‘Urban court presidents are not dikgosi’

Twelve urban customary court presidents, who had approached court seeking an order granting them tenure of office equivalent to that enjoyed by dikgosi in accordance with Bogosi Act, have lost their case. Although High Court Judge, Dr Zein Kebonang had earlier in 2023 ruled in favor of the court presidents, the decision was recently quashed and set aside by a panel of Court of Appeal judges. Kebonang had ordered the ministry to make adjustments to accommodate provision for tenure of office to the urban court presidents employed on permanent, fixed term and short-term basis. 

The Ministry of Local Government and Traditional Affairs then appealed Kebonang’s judgment arguing that court presidents are not entitled to security of tenure like dikgosi since their employment is not regulated by Bogosi Act. Dikgosi and urban customary court presidents are regulated by separate laws, they ministry lawyers argued. The Bogosi Act was promulgated in 2008 to regulate matters of bogosi while the system of urban court presidents always existed under the Customary Court Act. 

Urban court presidents had also submitted that they perform similar duties to dikgosi and are also referred to as dikgosi by the minister. Therefore, they complained that they are currently discriminated against because their dikgosi counterparts are accorded more privileges such as age of retirement being higher. Customary court presidents retire at age of 65, while dikgosi can remain in office to well over 70 years under Bogosi Act. 

In response, the ministry argued that the reference to urban court presidents as dikgosi is just a loose translation not sanctioned by law. The title is used by members of the public only to show respect for the office held by urban court presidents, and it is not in any way meant to equate them with real dikgosi. The term Kgosi/Dikgosi is reserved for those appointed and recognized in accordance with Bogosi Act, the ministry submitted. 

Although the ministry agreed that there are similarities in functions and jurisdiction between the court presidents and dikgosi regarding their judicial roles, they maintained that the provisions under the Customary Courts Act that established urban customary courts is a distinctive system forming part of Public Service under the Public Service Act. 

In their final judgement, the three Court of Appeal Judges Bess Nkabinde, Johan Froneman and Reuben Lekorwe agreed with the submissions by the ministry. “The label they assign to themselves (as dikgosi) is misleading and legally untenable,” reads part of the judgement.