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[2018] ZAECMHC 19
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Lurhani and Another v Premier of the Eastern Cape Province Government and Others (3048/2013) [2018] ZAECMHC 19; [2018] 2 All SA 836 (ECM) (27 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
REPORTABLE
CASE NO.
3048/2013
In
the matter between:
MZIKAYISE
GOODMAN LURHANI
1
st
Applicant
MBANGATHA
ROYAL FAMILY
2
nd
Applicant
And
THE
PREMIER OF THE EASTENR CAPE
PROVINCE
GOVERNMENT
1
st
Respondent
MEC
FOR LOCAL GOVERNMENT & TRADITIONAL
AFFAIRS:
EASTERN
CAPE
2
nd
Respondent
THE
CHAIRPERSON: HOUSE OF THE
TRADITIONAL
LEADERS: EASTERN CAPE
3
rd
Respondent
MBALISWENI
TRADITIONAL COUNCIL
4
th
Respondent
NOBONGILE
MBANGATHA
5
th
Respondent
PARAMOUNT
CHIEF;
WESTERN
PONDOLAND
6
th
Respondent
COMMISSION
ON TRADITIONAL LEADERSHIP
DISPUTES
AND
CLAIMS
7
th
Respondent
EASTERN
CAPE COMMITTEE OF THE
COMMISION
ON TRADITIONAL
LEADERS
DISPUTES AND CLAIMS
8
th
Respondent
MZINGISI
MBANGATHA
9
th
Respondent
JUDGMENT
JOLWANA
J
[1]
This is an application for the review and setting aside of the 1
st
respondent’s decision to dismiss 1
st
applicant’s
claim for the position of senior traditional leadership of Mbalisweni
Traditional Community in the district of
Libode.
[2]
The applicants approached court for the following orders set out in
the notice of motion:
“
1.
Reviewing, correcting and/or settling aside the decision of the first
respondent that although the applicant’s father was
indeed
Ndoyisile’s son, he was an adulterine child and therefore not
entitled to succeed his father;
2.
Declaring that the first respondent’s decision is not based on
a correct interpretation of Mpondo customary law;
3.
Declaring that the first respondent should have found that according
to Mpondo customary law where a chief dies without a male
issue a
child born of the late chief outside his marriage is entitled to
succeed him and takes precedence to all other possible
heirs;
4.
Declaring that issues of rituals are matters for the Royal Family and
that these were not matters for decision by the first respondent;
5.
Alternatively to 4 and in the event the court finds that they were
important, declaring that in this case such rituals were in
any case
performed and could not be a bar to first respondent finding that the
applicant is the rightful successor to Ndoyisile
(after the death of
his father);
6.
Ordering any of the respondents, only in the event of it opposing
this application, to pay applicants’ costs, including
costs of
two counsel.”
[3]
Of the nine respondents only four respondents opposed the
application, the 1
st
, 2
nd
, 3
rd
and
5
th
respondents.
[4]
Applicants later filed an amended notice of motion. The orders
sought in the amended notice of motion are as follows:
“
1.
Reviewing, correcting and/or settling aside the decision made by the
first respondent on the 7
th
October 2013 of refusing the claim for senior traditional leadership
of the first applicant;
2.
Restoring the senior traditional leadership of the fourth respondent
and thus of the amaMpondo of Mbalisweni to the great house
of
Ndoyisile; and
3.
Declaring that according to the relevant Mpondo customary law and
practices the first applicant is the rightful heir to the senior
traditional leadership of the fourth respondent and the amaMpondo ase
Mbalisweni Traditional Community;
4.
Directing the first, second and third respondents to within 15 days
of the granting of this order, recognise the first applicant
and to
appoint him as the senior traditional leader of the fourth respondent
and of the amaMpondo aseMbalisweni; and
5.
Directing the 1
st
and 2
nd
respondents to pay
costs of the application jointly and severally each paying the other
to be absolved, including the costs of
two counsel and the 5
th
respondent only in the event of her opposing this application, to pay
the costs of this application, including the costs of two
counsel.”
[5]
In the papers various grounds for the orders sought were articulated
including non-compliance with some of the provisions of
the
Traditional Leadership and Governance Framework Act 41 of 2003 (The
Framework Act). The heads of argument exchanged between
the
parties dealt extensively with all the issues including the issues
raised under the Framework Act in the same way that they
were dealt
with quite extensively in the affidavits including the supplementary
affidavits that were filed by the parties.
[6]
This extensive exchange of papers including the supplementation, with
the leave of court where necessary, helped to clarify
and explain a
number of issues between the parties, resulting in the narrowing down
of the contested issues along the way.
On the 23 January 2018,
a week before the matter was heard, applicants filed a practise note
to clarify applicant’s position
regarding issues that remained
contested, the basis thereof as well as the remedy now sought by the
applicants.
[7]
In part the applicants articulated their position as follows:
“
Applicants
want the decision of the first respondent reviewed and set aside on a
number of grounds:
·
The
summary of the evidence contained in the report of the Committee put
before the Premier differs substantially from the transcript
of the
proceedings;
·
The
Committee misconstrued the evidence as is evidenced by their summary
of the evidence of Prince Maraqana when compared to what
he said in
the transcript;
·
The
Committee and therefore the Premier erred in their interpretation of
Mpondo customary law of succession of illegitimate children
as is
clear from a comparison of the Committee’s position and that of
literature;
·
The
Committee erred in failing to appreciate living customary law as
related to it by the witnesses relating to the case of Maqayise.
The Committee clearly failed to have regard to paragraph 81 and 82 of
Langa J in the Bhe judgment;
REMEDY:
In view of the fact that:
·
The
Premier has power to deviate from the decision of the Committee in
terms of section 26 (4) of the Act;
·
The
discrepancies between the evidence led before the Committee and the
summary put before the Premier before she took her decision;
·
The
number of documents (including opinions of King T Sigcau, Prof Peires
and Prof Jackson)which were referred to in the evidence
and to which
the Committee makes no reference;
Applicants
submit that the matter be referred back to the Premier to give him an
opportunity to take a decision after he has had
an opportunity to
refer to these documents and if he sees the need to deviate to have
the opportunity to decide the reasons for
such deviation. The
first respondent to pay the costs including the costs of two
counsel.”
[8]
On the date of the hearing of the matter I issued a directive to
counsel for them to hold a pre-hearing conference and furnish
me with
a joint minute articulating what the common cause issues are, what
the contested issues are and what the proposed relief
should be.
I further directed that any matter not agreed to or about which there
was a disagreement should be reflected as
such in the joint minute.
[9]
Shortly before the hearing of the matter I was furnished with a joint
minute reading as follows:
“
INTRODUCTION
1.
Having
held the pre-hearing conference before the Honourable Mr Justice
Jolwana, the parties file herewith a joint minute of their
common
cause issues.
2.
The
parties agree:
2.1
Ndoyisile
was the headman of Mbalisweni;
2.2
He had
one son, Mdlomela who was killed in Lusikisiki;
2.3
He
also had a son born in an extra marital relationship between
Ndoyisile and a wife of someone else;
2.4
That
son’s name was Nkaca. His son is Mzikayise Lurhani, the
first applicant;
2.5
The
committee in its report state:
(i)
An
adulterine child belongs to the husband of the mother;
(ii)
Mr
Maraqana said that while adulterine children were on two occasions
accepted to succeed, that is not a deviation from the general
rule
that adulterine children do not succeed their biological fathers.
(See para 8.2.4.1 at page 172);
(iii)
Because
Nkaca was an adulterine child, he could not really claim to be
successor to Ndoyisile;
3.
In the
light of these findings and those of the Premier the parties agree
that the issue of Mpondo customary law, is dispositive
of this case.
AD
RELIEF
4.
The
parties agree that in the event the Honourable Court finds that the
Committee and the Premier erred in their interpretation
of Mpondo
customary law, the appropriate relief is:
4.1
Set
aside the decision of the first respondent;
4.2
Remit
the matter to the first respondent in order:
4.2.1
To
take the appropriate steps as contemplated in section 26 of the Act
read with section 11 and 12 of the Act taking into consideration
this
Court’s decision in regard to Mpondo customary law.”
