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[2021] ZAECMHC 45
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Ranuga and Another v Chairperson of the House of Traditional Leaders, Eastern Cape Province and Others (2737/2020) [2021] ZAECMHC 45 (14 December 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO 2737/2020
In the matter between:
MNONENELI
RANUGA FIRST
APPLICANT
AMAVELELO
ROYAL FAMILY SECOND
APPLICANT
And
THE
CHAIRPERSON OF THE HOUSE OF
TRADITIONAL
LEADERS, EASTERN CAPE
PROVINCE FIRST
RESPONDENT
THE
HOUSE OF TRADITIONAL LEADERS
EASTERN
CAPE PROVINCE SECOND
RESPONDENT
THE
MEC FOR CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL AFFAIRS
EASTERN
CAPE PROVINCE THIRD
RESPONDENT
THE
PREMIER OF THE EASTERN CAPE FOURTH
RESPONDENT
TAMSANQA
SAME FIFTH
RESPONDENT
JUDGMENT
BROOKS
J:
[1] The
first applicant is the senior traditional leader and Chief of
Maqakambeni Traditional Council. He was appointed
to that capacity in
2005 by the AmaVelelo Royal Family, the second applicant herein.
[2] The
second applicant is the royal family responsible for the
chieftainship established in the lineage and line
of the late Chief
Velelo of AmaMpondomise in the right hand house of King Pahlo. It is
constituted by the descendants of Chief
Mgabisa in terms of section 1
of the Traditional Leadership and Governance Framework Act
[1]
.
The second applicant is headed by Regent Chieftainess Nopumlani
Mditshwa and is based at Mdibanisweni Great Place, Tsolo, in the
Eastern Cape Province.
[3] The
first respondent is the Chairperson of the House of Traditional
Leaders in the Eastern Cape Province. The
second respondent is that
House of Traditional Leaders.
[4] The
third respondent is the Member of the Executive Council responsible
for Co-Operative and Local Governance
in the Eastern Cape Province.
He is responsible for traditional affairs within the province.
[5] The
fourth respondent is the Premier of the Eastern Cape Province. The
third and the fourth respondents have
been cited in this application
on the basis that they have a direct and substantial interest
therein.
[6] The
fifth respondent is an adult male headman of the Lujecweni
Administrative Area, one of the four administrative
areas that fall
under the administrative jurisdiction of the first applicant. No
substantive relief is claimed against the fifth
respondent.
[7] The
purpose of the application is to review and set aside as a nullity a
report prepared by the first respondent
that is dated 25 March 2020.
It embodies resolutions taken by the executive committee of the
second respondent on 4 March 2020,
apparently prompted by a claim
made by the fifth respondent that he, and not the first applicant, is
the rightful senior traditional
leader of Maqakambeni Traditional
Council in Tsolo.
[8] In
accordance with established principles and practice, the application
invokes the provisions of rule 53 of
the Uniform Rules of Court (rule
53). Ancillary interdictory relief is also sought by the applicants.
[9] From
the date of its issue to the date of the hearing, the passage of the
application has been characterised
by non-compliance on the part of
the first to the fourth respondents with the provisions of rule 53,
with other provisions of the
Uniform Rules of Court generally and
with the Rules of Practice in the Eastern Cape High Courts. It is
convenient at this point
to set out the manner in which the
application has unfolded, from which that non-compliance becomes
evident, and the manner in
which that non-compliance has influenced
the characteristics demonstrated in the application on the day of the
hearing.
[10] The
application was launched on 25 August 2020. It was served on the
fifth respondent on the same day and
upon the first to the fourth
respondents on 2 September 2020.
[11] In
accordance with the provisions of rule 53, the notice of motion
called upon the first to the fourth respondents
to dispatch within
fifteen days after receipt of the notice of motion, to the registrar
of this court, the full and complete record
of the proceedings behind
the impugned report, including minutes, transcripts of
investigations, discussions of members of the
executive committee of
the second respondent and reasons for the resolutions taken that are
embodied in that report.
[12] In
accordance with the provisions of the Uniform Rules of Court, the
notice of motion also directed that should
any of the respondents
wish to oppose the grant of relief against them, they should notify
the applicants’ attorneys in writing,
within twenty-one days of
the service of the application, of their intention to oppose it.
[13] On
21 September 2020 the fifth respondent gave notice of his intention
to oppose the matter. On 23 September
2020 the fifth respondent
served a second notice. In the body thereof the fifth respondent
called upon the applicants “to
produce the request required in
terms of rule 41A of this Honourable Court." The notice would
appear to have been intended
to prompt the applicants to comply with
rule 41A of the Uniform Rules of Court.
