High Court nullifies Makopong chieftainship
Former Minister of Local Government flouted procedure in appointing Phologo
Lobatse High Court has once again set aside a decision made by former minister of Local Government and Rural Development Slumber Tsogwane who in 2016 appointed a
Kgosi for Makopong village without following proper procedure.
As the then minister, Tsogwane, who is now Vice President appointed Vincent Motlhabane Phologo as kgosi for Makopong village following the death of Vincent’s father, Kgosi Shadreck Hatshelotlhe Phologo. However the Makopong community was against the appointment of Vincent, arguing that he was being imposed on them. The community also argued that proper procedure was not followed. According to the community, chieftainship in the village had always been determined through elections. Following unsuccessful protestations with the Tsabong District Commission’s office, some community members launched a court case in February 2017 challenging Tsogwane’s decision. The case was before High Court Judge, Michael Leburu who in 2018 ruled in favour of the community. The Respondents ( Minister of Local Government and Rural Development; Kgosi Vincent Phologo and the Attorney General) failed to pitch up at the hearing of the review application, prompting Leburu to allow the review and setting aside of Phologo’s appointment.
Leburu at the time ruled that Tsogwane’s actions were “unprocedural” and thus should be set aside. However, the second respondent in the case, Vincent Phologo, who following Leburu’s judgment was stripped of his bogosi,
filed an application for rescission of Leburu’s judgment arguing that he is entitled to rescission of the judgment so that the real issues in dispute between the parties can be “fully ventilated”. Phologo got his wish as Judge Jennifer Dube ruled in his favour. Phologo was reinstated as kgosi following Judge Dube’s ruling.
When rescinding Leburu’s judgment Dube argued at the time that for the sake of fairness and justice, the rescission should be granted and real issues between the warring parties be ventilated in an open court. Those issues were “ventilated” in an open court before Justice Dube who late last month put a final nail in Phologo’s coffin when she, just like Justice Leburu ruled in favour of the community. In the latest judgment dated, 30th April 2021 Dube ordered that Tsogwane’s decision in appointing Phologo as Sub- chief of Makopong is reviewed and set aside and that the post of Sub- chief of Makopong village is declared vacant.
In the judgment Dube says, a party, whose decision is sought to be impugned, that is the Minister, failed to file an answering affidavit to deny or confirm averments contained in the founding affidavit against him/ her.
“The minister also failed to file a confirmatory affidavit supporting and endorsing the second Respondent’s averments. As such, it is safe to hold that the Applicants’ averments with regards to the manner in which the Minister’s decision was arrived at, are uncontroverted,” Dube ruled. In his affidavit Dixon Radijeng, the first applicant explains that in August 2015, following the death of Kgosi Shadreck Phologo the Tsabong Deputy District Commissioner approached the applicants to convene a kgotla
meeting to initiate the process of appointing a successor. “The applicants accordingly appointed three senior tribesmen to facilitate the appointment of a chief. Two potential successors emerged, namely Itumeleng Leburu and Vincent Phologo,” reads part of the affidavit. However, to everyone’s surprise on July 2016 a
kgotla meeting was convened by Kgosi Keleofile Phihadu of Werda who informed the applicants that he had been requested by Minister Tsogwane to announce that he ( the minister) had appointed Vincent Phologo as the SubChief of Mokopong village. Villagers opposed this decision and told Kgosi Phihadu that they had been awaiting the conduct of elections to determine the successor of the chieftainship. “I had participated in the 1982 elections as a candidate for chieftainship of Makopong village. There are community members that had participated in these elections by casting their vote”, argues Radijeng in the court papers buttressing the need for holding elections. He further notes that in 1946 elections were held in the village to choose a Kgosi. Dube in her judgment said it was not for “this court to make a pronouncement as to whether the chieftainship in Makopong is hereditary or is by way of elections because the court has not been asked to make that pronouncement” and secondly, “this is a technical assessment which would largely require viva voce evidence”.