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Court Reinstates Ditladi Rightful Heir

LEBOGANG MOSIKARE
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FRANCISTOWN: The battle for the Ditladi village chieftainship in the Tonota sub-district was finally settled by the High Court this week when the presiding judge ruled in favour of the applicant,  Lechedzani Kemmonye.

This was after Kemmonye took the Minister of Local Government and Rural Development, Kgosietsile Letamo and the Attorney General (AG) as the first, second and third respondents respectively on a review application before Justice Bashi Moesi.

Kemmonye’s review application was made against a decision taken on May 31, 2019, by the minister after appointing Kgosietsile as the headman of records (Kgosana) of Ditladi to succeed Kemmonye Letamo.

According to court documents, Letamo is the father of both Kemmonye and Kgosietsile.

In his notice of motion, Kemmonye wanted the respondents to show cause as to why the decision and/or proceedings relating to the appointment of Kgosietsile as the headman of Ditladi and/or any such related position should not be reviewed and set aside and why he (Kemmonye) should not be appointed as Ditladi headman commencing on the date Kgosietsile was appointed on May 31, 2019.

Also, Kemmonye wanted the minister to show cause as to why he did not dispatch within 14 court days of receipt of the notice of motion to the Registrar of the High Court, the record of proceedings appointing Kgosietsile as headman and/or to any such related position together with such reasons as the minister is by law required to give.

In addition, Kemmonye wanted the minister to show cause why if there was no record of proceedings. The minister was required to give a written explanation for the lack of the record of proceedings together with such reasons as he is by law required to give and to notify the applicant that he has done so and why the respondents should be ordered to pay the costs of his (Kemmonye) application on attorney and own client scale.

Lastly, Kemmonye pleaded with the court to make any alternative order it deems fit.

When evaluating evidence, authorities and submissions made by both parties, Moesi said: “Stripped down to its bare essentials, the core of the applicant’s case is simply that after Letamo’s death on April 5, 2012, he was chosen in 2013 not only by the Royal House (RH) but also by his Ditladi community as Letamo’s lawful successor and was duly recognised as such by the minister on the basis that Gaobodiwe Gabanamotse would hold fort for him for five years.”

Moesi continued: “Therefore, the peg upon which the applicant hangs his entire case is that having been so designated and recognised as his father’s successor, good reasons had to be shown to exist by the minister justifying why the withdrawal of such recognition and that such reasons hand to be presented in a fair and unbiased process. The applicant contends that in taking the decision on May 31, 2019, which cancelled his 2013 recognition as Kgosana, the minister did so in secrecy and denied him a fair and unbiased hearing contrary to the rules of natural justice.”

On the other hand, the AG

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argued that the minister was not satisfied with the recognition of Kemmonye as headman and therefore appointed a Task Force (TF) made up of three Dikgosi not only to consult but also to determine the rightful heir following the hereditary lines of Ditladi chieftaincy.

“The AG further argued that since the RH and the community of Ditladi failed to make a determination on who the rightful owner between Lechedzani and Kgosietsile was, the minister took a decision to appoint Kgosietsile as the rightful heir to the position of the headman of Ditladi based on the findings and recommendations of of the TF after consultations with the community of Ditladi in terms of Section 22 of the Bogosi Act,” Moesi said.

In conclusion, Moesi added that he found that Kemmonye, as a person who was faced with an unexpected challenge to a leadership position he genuinely believed was his by lineage and which had not attracted controversy since he (Kemmonye) was recognised by the minister five years before, and who for the first time in 2018 found himself confronted with the risk of losing that important position, Moesi added, Kemmonye was justified to believe that he deserved to see an above board and transparent consultation process is undertaken not only by the TF but also by the minister.

“It is not for nothing that is said that justice must not only be done but must also be seen to be done. Having not witnessed any process involving Kgosietsile’s mother stating openly and publicly to the TF that she had been married to Kemmonye (Letamo) at the time of the Kgosietsile’s birth, Lechedzani was also entitled to believe that the TF’s findings, conclusions and recommendations in question (the basis of the minister’s decision to cancel the recognition of Lechedzani as Kgosana but instead recognise Kgosietsile as such) had been informed by secretly obtained information which denied him a fair and unbiased hearing in contravention of the rules of natural justice,” Moesi explained.

The judge went on: “I find that the final report is so patently unsubstantiated and misleading that by uncritically acting on its sound findings, conclusions and recommendations, the minister acted illegally and contrary to the Bogosi Act and the rules of natural justice and that his decision is grossly irrational to the extent that as a review court, I can only say no person acting reasonably could ever have come to that decision.”

Moesi then ordered as follows: “The decision of the minister is reviewed and set aside, it is declared that Lechedzani Letamo or Kemmonye should be appointed as headman of records of Ditladi village commencing on May 31, 2019, being the date on which Kgosietsile was appointed. The minister is ordered to pay the costs of this application on attorney and client scale.”

Attorney Morgan Moseki represented the applicant.



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