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[2010] ZASCA 142
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Umndeni (Clan) of Amantungwa and Others v MEC for Housing and Traditional Affairs KwaZulu-Natal and Another (513/09) [2010] ZASCA 142; [2011] 2 All SA 548 (SCA) (23 November 2010)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 513/09
In
the matter between:
UMNDENI
(CLAN) OF AMANTUNGWA
................................................................
First
Appellant
LATU
ROBSON HELMON KHUMALO
.............................................................
Second
Appellant
AMANTUNGWA
TRADITIONAL AUTHORITY
.....................................................
Third
Appellant
and
THE
MEC FOR HOUSING AND TRADITIONAL
AFFAIRS;
KWAZULU-NATAL
...........................................................................
First
Respondent
PATRICK
S S KHUMALO Second Respondent
Neutral
citation
:
Umndeni (Clan) of Amantungwa & others v The MEC
for Housing and Traditional Affairs, KwaZulu-Natal
(513/09)
[2010] ZASCA 142
(23 November 2010)
Coram:
MPATI P, MAYA, SHONGWE JJA, BERTELSMANN and EBRAHIM AJJA
Heard:
30 August 2010
Delivered:
23 November 2010
Summary:
Customary Law – recognition and appointment of traditional
leader – effect of non-
compliance
with legislative procedure for such recognition and appointment.
______________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
KwaZulu-Natal High Court
(Pietermaritzburg) (Msimang J sitting as court of first instance):
1. The appeal is
dismissed.
_______________________________________________________________________
JUDGMENT
____________________________________________________________________
MPATI P (MAYA, SHONGWE
JJA, BERTELSMANN and EBRAHIM AJJA ..........):
[1] The issue in this
appeal is the validity of the appointment of the second respondent as
chief of the Amantungwa tribal community
(Amantungwa) of the Utrecht
district in KwaZulu-Natal and the concomitant termination of the
services of the second appellant,
who ruled that community until the
impugned appointment of the second respondent. The second appellant
is the great-grandson of
the late Chief Qomintaba Khumalo, who ruled
Amantungwa during his lifetime. Qomintaba’s grandson, the late
William Khumalo,
became chief of Amantungwa after his father’s
death and ruled until his demise in 1963. Upon his death William left
four
sons, namely Johan Madende, the eldest, Gadi, Girsten and Mgobo,
the youngest. One Enoch Jele Khumalo was appointed as acting chief
after the death of William, and he was succeeded, upon his death, by
yet another acting chief, namely Cain Khumalo, who ruled until
his
demise in March 1982.
[2] On 31 October 1984 a
meeting was held at the magistrates’ office, Utrecht, where the
issue of the succession to the chieftainship
was discussed. According
to the minutes of the meeting, signed by the Commissioner of Utrecht,
the gathering was recorded as a
meeting of the Khumalo clan
(‘stamvergadering van Khumalostam’). The following is
recorded in paragraphs 11 to 13 of
the minutes:
‘
11
Al die lede van die Khumalo stam nomineer eenparig vir Latu Robson
Helmon Khumalo . . . as hulle nuwe Kaptein.
12
Geen ander nominasies as Kaptein word gedoen nie.
13
Die stamvergadering versoek dat Latu Robson Helmon Khumalo as
volwaardige kaptein aangestel word en nie slegs as waarnemende
kaptein nie.’
1
[3]
Thereafter the second appellant ruled Amantungwa until he received a
letter from the Ministry: Local Government Housing and
Traditional
Affairs, signed by the first respondent on
10 October 2007
,
informing him,
inter alia, that the Executive Council of the Province of
KwaZulu-Natal had met on 29 August 2007 and ‘decided
that your
services as Acting Chief of Amantungwa be terminated and that Patrick
Sphamandla S’dumo Khumalo, son of Simon Mgobo
Khumalo, be
appointed as Chief of Amantungwa Tribe.’
2
It was also stated in the letter that
the second appellant’s acting appointment would come to an end
on 31 October 2007.
[4] On 5 March 2008, the
appellants instituted motion proceedings against the respondents,
seeking an order in the following terms:
‘
1.
That the decision of the First Respondent to remove the second
applicant as Chief of the Amantungwa Tribe and the appointment
of the
Second Respondent as Chief should be reviewed and set aside;
2.
That the Second Applicant be reinstated as Chief of the Amantungwa
Tribe; . . . .’
The appellant also sought
an order for costs, to be paid by the respondents jointly and
severally, the one paying the other to be
absolved. The respondents
opposed the application, the main ground of opposition being that the
second appellant had never been
appointed as Chief of Amantungwa, but
only as acting chief.
[5] The Pietermaritzburg
High Court (Msimang J) dismissed the application with costs. It
subsequently dismissed the appellants’
application for leave to
appeal. This appeal is with leave of this court.
[6] The first question to
be considered is whether the second appellant was appointed as Chief
or Acting Chief of Amantungwa. If
he was appointed as a chief the
appeal should succeed. If, however, he had been appointed acting
chief a second question arises,
which is whether the first respondent
was obliged to give him a hearing or an opportunity to comment or, to
make representations
in respect of the intended appointment of the
second respondent as Chief of Amantungwa.
