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[2024] ZAKZPHC 16
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Zondo v Premier of The Province Kwazulu-Natal and Others (15970/2022P) [2024] ZAKZPHC 16 (13 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:15970/2022P
In
the matter between
BONGANI
WISEMAN ZONDO APPLICANT
And
THE
PREMIER OF THE PROVINCE OF
KWAZULU-NATAL FIRST
RESPONDENT
MEMBERS
OF THE KWAZULU-NATAL SECOND
RESPONDENT
EXECUTIVE
COUNCIL FOR
CO-OPERATIVE
GOVERNANCE
AND
TRADITIONAL AFFAIRS
DOUGLAS
VUSI ZONDO THIRD
RESPONDENT
UMNDENI
WENKOSI KWAZONDO
FOURTH RESPONDENT
JUDGMENT
PITMAN
AJ
[1]
The applicant is Bongani Wiseman Zondo who describes himself as being
a self-employed livestock farmer residing at Kwa-Ndukuziyabuya
Household, Swart Mfolozi, Vryheid, KwaZulu-Natal. He was born on
15
April 1970.
[2]
He has brought this review application citing four respondents, the
first
being the Premier of the KwaZulu Natal Provincial Government,
(“the Premier”), the second
being The Member of the
KwaZulu-Natal Executive Council for co-operative Governance and
Traditional Affairs (“COGTA”),
the third being Douglas
Vusi Zondo, an adult male who he describes as being erroneously
recognised as the iNkosi of the eMpangisweni
community, and the
fourth being the Umndeni Wenkosi KwaZondo (“the Umndeni”)
whom he describes as the Zondo “Royal
family”. The first
and second respondents delivered an answering affidavit out of time.
Condonation was sought on formal
application. It was not opposed, and
the arguments proceed on the basis of its inclusion. Insofar as may
be necessary I condone
the late delivery of that affidavit.
This Application
[3]
The relief sought by the applicant, as set out in the Notice of
Motion
is, in my view, inelegantly framed. The first prayer is on the
face of it a review claim. It is for the setting aside of the
decision
by the first and second respondent “
to abide the
recommendations of the Injula Lwazi Research Institute”
(the
recommendations referred to not identified with any further
particularity in the notice of motion, but the report appears as
an
annexure to the founding affidavit at pages 137 – 189 of these
papers). The second prayer is for a “declaratory”
order
that there was a “
wrongful appointment and recognition of
the third respondent…As the iNkosi of the eMpangisweni
community”
. That is also effectively a review claim.
Pursuant to the initial two prayers, it seems, the rest of the
prayers follow, being
the removal of the third respondent “
from
his position as iNkosi”
, a declaration that the applicant
has complied with section 19(1)(a)(i) and (ii) of the KwaZulu-Natal
Traditional Leadership and
Governance Act, 2005… “
To
be properly identified and recognised as iNkosi”
an Order
that the first respondent be directed to “
recognise the
applicant as such in terms of section 19(1)(a)(iii) and section
19(2)(a) and (b) of that Act, read with section 6(2)(g)”
,
an order that the second respondent be directed to “
facilitate
the formal appointment of the applicant as”
iNkosi, and
finally an order that all respondents be directed to pay the costs of
the application including “
the cost of hiring Counsel”
jointly and severally. The first and second respondents oppose
the application. The third respondent has not opposed the application
nor taken any part in it. The fourth respondent, by notice dated 21
December 2023, elected to abide the decision of the court.
[4]
The parties have set out so called “legislative frameworks”
by indicating at the outset various pieces of legislation they
consider relevant to this matter. A consideration of all of the
legislation set out unnecessarily broadens the debate herein in my
view, however. In order to identify the actually relevant legislative
framework it is necessary to set out the versions before me in some
detail. That also assists in determining the relevant administrative
action/s sought to be impugned.
[5]
I start by summarising the facts set out in the applicant’s
founding
affidavit as follows. I use italics where I quote directly.
The applicant states:
a)
His father was the late David Thanduyise Zondo who, during his life,
“
held the position of iNkosi of the Madide/Zondo Tribe”
.
b)
When his father passed away in 1988, he was 18 years old and could
not succeed him as iNkosi despite being “
the only remaining
son”,
as the age of majority at the time was 21 years.
c)
His “
paternal uncle, Samson Ntshiyane Zondo”
(now
deceased) was identified by the fourth respondent as “
ibambabukhosi
(regent)”
on his behalf in terms of Zulu customs and
prevailing laws at the time, the custom being the appointment of a
regent when the next
in the succession line is too young to be
appointed iNkosi immediately.
d)
In about 1993 (the applicant would have been about 23 years old then)
the third respondent, who he describes as “
my eldest
stepbrother”,
secured documentation and then conducted
himself as the duly appointed iNkosi succeeding the applicant’s
father.
e)
This documentation did not establish that appointment and the third
respondent had
“
usurped”
the position of iNkosi from Samson.
f)
Samson relinquished his position under duress.
g)
Had the third respondent been the person who ought to have succeeded
his father as iNkosi when his father passed
away, the third
respondent (an adult at the time) would immediately have been
appointed and there would have been no basis for
Samson to have been
appointed regent.
h)
The third respondent was never identified as an iNkosi in terms of
either Zulu customary law or in terms of
any prevailing legislation.
i)
Certain community members went to the streets demanding that he step
down, but he refused. They then
approached “
the Royal
family”
and demanded that he be removed and that “
the
rightful person be identified and appointed”
. During the
period 2018 until 2019 they were not able to get any assistance.
Eventually officials of COGTA, facilitated “
a mediation
process based on misconduct”
.
j)
In about August 2020 he “
was instructed by members of our
Royal family to seek the assistance of an attorney who would take the
matter further”
. On about “
13 September 2020”
that attorney wrote to the first and second respondents calling
on them to take appropriate action against the third respondent
pursuant to, what they called, his “
wrongful appointment”
.
