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[2021] ZAECMHC 10
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Maxwele Royal Family and Another v Premier of the Eastern Cape Province and Others (2970/2020) [2021] ZAECMHC 10 (23 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
REPORTABLE
CASE
NO: 2970/2020
Date
heard: 11 February 2021
Date
delivered: 23 March 2021
In
the matter between:
MAXWELE
ROYAL FAMILY
First
Applicant
ASIPHE
SOLANGA MAXWELE
Second Applicant
and
THE
PREMIER OF THE EASTERN CAPE
PROVINCE
First Respondent
MEMBER
OF EXECUTIVE COUNCIL
(MEC)
FOR COOPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
Second Respondent
BAXOLELE
MAXWELE
Third Respondent
SANGONI
ROYAL FAMILY
Fourth
respondent
JUDGMENT
NOTYESI
AJ
Introduction
[1]
Pursuant
to the invocation of rule 53 of the Uniform Rules of the High
Court,
[1]
the applicants instituted this review application on 3 September
2020, challenging the identification process of the fourth
respondent,
which culminated in the appointment of the third
respondent by the second respondent as acting headman of the Zimbane
Administrative
area
[2]
(“Zimbane”), Mthatha on 12 June 2020.
[2]
The Applicants contend that the fourth
respondent has no legislative power to identify person(s) for
appointment as headman or headwoman
in respect of Zimbane, and
therefore, cannot identify an acting headman. In their further
contentions, the applicants allege
that it is the first applicant who
has a statutory mandate over the identification of a headman or
headwoman in Zimbane.
To reinforce their submission, the
applicants allege that the first applicant had identified the second
applicant in 2008 to succeed
his late father, Mzimtsha Maxwele, as a
headman, and not the third respondent.
[3]
The
gravamen of the applicants’ contention is that both the
identification and appointment of the third respondent as acting
headman of Zimbane is contrary to the material provisions of the
Traditional Leadership and Governance Framework Amendment Act
[3]
(the Framework Act) read with the Eastern Cape Traditional Leadership
and Governance Act
[4]
(the Eastern Cape Act).
[4]
In opposing the application, the
respondents have challenged applicants’
locus
standi
to institute these proceedings.
The respondents contend that the first applicant is not a royal
family in terms of the Framework
Act. They also question the
applicants’ authority to institute and prosecute these
proceedings. To that end, they caused
a rule 7 notice to be served
upon the applicants and they allege that it has not been complied
with and therefore, the applicants
are barred from proceeding with
the application.
[5]
Additional to the objections based on
locus
standi
, the respondents raise several
dilatory pleas, which include the non-joinder of the Qokolweni
Traditional Council, mis-joinder
of the fourth respondent,
non-compliance with rule 41 of the Uniform Rules, by the applicants,
and the defence of
lis pendens
.
In relation to the latter defence, the respondents allege that there
are pending proceedings similar to the proceedings
which had been
instituted by the applicants before the Mthatha High Court.
[6]
This
Court has
mero
motu
raised
a legal question whether the appointment of the third respondent is
compliant with section 140(2) of the Constitution
[5]
in view of the fact that the letter of appointment for the third
respondent is not countersigned by the Premier (first respondent).
The parties
[7]
For the sake of convenience, the first
applicant shall be referred to as “
Maxwele
Royal Family
”, the second
applicant “
Asiphe Maxwele
”,
and “
The Premier of the Eastern
Cape
”, “
The
MEC
responsible
for Cooperative Governance and Traditional Affairs
”,
“
Baxolele Maxwele
”.
Maxwele Royal Family is the first applicant. Asiphe Maxwele is the
second applicant. The Premier of the Eastern Cape
is the first
respondent, the MEC responsible for traditional affairs is the second
respondent, Baxolele Maxwele is the third respondent
and Sangoni
Royal Family is the fourth respondent.
The issues
[8]
I now turn to deal with the issues falling
to be determined in these proceedings. I interpose here to mention
that, although the
issue in paragraph 8(f) is dispositive of the
application, the remaining issues will nevertheless be dealt with to
do justice to
the submissions made by the parties, respectively. The
issues for determination are:
(a)
Whether or not these proceedings are
authorised;
(b)
Compliance with Rule 41 of the Uniform
Rules;
(c)
The non-joinder of Qokolweni Traditional
Council;
(d)
Mis-joinder of the fourth respondent;
(e)
The defence of
lis
pendens
;
(f)
Whether
or not the applicants have the locus standi to institute these
proceedings,
if so;
(g)
Whether or not the second applicant was
identified as successor by the first applicant in 2008;
(h)
The constitutional validity of the
appointment letter for the third respondent;
(i)
Whether or not the applicants are entitled
to any relief; and
(j)
The appropriate costs order.
[9]
At the hearing of the application, this
Court ruled that the matter should be argued in its entirety with
each party afforded full
argument of his case.
Background facts
[10]
Zimbane
is made up of approximately 23 localities. It falls under the
jurisdiction of Qokolweni Traditional Council. Qokolweni
Traditional
Council
[6]
is a council of a traditional community established under Section 2
of the Framework Act. The senior traditional leader of Qokolweni
traditional community is Acting Senior Traditional Leader/Inkosi D.N.
Sangoni. The Zimbane headmanship falls under the senior traditional
leader/Inkosi Sangoni. The royal family for the traditional community
is Sangoni Royal Family (fourth respondent).
