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[2016] ZAECMHC 54
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Nkala v Premier of the Provincial Government of the Eastern Cape and Others (CA53/2016) [2016] ZAECMHC 54 (29 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO: CA53/2016
DATE
HEARD: 10/11/2016
DATE
DELIVERED: 29/11/16
NOT
REPORTABLE
In
the matter between:
DUMILE
DAVIS NKALA
APPELLANT
and
PREMIER OF THE
PROVINCIAL
GOVERNMENT
OF THE EASTERN CAPE
1
ST
RESPONDENT
MEMBER OF THE
EXECUTIVE COUNCIL
FOR CO-OPERATIVE
GOVENANCE &
TRADITIONAL
AFFAIRS, EASTERN CAPE
2
ND
RESPONDENT
NKALA
ROYAL FAMILY
3
RD
RESPONDENT
NKOSIYAMNTU
NKALA
4
TH
RESPONDENT
JUDGMENT
PLASKET
J
[1]
Mr Dumile Nkala, the appellant, applied in the court below for an
order to the effect that a decision taken by the first respondent,
the Premier of the province, to remove him from the position of
acting headman of the Kambi Administrative Area near Mthatha was
‘wrongful and unlawful’ and was to be set aside; that he
be re-instated in that position; and that the respondents
pay the
costs of the application. The application was dismissed by
Nhlangulela DJP who nonetheless granted leave to appeal. The
only
party to oppose the appeal is the Nkala Royal Family, the third
respondent.
The
facts
[2]
From the rather cryptic and often confusing papers it emerges that in
1992 Davies J granted an order setting aside the appellant’s
appointment as headman and appointing him as acting headman of the
Kambi Administrative Area. As the respondent in that matter
was the
chairman of the Military Council that then governed the Transkei
homeland it can safely be assumed that the order appointing
the
appellant was made by the court, rather than remitting the matter,
because the decision was a foregone conclusion or some other
exceptional circumstance was present to allow for a substitution
order.
[1]
The appellant was
appointed in an acting capacity because the fourth respondent, Mr
Nkosiyamntu Nkala, had been identified as the
appropriate person to
be appointed in terms of customary law but was a minor at the time.
In other words, the appellant was appointed
to act as regent in the
fourth respondent’s stead until he attained majority.
[3]
By letter dated 29 August 2012, the second respondent, the MEC for
Co-Operative Governance and Traditional Affairs in the provincial
government, informed the appellant that he had received a request
from the third respondent to review the appellant’s position
as
acting headman. The reason for the request was that ‘the
rightful heir’ – the fourth respondent – was
‘ready
to take his position’.
[4]
The letter proceeded to say:
‘
You
are hereby requested in terms of Section 20(3)(a) of Traditional
Leadership and Governance Act No 4 of 2005, to make representations
as to why the decision to remove you from the position as Acting
Inkosana cannot be effected.’
The
appellant was afforded 14 days within which to furnish his
representations.
[5]
The appellant duly furnished his representations by way of a letter
written by his attorneys dated 18 September 2012. It would
appear,
however, that no action was taken by the government prompting, in
2014, an application by the third and fourth respondents
to compel
the Premier, in consultation with the MEC, to consider the
appellant’s representations, to recognise the fourth
respondent
as headman in the event of the appellant not having made
representations and directing the Premier to issue a certificate
of
recognition to the fourth respondent. An order in these terms
was granted by Malusi AJ on 20 March 2014.
[6]
In due course, the appellant’s acting appointment was revoked.
The fourth respondent was recognised as headman of the
Kambi
Administrative Area by Notice No. 1 of 2014 published in
Provincial
Gazette Extraordinary
No. 3291 of 13 October 2014. His certificate of appointment and
recognition, while dated 16 January 2015, stated that the effective
date of his appointment was 22 August 2014.
[7]
The appellant was initially not informed of the revocation of his
acting appointment. It was only when his salary was stopped
and after
making enquiries that he discovered that he was no longer an acting
headman. When he sought reasons, he received a letter
dated 27
November 2014 and signed by the MEC. It said:
‘
Kindly
be informed that the Department has received the court order which
orders the Department to terminate your services as acting
inkosana
of Kambi Administrative Area under Kambi Traditional Council in the
district of Mthatha.
The
Department had no option but to implement the court order and as such
you are requested to vacate the office as acting inkosana
of Kambi
Administrative Area under Kambi Traditional Council.’
[8]
On 21 May 2015 Griffiths J rescinded the order of Malusi AJ granted
on 20 March 2014.
[9]
On 21 April 2015, the head of the Department of Co-operative
Governance and Traditional Affairs wrote a letter to the third
respondent’s attorneys in which he set out fuller – and
different – reasons for the revocation of the appellant’s
acting headmanship. It would appear that this letter is the report
envisaged in paragraph 1 of the order granted by Malusi AJ.
