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[2017] ZAKZPHC 41
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Umndeni Wenkosi of the Mkhwanazi Traditional Community at Mpukunyoni and Another v Premier of KwaZulu-Natal and Others (11037/2011) [2017] ZAKZPHC 41 (17 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 11037/2011
In
the matter between:
UMNDENI
WENKOSI
OF THE MKHWANAZI
TRADITIONAL
COMMUNITY AT
MPUKUNYONI
First
Applicant
KHETHUKUTHULA
DALISU SIPHELELE MKHWANAZI
Second
Applicant
and
THE
PREMIER OF
KWAZULU-NATAL
First
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
Second
Respondent
MZOKHULAYO MYSON
MKHWANAZI
Third
Respondent
ORDER
[1]
The recognition of the Third Respondent as
Inkosi
of
the Mkhwanazi Traditional Community at Mpukunyoni, KwaZulu-Natal by
the First Respondent acting in terms of the provisions of
s19 of the
KwaZulu-Natal Traditional Leadership and Governance Act No. 5 of 2005
is hereby reviewed and set aside.
[2]
The First Respondent is directed to consult with the
Applicants (and where applicable, other persons identified as
uMndeni
wenkosi
on the basis of traditional roles) concerning the
identification of an
Inkosi
for the Mkhwanazi Traditional
Community at Mpukunyoni, KwaZulu-Natal as provided for in terms of
s19 of the Act and to recognise
and appoint an
Inkosi
in
compliance with the provisions of the Act.
[3]
The First and Second Respondents are directed to pay the costs
of the application, including any reserved costs, such costs are to
include the costs occasioned by the employment of two counsel.
[4]
The First and Second Respondents are directed to pay the costs
occasioned by the application to intervene, including any reserved
costs.
JUDGMENT
HENRIQUES
J
Introduction
[1]
The applicants
[1]
seek to review the decision of the Premier, the first respondent to
recognise and appoint the third respondent as
Inkosi
of the Mkhwanazi Traditional Community at Mpukunyoni, KwaZulu-Natal
acting in terms of s 19(2) of the KwaZulu-Natal Traditional
Leadership and Governance Act 5 of 2005 (“the Act”).
[2]
Having regard to the founding affidavit, such review is
premised in terms of the provisions of the Promotion of
Administrative Justice
Act 3 of 2000 (“PAJA”) as such
decision is flawed,
alternatively
not reasonable as the first
respondent failed to apply his mind in the face of expert opinions,
alternatively
the common law.
[3]
The applicants submit that the decision of the first
respondent to appoint the third respondent was flawed as he did not
apply his
mind to the recommendations contained in the investigation
report of Luthuli Sithole Attorneys, its own expert and failed to
apply
his mind having regard to the uncontested evidence presented by
the second applicant and his expert Professor Maphalala. The decision
is not rationally connected to the information before him and no
reasonable decision maker could have come to such decision.
The
events preceding the application and the affidavits and reports filed
[4]
It is necessary to set out briefly the background facts which
led to the appointment of the third respondent and to deal with the
affidavits filed in the matter as well as the investigation report
and affidavits of Professor Maphalala in order to deal with
the
issues for determination.
[5]
On the 29
th
of August 2007 the late
Inkosi
Minias Mzindeni Mkhwanazi died.
[6]
The deponent to the
founding affidavit alleges that she is the wife of the late
Inkosi
of the Mkhwanazi Traditional Community at Mpukunyoni (“the
community”) and is duly authorised to depose to the founding
affidavit in terms of the customs and traditions of the community on
behalf of the mother of the late
Inkosi
,
Annah, his two wives to whom he was married by customary union and
the direct descendants of the
Inkosi
who are his children.
[2]
[7]
After the death of the
Inkosi
in 2007 his successor was
Siyabonga, who had the support of the
uMndeni wenkosi.
However
before he could be nominated and appointed in terms of s 19 of the
Act as successor, he died in a motor vehicle accident.
After the
death of Siyabonga, the next successor was the
Inkosi
’s
other son Dalisu. He enjoyed the support of the
uMndeni wenkosi.
[8]
In April 2010 the second respondent was informed, informally,
that the
uMndeni wenkosi
recognised Dalisu as successor to the
Inkosi
. According to the deponent Dalisu who was acting in the
role was subsequently interdicted from doing so by the first and
second
respondents in an application instituted under case number
8263/2011. A
rule
nisi
was granted on 30 August 2011 by
Vahed AJ. Such application was subsequently referred for the hearing
of oral evidence by Lopes
J on 20 August 2012.
[9]
The second applicant and the third respondent were identified
by certain factions within the Mkhwanazi Traditional Community to
become the new
Inkosi
.
[10]
The first and second respondents were made aware of the
dispute between the two factions and the second respondent through
its administrative
department attempted to resolve the dispute, but
as issues in respect of the second respondent’s impartiality
arose, the
first respondent appointed Luthuli Sithole Attorneys (LSA)
to investigate the dispute and compile a report and make
recommendations
to the first and second respondents.
[11]
Pursuant to such
appointment, an investigation report
[3]
was prepared and recommendations made. The first respondent
recognised the third respondent as
Inkosi.
[12]
On 23 September 2011, the first respondent’s decision
was advertised in the Provincial Gazette in which it appointed the
third
respondent as
Inkosi
. On the 25
th
of November
2011 the present review application was launched.
[13]
In December 2011 after service of the application papers, the
first and second respondent opposed the proceedings. On 4 January
2012 the first and second respondents served and filed a notice in
terms of Rule 7(1) which stated as follows:
‘
KINDLY
TAKE NOTICE
that the
First and Second Respondents herein hereby challenge the
authority of the Applicant to act and call upon each member
of the
Applicant (which are members of the eight Royal Houses namely;
Baswazini Madwaleni, Mahujini, oPhondweni, Nomathiya, Hhohho,
Nsolweni and Shikishela) to furnish powers of attorney authorizing
the above mentioned attorneys to act on their behalf.
ALTERNATIVELY
the First and Second Respondents
request the Applicant to furnish minutes accompanied by an attendance
register to a meeting held
by members of the Applicant (which are
members of the eight Royal Houses: Baswazini Madwaleni, Mahujini,
oPhondweni, Nomathiya,
Hhohho, Nsolweni and Shikishela) authorising
the above mentioned attorneys to act on their behalf
.’
[14]
On 6 March 2012, the attorneys filed a reply to the Rule 7(1)
notice in response to the first and second respondents’
attorneys
challenging their authority to act for the applicant.
Special powers of attorney were filed which are a matter of record.
In the
interim the third respondent had filed a notice to oppose on
22 December 2011.
[15]
In the initial answering
affidavit
[4]
on behalf of the first and second respondents, the first and second
respondents raised two points
in
limine
namely the lack of
authority and
locus standi
of the applicant to institute the application and the non-joinder of
the relevant houses comprising the royal family; the failure
to
comply with s 49(2) of the Act and the failure to comply with s 7(2)
of PAJA.
[16]
These were dealt with as follows in the affidavit.
Lack
of authority and standing to bring the application / Non-joinder
[17]
The first and second respondents contend that
uMndeni
wenkosi
are the royal family of the traditional community. They
are identified through custom and include other family members who
are
also close relatives of the ruling family and other persons
identified on the basis of traditional roles. The
uMndeni wenkosi
is constituted differently in each clan.
[18]
They rely on the Traditional Leadership and Government
Framework Act 41 of 2003 which defines the royal family as ‘the
core
customary institution or structure consisting of the 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’.
[19]
The first and second respondents submit that pursuant to an
investigation there are eight houses which constitute
uMndeni
wenkosi
being the Baswazini, Madwaleni, Mahujini, oPhondweni,
Nomathiya, Hhohho, Nsolweni and Shikishela houses.
[20]
The first and second respondents dispute the applicant’s
allegations that she and her children, the children of the
Inkosi
’s
two wives to whom he was married by customary union, Annah Mkwanazi
the late
Inkosi
’s mother comprised the
uMndeni
wenkosi
as the eight houses which constitute that of the royal
family of the Mkhwanazi clan have not been joined.
