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2024
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[2024] ZAECMHC 14
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Hinana v Commission on Traditional Leadership Disputes and Claims and Others (878/2017) [2024] ZAECMHC 14 (26 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No: 878/2017
In
the matter between:
SEBENZILE
HINANA
Applicant
and
THE
COMMISSION ON TRADITIONAL
LEADERSHIP
DISPUTES AND CLAIMS
First
respondent
THE
EASTERN CAPE COMMITTEE OF
THE
COMMISSION ON TRADITIONAL
LEADERSHIP
DISPUTES AND CLAIMS
Second
respondent
THE
PREMIER: EASTERN CAPE
PROVINCE
Third
respondent
MKHONTWANA
THUKANI
Fourth
respondent
THE
EASTERN CAPE DEPARTMENT
COOPERATIVE
GOVERNANCE
AND
TRADITIONAL AFFAIRS
Fifth
respondent
THE
MINISTER OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
Sixth
respondent
THE
NATIONAL DEPARTMENTS OF
CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL
AFFAIRS
Seventh
respondent
THE
NATIONAL HOUSE OF TRADITIONAL
AFFAIRS
Eight
respondent
THE
EASTERN CAPE HOUSE OF
TRADITIONAL
LEADERS
Ninth
respondent
THE
AMAQWATHI LOCAL HOUSE
OF
TRADITIONAL LEADERS
Tenth
respondent
CONGRESS
OF TRADITIONAL LEADERS
OF
SOUTH AFRICA
Eleventh
respondent
ROYAL
HOUSE OF AMAQWATHI IN
ENGCOBO
Twelfth
respondent
JUDGMENT
Cubungu
AJ
Introduction
[1]
This
is a review application initially brought against the first to the
eleventh respondents. On 15 January 2019 Madam Justice Dawood
issued
an order granting leave that the twelfth respondent be joined to
these proceedings. The relief is sought against the first,
second and
third respondents.
[2]
First
to seventh and the eleventh respondent filed their notice of
intention to oppose, however, only the third respondent filed
an
answering affidavit, therefore the facts of this matter are
materially common cause what remains to be determined is what legal
conclusions are to be drawn from the undisputed facts.
[3]
On
31 March 2017 and complying with provisions of rule 53 of the Rules
of Court the third respondent filed the record which resulted
in the
applicant supplementing his founding papers and filed a confirmatory
affidavit by Professor Jeffrey Brian Peires.
[4]
It
is undisputed that Chief Henry Hinana, Pawula Hinana and Mxhamli
Hinana are the sons of Mapolo having been born by the same mother.
Pawula Hinana’s son is Vanveki Hinana and Vanveki’s son
is Vuyisile Hinana. Vuyisile Hinana is the applicant’s
father.
Chief Henry Hinana, the first born, was the Chief until 1976 just
before the Independence of the Transkei. As a result
of the problems,
he had with the Matanzima regime, and fearing for his life at the
time he fled with his family and some members
of the community to
Ntabethemba in the Ciskei. At the Ntabethemba he was allocated a site
to settle.
[5]
When
Chief Henry Hinana left the family decided to nominate Pawula Hinana
as the Chief of amaQwathi in Sterkspruit. However, the
fourth
respondent was installed as Chief of the community. It is the
applicant’s contention that Pawula should have
been appointed
as Chief, as the surviving and younger brother of Chief Henry in
terms of Customary law.
[6]
The
fourth respondent is the second born son of Dlangamandla. The fourth
respondent’s father was never a Chief of Hinana Community.
The
first-born son is Malolo a member of the community who is not a
Chief. The fourth respondent is not of Royal blood or
the
direct lineage of the chieftainship of the Hinana Family. This is an
undisputed fact.
[7]
During
July 2010, the Hinana Royal Family initiated a process of restoring
their chieftainship by referring a complaint to the MEC
for Local
Government and Traditional Affairs. This was necessitated by a
dispute between the Hinana and the fourth respondent’s
family
over the chieftainship.
[8]
On
6 September 2016, the Hinana Royal Family were notified by the office
of the third respondent of a decision dated 4 July 2016,
dismissing
the applicant’s claim for Senior Traditional Leadership. They
were not satisfied with this decision and directed
correspondence to
the third respondent requesting that he review his decision as
grounds upon which it was reached as well as the
procedure followed
to come to such decision was incorrect.