[2]
[14] On
28 September 2020 the applicants issued a notice in terms of rule 30A
of the Uniform Rules of Court. Therein
the applicants complained that
the two notices issued and served by the fifth respondent were
irregular because they had been issued
before the first to the fourth
respondents had filed a complete record with the registrar as
contemplated in the provisions of
rule 53 and as directed in the
notice of motion. The fifth respondent was invited therein to
withdraw the two notices accordingly
and to do so within ten days of
the applicants’ notice being filed.
[15] The
applicants also included in their notice in terms of rule 30A an
injunction calling upon the respondents
to furnish the registrar of
this court with the full record pertaining to the impugned report and
to do so within ten days of the
service of the notice in order to
rectify their failure to comply with the directive in rule 53.
[16] It
is common cause between the parties that on 29 September 2020 the
first to the fourth respondents dispatched
an incomplete record to
the registrar and served a copy thereof on the applicants’
attorney of record.
[17] Neither
of the two notices issued by the fifth respondent was withdrawn. The
applicants were dissatisfied
with the incomplete record filed.
[18] In
the result, on 16 October 2020 the applicants launched an
interlocutory application based upon their notice
in terms of rule
30A. The interlocutory application was opposed by the first to the
fourth respondents and a full set of affidavits
was exchanged
therein. The interlocutory application was not formally opposed by
the fifth respondent and the latter filed no answering
affidavit.
However, it is apparent that he was represented at the hearing of the
interlocutory application and that an argument
made on his behalf was
considered by the court. On 1 June 2021, Mjali J delivered judgment
on the interlocutory application and
issued an order in the following
terms:
14.1
The 1
st
to the 4
th
respondents are ordered to
dispatch the full and complete rule 53 record in accordance with the
applicants’ notice of motion
within 10 days from the date of
this order.
14.2
The application to strike out the 5
th
respondent’s
notice to oppose fails and is dismissed with costs. The application
to strike out the 5th respondent’s
rule 41A notice as an
irregular step succeeds with costs.
14.3
The 1
st
to the 4
th
respondents are to pay costs
of this application jointly and severally the one paying the others
to be absolved. The 5
th
respondent is to pay costs
relating to its filing of a rule 41A notice.
[19] The
first to the fourth respondents did not comply with the order of
Mjali J. On 23 June 2021 the applicant’s
attorney of record
wrote a courtesy letter to the State Attorney, reminding that office
of the obligation arising from the issue
of that order. No response
to the letter was forthcoming.
[20] On
12 August 2021 the applicants’ attorney of record wrote another
letter to the State Attorney. The
letter was also addressed to the
fifth respondent. Therein it was made clear that the applicants were
intent upon pursuing the
relief claimed in the application for
review. It is apparent that only the fifth respondent responded to
the letter, indicating
that he had no record to furnish.
[21] On
18 August 2021 the applicants served and filed a supplementary
affidavit. Therein is recorded a short history
of the application for
review and the interlocutory application. The failure on the part of
the first to the fourth respondents
to comply with the order of Mjali
J is highlighted. So, too, is the prejudice to the applicants caused
by that failure.
[22] Importantly,
the supplementary affidavit also contains a statement that in
pursuing the relief sought the
applicants would not be seeking a
costs order against the fifth respondent. It is re-stated that no
substantive relief is sought
against the fifth respondent, that the
impugned report is that of the first respondent and that the
interdicts are sought against
the second to the fourth respondents
only. The observation is made that in these circumstances the
opposition by the fifth respondent
is “frivolous and
vexatious”. It is stated that “an ill-advised notice to
oppose was filed on his behalf”.
In respect of the fifth
respondent the affidavit concludes by explaining that in not seeking
costs against the fifth respondent
the applicants “take into
account that the fifth respondent did not file any substantive
opposition papers”.
[23] Thereafter,
on 1 September 2021 the applicants made application to the registrar,
as they were entitled to
do, by way of notice, for the allocation of
the matter for hearing as an uncontested opposed application in the
unopposed motion
court.
[24] The
registrar immediately allocated the matter to the unopposed motion
court roll for 14 September 2021.
[25] Somewhat
surprisingly, on 2 September 2021 the fifth respondent served and
filed an answering affidavit. It
is interesting to note that this
answering affidavit deals with the founding affidavits only and was
deposed to on 14 October 2020,
almost a year earlier.
[26] As
an answering affidavit had now been filed by the fifth respondent,
the matter no longer qualified for description
as an uncontested
opposed application and on 14 September 2021 it was removed from the
unopposed motion court roll. The issue of
liability for the resultant
wasted costs was reserved for later determination.
[27] On
15 October 2021 the applicants’ replying affidavit, dealing
with the allegations made in the fifth
respondents answering
affidavit, was filed. On the same day the applicants applied on
notice to the registrar for the allocation
of the matter to an
opposed motion court.
[28] On
21 October 2021 the registrar issued a certificate enrolling the
matter in the opposed motion court for
18 November 2021. On the same
day a notice in terms of rule 15A of the Rules of Practice in the
Eastern Cape High Courts and a
set of heads of argument were filed on
behalf of the applicants.
