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[2023] ZAKZPHC 98
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Executive Council of the Province of KwaZulu-Natal and Others v Luthuli and Others (7512/2020P) [2023] ZAKZPHC 98 (4 October 2023)
FLYNOTES:
CUSTOMARY – Traditional leadership –
Removal
–
Misconduct –
Constitutional
challenge – Final prerogative and right to appoint,
discipline and remove a chief vested with Umndeni
Wenkosi –
Impugned sections which do not make provisions for recommendations
or deference to Umndeni Wenkosi go against
Constitution –
Provisions of impugned sections inconsistent with Constitution and
invalid – Just and equitable
remedy – KwaZulu-Natal
Provincial Parliament to re-enact impugned sections in a manner
consistent with Constitution.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 7512/2020P
In
the matter between:-
THE
EXECUTIVE COUNCIL OF THE
PROVINCE
OF KWAZULU-NATAL
FIRST
APPLICANT
THE
PREMIER OF THE
PROVINCE
OF KWAZULU-NATAL
SECOND APPLICANT
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
THE PROVINCE OF KWAZULU-NATAL
DEPARTMENT
OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
THIRD APPLICANT
and
INKOSI
BHEKIZIZWE NIVARD LUTHULI
FIRST RESPONDENT
THE
THULINI TRADITIONAL COUNCIL
SECOND
RESPONDENT
THE
UMDENI WENKOSI OF INKOSI LUTHULI
THIRD RESPONDENT
MINISTER
OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
FOURTH
RESPONDENT
NATIONAL
DEPARTMENT OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
FIFTH RESPONDENT
NATIONAL
HOUSE OF TRADITIONAL AND
KHOI-SAN
LEADERS
SIXTH RESPONDENT
NATIONAL
HOUSE OF TRADITIONAL
LEADERS
SEVENTH RESPONDENT
KWAZULU-NATAL
DEPARTMENT FOR
CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL
AFFAIRS
EIGHTH
RESPONDENT
THE
SECTION 23(4) ENQUIRY PRESIDING
OFFICER:
MR DUBE
NINTH
RESPONDENT
ORDER
[1]
In respect of the main application:-
[a]
The main application is dismissed;
[b]
The Rule
Nisi
granted on 19 November 2020 is confirmed;
[c]
Each party is directed to pay their own costs.
[2]
In respect of the counter-application:-
[a]
The provisions of Sections 21(4), 22, 23 and 24(1) of the
KwaZulu-Natal Traditional
Leadership and Governance Act 5 of 2005
(“the impugned sections”) be and are hereby
declared inconsistent
with the Republic of South Africa Constitution
Act, 1996 (“the constitution”) and are invalid.
[b]
The KwaZulu-Natal Provincial Parliament is to re-enact the impugned
sections in a
manner which is consistent with the constitution.
[c]
During the period that the KwaZulu-Natal Provincial Parliament is
re-enacting the
impugned sections, the applicants are interdicted
from withdrawing the recognition given to any traditional leader in
terms of
the KwaZulu-Natal Traditional Leadership and Governance Act
5 of 2005.
[d]
The decision of the ninth respondent, taken on 30 October 2018 in
terms of S23 of
the KwaZulu-Natal Traditional Leadership and
Governance Act 5 of 2005, in terms of which the first respondent was
found guilty
of misconduct, is reviewed and set aside.
[e]
The decision of the first applicant, taken on 9 October 2019 in terms
of the provisions
of S23(11) of the KwaZulu-Natal Leadership and
Governance Act 5 of 2005, in terms of which the first respondent’s
recognition
as traditional leader was withdrawn, is reviewed and set
aside.
[f]
The applicants are directed to pay the costs of counter-application,
jointly
and severally, the one paying the other to be absolved, such
costs to include the costs consequent upon the employment of three
counsel.
JUDGMENT
R. SINGH, AJ:
INTRODUCTION
[1]
The applicants launched an application for
self-review (“the main application”) of the decision of
the first applicant
(“the provincial executive council”)
taken on 9 October 2019 in terms of the provisions of S23(11)(d) of
the KwaZulu-Natal
Traditional Leadership and Governance Act 5 of 2000
(“the KZN Act”) wherein the first respondent’s (“Mr
Luthuli”) recognition as
Inkosi
was withdrawn. The applicants sought an
order that the matter be remitted back to the provincial executive
council for reconsideration
after Mr Luthuli has had the opportunity
to make representations on the question of what sanction, if any,
should be imposed in
terms of S23(11) of the KZN Act. The applicants
further sought the discharge of the interim order under the same case
number granted
by my brother, Mathenjwa AJ on 19 November 2020.
[2]
The main application is premised on
the applicants’ failure to comply with the procedure set out in
S23 of the KZN Act which
consists of two stages. The first stage is a
factual enquiry that is conducted by the presiding officer (in
casu
the ninth respondent). After such factual enquiry, the presiding
officer is obliged to forward his factual findings together with
a
record, any observations and recommendations to the provincial
executive council. If there is a finding of misconduct, the
provincial
executive council may impose one or more of the four
sanctions set out in S23(11) of the KZN Act but only after having
afforded
the
Inkosi
the
opportunity to make representations to it for the purposes of the
sanction. In
casu
,
the applicants failed to afford Mr Luthuli an opportunity to make
representations in respect of the appropriate sanction hence
the
applicants launched the main application.
