About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2022
>>
[2022] ZAECBHC 20
|
|
Mabele v Mndende and Another (665/2015) [2022] ZAECBHC 20 (29 April 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BISHO)
Not Reportable
Case no: 665/2015
In the matter between:
ANDILE
J
MABELE
Applicant
and
DR NOKUZOLA
MNDENDE
First
respondent
THE PREMIER, EASTERN
CAPE
Second
respondent
JUDGMENT
Govindjee J
[1]
The
applicant seeks to review and set aside the administrative decision
of the second respondent (the Premier) in endorsing the
recommendation of a Provincial Committee (‘the Committee’)
of the Commission on Traditional Leadership Disputes and
Claims (‘the
Commission’) to dismiss the applicant’s claim for
chieftainship. If successful in the review, he
requests the court to
grant an order substituting the
Premier’s
decision and declaring him to be traditional leader of Mxhelo
Administrative Area, Alice (‘Mxhelo’).
1
Applicant’s
submissions
[2] The
applicant contends that there was a chieftainship headed by the
Mabele family
in Mxhelo. He is heir to the Mabele Royal Family and as
such entitled to be appointed as a senior traditional leader in terms
of
the Traditional Leadership and Governance Act, 2003 (‘the
Act’).
2
[3] The
founding affidavit sets out the basis for the applicant’s
claim, including
the history upon which he relies, dating back to the
1830s and the time of the British Settlers. Nkosemntu Mabele laid a
claim
to the Chieftainship of the Mabele royal family over Mxhelo in
terms of s 25 of the Act. An investigation into the Mabele
Chieftainship
over Mxhelo, discussed below, followed. The third
respondent opposed the claim on the basis that the Mxhelo / Ely area
fell under
his jurisdiction.
[4] The
Commission sourced a research report from Mr Peter Garikayi during
2013 (the
Garikayi Report). The applicant relies heavily on the last
two ‘salient findings of (this) research’, contained at
the end of the executive summary of the Garikayi Report. These
findings are repeated in full:
·
‘The
claimant is a Mfengu and of the Royal House of the AmaMbo in the line
of Mtimkhulu: therefore he is eligible in a sense
to dispute senior
traditional leadership.
·
Ncwana
is said to have been the first chief in this area who then left for
Tsomo, leaving his brother Mabele behind to lead a segment
of his
people.
·
The
area under dispute is called Mxelo in Alice in the Gaga Traditional
Authority and between two clans of amaHlubi ie amaBele asLenge
and
amaBele amaNgobizembe.
·
It
is alleged that the amalgamation, known as Gunyaziwe, the amaBele
aseNgobizembe were placed under amaBele aseLenge, albeit through
their handing over by an acting leader one Mashalaba.
·
The
respondent was of the view that there is no record of the rulership
of Mabele, let alone his residence in the area in question.
·
However,
the map presented by the respondent during the public hearing shows
that Mabele was a resident of this place and at the
time of the
drafting of the map, Mxelo was not under the leadership of Mavuso.
’
(emphasis added).
[5] It
is suggested that this conflicts with the third respondent’s
claim,
supported by Mr Vuyani Hlati and which was accepted by the
Committee, that Mxhelo was under Gaga Tribal Authority as early as
1857.
The Committee recommended the dismissal of the applicant’s
claim on 9 December 2013. The Premier endorsed the recommendation
and
made a decision on 27 May 2015. The applicant became aware of the
outcome on 8 June 2015.
[6] The
applicant takes issue with the delay in the Premier making his
decision known,
also noting that the third respondent had been
informed about the decision a few days prior, on 5 June 2015. There
is also a suggestion
that the third respondent’s non-opposition
to the application is significant.
3
Various grounds of
review are advanced:
4
a) The
Commission was biased against the applicant. It ignored the findings
of the commissioned research
‘which found that there was indeed
Chieftainship of AmaNgobizembe aseMxhelo under the Mabele royal
family and traced the
genealogy of the family from Chief Ncwana to
Chief Nyandeni’.
b) There was procedural unfairness. Written submissions prepared by Nkosemntu Mabele, assisted by (the eminent Professor of African Studies) Professor Peires, was not considered by the Commission and not included in its report (‘the missing submission’).
