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[2023] ZAECMHC 34
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Fokazi v Member of the Executive Council for Co-operative Governance and Traditional Affairs Eastern Cape and Others (2710.2021) [2023] ZAECMHC 34 (4 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Reportable
Case No: 2710/2021
Date heard: 11/05/2023
Date delivered:
04/07/2023
In the matter between:
JONGIKHAYA
FOKAZI
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS- EASTERN CAPE
first
Respondent
THE
EASTERN CAPE HOUSE OF TRADITIONAL
LEADERS
second
Respondent
BULELANI
MTSHAZI
third
Respondent
JUDGMENT
Notyesi
AJ
Introduction
[1]
Cloete JA once warned–
“
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest –
the other
party may well be prejudiced because evidence may have been available
to it to refute the new case on the facts.”
[1]
[2]
Jongikaya Fokazi is the headman of Mndundu
Administrative Area, Willowvale. He was elected for that position by
the community, and
thereafter, he was officially appointed by the MEC
for Housing, Local Government and Traditional Affairs on 12 December
2005.
His position of headmanship was challenged by Bulelani Mtshazi,
who filed a dispute and a claim with the Eastern Cape House of
Traditional Leaders in terms of section 21(2)
(a)
of the Traditional Governance and Framework Act 41 of 2003 (the Act),
as amended, read with section 36(2)
(c)
of the Eastern Cape Traditional Leadership and Governance Framework
Act 1 of 2017 (ECTLGF). The Eastern Cape House of Traditional
Leaders
(the House) upheld the claim of Bulelani Mtshazi on 17 November
2020. This decision was taken by the executive committee
of the
House.
[3]
In this application, Mr Fokazi is seeking
relief for the review and setting aside of the decision by the
executive committee of
the Eastern Cape House of Traditional Leaders.
In the notice of motion, Mr Fokazi is further seeking a declarator
that the appointment
of Mr Bulelani Mtshazi as the rightful headman
for Mndundu Administrative Area, Willowvale, is unlawful and that it
should be declared
of no legal force and effect. There are other
ancillary reliefs sought by Mr Fokazi. The essence of the contention
by Mr Fokazi
is that the investigations conducted by an
ad
hoc
committee appointed by the Eastern
Cape House of Traditional Leaders were shoddy, irregular, and
procedurally unfair and that he
was not afforded adequate hearing
during such investigations.
[4]
The Eastern Cape House of Traditional
Leaders is refuting the allegations of Mr Fokazi on the basis that
the decision to uphold
the claim of Mr Mtshazi was pursuant to a fair
process of investigations, which was procedurally fair, public, and
transparent
and that Mr Fokazi was afforded an adequate hearing
during the investigations. The House further submitted that the
executive committee
and the House applied their minds when taking the
decision to uphold the claim and that Mr Fokazi has not attacked
the decision
of the House and that of its executive committee.
Issue
[5]
The crisp issue concerns the validity of
the decision to uphold the claim of Mr Bulelani Mtshazi by the
executive committee
of the House and questions whether Mr Fokazi was
afforded an adequate hearing during the investigation process of the
claim.
The parties
[6]
For the sake of convenience, the parties
shall be referred to as–
(a)
Applicant – Mr Fokazi;
(b)
First Respondent – the MEC;
(c)
Second Respondent – the House; and
(d)
Third Respondent – Mr Mtshazi.
Background
[7]
On 21 June 2021, Mr Fokazi launched these
review proceedings in accordance with the provisions of Uniform Rule
53, essentially seeking
a review of the decision by the executive
committee of the House taken on 17 November 2020. The grounds of
review are set out in
the founding affidavit. The answering affidavit
was filed on behalf of the MEC, the House and Mr Mtshazi on 28
September 2021.
The answering affidavit is deposed by Senior
Traditional Leader Jongisizwe Ngcongolo. Senior Traditional Leader
Jongisizwe Ngcongolo
was a member of the
ad
hoc
committee that investigated the
claim.
[8]
The records pertaining to the impugned
decision were filed on 11 April 2022. Mr Fokazi did not supplement
his grounds of review
upon receipt of the records.
[9]
In the founding affidavit, Mr Fokazi had
alleged that the history of the Fingoes and the headmanship was
settled by colonialists
after the last frontier wars. According to
him, at the conclusion of the last wars of resistance of 1877 to
1879, a large number
of Fingoes were removed from the Nqamakwe
district by the government and placed on the west side of the Bashee
river as a buffer
against the Gcalekas.
[10]
Mr Fokazi had alleged that one Manqoba, who
was a police officer at Nqamakwe, was appointed as the headman of the
Fingoes by the
government. He further alleged that Manqoba’s
son, Enoch, was also appointed to succeed his father by the
government. At
each time of these appointments, according to Mr
Fokazi, there were no elections nor any form of testing the views of
the community.
