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IN THE HIGH COURT OF SOUTH AFRICA

(THOHOYANDOU LOCAL DIVISION.)

CASE NO: 204/2008

DATE: 19th September 2016

1) REPORTABLE: YES /NO 2) OF INTEREST OF OTHER JUDGES: YES/NO 3) REVISED.

……………………… ………………………….. DATE SIGNATURE

In the matter between:

DOVHELA PHANUEL NESENGANI 1ST APPLICANT

DAVHANA/ NESENGANE ROYAL FAMILY 2ND APPLICANT

RAMAVHOYA ELVIS DAVHANA 3RD APPLICANT

and

CHAIRPERSON of the DAVHANA Royal Council 1st RESPONDENT

(Vha-Musanda vho Mulweli Khamusi Davhana)

DAVHANA ROYAL COUNCIL 2ND RESPONDENT

NESENGANE JULIUS DAVHANA 3RD RESPONDENT

DAVHANA DAVID DAVHANA 4th RESPONDENT

THE PREMIER OF LIMPOPO PROVINCE 5TH RESPONDENT

JUDGMENT

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MG PHATUDI J: [1] INTRODUCTION:

1.1 This is an application brought in terms of the provisions of Rule 53 of

the Uniform Rules of Court (“Uniform Rules”).

1.2 The Applicants seeks an Order reviewing and setting aside the

decisions of Second and Fifth Respondents respectively, in terms of

which the Fourth Respondent was identified by the Second

Respondent and subsequently recognised by the Fifth Respondent, as

a Senior Traditional Leader of Davhana Traditional Community.

("Khosi").

1.3 The Applicants also seek an Order that pending finalization of this

application, further investigation and/or implementation of the decision

of the Second Respondent with regard to identification of the Fourth

Respondent and his installation as such be stayed. A costs Order

against the Second, Fourth and Fifth Respondents is sought against

them, respectively the one paying the others to be absolved.

1.4 This matter which is opposed, was comprehensively argued before

Ebersohn AJ on the papers on 29 August 2011. In his Judgment dated

07 September 2011, the Learned Acting Judge, having considered the

matter, expressed the view that the dispute would not be resolved on

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the papers and referred the matter for hearing of evidence viva voice

in terms of Rule 6 (5) (g) of the Uniform Rules.1

1.5 In doing so, the court directed, inter alia, that the parties are required to

hold a Pre-trial conference in terms of the applicable Practice

Directives of this Division, and settle the Minutes thereof before the

appointed hearing date.

1.6 The matter is opposed by the Second and Fourth Respondents. The

Fifth Respondent however opposes the matter only in so far as a costs

Order is sought against it. The Fifth Respondent in essence does not

oppose the application, hence no notice to oppose was delivered. It

abides the decision of the court.

1.7 At the commencement of the hearing, Counsel for the Applicants

placed in on record that it abandons its claim against the First and

Third Respondents who, at any rate made confirmatory affidavits in

which both confirmed their intention not to oppose the present

application.2

1.8 Furthermore, at the inception of the proceedings both counsel

confirmed that the minutes of the Pre-Trial Conference dated 20 July

2012 and signed by the parties` legal representatives, be and form the

basis of the issues identified therein for determination by this court.

1 Uniform Rules of Court 2 Annexures “MD6” and “MD8” at Pp 120 and 135, Vol I, Record.

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1.9 The issues which in terms of the said minutes remain in contestation

are mainly the following:-

1.9.1 Whether or not the Khadzi and Ndumi who performed the

identification, did so in consultation with the Royal "Family" or

the Royal "Council",

1.9.2 Whether or not the foregoing identification at a meeting held on

08 April 2007, was performed by the designated Khadzi one

Tshamano Melta Mutavhatsindi (born Davhana) and if so,

whether or not this was done in consultation with the designated

Ndumi and in consultation with the Second Respondent, the

Royal council, and

1.9.3 Furthermore, whether or not the said identification as performed

at the said meeting of the Royal Council by the properly

designated Khadzi in consultation with a properly designated

Ndumi was responsive to the custom of Davhana Traditional

Community.

[2] The primary issue for determination accordingly is whether was the

identification of the Fourth Respondent performed strictly in

accordance with applicable customary law practices and tradition of

Davhana Royal House and ,therefore, procedurally regular and lawful

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in terms of the precepts or tenets of the provisions of Limpopo

Traditional Leadership and Institutions Act, 20053.

("The Act").

[3] I propose to return to the interpretation of the provisions of the said Act

later in the course of this Judgement.

[4] I now deal summarily with the applicants' evidence. Mr. Mulweni

Khamusa Davhana testified on behalf of the applicants. His

evidence was briefly the following:-

4.1 He testified that he was party to the identification of the Fourth

Respondent in his capacity as Chairperson of Davhana Royal

Council, the Second Respondent in this matter.

4.2 The process of identification of an heir apparent or a successor

to a vacant position of a Senior Traditional Leader (“Khosi”) at

Davhana Royal House is performed by the Royal Family as

opposed to the so-called Traditional Council. The performance

of identification to fill in such a position is, in accordance with

Venda law and custom, done by a designated Khadzi in

consultation with Ndumi.(younger brother to the “Khosi”

(Senior Traditional Leader) who also acts as deputy of the

“Khosi”. The two of them, Khadzi and Ndumi jointly agree and

3 Act 6 of 2005.

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identify an heir apparent as a successor, whereafter they

summon a meeting of the Davhana Royal Family which

formalise the identification process.

4.3 He further testified that the so-called Royal Council is not, in

terms of prevailing customary law and custom of his traditional

community, competent to identify an incumbent as a successor.

If is a function set apart and performed by a Khadzi and Ndumi

and concretized by the Royal Family in a joint sitting.

