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[2024] ZAECMHC 1
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Mbolekwa and Another v Premier of the Eastern Cape and Others (Pakati J) [2024] ZAECMHC 1 (19 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO: 2263/2022
In
the matter between:
ELLIOT
MHLABUNZIMA MBOLEKWA
First
Applicant
MBOLEKWA
ROYAL FAMILY
Second
Applicant
and
THE
PREMIER OF THE EASTERN CAPE
First
Respondent
THE
MEC FOR CO-OPERATIVE GOVERNANCE
Second
Respondent
&
TRADITIONAL AFFAIRS: EASTERN CAPE
THE
CHAIRPERSON OF THE EASTERN CAPE
Third
Respondent
HOUSE
OF TRADITIONAL LEADERS
AMAHLUBI
TRADITIONAL COUNCIL
Fourth
Respondent
JUDGMENT
PAKATI
J
Introduction
[1]
The first and second applicants, Mr Elliot Mhlabunzima Mbolekwa and
the Mbolekwa Royal Family
(“the Royal Family”), seek to
review and set aside the decision of the first respondent, the
Premier of the Eastern
Cape and/or the second respondent, MEC for
Co-operative Governance and Traditional Affairs, Eastern Cape (“the
respondents”),
who refuse to recognise the first applicant as
the Chief/Senior Traditional Leader of Governors Drift Administrative
Area (“the
impugned decision”). They further seek an
order directing the respondents to appoint the first applicant as the
Senior Traditional
Leader alternatively that the matter be remitted
to the Royal Family for reconsideration and recommendation. Further
relief sought
is an extension of time within which to bring the
review application in terms of s 9(2) of the Promotion of
Administrative Justice
Act (“PAJA”).
[1]
The respondents oppose the application.
The
applicant's case
[2]
The first applicant is the son of the late Chief Mhlayifani Mbolekwa
(“the deceased”)
who was, during his lifetime, the Chief
of Governors Drift Administrative Area (“Governors Drift A/A”),
a traditional
community of the AmaZizi Tribe. This area is made up of
six locations. They are, Walaza, Ntilini, Mbihli, Komkhulu, Matolweni
and
Fihlani. When the deceased died, the first applicant was still a
minor. His uncle, Mr Mxhamli Mbolekwa, was appointed as the acting
Chief and regent until the applicant was able to take over. After the
passing of Acting Chief Mxhamli Mbolekwa, the members of
the Royal
Family held a meeting on 12 April 2011, with due regard to the
applicable customary law and identified the first applicant
as the
person who qualifies in terms of customary law to succeed the
deceased and his uncle as the Chief of Governors Drift A/A.
In 2015,
the Premier of the Eastern Cape and the Traditional Council were
informed of the person identified by the Royal Family
as well as his
particulars and the reasons for his identification, in compliance
with s 11(1) of the Traditional Leadership and
Governance Framework
Act 41 of 2003 (“the TLGF Act”) read with s 23 of the
Eastern Cape Traditional Leadership and
Governance Act 1 of 2017
(“the EC-TLG Act”). The recommendation was also forwarded
to the Sterkspruit Regional Authority
for Traditional Affairs,
Chairperson of the House of Traditional Leaders and the MEC, in 2016,
for consideration and decision.
The letters and documents from the
office of the Magistrate and Native Commissioner, Sterkspruit (“the
‘
Native Commissioner’”)
were also attached
to the papers to confirm that the deceased was the Chief of Governors
Drift A/A. The first applicant contended
that he met the criteria to
be recommended as Chief of Governors Drift A/A.
[3]
It is important to note that the national legislation is the now
repealed
Traditional Leadership and Governance Framework Act 41 of
2003
and was the applicable Act when the Mbolekwa Royal Family made
its recommendation. Currently, the provincial legislation applicable
in this matter is the Eastern Cape Traditional Leadership and
Governance Act 1 of 2017.
[4]
The first applicant asserts that initially, Chief Ayanda Mehlomakhulu
of Ntsimekweni Village in
Sterkspruit disputed the scope of the
chieftainship of the first applicant over certain areas of Governors
Drift, alleging that
they fell under his chieftainship. The dispute
was investigated, and a report was compiled. Then Chief Mehlomakhulu
was informed
of the Mbolekwa Royal Family Chieftainship. In a letter
dated 01 September 2016 (Annexure “EMM12”), signed by
Chief
Ayanda Mehlomakhulu, he confirmed that his chieftainship was
aware of the applicants’ chieftainship. This letter is written
in IsiXhosa and translated into English by a court interpreter, Mr V
Vas. The letter and the translated version read:
IsiXhosa version
“
UBANGO
LOBUKHOSI LUSAPHO LUKA MBOLEKWA
Thina Mehlomakhulu
Royal Family sisifumene isicelo se Mbolekwa Family sobango lobukhosi.
Siyaluxhasa olu bango kuba sinolwazi ngalo.
Ngexesha ukhokho wethu
UNkosi Joel Senzangakhona Mehlomakhulu eyi Nkosi ngo June 1903,
ukhokho wale family uNkosi Hans Macacuma
Mbolekwa ebe yiNkosi yase
Governors Drift.
Eli bango
silidlulisela e Bhisho ukuze isicebise.”