[21]
Having regard to the special powers of attorney filed the
deponent has not obtained the authority from the eight houses and
consequently
does not have the authority to institute the
application.
Non-compliance
with s 49(2) of the Act
[22]
Section 49(2) of the Act reads as follows:
‘
(2)
Any dispute contemplated in subsection (1) that cannot be resolved
must be referred to-
(a)
the Provincial House
of Traditional Leaders, which must seek to resolve the dispute in
accordance with its rules and procedures
within 30 days;
(b)
the responsible Member of the
Executive Council, in the event that the Provincial House of
Traditional Leaders is unable to or has
failed to resolve the
dispute, who may, subject to the provisions of 21 (1)
(b)
and 25 of the
Traditional Leadership and Governance Framework Act,
2003
, refer the matter to the Commission for its recommendation
within 30 days; and
(c)
the Premier, in the event that
the responsible Member of the Executive Council is unable to or has
failed to resolve the dispute,
who must resolve the dispute within 30
days after consultation with-
(i)
the responsible Member of the Executive Council;
(ii)
the parties to the dispute; and
(iii)
the Provincial House of Traditional Leaders.’
[23]
The first and second
respondents submit
[5]
‘that any dispute which cannot be resolved must be referred to
the Provincial House of Traditional Leaders. If the Provincial
House
cannot resolve the dispute it is then referred to the Provincial
Member of the Executive Council for Co-operative Governance
and
Traditional Affairs “the MEC”. If the dispute remains
unresolved it is thereafter referred to the First Respondent
who must
resolve the dispute within 30 days after consultation with the MEC,
the parties and the Provincial House.’
[24]
The first applicant has not followed and/or exhausted such
alternative remedies and consequently it is not appropriate for the
court
to intervene in the dispute concerning the identification of
the successor of the late
Inkosi
. This is based on the
submission that the Act makes provision for the successor to the
Inkosi
to be identified by
uMndeni wenkosi
.
[25]
The definition does not specify which relatives are part of
the
uMndeni
as each clan or traditional community has its own
custom and traditions which determine who constitute the
uMndeni
.
The court ought not to deal with matters which relate to traditions
and customs as it will require an investigation and determination
in
accordance with traditional customs and practice.
[26]
An independent expert in
customary matters has conducted an investigation and has compiled a
comprehensive report. This report was
considered by the first
respondent who acted in accordance with such expert’s
recommendation after consulting the royal family.
Based on the
recommendation and the consultation with the royal family, it is for
this reason that the first respondent recognised
the third respondent
as
Inkosi
and successor to the late
Inkosi
.
[6]
It thus complied with s 19 of the Act.
Non-compliance
with s 7(2) of PAJA
[27]
The first and second respondents submit that the review of all
administrative action falls under PAJA. PAJA must then be complied
with in that an applicant must show firstly that it has exhausted all
internal remedies available in terms of s 7(2) of PAJA and
secondly
it must establish one or more of the grounds for review as set out in
s 6 of PAJA.
[28]
As the applicant has not exhausted the internal remedy
provided for in s 49 of the Act and there are no exceptional
circumstances
alleged by the applicant for not doing so, the
applicant is thus disqualified from seeking to review the decision.
[29]
In addition the applicant has not set out any grounds for the
review as envisaged in s 6 of PAJA.
The
second applicant
[30]
In his founding affidavit
[7]
the second applicant in summary alleges the following:
[30.1] that he is the natural son of
the deceased
Inkosi
, his mother is Gladness Phumzile Bongekile
Mkhwanazi. As evident from his lineage he hails from the original
line of amaKhosi and
is a direct descendent of amaKhosi;
[30.2] the reason why the application
to intervene was brought so late was due to the fact that he was
unable to obtain funding
to enter into the litigation as resources
only became available at the end of August 2014;
[30.3] he was nominated, unbeknown to
him, by his father prior to his death to be his successor;
[30.4] the first respondent
disregarded all relevant and admissible evidence being the nomination
of his father for him to succeed
as successor;
[30.5] the decision of the first
respondent to appoint the third respondent is not rationally
connected to the purpose for which
the legislation was promulgated;
[30.6] given the legislative meaning
of “
uMndeni wenkosi
” which is the crucial
qualifying clause in s 1 of the Act, the definition as contained in
the Act was rendered nugatory by
the first respondent’s
interpretation of who constitutes
uMndeni
;
[30.7] the decision of the first
respondent in appointing the third respondent is not supported by the
investigation report as the
recommendations specifically indicate
that there ought not to be an appointment either of himself or the
third respondent, his
cousin.
The
affidavit of Professor Jabulani Maphalala
[31]
It is common cause that Professor is an expert in matters
involving tradition, culture, custom and practice of the indigenous
Zulu
nation of KwaZulu-Natal. He is also well-versed in traditional
practices and customs of appointing
Inkosi
and other cultural
activities. He is regarded as a Zulu historian and professor of
history. He has studied the history of the Mkhwanazi
clan which dates
back from 1870 and has in fact dedicated a chapter in a book he
published dedicated to the Bakwanazi clan or tribe
of KwaMpukunyoni.
[32]
His affidavit deals in
detail with the
uMndeni
wenkosi
and the traditions
followed in relation to the burial of the
Inkosi
and the selection of a successor in title.
[8]
[33]
He further confirms that
it is an established practice of the Mkhwanazi, the Bakwanazi people
that
Inkosi’s
nominate their successors and the
uMndeni
wenkosi
endorses or
acknowledges the wishes of the deceased and further that the
Inkosi
appoints a direct descendent to take over as
Inkosi
.
Chieftainship cannot be transferred where there are descendants to
the throne particularly when where one is not a blood son of
the
chief. Further, that it is an established practice, tradition and
custom that a successor is appointed from a direct descendent
of the
Inkosi
.
[9]
[34]
The first and second respondents filed a supplementary
answering affidavit on 8
th
of December 2014 in which they
acknowledged the
locus standi
of the second applicant to
intervene in the proceedings. They reiterated their position insofar
as the composition of the
uMndeni wenkosi
was concerned as
stated in the initial answering affidavit filed. In addition they
dispute the aspects raised in the second applicant’s
affidavit
in relation to the provisions of the KwaZulu-Natal Amakhosi and
Iziphakanyiswa Act 9 of 1990 as same had been repealed
by the Act in
terms of s 53(2) and schedule 3 thereof.
The
third respondent
[35]
The third respondent
relies on the contents of his affidavit annexed to the investigation
report.
[10]
The
investigation report of LSA
[36]
It is common cause that the findings of attorneys Luthuli and
Sithole, who prepared the investigation report, were the following:
‘
Umndeni
of the Mkhwanazi clan comprises of all the houses that emanates from
Veyane. The houses that are prominent and recognised
by the Mkhwanazi
clan include Baswazini, Madwalweni, Mahujini, Phodweni, Nomathiya,
Hhohho, Nsolweni and Shikishela.
Hhohho
and Nomathiya are the main houses that decide the issue of
succession
.
[11]
The other six (6) do not have the powers to change the decision taken
by Hhohho and Nomathiya. If a deadlock occurs between Hhohho
and
Nomathiya, the view of the Hhohho takes precedent.
In
the Mkhwanazi clan the investigation cannot say for certainty that
Inkosi descends patrilineally and according to the system
of male
primogeniture since according to the investigation, all the chiefs of
the Mkhwanazi clan, except Mzondeni, had never had
a female child as
the first born child from the first wife, save to say that, possibly,
the reason maNtengu’s children were
overlooked in the
recognition of Mzondeni’s successor was that they were both
females which implies the principle of male
primogeniture.
In
the appointment of Inkosi, Umndeni convene a meeting and recognise
and confirm the erstwhile Inkosi’s successor. Umndeni
recognises and confirms the first born son of the senior (first wife)
as the successor. If for a variety of reasons, ranging from
incapacity, criminal records and so on, the first born child cannot
be recognised and confirmed as Inkosi, the second born child
of the
first wife becomes Inkosi. If none of the children of the first wife
qualify to be Inkosi then Umndeni consider the children
of the second
wife.
