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[2019] ZAECBHC 23
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Ntamo and Others v Premier of the Eastern Cape and Others (415/2016) [2019] ZAECBHC 23 (15 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case No. 415/2016
Date
heard: 24 October 2019
Date
delivered: 15 November 2019
In
the matter between:
PENROSE
NTAMO
First Applicant
NOVUSO
NOPOTE
Second Applicant
GAGILE
CUBA
Third Applicant
ZOYISILE
TYANDELA
Fourth Applicant
THE
LOCAL PLANNING COMMITTEE,
CALA
RESERVE
Fifth Applicant
GIDEON
SITWAYI
Sixth Applicant
and
THE
PREMIER OF THE EASTERN CAPE
First Respondent
CHIEF
GECELO
Second Respondent
THE
GCINA TRADITIONAL COUNCIL
Third Respondent
THE
MEC FOR LOCAL GOVERNMENT AND
TRADITIONAL
AFFAIRS
Fourth Respondent
NDODENKULU
JACKSON YOLELO
Fifth Respondent
EASTERN
CAPE HOUSE
OF
TRADITIONAL
LEADERS
Sixth Respondent
JUDGMENT
Gough
AJ
:
1.
This application is the consequence of the recognition in terms of s
18 (5) of
Traditional Leadership and Governance Act
, 2005 (EC)
(
the Governance Act
) by the fourth respondent of the fifth
respondent as iNkosana (or headman) of the ama-Gcina traditional
community, Cala Reserve,
Xhalanga District (
the Cala Reserve
community
) on 4 December 2015 (
the MEC decision
). The
antecedent ‘identification’ in terms of s 18 (1) (i) of
the of the fifth respondent by the ama-Gcina Royal family
(
the
Royal family
) on 4 November 2015 (
the royal family decision
)
is also challenged.
2.
I shall hereinafter refer to the royal family decision and the MEC
decision collectively
as
the impugned decisions
.
3.
The impugned decisions were taken after the full bench of this Court
in
Ntamo and Others v Premier, Eastern Cape and Others
2015
(6) 400 (ECD) had already dismissed an appeal against the order of
the court below (
the order
) setting aside the recognition
given by the fourth respondent and/or the first respondent (the
fourth respondent and first respondent
in that appeal) to the fifth
respondent (the fifth respondent in that appeal) as the iNkosana of
the Cala Reserve community, and
that:
“…
the first
respondent be and is hereby directed to refer the matter back to the
Royal family in terms of section 18 (3) and 18 (4)
of the [Governance
Act].”
4.
The present application is only opposed by the third respondent.
5.
However, before dealing with the substance of the application, I need
to dispose of
a the third respondent’s preliminary issue of the
non-joinder of the Royal family as a party to these proceedings.
6.
The non-joinder point was not raised in the answering affidavits nor
was it foreshadowed
in heads of argument filed on behalf of the third
respondent. I afforded the parties an opportunity to supplement their
arguments
by the delivery of additional heads should they wish to do
so. Additional heads of argument were delivered on behalf of the
applicant.
Mr Bodlani, who appeared for the third respondent,
conveyed that he does not wish to do so but stands by the arguments
set out
in his heads as well as submissions made at the hearing.
7.
Brand JA summarised the law regarding the need to join a party in
litigation in
Judicial Service Commission and Another v Cape Bar
Council and Another
2013 (1) SA 170
(SCA) as follows:
“
[12] 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
and Another
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 and Another
2007 (1) SA 30
(SCA) para 7;
and 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).”
8.
Mr Bodlani confined the third respondent’s challenge on
non-joinder to the royal
family decision. He did not argue that the
Royal family had a direct or substantial interest in the remainder of
the relief claimed
by the applicants.
9.
Section 18 of the Governance Act reads as follows:
“
Recognition of
an iNkosi or iNkosana
18. (1) Whenever the
position of an iNkosi or iNkosana is to be filled-
(a) the royal family
concerned must subject to such conditions and procedures prescribed,
within sixty days after the position becomes
vacant, 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 (6)(3) to that person; and
(ii) through the relevant
customary structure, inform the Premier of the particulars of the
person so identified to fill the position
and of the reasons for the
identification of that person; and
(b) the Premier must,
subject to subsection (5), by notice in the
Gazette
, recognise
the person so identified by the royal family as an iNkosi or
iNkosana, as the case may be.