Translated version
The claim to the
chieftainship by the Mbolekwa Family
We, the Mehlomakhulu
Royal Family have received the request from the Mbolekwa Family
relating to the chieftainship. We support this
claim because we bear
knowledge of it. When our great-grandfather, Chief Joel Senzangakhona
Mehlomakhulu was a Chief during June
1903, the great-grandfather of
this family, Chief Hans Macacuma Mbolekwa, was the Chief of Governors
Drift. We are forwarding this
claim to Bhisho for them to advise us.
[5]
In 2016, Chief Mehlomakhulu withdrew his objection to the Mbolekwa
chieftainship and endorsed
the first applicant's claim. The
respondents have been apprised of this development. The Royal Family
re-submitted their recommendation
to the Premier and MEC, on 13 June
2017.
[6]
After the respondents received the recommendation from the Royal
Family to comply with s 11 of
the TLGF Act read with s 23 of the
EC-TLG Act. The respondents failed to recognise the first applicant
and consequently refused
to issue the certificate of recognition.
That is despite various correspondence that was addressed to
respondents by Mr Notyesi,
the first applicant’s attorney of
record. The respondents also failed to refer the matter to the Royal
Family in terms of
s 23(5) (d) of the EC-TLG Act. The applicants
allege that they acted in contravention of the mentioned provisions.
[7]
As a consequence of the respondent’s failure to recognise him,
the first applicant launched
a review application under case number
257/2018 against such failure. The application sought an order
directing the respondents
to consider and decide on the
recommendations of the Royal Family for his appointment within 30
days of the order and advise him
of its decision. On 13 June 2019,
the Court ordered the respondents to consider the appointment of the
first applicant as the Chief
of the Governors Drift A/A. The
respondents failed to comply with this order.
[8]
On 22 October 2019, the first applicant launched an application to
compel the respondents to comply
with the Court order dated 13 June
2019. Prior to hearing the said application, the first applicant
received a letter dated 07
October 2019 (Annexure “EM2”),
wherein the MEC refused to implement the recommendation of the
Mbolekwa Royal Family.
Paragraph 3 of the letter contains the reason
for the refusal to implement the Royal Family’s identification,
which is the
bone of contention in this review application. It reads:
“
3 The department
has considered the recommendations of Mbolekwa Royal Family and a
decision that has been taken is that such recommendations
cannot be
implemented due to the following reason:
4. In terms of [EC-]
Traditional Leadership and Governance Act, 2017 (Act No. 1 of 2017),
Administrative Area[s] are headed by headmen
and not by Chiefs/Senior
Traditional Leaders.”
[9]
On 04 November 2020, Mr Notyesi escalated the matter to the office of
the respondents and informed
the Premier that the MEC’s refusal
to recognise the first applicant was unlawful and not based on any
permissible grounds
for rejection. That is because the MEC and Mr
Fani, the Provincial Head of the Co-operative Governance and
Traditional Affairs
Department, were not authorised to reject the
Royal Family’s recommendation and refused to recognise the
first applicant
in terms of s 6 (2) (a) (i) of PAJA and therefore had
no delegated power to do so. Moreover, there was no assertion that
the identification
lacked conformity with established customary legal
frameworks, traditions, or procedural norms.The Premier was requested
to either
recognise the first applicant as Chief of Governors Drift
A/A or refer the matter back to the Royal Family for reconsideration
and resolution in the event he refuses to recognise the first
applicant within 30 days. No response was forthcoming from the
Premier’s
office.
[10]
On 09 November 2020, Mr Notyesi addressed another letter to the
respondents. Paragraph 5 of the letter remarked
thus:
“
5. We respond to
the letter aforesaid and advise that your decision is ill-founded and
is tainted with material misunderstanding
of the law, is irrational
and unreasonable in that:-
5.1 Nowhere in the Act
you referred to a Senior Traditional leader is prohibited from being
appointed in the Administrative Area.
The Act says the administrative
Area falls under the jurisdictional area of the Senior Leader. Thus
means, in an Administrative
Area there has to be a Senior Traditional
Leader.
5.2 Even yourself, you
failed to identify which section prohibits the appointment of the
Chief in the Administrative Area.
5.3 It is obvious, if one
[has] regard to the provisions,
section 1
(1) (a) of the
Traditional
Leadership and Governance Framework Act, 41 of 2003
, it is clearly
contemplated that the headman is a traditional leader who is under
the authority of, or exercise authority within
the area of
jurisdiction of a senior traditional leader in accordance with the
customary law.
In view of the above,
your decision to reject the recommendations of the Mbolekwa Royal
Family on the appointment of our client
as the Chief of Governors
Drift is misguided and misconceived. Our instructions are to demand
you to reconsider the decision aforesaid
within 14 (fourteen) days of
receipt of this letter hereof, failing which we shall launch review
application to set aside your
decision and seek costs on a punitive
scale.”
[11]
In reply, Mr A Fani forwarded a letter dated 24 November 2020, to Mr
Notyesi which
inter alia,
records:
“
Section 1 of the
Eastern Cape Traditional Leadership Act, 2017 (Act 1 of 2017),
defines an administrative area as an area of jurisdiction
under the
authority of
headmanship or headwomanship
and within the jurisdictional area of a senior traditional leader in
accordance with customary law.