(The letter attached to the affidavit is actually dated 22
September.) It included an eight-page
memorandum”
dated
20 September signed by the applicant as “
Duly authorised
representative of uMndeni weNkosi”.
The letter sets out the
applicant’s version of the relevant background and
inter
alia
requested the suspension of the third respondent from his
position, and thereafter related relief. A telephonic response was
received
from an employee of COGTA who advised him not to use
attorneys and “
demanded that they drop legal representation
before they could deal with the matter”
. At first, he
refused but after consultation with “
the Royal family”
and on the basis that litigation would take years, he agreed.
k)
He applied, in terms of the
Promotion of Access to Information Act
No. 2 of 2000 (“PAIA”)
, for access to “
the
requisite information”
regarding the third respondent’s
appointment. He received, on 22 October 2020, documents from COGTA in
response but claims
that none identified that the fourth respondent,
the first respondent, or anyone else “
in authority”
had recognised the third respondent as the iNkosi in terms of
law.
l)
They then again wrote to the first respondent advising that there was
no evidence on record identifying and recognising
the third
respondent as the iNkosi and requested the first respondent to remove
the third respondent “
on the grounds of wrongful
recognition”
.
m)
On 1 April 2021, he was advised telephonically by a representative of
COGTA that the matter was being dealt with and that
a meeting with
COGTA officials had been scheduled for 16 April 2021 in
Pietermaritzburg to establish, so he says, his
locus standi
in terms of “
Zulu
custom
regarding
succession
positions”
. He says the
meeting took place. They were advised that the next step would be for
COGTA to engage with the third respondent and
give him an opportunity
to make representations and that thereafter the applicant could
expect a full report within two weeks.
The report did not arrive as
promised and after a couple of further letters to the first and
second respondents, in early July
2021, they received a call from an
official of COGTA who advised them that COGTA had decided to appoint
an expert to do an enquiry
into the matter, and a later telephone
call advising that the expert report would be provided by 19 July
2021.
n)
The
Injula Lwazi Research Institute
(“the ILRI”)
was the entity appointed by COGTA to investigate the matter. ILRI
conducted interviews and met with interested
parties. The meeting
scheduled for 19 July 2021 did not materialise due to Covid problems.
A meeting was held on 13 August 2021
and in attendance were members
of “
the Royal family”
, officials of ILRI, the
third respondent and officials of the first and second respondents.
He stated that at that meeting there
was “
no outright
confirmation”
that he should be appointed due to other
“
family members”
who were interested in contesting
the “
Chieftaincy”
position. He says that they were
advised by ILRI and COGTA to convene a family meeting to “
clear
the contestation”
and thereafter report back to COGTA.
o)
The meeting of “
the Royal family or uMdeni weNkosi”
was held on 11 September 2021 to clear up this contestation and
it was agreed that the Royal houses eligible to participate in the
identification of the successor to his father were the households:
Thanduyise
,
Magungwane
and
Mgoboyi
and that he
was the one identified as the new iNkosi for the Zondo Tribe and
eMangisweni community. The minutes of this meeting
were sent to the
first and second respondents and ILRI on 15 September 2021.
p)
The meeting held on 11 September 2021 “
marked the uMndeni
WeNkosi’s official compliance with section 19 of the KZN Act”
.
The Act he refers to is
The KwaZulu- Natal Traditional Leadership
and Governance Act, No. 5 of 2005.
(“The KZN Act”)
q)
Thereafter the second respondent and ILRI requested that he convene a
meeting of members of the fourth respondent on 8
October 2021. That
meeting was chaired by Prof Sihawu Ngubane of the ILRI, assisted by
officials of the second respondent. He claims
that at this meeting
ILRI and COGTA officials accepted the minutes as a true reflection of
the fourth respondents wishes and undertook
to submit a final report
to the first and second respondents at the end of October/November
2021.
r)
By the end of 2021 he had still not received the ILRI report. On 14
January 2022 a letter requesting the report was
sent to the first and
second respondents. There was no response. In February 2022 another
PAIA application was made for access
to the report. It was rejected
on 24 February 2022 on the basis that “
at the time of our
request, the MEC for COGTA had not had an opportunity to read it”.
s)
This refusal was challenged in correspondence but on 9 May 2022 he
received a telephone call from a COGTA official who
instructed him to
convene a meeting of the members of the fourth respondent on 25 May
2022, “
purportedly to deliver a copy of the ILRI report and
advised the family on the way forward”
. A letter confirming
the meeting and the venue (KwaNkosikayithandwa Royal Household) was
sent to the first and second respondents.
t)
The meeting of 25 May 2022 did not take place. The report was not
delivered.
u)
The applicant and the fourth respondent were obliged to launch an
application to this Court on 9 September 2022 which,
inter alia,
requested an Order that the report of ILRI be provided. There were a
number of other Orders sought relating to the
alleged irregular,
unlawful and void appointment of the third respondent as iNkosi and
attendant relief removing him and appointing
the applicant herein.
The only relief obtained at the first hearing on 16 September 2022
was the adjournment of the application
sine die
and an
interdict restraining the third respondent from violent conduct
toward members of the eMpangeni community and the Zondo tribe.
The
ILRA report was attached to the answering affidavit of COGTA which is
how the applicant came into possession of it.
v)
The final conclusion and recommendation, as it appears in the ILRI
report, reads as follows:
“
In
light of the above background on the Zondo succession dispute, it is
clear that the family is divided. We therefore recommend
that COGTA
put the matter to rest and Vusumuzi Douglas Zondo retained his
position as iNkosi yamaZondo. He was rightfully appointed
in terms of
section 19(1)of the KwaZulu-Natal Traditional Leadership and
Governance Act No. 55 of 2005, as amended. Inkosi Vusumuzi
Douglas
Zondo is the firstborn child of Maria KaMaphisa Zondo the sole spouse
of the
late
iNkosi
Thanduyise
David
Zondo
whose
lobola
was
paid
by
iSizwe
samaZondo. Strict measures should be observed by COGTA to investigate
the conduct of the Inkosi and follow appropriate disciplinary
action”.
w)
The ILRI report he alleges, was poorly written, mostly irrelevant,
often distorted and biased and is not supported by any
evidence. He
denies that there was in fact evidence that the third respondent was
“
rightfully appointed”
and that “
the
family was divided”
. He also denies that there was
acceptable evidence that the third respondent was his father’s
son. He claims that the third
respondent was not born of his father.