(2) before a notice
recogniszing an iNkosi or iNkosana is published in the
Gazette
,
the Premier must inform the Provincial House of Traditional Leaders
of such recognition.
(3) the Premier must,
within a period of thirty days after the date of publication of the
notice recognizing an iNkosi or iNkosana
issue to the person who is
identified in terms of paragraph (a) (i), a certificate of
recognition.
(4) where the Premier has
received evidence or an allegation that the identification of a
person referred to in subsection (1) was
not done in accordance with
the provisions of this Act, customary law or custom the Premier-
(a) may refer the matter
to the Provincial House of Traditional Leaders for its
recommendation; or
(b) may refuse to issue a
certificate of recognition; and
(c) must refer the matter
back to the royal family for reconsideration and resolution where the
certificate of recognition has been
refused.
(5) Where a matter, which
has been referred back to the royal family for reconsideration and
resolution in terms of subsection (4)
(a), 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.”
10.
Both subsections (3) and (5) provide that the Premier
must
recognise the person identified by the Royal family. However, under
subsection (3) the Premier has no discretion to refuse to recognise
the person identified by the Royal family unless evidence or
allegations is produced before publication in the Gazette of the
notice recognising the person identified by the Royal family as an
iNkosana. That is not the case with subsection (5), which compels
the
Premier to independently satisfy her or himself that the
identification of the person as an iNkosi or iNkosana was in
accordance
with customary law irrespective of contrary evidence
or allegations having been produced.
11.
The definition of administrative action in the
Promotion of
Administrative Justice Act
, 2000 includes any decision taken by
“…
a natural or juristic person… when
exercising a public power or performing a public function in terms of
an empowering provision,
which adversely affects the rights of any
person and which has a direct, external legal effect…
”.
12.
Mogoeng J (as he then was), writing for the full court, in
Viking
Pony Africa Pumps v Hidro-Tech Systems
2011 (1) SA 327
(CC) found
the following at para [37]:
“
PAJA defines
administrative action as a decision or failure to take a decision
that adversely the rights of any person, which has
a direct, external
legal effect. This includes ‘action that has the capacity to
affect legal rights’. Whether or not
administrative action,
which would make PAJA applicable, has taken cannot be determined in
the abstract stop regard must always
be had to the facts of each
case.” (Footnotes excluded.)
13.
Thus, it is necessary to determine whether the royal family decision
constituted administrative action
for the purposes of PAJA.
14.
That the royal family decision was not administrative action is
supported by both the judgment in the
court below and that on appeal
in
Ntamo
.
15.
The court below included a provision in the order that “…
the decision of the fourth and/or first respondent to recognise
the fifth respondent as the headman of the the Cala Reserve, taken
on
or about 4 July 2013, be and is hereby reviewed and set aside
”.
16.
Significantly, no order was issued setting aside the decision taken
in March 2013 by the Royal family
to identify the fifth respondent as
the iNkosana of the Cala Reserve community, although it was found by
both courts that the aforesaid
identification was not in accordance
with customary law.
17.
The full bench in
Ntamo
set aside the fourth respondent’s
recognition (or appointment using the language of the full bench in
Ntamo
) in 2013 of the fifth respondent as the iNkosana . This
appears from the following passages in the judgment:
“
[56] Secondly, it
was argued that the court below erred in para 2 of its order by
directing the Premier to refer the matter back
to the royal family.
Once the decision to appoint Yolelo was set aside on account of the
applicable customary law not having been
applied, the only course of
action that was available to the Premier (or the MEC acting in terms
of delegated authority) was to
refer the matter back to the royal
family. The order simply gives effect to the inevitable and, in doing
so, avoids delay in the
process of appointing a headman for the the
Cala Reserve.
[57] to the extent that
the order amounts to a substitution for purposes section 8(1)(c) (ii)
of PAJA, I am of the view that exceptional
circumstances, as
contemplated by this section, were present. First, the court below
was in as good a position as the Premier to
decide the issue.
