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[2017] ZAGPPHC 84
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Yende and Another v Premier, Mpumalanga Province and Others (80576/2014) [2017] ZAGPPHC 84 (10 March 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 80576/2014
10/3/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
YENDE, FELANI
First
Applicant
AMAYENDE
ASOGENYANENI ROYAL FAMILY
Second
Applicant
and
THE PREMIER: MPUMALANGA
PROVINCE
First
Respondent
MEC
FOR CO-OPERATIVE GOVERNANCE AND
Second
Respondent
TRADITIONAL
AFFAIRS
THE
CHAIRPERSON: COMMISSION ON
Third
Respondent
TRADITIONAL
LEADERSHIP DISPUTES AND
CLAIMS:
MPUMALANGA PROVINCE
THEMBA
MICHAEL YENDE
Fourth
Respondent
AMAYENDE
ASOGENYANENI TRADITIONAL
COUNCIL
Fifth
Respondent
JUDGMENT
MANAMELA,
AJ
Introduction
[1]
On 19 July 2012,
[1]
the first
respondent (the Premier) recognised and appointed the fourth
respondent (Themba Yende)
[2]
as
the senior traditional leader of the traditional community known as
amaYendeasoGenyaneni (amaYende). This followed a process
in terms of
the provisions of the Traditional Leadership and Governance Framework
Act 41 of2003 overseen by the third respondent
(the Commission) in
terms of which amaYende were also recognised as a traditional
community.
[3]
[2]
The first and second applicants (the applicants), particularly the
first applicant (Felani Yende), call for the Premier's decision
to be
declared unlawful and contrary to adopted customary laws and
practices of the Zulu nation, to which amaYende subscribes;
reviewed
and set aside, and with that the senior traditional leadership be
awarded to the Felani Yende, alternatively that the
impugned decision
be returned to the Commission (constituted by anew and differently)
for reconsideration within a prescribed time-frame.
[4]
[3]
Felani Yende is the son of the late Leornard Mjozi Yende (Leonard
Yende and occasionally Leonard) and Thandiwe Maria Mnisi (MmaMnisi).
Leonard Yende passed on in 1997, but he is survived by MmaMnisi and
most of their children, including Felani Yende. Themba Yende
is also
the son of Leonard Yende [from a non-matrimonial relationship] with a
different mother. MmaHadebe, Themba Yende's mother
was never married
to Leonard Yende and thus Themba Yende was born out of wedlock. This
is effectively the location or origin of
the current dispute.
According to Felani Yende, on a correct application of Zulu customs
and practices, Themba Yende ought not
to have been appointed chief or
senior traditional leader of the amaYende, but him.
[4]
On the other hand, the respondents in opposition to the relief
sought, submit in the main that the process followed in the
recognition and appointment of Themba Yende as senior traditional
leader was above board. The respondents submit that Felani Yende,
the
second applicant, as represented by Sibongile Yende, Felani Yende's
sister and other family members, were, at all material
times, part of
the process; associated themselves with the outcome or were
indifferent to the outcome. They label the current application
an
afterthought, possibly motivated by the Felani Yende's realisation of
the privileges and financial trappings associated with
the status of
senior traditional leader.
[5]
[5]
The application, which is styled a review in terms of the provisions
of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) was
issued only in November 2014. This was more than two and half years
after the impugned decision was taken in 2012.
[6]
In the condonation application, incorporated in the review
application, the causes or reasons for the delay are essentially
stated
as being along these lines: the applicants' remote
geographical location (ostensibly from the location of this Court);
late awareness
or knowledge of the existence of the impugned
decision; lack of financial resources and limited level of education,
on the part
of the applicants.
[7]
The aforementioned reasons cumulatively gain forceful persuasion,
particularly when weighed against a backdrop of consideration
of the
interests of justice. Therefore, condonation will be granted. I also
did not sense forceful objections by counsel for the
respondents
against the granting of condonation, although this is not necessarily
decisive on the issue. The ruling will naturally
pave way for a
determination of the merits of the matter, after attention is given
to other technical or procedural issues, next.
Parties as cited
[6]
I consider attention to the issues I discussed next warranted.
Although, the second applicant is cited collectively as the royal
family, the instrumental person or representative is Sibongile Yende,
Felani Yende's sister and therefore Themba Yende's half-sister.
[8]
I could not find a resolution or anything confirming her authority.
This may become an issue for costs, particularly when considering
that the definition of or reference "royal family", may
include several other people. But, I will take this no further.
[7]
The fifth respondent is a traditional council and ostensibly
voluntary association of persons recognised by the Premier as
responsible for administering the affairs of the traditional
community of amaYende (the Traditional Council), in conjunction with
Themba Yende. Also, the standing of the Traditional Council may
become an issue on determination of liability for costs.
[8]
On the other hand, the notice of motion did not include the Member of
the Executive Council responsible for Local Government
and
Traditional Affairs in Mpumalanga (the MEC), as the second
respondent. The notice of motion only reflected four respondents
instead of the current five,
[9]
but the parties appear to be unanimous as to who the cited parties
are in this application. Also, the MEC was described or cited
as
second respondent in the founding affidavit and subsequent documents.
