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[2016] ZAKZPHC 116
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Mbuyazi v Premier of the Province of KwaZulu-Natal and Others (2367/2010) [2016] ZAKZPHC 116 (6 October 2016)
IN THE HlGH 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
MKHANYISENI
MBUYAZI
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]
The Second Respondent herein (Mkhanyiseni Mbuyazi) brought an urgent
applicant on 19 November 2015 wherein he sought an order
in the
following terms:
“
1. That the order
of the above honourable court granted by the Honourable Justice Van
Zyl on 7 June 2011 be and is hereby rescinded,
2. That the Rule
nisi
granted by this court on 11 May 2010 and
subsequently varied by this court on 26 May 2010 be and is hereby
discharged.”
[2]
On 4 February 2016 the Fourth Respondent filed a Notice of Counter
Application/Application for Consolidation in the following
terms:
"Take notice that
Sthembile Valencia Mkhize will apply at the hearing of the
Interlocutory application brought by the Second
Respondent,
alternatively on a date to be arranged with the register and a notice
to all parties, at 9h30 or so soon thereafter
as the matter may be
heard for an order in the following terms;
1.
That this application be and is hereby
consolidated with the action in this court under case number
4862/2015 in terms of the Uniform
Rule 11, and shall henceforth
proceed as one action.
Paragraph 2 and 3 deals
with the citation of the parties' and the costs.”
[3]
The Applicant in the counter application/consolidation application
acts in her capacity as executrix of the estate of the late
Zwelibhekile Slbusiso Mbuyazi. She was substituted as such, in terms
of an order of the Supreme Court of Appeal which was delivered
on the
28 November 2014. I will deal with the Supreme Court of Appeal case
later on in this judgment.
[4]
As its evident from the papers the fundamental issues relates to the
validity of the appointment of the Second Respondent as
lnkosi and
the corresponding determination of the appointment of the Applicant
by the First Respondent.
[5]
The ultimate question in both the application and the action referred
to above is whether the removal of the late Zwelibhekile
Sibusiso
Mbuyazi {the Applicant) as lnkosi of the Mbuyazi Traditional
Community was correct.
Background
[6]
The following background facts are either common cause or not
seriously disputed by the parties:
[7]
On 14 August 2008 the Applicant Zwellbhekile Sibusiso Mbuyazl was
appointed as lnkosi of the Mbuyazi Community in KwaMbonambi.
A
process was under taken to remove the deceased as lnkosi (the
Applicant herein). This succeeded on 13 January 201O, his removal
was
gazetted, in terms of section 21(5) of the KwaZulu Traditional
Leadership and Governance Act 5 of 2005 (hereinafter the fact
referred to as (the Governance Act').
[8]
The withdrawal of the recognition of an Incumbent lnkosi is regulated
by section 21 of the Governance Act which provides as
follows:
“
21 removal of
traditional leader:
(1) A traditional leader
maybe 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 infinity which,
based on acceptable medical evidence, makes it impossible for that
lnkosi to function
as such;
(c)
Wrongful appointment or recognition;
(d)
A transgression of a customary rule
or
principle that warrants removal;
(e)
A breach of the code of conduct; or
(f)
Misconduct as contemplated in section 23
(2) Whenever any of the
grounds as referred to in subsection 1(a), (b), (c), (d) and (e),
come to the attention of Umndeni wenkosi,
and Umndeni wenkosi
concerned decides to remove a traditional leader, Umndeni wenkosi
may, within a reason will try and do the
relevant customary
structure:
(a)
Inform the Premier of the particulars of the
traditional leader to be removed from office; and
(b)
Furnish reasons for such removal.
(3) A traditional leader
may only be removed from on the grounds set out in paragraphs {1)(a),
(b) or (c) above after he or she
has been given an opportunity to
submit representations in responce to the grounds upon which his or
her removal from office have
been considered, and those
representations have been considered by an appropriate authority.
