About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 237
|
|
Yende and Another v Premier Mphumalanga Province and Others (80576/2014, A602/2017) [2019] ZAGPPHC 237 (26 June 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: 80576/2014
APPEAL NUMBER:
A602/2017
26/6/2019
In the appeal matter of:
FELANI
YENDE
FIRST APPELLANT
AMAYENDE
ASOGENYANENI
SECOND APPELLANT
ROYAL FAMILY
And
THE
PREMIER”MPHUMALANGA PROVINCE
FIRST RESPONDENT
MEMBER OF THE
EXECUTIVE
SECOND RESPONDENT
COUNSEL FOR
CORPORATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS
THE CHAIRPERSON
COMMISSION
THIRD RESPONDENT
ON TRADITIONAL
LEADERSHIP DISPUTES AND
CLAIMS:MPHUMALANGA
PROVINCE
THEMBA MICHAEL
YENDE
FOURTH RESPONDENT
AMAYENDE
ASOGENYANENI
FIFTH RESPONDENT
TRADITIONAL COUNCIL
JUDGMENT
STRIJDOM AJ
Introduction
[1]
This appeal concerns the application of customary norms and criteria
of the ama Yende
aso Genyaneni traditional community so as to
determine the rightful Nkosi (Senior Traditional Leader) of that
community.
[2]
The litigation commenced as a review application in the Gauteng High
Court Pretoria.
Felani Yende (Felani) and Amayende Asogenyaneni
Royal family (The Royal family) challenged the Third respondent, the
chairperson
commission on traditional leadership disputes and claims:
Mpumalanga Province (the Commission) decision to recognise the fourth
respondent, Thembe Michael Yende (Themba) as the Inkosi (Senior
Traditional Leader) of ama Yende aso Genyaneni traditional community.
That challenge, was unsuccessful hence the appeal to this court.
[3]
The matter comes before this Court with leave of the Supreme Court of
Appeal as an
appeal against a decision of the High Court, Gauteng
Division in terms of which the appellants’ review application
was dismissed.
[4]
Themba and the Royal family opposed the appeal.
The
Facts
[5]
Felani and Themba are half-brothers having been born of Leonard Yende
the last living
senior traditional leader of the community.
[1]
[6]
Felanis’ mother, Maria Mnisi (“MaMnisi”), was the
first married
wife of Leonard, the deceased Chief. Her status as the
great wife is established by the fact that she was the first married
wife
of the late Chief, Leonard Yende.
[2]
[7]
Themba is the eldest son of Leonard Yende, and MMA Hadebe who was not
married to Leonard.
[8]
Before his death in 1997, Leonard did not assume his rightful
position as a senior
traditional leader of the community.
Instead he worked as a labourer on the farm.
[3]
[9]
During Leonards’ era, the traditional affairs of the community
were handled by Sidumo.
[10]
A King or Chief or a Senior Traditional leader is such by birth or
appointment\ nomination.
[4]
[11]
On or about 2007, Themba with the support of the Royal family lodged
the claims for the recognition
of the ama Yende aso Genyaneni as a
traditional community and for his recognition as its senior
traditional leader (Chief) of the
community, with the second
respondent.
[12]
On or about 31 August 2010, Mr Mbulani Joseph Yende lodged his
parallel and competing claim alleging
to be the rightful heir to be a
senior traditional leader of this community. Both these
claims were referred to the
commission for investigation and
recommendation in terms of section 25(2) of the Traditional
Leadership Governance and Framework
Act, 2003. (Act No 41 of 2003)
(“the Act”) as amended.
[13]
The commission investigated both claims together with the recognition
of the community as a traditional
community. At the completion of the
investigations, two reports were compiled, one dealing with Thembas’
claim and the other
with Mr Mbulani Joseph Yendes’ claim.
[14]
The Commission considered the reports, approved the recommendation
and recognised the community
as a traditional community that observes
a system of customary law and Themba as senior traditional leader of
the community.
[5]
[15]
In compliance with the statutory requirements, public notices were
issued on 2 November 2012.
[6]
[16]
In 2012Felani and the Royal family wrote letters objecting to the
recognition of the fourth respondent.
[7]
[17]
In 2014, Felani and the Royal family lodged an application for the
review and setting aside of
the decision (recognition).