[10]
The decision sought to be reviewed and set aside is that of the
Premier who, in terms of the Framework Act is the decision
maker and
is empowered to receive recommendations from the Committee of the
Commission on Traditional Leadership Disputes and Claims,
(the
Committee). After receiving the recommendations from the
committee, the Premier is empowered to either take a decision
that is
in line with the recommendations of the Committee or take a decision
that differs with the recommendation. In the
event of the
Premier taking a decision that differs from the recommendations of
the Committee, the Premier is required to provide
reasons for taking
a decision that is at variance with the Committee’s
recommendation.
[11]
In this regard section 26 (4) of the Framework Act provides as
follows:
“
If
the President or the relevant functionary takes a decision that
differs with the recommendation conveyed in terms of subsection
(2),
the President or the relevant functionary as the case may be must
provide written reasons for such decision.”
[12]
In this case the Premier took a decision in terms of which he
accepted the Committee’s recommendations which had recommended
that first applicant’s claim be dismissed. In upholding
the Committee’s decision the Premier merely, almost verbatim,
adopted the recommendations. There is nothing in the Frame work
Act that suggests that she was not entitled to do so.
The
Premier is only required to provide reasons if his or her decision is
different from the recommendation of the Committee.
More about
this later in this judgment. The papers before me included a
transcript of audio visual recordings of the Committee’s
proceedings which was filed in terms of Rule 53 of the Uniform Rules
of Court.
[13]
In order to understand the decision of the Premier which appears to
have been based only on the recommendations of the Committee,
it is
necessary to look at the material that served before the Committee.
In its recommendations the Committee indicated
that it relied on the
written submissions of the claimant, literature review, interviews
and audio visually recorded public hearings.
There is no report
or document containing any other interviews that were made, if any,
other than those of the transcribed record
referred to above.
On literature review the recommendations indicate that two books were
considered namely AJ Kerr, (1990)
a book on Customary Law of
Immovable Property and Succession as well as a book by T.W. Benett
(2004) on Customary Law in Southern
Africa.
[14]
It appears from the transcribed record that a number of people gave
oral testimony to the Committee. Those who gave evidence
to the
Committee indicated themselves as either being in support or against
1
st
applicant’s claim. The Framework Act
contains provisions which makes it clear that members of the Royal
Family play
a very significant role in the determination of who the
rightful person is to fill a position of traditional leadership.
[15]
Section 11 of the Framework Act provides, in part as follows:
“
11
Recognition of senior traditional leaders, headman or headwomen
(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 reasons 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, headman or
headwoman, as the case may be.”
[16]
Section 1 (1) defines “
royal family
” as follows:
“
royal
family
’
means
the core customary institution or structure consisting of immediate
relatives of the ruling family within a traditional community,
who
have been identified in terms of custom, and includes, where
applicable, other family members who are close relatives of the
ruling family.”
[17]
These provisions notwithstanding, the witnesses were only required to
state their names and take the oath. For a reason
that I do not
understand and which is not explained in the recommendations those
who testified were not required to state if and
to what extent are
they related to the royal family or even belong to the Mbalisweni
Traditional Community. Even those who
did identify themselves
either as closely related to the Mbangatha family or as people of
Mbalisweni Traditional Community did
so on their own. Requiring
people to explain their proximity to the Mbangatha family or the
royal family either as it relates
to the family three, or as it
relates to the current reigning senior traditional leader or to the
claimant would not have derogated
from the fact that the hearings
were public hearings to which everybody was entitled to participate.
[18]
It is equally puzzling that no independent research was commissioned
in light of the fact that both the claimant and the current
ruling
family and those who supported them could not have been immune from
subjective personal interest which could taint the historical
narrative they portrayed to the Committee. No less that twenty
people made oral submissions to the Committee which were so
diametrically opposed to each other that it was clear that people
made submissions not only to narrate their stories but also and
most
importantly to support and express their opposing views to the other
side. This could not and should not have escaped
the minds of
the Committee and commissioning an independent research would have
been one of the many ways in which the Committee
would have ensured
that their report was independent and to the extent possible, free
from subjective personal interests of those
who made submissions.
Most importantly a credible report based on the correct understanding
of the history of the Mpondo
people in general and the people of
Mbalisweni in particular would have been furnished to the Premier.
[19]
Having made this observation it is perhaps now apposite to look at
how the Committee analysed the evidence and submissions
made before
it. The Committee started by saying that Nkaca was assimilated
to the Ndoyisile family. The Committee goes
further to say
that: “
Nkaca had been brought to live with Ndoyisile’s
people, became generally regarded as a Nyawuza”
. What
is meant by generally regarded as a Nyawuza is not explained. I
do not understand how, if it is not disputed
by all concerned that
Nkaca was a Nyawuza, he can be said to have been generally
regarded as a Nyawuza as against being a
Nyawuza not because he was
regarded as such , but because he was a Nyawuza. This has
nothing to do with whether or
not Nkaca was entitled to assume the
position of his father in the traditional leadership of Mbalisweni.
[20]
The Committee also makes a finding that “
Ndoyisile’s
relatives gently but definitely rejected the claim of Nkaca and his
son to the chieftainship of the amaNyawuza
Community”
.
However, no light is shared as to which relatives rejected the claim
and how this rejection was done but the Committee finds
that
relatives of Ndoyisile “
gently but definitely rejected the
claim
”. It is not clear from the evidence if
Mzuvukile Sambamba is one of the relative referred to but some of his
evidence
is quoted. He does not describe himself as being
related to Ndoyisile. At page 413 of the court record he
describes
himself in the Committee hearing in the following terms:
“
I
am from Bhedla, Sambamba family from Mbalisweni. I am Mzuvukile
Sambamba from Mkhambeni in Mbalisweni…”
[21]
His is the only evidence referred to as having been in support of the
claim. Reference is made, with some of it being quoted,
to the
evidence of Mpondokazi Valelo. Her evidence must be one of
those who are regarded as the “
Ndoyisile’s relatives
who gently but definitely rejected the claim
”. This
is factually incorrect. If one considers the family tree and if
my understanding is correct Mpondokazi
Valelo belongs to the house of
Valelo who was the first born son of Mbangatha. I have no doubt
that she is in fact a family
member. If this is correct it
escapes me how the Committee could have come to the conclusion and
made a suggestion even if
indirectly that all Ndoyisile’s
relatives “
gently but definitely reject the claim
”.
These relatives and their proximity to the royal family are not
disclosed.
[22]
This takes me to the second applicant which filed a replying
affidavit to deal pertinently with some of the issues raised by
the
respondents in the answering affidavits. The deponent is Donald
Bayimbi Sinqumbu. At page 56 of the court record he describes
himself in the following terms.
“
I
am the elder son of Melo and grandson of Mtshutshisi.
Mtshutshisi or Siqumbu as he was sometimes called was chief Welem’s
elder son from his right hand house of Marhambeni.”
[23]
In the replying affidavit at page 604 of the court record he makes
this telling submission at para 71:
“
Nowhere
in the evidence is a relative of Ndoyisile supporting the
respondents. Nobongile is not a Faku. She is not a
relative of Ndoyisile.”
[24]
The deponent on behalf of the second applicant, having received the
transcribed record and being a close family member in terms
of the
Framework Act and having perused the record, tells this court that of
all those no less than twenty people who testified
before the
Committee there is no relative of Ndoyisile who supported the
respondents. This begs the question, what did the
Committee
mean when it said that “
Ndoyisile’s relatives gently
but definitely reject the claim
”? Which are these
Ndoyisile relatives that the Committee was referring to. It is
also very significant that this
point is not dealt with by the
respondents at all in the heads of argument or even in the
submissions that were made in court during
argument. I,
therefore, must accept that in making this conclusion the Committee,
even if, unintentionally, made a serious
error and in this regard
misled the Premier who would have had no basis for doubting this
finding by the Committee. The centrality
and the
indispensability of the role of the royal family in these matters in
terms of the Framework Act need not be over emphasized
and the
Framework Act recognises this fact.