Brief
factual background
[9]
Further, from what is state above, the brief factual background to
this matter is as follows.
[10]
AmaYende reside at Iswepe Village, in the Piet Retief environ and
district of Mkhondo of the Mpumalanga Province. The applicants
and
Themba Yende also reside in this area. ArnaYende are a component of
the Zulu nation under leadership of King Goodwill Zwelethini.
[10]
They originate from the present-day Vryheid in KwaZulu-Natal
Province. Their founder and first-known leader was Ndlengezi, who
was
one of the commanders under King Shaka of the Zulu nation. AmaYende
migrated several times under different chiefs or leaders.
Zacharia,
who is Leonard's father died before assuming the role of ·chief.
Leonard was employed on a full-time basis, whilst
someone else was
running the affairs of the community without any supervision. Leonard
died in 1997, also without having acted
as chief.
[11]
[11]
Although, he never became one, Leonard was the last known senior
traditional leader of the AmaYende by title. Leonard was also
noted
as chief, despite the existence of his father's elder son who was
born under circumstances similar to those of Themba Yende.
Themba
Yende is the firstborn son of Leonard. As stated above, his mother is
MaHadebe, who was never married to Leonard. Leonard's
children with
MaMnisi are: Felani Yende; Sibongile, the
de
facto
second
applicant herein; Ntombikayise and the late Themba.
[12]
[12]
In 2007, the claims or applications for recognition of amaYende as a
traditional community and Themba Yende, as amaYende's
senior
traditional leader were lodged with the MEC. As indicated above, the
claims were finalised when the recognitions were granted
by the
Premier in 2012.
[13]
Dissatisfied with the outcome, the applicants wrote to the Premier
outlining the basis of their challenge to the impugned decision,
[13]
and during November 2013 they met members of the Commission, but were
told that there was nothing the provincial government could
do
regarding the challenge to the appointment of Themba Yende.
[14]
Thereafter, the process in terms of PAJA regarding the impugned
decision, was initiated
[15]
and consequently this application was issued in November 2014.
Record of the
proceedings (to be reviewed)
General
[14]
The record of proceedings to be reviewed comprises the transcription
of the video recordings of hearings; minutes of meetings;
report of
the Commission, incorporating recommendations to the Premier, and
notices regarding publication in the decision. However,
the
applicants somewhat appear to challenge the completeness of the
review record and lament "the absence of the full record
of the
proceedings"
[16]
and to
be undecided about reliance they place on the record filed.
[17]
But, they evidently chose to enrol the review, despite the machinery
of rule 53 of the Uniform Rules of this Court or the provisions
of
PAJA to enforce compliance by the respondents.
[15]
It is submitted that the following parts of the record have not been
furnished by the first, second and third respondents (state
respondents) and therefore missing from the review record: written
correspondences from the state respondents addressed to Felani
Yende
and his sisters in response to their letters;
[18]
minutes of meetings for hearings held November and December 2013,
presided over by a certain Mr Simelane or Ms Shongwe, and written,
video and/or audio recordings of the proceedings of a hearing or
meeting held during 2012 at the Piet Retief town hall.
[19]
But, I hasten to point out that, it is doubtful that the letters
would have, strictly speaking, formed part of review record, as
they
were sent by the applicants long after impugned decision was made.
Actually, the applicants have submitted that there was
no response to
their letters. The minutes of meetings in 2013 were also after the
impugned decision and the Piet Retief meeting
material is referred to
in the submissions made by the parties herein.
[20]
Therefore, the allegedly missing material, in my view, does not
affect the determination of the issues in this matter. Also, the
applicants did not pray for anything in this regard, other than that
the noncompliance ought to engender a negative view by
the Court
against the state respondents.
Report of the
Commission
[16]
The Commission, appointed in terms of section 22(1) of the
Traditional Leadership Framework, delivered its report in June 2012
and the Premier approved the report on 19 July 2012.
[17]
According to its report, the Commission dealt with the claims or
applications for recognition, based on section 21(3) of the
Traditional Leadership Framework, ostensibly by Themba Yende. It is
reported that a comprehensive investigation, research and public
hearing to ascertain and verify the claim for leadership by Themba
Yende, were conducted.
[21]
[18]
Further from what is stated above, the Commission reported, among
others, the following:
"5.8 CULTURE AND
CUSTOMARY LAW OF SUCCESSION AND PRACTICES AMONGST THE YENDE ROYALTY
Yende people are of Zulu
origin and observe Zulu traditions and customs. Their ancestors
served under Zulu kings and they continue
to pay allegiance to King
Goodwill Zwelithini.
· The first born
son by a traditional leader, irrespective of his mother being married
or not becomes an [sic] heir;
· Seniority is not
based on the wives or woman in the traditional leader's life but on
the birth of children. First born
males become senior.
· However if an
inkosi marries before he has children out of wedlock, the first wife
become senior.