[7] In his founding
affidavit the second appellant set out the history of his appointment
to the chieftainship as follows. He was
approached by the Umndeni,
which he described as the immediate relatives of an Inkosi (chief or
traditional leader), ‘to
fill the vacant position as Chief’.
He initially refused, but later succumbed to the power of persuasion
and agreed to fill
the position. The meeting of 31 October 1984
(referred to above) then took place at which all the four sons of the
late Chief William
Khumalo were present, as well as ‘all the
first sons of the houses of the Khumalo clan’. All the members
of the Umndeni
nominated him ‘as the Chief of the Amantungwa
Tribe’. There were no other nominations. On 5 November 1985 he
was taken
to the Head of Traditional Affairs in KwaZulu-Natal, King
Zwelithini Zulu, ‘to be anointed and prepared to take over as
Chief
of the Amantungwa Tribe’. He thereafter ruled as such.
[8]
The second appellant did not allege in his founding affidavit that
what was contained in paragraph 13
3
of the minutes of the meeting of 31
October 1984 was an incorrect record of what transpired at the
meeting. He asserted, instead,
that ‘…at item 13 of the
minutes, it was recorded that I was appointed as the true and
rightful Chief and not just
a temporary Chief . . .’ The
Afrikaans verb used in the text is ‘versoek’. The
Pharos
English – Afrikaans Dictionary
lists the English translation for it as ‘request; pray; desire;
ask; invite; solicit;
beg;’ and ‘tempt’. In the
context in which the word is used it can, in my view, mean ‘request’;
‘pray’;
‘desire’; ‘ask’; or
‘beg’. Accordingly, I do not agree with the assertion by
the second appellant
that what was recorded in the minutes was that
he ‘was appointed as the true and rightful chief . . .’.
The minutes,
a copy of which was annexed to the first appellant’s
founding affidavit deposed to by one Joseph Ncede Khumalo, clearly
state
that the clan meeting
requested
that he be appointed as a
‘fully-fledged’ (volwaardige) chief and not merely as an
acting chief.
[9] It is manifest,
therefore, that the second appellant was never ‘appointed’
either as chief or acting chief at the
meeting of 31 October 1984. To
the contrary, the meeting merely recommended that he be appointed as
a chief. The actual appointment
was to be made by someone who, in the
exercise of his or her authority, would consider the recommendation.
[10] In a verifying
affidavit deposed to in support of the respondents’ opposition
to the order sought by the appellants,
Mgobo Khumalo (Mgobo), the
youngest of the four sons of the late Chief William Khumalo, made the
following averments:
‘
4.1
. . . I wish to point out that Johan (the first successor in title to
the Late Inkosi William, and my eldest brother), was severely
incapacitated, and suffered from a debilitating illness. His
hands
and fingers had been cramped and immobilized into a shrunken claw and
he could not move.
.
. .
We
believed that Johan had been poisoned to prevent him from taking
over as chief. It is for that reason that my brothers and
I did not
immediately wish to assume office, and were happy to let the Second
Applicant act as regent.’
Although his assertion,
that the brothers ‘did not immediately wish to assume office,
and were happy to let the second [appellant]
act as regent’, is
at odds with the minutes of the October 1984 meeting, Mgobo has given
an explanation as to why none of
the late Chief William Khumalo’s
issue succeeded him.
[11]
At the time of the second appellant’s alleged appointment as
Chief of Amantungwa the appointment of chiefs and acting
chiefs was
regulated by section 2 (since repealed) of the Black Administration
Act
4
.
Section 2(7) read:
‘
The
Governor-General may recognize or appoint any person as a chief of a
Black tribe and may make regulations prescribing the duties,
powers,
privileges and conditions of service of chiefs so recognized or
appointed, and of headmen, acting chiefs or acting headmen
appointed
under sub-section (8). The Governor-General may depose any chief so
recognized or appointed.’
Subsection (8) provided:
‘
The
Minister or, if delegated thereto by the Minister, the Secretary for
Co-operation and Development, the Under Secretary for Co-operation
and Development, or the Chief Commissioner for the area concerned,
may appoint any persons as headman over a location or as headman
of
Blacks in any area and may appoint any persons to act temporarily as
a chief or headman in the place of or in addition to the
ordinary
incumbent of the post or where the post is vacant or there is
ordinarily no such post in respect of the tribe, location
of Blacks
in question, and may depose any headman or acting chief or acting
headman so appointed.’
5
A chief was thus
appointed by the Governor-General, while an acting chief was
appointed by the responsible Minister or any of his
delegates
mentioned in subsec (8).
[12]
Except for his
ipse
dixit
the second
appellant provided no evidence of his alleged appointment as Chief of
Amantungwa. The deponent to the respondents’
answering
affidavit, one Gabusile Caroline Gumbi-Masilela, who is the Head of
the Department of Local Government for the Province
of KwaZulu-Natal,
alleged that the reason why the appellants were unable to provide any
evidence of the second appellant’s
appointment as chief was
because ‘he was in fact appointed as regent . . . or temporary
chief under section 2(8) of the Black
Administration Act in 1986.’
