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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 43/2007

In the matter between:

MOKGWATLHENG MOKETE Applicant

And

THE HONOURABLE MAGISTRATE MR. W.M. KHUNOU 1^st Respondent

PUTU THOKOZULE ROSYLINE 2^nd Respondent

_________________________________________________________________________

REASONS FOR JUDGMENT IN ACCORDANCE WITH RULE 49(1)(c)

_________________________________________________________________________

NKOSI-THOMAS AJ

INTRODUCTION

1. On 28 February 2008, I made an order that:

[1.1] this application be and is hereby dismissed with costs;

[1.2] that the reasons for the above order will be furnished to any of the parties on application, and that such application was to be delivered within ten (10) days of the above order.

2. On 3 March 2008, a request in accordance with Rule 49(1)(c) was made on behalf of the Applicant.

3. That application came to my attention for the first time on 11 April 2008 after I had made enquiries to that effect with the office of the Registrar of this Division.

4. The reasons for the orders I made now follow.

5. The Applicant seeks relief, inter alia:

[5.1] in the form of a review of the decision of the First Respondent of 7 April 2006 upholding an appeal noted in terms of section 9(2) of the Bophuthatswana Traditional Courts Act 29 of 1979, as amended (“the Act”); and

[5.2] directing the Second Respondent to pay the costs of the application.

6. The grounds of review relied upon by the Applicant are the following:

[6.1] the First Respondent failed to take into account admissible evidence [cf: paragraph 54 of the founding affidavit];

[6.2] the District Court for tribal appeals was not properly constituted [cf: paragraph 56 of the founding affidavit];

[6.3] the judgment of the District Court for tribal appeals was not delivered in terms of the provisions of section 9(4) of the Act [cf: paragraph 59 of the founding affidavit]

[6.4] failure by the First Respondent to exercise his discretion properly [cf: paragraphs 6, 7.4 and 7.5 of the founding affidavit];

[6.5] the First Respondent was biased against the Applicant in favour of the Second Respondent, and also descended into the arena of conflict and was malicious in his conduct [cf: paragraph 76]; and

[6.6] the First Respondent’s consideration of the law was flawed or his findings were not borne out by the evidence [cf: page 80, founding affidavit]

7. In paragraph 14, of the First Respondent’s answering affidavit, he denies the Applicant’s allegation contained in paragraph 6.1 above.

8. Insofar as the grounds relied upon as set out in paragraphs 6.2 and 6.3 above, the First Respondent¹:

[8.1] concedes that the appeal court consisted only of himself and did not include the two (2) additional members mentioned in section 9 of the Act;

[8.2] concedes that by sitting as he did, he acted in conflict with the provisions of section 9(1), 9(2) and 9(4) of the Act²; and

[8.3] avers that the sections relied upon by the Applicant constituted an amendment in terms of which the President was enjoined to appoint two (2) additional members³ for every area of a traditional authority. No such appointments were ever made by the President in respect of the traditional authority with the result that the amendment never took effect.

9. Insofar as the ground articulated in paragraph 6.4 above is concerned, the First Respondent avers that:

[9.1] the powers of a magistrate hearing an appeal from a tribal court can be divided into three (3), namely:

[9.1.1] the power to decide the matter one way or the other on the papers before the court;

[9.1.2] the power to remit the matter to the district court for a retrial or the leading of further evidence;

[9.1.3] the power to set aside the matter and hear it de novo.

[9.2] as both the Applicant and the Second Respondent were represented before the First Respondent it was open to them to apply for that the matter be so remitted or heard de novo. None of them did so⁴.

10. The allegations contained in paragraphs 6.5 and 6.6 above are denied by the First Respondent⁵.

11. The background facts against which this matter arises are largely common cause, and are these:

[11.1] the Applicant and the Second Respondent are in despite concerning the Second Respondent’s occupation of a certain immovable property situate 616 Ramogotsi Section (“the property”);

[11.2] as a result of the above, the Applicant first lodged a complaint with the family clan known as Kutle Yoo RraPutu, which referred the dispute to Chaneng Kgotla for resolution;

[11.3] the Chaneng Kgotla confirmed that the Second Respondent should vacate the property;

[11.4] the Second Respondent, however, refused to vacate the property;

[11.5] that resulted in the matter being referred to the tribal court on 24 December 2005;

[11.6] the tribal court confirmed the decision of the Chaneng Kgotla that the Second Respondent be evicted from the property;

[11.7] the Second Respondent then noted an appeal against the decision of the tribal court on 11 February 2005;

[11.8] the appeal was heard by the First Respondent in these proceedings, who upheld the said appeal.

12. At issue for consideration in the appeal was the question whether the Second Respondent, the widow of the late Modisane Daniel Putu (“the deceased”) was entitled to inherit the property from the deceased.