Section 23(12) of the
aforementioned Act further provides that headmen or headwomen may
only be appointed for an
administrative area
of a
traditional community with not less than 200 household.
The aforementioned
provisions, especially section 1, are clear and unambiguous that
administrative areas are under the authority
of headmen and headwomen
and not chiefs…
The decision cannot be
reconsidered in the circumstances, and we hope we have placed
sufficient reasons for your client to understand
that the intended
review application is unnecessary and will find it convincing not to
bring a hopeless case in court.” (Mr
Fani’s emphasis)
[12]
The reading of the letter
supra
shows that Mr Fani relies on
sections 1 and 23 (12) of the EC-TLG Act to support his assertion.
The first applicant maintains that
the respondents’
understanding of these sections remains misguided.
[13]
The first applicant contends further that the respondents’
failure to recognise him is unlawful and
should be reviewed and set
aside because:
13.1 it is
materially influenced by an error of law in terms of s 6(2) (d) of
PAJA.
13.2
the respondents failed to consider the relevant considerations in
terms of s 6(2) (e) (iii). eg the attached
documents from the Native
Commissioner and Magistrate (annexures “EMM3”- “EMM9”)
confirming that the first
applicant’s father was the Chief of
Governors Drift which is made up of six locations, as alluded. These
documents were not
disputed.
13.3 the
respondents’ decision is irrational (s 6 (2) (f) (ii)).
13.4
the exercise of the respondents’ power is unreasonable and did
not adhere to the prescribed procedure
(s 6 (2) (h)).
13.5
the respondents failed to follow the mandatory and material procedure
(s 6 (2) (b)).
[14]
It is trite that s 23 of the EC-TLG Act empowers the Premier to
recognise traditional leaders thereby following
the processes
provided for in that section. Initially, the applicants submitted
that the MEC was not empowered to make the decision
and that it did
not appear that when he made the decision, he had been delegated to
do so. However, proof that the Premier delegated
such authority to
the MEC is attached to the answering affidavit as annexure “ZB7”.
The applicant did not pursue this
argument when the matter was heard.
Extension
of time
[15]
The first applicant also applies for an extension of time within
which the review should be brought in terms
of s 9 (2) of PAJA
because it is in the interests of justice to do so.
[2]
The reasons advanced by the applicants to support this
application are
inter
alia
,
that the respondents have been reluctant in complying with their
statutory obligations to decide on the recommendations submitted
by
the Royal Family. They are primarily responsible for the substantial
portion of the delay in this matter, the argument goes.
Mr Notyesi
had to address letters to the respondents in an attempt to secure a
decision from the respondents as they were not cooperative.
The first
applicant had to approach the court with an application to compel the
respondents to decide. The court granted the order.
Even then, they
still refused to decide, which order was successful. On 22 October
2019, the applicants had to again compel the
respondents to comply
with the court order. It was at that stage that the court ordered the
respondents to pay costs jointly and
severally the one paying the
other to be absolved. The first applicant submits that some delay
that could be attributable to him
was at the time the applicants
tried to engage the respondents, instead of litigating against them.
Refusing the application would
be unjust and deprive him of an
opportunity to apply for the review, the argument continues. That is
because he would suffer prejudice
as he would remain unrecognised as
the chief. The first applicant contends that the respondents would
not suffer any prejudice
if the application were granted in his
favour.
The
respondent’s version
[16]
The allege that the relief sought by the applicants is an order that
falls outside their powers. The respondents
allege further that the
resolution by the second applicant was not that of a chief but an
acting chief/acting traditional leader.
The respondents allege
further that after the passing of the deceased, his uncle was
appointed as acting chief because he was still
a minor, but
strangely, the first applicant never ascended to the throne when he
attained majority.
[17]
The applicants approached the court citing the letters dated 07
October 2019 and 24 November 2020, which
informed them that
administrative areas are headed by headmen and not chiefs as per the
EC-TLG Act. However, the respondents argue
that the relief sought by
the applicants is incompetent and would amount to countenancing an
illegality. In their view, the applicants
have failed to establish a
case for the relief sought, and therefore, the application should be
dismissed with costs.
[18]
The respondents have not contested Chief Mehlomakhulu's
acknowledgment of the Mbolekwas' chieftainship in
annexure "EMM
12". However, their response was that the contents of the letter
were immaterial, and that the applicants
had not adhered to the
proper procedures.
[19]
The Premier denies that he has an obligation/duty under s 11 of the
TLGF Act and EC-TLG Act to implement
the resolution of the second
applicant. He also disputed that he failed to refer that matter to
the Royal Family. He asserts that
it is in certain circumstances that
a premier has such a duty, and this is not such an instance. He
referred to no provision that
supports this assertion. He refutes the
claim that they filed a review application against the Premier for
not acknowledging the
first applicant. Rather, they filed it against
the Premier for not making a decision on the application for
recognition. The Premier
has since issued a response to the
applicants' letter. The respondents are claiming that the Premier did
not outright refuse to
comply with a court order. Instead, there was
a delay in making the decision, which was communicated in a letter
dated 07 October
2019. The Premier is also denying that the decision
was made by an unauthorized person. The respondents argue that the
decision
is both lawful and not subject to review.