· …
· The inner royal
family is made up of all royal family members (House of Ogenyaneni)
that is all males and females who are
descendants of Thunzi. The
married wives are excluded.
5.9 KEY DECISION-MAKERS
ON SUCCESSION WITHIN THE YENDE ROYALTY
The Framework Act ...
states that the royal family concerned, must (within a reasonable
time after the need arises) identify a person
who qualifies in terms
of customary law (Section 11(1)(a)).
There are three main
houses that are referred to as
amabekankosi
(decision
makers) amongst the Yende of oGenyaneni. These are:
· House of
Ndlwembi;
· House of
Mdolomba; and
· House of
Majalane
The above houses are
the only houses that can decide on the leadership succession.
5.10...
5.11 FINDINGS
It is the Committee's
findings in the light of all the above facts that:
· The committee
has noted the history of the Yende people
as per the research work
and documents containing historical background.
· Presentation in
opposing the application by MJ Yende could not negate the documentary
evidence and
the oral history presented to the committee.
· The committee
finds that the Yende of Ogenyaneni community is scattered around the
farms of PietRetief and still pay allegiance
to their chieftaincy
even though not officially recognized.
· The committee
finds that evidence submitted thus far suggest the existence of the
senior traditional leadership among the
Yende of Ogenyaneni
community.
·
The committee
finds that there exist a traditional community known as the Yende of
Ogenyaneni
who can be found at Panbult and other surrounding
farms in PietRetief.
5.13 RECOMMENDATIONS
It is in the light of the
above findings of the Committee recommends the following to the
Honourable Premier:
· That the Yende
Ogenyaneni people be recognized as a traditional community.
·
That the identified
Michael Themba Yende be recognized as a Senior Traditional Leader of
the Yende people."
[22]
[underlining added for
emphasis]
Applicants' grounds of
review and submissions
[19]
It is submitted that Felani Yende became aware that Themba Yende had
claimed the chieftainship of their father towards the
end of 2011 and
the beginning of 2012.
[23]
Together, with his sisters, Felani Yende says he "took every
possible step to bring to the attention of the authorities"
that
Themba Yende's claim of chieftainship was not sanctioned by the royal
family of amaYende.
[24]
I
hasten to point out that, no evidence is proffered in this regard as
to precisely what steps were taken. The first step that
is
specifically stated is only in March 2013, when Felani Yende and his
sisters wrote two letters referred to above.
[25]
[20]
Felani Yende bemoans the fact that after public hearings were
conducted by the Commission during 2012, nothing was communicated
in
writing to him and his family regarding the Premier's decision and
they only saw Themba Yende assume the position of traditional
leadership of the community without evidence of his appointment. It
is submitted that Themba Yende's claim for chieftaincy was
lodged
without the knowledge of the first applicant's family or second
applicant, which it is submitted is the rightful royal family
of the
descendants of Leonard Yende.
[21]
However,
Felani Yende confirms attending a meeting, together with sisters and
other family members, at Piet Retief during 2012 arranged
by the
Commission. He also confirms attending later meetings, whereat the
Commission stated that it was looking for information
and possibly
representations regarding Themba Yende's claim of chieftaincy.
[26]
Also, the Commission requested information relating to the genealogy;
customs regarding chieftaincy and succession customs of the
AmaYende
in order to verify Themba Yende' s claim to chieftaincy.
[27]
He says that, to the knowledge of the Commission, they (him and
members of his family) declined to support the claim of chieftaincy
by Themba Yende.
[28]
[22]
The applicants submit that the impugned decision was taken without
due and proper consideration of representations made by
them and
other members of the traditional community regarding the proper
application of the Zulu custom.
[29]
This, in my view, put to rest the denial of involvement by the
applicants. Further, the applicants say that the Premier was either
oblivious as to the correct customary laws and practices applicable
to amaYende as Zulus, when he took the impugned decision; had
acted
in aberration of his duties of due diligence and constitutional
obligations to consider the customary laws and practices
applicable
to the amaYende or allowed himself to be misled as to the correct
position. Consequently, the submission goes, the Premier
failed to
meet the Constitutional minimum standards and statutory thresholds
applicable to the appointment and recognition of traditional
leaders.
[23]
The following paragraphs from the founding affidavit, in my view,
summarises the crux of the applicants' case in this matter:
"60. It is trite in
the African custom and submit that it cannot be contradicted when I
say that, traditional leadership in
customary African law is rooted
in patrilineage and is genealogically transmitted.
A chief is such
by birth and by appointment or interest.
In spite of interest or
lack thereof, a chief remain chief, and in the event of his
abdication, which never really took place in
our community, the next
in line would be entitled to ascend the thrown [sc. throne]. And the
next in line.
61. As is clear from
annexure "FY-6", the Fourth Respondent, is in the same
historical and cultural quagmire as my grand
uncle Jakalazi. Despite
being the first-born son of my father, he is the son of an a
iNtombi
who was
never married nor selected as the great wife of my father. My mother
Maria Mnisi is the great wife. In this regard, I refer
to the
confirmation of this position to the affidavit filed by Mnisi Themba
Alfred a senior member of the community who was present
at lobola of
my mother by my father."