Attached to her affidavit is a document headed ‘AANSTELLING’,
with an English version
headed ‘APPOINTMENT’. The
document (the English version) reads as follows:
‘
In
terms of section 2(8) of the Black Administration Act, 1927 (Act 38
of 1927) I do hereby appoint Latu Robson Helomo Khumalo as
temporary
Chief of the Khumalo tribe in the Magisterial district of Utrecht.
Dated
at Pietermaritzburg this 20 day of March 1986.’
6
The designation of the
person who signed the document is reflected as ‘Chief
Commissioner’. I shall refer to the document
as ‘the
letter of appointment’.
[13] The letter of
appointment was admitted in evidence by the court a quo and that
decision was not challenged in this court. In
his replying affidavit
the second appellant merely said the correspondence (including the
letter of appointment) that passed between
various departmental
officials, copies of which were attached to the answering affidavit,
and in which he was referred to as ‘Tydelike
Kaptein’
(Temporary Chief) ‘was a mistake’ and that ‘members
of the tribe approached the Magistrate’s
Court on two occasions
to rectify this as this was not what the family had agreed upon’.
From this statement it is clear,
in my view, that the second
appellant had been aware of the fact that he had been appointed as
acting chief; hence the endeavours
by the members of the tribe ‘to
rectify’ the so-called mistake. There is no evidence that the
‘mistake’
was ever rectified. It follows that the court a
quo correctly found that the second appellant was appointed
temporary, or acting,
Chief of Amantungwa.
[14]
Counsel for the appellants contended, however, that because of the
effluxion of time and with the advent of constitutionalism
in this
country, including certain legislative reforms, the appointment of
the second appellant as acting chief was altered by
operation of law
to that of a chief. But counsel was unable to refer us to any
legislative provision, or any other law, from which
it could be
inferred that the status of any person who had been appointed as an
acting chief was altered to that of chief, as suggested
by him. On
the contrary, s 28 (2) of the Traditional Leadership and Governance
Framework Act
7
(the Framework Act) provides that a
person ‘who, immediately before the commencement of this Act,
had been appointed and was
still recognised as a regent, or had been
appointed in an acting capacity . . . is deemed to have been
recognised or appointed
as such in terms of section 13, 14 or 15, as
the case may be’. Section 13 deals with the situation where a
successor to a
traditional leadership position is still a minor and
s15 deals with the appointment of deputy traditional leaders. None of
these
two sections applies in this case.
[15]
In my view, the second appellant falls under s14 (1) (a) which said
the following:
8
‘
A
royal family may, in accordance with provincial legislation, identify
a suitable person to act as a king, queen, senior traditional
leader,
headman or headwoman, as the case may be, where –
‘
(a)
a successor to the position of a king, queen, senior traditional
leader, headman or headwoman
has
not been identified by the royal family concerned in terms of section
9(1) or 11(1);
.
. . .’
Again s 9 (1) does not
apply because it deals with the identification of a person as a
successor to the position of king or queen.
Section 11(1) makes
provision for the identification, by the royal family, of a person
who qualifies in terms of customary law
to assume the position of
senior traditional leader, headman or headwoman. In his founding
affidavit the second appellant conceded
that ‘in terms of the
customary laws of succession [he] would not have been in line to
become chief’, but that he was
nominated to succeed by ‘those
who were rightfully supposed to succeed’. There is thus no
merit in counsel’s
submission that the second appellant’s
status as acting chief was altered to that of chief by operation of
law.
[16]
The order sought by the appellants is set out in paragraph 4 above.
They prayed for an order, inter alia, setting aside the
second
respondent’s decision to remove the second appellant as Chief
of Amantungwa and reinstating him as such. The second
appellant
asserted in his founding affidavit that a traditional leader may only
be removed in terms of the grounds outlined in
s 21(1) (
a
)
of the KwaZulu-Natal Traditional Leadership and Governance Act 5 of
2005 (Governance Act).
9
The respondents’ case is that
the second appellant ‘was not removed as chief’ and that
he had simply acted as
regent ‘until the chief was recognised,
as provided for in s 30 (4) of the [Governance Act]’. That
subsection provides
that an acting traditional leader (
Ibambabukhosi
)
‘must carry out the duties of office on behalf of
Isilo
[king] or
Inkosi
[senior traditional
leader], as the case may be, until such time that
Isilo
or
Inkosi
is in a position to assume office’.
The respondents accordingly alleged that there was no decision (to
remove second appellant)
that was capable of being reviewed or set
aside.
[17]
The Governance Act came into operation on 16 January 2006. As I have
mentioned, the second appellant’s position as acting
chief was
governed by s 28 (2), read with s14 of the Framework Act. Section 14
(2) provides that an acting appointment in terms
of subsec (1)
10
‘
must be made in
accordance with provincial legislation . . .’.
11
Section 30 (1) (a) of the Governance
Act echoes
s
14(1) (
a
)
of the Framework Act and directs, inter alia, that
Ibambabukhosi
may only be identified and recognised
where ‘a successor to the leadership position concerned has not
been identified’.
I agree, therefore, that where a successor is
identified and recognised an acting chief is not ‘removed’
from office
as envisaged in s 21 of the Governance Act. His or her
duties come to an end when the successor assumes duty as a chief or
traditional
leader. That, however, is not the end of the matter.