[20]
The respondents deny further that they were unreasonable, and
irrational and did not consider relevant information
when deciding
the issue. They insist that they follow the statutory prescripts.
[21]
Regarding the extension of time, the respondents allege that the
review proceedings have been brought in
bad faith, which is denied by
the applicants. They contend that the applicants have no prospects of
success and have failed to
make a case for the extension of time. The
application should be dismissed.
Legal
authorities
[22]
Chapter 12 of the Constitution deals with the recognition of
traditional leaders. Sections 211(1) and 212(1)
of the Constitution
provide:
“
211 (1) The
institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.
212 (1) National
legislation may provide for a role for traditional leadership as an
institution at local level on matters affecting
local communities.”
[23]
The recognition of senior traditional leaders, headmen or headwomen
is regulated by section 23 of Eastern
Cape Traditional Leadership and
Governance Act 1 of 2017 which provides:
“
23 (1) Whenever a
position of a traditional leader is to be filled-
(a)
the relevant royal family must, within 14 days after the position
becomes vacant-
(i)
identify a person who qualifies in terms of customs of the relevant
traditional community,
to assume the position in question after
taking into account whether any grounds referred to in section 24 (1)
apply to that person;
and
(ii)
through the relevant customary structure, inform the Premier of the
particulars of the
person identified to fill the position and of the
reasons for the identification of that person; and
(b)
(i) the Premier must,
subject to subsection
(5) by notice in the Provincial Gazette, invite
comments on the intended recognition of the person identified by the
royal family
as a traditional leader; and
(ii)
comments contemplated in subsection (b)(i), must be submitted within
21 days of the
date of the publication of the notice.
(2)
The Premier must within 60 days of the publication in the notice,
consider and decide on
the comments contemplated in subsection (1)
(b) (ii) and, should circumstances permit, recognise a person
identified by the royal
family as a traditional leader.
(3)
Before the notice referred to in subsection (1) (b) is published, the
Premier must
inform the Provincial House in writing of the
particulars of a person identified.
(4)
The premier must, within 30 days after the date of recognition, issue
to the person who
has been identified in terms of subsection (1) (a),
a certificate of recognition.
(5) Where the
Premier has received evidence or an allegation that the
identification of a person referred to in subsection
(1) was not done
in accordance with provisions of this Act, the Premier may refer the
matter to
(a) the King or
Queen;
(b) Provincial House for
its recommendation; or
(c) may refuse to issue a
certificate of recognition; and
(d)
must
refer the
matter back to the royal family for reconsideration and resolution
where the certificate of recognition has been refused.
(6) Where the
matter which has been referred back to the royal family for
reconsideration and resolution in terms of subsection
(5) (c) has
been reconsidered and resolved, the Premier must recognise the person
identified by the royal family if he or she is
satisfied that the
reconsideration and resolution has been done in accordance with law.
(7) Where the
matter which has been referred back to the royal family for
reconsideration and resolution in terms of section
(5) (d) cannot be
resolved, such matter must be referred to the King or Queen and the
Provincial House of Traditional Leaders,
which seek to resolve the
matter in accordance with its internal rules and procedures.
(8) (a) A
traditional leader is deemed to retire from office upon his or her
written request for retirement to the Premier.
(b) On retirement, a
traditional leader ceases to be recognised in terms of this Act.
(10)
A traditional leader assumes office on the date on which he or she is
recognised by the Premier.
(11)
In case of a newly recognised traditional community, a person may
only be recognised as a senior
traditional leader: Provided that such
a traditional community has at least five or more administrative
areas.
(12)
Headmen or headwomen may only be appointed for an administrative area
of a traditional community
with not less than 200 households.”
[24]
Mothle AJA (Maya P, Swain, Mathopo and Mocumie JJA concurring), in
Mphephu
v Mphephu-Ramabulana and Others
[3]
held:
“
[18]
A decision of the President or the Premier is thus reviewable in
terms of the Framework Act. Section
6(1) of PAJA provides that such
review proceedings may be instituted in a court or tribunal. Section
1 of PAJA define ‘court’
as including the Constitutional
Court in certain circumstances, the High Court or to a limited
extent, the Magistrate’s Court
as courts of first instance
where the proceedings may be instituted. PAJA therefore grants the
courts jurisdiction to adjudicate
the review of an administrative
action taken in terms of the Framework Act. In terms of s 8 of PAJA,
the court may, after review,
grant any order that is just and
equitable as an appropriate relief.”
[25]
The Constitutional Court confirmed that the Premier’s action
constituted administrative action.
[4]
In casu
,
the respondents’ decision constitutes an administrative action
which is reviewable under PAJA. That is because the respondents
took
a decision and refused to recognise the first applicant as a chief.
[26]
I now turn to deal with the grounds of review raised by the
applicants.
Error
in law
[27]
The first applicant submits that the decision not to recognise him
based on an assertion that Governors Drift
A/A is an area headed by
headmen and not chief is an error of law which is reviewable under
section 6(2) (d) of PAJA. For this
assertion, the first applicant
relies on s 94(6) of the EC-TLG Act which provides that a traditional
community that was recognised
as such prior to the promulgation of
the EC-TLG Act would continue to formally enjoy such recognition as
if formally recognised
under s 4 of the EC-TLG Act. The first
applicant argues that this error is material in that the respondents
would not have made
it if they had appreciated that the first
applicant is entitled, as a matter of law, to be recognised as a
chief of Governors Drift.