The
arguments
[18]
On behalf of the appellants it has been submitted that when Themba
was recommended to be recognised,
the correct and relevant customary
law and customs were not considered and applied as required by
Section 25(3) of the Act, (as
amended) by the Traditional Leadership
and Governance Framework Act 23 of 2009(“the Amendment Act”).
[19]
It was further submitted that the proper consideration and
application of the traditional community’s’
customs being
the Zulu customs, the customary law, and traditions disavow any
recognition and appointment of an extra-marital son
as the successor
to the late Chief, even if he were a first born sun, over that of the
first born of the Great House (being the
house of the first married
wife.)
[20]
The Traditional community owe allegiance to the Zulu nation and its’
King. As ama
Zulu, the living customs of the ama Yende, which
the Royal family and Felani are, and whose customary law is
applicable and relevant
to the current matter, recognises the
principles of primogeniture within its respective criteria and
qualifications. The
eldest son succeeds in a single household
setting.
[8]
[21]
The above principles, in the Zulu custom, are qualified by the
principle that in a multiple household,
or polygamous relationship,
where there is a great wife, that is the wife in the indlunkulu, and
other wife’s and even so-called
iqqadi women, the general heir
is the “eldest son of the great wife, even if he is not the
first maiden born son of the family
head”.
[9]
[22]
According to Seymour Customary Law, a Zulu household may have a
number of sections, usually,
the main or Great House (indlunkulu),
the left and the right-hand Houses, which may further have
affiliates.
[10]
[23]
The Courts have recognised that customary law is by its nature a
constantly evolving system. Where
there is a dispute over the legal
position under customary law, a court must consider both the
traditions and the present practice
of the community. The
parties should strive to place evidence of the present practice of
that community before the court,
and that the courts have a duty to
examine the law in the context of the community and to acknowledge
developments if they have
occurred.
[11]
[24]
It was submitted by counsel for the respondents that the contention
that Felani has a right to
be the heir because his mother was married
to Leonard Yende is ill-founded. It presupposes that the
customary law is stagnant,
it does not evolve with the changing
conditions and circumstances of the community and the Royal family
cannot nominate a suitable
person. It was further submitted
that it is settled law that the community may develop their customary
law in order for the
customary law to be compatible with the dynamic
circumstances of the community.
Constitutional
context
[25]
The entire Chapter 12 of the Constitution is devoted to matters
pertaining to traditional leadership
and customary law. Section 211
proclaims that the institution of traditional leadership is
recognised.
[26]
The Constitution also recognises traditional authorities that apply
customary law and permits
them to function subject to it. Every
court is obligated to apply customary law when it is applicable,
subject to the Constitution
and Legislation that deals with customary
law. In Alexkor
[12]
it
was held;
“
It is clear,
therefore that the Constitution acknowledges the originality and
distinctiveness of indigenous law as an independent
source of norms
with the legal system. At the same time the Constitution, while
giving force to indigenous law, makes it
clear that such law is
subject to the Constitution and has to be interpreted in the light of
its values. Furthermore, like
the common law, indigenous law is
subject to any legislation, consistent with the Constitution that
specifically deals with it.
In the result, indigenous law feeds
into, nourishes, fuses with it and becomes part of the amalgam of the
South African Law.”
Relevant
Legislation
[27]
Parliament passed the Traditional Leadership and Governance Framework
Act (as amended). (Framework
Act)
[13]
to regulate traditional leadership.
[28]
The commissions functions were set out in Section 25 of the Framework
Act Owing to the centrality
of this matter it is necessary to quote
the entire section:
“
Functions of Commission
(1)
The Commission operates nationally and has authority to decide on any
traditional
leadership dispute and claim contemplated in subsection
(2) and arising in any province.
(2)
(a) The Commission has authority
to investigate, either
on request or of its own accord—
(i)
a case where there is doubt as to whether a kingship, senior
traditional leadership
or headmanship was established in accordance
with customary law and customs;
(ii)
a traditional leadership position where the title or right of the
incumbent is contested;
(iii)
claims by communities to be recognised as traditional communities;
(iv)
the legitimacy of the establishment or disestablishment of ‘tribes’;
(v)
disputes resulting from the determination of traditional authority
boundaries and
the merging or division of ‘tribes’;
(vi)
where good grounds exist, any other matters relevant to the matters
listed in this paragraph,
including the consideration of events that
may have arisen before 1 September 1927.
