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[2022] ZAECMHC 50
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Lepheana v Premier of the Eastern Cape Province and Others (4902/2021) [2022] ZAECMHC 50 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
Case
no: 4902/2021
Date
heard: 20/10/2022
Date
delivered: 13/12/2022
In
the matter between:
DISEBO
VIRGINIA LEPHEANA
APPLICANT
and
PREMIER
OF THE EASTERN CAPE PROVINCE
FIRST
RESPONDENT
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
(EASTERN
CAPE PROVINCE)
SECOND
RESPONDENT
THE
MINISTER OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
THIRD
RESPONDENT
JUDGMENT
Notyesi
AJ
Introduction
[1]
Ms Lepheana
has launched these proceedings seeking an order in terms of which the
Premier of the Eastern Cape must be compelled
to appoint an
investigation team to investigate her claim for traditional
leadership in terms of section 59(2) of the Traditional
and Khoi-San
Leadership Act 3 of 2019 (‘the Khoi-San Act’)
[1]
within a period of 30 days and to give effect to the Court’s
order dated 11 August 2020 (‘the Order’).
[2]
[2]
In terms of
the Order, the Court referred Ms Lepheana’s claim for
traditional leadership to the Commission on Traditional
Leadership
for investigation in terms of section 25(2) of the Traditional
Leadership and Governance Framework Act 41 of 2003 (‘the
Framework Act’).
[3]
Ms Lepheana
contends that on 11 August 2020 the Court issued an order in the
following terms:
‘
(a)
The decision of the First Respondent dated 16 July 2019 is reviewed,
declared invalid and is hereby
set aside;
(b)
The decision of the First Respondent is substituted with the order,
directing that the Applicant’s
claim is referred to the
Commission for investigation in terms of
Section 25(2)
of the
Traditional Leadership and Governance Framework Act of 2003
.’
[3]
[4]
The
Framework Act was repealed before Ms Lepheana’s claim for
traditional leadership was investigated by the Commission. Ms
Lepheana contends that the Khoi San Act only makes provision in
section 51 for establishment of a Commission that is limited
on
Khoi-San matters to the exclusion of other traditional leadership
matters. Ms Lepheana submitted that in order to give effect
to the
Order, this Court should invoke the corresponding provisions of
section 59(2) of the Khoi-San Act to the repealed section
25(2) of
the Framework Act.
[5]
The Premier
contends otherwise. The Premier submitted that the relief sought by
Ms Lepheana cannot be granted for the reasons that
this Court has
already made a pronouncement and referred the matter to the
Commission and that such Order is valid and remains
extant. The
Premier contended that the appropriate remedy for Ms Lepheana
would be the variation of the order of 11 August
2020 in
circumstances where the implementation of that order presented some
difficulties. The Premier further contended that the
relief sought by
Ms Lepheana is inappropriate and not legally competent.
[6]
On the
pleadings, the question for determination is:
6.1
The
interpretation of the Order; and
6.2
Whether or
not the relief sought by Ms Lepheana is legally permissible in view
of the Order.
The
parties
[7]
For the
sake of convenience, I will simply refer to the applicant as
‘Ms Lepheana’, the first respondent as ‘the
Premier’, the second respondent as ‘MEC’ and third
respondent as the ‘Minister’.
Background
[8]
The common
cause facts are:
8.1
Ms Lepheana
has lodged a claim for traditional leadership during November 2014
with the House of Traditional Leaders.
8.2
There were
competing claims for the traditional leadership position.
8.3
The House
of Traditional Leaders directed the parties to resolve their
competing claims and disputes internally.
8.4
The parties
to the competing claims could not resolve their dispute internally
and it was referred for investigation by the House
of Traditional
Leaders.
8.5
Pursuant to
such investigations by the House, the claims were dismissed.
