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[2022] ZAECMHC 10
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Molosi and Others v Phahlo Royal Family and Others (CA 07/2021) [2022] ZAECMHC 10; [2022] 3 All SA 160 (ECM) (6 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – MTHATHA
Case
No: CA 07/2021
In
the matter between:
SIMPIWE
SYDWELL MOLOSI
First Appellant
NTOMBENKONZO
MASETI
Second Appellant
DOSINI
ROYAL FAMILY
Third
Appellant
and
PHAHLO
ROYAL
FAMILY
First
Respondent
LUZUKO
MATIWANE
Second Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Third Respondent
MINISTER
OF CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
Fourth
Respondent
PREMIER
OF THE EASTERN CAPE PROVINCE
Fifth Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
This is an appeal, with the leave of the Supreme Court of Appeal
(SCA), against the judgment of the court
a quo
delivered on 14
January 2020,
inter alia,
declaring that the third appellant
is not a royal family entitled to and responsible for identifying the
second appellant as the
king of AmaMpondomise.
[2]
The respondents brought an application before the court
a quo
on
a semi urgent basis seeking the following order:
“
1.
That the resolution dated 31 May 2019, Annexure “G56”
attached to the founding affidavit,
issued by the third respondent in
terms of which it identified Ntombenkonzo Maseti (“second
respondent”) as the King
or Queen of AmaMpondomise is declared
unlawful and void
ab initio,
and accordingly set aside.
2.
Declaring that the third respondent is not a royal family entitled
and responsible for the identification
of any person and making
recommendations to the fourth respondent in terms of
section 9
of the
Traditional Leadership and Governance Framework Act No. 41 of 2003
,
to assume kingship or queenship of AmaMpondomise, which position was
left vacant by King Mhlontlo.
3.
That the first and third respondents are finally interdicted from
identifying a person to assume
kingship or queenship and making
recommendations to the fourth respondent in terms of
section 9
of the
Traditional Leadership and Governance Framework Act No. 41 of 2003
,
to assume kingship or queenship of AmaMpondomise, which position was
left vacant by King Mhlontlo.
4.
The fourth respondent is directed to recognise the second applicant
as King of AmaMpondomise, and
to comply, within 30 days of this
order, with and implement the first applicant’s resolutions in
terms of which the second
applicant (“Luzuko Matiwane”)
is identified as the King for AmaMpondomise.
5.
The letter. Annexure “E” to the founding affidavit,
written by Dr Lubisi, dated 2
nd
August 2019, advising the
fourth respondent not to implement the resolutions of the first
applicant is declared unlawful and invalid,
accordingly is set aside.
6.
That the respondents are ordered to pay the costs of this application
only in the event of opposing
the application”.
[3]
The court
a quo
, after hearing the matter, issued the
following order:
‘
1.
It is declared that the resolution dated 31 May 2019, Annexure “G56”
attached to the founding
affidavit, issued by the third respondent in
terms of which it identified the second respondent as queen of
AmaMpondomise is unlawful
and accordingly set aside.
2.
It is declared that the third respondent is not a royal family
entitled to identify any person
as king or queen in terms of section
9(1)(a) of the Framework Act 41 of 2003 to assume kingship or
queenship of AmaMpondomise which
was left vacant by king Mhlontlo.
3.
The first to third respondents are finally interdicted from
identifying a person to assume kingship
or queenship and in terms of
section 9(1)(a) of the
Traditional Leadership and Governance
Framework Act 41 of 2003
to assume kingship or queenship of
AmaMpondomise, which position was left vacant by king Mhlontlo.
4.
The fifth and fourth respondents are directed to comply with their
obligations provided for in
section 9(1)(b)
of the
Traditional
Leadership and Governance Framework Act 41 of 2003
within 30 days of
this order and consider the first applicant’s resolution in
terms of which the second applicant is identified
as the king of
AmaMpondomise.
5.
The first, second and third respondents are directed to pay the costs
of this application including
costs occasioned by the employment of
two counsel where applicable’.
B.
The grounds of Appeal
:
[4]
The grounds of appeal are captured in the notice of appeal and copied
in the heads
of argument. I shall refer to them as they appear
in the heads of argument and the authorities relied upon in support
thereof.
Furthermore, the grounds capture most of the facts
relevant herein. The grounds of appeal are as follows:
1.
The court
a
quo
erred
and/or misdirected itself in fact and in law in that it misconstrued
the issues placed before it for decision by the parties,
as well as
the law applicable to such issues, particularly in respect of
urgency, prior jurisdictional facts or process as required
by the
Traditional Leadership and Governance Framework Act
[1
]
and costs.
2.
The court
a quo
erred and for misdirected itself in fact in
that in its judgment of 14 January 2020 it inexplicably ignored the
following undisputed
and common cause facts:
2.1 The
material concession expressly made by counsel for the first and
second respondents that the third appellant
is also the Royal Family
of the AmaMpondomise;
2.2 The
first and second appellants are of the Royal Family;
2.3 The
third appellant is the Royal Family in the Great House of
AmaMpondomise; and
2.4 the
Family Tree reflecting the third appellant as the Great House and
which was annexed to the appellants’
answering affidavit in the
application which served before the court
a quo
as Annexure
NM7.
3.
The court
a quo
further erred and/or misdirected itself in
finding in paragraphs [46], [48], [69] and [70] of its said judgment
that “
the parties did go to the Commissions previously and
(t)here is no internal remedy, in my view, provided for in the
Framework Act
that the applicant was, in the circumstances, obliged
to exercise first before coming to this Court”.