4.4 He stated that the Royal “Council” is a "Khoro" (“Council”) that

performs certain administrative duties on behalf of the Royal

Family. It is, however, constrained to perform issues of

identification of an heir apparent according to prevailing custom

and tradition.

4.5 The witness described a Khadzi as a sister of the Senior

Traditional Leader (“Khosi”) and when performing installation

of “Khosi” (Chief) is covered together with the successor with a

blanket. A Khadzi is entrusted with ceremonial duties and

performance of rituals when identification is performed in

conjunction with Ndumi.

4.6 A Makhadzi on the other hand, is the “Khosi’s” sister, but could

be either his younger or elder sister who is not necessarily

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covered with a blanket upon or during a successor's installation.

He testified that Makhadzi is, therefore, not endowed with

ceremonial identification of an heir in terms of custom.

4.7 He testified further that the identification of the Fourth

Respondent was done following a meeting of the Second

Respondent held on 08 April 2007. The proceedings of that

Royal Council Meeting were minuted.4

4.8 Referring to Paragraph 5.1 of the Minutes he confirmed that it

was he who suggested the name of the Fourth Respondent as a

successor. All top six Royal Council members supported his

nomination and, in addition, the traditional leadership dispute

which was already lodged with "Nhlapo Commission" was in the

same breathe also withdrawn.

He stated further that the Ndumi Julius Davhana,Third

Respondent passed the responsibility of identification over to him

after he (“Julius”) declined to effect the identification. He

confirmed that he was not for that process a qualified Ndumi

competent to perform the duty imposed, and lacked authority to

have done so.

4 . Annexure “MD3”– pp 26-29, Vol I,Record.

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4.9 The rightful Khadzi Tshamano Melta Mutavhutsindi (born

Nesengani/Davhana) was not present at the relevant meeting.

The Makhadzi Masindi Ramanyimi who also lacked authority to

identify an heir, refused to perform the duty at hand. According

to him the purported identification of the Fourth Respondent was

flawed as it was effected by members who otherwise were not in

terms of customary law and prevailing custom, competent to

have discharged that role as a Royal Council.

[5] He further said that pursuant to the letter addressed to the manager:

Traditional Affairs in Thohoyandou dated 13 April 20075, and the Minutes of

the Second Respondent, the Fifth Respondent recognised the Fourth

Respondent as a Senior Traditional Leader for Davhana Traditional

Community.6 It was the letter addressed to General Manager in the office of

the Fifth Respondent dated 02 May 2007, that triggered Fourth Respondent's

recognition by the Fifth Respondent as a Senior Traditional Leader.

[6] Aggrieved by the effected recognition, the applicants launched an urgent

interdict to restrain the intended coronation of the Fourth Respondent, in as

much as the Royal Family was not advised on the matter befrorehand

[7] The First Applicant had rebuked the witness (Rhamusi Davhana) for having

sought to inaugurate the Fourth Respondent without the knowledge and or

consent of the Royal Family.

5 Annexure “MD2”. 6 Para 5.1, 5.2 P187, 5th Respondent`s “AA”.

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[8] He went on to justify as to why he and Third Respondent elected not to

oppose the present application. This he said was because he on hind sight,

came to realise that his conduct in the identification process of Fourth

Respondent was both irregular and unwarranted.

[9] He again reiterated that the Fifth Respondent was prompted by the Royal

Council's actions as alluded to when it effected Fourth Respondent's

recognition to the position.

[10] Extensive cross-examination ensued and at its conclusion, the Applicants

closed their case, and no further witnesses were called.

THE RESPONDENTS’ CASE:

[11] The first witness to testify on behalf of the Respondents was Martinus

Nesengani Davhana. He had this to say:-

11.1 He resides at Davhana Village and his position in the Royal House is

that of Khosi Munene, that is, the chief’s younger brother (uncle in the

royal house).

11.2 After the passing of the late Khosi (Chief) Hosias (“osias”) Nesengani

Davhana in 1994 a royal family meeting was called to consider a

successor. The meeting was held on 28.07.2006. It was summoned by

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the Khadzi. (sister to the Chief/Khosi who at installation of Khosi are

covered with a common blanket together with Khosi. He mentioned

one Tshamano Melta Mutavhatsindi as the convenor of the meeting.In

doing so, she consulted with Acting Chief and Chairman then Vha-

Musanda Vho-Ravele Leonard Davhana, and the Makhadzi's who are

drawn from various Wards within the Davhana traditional community

and Vhakololo (councillors). Not all royal councillors were present e.g.

the First Applicant was absent at the meeting. The reason proffered

was that he often had quarrels with the late Khosi (“Osias”) and often

disputed/challenged his status as Khosi.

11.3 At the meeting, the Khadzi and Ndumi removed themselves from the

proceedings to caucus about some 50 metres away from the vanue.

Upon her return the Khadzi: (Melta) informed the royalists present that

she identified Davhana David Davhana (Fourth Respondent in the

present application) as heir apparent. The alleged identification he said

was unanimous.

11.4 Pursuant to the identification aforesaid, a certain form (annexure "A")

was completed and signed in which the Fourth Respondent was

"appointed" a "Chief" of Davhana Community.

11.5 He denied that the purpose of attending the meeting held at a certain

church premises on 08.04.2007 was for purpose of identifying a

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successor. His role, he said, was to make peace with Mulweni Vhamusi

Davhana ("Mulweni") as mandated by the royal council.

He further said that a successor was already selected the previous year

in 2006.

11.6 He confirmed, however, that although his signature appeared on the letter to

government dated 13.04.2007, it was intended solely to lure co-operation of

Mulweni during the scheduled coronation of the Fourth Respondent. Evidence-

in-chief was put to a rest at this point. Cross-examination ensued, where after

re-examination followed.

