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[2023] ZAKZPHC 19
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Mtungwa and Another v Premier of Kwazulu-Natal and Others (3618/22P) [2023] ZAKZPHC 19 (28 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 3618/22P
In
the matter between:
MFANISENI
MBONISENI MTUNGWA
FIRST APPLICANT
MEMBERS
OF UMNDENI WENKOSI LISTED IN
SECOND APPLICANT
ANNEXURE
‘A’ WHICH IS ATTACHED TO THE
NOTICE
OF MOTION
and
PREMIER
OF KWAZULU-NATAL
FIRST RESPONDENT
DEPARTMENT OF
CO-OPERATIVE GOVERNANCE SECOND RESPONDENT
AND TRADITIONAL
AFFAIRS, KWAZULU-NATAL
THOKOZANI
MTUNGWA
THIRD RESPONDENT
Coram:
Mossop J
Heard:
28 February 2023
Delivered:
28 February 2023
ORDER
The
following order is made:
1.
The application for leave to appeal is refused
with costs,
such to include the costs of
senior counsel.
JUDGMENT
MOSSOP
J
:
[1]
This is an opposed application for leave to appeal
against a judgment handed down by me on 18 November 2022, when I
dismissed a
review application brought by the applicants in which
they sought an order, essentially, that the recognition of the third
respondent
as the iNkosi of the Mabaso clan (the traditional
community), be reviewed, declared invalid and set aside and that the
issue of
the identification of the iNkosi of the traditional
community be referred back to the umndeni wenkosi of the traditional
community
as provided for in section 19(4) of the KwaZulu-Natal
Traditional Leadership and Governance Act 5 of 2005.
[2]
My judgment on the issues is
comprehensive and I stand by the reasons set out therein.
[3]
The
purpose behind requiring litigants to obtain leave to appeal was set
out in the matter of
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd,
[1]
where
Wallis JA said that:
‘
T
he
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.’
[4]
Section
17(1)
(a)
(i)
and
(ii) of the Superior
Courts Act, 10 of 2013
(the
Act)
pro
vides
that leave to appeal may only be given where a judge is of the
opinion that the appeal would have a reasonable prospect of
success
or there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter
under
consideration.
[5]
Leave
to appeal may thus only be granted where a court is of the opinion
that the appeal would have a reasonable prospect of success,
which
prospects are not too remote.
[2]
An applicant for leave to appeal faces a higher threshold
[3]
under
the provisions of the Act than under the repealed Supreme Court Act
59 of 1959. A sound rational basis for the conclusion
that there are
prospects of success must be shown to exist
.
[4]
[6]
In their application for leave to appeal, the applicants have raised
various
grounds in support of their contentions that
there
are reasonable prospects that another court would grant a different
order to the order granted by me.
[7]
I have had a considerable amount of time to consider, in particular,
the
applicant’s notice of application for leave to appeal and
the grounds stated therein. I received it on 9 December 2022, after
the conclusion of the judicial year, and read it immediately and I
noticed that the copy of the notice of appeal provided to me
by the
Registrar was incomplete, it being obvious that at least the
signature page thereof, and possibly other pages, were missing.
I
could, however, not deal with the application for leave to appeal at
the beginning of 2023 as I was assigned circuit court duties
in
Madadeni during the first session of the first term. I returned last
week from such duties.
[8]
I have considered the papers filed by the applicants, such as they
are,
and I have further considered the arguments, authorities and
submissions of the parties addressed to me this morning.
[9]
At the core of this matter is the procedure for appointing a
successor
to a deceased iNkosi within the traditional community. I am
satisfied that the method of identifying a successor to an iNkosi in
the traditional community is through the male line of succession and
that line runs through the eldest son of the iNkosi and that
son’s
male progeny. If there are no male sons born of the eldest son, then
the second eldest son succeeds and so on. This
was the method of
succession embraced by the traditional community. There is
accordingly no basis for finding, as the applicants
urged me to do
when the matter was initially argued, that upon the death of the
eldest son of an iNkosi, the youngest son succeeds
to the position
and the entitlement of the male progeny of the late iNkosi, and any
other sons ranking between the deceased iNkosi
and the youngest son,
are to be ignored. As I noted in my judgment, if that was the case,
which I found not to be the case, then
the first applicant still
could not succeed to the position that he covets because the youngest
son of the late
Thembitshe would inherit
the title, not the first applicant.
Any
appeal therefore is futile, in my view.
[10]
It was not submitted that there are any compelling reasons why an
appeal should be allowed
in the matter and I am not independently
able to conceive of one.
[11]
It follows that I am not persuaded that there is a reasonable
possibility that another
court would come to a different decision
than the one to which I came. I am of the view that this is precisely
the type of matter
that Wallis JA was referring to in
Dexgroup
,
namely, an appeal that lacks merit.
[12]
In the circumstances, the application for leave to appeal is
dismissed with costs, such
to include the costs of senior counsel.
MOSSOP J
APPEARANCES
Counsel
for the applicants:
Mr M.
N. Xulu
Instructed
by:
S N
Nxumalo Attorneys Incorporated
20
Otto Street
Pietermaritzburg
Counsel
for the first and second respondents:
Mr A.
J. Dickson SC
Instructed
by:
PKX
Attorneys
Suite
36
3 on
Cascades Crescent
Montrose
Pietermaritzburg
Date
of Hearing
:
28
February 2023
Date
of Judgment
:
28
February 2023
[1]
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd
2013 (6) SA 520 (SCA)
para 24.
[2]
Ramakatsa
and Others v African National Congress and Another
[2021]
JOL 49993
(SCA)
para [10]
[3]
S
v Notshokovu
Unreported
SCA case no 157/15 dated 7 September 2016, para [2]
[4]
Smith
v S
[2011]
ZASCA 15
;
MEC
for Health, Eastern Cape v Mkhitha
[2016]
ZASCA 176
,
para [17]