This is particularly so
in that –
3.1 it
was common cause that the two Commission of Nhlapo and Tolo did not
deal with the issue at hand and that
their decisions had been set
aside by the Court in
Matiwane 1
and
Matiwane 2;
3.2 in
terms of the decision of the Constitutional Court in
Sigcau &
Another v Minister of Co-operative Governance and Traditional Affairs
and Others,
the process in terms of s 9 of the Framework Act by
the third respondent and/or s 25 by the Commission, must be followed
and exhausted
where the Commission’s decision had been set
aside;
3.3 it
had been common cause and also expressly accepted and recorded by the
court
a quo
in paragraph [23] of its judgment dismissing the
appellants’ application for leave to appeal on 29 August 2020
that in terms
of the previous decision of the Court per Brooks J in
Matiwane v President of the Republic of South Africa and Others
(“
Matiwane 2”)
there is “
principally
two reasons why the Court did not deal with the
[second]
r
espondent’s claim to be entitled to succeed
[as King of
AmaMpondomise]”, namely –
3.3.1 first, that issue
was no longer before Court by agreement between the attorneys of the
appellants and first and second respondents;
and
3.3.2 secondly, s 9(1)(a)
of the Framework Act has given the power to identify the person to
fill the position of a king or queen
to a Royal Family and there are
processes that must be followed which ultimately lead to the
recognition of the person so identified.
3.4 it
had thus been common cause that the processes in ss 9 and/or 25 of
the Framework Act regarding such identification
and recognition had
not yet been exhausted by the third appellant and the second
respondent;
3.5 the
parties had accordingly agreed, and it was accepted by the court
a
quo
, that the parties so agreed in
Matiwane 2,
that the s
9(1)(a) process be first followed, as discussed in paragraph 3.3.1
above;
3.6 the
decision in
Matiwane 2
therefore related only to the issue of
the existence or otherwise and restoration of the kingship of
AmaMpondomise;
3.7 the
decisions of both the Nhlapo and Tolo Commissions had been set aside
by the Court in
Matiwane 1
and
Matiwane 2;
3.8 the
record in respect of such commissions was accordingly also not placed
before the court
a quo
for purposes of the adjudication of the
issues before it;
3.9 on
18 May 2019 and 31 May 2019 each of the Royal Families passed a
resolution identifying the second respondent
and the second appellant
respectively for recognition by the third respondent;
3.10 on 2 August
2019 the third respondent, with the advice of the fourth respondent,
made the decision refusing to accept
either of the identified
incumbents as he was not satisfied that same were done in accordance
with custom and customary law of
AmaMpondomise. He then
referred the matter back to the two Royal Families for
reconsideration and identification of one common
heir for him to
recognise;
3.11 the two Royal
Families have not yet complied with the decision of the third
respondent and its legal consequences; and
3.12 the first and
second respondents had failed and/or refused to co-operate with the
appellants regarding compliance with
the process in the third
respondent’s decision and had prematurely approached the court
a quo
without first setting aside such decision on review to
the extent that they are not satisfied with it, as required in terms
of
the
Oudekraal
principle (see
Oudekraal Estate (Pty) Ltd
v City of Cape Town
001 (6) SA 222
(SCA)).
4.
Equally, and in the same breath, the court
a quo
erred and/or
misdirected itself in holding in paragraph [46] of the judgment that
“
(T)his case is distinguishable from Mphephu”
(see
Mphephu Ramabulana v Ramabulana
[2019] 2 All Sa 51
(SCA)
.
5.
Accordingly, the court
a quo
erred and/or misdirected itself
in not having found in its judgment that the prior jurisdictional
facts or processes in terms of
s 9(1)(a), particularly the “
processes
that must be following which ultimately lead to the recognition of
the person [
to be
] identified
[as king or queen]”,
had not yet been met or satisfied and consequently that it would be
premature at this stage for the Court
to assume jurisdiction and
pronounce on the issue as to who qualifies to be identified and
recognised as king or queen of the AmaMpondomise.
6.
The court
a quo
had therefore acted
ultra vires
the
provisions of subsection 9(1)(a) to 9(4) and/or 25 of the Framework
Act in making its finding and arriving at its decision
and order of
14 January 2020 and accordingly fundamentally misdirected itself.
7.
Moreover, the court
a quo
failed to properly construe and
appreciate the purpose and the legal consequences of the decision of
the third respondent and the
issue arising from it, resulting in the
court
a quo
also failing to appreciate the applicability of
the
Oudekraal
principle on the facts of this case.
8.
The court
a quo
therefore wrongly found in paragraphs [14] to
[43] onwards of its judgment, that the decision which required to be
first set aside
by “a competent court” is that of King
Ngcwina and that such a step had to be done by the appellants.
This is
particularly so in that on the facts, it is the decision of
the third respondent of 2 August 2019 that was relevant for purposes
of deciding whether the process in s 9(1)(a) of the Framework Act had
been complied with by the first respondent and which, in
terms of the
said
Oudekraal
principle, had to be first caused to be set
aside by such respondent before it could approach the Court if it was
aggrieved by
having to comply with same.
9.
In the circumstances, the court
a quo
erred and/or misdirected
itself in finding in paragraph [48] of its judgment that the second
respondent “
was properly identified, particularly in view of
all the aforegoing.
. . .” as he was in fact not
properly identified in view of the aforegoing.
10.
Thus, the court
a quo
also further erred and/or misdirected
itself in suggesting and/or finding in paragraphs [61], [70] and [71]
onwards of its judgment,
that the first respondent was entitled to
ignore the decision of the third respondent of 2 August 2019 and
instead approach the
Court for relief, and that the appellants are
required to only subsequently approach the Commission in terms of s
10 of the Framework
Act and move for the removal of the first
respondent. That is particularly so
inter alia
in that
the correct position, both in fact and in law, is that the third
appellant and the second respondent are obliged to act
in accordance
with the decision of the third respondent to enable him (the third
respondent) to make his decision in terms of s
9(4), failing which
the process prescribed as set out in ss 21 and 25(1) and (2)(a)(iii)
and (ix), 25(3)(a) and (b)(i) of the Framework
Act has to be
followed.