Secondly, as indicated above, the course the matter had to take once
the decision had been set aside was a foregone
conclusion. Thirdly,
it contributed to efficient administration in the sense that it
avoided further delay in the finalisation
of a matter of importance
for the the Cala Reserve community and the public interest. In any
event, I cannot see what practical
effect is setting-aside of this
order would have if the decision of the court below to review and set
aside the decision to recognise
Yoleleo were correct.
[58] It was argued that
the order interfered with the Premier's discretion in terms of s
18(4) of the Governance Act to either refer
the matter to the
Provincial House of Traditional Leaders for a recommendation or
refuse to issue a certificate of recognition.
Once the court below
decided and declared what the applicable customary law was, and that
it had not been applied by
the royal family, no purpose
could be served in referring the matter to the Provincial House of
Traditional Leaders for a recommendation
because the process of
identification and recognition had to commence afresh. The Premier
has been ordered to take the only course
of action that is open to
her. There is, accordingly, no merit in this point.”
18.
The notice of motion in the present application seeks to have
reviewed and set aside “
the decision taken by the Second
and/or Third Respondent, acting as the royal family, on an unknown
date to identify Mr Yolelo as
the appropriate person for the
MEC
to recognise as headman of the Cala Reserve
”.
19.
The royal family decision, although part of a process leading to the
recognition of the fifth respondent
as the iNkosana of the Cala
Reserve community by the fourth respondent, had no impact upon the
rights of the applicants nor did
it have the capacity to do so. It
had no direct, external legal effect. It was the MEC decision which
had those attributes.
20.
The royal family decision was, in my view, not administrative action.
Thus, the royal family decision
was not subject to judicial review in
terms of section 6 of PAJA and an order setting aside the royal
family decision is not required
by the applicants in order to obtain
the remaider of the relief set forth in the notice of motion.
21.
In view of the above finding, and the acceptance by the third
respondent that the Royal family has no
direct or substantial
interest in the remainder of the relief claimed by the applicants,
the joinder point falls away. The third
respondent has no direct and
substantial interest which will be prejudicially affected by the
outcome of these proceedings (
Judicial Service Commission
(
supra
)).
22.
However, and in any event, there is a further ground upon which the
joinder point cannot succeed.
23.
The essence of the point taken by the third respondent was that the
royal family decision was not taken
by either the second or the third
respondent acting as the Royal family. In reaching this conclusion,
the third respondent relies
upon the recognition given in the
Governance Act of a royal family and a traditional council as
discrete institutions. On
the one hand, a royal family is 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. On the other hand, a traditional
çouncil, such
as the third respondent, is a council
established in terms of section 6 of the Governance Act.
24.
The third respondent admitted that the second respondent “…
is the senior traditional leader of the KwaGcina Traditional
Council…
[and] …
is cited in his official
capacity as the person responsible for introducing the Fifth
Respondent as headman to the the Cala Reserve
” (paragraph
23 of the founding affidavit read together with paragraph 15 of the
answering affidavit).
25.
The Royal family was not joined in
Ntamo.
It did not seek to
intervene in the proceedings before the court below or in the appeal.
26.
Throughout the history of the matter the applicants have communicated
with either the second respondent
or the third respondent when
dealing with the Royal family. The applicants’ threat of
litigation over the impugned decisions
was sent in like manner to the
second respondent and/or third respondent. Nowhere in any of this
communication do those respondents
protest against that communication
having been incorrectly sent to them or say otherwise that the
applicants must communicate directly
with the Royal family. The state
attorney at one time informed the applicants that it represented all
the respondents and requested
an extension of time in order to
deliver answering affidavits as it needed to take instructions from
the Royal family.
27.
The second respondent explains in the answering affidavit how the
Royal family went about the business
of reconsidering and resolving
the identification of the fifth respondent as the iNkosana after the
import of
Ntamo
had apparently been explained to it. Likewise,
he testifies to the manner in which the Royal family reached its
decision not to
remove the fifth respondent as the iNkosana once it
was made aware of the fifth respondent’s criminal conviction.
The third
respondent denies the allegation of bias levelled against
the the Royal family.
28.
The third respondent relies only upon the following paragraph in the
answering affidavit for its point
on non-joinder:
“
40.