By contrast,
the third respondent’s submissions had been included, considered and accepted, despite containing factual inaccuracies. ‘Chief Langa Mavuso’s submissions
can therefore not be factually correct but it is clear that the
Commission favoured him to the applicant.’
c) Irrelevant
considerations were taken into account by the Commission. Scientific
evidence submitted
by the researcher was ignored. Instead the
Commission made its decision based on contradictions on the parties’
oral submissions.
d) The
Commission had prejudged the matter and the outcome would have been
the same irrespective
of what evidence had been submitted.
e) Documentary
evidence in the form of a map, presented to the first respondent by
the third respondent
during the enquiry, was not properly
considered.
5
That map, contrary to the third respondent’s
oral submissions before the Commission, clearly indicated that the
Mabele Royal
Family resided in Mxhelo on or about 1857 and were
allocated land there. The decision was therefore taken on the basis
of irrelevant
considerations, whilst relevant matters were ignored.
The contradictions in the evidence of the third respondent were,
therefore,
not considered. The committee also ignored the report of
Mr Garakayi, their own researcher.
[7] Two
confirmatory affidavits in support of the applicant’s claim
were attached. One
deponent, Mr Edward Plam, states, inter alia, that
he could remember Chief Nyandeni Mabele as the Chief of Amangobizembe
aseMxhelo,
who passed away in 1933 when the deponent was 11 years of
age.
The history of the
legislation
[8] For
reasons that will become apparent, it is necessary to briefly explain
the
history of the Act. The Act established a Commission on
Traditional Leadership Disputes and
Claims (‘the old commission’). The Act was amended by way of the Traditional Leadership and Governance Framework Amendment Act (‘the
5
applicant submits that the
map was drawn by the Surveyor General in 1893, that it clearly states
that the Mabele Royal Family resided in Mxhelo, so that there is no
basis that Mxhelo could fall under the jurisdiction of the
third
respondent: p 21 of the index. Amendment Act’), the amendments
coming into operation on 25 January 2010.
6
Importantly,
the old commission’s term of office ended on 31 January 2010.
7
The Committee’s
report
[9] The
Commission must carry out its functions in a manner that is fair,
objective
and impartial.
8
Its functions are set out in s
25 of the Act, and includes the authority to investigate and make
recommendations on a range of
matters including traditional
leadership, traditional communities, customary law and customs.
9
When considering a claim, the Commission must consider and apply
customary law and the customs of the relevant traditional community
as they applied when the events occurred that gave rise to the
dispute or claim.
10
[10] The
Act authorises the Commission to delegate any of the contemplated
functions, barring
limited exceptions which are inapplicable in the
present instance, to a committee referred to in s 26A of the Act. A
provincial
committee must perform such functions as delegated to it
by the Commission in terms of s 25(6) after a review as contemplated
in
s 28(10) of the Act.
11
A provincial committee may make
final recommendations on all matters delegated to it in terms of s
25(6), other than in exceptional
circumstances where the advice of
the Commission may be sought.
12
[11] The
Committee was established in terms of s 26A(1) of the Act and
comprised four members
at the time it made its recommendations in
this matter.
13
Its recommendations explains its
methodology as follows:
14
‘
Extensive research
was conducted through:
·
Analysis
of the written submission of claimant
·
Literature
review
·
Interviews
and
·
Public
hearings.’
[12] The
Committee summarised the background to the applicant’s claim
and the customary
laws and practices for identifying a leader.
15
Its analysis of the evidence follows:
‘
8.2 The main
weakness of the claim immediately appeared from the fact that between
1857 and 1973 eleven people ascended to the seat
of chieftancy but
only the first one, Ncwana, was a fully-fledged chief (as alleged),
1858 to 1859. He abandoned the chieftainship
for quite unclear
reasons within the space of one year. Thereafter ten people came on
as acting chiefs, one after the other …
8.3
… somewhere along the line they asked Langa Mavuso to “keep
the chieftainship for them”, and they later on went back to him
to give it back to them. However Kondile and his team failed
to
explain who went to ask for the keeping of the chieftainship, when in
time and for what reasons. This casts more and more doubt
on the
question as to whether that chieftainship ever existed.
8.4
… Vuyani Hlati responded first to the claim, and said that
Mxhelo,
formerly Ely military village, was added to the Gaga black
ruled area by the British in 1847. It was ruled as part of Mavuso’s
land and had a headman at every time since then … He, Vuyani,
is now 80 years old and knows well the history of Gaga and
Mxhelo.