[30]
[24]
But, Felani Yende further submits, rather inexplicably in my
respectful view, that even if the appointment of Themba Yende
was
sanctioned by the relevant royal family, it still needs to be
reversed as it is based on "incorrect if not incongruent
interpretation and application of customary laws" of the
amaYende.
[31]
Respondents' case
[25]
The state respondents submit that the applicants do not say anything
about proper process not been followed, save to state
that Felani
Yende is the rightful person to be appointed as senior traditional
leader because he is the eldest son born of a marriage.
They argue
that this is not supported by evidence tendered during the hearings
to the effect that the eldest son becomes the successor,
despite the
fact that his mother was not married to the chief, in terms of the
customs and practice of the amaYende.
[26]
It is submitted that, despite admitting his attendance of the
meetings convened by the Commission, the applicants fail to produce
evidence of their objection to the claim by Themba Yende or a
counterclaim for the position. And that, at these meetings or some
of
them, evidence on the customary practices of the amaYende as a
traditionally community with regard to identification and appointment
of senior traditional leaders was presented to the Commission by some
of the members of the royal family.
[27]
The state respondents submit that in terms of the report of the
Commission, the applicants' house does not exclusively constitute
the
royal family and that, in fact, it is the second house of three
houses.
[32]
This appears to be
common cause between the parties.
[28]
Regarding the timing of the applicants' objection the respondents say
the following. The applicants were at all material times
aware that
Themba Yende has lodged a claim for recognition as the senior
traditional leader of amaYende, but yet they did not object
or file
their claim. The only person who lodged a separate claim, which was
later dismissed, is one Mbulali Joseph Yende. At no
stage did the
applicant object to the process leading up to the appointment of
Themba Yende, despite the full knowledge and participation
in the
process. The respondents further deny that the applicants knew of the
appointment of Themba Yende after the intervention
of the attorneys
of record only in May 2014. They submit that the recognition was
publicized in the government gazette, which is
the prescribed method
for informing all persons affected by the decision, during November
2012. There was also that meeting with
the Commission when they were
told nothing can be done about the impugned decision.
[29]
The respondents further express their dismay regarding the absence of
a challenge by the applicants to Themba Yende lodging
the claim for
the recognition of amaYende as the traditional community,
specifically with regard to his standing or
locus
standi
to
lodge this claim.
[33]
[30]
Themba Yende, for his own part, submits that he has been considered
chief of amaYende as far back as 2002, when the then Regent,
named
William Yende introduced him to the House of Traditional Leaders of
Mpumalanga Province. Felani Yende and his sister Ntombikayise
where
involved in this decision. I consider it opportune to point out that,
these allegations were not specifically dealt with
by the applicants,
save by way of a blanket denial.
[34]
[31]
The respondents effectively submit that the Premier was satisfied
that the prescribed processes leading up to the resolution
requesting
recognition of Themba Yende as the senior traditional leader were
complied with in terms of the applicable legal principles.
Applicable
legal principles
Legislation
[32]
The Constitution of the Republic of South Africa, 1996 (the
Constitution) recognises the institution and system of traditional
leadership. Section 211 of the Constitution is material in this
regard and reads as follows:
"(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
."
[underlining
added for emphasis]
[33]
But, the most applicable statutory provisions for a determination
required in this matter, are significantly located in the
Traditional
Leadership and Governance Framework Act 41 of 2003 (the Traditional
Leadership Framework). It is also common cause
that the Premier is
empowered in terms of the Traditional Leadership Framework and other
legislation to take administrative decisions
relating to traditional
leadership.
[34]
The following definitions from section 1 of the Traditional
Leadership Framework will become relevant in the discussions to
follow:
""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 familv members
who
are close relatives of the ruling family;
…
"senior
traditional leader"
means a traditional leader of a specific
traditional community who exercises authority over a number of
headmen or headwomen in
accordance with customary law, or within
whose area of jurisdiction a number of headmen or headwomen exercise
authority;
…
"traditional
leadership"
means the customary institutions or structures,
or customary systems or procedures of governance,
recognised,
utilised or practised by traditional communities
... "
[underlining
added for emphasis]
[35]
Section 11 of the Traditional Leadership Framework provides for
recognition of, among others, senior traditional leaders and
reads in
the material part:
"(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 Jaw 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.
(2)(a) The provincial
legislation referred to in subsection (1)
(b)
must at least
provide for (i)notice in the
Provincial Gazette
recognising
the person identified as senior traditional leader, headman or
headwoman in terms of subsection (I);
(i) a certificate of
recognition to be issued to the identified person; and
(ii) the relevant
provincial house of traditional leaders to be informed of the
recognition of a senior traditional leader, headman
or headwoman.
(b)
Provincial
legislation may also provide for-
(i) the election or
appointment of a headman or headwoman in terms of customary law and
customs; and
(ii) consultation by the
Premier with the traditional council concerned where the position of
a senior traditional leader, headman
or headwoman is to be filled.
