The Supreme Court of Appeal judgment last week highlighted systemic failures in the administration of traditional leadership disputes under the North West Traditional Leadership and Governance Act.
The case between Kgosi Nyalala Pilane and the Premier of the North West Province underscored the importance of adhering to statutory processes and respecting the autonomy of traditional communities within the framework of South African law.
At the heart of the dispute was the decision by former Premier Job Mokgoro to appoint an administrator. To also withdraw Kgosi Pilane’s recognition certificate, and designate an interim Kgosi for the Bakgatla Ba Kgafela traditional community.
Premier acted unlawfully
These actions were purportedly based on recommendations from a Commission of Inquiry established to investigate governance and succession disputes within the Bakgatla community. However, the court found that Mokgoro had acted unlawfully in all three instances.
The appointment of the administrator, Phineas Tjie, was deemed inconsistent with section 10(3) of the North West Act. This provision allows the Premier to appoint a person to assist a traditional council only upon receiving a recommendation from the Royal Family of the traditional community concerned.
The court noted that no such recommendation had been made by the Royal Family in Moruleng. It is the statutorily recognised royal family under the Act.
Instead, the Premier relied on findings from the Commission and granted the administrator powers that exceeded those of the traditional council itself.
As Judge Fayeeza Kathree-Setiloane stated: “The Premier not only exceeded his powers under s 10(3) of the North West Act. He also defeated its objective, which is to appoint a person to assist a traditional council that is unable to perform its functions efficiently and effectively.”
Botswana royal family unqualified
The withdrawal of Kgosi Pilane’s recognition certificate was similarly flawed. Section 14(3) of the North West Act requires the Premier to act upon a decision and reasons provided by the Royal Family. The said royal family must be of the traditional community within the North West Province.
In this case, the Premier relied on a resolution from the Royal Family in Mochudi, Botswana. This is a royal family outside the jurisdiction of the Act. The court emphasised that only the Royal Family in Moruleng had the authority to make such a decision.
“The Premier’s reliance on the resolution of the Royal Family based in Mochudi, Botswana, outside the boundaries of the North West Province, is inconsistent with the provisions of the North West Act,” the judgment stated.
The designation of Rangwane Ramono Pilane as interim Kgosi was equally problematic. Section 16(1) of the North West Act reserves the identification of an acting Kgosi to the Royal Family of the traditional community concerned.
The Premier’s decision to appoint Linchwe on the recommendation of the Royal Family in Mochudi was found to be unlawful. Furthermore, the court noted that there was no vacancy requiring an interim Kgosi. This as Kgosi Pilane’s recognition certificate had been reinstated.
Broader institutional failures
The judgment also highlighted broader institutional failures. The Commission’s findings revealed significant governance issues within the Bakgatla Traditional Council, including a lack of financial oversight. Also failure to prepare annual financial statements, and inadequate skills among council members.
While these issues warranted intervention, the Premier’s actions bypassed statutory safeguards designed to ensure that such interventions respect the customs and autonomy of traditional communities.
The court’s decision to set aside the Premier’s actions serves as a reminder of the importance of adhering to the rule of law and the principle of legality.
As Judge Kathree-Setiloane concluded: “The Premier was constrained by the principle that he may perform no function beyond that which is conferred on him by law. This is central to the principle of legality and the incidence of the rule, which is foundational to a just and stable society.”