… At some point, the applicants will have to find it in
themselves to accept that the judgment Ntamo
1, amongst other orders,
directed the Premier to refer the matter back to the royal family and
not to myself. My membership of
the royal family does not constitute
myself as a royal family. Accordingly, I object to decisions of the
royal family being ascribed
to me. I am in no position to take credit
for the work of the Royal family.” “
29.
The quoted paragraph does not support a conclusion that the Royal
family was unaware of the nature of
the relief claimed by the
applicants in these proceedings.
30.
The following passage in the judgment of Mahomed J (as he then was)
in
Wholesale Supplies CC v Exim International
CC 1995 (1)
SA150 (TPD) at 158 E-H is apposite:
“
These
observations clearly show, in my view, that
the
rule which seeks to avoid orders which might affect third parties in
proceedings between other parties is not simply a mechanical
or
technical rule which must ritualistically be applied, regardless of
the circumstances of the case
.
For this reason the Court in
Smith
v Conelect
1987
(3) SA 689
(W)
held that, where the third party has waived his right to be joined,
the failure to join him as a third party was no bar when ordering
the
proceedings which might affect him, because he was not prejudiced in
these circumstances.
What
are the circumstances in the present case? The party not joined in
the present case is B D Neill. He is the party who concluded
the
restraint agreement with Snell. He is the party who controls the
first respondent. On the probabilities he caused the activation
of
the second respondent as a distributor of the relevant product in the
area protected by the restraint. He is the party who effectively
represented the Exim Group in the dealings with Snell built before
and after the restraint. All the interests in the respondents
are
held by his company. He has now had the fullest opportunity to be
heard in the matter.
Not only did he fail to proffer any objection
on the basis of formal non-joinder in the answering affidavits, but
he grabbed the
opportunity to set out his case with great energy and
thoroughness. Indeed, as was to be expected in the circumstances, he
was
the only substantial voice on behalf of the respondents in the
proceedings. There was not the slightest suggestion in these
affidavits
that he had an interest adverse to the interests of the
respondents
. (See the
Amalgamated Engineering Union
case
supra
at 649.)
To
deprive the applicants of relief in these circumstances simply
because
B D
Neill was not formally joined as a party is without any justification
in law and would in no way advance the interests of justice
.
”
(Underlining added.)
31.
The Royal Family has, in my view, substantively participated in the
proceedings. It has waived any right
to be formally joined as a party
therein. Moreover, the controversy regarding the appointment of the
iNkosana of the Cala Reserve
community has been ongoing since 2013.
It requires finality. It is not in the interests of justice to
further delay its conclusion
through a mechanical or technical
application of the rule regarding joinder of parties in litigious
proceedings, particularly when
the point has been so belatedly raised
by the third respondent.
32.
Shortly stated, and approaching the matter on the account of the
third respondent (but without making
a finding as to the correctness
of that version), after the full bench decision in
Ntamo
was
delivered the Royal family decided that it would approach the Cala
Reserve community and explain that (a) prior to
Ntamo
there
was conflict amongst the Cala Reserve community over the selection of
a new iNkosana, and as a result, so said the Royal
family, “
some
people did not participate in the decision-making process that led to
the nomination, not election, of
[the sixth applicant]
because
they had identified with a particular process which led to a dispute
between some residents of Cala Reserve and the royal
family
”
and (b) that the sixth respondent had not been elected by the Cala
Reserve community as the Inkosana in accordance
with customary law.
The Cala Reserve community, after having had all of the aforegoing
explained to them on 8 October 2015 decided
to hold an election on 14
October 2015. The fifth respondent was elected as the iNkosana on
that date. Thus, and as the Royal family
was satisfied the October
2015 election of the fifth respondent was in accordance with
customary law, it was obliged to identify
him as the iNkosana as was
the fourth respondent so to obliged to recognise the fifth
respondent as such and issue him with
a certificate of recognition.
All of the aforegoing was, according to the Royal family, not because
of the views it held on a particular
candidate but “…
in
order that there could be compliance
with
the judgement
[Ntamo]
”.
33.
