In the matter between:
and
MINISTER OF LOCAL GOVERNMENT 1st Respondent
DISTRICT ADMINISTRATOR QUTHING 2nd Respondent
HLABATHE NKUEBE 3rd Respondent
ATTORNEY-GENERAL 4th Respondent
In this Application, the Applicant is seeking for a relief in the following terms:-
1. Dispensing with the rules and modes and periods of service due to the urgency of this matter.
(a) The introduction and placing of 3rd Respondent as Acting Chief of Sebapala on the 12th day of December, 2006 by 2nd Respondent pursuant to the instructions of 1st Respondent shall not be declared null and void and of no force and effect.
(b) The 3rd Respondent shall not be interdicted from exercising the powers of Chief of Sebapala pending final determination of this Application.
(c) The 1st Respondent shall not be interdicted from recommending the gazettement of 3rd Respondent as Acting Chief of Sebapala pending finalisation hereof.
(d) The instruction of 1st Respondent to 2nd Respondent contained in Savingram LG/CA/GAZ/17 dated 13th November, 2006 that 2nd Respondent introduce and place 3rd Respondent before the public under the jurisdiction of Sebapala be declared null and void.
That prayers 1 and 2(b) operate with immediate effect as interim orders.
It is common cause that the Applicant is the substantive holder of the offices of the Chief of Sebapala as well as the Principal Chief of Quthing duly gazetted for both offices. It is also common cause that on or about the 30th November, 2006 Applicant received both annexure A and B to his founding papers. The Applicant acknowledged receipt thereof by writing annexure B to the answering papers, which are letters to 14 of his area or ward chiefs informing them of the gathering for the 12th December, 2006 at 10.00 a.m. for introducing the 3rd Respondent as the Acting Chief of Sebapala.
Annexure A to the founding affidavit is a Savingram from Local Government by one M. Molapo. The author indicated that he had been instructed by the Minister of Local Government who instructed the District Administrator Quthing in terms of section 8 (1) of the Chieftainship Act, to convene a meeting for people, Chiefs and Headmen under the Principal Chief of Sebapala and Quthing. The purpose of the meeting
was to introduce, the Principal Chiefs son, one Hlabathe T. Nkuebe, the 3rd Respondent, as the Acting chief of Sebapala. The letter further showed that the Minister was so instructing the District Administrator to act as the Principal Chief of Quthing, the Applicant in this case, had failed to perform his duty of introducing the Acting Chief of Sebapala. The letter was copied to the Applicant.
Annexure C to the founding papers is a letter by the Applicant to the District Administrator (DA) informing the DA that the Magistrate in a certain CC7/2006 had decided that one Neko T.Q.S. Nkuebe was the legitimate first born son to the Applicant and as such the rightful person to act in the Principal Chiefs office at Sebapala. The letter is dated 22nd September, 2006.
What is not in dispute also is the fact that this matter is not about succession but is about the rightful person to act in the office of the Chief when the Chief is absent. The case is about whether lawful procedure was followed in introducing the 3rd Respondent as the Acting Chief of Sebapala.
Chieftainship Act No.22 of 1968 (The Act) is the piece of legislation which governs the affairs of chieftainship in this country. Section 8 thereof regulates the relationship between the Minister of Local Government and the Chiefs.
According to the Applicant, he was never ever instructed to introduce the 3rd Respondent as Acting Chief of Sebapala. He says he only received a copy of the letter which only informed him that the District
Adminstrator Quthing was instructed to introduce the 3rd Respondent to the public as Acting Chief of Sebapala. He says it was wrong to have removed him without affording him a hearing.
The Applicant is again challenging annexure A to the answering affidavit. It is a letter written by the Principal Secretary-Local Government to the Applicant, instructing him to appoint the Acting Chief for Sebapala. The letter is clear that it is the Principal Secretary who is giving the Applicant the instructions in terms of sections 5 (6) read withsection 13 (2) © of the Chieftainship Act.
Relying on the provisions ofsection 8 (1) of Chieftainship Act, the Applicant is saying that Annexure A to the answering papers above is against the terms of the provisions of section 8 (1) as the letter has not shown that the author had been instructed by the Minister of Local Government. The letter talks about the order by the author not that of the Minister. The relevant part of section 8 (1) reads:
Section 8 (1)
If that chief fails or refuses to comply with that direction or to comply with it in the manner directed, that Minister, or a person specially authorized by that Minister, or that immediately superior chief, may exercise that power or perform that duty in the manner specified in the direction.