[9]
Ms
Lepheana, unhappy with the decision of the House, launched review
proceedings under case no 1100/2020. The review proceedings
culminated in the Order by Stretch J. On delivering the Order,
Stretch J exercised her judicial discretion in terms of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA)
[4]
and granted a substitution order in the following terms:
‘
(b)
The decision of the First Respondent is substituted with the order,
directing that the Applicant’s
claim is referred to the
Commission for investigation in terms of Section 25(2) of the
Traditional Leadership and Governance Framework
Act of 2003.’
[10]
On 22
January 2021, Ms Lepheana’s attorneys wrote a letter to the
Premier and the MEC advising them about the Order and its
implications. In the letter, Ms Lepheana’s attorneys,
inter
alia
,
alleged:
‘
The Order further
ordered that the claim be referred to the Commission on Traditional
Leadership Disputes and Claims investigation
in terms of Section
25(2) of the Act. It is upon this order that the client now instructs
that we refer, as we hereby do, the claim
in terms of S21(3). We note
that unfortunately the Act does not provide a clear procedure to be
followed for such referrals, hence
we resorted to this manner. We
have enclosed herewith our client’s affidavit in the High Court
Review Application. We trust
that this matter will receive your
urgent attention and look forward to hearing from you.’
[11]
The Premier
did not respond to the letter and Ms Lepheana’s legal
representatives approached the Minister by way of a letter
dated 3
March 2021. For the reasons that will become apparent, I quote from
the letter:
‘
In the
circumstances, it is evidently clear from the Court Order that the
claim has already been referred to the Commission by the
Court, in
terms, therefore, we hereby submit our client’s claim in terms
of the Court Order. We have enclosed herewith our
client affidavit in
High Court Review. We trust that this matter will receive your urgent
attention and looking forward to hearing
from you. We request that
you advise us with regards to progress of this matter within 14 days
of receipt of this letter.’
[12]
The
Minister responded on 25 March 2021 to Ms Lepheana’s legal
representatives. In the response, the Minister made the following
assertions:
‘
It is noted that
the court, on 11 August 2020, ordered that the dispute “ . . .
is referred to the Commission for investigation
in terms of
section
25(2)
of the
Traditional Leadership and Governance Framework Act of
2003
.” The term of the Commission on Traditional Leadership
Disputes and Claims (CTLDC) however already ended on 31 December
2017,
long before the judgment. The CTLDC therefore no longer exists
and cannot deal with this matter. Furthermore, the
Traditional
Leadership and Governance Framework Act, 2003
, in terms of which the
CTLDC was established, will be repealed on 1 April 2021 when the
Traditional and Khoi-San Leadership Act, 2019
comes into operation.’
[13]
On 22 June
2021, the Minister again wrote a letter to Ms Lepheana’s legal
representatives. In the letter, the Minister asserted
the following:
‘
In our letter of
25 March 2021, we indicated that since the Commission on Traditional
Leadership Disputes and Claims no longer exists
and its term of
office ended on 31 December 2017, we are seeking legal opinion on the
matter and will revert to you. We have since
received the legal
opinion and regret to inform Poswa Attorneys that it is unfortunately
practically impossible to refer the matter
to the Commission on
Traditional Leadership Disputes and Claims, which has ceased to
exist.’
[14]
I must
point out that the letter by Ms Lepheana’s legal
representatives of 3 March 2021, is also addressed to the
Commission
of Traditional Dispute and Claims.
Ms
Lepheana’s case
[15]
Ms
Lepheana’s case is that an order was granted by this court on
11 August 2020 in terms whereof the dispute was
referred
for investigation to the Commission in terms of section 25(2) of the
Framework Act. Ms Lepheana contended that the Premier,
MEC and the
Minister refused to put into effect the obligations under the Order
and instead, pleaded impracticability. Secondly,
in view of the fact
that the Commission had ceased to exist, the Premier must refer the
dispute to an investigation team in accordance
with the Khoi-San Act
and that would give effect to the Court Order of 11 August 2020.
