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[2022] ZAECBHC 33
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Nonkonyana v Acting Chairperson of the House of Traditional Leaders: Eastern Cape and Another (452/2020) [2022] ZAECBHC 33 (27 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, BHISHO
NOT
REPORTABLE
Case
no: 452/2020
In
the matter between:
MWELO
NONKONYANA
Applicant
and
THE
ACTING CHAIRPERSON OF THE HOUSE
1
st
Respondent
OF
TRADITIONAL LEADERS: EASTERN CAPE PROVINCE
THE
MEC FOR CO-OPERATIVE GOVERNANCE
2
nd
Respondent
AND
TRADITIONAL AFFAIRS: EASTERN CAPE PROVINCE
EX-TEMPORE
JUDGMENT
Govindjee
J
[1]
On
10 August 2020, the first and second respondents (‘the MEC’
and ‘the Acting Chairperson’), together with
the Premier
of the province, were interdicted and restrained from presiding over
proceedings to elect a new chairperson of the
Eastern Cape Provincial
House of Traditional Leaders (‘the House’), pending the
finalisation of a separate application
for review.
[1]
[2]
The MEC, acting as Premier at the time, and
the Acting Chairperson complied with the order until 9 June 2022. On
that day they were
party to proceedings to reconstitute the House.
Those proceedings and their outcome form the basis of this contempt
application.
[3]
The applicant seeks, inter alia, the
following relief:
a)
Declaring that the MEC and Acting
Chairperson are in contempt of part of the court order dated 10
August 2020;
b)
Declaring both the convention of the
sitting of the House and presiding over the election on 9 June 2020
to be illegal;
c)
Declaring the election of the third
respondent to be illegal and null and void.
[4]
In essence, the applicant takes the view
that the Court Order dated 10 August 2020 (‘the Order’)
made it premature for
the House to be convened to elect a chairperson
prior to finalisation of the separate review application, and that
the applicant’s
term of office only expires during September
2022. He avers that the MEC and Acting Chairperson’s conduct
was contemptuous
and warrants appropriate sanction.
[5]
The MEC says that he was Acting Premier of
the province at the time the House was reconstituted, having been
appointed to that position.
He argues that the Order, properly
interpreted in the context of the application before the Court, did
not prohibit the election
of another chairperson for as long as the
separate application was pending. Instead: ‘It is that for as
long as the term
of office of the members with whom the applicant had
constituted the House remained extant, they would not elect another
chairperson
whilst the main application was still pending’. The
term of the House ended from 1 June 2022, so that the protections for
which the interdict had been sought were not required.
[6]
In
addition, the MEC placed reliance on the repeal of that the
Traditional Leadership and Governance Framework Act, 2003
[2]
(‘the Framework Act’) by the Traditional and Khoi-San
Leadership Act, 2019
[3]
(‘the
Act’). The consequence, it was argued, was that traditional
leaders who were members of a provincial house of
traditional leaders
established and constituted in terms of provincial legislation
remained members of their provincial houses
only until 31 May 2022,
regardless of when they had been elected into their positions. That
being the case, the applicant was not
a member of the House on 1 June
2022 so that the interdict lost its force by operation of law, paving
the way for the election
on 9 June 2022.
The
Traditional and
Khoi-San Leadership Act, 2019
[7]
The Act came into operation on 1 April
2021. It provides for the recognition of traditional and Khoi-San
communities, leadership
positions and for the withdrawal of such
recognition, amongst various other matters. Recognition of
traditional and Khoi-San leaders
is dealt with in part two of the
Act.
[8]
In
terms of transitional arrangements:
[4]
‘
Any
traditional leader –
(i)
who was appointed or recognised as such in
terms of applicable provincial legislation and was still recognised
as a traditional
leader immediately before 24 September 2004; or
(ii)
who was recognised as such in terms of the
Traditional Leadership and Governance Framework Act, 2003 (Act No. 41
of 2003) (hereinafter
referred to as the Framework Act), prior to the
repeal of that Act, or in terms of any applicable provincial
legislation which
is not inconsistent with the Framework Act, as the
case may be,
is deemed to have been
recognised as such in terms of section 8 of this Act, subject to a
recommendation of the CTLDC, where applicable.’
[9]
Section 63(13) of the Act provides:
‘
Notwithstanding
the provisions of section 49, the traditional leaders who, on the
date of commencement of this Act were members
of a provincial house
of traditional leaders established and constituted in terms of
provincial legislation, remain members of
the provincial house
concerned, until 31 May 2022 and any subsequent reconstitution of
such a house must comply with the provisions
of section 49.’