[3]
Mr Luthuli and the third respondent (“the
Umndeni Wenkosi”)
launched a counter-application (“the constitutional challenge”)
to declare the provisions of Sections 21(4), 22, 23
and 24(1) of the
KZN Act (the “impugned sections”) to be inconsistent with
the constitution and invalid with such declaration
to be suspended
for a period of twelve months. During the said period of suspension,
they sought orders that the applicants be
interdicted from
withdrawing the recognition given to any traditional leader in terms
of the KZN Act and that the decision of the
presiding officer in
respect of Mr Luthuli be reviewed and set aside.
[4]
Mr Luthuli launched a conditional
counter-application where in the event of the constitutional
challenge being unsuccessful, then
the decision of the presiding
officer be reviewed and set aside and that the enquiry be remitted to
the presiding officer to commence
de
novo.
He also sought an order directing
the presiding officer to call for and receive the evidence of the
Umndeni Wenkosi
and him.
[5]
The constitutional challenge is a matter of
immense significance to millions of people residing in the Province
of KwaZulu-Natal,
particularly traditional communities and
traditional leaders. At the outset of my judgment, I must express my
gratitude to both
sets of counsel for their insightful heads of
argument and very able oral submissions before me.
THE BACKGROUND
[6]
In order to deal with the issues for
determination, it is necessary to briefly set out briefly the facts
which gave rise to the
enquiry against Mr Luthuli.
[7]
Mr Luthuli was elected by the
Umndeni
Wenkosi
and recognized as
Inkosi
of the eMathulini Community some thirty four years ago. Prior to his
recognition as
Inkosi,
his father held the position of
Inkosi
.
For clarity,
Inkosi
means a traditional leader and is defined as such in terms of S1 of
the KZN Act. The third respondent being the “
Umndeni
Wenkosi
” means the immediate
relatives of an
Inkosi
who have been identified in terms of custom or tradition, and
includes where applicable, other persons identified as such on the
basis of traditional roles. The definition of
Umndeni
Wenkosi
is also stated in S1 of the KZN
Act.
[8]
Over the period of September 2014 to
November 2016, the eighth respondent being, the KwaZulu-Natal
Department for Co-operative Governance
and Traditional Affairs (“the
department”) received complaints from various members of the
eMathulini Community alleging
misconduct on the part of Mr Luthuli.
Pursuant to receipt of these complaints, the second applicant (“the
Premier”)
appointed Luthuli Sithole Attorneys to
inter
alia
investigate the complaints and
furnish a written report together with recommendations (“the
Luthuli Sithole report”).
Following receipt of the
report, an enquiry was instituted in terms of S23 of the KZN Act. The
ninth respondent was appointed as
presiding officer. The charges were
served on Mr Luthuli on 15 February 2016. After some correspondence
between the department
and Mr Luthuli’s erstwhile attorneys
Lourens De Klerk Attorneys, disciplinary proceedings against Mr
Luthuli commenced.
[9]
Mr Luthuli was advised of the date of the
hearing and invited to participate in the disciplinary process. Such
invitation included
an official from the department’s district
office, one Mr Shozi attending Mr Luthuli’s home and requesting
him to attend
the enquiry. Mr Luthuli advised that he did not intend
to participate in the enquiry. An affidavit by Mr Shozi confirming Mr
Luthuli’s
advices was included in the record.
[10]
The enquiry against
Mr
Luthuli
proceeded in absentia. This is
permitted in terms of S23(9) of the KZN Act which provides that
proceedings of an enquiry are not
invalidated by the failure of a
traditional leader who is charged to attend the enquiry without a
valid reason, either personally
or by a legal representative.
[11]
Pursuant to the enquiry and on 30 October
2018, the presiding officer found that:-
[a]
Mr Luthuli had conducted himself “as the law unto himself”
and that the
members of the community were afraid of him;
[b]
The only sanction that was appropriate under the circumstances was
the removal of
Mr Luthuli from office. The presiding officer
accordingly made such recommendation.
[12]
Following receipt of the findings of the
presiding officer, same was forwarded to the provincial executive
council as is required
in terms of S23(10) of the KZN Act. The
provincial executive council resolved to withdraw the recognition of
Mr Luthuli as
Inkosi
in terms of S23(11)(d) of the Act. This decision was made on 9
October 2019.
[13]
A meeting scheduled for 30 July 2020 for
the purpose of informing Mr Luthuli and the
Umndeni
Wenkosi
of the provincial executive
council’s decision. Neither Mr Luthuli nor the
Umndeni
Wenkosi
attended the meeting. On 7
August 2020, Mr Luthuli was given written notice of the withdrawal of
his recognition as
Inkosi.
A
notice of the withdrawal of recognition was published in the
Provincial Gazette on 11 September 2020.
[14]
Following thereon, Mr Luthuli brought an
urgent application seeking an interim order suspending the operation
of the withdrawal
of his recognition and interdicting the applicants
as well as the department who were all respondents in the said
application,
from taking any steps to implement the decision to
withdraw Mr Luthuli’s recognition as
Inkosi
.
This application was heard by my brother, Mathenjwa AJ and a Rule
Nisi
with
interim relief was granted on 19 November 2020.
[15]
I will deal hereunder with the
constitutional challenge. It was common cause at the hearing of the
matter that should I find that
the provisions of the impugned
sections are inconsistent with the constitution and invalid, such
finding will be dispositive of
the main application and conditional
counter-application.
THE REPORT OF DR
VUSUMUZI KUMALO
[16]
Prior to delving into constitutional
aspects of this case, the report filed by Mr Luthuli and the
Umndeni
Wenkosi
on the appointment and removal
of chiefs in KwaZulu-Natal with specific reference to the removal of
Mr Luthuli
bears mentioning. This report was prepared by Dr Vusumuzi Kumalo who
holds a Ph.D. Degree from the University of Witwatersrand
and is a
lecturer in the history department at the Nelson Mandela University.