[11]
Mzimtsha Maxwele was the headman of
Zimbane until his untimely death in 2008. Subsequent to his
death, his wife, Mrs Nomthandazo
Gloria Maxwele was appointed as a
regent headwoman, subject to the periodical review of three years by
the Premier. She was appointed
on 1 May 2008. The period of
three years expired on 1 May 2011.
[12]
The fourth respondent recommended to the
second respondent that Mrs Maxwele’s appointment as regent be
terminated based on
the expiry of the appointment. The second
respondent did not immediately decide on such a recommendation of the
fourth respondent.
This was despite the expiry of the term of
appointment.
[13]
On 26 January 2017, the second respondent
issued two separate letters. These letters were addressed to
Mrs Maxwele and Acting
Inkosi/Senior Traditional Leader D.N.
Sangoni. The letters advised of the expiry period for Mrs
Maxwele as a regent.
[14]
On 18 August 2018, a letter was addressed
to Mrs Maxwele by the Head of the Department for Traditional Affairs.
The relevant excerpts
from the letter read:
“
2.
You have been recognized as the regent inkosana/headman of Zimbane
Administrative Area
since May 2008.
3.
In terms of the section 26 of the Traditional Leadership and
Governance Act No.1
of 2017, the Premier (now MEC as delegated by the
Premier) (
sic
) must review your acting capacity once in every
three years. Your regency/acting capacity is now long overdue
for reviewal.
4.
The department has received the royal family resolution reviewing
your acting
capacity and you are now given an opportunity to make
representations in this within fourteen (14) days of receipt of this
letter,
stating reasons, if any, why your regency must not be
reviewed.
5.
The MEC will consider your representations and take a decision in
this matter
and convey same to yourself and the royal family.”
[15]
On 8 January 2019, another letter was
addressed to Mrs Maxwele by the then MEC responsible for Cooperative
Governance and Traditional
Affairs, F.D. Xasa and the relevant
excerpt read:
“
1.
Kindly be advised that the Department requested you to make
representations on the
15 August 2018 after receiving royal family
resolution reviewing your acting capacity as regent/acting headwoman
of Zimbane Administrative
Area under Qokolweni Traditional Council.
2.
It has to be mentioned that you were given the period of 14 days to
respond as
to why the decision of the royal family may not be made
final and unfortunately no response has been received.
3.
Therefore, in the absence of representations received within the
specified period
of time, the Department is left with no option but
to implement the decision of the royal family to terminate your
services as
regent/acting headwoman of Zimbane Administrative Area
under Qokolweni Traditional Council within thirty (30) days from the
date
of receipt of this correspondent.
4.
You are hereby requested to vacate the office as regent/acting
headwoman of Zimbane
Administrative Area under Qokolweni Traditional
Council.”
[16]
The review of Mrs Maxwele’s regent
position appears to have been triggered by the letters received from
the fourth respondent
(Sangoni Royal Family).
[17]
Eventually, Mrs Maxwele was removed as a
regent in 2020. The removal of Mrs Maxwele rendered the
position of headmanship in
Zimbane vacant. On the occasion of this
vacancy, the second respondent requested the identification of the
successor by the fourth
respondent.
[18]
The fourth respondent allegedly after
consulting the community of Zimbane, identified the third respondent
as a suitable person
to act as a Headman of Zimbane. The fourth
respondent submitted a resolution on the identification of the third
respondent
to the second respondent with a request that the third
respondent should be appointed as acting headman. The second
respondent
appointed the third respondent effective from 12 June 2020
as acting headman for Zimbane.
[19]
The confirmation of the third respondent’s
appointment is contained in a letter dated 20 August 2020. The letter
is
ex facie
not
countersigned by the Premier of the Eastern Cape (first respondent)
but only signed by the second respondent.
The facts stated below are in
dispute between the parties
[20]
That the second applicant was identified by
the first applicant to succeed his late father during 2008. That a
resolution in this
regard was submitted to the first and second
respondents.
[21]
The parties submitted contrary versions of
the custom and tradition on the identification of a headman in
Zimbane, it is not clear
whether it is hereditary or is by way of
elections.
[22]
Notwithstanding
the existence of the above factual disputes, the parties urge this
Court to resolve any factual disputes in terms
of the rule
articulated in
Plascon
Evans
Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[7]
.
That is the approach I adopt in dealing with disputed facts.
Legislative Framework
[23]
It is apposite to start by setting out the
statutory framework within which the issues will be discussed and
determined, Section
211 of the Constitution provides for the
recognition of traditional leadership as follows:
“
(1)
The institution, status and role of traditional leadership, according
to customary law are recognized
subject to the Constitution.
(2)
A traditional authority that observes a system of customary law may
function subject
to any applicable legislation and customs, which
includes amendment to or repeal of that legislation or those customs.
Section
212 reads as follows:
(1)
National
legislation may provide for a role for traditional leadership as an
institution at local level on matters affecting local
communities.
(2)
To
deal with matters relating to traditional leadership, the role of
traditional leaders, customary law and the customs of communities
observing a system of customary law-
(a)
national or provincial legislation may provide for the establishment
of houses of
traditional leaders, and
(b)
national legislation may establish a council of traditional leader.”
[24]
The
Framework Amendment Act
[8]
is
the national legislation. The Eastern Cape Act
[9]
is the provincial legislation. The two acts provide for the
recognition, functions, and role of traditional leaders. They also
provide for the establishment of traditional institutions.
