Tshivhase Royal Council and Another v Tshivhase and Another

• Jurisdiction: South Africa
• Judge: Le Roux CJ
• Judgment Date: 20 September 1988
• Citation: 1990 (3) SA 828 (V)
• Hearing Date: 20 September 1988
• Court: Venda Supreme Court

Le Roux CJ:

This is the extended return day of a rule, which also served as a temporary interdict, against the installation of the first respondent as the permanent chief (or khosi) of the Tshivhase tribe pending the final determination of an application brought by the applicants as a matter of urgency on 18 August 1986. There is a further D substantive application before me by the first and second respondents in which the discharge of the aforesaid rule and of the interim interdict, as well as a special order as to the costs of the proceedings are sought. This relief is opposed by the applicants who wish the rule and the temporary interdict to remain intact until the alleged disputes E between the parties have been decided by this Court.

In order to comprehend this rather unusual application, it is necessary to refer to the background of this matter in some detail. On 2 July 1986 an urgent application was brought ex parte by the first applicant (who was then the sole applicant), represented by one Gilbert Ligege, who described himself as the chairman of the first applicant, F for the following relief:

'(1)

(declaration of urgency);

(2)

that the ceremony to be held at Mukumbani, Venda, on 3 July 1986 at which first respondent is to be installed as a permanent chief of the Tshivhase tribe be stopped or postponed indefinitely or not proceeded with as scheduled; G

(3)

that the first respondent be not installed as permanent chief of the Tshivhase tribe on 3 July 1986 at the said ceremony or at any other similar ceremony on 3 July 1986 or on any other date thereafter prior to consultations on this matter with the applicant; and

(4)

costs of this application.'

H Van der Spuy AJ, before whom the matter was brought, refused to entertain the application without service on the respondents although it was dealt with as an urgent application. In the result, the matter continued before him during the early hours of 3 July 1986 as the installation ceremony had been arranged for 10 am on that day. Short answering affidavits were filed by the respondents and both sides were represented by counsel. So strenuously was the relief claimed opposed by I the respondents that when the time appointed for the ceremony arrived, the Court was still in session hearing oral evidence from the parties, and the installation proceedings were perforce suspended till 2 pm to enable the Court to complete the hearing. The basic dispute was the following: The applicant, through Gilbert Ligege, alleged that the J Tshivhase tribe already had a duly

Le Roux CJ

A installed chief in the person of a young man, named Kennedy Tshivhase who was installed with due pomp and ceremony during 1970 when he was a mere child of some seven years of age, after the untimely death of his father, the late chief of the Tshivhase tribe, Khosi Prince Thohoyandou Tshivhase, during 1966 in a motor car accident. The first respondent, a younger brother of the late chief, was at the same time appointed acting B chief of the tribe until Kennedy should have attained majority when the chieftainship would de facto become his. Kennedy had now reached the age where he was entitled to succeed his father in fact as well as in law, but the first respondent (to whom I shall refer hereinafter as John for the sake of brevity and convenience) refuses, despite demand, to vacate C the chieftainship in his favour and has in fact usurped that position as his own. In any event, Kennedy has never been lawfully deposed as chief and was therefore still the only incumbent of this office.

John, on the other hand, (apart from two points in limine set out below) alleged that although he did initially act as regent for Kennedy, D it had transpired in the meanwhile that Kennedy was not the rightful heir to the Tshivhase chieftainship as various customs in connection with his mother's marriage to the late chief and his own birth had not been observed. As the conditions of Venda customary law for the acquisition of the hereditary right to the chieftainship had not been fulfilled in respect of any other offspring either, John had eventually E been appointed as permanent chief of the tribe by the Cabinet and State President of Venda on 17 June 1986. It was as a result of this appointment that the installation ceremony had been arranged and a large number of dignitaries had been invited to a traditional feast. He produced various letters to prove his statement. In any event, says F John, there is no such body as the Tshivhase Royal Council (the name given to the applicant). If the intention is to cite the royal house of Tshivhase, then Gilbert Ligege has no right to represent them, and Kennedy, the main actor on applicant's side, has not been joined as a party.

After hearing evidence and argument, Van der Spuy AJ eventually issued the following order:

'1.

G That the matter be considered as one of urgency and that the honourable Court dispense with the procedures and time limits prescribed by the Rules of this honourable Court.