The
respondent’s case
[16]
The Premier
submitted that the court order relied upon by Ms Lepheana contains
internal contradictions in that; first, paragraph
1 of the Order,
states that the decision of 16 July 2019 is reviewed, declared
invalid and set aside; and second, paragraph 2 of
the Order
substitutes the decision that had been set aside. The Premier further
submitted that the Order is unenforceable, especially
against him.
The Premier was not a party to the proceedings that culminated in the
Order relied upon, nor was the Commission a
party to the aforesaid
proceedings. The Premier therefore contended that, whilst the term of
office for the Commissioners may terminate,
the same cannot be the
position in respect of the Commission as a legal body. Under these
circumstances, the Premier submitted
that the Order remains binding
and that the matter has been determined by the Court when the
substitution order was granted. Finally,
the Premier pointed out that
he has no role in the implementation of the Order and on that basis,
the case against the Premier
should be dismissed.
[17]
The MEC has
not opposed the application nor filed an affidavit. On the other
hand, the Minister indicated that only the Premier
is empowered by
the provisions of section 59(2) to establish an investigation akin to
that sought by Ms Lepheana and envisaged
by the Order.
[18]
The
Minister pleaded that the term of the Commission ended on
31 December 2017 and that, at the time of the Order, the
Commission was no longer in existence and that the Khoi-San Act,
which repealed the Framework Act, had no provision for the
implementation
of the Order. The Minister, however, decided to abide
by this Court’s decision. In the explanatory affidavit, the
Minister
states that the Premier is the person who is seized with
powers to refer the matter for investigation in terms of the Khoi-San
Act, although when considering the Order, the Court had done so.
The
interpretation of the Order
[19]
In
Mtolo
and Another v Lombard and Others
[5]
the Constitutional Court held:
‘
Before
grappling with the factual question whether there was compliance with
the order of Antonie AJ, we must first determine what
the order
means; what I earlier referred to as the legal component. The order
must be read in the context of what was before Antonie
AJ and must,
therefore, have informed the decision.
[6]
Insofar as the applicants are concerned, throughout the focus of the
proceedings was that the respondents rendered the home uninhabitable
by removing the roof and windows. For their part, the respondents
also focused on the roof and windows, although they said it was
the
first applicant – assisted by his brother in law –
who removed these items. That explains the specific
mention of the
roof and windows by Antonie AJ. Nothing was ever mentioned to him
about anything else that had rendered the home
unfit for habitation
by human beings. It is unlikely, therefore, that his mind could have
strayed beyond what had been brought
to his attention. After all,
context is key in the interpretation of documents, court orders
included. Wallis JA explained why
this is so in
Endumeni
:
[7]
“
Most words can
bear several different meanings or shades of meaning and to try to
ascertain their meaning in the abstract, divorced
from the broad
context of their use, is an unhelpful exercise. The expression can
mean no more than that, when the provision is
read in context, that
is the appropriate meaning to give to the language used.
”’
(Emphasis added.)
[20]
The order
of Stretch J is simple and must be read in the context of the case
that was presented by Ms Lepheana. I disagree with
Mr Kunju that the
Order is contradictory. The Order of Stretch J has done two things;
(a) set aside the decision of the House of
Traditional Leaders; and
(b) referred the dispute to the Commission on Traditional Leadership
for investigation. I say this for
the reason that the Order of
Stretch J is plain and straightforward.
[21]
In terms of
the Order, on a simple, grammatical and literal meaning, the claim of
Ms Lepheana has been referred to the Commission
for investigation and
should be dealt with by that Commission.
[22]
The Premier
or MEC or even the Minister for that matter, have no further
involvement. The matter has been finalised by the Court’s
direct referral of the dispute to the Commission. This was the relief
sought by Ms Lepheana at the time. The court can only grant
the
relief sought by the parties. The rights of Ms Lepheana are against
the Commission and not the parties cited in these proceedings.
In
addition, the order of substitution was granted against the
Commission which clearly was not a party to the proceedings. These
are all the difficulties which have been self-created by Ms Lepheana.