[25]
The two acts are complementary. They
contain similar definition clauses and in many instances do
cross-reference with each other.
[26]
Section
8 of the Framework Act deals with traditional leadership
positions
[10]
.
It only recognises four positions of traditional leadership. The
Framework Act also provides for the recognition of traditional
communities
[11]
.
A community may be recognised as a traditional community if it is
subject to a system of traditional leadership in terms of that
community’s customs and observes a system of customary law. The
Premier of the province does the recognition of traditional
communities at provincial level. The Premier may, by notice in the
provincial Gazette, in accordance with provincial legislation
and
after consultation with the provincial house of traditional leaders
in the province, the community, and, if applicable, the
monarch under
whose authority that community fall, recognise a community as a
traditional community. Once the Premier has recognised
a traditional
community, that traditional community must establish a traditional
council with no more than 30 members
[12]
.
The traditional council has various statutory functions, including
administering the affairs of the traditional community in accordance
with customs and traditions; facilitating the involvement of the
traditional community in the development or amendment of the
integrated development plan of a municipality in whose area that
community resides; participating in the development of policy,
legislation and development programs at the local level; and
performing the functions conferred by customary law, customs and
statutory law consistent with the constitution
[13]
.
[27]
These proceedings concern the appointment
of an acting headman in terms of section 26 of the Eastern Cape Act.
Section 14 of the
Framework Act also deals with the acting
appointment of traditional leaders.
[28]
Section 1 of the Framework Act defines the
traditional leadership positions and the relevant definitions are:
“
traditional
leader”
means
any person who, in terms of customary law of the traditional
community concerned, holds a traditional leadership position,
and is
recognised in terms of this act;
“
traditional
leadership”
means
the customary institutions or structures, or customary systems or
procedures of governance, recognised, utilised or practiced
by
traditional communities
“
headmanship
”
means the
position held by a headman or headwoman.
“
headman
or headwoman”
means
a traditional leader, who-
(a)
is
under the authority of, or exercise authority within the area of
jurisdiction of, a senior traditional leader in accordance with
the
customary law; and
(b)
is
recognized as such in terms of this Act;
“
senior
traditional leader”
means
a traditional leader of a specific traditional community who
exercises authority over a number of headmen or headwoman in
accordance with customary law, or within whose area of jurisdiction a
number of headmen or headwomen exercise authority.”
[29]
The
jurisdiction of a headman is limited to an administrative area and he
or she is subject to the authority of the senior traditional
leader.
It is a senior traditional leader who presides over the traditional
community. According to the Framework Act in
Section 1
[14]
.
[30]
The
royal family is the fabric of traditional leadership. It is
responsible for the identification of traditional leaders. The royal
family must identify the king or queen, principal traditional leader,
senior traditional leader and headman or headwoman before
the
relevant government functionary can appoint them. Both the Framework
Act and Eastern Cape Act deal with the recognition of
traditional
leaders and their removals. The royal family must do the
identification
[15]
in terms of custom and tradition and must identify a suitable person
for the position.
Interpretative approach
[31]
In
Cool
Ideas 1186CC v Hubbard
[16]
it was held:
“
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle; namely;
(a)
that statutory provisions should always be
interpreted purposively;
(b)
the relevant statutory provision must be
properly contextualised; and
(c)
all statues must be construed consistently
with the Constitution”.
Where
a word is defined in a statute, the meaning assigned to it by the
Legislature must prevail over its ordinary meaning
[17]
.
The interpretation of the definition of a royal family is what will
determine the question of whether the first applicant is a
royal
family or not.
[32]
The Premier is obliged to consider and
implement resolutions received from a royal family unless he invokes
the subsections dealing
with the allegations of customary
contraventions during the identification process. A royal
family performs statutory functions.
It is a recognised customary
institution and is entrenched in the statute.
[33]
Before the advent of democracy colonial
institutions and successive governments were hell bent on destroying
the institution of
traditional leadership by a combination of
co-opting pliant traditional leaders and harassing resistant ones.
The colonial
regime almost succeeded in its mission to fed the
institution. The present democratic state seeks to preserve and
protect
the institution of traditional leadership as clearly
demonstrated by the provisions of section 211 and 212 of the
Constitution.
The Royal family is now firmly entrenched in the
statute.
[34]
A royal family serves as a primary source
of knowledge on the prevailing customary law and customs on the
succession of traditional
leadership. These are all legislative
functions for a royal family when identifying a suitable person as a
traditional leader or
acting traditional leader. The royal family is
also responsible for the removal of traditional leaders because they
must initiate
that process before the administrative action of the
premier or other relevant government functionary.
[35]
There is an obligation to ensure that an
entity performing or purporting to perform functions of a royal
family, must be a legitimate
structure and not a bogus one. The
definition of a royal family is important in this regard. The
ultimate objective is to ensure
that traditional leaders are
identified by legitimate royal families, not bogus structures. That
is in line with the dignity, importance,
and respect for the
institution of traditional leadership. In the definition of a royal
family, some important other composite
words which are separately
defined in section 1 are incorporated. This aspect is delved into
details when dealing with the
locus
standi
of the applicants.
[36]
By now, it must be axiomatic that the main
legal contest between the parties has narrowed down to a crisp but
profound question
of whether the first applicant is indeed a royal
family as defined in the Act.