Dr Kumalo is a professional historian and the purpose
of his report
was to set out the customary laws and practices of the
eMathulini
traditional community regarding the
appointment, discipline and removal of traditional leaders. Dr
Kumalo’s report dealt with
the history of the
amaZulu
nation and chieftainship in great detail. Chieftainship is vested in
a royal lineage of ten generations or more. Chieftain was
founded on
the principle that family ties are paramount to the healthy
development of the entire community and it is the
amaZulu
belief that nothing must weaken family ties. Family ties include, the
appointment and removal of the chief. Elders of the family
form the
council and the traditional ward is “merely notified of events
as they happen”. The final prerogative and
right to appoint,
discipline and remove a chief vested with the senior members of the
Umndeni Wenkosi.
[17]
The change in administrative regimes in
South Africa ranging from colonialism to apartheid negatively
impacted on the royal family
with governors and later apartheid
officials appointing and removing chiefs. An examination of the royal
chieftains however revealed
that royal families continued to appoint
and remove chiefs during this time in order to affirm their position
within their communities.
[18]
South Africa’s move into democracy
and the constitution acknowledged the distinctiveness of customary
law as an independent
source of norms within the legal system. The
Umndeni Wenkosi
is therefore constitutionally permitted to perform its functions in
terms of the applicable customs of the community.
[19]
Dr Kumalo’s report then went on to
examine the powers of chiefs over their subjects and included an
interview with Mr Luthuli.
Dr Kumalo in summary stated that:-
[a]
the
Inkosi
may receive payment of tribal levies which would be
used for the upliftment of the community and to assist financially
destitute
members of the community in times of need. This was
commonly known as the
ukukhonza
fee;
[b]
the
Inkosi
may receive payment of tributes from the community.
The payment of an
ukuphendula ibhantshi
which Mr Luthuli
explained was an amount charged for the transfer of powers of a head
of family especially after the death of the
head of the family,
generally a father figure, to an heir. This fee was levied because of
strain and conflict which may arise in
a family after a death and
there being no one to look after the women and children of the
family. The
eMathulini
community would therefore be charged a
registration fee by the traditional council (in
casu
the
second respondent) for the official registration of an heir to take
charge as the head of the household;
[c]
the
Inkosi
charged an
ukubekwa
fee for the allocation
of a site to a new member of the community and was likened to a
registration of transfer of property fee;
[d]
the
eMathulini
community have also paid
lobola
(bride
price) for their
Inkosi
and in previous times and the
community have also bought the chief’s horse. This was referred
to as
ihashi lenkosi
;
[e]
Mr Luthuli also advised Dr Kumalo that where there was a dispute on
tribal levies,
he would summon his
Izinduna
for consultation
with community members. There would be a discussion at a public
meeting which was attended by community members
who wished to do so
to discuss the custom before the custom was implemented. This
practice of public meetings was in operation
long before Mr Luthuli
was appointed to office.
[20]
Dr Kumalo was therefore of the view that
the centuries old customary law which allows the
Umndeni
Wenkosi
to regulate the removal
appointment of an
Inkosi
should be adhered to for the purposes of the continuation of AmaZulu
political values and that such practice remains relevant in
a modern
and democratic society. He therefore concluded that the
Umndeni
Wenkosi
should be the body that had the
power to remove or appoint a chief. The applicants did not file a
report from any similar expert
such as Dr Kumalo.
THE REPORT OF
LUTHULI SITHOLE ATTORNEYS
[21]
It is common cause that the report of
Luthuli Sithole Attorneys recommended that the third applicant being
the MEC for the Department
of Co-operative Governance and Traditional
Affairs institute an enquiry against Mr Luthuli in terms of S23 of
the KZN Act.
[22]
In its report, Luthuli Sithole Attorneys
conducted interviews with various members of the community regarding
the allegations of
misconduct and obtained signed sworn statements as
well as unsigned statements from general members of the
eMathulini
community. The report went into detail regarding
the various amounts of money being levied against members of the
community. According
to the report, attempts were made to contact Mr
Luthuli and the eMathulini traditional council however to no avail.
Further Mr
Luthuli’s erstwhile attorney was non-co-operative.
Of significance to the present matter, the report stated that the
investigators
had no knowledge of the
eMathulini
customary law or customs but expressed serious
doubt as to whether Mr Luthuli had the authority to collect or impose
taxes, levies,
duties, fees or charges alleged by the members of the
community. In compiling their report, there was no evidence
that the
investigators had made any attempt to consult with an
independent expert regarding the customary practices of the
eMathulini community.
THE ISSUES FOR
DETERMINATION
[23]
It was common cause that the finding which
I make in respect of the constitutional challenge will also determine
the fate of the
main application and the conditional
counter-application.
[24]
In the constitutional challenge, the issue
to be determined is whether the impugned sections are inconsistent
with the constitution
and therefore fall to be declared invalid and
in the event of me finding same, what a just and equitable remedy is.
[25]
Both
Mr De Wet
SC
who appeared with
Ms
Mbonane
for the applicants and
Mr
Topping SC
who appeared with
Mr
Veerasamy
and
Ms
Nickel
were in agreement that there
were no material disputes of fact on the papers.
THE
CONSTITUTIONALITY CHALLENGE
A:
GENERAL
[26]
Sections 30 and 31 of the constitution
recognize the rights of persons belonging to a cultural, religious
and linguistic community
to enjoy participation within their
community, provided it is done in a manner which is not inconsistent
with the provisions of
the Bill of Rights. These rights are further
entrenched in S211 and S212 of the constitution which recognize the
role and status
of traditional leadership, according to customary
law. S211(3) allows the court to apply customary law when that law is
applicable,
subject to the constitution and any other legislation
that deals with customary law.