11. The
court
a quo
erred and/or misdirected itself in not finding
that the first and second respondents’ application was without
merit, particularly
in that during the hearing on 7 November 2019
counsel for such respondents expressly conceded on record that the
respondents’
claim in the application was not based on custom
and customary law. That is particularly so in that the
empowering provisions,
being the Framework Act, read also with the
decision of the third respondent of 2 August 2019, expressly requires
in ss 9(1), 2(4),
21 and 25 thereof that the determination of the
issue as to who is to be identified and nominated for the provision
of king or
queen “
must consider and apply customary law and
the customs of the
[AmaMpondomise]
traditional community as
they applied when the events occurred that gave rise to the dispute
or claim
[in respect of a kingship or queenship],
guided by
the criteria set out in sections 2A1 and 9(1)”.
12.
Accordingly, the court
a quo
ought to have found on the basis
of the aforegoing that the first and second respondents failed to
allege and prove a right or
clear right for them to succeed in the
interdictory relief they sought in the application before the Court.
13.
Also, having regard to the aforegoing, the court
a quo
erred
and/or misdirected itself in finding in paragraphs [68] to [74] of
its judgment that the first and second respondents would
have no
alternative remedy if they are not granted the interdict they
sought. That is especially so when also having regard
to the
relevant common cause facts and evidence in the papers which served
before the court
a quo.
14. In
the event, the court
a quo
also erred and/or misdirected
itself in not finding that the application by the first respondents
was also flawed and not warranting
to be dealt with as one of
urgency, as was contended by the appellants, and then that it should
be struck off the Urgent Roll,
or dismissed, particularly when regard
is had to the common cause facts and the fact that the respondents
had patently and virtually
failed to make any allegations as required
by Uniform Rules 12(a) and (b) that they should “
set forth
explicitly the circumstances which they aver render the matter urgent
and the reasons why they claim that they could not
be afforded
substantial redress at the hearing in due course”.
15. The
court
a
quo
should therefore have found that the first and second respondents’
application was inherently fatally irregular and not warranting
to be
entertained or granted by the Court as a basic and established
principle.
[2]
16.
Flowing from the aforegoing, the approach and decision made by the
court
a
quo
in
paragraph [74] of its judgment regarding the issue of costs, which it
granted against the appellants, is inconsistent with the
approach and
law regarding “
the
issue of costs, including the principle as held in the decision in
Biowatch Trust v Registrar Genetic Resources and Others
[3]
which
should have been followed by the court
a
quo
”.
This is particularly so in that this is a matter in which the
appellants are seeking to vindicate their constitutional
rights in
terms of sections 211 and 212 of the Constitution of the Republic of
South Africa Act,
[4]
which was
also manifested in terms of the agreement between the parties and
decision of the third respondent referred to in the
preceding
paragraphs.
17.
Accordingly, the court
a quo
had failed to properly and
judicially exercise its discretion on the issue of costs and had
misdirected itself”. (Footnotes
omitted).
C.
Background facts
:
[5]
The history of AmaMpondomise is not in dispute apart from the issue
of the disinheritance of Dosini. It has been captured
well in
the judgment by the court
a
quo.
I
shall not traverse it in detail for that reason. The kingship
of AmaMpondomise dates back to the time of king Ngcwina in
the 13th
century. He had two sons, Dosini and Cira. Dosini
was from the Great House and thus the eldest son,
who in terms of
custom, was supposed to succeed him. However, for reasons which
are in dispute, king Ngcwina decided to disinherit
him and handed
over the reigns to Cira who ascended to the throne and ruled the
AmaMpondomise. The kingship flowed from the
house of king Cira
until king Mhlontlo in 1904. Brooks J amply covers this period
in
Matiwane
v President of the Republic of South Africa and Others (“Matiwane
2”)
[5]
.
[6]
Brooks J set aside the findings of the Tolo Commission and declared
that AmaMpondomise did have kingship, and ruled “that
their kingship is hereby restored”. Similarly, Griffiths
J in
Matiwane
v President of the Republic of South Africa (“Matiwane 1”)
[6]
set aside the findings of the Nhlapho Commission which found that
AmaMpondomise never had kingship. This therefore makes
the
point clear that king Mhlontlo was the king who was deposed in 1904.
Any suggestion to the contrary would be against
the findings of
Brooks J and, by implication, the finding that AmaMpondomise had
kingship until it was taken away in 1904.
[7]
The finding of Brooks J further fortifies the fact that Dosini and
his descendants never ascended to the throne and thus never
ruled
AmaMpondomise as kings since Dosini’s disinheritance by his
father king Ngciwa. It is not disputed in the papers
that the
second respondent is the great-granddaughter of Dosini.
[8]
After the restoration of the kingship of AmaMpondomise, the first
respondent submitted the name of the second respondent to
the third
respondent as per the resolution of the first respondent for his
recognition as the king in terms of the Traditional
Leadership and
Governance Framework Act 41 of 2003 (the Framework Act). The
appellants did likewise. The first appellant
submitted to the
third respondent a resolution of the third appellant, which
recommended the appointment of the second appellant.
On receipt
of both recommendations, the third respondent penned a letter to both
the third appellant and the first respondent refusing
to recognise
either of them as either King or Queen because of the dispute.
The letter addressed to the first respondent
reads as follows:
‘
2.
The President has taken into account the judgment in the case of
Matiwane v President of the Republic of South Africa and
Others (2047/2018) [2019] ZAECMHC 23;
[2019] 3 All SA
209
(ECM) (16 May 2019).
3.
As you are aware, the Presidency and the Ministry of Cooperative
Governance and Traditional Affairs
(CoGTA) have accepted the
judgment.
4.
The effect of the judgment was to recognise the AmaMpondomise
kingship.
5.
The Presidency has since received two letters: One letter dated
04 June 2019 was from Mkata
Attorneys representing the Dosini Royal
Family and the other letter being yours representing the Phahlo Royal
Family.