He complains that the report “
depicts me as parasite that
wants chieftaincy for financial gain”
which he denies and
objects to.
x)
He seeks orders compelling the first and second respondents to comply
with their statutory obligations in terms
of the KZN Act and
recognise him as “
iNkosi of the Zondo Tribe”
in
terms of section (19)(2)(a)(b) and (3) of the KZN Act read with
section 211 of the Constitution.
y)
The fourth respondent has complied with the provisions of the KZN Act
in that they have informed the first respondent of
the particulars of
the traditional leader to be removed and provided grounds for such
removal. He sets out the provisions of section
21of the KZN Act which
deals with the Removal of Traditional Leaders and claims that the
fourth respondent has complied. In addition,
he states that the third
respondent has been provided the opportunity to submit
representations in response to the allegations
as required in section
21(3) of the KZN Act, and that the third respondent had failed “
to
produce any documents supporting the right fullness and/or lawfulness
of his appointment and recognition as iNkosi of the eMpangisweni
community”
.
z)
That in consequence of the above, the first respondent has “
performed
an administrative action”
which is subject to “
judicial
review”
in terms of the
Promotion of Administrative
Justice Act, No. 3 of 2000. (“PAJA”)
The applicant
does not identify precisely which “
administrative action”
he refers to, but when dealing with the provisions of section 6
of PAJA, which set out the various possible grounds of Review and
particularly those he relies upon, he states the following:
i.
The ILRI report was biased and unreasonable. It did not interrogate
the evidence or lack thereof. It had been,
so he says, “
tasked
with a fact-finding mission”
but came out as “
one-sided”
and “
The first respondent has not acted impartially and
is not endeavoured in good faith to bring an equitable resolution to
the succession
dispute”.
ii.
There is no evidence that the third respondent was ever recognised as
required by law. The fourth respondent’s
members at the meeting
of 11 September 2021 unanimously identified him as iNkosi. In the
circumstances the first respondent has
failed to comply with section
(19)(2) of the KZN Act to recognise him and as such has not complied
with “
A mandatory and material procedure or condition
prescribed by an empowering provision.”
iii.
The “
Action is procedurally unfair”
because the
third respondent was not recognised as a consequence of the following
of the correct procedure in law.
iv.
The first and second respondents relied on an “
irregular
certificate of jurisdiction”
, such reliance being a “
grave
error of law”
to the extent that “
the action was
material influence by an error of law”.
v.
In further individual paragraphs he complains that the action was
taken for reasons not authorised by the empowering
provision, the
action was taken because irrelevant considerations were considered,
all relevant considerations were not considered,
the action was taken
because of the unauthorised or unwarranted dictates of another person
or body, and the action was taken arbitrarily
or capriciously. These
complaints are based on the same allegations as set out in the
subparagraphs immediately above and it is
not necessary that I repeat
them.
vi.
Finally, that in the event that the first respondent “
has
not made a decision”
the first respondent has a duty to do
so in compliance with section (19) of the KZN Act.
[6]
In defence of this case, the first and second respondents delivered
an
answering affidavit deposed to by Mr. Tubane, the Head of COGTA
who alleged he was deposing to it also on behalf of the first
respondent,
duly authorised. The answering affidavit, and pursuant
argument by the first and second respondents, in summary, is as
follows:
a)
The application papers are defective as they neither comply with form
2 nor form 2(a) of the Uniform Rules
of Court. This was not pursued
in argument before me. I consider it no further.
b)
The issues herein are
lis alibi pendens
as the earlier
application sought essentially the same relief and had not yet been
completed. (I was informed at the outset of this
hearing, however,
that the applicant had withdrawn that application and that this
defence was therefore not being pursued.)
c)
The application, being in terms of PAJA, was out of time by almost 3
decades because the third respondent had
been recognised as iNkosi
since 1993.
d)
The correct uMndeni Wenkosi had not been joined.
e)
As a result of the third respondent being the first son of David
Thanduyise Zondo, the “
line of succession has been
established”
and he is, and always has therefore been, the
correct iNkosi.
f)
Documents in the first and second respondents’ possession
evidence that the third respondent was
recognised and appointed by
the authorities as iNkosi in 1993 and remains iNkosi.
g)
Insofar as reliance is placed on section 21 of the KZN Act regarding
an argument that there has been an application
or his removal, there
has not been compliance as there has not been the obligatory
“
enquiry”.
h)
This Court has no power to direct the Premier to recognise the
applicant as iNkosi nor to facilitate his appointment
as such.
i)
The evidence in the possession of the first and second respondents
reveals that the third respondent
had been recognised in about 1993
under the then Black Administration Act, No.38 of 1927. (“the
BAA”)
j)
The
KwaZulu Amakhosi and Izaphakanyiswa Act, No. 9 of 1990
(the
“KAIA”), which commenced on 1 October 1991, repealed the
relevant sections of the BAA, but s37(a) preserved, for
KwaZulu-Natal, the status of every recognised iNkosi for purposes of
the KAIA by deeming them to have been appointed under the
KAIA.
k)
The KAIA was then repealed by the
KwaZulu-Natal Traditional
Leadership and Governance Act, No 5 of 2005.
(“the KZN
Act”) which also has a deeming provision recognising, for
purposes of it, iNkosi recognised immediately before
its
commencement. (Section 57(7).)
l)
Against that backdrop, only the “Commission” as
established in terms of s22 of the Traditional
Leadership and
Governance Framework Act., 41 of 2003 (“the TLGFA”) is
able to determine these disputes. It is argued
that such “Commission”
has now completed its business.
m)
There are no grounds to set aside the third respondent’s
appointment.
n)
The ILRI report was not administrative action but was merely
advisory.
o)
The uMndeni Wenkosi was not correctly joined.