The Applicant is saying that the 1st and 2nd Respondents have not shown before Court that he (Applicant) was ever asked to appoint an Acting Chief and that he failed or refused to so appoint him. What he is saying is that there is no proof on the papers that he was ever instructed to appoint an Acting Chief of Sebapala for the provisions of section 8 (1) to have been put into effect particularly the last part which I have quoted above.
The attitude of the Respondents is that the Appointment of the 3rd Respondent by the 2nd Respondent acting on the instructions of the 1st Respondent was lawful as it was done in terms of the law.
The Respondents rely on annexure A to Applicants founding papers where the author clearly indicated that he had been instructed by the Minister of Local Government to take over as the Applicant had failed or refused to act when the Minister instructed him to appoint the Acting Chief.
The Respondents conceded that annexure A to the answering affidavit is ultra vires the powers of the Principal Secretary as he had no authority to instruct the Applicant. Section 8 (1) of Chieftainship Act 22 of 1968 is very clear and unambiguous. Such functions belong exclusively to the Minister of Local Government. Other officers and superior chiefs can only act if only so instructed by the Minister.
However, the Respondents relying on the principle of severability enunciated in Johannesburg City Council v Chester Field House 1952 (3) S.A. showed that the good in that Principal Secretarys letter could be separated from the bad. The relevant portion in the above cited case reads:-
Where it is possible to separate the good from the bad and the good is not dependant on the bad, then that part which is good must be given effect to, provided that what remained carries out the main object.
He argued that the bad part in the letter by Principal Secretary is those words that reflected that the Principal Secretary is the author of annexure A in question. He said if those words are expunged from annexure A, the rest of the contents therein would still make sense, and that what remains is an instruction to the Applicant to appoint the rightful person to act.
It is not in dispute that such an instruction can only be lawfully made by the Minister of Local Government. This has been the intention of the Legislator in terms of section 8 (1) of the Act. We are not here dealing with a common law provision but the statute whose provisions have to be strictly adhered to if we are to give effect to them. Annexure A to the answering affidavit is therefore ultra vires the powers of the Principal Secretary and therefore unlawful. The author had no repository powers to have given such an instruction.
The next question would be whether it can be said that the Applicant was ever instructed by the Minister to appoint the Acting Chief, and if so whether the Applicant failed or refused to appoint such a person. To make this point even clearer, the Respondents are saying it should not just be appointing any person to act, but that such an appointment has to be in terms of the law.
The Respondents are supporting their argument by relying on the relevant provisions of section 13 as amended by section 3 of Chieftainship (amendment) Act 7 of 1974, of the Chieftainship Act 1968. The section deals with the person whom the Chief has to appoint to act on his behalf. Section 13 is not to be read in isolation but to be read together with section 5 (1) (5) (6) and (7). The two sections read together show that a chief is not empowered to designate any person outside the line of succession to act as Chief in his absence.
This was the decision arrived at by the Court of Appeal in 2006 in C of A (CIV) No.38 of 2005The Principal Secretary Local Government and Another v Tsepo Sempe Qefate Nkuebe & 3 Others. This was an appeal from a High Court decision on the issue of whether a Chief within the meaning of the Chieftainship Act 1968 (the Act) have the liberty to designate any person outside the line of succession to act in his place during his absence? The trial Court had said, yes the Chief can designate anybody of his choice to act. It is interesting to observe that the 1st Respondent in the above case was none other than the present Applicant.
At page 13 para 17 of that judgment the Court of Appeal made a finding that it was not in dispute that the 1st Respondents son, Hlabathe had the first right to succeed to the office of the Principal Chief Quthing as well as the office of Chief of Sebapala.
The Respondents have at para 7.1 of the answering papers shown that the 3rd Respondent has, as the Applicants 1st son, been pronounced as the right person to succeed to the office of the Principal chief of Quthing as well as the Office of Chief of Sebapala in C of A (CIV) No.38 of 2005supra. But in reply to that, the Applicant at para 5 responded by arguing that it is misleading to give the impression that there was ever a pronouncement that 3rd Respondent had a right to succeed to those two offices. He says thatC of A (CIV) No.38 of 2005 was not about succession but whether persons who had been appointed to act were entitled to be paid.