That is so because a senior traditional
leader is defined as a traditional leader of a specific traditional
community who exercises
authority over several headmen or in
accordance with customary law, or within whose area of jurisdiction a
few headmen exercise
authority.
[28]
In response, the respondents in paragraph 76 of the answering
affidavit, deny that Governors Drift is a traditional
community that
was recognised prior to the promulgation of the EC-TLG Act. The
deponent to the answering affidavit, Mr Zingisa
Bokwe, added:
“
On available
evidence, prior to the Framework Act and the EC-TLG Act there was no
Chieftainship or Senior traditional Leadership
in Governance Drift,
let alone one headed by the applicants. In fact, the definition of a
traditional community in the EC-TLG Act
does not apply
retrospectively.”
[29]
Section 94(6) of the EC-TLG Act states:
“
(6)
Any
traditional community established in terms of applicable legislations
and was still recognised as such before the commencement
of this Act,
is deemed to be a traditional community contemplated in section 4 of
this Act
, subject to-
(a) The
withdrawal of its recognition in accordance with the provision of
section 5 of this Act; or
(b) A
decision or recommendations of the Commission or Committee of the
Commission on Disputes and Claims in terms
of section 26 of the
Framework Act as amended.” Emphasis added.
[30]
Section 94(6)
supra
, needs no clarification or restatement.
However, it is unclear what available evidence referred to by the
respondents shows that
prior to the Framework Act, there was no
chieftainship in Governors Drift A/A, ‘
let alone one headed
by the applicants
.’ They did not dispute the letters and
documents from the ‘
Native Commissioner
’ issued
under the Black Authorities Act 68 of 1951, which confirm that
Governors Drift A/A was a traditional community made
up of six
locations, which at the time, was led by the deceased, the father of
the first applicant. In fact, the respondents made
no reference to
those letters. They either did not apply their minds to the
documents, or they simply ignored them despite the
fact that they
were relevant and should have been considered when the decision was
made. The respondents produced no evidence to
disprove them.
[31]
Moreover, the respondents have not advanced any evidence of
withdrawal of recognition in accordance with
s 5 of the EC-TLG Act or
a decision or recommendation of the Commission or Committee of the
Commission on Disputes and Claims in
terms of section 26 of the
Framework as amended. The reading of s 94(6) does not exclude the
traditional community that was established
when the first applicant’s
father was a Chief as can be gleaned in the documents from the
‘
Native Commissioner
’.
[32]
In terms of s 1 of the EC-TLG Act, a traditional leader means any
person who, in terms of the customary law
of the relevant traditional
community, holds a traditional leadership position, and is recognised
in terms of the Framework Act
and the EC-TLG Act. The respondents
have not refuted the fact that the deceased individual was the Chief
of Governors Drift A/A.
Following his demise, Chief Mxhamli Mbolekwa,
who is the deceased's uncle, acted as a regent as the first applicant
was still a
minor. No evidence was proffered to counter that and
refusal to recognise him has no factual basis.
[33]
I am satisfied that the MEC’s decision not to recognise
Governors Drift as a traditional community
in the face of the
documents from the ‘
Native Commissioner’
that the
deceased was the Chief of Governors Drift A/A which could have been
considered when the decision was made, is an error
of law which is
reviewable in terms of s 6(2) (d) of PAJA. It could have been
avoided. The MEC’s denial that Governors Drift
A/A is a
traditional community established before the commencement of the
EC-TLG Act is a bare denial and has no basis. The respondents
failed
to have regard to s 94(6) of the EC-TLGA because a traditional
community that was recognised before the commencement of
the TLG Act
will continue to be recognised unless its recognition has been
withdrawn. No withdrawal has been advanced.
Unreasonableness
[34]
S 6(2) (h) of PAJA provides:
“
A court or
tribunal has the power to judicially review an administrative action
if-
(h) the exercise of the
power or the performance of the function authorised by the empowering
provision, in pursuance of which the
administrative action was
purportedly taken, is so unreasonable that no reasonable person could
have so exercised the power or
performed the function.”
[35]
O’Reagan J in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[5]
remarked that the Chief Director took all the identified
considerations into account. The equilibrium achieved cannot be said
to be unreasonable. The same cannot be said about the instant case.
The respondents did not consider relevant considerations, as
alluded.
Had they considered the documents from the ‘
Native
Commis
sioner’
a different decision could have been reached because a reasonable
equilibrium could have been achieved.
Failure
to take into account relevant considerations
[36]
Without repetition, it is obvious that the documentation for the
‘
Native Commissioner
’ that could prove that the
deceased was a Chief in Governors Drift A/A, a traditional community,
is not part of the respondents’
papers which clearly shows that
the MEC failed to consider relevant considerations to make an
informed decision. This is
a matter that he was required to
consider relevant considerations which renders his decision flawed.
It must therefore be reviewed
and set aside.
Irrationality
[37]
In
Democratic
Alliance v President of South Africa and Others
[6]
Yacoob ADCJ, as he then was, held:
“
[74] This evidence
too, reflected in the Report of the Public Service Commission, must
have been known to the Minister and was ignored.