[27]
Bearing in mind that the institution of
traditional leadership was nearly eroded by colonialism and the
approach of the apartheid
regime; the recognition, preservation and
protection of the institution of traditional leadership has been well
warranted in a
democratic South Africa and its specific recognition
in terms of sections 30 and 31 of the constitution is hardly
surprising.
B:
THE 2003 ACT AND THE KHOI-SAN LEADERSHIP ACT
[28]
Whilst
the constitution acknowledged and preserved customary law and
tradition, there were various legislation which had been enacted
during colonialism and apartheid which would have allowed injustices
of the past to be perpetuated
[1]
.
I will not traverse the details of these legislation because for the
purposes of this judgment it is not necessary. Dr Kumalo’s
report set these out comprehensively.
[29]
The
Traditional Leadership and Governance Framework Act 41 of 2003 (“the
2003 Act”) came into effect in 2003 and the
purpose was to give
constitutional promise for the recognition of traditional communities
and their customs by providing a framework
for leadership positions
within the institution of traditional leadership, as well as define
the role and functions of traditional
leaders. This also involved the
manner in which traditional leaders were to be removed. The preamble
to the 2003 Act is clear on
this. The 2003 Act was subsequently
repealed and replaced with the Traditional and Khoi-San Leadership
Act 3 of 2019 (“the
Khoi-San Leadership Act”). The
Khoi-San Leadership Act has been declared constitutionally invalid
due to the failure of adequate
public participation and consultative
process
[2]
.
Both these acts sought to incorporate the institution of the royal
families in a constitutional democracy including, the rights
of the
Umndeni
Wenkosi.
They remain instructive for the purposes of determining the present
application.
[30]
In considering the issue before me, it
important to consider the 2003 Act as well as the Khoi-San Leadership
Act particularly, because
these acts dealt with the definition of the
Umndeni Wenkosi
,
the role of the
Umndeni Wenkosi
as well as the removal of an
Inkosi
.
[31]
The 2003 Act catered for the following:-
[a]
it created traditional councils which replaced traditional
authorities which had been
established under the Bantu Authorities
Act, 1951 and replaced the recognition of tribes under the Black Land
Act 27 of 1913;
[b]
it provided for the traditional councils to be more accountable and
prescribed the
manner in which these councils were to be run;
[c]
it allowed the Premier of a province to recognize traditional
communities in accordance
with provincial legislation and after
consultation with the community concerned and the provincial house of
traditional leaders,
it provided for the appointment of King or
Queen, where necessary;
[d]
it prescribed the process for the recognition of Kings, Queens,
senior traditional
leaders and headmen and headwomen;
[e]
More importantly, it also provided for the withdrawal of recognition
and removal of
a King or Queen, a senior traditional leader and a
headman or headwoman.
[32]
The purpose of the Khoi-San Leadership Act
was to recognize Khoi-San communities and Khoi-San traditional
leadership and much of
the 2003 Act was echoed in the Khoi-San
Leadership Act. The various provisions of the Khoi-San Leadership
Act, namely S7, S8 and
S9 were similar to that of the 2003 Act.
[33]
Before
dealing with the salient provision of the Khoi-San Leadership Act, I
believe it is important to highlight that a “royal
family”
is a recognized customary institution which is entrenched in the
statutes
[3]
.
The
Umndeni
Wenkosi
is the “royal family” within a community
[4]
,
[5]
.
[34]
S9 of the Khoi-San Leadership Act dealt
with the withdrawal of recognition of a King or Queen, principal
traditional leader, senior
traditional leader, headman or headwoman
and sets out the procedure to be invoked in the event of a withdrawal
of recognition.
[35]
Section 9 of the Khoi-San Leadership Act in
summary sets out the following:-
[a]
the recognition of a traditional leader must be withdrawn if he or
she has been convicted
of an offence which imposes a sentence of
imprisonment of more than twelve months without the option of a fine,
is declared mentally
unfit or no longer permanently resides within
the area concerned – S9(1)(a);
[b]
the recognition of a traditional leader may be withdrawn if he or she
has been removed
from office in terms of the code of conduct or has
transgressed customary laws that warrant withdrawal of recognition –
S9(1)(b);
[c]
the recognition of a traditional leader must also be withdrawn if the
court orders
same – S9(1)(c);
[d]
where any of the aforementioned grounds comes to the attention of the
royal family,
the royal family must, through the relevant customary
structure, inform the President, the Premier concerned, the minister
and
senior traditional leaders of the details and the specific
grounds – S9(2)(a);
[e]
wherever grounds in terms of S9(1)(b) warrant the withdrawal of
recognition, the royal
family may recommend the withdrawal of
recognition to the President – S9(2)(b);
[f]
the aforementioned also applies to senior traditional leaders,
headmen and headwomen
in which instance the traditional council
concerned must act as opposed to the Royal Family – S9(3);
[g]
when the President or the relevant Premier is informed of any grounds
in S9(1)(a),
he must, after consultation with the minister or the
member of the executive council for traditional affairs in the
province, withdraw
the recognition of the relevant King or Queen, or
senior traditional leader, headman or headwoman as the case may be –
S9(4)(a);
[h]
When the President or Premier receives information of any of the
grounds in S9(1)(b),
he may after consultation with the minister or
the member of the executive and after having considered the
recommendations and
reasons for the recommendation for the
withdrawal, withdraw such recognition or refuse to withdraw such
recognition but he must
provide reasons – S9(4)(b).
