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[2017] ZAKZPHC 61
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Mbuyazi v Premier of the Province of KwaZulu-Natal and Others (2367/2010) [2017] ZAKZPHC 61 (10 May 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 2367/2010
In
the matter between:
ZWELIBHEKILE
SIBUSISO
MBUYAZI
APPLICANT
and
THE
PREMIER OF THE PROVINCE OF
KWAZULU-NATAL
FIRST
RESPONDENT
MKHANYISENIMBUYAZI
SECOND
RESPONDENT
uMNDENI
WENKOSI
THIRD
RESPONDENT
STHEMBILE
VALENCIA MKHIZE N.O.
FOURTH
RESPONDENT
THE
M.E.C. OF THE DEPARTMENT OF
CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL
AFFAIRS
FIFTH
RESPONDENT
JUDGMENT
SISHI J
Introduction
[1]
This is an application for leave to appeal against the judgment of
this court delivered on 6 October 2016.
[2]
In the Notice of Application for leave to appeal, the findings of
fact or rulings of law appealed against are set out as follows:
a)
That there is no applicant in the present review
application (para 39).
b)
That the present review application should not be
consolidated with the action in Pietermaritzburg High Court case
number 4862/2015
(order para 1).
c)
That this court may or should rescind the order
granted by Van Zyl J on 7 June 2011 (order para 2).
d)
That this court may or should discharge the rule
nisi
granted by this
court on 11 May 2010, subsequently varied by this court on 26 May
2010, discharged by this court on 9 July 2013
and reinstated by the
Supreme Court of Appeal on 28 November 2014 (order para 3).
e)
Costs (order paras 4 and 5).
[3]
The grounds upon which the application is founded are that the appeal
will have reasonable prospect of success and/or that there
are
compelling reasons why the appeal should be heard. The details of
such grounds are fully set out in the Notice of Application
for leave
to appeal.
[4]
The application was opposed by the first, second, third and fifth
respondents.
[5]
Mr Goddard SC, counsel for the applicant, submitted correctly in my
view, that the issue of leave to appeal is governed by s
17 of the
Superior Courts Act 10 of 2013 (the Act).
[6]
Counsel then referred to para 17 of the Supreme Court of Appeal's
(SCA) judgment in
Mkhize: In re Mbuyazi v The Premier of the
Province of KwaZulu-Natal and Mbuyazi v Mbonambi Community
Development Trust
(822/2013) (2014] ZASCA
204
(28 November 2014) which deals with the issues of convenience. In
this paragraph the court stated:
'For the appellant to
succeed in the deceased's damages claim she will have to prove that
the deceased was wrongfully and unlawfully
removed as lnkosi. As has
been mentioned above, the disputes relating to this and other issues
have already been referred to trial
by Van Zyl J. It is therefore
convenient, and in fact to the advantage of all involved, that the
matter proceeds as directed by
Van Zyl J, so that the important
question of the rightful successor to late lnkosi Mbuyazi and/or the
deceased may be settled as
soon as possible.'
[7]
Mr Goddard thereafter submitted that the order granted by Van Zyl J
on 7 June 2011 had been rescinded by this court in para
2 of the
order and that there is a reasonable prospect that another court may
come to a different conclusion on this issue. As
such, the order by
Van Zyl J ought not to have been rescinded.
[8]
Counsel further submitted that para 2 of the court order takes away
the rights of the fourth respondent, Sithembile Valencia
Mkhize, to
pursue a claim for damages against the first and fifth respondents
for outstanding salary on behalf of the deceased,
as she had been
substituted as such. Mr Goddard submitted that if that claim is
pursued, consolidation of the review application
with an action under
case number 4862/2015 may be permitted.