6.
The Dosini Royal Family has nominated Ms Ntombenkonzo Maseti whilst
the Phahlo Royal Family has
nominated Mr Luzuko Matiwane to be
recognised and appointed by the President as the rightful heir to the
AmaMpondomise throne.
7.
Both letters state that they are representing the AmaMpondomise Royal
Family and that the nominations
were the decision of the Royal
Council and they have attached documents in this regard.
8.
The letter from the Attorney of the Dosini Royal Family acknowledges
that there is a
dispute within AmaMpondomise Royal
Family as to who is the rightful incumbent and requests the President
to appoint a Commission
to conduct an investigation to determine the
rightful heir to ascend the throne in terms of AmaMpondomise customs
and tradition
of Mpondomise nation.
9.
In view of the above, it is evident that the Royal Family cannot
reach a unanimous decision in
choosing one common incumbent to ascend
the throne.
10. At
the hearing of the matter, Mr Luzuko Matiwane (the applicant)
abandoned the relief initially sought, declaring
him to be the King
of the AmaMpondomise. This in turn triggers the provisions of
section 3A and 9 of the Act which deals
with the establishment and
recognition of kingship and queenship councils and the recognition of
kings and queens respectively.
11.
In this regard:
11.1
Section 3A(1) of the Act provides:
“
(1)
Once the President has recognised a kingship or queenship, that
kingship or queenship must, within one year of the
recognition,
establish a kingship or queenship council”.
11.2
Section 9 provides in relevant part:
“
9 Recognition
of kings and queens
(1)
Whenever the position of a king or a queen is to be filled,
the
following process must be followed:
(a)
The royal family must within a reasonable time after the need arises
for
the position of a king or a queen to be filled, and with due
regard to applicable customary law-
(i)
identify a person who qualifies in terms of customary law to assume
the position of a king or
a queen, as the case may be, after taking
into account whether any of the grounds referred to in section 10 (1)
(a), (b) and (d)
apply to that person; and
(ii)
through the relevant customary structure
(aa)
inform the President, the Premier of the province concerned and
the Minister, of the particulars of
the person so identified to fill
the position of a king or a queen;
(bb)
provide the President and the Minister with reasons for the
identification of that person as king or queen;
(cc) give
written confirmation to the President that the Premier of the
province concerned and the Minister have been
informed accordingly;
and
(b) The
President must, on the recommendation of the Minister and subject to
subsection (3), recognise a person so identified
in terms of
paragraph (a) (i) as king or queen, taking into account-
(i)
the need to establish uniformity in the Republic in respect of the
status afforded
to a king or a queen;
(ii) whether a
kingship or queenship has been recognised in terms of section 2A; and
(iii)
the functions that will be performed by the king or queen.
(2)
The recognition of a person as a king or a queen in terms of
subsection (1) (b) must be done by way of-
(a)
a notice in the Gazette recognising the person identified as king or
queen; and
(b)
the issuing of a certificate of recognition to the identified person.
(3)
Where there is evidence or an allegation that the identification of a
person referred to
in subsection (1) was not done in terms of
customary law, customs or processes, the President on the
recommendation of the Minister-
(a)
may refer the matter to the National House of Traditional Leaders for
its recommendation;
or
(b)
may refuse to issue a certificate of recognition; and
(c) must refer
the matter back to the royal family for
reconsideration and resolution where the certificate of recognition
has been refused.
(4)
Where the matter that has been referred back to the royal family for
recognition and resolution in terms
of subsection (3) has been
reconsidered and resolved, the President on the recommendation of the
Minister must recognise the person
identified by the royal family if
the President is satisfied that the reconsideration and resolution by
the royal family has been
done in accordance with customary law”.
12.
The President has been advised by the Minister of Cooperative
Governance and Traditional Affairs
that Government does not have the
legal authority to be involved in any of the royal family processes
of nominating an heir.
Only the Royal Family through the
customary structure has the authority to identify a person who
qualifies in terms of customary
law to assume the position of a king
or a queen. Once the royal family has finalised its processes
of choosing the rightful
heir, it then notifies the government to
facilitate all the required administrative processes of recognising
and appointing the
Kingship and the King respectively.
13.
The President has therefore decided to refer the matter back to the
Royal Family for reconsideration
and resolution. The two
families are requested to resolve the matter internally and nominate
one common heir for the President
to recognise as the King of
AmaMpondomise.’
D.
The issues
:
[9]
In summary the issues are:
9.1
whether urgency was established in the court
a quo
;
9.2
whether the respondents established the jurisdictional facts to
sustain the requirements of a final interdict;
9.3
whether the court
a
quo
was
correct in not ordering that the resolution of the dispute between
the parties should be in terms of the
Traditional Leadership and
Governance Framework Act;
[7
]
and
9.4 the
costs.
E.
Urgency
:
[10]
The application was launched on 17 September 2019. The Notice
of Motion indicates that the application
was to be made, on a
semi-urgency basis, on 5 November 2019 at 10h00. It provided
that notice to oppose should be filed no
later than 25 September 2019
and the answering affidavit no later than 10 October 2019. The
respondents in paragraph 124
of the founding affidavit deal with why
the matter was semi-urgent. Amongst others, they aver that the
issue to be determined
is of public interest and deals with steps
taken to resolve the matter from the date of judgment restoring the
kingship to when
the third respondent penned Annexure “C”.
Such steps have not been disputed by the appellants in their
answering
affidavit. All that is contended by the appellants
is:
(a)
the fact that the certificate of urgency has not been served on them;
(b)
that the “Applicant refused and scoffed at every request by me
and my Royal Family,
to remedy the claim or dispute as per the
President’s request, they failed to respond thereto”; and
(c)
states that she has asked her attorneys to apply for the
non-compliance with the rules
in terms of
rules 30
and
30A
.