[29] On
28 October 2021 the first to the fourth respondents filed an indexed
set of documents that was identified
in a covering notice as “the
Respondents’ Complete Record in terms of rule 53”.
[30] On
12 November 2021 a copy of the first to the fourth respondents’
answering affidavit was served on
the applicants’ attorney of
record. The answering affidavit recorded that it was deposed to on 11
November 2021 by Mwelo
Nonkonyana (Nonkonyana). Therein the deponent
states that he is the first respondent.
[31] On
17 November 2021 the first to the fourth respondents filed an
application for condonation for the late
filing of both their
answering affidavit and the complete record required by the
provisions of rule 53. In respect of the application
for condonation,
the founding affidavit is also deposed to by Nonkonyana, who again
states that he is the first respondent.
[32] On
the same day, 17 November 2021, the applicants served and filed a
replying affidavit in opposition to the
application for condonation.
Therein, important allegations are made that required the attention
of the first to the fourth respondents
and, in due course, of this
court.
[33] No
replying affidavit was filed in the application for condonation.
[34] On
18 November 2021 the first to the fourth respondents filed a
substantive application for postponement of
the opposed application
for review. In the notice of motion they sought a postponement
sine
die
and sought an order that the applicants “pay the costs
of this application only in the event of them opposing same”.
This strangely worded prayer was presumably designed to put the
applicants off opposing the application for a postponement. However,
one may read it, what is clear is that it does not make any provision
for the tender of costs inevitably incurred by the applicants
that
would be wasted in the event that the postponement sought by the
first to the fourth respondents, at such a late stage, were
to be
granted.
[35] An
answering affidavit was filed by the applicants in opposition to the
application for a postponement.
[36] After
hearing argument, Tokota J issued the following order:
1. The
application for postponement of the hearing is granted;
2. The
main application, together with the condonation application, if it is
pursued, is postponed
to the opposed motion court for hearing on 2
December 2021;
3. The
respondents shall file their heads of argument on or before Friday
26
th
November 2021;
4. The
respondents shall pay costs of the application for postponement and
the wasted costs for
the hearing on 18 November 2021 on an attorney
and client scale, jointly and severally, the one paying the others to
be absolved.
[37] On
22 November 2021 the applicants filed a replying affidavit dealing
with the allegations made in the first
to the fourth respondents’
answering affidavit.
[38] The
matter came before this court on 2 December 2021. At the commencement
of the hearing, heads of argument
prepared on behalf of the first to
fourth respondents and on behalf of the fifth respondent were handed
up with accompanying applications
for condonation for the
respondents’ failure to file both the sets of heads of argument
on or before 26 November 2021. The
applications for condonation were
not opposed by the applicants and, upon granting condonation the
court received the heads of
argument.
[39] It
is against the background of this convoluted and lengthy history of
the application for review that the
application for condonation for
the late filing of the record and the first to the fourth
respondent’s answering affidavit
falls to be considered.
[40] In
considering whether or not to grant condonation, it is appropriate to
have regard to both the founding
affidavit relied upon by those who
seek condonation and the answering affidavit relied upon by those who
are opposed to the grant
of condonation. The court has a wide
discretion. It is entitled to have regard to the nature of the main
application and the prospects
of success that may or may not accrue
to the parties seeking the indulgence if condonation is granted. In
the process, the court
is entitled to engage with the content of all
the affidavits, both those filed timeously and the one that forms the
subject of
the application for condonation.
[41] In
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Limited
[3]
the Supreme Court of Appeal set out as follows the factors to be
taken into account when considering an application for condonation:
A full, detailed and
accurate account of the causes of the delay and their effect must be
furnished so as to enable the Court to
understand clearly the reasons
and to assess the responsibility. Factors which usually weigh with
this court in considering an
application for condonation include the
degree of non-compliance, the explanation therefor, the importance of
the case, a respondent’s
interest in the finality of the
judgment of the court below, the convenience of this court and the
avoidance of unnecessary delay
in the administration of justice.
[42] The
Constitutional Court, in a recent unanimous judgment by Khampempe J
in
Mphephu
Ramabulana and Another v Mphephu and Others
[4]
at
para [33], remarked as follows:
It is perspicuous that
compliance with this Court’s Rules and timelines is not
optional, and that condonation for any non-compliance
is not at hand
merely for the asking. The question in each case is “whether
the interests of justice permit” that condonation
be granted.
Factors such as the extent and cause of the delay, the reasonableness
of the explanation for the delay, the effect
of the delay on the
administration of justice and other litigants and the prospects of
success on the merits if condonation is
granted, are relevant to
determining what the interests of justice dictate in any given case.