[9]
Mr Goddard SC submitted that in terms first leg of the Act the appeal
would have to have reasonable prospects of success to
be granted. He
went on to state that the second leg of s 17(1)(a) is that there must
be some other compelling reason why the appeal
should be heard. He
submitted that it is important that there should be proper
determination of who should succeed as lnkosi and
that such a claim
should not be dismissed on technical grounds. He then submitted that
leave to appeal is normally granted in matters
where leadership is
disputed submitted that leave to appeal should be granted in the
circumstances of this case.
[10]
Mr Dickson SC for the first and fifth respondents opposed the
application for leave to appeal. He referred to the anomaly created
by the SCA in its judgment as referred to in the judgment of this
court. He submitted that there are no reasonable prospects of
success
in this appeal. He specifically referred to paras 31 and 32 of this
court's judgment dealing with the finding of the SCA
and the
interpretation thereof. He emphasised as stated in this court's
judgment that in terms of the SCA's judgment, if no person
other than
the deceased has standing to bring a review of the Premier's decision
to appoint the second respondent, then it would
seem that his
position is unassailable. Counsel then submitted that the review
application can no longer be pursued in the light
of the SCA's
judgment.
[11]
Mr Dickson submitted that the lnkosi's monetary claims are a separate
issue and that no one has taken that right away from
the fourth
respondent. The purpose of the present court's judgment is to put an
end to the dispute.
[12]
He finally submitted that the application for leave to appeal should
be refused.
[13]
Mr Ngema appearing on behalf of the second and third respondents
concurred with the submissions made by Mr Dickson SC. He submitted
that the fourth respondent's claim is limited to the monetary or
damages claim.
[14]
Applications for leave to appeal are governed by s 17 of the Act.
Section 17(1) provides as follows:
'17. (1) Leave to appeal
may only be given where the judge or judges concerned are of the
opinion that-
(a)
(i)
the appeal would have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.'
[15]
The grounds upon which this application for leave to appeal is
founded mainly stems from the misinterpretation of the SCA case
of
Mkhize
referred to
above.
[16]
The judgment of this court delivered on 6 October 2016 sought to be
appealed against, should be understood in the light of
the findings
of the SCA. In para 12 of the judgment the court stated as follows:
'I agree with the finding
of the court below that the deceased's claim, in the review
application, that the Premier's withdrawal
of his recognition as
lnkosi of the Mbuyazi Community be set aside; that the Premier be
directed to do all things necessary to
withdraw the appointment of
the second respondent as lnkosi of the Mbuyazi Community and to
reinstate him (the deceased) as such,
was personal to him and
therefore not transmissible to anyone else. He was the only one, were
he to be successful, who could be
reinstated as lnkosi. However,
since he has died, an order setting aside the Premier's withdrawal of
the deceased's recognition
as lnkosi and directing the Premier to
reinstate him as lnkosi can no longer be made. That claim, therefore,
could no longer be
pursued after the death of deceased.It terminated
upon his death. (See the relevant authorities referred to by Holmes
JA in
Government of the Republic of South
Africa v Ngubane
1972 (2) SA 601
(A) at
607A-B). In my view, the claim for reinstatement could not be ceded,
even after
/itis contestatio,
and
is thus not transmissible to the deceased heirs. It follows that the
appellant cannot be substituted as applicant in the review
application proper.’
[17]
The SCA confirmed the rights of Sthembile Valencia Mkhize to solely
pursue the damages claim on behalf of the estate of her
late husband
Zwelibhekile Sibusiso Mbuyazi. This appears to be sole acknowledgment
by the SCA of the possible right of action that
the executrix may
have had against the first and/or fifth respondents. This excluded
any claim that Sithembile Valencia Mkhize
had relentlessly pursued in
having her son appointed or being considered by Umndeni Wenkosi as
lnkosi of the Mbonambi Tribe.