[11]
The court
a quo
on this issue correctly found that “(i)t
was open to the respondents to institute
Rule 30
proceedings to deal
with that non-compliance”. The court
a quo
reasoned as follows:
“
Furthermore, it is
not clear how the shortened time frames with which the respondents
elected to comply without challenging them
affected them in their
preparations in the final analysis. No prejudice was pointed
out and I cannot see any. This
application was launched on 17
September 2019 and heard on 5 November 2019. I simply cannot
see how that period would have
been insufficient for proper
preparations and filing to be made”.
[12]
It should be noted that the issue of lack of urgency cannot be
clouded by the fact that the respondents
were ready to proceed with
the matter on 6 November 2019. Put differently, they complied
with the truncated time periods
and were ready to argue the matter.
The court can nevertheless still make a determination as to whether
the matter was urgent
in the first place. I agree with similar
sentiments stated by Kroon J in
Caledon
Street Restaurant CC v D’Aviera
[8]
when he said:
“
It is to be
emphasised that the fact that, in the result, and after a
postponement of the matter, the papers are complete by a particular
date and the matter is in that sense ripe for hearing, must not cloud
the issue whether the Applicant’s modification of the
rules on
the grounds of urgency was unacceptable”.
[13]
The court
a quo
exercised a discretion in terms of
rule
6(12)(a)
which stipulates that, in urgent applications, the court or
a judge “may dispense with the forms and service provided for
in the rules and may dispose of such matter at such time and place
and in such a manner and in accordance with such procedure (which
shall as far as practicable be in terms of these rules) as it seems
meet”. The court
a quo
exercised its discretion
and heard the matter. There are no reasonable grounds for this
court to interfere with its exercise
of the discretion vested in it.
F.
Interdict
:
[14]
In
Setlogelo
v Setlogelo
[9]
the court found that the requisites for the right to claim an
interdict are known to be a clear right, injury actually committed
or
reasonably apprehended, and the absence of similar protection by any
other remedy.
Clear
right
[15]
The issue before the court
a quo
was not about whether king
Ngcwina was correct when he disinherited Dosini as the rightful heir
to the throne. That issue
remains live, until successfully
challenged by the respondents. The issue, as I can see from the
papers, remains unresolved
until it is pertinently challenged in the
rightful way. As things stand, the descendants of king
Cira reigned since
1300 until 1904 when they were unlawfully stripped
of kingship by the colonialists, according to Brooks J. The
second respondent
is the direct descendant of king Mhlontlo who was
deposed and therefore, on the face of that, the respondents had a
clear right
to bring the application. It is on that basis that
the court
a quo
found that a clear right had been
established. I find no misdirection in this regard.
Harm
and injury reasonable apprehended
[16]
The harm that is reasonably apprehended was established and the court
a quo
correctly found so. The papers reveal that the
first and second respondents had applied to the third respondent for
the recognition
of the second respondent as the king. There was
a ceremony that was being prepared for his installation as the king.
The respondents had a reasonable apprehension that the installation
would be disrupted. The court
a quo
went further to find
that:
“
The harm is not
only that of the Applicants but that of AmaMpondomise as a whole.
These papers make it clear even on the basis
of the respondents own
submissions that the absence of a leader to lead the nation of
AmaMpondomise is a harm that must be brought
to an end as it is a
continuing harm”.
[17]
Furthermore, the appellants had written to the third respondent also
seeking the appointment
of the second appellant as queen. That
could also be regarded as an injury, which, objectively viewed, could
be realised.
Absence
of another remedy
[18]
The respondents, in the court
a quo,
sought declaratory
relief. The provisions of the Framework Act do not provide for
that remedy. I shall deal below with
the provisions of the
Framework Act. The issue of the disinheritance of Dosini was
foreshadowed in the Tolo Commission before
Brooks J and the parties,
as alluded to, agreed that it should be withdrawn before him.
Brooks J did not decide the issue
and it remains unresolved. It
is apparent from the papers that numerous attempts were made either
by the appellants and/or
the respondents to resolve the issue of the
disinheritance of Dosini
but to no avail.
Section
21(1)(a) of the Superior Courts Act (10 of 2013) grants courts
jurisdiction over all persons residing or being in
and in relation
“to
all causes and all offences
triable” within
its area of jurisdiction. There was no other conceivable remedy
available to the respondents other
than a declarator from the court
a
quo.
G.
Should the court
a quo
have deferred the
issue to the two families in terms of the letter of the third
respondent
:
[19]
The applicant before Brooks J was Luzuko Matiwane. He is the
second respondent before us.
The issue before Brooks J was a
claim for the official recognition and reinstatement of the kingship
of AmaMpondmise.
[10]
The
first and second appellants were later joined by the court before
Brooks J as the fifth and sixth respondents on the
understanding that
that court would not determine or make an order declaring the second
respondent before us as king of the AmaMpondomise.
Brooks J
reasoned as follows in paragraph 4:
“
However, the
parties and their legal representations very properly and maturely
applied their minds to the issue and agreed that
the Applicant would
withdraw his opposition to the joinder application and would seek no
relief declaring him to be the King of
AmaMpondomise”.
Brooks
J thereafter made an order declaring that AmaMpondomise did have a
kingship and reinstated it.
[20]
As alluded to, pursuant to the order, the appellants and the first
and second respondents, acting
in terms of the Frameworks Act,
independently approached the third respondent for recognition as king
and queen respectively.
Faced with that situation, the third
respondent declined to appoint any of them and penned the letter
dated 2 August 2019 referred
to above, which is the subject of this
appeal. There are two divergent interpretations given to the
letter by the parties
based on paragraphs 8 and 9 thereof. For
the sake of clarity I shall refer to these paragraphs which read:
‘
8.