[7]
Before
considering the real issue/s herein, being the appointment issues, at
this stage I record that I reject the arguments set
out in 6(n) and
6(o) immediately above. It is not the ILRI report which is sought to
be reviewed but the first respondent’s
administrative decision
based on it. That decision constituted administrative action.
[1]
The argument in 6(o), it is not supported by any evidence.
Significantly, the fourth respondent (the uMndeni weNkosi itself) has
delivered a Notice to Abide. It has not indicated that it is the
wrong uMndeni nor raised a challenge on that issue.
[8]
As set out above, the applicant seeks a declarator that the third
respondent
has never lawfully or validly been recognised as iNkosi,
alternatively, and if he has, that he was wrongfully recognised as
such
and must be removed pursuant to the application to the first
respondent in terms of section 21 of the KZN Act. (That is the
application
referred to in paragraph [5](j) above). He seeks Orders
effectively reviewing and declaring, in terms of PAJA, the initial
appointment
and recognition of the third respondent as iNkosi to have
been wrongful if it is found to have occurred, and also reviewing the
first respondent’s decision to abide the ILRI recommendation.
Pursuant thereto, he seeks Orders compelling the first and
second
respondents to comply with what he calls their statutory obligations
in terms of the KZN Act and recognise him as “
iNkosi of the
Zondo Tribe”
in terms of section (19(1)(a)(iii) and
(19)(2)(a) and (b) of the KZN Act, read with section 6(2)(g) of PAJA.
I therefore set out
sections 19 (Recognition of an iNkosi) and
21(Removal of an iNkosi) of the KZN Act in full:
“
Recognition
of an Inkosi
19.(1)
Whenever the position of an lnkosi is to be filled, the following
process must be followed -
(a)
Umndeni wenkosi must, within a reasonable time after the need
arises for the position of an lnkosi to be filled, and with due
regard
to applicable customary law and section 3 -
(i)
identify a person who qualifies in terms of customary law to
assume the position of an Inkosi after taking into account whether
any of the grounds referred to in section 2l(l)(a), (b) or (d) apply
to that person;
(ii)
provide the Premier with the reasons for the identification of
that person as an Inkosi; and
(iii)
the Premier must, subject to subsection (3) and section 3,
recognise a person so
identified
in terms
of subsection (l)(a)(i) as an Inkosi.
(2)
The recognition of a person as an Inkosi in terms of subsection
(l)(a)(iii) must be done by way of -
(a)
a notice in the Gazette recognising the person
identified as an Inkosi; and
(b)
the issuing of a certificate of recognition to the
identified person.
(3)
The Premier must inform the Provincial House of Traditional
Leaders of the recognition or appointment of an Inkosi.
(4)
Where there is evidence or an allegation that the identification
of a person to be appointed as an lnkosi was not done in accordance
with customary law, customs or processes, or was done in
contravention of section 3 of this Act, the Premier -
(a)
may refer the matter to the Provincial House of
Traditional Leaders for comment; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to umndeni wenkosi for
reconsideration and resolution where the certificate of recognition
has been refused.
(5)
Where the matter which has been referred back to umndeni wenkosi
for reconsideration and resolution in terms of subsection (4) has
been reconsidered
and
resolved,
the
Premier
must
recognise
the
person identified by umndeni wenkosi if the
Premier is satisfied that the reconsideration and resolution by
umndeni wenkosi has
been done in accordance with customary law.
(6)
The recognition of an lnkosi as the senior traditional leader of a
recognised traditional community takes effect on a date specified
in
a notice published in the Gazette by the Premier.
(7)
Within three weeks after the date of recognition or the date of
publication of the notice referred to in subsection (6), whichever
is
the later date, an lnkosi so recognised must furnish, in writing, to
the Premier the names of induna or Izinduna of that lnkosi,
together
with the date of and names of all members present at the traditional
council at which the appointment of such lnduna,
or Izinduna was
unanimously approved by the traditional council.
(8)
(a) An lnkosi is deemed to retire from office upon his or her
written request for retirement to the responsible Member of the
Executive
Council.
(b)
On retirement, an lnkosi ceases to be recognised and appointed
in terms of this Act”
“
Removal
of traditional leader
21.(1)
A traditional leader
[An iNkosi is defined as such]
may be
removed from office on the grounds of-
(a)
conviction of an offence with a sentence of
imprisonment for more than 12 months without an option of a fine;
(b)
physical incapacity or mental infirmity which, based on
acceptable medical evidence, makes it impossible for that lnkosi to
function
as such;
(c)
wrongful
appointment
or
recognition;
(d)
a transgression of a customary rule or principle that
warrants removal;
(e)
a breach of the Code of Conduct; or
(f)
misconduct as contemplated in section 23.
(2)
Whenever any of the grounds referred to in subsection (l)(a),
(b), (c), (d) and (e) come to the attention of umndeni wenkosi, and
umndeni wenkosi concerned decides to remove a traditional leader,
umndeni wenkosi may, within a reasonable time and through the
relevant customary structure -
(a)
inform the Premier of the particulars of the traditional
leader to be removed from office; and
(b)
furnish reasons for such removal.
(3)
A traditional leader may only be removed from office on the
grounds set out in subsections (l)(a), (b) or (c) above after he or
she has been given an opportunity to submit representations in
response to the grounds upon which his or her removal from office
have been considered, and those representations have been considered
by the appropriate authority.
(4)
A traditional
leader may only be removed from
office on the grounds set out in subsections- (l)(d), (e) or (f)
above after an inquiry in terms
of section 23.
(5)
Where it has been decided to remove a traditional leader in
terms of section 23 the Premier must-
(a)
withdraw
the certificate
of
recognition
with
effect from
the date of removal;
(b)
publish a notice in the Gazette with particulars of the
removed traditional leader; and
(c)
inform umndeni wenkosi and the removed traditional leader
concerned, and the Provincial House of Traditional Leaders of such
removal.