[25]
In addition to this mistake, there is another mistake of gigantic
proportions made by the Committee in the analysis of the
evidence of
Prince Maraqana. In summarising Mr Maraqaza’s evidence
the Committee wrote as follows in the recommendations
to the 1
st
respondent:
“
8.2.4
Further nails to the coffin of Nkaca / Mzikayise’s right to
succeed Ndoyisile were put by Mr Maraqana and other speakers,
thus:
8.2.4.1
Mr Maraqana said that while adulterine children were on two occasions
accepted to succeed in Qaukeni Great Place that
did not then
necessarily create a deviation from the general rule that adulterine
children do not succeed their biological fathers.
For instance
a situation once arose in Nyandeni which caused (white) authorities
to say to those in power “
but this same situation arose in
Qaukeni and was treated in this way. How can you now treat it
so differently as if to suggest
that the custom in Qaukeni is
different from the custom in Nyandeni?
” To which the
Nyandeni chieftaincy responded:
“
We
are well aware of that, but nothing binds us to do it the way the
Qaukeni authorities did it.” He also made it perfectly
clear that the Pondos of Mbalisweni were not at all bound by what
Qaukeni did on the two occasions referred to by him.”
[26]
Even a cursory reading of the evidence given by Mr Maraqana paints a
totally different picture from the one painted above.
This is
what Mr Maraqana said to the Committee:
“
My
name is Mzwandile Maraqana. I am the son of Ngangenyathi.
Ngangenyathi was the son of Jabavu. Jabavu of Toni.
Toni is the
young brother to Marhelane, sons of Sigcau. They are two.
I want to start there. I am over 60 years
of age and old enough
to respondent to issues relating to custom. I grew up in
Qaukeni. If you asking about Mpondo
custom, my professor there
(referring to Commissioner Koyana) was the one who taught me.
He was my lecturer, when I was studying
Law. I have got two Law
Degrees. To crown it all he is the one who taught me Customary
Law. The first commission
that investigated whether the Mpondos
had a Kingship or not was led by me. This Commission of yours
Dr Mndende emanates from
the first one in which I presented.
What I want to say before I present is that I am on both sides.
If you talking
educated people I am there, and uneducated people who
know Mpondo customs, I am also there.
I
want to come in and respond to a question that, do Mpondos fetch a
child born outside marriage in cases where the deceased leader
does
not have a child from his wives? I will give input by making
two examples. When King Mandlonke died in 1937, he
had just
been installed in 1935 and had two wives, Magingqi and Mankosinane.
From Magingqi who was the great wife and a daughter
of Chief Zimele
in Port St Johns he died without a child. But Mampofana, the
minor wife was pregnant at the time. So,
the Kingship claim
between Nelson and another traditional leader I don’t even want
to call his name had to wait until the
child was born just to make
sure that there was a child even before looking at whether he was
eligible customarily or not was not
the issue at that stage.
Unfortunately, the child was a girl whom the Mpondos named
‘
Yintombokwenzani
’ because they were expecting a
progeny to resuscitate the dying house. It was said that a
search for the child be done.
The claim was stopped until 1944
where a case dubbled ‘
Sigcau v Sigcau
’ where the
matter was resolved after a long search by the Mpondos. Right,
I am done with this one.
Let
me come to the second one, King Mqikela, Mqikela was son of Faku.
He had a number of wives. The Gcalekas arrived
with a girl who
was named Masarhili as she was sister to Sarhili. She was made
wife to Mqikela baceause they were trying
to prevent wars.
Remember Dr Mndende that Faku had led his army up to where the
hospital called St Elliot is, in an attempt
to cross Mbashe.
Soldiers were sent to prevent him so that he could not cross.
To avoid further attacks by Faku the
Gcalekas decided to send
Masarhili to marry Mqikela. Unfortunately, she was sort of old
in years when she came in and could
not give birth. When
MaSarhili could not give birth, so they had to look amongst the other
seven wives of Mqikela.
They looked among them, but no one
wanted to give Masarhili a child since she was barren. None of
them wanted to. So,
they looked again and find a child by the
name of Sigcau after whom we are called. Sigcau was already a
fully grown man with
his wives where he was born. He was born
outside marriage by Mqikela. He was fetched, the necessary
rituals performed
and put as son of the great house of Masarhili.
The name Sigcau, she [Masarhili] said she is going to give him a name
from
her home so that we are called Sigcau.
I
want to say Dr Mndende, it is a Mpondo custom to fetch a child from
where he is born even if it’s from a woman married to
another
man. Because the other thing that happens is that it happens
that you don’t want to enter into a lot of talking,
all you
know is that child is from the King’s isende [loins] even if he
is there. The child is left to grow there as
long as his
rituals are done, if there is no reason for him to be fetched from
where he is. There is no reason to change
the surname for the
child to be accepted as long as there are elderly man who know and
have been part of this process (collecting
the child and doing his
rituals according to the customs of the (family). I can only
change my surname if I have to be involved
in positions like being a
chief. Only then things are forced to be changed around.
What I am saying is that it is a
traditional custom in Mpondoland to
fetch a child from outside marriage. I have given you too
examples that should be enough.
That is what I wanted to give
clarity on.”
[27]
This is the main submission that Mr Maraqana made. Nowhere else
does he deviate from what is stated above or made a submission
that
could be interpreted to be so at variance with his main submission as
to have led the Committee to come to the conclusion
that he later
changed his submission to be what the Committee said it was. On
the contrary he re affirmed his submission
even elsewhere in the
record.
[28]
The transcribed record of the Committee’s proceedings was
served on respondents’ attorneys on 4 May 2015.
This
means that when the 1
st
respondent and all four members of
the committee filed the answering affidavit and confirmatory
affidavits in January 2016 they
had the record for more than eight
months which is almost a year. It is therefore fair to say that
at the very least they
would have been aware of the disturbingly
glaring discrepancy between what is said to have been said by Mr
Maraqana in the recommendations
and what he says in the transcribed
record for more than eight months. Yet neither the Premier nor
the Chairperson of the
Committee or any of its members tried to
explain how the Committee could have reported and misquoted Mr
Maraqana in the manner
that they did in the recommendations to the
Premier.
[29]
Most crucially and assuming that for some reason this discrepancy did
not come to the attention of the 1
st
respondent or any of
the members of the Committee despite the record being available to
them, the deponent on behalf of the 2
nd
applicant deals
with this issue in the following terms at paragraph 72 of his
replying affidavit:
“
The
commission at paragraph 8.2.4.1 misinterpreted if not misrepresented
the evidence of Prince Maraqana. He never testified
that there
was a general rule that adulterine children do not inherit. In
fact he said the opposite as is clear from paragraphs
of his evidence
referred to above. Prince Maraqana appears to have taken with
exception the misrepresentation of his testimony
at the hearing
before the commission. His affidavit confirmed this.”
[30]
Again no attempt has been made by the 1
st
respondent to
clarify this issue. This is important because the 1
st
respondent relied on the recommendation of the Committee in arriving
at the decision to dismiss 1
st
applicant’s claim for
senior traditional leadership of Mbalisweni Traditional Community.
At paragraph 24 of the 1
st
respondent’s answering
affidavit the 1
st
respondent says “
In this case I
considered the recommendations of the committee and thereafter I made
my decision.”
[31]
What this means is that on the 1
st
respondent’s own
showing the 1
st
respondent did not place herself in a
position of being able to make an informed decision by taking into
account the record of
the proceedings and the submissions made during
the Committee’s hearings. This is very significant
because the 1
st
respondent, in taking the decision that
she took was exercising powers entrusted to her in terms of the
section 26 (4) the Framework
Act.
[32]
It seems to me that section 26 (4) empowers the Premier to either
take a decision that is in line with what was recommended
by the
Committee or to take a decision that differs with the recommendations
in which case the Premier must provide reasons for
such a decision.
I cannot see how the Premier could have applied her mind to the
recommendations and come to a decision to
accept the recommendations
without the record of the proceedings of the Committee. Had the
Premier deemed it necessary to
place herself in a position of being
able to take an informed decision, she would have ensured that the
record of the proceedings
are furnished to her. That would have
enabled her to pick up the discrepancy between Mr Maraqana’s
evidence in the
record and Committee’s recommendations.
[33]
The 1
st
respondent makes the following averment at
paragraph 14 of her answering affidavit:
“
14.
