FRANCISTOWN: Justice Zibani Makhwade will on August 28 deliver ruling over the Zwenshambe village chieftainship crisis.
The applicant, Dingaan Mulale is seeking a declaratory order to the effect that the position of chief or headman of record for Zwenshambe village is assumed by way of elections by residents of Zwenshambe.
In addition, he is seeking a declaratory order that the community of Zwenshambe have the right to elect their chief or headman of record.
Mulale also wants the court to declare that the decision taken by the Minister of Local Government on June 6, 2008 that the chieftainship of Zwenshambe belongs to the Chabale ward be declared null and void. The respondents in the matter are Kgosi Fredah Mosojane and Moses Mabutho. Mabutho is the headman of Chabale ward. Initially the application was against the Attorney General (AG) representing the Minister of Local Government and Mosojane but the AG withdrew her opposition and filed a notice to abide by the decision of the court.
Making the applicant’s final submissions, counsel Gabriel Komboni said that the withdrawal of the AG means that she conceded that the minister’s decision in which she ruled in favour of Chabale ward is wrong and should be set aside.
Komboni said the applicant has locus standi to institute proceedings on behalf of seven other wards because they had signed a resolution on November 26, 2008 supporting his move.
He added that the respondents’ bone of contention is that the same signatures on the resolution are not authentic but they did not bring any expert evidence to disprove the same signatures.
“In 1979, the Zwenshambe community elected one Masilo Ngulubane to be chief for the whole village. One of his opponents was one Alfred Phusumane of Chabale ward. Ngulubane held the post until his resignation in 2007 due to ill health,” said Komboni.
On April 27, 2007, the District Commissioner (DC) in the North East convened a meeting in Zwenshambe. At the same meeting, 89 people voted in favour of continuing with the election of the chief of Zwenshambe while 44 voted that the Chabale ward should provide the chief for the whole village, said Komboni.
He added that by a letter dated May 18, 2007 the tribal authority of North East designated May 25, 2007 as the date upon which the Zwenshambe community shall elect their chief.
“Subsequently, by letter dated May 23, 2007, the same office postponed the election for the chief indefinitely. By a letter dated June 6, 2008 authored by the Permanent Secretary (PS) in the Ministry of Local Government (MoLG), the minister ruled that the chieftainship of Zwenshambe was the preserve of the Chabale ward,” Komboni said.
“…The applicant has clearly shown that he has interest in his capacity as headman of Mulale ward within Zwenshambe and also as delegated by seven wards,” said Komboni. Komboni said there is no truth that there was a chief from Chabale ward who served as both headman of Chabale and overall chief for Zwenshambe.
He said then DC Ambrose Masalila gave evidence regarding how the process of election came about.
“Such an election would not have been endorsed by government if there was a chief in place for the whole of Zwenshambe… We submit that the meeting of the DC on April 27, 2007 where the community of Zwenshambe endorsed the practice of electing their chief by elections is binding and effective,” said Komboni.
In conclusion, Komboni said the respondents sat on their rights for 28 years, as they did not oppose Ngulubane who became chief following an election.
“In terms of the Prescriptions Act, legal action should have been taken within three years. Their claim as prescribed came after 28 years and should not be condoned by this court.” On the other hand, attorney Tshekiso Tshekiso for the respondents said that the application sought by the applicant is a judicial review.
“This was the finding of the court when the applicant sought to argue that the application is not judicial but an application for a declaration of rights. No appeal was recorded against or either decision of the court to that effect. The submissions shall therefore proceed on the basis that there is no dispute as to the nature of the application before court,” said Tshekiso.
He said the central issue to the application for judicial review is the office of Zwenshambe chieftainship, which Mabutho has since occupied 2009.
Tshekiso said on June 22, 2007, a letter was written to the MoLG and signed by seven ward heads.
He said the letter requested the minister in her capacity to intervene in the dispute regarding the manner in which the post of headman of records shall be filled after it went vacant following the resignation of Ngulubane.
“It was only after the said meeting that the minister determined that the chieftainship of Zwenshambe belongs to the Chabale family. The decision of the minister is contained in a savingram authored by the PS to the minister dated June 6, 2008,” said Tshekiso.
He said the complaint that the minister had no jurisdiction is a second thought brought about by applicant because it did not favour him.
“If the minister had held that the post of headman should be filled by elections, we would not be faced with this application. They sought her intervention because they believed she had authority to intervene but now that she had intervened, they complain again,” said Tshekiso. Tshekiso said the minister never ruled as to who should be chief, but ruled that the office of Zwenshambe chieftainship belongs to the Chabale family.
He said that in terms of section 22 (1) of Bogosi Act, the minister is empowered to approve the appointment of any person as Kgosana by the Kgosi (Fredah Mosojane). “When the court deals with this ground of appeal, it is reminded that its power is to deal with is not a license to determine the correctness of the decision challenged in the sense that the court could have arrived at a different decision. The assignment of the court is to determine the rationality of the decision; to determine if any sensible person could have arrived at the same decision,” said Tshekiso.
He said that in the PS’s savingram, he (PS) stated that what informed his decision was the historical evidence, which demonstrated that the Chabales are the rightful heirs of Zwenshambe chieftainship.
“The applicants have failed to establish any basis upon which the decision of the first respondent and that of the minister may be reviewed and set aside. The application is liable to be dismissed with costs and we so seek,” concluded Tshekiso.