[18] The
appellants also sought an order reviewing
and setting aside the second respondent’s
appointment as Chief of Amantungwa. That order does not depend only
on whether or
not the second appellant was an acting chief, but also
on whether or not the second respondent’s appointment was
lawful.
In his founding affidavit the second appellant asked ‘that
the decision [of] the First Respondent to remove me be reviewed
and
set aside as it [was] wrongful
and
[un]just as I was removed without being given the opportunity to make
representations and without the Umndeni [royal family]
being
consulted’. I have mentioned in paragraph 3 above that in the
letter from the Ministry: Local Government Housing and
Traditional
Affairs, dated 10 October 2007, the second appellant, apart from
being advised that the Executive Council of the Province
of
KwaZulu-Natal had ‘decided that your services as Acting Chief
of Amantungwa be terminated’, was also informed that
his
‘removal’ from the position of acting chief ‘will
take effect from 31
October 2007’. In
view of my finding above that when a successor to a traditional
leadership position has been identified
and recognised the duties of
an acting chief come to an end when the successor assumes duty as
chief or traditional leader, I shall
accept, for present purposes,
that the first respondent was mistaken when he referred to the second
appellant’s ‘removal’
from the office of acting
chief. But the letter unquestionably reveals that ‘a decision’
had been taken by the Executive
Council that the second appellant’s
services as acting chief ‘be terminated’ and that the
second respondent ‘be
appointed as Chief of Amantungwa Tribe’.
[19] Section 19 of the
Governance Act says:
‘
(1)
Whenever the position of an
Inkosi
is
to be filled, the following process must be followed –
(
a
)
Umndeni wenkosi
must,
within a reasonable time after the need arises for the position of an
Inkosi
to
be filled, and with due regard to applicable customary law and
section 3 –
(i)
identify a person who qualifies in terms of customary law to assume
the position of an
Inkosi
after
taking into account whether any of the grounds referred to in section
21 (1)(
a
),
(
b
)
or (
d
)
apply to that person;
(ii)
provide the Premier with the reasons for the identification of that
person as an
Inkosi;
and
(iii)
the Premier must, subject to subsection (3) of this section and
section 3, recognise a person so identified in terms of subsection
(1) (
a
)
(i) as
Inkosi
:
Provided that if the reason for the vacancy is the death of the
recognised
Inkosi,
Umndeni wenkosi
must,
before identifying the person to be recognised as
Inkosi
,
consider the content of the testamentary succession document referred
to in section 19A.
(2)
The recognition of a person as an
Inkosi
in
terms of subsection (1) (
a
)
(iii) must be done by way of –
(
a
)
a notice in the
Gazette
recognising
the person identified as an
Inkosi;
and
(
b
)
the issuing of a certificate of recognition to the identified person.
(3)
The Premier must inform the Provincial House of Traditional Leaders
of the recognition or appointment of an
Inkosi.
.
. . .’
The
appellants assert in their founding papers that the Umndeni of
Amantungwa ought to have been consulted before a decision was
taken
‘to remove the second appellant as Chief of Amantungwa Tribe’.
I have already found that the second appellant
was not a chief, but
an acting chief. However, the corollary
of the assertion made about
the Umndeni not having been consulted is that the Umndeni of
Amantungwa (
Umndeni
wenkosi)
12
was not consulted in respect of the
appointment of the second respondent as Chief of Amantungwa.
[20]
It seems to me that the circumstances under which the services of an
acting chief (
Ibambabukhosi
)
may be terminated are (a) when the
Isilo
or
Inkosi
is in a position to
assume office (s 30(4) of the Governance Act), and (b) when the
acting chief is removed from office in terms
of the provisions of s
21 (see s 30(5)). Only (a) can apply in the present matter, it being
common cause that the second appellant
could not have been removed on
any of the grounds enumerated in s 25. Indeed Ms Gumbi-Masilela
testified in the respondents’
answering affidavit that the
second appellant ‘simply acted as regent or acting chief until
the chief was recognised, as
provided for in s 30(4) of the
[Governance Act]’.
[21] Langalibalele
Mathenjwa, an erstwhile professor and Acting Head of Department of
the University of Zululand, in the department
of IsiZulu Namagugu,
where he ‘dealt with teaching and resource into the Zulu
heritage’ and presently Provincial Manager
of the South African
Heritage Resources Agency, set out ‘the Zulu laws of hereditary
succession’ as follows in an affidavit
annexed to the
respondents’ answering affidavit:
‘
The
successor of a deceased Inkosi is appointed on the basis of the Zulu
laws of hereditary succession, from within the Royal or
Ruling House.
That is, the [successor to] the chieftainship is the heir of a
deceased chief. In this way succession is retained
within the Royal
House. In essence the successor to a deceased chief will be the
eldest son from the
indlunkulu.
(This
means the first or the great house.) If the eldest son is dead or
cannot take up the position, then that eldest son’s
senior male
descendant: failing which the second son of the
indlunkulu,
failing
him the senior male and so on through the sons of the
indlunkulu
and
their descendants. Thereafter the eldest son of the house first
affiliated to the
indlunkulu,
failing
which the senior male descendant through such house and their
descendants in order of seniority, and so on.’