(3) Where there is
evidence or an allegation that the identification of a person
referred to in subsection (1)
was not done in accordance with
customary law, customs or processes,
the Premier-
(a) may refer the matter
to the relevant provincial house of traditional leaders for its
recommendation; or
(b)
may refuse to issue a certificate 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.
(4) Where the matter
which has been referred back to the royal family for reconsideration
and resolution in terms of subsection
(3) has been reconsidered and
resolved, the Premier must recognise the person identified by the
royal family if the Premier is
satisfied that the reconsideration and
resolution by the royal family has been done in accordance with
customary law."
[underlining
added for emphasis]
[36]
The functions of the Commission are explained in section 25(3) of the
Traditional Leadership Framework as follows:
"(1) The Commission
operates nationally in plenary and provincially in committees and has
authority to investigate and make
recommendations on any traditional
leadership dispute and claim contemplated in subsection (2).
(2)(a)
The
Commission has authority to investigate and make recommendations
on
(i) a case where there
is doubt as to whether a kingship or, principal traditional
leadership, senior traditional leadership or
headmanship was
established in accordance with customary law and customs;
(ii) a case where
there is doubt as to whether a principal traditional leadership,
senior traditional leadership or headmanship
was established in
accordance with customary law and customs;
(iii) a traditional
leadership position where the title or right of the incumbent is
contested;
(iv) claims by
communities to be recognised as kingships, queenships, principal
traditional communities, traditional communities,
or headmanships ...
(b) A dispute or claim
may be lodged by any person and must be accompanied by information
setting out the nature of the dispute
or claim and any other relevant
information.
(c) The Commission may
decide not to consider a dispute or claim on the ground that the
person who lodged the dispute or claim has
not provided the
Commission with relevant or sufficient information or the provisions
of section 21 have not been complied with.
(3)(a) When
considering a dispute or claim, the Commission must consider and
apply customary law and the customs of the relevant
traditional
community as they applied when the events occurred that gave rise to
the dispute or claim.
(b)
The Commission
must-
(i)...
(ii) in respect of a
principal traditional leadership, senior traditional leadership or
headmanship, be guided by the customary
law and customs and criteria
relevant to the establishment of a principal traditional leadership,
senior traditional leadership
or headmanship, as the case may be....
"
[underlining
added for emphasis]
[37]
The Traditional Leadership Framework was amended by the Traditional
Leadership and Governance Framework Act 23 of 2009 and
the amended
section 21(3) of the former provides that:
"(3) Where a dispute
or claim contemplated in subsection (I) has not been resolved as
provided for in this section, the dispute
or claim must be referred
to the Commission."
[38]
Other than the above-mentioned national legislation, there is also
provincial legislation in the form of the Mpumalanga Traditional
Leadership and Governance Act 3 of 2005. However, the parties appear
to agree that this legislation was not applied when the impugned
decision was taken. But, nothing really turns on this for current
purposes.
[39]
As this is a review in terms of the provisions of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), it is warranted
to quote
section 6 thereof of PAJA, which provides for judicial review of
administrative action and reads as follows in the material
part:
"(1) Any person may
institute proceedings in a court or a tribunal for the judicial
review of an administrative action.
(2) A court or tribunal
has the power to judicially review an administrative action if-
(a) the administrator who
took it-
(i)
was
not authorised to do so by the empowering provision;
(ii)
acted under a delegation of power which was not authorised by
the empowering provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or condition prescribed
by an empowering provision was not complied with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by an error of law;
(e)
the action was taken-
(i)
for
a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii) because irrelevant
considerations were taken into account or relevant considerations
were not considered;
(iv) because of the
unauthorised or unwarranted dictates of another person or body;
(v) in bad faith; or
(vi) arbitrarily or
capriciously;
(f)
the action
itself-
(i)contravenes a law or
is not authorised by the empowering provision; or
(ii) is not rationally
connected to-
(aa)
the purpose for which it was taken;
(
bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator;
(g)
the
action concerned consists of a failure to take a decision;
(h)
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative
action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power or performed
the function;
or
(i)
the action is otherwise unconstitutional or unlawful.
(3) ... "
[underlining
added for emphasis]
[40]
It may be opportune to reiterate that, according to the applicants
the impugned decision was taken in breach of the Constitution
and
sections 6(2)(b) and (c) of PAJA. Therefore, the applicants say the
administrative action of the Premier was taken, first,
without
compliance with "mandatory and material procedure or condition
prescribed by an empowering" legislation or provision
and that
"the action was materially influenced by an error of law".
[35]
But, as it would become clearer in the discussions of the grounds and
submissions below, there is no need to compartmentalise the
issues
herein.
[36]
Case
law
[41]
I think from our demographics it is an obvious fact that traditional
leadership applies to majority of our people living in
rural
areas.
[37]
Majority of our
people still subscribes to customs and traditional practices to
regulate or control conduct or the use of power.
It is therefore not
surprising that our Courts, including at the higher level, have dealt
with issues not only regarding traditional
leadership or but other
traditional or related issues.