(6)
Where a traditional leader is removed from office, a successor
may be appointed in terms of this Act and in accordance with
prevailing
customary law and custom.”
Analysis.
[9]
Distilling the chaff from the wheat of the founding affidavit, as I
see
it, the applicant is alleging that the commencement of the
procedure set out above in the KZN Act for the removal of the third
respondent as iNkosi was by way of the letter and memorandum to the
first and second respondents dated 22 September 2020 referred
to
above. The letter does not mention the KZN Act, but the memorandum
does. It is not necessary to set out the contents of the
memorandum
save to state that it is signed off by the applicant as “
Duly
authorised representative of uMndeni weNkosi.”
Paragraph
29, the penultimate paragraph, reads “
In conclusion, indeed
we are very clear that this matter also involves a case of misconduct
perpetrated by DV, against family members
and iSizwe saseMpangisweni
(as contemplated in Section 23). However, iSilo (via his Council) has
advised that,
it is best to tackle the wrongfulness
in the appointment/recognition of iNkosi yakwaZondo
eMpangisweni,
(my underlining)
which stance is –
in our understanding – supported by iSilo, the paramount
custodian of the Zulu customary law and procedures.”
The
final paragraph (30) reads “
Based on the aforegoing, the
office of the Premier is implored to please accede to our request as
set out in paragraph 27, as a
matter of urgency….”
Paragraph 27 reads as follows “
In the premises, and in
the light of the fact that DV’s appointment is void ab initio,
we call upon COGTA and the Premier
to take a swift action, (on the
bases that the Premier’s office cannot documentary
(sic)
support its recognition of iNkosi yawaZondo and uMndeni weNkosi
rejects the current iNkosi);
a.
To immediately suspend DV from his position,
b.
To call upon DV to produce proof within 14 days, confirming
that he was so appointed/identified by uMndeni weNkosi to the
position
he occupies. Upon failing to produce documentary proof in
his support, the suspension may be confirmed.
c.
Thereafter/simultaneously engage with uMndeni weNkosi to
establish the name of the appropriate person who qualifies in terms
of
customary law to assume the position of an iNkosi, to be properly
recognised.”
(sic).
[10]
The first and second respondents did not answer the applicant’s
founding affidavit
paragraphs
ad seriatim
but rather by way of
a narrative. As a result, their answer to the timeline of events, and
specifically whether the first or second
respondents viewed this
letter and memorandum as anything other than an application in terms
of section 21 of the KZN Act, is not
entirely clear. They record that
a written report by the Department of COGTA dated 9 September 2022
attached to the answering affidavit
“…
sets out the
entire history of the appointment of the third respondent, the
complaints received from the Applicant’s group,
the appointment
of Injula Lwazi Research Institute to investigate the dispute, and
the receipt of its Report.”
They then alleged that “
the
recommendations of the Institute Report were adopted by the Premier
in Executive Council (“the Cabinet”) on 8 June
2022
and
accept that that constituted a decision by the first respondent.
[11]
At the hearing Mr. Mdladla for the applicants focused upon
submissions that the third respondent
had never validly been
recognised or appointed iNkosi. Particularly, he took issue with the
documentation relied upon by the first
and second respondents
allegedly evidencing this fact. He claimed that there is no evidence
that the third respondent was ever
appointed “
as a native
chief of Zondo/Madide tribe and/ or eMpangisweni community in terms
of section 2 (7) of the Black Administration Act.”
He
argued that the “Certificate of Jurisdiction” relied upon
by the first and second respondents does not resolve that
issue
because, so he submitted, the document was either “
forged or
fraudulent”.
[12]
Mr Dickson
SC argued that the Certificate of Jurisdiction together with a
document put up by the first and second respondents, being
a
“Proclamation by the Chief Minister of KwaZulu, M.G. Buthelezi
dated 5 May 1992, recording the establishment under section
5 (1)(a)
of the KAIA of
“…
a
Tribal Authority in respect of the aforesaid tribe
(the
Zondo Tribe)
under
Ibambabukhosi Samson Zondo, to be known as the Zondo Tribal
Authority”
sufficiently
established that the third respondent had been lawfully recognised
and appointed in about 1993. He also pointed out
that the third
respondent had been accepted as such ever since then. He argued that
a review of that appointment now, 30 years
later, was well out of
time in respect of PAJA and there being no application for an
extension of the time as required by PAJA,
such purported review must
fail.
[2]
[13]
As I have set out above, however, whilst the applicant has relied
upon the history to assert
that the third respondent was not, and
could not have been, recognised and appointed iNkosi of his “
Tribe”
,
the review is also against the decision by the first respondent “
to
abide the recommendations of the Injula Lwazi Research Institute”,
pursuant to the procedure invoked (clumsily perhaps) by the
applicant, purportedly on behalf of the relevant uMndeni weNkosi, in
terms of section 21 of the KZN Act. I intend to refer to this
procedure as “the section 21 complaint”.
[14]
The latter decision being sought to be reviewed then, is the decision
taken by the first
respondent effectively dismissing/rejecting the
section 21 complaint when the first respondent, so it is set out in
the first and
second respondent’s affidavit, considered the
ILRI report and had it adopted “
in Executive Council (“the
Cabinet”) on 8 June 2022.”
This application
was launched on 21 November 2022 according to the Registrar’s
stamp. That was within the 180 days of that
latter “
decision”
as provided for by PAJA.
[15]
The first and second respondents submit at paragraph 24 of the
answering affidavit as follows:
“
Furthermore,
if a case for removal under section 21 of the KZN Act is
sought to be made, this involves a complaint and action by the
Premier, who cannot remove an Inkosi without an enquiry. None of
those jurisdictional facts exist and no hearing has been held.”
[16]
However, in paragraph 39.9 of the first and second respondents answer
it is alleged that
“
The Premier did make a decision. It was
taken in Executive Council. The Premier accepted the recommendations
of the Institute.”