This custom of hereditary
succession has not been disputed by the appellants. It must,
therefore, be accepted as correct.
[22] It will be recalled
that at the meeting of 31 October 1984 none of the sons of the late
chief William Khumalo, who could succeed
him, wanted to become Chief
of Amantungwa. Of the late Chief William’s four sons the
youngest, Mgobo, still survives him.
In terms of the Zulu laws of
hereditary succession he is the heir to the chieftainship.
Having
given the reasons why he and his older brothers did not wish to
succeed their late father as chief
13
,
Mgobo continued
as
follows
in
his verifying affidavit:
‘
However,
my son (the Second Respondent) has now reached majority and we (that
is the Umndeni, other members of the royal family
and I) wish to
regularize the situation and wish a member of the royal family to be
appointed as Inkosi, as this would be correct
and consistent with
applicable laws and customs. We wished the Second Respondent to be
appointed as Inkosi and for that reason
approached the department
which led to his ultimate appointment by the Premier.’
Ms Gumbi-Masilela has
deposed in the respondents’ answering affidavit that Mgobo
‘does not now wish to be appointed
as chief as he is over 60
years of age, and does not wish to take up the position due to his
frail health’. Clearly, therefore,
in terms of the Zulu custom
of hereditary succession the second respondent, who, it is common
cause, is Mgobo’s eldest son,
qualifies to assume the position
of Chief of Amantungwa.
[23] I agree, however,
with counsel for the respondents, that customary law does not
override
legislative enactments. For the
second respondent to be recognised and appointed as Inkosi or Chief
of Amantungwa he ought to have
been identified by the umndeni wenkosi
(s19 of the Governance Act). Before us counsel for the respondents
conceded that the second
appellant, who testified in his replying
affidavit that he ‘is a member of the royal/ruling house’,
qualifies as a
member of Umndeni wenkosi. As a member of umndeni
wenkosi, and particularly because of his position as acting chief,
one would
have expected that he would have been part of the process
of the identification, recognition and ultimate appointment of the
second
respondent as Chief of Amantungwa. He has alleged that he has
been removed, ie his services have been terminated, without the
umndeni
having been consulted.
[24] According to Ms
Gumbi-Masilela the second appellant was acting as chief from
1986 until 2007 ‘when
the department [of Local Government and Traditional Affairs for the
Province of KwaZulu-Natal] received
complaints from the Umndeni of
the Amantungwa clan that the situation should be regularized, and
that an adult male from the rightful
house should now be appointed as
chief’. In support of these allegations the deponent attached
two undated letters to the
answering affidavit, one from Mgobo and
the other from one Bongani Khumalo, who refers to himself as a
‘family member’
and ‘the son of Mgobo’. In
essence, these letters, which were addressed to the head of the
department (of Local Government
Housing and Traditional Affairs),
were calling for the return of the chieftainship to the ‘rightful
house’. Ms Gumbi-Masilela
then continued:
‘
This
led to an investigation by the members of the department. The
department has concluded that the umndeni of the Amantungwa Clan
have
identified the Second Respondent as the person who qualifies in terms
of customary law to assume the position of chief.’
Ms Gumbi-Masilela deposed
further that the umndeni ‘were consulted, and it is they who
called for the recognition of the Second
Respondent as chief’.
[25] In his replying
affidavit the second appellant emphatically denied this assertion and
stated:
‘
I
further state that sections 19 and 30 of the [Governance Act] had not
been complied with in the following respects.
(a)
Umndeni wenkosi never met to appoint the Second Respondent.
(b)
We have not been given any reasons by the Premier for the appointment
and recognition of the Second Respondent.
.
. .
(e)
The First Respondent has unilaterally and without reference to
customary law and Umndeni consultation recognised and appointed
the
Second Respondent as Inkosi which recognition is defective . . . .’
In my view, there is no
clear and acceptable evidence to show that the Umndeni of Amantungwa
ever met to discuss the second respondent’s
proposed
identification as Chief of Amantungwa.
[26] Annexed
to the answering affidavit is a geneology of the Amantungwa, which
was drawn up by one Favourite Sibongile Mhlongo
(Mhlongo), a Deputy
Manager: Anthropology in the employ of the Department of Traditional
Affairs. According to Ms Masilela-Gumbi
the geneology was ‘created’
by Mhlongo, who advised her that it ‘was verified at a meeting
with representatives
of the Amantungwa clan on 28 September 2006’.
(Mhlongo confirmed this in his verifying affidavit.) It is common
cause that
both deponents to the two founding affidavits were present
at that meeting. There was some veiled argument before us that it was
at that meeting that the second respondent was identified as the
future Chief of Amantungwa. There was no evidence whatsoever in
any
one of the affidavits before us to support that argument. The letters
from Mgobo and Bongani Khumalo upon which, it appears,
the first
respondent and the rest of the Provincial Executive Council
acted to have the second respondent appointed as
Chief of Amantungwa and the second appellant’s services as
acting chief terminated,
are conspicuously silent on any such meeting
of Umndeni of Amantungwa. The affidavits of Mgobo and the second
respondent, though
confirming the contents of Ms Gumbi-Masilela's
affidavit (answering) also made no mention of such meeting. Mgobo
merely stated
that he and other members of the royal family 'wish to
regularize the situation, but failed to identify those 'other
members'.