The decision to
ignore and the advice to the President to ignore relevant indications
of dishonesty that could detract from the
credibility, integrity and
conscientiousness of Mr Simelane would, in the circumstances, be
irrational unless there was a proper
reason for ignoring it.”
[38]
In casu
, the respondents did not take this court into their
confidence and advance any reasons why they ignored the documents
referred
to above. Instead, the MEC refused to recognise the first
applicant without considering this vital information. This renders
the
impugned decision irrational and must be reviewed and set aside.
Failure
to follow the prescribed legislative procedure.
[39]
It is uncontroverted that the Premier and/or the MEC refused to issue
a certificate of recognition to the
first applicant after he was
identified by the Royal Family. The respondents also failed to remit
the matter to the Royal Family
for reconsideration. This conduct is
in contravention of 23(5) of the EC-TLG Act which obliges the Premier
and/or MEC to refer
the matter to the royal family for
reconsideration and resolution where the certificate of recognition
has been refused (see para
19
supra
). The word ‘
must
’
in s 23(5) (d) is mandatory. The only reasonable conclusion that can
be reached in this regard is that the Premier and/or
the MEC failed
to comply with a prescribed legislative procedure which renders the
impugned decision reviewable.
[40]
Ms Haskins, for the applicants, submitted that the respondents
advanced, for the first time in the answering
affidavit, different
reasons from the one originally advanced. She urged the court to
reject them in
toto
as they were not the basis for which the
original decision was taken. Their different reasons proffered
ex
post facto
are:
40.1
that the first applicant should have submitted a claim to the
Commission known as the Commission on Traditional
Leadership Disputes
and Claims.
40.2 The
reliance on case number 1171/2012 where the applicant sought an order
that the Mbolekwa Royal Family be recognised
as the only royal family
in Governors Drift.
40.3
That the applicants failed to follow the law in seeking to restore
their alleged lost senior traditional
leadership position.
40.4
The Mbolekwas are not a Royal Family and are not recognised as a
ruling family in any community.
[41]
In
National
Lotteries Board v South African Education and Environment Project
[7]
Cachalia JA
(Brand
JA, Van Heerden JA, Shongwe JA and Seriti JA concurring)
remarked:
“
[27]
The duty to give reasons for an administrative decision is a central
element of the constitutional duty to act fairly. And
the failure to
give reasons, which includes proper or adequate reasons, should
ordinarily render the disputed decision reviewable.
In England the
courts have said that such a decision would ordinarily be void and
cannot be validated by different reasons given
afterwards —
even if they show that the original decision may have been
justified. For in truth the later reasons are
not the true
reasons for the decision, but rather an ex post facto rationalisation
of a bad decision. Whether or not our law also
demands the same
approach as the English courts do is not a matter I need strictly
decide.”
[42]
The rule
supra
originates from the English courts. It will
later be clear that it has become part of our law.
In casu
,
the respondents did not initially give the reasons contained in their
answering affidavit and heads of argument. My understanding
of
National Lotteries
is that failure to give reasons, which
include proper and adequate reasons should ordinarily render the
disputed decision reviewable
because the challenge is directed to the
reason given by the Premier and/or MEC at the time. Failure to
consider relevant considerations
,
is, on its own, reviewable
and that cannot be remedied by giving different reasons after the
fact.
[43]
In
Zuma
v Democratic Alliance and Others
[8]
Navsa
ADP (Cachalia JA, Bosielo JA, Leach JA and Tshiqi JA concurring),
had this to say:
“
[24] On
6 April 2009 Mr Mpshe announced publicly that he had made the
decision to discontinue the prosecution of Mr Zuma and
issued a
detailed media statement providing the reasons for the decision. It
is against those reasons, and those reasons alone,
that the legality
of Mr Mpshe's decision to terminate the prosecution is to be
determined.
[44]
From the above, it is clear that the challenged decision to be
evaluated is against the reason that influenced
the decision. In the
instant case, the only reason advanced was that administrative areas
were under the authority of headmen and
not chiefs. Importantly, the
duty to give reasons for an administrative decision is a central
element of the constitutional duty
to act fairly. The latter reasons
are not the true reasons for the decision. The original decision
cannot be validated by different
reasons given
ex post facto
.
In my view, the different reasons proffered in the answering
affidavit, are an attempt to justify the impugned decision. I
therefore
reject them and will not deal with them in this judgment.
[45]
Reverting to the application for extension of time, s
9(2) provides that
the court or tribunal may grant an application in terms of subsection
(1) where the interests of justice so require.
Subsection (1) states
that the period of 90 days or 180 days referred to in subsections 5
and 7 may be extended for a fixed period,
by agreement, failing which
by a court or tribunal on application by the person or administrator
concerned. In
Van
Wyk v Unitas Hospital and Another
[9]
the Constitutional Court held:
“
[20] Factors that
are relevant to this enquiry include but are not limited to the
nature of the relief sought, the extent and cause
of the delay, the
effect of the delay on the administration of justice and other
litigants, the reasonableness of the explanation
for the delay, the
importance of the issue to be raised in the intended appeal and the
prospects of success.”