[9]
On
16 November 2016 the Hinana Royal Family received a response from the
Director General in the office of the third respondent
which stated
the following:
“
the
applicable legislation makes no provision for an appeal process of
the matter… but you are best advised to approach the court
for
a judicial review of the Premier’s decision.”
[10]
The
third respondent’s contention in resisting the order sought by
the applicant necessitated the contents of such correspondence
to be
quoted as done above. In that the third respondent’s contention
is that the dispute was resolved by the ninth respondent,
and it
ought not to have been referred to the second and the third
respondent and subsequently to him.
[11]
Further,
what the third respondent did, even in taking the so-called decision,
such decision lacked the required adverse and external
legal element
that would qualify it for judicial review. Thus, it is not reviewable
in terms of the Promotion of Administrative
Justice Act No 3 of 2000
(‘PAJA’).
[12]
That
brings me to the issues that I am required to determine, before doing
so, I pause to mention that the applicant’s first
prayer is to
‘review, set aside and declare invalid the decision of the
first and second respondents that the Senior Traditional
Leadership
of the amaQwathi at Sterkspruit resides in the fourth respondent.’
The first and second respondents are not opposing
the granting of
this prayer. The fourth respondent who will be directly affected by
the order sought does not oppose the granting
of this order.
[13]
In
a nutshell the issues to be determined are whether a proper procedure
was followed in arriving at the decision to dismiss the
applicant’s
claim and whether the third respondent took a reviewable decision
within the prescripts of PAJA in dismissing
the applicant’s
claim and appointing the fourth respondent as Senior Traditional
Leader of amaQwathi.
The
Background Facts
[14]
A
synopsis of the background facts to this matter are contained in the
applicant’s founding affidavit and supplementary replying
affidavit filed in terms of rule 6 (4) (
a
)
(
b
)
and (
c
)
of the Uniform Rules of Court. They are largely common cause as they
are mostly objective facts from the filed records, and they
are in
summary as follows.
[15]
On
7 July 2010, the Hinana Royal Family addressed a letter to the MEC:
Local Government and Traditional Affairs in which they sought
to
restore the chieftainship of the Royal House of Hinana. On 2
August 2010, the chief of staff of the office of the MEC
acknowledged
receipt of the letter and advised that the matter has been referred
to the office of the Traditional Affairs who had
been instructed to
attend to the matter. A period of two years lapsed without attending
the dispute and only in 2012 with the assistance
of the MEC for Rural
Development and Agricultural Reform, Mlibo Qoboshiyane an ad-hoc
committee was appointed from the Eastern
Cape House of Traditional
Leaders to deal with this dispute.
[16]
On
15 October 2012, the ad-hoc committee convened a meeting and at that
meeting the applicant’s claim for traditional leadership
was
supported by the community of Sterkspruit and they opposed the
appointment of the fourth respondent. I pause to mention that
the
minutes of the meeting held on 15 October 2012, were never retrieved
as the applicant was informed that they could not be located.
Another
long period lapsed without any outcome or action to the
recommendations made to the ad-hoc committee to recognise the
applicant as the legitimate traditional leader as claimed.
[17]
On
23 February 2014, the Hinana Royal Family addressed another
correspondence to the office of the MEC for Local Government and
Traditional Affairs requesting the decision to the claim. In response
to this correspondence, on 30 June 2015 the second respondent
invited
the applicant to attend an interview which was scheduled for 28 July
2015 at Queenstown. According to the applicant, because
the interview
was held about 200 kilometres away from Sterkspruit, the community
was unable to attend, and he was supported by
a few members of the
Hinana Royal Family who managed to attend the interview.
[18]
At
this interview the applicant was given an opportunity to make
submissions in support of his claim, he submitted to the second
respondent that he originates from the Hinana Royal Family of Henry
Hinana and as a great grandson of Pawula Hinana he is lawfully
entitled to the chieftainship in terms of the customs of amaQwathi.
[19]
The
fourth respondent was not party to these proceedings, and only a
delegation from his family arrived. According to the applicant,
a
fact which is not challenged, this interview was not a public hearing
and as such no public hearing was convened in dealing with
this
dispute. To confirm the applicant’s contention, I noted the
following recorded on page 2 of the Hinana Public Hearing
Record
[1]
the report by Peter Garikayi “
she
went on further to explain
that
this case was not going to go through the normal public hearing
procedure where all parties to the
claim
are invited to make presentations
.