[27] In
answer
to
an assertion by the second appellant that the second respondent was
at no stage nominated by the Umndeni as Chief of Amantungwa
Ms
Gumbi-Masilela deposed as follows:
'The
Second Appellant is being particularly disingenuous in pretending
that he is surprised that the Second Respondent was to be
appointed
as Inkosi. This had been discussed with him some time ago and indeed
[second respondent] lived in the Second [Appellant's]
house during
1997 and 1998 for the specific purpose of receiving training to be
chief . . . .'
In
his verifying affidavit the second respondent confirmed this and said
the second
appellant
'was well aware of the Umndeni's wishes' that he be appointed as
chief and that he specifically resided with the second
appellant in
the latter’s house during 1997 and 1998 to receive training.
The second respondent stated further that the idea
'was that I would
be so trained until I matriculated'.
[28] It is true that the
appellants did not place in dispute the averment that the second
respondent lived in the second appellant’s
house during the
period mentioned, but that is not surprising. There was no allegation
anywhere in the papers that the Umndeni
of Amantungwa ever met to
discuss the issue of the second respondent’s identification as
the next Chief of Amantungwa. A
mere expression of wishes by an
unknown number of unidentified members of Umndeni of Amantungwa that
the second respondent be appointed
a chief does not translate into an
identification of a successor for recognition and appointment as
envisaged by the provisions
of s19 of the Governance Act.
[29] In his letter of 10
October 2007 addressed to the second appellant the first respondent
said, inter alia:
'Mgobo
is the one who wrote a letter to the Department that it is now time
that the Chieftainship of Amantungwa Tribe be restored
to the
rightful house. That was discussed at the meeting of 18
th
September
2006, at Madadeni Magistrate’s Office after a family tree was
drawn . . .’
14
I have already mentioned
that Mgobo and Bongani Khumalo made no reference, in their letters,
to a meeting where the matter was discussed;
nor did Mgobo and the
second respondent do so in their verifying affidavits. The source of
the information at the disposal of the
first respondent that the
issue was discussed at the Madadeni Magistrate’s Office remains
unidentified, while the second
appellant was emphatic that no such
meeting took place. Mhlongo, who prepared the geneology, also made no
mention of a meeting
at which the second respondent was identified as
the next Chief of Amantungwa.
[29] It is manifest,
therefore, that the reason for the termination of the second
appellant’s services as Acting Chief of
Amantungwa had no
foundation in that there was no proper identification of a person who
qualified to fill the position of chief.
The question to be
considered next is what order should be made.
[30]
Counsel for the respondents submitted that if it is found, as indeed
I have, that the second appellant was never appointed
as a chief, but
rather as an acting chief, the appeal fell to be dismissed precisely
because the appellants sought an order that
the second appellant be
reinstated as a chief. It seems to me, however, that in the event of
the appellants being successful on
the issue of the validity of the
appointment of the second respondent and were that appointment to be
set aside, it would follow
that the second appellant would continue
in his position as Acting Chief of Amantungwa. However, the order
sought that the appointment
of the second respondent as chief be
reviewed and set aside is problematic. The respondent raised a point
in limine, in their answering
affidavit, that the application be
dismissed for failure by the appellants to join the Premier of the
Province of KwaZulu-Natal
as a respondent. In the respondents'
answering affidavit Ms Gumbi-Masilela testified that 'whenever the
position of a chief is
to be filled the Premier must recognise the
person identified by the umndeni wenkosi' and that 'it is evident
from [this] that
the relevant decision maker is the Premier'. Section
19(1)(
a
)(iii)
of the Governance Act provides that the Premier must recognise a
person who has been 'identified in terms of subsection (1)(
a
)(i)
as
Inkosi'.
15
[31] In view of the
findings I have made above, counsel were requested to make further
written submissions on what an appropriate
order would be. I am
indebted to them for their very helpful additional submissions.
[32] The appellant sought
orders reviewing and setting aside the first respondent’s
decision to remove the first appellant
as Chief of Amantungwa;
reviewing and setting aside the appointment of the second respondent
as Chief of Amantungwa and reinstating
the first appellant as chief.
In his letter to the first appellant dated 11 October 2007 the first
respondent stated that the Executive
Council of the Province of
KwaZulu-Natal had decided to terminate the first appellant’s
services and that the second respondent
be appointed as Chief of
Amantungwa. The appointment or recognition of a chief in the Province
of KwaZulu-Natal, however, is made
by the Premier in terms of s 19 of
the Governance Act. Ms Gumbi-Masilela confirmed in the answering
affidavit that after the Executive
Council had considered the matter
‘the Premier duly appointed the Second Respondent as chief of
the clan’.
[33]
The Premier has not been cited as a respondent before the court a
quo. Nor was he joined after the respondents had raised the
non-joinder as a point in limine. His act of appointing the second
respondent as chief is sought to be reviewed and set aside in
his
absence. For his argument that the order prayed can, and should, be
granted, counsel for the appellants sought support in the
decisions
of this court in
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government, Gauteng
16
and
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd.