The upshot of the impugned decision is that in Mpondo custom, Nkaca
Lurhani was not entitled to inherit the chieftainship that
was left
vacant by Ndoyisile Pheza. This is based on the Mpondo
customs. It is therefore my contention that in making
the
impugned decision I applied myself to the issue at hand, did not
consider irrelevant considerations and considered relevant
consideration in particular the recommendation that was conveyed to
me by the committee and what was the applicable Mpondo custom,
at the
time when the traditional leadership position concerned with the
proceedings was allegedly lost which is to the effect that:
14.1
A child born out of wedlock belongs to the kraal of the husband to
his or her mother.
14.2
A natural father does not acquire the right to a child conceived in
adultery by payment of damages.
14.3
If a married woman has a child by an adulterer it is the child of her
husband. If the husband takes no steps to obtain
possession of
the child, his heir after his death can claim it. He does not
lose the right to the child whether it be male
or female.
14.4
An adulterine child by a married woman cannot inherit from or succeed
the natural father. He or she is presumed to be
the legitimate
child of his mother’s husband. No kind of customary
ritual can cure and/or cleanse him or her as a child
that has been
born from a conduct that is deemed to be disgraceful (inyala).”
[34]
It is unfortunate that in making this submission nothing is said
about the evidence that points in the different direction.
Even
the Committee itself did not deal with the evidence that was
presented to it which indicates that what is said above may not
be
true for the Mpondo custom.
[35]
However, the 1
st
respondent seems to acknowledge the
possibility that Mpondo customary law may have been incorrectly
interpreted by the Committee.
At paragraph 55.2 of the
answering affidavit the following averment is made:
“
55.2
The PAJA does not provide guidelines as to what may be understood
under the term ‘exceptional circumstances. However,
my
evidence is that:
55.2.1
Remitting the matter back for decision making by the Premier would
afford the latter to consider the conflicting Mpondo customary
law
position on the issue at hand. There is therefore a purpose in
remitting the matter back.
55.2.2
The applicants have filed a lot of new material in this application,
which did not serve before me when I made the impugned
decision.
I am entitled to consider this as it would be unjust to have this
matter decided by this court without me having
had an opportunity to
consider the new information upon which this application is now
founded. The outcome on the issue is
therefore not a foregone
conclusion.”
[36]
Two points need to be made about this submission. The first one
is that the 1
st
respondent acknowledges that at the very
least, Mpondo customary law is conflicting on the issue in her view.
This was not
pointed out by the Committee which brushed aside all the
evidence that conflict with the Committee understanding of what the
customary
law is. In any event the Committee was clearly wrong
in focusing on what the “Western” law is and the
“customary”
law is as against dealing with Mpondo
customary law in general and the customary law as has been practised
in the Mbalisweni Traditional
Community.
[37]
The second point is that the 1
st
respondent is correct in
saying that “a lot of new material in this application, which
did not serve before me when I made
the impugned decision has been
filed by applicants. Not only was some of the information not
available to the 1
st
respondent but also some of it was
not placed before the Committee. For instance the deponent on
behalf of the 2
nd
applicant, Mr Siqumbu did not attend the
committee hearings as well as most of the members of the Mbangata
Royal Family.
This did not help the Committee hearings as it
denied them of valuable evidence which the Committee would have had
to consider
in making its recommendations to the 1
st
respondent. If one looks at the family tree from 1803 to date
this is the picture that emerges: Mbangata’s successors
were
Valelo, Welem, Pheza and Ndoyisile. This matter relates to the
successor to Ndoyisile.
[38]
What the 1
st
respondent does not explain is her failure to
use readily available information that had been recorded during the
hearings
in the form of all the submissions that had been made
at the hearings. What the 1
st
respondent did was to
decide the matter in the absence of that information to which she was
entitled and was readily available.
All she needed to do was to
ask the Committee for all the information on which the
recommendations are based.
[39]
The members of the 2
nd
applicant held a meeting on 27
December 2015 in which they discussed the matter of the successor to
Ndoyisile in which they ratified
the steps taken by their
representative Donald Bayimbi Siqumbu who deposed to an affidavit on
behalf of the Mbangata Royal Family
in these proceedings. The
minutes of that meeting which are annexed to the replying affidavit
contain the following extract
at page 625 of the record:
“
Mr
Siqumbu told the meeting that in 1937 the Royal Family led by Welem
and his sons Siqumbu, Pheza, Maduntsu as well as other Mbangatha
Houses chose the home of Pheza as the Great House Mbalisweni.
This meeting went on to choose Pheza’s Great son Ndoyisile
as
the heir in terms of the custom and traditional leadership.
He
went on to say that in 1945 the Whites removed Ndoyisile from the
chieftainship, but all the people who were appointed to act,
acted
for Ndoyisile’s son Mdlomela. He continued and said that
when Mdlomela died in 1951 the Whites said Mpondos must
go and vote
for a new chief because Ndoyisile’s House had no one. He
said that, at that time the Royal Family sat and
nominated Nkaca,
Ndoyisile’s son from outside marriage as heir.
Because
Nkaca was only six years old at that time, Makhukhu was asked to act
for Nkaca and contest against Nyemfu during elections.
Indeed
Makhukhu won and raised Nkaca as requested.
In
1968, before his death, Makhukhu called the Royal Family meeting and
told them that he was planning to hand over the chieftainship
to
Nkaca in accordance with the 1951 resolution. He told the
Nyawuza’s that he was old and ill and that the son he
was
acting for was ready to take over because he was working, had built
his home, had children and that he was already circumcised.
He
concluded by saying all rituals as the son of the Nyawuzas had
already been performed.
Siqumbu
said that Makhukhu died before fulfilling this. The whites and
minor houses assisted by Nyandeni Great Place overthrew
the Royal
Family so that they could appoint traditional leaders of their choice
even if they didn’t qualify. He said
that this is the
reason why Mbalisweni had no Royal Family chosen in accordance with
the custom since 1968.”
[40]
The facts as alleged in this extract have not been gainsaid in any
meaningful way by any of the respondents nor has any attempt
been
made to seek leave of court to file a supplementary affidavit.
Most importantly the 7
th
, 8
th
and 9
th
respondents were joined as respondents on 13 September 2016 by this
court. It is not without significance that the 9
th
respondent who is the son of the 5
th
respondent did not
take the advantage of the leave granted by court on the 13 September
2016 in which the court, inter alia, gave
the 7
th
, 8
th
and 9
th
respondents time frames within which to file
answering affidavits. The replying affidavit containing these
factual allegations
was filed on 13 February 2016. The 9
th
respondent was therefore aware of these allegations and chose not to
challenge them.
[41]
There is also a supporting affidavit filed together with the founding
affidavit. It is deposed to by Mr Danisile Sambamba
and
contains a history of the Mbalisweni Traditional Community since
1845. It also contains a history of the circumstances
in which
Nkaca was born. At paragraph 46 of his affidavit Mr Sambamba
makes the following averments:
“
46.
While Mpondos don’t discriminate the origin of their sons
outside marriage, the available evidence shows that some come
from
adulterous relationships where the traditional leader made somebody’s
wife pregnant. At some stage the traditional
leader gets a not
yet married girl pregnant. The third area would be through
UNGENO which happens when the traditional leader
impregnates
somebody’s widow. The fourth would be when the
traditional leader gets an unmarried woman pregnant.
This woman
could be a divorce or a never married woman who had been giving birth
to children from different fathers.
a.
On
adultery: Mthika was one of the sons of Mbangatha who started the
Ngocweni headmanship in the present area of Indwe within the
Mbalisweni Traditional Council. When he died he was succeeded
by his great son Maqayisa. When Maqayisa died, he had
no male
issue from his wife. While the Pondos were still searching or
investigating whether the deceased headman had any
surviving son or
sons from outside his marriage, they allowed a number of people to
act until they have agreed who should succeed
the late Maqayisa.
The search discovered that the late headman Maqayisa had a son by the
name of Mlahlwa from his adulterous
relationship with the wife of one
Ndobe. At that time Mlahlwa had just married and had a baby boy
Khalambas and were using
the Ndobe family surname. The Pondos
paid six cows and brought the child together with his wife and a baby
boy Khalambas
from the Ndobe family to the Nyawuzas. He was
immediately installed as headman. Khalambas was the father to
headman
Mongezi.
b.