The letter from the Attorney of the Dosini Royal Family acknowledges
that there is
a dispute within the AmaMpondomise Royal Family as to
who is the rightful incumbent and requests the President to appoint a
Commission
to conduct an investigation to determine the rightful heir
to ascend the throne in terms of AmaMpondomise customs and tradition
of Mpondomise nation.
9.
In view of the above, it is evident that the Royal Family cannot
reach unanimous
decision in choosing one common incumbent to ascend
the throne’.
[21]
It was clear to the third respondent that the dispute between the
parties was alive and could
not be resolved by them. There was
no unanimity as to who should be king or queen. The third
respondent had received
the two letters, one from the respondents
dated 12 June 2019 and the other from the appellants dated 4 June
2019 both claiming
to be royal families representing the
AmaMpondomise nation. I do not understand the contention
therefore, that the royal
family is not unanimous regarding the
dispute. There were two royal families purporting to represent
AmaMpondomise.
Be that as it may, the third respondent refers
to sections 3A and 9 of the Framework Act and then decides as
follows:
‘
The President has
been advised by the Minister of Cooperative Governance and
Traditional Affairs that Government does not have legal
authority to
be involved in any of the royal family processes of nominating an
heir. Only the royal family through the customary
structure has
the authority to identify a person who qualifies in terms of
customary law to assume the position of a king or queen.
Once
the royal family has finalised its process of choosing the rightful
heir, it then notifies Government to facilitate all the
required
administrative processes of recognising and appointing the kingship
and the king respectively’.
[22]
What is meant by this paragraph is clear and needs no
interpretation. Obviously, the third
respondent would not
appoint a person if there is a dispute about who should be
appointed. Royal Family by its very nature
is a customary
structure. Section 1 of the Framework Act defines Royal Family
as “the core customary institution or
structure consisting of
immediate relatives of the royal family within the traditional
community, who have been identified in terms
of custom, and includes
where applicable, other family members who are close relations of the
ruling family”.
[23]
It is clear from the facts of this matter that there are two “royal
families” who
both claim to be legitimate. They have both
independently of the other, followed the customary processes which
are alluded
to in paragraph 12 of the letter. The consequence
of these processes led to the appointment of the second appellant as
the
queen and the second respondent as the king. Both parties
purported to have been acting in terms of the AmaMpondomise customary
practices. I do not therefore understand the reasoning of the
third respondent when it relegated the issue again to the “royal
family”. The third respondent knew that there were two
royal families, and was also alive to the dispute about who
is the
“king” or “queen”. This is so because
paragraph 2 of the letter says that “(t)he President
has taken
into account the judgment in the case of
Matiwane
v
President
of the Republic of South Africa and Others.
The paragraph
referred to acknowledges that the issue was about the recognition of
AmaMpondomise kingship. It therefore
means that the third
respondent was also aware of the dispute about who should be the king
or queen referred to in paragraph 4
of that judgment.
[24]
Paragraph 4 of the letter is confusing, especially in that the third
respondent was aware of
the dispute based on the two letters that he
received from two royal families representing the same nation, and
what is said in
‘Matiwane 2’ in this regard. It is
also confusing because it refers the matter back to a “royal
family”
and at the same time says “the two families”
must resolve the issue internally. The remittal of the matter
in
terms of section 9 of the Framework Act would not resolve the
dispute.
[25]
Mr
Mathapuma,
counsel for the appellants, argued that the court a
quo
erred in finding that “the parties did go to the Commissions
previously and (t)here is no internal remedy, in my view, provided
for in the Framework Act that the applicant was, in the circumstances
to exercise first before coming to this court”.
Placing
reliance on
Sigcau
and Another v Minister of Co-operative Governance and Traditional
Affairs
[11]
he
argued that sections 9 and 25 of the Framework Act, provide such a
remedy. He argued that the letter from the third respondent
referred the matter back to the third appellant and the first
respondent for consideration and identification of one common heir
for him to recognise. Therefore, the two royal families have
not met and thus the decision of the third respondent and its
consequences have not been complied with. I have dealt with the
letter of the third respondent above and need not repeat
my views
about it. Relying on the principle enunciated in
Oudekraal
Estate (Pty) Ltd v City of Cape Town
[12]
,
the appellants argue that the decision of the third respondent has
not been reviewed and set aside and therefore it is still binding.
In sum, the appellants submit that the court
a
quo
acted
ultra
vires
the
provisions of section 9(1)(a) and (4) and/or 25 of the Framework
Act. Failure to comply with the decision of the third
respondent means that the process prescribed in sections 21 and 25(1)
and 2(a)(iii) and (ix), 25(3)(a) and (b)(i) of the Framework
Act had
to be followed, so argue the appellants.
[26]
Section 9(1)(a) of the Framework Act reads as follows:
‘
(1)
Whenever the position of a king or a queen is to be filled, the
following process must be followed:
(a)
The royal family must, within a reasonable time after the need arises
for the position of
a king or a queen to be filled, and with due
regard to applicable customary law:
(i)
identify a person who qualifies in terms of customary law to assume
the position
of a king or a queen, as the case may be, after taking
into account whether any of the grounds referred to in
section10(1)(a),
(b) and (d) apply to that person; and
(ii)
through the relevant customary structure:
(aa)
inform the President, the Premier of the province concerned and the
Minister, of the particulars of
the person so identified to fill the
position of a king or a queen;
(bb)
provide the President with the reasons for the identification of that
person as a king or a queen;
and
(cc)
give written confirmation to the President that the Premier of the
province concerned and the
Minister have been informed accordingly’.
[27]
The provisions of section 9(2) are not applicable as they cater for
the process of recognition
by the third respondent. Section
9(3) provides that:
‘
3.
Where there is evidence or an allegation that the identification of a
person referred
to in subsection (1) was not done in accordance with
customary law, customs or processes, the President-
(a)
may refer the matter to the National House of Traditional Leaders for
its recommendation and resolution;
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to the royal family for resolution where
the certificate of recognition has
been refused’.