[36]
It is clear from the aforegoing provisions
of S9, that neither the President nor the Premier may act on their
own accord but must
only act in consultation with and upon
information received from the royal family or the relevant
traditional council.
[37]
S9(6)(a)(ii) of the Khoi-San Leadership Act
sets out what steps the President or Premier may take where there is
evidence that an
allegation which was brought to his or her attention
was done in bad faith. These steps include causing an investigation
to be
conducted to provide a report as well as recommendations on
whether the withdrawal of the recognition of the person concerned was
done in accordance with the recognized grounds or whether the
information provided or recommendation was made in bad faith. Where
the withdrawal was not done in accordance with any recognized grounds
or in bad faith, the President or Premier must refer the
report to
the royal family or traditional council as the case may be, for their
comment. The royal family or traditional council
must provide the
President or Premier with written comments. After considering the
report of the investigation committee as well
as the comments from
the royal family or traditional council as the case may be, he may
refuse to withdraw the recognition if the
information provided or the
recommendations were done in bad faith or confirm the withdrawal of
the recognition of the traditional
leader concerned.
C:
THE KZN ACT
[38]
The
KZN Act was promulgated in accordance with the provisions of the
constitution and is a product of the 2003 Act. It acknowledges
the
existence of traditional communities within the province of
KwaZulu-Natal as well as the need to recognize, transform and provide
an enabling environment for the development of traditional
communities and institutions as well as customary law and custom. As
mentioned in a preceding paragraph, an
Inkosi
is defined in S1 of the Act and the
Umndeni
Wenkosi
is defined as being the immediate relatives of the
Inkosi
.
The
Umndeni
Wenkosi
falls within the definition of a royal family for the purposes of the
interpreting the KZN Act
[6]
.
[39]
S17 of the KZN Act sets out the criteria
and the considerations in identifying an
Isilo
who in terms of S1 of the Act is defined as “the monarch”
of the province of KwaZulu-Natal or “King” as
defined in
S1 of the 2003 Act. Upon identifying the
Isilo
and providing reasons therefor, the Premier and the MEC are advised
and they in turn advise the President. The
Isilo
is then recognized.
[40]
S19 of the KZN Act contains similar
provisions regarding the appointment and recognition of an
Inkosi
and leaves this role to the
Umndeni
Wenkosi
. In the case of the appointment
of the
Inkosi
,
the Premier after receiving the details of the proposed
Inkosi
must then subject to informing the Provincial House of Traditional
Leaders (in
casu
the
seventh respondent) of such recognition, appoint the person
identified as the
Inkosi.
Where there is evidence or an allegation that the person identified
as
Inkosi
was
not done in accordance with customary law or the principles of the
constitution, the Premier may refer the matter to the Provincial
House of Traditional Leaders for comment and refuse to issue a
certificate of recognition. The Premier must refer the matter back
to
the
Umndeni Wenkosi
for reconsideration and a resolution where the certificate of
recognition has been refused.
[41]
Whilst the
Umndeni
Wenkosi
is intimately involved in the
appointment of the
Inkosi
,
the provisions of the impugned sections relating to the removal of
the
Inkosi
from office, affords an almost non-existent role to the
Umndeni
Wenkosi
. These sections are in stark
contrast to the provisions of S9 relating to the removal of a
traditional leader in the Khoi-San Leadership
Act.
[42]
Section 21(1) of the KZN Act provides for
removal of a traditional leader from office where he is convicted of
an offence with a
sentence of more than twelve months imprisonment
without the option of a fine; physical or mental infirmity; wrongful
appointment
or recognition; a transgression of a customary rule that
warrants removal; breach of the code of conduct or misconduct as
contemplated
in S23 of the KZN Act.
[43]
The
Umndeni
Wenkosi,
save for misconduct
contemplated in S23, may decide to remove the traditional leader
concerned and inform the Premier of the details
and reason for such
removal. In this subsection, the role of the
Umndeni
Wenkosi
with regard to removal of the
traditional leader is recognized.
[44]
S21(4) of the Act states that a traditional
leader may only be removed from office on grounds of a transgression
of a customary
rule or principle that warrants removal, a breach of
the code of conduct or misconduct as contemplated in S23,
after
an enquiry in terms of S23
.
[45]
S23(1)(a) to (j) identifies the following
as misconduct:-
[a]
a failure or refusal to comply with the provisions of the KZN Act or
any other law
with which it is the
Inkosi’s
duty to
comply;
[b]
a breach of the code of conduct;
[c]
disobedience, disregard or wilful default in carrying out a lawful
order given to
him or her by a competent authority; conducts himself
in a disgraceful, improper or unbecoming manner;
[d]
displays insubordination;
[e]
uses intoxicants or drugs excessively;
[f]
abuses his power or extorts, or by use of compulsory or arbitrary
means obtains
any tribute, fee, reward or give;
[g]
tries to punish any person without the necessary authority to do so;
[h]
is negligent or indolent in the discharge of his duties;
[i]
or has been convicted of an offence.
[46]
S22 allows the provincial executive
council whenever it deems it necessary to summon a traditional
leader to appear before
it in order to investigate any matter which
is harmful to the traditional community concerned, any matter of
importance or concern
which directly or indirectly affects the
traditional leader in his or her capacity as such or which affects
the provincial government
of its functions or in any matter where
there may be prejudice to the administration of the provincial
government within the traditional
community concerned. After
considering the matter, the provincial executive council may direct
the traditional leader to resolve
the problem or instruct the MEC (in
casu
the
third applicant) to institute an enquiry in terms of S23 where there
is reason to believe that the traditional leader is guilty
of
misconduct. This section though it may have far reaching consequences
for the
Inkosi
does not afford the
Umndeni Wenkosi
any role in the process.