“Ncwana’s book which is relied upon by claimants is wrong
to say Mabele was ever a chief”, Vuyani Hlati
concluded.
8.5
The respondent, Langa Mavuso, also testified, showing that there was
never
a chieftainship of the claimant’s group in Mxhelo. He
produced a large map of Ely (Mxhelo) drawn up by John Todd in April
1893. It lists the names of all families resident there at the time
and he said no one in the line of Mabele does feature at all.
There
is also a list of those who had title deeds at Mxhelo but again
claims that no one in the line of Mabele features there.
Significantly, claimant’s team had no answer to these
documentary revelations.
8.6
During question time one of the most difficult things for the
claimant’s
team was to give a satisfactory explanation about
the duration of its chieftainship and its loss. What made matters
worse was the
somewhat conflicting versions about the chieftainship
having been “overthrown” (
sabhukuqwa)
on the one
hand, and having been peacefully handed over by them to the Mavuso
chieftainship to “keep” for them. Add
to this was their
opening statement that that first Chief Ncwana had ruled for only one
year and then left the chieftainship, to
establish himself in Tsomo
district and their chieftainship in Mxhelo becomes questionable. As
if it was not enough, Kondile said
that the land was given to them by
King Hintsa in 1857 when in fact, the said King had died in 1835. The
change over to say the
land was given to them by King Hintsa’s
brother Buru was patching up …’
[13] The
Committee reached the following conclusion, prior to recommending
that the applicant’s
claim be dismissed:
‘
On the whole the
claimant’s submission is full of contradictions and casts
doubts about the claim that there was ever a traditional
leadership
of Mabele in Ely / Mxhelo. The response of Mavuso to the claimant’s
submission was factual and convincing. In
any case even if there was
a traditional leadership of Mabele in and around 1973 none of the
“chiefs” listed in Annexure
A were permanent.’
The Premier’s
decision
[14] The
Premier’s decision on the applicant’s claim, dated 27 May
2015, was expressed
as follows:
‘
Pursuant to an
investigation by the Eastern Cape Provincial Committee of the
Commission on Traditional Leadership Disputes and Claims
in terms of
Sections 25 and 26 of the Traditional Leadership and Governance
Framework Act (Act No. 41 of 2003) and, after having
considered the
circumstances of the recommendations, the Premier took a decision on
27 May 2015 to dismiss the claim of Nkosemntu
Melvin Mabele
substituted by Andile Mavuso based on the following reasons:
1. The evidence indicates
that there was never chieftainship of the Mabele’s group in
Mxelo Administrative Area which is part
of the Gaga Traditional
Council under Langa Mavuso.The above constitutes my decision and
reasons therefore.’
The answering
affidavits
[15] Both
the Premier and the chairperson of the Committee at the time, the
first respondent
(‘the Chairperson’), deposed to
affidavits opposing the application. The Chairperson explained the
delegation of the
claim by the Commission to the Committee, and that
Committee operations have since ceased. The Chairperson exercised
procedural
oversight, including the investigation of the claim until
the
recommendation was made. She denied
that there is a position of senior traditional leadership of the
AmaNgobizembe aseMxhelo in
Alice and explained that it was not
possible under customary law for a Chief to have settled in Mxhelo,
established a Chieftainship
and then return to Transkei, leaving his
son in charge, as was alleged to have occurred.
‘
As long as a Chief
is alive, his chieftainship resides with him and cannot pass on to
his son by reason of him settling elsewhere.’
[16] On
this basis, it was submitted that the claim was defeated on the
applicant’s own
version. The Chairperson took issue with the
applicant’s interpretation of the Garikayi Report and the
disputed map. That
report did not contain confirmation of a Mabele
Chieftainship in Mxhele. The report had merely noted that Mabele was
a resident
at the time of the drafting of the map. The research
findings had not been ignored. The Committee had also not ‘agreed’
with Mavuso as alleged by the applicant, or ‘sang his praises’,
but merely recorded its observations. Allegations of
bias were
unsubstantiated and baseless. Importantly, the Committee’s
mandate was to investigate whether a chieftainship of
the Mabele
existed and it was not seeking to prove or disprove a person or
household’s claim. Its conclusion had been based
on an
appraisal of the facts.
[17] The
Chairperson denied that the missing submission had been presented to
the Committee.