[12] The next witness called was Tshamano Melta Davhana. Her evidence, in

short, was the following:-

12.1 She resides at Davhana Village, and was related to the late Khosi

Hozias “Osias” Davhana. She is also a Khadzi, and at his

installation,(Hozias) Vho-Nesengani Julius Davhana (Third

Respondent) was the relevant Ndumi.

12.2 In terms of applicable custom of the Masingo's clan, at Davhana, her

role is to identify or point out a successor to the Khosi’s, vacant

position.

12.3 In doing so, the Khadzi acts in consultation with Ndumi whereafter a

royal council meeting is convened to pronounce an heir apparent. This

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process was done during July 2006 already, according to her evidence.

She called all relevant customary structures entitled to attend the

meeting. At that meeting, the Fourth Respondent was identified, and

the decision was supported by the royal councillors present thereat.

12.4 Furthermore, a decision was also taken that a formal letter be directed

in the local offices of government (“now Cogsta”) to inform the officials

on the preparations of the forthcoming installation ceremony.

12.5 She, like the previous witness, denied knowledge of the meeting held at

a certain church premises in or during April 2007 to point out a chief's

(“Khosi”) successor. However, she confirmed having tasked the

Martinus Nesengani to pacify Mulweni to co-operate with the installation

process planned.

That, in a nut -shell, summarises her evidence in Chief. She too was

cross-examined,where after re-examination followed.

[13] Ravhele Leonard Davhana, the third witness, also gave evidence. He stated

that:-

13.1 He resides at Mpheni Village within Davhana Traditional Community of

which he is a Headman since 1994. He is also a Chairman and

member of Davhana Royal Council, and not Mulweni as he alleged to

be.

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13.2 He was nominated Acting Chief after the passing on of late Khosi

(Hosias or “O.K" as he was commonly known) between 1994-2007.

13.3 He testified that the meeting of 23.07.2006 held at Davhana Royal

House was convened by the Khadzi, Melta Tshamano at her instance.

It was attended by all relevant customary structures forming the Royal

Council.

13.4 At that meeting, Khadzi after consultation with Ndumi (Julius Davhana)

returned and pronounced the Fourth Respondent as a successor to the

deceased Khosi. The meeting also resolved to apprise the Local

Government Department's Officials about the process followed, and

then filled in a certain form which he personally completed and signed.

13.5 In doing so, he denied that he was "appointing" a successor, as that

role was a responsibility entrusted to a Khadzi in terms of custom,

which role she has already performed in 2006.

13.6 He stated that the relevant form after being completed and signed by

him, it was submitted to the Fifth Respondent (Premier) for recognition

of the "appointed" incumbent as a chief or acting chief.

13.7 Pursuant to the submission of the said form the Fifth Respondent, a

recognition letter was received from the local office of traditional affairs.

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According to one Mr Mahada, the form was directed to the Fifth

Respondent's office for consideration.

That constituted this witness's testimony. He too was exposed to cross-

examination, and re-examination that ensued.

[14] It was at this stage that the Respondents' case was closed with no further

witnesses called to testify.

[15] The crisp questions for determination are three-fold, namely, whether:-

(a) The identification of the successor by the Royal Council in its meeting

held on 23-07-2006 was responsive to the tenets of custum applicable

at Davhana Traditional Community, and if so,

(b) Was the identification performed, in fact actuated the Fifth Respondent

to have issued the Certificate of Recognition to the Fourth Respondent,

and that if so,

(c) Whether the said recognition was effected in terms of applicable

legislative framework.

[16] I propose to scrutinize each of the issues referred to herein in the course of

this Judgement. Before I do so however, I consider it apposite to pay brief

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attention to the issues the partie`s legal representatives minuted during their

Pre-Trial Conference held and signed on 20 July 2012.

I must remark that the said pre-trial conference was held not only in

compliance with the provisions of Rule 37 (6) of the Rules, but also pursuant

to an Order of this Court made by Ebersohn AJ on 29.08.2011. The said

minutes were identified and incorporated as part and parcel of the record of

the present proceedings.7 If the respondents had heeded to common cause

issues during the hearing, a vast variety of disputes would have been whittled

down and saved time on peripheral issues.

[17] COMMON CAUSE ISSUES IDENTIFIED:

During their pre-trial conference, the parties' legal representatives identified

the following common cause issues:-

17.1 The Fourth Respondent was identified as the rightful successor of the

"Khosi" by the Second Respondent. (Davhana Royal Council) on 08

April 2007.

17.2 That, the identification aforementioned was submitted by the Second

Respondent to the Fifth Respondent through the office of the Local

Traditional Affairs (now Coghsta) under cover of a letter dated 13 April

2007.

7 Pp 292-295, Vol. iii-Bundle. (Pre-trial) minutes”)

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17.3 The Fifth Respondent as a result, recognised the Fourth Respondent as a

successor by way of a recognition certification issued to him.

17.4 Further that, the proper Khadzi to point out the rightful successor is one

Tshamano Meita Mutavhantsindi.

17.5 Further that, the court is only required to determine the question whether or

not the identification process was procedurally regular in terms of custom.

The issue of the merits as to who the rightful heir is was therefore left outside,

and

17.6 Further that, in terms of the provisions of Section 12 (a) (i) of Act 6 of 2005

("The Limpopo Act") it is the "Royal Family" that must perform the identification

process.

[18] At issue was the question whether or not the Khadzi and Ndumi perform the

identification in consultation with the "Royal Council" or "Royal Family", and

whether the proper identification during the meeting aforesaid, was done by a

proper Khadzi and a proper Ndumi after consultation with the Royal Family.