[47]
S23 of the KZN Act allows the Premier to
charge the
Inkosi
and affords him the opportunity to respond. Where the
Inkosi
denies the charge or fails to respond, the MEC appoints a presiding
officer to conduct an enquiry on notice to the
Inkosi.
At the conclusion of the enquiry, the presiding officer reports his
or her findings to the provincial executive council together
with
recommendations and if applicable, any sanction. This is done in
terms of the provisions of S23(10).
[48]
Upon receipt of the report and
recommendations of the presiding officer, the provincial executive
council may impose a sanction
on the
Inkosi
in terms of S23(11), including a notice withdrawing recognition of
the traditional leader. S24(1) provides for the suspension of
the
traditional leader suspected of misconduct pending the finalization
of the proceedings instituted in terms of S22 or S23 of
the Act. Like
section 22; Sections 23 and 24 also do not call for input or a report
from the
Umndeni Wenkosi
.
D:
INTERPRETATION OF THE LAW AGAINST THE IMPUGNED
PROVISIONS
[49]
As
stated in a preceding paragraph, the purpose of S30 and S31 of the
Bill of Rights read with S211 and S212 of the constitution
were
enacted to address the ravages of earlier colonial and apartheid
regimes
[7]
.
[50]
The
test to be applied when considering an impugned provision is whether
the impugned provision is reasonable against S30 and S31
of the Bill
of Rights, It will fail to be considered reasonable if it completely
ignores the rights contemplated in the Bill of
Rights. A law which
fails to take into account the persons whose entrenched rights are
affected by such law must be considered
to be unreasonable
[8]
.
[51]
In terms of S36(1) of the constitution,
save for general application and determining what is fair and
reasonable, no provision in
the constitution may limit the
Umndeni
Wenkosi’s
rights under S30 and
S31 to their customary practices which are entrenched in the
constitution. Customary laws and practices ought
to be enhanced and
supported rather than minimized.
[52]
The
impugned provisions must be interpreted in the spirit of the Bill of
Rights in particular, S30, S31, S211 and S212
[9]
.
The impugned provisions must therefore be read in a way that gives
effect to the constitution’s fundamental values so as
to give
conformity with the constitution
[10]
.
If no conformity can be achieved, then the impugned sections fall to
be declared to be inconsistent with the provisions of the
constitution. Where the impugned sections negatively impact on the
respondents under S30, S31 and S211 of the constitution, then
they
must be tested against the criteria for reasonableness. The impugned
provision will have to pass a rationality test and not
violate the
Bill of Rights in order to pass constitutional muster
[11]
.
A court must read the impugned provisions in as far as possible in
conformity with the constitution
[12]
.
Where impugned sections cannot be interpreted in an unstrained manner
to promote the respondents’ rights under S30 and S31
of the
bill of rights, read with S211 of the constitution, then such
sections fall to be declared invalid on the basis of such
inconsistency with the constitution. A court is required to promote
the spirit and objects of the Bill of Rights and a court has
no
discretion in this regard
[13]
.
[53]
The
royal family is now firmly entrenched in statute and serves as a
primary source of knowledge on prevailing customary law and
the
customs on the succession of traditional leadership. The royal family
is not only tasked with finding suitable successors to
act as
traditional leader but also is responsible for removal of traditional
leaders
[14]
.
Likewise whenever the position of an
Inkosi
is to be filled, it is the
Umndeni
Wenkosi
who acts as
custos
mora
and must identify the person who is qualified in terms of customary
law to assume the position of an
Inkosi
.
S19 of the KZN Act sought to preserve this practice contained in the
Khoi-San Leadership Act.
[54]
S19(4) and S19(5) of the KZN Act
interpreted purposively are constitutionally permissive and they
reflect the obligations to uphold
customary law and practices which
were imposed on the legislature by the provisions of S30 and S31 of
the constitution. In terms
of the KZN Act neither the executive
council, the Premier nor the MEC has the unilateral discretion to
appoint an
Inkosi
without recommendations from the
Umndeni
Wenkosi.
Any disagreement by the
Premier only results in the decision being remitted to the
Umndeni
Wenkosi
for reconsideration in terms of
S19 of the Act. Where a decision has to be taken on issues for
the removal of an
Inkosi
on customary practices, a constitutionally permissive interpretation
of the impugned sections ought to be imposed on the applicants
to
refer the decision to the
Umndeni
Wenkosi
or at least seek their opinion.
This makes sense and is reasonable because S19 places reliance on the
Umndeni Wenkosi
in
appointing an
Inkosi
so
there is no reason why reliance and counsel at the very least, ought
not to be sought in relation to the removal of the
Inkosi
.
E:
APPLICATION OF THE FACTS TO THE LAW
[55]
The
complaints against Mr Luthuli are in respect of traditional customary
practices if one has regard to the charge sheet and the
judgment
delivered by the being the presiding officer after his enquiry. The
report of LSA was also concluded and recommendations
were made with
the investigators stating that they had no knowledge of what the
customary practices were of the eMathulini Community.
No expert
witnesses’ evidence was adduced by the applicants to deny the
customary practices of the community at any level
from the time the
charges were being investigated. Any decision taken on whether there
was misconduct on the part of Mr Luthuli,
in my view, could only be
decided if the presiding officer had sufficient information on what
the prevailing cultural practices
were. It then follows that if
conclusions regarding the conduct of Mr Luthuli were reached without
reference to the
Umndeni
Wenkosi
regarding how these practices are performed or whether Mr Luthuli has
contravened the practices, a rational and sound decision
could not
have been reached by the applicants
[15]
.