[46]
In this regard, the respondents are primarily responsible for the
delay in this matter. The first applicant
has made several attempts
to secure a decision from the Premier and/or MEC since 2015. On 13
June 2019, the respondents were ordered
to decide after the first
applicant had launched an application to compel them to make a
decision. He had to approach the court
to compel them to recognise
and decide on the recommendation of the Mbolekwa Royal Family, which
order was granted. Although the
court granted the order in favour of
the applicant, the Premier and the MEC still did not comply with the
Court order. The applicant
had to bring another application to compel
the Premier and MEC which was brought on 22 October 2019, and before
this matter could
be heard it is then that the MEC forwarded a letter
dated 07 October 2019, refusing to recognise the first applicant.
Various correspondence
had been exchanged between the applicant and
the respondents, but the respondents still failed and/or refused to
comply, thereby
displaying disregard for the court orders.
[47]
In considering the factors mentioned in Van Wyk's
supra
, I am
satisfied that the interests of justice require the extension of time
when taking into account that the respondent has also
contributed to
delaying this matter as alluded to above.
Exceptional
circumstances
[48]
The first applicant contends that this case is exceptional and
justifies an order that the Premier and MEC consider and recognize
him as the Chief of Governors Drift A/A within 7 days of the order.
The relief sought is
inter
alia
, an order directing the Premier
and/or the MEC to recognise the first applicant as a Chief/Senior
traditional leader of Governors
Drift A/A, as stated. The applicants
submit that the Premier has, in the past, delayed extensively in
considering his recognition;
has relied on errors of law and/or fact
to reject the Royal Family’s recommendation, and has not
recognised him as Chief
despite the applications as well as the
application to compel, calling him to do so. He submits further that
an effective relief
would be an order directing the Premier to
consider and recognise him as Chief. The applicants acknowledge that
this amounts to
correcting a defect resulting from an administrative
action in terms of s 8(1)(c) (aa) of PAJA which provides:
“
8(1)
The Court or tribunal, in proceedings for judicial review in terms of
section 6 (1), may grant any order that is just and equitable,
including orders-
(c)
Setting aside the administrative action and-
(i)…
(ii)
in exceptional cases-
(aa)
substituting or varying the administrative action or correcting a
defect resultingfrom the administrative action.”
[49]
The respondents submit that the applicants have failed to make out a
case for the relief sought. They argue
that the order sought is
incompetent and granting same would be tantamount to countenancing an
illegality. They argue further that
it would not be just and
equitable for the court to order them to recognise the first
applicant as a senior traditional leader/chief
as this would
constitute a breach of the doctrine of separation of powers. That is
because the first applicant failed to claim
restoration of the
applicant’s status through the commission. Therefore, the court
has no power to restore any traditional
leadership status in terms of
the law. Moreover, the applicants are not entitled to any leadership
position, the argument continues.
[50]
In
Littlewood
and Others v Minster of Home Affairs and Another
[10]
Nugent JA held:
“
[18]
It is well established that only exceptionally will a court
substitute its own decision for that of an official to whom the
decision has been entrusted. It cannot be said in the
present case that the proper decision is a foregone conclusion,
nor
that the Minister has disabled himself from properly making it, nor
are there any other grounds for substituting our decision
for his.
The proper course is to remit the matter for re-consideration by
the Minister.”
[51]
In the
University
of The Western Cape and Others v Member of Executive Committee for
Health and Social Services and Others:
[11]
“
It
is a well-known principle of our administrative law that where a
public authority has a discretion in the matter,
mandamus
will
only extend to directing the authority to comply with its duty of
deciding the matter properly. Our Courts have repeatedly
laid down
that they do not want to usurp the powers of the authorities to whom
the legislation has vested the powers to decide
one way or the other.
To do otherwise would constitute an unwarranted usurpation of the
powers entrusted to the public authorities
by the relevant statute.
Therefore, in the ordinary course the Courts will refer the matter
back because the Court is slow to assume
a discretion which has by
statute been entrusted to another functionary or repository of power.
It is only in exceptional cases
that this principle will be departed
from.”
[52]
The learned Judge continued at 131D-J:
“
Where
the end result is in any event a foregone conclusion and it
would merely be a waste of time to order the tribunal or
functionary
to reconsider the matter, the Courts have not hesitated to substitute
their own decision for that of the functionary…The
Courts have
also not hesitated to substitute their own decision for that of a
functionary where further delay would cause unjustifiable
prejudice
to the applicant…Our Courts have further recognised that they
will substitute a decision of a functionary where
the functionary or
tribunal has exhibited bias or incompetence to such a degree that
it would be unfair to require the applicant
to submit to the
same jurisdiction again. It would also seem that our Courts are
willing to interfere, thereby substituting
their own decision for
that of a functionary, where the Court is in as good a position to
make the decision itself. Of course,
the mere fact that a Court
considers itself as qualified to take the decision as the
administrator does not
per
se
justify usurping the administrator's powers or functions. In some
cases, however, fairness to the applicant may demand
that the Court
should take such a view…the categories where the Court would
be prepared to substitute its own decision for
that of an
administrative body are not closed. Depending on the circumstances of
each particular case, it may be fair for the Court
to take the
decision itself rather than refer it back to the appropriate
functionary.”