Mr Fokazi alleged that the headmen were simply imposed
upon the people. Mr Fokazi alleged that the government-imposed
headmen had
faced resistance from the local community because they
were viewed as government informers.
[11]
Mr Fokazi alleged that upon the death of
Enoch Manqoba, an acting headman was appointed because the son of
Enoch was a minor. In
this regard, Botani Nyewe was appointed as a
regent for the son of Enoch Manqoba. According to Mr Fokazi, when
Botani Nyewe passed
on, his son, Martin Nyewe, was appointed as a
successor. Upon the death of Martin Nyewe, the position of
headmanship became vacant.
Mr Fokazi alleged that the community
demanded that there should be elections for the position of the
headman. According to
him, the demand of the community was yielded.
Mr Fokazi alleged that from the time of the death of Martin
Nyewe, the position
of headmanship for Mndundu Administrative Area
was filled by way of general elections, and it was no longer
hereditary.
[12]
Mr Fokazi alleged that after the death of
Martin Nyewe, the position of headmanship became contested through
public elections and
in this regard, there were two contesting
candidates, Ntefelele Gwebixhala Mtshazi and Mandlenkosi Nyewe.
According to Mr Fokazi,
candidate Ntefelele Mtshazi succeeded as a
headman due to political influence. Mr Fokazi confirmed that when
Ntefelele Mtshazi
died, Bongosizwe Mtshazi was appointed as a
headman.
[13]
He further alleged that when the position
of the headman was again vacant, he availed himself and was contested
by Anele Mtshazi
and Mandlenkosi Nyewe. He was successful in those
elections and was appointed as the headman. After he was appointed,
Mr Fokazi
became the headman and chairperson of the Nqabeni
Traditional Council, according to his version.
[14]
Mr Fokazi confirmed that during October
2020, he received a communication dated 8 October 2020 from the
House. The communication
invited him to attend an enquiry at Nqabeni
Traditional Council regarding a dispute and claim filed by
Mr Bulelani Mtshazi
regarding the headmanship of Mndundu
Administrative Area. Mr Fokazi confirmed that the meeting was
scheduled for a hearing
on 19 October 2020 at 11h00. He confirmed
that, on the appointed date, he attended the hearing with his
councillors and participated
in the hearing.
[15]
Mr Fokazi set out the procedure that was
followed, and I directly quote the procedure as set out by him–
“
a.
The chairperson of the ad hoc committee asked the Mr Bulelani Mtshazi
to justify his
claim;
b.
Oral presentation was made by Mr Bulelani Mtshazi;
c.
Mr Bulelani Mtshazi produced no documentary evidence, either for the
chairperson
ofthe committee or Mr Fokazi;
d.
The chairperson never handed any documents to Mr Bulelani Mtshazi or
Mr Fokazi;
e.
Mr Bulelani Mtshazi was never engaged on any information that was
contained in
a document;
f.
According to Mr Fokazi, after the oral presentation by Mr Mtshazi, it
was
then a turn for Mr Fokazi;
g.
Mr Fokazi and his witnesses gave oral presentation;
h.
In the oral presentation, Mr Fokazi and his witnesses gave history of
how headmanship
evolved at Mndundu Administrative Area;
i.
During Mr Bulelani Mtshazi and his witnesses’ presentation,
they
made it clear, according to Mr Mtshazi, that all previous and
subsequent headmen from Manqoba family were imposed by the
government;
j.
According to Mr Fokazi, they stated plainly that the customary
practice
in Mndundu Administrative Area, is for headmen to be elected
by the community;
k.
According to Mr Fokazi, he submitted his letter of appointment to
substantiate
that the practice in the area is elections;
l.
Mr Fokazi alleged that the ad hoc committee never handed him any
documentary
evidence and that Mr Bulelani Mtshazi merely stated that
headmanship of Mndundu Administrative Area has always been held in
his
family, although he did not mention the years during which his
family held the headmanship.”
[16]
Essentially, Mr Fokazi’s grounds for
review could be briefly summarized as follows–
(a)
That he was not furnished with documents, and that was procedurally
unfair;
(b)
The failure to give him documentary information constituted
non-compliance with the
audi alteram partem
rule, and
therefore, the investigative mechanism or process was flawed;
(c)
The customary practice of Mndundu Administrative Area is for the
community to elect their headman;
(d)
The historical custom of electing a headman is evident from the list
of the majority of past headmen;
(e)
The institution of traditional leadership envisaged in the Act does
not provide for an undemocratic
process in the election and
appointment of traditional leaders;
(f)
The committee had a statutory duty to investigate the claim and, in
doing so, to consider
the customary law and custom of the area;
(g)
There is no basis to sustain Mr Bulelani Mtshazi’s claim;
(h)
The previous and subsequent appointment of the Manqoba family without
the involvement of the community
was and is not promoting the spirit,
purport and objects of the Bill of Rights and was thus irrational and
not rationally connected
to the purpose of empowering provision
and/or information before the committee.