The Applicant goes further to say there was no way in which the issue of the right to succession could have been determined in that case as the 3rd Respondent was not even a party in those proceedings.
I must mention here that I have read that judgment and find that if there is anybody who is misleading the Court is the Applicant. True enough, the case involved payment of people whom the Applicant had left to act on his behalf and to make a determination on whether they were the rightful people to have been appointed, the question of right to succession in terms of the Chieftainship Act had to be discussed and determined, and indeed it was determined.
Coming back to the issue of whether the Applicant was in terms of the Act once instructed by the Minister of Local Government to appoint a person to act on his behalf; I have already shown that, annexure A to the answering papers can not be considered as a lawful instruction as Principal Secretary Local Government was or did not show that he had been duly instructed by the Minister so to write that letter. He had no such powers to have directly instructed the Applicant outside the authorization by the Minister.
Looking at Paragraph 8 of the Applicants founding affidavit, his position has been very clear that in terms of annexure C attached to his affidavit he could not appoint the 3rd Respondent to act in his absence. Applicant had written to the District Secretary telling him of the judgment by the Magistrate Quthing which declared Neko T.Q.S Nkuebe as his first born legitimate son in terms of the Chieftainship Act 1968. He showed in that letter that Neko was the rightful person to act on his behalf in both his offices.
It would seem that when the Magistrate made determination on the 18th April, 2006 it was at the time that C of A (CIV) No.38 of 2005 was being argued before the Court of Appeal and judgment delivered on the 11th April, 2006. The Magistrate could therefore not have been aware of that decision as it had only been delivered a week ago.
It is true that the Court was seized with payment of people whom the Applicant had left to act at his two offices. Before determining the question of their remuneration the issue of whether they were the right people who were entitled to act in terms of the law had to be looked into first. That is why the Court of Appeal dealt with the question of who in terms of the provisions of Chieftainship Act can lawfully be designated to act in the absence of the Chief.
Annexure A to the founding papers is very clear in showing that it was the Applicants duty to have appointed the rightful person to act but he refused. Section 8 (1) of that Act empowers the Minister of Local Government to act where the Chief has failed to do his duty. It is therefore not correct to say that first Respondent was usurping the powers which she did not possess. She could act herself or authorize those below her to act through her instructions.
Annexure B to the answering affidavit by Mikia Molapo as Director in the directorate of Chieftainship Affairs, is a copy of letters written by the Applicant inviting 14 chiefs answerable to him for a meeting or gathering for introducing his son Hlabathe, 3rd Respondent, as acting Chief on his behalf. The letters were written on 5th December, 2003 but today he is challenging that acting appointment.
The Court of Appeal even made an observation at the beginning of its judgment that the Applicant, who was the first Respondent in that Appeal, has been engaged in a running battle with the Ministry of Local Government over Chieftainship issues. Two such cases came to mind in that judgment.
There has to be an end to litigation and according to my observation there has to be an end to this litigation as well. There has already been a determination on this matter if one looks at the Court of Appeal decisions on this matter.
It is clear that the Applicant had all along been asked to appoint the rightful person to act at his office at Sebapala and has failed to do that. His reason being that the 3rd Respondent is not the rightful person but his other son Neko. He can therefore not be heard to say that when the 1st Respondent so instructed the 2nd Respondent to act in introducing the 3rd Respondent as Acting Chief and even informing the Applicant, was usurping the powers she did not have. She was empowered under
section 8 (1) of the Act as shown above. The procedure that was followed in introducing the 3rd Respondent was a proper procedure under the Chieftainship Act.
I therefore find nothing contrary to law governing the Affairs of Chiefs with what was done by the 1st Respondent in this case.
The Application is thus dismissed.
Coming now to the question of costs. This case though it involves the Ministry of Local Government but is actually a family matter between father and son. I would therefore not wish to strain their relations by making an award of costs.
There will be no order as to costs.
A. M. HLAJOANE
JUDGE
For Applicant: Ms Thabane
For Respondents: Ms Mohapi