The
principle of even and odd numbers in the succession of Umndeni of the
Mkhwanazi clan is not practiced. This principle is only
talked about
i.e. that the first wife is supported by the third wife and fifth
wife and so on in the order of odd numbers. The
second wife, fourth
wife and the sixth wife and so on in order of even numbers do not
under any circumstances take the throne as
they are called
(ama-khohlwa). In practice, in the Mkhwanazi clan custom and
tradition IKhohlwa does become the successor.
The
majority of Umndeni denies that there were confidantes who carried
the wishes of previous chiefs as to who should be recognised
and
confirmed as a successor among the children of those pervious chiefs.
Accordingly, this line of recognition and confirmation
of successor’s
by Umndeni through erstwhile Inkosi’s confidantes’ lacks
substance.
Hhohho
and Nomathiya have no knowledge of Mzondeni’s expressed wishes.
All nine of Mzondeni’s confidantes come from
Baswazini
Madwaleni and Phondweni. Mzondeni being a Hhohho himself and having
ruled for 24 years in the Mkhwanazi clan knew or
ought to have known
that Hhohho and Nomathiya are the main houses with the power to
recognise and confirm the successor. Accordingly,
Mzondeni knew or
ought to have known that if he does not inform Hhohho and Nomathiya
of his wishes same would not be taken into
consideration. In this
regard, Mzondeni’s expressed wishes bear no status.
The
resolution of Umndeni meeting held at Nomathiya on 23 March 2008,
recognising Siyabonga, the first born son of Mzondeni with
maZondi as
Inkosi of the Mkhwanazi clan is no longer relevant since Siyabonga
passed away.
The
resolution of Umndeni meeting maSibiya’s faction, held on 12
July 2009 and 6 march 2010, recognising and confirming Khetukuthula
as the successor of the Mzondeni and as Inkosi of the Mkhwanazi clan
cannot be upheld as such as resolution was not in line with
the
custom and tradition practiced by the Mkhwanazi clan.
The
resolution of the Umndeni meeting held at Nomathiya on 11 October
2009, recognising and confirming Mzokhulayo as Inkosi of the
Mkhwanazi clan cannot be upheld, as such resolution was (1) not in
line with the custom and tradition of the Mkhwanazi clan in
that
Umndeni is only authorised to recognise and confirm the successor of
the previous Inkosi and not to transfer chieftaincy from
one line of
Inkosi to another; (2) Succession should proceed through Umndeni
line; (3) Mzokhulayo is not the first born child of
Magweba;
Celukwazi is and is alive and has two daughters; and (4) celukwazi
could still bear a son, that would have to be recognised
and
confirmed as Inkosi since he already had two daughters.
The
Constitutional Court, not deciding on the issue, stated that it is
possible for Umndeni to transfer Chieftaincy from one Inkosi
to
another. Accordingly, there is slight possibility that our courts,
taking into consideration the reasons of Umndeni behind Mzokhulayo’s
recognition, may find the actions of Mkhwanazi clan not outside the
custom and tradition practiced by them.’
[12]
[37]
It is common cause that
the recommendations of LSA as contained in the investigation report,
which recommendations the first respondent
considered himself bound
by were the following:
[38]
In essence the recommendations can be summarised as follows:
‘
We
recommend that the DLGTA or the Premier should:
A.
In terms of s19(4),
refuse to recognise the recognition and identification of both
Khethukuthula and Mzokhulayo as chiefs of the
Mkhwanazi clan, on the
basis that such recognitions were not done in accordance with custom
and tradition practiced by the Mkhwanazi
and were, possibly, in
contravention of section 3 of the Act and must be referred back to
Umndeni for reconsideration and resolution;
B.
Instruct Senior Counsel,
with not less than ten years experience, to confirm LSA’s legal
view and furnish the Department with
legal opinion on whether the
Mkhwanazi clan can transfer, as it purported to do, chieftaincy from
one line of Inkosi of another.
If senior Counsel’s opinion is
in the affirmative, then the DLGTA should consider Umndeni’s
intention to restore lineage
line to the correct house.
C.
Simultaneously, with the
appointment of senior counsel, appoint a medical practitioner with
relevant expertise to conduct an assessment
on whether Celukwazi is
mentally ill or not. If the practitioner’s report is in the
affirmative and Umndeni confirms that
it applies the principle of
male primogeniture then Mzokhulayo’s recognition as Inkosi of
the Mkhwanazi clan would stand.
However, if the practitioner’s
report is not in the affirmative, then Celukwazi would have to be
appointed Inkosi of the
Mkhwanazi clan. If Umndeni resolves that the
Mkhwanazi clan does not practice the principle of male primogeniture,
even if Celukwazi
is mentally ill, his eldest child should be
recognised and as confirmed as Inkosi.’
[39]
The instruction to
LSA
[13]
reads as follows:
‘
The
Department of Local Government and Traditional Affairs (“DLGTA”)
has instructed Luthuli Sithole Attorneys (“LSA”)
to
investigate and mediate the Mkhwanazi succession dispute and
determine, among the children of the late Inkosi Mzondeni, the
successor.
Further,
LSA is instructed to investigate the cause of the dispute, analyse
the genuineness of the process used by Umndeni in appointing
Mzokhulayo as a successor, advise on the application of legislation
dealing, in particular, with the customary law and on the violation
of any constitutional rights (if any), and make recommendations on
the findings of the above mentioned issues and any other issues
that
may have any bearing in a resolution of the above mandate.’
[40]
Having regard to the
executive summary contained in the investigation report
[14]
the following were considered by LSA namely:
(a) that the late
Inkosi
Mzondeni Mkhwanazi passed away on 29 August 2007. At the time of his
death he had two undisputed wives being maNtengu being his
first wife
and maZondi (the second wife) and one disputed wife, maSibiya (the
third wife);
(b) Siyabonga was the first born son
of Mzondeni and maZondi, Khethukuthula was the first born son of
maSibiya and Mzondeni; and
Mzokhulayo was the second born son of
Magweba;
(c) the issue of succession proved
that Umndeni were divided into two. One faction of Umndeni took sides
with maZondi the other
faction took sides with maSibiya on the basis
that when Mzondeni was still alive he expressed a view to his
confidantes that his
successor was Khethukuthula. According to the
custom and tradition practised by the Mkhwanazi clan, the first wife
goes hand in
glove with the third wife, the fifth wife in order of
the odd numbers. The second wife, the fourth wife and the sixth wife
and
so in order of even numbers cannot under any circumstances be
considered in the order of succession. As the first wife maNtengu
did
not bear any male children the wife who is supposed to step in the
shoes of the first wife is the third wife maSibiya;
(d) On 23 March 2008, Umndeni
maZondi’s faction held a meeting and resolved to recognise
Siyabonga, the first born son Mzondeni
with maZondi as iNkosi of the
Mkhwanazi clan. Siyabonga died in a motor vehicle accident soon after
his identification as
Inkosi
;
(e) On 12 July 2009 Umndeni,
maSibiya’s faction, resolved that Khethukuthula, the first born
son of maSibiya with Mzondeni,
be recognised and confirmed as
Inkosi
of the Mkhwanazi clan;
(f) On 11 October 2009, Umndeni,
maZondi’s faction met and resolved that Mzokhulayo the second
born son of Magweba be recognised
as
Inkosi
;
(g) The DLGTA realised that there was
dispute between
uMndeni Inkosi
of the Mkhwanazi clan as to who
should be appointed
Inkosi
, investigated the cause of dispute
and because its impartiality was questioned, resolved to appoint an
independent investigator
Luthuli Sithole Attorneys to investigate and
determine the successor of Mzondeni;
(h) It established that
uMndeni
of the Mkhwanazi clan comprises all of the houses that emanate from
Veyane ie Baswazini, Madwalweni, Mahujini, Phodweni, Nomathiya,
Hhohho, Nsolwenin Shikishela. Hhohho and Nomathiya are the main
houses that decide the issue of succession. The other six houses
do
not have powers to change the decision taken by Hhohho and Nomathiya.