[17]
The respondents have filed one answering
affidavit. That affidavit is deposed by Jongisizwe Ngcongolo.
Jongisizwe Ngcongolo was
a member of the
ad
hoc
committee that conducted the
investigations. He averred, in the answering affidavit, that he is
the senior traditional leader.
That he is employed by the Department
of Traditional Affairs and a member of the House. He confirmed that
he was a member of the
ad hoc
committee. They investigated the claim of Mr Bulelani Mtshazi against
Mr Fokazi. They found, after such investigations, that the
headmanship of the Mndundu Administrative Area was hereditary. He
alleged that the evidence for their conclusion is that Enoch
Manqoba
was the headman of the Mndundu Administrative Area, and he died in
1920. A regent headman, Joseph Nyewe, was thereafter
appointed as a
headman for the reason that the son of Enoch Manqoba, Mphathi, was a
minor. According to him, the last Mtshazi headman
who ruled the area
was Nkefelele Mtshazi, who ruled during the 80s. He disputed that
Martin Nyewe was ever appointed as a headman.
According to him, there
was a dispute concerning headmanship after the death of Botani Nyewe.
The dispute arose for the reason
that Martin Nyewe had mistakenly
believed that he was in line to inherit the position. This was
despite the fact that Joseph Nyewe
was only a regent. According to
Ngcongolo, the dispute was resolved by the tribal chief of the time
as he restored the headmanship
to the house of Mtshazi and
thereafter, Bongisizwe Mtshazi was appointed as a headman.
[18]
He confirmed that the hearing was conducted
in a procedurally fair manner. According to him, Mr Bulelani Mtshazi
submitted an application
form for his claim. The House decided to
investigate the claim. Mr Fokazi was informed about the claim and
invited to a hearing.
The
ad hoc
committee did not have any documents save for the documents filed at
the time of submitting the claim. That document was in possession
of
the chairperson of the enquiry. This was part of the claim. There
were no documents relied upon by the
ad
hoc
committee.
[19]
According to Ngcongolo, their process was
to find facts from both Mr Bulelani Mtshazi and Mr Fokazi and,
thereafter, to do their
own analysis of those facts. Ngcongolo
admitted that both parties, Mr Bulelani Mtshazi and Mr Fokazi,
presented their respective
evidence and submissions. Ngcongolo
disputed that the rules of natural justice were violated. Ngcongolo
submitted that the process
was procedurally fair, public hearing,
open, and transparent and that Mr Fokazi participated. Ngcongolo also
disputed that there
was information that was withheld from Mr Fokazi.
The only information that was received from Mr Bulelani Mtshazi was
attached
to his claim form, and that information was made available
in the archives to which Mr Fokazi had access.
[20]
Senior Traditional Leader Ngcongolo
disputed all the grounds of review as set out by Mr Fokazi, insisting
that the hearing was procedurally
fair and that Mr Fokazi was given
an adequate opportunity to present his own case. According to
Ngcongolo, Mr Fokazi and his witnesses
presented their evidence
regarding their alleged history of headmanship for the Mndundu
Administrative Area. He emphasized that
during the hearings, there
were no requests for documents from any other parties. Mr Fokazi did
not request documents during the
hearing. Instead, he was assisted by
his witnesses in the presentation of his evidence and submissions.
[21]
Senior Traditional Leader Ngcongolo
submitted that the resolution of 17 November 2020 was taken by
the House after consideration
of the investigation by the
ad
hoc
committee. The resolution was
thereafter communicated to Mr Fokazi on 14 December 2020. It was
submitted that the House followed
the correct procedures in adopting
the resolution of the ad hoc committee. According to Ngcongolo, the
House had deliberated on
the investigations by the
ad
hoc
committee and had applied its mind
before the resolution was taken.
Contentions of the
parties
[22]
Mr
Gagela
,
counsel for the applicant, submitted that the
ad
hoc
committee was tasked to investigate
Bulelani Mtshazi’s traditional leadership claim and, therefore,
the
ad hoc
committee had a statutory duty to investigate the dispute between Mr
Bulelani Mtshazi and Mr Fokazi. In this regard, Mr
Gagela
submitted that the
ad hoc
committee merely investigated a historical background of Mndundu
headmanship between Mr Fokazi and the Manqoba family. The
contention by Mr
Gagela
was that the
ad hoc
committee had failed to appreciate the scope of its mandate, and that
constituted a gross irregularity, which warrants the decision
of the
House to be reviewed and set aside. Mr
Gagela
did not point out the statutory basis for the submission that the
ad
hoc
committee had a statutory
obligation. However, he insisted on the submission, suggesting that,
as an investigating
ad hoc
committee, the statutory obligation should be inferred and that the
ad hoc
committee failed to appreciate its statutory obligations.
