The Court of Appeal recently addressed the presidents and deputies of the urban courts dashing their hopes of ever being referred to as Dikgosi saying the matter must be set straight to rid any confusion and misleading information.
"The matter that must be set straight concerns the designation of 'Dikgosi' that the presidents and deputies assign to themselves in a manner that may cause confusion and mislead. The individuals establishing their standing each referred to herself/himself as a 'Kgosi'. The use of such designation is legally tenuous," said the court.
Justice Baaitse Nkabinde was dealing with the matter of whether the members are entitled as of right to the tenure of office enjoyed by Dikgosi by way of appeal brought by State.
Nkabinde though she agrees with the latter (government) that although they refer to the members of customary courts loosely as 'Dikgosi' that use isn't sanctioned by law.
She explained that the designation of "Kgosi" must be understood in the context of Bogosi Act of which 'bogosi' means the institution of traditional leaders or the position of Kgosi.
The judge further stated that in terms of Section 4 of the Bogosi Act, Kgosi is an individual who,
"(a) possess such minimum educational qualifications as may be prescribed from time to time;
(b) has been designated as Kgosi under section 6; and
(c) is recognised as a Kgosi by the Minister in accordance with the provisions of sections 6 and 21."
And that Section 6 deals with a situation where a tribe designates a successor. Section 21 deals with a situation where a Kgosi is recognised by a tribal community.
"None of the respondents has posited that he or she qualified or has been so designated or recognised. The label they assign to themselves is thus misleading and legally untenable. In the view I take of the matter, it is not necessary to deal with the further issues relating to the functions of the incumbents as compared to those of dikgosi, the alleged promise and the principle of legitimate expectation," Nkabinde said.
She dismissed the cry of the members for unfair treatment by upholding the government's appeal saying the main relief sought at High Court was declaration of rights specifically that they are entitled as of right to the security of tenure as Dikgosi by contending that the Act governing them is different from the one of Dikgosi and as such there is a case for discrimination.
She noted that it doesn't constitute proper constitutional challenge pointing out that the members have confessed to instances where some of them have held office beyond 60 years and by their own admission have known that the minister has power to extend their tenure of office as was previously done with other court presidents and their deputies.
"I say this aware of the fact that some members had unsuccessfully applied for extension. Rhetorically, that begs the question why others haven't approached the minister to extend their tenure of office and is such requests are refused why appropriate legal steps were not taken to obtain similar relief rather than approaching the High Court," she said.