[19] APPLICABLE CUSTOM AND LEGAL FRAMEWORK

19.1 I consider it necessary to first examine closely whether there has been

compliance with custom that obtains at Davhana dynasty when the

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alleged identification was performed. If it be found that prevailing

custom was followed, the next leg of inquiry is be whether that

identification has a bearing on the Fifth Respondent's decision when be

recognised the Fourth Respondent.

19.2 It appears plain that the inner circle comprising mainly the royalists is

convened by a Khadzi in consultation with a proper Ndumi. It is at this

meeting where a Khadzi points out or announces a successor to the

Khosi (Senior Traditional Leader) whose position shall have been

vacant. The announcement which is usually confirmed by Ndumi is

made in the presence of other members of the royal house, entitled to

attend the meeting according to their customary structures' protocol

within the inner cycle.

19.3 The customary ritual observed is that at the installation of Khosi, the

Khadzi is covered with a blanket with the heir apparent who is to be a

new successor. This ritual is part of a ceremonial function observed

during installation of a successor, and not necessarily during the

identification of a successor. This ceremony usually takes place within

the premises of the royal house ("Musanda"). This ritual distinguishes

the status of a Khadzi competent to identify a successor as opposed to

Makhadzi.

19.4 Once this customary ritual or practice had been accomplished, the next

procedural step is for the royal family to inform the Premier of the

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province concerned of the particulars of the person identified to fill the

position, and to furnish the reasons for the identification of the relevant

incumbent.

19.6 In the present case, the first question for consideration is whether the

identification of the Fourth Respondent on 23.07.2006 was done in

accordance with custom and by recognised customary structure, regard

been had to applicable customary law prevailing within the Davhana

Traditional Community.

[20] Following the testimony of both Tshamano Meita (Melta) Mutavhatsindi

(nee. Davhana) and Ravhele Leonard Davhana, proceedings that unfolded

from the meeting of the royal family on 23.07.2006 were, in my opinion, in

accordance with custom applicable to the Vha-Singo's of the Davhana

Traditional Community. This is particularly so that the main Khadzi,

Tshamano Meita Mutavhatsindi ("Meita or Melta") the eldest daughter of the

late "Khosi” Matamela King, Davhana acted as a Khadzi during the

installation of the late Khosi Ndaleni Hosias ("Ozias"/OK") Davhana, for

whose succession battle this application relates.

Furthermore, it was also at this occasion that the Third Respondent Nesengani

Julius Davhana, acted as Ndumi.

[21] Melta, therefore, in accordance with applicable custom, acts in consultation

with Ndumi, in this case, the Third Respondent. Given the rituals and the

formulae observed at the identification process, it cannot be contended that

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custom was not followed and that therefore, the procedure was flawed. To

that extent, the court is satisfied that on that aspect, the procedure followed

and observed was congruent to the customary tenets applicable to the

Davhana dynasty.

[22] The inquiry, however, does not end there. The Second leg of the inquiry is

whether the identification so performed on 23.07.2006, in fact actuated the

Fifth Respondent to have issued a Certificate of Recognition to the Fourth

Respondent. This is the work aorta of the dispute herein.

[23] In its "answering affidavit", the Fifth Respondent ("AA") was clear and succinct

to the point.8 In articulating its understanding of the factual and legal position, it

was submitted that:-

23.1“The Fifth Respondent is not competent in law to "identify" a person who

qualifies in terms of customary law to become a Senior Traditional

Leader ("Khosi") Headman or Headwoman.

23.2 It is the responsibility of the relevant royal family through the relevant

customary structure of the traditional community concerned, to notify

the customary structure (royal family or council) as the case may be of

the identification, where after to "inform" the Fifth Respondent

("Premier") of its decision and the reasons therefore.

8 Pp 186-192, Vol, “AA” (5th Respondent)

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23.3 Upon receiving such information, the Fifth Respondent Must in terms of

law, recognize the person so identified by the royal family, and issue a

Certificate of Recognition to the person so recognized.

23.4 Where, however, there is evidence or an allegation that the

identification of a person was no done in accordance with customary

law, customs or process, the Fifth Respondent may refuse to issue

such a certificate, or refer the matter to the relevant House of

Traditional Leadership, and if required, must refer the matter back to

the royal family concerned for reconsideration and resolution where

the certificate of recognition has been refused”.

[24] In the present case, the Fifth Respondent through its Thohoyandou satellite or

local office, was placed in possession of the letter dated 13.04.2007 and the

minutes thereof9.

[25] In terms of this letter and the minutes referred to,

the Second Respondent identified the Fourth Respondent as a successor to

the "throne" of chieftainship of the late "O.K" Davhana of Davhana Royal

House. The identification was effected on 08.04.2007. In the same meeting,

(Ndumi) Nesengani Julius Davhana was appointed Acting Chief pending the

appointment of a successor. The meeting was attended by the "TOP SIX (6)"

of Davhana Royal Council.

9 P24, Vol I,” FA” –“MD” and “MD” ANNEXTURE TO “FA”.

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[26] Acting on the contents of the letter and the minutes, (Annexures "MD2" and

"MD3") one Mr. G.S Mahada, Manager: Vhembe Support Centre, issued a

letter addressed to the General Manager, office of the Premier dated

02.05.2007 10 in which he was advised of the "agreement of identifying

Mr. Davhana David Davhana" as a rightful successor to his late father Khosi

"O.K" Davhana who passed on in 1994. Because of the alleged unity within

the royal house, Mr. Mahada, in conclusion thereof said, his office "strongly

recommended" the Fourth Respondent to be recognized as "Khosi” of

Davhana Traditional Community and for that purpose, be remunerated

accordingly.

The relevant letter ("MJP 1") was accompanied by the following annexure:-

26.1 A copy of the letter from Davhana Royal Council dated 13.04.2007

("MD2")

26.2 A copy of the minutes of Davhana Royal Council held on 08.04.2007

("MD3")

26.3 An historical and genealogical of background of Davhana Chieftainship,

annexure as "MD1"11, and ancillary supporting documents.