[23]
Insofar
as Mr Fokazi complains about non-compliance with the
audi
rule, Mr
Gagela
submitted that the chairperson of the
ad
hoc
committee was in possession of a document he received from Mr
Bulelani Mtshazi and that he ought to have given such document to
Mr
Fokazi. He submitted that the information had a bearing on the
decision of the
ad
hoc
committee. He relied, in this regard, on the authority of
Matiwane
v President of the Republic of South Africa and Others
,
[2]
where Griffiths J held–
“
In
my view, this was wholly insufficient to satisfy the requirement that
the applicant be given a reasonable opportunity to make
representations. On a reading of the transcript it is clear that a
few specific questions were levelled with regard to the question
of
the AmaMpondomise kingship and that such questions clearly did not
convey the import of the “collection” of adverse
information which the Commission alleges it had gathered. The
applicant ought to have been provided with all the information which
the Commission had independently gathered, particularly that which
was adverse to his quest for a declaration that a kingship existed,
in order that he might have been placed in a position to meaningfully
deal therewith. This is particularly so in that the contextualization
of such information given the nature of the matter could well have
provided a completely different meaning or slant thereto. This
had
the potential to affect Commission's deliberations had it been
availed of such submissions, but it was not."
[24]
Mr
Gagela
further contended that there is no evidence that the headmanship of
Mndundu Administrative Area was hereditary and, in this regard,
submitted that the overwhelming evidence is that the customary
practice of the area is that headmanship is elected and a candidate
must obtain a popular vote. Mr
Gagela
further submitted that Mr Fokazi’s case is simple and that it
is founded on the basis that there were shoddy investigations
and
non-compliance with the
audi
rule. Insofar as it was suggested that there is a failure to exhaust
internal remedies, Mr
Gagela
submitted
that the recommendations of the House were final in nature and,
therefore, there was no need to exhaust internal remedies.
Mr
Gagela
relied,
in this regard, on the authority of
Tshivulana
Royal Family v Netshivhulana,
[3]
where the Constitutional Court interpreted the provisions of section
21 of the Act as follows–
“
The
dispute may be referred from one level to the next only if it is
unresolved. When a definitive decision is taken at any level,
the
aggrieved party does not have any further internal recourse. This is
so because none of the levels is a review or appeal level.
A decision
at any level gives the aggrieved party the right to exit the internal
structure and approach a court for appropriate
relief.”
[25]
On
the contrary, Mr
Luzipo
,
counsel for the respondents, submitted that the
ad
hoc
committee had acted lawfully and that it followed its own methodology
before reaching its conclusion. The
ad
hoc
committee had given a hearing to both Mr Bulelani Mtshazi and Mr
Fokazi. They both made oral presentations and produced documentary
evidence. The
ad
hoc
committee made its own factual analysis of evidence and thereafter
reached its findings. Mr
Luzipo,
in his oral submissions, emphasized that the
ad
hoc
committee merely recommend to the House, and the recommendations are
not binding to the House. He contended that it is only the
House that
has binding recommendations to the MEC. He contended that Mr Fokazi
had not challenged the procedure adopted by the
House when upholding
the claim of Mr Bulelani Mtshazi. Mr
Luzipo
further submitted that Mr Fokazi had not extracted the portions of
the record upon which he relies for the relief he seeks and
that the
onus was on him to bring the evidence from records in advancing his
review. In this regard, Mr
Luzipo
submitted
that Mr Fokazi, for inexplicable reasons, abandoned the provisions of
rule 53 and did not identify the portion from records
upon which he
relies. Mr
Luzipo
relies
on the authority of
SACCAWU
and Others v President of the Industrial Tribunal and Another
[4]
in which Melunsky AJA held–
“
An
applicant who does not furnish the record to the Court runs the risk
of not discharging the onus, especially where the allegations
upon
which it relies are put in issue.
………
.
Without the recourse to
the records of proceedings the disputes cannot be resolved on the
affidavits. The result is that the appellants’
generalised
allegations of bias have not been established.”
[26]
Mr
Luzipo
further submitted that Mr Fokazi has
not made out a case on any of the grounds of review for the simple
reason that he was afforded
a hearing and he did participate in the
enquiry. Mr
Luzipo
insisted that, as Mr Fokazi is relying on the provisions of PAJA, he
ought to have exhausted the internal remedies and that he
failed to
do so, and for that reason, the review should be refused.
[27]
I turn to consider the parties’
contentions.
Legal Framework
[28]
Section 21, in part, of the Act provides as
follows–
“
(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.”
[29]
Section 36(2)
(c)
of
ECTLGF
contains
similar provisions to section 21 of the Act. The section provides–
“
If
a king or queen’s council or principal traditional council is
for whatever reason unable to resolve the dispute as provided
for in
paragraph (
a
),
the dispute must be referred to the Provincial House of Traditional
Leaders, which must seek to resolve the dispute in accordance
with
its internal rules and procedures.”