[10]
‘
Traditional
leader’ is defined in the Act to include a person who has been
recognised as a principal traditional leader or
senior traditional
leader and ‘provincial house’ means a provincial house of
traditional and Khoi-San leaders as contemplated
in s 49.
[5]
Section 49 provides, in part, as follows:
‘
(1)
Provincial houses may be established by provinces in terms of
provincial legislation and subject to the provisions of this Act.
(2) The provincial
legislation contemplated in subsection (1) must include provisions
that provide for – …
(b) the term of
provincial houses to be five years: Provided that, notwithstanding
anything to the contrary contained in any law,
but subject to section
63(13), the term of a provincial house that was established and
constituted in terms of any applicable legislation
prior to the
commencement of this Act, will expire on 31 May 2022: Provided
further that any term of office of provincial houses
reconstituted or
established after the commencement of this Act, shall expire every
five years on 31 May, calculated from 31 May
2022 …’
[11]
The
applicant is a traditional leader who, at the date of commencement of
the Act was a member of a provincial house of traditional
leaders
established in terms of s 66 of the Eastern Cape Traditional
Leadership and Governance Act, 2017 (‘the Eastern Cape
Act’).
[6]
Both the Act and
the Eastern Cape Act provide for the term of provincial houses to be
five years.
[7]
While the
applicant’s term of office was for a period of five years,
[8]
it may be accepted that he was sworn in as a member on 26 September
2017, so that the term was only due to expire on 25 September
2022,
rather than at the end of May 2022. As such, and as counsel indicated
from the Bar, this is an instance of apparent conflict
between
national and provincial legislation, not capable of resolution in
terms of s 150 of the Constitution.
[9]
[12]
Provincial
legislatures have authority to pass legislation with regard to the
functional areas listed in Schedule 4 and 5 to the
Constitution.
[10]
When considering an apparent conflict between national and provincial
legislation, every court must prefer any reasonable interpretation
of
the legislation that avoids a conflict, over any alternative
interpretation that results in a conflict.
[11]
[13]
Section
146 of the Constitution of the Republic of South Africa, 1996 (‘the
Constitution’) applies to a conflict between
national
legislation and provincial legislation falling within a functional
area listed in Schedule 4. National legislation that
applies
uniformly with regard to the country as a whole prevails over
provincial legislation if any of the following conditions,
amongst
others, is met:
[12]
(a)
The national legislation deals with a
matter that cannot be regulated effectively by legislation enacted by
the respective provinces
individually.
(b)
The national legislation deals with a
matter that, to be dealt with effectively, requires uniformity across
the nation, and the
national legislation provides that uniformity by
establishing –
(i)
norms and standards;
(ii)
frameworks; or
(iii)
national policies.
[14]
Subject to section 211 and 212 of the
Constitution, traditional leadership, indigenous law and customary
law all fall under schedule
4 of the Constitution of the Republic of
South Africa, 1996. This means that national and provincial
governments have concurrent
legislative authority over traditional
leaders.
[15]
The
Memorandum on the Objects of the Traditional and Khoi-San Leadership
Bill, 2015 provides insight as to the timeframes associated
with the
constitution of provincial houses in the country:
[13]
‘
It
should be noted that while the terms of the National House,
provincial houses and local houses should be aligned, a precise
alignment has been found to be impractical. For example, before the
National House can be constituted, the provincial houses
have
to be constituted
to enable them to
elect the representatives to the National House. The Bill therefore
determines that all the houses will have
terms of five years however
such terms are to end on specific dates
… which dates are one month
apart.
This will allow sufficient time
for the provincial houses to be constituted before the National House
and for local houses to be
constituted before the provincial houses
.’
(Own emphasis.)
[16]
The link between the constitution and terms
of provincial houses and the election of representatives to the
National House, as explained
in this Memorandum, demonstrates the
rationale for the standardisation of dates. The Act deals in this
instance with a matter that,
to be dealt with effectively, requires
uniformity across the country. It provides that uniformity by
establishing a standard in
respect of provincial houses and
determining that the term of those provincial houses established by
any legislation prior to the
date of commencement of the Act expire
on 31 May 2022. Similarly, traditional leaders in the position of the
applicant remained
members of the provincial house only until that
date, as confirmed by the transitional arrangements included in the
Act. This satisfies
the provisions of s 146(2)
(b)
of the Constitution, so that the national legislation must prevail
over the provincial legislation.