13. The Second Respondent was the third wife to the deceased.⁶ The first wife of the deceased, one Mmatebo Putu passed away and the second wife, Mmadira Putu, is divorced from the deceased.

14. The Applicant is the daughter of the deceased from his first wife, Mmantebo Putu.

15. I now turn to the grounds of review as set out above, in turn.

16. Insofar as the first ground set out in paragraph 6.1 above, that being that the First Respondent failed to take into account admissible evidence he denies same in his answering affidavit.

17. That portion of the case falls, in my view, to be resolved in accordance with the principles set out in the Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd⁷ case. Applying the dicta therein contained, that ground falls to be dismissed inasmuch as it falls to be decided on the basis of the version of the Respondent. Further, it is clear from the judgment and the reasons⁸ proffered by the Second Respondent that he had regard o all the evidence put before him. This assertion is, accordingly, not borne out by the evidence.

18. The grounds contained in paragraphs 6.2 and 6.3 above can be dealt conveniently together, inasmuch as they are both premised on the assertion that the appeal court was not properly constituted and hence, it lacked the jurisdiction necessary to hear the appeal.

19. The First Respondent’s powers sitting as the appeal court in respect of appeals from tribal court are derived from the terms of the Act.

20. Section 9 thereof provides that:

“9 Appeals from tribal court-

(1)(a) There shall in each district be a special court, consisting of the magistrate of such district as well as two additional members appointed under paragraph (b), which shall, as court of appeal, hear and, subject to the provisions of subsection (3), determine, any appeal brought in terms of subsection (2) against any decision, jurisdiction of which is situate within such district.

1. The additional members of a court of appeal referred to in paragraph (a)- hereinafter referred to as a district court for tribal appeals- shall be persons who have special knowledge of, or special qualifications or experience in matters regarding, the laws and customs of the tribes resident within the district in question, and shall be appointed by the President for such period and on such terms and conditions as shall be specified in the letter of appointment issued to each such member at the time of his appointment.

2. Any party to a civil case and any accused in a criminal case determined by a tribal court in terms of sections 5 and 6, respectively, may, in accordance with the procedure as prescribed from time to time by regulation under section 13, lodge with the magistrate of the district within which is situate the area of jurisdiction of the tribal authority for which such tribal court exists, an appeal against any decision, judgment, order or sentence given, made or imposed by such tribal court in such a case.

2. When dealing with any appeal brought before it in terms of subsection (2), a district for tribal appeals may-

1. In its determination of the matters in issue, confirm, alter, amend, correct or set aside any decision, judgment, order or sentence given made or imposed by the tribal court a quo and make any such order as the interest of justice may require in the circumstances; or

2. Suspend the proceedings before it and remit the case to the tribal court a quo for the hearing of evidence or further evidence in regard to such or aspects as the district court for tribal appeals may direct and for re determination of such case after having duly taken account all such evidence as have been so heard by it: Provided that, where any party to the appeal adduced before the tribunal court a quo, the relevant district court for tribal appeals shall suspend such proceedings and remit the matter to such tribal court in order that it may hear such evidence and reconsider its judgment with due regard thereto;

3. Set aside or annul the determination of the case in question by the tribal court a quo, and hear and determine such case de novo in all respects, as if it were the tribal court a quo.

2. Any decision judgment or order which, in the course of dealing with and for the purpose of disposing of an appeal brought in accordance with the provisions of sub-section (3), is agreed upon by at least two of the members of a district court for tribal appeals, shall for all purposes in law be a decision, judgment or order of that court: Provided that all questions or disputes regarding procedural matters or matters regarding jurisdiction or involving the applicability, application or interpretation of any rule of the common law or any statute, shall be decided only by the chairman of the district court for tribal appeals.

2. The execution of any judgment, order or sentence given, made or imposed in any case in relation to which an appeal is lodged or pending in terms of this section shall be stayed pending the finalisation of such appeal.”

21. It is clear from the above that the court of appeal, within the contemplation of section 9(1)(a), ought to be constituted by a district magistrate and two additional members, appointed in terms of section 9(1)(b) by the President.

22. It is common cause that that was not the constitution of the court of appeal of which the First Respondent was part.

23. The First Respondent avers that no additional members were at any stage appointed by the President⁹.

24. The First Respondent avers, furthermore, that the Applicant was legally represented at the proceedings before him and at no stage whatever did her legal representative take issue with the constitution of the court of appeal¹⁰.

25. It seems to me that this aspect of the case falls to be determined with reference to the principle of waiver, on the one hand, and the doctrine of submission, on the other hand.

26. The Applicant having acceded and submitted to the jurisdiction of the court of appeal as was constituted at the time, cannot now be heard to be taking issue with its constitution.