(b)
A dispute or claim may be lodged by any person and must be
accompanied by information
setting out the nature of the dispute or
claim and any other relevant information.
(c)
The Commission may refuse to consider a dispute or claim on the
ground that—
(i)
the person who lodged the dispute or claim has not provided the
Commission with
relevant or sufficient information; or
(ii)
the dispute is to be dealt with in terms of section 21(1)(a) in a
case where section
21(1)(b) does not apply.
(3)
(a) When considering a
dispute or claim,
the Commission must consider and apply customary
law and the customs of the relevant traditional community as they
were when the
events occurred that gave rise to the dispute or claim.
(b)
The Commission must—
(i)
in respect of a kingship, be guided by the criteria set out in
section 9(1)(b)
and such other customary norms and criteria relevant
to the establishment of a kingship; and
(ii)
the respect of a senior traditional leadership or headmanship, be
guided by the customary
norms and criteria relevant to the
establishment of a senior traditional leadership or headmanship, as
the case may be.
(c)
Where the Commission investigates disputes resulting from the
determination of traditional
authority boundaries and the merging or
division of ‘tribes’, the Commission must, before taking
a decision in terms
of section 26, consult with the Municipal
Demarcation Board established by section 2 of the Local Government:
Municipal Demarcation
Act, 1998 (Act No. 27 of 1998).
(4)
The Commission has authority to investigate all traditional
leadership claims and
disputes dating from 1 September 1927, subject
to subsection 2(a)(vi).
(5)
The Commission must complete its mandate within a period of five
years or within such
longer period as the President may determine.
(6)
Sections 2, 3, 4, 5 and 6 of the Commission Act, 1947 (Act No. 8 of
1947), apply,
with the necessary changes, to the Commission.”
[29]
Section 11 of the amended Act deals with the filling of vacancies of
senior traditional leadership,
It states thus:
“
11 Recognition
of Senior traditional leaders, headmen or headwoman
(1)
Whenever
the position of senior traditional leader, headman or headwoman is to
be filled-
(a)
The
royal family concerned must, within a reasonable time after the need
arises for any of those positions to be filled, and with
due regard
to applicable customary law-
(i)
Identify
a person who qualifies in terms of customary law to assume the
position in question, after taking into account whether
any of the
grounds referred to in section 12(1),(a),(b) and (d) apply to that
person; and
(ii)
Through
the relevant customary structure, inform the Premier of the province
concerned of the particulars of the person so identified
to fill the
position and of the reason for the identification of that person; and
(b)
The
Premier concerned must, subject to subsection (3), recognise the
person so identified by the royal family in accordance with
provincial legislation as senior traditional leader, headmen or
headwoman, as the case may be.
2(a)
The provincial legislation referred to in (1)(b) must at least
provide for-
(i)
A
notice in the Provincial Gazette recognising the person identified as
senior traditional leader, headman or headwoman in terms
of
subsection(1);
(ii)
A
certificate or recognition to be issued to the identified person: and
(iii)
The
relevant provincial house of tradition leaders to be informed of the
recognition of a senior traditional leader, headman or
headwoman.
(c)
Provincial
legislation may also provide for-
(i)
the
election or appointment of a headman or headwoman in terms of
customary law and customs: and
(ii)
consultation
by the Premier with the traditional council concerned where the
position of a senior traditional leader, headman or
headwoman is to
be filled.
(3)
Where
there is evidence or an allegation that the identification of a
person referred to in subsection (1) was not done in
accordance with
customary law, customs or processes, the Premier-
(a)
May
refer the matter to the relevant provincial house of traditional
leaders for its recommendation; or
(b)
May
refuse to issue a certificate or recognition; and
(c)
Must
refer the matter back to the royal family for reconsideration and
resolution where the certificate of recognition has been
refused.
(4)
Where
the matter which has been referred back to the royal family for
reconsideration and resolution in terms of subsection (3)
has been
reconsidered and resolved, the Premier must recognise the person
identified by the royal family if the Premier is satisfied
that the
reconsideration and resolution by the royal family has been done in
accordance with customary law.”