Before concluding its investigations, parties were
asked to bring forward any further evidence that should be considered
in support
of their position. The missing submission, attached to the
papers as ‘AM 5’, was never presented.
[18] The
contradictions in the applicant’s oral presentation to the
Committee were significant.
The Chairperson explained as follows:
16
‘
To accept a Mabele
Chieftainship existed in Mxhelo would be to accept that a single
Chief can have two geographically far-flung
traditional areas to
reign over. This would constitute an untenable state of affairs. Such
is not provided for, not under customary
law, or under the Act …
No chieftainship is ever handed over to people outside of the royal
lineage, even in an acting capacity
as happened with the Amabele,
according to their own version. According to customary law, royalty
is by birth and not by appointment.’
[19] The
main weakness of the claim was the allegation presented to the
Committee that Chief
Ncwana left the chieftainship for no apparent
reason, and that between 1857 and 1973 eleven people had ascended to
the seat of
chieftancy, but never as fully-fledged chief.
17
Another version had also been presented to the Committee, namely that
the Mabele asked the third respondent to keep their chieftainship
for
them. Yet they had been unable to provide any details about that
arrangement, casting doubt as to whether their alleged chieftainship
had ever existed, so that the Committee’s recommendations were
based on the information before it and properly made.
[20] The
Premier’s supporting affidavit explained his delay in
considering the Committee’s
recommendation.
18
There
had been a change in leadership and the previous Premier, Ms Noxolo
Kiviet, had been in office until May 2014. Independent
legal advice
had been sought following a briefing from the Departmental Legal
Advisor’s office during September 2013. There
were in excess of
100 matters to be considered and processed. Counsel’s advice
had been received during May 2015, and the
Premier had subsequently
made his decision. All documentation presented had been considered
and the decision had not been taken
on the basis of irrelevant
considerations. The Committee’s recommendations were considered
to be well- founded and were considered
to be a rational conclusion
based on the investigation that had been conducted.
[21] In
reply, the applicant suggested that the failure of the respondents to
address the affidavits
of Mr Bolosha and Mr Plan in support of the
founding affidavit was fatal to its opposition, and that
administrative justice was
defeated by the decision not being
provided to the applicant and third respondent on the same day. The
Garikayi Report was an official
document of the Commission and its
findings were binding. The genealogy reflected in this report
confirmed the Mabele family as
Chiefs in Mxhelo. The confirmation
that the missing submission had not been received or considered
demonstrated the inadequacy
of the Committee’s recommendation.
The disputed map should be produced in court for ‘inspection in
loco
’. It had not been produced before the Committee or
observed. Finally, it was significant that the third respondent was
not
opposing the application. The crux of the argument in reply was
that there was sufficient evidence in the map, which had not been
considered, and the Garikayi Report to support the claim,
particularly when coupled with the missing submission.
The arguments
[22] Many
of the above-mentioned challenges were, correctly in my view,
dispensed with during
argument. Neither party placed further reliance
on the disputed map and both counsel were satisfied that the matter
required a
decision on the papers as they stood. The argument that
‘the history books’ definitely provided for the
applicant’s
claim was unsubstantiated – in fact the one
passage that counsel pointed me to, on an ordinary reading, appears
to support
the exact opposite of what is claimed:
‘
Ucwana
resides
on the left bank of the Kei, his people are called Amaqobizembi …
They were destroyed by the Amahlubi about 20 years
since.’
[23] The
thrust of the applicant’s argument was based on
Nxumalo
which drew upon
Sigcau
,
19
and proceeded on the
following basis. The decision had been taken in terms of 2003
legislation, instead of in terms of the 2009
amendment act. As such,
the functionary had exercised power not conferred by the (2003) act
and acted unlawfully, so that the decision
had to be set aside. This
argument will be addressed, below.
The legal position
[24] The
constitutional right to just administrative action and the Promotion
of Administrative
Justice Act, 2000 (‘PAJA’)
20
require rigorous scrutiny of administrative decisions without
requiring courts to take the place of administrative bodies making
decisions. It is not required that a decision of an administrative
body be perfect or, in the court’s estimation, the best
decision on the facts.
21
A rational connection test has
been described as ‘relatively deferential’, calling for
‘rationality and justification
rather than the substitution of
the Court’s opinion for that of the tribunal on the basis that
it finds the decision …
substantively incorrect.’