[30]
Clause 2.5 of the standing rules and orders
of the House, as amended in 2011, provides for the establishment of a
Dispute Management
Committee. Clause 2.5.1 provides–
“
The
Disputes Management Committee shall be responsible for the following
functions:
(a)
Investigating all claims and disputes referred to the House and make
appropriate recommendations
to the Exco for consideration by the
House.
(b)
Establishing protocol to manage relations with the National and
Provincial Commission
on Claims and Disputes of Traditional
Leadership and
(c)
Promoting claims and dispute prevention mechanisms within the
institution of Traditional
Leadership.”
[31]
Clause 4 of the Standing Rules and Orders
of the House deals with the election of the executive committee and
its functions.
[32]
Section 75 of the ECTLGF deals with the
powers and duties of the Provincial House. Section 75(3)
(c)
provides–
“
The
Provincial House may investigate and make available information on
traditional leadership, traditional communities, customary
law and
customs.”
[33]
In terms of section 80 of the ECTLGF, all
decisions of the Provincial House must be taken by the majority of
members constituting
the meeting of the Provincial House.
[34]
In
Matiwane
v President of the Republic of South Africa and Others
[5]
,
Griffiths
J held–
“
On
the other hand, courts are not to lose sight of the purpose of
judicial review which, as expressed in section 33 of the
Constitution,
is that everyone has the right to administrative action
that is lawful, reasonable and procedurally fair. Where, in any given
case,
a court comes to the conclusion that the administrative action
in question does not pass muster in this regard it should not refrain
from exercising its duty to correct administrative action which is
unjust. As stated by Harms JA:
“
The
right to just administrative action is derived from the Constitution
and the different review grounds have been codified in
PAJA, much of
which is derived from the common law. Pre constitutional case
law must now be read in the light of the Constitution
and PAJA. The
distinction between appeals and reviews must be maintained since in a
review a court is not entitled to reconsider
the matter and impose
its view on the administrative functionary. In exercising its review
jurisdiction a court must treat administrative
decisions with
“deference” by taking into account and respecting the
division of powers inherent in the Constitution.
This does not “imply
judicial timidity or an unreadiness to perform the judicial
function.”
[6]
[35]
In
motion proceedings, the affidavits constitute both the pleadings and
the evidence, and the issues and averments in support of
the parties’
cases should appear clearly therefrom.
[7]
[36]
In
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
,
[8]
Cloete JA stated–
“
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest –
the other
party may well be prejudiced because evident may have been available
to it to refuse the new case on the facts. The position
is worse
where the arguments are advanced for the first time on appeal. In
motion proceedings, the affidavits constitute both the
pleadings and
the evidence:
Transnet Ltd v
Rubernstein
, and the issues and
averments in support of the parties’ cases should appear
clearly therefrom. A party cannot be expected
to trawl through
lengthy annexures to the opponent’s affidavit and to speculate
on the possible relevance of facts therein
contained. Trial by ambush
cannot be permitted.”
[37]
In
Director
of Hospital Services v Mistry
,
[9]
Diemont JA said–
“
Counsel
cited authority, ancient and modern, for the principle that a
judicial officer in civil proceedings must resolve the dispute
on the
issues raised by the parties and confine the enquiry to the facts
placed before the Court; he must not have regard to extraneous
issues
and unproved facts. Thus
Voet
says in discussing the duties of a Judge:
“
But
things can no how be done by him without being called upon which
spring in their own origin from the litigants. Thus account
should
not be taken in giving judgments of exceptions not raised, nor of
witnesses not produced . . .
It follows from this that
a Judge cannot make good matters of fact if they are not stated by
the parties, unless they are quite
notorious from the documents which
have been put in by way of proof in the proceeding. That is to
prevent his appearing by making
good doubtful matters of fact to fill
the role not so much of Judge as of advocate, and to defend as
counsel rather than to judge.”
When, as in this case,
the proceedings are launched by way of notice of motion, it is to the
founding affidavit which a Judge will
look to determine what the
complaint is. As was pointed out by Krause J in
Pountas’
Trustee v Lahanas
1924 WLD 67
and 68 and as has been said in many
other cases:
“
.
. . an applicant must stand or fall by his petition and the facts
alleged therein and that, although sometimes it is permissible
to
supplement the allegations contained in the petition, still the main
foundation of the application is the allegation of facts
stated
therein, because those are the facts which the respondent is called
upon either to affirm or deny.”
Since it is clear that
the applicant stands or falls by his petition and the facts therein
alleged,
it is not permissible to
make out new grounds for the application in the replying affidavit.”
[38]
On the basis of the above principles, I
evaluate the submissions of the parties and the pleadings.