According
to Paramount Chief M.J. Sigcau, “at some stage, Cabe was the
King of Amampondo. He had two wives with three
sons from the
great house – Qiya (great son), Dwera and Gangata. In his
right hand house he had two sons. Gwarhu
and Njilo. The
adulterous relationship between Gangata and Qiya’s wife led to
a bitter fight between the two, with
Pondos joining either Gangata or
Qiya. Qiya, the great son and heir was defeated and forced out
of Pondoland. On their
way to the Tembuland area his pregnant
wife turned back to the Great Place. King Bala, the adulterine
child of Gangata fathered
twins Khonjwayo and Chitwayo.”
[42]
The historical facts contained in Mr Sambamba’s supporting
affidavit were, to the lesser or greater extent, given to
the
Committee hearings including the examples in respect of the Mlahlwa
and Maqayisa as well as the Gangata incident. It
is very
strange that in its analysis of the evidence the Committee completely
ignored this evidence and did not even mention it
in its
recommendations. In the record of the Committee’s
hearings this evidence is contained in pages 325 – 352
of the
court record. It is unfathomable that the Committee ignored
such a substantive submission. At the very least
the Committee
needed to deal with it even if it were to come to the same conclusion
that it did in which case it would have had
to explain itself.
I must mention for the sake of completeness that evidence to the same
effect was given by Mr Maraqana
as stated above but Mr Maraqana’s
evidence was not ignored as Mr Sambamba’s was but was
distorted. This, no doubt
would have had the effect of
misleading the Premier even if unintentionally. This
underscores the importance
of the 1
st
respondent having
placed herself in a position of being able to pick up on these
irregularities and decided on how to deal with
them.
[43]
It is equally strange that in seeking to stand by her earlier
decision to dismiss applicants’ application in the answering
affidavit the 1
st
respondent still does not challenge this
historical evidence by pointing out that the historical facts alleged
are in correct and
putting up her own version of what happened in the
Mbalisweni Traditional community in the past if her view is that
there are in
accuracies in the historical facts alleged.
[44]
The 5
th
respondent filed an answering affidavit in which
she describes herself as the chieftainess, the rejent of Mbalisweni
Administrative
and head of Mbalisweni Traditional Council and acting
as such for her son, Mzingisi Mbangatha who was later joined as the
9
th
respondent. I hasten to add that despite his
obvious interest in the matter the 9
th
respondent does not
oppose the application. In her short and unconventional
answering affidavits, the 5
th
respondent does not deal
squarely with the issues raised by the applicants in their founding
and supporting affidavit. I
describe the answering affidavit as
being unconventional in that while the 5
th
respondent is
opposed to the granting of the relief sought by applicants she does
not deal with the issues raised in the founding
and supporting
affidavits.
[45]
She merely puts up her own understanding of what the Mpondo custom is
on succession as follows:
“
15.1
Under Customary Law and in particular under Pondo custom a mother of
a child is a very important figure. The status of
a child is
intertwined and very much dependent on the status of its mother.
15.2
When a married girl is pregnant by somebody, including a Chief, that
child belongs to the father and the mother of that girl.
That
child assumes the clan name and surname of the girl. For all
intents and purpose, it becomes the child of the father
and mother of
the girl.
15.3
Where a woman girl has been married and such marriage has been
dissolved and she had said returned to her maiden home, she
becomes
what is known as
idikazi
under Pondo custom and any children
she gives birth to belongs to her mother and father and again assume
the clan-name and surname
of the father of the said
idikazi
.
15.4
A child born by a married couple who is fathered by the husband in
that marriage relationship belongs to that husband’s
house and
assumes the clan-name and surname of its father.
15.5
A child born by a woman during the time when, such woman is a party
to a marriage with her husband, who is a product of adulterine
affair
between its mother and another man assumes the clan-name and surname
of the husband to the woman. That child has no
claim whatsoever
in the family of the adulterine father who is its natural father.
All his rights and claim are at the place
to which its mother is
married.
15.6
In the present case the father of the applicant, Nkaca is a child
referred to paragraph 15.5 above. Nkaca’s mother
was
Makhetshe who was married to Mfitshi Lurhani. During the
subsistence of that marriage, Makhetshe committed adultery with
Chief
Ndoyisile Mbangatha as a result of which Nkaca was born. Having
been born by a woman who was married to Mfitshi Lurhani
whose
clan-name is Amaqhinebe, Nkaca is a Qhinebe and is the son of Mfitshi
Lurhani. He has no claim whatsoever in the house
of Ndoyisile
Mbangatha, who is a Nyawuza by clan.
15.7
Where a chief does not have a son with his wife, but has a son
outside the marriage with another woman the status of that child
will
be as in paragraph 14.2 to 14.4 and will depend on the status of that
woman.
16
.
By
Isende Lenkosi
– child by this it is meant a
child who is a natural child of a Chief
Isende
means
testicle. The question is whether such child could ever assume
the throne/chieftainship of his father. On this
issue the Pondo
Custom is clear and as follows:
(a)
Firstly it would depend on the status of the mother of that child.
If the mother of that was a married woman and that
child was
conceived at a time its mother was still married to her husband, such
child can never assume chieftainship.
(b)
All his rights and claim are at the place or house of the husband of
his mother. It must be noted that under Pondo custom
adultery
is scandal and it is something which must always be kept under wrap.
There is no way therefore that such a child
can be paraded and
boasted about by the adulterine father or anyone for that matter.
(c)
Secondly where a Chief has no issue or child in his marriage, but
where he has a child from outside his marriage with an unmarried
woman such child might inherit his chieftainship, but such child will
only inherit if all the houses of that chief have been exhausted
and
in all of them there is no male issue. This is something that
rarely occurrs.”
[46]
Having put up her own understanding of Mpondo custom interestingly
the 5
th
respondent does not at all dispute what is said to
have happened in Mbalisweni as alleged in the founding affidavits.
Moreover,
the 5
th
respondent’s answering affidavit
does not deny any of the allegations made by the applicants in their
founding and supporting
affidavits. What is contained in the
founding affidavits is not challenged at all by the 5
th
and 9
th
respondent, certainly not in any direct way by the
5
th
respondent who opposed the application. There is
not even a denial of the allegation that the so called adulterine
child
has ever been allowed to take the position of chieftainship or
headmanship in the history of the Mbalisweni Traditional Community
as
alleged by applicants.
[47]
The law on what a respondent is required to do in an answering
affidavit is trite. In Erasmus Superior Court Practice
Second
Edition Volume 2 D1-64 the legal position is summarised as follows:
“
The
requirements for a respondent’s answering affidavit, which
deals with the allegations contained in the applicant’s
founding affidavit, are the same as for that of the applicant.
If the respondent’s affidavit in answer to the applicant’s
founding affidavit fails to admit or deny or confess and avoid,
allegations in the applicant’s affidavit, the court will,
for
the purposes of the application, accept the applicant’s
allegations as correct.”
[48]
In
Ebrahim and Another v Georgoulas and Another
1992 (2) SA
151
(NPD) at 154 C-D Khumalo J had this to say:
“
It
is also necessary to mention that the respondent has chosen to say
nothing about most of the allegations made against him leaving
unanswered the important question whether there was in fact a sale or
not. The legal point taken suggests that there was
in fact a
contract but its validity is challenged. His failure to react
to the allegations raised does not assist him.
These
allegations must therefore be accepted.”
[49]
The parties’ counsel in this matter signed a joint agreement in
terms of which they agreed that the issue for determination
by this
court is the Mpondo customary law of succession in relation to
adulterine children. As indicated above the Committee
reached
the conclusion that it did not on the analysis of all the evidence
placed before it but by ignoring all the evidence that
indicated that
adulterine children do in fact inherit from their natural father in
terms of the customary law as has been practiced
in the Mbalisweni
Traditional Community and in the areas in which amaMpondo live as is
clear from the historical facts to which
it was referred. This
approach by the Committee unwittingly misled the 1
st
respondent who bona fide accepted the Committee’s
recommendations unaware that the Committee did not analyse all the
evidence
placed before it.