17
I find
it unnecessary to set out counsel’s argument since, in any
event, I am of the view that both decisions do not support
him; they
are in fact against him.
[34] The first case was
an application for leave to appeal to this court. The appellant had
instituted proceedings against the respondent
and the Minister of
Land Affairs for an order compelling them to transfer certain fixed
property it had purportedly purchased from
the respondent. It had
transpired, after the conclusion of the purported sale agreement,
that the property was owned by national
government. And so transfer
of the property could only be effected after the respondent had
obtained a certain certificate from
the Minister of Land Affairs. It
turned out, however, that the value of the property was much more
than the purchase price and
for this reason the Ministry of Public
Works, to whom the administration of the property had been assigned
by the President of
the country, refused to sanction the transfer.
When the matter came before Van der Walt J in the Pretoria High Court
a copy of
the necessary certificate in respect of the property,
issued by the Minister of Land Affairs, was handed to the learned
judge and
he granted an order authorizing the registrar of deeds to
effect transfer upon receipt of the certificate (presumably the
original).
No such certificate was ever issued as the national
government persisted in opposing the transfer. When it heard rumours
that the
property was being subdivided the appellant sought an urgent
order against the respondent, the Minister of Land Affairs and the
registrar of deeds, restraining them from effecting any subdivision;
and a further order directing the registrar of deeds to be
satisfied
with a copy of the necessary certificate for purposes of effecting
transfer. The Ministry of Public Works then successfully
applied to
intervene as a party. Because of certain developments the
interdictory part of the application fell away, but the appellant
persisted in claiming transfer of the property. The court (Smit J)
dismissed the application on the grounds that the Minister of
Public
Works had the power, as assigned to her by the State President, to
dispose of land owned by
national
government; that the respondent had not been authorized in law to
sell the property; that the sale of the property to the
applicant had
been ultra vires
and
void
ab initio
and
that there was thus no
causa
for the transfer.
[35]
The applicant thereafter sued the respondent for damages for breach
of contract, alleging that the latter had failed or refused
to
transfer the property to it. In a special plea the respondent
pleaded, inter alia, that the issues of the validity of the contract
and the absence of a causa for the property to be transferred had
been finally decided by Smit J and that it was accordingly not
open
to the applicant to raise them in its claim. Reliance was thus placed
on the defence of
res
judicata
or
‘issue estoppel’. The applicant, at the trial, also
relied on
res
judicata
or
‘issue estoppel’, its case being that the validity of the
sale had been finally determined between the parties by
Van der Walt
J and was
res
judicata
when
it came before Smit J. The trial court (Gildenhuys J) upheld the
respondent’s special plea and dismissed the applicant’s
action. In dismissing the application for leave to appeal in this
court Leach AJA said the following
18
after
referring to ss 91(2)
19
and
92(1)
20
of the
Constitution and
s 2(1)
of the
State Liability Act 20 of 1957
21
:
‘
While
the two different ministers whom the applicant sued in cases
15278/2001 and 4578/2002 are members of the same sphere of
government,
the President has assigned to them separate and distinct
powers and functions. Each can only exercise those powers and
functions
that were individually bestowed on her. They cannot act on
behalf of each other in performing a public function, nor can one be
validly sued in circumstances in which the law authorises the
institution of proceedings against the other. Therefore, the Minister
of Public Works, who was not a party to the proceedings in case
15278/2001 [before Van der Walt J], cannot be bound by a decision
on
an issue arising in that case and the applicant had failed to
establish the necessary requirement of
idem
actor.’
[36]
The second case concerned the validity of a paragraph in a notice in
a
Gazette
issued
by the Minister of Finance in terms of which a council was empowered
to estimate the amount of any levy prescribed by the
Regional
Services Council Act 109 of 1985. Section 12(1)(b) of that Act
empowered the Minister of Finance ‘to determine the
manner in
which the regional services levy and regional establishment levy
shall be calculated and paid’. The appellant had,
on the
strength of the notice, sought to recover a certain amount plus
interest from the respondent. The amount claimed was alleged
to be an
estimated assessment of regional services and regional establishment
levies owed to the appellant by the respondent in
terms of s12 (1) of
Act 109 of 1985 read with the Notice. The respondent resisted the
claim on the basis that the Minister of Finance
had acted ultra vires
the empowering provisions of s12 of that Act when he made the
regulation contained in the paragraph in issue,
with the consequence
that the levies claimed on the basis of estimates made under its
provisions were unenforceable. On appeal
to this court the appellant
argued that the respondent’s defence should have failed because
the Minister of Finance had not
been joined and that the validity of
the Notice, being a constitutional issue, could not be determined in
the absence of the
maker
of the
Notice.
[37] This court rejected
this argument and held that –
‘
.
. . the respondent did not ask to have paragraph 11 (1) set aside. It
merely contends that its provisions are unlawful for exceeding
the
powers of the enabling legislation, and cannot found a basis for the
collection of the levies sought to be recovered from it.
In other
words, the respondent seeks to repel the council’s coercive
action, i.e. the collection of the levies, whose legal
force lies in
the legal validity of the provisions made by the Minister empowering
the council to collect the levies.’