[43] In
assessing the various factors that emerge from the enquiry in this
matter, the following are recorded as
being significant:
[43.1] the
answering affidavit and the record have been filed by the first to
the fourth respondents thirteen months late.
This is an excessively
long period of time for which a good explanation is required. The
founding affidavit concerned does not
contain a good explanation. All
that is therein set out is an inadequate explanation for the delay in
furnishing the applicants
with a complete record of the proceedings
targeted in accordance with the provisions of rule 53. The
explanation is characterised
by broad and sweeping statements that
fail to address pertinently and chronologically the specific
challenges or difficulties that
may have been experienced primarily
by the first and the second respondents, whose official duty it would
have been to compile
and furnish the relevant record. Also absent is
any chronological detail relating to the specific steps taken by
those respondents
in an attempt to expedite the provision of the
record. A paucity of information concerning the process of drafting
the answering
affidavit also leaves the true causes for the delay in
the filing of it open to speculation;
[43.2]
notwithstanding the history of the matter, including the two courtesy
letters written by the applicants’ attorney
of record on the
point, absolutely no attempt is made to explain the apparent contempt
of the order made by Mjali J and to seek
condonation therefor. The
first to the fourth respondents participated fully in the
interlocutory application that gave rise to
the order. Indeed, it was
vigorously opposed by them. It is significant to note that at that
stage, when the interlocutory application
was argued in March 2021,
the opposition by the first to the fourth respondents made no mention
(as they now do) of an inability
to provide the full record. It was
contended in the answering affidavit then filed that indeed they had
provided the full record.
In a contradictory allegation in the same
affidavit it was also stated that, in any event, only part of the
record needed to be
furnished to enable the review of the relevant
decision or ruling. Flowing therefrom, the allegation was made that
the applicants,
if dissatisfied, should have invoked the discovery
process provided for by the provisions of rule 35 of the Uniform
Rules of Court.
It was claimed that it was inappropriate for one or
more of these reasons to have invoked the provisions of rule 30A of
the Uniform
Rules of Court. In an allied approach, the first to the
fourth respondents contended that rule 30A was not available to the
applicants
because there had been a partial compliance with the
obligation to furnish the record, the argument being that the remedy
provided
for in rule 30A is only available to a litigant in
circumstances where there has been complete non-compliance with one
of the Uniform
Rules of Court by the opponent. Lastly, and most
opportunistically of all the allegations made in the answering
affidavit, the
first to the fourth respondents explained their
failure to furnish a full record as being because they were still
waiting for the
applicants to make use of the opportunity afforded
them in sub-rule 53(4) of the Uniform Rules of Court to amplify the
grounds
of review and/or to amend the notice of motion. In advancing
this final argument, the first to the fourth respondents were
apparently
ignorant of two important realities. The first is that the
right embodied in sub-rule 53(4) only accrues to an applicant once
the
complete record has been furnished and the applicant has had an
opportunity to consider it with a view to assessing whether or not
its content prompts a need to amend or to amplify the grounds for the
review. The second reality is that inherent in the argument
made was
an admission that the complete record had not in fact been furnished
and that more of its content might be forthcoming
if the applicants’
amendment or amplification rendered this necessary.
[43.3] the
prospects of the first to the fourth respondents being successful in
their opposition to the application for review
in the event that
condonation is granted receives only token attention in the relevant
founding affidavit. As will become apparent
in due course, on an
assessment of all the relevant facts placed before the court in the
affidavits filed, the court is of the
view that the first to the
fourth respondents have no prospect of successfully obtaining an
order dismissing the application. Their
inability to succeed in their
opposition to the review would in no way be avoided or lessened were
the application for condonation
to be granted.
[43.4] allied to
the statement made at the end of the previous sub-paragraph, but
worthy of being highlighted on its own at
this point, is the
following fact. In the answering affidavits deposed to in opposition
both to the application for a postponement
and the application for
condonation, the first and the second applicants state unequivocally
that the deponent to the relevant
founding affidavits, Nonkonyana, is
not the first respondent as he claims to be. It is stated under oath
by the applicants that
in March 2020 Nonkonyana was suspended from
that position with a stipulation that he must not perform any of the
duties associated
with that position. In his place and stead
currently, Chief Lang Mavuso (Mavuso) holds an acting position. No
replying affidavit
was filed in the postponement application to
challenge or to displace this allegation. No replying affidavit has
been filed in
the application for condonation. Indeed, the alteration
in the status of Nonkonyana was widely reported in the media and
stands
as a matter of public record. In addition, no authorisation of
Nonkonyana to depose to these affidavits in his current circumstances
has been furnished by the first to the fourth respondents. Nonkonyana
is the deponent to the first to the fourth respondents’
answering affidavit in respect of which condonation for late filing
thereof is sought. Therein he alleges that he is the first
respondent. The allegation is false. Deposing to the affidavits forms
part of the duties accruing to the person appointed to the
office of
the first respondent. Nonkonyana is prohibited from performing such
duties. They are to be performed by Mavuso. The answering
affidavit
must be regarded as
pro non scripto.