[50]
Before examining the authorities on Mpondo customary law it is
imperative that I must again point out that the evidence about
the
Mlahlwa/Maqayisa and the Gangatha adulterous relationship with Qiya’s
wife as a result of which King Bala was born has
not been challenged
by any of the respondents. If the incidents of Mlahlwa/Maqayisa
and Gangata are unchallenged and therefore
must be accepted as true
it cannot be correct that under Mpondo customary law adultery is
scandal or
inyala
. It is important to point out that no
basis was laid by any of the respondents for the conclusion that
adultery is scandal
in Mpondo customary law. One should guard
against one’s an individual’s sense of morality and
religious convictions
cannot be a basis for the conclusion that
adultery is scandal under customary law as practiced for decades by
Mpondos. It
is a fact that in most religions adultery is not
acceptable.
[51]
Secondly in her answering affidavit the 5
th
respondent
admits that under Mpondo customary law an adulterine child born by an
unmarried woman “
might inherit his chieftaincy if there is
no male issue in all the houses of that chief
”. It
might very well be that what the married woman has done in having an
adulterous affair with the chief is scandalous
in her husband’s
family. However it does not appear to be scandalous for a man
to be in such a relationship as looked
at from that chief’s
family. . I do not understand the respondents to be saying that
a chief that has committed adultery
with somebody’s wife is
seen by his family and his community as having committed a scandal.
In any event the historical
narrative contained in the applicants’
founding and replying affidavits which has not been challenged by the
respondents
shows that this is in fact not the case. I could
not find any authority for the proposition that his behaviour is
regarded
by his family as scandalous nor have the respondents cited
any authority for their submission.
[52]
In addition to what happened in the cases of Mlahlwa/Maqayisa and
Gangatha there are authorities which make it clear that an
adulterine
child does inherit under certain circumstances. Professor J.L.
Bekker, in Seyimour’s Customary Law in Southern
Africa, fifth
edition at page 294 says:
“
The
Pondo differ: the natural son of a family head by an unmarried woman,
provided he is lawfully in the custody of the family head,
can only
inherit on failure of male issue of the family head and all his
wives; it seems that he cannot be placed in a particular
house or
section.”
[53]
Then at page 295 he says:
“
Among
the Pondo and the Zulu, adulterine children have ultimate rights of
succession only, that is they can succeed only when there
are no
regularly begotten males (which include children of valid
ukungena
and
ukuzalela
alliances)
in the whole of the deceased’s family head’s family
group.”
[54]
Historical evidence reveals that adulterine child have been fetched
from their mother’s homes and allowed to ascend to
position in
traditional leaderships in the past in similar situations as 1
st
applicant’s situation. This historical evidence is
undisputed by the respondents. I was referred by applicant’s
counsel Mr Mtshaulana to the reported case of
Mlahlwa v Maqayise
Prentice Hall 1954 (1), Native Appeal Cases page 39-40. This
case involved the same Mbangatha family that is before court
in this
matter. The facts of this case are worth mentioning as
reported:
“
One
Mbangatha had at least three wives. In the Great hut Valelo was
the eldest son, in the second hut Mtika was the eldest
son, and
Mpandula the second; Mtika’s eldest son was Maqayise and
Mpandula’s was Mbhesi whose eldest son was Marashu,
in the
third hut Qolo was the eldest son and his eldest son was Momoza.
Maqayise had two wives neither of whom produced any
sons by him.
His Great wife was Maselane. During the subsistence of his
marriage with Maselane Maqayise cohabited with
one Nolausi, the wife
of Ndabambi and she bore him a son, Mlahlwa, the birth taking place
after Maqayise’s death. Columbus
is the eldest son of
Mlahlwa, cattle were paid for the child Mlahlwa who was taken to the
late Maqayise’s kraal and grew
up there and was married from
that kraal; after Maqayise’s death his widow Maselane was
ngenaed by Momoza and Sifici was
the eldest son of that union.
On
these facts Sifici claimed in the Court of the Paramount Chief of
Western Pondoland to be the heir of Maqayise being the son
of his
Great Wife. Columbus, however, claimed the heirship by virtue
of the fact that his father Mlahlwa was fetched to Maqayise’s
kraal so that he could inherit the estate.
In
the chief’s court judgment was given in favour of Columbus but
on appeal to the Native Commissioner’s Court this
was set aside
and judgment of absolution from the instance entered, the Native
Commission holding that neither of the parties was
entitled to
succeed and the matter now comes on appeal on the ground that
although his father was the illegitimate son of Maqayise
by a married
woman, he (Mlahlwa) was paid for and taken to Maqayise’s kraal
and there brought up as a son of that house and
in accordance with
Pondo customs he became a son of that house and could succeed to his
father’s estate and so could his
son Columbus.”
[55]
It is reported that even though Mlahlwa did not succeed in the Native
Appeal Court, the Mbalisweni traditional community recognised
Columbus as chief and his descendants have never lost their position
as traditional leaders.
SUBMISSIONS
ON PONDO CUSTOMARY LAW.
[56]
Mr Mtshaulana based his argument on two main submissions which are
also foreshadowed in applicants’ papers. The
first one is
that the decision of the committee and the Premier must be set aside
on the ground that both erred in their interpretation
of Pondo
customary law of succession of illegitimate children. Put
differently the Committee and the Premier misconstrued
the evidence
of the witnesses on Pondo customary law of succession. I have
already dealt with the latter issue extensively
above when I dealt
with the Committee’s analysis of the evidence and the reasons
for the wrong analysis which included the
unfortunate
misrepresentation of Mr Maraqana’s evidence.
[57]
I have also dealt with the fact that evidently the Committee did not
have a transcribed record of its proceedings when it compiled
the
recommendations with the result that it did not hand over the record
of its proceedings when it gave the Premier its recommendations.
Therefore, the Premier had nothing else but the recommendations
themselves to rely on. Therefore she could not have exercised
a
discretion to reject them if she felt that the evidence did not
support the recommendations or they were somehow incorrect or
the
Committee’s recommendations were at variance with the evidence.
[58]
The second main point made on behalf of the applicants is that the
Committee and the Premier failed to recognise living customary
law
among the Pondos in Mbalisweni traditional community as related to
them by the various witnesses at the hearings before the
Committee.
[59]
I have already pointed out above that the evidence that dealt with
living customary law was not dealt with in that as indicated,
Mr
Maraqana’s submissions were unfortunately misrepresented by the
Committee in its recommendations to the Premier.
Secondly the
evidence of the Mbalisweni community members and Mbangatha family
members which pointed to historical events that
happened in the past
that indicated that illegitimate children where there are no male
issue by the deceased are in fact considered
was simply ignored by
the Committee and as such is not properly dealt with and analysed in
its recommendations. This resulted
in the recommendations being
irrational to the extent that crucial evidence is not dealt with and
rejected if the Committee felt
that it had any basis for rejecting
it.
[60]
In any event even at the risk of repetition, I must emphasize that
the Committee never put itself in a position of analysing
the
evidence properly by failing to have its own video recorded
proceedings transcribed so that it could then analyse the evidence
properly and make evidence based recommendations instead of relying
on vague memory and hand written notes that may or may not
have been
comprehensively made. In any event even if the Committee
members could have made or did make comprehensive notes,
which I
doubt, such notes would not have been as good as a transcribed record
and were evidently not furnished to the Premier.
Mr Bodlani,
counsel for the 1
st
, 2
nd
and 3
rd
respondents makes the following submissions in his heads of argument:
“
47
When considering a dispute or claim, the Commission is required to
consider and apply customary law and the customs of the relevant
traditional community as they applied when the events occurred that
gave rise to the dispute or claim. It follows that in
deciding
whether to uphold or dismiss a recommendation the Premier must
satisfy him or herself that the recommendation is in line
with the
customary position of the relevant traditional community as it was
when the events occurred that gave rise to the dispute
or claim.
48.
The question then is what was the Mpondo customary law position
regarding the inheritance of adulterine children during and/or
at
about the time of Nkaca’s birth. The correct answer to
this question will lead this Court to the correct finding
on this
very preeminent question in this matter. The customary position
regarding adulterine children in the Mpondo and other
areas has been
interpreted and explained in various decisions of the Native Appeal
Court.”