The
third respondent has not acted in terms of subsection 3(a).
Instead he referred the matter back to the royal family in
circumstances where it was clear that there can be no resolution by
them. Sections 9(4) and (5) are not relevant for purposes
hereof.
[28]
The facts of
Sigcau
[13]
are
different from the present. However, the relevant portion
relied upon by the appellants is where the court deals
with the
provisions of section 9(1) of the Framework Act. Zondo ACJ said
the following in paragraphs 31, 49 and 50.
‘
[31]
Furthermore, section 9(1) applies to a case where the position of a
king or a queen is to be filled and nobody has been
identified by a
lawful authority as the person entitled to be king or queen. In
this case the Commission has decided who
is entitled to be the king
or queen and, as long as it is accepted that the Commission had power
to make that decision, the
section 9(1) process for the
identification of a person to be the king or queen is not
applicable. In these circumstances
the process in section 9(1)
has no application in a case where the President is required to
ensure an “immediate implementation”
of the decision of
the Commission.
. . .
[49]
In any event, the section 9 process includes an internal dispute
resolution process within the royal family as can be seen
from the
provisions of section 9(3) and (4). That internal dispute resolution
process seems to fall within section 21(1)(a).
Section 21(1)(a)
reads:
“
Whenever a
dispute concerning customary law or customs arises within a
traditional community or between 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 internally and in
accordance with
customs”.
[50]
That means that, if there is a dispute within the royal family as to
who is entitled in
terms of customary law to be king or
queen and there are different names, the royal family must try and
resolve that dispute.
However, section 21(b) provides that
“[w]here a dispute envisaged in paragraph (a) relates to
a case that must be investigated
by the Commission in terms of
section 25(2), the disputes must be referred to the Commission, and
paragraph (a) does not apply”.
Therefore, the scheme of the
unamended Act is that disputes that fall under section 25(2) are
dealt with by the Commission and
not “internally” as
contemplated in section 21(1)(a) and as would happen if the whole of
the section 9 process were
to be applied in this matter.
Section 9(3) and (4) would entail that the royal family resolves the
dispute internally if
the President refers it back to the royal
family for reconsideration
[14]
”.
[29]
Section 21(1)(a) referred to in
Sigcau
falls under chapter 6
of the Framework Act. The heading of the chapter reads:
DISPUTE
AND CLAIM RESOLUTION AND COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS
The
heading to section 21 is
dispute and claim resolution
.
Section 21 is silent as to who should refer the matter to the
Commission. However, section 25(2)(a) provides that:
“
The Commission has
authority to investigate and make recommendations...”
In
the context of this matter, either the appellants or the respondents
had the right to act in terms of the provisions of section
21 of the
Framework Act which, in a nutshell, provides for the resolution by
the royal family internally, failing which, to approach
the
provincial house of traditional leaders, then the Premier and only
thereafter the Commission. It was not the responsibility
of the
third respondent to take the matter up with the relevant structures.
The recommendation of the third respondent in
terms of the letter is
rendered superfluous by the fact that the dispute between the parties
has not been resolved amongst them.
It will not assist to bring
the parties together with a view that they should resolve the
dispute. The respondents allege
that they are not even related
to the appellants to an extent that the two families may intermarry.
The dispute between the
third appellant and the first
respondent dates back for centuries. But what cuts across this
like a golden thread is the
fact that Dosini was disinherited many
years ago.
That dispute still lingers on.
It has not been resolved by the Commission, or by Brooks J and
Griffiths J.
[30]
The letter of the third respondent is silent about referring the
matter in terms of section 21.
Neither of the parties has acted
in terms of that section either. Section 25(2)(b) states that
any dispute or claim may be
lodged with the Commission by any person
and must be accompanied by information setting out the nature of the
dispute or claim
and any other relevant information. The
appellants also did not follow this process.
[31]
The disinheritance has not been challenged and therefore it remains
extant. It is not before
this court either. I say so,
because before the court
a quo
was an application for a
declaratory order and an interdict based on the fact that the third
appellant has never been a royal family
and did not rule from 1300.
Furthermore, that the respondents are the direct descendants of the
family that ruled as kings
of the AmaMpondomise, with the last
deposed king being king Mhlontlo.
[32]
The first respondent is constituted by the direct descendants of
Mhlontlo whose kingship was
restored. I say so because when the
kingship of AmaMpondomise was taken away in 1904, the family that was
ruling as kings
was that of the descendants of Cira from 1300.
At that time, the reigning king was Mhlontlo.
[33]
The appellants in annexure G56 to the founding affidavit (the Dosini
Royal Family Resolution)
do not accurately deal with the issue which
Brooks J’s judgment dealt with. It is somewhat of a
distortion. Brooks
J pertinently found that the person or the
reigning king at the time of the disposition of kingship, as dealt
with before, was
king Mhlontlo. Therefore, annexure G56 cannot
be a reflection of what had been found by Brooks J. In context
annexure
G56 says the following:
‘
5.
The Mpondomise’s further note that when Ntose died, his great
son and heir Ngcwina
succeeded in terms of custom.
6.
Further notes that, Ngcwina violated the Mpondomise customary law of
succession
when he disinherited or deprived his great son and heir
Dosine of the Kingship of AmaMpondomise in favour of his son Cira
from
the sixth House.
7.
Emphasised that the kingship of AmaMpondomise ended on that
date
”. (Emphasis added).
This
is not what Brooks J found in his judgment. He found that the
last king to be deposed was king Mhlontlo in 1904.
[34]
The assertion by the appellants that the restoration of kingship
started from the period of the
disinheritance of Dosini; cannot be
correct in the light of the above references.
