Court declares Zwenshambe chieftainship null and void

Lebogang Mosikare | Wednesday October 7, 2015 16:22

Makhwade gave the order in a case in which Dingaan Mulale, representing seven of the eight wards in Zwenshambe, sought an order that the position of chief or headman of records for Zwenshambe be assumed by way of election by Zwenshambe community, duly assembled at their Kgotla.

The respondents in the case were the Attorney General, Kgosi Fredah Mosojane and Moses Mabutho respectively.

The applicants also wanted the community of Zwenshambe to be given their democratic right to elect their chief.

“That any installation to the position of chief or headman of records other than by elections be declared null and void and of no force or effect,” the applicants further stated in their application.

In his judgement yesterday, Makhwade said that in 1979, the community of Zwenshambe elected Masilo Ngulubane as their traditional leader at their Kgotla.

“In 2007 after serving for 28 years Ngulubane retired and therefore there was a need for his successor. On April 2, 2007 Mosojane informed the Zwenshambe community that the Chabale family are the rightful heirs to the village chieftainship.

The minister told the community that once the Chabale family had concluded their consultations and provided a name to succeed Ngulubane, she would inform the community,” said Makhwade.

Makhwade said after the April 2, 2007 meeting, a complaint was made to the District Commissioner (DC) about the pronouncement of Mosojane.

“On April 12, 2007 a meeting presided by the DC was held. Mosojane and heads of various wards of Zwenshambe amongst others attended it. It was concluded that a consultative meeting was to be held on April 17, 2007 but the meeting never materialised. On April 20, 2007 Mosojane introduced the purported leader (Mabutho) of the village.

“On April 27, 2007 the DC called a meeting of Zwenshambe community. The issue under discussion was whether the leadership of the village was determined by elections or belonged to the Chabale family. The matter was put to a vote and the majority of those who participated were of the view that the leadership was assumed by elections. Elections were never held,” said Makhwade.

Makhwade said on June 22, 2007, the applicant and others wrote to the minister asking her to intervene to resolve the matter.

Further, Makhwade said, on November 8, 2007 the minister attended a Kgotla meeting at Zwenshambe again where various speakers spoke about the issue.

“By a savingram dated June 6, 2008 addressed to the DC by the minister, the minister concluded that the leadership of the village belonged to the Chabales…” said Makhwade.

In addition Makhwade said that in a constitutional democracy such as Botswana, which prides itself in the rule of law, decisions must be taken by persons clothed with legal authority.

“…It is in this context that the minister’s decision must be examined… The DC’s efforts were frustrated by Mosojane who considered herself the rightful authority to determine the matter,” said Makhwade.

He added that the legal authority of the decision by the minister does not appear from the letter or any other documents presented before court.

“…It is worth pointing out that the traditional leadership predates the constitution of this country. There is no basis to assume that ministers have authority to deal with matters relating to traditional leadership unless specifically mandated by law…The position adopted by Mosojane and DC applies with equal force to that of the minister. Unfortunately the opposition by the minister was withdrawn without the court being furnished reasons thereof,” said Makhwade.

The minister, Makhwade said, did not make an explicit determination that the Zwenshambe community falls under Chief Mosojane.

At the end of the judgement, Makhwade also ruled that any installation to the position of chief/headman of records other than by elections is declared null and void and of no force or effect.

“The applicant and the community of Zwenshambe have a right to democratically elect their chief. The position of chief is assumed by way of election to that office by the Zwenshambe community duly assembled at their Kgotla,” said Makhwade.

Makhwade also ruled that the AG should be served with notice of set down with respect to the issue of costs at a date to be determined by both the applicants and defence attorneys.

Attorneys Gabriel Komboni and Tshekiso Tshekiso represented the applicants and respondents respectively.