[37]
However, I must first deal with the
procedural objections raised by the respondents, which are dilatory.
Whether or not these proceedings
are authorised
[38]
The first and second respondents served a
notice in terms of Rule 7. The notice states:
“
The
first and second respondents request the deponent, Ntombekhaya D
Maxwele, to provide them with the following documentary proof,
within
ten (10) days of service hereof:
(a)
Copies of the resolutions with minutes and
attendance registers, taken by the first applicant, if any,
authorising the deponent,
Ntombekhaya D Maxwele to depose into a
founding affidavit and to institute this application.”
[39]
The third respondent made a similar request
in his rule 7 notice issued on 14 September 2020 where it is stated:
“
The
third respondent requires Ntombekhaya D Maxwele to prove that she is
authorised to act on behalf of the applicants and to depose
to the
founding affidavit filed of record.”
[40]
The fourth respondent filed no notice but
made this allegation in the answering affidavit:
“
[Para
19.1] It is trite that when the provisions of Rule 7(1)
of the Rules are triggered, as is the case in these proceedings,
the
matter is adjourned in order to enable the affected party to satisfy
the court that he has the authority to act. To date, the
applicants
have not delivered their anticipated reply to the aforesaid Rule 7
notices. The fourth respondent aligns itself with
this point.”
[41]
In reply to the aforesaid notices on 18
September 2020, the applicants’ attorneys filed an extract of
the first applicant’s
meeting held on 26 February 2019, which
reads:
“
It was
resolved that, should need arise, Ntombekhaya D Maxwele, the
chairperson, or Mawethu L Maxwele, are authorised to approach
courts
of this country to enforce this decision and other decisions relating
to headmanship of Maxwele Royal Family. They shall
keep the royal
family informed of any developments in any case they have
instituted.”
[42]
On 21 September 2020, the first and second
respondents delivered their answering affidavit. The third respondent
delivered his answering
affidavit on 16 September 2020. On 22
September 2020, the matter served in Motion Court where it was
further postponed. On 20 October
2020, the applicants delivered their
replying affidavit to the affidavits of the first to the third
respondents. There is no challenge
to the authority of the
applicants’ attorneys.
[43]
Rule 7(1) provides:
“
Subject
to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless
he satisfied the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.”
[44]
The
practical effect of Rule 7 is that when an attorney is instructed to
act for a client, the power of attorney given by the client
to the
attorney is wide enough to include the power to obtain from a
suitable person an affidavit necessary to the proceedings
in which
that attorney is authorised to act. In
Ganes
and another v Telecom Namibia
Ltd
[18]
:
“
The
deponent to an affidavit in motion proceedings need not be authorised
by the party concerned to depose to the affidavit. It
is the
institution of the proceedings and the prosecution thereof which must
be authorised. . . It must, therefore, be accepted
that the
institution of the proceedings was duly authorised. In any event,
Rule 7 provides a procedure to be followed by a respondent
who wishes
to challenge the authority of an attorney who instituted motion
proceedings on behalf of an applicant.”
[45]
In
Eskom
v Soweto City Council
[19]
:
“
If
Attorney Bennett has authority to act on respondent's behalf, he may
use any witness who in his opinion advances respondent's
application.
A witness, also when a deponent, may testify even if he has no
authority to bring, withdraw or otherwise deal with
the application
itself.
Barclays National Bank Ltd v
Love
1975 (2) SA 514
(D) at 515C-E and
515F-G.”
[46]
Mr Sintwa, counsel for the third respondent
correctly conceded that absent the challenge for the authority of
attorneys A.S. Zono,
Rule 7 cannot stand. The concession was well
made.
[47]
The fourth respondent did not file a Rule 7
notice and therefore, the submissions by Mr Sishuba were based on
notices of other parties.
The first and second respondents
never challenged the authority of A.S. Zono Attorneys, instead, they
were content with the authority
of Mrs Maxwele. There is no merit in
their submissions. I reject all those submissions concerning
rule 7 and authority.
[48]
It, follows, that attorneys A.S. Zono has
the authority to act on behalf of the applicants, and can use anyone
to depose to the
affidavits in the application they have instituted.
Compliance with Rule 41 of the
Uniform Rules
[49]
Rule 41A has recently been introduced in
the Uniform Rules of Court. The new Rule requires that every new
action or application
must be accompanied by a notice, which must be
delivered by a plaintiff or applicant with the summons or notice of
motion and by
a defendant or respondent with a plea or answering
affidavit, indicating whether the party agree to or opposes referral
to mediation.
This rule is about mediation.
[50]
The purpose of Rule 41A is to compel
parties to announce their positions at an early stage of proceedings
with regard to mediation.
The obvious intention is to avoid the
taking of risk of adverse court orders at the end of the trial. The
parties are not compelled
to mediation.
[51]
Rule 41A is not a procedural requirement
for application proceedings or action proceedings. It is only
relevant at the end of the
trial in instances where it turns out that
the matter ought to have been referred to mediation. None of
the parties in these
proceedings have expressed a desire for
mediation or made any concession on the merits of the application.
[52]
Both Mr Sishuba and Mr Mpiti strenuously
argued about non-compliance with Rule 41A on the basis that the
applicants failed to issue
the relevant notices. Rule 41A
notices are “without prejudice” and need not be filed
with the registrar. This
application is properly before this Court.