Another problem for Ms Lepheana is that, whilst the
Order of Stretch
J was granted on 11 August 2020, there is no evidence that the
aforesaid Order was even served upon the Commission.
It seems to me
that even the review proceedings were launched without proper
investigation of the facts and hence relief was sought
against a
Commission, which had ceased to exist. This is undesirable.
[23]
Ms
Lepheana’s legal representatives were content with writing of
letters to the Premier and the Minister who were not interested
parties to the Order. There is only one correspondence addressed to
the Commission and that is the letter of 3 March 2021.
In
my view, Ms Lepheana has been the author of her own misfortunes.
[24]
Moreover,
the Khoi-San Act only came into operation on 1 April 2021. There is
no explanation for the delay of enforcing the Order
before 1 April
2021. This is a delay of approximately seven months. I have found no
explanation. The Commission has not been joined
in these proceedings
and that too is a shortcoming in Ms Lepheana’s case.
[25]
The fact
that the Commission ceased to exist or the term of office of the
Commissioners came to an end, is material only insofar
as the
implementation thereof is concerned under the Khoi-San Act. I agree
with Mr
Kunju
,
counsel for the Premier, that the only way to resolve this difficulty
is by applying for a variation or amendment of the Order
should that
be necessary.
[26]
It is
therefore not competent for Ms Lepheana to seek relief against the
Premier in circumstances where the Order has not placed
any
obligations on the Premier.
[27]
In my view,
the rights of Ms Lepheana which arise from the Order, are against the
Commission and not the respondents in these proceedings.
Ms Lepheana
has failed to make out a case for the enforcement of the Order
against the Premier, the MEC and the Minister. I find
no basis for
the relief sought against these parties.
Whether
or not the relief sought by Ms Lepheana is legally permissible in
view of the Order
[28]
Mr
Cele
,
counsel for Ms Lepheana, has urged this Court to order the Premier to
act in terms of section 59(2) and establish a Commission
or
investigation team for purposes of processing the claim of
traditional leadership by Ms Lepheana. Mr Cele had contended that
section 59(2) of the Khoi-San Act is a corresponding provision to the
repealed section 25(2) of the Traditional Framework Act.
In advancing
the submission, Mr
Cele
relies on the provisions of section 65 of the Khoi-San Act.
Section 65 of the Khoi-San Act deals with the repeal of
legislation
and reads:
‘
(1)
The legislation specified in Schedule 4 to this Act, is repealed to
the extent indicated in the
third column of that Schedule.
(2)
Anything done or deemed to have been done under any provision of a
law repealed by subsection
(1) and which may or must be done in terms
of this Act, is regarded as having been done in terms of the
corresponding provision
of this Act.’
[29]
In terms of
Schedule 4, the
Traditional Leadership and Governance Framework Act
is
repealed as a whole. The effect of
section 65(2)
is that anything
that has been done or deemed to have been done in terms of the
Framework Act is regarded to have been done under
the Khoi-San Act.
This is a saving provision for acts performed under the Framework
Act. In relation to this provision, Mr
Cele
had submitted that the court should invoke the provisions of section
59(2) which is a corresponding provision to section 25(2)
of the
Framework Act. Section 59(2) reads:
‘
(2)
Any traditional leadership dispute relating to a king, queen,
principal traditional leader, senior
traditional leader, headman,
headwoman, kingship, queenship, principal traditional community,
traditional community, headmanship
or headwomanship, must be dealt
with by the President in the case of a king, queen, kingship or
queenship and by the Premier concerned
in the case of any other
dispute and the President or Premier, as the case may be, must—
(a)
cause an investigation to be conducted by an investigative committee
designated by him or
her which committee must, in the case of a
dispute concerning a king, queen, kingship or queenship include at
least one member
of the relevant provincial house, to provide a
report as well as recommendations on the matter in dispute within 60
days from the
date of designation of the investigative committee; and
(b)
refer the report to the relevant royal family or, where applicable,
relevant traditional
council for its written comments which must be
submitted to the President or Premier, as the case may be, within 60
days from the
date of such referral.’