[56]
S21(4), S22, S23 and S24 of the Act confer
absolutely no provisions for deference to the
Umndeni
Wenkosi
in the hearing for the removal
of an
Inkosi.
Any participation by the
Umndeni Wenkosi
is at best, only as a witness if the
Inkosi
elects to call them. The
Umndeni
Wenkosi
therefore does not participate
in the decision-making process nor deal with the decision which the
MEC must take in imposing an
appropriate sanction. I have already
dealt with the omission of the
Umndeni
Wenkosi
in considering the provisions
of S21(4) and S22 of the Act. In my view, the
Umndeni
Wenkosi
have an entrenched right under
S30 and S31 of the constitution to participate in matters relating to
the removal of the
Inkosi
and
not to have a decision taken by the MEC which ignores or undermines
customary laws and practices. To do otherwise, would be
to erode
customary and cultural practices.
[57]
The applicants represented by
Mr
De Wet SC
and
Ms
Mbonane
argued that the
Umndeni
Wenkosi
in seeking the relief in the
constitutional challenge seek to ensure that the misconduct
complained of by members of community
will be dealt with by members
of Mr Luthuli’s own family and not an independent person. In
the process, the constitutional
rights of members of the community
will be trampled and this will undermine their right to equality and
fair administrative action.
The applicants relied on the case of
Mogale and Others v Speaker of the
National Assembly
(2023) ZACC 14
.
The applicants further submitted that past cultural practices may
continue only where such practices are consistent with
the
constitution and that the impugned provisions are not in any way
unconstitutional. It was submitted that where a traditional
leader is
charged with misconduct and he believes his conduct to be
permissible, he has the right to call his
Umndeni
Wenkosi
to support his version and the
Umndeni Wenkosi
is
therefore not excluded from proceedings relating to the traditional
leader’s misconduct. I have already dealt with the
provisions
of S9 of the Khoi-San Leadership Act which demonstrates that neither
the President nor the Premier may act on their
own accord to remove a
King or Queen or traditional leader, as the case may be. Even where
it comes to light that any recommendation
was made in bad faith, the
President or the Premier is still enjoined in terms of S9(6)(b) of
the Khoi-San Leadership Act to refer
the report to the royal family
or traditional council for their comment and thereafter taking into
account the comments, make a
decision.
[58]
The
KZN Act falls short of the aforementioned in relation to S21(4), S22,
S23 and S24. There have been no cogent reasons advanced
by the
applicants for why the
Umndeni
Wenkosi
ought
not to be involved in the removal of an
Inkosi
in similar terms as stipulated in S9 of the Khoi-San Leadership Act.
The submission by the applicants that as Mr Luthuli is part
of the
Umndeni
Wenkosi
,
there may be an element of bias on the part of the
Umndeni
Wenkosi
when input is sought from them simply cannot pass muster. It is still
open for community members to approach the MEC with their
complaints
like they did in the present matter. Likewise to say that nothing
precludes the
Umndeni
Wenkosi
from
being called as witnesses at a hearing by a presiding officer is not
the answer. In my view, the impugned sections which do
not make
provisions for recommendations or deference to the
Umndeni
Wenkosi
goes
against the grain of S30, S31, S211 and S212 of the constitution. The
impugned section are accordingly unconstitutional and
therefore must
be declared invalid in terms of S172(1)(a). Where a declaration of
invalidity is made, the court has a wide discretion
to implement a
remedy which is just and equitable
[16]
.
An appropriate remedy must be an effective remedy for without an
effective remedy for a breach of values underlying the right
entrenched therein, the constitution cannot be properly upheld or
enhanced
[17]
,
[18]
.
The just and equitable remedy under S172(1)(b) would be to allow the
KwaZulu-Natal Provincial Parliament to re-enact the impugned
sections
in a manner which is consistent with the constitution.
THE MAIN
APPLICATION AND MR LUTHULI’S CONDITIONAL COUNTER-APPLICATION
[59]
The applicants submitted that in respect of
the main application, Mr Luthuli contended that his conviction of
misconduct should
not be set aside. The applicants were of the view
that the only opportunity that Mr Luthuli must be given is the
opportunity to
make representations on the sanction which needs to be
implemented. I am not in agreement with same as if the impugned
sections
are unconstitutional and invalid, the finding of misconduct
must equally be set aside. The main application is dismissed and the
Rule
Nisi
granted on 19 November 2020 is confirmed.
[60]
It follows from my findings that as the
impugned sections are contrary to the provisions of the constitution
and invalid, that the
decision to remove Mr Luthuli on the basis that
the decision was inconsistent with the constitution and equally falls
to be declared
to be set aside. For clarity, there will be no order
in respect of costs in respect of the conditional
counter-application.
COSTS
A:
THE MAIN APPLICATION
.
[61]
During November 2020, Mr Luthuli launched
the urgent application to suspend the implementation of the sanction
pending an application
for review to be brought by him. Mathenjwa AJ
in granting the order on 19 November 2020 directed the Mr Luthuli to
institute the
review application within ninety days of the granting
of the order.
Mr Luthuli
ought
to have launched the review application on or before 1 April 2021.
This was not done and necessitated the applicants launching
the main
application. The applicants acted as prudent litigants in this
regard.
[62]
Generally, costs must follow the result and
inasmuch as I have dismissed the main application, I am of the view
that neither of
the respondents are entitled to the costs of the main
application as Mr Luthuli failed to launch his review application in
compliance
with the order of 19 November 2020. Accordingly each
party must pay their own costs in respect of the main application.