Mr Sintwa did not align himself with the Rule 41A challenge. There is
no merit in the
submissions of both Mr Sishuba and Mr Mpiti.
Therefore, I reject their submissions in this regard.
The non-joinder of Qokolweni
Traditional Council
[53]
The respondents submitted that there is a
non-joinder of Qokolweni Traditional Council.
[54]
The first, second, and fourth respondents
sought to persuade this Court that the council has an interest in the
outcome of the proceedings.
However, they had difficulties in
explaining the nature of the council’s interest, whether it is
a legal interest or interest
of convenience, or necessity.
[55]
In
Bowring
NO v Vrededorp Properties CC and Another
[20]
it was held:
“
Though
the Trust may well be right in its analysis of the effect of
Vrededorp's claim, the enquiry relating to non-joinder remains
one of
substance rather than the form of the claim. (See eg Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 657.)
The substantial test is whether the party that is alleged to be a
necessary party for purposes of joinder has a legal
interest in the
subject-matter of the litigation, which may be affected prejudicially
by the judgment of the Court in the proceedings
concerned (see eg
Aquatur (Pty) Ltd v Sacks and Others1989 (1) SA 56 (A) at 62A - F;
Transvaal Agricultural Union v Minister of
Agriculture and Land
Affairs and Others
2005 (4) SA 212
(SCA) paras [64] - [66]).”
[56]
In
Judicial
Service Commission and Another v Cape Bar Council and Another
[21]
Mpati P said:
“
It has
by now become settled law that the joinder of a party is only
required as a matter of necessity – as opposed to a matter
of
convenience – if that party has a direct and substantial
interest which may be affected prejudicially by the judgment
of the
court in the proceedings concerned (see eg Bowring NO v Vrededorp
Properties CC
2007 (5) SA 391
(SCA) para 21). The mere fact that a
party may have an interest in the outcome of the litigation does not
warrant a non-joinder
plea. The right of a party to validly raise the
objection that other parties should have been joined to the
proceedings, has thus
been held to be a limited one (see eg Burger v
Rand Water Board 2007 (1) SA 30 (SCA) para 7; Andries Charl Cilliers,
Cheryl Loots
and Hendrik Christoffel Nel Herbstein & Van Winsen
The Civil Practice of the High Courts of South Africa 5 ed vol 1 at
239
and the cases there cited).”
[57]
What
is required in proceedings such as these, is that a party must have a
legal interest that may be prejudicially affected in
the absence of
the party seeking to be joined. See also
Zamukulunga
Gogela v Masixole Gebengu in re: Masixole Gebengu v Minister of
Safety & Security and Another
[22]
,
Schoeman J at [5]
“
An
applicant for intervention must satisfy the Court that he has a
direct and substantial interest in the subject matter of litigation,
which could be prejudiced by the judgment of the Court [
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953
(2) SA 151
(O) at 167;
Auatur (Pty) Ltd
v Sacks and Others
1989 (1) SA 56
(A)
AT 62c]”.
This case dealt with intervening
parties but the principle is the same.
[58]
The
Framework Act deals with the functions of the traditional council and
the Eastern Cape Act
[23]
.
None of those functions involve the identification and appointment of
a headman.
[59]
The traditional council has no legal right
over the appointment of a headman or his removal. The subject matter
in this litigation
is the appointment of an acting headman. In terms
of section 14 of the Framework Act and section 26 of the Eastern Cape
Act, it
is the royal family, the Premier, and the Department of
Traditional Affairs who are involved. The objection based on
non-joinder
is non-meritorious and cannot succeed.
Mis-joinder of the fourth
respondent
[60]
Mr Sishuba submitted that the fourth
respondent is not a juristic nor an entity that can be sued in terms
of both the legislation
and common law. He proceeded to submit that
it is an
ad hoc
structure for purposes of identifying a traditional leader. He
further submitted that once a royal family performs its functions
in
respect of identification, it ceases to exist. These submissions must
be rejected. A royal family has an interest in the proceedings.
[61]
It
is a statutory body that has legislative functions relating to
customary law, which it has performed. A royal family can sue
and be
sued in terms of Rule 14 of the Uniform Rules
[24]
.
The purpose of rule 14 is to simplify the method of citation by
enabling,
inter
alia
,
an aggregate of persons to be sued in the name which is descriptive
of it.
The defence of
lis pendens
[62]
The
respondents submitted that there is pending litigation between the
parties, which is substantially similar to the current proceedings
before this Court. In view thereof, the respondents raised a defence
based on
lis
pendens.
This
Court was not furnished with the details of the alleged pending
proceedings involving the current parties. The applicants also
denied
the allegations about the aforesaid pending proceedings. This Court
had no evidence about any other similar proceedings.
It is trite law
that in order for
lis
pendens
to succeed, these requirements must be met
[25]
:
(i)
there must be a pending litigation;
(ii)
between the same parties;
(iii)
it must be based on the same action; and
(iv)
in respect of the same subject matter.
[63]
In the absence of facts, this Court is
unable to deal with the factual analysis of those matters. The
defence of
lis pendens
is not properly raised and accordingly, is rejected.