[30]
In terms of
section 25(2) of the Framework Act, the Commission has authority to
investigate and make recommendations in respect
of such
investigations. What is self-evident is that in terms of the repealed
legislation, the Commission has its own authority
to conduct
investigations, whilst in the new Act, the Premier or President is
empowered to authorise the investigation. The jurisdictional
fact is
that there must be a dispute before the Premier or President that may
cause an investigation to be conducted by a committee
designated by
him. In this case, no claim has been submitted to the Premier and
there are no conceivable grounds upon which the
Premier can exercise
his discretion as envisaged in section 59(2) of the Khoi-San Act.
[31]
The Order
only referred the dispute for investigation by the Commission. On
this basis, there are no facts present for this Court
to invoke the
provisions of section 59(2) and on that ground alone, I cannot agree
with the submissions of Mr
Cele
:
There must be a dispute, which had been submitted to the Premier and
only then can the Premier exercise his discretion and powers
under
section 59(2) of the Khoi-San Act. This Court cannot usurp the
discretional powers of the Premier. The legislature has granted
the
Premier a discretion to decide whether or not an investigation team
should be established. It is the Premier’s own considerations
which would persuade him to establish an investigation committee. It
would be inappropriate for the Court to make such a determination
as
that would infringe upon separation of powers unnecessarily.
[32]
Ms
Lepheana has made no case for the Court to prefer the interpretation
that she contended for. On the facts presented, Ms Lepheana
is not
entitled to any relief and accordingly, has failed to make out a
case.
Costs
[33]
Ms Lepheana
was litigating against public bodies and in the ordinary course of
events, would be entitled to benefit in terms of
Harrierlall
v University of KwaZulu-Natal
[8]
and
Biowatch
on
costs. I have no doubt that this matter had raised important
questions of interpretations. My immediate difficulty is the conduct
of Ms Lepheana. The Court Order by Stretch J was granted on 11 August
2020. For a period of a full seven months, nothing was done
to
advance the rights arising from the Court Order. Sequel thereto,
litigation was directed against parties who were never involved
in
the matter. The Premier was dragged to court in circumstances where
he ought not to have been caused to incur costs. The litigation
against the Premier was ill-conceived as no basis has been set out. I
hold the view that the Premier is entitled to his costs of
litigation. The other respondents have not opposed the application.
On those basis, I will only award the costs of the Premier
as a
successful party. I have found no reason to depart from the general
principle that costs should follow the results.
Conclusion
[34]
I am
satisfied that Ms Lepheana has failed to make out a case and
therefore, the application should fail with costs.
Order
[35]
In the
results, I make the following order:
(1)
The application is dismissed with costs.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the applicant
:
Adv
E
S Cele
Attorneys
for the applicant
:
Poswa
Incorporated
c/o Potelwa & Co
43 Wesley Street
Mthatha
Counsel
for the respondents
:Adv
V Kunju SC
Attorneys
for the respondents:
The State Attorney
Broadcast House
94 Sisson Street
Fort Gale
Mthatha
[1]
The Act came into effect on 1 April
2021.
[2]
Court order dated 11 August 2020
issued by Stretch J.
[3]
The Traditional Leadership and
Framework Act of 2003.
[4]
The Promotion of Administrative
Justice Act 3 of 2000 (‘PAJA’).
[5]
Mtolo and Another v Lombard and
Others
[2021] ZACC 39
;
2022 (9) BCLR 1148
(CC) para 34.
[6]
Democratic Alliance in re
Electoral Commission of South Africa v Minister of Cooperative
Governance
[2021] ZACC 30
2022; (1) BCLR 1
(CC) para 13.
[7]
Natal Joint Municipal Pension Fund
v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 25.
[8]
Harrierlall v University of
KwaZulu-Natal
[2017] ZACC
38
;
2018 (1) BCLR 12
(CC);
Biowatch
v Registrar Genetic Resources and Others
(CCT
80/08)
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).