If a deadlock occurs between Hhohho and Nomathiya, the
view of Hhohho
takes precedent;
(i) The principal of even and odd
numbers in the succession of
uMndeni wenkosi
of the Mkhwanazi
clan was not practiced and the majority of
uMndeni
denied that
there were confidantes who carried the wishes of previous chiefs as
to who should be recognised. Consequently the confirmation
of
successors by
uMndeni
through the previous
Inkosi’s
confidantes lacks substance;
(j) Because Hhohho and Nomathiya have
no knowledge of Mzondeni’s express wishes and all of his
confidants have no knowledge
of this Mzondeni knew or ought to
have known that if he did not inform Hhohho and Nomathiya of his
wishes this could not
be taken into consideration;
(k) The resolution nominating
Khethukuthula as
Inkosi
cannot be upheld as such resolution is
not in line with the custom and tradition practiced by the Mkhwanazi
clan as it was mainly
based on Mzondeni’s expressed wishes;
(l) The nomination Mzokhulayo also
cannot be upheld as it was not in line with custom and tradition of
the Mkhwanazi clan as the
u
Mndeni
is only authorised to
recognise and confirm a successor and not transfer Chieftaincy from
one line of
Inkosi
to another, succession must proceed through
the
uMndeni
line and he is not the first born child of Magweba
his elder brother Celukwazi is.
[41]
In consequence thereof
‘the investigation recommended, among other things, that the
DLGTA or the Premier should in terms of
section 19 (4), refuse to
recognise the recognition and identification of both Khethukuthula
and Mzokhulayo as chiefs of the Mkhwanazi
clan, on the basis that
such recognitions and identifications were not done in accordance
with custom and tradition practiced by
the Mkhwanazi clan and was,
possibly, in contravention of section 3 of the Act and must be
referred back to u
Mndeni
for reconsideration and resolution’.
[15]
The
issues for determination
[42]
The issues for
determination as set out in the respective heads of argument filed by
the parties.
[16]
I borrow freely from these heads of argument for purposes of the
judgment. On the applicant’s case the issues that require
determination are the following:
[42.1] Whether the first respondent’s
decision to appoint the third respondent as
Inkosi
was flawed,
alternatively that he failed to apply his mind having regard to:
(i)
The recommendations contained in the appointed expert’s report;
(ii)
The uncontested evidence presented by the second applicant;
(iii)
The uncontested evidence by the expert, Professor Maphalala;
[42.2] Whether the first respondent
erred in accepting the extent or composition of the
uMndeni
wenkosi
where new
Inkosi
is to be identified having regard
to:
(i)
The uncontested evidence presented by the second applicant;
(ii)
The uncontested evidence of the expert Professor Maphalala.
[42.3] Whether the first respondent,
in coming to his decision, had due regard to existing customs and
traditions of the traditional
community with specific reference to
the uKuthela Amanzi-Ritual;
[42.4] Whether the existing relevant
legislation and more especially s 19 of the Act fails to recognise,
alternatively affords sufficient
weight to the customs and traditions
and more especially the uKuthela Amanzi Ritual where it involves the
appointment of a new
Inkosi
following the death of a later
Inkosi
.
[43]
The first and second
respondents submit the issues for determination are the
following:
[17]
[43.1] Whether the first applicant has
locus standi
as allegedly composed; Is there a non-joinder of
the full
uMndeni wenkosi
;
[43.2] is the case forwarded by the
second applicant defective?
[43.3] Has the second applicant made
out a case for review on the papers;
[43.4] Was the decision of the Premier
taken regularly and was it so unreasonable that a reasonable
decision-maker could not have
reached it.
[44]
It must be mentioned that even though the first and second
respondents do not dispute the facts as set out in the applicant’s
heads of argument, they dispute that the uKuthela Amanzi Ritual is
relevant as it is contrary to the Act and is not required to
complete
the appointment of an
Inkosi
. In addition the respondents
submit that the
uMndeni
met on 11 October 2009 and identified
the third respondent as the person to be the
Inkosi
.
Submissions
of the parties
[45]
At the hearing of the matter
Mr Kemp SC
who appeared
for the applicants submitted that the review is in terms of PAJA, the
common law and a legality review. In any event
the submission is that
if one has regard to the investigation report and the reasoning of
the first respondent, it is clear that
the decision of the first
respondent was not objectively rational.
[46]
Section 19 of the Act on a proper interpretation empowers the
first respondent on the identification and nomination of a successor
to conduct whatever investigations need to be done and then appoint
the nominated individual. There is nothing on the papers to
say that
the first respondent complied with the investigation report which it
commissioned. It must be remembered that all the
parties agreed to be
bound by the decision or recommendations made emanating from the
investigation report.
[47]
As regards the provisions of s 49(2) these do not apply. The
section on a proper interpretation does not envisage the first
respondent
in his capacity as a premier. In any event what the first
respondent chose to do when faced with the dispute, was to appoint an
independent committee to investigate, LSA and all parties agreed to
be bound by the recommendations.
[48]
As regards the point
in limine
in relation to
non-joinder, the case of the first and second respondents is not that
the applicant does not have
locus
in her own individual right
but rather that she does not represent the full
uMndeni wenkosi
as the royal family being the members of the eight houses have not
been joined. On the first applicant’s interpretation of
the
definition, the first applicant has
locus
and consequently can
be a party to the proceedings.
[49]
Mr Dickson SC
who appeared for the first and second
respondents submitted that the applicants are restricted to the
grounds of review as set
out in their papers. Reliance is placed on
PAJA and the grounds alleged in the affidavit. The applicants cannot
now seek to introduce
a ‘new cause of action’ by
introducing the legality argument.
[50]
In relation to the point
in limine
raised in respect of
s 49(2)
Mr Dickson
declined to make any submissions on this
point
in limine
and confined himself to his heads of argument
and the papers on this issue.
[51]
In respect of the
definition of who constitutes the
uMndeni
wenkosi
Mr
Dickson
submitted that
there is an irresoluable dispute of fact on the papers. If one
considers what the first and second respondents say,
the first
applicant cannot be the full
uMndeni
wenkosi.
She cannot say
that she represents the
uMndeni
wenkosi.
The
investigation report says or mentions who the members of the
uMndeni
wenkosi
are. The minutes
filed also say who they are and consequently it cannot be said that
the first respondent did not deal with the
report of LSA or take into
consideration the nomination of the full
uMndeni
wenkosi
. He submitted that
the first respondent did comply with s 19 of the Act and had regard
to the minutes of the meeting held on 11
October 2009 in recognising
the third respondent.
[18]
[52]
Mr Kuboni
who appeared for the third respondent
submitted the following, namely:
[52.1] He aligned himself with the
submissions of the first and second respondents. He submitted that s
49(2) of the Act speaks
about the implementation of the Act therefore
there is no reason why this section cannot be invoked;
[52.2] The report mentions who the
uMndeni
are and consequently the third respondent aligns
himself with the submissions of
Mr Dickson
in this regard.
Even though the third respondent did not file a formal affidavit, he
relies on the one attached to the investigation
report. The
submission is that even the grandmother (Annah Mkwanazi) and the
mother of the deceased were at a meeting when the
nomination of the
third respondent was made.
Analysis
[53]
In respect of the first and second respondents’
opposition to the application, specifically the points
in
limine
relating to the
locus
of the first applicant and
non-joinder of the eight houses of the Mkhwanazi community, this has
to be considered in light of the
interpretation to be attached to the
definition of
uMndeni wenkosi
for purposes of this
application.
[54]
The applicants submit that the first respondent’s
decision is fatally flawed as he did not adhere to and comply with
the recommendations
as contained in the expert report alternatively
did not apply his mind as he did not follow the recommendations of
his own appointed
experts. The overall conclusion being that the
recognition and appointment of the third respondent is not rationally
connected
to its purpose, the information placed before the
administrator, is fatally flawed and it is not a decision which a
reasonable
decision maker would have made.