[43.5] the first to
the fourth respondents are all administrative officials who have an
obligation to discharge their public
duties in an efficient, diligent
and professional manner. There is no room for the display of contempt
for orders of court, or
for the blatant disregard for compliance with
the provisions of the Uniform Rules of Court, such as that
demonstrated by the history
of the present matter. This unacceptable
approach towards litigation that concerns a matter of public
significance, importance
and interest is demonstrably prejudicial to
the ability of the court to discharge its own obligations, namely to
ensure the efficient
administration of justice. The concomitant
prejudice caused to the applicants and those whom they represent as
traditional leaders
is obvious.
[44] Upon
due consideration being given to all the relevant factors, the court
is not persuaded that the first
to the fourth respondents have made
out a case that would justify the grant of condonation for their
failure to furnish a full
and complete record of proceedings or to
file an answering affidavit timeously. Moreover, the court is of the
view that the interests
of justice do not permit of condonation being
granted in the circumstances demonstrated in this matter.
[45] Given
the extent of the delays caused by their own non-compliance with the
relevant provisions of the Uniform
Rules of Court, the nature and the
extent of the prejudice to the applicants caused thereby, the failure
to give a detailed account
of the reasons for their failure to comply
with the Uniform Rules of Court, the contempt shown for the orders of
this court and
the extent of the inconvenience caused to the court in
the result, it would be appropriate for the first to the fourth
respondents
to pay the costs of the opposed application for
condonation on the scale as between attorney and client.
[46] It
is appropriate to record at this point that the first to the fourth
respondents were not prejudiced in
the advance of argument on their
behalf in the application for review by the possibility, at that
stage, that their application
for condonation may well not be
granted. Reliance was placed exclusively upon an assertion that the
review proceedings instituted
by the applicants were premature. In
order to advance the argument, counsel for the first to the fourth
respondents relied upon
a point of law that could be raised upon due
consideration of the content of the applicants’ notice of
motion, founding affidavits
and the annexures thereto, including the
content of the impugned report that embodied a resolution adverse to
the applicants and
in favour of the fifth respondent. The submission
that it is open even to the court to raise the argument
mero
motu
is
correct.
[5]
There need not be
any reference made to an answering affidavit. It was so raised and it
was argued fully before the court.
[47] In
order to determine whether or not there is merit in the application
for review, or whether there is merit
in the opposition thereto, it
is necessary to record something of the history that led to the
matter coming before the second respondent
and to determine the true
character of the matter.
[48] The
recommendation and resolutions or decision communicated by the first
respondent in the report dated 25
March 2020 emanate from a claim
lodged by the fifth respondent with the second respondent. Prior to
lodging the claim with the
second respondent, the fifth respondent
had lodged a claim with the late Inkosi Mandlesizwe Mditshwa. He died
before hearing the
claim. His widow, Nopumlani Mditshwa, was
appointed as regent for her minor son. The memorandum setting out her
recognition and
appointment as head of the second applicant was
signed by the third respondent on 17 January 2018. The fifth
respondent is of the
view that he should be the senior traditional
leader of Maqakambeni Traditional Council, and not the first
applicant. The claim
was considered in due course and was dismissed.
Accordingly, the claim was resolved decisively by the traditional
community that
would be affected by the outcome thereof. In his
answering affidavit the fifth respondent records the event in the
following statement:
Unsurprisingly, sometime
in August 2018, AmaVelelo passed their ruling against me and in
favour of their leader, the First Applicant,
effectively dismissing
my claim.
Dissatisfied
with the adverse determination of the claim by Chieftainess Nopumlani
Mditshwa, the fifth respondent decided to submit
his claim to the
second respondent.
[49] Upon
receipt of the fifth respondent’s claim the second respondent
appointed an
ad hoc
committee made up of Nkosi Makosonke Diko,
Nkosi Bongani Sabatha and Nkosi B Z Ndamase. The first applicant
objected to the potential
investigations of the
ad hoc
committee
on the basis that the second respondent had no jurisdiction to decide
on a matter that had already been resolved by the
second applicant
and the traditional community. The objection was sent by the first
applicant in a letter dated 23 December 2019.
The objection was
ignored by the second respondent and the
ad hoc
committee was
apparently dispatched to investigate the claim. Through his attorney
of record, the first applicant objected to the
proceedings of the
ad
hoc
committee and sought a postponement thereof in order to seek
a decision on the issue of the second respondent’s lack of
jurisdiction.
This was to no avail. In due course, the document
signed by the first respondent on 25 March 2020 was produced
purporting
inter alia
to adjudicate favourably upon the claim
made by the fifth respondent.