The following passages in
Ntamo
are material to a
consideration of the correctness of the approach adopted by the Royal
family:
“
[6]
As stated, the dispute between the parties concerns the validity of
the decision taken by the MEC to appoint Yolelo as headman
of the
Cala Reserve. That, in turn, raises whether the MEC and the amaGcina
royal family acted in compliance with the Traditional
Leadership and
Governance Act 4 of 2005 (EC), the legislation that empowers royal
families to 'identify' candidates for headmanship,
and the Premier to
'recognise' headmen in the province. I shall refer to this Act as the
Governance Act.
[7]
Mr JH Fani was appointed as headman of the Cala Reserve in 1979. In
late 2012 he indicated to the amaGcina Traditional Council
that he
wished to retire. He later informed the fifth respondent, the local
planning committee appointed by him as an advisory
body, that the
amaGcina Traditional Council had acceded to his request that he be
allowed to retire.
[8]
The planning committee convened a community meeting to discuss the
issue. As residents of the Cala Reserve have always elected
their
headmen, debate developed as to a suitable successor to Fani. Mr
Gideon Sitwayi, a subheadman and Fani's de facto deputy,
emerged as
the favoured candidate.
[9]
On 25 February 2013 a community meeting was held at which Sitwayi
was elected as headman by the majority of those present
. Fani and
Mr Penrose Ntamo, the deponent to the founding affidavit and a member
of the planning committee, were given the task
of reporting the
result of the election to the amaGcina Traditional Council. When they
tried to do so, on 27 February 2013, Chief
Gecelo [i.e. the second
respondent in the present application] , the head of the Council, was
not available, so their report was
left with the Council's secretary
who informed them that the community had acted unlawfully by
conducting an election in the absence
of the Council.
[10]
When the Council met on 4 March 2013 it was critical of Fani for
allowing the community meeting to take place without Council
members
being present. He was informed that the Council would go to the Cala
Reserve on 11 March 2013 to 'introduce' the new headman.
He was also
told, strangely, that arrangements would be made for the police to be
present.
It became clear from the Council's meeting that it did
not accept the election of Sitwayi because he was not a member of the
royal
family
.
[11]
The meeting only took place on 27 March 2013. The Council's
representatives included Gecelo. One Mr Jentile, a councillor,
informed those present that the delegation had no intention of having
a meeting with the community: it was there to introduce the
person
chosen by the royal family to be the new headman for the Cala
Reserve. Gecelo said that the delegation would not answer
any
questions. He then announced that the new headman was Yolelo.
…
.
[80]
… the way in which a candidate is identified by the royal
family concerned is dependent on 'the applicable customary
law' and
the nominee qualifying for appointment 'in terms of customary law'.
That, in turn, makes the applicable customary law,
in each case,
a relevant consideration (to put it at its lowest) and raises the
question of what the customary law is whenever
a particular candidate
for appointment as a headman is to be identified.
From this it is
clear that a royal family's power to identify a candidate for
headmanship is constrained in at least two respects:
first, in
identifying a candidate, it must have 'due regard to applicable
customary law'; and secondly, its power of identification
is limited
to persons who qualify for appointment 'in terms of customary law
'..
[81]
The practical implementation of s 18 may differ across the province,
from place to place, according to the customary law that
is
applicable in each. That may mean that in identifying candidates for
headmanship, royal families may enjoy varying degrees of
discretion:
how much discretion a royal family will have to identify
candidates will depend on the applicable customary law and the
customary-law
requirements for qualification as a headman in each
case
.
[82]
This interpretation of s 18 is in accordance with the plain meaning
of the words of the section, read in context. It
is, furthermore, an
interpretation that is consistent with, and furthers, s 211 of the
Constitution as well as the purposes of
the Framework Act and
Governance Act. It also advances, rather than retards, the promotion
of democratic governance and the values
of an open and democratic
society by recognising the customary law of local communities in the
identification of those who will
govern them on the local, and most
intimate, level. This, in turn, is a recipe for legitimacy of local
government.
[83]
What this means in the specific case of the the Cala Reserve is that
the royal family's discretion is limited in the following way. In
identifying a candidate for headmanship, it has to have due regard
to
the fact that, in terms of the applicable customary law, headmen are
elected by the community and do not have to be drawn from
any
particular family. Then, it has to consider who qualifies in terms of
customary law to be identified for appointment. That
person is the
person who has been elected by the community. It is then obliged to
inform the Premier of the particulars of the
person so identified and
the reason for his or her identification — that he or she was
elected by the community in terms
of the applicable customary law
.