[42]
In the
Nwamitwa
[38]
decision the following
was said which borrowed largely from other decisions:
"[44] As a result,
the process of determining the content of a particular customary law
norm must be one informed by several
factors. First, it will be
necessary to consider the traditions of the community concerned.
Customary law is a body of rules and norms that has developed over
the centuries.
An enquiry into the position under customary law
will therefore invariably involve a consideration of the past
practice of the community.
Such a consideration also focuses the
enquiry on customary law in its own setting rather than in terms of
the common law paradigm,
in line with the approach set out in
Bhe.
48
Equally, as this Court noted in
Richtersveld,
courts embarking
on this leg of the
enquiry must be cautious of historical records,
because of the distorting tendency of older authorities to view
customary law through
legal conceptions foreign to it.
[45] It is important to
respect
the right of communities that observe systems of customary
law to develop their law.
This is the second factor that courts
must consider. The right of communities under section 211(2) includes
the right of traditional authorities to amend and repeal their own
customs.
As has been repeatedly emphasised by this and other
courts,
customary law is by its nature a constantly evolving
system.
Under pre-democratic colonial and apartheid regimes, this
development was frustrated and customary law stagnated. This
stagnation
should not continue, and the free development by
communities of their own laws to meet the needs of a rapidly changing
society
must be respected and facilitated.
[46] It follows that the
practice of a particular community is relevant when determining the
content of a customary law norm. As
this court held in
Richtersveld,
the
content of customary law must be determined with reference to both
the
history
and the usage of the community concerned. "Living"
customary law is not always easy to establish and it may sometimes
not be possible to determine a new position with clarity.
However,
where there is a
dispute over the law of a community, parties should strive to place
evidence of the present practice of that community
before the courts,
and
courts have a duty to examine the law in the context of a community
and to acknowledge developments if they have occurred."
[39]
[underlining
added for emphasis]
[43]
The following
dicta
from
Bhe and
Others v Magistrate, Khayelitsha,
[40]
referred to in
Nwamitwa,
although
dealing with an indirect angle of this matter, is very informative:
"[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
extra-marital children was social and religious in origin, 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
bastaard', 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-a-vis
the child. The
law and social practice 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
mechanism 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
extramarital 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."'
[44] The direct point
from the
Bhe
decision, also referred to in
Nwamitwa
above,
which deserves emphasis is that, where there is a dispute over the
customary laws of a community, parties should strive to
place
evidence of the present practice of that community before the Courts
and the Courts have a duty to examine the law in the
context of the
community and to acknowledge developments if they have occurred.
However, this being a review, it behoves the applicants
to have
placed any such evidence before the Commission for consideration when
it fulfilled its functions, and not only arise for
the first time on
review.
[45]
It is also worthy of emphasis to state that section 25(3) of the
Traditional Leadership Framework requires of the Commission
to
consider and apply customary law and the customs of the relevant
traditional community as they were when the events occurred
that gave
rise to the dispute or claim.
[41]
Other authorities
[46]
The applicants cite as authorities, among others, academic
textbooks.
[42]
They rely on
these and other authorities for their submissions, including that in
terms of customary law of succession and particularly
succession to
chieftaincy, the identification of the heir to the throne of
chieftaincy is based on the primogeniture rule. In terms
of this
rule, the heir to the chieftaincy is primarily identified from the
principal house
("indlukulu"),
being
the house of the first wife married by the chief referred to as the
iNkosikazi, whose first-born son is first in line of succession
to
his father's throne. Other sons would inherit following the lineage
of seniority.
Submissions
and legal principles (an analysis)
General
[47]
The facts of this matter are very intriguing. But, the facts and
consequently the submissions made on behalf of the parties
all have
to be determined from the enabling or legislative framework. This is
the Traditional Leadership and Governance Framework
Act 41 of 2003
(the Traditional Leadership Framework). As its title suggests, this
legislation provides a framework for determining
issues and claims
relating to traditional leadership. This is therefore the primary
authority or source of reference for anything
relating to traditional
leadership, including a determination of the issues in this matter.
It is therefore, in my view, inconceivable
that any of the parties
would hold a contrary view.
[48]
To start of the discussion,
section 1
of the
Traditional Leadership
and Governance Framework Act defines
a "royal family" as
"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". The royal family is the
critical player, so to speak in the identification and appointment of
traditional leaders.
[43]
In
this matter, it is common cause or if it is not, I accepted this to
be a proven fact, that the amaYende royal family comprises
three
houses. This includes, the house of Felani Yende and his sisters.
Themba Yende would probably fall into one of these houses,
but I
don't have to hold a firm view on this. Therefore, this being an
established fact, the applicants are incorrect in asserting
that they
have the exclusive role of identification and appointment of senior
traditional leader of amaYende. This is how I understand
their
position. The views of other members of the royal family ought to be
considered and this include representations made to
the Commission. I
will return to this issue.
