciated by Mr Wulfsohn, was intended to extend to the second applicant's position in the main application. In other E words, the second applicant need no longer be expected to feature as an applicant in the main application. However, Mr Wulfsohn made no formal application to withdraw on behalf of the second applicant. Having regard to the provisions of Rule 41 of the Rules of Court, I would expect the second applicant to serve an appropriate notice on the F respondents in due course in order to regularise the position.

In the result, it is not necessary to make any order at this stage in relation to the second applicant.

The question of costs arising from the part played hitherto by the second applicant in the G main application stands to be considered at a later stage in the light of my remarks in the ante-penultimate paragraph above.

Jurisdiction

Counsel for both parties were agreed (with faint reservations on Mr Bashall's part) that H this Court enjoys jurisdiction to determine the question of Premier Molefe's substitution as the first applicant, having regard to the provisions of the Constitution. The first applicant's submission that Premier Molefe succeeded Mr Mangope as the trustee depends almost exclusively on the interpretation of Schedule 6 to the Constitution and I other relevant provisions of the Constitution. The first respondent contends that the meaning which the first applicant seeks to attribute to these provisions is erroneous and that on a proper interpretation of the Constitution (s 75 thereof in particular) and other J relevant laws, the President of South Africa has resumed the trusteeship of the tribe.

Waddington J

A This Court, enjoying the same jurisdiction as any Provincial Division of the Supreme Court in respect of the area of jurisdiction for which it was established by virtue of the provisions contained in ss 101(1) and 103(1) as read with ss 241 and 242 (all as amended by ss 3, 4 and 5 of Act 13 of 1994) [*] , exercises over and above its original B jurisdiction, jurisdiction in respect of the additional matters specified in s 101(3) of the Constitution. (See also s 98(3) of the Constitution.) Section 101(3) provides inter alia:

'. . . (A) Provincial . . . Division of the Supreme Court shall, within its area of jurisdiction, have jurisdiction in respect of the following additional matters, C namely -

(a)

. . .

(b)

any dispute over the constitutionality of any executive or administrative act . . . of any organ of State. . . .'

An 'organ of State' is defined in s 233(1) of the Constitution as including any 'statutory D body or functionary'. The Premier is not a statutory body, but is a functionary in my view. 'Functionary' is not defined in the Constitution but the ordinary meaning of that word as defined in The Shorter Oxford Dictionary is 'one who has certain functions to perform; an official'.

Not unexpectedly, the Constitution casts a variety of functions and responsibilities upon E provincial premiers. Their responsibilities, powers and functions are listed in s 147 of the Constitution. They range from the Premier being responsible for the observance...