When this has been done, the Premier (or, as in this case, the MEC
acting in terms of delegated authority) 'must, subject to subsection
(5), by notice in the Gazette, recognise the person so
identified by the royal family'.
[84]
In my view the decision of the court below that the MEC’s
decision to recognise Yolelo [ i.e. the fifth respondent] was
invalid,
was correct. If the MEC took a decision to recognise Yolelo
[i.e. the fifth respondent], despite the fact that someone else
qualified
in terms of customary law, the MEC’s decision was
vitiated by an error of fact. If the MEC took the decision in the
belief
that the royal family had unfettered power to identify a new
headman for the Cala Reserve (which, given what is said in the
answering
affidavit in the letter of 25 November 2013 is more
probable), then his decision is vitiated by a material error of law
.
In either event, the decision was correctly set aside by Nhlangulela
ADJP in the court below,and the appeal must fail”.
(Underlining
added and without footnotes.)
34.
Unquestionably, the finding of the full bench (namely, that the sixth
respondent had been elected as
the iNkosana of the Cala Reserve
community in accordance with the customary law of the Cala Reserve
community) was essential to
the dismissal of the appeal and resultant
confirmation of the order.
35.
In view of the above finding, and those made in paras [57] –
[58] of
Ntamo
(already quoted above), the order compelled the
first respondent or the fourth respondent to refer the identification
of the iNkosana
back to the Royal family for reconsideration and
resolution. The Royal family was then obliged to identify the sixth
applicant
as the INkosana. This, because he had been elected by the
Cala Reserve community in accordance with customary law.
36.
The matter of the election of the sixth applicant and that election’s
compliance with customary
law has already been adjudicated upon. The
applicants and the third respondent were parties in the proceedings
in
Ntamo
. On the doctrine of
res judicata
I am
precluded from revisiting those findings of fact and law made by both
the court below and the full bench in
Ntamo
. (
Mkhize NO v
Premier of the Province of KwaZulu Natal and others
2019 (3) BCLR
383
(CC) at paras [36] and [37];
Ekurhuleni Metropolitan
Municipality v Germiston Municipal Retirement Fund
2017 (6) BCLR
750
(CC) at para [29];
Smith v Porrit and Others
2008 (6) SA
303
(SCA) at para [10]).
37.
The entire process followed after Ntamo (viz. firstly, by the Royal
family, then ‘the election’
of the fifth respondent on 15
October 2015 together with the identification by the Royal family of
the fifth respondent as the
iNkosana, and the MEC decision) was in
conflict with the order and unlawful. To the extent necessary, that
process falls to be
set aside.
38.
In any event, and assuming for the moment that it was permissible to
have held valid elections in October
2015, notwithstanding the terms
of the order, the third respondent needs to establish that the
election of the sixth applicant
in 2013 was either set aside in
accordance with customary law or falls to be set aside.
39.
To the above end, the third respondent avers that the election in
February 2013 of the sixth applicant
by the Cala Reserve community
was not in accordance with customary law. The third respondent has
not brought a counter application
seeking to declare that election
non-compliant with customary law. In the absence of a counter
application seeking that relief
by the third respondent a challenge
on that basis must fail.
40.
The third respondent failed to produce expert evidence that the
customary law of the Cala Reserve
community permitted the
implicit setting aside aside of the outcome of the 2013 election of
the sixth applicant by holding a second
election based, so it would
seem, largerly upon an explanation, right or wrong, given by the
Royal family that the prior election
was flawed and otherwise
contrary to customary law.
41.
On the papers in the application the election of the sixth applicant
in February 2013 is unimpeachable
and must stand.
42.
The election of the fifth respondent in October 2015 contravened both
the order and customary law. It
too was unlawful.
43.
The fourth respondent deposed to an an affidavit explaining his role
and that of his officials in the
process of electing the fifth
respondent and in taking the MEC decision. He says that he had no
discretion in taking the MEC decision
once the fourth respondent had
been identified by the Royal family. As discussed above, section 18
(5) provides that the fourth
respondent must first satisfy himself
that the identification of an iNkosana complies with customary law.