PAJA
[55]
Section 6 of PAJA which deals with the grounds for judicial
review reads as follows:
‘
6
Judicial review of administrative action. -
(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.’
[56]
Mr Kemp
on behalf of the applicants submitted that the
first respondent misconceived the correct legal position specifically
in the application
of s 19 of the Act, did not comply with the
section and did not apply his mind to the relevant facts before him
in that he misconstrued
his own report, ignored aspects of the report
and also aspects of the legislation.
[57]
The first and second
respondents’ appointed attorneys, Luthuli and Sithole, to
investigate the dispute between the two factions
relating to the
identification of a successor to the
Inkosi
.
It is common cause that the investigators compiled a report based on
the Mkwanazi clan’s customs and traditions and took
into
account both factions’ views, being the first applicant and the
members of the eight houses, in relation to the identification
of the
third respondent. The first respondent considered himself bound by
the recommendation of the independent expert.
[19]
[58]
In addition the first
respondent submits that he has acted according to the independent
expert’s recommendation after consulting
the royal family and
has recognised the third respondent and as a consequence has
published the provincial notice on 23 September
2011.
[20]
[59]
The first respondent
submits that the decision to recognise the third respondent was done
in consultation with his colleagues in
the executive council of the
province of KwaZulu-Natal.
[21]
The applicants submit that having regard to the record of proceedings
in respect of the first respondent’s decision, there
is no
evidence to support that this in fact occurred. In consequence
thereof, this decision is at odds with “its own structure
of
legality”.
[60]
It is clear that if one has regard to the investigation report
that for purposes of investigating and making recommendations LSA
considered not only the deponent to the affidavit and those on whose
behalf she deposed to the founding affidavit, and the second
applicant but also took into account the views of the eight houses,
which comprised the Mkhwanazi clan.
[61]
It would appear that LSA considered both the applicants as
well as the first and second respondents’ persons as comprising
the
uMndeni wenkosi
for purposes of the definition as
contained in s 1 of the Act as well as s 19.
Mr Dickson
acknowledged during argument that the report does not expressly
say this neither does it give an indication as to precisely who
constitutes the
uMndeni wenkosi
.
[62]
I am of the view that having regard to the contents of the
report that is so. It refers to the first and second applicants and
members
of the eight houses. I am fortified in this view by a
submission,
Mr Dickson
made in respect of the minutes of a
meeting held on 11 October 2009 annexed to the papers. The
report made it clear however
that it is the Hhohho house and
Nomathiya house which decide on succession in the Mkhwanazi clan and
in the event of there being
a difference in the views of these two
houses it is the Hhohho house whose views take precedence.
[63]
It is common cause that the applicants are members of the
Hhohho house. The first and second respondents aver that no reliance
can
be placed on the report of Professor Maphalala. It is common
cause that the investigation report is undated. During argument,
Mr
Dickson
submitted that the first respondent did not consider the
recommendations of LSA as the report came after the 11 October 2009
meeting.
The minutes are annexed to the record. There was compliance
with s 19 and the decision of a correctly composed
uMndeni wenkosi
as is evident from the minutes of the 11 October 2009 meeting
.
When the first respondent received the minutes of the 11 October
2009 meeting, which predated the receipt of the report, he then
based, on those minutes made the appointment. He has thus complied
with s 19.
[64]
It is common cause that the LSA recommended that the
identification of both the second applicant and the third respondent
not be
accepted and that the matter be referred back and no
appointment be made. Once the first respondent acknowledges that it
did not
have regard to the recommendations, there is a procedural
irregularity, and the decision of the first respondent is fatally
flawed.
Moreso what was the point of then commissioning LSA as he
undertook to be bound by same. He did not consider same as it was
received
after the minutes of the meeting.
[65]
The minutes of 11 October 2009, which predate the receipt of
the report, cannot be relied on to justify the appointment of the
third
respondent.
Mr Kemp
is correct in submitting that there
is no explanation as to why the recommendations contained in the
investigation report were
not implemented or why it was not given
effect to in the papers. Clearly, it is as the recommendations, were
not had regard to
as the report came after the receipt of the 11
October 2009 meeting minutes. This was a submission made by
Mr
Dickson
during argument. The appointment of Celukwazi could only
be considered if a medical certificate had been obtained. It is
common
cause that this was not done as he declined to accept the
nomination and subsequent appointment. And in any event the
nomination
and appointment of Celukwazi could only have been
considered if the lineage was corrected and there is nothing to say
that this
was done.
[66]
In addition having regard to the report of Professor Maphalala
as well as the investigation report the custom is that the newly
appointed
Inkosi
had to be a direct descendent or in the line
of direct descendants of the former
Inkosi
. Once again there
is no explanation as to why the first respondent decided not to
follow this custom and tradition and to give
effect to this.
[67]
If one considers the provisions of s 19 which reads as
follows:
‘
19
Recognition of an
Inkosi
(1)
Whenever the position of an
Inkosi
is to be filled, the
following process must be followed-
(a)
Umndeni wenkosi
must, within a reasonable time after the need arises for the position
of an
Inkosi
to be filled, and with due regard to applicable customary law and
section 3-
(i)
identify a person who qualifies in terms of customary law to assume
the position of an
Inkosi
after taking into account whether
any of the grounds referred to in section 21 (1)
(a)
,
(b)
or
(d)
apply to that person;
(ii)
provide the Premier with the reasons for the identification of that
person as an
Inkosi;
and
(iii)
the Premier must, subject to subsection (3) of this section and
section 3, recognise a person so identified in terms of subsection
(1)
(a)
(i) as an
Inkosi
: Provided that if the reason
for the vacancy is the death of the recognised
Inkosi
,
umndeni
wenkosi
must, before identifying the person to be appointed as an
Inkosi
, consider the content of the testamentary succession
document referred to in section 19A.
(2)
The recognition of a person as an
Inkosi
in terms of
subsection (1)
(a)
(iii) must be done by way of-
(a)
a notice in the
Gazette
recognising the person identified as an
Inkosi;
and
(b)
the issuing of a certificate of recognition to the identified person.
(3)
The Premier must inform the Provincial House of Traditional Leaders
of the recognition or appointment of an
Inkosi.
(4)
Where there is evidence or an allegation that the identification of a
person to be appointed as an
Inkosi
was not done in accordance
with customary law, customs or processes, or was done in
contravention of section 3 of this Act, the
Premier-
(a)
may refer the matter to the
Provincial House of Traditional Leaders for comment; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to
umndeni
wenkosi
for
reconsideration and resolution where the certificate of recognition
has been refused.
(5)
Where the matter which has been referred back to
umndeni wenkosi
for reconsideration and resolution in terms of subsection (4) has
been reconsidered and resolved, the Premier must recognise the
person
identified by
umndeni wenkosi
if the Premier is satisfied that
the reconsideration and resolution by
umndeni wenkosi
has been
done in accordance with customary law.
(6)
The recognition of an
Inkosi
as the senior traditional leader
of a recognised traditional community takes effect on a date
specified in a notice published in
the
Gazette
by the Premier.
(7)
Within three weeks after the date of recognition or the date of
publication of the notice referred to in subsection (6), whichever
is
the later date, an
Inkosi
so recognised must furnish, in
writing, to the Premier the names of
Induna
or
Izinduna
of that
Inkosi,
together with the date of and names of all
members present at the traditional council at which the appointment
of such
Induna,
or
Izinduna
was unanimously approved by
the traditional council.
(8)
(a)
An
Inkosi
is deemed to retire from office upon his
or her written
request
for retirement to the responsible Member of the Executive Council.
(b)
On retirement, an
Inkosi
ceases to be recognised and appointed in terms of this Act.’
[68]
Section 19(1) provides
that where the position of an
Inkosi
is to be filled the following process must be followed. This is set
out in paragraph
(a)
which provides that the
uMndeni
wenkosi
must within a
reasonable time and having regard to applicable customary law and s
3
[22]
identify a person who qualifies in terms of customary law having
regard to s 21(1)
(a)
,
(b)
or
(d)
,
[23]
provide the Premier with reasons for the identification of that
person and the Premier
must
[24]
subject to subsection (3) and s (3) recognise a person so identified
as
Inkosi
.