22
It was thus not necessary
to join the Minister of Finance in that case because the regulation
he had made in the paragraph concerned
was not sought to be set
aside.
[38]
The issue of joinder does not depend on the nature of the
subject-matter of the proceedings before a court, but rather ’on
the manner in which, and the extent to which, the Court’s order
may affect the interests of third parties.’
23
Subsequent
to the dismissal of its appeal in the
Cable
City
case
the appellant sought leave from the Constitutional Court to appeal
further to it. In dismissing the application for leave to
appeal the
Constitutional Court made the following comment:
‘
It
is in general imperative that a party affected by a ruling should be
joined in those proceedings.’
24
In the instant matter the
Premier of the Province, being the only member of the Executive
Council empowered by the Governance Act
to recognise and appoint
chiefs, clearly has a direct and substantial interest in the order
sought to set aside the appointment
of the second respondent as Chief
of Amantungwa. He would be directly affected by a ruling to that
effect. He should have been
joined and failure to do so is fatal to
the appellants’ case.
[39] I have chosen to
deal fully with the facts of the matter and its history so as to show
that the appointment of the second respondent
as Chief of Amantungwa,
which resulted in the termination of the second appellant’s
services as acting chief, was flawed
for want of compliance with the
peremptory procedure provided for in s19 of the Governance Act. In my
view, the appellants were
justifiably aggrieved by the actions of the
Executive Council and should not, in these circumstances, be burdened
with a costs
order against them. It would be fair, in my view, to
make no order as to the costs of the appeal.
[40] In the result the
appeal is dismissed.
____________________
L Mpati
President
APPEARANCES
APPELLANTS: H J S Meyer
Instructed by W H A
Compton Attorneys, Pietermaritzburg;
Honey Attorneys Inc.,
Bloemfontein
RESPONDENT: N Singh SC
with him R J Seggie SC
Instructed by Potgieter
Kunene Xaba Inc, Pietermaritzburg;
McIntyre & van der
Post, Bloemfontein
1
‘
11
All the members of the Khumalo clan unanimously nominate Latu Robson
Helmon Khumalo...as their new Chief.
12 No further
nominations for the chieftainship are made.
13 The meeting of the
clan requests that Latu Robson Helmon Khumalo be appointed as a
fully-fledged chief and not only as acting
chief.’ (My
translation.)
2
The
letter was written in the IsiZulu language. The correctness of the
English translation, which was prepared by or on behalf
of the
appellants, has not been placed in issue.
3
Referred
to in para 3 above.
4
38
of 1927.
5
Before
its repeal the subsection still referred to the ‘Department of
Plural Relations and Development’, whereas that
designation
was changed to the “Department of Co-operation and
Development’ by Proclamation No. R. 179, 1979 in Government
Gazette No. 6630 of 24 August 1979, with effect from 20 June 1979.
6
It
was not suggested that the Khumalo Tribe referred to in the letter
of appointment is different from Amantungwa.
7
41of
2003.
8
At
the material time and before it was amended by Act 23 of 2009, which
came into effect on 25 January 2010.
9
Section
21 reads: ‘Removal of Traditional leader – (1) A
traditional leader may be removed from office on the grounds
of-
(
a
) conviction of
an offence with a sentence of imprisonment for more than 12 months
without an option of a fine;
(
b
) physical
incapacity or mental infirmity . . .;
(
c
) wrongful
appointment or recognition;
(
d
) a
transgression of a customary rule or principle that warrants
removal;
(
e
) a breach of
the Code of Conduct; or
(
f
) misconduct as
contemplated in section 23.’
10
Subsec
(1)(
a
) is quoted in para 15 above.
11
The
provincial legislation in this case is the Governance Act.
12
‘
Umndeni
wenkosi’ is defined in the Governance Act as ‘the
immediate family 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.’
13
See
para 10 above.
14
The
date 18 September 2006 might be incorrect. Ms Gumbi-Masilela's
affidavit gave the date on which the geneology was prepared
as 28
September 2006.
15
The
subsection reads:'(a)
Umdeni wenkosi
must within a reasonable
time after the need arises for the position of an
Inkosi
to
be filled, and with due regard to applicable customary law and
section 3-
(i) identify a person
who qualifies in terms of customary law to assume the position of an
Inkosi
. . . .'
16
2009
(3) SA 577
(SCA).
17
2010
(3) SA 589
(SCA).
18
At
para 28.
19
Section
91(2) reads: ‘The President appoints the Deputy President and
Ministers, assigns their powers and functions, and
may dismiss
them.’
20
Section
92 (1) reads: ‘The Deputy President and Ministers are
responsible for the powers and functions of the executive
assigned
to them by the President’.
21
Section
2 reads: ‘(1) In any action or other proceedings instituted by
virtue of the provisions of section
one
, the Minister of the
department concerned may be cited as nominal defendant or
respondent.
(2) For the purposes of
subsection (1), “Minister” shall, where appropriate, be
interpreted as referring to a member
of the Executive Council of a
province.’
22
Per
Maya JA, para 16.
23
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637(A)
at
657.
24
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
2010
(5) BCLR 445
(CC) para 12.