22
Judges entering into the merits must do not do so in order to
substitute their opinion of the correctness thereof, but to determine
whether the outcome is rationally justifiable. As the Constitutional
Court held in
Mamone v Commission on Traditional Leadership
Disputes and Claims and Others
,
23
a level of deference
is necessary, particularly in cases where matters fall within the
special expertise of a particular decision-making
body. Due weight
and appropriate respect must be given to findings of fact made by
those with special expertise and experience.
In respect of the
Commission, the Court said the following:
‘
The Commission is
a specialist body constituted by experts “who are knowledgeable
regarding customs and the institution of
traditional leadership …
This Court may not neglect its duty to scrutinise the rationality of
the Commission’s decision.
But, in doing so, it must be
cognisant of the Commission’s special expertise as well as the
wealth and complexity of the
factual evidence it considered in its
wide-ranging enquiry. The fairness of that process, where
representations were solicited
from interested parties, was not
challenged.”.
24
[25] In
the case of rationality review, even though a court might interpret
facts differently
to the Commission or its Committee, this does not
entitle the decision to be set aside if the decision was rational,
bearing in
mind the respect that must be shown to its findings.
25
In general terms, review is concerned with whether a decision
was regular or irregular, not with whether it was ‘right’
or wrong’. As the SCA held in
Mgijima v The Premier of the
Eastern Cape Province and others
,
26
that is the
province of appeals and no provision is made in the legislation in
this case for an appeal:
27
‘
In other words,
whether the decision is a correct decision is not open for
determination on review … Except in a narrow band
of cases, of
which this case is not one, error of fact is not a ground of review.
The result is that even if it could be said that
the Commission’s
factual conclusions were wrong, that is not a ground of review.’
[26] Sections
211 and 212 of the Constitution deal with the recognition of
traditional
leadership and matters related thereto. The legislative
framework is provided by the Act, as amended, and finds application
in
the recommendation of the Committee and the decision of the
Premier.
28
That recommendation is authorised by s 26A(7)
read with s 26(2)(b) of the Act. The functionary assigned the
function of making
a decision on the recommendation of the Commission
or a Committee is the Premier.
29
That decision is preceded
by an investigation and recommendation of the Commission or one of
its committees, deriving its authority
to investigate from the
lodgment of a claim or dispute in respect of a matter as defined in s
25(2) of the Act.
30
The decision of the Premier is
discretionary in the sense that it may differ from the recommendation
received, in which event reasons
for departing from the
recommendation must be given.
31
As will be illustrated,
this process is different to the way in which disputes were managed
prior to the 2009 amendment to the
Act.
[27]
It is correctly not disputed that the recommendation and the decision
constituted administrative
action which is subject to judicial
review.
32
As Van Zyl DJP held on behalf of a full bench of
this court in
Hebe
:
33
‘
The Committee is a
statutorily constituted body. It exercises a public power under an
empowering provision in the Framework Act.
That the Committee makes a
recommendation and not a binding decision must be considered in the
context of the nature of the function
that it performs. The dispute
resolution mechanism in chapter 6 of the Framework Act envisages a
two-stage process that is continuous
and interlinked. It commences
with an investigation and recommendation of the Committee, and is
concluded with the decision of
the Premier … The
recommendation is accordingly a jurisdictional fact and a
prerequisite for the exercise by the Premier
of his authority as
contemplated in section 26 of the Framework Act.’
[28] It
must be accepted that where the Premier decides to accept the
recommendation of the Committee
in circumstances where the
Committee’s role in the decision-making process was flawed, the
entire process will be tainted.
34
The recommendation and
the decision constitute administrative action within the meaning of
PAJA.
Analysis
[29] It
is apparent that the Premier failed to make a decision on the
Committee’s recommendation
within the 60-day period allowed for
this in terms of s 26(3) of the Act. The delay is excessive.
Nevertheless, the reasons for
the delay have, in my view, been
adequately explained given the change in premier, the volume of cases
to be considered and the
process embarked upon by the Premier to
obtain independent legal advice prior to making a decision on the
Committee’s recommendations.
No prejudice to the applicant has
been demonstrated and, in the circumstances of this case, including
the subsequent lengthy passing
of time, it would be untenable for the
decision to be reviewed only on this basis.