The
letter said:
‘
Kindly
be advised that the first respondent [the Premier] in consultation
with the second respondent [the MEC] complied with the
court order of
the 20th March 2014 by considering the representations made by the
third respondent [the appellant] as it is also
the requirement of
Traditional Leadership and Governance Act No. 4 of 2004. Section
20(3)(b) of this Act requires that the first
respondent to consider
the representations submitted to him and withdraw the certificate of
recognition with effect from the date
of removal if the decision to
remove him is in accordance with custom.
In
this matter the first respondent not only complied with section
20(3)(b), he also complied with the court order where after
considering the representations of the third respondent took a
decision to remove him and informed the royal family, the third
respondent and the Provincial House of Traditional Leaders in the
Eastern Cape in terms of section 20(3)(c).
The
first respondent recognised the applicant [the fourth respondent] as
a headman of Khambi Administrative Area, Mthatha. We are
now
complying with paragraph one of the order by giving the report to the
applicant’s attorneys of what the first respondent
has done
after the court order.’
The
law
[10]
The appointment and removal from office of headmen
[2]
and acting headmen is regulated by the Eastern Cape Traditional
Leadership and Governance Act 4 of 2005 (EC). In terms of s 18
of the
Act, a royal family, acting ‘with due regard to applicable
customary law’ must identify a person who qualifies
in terms of
customary law to assume the position of headman. The royal family
must then inform the Premier of the particulars of
that person. The
Premier ‘must, subject to subsection 5, by notice in the
Gazette
recognise
the person so identified by the royal family’. (Subsection 5 is
not relevant to this case.)
[11]
Section 22 makes provision for the identification of acting headmen
in certain instances. The appellant was not appointed as
acting
headman in terms of this section but in terms of the homeland
legislation then in force, the Transkei Authorities Act 4
of 1965.
This appointment was, in terms of s 37(2) of the current Act, ‘deemed
to have been done in terms of the corresponding
provisions of this
Act’.
[12]
Section 22(5) places an obligation on the Premier to review an acting
appointment every six months. Section 22(6) provides
that the
procedure for the removal of an acting headman is the same as that
for the removal of a permanently appointed headman.
That procedure is
set out in s 20. Section 20(3) provides:
‘
Where
it has been decided by a royal family to remove an iNkosi or iNkosana
in terms of subsection (2), the Premier must –
(a)
advise
the iNkosi iNkosana of such decision and, in writing, call upon such
iNkosi iNkosana to make representations to him or her
as to why the
decision to remove him or her should not be given effect to;
(b)
consider
the representations submitted to him or her and withdraw the
certificate of recognition with effect from the date of removal
if
the decision to remove him or her is in accordance with custom;
(c)
inform
the royal family concerned, the removed iNkosi or iNkosana, and the
Provincial House of Traditional Leaders concerned, of
such removal;
(d)
publish
a notice with particulars of the removed iNkosi or iNkosana in the
Gazette
.’
[13]
Section 21 of the Act makes provision for the appointment of regents
in circumstances in which ‘a royal family has identified
the
successor to the position of iKumkani, iNkosi or iNkosana who is a
minor’.
[3]
An obligation
is placed on the Premier to review the appointment of a regent every
three years and ‘immediately after the
successor has attained
the age of majority’.
[4]
Section 21(6) deals with the termination of a regency. It states:
‘
As
soon as the successor to the position of iKumkani, iNkosi, iNkosana
ceases to be a minor in terms of customary law –
(a)
the
regent recognised in terms of subsection (1) must relinquish his or
her position as regent; and
(b)
in
the case of an iNkosi or iNkosana, a certificate of recognition
contemplated in section 18(3) must be issued by the Premier after
his
or her name has been published in the
Gazette
.’
[14]
In
Premier
of the Eastern Cape & others v Ntamo & others
[5]
it was accepted (by a full bench) that the appointment of a headman
was an administrative action and thus subject to review in
terms of
the provisions of the Promotion of Administrative Justice Act 3 of
2000 (the PAJA). I can see no reason why the decision
to remove a
headman from office is not an administrative action. In effecting
such removal, the royal family concerned and the
Premier (or his
delegate) apply the applicable legislation. There is little scope for
the application of policy, the discretion
of both is limited by
jurisdictional facts and the powers of both are closely defined and
structured.
[6]
[15]
In order to succeed in having his removal from office set aside,
therefore, the appellant is required to establish one or more
ground
of review provided for in s 6 (2) of the PAJA, including any ground
of review that is not mentioned but has been developed
by the courts.
[16]
The argument advanced by Mr Nkubungu, who appeared for the appellant,
is that the decision was tainted by an error of law:
the
decision-maker – either the Premier or the MEC acting on
delegated authority – misinterpreted Malusi AJ’s
order of
20 March 2014, believing that it ordered him to revoke the
appellant’s appointment.
[17]
While it is certainly so that, in his letter dated 27 November 2017,
the MEC makes this plain, there appear to me to be two
problems with
Mr Nkubungu’s argument.
[18]
The first is that when the evidence as a whole is considered, it is
apparent that the MEC’s letter contains reasons that
are
mistaken and that the later letter of the head of his department,
being consistent with the evidence, contains the correct
reasons for
the decision.