27. Election and waiver are overlapping concepts. The term waiver “is an imprecise one which can be used in different senses”¹¹.

28. The general principle is, however, clear and may be summarised as follows: where inconsistent remedies exist and where a party indicates an intention to forego one of those legal remedies, such abandonment will be given effect to under the guise of “a waiver of rights” or the doctrine of election.

29. In Hlatshwayo v Mare and Deas 1912 AD 242, De Villiers JA explained the principles as follows:

“If we look at the root of the word acquiescence it means to quiesce or rest in (berusten) the judgment. None of the writers has analysed what this exactly means, but from the above it would seem that to constitute acquiescence there must be consent either in act or word … Whether then we base the doctrine of acquiescence on the consent which is implied or the choice which is exercised, or call it waiver makes no difference. At bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another, or as is commonly expressed, to blow hot and cold, to approbate and reprobate”. (Underlining for emphasis)

30. In Chamber of Mines of South Africa v National Union of Mineworkers 1987 (1) SA 668 (A) at 690G, the Appellate Division formulated the principle in similar terms:

“One or other of two parties between whom some legal relationship subsists is sometimes faced with two alternative and entirely inconsistent courses of action or remedies. The principle that in this situation the law not allow that party to blow hot and cold is a fundamental one of general application.”

31. Differently expressed, the underlying principle is that a party ‘who has once approbated cannot thereafter reprobate’¹².

32. The requirements for waiver are that ‘dit moet duidelik blyk dat die betrokke persoon opgetree het met behoorlike kennis van sy regte en dat sy optrede teenstrydig is met die voortbestaan van sodanige regte of met die bedoeling om hulle af te dwing’¹³. However, the test to determine whether there has been an intention to waive is objective rather than subjective. The consequences of such an objective test have been explained as follows by the Supreme Court of Appeal¹⁴:

“That means, first, that intention to waive, like intention generally, is adjudged by its outward manifestations …; secondly, that mental reservations, not communicated, are of no legal consequence …; and, thirdly that the outward manifestations of intention are adjudged from the perspective of the other party concerned, that is to say, from the perspective of the latter’s notional alter ego, the reasonable person standing in his shoes”.

33. The outward manifestation of intention may consist of “words; or some other form of conduct from which the intention to waive is inferred; or even of inaction or silence where a duty to act or speak exists.”¹⁵

34. In the present circumstances, the Applicant acquiesced in the proceedings before the First Respondent. She accepted, throughout, the constitution of the appeal tribunal until a finding adverse to her was returned. In doing so, the Applicant waived any right to object to the constitution of the appeal tribunal. Having approbated, the Applicant cannot now be permitted to reprobate.

35. The second hurdle in the way of the Applicant is the doctrine of submission. Where a person who would not otherwise be subject to the jurisdiction of a court submits himself to the jurisdiction either by positive act or negatively, by not objecting to the judgment of that court he may, in certain instances, confer jurisdiction on the court.¹⁶

36. A submission to jurisdiction once made cannot be revoked¹⁷.

37. This is a further reason why, in my view, the non-compliance with the provisions of section 9 cannot avail the Applicant at this stage.

38. Insofar as the ground set out in paragraph 6.4 above is concerned, I can find no support, on these papers, for the assertion that the First Respondent failed to exercise his discretion as was expected of him.

39. The First Respondent had before him the record of the proceedings before the tribal court. He applied his mind thereto and returned a written judgment based thereon. It is clear, ex facie the record, that no less than ten witnesses testified before the tribal court. All of this evidence was before the First Respondent. It can hardly be said that this was not taken into account. I consequently find that this ground is not meritorious.

40. I deal with the grounds set out in paragraphs 6.5 and 6.6 together.

41. Insofar as the allegation of bias is concerned, I am satisfied that it similarly is not meritorious. it is founded on argumentative and conclusive material where no proper foundation for such conclusion has been laid¹⁸. No shred of evidence has, by way of example, been adduced in support of the allegation that the First Respondent descended into the arena of conflict, except for the sweeping statements made in that regard.

42. The ground set out in paragraph 6.5 to the effect that the First Respondent committed an error of law is not borne and by the evidence.

43. In the circumstances, I granted the order to which I have set out in paragraph 1 above.

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L NKOSI-THOMAS

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 27 February 2008

DATE OF JUDGMENT : 29 February 2008

DATE OF REASONS : 27 August 2008 (11 September 2008)

COUNSEL FOR APPLICANT : Adv. Nameng

COUNSEL FOR RESPONDENTS : Adv. Gutta

ATTORNEYS FOR APPLICANT : Kgomo Mokhetle & Tlou Attorneys

ATTORNEYS FOR RESPONDENTS : State Attorneys (Mafikeng)

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