[18]
What is clear from the SCA's judgment is that the issue of the
monetary claim for damages is a totally separate issue, wherein
the
SCA held that the fourth respondent was entitled to bring an action
against the MEC in this regard in her capacity as an executrix
of the
estate to adjudicate on the monetary issue. The monetary issue
however had nothing whatsoever to do with the declaration
of the
second respondent as lnkosi and Chief of the Mbonambi Tribe or the
fact that Zwelibhekile Sibusiso Mbuyazi may have been
unlawfully
removed as lnkosi.
[19]
In order for this court or any other court for that matter to deal
with the review application, there has to be an applicant
in the
review application.
[20]
The SCA was clear in its judgment, it found that the deceased's
claim, in the review application viz, that his removal be set
aside,
and that the appointment of the current lnkosi be set aside were
personal to him and were not transmissible to anyone else
{para 12).
[21]
Since the death of the deceased, an order in the review application
cannot be made.
[22]
This court in its judgment at para 31stated as follows:
‘
[13] It needs to
be emphasised that the Supreme Court of Appeal found;
(1) That the deceased's
review against the withdrawal of his recognition by the First
Respondent was not transmissible to anyone
else;
(2) That no decision on
this review could be made in the future al the instance of anyone;
and
(3) That the court
a
quo
correctly dismissed the Fourth
Respondent's claim to be substituted for the deceased in the review.'
The
judgment went on in para 32:
'[32] What is clear from
this judgment is that if no person other than the deceased has
standing to bring the review of the Premier's
decision to appoint the
Second Respondent, than it would seem that his position is
unassailable.'
[23]
It is In the light of the decision of the SCA that this court, in
para 39 of its judgment, made a finding that in the present
review
application there is no more an applicant. The SCA already held that
Sthembile Valentia Mkhize had no
locus standi
to persist with the review application. The
action Instituted Is merely designed to defeat the inevitable result
viz, that the order
granted by Van Zyl J stands to be set aside and
for the rule
nisi,
in
the absence of an applicant, stands to be discharged.
[24]
This court accordingly came to the conclusion to rescind the order
and to discharge the rule
nisi.
[25]
A case for consolidation of case number 236712010 and the action
brought under case number 486212015 was not made out In dismissing
the application for the consolidation of the two cases, the court was
of the view that It was not just and equitable to do so as
the two
claims had nothing to do with each another.
[26]
As Indicated above, the Issue of the monetary claim for damages Is a
totally separate issue, wherein the SCA held that the
fourth
respondent (Valencia) was entitled to bring an action against the
MEC, In her capacity as executor of the estate to adjudicate
on the
monetary Issues. This monetary issue has nothing to do with the
declaration of the second respondent as lnkosi and Chief
of the
Mbonambi Tribe or the fact that Zwelibhekile Sibusiso Mbuyazi may
have been unlawfully removed as lnkosi.
[27]
In view of the fact that Sthembile Valencia Mkhlze was no longer in a
position to pursue the issue of her late husband as to
the
chieftainship, that the order should be set aside and the rule
nisi
should therefore be discharged.
[28]
Having considered all the above, I am satisfied that the appeal has
no reasonable prospect of success. I am also satisfied
that there are
no other compelling reasons why the appeal should be heard in this
matter. The application for leave to appeal falls
to be dismissed.
[29]
In the result I make the following order: The application for leave
to appeal is dismissed.
________________
SISHIJ
Appearances
For
the Applicant
Adv G.D.Goddard SC
Instructed
by
Schreiber SmithAttorneys
c/o
Stawel & Co.
295
Pietermaritz Street
Pietermaritzburg
For
the 1
st
& 5
th
Respondents
Adv A.J. Dickson SC
Instructed
by
PKX Attorneys
Suite
36,3 Cascades Crescent
Montrose
Pietermaritzburg
For
the 2
nd
& 3
rd
Respondents
Adv J.N.N.Ngema
Instructed
by
Pretorius, Mdletshe & Partners Inc.
Kwa
Oukuza
c/o
McGregor & Associates
14
Leathern Street
Pietermaritzburg
Date
of hearing
29 March 2017
Dale
delivered
10 May 2017