The reason she submitted was that this case was a referral from the
Member of the Executive Council and
not
in terms of section 25 of the Act as amended.
As such the case would rather be approached as an interview, wherein
only the claimant alone is interviewed. She also highlighted
the
fact
that the case had gone to the house of provincial traditional
leadership where a decision was made, and as required by legislation
had been escalated to the MEC for finalisation
.
For
the reason not disclosed to the public, the case was then referred to
the commission.”
(My
underlining)
.
[20]
On
28 October 2015, the applicant addressed a letter on behalf of the
Hinana Royal Family to the Premier requesting the outcome
of the
interview held in Queenstown on 28 July 2015. No response was
forthcoming, another letter was addressed to the third respondent
on
18 January 2016, also requesting the outcome.
Only
on 16 March 2016, the applicant received correspondence from the
office of the third respondent to the effect that, the decision
was
taken on 4 November 2015 to remit the matter to the second respondent
for further investigation. The third respondent’s
decision of 4
November 2015, remitting the matter to the second respondent
requested a further investigation of the further circumstances
of the
claim which must include the following issues:
“
1.
The
reasons why the fourth respondent did not participate in the public
hearings.
2.
What
was the basis for the fourth respondent’s appointment as Chief
in the subject area?
3.
Was
the appointment made in accordance with the prevailing customary law
and customs applicable in that area?
4.
What
constituted the customary law or practices which entitled the fourth
respondent to ascend the chieftainship in Kroonspruit
at the time
when Inkosi Manzolwandle Henry Hinana left Kroonspruit.
5.
On
what basis can it be said that the claimant has, upon Inkosi
Manzolwandle Henry Hinana’s departure from Kroonspruit, lost
any entitlement to chieftaincy in the subject area?”
[21]
On
5 April 2016, the second respondent responded to the above questions
in a memorandum which recorded the following:
“
1.
The claim by Hinana was not one of the delegated claims by the
Commission to the Eastern Cape Committee in respect of which as a
general rule, we would hold a public hearing at which all parties to
the claim including members of the public, would have to be
heard. It
is also not a claim that would be adjudicated by the Committee
because the House of Traditional Leaders had resolved
it in
accordance with section 21 of the enabling legislation. It is a fact
that the HoTL had investigated it fully and resolved
it. The claim as
well as the resolution of the HoTL has been referred to the Committee
for guidance and ultimately to the Premier
for decision
.”
[22]
Whilst
on this memorandum which is referring to the matter being referred
for
guidance
and ultimately to the Premier for decision, a referral letter
addressed to the second respondent by the fifth respondent dated
22
April 2015 stated categorically that the matter is being referred to
the Provincial Committee of the Commission on Traditional
Leadership
Disputes for
further investigation
.
The mandate was to investigate.
[23]
Continuing
with the background facts of the matter, on 6 September 2016, the
Hinana Royal Family received information from the office
of the third
respondent that a decision to applicant’s claim had been
issued.
[24]
The
decision is dated 4 July 2016, and in that the third respondent
dismissed the applicant’s claim for Senior Traditional
Leadership on the following grounds:
“
1.
Chief Henry Manzolwandle Hinana migrated during 1970’s with
members of the ruling family from Sterkspruit to Ntabethemba
(Whittlesea)
in the Ciskei where he accepted the appointment and
recognition of chieftainship.
2.
Chief Henry Hinana’s migration from Sterkspruit to Ntabethemba
made no provision for a sustained Hinana rulership at Sterkspruit.
The respondent party, Mkhontwana Tukani was subsequently appointed as
the Chief of amaQwathi in Sterkspruit.
3.
Further and in any event, Chief Henry Hinana succeeds from the
right-hand house of Pawula. The claimant would in this instance
not
be entitled to succeed Chief Henry Hinana as Chief.”
[25]
On
3 November 2016, the chairperson of the Hinana Royal Family,
Monwabisi Hinana, addressed correspondence to the third respondent
to
the effect that the amaQwathi great house from Ngcobo, the amaQwathi
Traditional Council from Ntabethemba and the Hinana Royal
Family have
met and resolved to request the third respondent to review his
decision, as they were dissatisfied with the decision
taken.
[26]
On
16 November 2016, the Hinana Royal Family received a response from
the Director General that they should approach court for a
judicial
review and this was followed by another correspondence from the third
respondent’s chief of staff stating that the
third respondent
was bound by his decision refusing the applicant’s claim which
is in accordance with section 26 (3) of the
Traditional Leadership
Governance Framework Act, 41 of 2003 and that to the extent that the
family was aggrieved they should approach
court for an appropriate
relief. That gave rise to these proceedings.