That can only mean on these facts, that
the first respondent decided the section 21 complaint and based that
decision on the investigation
initiated by COGTA and the report,
ultimately, of the ILRI.
[17]
I do not agree with the argument by the first and second respondents
that the “
jurisdictional facts”
relating to the
section 21 complaint do not exist. The first and second respondents
complain about the absence of a “
hearing”
and/or
“
enquiry”
. But that is not what section 21
requires. The letter and accompanying memorandum to the first and
second respondents dated 22
September records the submission of the
dispute in terms of section 21 of the KZN Act particularly in terms
of section 21(1)(c).
It also records that whilst it contains
allegations of misconduct, the “wrongful appointment”
issue is the section
21 “
removal”
issue relied
upon. What is then required of the first respondent, as a consequence
of a complaint is set out in section 21(3) as
follows:
"(3)
A traditional leader may only be removed from office on the grounds
set out in subsections (l)(a), (b) or (c) above after
he or she has
been given an opportunity to submit representations in response to
the grounds upon which his or her removal from
office have been
considered, and those representations have been considered by the
appropriate authority.”
[18]
The answer of the first and second respondents is that “the
Department”, being
the Department of the second respondent,
investigated the history and facts surrounding the relevant iNkosi
appointment/s and in
so doing sought the expertise of the ILRI to
“
assist with the investigation and mediation of the
dispute”.
(Paragraph 4.9 of the Department report dated 9
September 2022.)
[19]
It is, to my mind, clear that the first and second respondent pursued
the complaint by
the applicant/uMndeni weNkosi in terms of section 19
and 21 of KZN Act. This is, after all, a KZN matter and I can
conceive of
no reason why they could not proceed on that basis. That
being so, the first respondent enlisted the assistance of the second
respondent
with the representations set out in the complaint, which
then investigated the matter and in turn enlisted the assistance of
experts
of the ILRI who also investigated and produced a report. This
the first respondent was obliged to do in terms of section 21(3) of
the KZN Act. I repeat; a complaint was made with reference to the
relevant sections of the KZN Act and an enquiry was held. The
first
respondent then made her decision. Paragraph 39.9 of the answering
affidavit clearly says as much when it records “
The Premier
did make a decision. It was taken in Executive Council. The Premier
accepted the recommendations of the Institute.”
[20]
The applicant accepted that eventually (alleging initial dilatory
conduct by the first
and/or second respondents as set out above) an
investigation was conducted by the first and/or second respondents
culminating in
the investigation by the ILRI. The applicant also
accepted that that investigation included “
interviews and
members of the Royal Family participated in the process. Apparently
ILRI met with all interested parties within the
family and other
individuals within the community”.
[21]
The applicant places significant reliance on the meeting of what he
calls “
the Royal family or uMndeni weNkosi”
on 11
September 2021. He claims that at that meeting it was “
unanimously
decided that I was the one identified as the new iNkosi for the Zondo
tribe and eMpangisweni community”.
That meeting, so he
says, “
marked the uMndeni weNkosi’s official
compliance with section 19 of the KZN Act.”
He claims that
those minutes are a true reflection of the fourth respondent’s
wishes, and that the second respondent’s
officials accepted
that fact.
[22]
After receiving the ILRI report for the first time he was of the view
that the report was
poorly written and the content unsupported by
evidence. He claims that the report was confused as to whether the
instruction had
been to mediate or establish whether the third
respondent had in fact been wrongfully appointed. He denied that
there was any evidence
that the third respondent had in fact been
rightfully appointed. He denied the allegation in the report that
“
the family was divided”
and denied the adverse
findings made against himself. He claims that the report found that
the third respondent was the firstborn
child of Maria KaMaphisa
Zondo, his mother, but that the report had avoided pointing out that
there was no evidence that the third
respondent was in fact a son of
the applicant’s father.
[23]
He alleges that in order to be considered as a successor to his
father the third respondent
ought to have been
his father’s
firstborn child. He pointed out that the report referred to the third
respondent as “
ilongwe”
, which means illegitimate
child, and claimed that an illegitimate child “
can never
assume the bloodline of ubukhosi”.
He alleged further that
when the report recommended an investigation into the conduct of the
third was on and “full purposes
of disciplinary action”
the inference was that the report was confused as to whether it was
being conducted in terms of a
misconduct allegation or a wrongful
recognition allegation.
[24]
In the result he alleges the following reviewable irregularities in
the Premier’s
decision, reliant as it is on the findings of the
ILRI report:(I summarise)
a)
Bias or reasonable suspicion of bias on the basis that the ILRI
report was one- sided, biased, and unreasonable.
b)
A mandatory and material procedure or condition prescribed by an
empowering provision was not complied with
on the basis that there
was no evidence that the third respondent had been validly appointed
and that because of the meeting of
11 September 2021 it was mandatory
that he, the applicant, be appointed.
c)
The action was procedurally unfair on the basis that it was not
necessary for the ILRI to have enquired into
alleged misconduct on
the third respondent’s part.
d)
The action was materially influenced by an error of law on the basis
that the reports acceptance of the appointment
of the third
respondent was a “
grave error of law”
.
e)
The action was taken for reasons not authorised by the empowering
provision on the basis that there is no empowering
provision
authorising the appointment of the third respondent.
f)
The action was taken because irrelevant considerations were taken
into account, all relevant considerations
were not considered on the
basis that there was no evidence that Samson and never been removed,
and that the third respondent had
not been lawfully recognised but
had “
usurped”
the position over 30 years.
g)
The action was taken because of the unauthorised or unwarranted
dictates of another person or body on the basis
that the ILRI report
was used as the sole reference.
h)
The action was taken arbitrarily or capriciously on the basis that
the first and second respondents’
acceptance of the report
recommendations was unfounded, random, and not based on facts or
evidence.
i)
The action concerned consists of a failure to take a decision only on
the basis that in the event that
the first respondent alleged that no
decision had been taken then she had a duty to do so.