[25]
[69]
Having regard to subsection 3 there is no indication in the
papers that the Premier informed the Provincial House of Traditional
Leaders of the recognition or appointment of the third respondent.
[70]
Secondly s 19(4) and (5) read as follows:
‘
(4)
Where there is evidence or an allegation that the identification of a
person to be appointed as an
Inkosi
was not done in accordance with customary law, customs or processes,
or was done in contravention of section 3 of this Act, the
Premier-
(a)
may refer the matter to the
Provincial House of Traditional Leaders for comment; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to
umndeni
wenkosi
for
reconsideration and resolution where the certificate of recognition
has been refused.
(5)
Where the matter which has been referred back to
umndeni wenkosi
for reconsideration and resolution in terms of subsection (4) has
been reconsidered and resolved, the Premier must recognise the
person
identified by
umndeni wenkosi
if the Premier is satisfied that
the reconsideration and resolution by
umndeni wenkosi
has been
done in accordance with customary law.’
[71]
Section 19(4) provides for the first respondent where there is
evidence or an allegation that the identification of a person was
not
done in accordance with customary law, customs or processes or in
contravention of s 3 to refer it to the Provincial House
of
Traditional Leaders for comment or refuse to issue the certificate of
recognition and refer the matter back to
uMndeni
wenkosi
for reconsideration and resolution where the certificate of
recognition has been refused.
[72]
This subsection makes it quite clear that as in this instance
where there appeared to have been a difference in the identification
of the
Inkosi
and where it appeared that it may not have been
done in accordance with customary law, customs or processes the
Premier was required
to either refer the matter to the Provincial
House of Traditional Leaders for comment, refuse to issue a
certificate or refer it
back to the
uMndeni wenkosi
for
reconsideration ad resolution. Nowhere in the papers is there any
indication that this was done.
[73]
In fact what transpired as that LSA was appointed to conduct
an investigation and the first respondent agreed to be bound by such
recommendation. Despite this however the first respondent then on his
own appears to have recognised the third respondent. If one
then
considers the basis upon which the first respondent says he
recognised the third respondent, such recognition was flawed and
he
did not have regard to all the information placed before him. He did
not have regard to the recommendations of LSA. Had he done
so he
would have followed the recommendations and not recognised and
appointed the third respondent. The appointment of the third
respondent was flawed.
[74]
At the hearing of the matter
Mr Kemp
argued that it was
the legality of the decision by the Premier and the implementation
thereof was in dispute.
Mr Dickson
indicated that the
applicants were confined to the grounds of review stated in the
founding affidavit namely s 6 of PAJA. He submitted
that PAJA is the
only method by which the administrative action of the Premier is
reviewable.
[75]
In
Bato
Star Fishing (Pty) Ltd v Minster for Environmental Affairs and
Others
[26]
the court held the following:
‘
The
provisions of s 6 divulge a clear purpose to codify the grounds of
judicial review of administrative action as defined in PAJA. The
cause of action for the judicial review of administrative action now
ordinarily arises from PAJA, not from the common law as in
the
past. And the authority of PAJA to ground such causes of action
rests squarely on the Constitution. It is not necessary
to
consider here causes of action for judicial review of administrative
action that do not fall within the scope of PAJA. As
PAJA gives
effect to s 33 of the Constitution, matters relating to the
interpretation and application of PAJA will of course be
constitutional matters.’
(Footnote
omitted)
[76]
The basis for submitting
that this was not an application to have the decision of the Premier
set aside based on the principal of
legality was that this was not
pertinently a ground raised in the papers. The test which would apply
should the review be based
on the principle of legality would be
whether or not the decision made was objectively rational. For this
proposition he relied
on
Merafong
Demarcation Forum v President of the RSA
[27]
where the court held the following:
‘
The
exercise of public power has to be rational. In a constitutional
State arbitrariness or the exercise of public power on
the basis of
naked preferences cannot pass muster. Judgments of this court
suggest that, objectively viewed, a link is required
between the
means adopted by the legislature and the end sought to be achieved.’
(Footnote
omitted)
[77]
In
Bato
Star
[28]
the court held that the test for review of administrative action is
whether or not such administrative action was reasonable and
whether
or not the procedure was fair. The decision would be reviewable if
‘it is one that a reasonable decision maker could
not reach’.
[78]
The court must in
deciding whether or not such action was reasonable and procedurally
fair must exhibit deference to the administrative
authority whose
decision is being challenged.
[29]
I am of the view that the applicants have based their application on
s 6 of PAJA.
[79]
Of relevance to the
application is whether the legal requirements of the Act were
complied with;
[30]
and of relevance to this is the composition of the
uMndeni
wenkosi
and the
interpretation of the definition in the context of the facts of this
application.
Rules
of interpretation
[80]
It is now settled law
that the process to be followed when interpreting a statute document
or contract is that as laid down by the
SCA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[31]
[81]
This approach was
subsequently confirmed in
Bothma-Batho
Transport (EDMS) Bpk v S. Bothma and Seun Transport (EDMS) Bpk
[32]
where the court at paragraph 12 held the following:
‘
That
summary is no longer consistent with the approach to interpretation
now adopted by South African courts in relation to contracts
or other
documents, such as statutory instruments or patents. Whilst the
starting point remains the words of the document, which
are the only
relevant medium through which the parties have expressed their
contractual intentions, the process of interpretation
does not stop
at a perceived literal meaning of those words, but considers them in
the light of all relevant and admissible context,
including the
circumstances in
which
the document came into being. The former distinction between
permissible background and surrounding circumstances, never very
clear,
has fallen
away. Interpretation is no longer a process that occurs in stages but
is “essentially one unitary exercise”.
Accordingly it is
no longer helpful to refer to the earlier approach.’
(Footnotes
omitted)
[82]
Section 1 defines “
uMndeni wenkosi
” as
follows:
‘
umndeni
wenkosi
means the
immediate relatives of an
Inkosi,
who have been identified in terms of custom or tradition, and
includes, where applicable, other persons identified as such on the
basis of traditional roles.’
[83]
The first respondent defines
uMndeni
wenkosi
on
the papers before me to mean the eight houses of the Mkhwanazi clan.
The definition as contended for by
Mr Kemp
of behalf of the
applicants is the following. If one has regard to the definition it
refers to the immediate relatives of an
Inkosi
who have been
identified in terms of custom or tradition. Immediate relatives I
agree would refer to the wives of the
Inkosi
and the children
born of such relationship be it a customary union or civil union. The
definition goes further and reads and includes,
where applicable,
other persons identified as such on the basis of traditional roles. I
agree with the submission that what is
envisaged here are not only
the immediate relatives but also more persons who may be included on
the basis of any traditional roles
as identified.
[84]
Professor Maphalala in his report indicates that
uMndeni
wenkosi
means different things in different contexts. This is
also the view of the first respondent. This fits in with the Act
where it
refers to and includes where applicable other persons
identified as such on the basis of traditional roles. It is clear
that the
applicants are the immediate family of the deceased
Inkosi
his wives his children and his mother. In addition they belong to the
Hhohho house. The first respondent also acknowledges that
the second
applicant has locus in the application. It must then follow that I do
not agree that there is an irresoluable dispute
of fact.
[85]
Both the first and second applicants base the review on PAJA.
On the other hand the first respondent in the papers takes the point
that as the
uMndeni
wenkosi
also constitutes the eight
houses of the Mkhwanazi clan as they are not joined in the
application, the first applicant does not
have standing as she says
she is the
uMndeni
wenkosi.
He also then goes on to
rely on the minutes of the 11 October 2009 meeting and attendance
register which confirms that the
uMndeni wenkosi
was properly
constituted.
[86]
Such interpretation cannot be correct for purposes of
establishing her standing. She has in her own right, and on her
interpretation
of who constitutes the
uMndeni
wenkosi
standing to launch the application acting on behalf of the
persons mentioned in her affidavit.