Record
of proceedings
[30]
The record of the proceedings conducted by the Commission shows that
at the time of the hearings into
the claim by Themba, there was
concern that the relevant Royal family of the ama Yende aso Genyaneni
was not represented.
[31]
On page 2 of the recordings, the Speaker referred to as Speaker 2,
who was the Chairman of the
Committee, Mr BJ Tolo, asked “
Is
there any member from the house of Genyaneni present who can testify
to that
?”
[14]
[32]
In response thereto, Mr Ezrom Vusi Yende (Speaker 3) responded and
confirmed the version of Themba
who is referred to in the recordings
as Speaker1.
[33]
Mr Ezrom Yende is not a natural sibling of Felani.
Mr Ezrom Yende originates
from the ama Yende of Mahlaphahlapa
who are not the same traditional community as the ama Yende aso
Genyaneni.
[15]
[34]
Mr Tolo further asked on the fourth paragraph of page 2 of the
recordings whether there was “
anyone else from the house of
Genyaneni present who can testify to that?
”
[35]
In response thereto another gentleman Mr Nskosana Yende who says he
comes from o Genyaneni, stated
that “…
we
gather together as a family to discuss who was to going to take over
the chieftaincy and we come to a decision that his first
born son
Temba was fit to take over…
”
[36]
As a further example of the dilemma of the representation of the
Royal family on page 7 of the
recording, the 3
rd
paragraph, the Speaker, a member of the commission, asks: “
now
as I deliberately ask again which number are you from Leonards
children and how many are you all as Leonards children?”
[37]
In response thereto Themba stated that: “
We are four
children all together with two boys and two girls
”
[38]
At paragraph 5 of the recording on page 7 the Speaker from the
commission further enquires: “
I hear you are saying
there are two boys and two girls, is there any of your siblings in
the house today I would like to ask few
things
?”
[39]
Themba answered: “
Sadly he is not here but working though at
some meetings he would like to accompany us…”
Analysis
of facts and relevant law
[40]
In section 1 of the National Act, the Royal family is defined as:
“
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.
”
[41]
In section11, as referred to above, it is the Royal family concerned
that must identify the person
who qualifies to succeed and it must do
so applying the relevant customary laws.
[42]
Felani and his sisters are thus the relevant and proper components of
the Royal family.
[43]
In the last paragraph on page 7 of the recording the chairperson, Mr
Tolo remarked as follows:
“
I am worried
about one thing and that is that your siblings are not here to
support you in your claim, what evidence do we have
that they support
you, we don’t want that situation where tomorrow they come and
dispute your claim and this that your brother
should be chief…”
[44]
Neither Felani nor the sisters were present at the hearing.
[45]
It was submitted by counsel for the 4
th
and 5
th
respondents’ that if Felani and the Royal family were aware
that the fourth respondent was not the rightful heir, they should
have either lodged an objection to the Royal family or made
representation to the third respondent.
[46]
I am of the view that in the absence of Felani and his sister any
election, or identification
of Themba, was on its own a material
irregularity. Felani was neither consulted nor formally given
an opportunity, to either
be present at the proceedings of the
commission or to make any written submissions before the final
decision was taken.
[47]
Section 6(2) (b) of PAJA
[16]
provides as follows:
“
6(1)…
(2)A court or tribunal
has the power to judicially review an administrative action if-
(a)
…
(b)
a mandatory and material procedure or condition prescribed by an
empowering provision was
not complied with
.”
[48]
The impugned decision contravened a fundamental requirement of
section 11 of the National Act.
The provision of the national
Act is clearly a mandatory requirement.
[49]
The court
a quo
erred in not finding that the impugned
decision contravened a fundamental requirement of section 11 of the
National Act.
[50]
The Third respondent was required to apply its mind to the claim and
ought to have utilized the
opportunity to call for Felani and the
Royal family to present their side of the story in line with
the
audi alteram parte
rule.
[51]
In my view it was procedurally unfair that Felani was neither,
consulted nor given an opportunity
to make any submissions before the
final decision was taken accordingly section 6(2)(c) of PAJA was
vitiated.
