Ramabulana et al v The Premier for the Limpopo Province and Another

• Jurisdiction: South Africa
• Judge: Lukoto J
• Judgment Date: 30 December 2003
• Docket Number: 135/2003
• Court: Venda High Court
• Hearing Date: 30 December 2003
• Citation: 2004 JDR 0400 (V)

Lukoto J:

Anton Piller is a die-hard alright. Even more so than I thought in Economic Data Processing (Pty) Ltd and Others v Pentreath 1984 (2) SA 605 (W) at 606. He has also the best of British luck on his side. I had believed that this decision had contributed a nail to the coffin in which he was thereafter finally laid to rest by the Full Court of the Transvaal Provincial Division in Cerebos Food Corporation v Diverse Foods SA (Pty) Ltd and Another (25 May 1984). But something happened on the way to the funeral. Apparently he escaped. For if Mr Heher's argument on behalf of applicant upon this return day of an Anton Piller is correct, he is probably alive and tolerably well and living in Johannesburg. [Per Coetzee J, as he then was, in TRADE FAIRS AND PROMOTIONS v THOMSON 1984 (4) SA 177 (W)]

In similar vein, I may be forgiven when I echo the learned Judge and say that:

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Lukoto J

The institution of Khosikhulu is a die-hard alright. Even more so after its abolition by the Venda Traditional Leaders Administration Proclamation, No.29 of 1991. It has also the best of Venda senior royalty luck on its side, as only one senior royal family disputes its existence. I had believed that Proclamation No.29 of 1991 had contributed a nail to the coffin in which it was thereafter finally laid to rest. But something happened on the way to the funeral. Apparently it escaped. For if Ms. Janse Van Nieuwenhuizen's argument on behalf of applicants on the day on which the matter was heard is correct, it is probably alive and tolerably well and living in Venda.

The Tshivenda word Khosikhulu is difficult to define or to translate into the English language. It means different things to different people. One group may identify its English version as paramount chief, and the other may regard it as akin to king, depending on each group' s understanding and worldview of the term.

This is an application in which the applicants seek the following order in their favour:

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Lukoto J

a)

declaring the Ramabulana Royal house to be the most senior Royal house in Venda;

b)

declaring MAKHADO RAMABULANA to be a person 'who was recognized as Khosikhulu of Venda;

c)

declaring the abolition of Vhuhosivhuhulu as set out in annexure "KKPA" to be null and void;

d)

declaring the repeal of section 67 and 68 of the Constitution of Venda No.9 of 1979 by the Council for National Unity in its Vhuhosi (sic) Administration Proclamation 29 of 1991 to be ultra vires;

e)

directing the 1st Respondent in his capacity as assignee of the powers of the Chairman of the Council for National Unity, to restore the Vhuhosivhuhulu of the Ramabulana Royal house, by appointing and or directing that the 1st Applicant be appointed Khosikhulu of the Venda Nation;

f)

granting the applicants costs of this application should the application be opposed and

g)

granting applicants further and alternative relief..

The respondents opposed the application.

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Lukoto J

During the hearing the applicants indicated to the Court that they will only proceed with the prayers set out in paragraphs (c)and (d) of the Notice of Application. In respect of the prayer in paragraph (d), they made an application to amend, which application was not opposed by the respondents and was duly granted. The amendment was in this fashion:

"declaring the repeal of sections 67 and 68 of the Constitution of Venda Act, Act 9 of 1979 and the Vhuhosi Administration Act, Act 14 of 1986 by the Council for National Unity to be null and void ab initio".

As will be seen later in this judgment, the applicants' contention is that, the Council for National Unity lacked legislative authority, and hence the amendment of the Venda Constitution must be declared null and void.

HISTORICAL BACKGROUND:

Venda, a landlocked territory in the far north-eastern part of South Africa in the Limpopo Province, became the third independent self-governing 'black state' in apartheid ruled South Africa on the 13th September 1979. As was the norm the independence of the Republic of Venda was preceded by an

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Lukoto J

Act of the South African government. This Act was called the Status of Venda Act, No.107 of 1979. In that Act, the South African government and the government of the self-governing homeland of Venda declared the desire for Venda to evolve into an independent and sovereign state.

With the adoption of the Republic of Venda Constitution, the establishment of its own governmental structures etc the attributes of a constitutional state were all present in the Republic of Venda. This then means that there can be little doubt, despite economic, international, demographic, sociological and other factors that the Republic of Venda was at least, in constitutional law, a sovereign independent state. Whether the same can be said in international law is a completely different question which is not part of this application. Suffice it to say that it would be unnecessary to argue hypothetically that it was a state in terms of international law. Upon gaining independence, Chief P.R Mphephu, who passed away in 1988, became the first president of Venda. He was succeeded by headman F.N Ravele. It was during headman (later Chief and again headman) Ravele's presidency that the military take over of Col. M.G Ramushwana (as he then was) took place in 1990. Upon taking power the military ruler set up what was known as "The Council for National Unity", which was effectively the government of the day. This

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continued until the re-incorporation of Venda into a democratic South Africa in 1994.

THE INSTITUTION OF KHOSIKHULU:

As already indicated above, the concept of Khosikhulu is difficult to define or translate into the English language. Its English equivalent is either king or paramount chief. South African common law, because of its Euro-centric influence, is silent on the position of kingship, whereas the position of paramount chief has been given statutory recognition through various legislative enactments.

STATUTORY RECOGNITION:

1.

Section 2(7) of the Black Administration Act, No.38 of 1927 stipulates that the Governor-General may recognize or appoint any person as a chief of a Black tribe and may make regulations prescribing the duties, powers, privileges and conditions of service of chiefs so recognized or appointed, and of headmen, acting chiefs and acting headmen appointed under subsection (8). The Governor-General may depose any chief so recognized or appointed.

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Lukoto J

Section 35 of the said Act states that "chief' in relation to a Black tribe, includes a paramount chief and a sub-chief.

2.

Section 33(1) of the Venda Tribal and Regional Councils Act, No.10 of 1975 stipulates that the Cabinet may, subject to the provisions of this Act and with...