[27] Based on the foregoing considerations, it seems plain that Annexure "MJP1"

was written after the receipt by the Thohoyandou office of the letter

10 Annexure “MJP 1” P193 Paginated Index. Vol II 11 Annexure “MD1”, P23 “FA”.

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withdrawing the dispute lodged with the "Nhlapo Commission" in respect of

this dispute12.

[28] According to the deponent to the Fifth Respondents “Answering affidavit,”13

the (premier) Fifth Respondent, recognised the Fourth Respondent as a

Senior Traditional Leader (“khosi”) of Davhana traditional community in terms

of annexure “MJP14 dated 21.01.2007. In terms of this letter, the executive

council per decision no.191/2007, approved recognition of the Fourth

respondent as a senior traditional leader (“khosi”) of Davhana traditional

community in terms of the provisions of section 12 (1) (b) of Act 06 of 2005

(“The act”).

[29] Attorney acting on behalf of two members of the Second Applicant viz A.R

Madia attorneys wrote a letter of objection against the identification and

installation of the Fourth Respondent as Khosi. The letter is dated 31.03.2008

and addressed to a structure called Davhana Royal council and office of the

Premier. (Annexure “MJP5” 198”AA”).

In their objection it was contended that the said recognition and installation

would not only be wrong, but irregular, in that the so-called “royal council”

cannot comprise six (6) members and for that matter, lacked authority to have

performed the alleged identification in terms of custom. Conversly, it was said

Davhana Royal family is the only legitimate customary structure that is

12 Annexure “MJP3 P196, “FA” 13 P188,Vol, “AA” Paginated Index, Para 506 14 P197, Vol II,”AA” & P198, Vol II,AA

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competent to identify a successor. The Davhana “council” also did not consult

Davhana royal “family” either on the matter.

[30] It was also contended that if the purported “identification” was recognised by

the Fifth Respondent, the recognition would also not be wrongful, but also

invalid. The identification flawed as it were, misled the Fifth Respondent in

issuing the contested certificate.

[31 ] It was this “recognition certificate” that triggered the present review

proceedings.

[32] On closer scrutiny of the contents of the response proferred on behalf of the

Fifth Respondent it admits of no doubt that it was what was contained in

annexures “MJP 1” being a letter written by Mr Mahada alluded to herein that

actually prompted the Fifth Respondent and its executive council to have

decided and/or approved the recognition afore stated.

[33] What is contentious however is whether the “TOP SIX” Davhana royal

councillors referred to, were in terms of custom, entitled to have identified an

heir apparent.

[34] From the minutes of the meeting of Davhana Royal council held on

08.04.2007, the following emerges:-

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34.1 The meeting was attended by only top six (6) Members of the entire

customary structure.

34.2 Its main business to be transacted was to identify an incumbent to

succeed the late Khosi “OK” Davhana and to appoint an acting chief of

the community.

34.3 (Item 5, annexure “MD3”, “FA”)

The matter was left in the hands of Vho-Makhadzi (as opposed to

Khadzi) one Vho-Masindi Ramanyimi to “identify” the incumbent who

in turn proposed Vho- Ndumi, Vho-Julius Davhana to lead the process.

The chain of responsibility passed from one member to the other in an

apparent suggestion that they avoided taking a lead.

34.4 Be that as it may, Vho-Masindi, vho Mulweli Khamusi Davhana

(formerly cited as second respondent) finally broke the ice and

proposed a successor to the “throne”. He was unanimously supported

by Vho Julius Davhana, Vho Masindi Ramanyimi, Vho M.M. N

Davhana, Vho J.K. Rasengani and Vho T.J Davhana flowing from the

minutes of that meeting, it stands to reason that the process of

identification of the fourth respondent was performed by Vho-Mulweni

Davhana and not a Khadzi (Melta) in consultation with a designated

Ndumi as prescribed by custom.

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34.5 It is also apparent that Khadzi Melta was not present at the meeting

held on 08.04.2007, something wanting in terms of custom. According

to Davhana custom and tradition, any identification of a successor

done by any customary structure without Khadzi`s participation

therefore would therefore be fatal to the proceedings.

34.6 It is also common cause that by the same token, that the said royal

council meeting, it was Mulweni Davhana who also put forward the

name of Ndumi, vho-Khotsimunene (the paternal uncle) vha-venda

vho-Julius Wesengani Davhana the Third Respondent, in this matter,

as Acting Chief of the community of Davhana.

34.7 Further that, the attendance register noted at the meeting15, reveals the

conspicuous assence of khadzi Tshamano meita Mutavhatsindi

(Meita) from the gathering.

[35] The top six (6) royal councillors arranged that a certain “annexure A”16 form

be completed in triplicate confirming the “appointment” of the Fourth

Respondent as “chief ”of Davhana community ward under chief Davhana. In

this document it was also certified that Acting Chief R.L. Davhana has,

after consultation with the family of the chieftainship Davhana community in

terms of the powers vested in him by section 11 (1) of the Venda Traditional

Leaders Administration Proclamation 1991. (Proclamation no. 29 of 1991),

appointed Mr. Davhana David Davhana as Chief of Davhana community” to

15 Annexure “MD4” P29 volI, Paginated index 16 PP50-52,Vol I, “FA“

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replace late O.K.N Davhana who passed on 11 september 1994. (own

underlining).

This document was signed by one T.J. Davhana and another unidentified co

signatory on 26.07.2006. It did not however, reach its intended destination at

the Fifth Respondent`s office, and there was no evidence to that affect.