[49]
It is common cause that Themba Yende lodged a claim for traditional
leadership of the amaYende and that Felani Yende did not
lodge any
claim. It is also common cause that a certain Mbulali Yende also
lodged a claim, but it was ultimately dismissed. From
available
evidence, I could not find indication of any objection by the
applicants to the appointment of Themba Yende. It is correct
that
Felani Yende and at least his sisters may have not supported the
claim by Themba Yende, but my assessment is that they did
not make
representations in this regard during the investigations by the
Commission. They were aware of the process and were part
of it. They
only started making representations after the Premier had already
published the impugned decision. Yes, I agree with
the respondents
that the horse has already bolted by this time. The common theme in
the case law discussed above is that parties
should strive to place
evidence of the present practice of that traditional community before
the Courts. I have already expressed
a view above that the
circumstances of this matter this ought to have happened at the
Commission before the impugned decision was
made.
[50]
Regarding the vigourous submission that the Zulu customary law and
practices ought to have been applied, I agree with or associate
myself with the submissions by the respondents that, the prevailing
customary law as practised by the amaYende, as a traditional
community, at the relevant time is material. This is actually the law
as stated elsewhere herein.
[44]
Therefore, a factual enquiry or as stated in
section 25(3)
of the
Traditional Leadership Framework an investigation, is required. In my
view the Commission distress its duties satisfactorily
in this
regard. I do not find any reason to interfere with the impugned
decision, including the process followed in its taking.
[51]
Next, I tum to the specific grounds of review of this matter, but
obviously there has already been an extensive discussion
above, so
this ought not to detain me. I make use of some questions as
subheadings.
Does the decision
recognising the fourth respondent as a senior traditional leader
lawful (i.e
.
did it comply with the provisions of the
applicable laws)?
[52]
I have already answered this question by concluding that there has
been compliance with the applicable laws which requires
a
consideration and determination of the prevailing customary law and
practices of the particular traditional community. I do not
consider
a wholesale application of what the applicants suggest is the
prevailing Zulu customary law to be the starting point,
but the
provisions of the Traditional Leadership Framework. Once this
approach is adopted one would get to what the traditional
community
considers to be their customary law and practices, even if, as in the
case of amaYende may not be what the authorities
relied upon by the
applicants considered to be Zulu customary law years ago, mostly
before the advent of Constitutional democracy.
Whether customary
law and practice as espoused by the Zulu nation particularly among
AmaYende asoGenyaneni traditional community
adhered to by the
Commission?
[53]
I have just dealt with this above. The applicants rely on
Mamone
to drive this point home. But, I understand
Mamone
to be
advancing a different point. In my view,
Mamone
simply
repeated the provision in
section 25(3)
of the Traditional Leadership
Framework that, the customary law or customs to be applied has to be
what was in practice when the
dispute or claim arose. This is a
critical question which simply affirms the status of customary law as
dynamic and evolving. The
authorities proscribe characterisation of
customary law as static, as the applicants submit. Therefore, what
was the prevailing
practice in 2007 when Themba Felani lodged his
claim for chieftaincy is the applicable regimen of customs and
practices of the
amaYende to be applied. There is no need to go back
to time immemorial, so to speak.
Conclusion and Costs
[54]
Against the backdrop of what is discussed above, I cannot find
anything to sustain the relief sought by the applicants. The
application will thus fail.
[55]
Counsel for the applicants submitted that, I should consider when
dealing with the issue of costs that, the issues raised by
the
application are of importance and that his clients are not of high
literacy levels. But, I am not completely swayed by these.
The
applicants pursued the matter even when it was clear that the
impugned decision cannot be faltered. They attempted to dissociate
themselves from what took place in an effort to cast doubt on the
work of the Commission and consequently the decision taken by
the
Premier based on the recommendations by the Commission. This, even
if, not
mala fide,
was ill-conceived and ill advised. The
fourth and fifth respondents can proffer the same reasons as the
applicants and they
ought not to be left out of pocket. But, I can
understand that when the applicants initially launched the
application, they did
not really appreciate the full extent of the
reasons and defences of the respondents. However, this ought to have
dramatically
changed after they received the opposing affidavits. By
then the applicants were already enjoying the benefit of legal
representation.
Therefore, I will make no order as to costs up to the
delivery of opposing affidavits by the state respondents, but fourth
and
fifth respondents will recover their full costs.
Order
[56]
In the premises, I make the following order:
(a) the application is
dismissed;
(b) the first and second
applicants are liable, jointly and severally, the one paying the
other to be absolved, for costs of the
application of the first,
second and third respondents from after service of the first, second
and third respondents' opposing
affidavit; and
(c) the first and second
applicants are liable, jointly and severally, the one paying the
other to be absolved, for costs of the
application of the fourth and
fifth respondents.