Whether or not the applicants
have the
locus standi
to institute these proceedings
[64]
The respondents dispute that the first
applicant is a royal family. Their submission is that the first
applicant is not a royal
family, and cannot identify the person(s) as
headmen or acting headmen. Section 26 of the Eastern Cape Act
requires a royal family
to identify a suitable person to act as a
headman or headwoman. It is time to refer to the wording of section
26:
26
Person acting as king or queen, principal traditional leader, senior
traditional leader or headman or headwoman
(1)
The
royal family must identify a suitable person in terms of customary
law and customs to act as a traditional leader where –
(a)
a
successor to the position of a traditional leader has not been
identified by the royal family concerned;
(b)
the
identification of a successor to the position of king or queen,
principal traditional leader, senior traditional leader and
headman
or headwoman is being considered or not yet resolved; and
(c)
…
(2)
The
Premier must, where the royal family has informed him or her of –
(a)
the
particulars of the person so identified to act as a king or queen,
principal traditional leader, senior traditional leader or
headman or
headwoman; and the reason for identification of that person, by
notice in the government provincial gazette, recognise
an acting king
or queen, principal traditional leader, senior traditional leader or
headman or headwoman.
(b)
…
[65]
Mr Sishuba, counsel for the fourth
respondent meticulously submitted that an administrative area does
not qualify for any royal
family in terms of the above legislation.
He contended that headmanship is only in respect of an administrative
area and therefore
does not qualify to have a royal family. The
senior traditional leader is a leader of the traditional community
and he exercises
authority over a number of headmen or headwomen in
accordance with customary law, or within whose area of jurisdiction a
number
of headmen or headwomen exercise authority. It is the royal
family of a senior traditional leader that deals with the traditional
leadership including that of the headman.
[66]
I must refer to the definition of a royal
family which reads as follows in the Act:
‘
royal
family’
means the core customary
institution or structure consisting of immediate relatives of the
ruling family within a traditional community
who have been identified
in terms of custom, and includes, where applicable, other family
members who are close relatives of the
ruling family.
[67]
Flowing from the definition of a royal
family, it must be accepted that the requirements for a valid or
properly constituted royal
family are:
(i)
it must consist of immediate relatives of a
ruling family;
(ii)
within a traditional community;
(iii)
who have been identified in terms of
custom, and includes, where applicable; and
(iv)
other family members who are close
relatives of the ruling family.
(v)
It is the core customary institution or
structure.
[68]
It is settled by the Act that not all
persons of royal lineage qualifies for the royal family. It must
consist of those members
who are immediate relatives to the ruling
family and they must be identified according to custom. The members
from other families
only qualify to the extent that they are close
relatives to the ruling family. The ruling family and proximity to it
are what qualifies
a person to the royal family.
[69]
The parties in these proceedings are not
contesting membership or qualification to a royal family, in which
event, I would have
been required to interpret the meaning of the
word “family” in the definition. The family is not an
issue. Mr Zono
who appeared for the applicants submitted that the
first applicant is a royal family. The respondents are
disputing that
assertion on the basis that Zimbane is an
administrative area and thus not even qualified to have a royal
family. The central submission
being that only a traditional
community qualifies to have a royal family.
[70]
In
terms of the definition, one of the requirements for a royal family
is that it must be ruling within a traditional community.
A
traditional community means a traditional community recognised as
such in terms of section 2 of the Framework Act
[26]
.
[71]
The
Eastern Cape Act in its definition of a traditional community it
refers to the definition provided by the Framework Act.
Section
2 of the Framework Act deals with the recognition of traditional
communities
[27]
.
The first applicant submitted that it is ruling within an
administrative area.
[72]
The point is emphasised in the founding
affidavit when the deponent makes these allegations:
“
The
first applicant is Maxwele Royal family which is a core customary
institution or structure established in terms of the provincial
legislation governing Traditional leadership consisting of immediate
relatives of the ruling family and other family members who
are close
relatives of the ruling family. The first applicant exercises
its powers in terms of Act 41 of 2017, which is the
provincial
legislation and Act 41 of 2003 which is the National Legislation.
…. The first applicant enjoys hegemony
over 23 rural
communities which constitute Zimbane Administrative Area and it
carries on its business at Maxwele Great Place, Khwenxurha
Location,
Zimbane”
[73]
Based on the above assertions, it is
self-evident that the first applicant is not ruling within a
traditional community and by its
own admission, it is ruling within
an administrative area. The Eastern Cape Act defines an
administrative area below:
“
administrative
area”
means an area of
jurisdiction under the authority of headmanship or headwomanship and
within the jurisdictional area of a senior
traditional leader in
accordance with customary law.
[74]
‘
Headmanship/headwomanship’
means the position held by a headman or a headwoman.
‘Headman/headwoman’ means a traditional
leader who-
(a)
is under the authority of, or exercises
authority within the area of jurisdiction of, a senior traditional
leader in accordance
with customary law; and
(b)
is recognized as such in terms of this Act.
[75]
In
Bulelwa
Ndamase v Vusumzi Ndamase and Others
[28]
Majiki J held:
“
the
applicant has not stated how and when her homestead’s royal
family was established. She has not stated that its establishment
was
communicated to the senior royal house, let alone receiving the
senior royal house’s blessings.”
These remarks are apposite in
this case.
[76]
Before an entity can claim to be a royal
family all requirements for a valid royal family must be established
and an administrative
area seeking for a royal family must comply
with section 2 of the Framework Act. The first applicant failed to
place evidence before
Court that it had complied with the provisions
of section 2 of the Framework Act. In my view, headmanship does
not qualify
for the royal family. It is irrelevant that the
headmanship is hereditary. A headman is subject to the royal family
of the senior
traditional leader as the administrative area is not
the traditional community. The position only changes once the
administrative
area has complied with section 2 of the Framework Act.