Evaluation and
findings
[39]
The
founding affidavit of Mr Fokazi was not a model of clarity. It
contains several passages in which reliance was placed on an
alleged
infringement of his rights to just and fair administrative action,
but on a reading of the founding affidavit, it must
be accepted that
he relies on PAJA. Mr
Gagela
submitted that in terms of section 21 of the Act, Mr Fokazi had no
duty to exhaust internal remedies for the reason that there
is no
appellate body against the decision of the House. I agree. This
question was settled in
Tshivhulana
Royal Family v Netshivhulana:
[10]
“
The
dispute may be referred from one level to the next only if it is
unresolved. When a definitive decision is taken at any level,
the
aggrieved party does not have any further internal recourse. This is
so because none of the levels is a review or appeal level.
A decision
at any level gives the aggrieved party the right to exit the internal
structure and approach a court for appropriate
relief.”
[40]
.
Brooks
J, in
Ranuga
and Another v The Chairperson of the House of Traditional Leaders,
Eastern Cape Province and Others
[11]
held–
“
The
proper interpretation of Section 21 of the Act set out in the
preceding paragraph also demonstrates the lack of merit in the
legal
point relied upon by the first to the fourth respondents in their
opposition to the application for review. No basis exists
upon which
the recommendation, resolutions and decision purportedly taken by the
second respondent requires the further attention
of the fourth
respondent “making a decision” based thereon before the
applicants can institute review proceedings.
Even the content of the
impugned decision demonstrates that the second respondent believed
that what it purported to recommend,
or resolve or decide,
constituted a decision that could be reviewed in this court.”
[41]
On the above basis and for the reasons set
out by the authorities, I reject the submissions relating to the
exhaustion of internal
remedies. Mr Fokazi was entitled to approach
the Court for review.
[42]
Mr
Gagela
submitted that Mr Fokazi was not afforded a hearing because he was
not given certain documents that were in possession of the
chairperson of the
ad
hoc
committee. In this regard, he relied on the judgment of
Matiwane
v The President of the Republic of South Africa and Others
.
[12]
This submission cannot stand since this case is distinguishable from
the
Matiwane
judgment. In the
Matiwane
judgment, the commission conducted three public hearings. The
applicant, in that case, had submitted documents which supported
his
claim for kingship. There was also a submission by Professor Pieres.
The commission drafted questions based on some sources
of history and
furnished them to the applicant for answers. The commission did not
furnish the applicant with the source documents
for those questions.
The commission made an adverse finding against the applicant based on
the sources that were not furnished
to the applicant. In the final
analysis, Griffiths J found that the commission was specifically
invited by the applicant to provide
the sources of the questions or
information, which invitation the commission refused with the
statement that its failure to disclose
the source of such information
is irrelevant for review purposes and Griffiths J concluded–
“
In
my view this was wholly insufficient to satisfy the requirement that
the applicant be given a reasonable opportunity to make
representations. On a reading of the transcript it is clear that a
few specific questions were levelled with regard to the question
of
the AmaMpondomise kingship and that such questions clearly did not
convey the import of the "collection" of adverse
information which the Commission alleges it had gathered. The
applicant ought to have been provided with all the information which
the Commission had independently gathered, particularly that which
was adverse to his quest for a declaration that a kingship existed,
in order that he might have been placed in a position to meaningfully
deal therewith. This is particularly so in that the contextualization
of such information given the nature of the matter could well have
provided a completely different meaning or slant thereto. This
had
the potential to affect Commission's deliberations had it been
availed of such submissions, but it was not.”
[13]
[43]
In this case, the only complaint by Mr
Fokazi is that he was not given documents of Mr Bulelani Mtshazi,
although the chairperson
was in possession of those documents. Mr
Fokazi does not state how the documents adversely affected him and in
what respect he
was entitled to the documents. Senior Traditional
Leader Ngcongolo, a member of the
ad hoc
committee, had stated in the answering affidavit that they had no
documents and that their process was to find facts from both
Mr Fokazi and Mr Bulelani Mtshazi and thereafter to do their own
analysis. It has further been revealed that the only document
that Mr
Bulelani Mtshazi submitted was part of lodging his claim. Mr Bulelani
Mtshazi gave oral evidence in the presence of Mr
Fokazi.
[44]
In the founding affidavit, Mr Fokazi has
not alleged that he asked for documents from the
ad
hoc
committee, which request was
declined by the committee. In this regard, I do find that the
submission by Mr
Gagela
relating to availing of documents which were never asked for lacks
merit and stands to be rejected.
[45]
It
is well to remember what was said in
Heatherdale
Farms (Pty) Ltd v Deputy Minister of Agriculture and Another
[14]
where Colman J said–
“
It
is clear on the authorities that a person who is entitled to the
benefit of the
audi alteram partem
rule need not be afforded all the facilities which are allowed to a
litigant in a judicial trial. He need not be given an oral
hearing,
or allowed representation by an attorney or counsel; he need not be
given an opportunity to cross-examine; and he is not
entitled to
discovery of documents. But on the other hand (and for this no
authority is needed) a mere pretence of giving the person
concerned a
hearing would clearly not be a compliance with the Rule. For (Nor) in
my view will it suffice if he is given such a
right to make
representations as in the circumstances does not constitute a fair
and adequate opportunity of meeting the case against
him. What would
follow from the lastmentioned proposition is, firstly, that the
person concerned must be given a reasonable time
in which to assemble
the relevant information and to prepare and put forward his
representations; secondly he must be put in possession
of such
information as will render his right to make representations a real,
and not an illusory one.