[25]
The first and second respondents denied any bias and alleged that the
Department had been
“
very careful to conclude this dispute
without a bias. The Premier accepted the recommendations of the
Institute without bias. The
complaint about the meeting is not
evidence of any bias or favouritism”.
They also denied non-
compliance with procedures, any procedural unfairness, any errors of
law and any unauthorised actions. They
denied that any irrelevant
considerations were either accepted or omitted. They pointed out that
the administrative action appointing
the third respondent had existed
for 30 years and could not just be ignored. Nothing had been done by
the applicant between 1993
and 2020. They denied that receiving the
Institute Report constituted the acceptance of unauthorised or
unwarranted dictates of
another body. It was pointed out that the
content of the report did not contain “
dictates”
.
They denied that the decision was arbitrary or capricious. They
emphasised that a decision had been taken. They allege that this
dispute is not about appointing a successor in terms of section 19 of
the KZN Act because there is already an incumbent.
[26]
In my view, a material issue in this application is a determination
of the status of the
third respondent at the time the first
respondent made her decision. In my view, current attitudes of the
community towards him
are not relevant to that determination.
[27]
The first and second respondents attached to their answer, an initial
written report of
an investigation by the Department on the issue by
dated November 2020, the report of ILRI dated 24 November 2021 and a
further
written report by the Department dated 9 September 2022.
[28]
In its executive summary the ILRI report makes it clear that their
investigation was into
essentially two claims, the first being
whether the third respondent had been “
wrongfully
recognised”
and the second being the issue of the paternity
of the third respondent and its relevance to the position he holds.
[29]
The
relevant customary law provides for the principle of male
primogeniture which dictates that only a male who is related to the
deceased through a male line qualifies as interstate heir and it
looks to the eldest male descendant of the deceased first.
[3]
The ILRI
was well aware of this principle being applicable at the time. It
conducted an extensive investigation into this “
succession
dispute”
.
The report consists of no less than 30 pages of close-cropped print.
Whilst it may make for difficult reading, what is clear is
that the
investigation was thorough and both appreciative of applicable
legislation and applicable custom/s. It is evident that
the ILRI
interviewed and investigated the relevant parties and families
extensively and in detail. They did this against the knowledge
that
these types of succession disputes invariably result in tensions
within families and traditional communities and that a resolution
based on a proper and full investigation is essential. As the report
says, “
face-to-face
interviews are preferred”
.
That was done extensively. There were also meetings, so the report
records, with the applicant, the third respondent and numerous
other
relevant immediate family individuals. The ILRI was aware of the 11
September 2021 meeting (as it was in respect of the other
relevant
meetings) and notes in its report that the third respondent had not
been present at that meeting.
[30]
In my view the ILRI considered all relevant information in a careful
manner before coming
to its conclusion and recommendation. In its
opinion it was satisfied that the evidence indicated that the third
respondent was
the oldest son of the previous iNkosi but that to put
that matter to permanent rest a DNA test could be conducted. The
report sets
out, however, that the illegitimacy issue is immaterial
as it “
was withdrawn for reasons highlighted in the letter
of the claim by Mr B.S.W. Zondo as recorded in the minutes of the
meeting of
11 September 2021
”. That is the meeting that the
applicant places significant reliance on, as set out above. In my
view there is no satisfactory
evidence that the third respondent was
not the first-born son of the erstwhile iNkosi. Those allegations are
subjective, speculative,
and contradictory. The applicant did not
seek that the matter be referred for oral evidence. It requires the
application to be
decided on the papers. The speculative nature of
these allegations, anyway, do not result in a genuine dispute of
fact. Even if
true, however, for 30 or so years the third respondent
has occupied the position and continues to do so. A review of the
third
respondent’s appointment and recognition as iNkosi in
1993, is manifestly late and there is no acceptable reason, in my
view,
for the almost 30-year delay. The result is that it has become
“insulated” from review, whatever its initial
justification
may or may not have been. Mr Dickson SC relied upon
Mec
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute -
2014 (3) SA 481
(CC)
at
paragraph
97
particularly, for that submission. In paragraph [97] the
Constitutional Court held as follows: “
The point is this.
Far from unjust administrative conduct not being administrative
action at all, PAJA makes clear that it falls
within the definition
of administrative action but is subject to review. This approach to
the nature of administrative action and
decisions meshes with the
premise inherent in both the common-law rule against unreasonable
delay and PAJA's requirement that proceedings
for judicial review
must be instituted without unreasonable delay and, subject
to
condonation,
within
180
days.
Both
proceed
on
the
basis
that irregular
administrative actions may become insulated from review because of
delay. This means they will never be declared
invalid. They therefore
retain lawful consequence. No other approach is practicable.”
I
align myself with that analysis of the legal position therein.
[31]
The ILRI report is also clear that there were numerous contradictory
contentions by the
persons and entities investigated and interviewed
in respect of how it had come about that the third respondent had
been recognised.
Blame was apportioned left, right, and centre. Yet
the report managed to distil conclusions and recommendations in
respect of the
relevant claims and disputes. On this issue, the
report sets out that “
the claim of illegitimacy was
withdrawn by the family and the inappropriate appointment was
disproved by documents received by the
Department which endorses that
iNkosi Vusumuzi Douglas Zondo was installed properly by the then MEC
iNkosi N J Ngubane.”
The final ILRI conclusion and
recommendation is what I have already set out in paragraph [5](v)
above.
[32]
The first and second respondents attached to the answering affidavit
copies of documentary
evidence considered by the ILRI, which the
first and second respondents allege confirms the recognition and
appointment of the
third respondent as iNkosi in 1993. That
documentation constitutes a “
Certificate of Jurisdiction
signed by the Minister of Justice on 7 June 1993”
certifying
the area of jurisdiction of Third Respondent as Chief of the Madide
clan (Zondo Clan), a Proclamation by the Chief Minister
of KwaZulu,
M.G. Buthelezi dated 1992 fixing the area of the Zondo tribe
jurisdiction and as being at the time under the Regent
Samson Zondo,
and a certificate dated 26 June 1993 signed by the Director-General
of the Department of Regional and Land Affairs
in terms of section 12
of the Black Administration Act 36 of 1927 which records the third
respondent is being recognised as “
Kaptein”
,
another word at the time for iNkosi, of the Zondo tribe. These were
accepted, correctly in my view, by the ILRI.