[36] According to Khamusi Davhana, he personally appointed the Fourth

Respondent and agreed to withdraw the dispute of chieftainship previously

lodged with the “Nhlapo Commission”. He also testified that he was not himself

a Ndumi in terms of custom and consequently, had no authority to have

performed the identification, let alone the purported “appointment” of the

Fourth Respondent.

[37] In addition, according to the evidence of Khamusi Davhana, it was the letter

dated 13.04.2007, addressed to the local office of traditional affairs together

with the minutes referred to dated 08.04.2007, that influenced the Fifth

Respondent to have issued a recognition certificate in respect of the fourth

respondent. His evidence is corroborated by the fifth respondent`s answering

affidavit which states at paragraph 6.6.7 at page 191as follows:-

“the decision to recognize the 4th Respondent as a senior traditional

leader was made by the 5th Respondent on the basis of a single

notification from the royal council of Davhana and it was made before

the letter of objection from the applicant`s attorneys of record marked

“MJP5”.”

27

[38] This said, I am satisfied, on a balance of probabilities that the documentation

referred to and as acknowledged by the Fifth Respondent as a “single

notification” had in fact prompted the issuing of the offensive recognition

certificate in respect of the Fourth Respondent.

[39] This then raises another pertinent question as to whether in doing so, did the

Fifth Respondent ever applied its mind, if it did, before issuing the recognition

certificate, or if it did , was the decision rational taking into account the relevant

legislative precepts’ applicable in instances such as these.

[40] The legislative framework applicable in these instances are the provisions of

section 12(1) (a) and (b) and section 12 (2) (a) to (c) of Act 6 0f 2005, as

amended. Nationally the provision of section 11 of 41 of 2003 finds

application.

[41] Given the facts in this case, it appears that the customary structure that first

identified the Fourth Respondent during the meeting held on 23 July 2006 was

Davhana Royal “Council”. The Fifth Respondent submitted in its answering

affidavit, as part of its input to this impasse, that notification that often leads to

recognition has almost always been received from so-called “Royal Councils”,

even though the notion is not defined in the relevant provincial legislation.

[42] The Limpopo Act referred to (Act 6 of 2005) defines a “Royal family” as

follows:-

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Section 1:-

“Royal family” means a core customary institution or structure consisting of

immediate relatives of the ruling family within a traditional community, who

have been identified in terms of custom, and includes where applicable, other

family members who are close relatives of the ruling family”.

[43] Employing ordinary canons of construction to the definition given three

ingredients can be extracted, namely:

(a) Core customary institution or structure (comprising immediate

relatives),

(b) Identified in terms of custom, and includes,

(c) Other family members (who are close relatives of the ruling family).

[44] The meeting held by one such core customary structure on 23 July 2006 when

the Fourth Respondent was identified was, in my view, a “royal family”

comprising the core customary institution or structure made of immediate

relatives of the Dahvana ruling family, as identified by custom. The meeting

included such other family members as Vho-Makhazi, Khadzi, Ndumi, Vho –

Khodzimunene and Vhakololo (Senior male relatives) who together from the

nucleus of the inner circle of that customary structure. The identification of the

fourth Respondent was, therefore, in my view validly done in response to

custom or customary law, of Davhana community. The only issue that disturbs

29

the equation however is that, no sufficient evidence was presented in which it

could be said, the identification made in 2006, ever reached the Fifth

Respondent and, therefore, impacted on its decision. To hold otherwise

would be far- fetched and pure conjecture.

[45] As already seen, it was the concession made by the Fifth Respondent that it

was in fact the “single notification” of the 13 April 2007 sent by Second

Respondent together with the minutes attached there to, that led to its

decision. Furthermore Annexures “MJP1” “MJP2” AND “MJP3”, when read

together, clearly had an immense influence on the mind the Fifth Respondent

when it made the decision to recognize the Fourth Respondent.

Such a decision was taken allegedly before the contents of the letter “MJP2”

dated 12 August 2006 was dispatched and or received by the officials of the

fifth Respondent. As to why it did not immediately retract such recognition

upon eruption of the dispute, is another question.

[46] In view of the fact that the Fourth Respondent was “appointed” by Davhana

Royal “Council” as a chief on 26 July 2006 in terms of the outlawed section 11

(1) of the Venda Proclamation 21of 1991,it follows that such purported

“appointment” was not only irregular, but also void ab initio. This is so

particularly that Limpopo Legislative framework was already in place as in July

2006 when the ill-fated “appointment” was made by the said royal “Council”.

[47] Furthermore, while Mulweni Khamusi Dahvana`s “identification” of the Fourth

Respondent as a successor in the meeting of the royal council on 08 April

30

2007, was repugnant to established custom for lack of his authority, it leaves

no doubt that their decision as a royal family was in itself voidable, until

reviewable and set aside by a court of competent jurisdiction. That, the

absence of Melta at the subsequent royal council meeting (08.04.2007) was a

lapse of customary requirement, cannot be overstated because of the

attendant irregularity that struck cancerously at the roots of the purported

“appointment” of the Fourth Respondent it follows that the decision that

stemmed therefrom, is correspondingly flawed and therefore, liable to be set

aside on review.

[48]. There is living case law in this Division that governs the legal requirements for

the recognition of a successor where a vacuum exists within a royal family.

Such case law was moulded around prescribed legislative regime. This court

shall where necessary, draw guidance from the relevant precedents.

[49]. Counsel for the Applicants, Adv. J.S.Maake, aptly isolated the salient factual

points that discredited the meeting of the Royal Council held on 08.04.2007 at

which the Fourth Respondent was identified as the rightful successor. They

are the following:-

49.1. Khamusi Mulweni Davhana, who was then allegedly the chairperson

of Second Respondent, was he who actually “identified” the Fourth

Respondent as a successor.