As to the provision of
information to the person who is to be heard there is authority. In
Minister of the Interior v Bechler and Others
;
Beier v
Minister of the Interior and Others
1948 (3) SA 409
(A) it was
indicated at 451 that what should be disclosed to the person
concerned is "the substance of the prejudicial allegations
against him". But what is meant by that "substance"
appears from other decisions. In
Sachs v Minister of Justice
1934 AD 11
STRATFORD JA at 38 approved the approach adopted by
TINDALL J (as he then was) in the Court below. And what TINDALL J had
said
was that the person concerned should have "a fair
opportunity of submitting any statements in his favour and of
controverting
any prejudicial allegations made against him". And
in the later Appellate Division case of
R v Ngwevela
(supra)
CENTLIVRES CJ again approved that formulation.
A special application of
the general principle, invoked in
Lukral Investments (Pty) Ltd v
Rent Control Board, Pretoria, and Others
1969 (1) SA 496
(T),
arises in relation to a fact which is equivocal, in the sense that it
tends to support a certain inference, but may not do
so if it is put
in its proper setting. It was held that there cannot be a fair
hearing unless the person against whom such a fact
is to be used has
been given an opportunity to place the equivocal fact in its setting
and thus show that no inference should be
made from it which is
adverse to his interests.
I do not know of any
authority which discusses the application of the
audi alteram
partem
rule to a situation where the case against a person whose
interests are in jeopardy rests wholly or partly upon the opinion of
an expert. It seems to me, however, to flow necessarily from the
relevant principles that the person concerned:
(a)
should be made aware, not merely of the expert's conclusion, but also
of his reasoning
and of the relevant facts accepted or assumed by
him; and
(b)
should have an opportunity of refuting or correcting the relevant
facts, of putting
forward other relevant facts, and of adducing
contrary expert opinion.”
[46]
In this case, the
ad
hoc
committee has not alleged anywhere
in the answering affidavit that it has independently established
information that is adverse
to Mr Fokazi. The
ad
hoc
committee simply analysed the facts
presented by the parties and made its own recommendations. I do find
that Mr Fokazi was afforded
a hearing and that there was compliance
with the
audi
rule. I therefore reject the submissions relating to violation of the
audi
rule.
I may well add that the
ad hoc
committee has not suggested that it had relied on any documentary
evidence in arriving at its decision.
[47]
Another contention on behalf of Mr Fokazi
was that the
ad hoc
committee
had failed to appreciate the
scope of its mandate, and that constituted a gross irregularity. This
ground of review was not raised
in the founding affidavit. Mr Fokazi
had merely contended himself with the allegation that he was not
given documents, and that
was non-compliance with the principles of
the
audi
rule. This contention, too, stands to be rejected for the simple
reason that no case was made in this regard. I must also add that
Mr
Fokazi has failed to identify the statutory provision upon which the
legal conclusion is drawn. The
ad hoc
committee was instructed by the House to do investigations and report
to the House with non-binding resolutions. Only the House
would, in
terms of the ECTLGF, make binding recommendations to the MEC. The
submission has no merit. As held in
Director
of Hospital Services v Mistry
:
‘
[A]n
applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible to
supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts stated
therein, because
those are the facts which the respondent is called upon either to
affirm or deny.
Since it is clear that
the applicant stands or falls by his petition and the facts therein
alleged,
“
it
is not permissible to make out new grounds for the application in the
replying affidavit”.’
[15]
[48]
Mr Fokazi’s review is further
defective and stands to fail for many reasons. In the notice of
motion, he attacks the decision
of the executive committee of the
House. Mr Fokazi failed to present facts on why the decision of the
executive committee of the
House was unlawful. He merely contended
himself by attacking the conduct of an
ad
hoc
committee that does not even pass
binding recommendations to the House. An
ad
hoc
committee is merely tasked to
gather information and present it to the House, of which the House
must deliberate, apply its mind
and rationally take a decision. There
are no allegations that the executive committee or the House did not
apply its mind to the
report of the
ad
hoc
committee. The decision of the
executive committee is simply not assailed on any recognisable ground
under PAJA. In my view, Mr
Fokazi has simply made no case for the
review of the executive committee decision of 17 November 2020.
The application should
fail on that ground too.