-----------------------------------------
K. La M. Manamela
Acting
Judge of the High Court
DATES
OF HEARING: 08 & 09 DECEMBER 2016
DATE
OF JUDGMENT: 10 MARCH 2017
Appearances:
For
the First and Second Applicants: Adv M Mathaphuna
Instructed
by: Ndobela Lamola Inc, Pretoria
For
the First, Second and
Third
Respondents: Adv MS Mangolele
Instructed
by: State Attorney, Pretoria
For
the Fourth and Fifth Respondents: Adv MS Phaswane
Instructed
by: Mketsu & Associates Inc, Pretoria
[1]
Although the publication in the Government Gazette was only in
November 2012, the approval or recognition by the Premier was
in
July 2012.
[2]
Without implying any disrespect to the parties herein, including
those with royal titles or potential royal titles, I refer to
the
parties herein without the use of titles.
[3]
See
section 11
of the
Traditional Leadership and Governance
Framework Act 41 of 2003
.
[4]
See pars 1-7 of the notice of motion on indexed pp 2-3.
[5]
See par 76 to the founding affidavit on indexed p 23.
[6]
See par 1 above.
[7]
See pars 19 - 40 of the founding affidavit on indexed pp 13 - 16.
[8]
See par 6 of the founding affidavit on indexed p 9.
[9]
See the notice of motion on indexed p 1.
[10]
See par 26 of the supplementary founding affidavit on indexed p 62;
par 62.3 of the state respondents' opposing affidavit on
indexed p
202.
[11]
See annexure "FY I" to the founding affidavit on indexed p
33.
[12]
See annexure "FY I" to the founding affidavit on indexed p
34.
[13]
See par 29 of the founding affidavit indexed p 14; annexures "FY2"
and "FY3" to the founding affidavit on
indexed pp 41-42.
[14]
See par 31 of the founding affidavit indexed p 14; annexure "FY4"
to the founding affidavit on indexed p 43.
[15]
See par 36 of the founding affidavit indexed p 15; annexure "FYl"
to the founding affidavit on indexed p 29- 38.
[16]
See par 46 of the founding affidavit indexed p 18.
[17]
See par 48 of the founding affidavit indexed p 18.
[18]
See annexures "FY2" and "FY3" to the founding
affidavit on indexed pp 41-42.
[19]
See par 11 of the supplementary founding affidavit on indexed pp
58-59.
[20]
See par 21 below.
[21]
See annexure “FY1” to the founding affidavit on indexed
pp 29-38.
[22]
See annexure “FY1” to the founding affidavit on indexed
pp 35-37.
[23]
See par 28 of the founding affidavit indexed p 14.
[24]
See par 28 of the founding affidavit indexed p 14.
[25]
See par 29 of the founding affidavit indexed p 14; annexures "FY2"
and "FY3" to the founding affidavit on
indexed pp 41-42.
[26]
See pars 49-50 of the founding affidavit on indexed pp 18-19.
[27]
See par 52 of the founding affidavit on indexed p 19.
[28]
See par 53 of the founding affidavit on indexed p 19.
[29]
See par 45 of the founding affidavit indexed p 17.
[30]
See pars 60-61 of the founding affidavit on indexed p 21.
[31]
See par 78 of the founding affidavit on indexed p 26.
[32]
See par 6 of the first, second and third respondent's opposing
affidavit (state respondents' opposing affidavit) on indexed pp
177-178.
[33]
See par 29.1 of the state respondents' opposing affidavit on indexed
pp 189-190.
[34]
See pars 37-45 of the replying affidavit to fifth respondent's
opposing affidavit on indexed pp 262-263.
[35]
See
section 6(2)(d)
of PAJA.
[36]
See
Hoexter
C Administrative Law in South Africa
2nd
ed (Juta Cape Town 2012) at p 254.
[37]
See the unreported decision (both counsel and I could not find the
reported version, if any)
Tinyiko
Lwandhlamuni Philla Nwamitwa Shilubana and Ten Others v Sidwell
Nwamitwa together with Amici Curiae
,
Case CCT 03/07
[2008] ZACC 9
, decided on 04 June 2008 (
Nwamitwa
)
at par [43] where it is stated: "It is a body of law by which
millions of South Africans regulate their lives and must
be treated
accordingly."
[38]
See footnote 37 above.
[39]
See
Nwamitwa
at pars [44]-[46] albeit
quoted without authorities or footnotes.
[40]
Bhe and
Others v Magistrate, Khayelitsha, and Others (Commission/or Gender
Equality as Amicus Curiae); Shibi v Sithole and Others;
South
African Human Rights Commission and Another v President of the
Republic Of South Africa and Another
2005
(1) SA 580 (CC).
[41]
See
Mamone
v Commission on Traditional Leadership Disputes and Claims
2015 JDR 0015 (CC) at
pars [19] - [20].
[42]
Bekker JC and Coertze
Seymour's
Customary Law in Southern Africa
4th
ed (Juta Cape Town 1982); SM Seymour
Bantu
Law in South Africa
3rd
ed (Juta); Bennett TW
A
Sourcebook of African Customary Law for Southern Africa
1
st
ed (Juta Cape Town
1991).
[43]
See
section 11
of the Traditional Leadership Framework.
[44]
See
Mamone
v Commission on Traditional Leadership Disputes and Claims
2015 JDR 0015 (CC) at
pars [19] - [20].