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49.2. His evidence, largely corroborated by the Minutes of such a meeting,

(“MD3”) was to the effect that such meeting was convened by the

Second Respondent (“Davhana Royal Council”) as opposed to Second

Applicant.

49.3. In terms of Davhana custom, the process of identification of a

successor during the sitting of the Royal family assembled for that

purpose, vests squarely in the hands of a Khadzi in consultation with

Ndumi. The designated Khadzi (“Meita”) was not present at that

meeting, even though Ndumi Nesengani Julius Davhana was present, it

was he who identified a successor, despite the fact that he was neither

Ndumi nor competent to have done so. To that extent, the entire

process was thrown into disarray, and nullified the entire identification

process,

49.4. Following the ill-fated process, by a letter dated 13.04.2007, addressed

by the Second Respondent to the Manager: office of Traditional Affairs

Thohoyandou, attached to the Fifth Respondent’s Regional Office, to

which the Minutes referred to, were attached, the latter office was

notified of the identification process, with a request that the Fifth

Respondent proceed to recognize the Fourth Respondent. In essence,

this is how that it came about that the Fifth Respondent recognized the

Fourth Respondent.

32

[50]. Counsel for Second and Fourth Respondent, attorney Mr. S.O Ravele,

contended on their behalf that on 23.07.2006, members of the Davhana Royal

Family held a meeting to identify a successor to late “O.K.Davhana. Khadzi

vho Meita Mutavhatsindi identified Fourth Respondent as an heir apparent.

This was done in consultation with Third Respondent who was Ndumi of the

late Khosi “OK” Davhana.

[51]. Subsequent thereto, a letter dated 26.07.2006 was directed to office

of the Fifth Respondent in which a request was made to “install” the Fourth

Respondent as a chief of Davhana Traditional Community. Attached to the said

letter was “Annexure A” form 17 , which was allegedly directed to the Fifth

Respondent‘s local Regional office.

[52]. It is however, a moot point whether or not such a letter together with annexures

thereto had in fact been received by the relevant support office, let alone the

headquarters of the Fifth Respondent. The manner of service of such

documents also remained obscure. In fact, to sum it all, none of the witnesses

could specifically confirm if indeed the Fifth Respondent had in fact received

such information. To that extent, counsel for Respondents could not be heard

to argue that the relevant documentation was, as a matter of fact, received by

the Fifth Respondent and that as a result it had therefore, influenced its

decision to have recognised the Fourth Respondent as a successor.

17 Trial Bundle Vol I, p.83 et seq

33

[53]. The submission that the fact of recognition by the Fifth Respondent of the

Fourth Respondent is not in dispute, is a half-truth.

The crisp issue is which of the two “Royal Councils” ’meetings (2006 or 2007)

actually triggered the Fifth Respondent to have issued the certificate or letter of

recognition in respect of the Fourth Respondent.

[54]. According to the exposition given on behalf of the Fifth Respondent 18in its

affidavit, it was the “single notification” encapsulated in “MJP1”, that actuated

the Fifth Respondent to issue a recognition certificate in respect of the Fourth

Respondent. It is the response proferred by the Fifth Respondent that settled

the alleged dispute.

[55]. Although it appears that since the recognition aforementioned was effective

from 07.12.2007, it is worthy to mention that the decision to recognize the

Fourth Respondent remain extant until reviewed and set aside by a Court of

law by way of judicial review proceedings as it is presently the case.

[56]. Counsel for the Respondent’s submission at Paragraph 2.15 of its heads of

argument seems self-defeating when it is contended that:-

Paragraph 2.15:

18 Trial Bundle Vol II, P191.

34

“In the present matter, the First Respondent in identifying the Fourth

Respondent did not improperly exercise his power. He simply possessed no

conferral of powers to identify the traditional leaders.”

This submission, in my view, is not in contrast with the Applicant’s version in

the main. It actually consolidates the fact that Mulweli Khamusi Davhana was

not entitled, in terms of prevailing custom, to have “identified” the Fourth

Respondent during the royal council meeting held on 08.04.2007. It was this

purported identification that was fraught will illegality and therefore invalidated

the process so to speak.

[57]. The power exercises by the Fifth Respondent in deciding on issues

Of the recognition of traditional leaders, as defined, falls squarely within the

province of administrative justice governed by the Promotion of Administrative

Justice Act 200019 (“PAJA”) read with the Constitution of the Republic of South

Africa Act 1996.20 Such decisions are reviewable under normal judicial review

proceedings. This Court is therefore at large to intervene.

[58]. Counsel for the respondents also had a quarrel with the affidavit deposed to

on behalf of the Fifth Respondent in which both counsel termed it a

“clarification affidavit”. This affidavit came about as a result of the Court Order

ordained by Acting Justice C.B.Mann on 13.07.2009. In terms of this Court

Order, the learned Acting Justice Mann said that:-

19 Act 3 of 2000. 20 Act 108 of 1996, as amended.

35

Prayer 2:

“That should the Fifth Respondent wish to file any affidavit in the matter; he

shall do so by not later than 11 August 2009.” That is precisely what it did.

[59]. I must remark that it was the contents of this so-called “clarification affidavit”

that had thrown light as to the circumstances that led the Fifth Respondent to

have effected its decision as it did. Without its existence, one would not have

had the benefit to gauge as to how it came to that decision which is the nub of

this review matter. Consequently, I find therefore that the reliance by the

respondents on the principle in Southern Sun Hotels Interests (Pty) v

CCMA & Another21, does not constitute a “reliable defect”, merely because

the Fifth Respondents did not testify. In fact the Fifth Respondent interjected

merely to shed more light on the matter, rather than to opposing the

application thereby sparing the costs of opposition.

