SCA rules in favor of Moipone Moroka against Free State Premier

The Supreme Court of Appeal (SCA) has on Thursday, 31st March 2022, reviewed,and set aside the decision by the Free State Premier to refer the dispute regarding the senior traditional leadership of Barolong Boo Seleka to the Commission of Traditional Leadership Disputes and Claims before affording the Free State House of Traditional Leaders has dealt with the dispute.
 
This followed the Free State Division of the High Court, Bloemfontein (the high court) found that the Premier did not contravene the Act and dismissed the application with costs. 
 
After the high court dismissed her application with costs, Moipone Moroka sought leave to appeal and raised a further ground of appeal that the commission had no authority to investigate and make recommendations to the Premier regarding the Barolong Boo Seleka senior traditional leadership. She relied on A 25(5) of the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (the Amendment Act). Based on this, the high court granted leave to this court.
 
The Premier of the Free State argued that the matter has become moot in that the son of the sixth respondent, Mr. Letshego Archibald Moroka, has already been identified as a legitimate successor. Furthermore, the Premier has appointed Mr. Samuel Lehulere Moroka (Letshego’s uncle) as a regent until Letshego is ready to ascend the throne.

Moipone Moroka, on the other hand, contended that the findings and recommendations of the Commission did not mention the name of Kingsley Moroka. According to Moipone, the findings of the Commission were, in essence, confined to the identification of the rightful ruling house of the Barolong Boo Seleka as the house of Richard Maramantsi.

Consequently, while it may be open to the Barolong Boo Seleka Royal Family to nominate another person to fill the vacancy, the Commission’s report dictated that such a person should come from the house of Richard Maramantsi and not the family of Kgosi Tsipinare that had for at least 137 years been the royal family of Barolong Boo Seleka.

BACKGROUND:

There appears to be a lengthy history of leadership contestation between the Barolong Boo Seleka Royal Family and the Barolong Boo Seleka Royal Khuduthamaga. This contestation dates back to the 1880s when the traditional leadership moved from one lineage to another. During the 1880s, Kgosi Moroka II married a woman by the name of Nkhabele who came with a child named Tshipinare.

Therefore, Tshipinare became the stepson of Kgosi Moroka II. Tshipinare grew up to be a brave warrior and saved his stepfather Kgosi Moroka’s life in the war against the Basotho. As a result, Kgosi Moroka II decided that Tshipinare should be his successor. It is from this time that the traditional leadership of the Barolong Boo Seleka vested in the Tshipinare’s lineage until the passing on of Kgosi Ramokgopa Moroka in 2011.
After the passing of Kgosi Ramokgopa, the royal family identified Kgosana Gaopalelwe Moroka, the appellant’s brother, as a successor.

However, Kgosana Gaopalelwe had, at that stage, not yet reached maturity and his mother, Kgosigadi AGG Moroka, Kenosi’s mother, was identified as the Regent. It seems that the other faction, led by the sixth respondent, the late Kingsley Sehunelo Moroka, objected to this and wrote a letter to the Premier in pursuit of its objection.

Justice Fikile Mokgohloa found Moipone’s matter to have merit.
“I find the appellant’s contention to have merit. Her attack on the findings and recommendation of the Commission was not in respect of a specific person recommended but of the house or bloodline the traditional leadership had to follow. Therefore this issue is still alive and has to be dealt with.”
 
The bone of contention is whether the commission had authority and why the Free State House of Traditional Leaders was overlooked.
 
Justice Mokgohloa further raises a question both the commission and premiere could not answer.
“As requested by the Premier, the Commission met, investigated the dispute, and made its findings that the rightful ruling house is the house of Setilo whose descendants were from the house of Ramantshi Richard. The Commission, therefore, recommended that the royal house identify a candidate from the house of Setilo to succeed Kgosigadi Gaopalelwe Moroka. The Commission’s recommendation had the far-reaching effect of wresting the traditional leadership from the house of Tshipinare which had ruled since the 1880s.
 
Of importance in this regard is the question posed by the Commission itself: can the chieftainship be reversed and, if so, after how long? Curiously, the Commission refrained from answering this question and instead left it to the Premier to answer. Based on this report, the Premier, without answering the question posed by the Commission, advised the royal family that he recognizes the sixth respondent as the senior traditional leader of Barolong Boo Seleka.”
 
“The appellant contended that the Commission had no authority to investigate the dispute because it did not arise from what transpired on 1 September 1927 or thereafter but rather from what transpired in the 1880s, long before the cut-off date, ie 1 September 1927. The Premier, on the other hand, argued that the dispute did not arise in the 1880s, but 2011 when Kgosi Ramokgopa died.
 
The Premier submitted that in trying to resolve the dispute, the Commission had to look into the evidence dating back before 1 September 1927; this, however, does not, imply that the dispute itself arose before 1 September 1927. I agree with the Premier’s submission. The dispute arose in 2011 when the rival group led by Kingsley Moroka opposed the appointment of Kgosigadi Gaopalelwe Moroka as the successor to Kgosi Ramokgopa.” Reads the judgment.
 
Justice Mokgohloa agreed with Moipone Moroka in her argument that the commission did not have the authority.
 
“The cardinal question relating to A 25(5) of the Amendment Act is the phrase ‘may not. The appellant argued that this phrase means ‘shall not’ whilst the respondent argued otherwise. The basic tenet of statutory interpretation is that the words used in the statute must be given their ordinary meaning unless a contrary intent is manifested from the statute itself. In doing so, the language used is construed in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; and the apparent purpose to which it is directed.

I agree with the first respondent’s submissions that as a general rule the word ‘may’ in a statute confers the power to exercise discretion. However, in the present matter, the power to exercise discretion is couched in the negative which, in my view, in effect, takes away the power to exercise discretion. Simply put, on a purposive and contextual construction of s 25(5), the phrase ‘may not’ means that the Commission did not have the necessary authority to deal with the dispute referred to it after six months of coming into operation of the Amendment Act.

As stated earlier, the Amendment Act came into operation on 1 February 2010. The dispute in question was referred to the Commission in 2014. Therefore the Commission had no authority to deal with this dispute and the appeal should consequently succeed on this point.”
 

In handing the judgment Justice Mokgohloa made the following order was:
The appeal is upheld with costs.
The order of the high court is set aside and replaced with the following:
The findings and recommendations of the Commission on Traditional Leadership Disputes and Claims (the Commission) concerning the senior traditional leadership position of Barolong Boo Seleka published on 29 February 2016 are reviewed and set aside.

The decision of the Premier of the Free State Province to accept the findings and recommendations of the Commission is reviewed and set aside.
The first respondent is ordered to pay the costs of this application.
 
Sello Pietersen, spokesperson for Free State Premier and Sello Dithebe, spokesperson for MEC for COGTA did do not respond to our questions.

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