The
applicable principles
[27]
The
role of traditional leadership, its institution, status, and role are
guided and dealt with in accordance with customary law
and are
subject to the Constitution. Section 211 (3) of the Constitution
state that the courts must apply customary law when that
law is
applicable, in line with the Constitution and any other applicable
legislation that specifically deals with customary law.
[28]
Section
212 of the Constitution provides for roles of traditional leaders and
state that the―
“
Role
of traditional leaders.
(1)
National legislation may provide for a
role for traditional leadership as an institution at local level on
matters affecting local
communities.”
To
properly attend to the matters relating to traditional leadership,
the roles bestowed upon traditional leaders, customary law,
and the
customs of communities observing a system of customary law.
[29]
The
Traditional Leadership and Governance Framework Act, 41 of 2003
, as
amended (“the Framework Act”) is the National Legislation
referred to in section 212 (1) of the Constitution. The
primary
purpose of the Framework Act is to restore the integrity and
legitimacy of the institution of traditional leadership in
line with
customary law and practices. It was promulgated to provide a
statutory framework for leadership positions within the
institution
of traditional leadership and for recognition of traditional leaders.
It also provides for the procedure in resolving
the dispute.
[30]
The
provisions that are applicable and relevant to these proceedings are
contained in section 21 of the Framework Act which provides
as
follows:
“
21
Dispute and claim resolution
(1)
(a) Whenever a dispute or claim
concerning customary law or customs arises between or within
traditional communities or other customary
institutions on a matter
arising from the implementation of this Act, members of such a
community and traditional leaders within
the traditional community or
customary institution concerned must seek to resolve the dispute or
claim internally and in accordance
with customs before such dispute
or claim may be referred to the Commission.
b)
If a dispute or claim cannot be resolved in terms of paragraph (a),
subsection (2) applies.
(2)
(a) A dispute or claim referred to in
subsection (1) that cannot be resolved as provided for in that
subsection must be referred
to the relevant provincial house of
traditional leaders, which house must seek to resolve the dispute or
claim in accordance with
its internal rules and procedures.
(b)
If a provincial house of traditional leaders is unable to resolve a
dispute or claim as provided for in paragraph (a), the dispute
or
claim must be referred to the Premier of the province concerned, who
must resolve the dispute or claim after having consulted-
(i)
the parties to the dispute or claim; and
(ii)
the provincial house of traditional leaders concerned.
(c)
A dispute or claim that cannot be resolved as provided for in
paragraphs (a) and (b) must be referred to the Commission.
(3)
Where a dispute or claim contemplated in
subsection (1) has not been resolved as provided for in this section,
the dispute or claim
must be referred to the Commission.”
[31]
When
a dispute arises like in this matter the Framework Act prescribes
that at first the community members and the concerned traditional
leaders must attempt to resolve same internally and in accordance
with the customs applicable within that community. Should the
dispute
not be resolved the relevant provincial house of traditional leaders
is next in line and should attempt to resolve the
dispute in
accordance with its internal rules and procedures. Should the
provincial house not succeed in resolving the dispute
it must then be
referred to the Premier of the province who must attempt to resolve
it after a consultation with the relevant parties
and the provincial
house of traditional leaders. It is only after this process can the
matter then be referred to the Commission.
[32]
Section
22 of the Framework Act governs the establishment of the Commission
and section 25 provides for the duties and powers of
the Commission,
in simpler terms the Commission’s purpose is to investigate and
make recommendations on any traditional leadership
dispute or claim.
Most importantly the Commission when performing its duties do so
within the prescripts of section 25 (3) (a)
which provides for the
application of the customary law and the customs and criteria of the
relevant traditional community as they
were applicable when the cause
of complaint occurred.
[33]
Section
25 of the Framework Act also provides for recommendations of
Commission, time frames and the constituency. In
Yende
and Another v Yende and
Another
[2]
the court held that―
“
Section
25 (3) of the Framework Act delineates the scope of the
investigations undertaken by the Commission. It enjoins the
Commission
apply only the customary law and customs of the relevant
traditional community when considering a dispute or a claim.”