[17]
It
must therefore be accepted that the term of the House expired on 31
May 2022. In interpreting a judgment, a court’s intention
is to
be ascertained primarily from the language of the judgment or order,
as construed according to the usual, well-known rules
applicable to
documents. As in the case of any document, the judgment or order, and
the court’s reasons for giving it, must
be read as a whole to
ascertain its intention.
[14]
The Order of 10 August 2020, interdicting the election of a new
chairperson of the House, could only have been intended to prevail
so
long as the term of office of the House had not expired. Section
64(1)
(a)
read with s 69 of the Eastern Cape Act support such an
interpretation. The Order could not have intended to afford the
applicant
protection beyond the expiry of the term of office of the
House, purely on the basis that the separate review proceedings had
not
yet been finalised.
[18]
That
being the case, it follows that the test for contempt cannot be met.
In my view the Order, properly interpreted, has not been
breached.
Even if the opposite was true, deliberate disregard of an Order would
be insufficient for purposes of a finding of contempt
in this
instance. This is because our law accepts that a non-complier may
genuinely, albeit mistakenly, believe him- or herself
entitled to act
in the way claimed to constitute the contempt, and good faith avoids
the infraction.
[15]
Given the
wording of the Act, including its transitional provisions, the MEC
and Acting Chairperson’s conduct would be protected
on this
basis. Put differently, they have discharged the evidential burden of
showing that their refusal to obey the terms of the
Order was not
both wilful and mala fide.
[16]
As the SCA held in
Fakie
NO
:
[17]
‘…
the
offence is committed not by mere disregard of a court order, but by
the deliberate and intentional violation of the court’s
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or proper is incompatible with that
intent.’
[19]
The applicant has failed to satisfy me on a
balance of probabilities that he is entitled to the declaratory
relief claimed in paragraphs
2.1 and 2.2 of the notice of motion. In
particular, it has not been proved that the non-compliance with the
Order was wilful and
mala fide. Given the legislative framework, as
already explained, I am also not convinced that the sitting of the
House on 9 June
2020 was illegal and of no consequence. The relief
sought in the remainder of the notice of motion also fails in the
circumstances.
Order
[20]
The following order will issue:
1.
The application is dismissed with costs.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:27
October 2022
Delivered
:27
October 2022
Appearances:
For
the Applicant:
Adv
M Nonkonyana
Instructed
by:
Hexana Attorneys
King William’s Town
Info@hexanaattorneys.co.za
For
the Respondents:
Adv AM Bodlani SC
Mthatha Bar of Advocates
Instructed
by:
The State Attorney
East London
043 7065100
ckela@justice.gov.za
[1]
That
application pertains to the allegedly unlawful removal of the
applicant as chairperson of the House on 31 July 2020.
[2]
Act
41 of 2003.
[3]
Act
3 of 2019.
[4]
S
63(1)
(a)
of the Act.
[5]
S
1 of the Act.
[6]
Act
1 of 2017.
[7]
S
49(2)
(b)
of
the Act and ss 6(2)
(b)
(ii),
16(3), 48(3) and 68(5) of the Eastern Cape Act.
[8]
S
68(5) of the Eastern Cape Act.
[9]
Cf
the judgment of Van Zyl DJP, on behalf of a full bench, in
The
Premier of the Eastern Cape and Others v Hebe and Others
[2017] ZAECBHC 14;
[2018] 1 All SA 194
(ECB) para 38.
[10]
S 104 of the Constitution.
See
Premier:
Limpopo Province v Speaker: Limpopo Provincial Legislature and
Others
[2011] ZACC 25; 2011 (11) BCLR 1181 (CC); 2011 (6) SA 396 (CC).
[11]
On
the appropriate test for interpreting legislation, see
Cool
Ideas 1186 CC v Hubbard and Another
2014
(4) SA 474
(CC) para 28.
[12]
S
146(2) of the Constitution.
[13]
Para
2.30, dealing with clause 27 of the Traditional and Khoi-San
Leadership Bill, 2015.
[14]
Van
Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others
NNO v Van Rensburg NO and Others
2011
(4) SA 149
(SCA) para 42.
[15]
Fakie
NO v CII Systems (Pty) Ltd
[2006]
SCA 54 (RSA) para 9.
[16]
Fakie
NO
ibid
para 10.
[17]
Fakie
NO
ibid
para 10 (footnotes omitted).