This means that once it has been recognised as a traditional
community.
The first applicant does not meet the requirements of a
valid royal family. It is not ruling within a traditional community.
[77]
The legal right of the second applicant was
derived from the alleged resolution of the first applicant. The
second applicant did
not allege to be acting in his own right. His
right was derived from the invalid resolutions of a non-existing
entity. The second
applicant has no
locus
standi
too. I conclude that the first
applicant is not a royal family and thus has no
locus
standi
to institute these proceedings
for the relief sought in the Notice of Motion.
Whether or not the second
applicant was identified as a successor by the first applicant in
2008.
[78]
Whilst I need not address the outstanding
issues falling for determination, I do address the shortcomings of
the application to
demonstrate that it cannot succeed even on
merits.
[79]
The application is facing insurmountable
problems in this review proceeding. The applicants have failed to
place before Court their
alleged resolution of 2008 in terms of which
the first applicant had allegedly identified the second applicant.
The existence of
the alleged resolution is seriously disputed by the
respondents. There is unassailable evidence that Zimbane headmanship
is identified
by way of public elections. The records of the Chief
Magistrate as early as 1949 is uncontested in this regard. The third
respondent
disputed with evidence the allegations by the applicants
that the headmanship of Zimbane is hereditary. He pointed out that
the
Sangoni royal family is responsible for the identification of the
headman/headwoman for Zimbane. This overwhelming evidence has
not
been controverted by any form of acceptable evidence. In the absence
of contrary evidence, I must accept the official records
of 1949 and
the allegations of the third respondent.
[80]
An application is defective if it fails to
set out the grounds and the facts and the circumstances upon which
the applicant relies.
The right to require the record of the
proceedings is primarily intended to operate for the benefit of the
applicant. The purpose
of rule 53 is to provide an aggrieved
applicant, who might not necessarily have all the evidence at his
disposal, the opportunity
to supplement the case in the review
application by providing potential evidence in the full record of the
review proceedings.
It is the duty of the applicant to select what is
relevant from the record to serve as evidence for the review
application.
[81]
In
this case, the applicants launched the application in terms of Rule
53. For inexplicable reasons, they did not pursue the provisions
of
Rule 53 for the records. The onus was upon the
applicants to bring evidence before Court in support of their
relief. They failed to do so. In
Saccawu
and Others v President, Industrial Tribunal, and Another
[29]
Melunsky
AJA stated:
“
an
applicant who does not furnish the record to the court runs the risk
of not discharging the onus, especially where the allegations
upon
which it relies are put in issue…. without recourse to the
record of proceedings the disputes cannot be resolved on
the
affidavits. The result is that the appellants’ generalized
allegations of bias have not been established”.
[82]
The correspondences between the second
respondent and the Sangoni Royal Family confirm the allegations of
the respondents that it
is the Sangoni Royal Family which is
responsible to identify the headman for Zimbane. I am persuaded by
the submissions of the
respondents. It would have been an absurdity
that a headman has a royal family outside the senior traditional
leader or at least
outside the traditional community or without the
knowledge of senior traditional leader or permission from the royal
family of
the senior traditional leader.
Conclusion
[83]
The conclusions on the two issues above
render it unnecessary to deal with the constitutional issue that the
Court has raised. The
lack of
locus
standi
of the applicants on its own
brings the application to an end and it must fail. The applicants are
not entitled to any relief. It
follows therefore that the appointment
of the third respondent is not validly challenged.
Costs
[84]
The general rule is that costs should
follow the results. I have not been persuaded differently. The
respondents submitted that
the deponent to the founding affidavit
should pay the costs in her personal capacity. She purported to
represent a non-existent
customary structure. The submission is sound
and I agree.
Order
[85]
In the result the following order shall
issue:
1.
The application is dismissed;
2.
The deponent to the founding affidavit, Ntombekaya D Maxwele, jointly
and severally
with the second applicant are ordered to pay costs of
the application on a party and party scale.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Attorney for the applicants
:
A.S.
Zono
Attorneys for the
applicants
A.S. Zono & Associates
Suite 153-1
st
Floor
ECDC Building
MTHATHA
Ref:
SZ/ZM/M. 2074
Counsel for the first and second
respondents
:
L. X.
Mpiti
Attorneys for the first and
second respondents :
State Attorney
No.94 Sissons
Street
Fortgale
MTHATHA
Ref:
980/20-80H
Counsel
for the third respondent
: S.
Sintwa
Attorneys for the third
respondent
: Chris
Bodlani Attorneys
28 Madeira
Street
MTHATHA
Counsel for the fourth
respondent
: M.H.
Sishuba
Attorneys for the fourth
respondent
: Potelwa
&Co.
43 Wesley
Street
MTHATHA
Ref:
AAP/sp/HC
[1]
Rule 53 of the Uniiform Rules of the High Court Save where any law
otherwise provides, all proceedings to bring under review
the
decision or proceedings of any inferior court and of any tribunal,
board or officer performing judicial, quasi-judicial or
administrative functions shall be by way of notice of motion
directed and delivered by the party seeking to review such decision
or proceedings to the magistrate, presiding officer or chairman of
the court, tribunal or board or to the officer, as the case
may be,
and to all other parties affected-
(a)
calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside,
and
(b)
calling upon the magistrate, presiding officer, chairman or officer,
as the case may be, to despatch, within fifteen days
after receipt
of the notice of motion, to the registrar the record of such
proceedings sought to be corrected or set aside, together
with such
reasons as he is by law required or desires to give or make, and to
notify the applicant that he has done so.