44.
Section 6 (2) (d) of PAJA provides that administrative action is
reviewable if it was materially
influenced by an error of law.
The fourth respondent failed to exercise the statutory duty imposed
upon him in terms of section
18 (5) of the Governance Act. He also
failed to take into account the terms of the order. I agree with Mr
Bishop, who appeared
for the applicants, that the MEC decision is
reviewable under that provision of PAJA.
45.
A judicious consideration by the fourth respondent of the order and
the findings of fact and law made
in relation thereto would have
established that the identification of the fifth respondent once
again by the Royal family did not
accord with customary law and was
otherwise contrary to the order. The fourth respondent, accordingly,
failed to consider relevant
information as was required of him by
section 6 (2) (e) (iii) of PAJA. This is a further basis upon which
the MEC decision falls
to be reviewed.
46.
The applicants also contend that exceptional circumstances exist for
the substitution of the MEC decision
by that of the court declaring
the fifth respondent be the iNkosana of the Cala Reserve and
directing the first or fourth respondent
to recognise him as such.
The uncertainty over the identity of the iNkosana of the Cala Reserve
has endured for six years and requires
finalisation. I can do no
better than reiterate what was said by the full bench in par [57] of
Ntamo
relating to the substitution in terms of section 8(1)(c)
(ii) of PAJA by the court below of the decision of the first or
fourth
respondent. Those grounds for substitution apply equally in
the instance of these proceedings.
47.
It is a requirement of the Governance Act that the Provincial House
of Traditional Leaders of the Eastern
Cape must be informed of any
recognition of an iNkosana prior to publication by the first or
fourth respondent of such recognition.
It is a peremptory requirement
for the lawful recognition of an iNkosana and must necessarily be
included in any order I make.
48.
Counsel for the applicants and the third respondent argued that costs
should follow the result. I agree.
49.
The first applicant passed away after the launch of this application.
Initially the remaining applicants
sought to join his estate in the
application but have since abanadoned that application. The second to
fourth applicants are all
members of the Cala Reserve community and
there is no dispute that all the remaining applicants, including the
fifth applicant,
have standing to bring this application.
The
following order will issue:
(a)
That the third respondent’s preliminary
point on the failure to
join the ama-Gcina Royal family in this application be and is hereby
dismissed.
(b)
That the election on 14 October 2015
of the fifth respondent (Mr ND
Yolelo) as the iNkosana of the Cala Reserve community be and is
hereby declared unlawful and is
set aside.
(c)
That the decision of the fourth respondent
to appoint the fifth
respondent as the iNkosana of the Cala Reserve community be and is
hereby set aside.
(d)
That in terms of section 8(1)(c) (ii)
of of the
Promotion of
Administrative Justice Act
2000
, the sixth applicant (Mr Gideon
Sitwayi) be and is hereby recognised as the iNkosana of the Cala
Reserve Community.
(e)
That within 7 (seven) days of the issue
of this order, the first
respondent (or the fourth respondent acting under delegated authority
of the first respondent) is directed
to both inform the Provincial
House of the Traditional Leaders of the Eastern Cape Province (
the
house
) of the terms of this order and provide the applicants with
proof that he has done so.
(f)
That within 14 (fourteen) days
of the first respondent (or the fourth
respondent acting under delegated authority of the first respondent)
having informed the
house as required by (b) above, either of the
said respondents are directed to publish the recognition of the sixth
applicant as
the iNkosana of the Cala Reserve community
in the Eastern Cape Provincial Gazette.
(g)
That within 30 (thirty) days of the
publication required under (f)
above, the first respondent (or the fourth respondent acting under
delegated authority of the first
respondent) is directed to issue the
sixth applicant with a certificate of recognition in terms of section
18 (3) of the
Traditional Leadership and Governance Act
, 2005
(EC).
(h)
That the third respondent pay the applicants
costs of suit on the
scale as between party and party.
S.K.
GOUGH
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
For
Applicant : Adv. Michael
Bishop
Instructed
by: Legal
Resources Centre
For
Respondent: Adv. Apla Bodlani
Instructed
by:
Dandala Attorneys