[50] In
response, and once again acting through his attorney of record, the
first applicant appealed to the third
respondent, pointing out the
illegality of the report, recommendations and resolutions or decision
contained therein. In a letter
dated 24 June 2020 the third
respondent responded as follows:
The Eastern Cape
Provincial House of Traditional Leaders has taken a resolution on the
matter. There was a definite decision by
the House and Chief Ranuga
does not have any further recourse to approach my office because I am
neither an appeal nor review authority.
I must say I have considered
the merits of this matter but I cannot make any pronouncement because
of the limitations imposed by
legislation and as interpreted by the
Constitutional Court.
[51] The
applicants then launched this application for review.
[52] Section
21 of the Act provides as follows:
(1)(a) Whenever
a dispute or claim concerning customary law or customs arises between
or within 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
or claim internally
and in accordance with customs before such
dispute or claim may be referred to the Commission.
(b) If
a dispute or claim cannot be resolved in terms of paragraph (a),
subsection (2) applies.
(2)(a) A
dispute or claim referred to in subsection (1) that cannot be
resolved as provided for in that subsection must
be referred to the
relevant provincial house of traditional leaders, which house must
seek to resolve the dispute or claim in accordance
with its internal
rules and procedures.
(b) If
a provincial house of traditional leaders is unable to resolve a
dispute or claim as provided for
in paragraph (a), the dispute or
claim must be referred to the Premier of the province concerned, who
must resolve the dispute
or claim after having consulted –
(i) the
parties to the dispute or claim; and
(ii) the
provincial house of traditional leaders concerned.
(c) A
dispute or claim that cannot be resolved as provided for in
paragraphs (a) or (b) must be referred
to the Commission.
(3) Where
a dispute or claim contemplated in subsection (1) has not been
resolved as provided for in
this section, the dispute or claim must
be referred to the Commission.
[53] The
provisions of section 21 of the Act are clear. In the first instance,
members of a traditional community
and the traditional leaders of
that community must attempt to resolve a dispute or claim. Only if
the dispute or claim is not so
resolved must it be referred to the
second respondent, which must then seek to resolve the dispute or
claim in accordance with
its internal rules and procedures. If the
second respondent is unsuccessful therein, the dispute or claim is
then to be referred
to the fourth respondent, who must resolve the
dispute or claim after due consultation with the affected parties and
the second
respondent. If the dispute then still cannot be resolved
it must be referred to the Commission.
[54] The
claim made by the fifth respondent and lodged with the late Inkosi
Mandlesizwe Mditshwa was a claim of
the nature envisaged in section
21 of the Act. Therefore the provisions of section 21 of the Act are
applicable thereto. The claim
was resolved by the traditional
community leaders in August 2018 in accordance with subsection
21(1)(a) of the Act. No legitimate
basis existed for it thereafter to
be referred to the second respondent.
[55] There
can be little doubt that, however dissatisfied he might have been
with the outcome, the fifth respondent
accepted that a decision had
been made in August 2018. It is also plain that the fifth respondent
sought to revisit that decision
by way of an appeal being made
against it. In his answering affidavit the fifth respondent
identifies this in making the following
statements:
Unhappy with the unjust
and biased manner in which my claim was handled by AmaVelelo, and the
purported decision, in 2018, I appealed
to King Luzuko Matiwane, who
presides over the Royal Council of the King of AmaMpondomise against
the ruling of AmaVelelo. I attach
hereto marked “
TS2”
,
a copy of my appeal to King Matiwane.
I stress that according
to AmaMpondomise custom and tradition, it is a common practice that
when one is not happy with the approach
and/or decision of the lower
traditional leadership, one must seek recourse to the higher
structure, the King of AmaMpondomise
in this instance, before one can
exhaust external remedies. This is more so regarding a claim for
traditional leadership. I must
add that the above approach to the
King is crucial in the context of AmaMpondomise traditional
leadership, because there is an
undesirable tendency of some
traditional leaders by passing the King when they seek recognition, a
tendency that is foreign in
AmaMpondomise custom and tradition. I did
not want to bypass the King in my case, hence I took up the matter
with the King before
it was referred to the Eastern Cape House of
Traditional Leadership.
[56] In
Tshivhulana
Royal Family v Netshivhulana
[6]
the Constitutional Court interpreted the effect of the provisions of
section 21 of the Act as follows:
The dispute may be
referred from one level to the next only if it is unresolved. When a
definitive decision is taken at any level,
the aggrieved party does
not have any further internal recourse. This is so because none of
the levels is a review or appeal level.
A decision at any level gives
the aggrieved party the right to exit the internal structure and
approach a court for appropriate
relief.