[49]
Another disturbing feature of Mr Fokazi’s
case is that he seeks relief that the appointment of Mr Bulelani
Mtshazi as a rightful
headman of the Mndundu Administrative Area be
declared unlawful and set aside. There are no facts set out regarding
this relief,
and it is simply not pursued in the founding affidavit
and was not pursued during oral submissions. There is no allegation
that
Mr Mtshazi was appointed as a headman, by whom, when was such
appointment made. There is simply a paucity of information in this
regard. The relief is sought with no foundation of facts. Again, the
review is defective.
[50]
Mr Fokazi has also asked that he be
declared as the only person entitled to be appointed as a headman in
accordance with the customary
practices of the area and to be
reinstated as a headman. He has placed no evidence why he should be
declared as the only person
entitled to be appointed as a headman.
There is no evidence that he was removed from his position as a
headman and, therefore,
that he should be reinstated. Again, this
relief is sought with no factual basis. The question to be asked
would be when Mr Fokazi’s
election was. For how long was he
elected, and what are the material conditions that must be met in
order for the elections to
be carried out? Absent all that
information, the relief sought by Mr Fokazi cannot be granted.
[51]
I must further remark that a bundle of
records filed in terms of Uniform Rule 53 was placed in the court
file. There was no reference
to any portion of those records upon
which Mr Fokazi relies. The bundle of records was merely placed in
the court file. This Court
had difficulty in understanding the import
of the record in circumstances where there is no reference to the
portions upon which
Mr Fokazi relies. Cloete JA had once warned–
‘
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest –
the other
party may well be prejudiced because evidence may have been available
to it to refute the new case on the facts.’
[16]
Findings
[52]
For all the reasons stated above, Mr Fokazi
was afforded a hearing by the
ad hoc
committee, and he participated in the enquiry. On the facts
presented, I cannot fault the findings of the executive committee and
the House. The application stands to be declined. There is a further
reason why the application should be refused. The impugned
report of
the
ad hoc
committee was not placed before Court. The Court was unable to assess
the report itself for the reason that it was not placed before
Court.
[53]
Mr
Luzipo
correctly
relied on the authority of
SACCAWU
and Others v President of the Industrial Tribunal and Another
[17]
in which Melunsky AJ held–
“
An
applicant who does not furnish the record to the Court runs the risk
of not discharging the onus, especially where the allegations
upon
which it relies are put in issue.
. . .
Without the recourse to
the records of proceedings the disputes cannot be resolved on the
affidavits. The result is that the appellants’
generalised
allegations of bias have not been established.”
Conclusion
[54]
Mr Fokazi has failed to make out a case,
and his application stands to fail. The costs should follow the
results. There is no reason
to depart from the general rule, and I
will award the costs of the MEC, the House and Mr Bulelani Mtshazi.
Order
[54]
In the result, the following order is made–
(1)
The application is dismissed;
(2)
The applicant shall pay the costs of the application.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT,
EASTERN CAPE DIVISION
MTHATHA
Appearances
Counsel
for the Applicant
Adv
F Gagela
Attorneys
for the Applicant
B
Makade Incorporated
Mthatha
Counsel
for the Respondents
Adv
S M Luzipo
Attorneys
for the Respondents
Office
of the State Attorney
Mthatha
[1]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
[2007] ZASCA 153
;
2008 (2) SA 184
(SCA) para 43.
[2]
Matiwane
v President of the Republic of South Africa and Others
[2014] JOL 31498
(ECM) para 40.
[3]
Tshivhulana
Royal Family v Netshivhulana
[2016]
ZACC 47
;
2017 (6) BCLR 800
(CC) para 32.
[4]
SACCAWU
and Others v President of the Industrial Tribunal and Another
[2000]
ZASCA 74
;
2001 (2) SA 277
(SCA);
[2001] 2 All SA 117
(A) at 282D.
[5]
Above
n 2 para 23.
[6]
Foodcorp
(Pty) Ltd v Deputy Director-General: Department of Environmental
Affairs and Tourism: Branch Marine and Coastal Management
and Others
2006
(2) SA 191
(SCA) at 196E-G.
[7]
De
Lange v Presiding Bishop of the Methodist Church of Southern Africa
for the time being and Another
[2014] ZASCA 151
;
2015 (1) SA 106
(SCA);
[2015] 1 All SA 121
(SCA)
para 19.
[8]
Above
n 1 para 43.
[9]
Director
of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635E-636.
[10]
Above
n 3 para 32.
[11]
Mnoneleli
Ranuga and Another v The Chairperson of the House of Traditional
Leaders, Eastern Cape Province and Others
[2021] ZAECMHC 45 para 57.
[12]
Above
n 2.
[13]
Above
n 2 para 40.
[14]
Heatherdale
Farms (Pty) Ltd v Deputy Minister of Agriculture and Another
1980
(3) SA 476
(T) 486D 487C. See also
Matiwane
above
n 2 para 34.
[15]
Above
n 9 at 636A.
[16]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
above
n 1.
[17]
SACCAWU
and Others v President of the Industrial Tribunal and Another
above
n 4.