[61]
He then refers to a number of decisions by the Native Appeal Court
and most importantly the case of
Mlahlwa v Maqayise
where as
indicated above, it was held that an adulterine child by a married
woman cannot succeed to the natural father. He
then makes the
following submission:
“
49.4
An adulterine child by a married woman cannot inherit from or succeed
the natural father. He or she is presumed to be
the legitimate
child of his mother’s husband. No kind of customary
ritual can cure and/or cleanse him or her as a child
that has been
born from a conduct that is deemed to be disgraceful (inyala).”
[62]
Mr Notununu who appeared for the 5
th
respondent indicated
that his submissions are in line with the submissions that have been
made on behalf of the 1, 2 and 3
rd
respondents.
[63]
The Committee summarised its understanding of customary law in the
following terms in its recommendations to the Premier:
“
6.
Customary Law and Practices of Succession
6.1
According to Bennett: Customary Law in Southern Africa (2004: 37),
the African system of succession is invariably patrilineal.
The
rules of succession to a deceased are the same for all systems of
customary law in South Africa. The guiding principle
is always
primogeniture in the male line. The ideal candidate for heir is
therefore the deceased’s eldest son or failing
him the eldest
son’s eldest male descendant, namely, the eldest surviving
grandson. Failing any male issue in the eldest
son’s
line, succession passes to the second son and his male descendants
and so on through all the deceased’s sons.
6.2
If the deceased had no descendants the whole range of male ascendants
are considered in order of “
seniority
”. It
is governed by the principle of primogeniture that even in polygamous
marriages prevails. The rules are
plain, straight forward and
part and parcel of their system of family law, catering among others
for the status and well being
of all members of an extended family
the author concludes. Kerr: Customary Law of Immovable Property
and Succession (1990:99
says the same.
6.3
In many African communities an adulterine child belongs to the
husband of its mother and his people. In addition that
child
adopts the surname of his mother’s husband.”
[64]
The Committee seems to have been guided by this understanding as
expressed in paragraph 6 of its recommendations when it decided
on
the recommendations to the Premier. The question is whether
what is stated above is necessarily correct as a general exposition
of customary law especially Mpondo customary law. I do
not think so. The case of Mlahlwa is the clearest example
of
how Mpondo customary law is practised by Mpondos in Mbalisweni.
As stated above Columbus was the heir of an adulterine
child Mlahlwa
who had been fetched to Maqayise’s kraal so that he could
inherit the estate. It is not without significance
that in the
Court of the Paramount Chief of Western Pondoland Columbus was
successful. It is even more important that there
is
uncontradicted and unchallenged evidence that when Columbus lost his
case when the Native Appeal Court held that an adulterine
child by a
married woman cannot be a successor to the natural father, the people
ignored the decision of the Native Appeal Court
and continued to
recognise Columbus as their chief.
[65]
Mr Bodlani submitted that in so doing the Mbalisweni community was
being contemptuous of the Native Appeal Court in Maqayise.
What
he did not explain is that if that traditional community was being
contemptuous of the Court’s decision what were they
following
in recognising Columbus as their chief, if they were not practising
their customary law as understood by them at the
time.
Furthermore, I was not pointed to any case in the past since Maqayise
or before when that community faced with a similar
situation as in
Maqayise acted differently and contrary to what they did following
the Native Appeal Court’s decision.
[66]
It seems to me that in fetching Nkaca from his mother’s home at
an early age of 6 years and letting him grow amongst
his natural
father’s people following the death of his natural father and
expressing their desire for him to succeed his
father when he becomes
old enough they were again re-affirming their customary law.
This is acknowledged by the Premier who
in her letter in which her
decision is articulated says:
“
It
is clear that Nkaca the adulterine child of Ndoyisile Pheza was
assimilated to Ndoyisile’s family at the instance of his
close
relative Makhukhu.”
[67]
In the following sentence the Premier says:
“
This
was out of Ubuntu, not because of any wish to make him a successor to
Ndoyisile in the event of him not having any legitimate
issue.”
[68]
This second sentence is not justified by any reference to the record
nor is its basis explained. It also ignores the
fact that at
the time Nkaca was “
assimilated
”, first of all
Ndoyisile was already dead and secondly it was already known in his
family that he did not have “
any legitimate issue
”.
[69]
This takes me to an article written by Sandra Burman who was at the
time, a research fellow of both Queen Elizabeth House,
University of
Oxford and the University of Cape Town,
African Customary Law
,
Juta & Co, Ltd 1991 titled, “Illegitimacy and the African
Family in a Changing South Africa pager 36-51. In that
paper
she points out that there is a conflict between the law of the state
and the customary law ascribed to the African population.
She then says:
“
However
customary law is in practice, if not in the textbooks a constantly
changing legal system and the great social changes which
have been
taking place have led to very different practices from those
described in the customary law manuals. What follows
is thus
also an examination of the discrepancy between, on the one hand, the
customary law on illegitimacy as enshrined in the
written authorities
and applied by the state courts and on the other, what is actually
occurring. The latter may be described
as customary law in
practice…..”
[70]
The description of the children born of a married woman as
disgraceful (inyala) is not born out by history as lived in the
Mpondos in general and the Mbalisweni traditional community in
particular. In general there are authorities which recognise
the fact that adulterine children do in fact succeed and have always
succeeded historically when circumstances made it necessary.
For instance Professor J.C. Bekker in
Seymour’s Customary
Law in Southern Africa
5
th
Edition 1989 Juta & Co.
Limited at page 295 where he deals with the institution or adoption
of an heir in the various traditional
communities in Southern Africa,
says about the Mpondo:
“
Among
the Pondo and the Zulu adulterine children have ultimate rights of
succession only that is, they can succeed only when there
are no
regularly begotten males (which include children of valid ukungena
and ukuzalela alliances) in the whole of the deceased
family head’s
family group.”
[71]
H.W. Warner, described as the Late Permanent Member, Southern Native
Appeal Court in a Juta & Company Ltd publication called,
a
Digest
of South African Nature Civil Case Law 1894 – 1957
at page
271 he says:
“
According
to Pondo custom, an adulterine child cannot under any circumstances,
inherit the property of his mother’s husband.
The
illegitimate issue of the husband can, however, inherit in the
absence of legitimate male children.”
[72]
Clearly the notion of illegitimate children being a disgrace (inyala)
as a general concept that can be ascribed to Mpondo customary
law is
clearly not born out by authorities and Customary Law as lived and
practised by Mpondos in general and more specifically
the Mbalisweni
traditional community. There is a case to be made, at the very
least, for the notion of a discrace to be attributable
to
colonization and commol law and in no small measure
Christianisation. This point is well made by Burman (supra) at
page
50 where she says:
“
Indeed
in some cases involving illegitimacy which were observed in court, it
was far from clear which system the parties involved
believed they
were following, they had not necessarily considered the question and
were uncertain when questioned. Nor were
they necessarily both
operating on the same assumptions. This is perhaps an
inevitable outcome of Christianisation and urbanisation
that has been
taking place since the turn of the century and before, complicated by
enforced periodic returns to rural areas as
a result of apartheid
legislation and also indigenous customs.”
[73]
Unfortunately customary law was not afforded space to develop on its
own. On the contrary it was influenced by many factors
including the fact that the ultimate arbiters of customary law
disputes were the native commissioners who were white magistrates.
This would have been one of the reasons why the writers of our
Constitution, in entrenching equality in the Bill of Rights also
deemed it necessary not only ‘to recognise’ customary law
but also to make constitutional provisions that deal with
traditional
leadership and customary law.
[74]
Section 211 of the Constitution provides thus:
“
1.
The institution, status and role of traditional leadership, according
to customary law are recognised subject to the Constitution.
2.
A traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs
which
includes amendments to or repeal of, that legislation or those
customs.
3.
The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that specifically
deals with customary law.”
[75]
There are also the following constitutional provisions which are
equally importantly and relevant in this matter:
“
30.
Everyone has the right to use the language and to participate in the
cultural life of their choice, but no one exercising these
rights may
do so in a manner inconsistent with any provision of the Bill of
Rights.
31(1)
persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that
community –
(a)
to
enjoy their culture, practice their religion and use their language.”
[76]
The following questions do come to mind:
1.
Is the Mbalisweni traditional community a cultural community?