B:
CONSTITUTIONAL CHALLENGE
[63]
The first and third respondents have been
successful in the constitutional challenge and therefore the costs of
the counter-application
must follow the result.
[64]
The constitutional challenge has been of
great importance on a provincial level and warranted a great deal of
work and research.
I am therefore satisfied that the costs of three
counsel must be allowed.
[65]
In the circumstances, the applicants are
directed to pay the costs of the counter-application, jointly and
severally the one paying
the other to be absolved, such costs to
include the costs consequent upon the employment of three counsel.
CONCLUSION
[66]
In circumstances, I make the following
order:-
[a]
In respect of the main application, I make the following order:-
[i]
the application is dismissed;
[ii]
t
he Rule Nisi granted on
19 November 2020 is hereby confirmed
;
[iii]
each party is directed to pay their own costs.
[b]
In respect of the counter-application being the constitutional
validity challenge,
I make the following order:-
[i]
The provisions of S21(4), S22, S23 and S24(1) of the KwaZulu-Natal
Traditional
Leadership and Governance Act 5 of 2005 (“the
impugned sections”) be and are hereby declared inconsistent
with the
Republic of South Africa Constitution Act, 1996 and are
invalid;
[ii]
The KwaZulu-Natal Provincial Parliament is to re-enact the impugned
sections in a
manner which is consistent with the constitution.
[iii]
During the period that the KwaZulu-Natal Parliament is re-enacting
the impugned sections,
the applicants are interdicted from
withdrawing the recognition given to any traditional leader in terms
of the KwaZulu-Natal Traditional
Leadership and Governance Act 5 of
2005.
[c]
The decision of the ninth respondent taken on 30 October 2018 in
terms of S23 of the
KwaZulu-Natal Traditional Leadership and
Governance Act 5 of 2005, in terms of which the first respondent was
found guilty of misconduct,
is reviewed and set aside;
[d]
The decision of the first applicant taken on 9 October 2019 in terms
of the provisions
of S23(11) of the Act, in terms of which the first
respondent’s recognition as traditional leader was withdrawn,
is reviewed
and set aside.
[e]
The applicants are directed to pay the costs of the
counter-application, jointly and
severally the one paying the other
to be absolved, with such costs to include the costs consequent upon
the employment of three
counsel.
R. SINGH, AJ
DATE OF HEARING: 4 AUGUST
2023
DATE OF JUDGMENT: 4
OCTOBER 2023
Applicants’
Counsel:
Mr A. De Wet SC with Ms
Mbonane instructed by Xaba Attorneys, 223 Boom Street Central Office
Park, Pietermaritzburg.
Ref: D. Xaba/S.
Nene/pnn/01
Tel No.: 033-3457927
Email:
mail@xabainc.com
Counsel for the First and
Third Respondents:
Mr I. Topping SC with Mr
I. Veerasamy and Ms N. Nickel instructed by Thorpe and Hands
Incorporated, 4
th
Floor, Durban Club Place, Durban.
Ref: R.
Topping/km/Mat4594
C/O Stowell and Company,
295 Pietermaritz Street, Pietermaritzburg.
Ref: S. Myhill
Email:
sarahw@stowell.co.za
[1]
Minister
of Health and Others v Treatment Action Campaign and Others2002 (5)
SA 721 (CC)
at paragraph 24
[2]
Mogale
and Others v Speaker of the National Assembly and Others (CCT73/22)
[2023] ZACC14
(30 May 2023)
[3]
Maxwele
Royal Family and Another v Premier of the Eastern Cape Province and
Others
(2970/2020) ZAECMHC10
(23 March 2021) at paragraph 32
[4]
Mkhize:
In Re: Mbuyazi v Premier of the Province of KwaZulu-Natal and
Mbuyazi v Mbonambi
Community Development
Trust (822/13)
[2014 ZASCA 204
(28 November 2014) at paragraphs
2 and 14
[5]
Mkhize
NO v The Premier of the Province of KwaZulu-Natal 2019 (3) BCLR 360
(CC)
[6]
Mkhize:
In Re: Mbuyazi
[7]
Maxwele
Royal Family supra fn3 at paragraph 33
[8]
Government
of Republic of South Africa and Others v Grootboom and Others
2001
(1) SA 46
(CC) at paragraph 44
[9]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors
(Pty) Limited and Others
In Re: Hyundai Motor Distributors (Pty) Limited and Others v Smit NO
and Others
[2000] ZACC 12
;
2001 (1) SA
545
(CC) at paragraph 21
[10]
Investigating
Directorate: Serious Economic Offences and Others supra fn39 at
paragraphs
22 to 23
[11]
South
African Diamond Producers Organization v Minister of Minerals and
Energy and Others
2017 (6) SA 331
(CC) at
paragraph 65
[12]
Democratic
Alliance v Speaker of the National Assembly and Others
2016 (3) SA
487
(CC) at
paragraph 36
[13]
Phumelela
Gaming and Leisure Limited v Grundlingh and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC) at
paragraph 27
[14]
Maxwele
Royal Family and Another at paragraph 34
[15]
Mamone
v Commission on Traditional Leadership Disputes and Claims 2015 (3)
BCLR268
(CC) at paragraphs 79 to
80
[16]
State
Information Technology v Gijima Holdings (Pty) Ltd
2018 (2) SA 23
CC
at paragraph 53
[17]
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
CC at paragraph 69
[18]
S
v Bhulwana, S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
CC at paragraph 32