[30]
The significance and materiality of the three-day delay in providing
the contents of the
decision to the applicant, as opposed to the
third respondent, is unclear. The suggestion appears to be that this
is indicative
of bias on the part of the Premier in favour of the
third respondent. Unsurprisingly, counsel for the applicant did not
pursue this
line of argument. That
suggestion is speculative at best and unsubstantiated on the
papers. There is no basis
for finding that this discrepancy operated
to the prejudice of the applicant so as to warrant the review and
setting aside of the
decision itself.
[31]
The non-opposition on the part of the third respondent in these
proceedings (the third
respondent opposed the referral to the
Committee and appears to have participated in those proceedings in
full) is equally unhelpful
to the applicant’s cause, and was
also not mentioned during argument. The relief sought in the amended
notice of motion attacks
the decision of the Premier based on the
recommendations of the Committee and prays for that decision to be
reviewed and set aside,
together with an order of substitution of the
applicant as traditional leader of Mxhelo in the event of success.
While it was open
for the third respondent to oppose the application,
his failure to do so cannot, in these circumstances, and on its own,
support
the applicant’s claim that the decision must be
reviewed and set aside.
[32]
It is, furthermore, opportunistic to suggest that the first and
second respondents’
failure to address the brief confirmatory
affidavits of the deponents who supported the applicant’s
founding affidavit must
result in the review succeeding. Those
affidavits do nothing more than confirm the applicant’s version
of the historical
underpinnings of his claim. The first respondent,
as chairperson of the Committee, makes it clear that the Committee
rejected that
version for various reasons, as is evident from the
Committee’s recommendations at the time. The failure to
explicitly refute
any of the contents of the confirmatory affidavits
in the answering affidavits cannot negate this position. The
authority cited
by applicant’s counsel, concerned with detailed
supplementary affidavits detailing the ‘living customary law’
of the amaRharhabe, is distinguishable. In any event, I do not
consider that case to lay down an immutable principle that binds
this
court to elevate the non-response to the brief confirmatory
affidavits filed in such a fashion that the applicant is able
to
succeed in the application for review. The one case cited by the
applicant in support of this position,
Freedom Under Law v
Minister v Minister of Social Development and Others
35
is completely distinguishable. In that case, the bulk of the
relief
sought by the appellant was not opposed so that the matter was
decided without hearing oral argument. That is certainly not the
position in this instance.
[33]
These peripheral challenges aside, the crux of the application rests
on the claims of bias
and the absence of procedural fairness. The
allegation of bias rests mainly on the Committee’s treatment of
the Garikayi
Report, and its failure to find in favour of the
applicant based on a few points contained in that Report’s
executive summary.
In fact, it is clear that the Garikayi Report does
not arrive at the conclusion that the applicant seems to see. The
applicant
appears to misinterpret its findings, when read in their
totality, and elevates the points raised by the report to a
conclusion
that is without justification.
[34]
In any event, and as the Garikayi Report itself notes, this was part
of an information
gathering exercise, including a literature review,
in loco inspection, face to face interviews and public hearings which
were recorded
and filed, guided by a structured questionnaire.
36
‘
All information
collected from the first phase is then synthesised by data analysis
into recommendations of the Committee to the
Premier of the Province
… The findings of the entire process (including literature
review, purposive sampling, in loco inspection,
face to face
interviews and public hearings) were then subjected to analysis by
the Committee in the light of the empowering legislation
for the
purposes of making recommendations to the Premier.’
[35]
This limited contribution is a far cry from an all-encompassing
investigative report that
would be binding on the Committee and
influence the Premier. The Garikayi Report does not explicitly arrive
at a finding in favour
of the applicant. In any event, it was for the
Committee to fulfil its legislative mandate in considering the
totality of evidence
presented to arrive at a recommendation to be
presented to the Premier. It would have committed an irregularity had
it merely delegated
that task to a researcher. Its treatment of the
Garikayi Report is not, in my view, indicative of bias.
[36]
The claim that there may have been bias because of the Committee’s
treatment of the
third respondent and the acceptance of his
submissions before it is equally difficult to sustain. As the
Chairperson made clear,
the Committee’s recommendations merely
reflected the submissions it had received from the third respondent
as part of its
analysis of the evidence. It emphasised that the
claimant’s team had no answer to the documentation that had
been submitted.
Importantly, the main basis for the Committee’s
recommendation that the claim be dismissed, appearing on the final
page of
its recommendation, refutes the claim based on the poor
quality of the applicant’s response to questions, the fluid
basis
for the claim and the contradictions and doubts that had
subsequently resulted in the third respondent’s response being
preferred.