2.

That the ceremony to be held at Mukumbani, Venda, on 3 July 1986, now postponed till 14:00, is to be interdicted and stopped H pending a decision by the vho-makhadzi of the royal family of the tribe as to whether Mr John Shavhani Tshivhase is to be a permanent chief of the tribe or not, for which purpose -

2.1

a meeting is to be held by the Tshivhase royal family or the vho-makhadzi on Sunday, 13 July 1986 at Mukumbani;

2.2

I the said meeting to be controlled by the district commissioner for Thohoyandou, Mr Malima or his alternate who is authorised to keep a record of the proceedings to facilitate proof of the decision. He may be assisted by the Venda police to keep the peace;

2.3

neither John nor Kennedy is entitled to be present at the J meeting;

Le Roux CJ

2.4

A Londolani Tshivhase the senior makhadzi and ancestral mother is entitled to be present.

3.

Each party to pay its own costs.'

It is necessary to mention here that the chieftainship in Venda is hereditary and usually devolves on the eldest son of the great wife of the late chief, provided certain stringent conditions relating to his B mother's marriage to the chief and to his own conception and birth have been complied with. The 'finding' of the heir to the throne is conducted by the late chief's eldest sister (makhadzi) and eldest surviving brother (khotsi-munene) in consultation with the closest and most senior members of the chief's family (the 'royal' family). The announcement of the name of the new chief must be made by the senior sister of the late C chief in order to be valid (the so-called vho-makhadzi). (See Hugh Stayt The Bavenda at 196; Gottschling The Bavenda: A Sketch of their History and Customs; Van Warmelo and Phophi Venda Law vol 4 2620 et seq; P H Cloete Die Reg en Regstelsel van die Vhavenda van Dzanani at 168 - 71.) It is only the 'reigning' vho-makhadzi that has the authority to announce a new chief. The former makhadzi (sister of the chief's father) D is automatically superseded by the chief's eldest sister on his death (Stayt (loc cit at 198)). Londolani in this case was the eldest sister of the late chief Prince Tshivhase and as such the vho-makhadzi in authority.

The meeting foreshadowed in the Court order was duly held, and from a record kept by the district commissioner it appears to have been a E stormy one. Londolani, the senior vho-makhadzi (eldest sister of a former chief) conducted the proceedings from start to finish, although Ligege and his group refused to recognise her authority to act, saying that she was never crowned as khadzi to Prince Tshivhase and could therefore not become vho-makhadzi on his death. One Avhiani Tshivhase F was alleged to be the true vho-makhadzi. Despite these objections, Londolani continued to address the meeting and eventually announced that Kennedy had been wrongly installed in 1970 as he had not been born at the royal kraal, that she now declared that he was 'out as from today' (13 July 1986) and that Shavhani Tshivahase (John) is now appointed by her as permanent chief of the Tshivhase tribe. After this and in spite G of protests from the Ligege group, she left and the meeting was declared closed.

A further installation ceremony for John was thereupon arranged for 21 August 1986. When this came to the ears of Ligege he launched another urgent application in the name of the Tshivhase Royal Council to stop H the ceremony once more. This time, however, he joined Kennedy as the second applicant. The relief sought in the notice of motion, although somewhat confused in form, amounts to this:

1.

An interdict against the holding of the ceremony at which John is to be installed as permanent chief on 21 August 1986 or on any other date.

2.

Rescission of the order made by Van der Spuy AJ on 3 July 1986 and I of the decision taken or announced at the meeting held pursuant thereto.

3.

The joinder of Kennedy as a party to the proceedings.

4.

That prayer (1) serve as a temporary interdict pending the final determination of the application.

5.

J Costs against the respondents jointly and severally.

Le Roux CJ

A Once more the relief sought was vehemently opposed by the respondents. On 20 August 1986 Klopper ACJ made an order inter alia, placing the parties on terms as far as the filing of further affidavits was concerned, joining Kennedy as second applicant, granting a temporary interdict restraining John from holding or attending an installation ceremony of himself as chief and reserving the costs for later decision. B The order also states that the two 'actions' (sic) are consolidated. It seems clear that there was a great deal of confusion over the impact and scope of the previous order of 3 July. It would appear that the learned Judge who made the first order confidently expected...