[2]
“
Administrative
Area”
means
an area of jurisdiction under the authority of headmanship or
headwomanship and within the jurisdictional area of a senior
traditional leader in accordance with customary law.
[3]
The
Traditional Leadership and Governance Framework Act No.41 of 2003
(as amended)
[4]
Eastern
Cape and Traditional Leadership and Governance Act 2017, Act No.1of
2017
[5]
Constitution
of the Republic of South Africa, 1996
[6]
A
council established in terms of section 3 of the Framework Act which
must be read together with section 3 of the Eastern Cape
Act
[7]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) AT 634E-635C;
The
Premier of the Eastern Cape & Others v Penrose Ntamo
(149/14) [
2015]
\AECBHC 14;
2015 (6) SA 400
(ECB);
[2015] 4 All SA 107
(ECB)
by
Plasket J as he then was
[8]
supra
[9]
supra
[10]
Recognition
of traditional leadership positions
The following
leadership positions within the institution of traditional
leadership are recognised—
(a) Kingship or
queenship;
(aA) principal
traditional leadership;
(b) senior
traditional leadership; and
(c) headmanship
[11]
Section
2 of the Framework Act (supra)
[12]
Section
3 of the Framework Act (supra)
[13]
Section
4 of the Framework Act (supra)
[14]
‘traditional community’ means a traditional community
recognised as such in terms of Section 2; In the Eastern Cape
Act,
Section 1 ‘traditional community’ means a traditional
community recognised as such in terms of section 2 of
the Framework
Act.
[15]
Tshevulana
Royal Family v Nditsheni Norman NEtshivulana
[2016] ZACC 47
; Mphephu
v Mphephu-Ramabulana and others (948/17)
[2019] ZASCA 58
(12 April
2019)
[16]
[2014]
ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC);
Minister
of Co-operative Governance and Traditional Affairs v Sigcau
2016 (3) All SA 588
at 611
[17]
Minister
of Defence and Military Veterans v Thomas
[2015]
ZACC 26
;
2016 (1) SA 103
(CC);
2015 (10) BCLR 1172
(CC) at para 20;
Tshivhulana
Royal Family v Nditsheni Norman Netshivhulana
[2016] ZACC 47
at para 30
[18]
Ganes and another v
Telecom Namibia Ltd
(608/2002)
[2003] ZASCA 123
;
2004 (3) SA 615
(SCA);
[2004] 2 All SA
609
(SCA) at 624
[19]
Eskom v Soweto City
Council
[1992] 4 All
SA 915
(W);
1992 (2) SA 703
(W) at 706A-B
[20]
2007
(5) SA 391
at para [21]
[21]
(818/2011)
[2012] ZASCA 115
;
2012 (11) BCLR 1239
(SCA);
[2013]
1 All SA 40
(SCA) at para 12
[22]
Unreported
Eastern Cape Judgment by Schoeman J delivered on 11 December 2005
[Mthatha High Court]
[23]
Section 4 of the Framework Act read together with section 8 of the
Eastern Cape Legislation Act
[24]
DF
Scott (EP) (Pty)Ltd v Golden Valley Supermarket (134/2001)
[2002]
ZASCA 48
;
[2002] 3 All SA 1
(A);
2002 (6) SA 297
(SCA) at 301H-I;
Erasmus Superior Court Practice, second Edition by Van Loggerenberg
Volume 2, notes under Rule 14 Service, 2015
D1-149 up to D1-153
[25]
George
v Minister of Environmental Affairs and Tourism
2005
(6) SA 297
at para 28. See also Caesarstone Sdot-Yam v World
Marble and Granite 2000 and othes 2013 (6) SA 499
[26]
Section
2 (supra)
[27]
Recognition
of traditional communities
(1) A community may
be recognised as a traditional community if it—
(a)
is subject to a system of traditional leadership in terms of that
community’s customs; and
(b)
observes a system of customary law.
(2)
(a)
The Premier of a province may, by notice in the
Provincial
Gazette
, in accordance with provincial legislation and after
consultation with the provincial house of traditional leaders in the
province,
the community concerned, and, if applicable, the king or
queen under whose authority that community would fall, recognise a
community
envisaged in subsection (1) as a traditional community.
(b)
Provincial legislation referred to in paragraph (a) must—
(i)
provide for a process that will allow for reasonably adequate
consultation with the community concerned; and
(ii)
prescribe a fixed period within which the Premier of the province
concerned must reach a decision regarding the recognition
of a
community envisaged in subsection (1) as a traditional community.
(3)
A traditional community must transform and adapt customary law and
customs relevant to the application of this Act so as to
comply with
the relevant principles contained in the Bill of Rights in the
Constitution, in particular by—
(a)
preventing unfair discrimination;
(b)
promoting equality; and
(c)
seeking to progressively advance gender representation in the
succession to traditional leadership positions.
[28]
An un
reported judgment of the Eastern Cape, Mthatha High Court, Case NO.
1961/2010 delivered on 23 April 2015 para 33
[29]
[2000] ZASCA 163
;
2001
(2) SA 277
(SCA) at 282 d