[52]
The decision by the Commission was influenced by error of law, namely
the relevant customary
law of the Zulu nation having applied an
incorrect succession criteria that recognised a male born of a minor
house, Themba, instead
of the eldest son born of the indlukulu which
is the first appellant and this violates section 6 (1)(d) of the
PAJA.
[53]
The court
a
quo
erred in not finding that the ama Zulu customs and traditions as
practiced and lived currently, have not evidently being modified
and
changed to accommodate the situation of a son born within a multiple
homestead and/or a polygamous setting, as is the case
in this matter,
to succeed before the heir of the Great house. The so-called
principle of “
moving-on
”
[17]
has not festered and the real living customs of the ama Yende cannot
be reasonably distinct from ama Zulu. There was no evidence
credible enough nor has the Commission suggested that the great house
first principle has been nullified.
[54]
The court
a quo
failed to recognise the fact that the
Commissions’ own doubts regarding the absence of the first
appellant and his sisters,
who are the core of the Royal family, was
a real concern.
[55]
The court
a quo
erred in not finding that the nomination must
have failed and ought not to be deemed compliant for lack of
sanctioning by the Royal
family, which is clearly the core customary
structure made up of the immediate relatives of the ruling family.
Conclusion
[56]
I am of the view that the application for review ought to have been
granted as contemplated in
the PAJA.
Order
[57]
In the result the following order is made:
(a)
The appeal is upheld.
(b)
The judgment and order of the Court
a quo
under case number
80576/2014 handed down on 10 March 2017 is set aside.
(c)
The decision of the first respondent dated 23 October 2012
recognising the fourth
respondent as senior traditional leader or
Inkosi of the Yende aso Genyaneni, is unlawful, reviewed and is set
aside.
(d)
The second appellant is directed to constitute and hold a meeting of
the Royal family of
ama Yende aso Genyaneni, within 15 days
hereof and must act in accordance with the provisions of section 11
of the National
Act, and
(e)
The first, second, third and fifth respondent are directed to pay the
costs of this appeal,
including the costs of counsel. The said
costs, to include the costs of the application and of the appeal.
JJ STRIJDOM
ACTING
JUDGE OF THE HIGH COURT
I
agree,
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree,
S POTTERILL
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered.
MATTER
HEARD:
5 JUNE 2019
Judgment
delivered:
26 JUNE 2019
COUNSEL
FOR 1
ST
AND 2
ND
APPELLANT:
Adv MATHAPUNA
Instructed
by:
NDOBELA LAMOLA INC
ATTORNEYS
COUNSEL
FOR 4
TH
AND 5
TH
RESPONDENT:
Adv MS PHASWANE
Instructed
by:
MSSRS MKETSU AND
ASSOCIATES INC
ATT
[1]
Volume 1 page 47 (Record)
[2]
Volume 1, page 34 (record)
[3]
Volume 1, page 39. (Record)
[4]
Olume 1 page 21 (record)
[5]
Volume 3 page 297 (Record).
[6]
Volume 3 page 298-300 (Record).
[7]
Volume 1 page 39 (Record)
[8]
See Olivier Indigenous law 1995 at p 148.
[9]
See Bekker Seymours Customary Law in Southern Africa 273 and Umndeni
of Ama Ndlungwa v The MEC for Housing and Traditional Affairs
in KZN
2010 JDR 1408 (SCA).
[10]
See Mhlongo v Mhlongo
1919 AD 470
at 471
[11]
Tinyiko L Shilubana and Others v Sidwell Nivamitwa and Others [2008]
ZACCT 03/07 (4 June 2008)
[12]
Alexkor Ltd and Another v Richterveld Community and Others
[2003]
ZACC 18
;
2004 (5) SA 460
(CC); 2003(12) BCLR 1301(CC). See
also Bapedi Marota Mamone v Commision on Traditional Leadership
Disputes and Claims and
Other (CCT) 67/14 [2014] ZACC36 ; 2015(3)
BCLR 268 (CC).
[13]
Act 23 of 2009.
[14]
Record Vol 3 p 265
[15]
See Affidavit of FY Joston Record Volume 1 page 54
[16]
Act 3 of 2000
[17]
As stated by the Court a quo in the judgment page 301-329.