[87]
Consequently, it must follow then that as the definition of
uMndeni
wenkosi
includes the immediate relatives of an
Inkosi
the first applicants have locus as they do constitute
the immediate family. This interpretation of giving the definition a
meaning
to include the applicants together with the eight houses
appears to also be consistent with the contents of the investigation
report.
The investigation report considered not only the views of the
applicants but also that of the eight houses. The first applicant
has
standing in this application.
Non-compliance
with s 7(2) of PAJA and s 49 of the Act
[88]
Section 7(2) of PAJA reads as follows:
‘
(2)
(a)
Subject to paragraph
(c)
,
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted.
(b)
Subject to paragraph
(c)
,
a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph
(a)
has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings in a court or
tribunal for judicial review in terms of this Act.
(c)
A court or tribunal may, in
exceptional circumstances and on application by the person concerned,
exempt such person from the obligation
to exhaust any internal remedy
if the court or tribunal deems it in the interest of justice.’
[89]
The section places an obligation on a party seeking to review
the conduct of an administrator in terms of s 6 to exhaust all the
internal remedies available and in the event of it not doing so to
satisfy the court that there are extraordinary reasons for not
complying with the provisions of s 7(2). In this regard the first and
second respondents refer to s 49 of the Act which relates
to the
dispute resolution mechanisms and/or internal remedies which they
submit were available to the applicants and which were
not complied
with.
[90]
Section 49 of the Act reads as follows:
‘
49 Dispute
resolution
(1)
Whenever a dispute concerning customary law or customs arises within
a traditional community or between traditional communities
or other
traditional institutions on a matter arising from the implementation
of this Act or otherwise, members of such a community
or institution
and traditional leaders within the traditional community or
traditional institution concerned must seek to resolve
the dispute
internally and in accordance with customary law and customs.
(2)
Any dispute contemplated in subsection (1) that cannot be resolved
must be referred to-
(a)
the Provincial House of
Traditional Leaders, which must seek to resolve the dispute in
accordance with its rules and procedures
within 30 days;
(b)
the responsible Member of the
Executive Council, in the event that the Provincial House of
Traditional Leaders is unable to or has
failed to resolve the
dispute, who may, subject to the provisions of 21 (1)
(b)
and 25 of the
Traditional Leadership and Governance Framework Act,
2003
, refer the matter to the Commission for its recommendation
within 30 days; and
(c)
the Premier, in the event that
the responsible Member of the Executive Council is unable to or has
failed to resolve the dispute,
who must resolve the dispute within 30
days after consultation with-
(i) the
responsible Member of the Executive Council;
(ii) the
parties to the dispute; and
(iii) the
Provincial House of Traditional Leaders.’
[91]
I agree with the
submissions of
Mr Kemp
that if one has regard to the section the
lis
is between the applicants and the Premier. The Premier cannot be
described as “a traditional institution”. In addition
once a decision is made the provisions of
s 49
are not open to an
applicant. The only basis to deal with it is by of review to set the
decision aside.
[33]
[92]
The procedures envisaged in
s 49
could only have been embarked
upon or available had the first respondent not recognised the third
respondent and gone ahead and
issued the certificate of recognition.
Consequently, this point too must fail.
Is
the decision of the first respondent reviewable in terms of PAJA or
in terms of the principle of legality?
[93]
It is correct that the applicants refer to a review in terms
of PAJA alternatively the common law. During argument
Mr Dickson
pertinently raised the fact that the review based on legality was not
pertinently raised in the papers and consequently the applicants
are
confined to a review in terms of PAJA.
[94]
Mr Kemp
submitted however that having regard to the
papers and authorities he referred to, the principle of legality
could be raised by
the applicants and was in fact raised by the
applicants in their papers although not pertinently stated as such.
[95]
Where a decision maker
or an administrator takes into account irrelevant considerations or
disregards relevant considerations, such
decision is subject to
review. This is in terms of the provisions of
s 6(2)
(c)
and
6
(2)
(e)
(iii)
of PAJA.
[34]
[96]
The first respondent did not consider relevant matters,
namely:
[96.1] the recommendation of LSA not
to appoint the second applicant and the third respondent;
[96.2] did not properly consider the
definition of “
uMndeni wenkosi
” as it appears in s
1 of the Act but more importantly that LSA in considering who
composed
uMndeni wenkosi
considered the views of the eight
houses together with that of the first applicant and the persons she
indicated comprised the
uMndeni
.
[97]
In addition the appointment of the third respondent was not
rationally connected to the information before the first respondent,
is fatally flawed, and is thus reviewable in terms of s
6(2)
(f)
(ii)
(cc)
.
[98]
It is worth mentioning that at paragraph 9 of the
Eskom
judgment Cloete JA in referring to the principle of legality held the
following:
‘
The
principle of legality would require that an invalid administrative
decision be set aside.’
[99]
In dealing with the
provisions of s 8 of PAJA the court referred to the decision in
Oudekraal Estates (Pty) Ltd
v City of Cape Town and Others
[35]
where the court said the following:
‘
It
is that discretion that accords to judicial review its essential and
pivotal role in administrative law, for it constitutes the
indispensable moderating tool for avoiding or minimising injustice
when legality and certainty collide. Each remedy thus has its
separate application to its appropriate circumstances and they ought
not to be seen as interchangeable manifestations of a single
remedy
that arises whenever an administrative act is invalid.’
[100]
The first respondent’s
decision is so fatally flawed and is consequently subject to review
as he did not properly consider
the composition of the
uMndeni
wenkosi
. In
Chairpersons’
Association v Minister of Arts and Culture and Others
[36]
the court was of the view that where an administrator takes a
decision based on irrelevant considerations or fails to consider
relevant considerations, same is reviewable in terms of s
6(2)
(e)
(iii)
of PAJA.
[101]
In addition the court
quoting from a decision in
Pepcor
Retirement Fund and Another v Financial Services Board and
Another
[37]
held that the principle of legality requires that a power conferred
on a functionary to make decisions in the public interest should
be
exercised properly i.e. on the basis of the true facts. In
Chairpersons’
Association
the court was
of the view that the legal position as set out in the
Pepcor
case based on the principle of legality still applies under PAJA as s
6(2)
(e)
(iii)
provides that administrative action taken because irrelevant
considerations were taken into account or relevant considerations
were not considered can be set aside on review. Where decisions based
on a material misstatement of fact, it is clear that the
subparagraph
applies.
[102]
Thankfully I need not decide whether the applicants are
non-suited as I am of the view that given the contents of the
affidavits
the review falls within the ambit of s 6 of PAJA. For all
the reasons mentioned above I am of the view that the appointment and
recognition of the third respondent was not rationally connected to
the information before the Premier. In addition the decision
is not
one a reasonable decision maker in the position of the Premier would
have made. The appointment is consequently reviewable
in terms of s 6
of PAJA. On the first respondent’s own version as submitted in
argument a well, when making the appointment
of the third respondent,
he did not have regard to the recommendations in the report of LSA
and relied on the minutes of the meeting
of 11 October 2009 which
predate the report and receipt thereof.
Costs
[103]
It is trite that a successful party is entitled to their
costs. In the founding affidavit the first applicant sought an order
directing
the first respondent to pay the costs occasioned by the
application irrespective of whether or not the relief was opposed.
The
relief was opposed by the first and second respondents, as well
as the third respondent.
[104]
Even though the third respondent did not file any affidavits
and
Mr Kuboni
who appeared, argued the matter on the basis of
the affidavit annexed to the investigation report, it is common cause
that the
third respondent was the person recognised and appointed by
the first respondent in terms of s 19 of the Act and was, in my view,
entitled to “defend his appointment”.
[105]
A court has a discretion which must be exercised judicially
when awarding costs. Given the nature of these proceedings and the
issues
involved, and the complexity of the matter, I am satisfied
that the employment of two counsel was warranted. I am also satisfied
that there is no basis to deviate from the normal rule in respect of
costs. Consequently, the applicants are entitled to the costs
occasioned by the application including any reserved costs.
