ACTING traditional leaders and regents in Limpopo continue to rake in hundreds of thousands of rands each in salaries in violation of the law that requires the Premier to review their recognition every 12 months.
In response to African Times enquiries, Premier’ spokesperson Kenny Mathivha said: “What we know now is that no traditional leader has ever been subjected to a review process in the province. So, we are studying the rule and getting legal advice, so we can move on to the future carefully.”
The revelation comes hard on the heels of a Polokwane High Court judgement which observed that Kenneth Kgagudi Sekhukhune, the Acting Paramount Kgoshi of Sekhukhuneland, has no “clear right relating to the protection or otherwise of his purported subjects.
“For the purposes of a clear right, first applicant (KK) has no subjects; and cannot approach court on alleged clear right which is legally non-existent. The court cannot protect an illegitimate authority or right.”
This has so far left KK without any authority either as the Acting Kgoshi of Marota Mohlaletsi and Acting Paramount Kgoshi of Sekhukhuneland.
The matter flows from a battle to make final an interim order issued by the same court on 23 June 2017 against Piet Mmatanyane Senong from holding any meeting or gathering within the area of jurisdiction of the Sekhukhune Tribal Council. The Council was cited as the second applicant.
The interim order also prohibited Senong from interfering in the executive structures of the Tribal Council. The matter was returned to court on 15 November 2017.
In the hearing, Senong abandoned certain points and preferred to argue the merits of the application. One of the points abandoned was lack of locus standi on the part of the applicants.
In support of the application, KK was required to satisfy three requirements – the existence of a clear right, the infringement of the said right and the absence of adequate remedy to protect the said right.
In support of this, KK in his founding affidavit attached a certificate of appointment dated 26 October 2000. He stated that his clear right emanated from the positions which he holds as Acting Kgoshi of Marota Mohlaletsi traditional authority and Acting Paramount Kgoshi of Sekhukhuneland.
But the court, in its judgement dated 14 December 2017, found that although he was appointed as an Acting Kgoshi in terms of the now repealed Black Administration Act 38 of 1927, his appointment is regulated in terms of Limpopo Traditional Leadership and Institutions Act 6 of 2005.
The Limpopo Traditional Leadership and Institution Act stipulates that “the Premier must review the appointment of the acting traditional leader every 12 months”.
KK has never subjected himself to review since the coming into operation of the Act on 1 April 2006. The first review should have taken place in April 2007 and thereafter every subsequent year.
In his judgement, Judge AJ Sikhwari stated: “In this case, there was no affidavit of the second applicant (Sekhukhune Tribal Council). There was no resolution or any document showing that the second applicant has authorised the proceedings on its behalf or has mandated the first applicant (KK) to act on its behalf or to sign affidavits on its behalf. Effectively, there was no evidence of the second applicant before the court. The second applicant was effectively not before the court.
“In my view, the first applicant should have caused the Premier to review his appointment as envisaged in Act 6 of 2005. Therefore, all the prayers of the applicants’ notice of motion cannot be granted. The first applicant has no clear right relating to the protection or otherwise of his purported subjects. For the purposes of a clear right, first applicant has no subjects; and cannot approach court on alleged clear right which is legally non-existent. The court cannot protect an illegitimate authority or right.
Sikhwari further stated: “Applicants are shifting the blame to the Premier for failure to conduct the review of the appointment of first applicant every 12 months. Applicants have a duty to initiate the process.
“If the Premier is dragging his feet, applicants may even approach court for relief to enforce compliance with the enabling legislation.
“If the appointment is not reviewed after the expiry of the 12 months’ period, then the appointment will automatically lapse by operation of the law.”
The judgement has now provided impetus to efforts by the Mphahlele Royal Council to remove Sophia Ngwana-Mohube Phatudi-Mphahlele as the regent of the Bakgaga-ba-ga- Mphahlele in Limpopo.
The Council has since writtena letter dated 8 January 2018 to the Department of Cooperative Governance, Human Settlements and Traditional Affairs (COGHSTA) to stop the remuneration of the regent. However, the removal of the regent is still the subject of a bitter case in the Polokwane High Court.
It was against this background that officials of COGHSTA did not honour an invitation to a meeting with the Council to discuss the removal of the regent in December 2017.
What the law says
Limpopo Traditional Leadership and Institutions Act 6 of 2005 stipulates:
14 Recognition of regents
(1) Where the successor to the position of king, queen, senior traditional leader, headman or headwoman is still regarded as a minor in terms of applicable customary law or customs-
(a) the royal family concerned must, within a reasonable time-
(i) identify a regent to assume leadership on behalf of the minor; and
(ii) through the relevant customary structure, inform the Premier of the particulars of the person identified as regent and the reasons for the identification of that person; and
(b) the Premier must, with due regard to applicable customary law or customs, and subject to subsection (2)-
(i) by notice in the Gazette recognise the regent identified by the royal family in terms of subsection (1);
(ii) issue a certificate of recognition to the regent so recognised; and
(iii) inform the provincial house of traditional leaders and the relevant local house of traditional leaders of the recognition of the regent concerned; and
(c) The Premier must review the recognition of a regent every 12 months.
(2) Where there is evidence or an allegation that the identification of a person as regent was not done in accordance with customary law, customs or processes, the Premier-
(a) may refer the matter to the provincial house of traditional leaders and the relevant local house of traditional leaders for their recommendations; or
(b) may refuse to issue a certificate of recognition; and
(c) must refer the matter back to the royal family for reconsideration and resolution where the certificate of recognition has been refused.
(3) Where the matter which has been referred back to the royal family for reconsideration and resolution in terms of subsection (2) has been reconsidered and resolved, the Premier must recognise the person identified by the royal family if the Premier is satisfied that the reconsideration and resolution by the royal family have been done in accordance with customary law.
(4) The regent recognised in terms of subsection (1) must relinquish his or her position as regent within three months after the successor to the position reaches his or her 25th birthday, and the successor must in the case of a senior traditional leader, headman or headwoman, be recognised by the Premier in terms of section 12.
15 Recognition of acting traditional leaders
(1) A royal family may, in accordance with the customary law of the traditional community concerned, identify a suitable person who must be a member of the royal family to act as a king, queen, senior traditional leader, headman or headwoman, as the case may be,
(a) a successor to the position of a king, queen, senior traditional leader, headman or headwoman has not been identified by the royal family concerned in terms of this Act;
(b) the identification of a successor to the position of a king, queen, senior traditional leader, headman or headwoman is being reconsidered and resolved in terms of this Act; or
(c) a king, queen, senior traditional leader, headman or headwoman, as the case may be, would be absent from his or her area of jurisdiction under circumstances other than those provided for in section 16(1) and for a period of more than six months for-
(i) the treatment of illness;
(ii) study purposes; or
(iii) any other lawful purpose.
(2) The Premier must, upon appointment of an acting traditional leader in terms of subsection (1)-
(a) issue a certificate of appointment; and
(b) inform the provincial house of traditional leaders and the relevant local house of traditional leaders.
(3) The Premier must review the appointment of the acting traditonal leader every 12 months.
(4) The Premier must upon request by the royal family remove any person appointed in an acting capacity.