This
interpretation exposes the error in the approach taken by the fifth
respondent upon receipt in August 2018 of the adverse decision
taken
by the relevant traditional leadership. At that stage the right to
approach this court for a review of that decision accrued
to the
fifth respondent. He did not exercise that right and avail himself of
the appropriate remedy. Instead, he sought to escalate
his claim to a
higher level within the internal structure provided for by section 21
of the Act. He did so in an attempt to take
the adverse decision on
appeal, not understanding that the second respondent is not clothed
with appellate jurisdiction. The interpretation
also exposes the
fundamental error on the part of the second respondent in purporting
to handle the fifth respondent’s claim
as if it had not already
been adjudicated upon and finalised at traditional leadership level.
Its handling of the claim in purported
compliance with the procedure
referred to in subsection 21(2)(a) of the Act was unlawful. On this
basis alone the review of the
recommendation, resolutions and
decision set out in the report dated 25 March 2020 must succeed.
[57] The
proper interpretation of Section 21 of the Act set out in the
preceding paragraph also demonstrates the
lack of merit in the legal
point relied upon by the first to the fourth respondents in their
opposition to the application for
review. No basis exists upon which
the recommendation, resolutions and decision purportedly taken by the
second respondent requires
the further attention of the fourth
respondent “making a decision” based thereon before the
applicants can institute
review proceedings. Even the content of the
impugned decision demonstrates that the second respondent believed
that what it purported
to recommend, or resolve or decide,
constituted a decision that could be reviewed in this court. The
final paragraph of the report
reads as follows:
In the event that the
claimant or respondent is not satisfied with the outcome, any party
is at liberty to challenge this decision
by way of a review in a
court of law.
It follows that the
opposition based upon the point of law to the effect that the
application for review is premature falls to be
dismissed.
[58] Several
other bases upon which the report signed on 25 March 2020 and its
content are sought to be reviewed
and set aside as unlawful are set
out in the founding affidavit. They were not abandoned in argument.
They address
inter alia
the following:
[58.1] the lack of
authority on the part of the Executive Committee of the second
respondent to deal with the fifth respondent’s
claim as it
appears to have done. It is clear from the content of paragraph 4 of
section 2 of the Standing Rules and Orders of
the Eastern Cape House
of Traditional Leaders that the Executive Committee of the second
respondent did not have the power to resolve
“on the 4
th
of March 2020 that the claim for senior traditional leadership of
Maqakambeni Traditional Council in Tsolo by Tamsanqa Same against
Mnoneleli Ranuga be sustained”, as the introductory portion of
the report reveals it purported to do. The power so to resolve,
and
only in respect of a claim that has not been resolved at community
traditional leadership level, is a power that accrues to
the second
respondent.
[58.2] the first
applicant’s application to the effect that the procedure
initiated by the second respondent be postponed
until such time as
the issue about its lack of jurisdiction in the circumstances of this
matter was resolved, was not acceded to.
There was no ruling on
either the application for a postponement or on the objection based
upon a lack of jurisdiction. There ought
to have been. The resultant
procedural unfairness affects adversely the rationality of the
process and, concomitantly, the outcome
thereof;
[58.3] one of the
resolutions purported to have been taken by the second respondent,
according to the report, although clearly,
and unlawfully, the
introductory portion reveals that the resolutions are those taken by
the Executive Committee of the second
respondent, is couched in the
following terms:
1.7. AmaVelelo Royal
Family is an illegitimate structure under the chairmanship of Nkosi
Mnoneleli Ranuga and it undermines the
great house of Mditshwa.
No
claim or dispute relating to the legality of the status of the second
applicant, or indeed the validity of its functions, processes
or
decisions, was placed by the fifth respondent, or by any other
person, before the second respondent. Moreover, in the memorandum
signed by the third respondent on 17 January 2018, appointing
Nopumlani Mditshwa as the regent for her minor son within the second
applicant, clear recognition of the legal status of the second
applicant is evident. Consequently, the resolution purportedly taken
in respect of the second applicant is irrational and unlawful.
There
is merit in these additional grounds for review. To the important
issues that arise therefrom the first to the fourth respondents
provided no answer.
[59] The
court is satisfied that on all the grounds raised in the application
for review the applicants have made
out a case. As far as the
additional interdictory relief is concerned, the court is of the view
that the applicants establish that
they have clear rights. The
history and nature of the dispute demonstrates that there is a
reasonable apprehension that the attempts
to undermine and injure
those rights may be resumed in the future. That the applicants have
no satisfactory alternative remedy,
other than an appropriate order
of court, by which to protect those rights, is clear and renders
appropriate the issue of a final
interdict.
[60] What
remains is the issue of an appropriate costs order. There is merit in
the submission made on behalf of
the applicants that the conduct of
the first to the fourth respondents has been despicable and cavalier.