[35]
The respondents in prayers 1 and 2 of the notice of motion sought
declaratory orders in respect
of the resolution taken by the
appellants identifying the second respondent as the queen. It
was within the rights of the
respondents in terms of section 21 of
the Superior Courts Act to do so. The letter of the third
respondent cannot be seen
as a bar to that effect. A court has
a discretion whether to issue a declaratory order and will not do so
while the effect
would be to decide abstract, academic or
hypothetical questions unrelated to any interest in a right which
produces no concrete
or tangible result beyond the bare
declaration
[15]
. The
learned authors, relying on
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[16]
,
state that once the applicant has satisfied the court that it is
interested in an “existing, future or contingent right or
obligation”, the court is obliged by the subsection to exercise
its discretion. This, they find, does not mean that
the court
is bound to grant a declaratory, but that it has to consider and
decide whether it should refuse or grant the order,
following an
examination of all the relevant factors.
[36]
In the application in the court
a quo
, the respondents did not
seek an order that challenged the decision of the third respondent
taken in terms of the letter.
The respondents did not seek, in
the court
a quo,
the resolution of whether Dosini was deposed
in terms of custom or not, nor did it seek a resolution of who the
rightful king is.
All the respondents sought was that the
appellants’ resolution should be declared to be unlawful
ab
initio
and that the appellants should refrain from declaring the
third appellant as a royal family of AmaMpondomise, as well as the
interdictory
relief.
[37]
In
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[17]
Howie P
et
Nugent JA said the following:
“
For those reasons
it is clear, in our view, that the Administrator’s permission
was unlawful and invalid at the outset.
. . . Until the
Administrator’s approval (and thus also has the consequences of
the approval) is set aside by a court
in proceedings for judicial
review it exists in fact and it has legal consequences that cannot
simply be overlooked. The
proper functioning of a modern state
would be considerably compromised if all administrative acts
could
be given effect to or ignored depending upon the view the
subject takes of the validity of the act in question. No doubt
it is for this reason that our law has always recognised that even an
unlawful administrative act is capable of producing legally
valid
consequences for so long as the unlawful act is not set aside”.
[38]
I am bound by the above principle. The order granted by the
court
a quo
has the effect of setting aside the decision taken
by the third respondent that the matter should take the route
provided for in
terms of section 9(1) of the Framework Act.
Furthermore, I do not read what was said by Zondo ACJ in
Sigcau
to mean (especially in that the facts are not similar) that the
respondents, in the circumstances of this case, were precluded
from
seeking declaratory and interdictory relief but instead should have
followed the internal remedies provided for in the Framework
Act, as
contended for by the appellants. I say so based on the
longstanding dispute between the parties as to who should
be the king
or queen. The parties have failed to resolve this ongoing
dispute which, as reflected above, the third respondent
alludes to in
its letter. It would serve no purpose to refer the matter back
to it to pursue the procedure reflected in section
9 of the Framework
Act.
[39]
The other issue which needs to be dealt with is that of costs.
It is trite that the issue
of costs is in the discretion of the court
that resolved a dispute between parties. That discretion should
not be readily
interfered with by a court of appeal unless the
discretion was not exercised judicially, or has been exercised based
on a wrong
appreciation of the facts or wrong principles of the law.
The State in this matter was not an active party. It was merely
cited because the third respondent is the party that has to make the
recognition. The
lis
was between the appellants and the first and second respondents.
The Biowatch principle
[18]
does not find application in this matter.
[40]
Consequently, I make the following order.
The appeal is dismissed
with costs.
______________________
M
MAKAULA
Judge
of the High Court
Stretch
J: I agree.
_______________________
IT
STRETCH
Judge
of the High Court
Bloem
J: I agree.
_______________________
GH
BLOEM
Judge
of the High Court
Appearances
:
Counsel
for the
AMICUS CURIAE:
Adv N Mabena
Instructed
by:
T Dazana Attorneys
Counsel
for the Appellants:
Adv G Shakoane SC & Adv M Mathaphuna
Instructed
by:
Mkata Attorneys
Counsel
for the 1
st
& 2
nd
Respondents:
Adv M Gwala SC & Adv SX Mapoma
Instructed
by:
Mvuzo Notyesi Inc Attorneys
Date
heard:
20 October 2021
Date
judgment reserved:
20 October 2021
Date
of judgment delivered:
6
May 2022
[1]
No 41 of 2003, sections 9, 21 and 25.
[2]
Makhuvha
v Lukoto Bus Service (Pty) Ltd
1987
(3) SA 376
(V) at 3881-389D;
Cekeshe
v Premier, Eastern Cape
1998
(4) SA 935
(TK) at 498 F.
[3]
2006 (9) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para [40]
et
seq.
[4]
No 108 of 1996, as amended.
[5]
2019 (3) SA 209 (ECM).
[6]
2014 JDR 0363 (ECM).
[7]
No. 41 of 2003 in terms of sections 9, 21 and 25 thereof.
[8]
[1998] JOL 1832 (SE).
[9]
1914 AD 221
at 221.
[10]
Paragraph 1 of Matiwane 2.
[11]
2018 (12) BCLR 1525
(CC) at paras (27) and [30].
[12]
2004 (6) SA 222
(SCA) para [26].
[13]
Ibid
footnote
11.
[14]
Ibid
31, 49
and 50.
[15]
Herbstein and Van Winsen – The Civil Practise of the High
Court of South Africa, fifth edition, Vol 1 by Cilliers Loots
and
Nel at page 60.
[16]
(237/2004)
[2005] ZASCA 50
;
[2006] 1 All SA 103
(SCA);
2005 (6) SA
205
(SCA) at para 17.
[17]
(41/2003)
[2004] ZASCA 48
;
[2004] 3 All SA 1
(SCA) (28 May 2004) para 26.
[18]
The principle enunciated in Biowatch,
Trust
v Registrar Genetic Resources (CCT 80/08)
[2009] ZACC 14
;
2009 (6)
SA 232
(CC);
2009
(10) BCLR 1014
(CC).