[34]
It
is the applicant’s contention that the amaQwathi custom was
never considered because if it indeed was considered and applied
the
fourth respondent ought not have been installed as the Chief of
amaQwathi in Sterkspruit. This is not disputed. Section 6 (2)
(
b
)
of PAJA finds application in this matter if one considers the
provisions of section 25 (3) of the Framework Act and as correctly
submitted on behalf of the applicant.
[35]
Whilst
on the provisions of section 6 of PAJA I pause to mention the third
respondent’s contention that there was no decision
taken by him
which qualifies to be reviewed within the prescripts of section 6 of
PAJA. For purposes of PAJA a decision is defined
as any decision of
an administrative nature, made, or proposed to be made or required to
be made under an empowering provision.
Such includes a decision
relating to imposing a condition or restriction, making a
declaration, demand, or requirement.
[36]
The
applicant listed grounds upon which it relied in seeking the orders
prayed for in his amended notice of motion, it is not necessary
to
deal with each ground, I intend on dealing with only a few. I have
dealt with the failure to consider the relevant and applicable
customary law as envisaged in section 25 (3) of the Framework Act.
[37]
It
is contended that the second and third respondent failed to apply the
audi
alteram partem
rule, this is in respect of the interview held on 28 July 2015 in the
absence of the fourth respondent.
“
[I]t
is trite that the denying a party who has an interest in the matter
the right of meaningful participation in a hearing renders
the
proceedings in question procedurally unfair. The respondent’s
exclusion from meaningful participation in the process
of the
Commission clearly violated the provisions of S 22 (2) of the
Framework Act. Thus, the full court correctly found that the
audi
alteram partem
principle was not observed and that this rendered
the claim hearing procedurally unfair.” (Footnotes omitted.)
Conclusion
[38]
As
discussed above and as submitted on behalf of the applicant the way
the applicant’s claim was handled and decided is procedurally
unfair and the decisions taken as a result thereof cannot be
sustained and falls to be reviewed and set aside.
[39]
The
visible failure to comply with sections 21, 22 and 25 of the
Framework Act in as far as doing the investigation is concerned
cannot be ignored. The ignorance and failure to consider the
customary law applicable at the relevant time more specifically Chief
Henry Hinana’s circumstances surrounding his migration is
similar to that of Bebeza as per Garikayi report. The Constitution
is
about restoring traditional leadership. The amaQwathi custom which
was followed in Bebeza claim should have been followed.
[40]
The
third respondent did indeed make a decision which falls within the
ambits of section 6 of PAJA, the contention that the third
respondent
did not make any decision worthy to be reviewed cannot be sustained
and falls to be rejected.
[41]
The
record shows that the third respondent took the decision on 14 June
2016 to dismiss the applicant’s claim. The procedure
followed
by the third respondent in arriving at this decision was unlawful,
unreasonable, and procedurally unfair.
[42]
The
second respondent who made recommendations to the third respondent
acted unlawfully in that the second respondent was not properly
constituted at all relevant times as required in terms of the
Framework Act.
[43]
Finally,
the decision of the third respondent claiming to base its decision on
recommendations of the second respondent from investigations
made in
terms of sections 21 and 25 is wrong in law and in fact.
The
Order
[44]
In
the result I make the following order:
a)
The
first and second respondents’ decision that the Senior
Traditional Leadership of the amaQwathi at Sterkspruit resides
in the
fourth respondent is declared invalid and is therefore reviewed and
set aside.
b)
The
third respondent’s decision of 4 July 2016 appointing the
fourth respondent as the Senior Traditional Leader of the amaQwathi
at Sterkspruit is declared invalid and is therefore reviewed and set
aside.
c)
The
third respondent is directed to give effect to the Hinana Royal
Family in terms of which the applicant was identified to be
Senior
Traditional Leader of the amaQwathi at Sterkspruit, and in doing so
must act within the provisions of the relevant legislation.
d)
The
third respondent is ordered to pay the costs.
S.
CUBUNGU
ACTING
JUDGE OF THE HIGH COURT
Appearances
For
the Applicant: Mr Mapoma SC
Instructed
by: Makangela Mtungani Inc Attorneys, MTHATHA
For
the Respondents: Mr Bodlani SC
Instructed
by: The State Attorney, MTHATHA
Heard
on: 30 November 2023
Delivered
on: 26 March 2024
[1]
Page 89 of the Record Bundle: Garikayi Report
.
[2]
(SCA)
unreported case no 1128/19 of 18 December 2020 at para 23.