This conclusion was supported by an analysis of the
applicant’s case, and rejection thereof, based on established
customary
law principles. Significantly, none of these matters, which
go to the heart of the recommendation, have been addressed in the
applicant’s
review application.
[37]
The procedural fairness challenge flounders on a proper application
of the
Plascon-Evans
rule. The applicant seeks final relief
and the first respondent has refuted any suggestion that the missing
submission had in fact
been submitted to the Committee for
consideration. An applicant who seeks final relief on motion must, in
the event of conflict,
accept the version set up by his opponent,
unless the latter’s allegations are, in the opinion of the
court, not such as
to raise a genuine or
bona fide
dispute of
fact, or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
37
Considering the available documentation in its totality, it cannot be
said that the first respondent’s version on this point
is so
far-fetched or clearly untenable so that it should be rejected out of
hand. The first respondent raises a
bona fide
dispute of fact
that must be resolved in its favour. This is also a basis for
rejecting any suggestion that the Committee was improperly
constituted at the time its recommendation was made.
[38]
The applicant’s arguments about the legality of the Premier’s
decision given
the underpinning legal framework requires special
focus. The cases of
Sigcau
38
and
Nxumalo
39
are important, but cannot benefit the applicant’s cause in this
matter. The Constitutional Court held in
Sigcau
that the
President should have acted in terms of the Act, prior to its
amendment.
40
Because a decision had been made by the old
commission in terms of the Act prior to amendment (that decision was
made on 21 January
2010, before the amendment to the Act came into
operation), the President had no power to decide the applicant’s
claim in
that matter.
41
It was the old commission that had
that power and the President’s obligation under the Act, prior
to amendment, was simply
to implement the decision of the old
commission. Having instead sought to make his own decision in terms
of the Act (i.e. the Act,
as amended), he had acted outside his
powers and the notice containing his decision was set aside. The
remarks of Zondo J in
Nxumalo
about the President ‘acting
under a wrong Act’ must be read in the context of the old
commission having had the authority
to decide the applicant’s
claim in
Sigcau
in terms of the Act, prior to its amendment,
because that claim was placed before the old commission. The
President erroneously
made his own decision, erroneously operating
under the Act, as amended, and treating the decision of the old
commission as a mere
recommendation. His actions in terms of the
amendments to the Act were therefore, in a sense, premature and
resulted in his notices
being set aside. A similar fate befell the
decision in
Nxumalo
, for a similar reason. It may also be
noted, for the sake of completeness, that the outcome in
Nxumalo
was not that the old commission’s decision in the matter
was also set aside. The High Court’s approach in showing
deference
to the old commission, as a specialist body established by
an Act of Parliament to deal with a special category of disputes
affecting
a large section of society, was upheld.
42
[39]
By contrast, in the present instance, the Commission was seized with
a claim in terms of
the Act (i.e. the act, as amended). In terms of
the applicable sections of the Act, cited above, the Committee acted
properly in
making a recommendation for the Premier’s
consideration and the Premier’s decision cannot be set aside on
the authority
of
Sigcau
or
Nxumalo
. There appears to be
a rational connection between the material that was before the
Premier and the decision that he took, and
a rational connection
between this decision and the reasons provided in explanation. There
is no reason to believe that the Premier
committed any misdirection
in endorsing the Committee’s recommendation, or that that
recommendation was improperly supported
or advanced. The application
accordingly stands to be dismissed.
Costs
[40] The
parties were in agreement that the
Biowatch
principle ought to
be applied in the event that the applicant was unsuccessful.
43
That appears to me to be the appropriate position given the nature of
the parties and the application. I have also noted that similar
cases
have previously followed this approach. In accordance with the normal
rule that applies to constitutional litigation against
an organ of
state, each party should bear their own costs.
Order
[41]
The following order will issue.
1. The
application is dismissed.
2. Each
party to bear their own costs.
A. GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:28 April 2022
Delivered:29 April 2022
Appearances:
Counsel for the
Applicant: Adv
M.P.G. Notyawa
Makhanda
Instructed
by: Simphiwe
Jacobs & associates Inc.
c/o
Mankayi Masoka Attorneys
25 Dawning Street King
William’s Town
Email:zmasoka@ymail.com
Respondent’s
Counsel: Adv
M.
