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Another court nosebleed for Stellenbosch Municipality

Western Cape High Court Judge Daniel Thulare. Picture: Phando Jikelo/African News Agency (ANA)

Western Cape High Court Judge Daniel Thulare. Picture: Phando Jikelo/African News Agency (ANA)

Published Apr 20, 2023


Cape Town - After a further tongue-lashing from Western Cape High Court Judge Daniel Thulare, Stellenbosch Municipality has lost its application for leave to appeal a judgment ordering it to grant unrestricted access to family members and caregivers of initiates at the Idas Valley initiation site.

The principal of the Basotho tribe, Rash Makhubela, had urgently approached the court last year after the initiation forums were informed at the last minute that they would not be given access to the site, with the municipality saying the area had been flagged as a fire risk.

In his judgment last month, Judge Thulare found that Stellenbosch Municipality was simply “cold, aloof” and unjustifiably removed from its obligation to respect, protect, promote and fulfil the values to which South Africa bound itself as a nation in its decision.

“The applicant said that the initiation school community received a WhatsApp message from a municipal official that the municipality would not grant them access to hold initiations in Idas Valley.

“The respondent, in answer, simply noted the allegation.

“In my view, where the intended action of the municipality like Stellenbosch tended to infringe on those rights, there was a need for adequate consultation with all interested and affected parties before a decision was considered,” he said.

The closing off of the area and the prevention of movement into Idas Valley to the initiates was heavy-handed and unlawful, Thulare said.

The municipality had allegedly locked the gates using padlocks. In one incident, the initiation forums said a caregiver rushing to the site to attend to an initiate who needed medical care was denied access.

Acting municipal manager Annelene de Beer also came in for sharp criticism, with Thulare noting that the less said about her ignorance and refusal to understand African culture in general, and an initiation school in particular, the better.

This week, the municipality’s application for leave to appeal the judgment was dismissed with costs.

Thulare said the court provided full reasons for its decision, including its rejection of the respondent’s denial that the applicant and others were in possession of the property, and that they were unlawfully deprived of such possession, and the denial that the applicant was a principal.

“There is nothing in my analysis, including my views on the conduct of the acting municipal manager, Ms de Beer, which went beyond the facts as I understood them.

“It is simply dishonest for the Stellenbosch Municipality to claim to show ubuntu in its papers, and for it to support De Beer to be a commanding official of armed forces that annihilate ntu from its jurisdiction.

“It is unfortunate that the municipality did not recognise that its quest to obliterate the initiation of young African men, a cultural practice of blacks, amounts to a betrayal of dividends which blacks thought a democratic and constitutional South Africa was going to bring about – to wit, restoration of their dignity. Respect for another and their dignity are material conditions for a common good,” he said.

Stellenbosch Municipality spokesperson Stuart Grobbelaar said they were studying the judgment.

“We maintain our position that as merely the land owner of the property, we went above and beyond to accommodate the initiation school on this site,” he said.

Makhubela said: ‘’What Stellenbosch Municipality did to me was really painful. I had to walk for kilometres with the food of the initiates. I approached the courts because I was placed in such a difficult position and I wanted the matter to be resolved in a peaceful way. I am pleased with the judgment and I am happy that justice was served in the end.

Thabiso Mokhachane of the Basotho and Mahlubi task team said they were pleased with the outcome.

The Congress of Traditional Leaders of South Africa (Contralesa) provincial secretary, Chief Lungelo Nokwaza, said they were vindicated.

“The appeal by the Stellenbosch Municipality showed the extent to which remnants of apartheid are prepared to go trying to undermine the constitutional cultural rights of black Africans in the Western Cape.

“The dismissal of the racially motivated appeal is most welcomed as an affirmation that the Western Cape is a home to all South African people and a credence to practise their diverse cultural practices in a safe and healthy environment freely.”

Contralesa secretary-general Zolani Mkiva said it was unwarranted that the municipality decided to block cultural communities from entering the site.

Cape Times