[33]
The circumstances surrounding the Regent’s alleged recognition
at the death of David
Thanduyise Zondo is anything but clear on the
evidence. On an acceptance of the third respondent’s lineage,
however, as oldest
son he was next in line. Thus, in my view, his
recognition and appointment in 1993 or so, was justifiable. Mr.
Mdladla pointed
out that the third respondent did not take any part
in this application. I am not satisfied that that fact is of any
assistance
to the applicant because this application is to review
administrative action/s by the first and/or second respondents.
[34]
There is no dispute that for years the third respondent’s
occupation of that position
was never challenged. Instructive on this
issue is the ILRI report that “
The succession dispute
between B.S.W. Zondo and V.D. Zondo emerged in 2019”
only.
[35]
The applicant saw fit to deliver an affidavit of one Mkhobeni Meshak
Mashazi dated March
2023 together with his replying affidavit,
purportedly to introduce new evidence as to the circumstances of the
recognition of
the third respondent as iNkosi in 1993. No condonation
was applied for to introduce new evidence at that stage and such
attempt
was objected to be the first and second respondents who
argued that it had to be iognored. Whatever the case may be, I do not
consider
that it takes the appointment of the third respondent
initially much further. Ultimately, he says “
I am advised
that there is no record that such installation/recognition event was
even official, I was not part of that process
either.”
He
does not set any first-hand facts disputing the recognition of the
third respondent.
[36]
The first and second respondents have argued that the “
real
uMndeni weNkosi”
have
not been joined, such non-joinder being fatal. I am not convinced,
however, that there is merit in that submission. It is instructive
that the fourth respondent has, independently of the applicant, given
Notice on 21 December 2023, of its intention to abide. No
party
objected thereto or challenged that Notice was fraudulent or not
binding on the relevant uMndeni. The ILRI report talks of
numerous
meetings with Umndeni representatives but precisely who constitutes
the relevant uMndeni in respect of this application
is also far from
clear. The complaint was launched initially by the applicant alleging
to be acting on behalf of the uMndeni. The
founding affidavit
describes the fourth respondent and sets out its address. The Notice
to abide is signed by an individual “
duly authorised”
by the fourth respondent from that address. I accept, in the
circumstances, the proper joinder of the fourth respondent.
[37]
I now turn to the specific grounds of review relied upon by the
applicant as set out above:
a)
The report was biased and unreasonable:
In my view, a
consideration of the report as a whole does not support that
argument. The applicant pointed out no specific instances
demonstrating bias or an unreasonable approach by the ILRI and the
ground has no merit.
b)
The lack of evidence of the third respondent’s appointment
and the ignoring of the meeting of 11 September:
The ILRI had the
documentary evidence referred to above. The events happened about 30
years ago and nothing more is available. The
available documents
result in an unavoidable inference, in my view, that the third
respondent was so appointed. Even if I am wrong,
the unjustifiable
delay has now insulated that appointment.
c)
The action was procedurally unfair:
For reasons fully set out
above, I do not agree. The procedure required by section 21 of the
KZN Act was followed and the investigation
involved all parties,
including the applicant.
d)
Irrelevant considerations were applied:
The applicant does not
specify what these were. A careful reading of the relevant reports as
considered by the first respondent
do not evidence that in my view. I
do not agree that the decision was taken capriciously or arbitrarily
as submitted by the applicant.
The reasons for the decision are
founded in a comprehensive and fair investigation by the relevant
authorities and ultimately the
first respondent.
Conclusion
[38]
Against that background, I am not persuaded that the first and second
respondents were
wrong in their assessment of the decision to be
taken, and ultimately taken, by the first respondent regarding the
applicant’s
section 21 complaint.
[39]
I have carefully considered all attacks on the first respondent’s
decision to “
abide the recommendations of the Injula Lwazi
Research Institute”
report but find that on the evidence
before me, they are all unjustified.
[40]
I am satisfied that the first respondent acted lawfully in
consequence of the complaint
lodged by the applicant under section 21
of the KZN Act and that the requirements of section 21(3) were
complied with.
[41]
In my view that there is no evidence justifying the applicants PAJA
complaints. The complaints
are perfunctorily set out. Mainly they are
regurgitations of grounds set out in section 6 of PAJA. I am not
satisfied that the
applicant has established merit in any of them.
[42]
The first and second respondents have asked that the application be
dismissed with costs.
Given the nature and character of this
litigation, and the principles set out in
Biowatch Trust v
Registrar, Genetic Resources, and Others -
2009 (6) SA 232
(CC),
I
am not prepared to make such a costs order.
[43]
In the result:
The
application is dismissed. Each party is to pay its own costs.
PITMAN
AJ
Date
reserved:
31 January 2024
Date
delivered:
13 March 2024
For
Applicant:
Adv Mdladla
Instructed
by:
NOMPUMELELO, HADEBE INC.
Email:
litifation@nhadebeattorneys.co.za
c/o BPL Attorneys
Email:
info@bplattorneys.co.za
For
Respondents 1st and 2nd:
Adv Dickson SC
Instructed
by:
Tembe Kheswa Nxumalo Inc
Email:
madoda@tkninc.co.za
/
nontando@tkninc.co.za
Tel: 031 303 2022
Ref:
MMN/LIT18181
c/o
Motloli Attorneys Inc Tel: 033 3422120
Email:
admin@motloli-
inc.co.za
[1]
See the definitions of “administrative action” and
“decision” in section 1 of PAJA.
[2]
Section 7(1) of PAJA sets the time limit at 180 days.
[3]
Madondo MI. Customary Law in Constitutional Democratic South Africa,
First Edition, LexisNexis, 2023 pp 84 and 311