Mayekiso
Asante Chambers
East London
Instructed
by: The
State Attorney
17 Fleet Street
Old Spoornet Building
East London
c/o Shared
Legal Services
[1]
[2]
Office of the Premier
32 Alexandra Road
King William’s Town
1
Mxhelo is
a village
situated
in
the
Alice
Magisterial
Area,
ten
kilometres
from
both
Alice and
Fort
Beaufort City Centres. The people of Mxhelo are also known as
Ama-Ngobizembe Ase-Mxhelo.
2
Act 41
of 2003.
3
P 22
of the index.
4
Pp 10-12
of the index;
pp 20-22 of the index.
5
The applicant submits
that the map was drawn by the Surveyor General in 1893, that it
clearly states that the Mabele Royal Family
resided in Mxhelo, so
that there is no basis that Mxhelo could fall under the jurisdiction
of the third respondent: p 21 of the
index.
6
Act 23
of 2009.
7
See
Nxumalo
v President of the Republic of South Africa and Others
[2014]
ZACC 27
(‘
Nxumalo
’)
para 13;
Sigcau
v President of the Republic of South Africa and Others
[2013]
ZACC 18
(‘
Sigcau
’)
para 13.
8
S 22(2) of the Act.
9
S 25(2) of the Act.
10
S 25(3)
(a)
of the
Act.
11
S 26A(5) of the Act.
12
S 26A(6) of the Act.
13
The applicant’s
claim was in terms of s 25(2)
(a)
(ii)
of the Act.
14
Para 3 of the
Committee’s Recommendations, p 83 of the index.
15
P 84
of the index.
16
P 47
of the index.
17
Ibid.
18
The Premier is the
provincial State functionary vested with the executive authority to
make final decisions on traditional leadership
disputes. The power
derives from s 127(1) of the Constitution of the Republic of South
Africa, 1996, in terms of which the Premier
of a province has the
powers and functions entrusted to that office by the Constitution
and any legislation. The legislation
in this case is the Act, in
particular ss 26(2)
(b)
and
(3) thereof in terms of which the Commission’s recommendations
are to be conveyed to the Premier within two weeks of
being made and
therafter decided upon within 60 days.
19 Supra fn 7.
20
Act 3
of 2000.
21
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
[2004]
ZACC 15
paras 45-49.
22
Niewoudt v Chairman,
Amnesty Subcommittee, Truth and Reconciliation Commission
2002
(3) SA 143
(C) at 155G-H and 164G-H.
23
[2014] ZACC 36
para 79.
24
Mamone
ibid
paras 80, 82.
25
Mamone
ibid
para 92.
26
[2020] ZASCA 139
para
29.
27
Mgijima
supra
paras 29-30. The only other basis upon which wrong factual
conclusions may afford a ground of review is if the Commission’s
/ Committee’s factual findings were so out of kilter with the
evidence that they were irrational: para 31.
28
Premier of the
Eastern Cape and Others v Hebe and Others
[2017]
ZAECBHC 14 para 23.
29
See
Hebe
ibid
para 36.
30
The claim or dispute
raised further serves to define the ambit of the authority of the
Commission or a committee:
Hebe
ibid
para 51.
31
Hebe
ibid
para 34; S 26(4) of the Act.
32.S1 of PAJA. see Hebe
ibid para 62.
33. Hebe ibid para 62,
63.
34
Hebe
ibid
para 64.
35
[2021] ZACC 5
para 12.
36
P 63
of the index.
37
Plascon-Evans Paints
Ltd v Van Riebeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
(A) at 634A to 635C. For an application of
the rule in the context of traditional leadership, see
Gwayi
v MEC, Responsible for Local Government and Traditional Affairs and
Others
[2015]
ZAECBHC 37 para 2.
38
Sigcau v President of
the
Republic
of South Africa and Others
[2013]
ZACC 18.
39
Nxumalo v President
of the Republic of South Africa and Others
[2014]
ZACC 27.
40
The terminology used by
the Constitutional Court was ‘the old Act’ for the Act,
as unamended, and ‘the new Act’
for the Act subsequent
to its 2009/2010 amendment:
Sigcau
para
5.
41
The amendment to the Act
came into operation on 25 January 2010.
42
See
Nxumalo
supra
para 21.
43
Biowatch Trust v
Registrar, Genetic Resources, and Others
2009
(6) SA 232
(CC) paras 21-23.