They demonstrated by their
behaviour, including their opposition to
the interlocutory application and their contempt for the order of
Mjali J, a refusal to
deliver a full and complete record in terms of
the provisions of rule 53. Eventually it was forthcoming, but the
index thereto
reveals that it was still incomplete. They filed an
answering affidavit at the same time. Both essential elements of the
review
proceedings were filed thirteen months late. The application
for condonation failed to address with any degree of adequacy the
reasons for the delays. It is difficult to avoid the conclusion urged
upon the court by the applicants, namely that the first to
the fourth
respondents have exhibited a disingenuous approach to these
proceedings. The applicants seek payment of their costs
on the
punitive scale as between attorney and client. The court is of the
view that such an order would be appropriate. Although
it was made
clear to the fifth respondent that no substantive relief was sought
against him and that his opposition was viewed
as being misguided and
vexatious, no costs were sought against him before he filed an
answering affidavit. Once he did so, and
participated in the attempt
to dismiss the application for review, he attracted potential
liability for the payment of the applicants’
costs. No reason
exists for his exclusion from the costs order to be made.
[61] The
following orders are made:
1. The
application for condonation brought by the first to the fourth
respondents in respect
of the late filing of the record in terms of
rule 53 of the Uniform Rules of Court and their answering affidavit
is dismissed.
2. The
first to the fourth respondents are directed to pay the costs of the
application for condonation
jointly and severally, the one paying the
others to be absolved, on the scale as between attorney and client.
3. The
recommendations, resolutions and findings of the Executive Committee
of the House of Traditional
Leaders, Eastern Cape Province, contained
in the report prepared and signed by Chief Mwelo Nonkonyana on 25
March 2020, concerning
the claim by the fifth respondent to be the
senior traditional leader of Maqakambeni Traditional Council in Tsolo
are hereby reviewed
and set aside as unlawful and a nullity.
4. The
determination and resolution of the Executive Committee of the House
of Traditional Leaders,
Eastern Cape Province to the effect that
AmaVelelo Royal Family is an illegitimate structure, contained in the
report referred
to in paragraph 3 of this order, is hereby reviewed
and set aside as unlawful and a nullity.
5. The
AmaVelelo Royal Family is hereby declared to be a legitimate
structure that exists in
terms of the customs and traditions of
AmaMpondomise AseMpumalanga and is to be respected accordingly as a
customary institution.
6. The
first, second, third and fourth respondents are hereby interdicted
and restrained from
unlawfully interfering with the functioning of
and exercise of powers by the AmaVelelo Traditional Council and the
AmaVelelo Royal
Family.
7. The
second, third and fourth respondents are hereby interdicted and
restrained from implementing
the recommendations, resolutions and
findings contained in the report referred to in paragraph 3 of this
order.
8. The
first, second, third, fourth and fifth respondents are hereby
directed to pay the costs
of this application jointly and severally,
the one paying the others to be absolved, on the scale as between
attorney and client.
R
W N BROOKS
Judge
of the High Court
Appearances
Applicants: Mr
M Notyesi
Instructed
by:
MVUSO
NOTYESI INC.,
2
nd
Floor,
T.H.Madala
Chambers,
14
Durham Street,
MTHATHA.
First
to Fourth Respondents: Adv L
D Halam
Instructed
by:
The
State Attorney,
94
Sisson Street,
MTHATHA.
Fifth
Respondent: Mr
M Mantyi
Instructed
by:
Mantyi
Attorneys,
1
st
Floor,
Clublink Building,
28
Madeira Street,
MTHATHA.
Date
heard: 2
December 2021
Date
delivered: 14
December 2021
[1]
Act 41 of 2003.
[2]
This rule came into effect on 9 March 2020. The rule requires
litigants to consider mediation when instituting any new action
or
application. It requires that new proceedings be accompanied by a
notice stating whether each party is amenable to resolving
the
matter by way of mediation, or not, along with reasons for the
stance adopted.
[3]
2017 (6) SA 90
(SCA) at para [26].
[4]
[2021] ZACC 43.
[5]
Minister
of Justice and Correctional Services v Wallus
[2017] 4 All SA 1
(SCA);
2017 (2) SACR 473
(SCA), where the court
held at para [23]: “
The
duty of an appellate court is to ascertain whether the court a quo
came to a correct conclusion on the case before it. Its
role is
generally limited to deciding issues that are raised in the appeal
proceedings and it may not, on its own, raise issues
that were not
raised by the applicant. However, where a point of law is apparent
on the papers (even where it has been expressly
abandoned) but the
common approach of the parties proceeds on a wrong perception of the
law, and its consideration on appeal
would involve no unfairness to
the party against whom it is directed, the court is not only
entitled, but is also obliged, mero
motu, to raise the point of law
and require the parties to deal therewith. Otherwise it would be
bound to make a decision that
is premised on an incorrect
application of the law, despite the accepted facts, merely because a
party failed to raise the legal
point, as a result of an error of
law on his part. That would infringe the principle of legality.”
[6]
2017 (6) BCLR 800
(CC) para [20].