Mr Nyalala Pilane, the officially recognized Kgosi and the Traditional Council of the Bakgatla-Ba-Kgafela Traditional Community (“the Traditional Council“), obtained an order in the High Court against Mr Mmuthi Pilane and Mr R Dintwe to prevent them from holding meetings under the auspices of certain entities without their permission, from acting in contravention of statutes governing traditional leadership and representing themselves as a traditional authority.  

The Majority of the Constitutional Court overturned the decision of the High Court and set aside the interdict.  The Majority held that the requirements for an interdict had not been met, primarily on the basis that Mr Nyalala Pilane and the Traditional Council did not have rights to prevent Mr Mmuthi Pilane and Mr Dintwe from ” [o]rganising or proceeding with any meeting purporting to be a meeting of the Traditional Community or Motlhabe Tribal Authority without proper authorisation by either of the [respondents].”  Neither did they show that Mr Mmuthi Pilane or Mr Dintwe had or were likely to breach of the statutes governing traditional leadership. Finally, the Majority held that merely using the names “Bakgatla-Ba-Kautlwale” and “Bakgatla-Ba-Motlhabe” did not suggest that Mr Mmuthi Pilane or Mr Dintwe were claiming to be a traditional authority, but these names were merely “signifiers of the applicants’ ancestral lineage and their place of settlement“.

On these bases alone the Majority found, in essence, that Mr Nyalala Pilane and the Traditional Council did not have rights to protect that were threatened by the Mr Mmuthi Pilane’s and Mr Dintwe’s actions, so the High Court judgment was set aside.

The Majority did go on note the importance of freedom of expression, and that the right to freedom of association could be enhanced by group association. The Majority stated “[p]olitical participation, actuated by the lawful exercise of these rights, can and should assist in ensuring accountability in all forms of leadership and in encouraging good governance.”

Deputy Chief Justice Moseneke and Justices Cameron, Froneman, Jafta, Khampepe, Van der Westhuizen and Zondo concurred in Justice Skweyiya’s judgment.

Chief Justice Mogoeng and Justice Nkabinde wrote a minority judgment in which they wrote they would not have overturned the first part of the High Court order preventing Mr Mmuthi Pilane and Mr Dintwe from “[o]rganising or proceeding with any meeting purporting to be a meeting of the Traditional Community or Motlhabe Tribal Authority without proper authorisation by either of the [respondents].”  They would, however, have overturned the second parts of interdict preventing Mr Mmuthi Pilane and Mr Dintwe from from acting in contravention of statutes governing traditional leadership and from using the names “Bakgatla-Ba-Kautlwale” and “Bakgatla-Ba-Motlhabe”.

The Minority found that the actions of Mr Mmuthi Pilane and Mr Dintwe would have undermined Mr Nyalala Pilane’s and the Traditional Council’s legally recognized leadership of community and could approach a court to protect this right.  The Minority noted that allowing Mr Mmuthi Pilane and Mr Dintwe would encourage disorderliness and lawlessness, and that this should be avoided.

Download the judgment here.