[60]. In Ouderkraal Estates (Pty) Ltd v The city of Cape Town & Others22, the

Supreme Court of Appeal per Howie P and Nugent JJA, had occasion to

consider the question whether or in what circumstances, an unlawful

administrative act might simply be ignored, and on what basis the law might

give recognition to such acts. The Court remarked at Paragraph 26 of the

Judgment as follows:

“[26].

21 2010 31 ILJ P452 22 2004(6) SA 222 (SCA)

36

For those reasons it is clear, in our view, that the Administrator’s

permission was unlawful and invalid at the outset… But, the question

that arises is what consequences follow from the conclusion that the

Administrator acted unlawfully …until the Administrator’s approval (and

thus the consequences of the approval) is set aside by a court in

proceedings for judicial review it exists in fact and it has legal

consequences that cannot simply be overlooked. No doubt it is for this

reason that our law has always recognized that even an unlawful

administrative act is capable of producing legally valid consequences

for so long as the unlawful act is not set aside”.

[61]. The apparent anomaly that an unlawful act can produce legally effective

consequences stems, in my view, from the latin Maxim Omnia praesumuntur

rite esse acta. (presumption of validity of administrative acts). It is not strange

that it has been argued in other circles that unlawful administrative acts are

voidable merely because they have to be visited with nullity proceedings.

[62]. It follows, therefore, that an administrative act is still an act capable of

producing legal results as it bears no label of invalidity upon its forehead. Save

where the necessary steps are initiated at law to establish the cause of nullity,

and to get it set aside or upset, it will remain effective and extant for its

purported purpose as the most unimpeached acts.

[63]. In a matter whose facts are analogous to the present application, Makgoba J (

as he then was) had occasion to consider whether the decision by the First

37

Respondent (“Premier Limpopo Province”) to recognize the Third Respondent

(one Ngoako Isaac Leboho) as a Senior Traditional Leader and Kgoshi of

Bahananwa Traditional Authority was done in compliance with the provisions

of Act 6 of 2005, and whether its decision to issue a certificate of recognition to

Third Respondent was in terms of applicable legislation, and rational to the

information at his disposal.23

[64]. The Learned Judge having analysed the merits of the review application

before him, and the relevant legislative framework, remarked as follows:-

[“33]

It needs to be pointed out that as a matter of law the Premier does not

have a discretionary power in regard to recognition of a Kgoshi and that

once the relevant jurisdictional conditions are present, he is in fact

compelled by law to formally recognise one as kgoshi and to formally

issue him with a certificate of recognition.”

[65]. At paragraph 34, the Learned Judge continued as follows:-

[“34].

“ The question that falls to be decided is whether the First Respondent

(the Premier) in recognising and issuing a certificate of recognition to

the Third Respondent (Ngoako Isaac Leboho) complied with the letter

and spirit of Section 12 of the Limpopo Traditional Leadership Act.”

23 Case No: 57191/2011, delivered on 15.04.2014- marked “Reportable”)

38

I must remark although orbiter that the crisp issues that preceded the review

application in that instance, were already disposed of by Raulinga J under

Case No: 37898/2007 (“Gauteng Division”). In essence, the matter was res

iudicata. The Court concluded that in that matter, the procedure followed by

the Premier then was correct and could not be disturbed. The review

application was dismissed with costs.

[66]. The principles enunciated in the preceding case regarding the procedure,

identification and qualification of a successor, and also the recognition by the

sitting Premier, were considered followed and applied by MG Phatudi AJ ( as

he then was) in Sepadi & Another v The Premier of Limpopo Provincial

Government & Others24.

[67]. On a conspectus of the facts in this matter, I am satisfied on balance of

probabilities that the decision of the Fifth Respondent in having recognised the

Fourth Respondent based on the identification by the Second Respondent in

its meeting held on 08.04.2007, was irrational, not being supported by credible

information at its disposal. In short the Fifth Respondent did not properly apply

its mind, if it did, to the facts and applicable legal framework before him before

it could issue the disputed certificate of recognition. His decision was clearly

repugnant to the principle of rationality, the Rule of law and administrative

Justice thus invalid. For the reasons outlined above, the application for review

ought to success. I accordingly pronounce an order as follows:-

24 Cases No: 1863 & 1864/2014, delivered on 13.10.2015(Marked “reportable)

39

1. The decision of the Second Respondent in terms of which the Fourth

Respondent was identified as a Senior Traditional Leader (“khosi”) in its

royal “council” meeting held on 08 April 2007,declared invalid and is

reviewed and set aside,

2. The decision of the Fifth Respondent in terms of which the Fourth

Respondent was recognized as a Senior Traditional Leader (“Khosi”) is

declared invalid and is reviewed and set aside,

3. That, the Fifth Respondent is directed and ordered to cause a meeting

of all relevant members of the Second Applicant, (“Davhana/Nesengani

Royal Family”) to be convened as a matter of urgency to properly

identify a successor to late Khosi OK Davhana in line with Act 4 of

2005.

4. That Second Applicant must thereafter within 30 days inform the Fifth

Respondent in writing of its Resolution and Minutes of the meeting

identifying a successor.

5. Further that, the Second, and Fourth Respondents are jointly and

severally to pay the costs of application on party and party scale the

one paying the other to be absolved, such costs to include costs

attendant upon the employment of counsel.

M.G. PHATUDI J

40

JUDGE OF THE HIGH

COURT OF SOUTH AFRICA,

LIMPOPO DIVISION,

POLOKWANE

REPRESENTATIONS

1. Counsel for Applicants : Adv. J.S Maake Instructed by : S.A.R. Madia

Thohoyandou

2. Attorneys for 02nd and 04th : S.O. Ravele Respondents

3. Date heard : 20.06.2016 to 22.06.2016

4. Date Delivered : 09.2016

41