[53]
In casu,
the Royal Family held a meeting on 12 April 2011 and
the first applicant was identified in terms of customary law to
assume the
position of a Chief after his father’s death. That
was done in compliance with s 11 of the TLGF Act. The Premier and/or
MEC
were informed of the Royal Family’s recommendation during
2015 in terms of s 11(1) of the TLGF Act read with s 23 of the
EC-TLGA. The respondents failed to recognise the first
respondent after the Mehlomakhulu issue had been resolved on
13 June
2017. On 22 January 2018, the applicants had to launch a review
application under case number 257/2018 against the respondents’
failure to recognise the first applicant. A period of almost six
months had expired. On 13 June 2019, the first applicant’s
application succeeded and the respondents’ failure to take a
decision and implement the recommendations of the Royal Family
on the
appointment of the applicant as Chief of Governors Drift A/A was
declared unlawful, illegal, and unconstitutional and accordingly
reviewed and set aside. Paragraph 2 of Jolwana J’s order reads:
“
2.
The respondents are hereby directed to consider and decide on the
recommendations of the Mbolekwa Royal Family in terms of which
the
applicant has been identified and recommended for appointment as a
Chief of Governors Drift Administrative Area, Strekspruit
within 30
(thirty) days of the order of this court and thereafter advise the
applicant of its decision regarding the recommendations
of the Royal
Family.”
[54]
The respondents failed to comply with the court’s order, which
cannot be countenanced. On 22 October
2019, the first applicant
brought an application to compel the respondents to comply with the
court order dated 13 June 2019. It
was then that the first applicant
became aware that the MEC had refused to recognise him in a letter
dated 07 October 2019. From
the above, it cannot be disputed that the
respondents have shown a tendency to not comply with the court order
of 13 June 2019
to delay the process. They have also failed to comply
with s 23 of the EC-TLG Act.
[55]
However, i
n the
circumstances of this case, I consider the well-known principle of
our administrative law that where a public authority has
discretion
in the matter, the
mandamus
will only extend to
directing the authority to comply with its duty of deciding the
matter properly.
Costs
[56]
Ms Haskins submitted that the MEC should be ordered to pay the costs
of this application and that the other
respondents pay only if they
oppose the application. Although the Premier has opposed the
application, the applicants have not
sought a costs order against
him. No response was proffered by the respondents regarding costs in
the answering affidavit.
Order
1.
The Premier is
directed to
refer the matter
to the Mbolekwa Royal Family for reconsideration and resolution in
terms of s 23(5) of the Eastern Cape Traditional
Leadership and
Governance Act 1 of 2017.
2.
The period of 180 days is extended in
terms of
section 9(2)
of the
Promotion of Administrative Justice Act
3 of 2000
.
3.
The MEC for Co-operative Governance and
Traditional Affairs, Eastern Cape, is ordered to pay costs of the
application.
BM
PAKATI
JUDGE
OF THE HIGH COURT,
EASTERN
CAPE DIVISION, GQEBERHA
APPEARANCES:
Council
for applicant
Advocate
L Haskins
Instructed
by
Mvuzo
Notyesi Inc
Counsel
for respondent
Advocate
Z.Z Matebese SC
Instructed
by
State
Attorneys
Mthatha
Date
Heard
27
July 2023
Date
delivered
19
January 2024
[1]
Section 9(2)
of PAJA provides that the court or tribunal may grant
an application in terms of subsection (1) where the interests of
justice
so require.
[2]
Section 9(2)
of PAJA provides: (2) The court or tribunal may grant an application
in terms of subsection (1) where the interests of justice
so
require.”
[3]
Mphephu
v Mphephu-Ramabulana and Others (948/17)
[2019] ZASCA 58
;
[2019] 3
All SA 51
(SCA);
2019 (7) BCLR 862
(SCA) (12 April 2019) at para 18.
[4]
See
Tshivhulana Royal Family v Netshivhulana (CCT48/16-
[2016] ZACC 47
;
2017 (6) BCLR 800
(CC) (14 December 2016) at para 19.
[5]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
(CCT
27/03)
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC)
(12 March 2004) at para 54.
[6]
[2012]
ZACC 24
para 74 2012 (12) BCLR 1297 (CC); 2013 (1) SA 248 (CC).
[7]
National
Lotteries Board v South African Education and Environment Project
2012 (4) SA 504
(SCA) at para 27.
[8]
Zuma
v Democratic Alliance and Others
2018 (1) SA 200
(SCA) at para 24.
[9]
Van Wyk
v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para 20; See
also City of Cape Town v Aurecon South Africa (Pty) Ltd (CCT21/16)
[2017] (6) BCLR 730
(CC);
2017 (4) SA 223
(CC) (28 February 2017) at
para 47 where the Constitutional Court remarked: “
[47] In
considering whether condonation should be granted to the City, the
following principle enunciated in the majority
decision
of Kirland should be borne in mind:
“
(T)here
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights. Government is not an indigent or bewildered litigant, adrift
on a sea of litigious uncertainty, to whom the courts
must extend a
procedure-circumventing lifeline. It is the Constitution's primary
agent. It must do right, and it must do it properly.
”
[10]
Littlewood
and Others v Minster of Home Affairs and Another
2006 (3) SA 474
(SCA) at para 18.
[11]
1998
(3) SA 124
(C) at 130I-131A.