[19]
I say this because the royal family requested the Premier to review
the appellant’s appointment when the fourth respondent
was
ready to take his place as headman. Pursuant to this, the appellant
was given the opportunity to make representations as to
why he should
not be removed from office. He did so but, it would appear, the
Premier failed to take any steps to consider them
and consider the
recognition of the fourth respondent. The result was an order to
compel him to do so and the order of 20 March
2014.
[20]
In the MEC’s letter, he spoke of the Department taking the
decision to ‘terminate’ the appellant’s
‘services’.
‘The Department’ was not ordered by Malusi AJ to do
anything and it has no powers in terms
of the legislation to remove
anyone from office. The Premier, on the other hand, was ordered by
Malusi AJ to consider the appellant’s
representations.
[21]
As the order is clear – the only relevant relief was that the
Premier consider the representations and report thereon
to the royal
family and fourth respondent – it is probable that the MEC
wrote the letter of 27 November 2014 in error. The
later letter is
consistent with the Act, the facts and the order: it is the report
envisaged by the order and states what would
have been the only
possible and obvious outcome – that the acting appointment had
to end because of the permanent appointment
of the fourth respondent.
[22]
The second difficulty I have with the argument of Mr Nkubungu is
this. If one accepts that the removal from office of the appellant
was the result of a misinterpretation of the order issued by Malusi
AJ, the decision is tainted by an error of law. It is, however,
not
every error of law that results in the setting aside of
administrative action: s 6(2)(d) of the PAJA provides that a court
may review administrative action if ‘the action was materially
influenced by an error of law’.
[23]
Section 6(2)(d) codified the ratio of
Hira
& another v Booysen & another
,
[7]
the leading case that mapped out and clarified the ground of review
of error of law in its common law manifestation. Corbett CJ
held:
[8]
‘
Whether
or not an erroneous interpretation of a statutory criterion, such as
is referred to in the previous paragraph (ie where
the question of
interpretation is not left to the exclusive jurisdiction of the
tribunal concerned), renders the decision invalid
depends upon its
materiality. If, for instance, the facts found by the tribunal are
such as to justify its decision even on a correct
interpretation of
the statutory criterion, then normally (ie in the absence of some
other review ground) there would be no ground
for interference.
Aliter
,
if applying the correct criterion, there are no facts upon which the
decision can reasonably be justified. In this latter type
of case it
may justifiably be said that, by reason of its error of law, the
tribunal “asked itself the wrong question”,
or “applied
the wrong test”, or “based its decision on some matter
not prescribed for its decision”, or
“failed to apply its
mind to the relevant issues in accordance with the behests of the
statute”; and that as a result
its decision should be set aside
on review.’
[24]
In my view, even if the decision-maker misinterpreted the order
issued by Malusi AJ, that error of law was not material: once
the
fourth respondent reached the age of majority, the die was cast for
the appellant. His regency had to end. In terms of s 21(6)
of the Act
as soon as the fourth respondent ceased to be a minor in terms of
customary law, the appellant was required to relinquish
his position
as acting headman and the fourth respondent had to be recognised by
the Premier. As the appellant had no right to
remain in his position
as soon as the fourth respondent became an adult, the error of law
made no difference and, not being material,
does not result in the
unlawfulness of the administrative action taken against the
appellant.
[25]
The appeal cannot therefore succeed.
The
record
[26]
Part of the record was a transcription of counsel’s arguments
in the court below. Not surprisingly, this was not even
referred to
in the course of the argument in the appeal. It comprised of 78 pages
out of a record of 176 pages.
[27]
The argument should not have been part of the record. The parties
must have realised that it was irrelevant. There was no reason
why
anyone should have perused it. For this reason, I intend making an
order that no costs in respect of this part of the record
are
recoverable on taxation and neither party’s legal
representatives may charge an attorney and client fee for perusing
it.
The
order
[28]
I make the following order.
(a)
The appeal is dismissed with costs.
(b)
No costs in respect of pages 81 to 159 of the record are recoverable
by the third respondent on taxation.
(c)
Neither party’s legal representatives may charge an attorney
and client fee for the perusing of pages 81 to 159 of the
record.
__________________________
C
Plasket
Judge
of the High Court
I
agree.
___________________________
S
Alkema
Judge
of the High Court
I
agree.
__________________________
R
Brooks
Judge
of the High Court
APPEARANCES
For
the appellant: Mr MH Nkubungu of B Makade Inc.
For
the third respondent: Mr A Bodlani instructed by VV Msindo &
Associates
[1]
See Baxter
Administrative
Law
at 681-685.
[2]
A headman (or
headwoman) is referred to in the Act as an iNkosana, the isiXhosa
term. A senior traditional leader is referred
to as an iNkosi. A
king is referred to as an iKumkani.
[3]
Section 21(1).
[4]
Section 21(3).
[5]
Premier of the
Eastern Cape & others v Ntamo & others
2015
(6) SA 400 (ECB).
[6]
See
Premier of the
Eastern Cape & others v Ntamo & others
(note 5) paras
79-83 (concerning the appointment process).
[7]
Hira &
anther v Booysen & another
1992
(4) SA 69 (A).
[8]
At 93G-I.