[106]
A further matter
warranting attention relates to the application to intervene. The
costs of the application to intervene were reserved
by Van Zyl J on
13 October 2014. A notice to oppose the interlocutory application for
leave to intervene was filed by the first
and second respondents. No
answering affidavit was filed and it would appear that the matter
which was enrolled for hearing on
13 October 2014 on the unopposed
roll also necessitated the main application be adjourned. It is
clear, having regard to the affidavit
of the second applicant, that
at the time the application to intervene was launched he had a direct
and substantial interest in
the proceedings warranting the
application for him to intervene. In addition the first and second
respondents concede that the
second applicant has the necessary
locus
standi
to bring the
application and it was for this reason that they subsequently
consented to the order granted on 13 October 2014. This
much is
evident from paragraph 9.
[38]
Conclusion
[107]
Having satisfied myself that s 6 of PAJA was not complied
with, in the premises, the orders I issue are the following:
[107.1] The recognition of the Third
Respondent as
Inkosi
of the Mkhwanazi Traditional Community at
Mpukunyoni, KwaZulu-Natal by the First Respondent acting in terms of
the provisions of
s19 of the KwaZulu-Natal Traditional Leadership and
Governance Act No. 5 of 2005 is hereby reviewed and set aside.
[107.2] The First Respondent is
directed to consult with the Applicants (and where applicable, other
persons identified as
uMndeni wenkosi
on the basis of
traditional roles) concerning the identification of an
Inkosi
for the Mkhwanazi Traditional Community at Mpukunyoni, KwaZulu-Natal
as provided for in terms of s19 of the Act and to recognise
and
appoint an
Inkosi
in compliance with the provisions of the
Act.
[107.3] The First and Second
respondents are directed to pay the costs of the application,
including any reserved costs, such costs
are to include the costs
occasioned by the employment of two counsel.
[107.4] The First and Second
respondents are directed to pay the costs occasioned by the
application to intervene, including any
reserved costs.
___________________
HENRIQUES
J
Case
Information
Date
of hearing
:
5
February 2016
Date
of judgment
:
17
August 2017
Appearances
Counsel
for Applicants
:
Adv.
K. J. Kemp SC with
Adv.
E.S. Crots
Instructed
by
:
Ngwenya
& Zwane Attorneys
c/o
Yashica Chetty Attorneys
Suite
1, 365 Long Market Street
Pietermaritzburg
(T)
033-394 9818
(F)
033-394 9819
Ref:
Mr Zwane/ACZ 2143/13/SDM
Email:
info.emp@ngwenyazwane.co.za
Zondi
and Shangase Attorneys
(Second
Applicant’s Attorneys)
160
West Street
Pietermaritzburg
Counsel
for First and Second Respondents
:
Adv.
A. J. Dickson SC
Instructed
by
:
PKX
Attorneys
Suite
36, 3 on Cascades Crescent
Montrose
Pietermaritzburg
(T)
033-347 5354
(F)
033-347 3572
Ref:
M Govender
Email:mail@pkx.co.za
Counsel
for Third Respondent
:
Adv.
W. S. Kuboni
Instructed
by
:
Mchunu,
Bulose & Partners
c/o
Lushaba J & Associates
Suite
207 – 209
2
nd
Floor, ABC Building
9
Gallway Lane
Pietermaritzburg
(T)
033-345 1080
(F)
086 107 4027
Email:
mchunu@webmobile.co.za
[1]
In the Notice of Motion the applicant seeks the following relief:
1.
‘
The
recognition of the Third Respondent as Inkosi of the Mkhwanazi
Traditional Community at Mpukunyoni, KwaZulu-Natal by the First
respondent acting in terms of the provisions of section 19(2) of the
KwaZulu-Natal Traditional Leadership and Governance Act
No. 5 of
2005 (“the Act”) be and is hereby reviewed and set
aside.
2.
First
Respondent is directed to consult with the Applicant concerning the
identification of an Inkosi for the Mkhwanazi Traditional
Community
at Mpukunyoni, Kwazulu-Natal as provided for in terms of section
19(1) of the Act and to appoint an Inkosi.’
An
additional order is sought directing the First Respondent, being the
Premier, to pay the costs incurred by the application
irrespective
of whether or not the relief is opposed.
[2]
The
deponent relies on the definition of
uMndeni
wenkosi
as defined in s 1 of the Act and submits that the
uMndeni
wenkosi
consists of the following persons namely Annah, Dalisu, Nomnotho,
Zanazo, Ntando, Zama, Ntombenhle, Bafanyana Sibongiseni, Khulekani
and herself.
[3]
Bundle
Titled Investigation Report. The report is titled “Mkhwanazi
Clan (Kwampukunyoni) Investigation and Mediation”.
[4]
Pages
31 to 48, index - volume 1, deposed to by Karl-Heinz Waldemar Kuhn.
[5]
Paras
13, 14 and 15 answering affidavit, pages 55 to 57, index - volume 1.
[6]
Para
15.6, answering affidavit, page 57, index – volume 1.
[7]
Pages
167 to 196, index - volume 2.
[8]
Para
27, pages 204 and 205 of the indexed papers.
[9]
Para
23, page 25, index - volume 2.
[10]
Pages
283 to 291, bundle titled Investigative Report.
[11]
My
underlining.
[12]
Pages
43 to 45, bundle titled Investigation Report.
[13]
Page
10 of Investigation Report.
[14]
Pages
5 to 9 of Investigation Report.
[15]
Page
9 of Investigation Report.
[16]
The
third respondent has not filed heads of argument and chose to argue
the matter and make submissions before the court on 5
February 2016.
[17]
It
is common cause that in September of 2014 the now second applicant
sought to leave to intervene in these proceedings. On 13
October
2014 an order was granted with the consent of the applicant, first,
second and third respondents in terms of which he
was granted leave
to intervene as a co-applicant in the proceedings. His affidavit in
the intervention application served as
an affidavit in this
application and he was granted leave to file his supplementary
affidavit.
[18]
He
relied on paras 91 and 92, page 74, index - volume 1.
[19]
Para
15.5, answering affidavit, pages 56 to 57, index – volume 1.
[20]
Para
15.6, page 57, index – volume 1.
[21]
Para
64, page 68, index – volume 1.
[22]
Section
3 reads as follows: A traditional community must transform and adapt
customary law and custom so as to comply with the
principals
enshrined in the Constitution, in particular by -
(a)
,
(b)
and
(c)
.
[23]
‘
21 Removal
of traditional leader
(1)
A traditional leader may be removed from office on the grounds of-
(a)
conviction
of an offence with a sentence of imprisonment for more than 12
months without an option of a fine;
(b)
physical
incapacity or mental infirmity which, based on acceptable medical
evidence, makes it impossible for that
Inkosi
to function as such;
(c)
wrongful
appointment or recognition;’
[24]
My
underlining.
[25]
(3)
The Premier must inform the Provincial House of Traditional Leaders
of the recognition or appointment of an
Inkosi.
[26]
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 25.
[27]
[2008] ZACC 10
;
2008
(5) SA 171
(CC) para 62.
[28]
Paras
44 and 45.
[29]
Bato
Star
para 46.
[30]
uMndeni
(Clan) of Amantungwa & Others v the MEC for Traditional Affairs
and Another
,
case number. 513/09 [2010] ZASCA (142) unreported.
[31]
2012
(4) SA 593
(SCA).
[32]
2014
(2) SA 494 (SCA).
[33]
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye & Lazer Institute
2014 (3) SA 481
(CC);
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222 (SCA).
[34]
Littlewood
and Others v Minister of Home Affairs and Another
2006 (3) SA 474
(SCA);
Director-General:
Department of Home Affairs and Another v Mavericks Revue CC
2008
(2) SA 418
(SCA);
Eskom
Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
2009 (4) SA 628
(SCA) para 6.
[35]
2004
(6) SA 222
(SCA) para 36.
[36]
2007
(5) SA 236 (SCA).
[37]
2003
(6) SA 38
(SCA) paras 47 and 48.
[38]
First
and second respondents’ supplementary answering affidavit,
page 277, index - volume 2.