2.
Do they have the right to enjoy their culture as Mpondos?
3.
Are they entitled to determine their traditional leadership
succession according to their customary law?
[77]
My answer to all these questions is a resounding yes. In
addition I must point out that these rights have always been
there in
that the Mpondos, have lived according to these rights and cultures
and customs. They are not a constitutional era
invention.
All that the Constitution is doing or has done is to give them their
rightful place within and amongst other traditional
communities. To
impose a moral code that prescribes how a traditional leadership
succession is determined in specific circumstances
cannot be done
according to what obtains in other communities which may or may not
have been influenced by the factors referred
to above, is not
development of customary law but its subjugation. This, our
Constitution outlaws. That the Committee
and the Premier
described the customary law practice of Mpondos with respect to a
child born of married woman by another man as
a disgrace that cannot
be cleansed by any performance of any ritual is a disguised attempt
at appealing to cultural modernisation
that seeks to deny the Mpondos
in general and the Mbalisweni traditional community and the Mbangatha
Royal Family their right to
practice their culture and determine
their right of succession freely in line with their custom.
This is the very thing that
the Constitution seeks to outlaw, the
subconscious dominance of one culture by another or the promotion of
one culture or subjective
morality at the expense of another.
[78]
The Constitutional Court has spoken on what the correct approach to
customary law in the constitutional dispensation is.
In B
he
and others
v
Magistrate, Khayelitsha and other
[2004] ZACC 17
;
2005
(1) SA
580
(CC), Langa DCJ had this to say:
“
57.
Historically in South Africa, children whose parents were not married
at the time they were conceived or born were discriminated
against in
a range of ways. This was particularly true of children whose
family lives were governed by common law.
Much of the stigma
that attached to extramarital children was social rather than legal,
but that stigma was deeply harmful.
The legal consequences of
extra marital birth at common law flowed from the Dutch principle
that “
een
wijf maakt geen bastard
”,
the implications of which were that the extra marital child was not
recognised as having any legal relationship with his
or her father,
but only with his or her mother. The child therefore took the
mother’s name, inherited only from his
or her mother and the
father of the child had no parental obligations or rights vis-à-vis
the child. The law and social
practise concerning extra marital
children without doubt conferred a stigma upon them which was harmful
and degrading.”
[58]
It is important, however, in assessing the discrimination and stigma
attached to extra-marital birth to distinguish between
common law and
customary law. As Jones records:
‘
The
African means of dealing with extra marital birth is essentially
accommodative in intent and character; it is oriented towards
social
inclusivity. The mechanisms of maternal filiation provides an
extra marital child with a father, with a male ritual
and social
sponsor with a place in a conjugal unit, and it manufactures for the
child a full lineal identity. Very importantly,
these
attributes are socially visible – they counter what would
otherwise be clearly evident deficits in an extra-marital
child’s
social make up and are preserved and upheld by way of taboo against
reference to the child’s real paternity
or social position.
As far as is possible within the bounds of cultural reason, the
effect of the African system is therefore
to ensure that an extra
marital child’s position is not compromised by the
circumstances of his or her birth’.
Nevertheless,
extra marital sons had reduced rights of inheritance under customary
law as they would only inherit in the absence
of any other male
descendants. Contemporary research suggests too that there is
social stigma attached to extra-marital children,
though the stigma
probably varies depending on the circumstances and community
concerned.
[59]
The prohibition of unfair discrimination on the ground of birth in
section 9 (3) of our Constitution should be interpreted
to include a
prohibition of differentiating between children on the basis of
whether a child’s biological parents were married
either at the
time the child was conceived or when the child was born. As I
have outlined, extra-marital children did, and
still do, suffer from
social stigma and impairment of dignity. The prohibition of
unfair discrimination in our Constitution
is aimed at removing such
patterns of stigma from our society. Thus, when section 9(3)
prohibits unfair discrimination on
the ground of “
birth
”,
it should be interpreted to include a prohibition of differentiation
between children on the grounds of whether the children’s
parents were married at the time of conception or birth. Where
differentiation is made on such grounds, it will be assumed
to be
unfair unless it is established that it is not.”
[79]
It seems to me that the Mpondos have been recognising the place of an
illegitimate child in his or her father’s family
long before
the advent of the constitutional dispensation. I therefore,
cannot see how under the constitutional dispensation
founded on a
Bill of Rights, the rights of illegitimate children to succeed,
subject to the decision of the Royal Family to correctly
determine
who the rightful successor should be, can be negated. Were it
to be negated even unwittingly, that would, in my
view, be tantamount
to the denial of the Mpondos’ right to practise their culture.
This would in effect be the subjugation
of customary law to other
cultural influences from which it should be freed and disentangled
and given space to develop generically
unhindered by common law
influences or religious influences.
[80]
I am reminded of the observations made by T.W. Bennett in his book,
Customary Law in South Africa, a Juta Publication in which
at page 34
he observes:
“
Until
the advert of a new constitution in 1993, customary law had never
been fully recognised as a basic component of the South
African legal
system. Instead, Roman – Dutch law as treated as the
common law of the land. This unequal relationship
began with
the foundation of a settlement by the Dutch East India Company in
1652.”
[81]
At page 78 he then says:
“
Roman
– Dutch and customary law are now treated as equal partners.
The recognition and application of customary law,
however rests on a
right to culture for which special provision is made in ss 30 and 31
of the Final Constitution. Although
neither section in fact
makes any reference to customary law, it is generally taken to be a
significant element of the African
cultural tradition.”
[82]
The state, in all its formations including courts, must not close its
eyes and ears to the battering that customary law and
African culture
were subjected to in the past. Were they to do so, they will
have betrayed the indigenous people of this
country who chose to
observe their cultural practices and the constitutional provisions
relating to culture and customary law will
come to nought with the
state and courts being complicit in that betrayal.
[83]
In fact section 11(1) of the Framework Act gives the responsibility
of identifying a senior traditional leader to the royal
family
subject to applicable customary law. It does not give that
responsibility to the traditional community as a whole
or the
Premier. This must be in recognition of the fact that
succession is primarily a family affair. Therefore whether
the
rituals, if any, that need to be observed in legitimising a child
have been correctly observed is similarly a family affair
to which
the community at large gets informed as correctly pointed out by Mr
Maraqana, in this case.
[84]
In the circumstances I am satisfied that the Committee misinterpreted
Mpondo customary law and therefore the Premier should
have taken a
decision that differs with the recommendations of the committee and
provided written reasons for such decision as
provided for in section
26 (4) of the Framework Act. That decision should have been
that according to Mpondo customary law,
a child born of an adulterous
relationship can succeed as an heir to his father and can ascend to a
position of traditional leadership
if the royal family so determines.
[85]
On the issue of costs counsel were in agreement that this is a matter
that was deserving of two counsel being employed in light
of its
complexity. Furthermore the 5
th
respondent was, in
my view, obliged to resist the application as she had existing rights
that were worthy of protection in a matter
in which she could have
known no better on what the customary law is and that having been
recognised as the senior traditional
leader by the Premier before,
her opposition was in no way extravagant. In the circumstances
and in the exercise of my discretion
she must also get an order for
costs even though she has not been successful in opposing the
application.
[86]
Accordingly, the following order will issue:
1.
The decision of the first respondent dismissing first applicant’s
claim for the position of senior traditional leadership
of Mbalisweni
Traditional Council is reviewed and set aside.
2.
The first respondent is directed to take appropriate steps as
contemplated in section 26 read with sections 11 and 12 of
the
Framework Act with 60 days from the date of this order.
3.
The first respondent is directed to pay costs of applicants’
application including costs of two counsel.
4.
The first respondent’s is directed to pay 5
th
respondents costs.
__________________________
JOLWANA
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicants: P.Z. MTSHAULANA SC
WITH M MATHAPHUNA
Instructed
by: M.M HOLI ATTORNEYS
MTHATHA
Counsel
for 1
st
, 2
nd
& 3
rd
Respondents:
A. BODLANI
Counsel
for the 5
th
Respondent: M. NOTUNUNU
Instructed
by: M NOTUNUNU & ASSOCIATES
MTHATHA
Matter
heard on: 01 February 2018
Judgment
handed down on: 27 March 2018