(4) A traditional leader
may only be removed from office on the grounds set out in subsection
1(d}, (e) or (f) above, after an enquiry
In terms of section 23.
(5) Where It has been
decided to remove a traditional leader in terms of section 23, the
Premier must:
(a)
Withdraw the certificate of recognition with
effect from the date of removal;
(b)
Publish a notice in the Gazette with particulars
of the removed leader; and
(c)
Inform Umndenl wenkosi and the removed
traditional leader concerned, and the Provincial House of Traditional
Leaders of such removal.
(6) Where a traditional
leader is removed from office, a successor maybe appointed in terms
of this Act and in accordance with the
prevailing customary law and
custom."
[9]
The issue of an appointment of an lnkosi went back
to
the Umndenl wenkosi and the Premier appointed
Mkhanyiseni Mbuyazi (the Second Respondent herein) as lnkosi.
[10]
On 29 March 2010 the Applicant brought an urgent application for a
review with interim relief challenging the First Respondent's
administrative decision of the withdrawal of his recognition as
lnkosi of the uMbuyazi Traditional Community. This Interim relief
was
to place him back in his position of the lnkosi In the meantime.
[11]
This was originally granted, but this order was subsequently altered
on the 26 May 2010 when the interim relief was changed
to:
"4.Pending the final
determination of the application for the said review and to operate
as an interim order forthwith;
4.1
First Respondent Is granted leave and is granted
leave and directed to appoint an appropriate person to function in
the interim
as lbambbukhosi (sic) (which question shall not be the
Applicant or the Second Respondent) until such time as lnkosi has
been recognized
and appointed as contemplated In tenns of section 3
of KwaZulu Traditional Leadership and Governance Act 5 of 2005.
4.2
Applicant and Second Respondent are Interdicted
and restrained from attempting to or taking office, as lnkosi of the
Mbuyazi Traditional
Community".
[12]
The opposed review application came before Van Zyl J on 23 September
2010. On 7 June 2011 the Judge referred the disputed issues
for trial
and ordered that the current interim order (set out above) would
remain in place.
[13]
On 26 September 2011 the deceased, (Applicant herein), brought an
application for the funding of the litigation by the Community
Trust
Fund. This was heard by (Honourable Judge) Henriques J who reserved
the judgment
[14]
On 7 July 2012 the Applicant herein died.
[15]
The death of the Applicant resulted in uncertainties and confusion
mainly to the Applicant's surviving spouse, the Fourth Respondent,
which resulted in various applications and processes by her and other
parties.
[16]
As the result of the death of the deceased the following applications
were made:
1.
The Premier (First Respondent herein) made an
application that the review and the funding applications should be
dismissed.
2.
This was opposed by the deceased's wife (now the
executrix) and the legal guardian of Phathokuhle, who brought a
counter application
that she be substituted for the deceased In both
applications.
3.
The current Jnkosl, the Second Respondent herein,
brought an application that his appointment should be declared to be
valid and
a dismissal of the 2 applications made by the deceased and
the applications made by the deceased's wife.
[17]
The applications were heard by Booyens AJ who made the following
order on the 9 July 2013:
"(23) The following
orders are made: Case number 2367/2010
1.
The application of the executrix to be
substituted for the Applicant and her application in her capacity as
a guardian of Phathokuhle
to have him joined as Applicant is
dismissed.
2.
The application by the Premier (First Respondent)
for discharged of the rule
nisi
and
rescissions of the orders granted on 7 June 2011 is granted in
respect of the lnkosi (Second Respondent). the rule
nisi
Is discharged and the orders granted on 7
June 2011are rescinded.
Case number 10169/2011
1.
The application of the executrix to be
substituted for the Applicant and in her capacity as guardian of
Phathokuhle to have him
joined as an Applicant is dismissed.
2.
The application by the Premier for dismissal of
this application is granted.
Costs
There will be no order as
to costs to both applications".
[18]
Leave to appeal was granted to the Supreme Court of Appeal.
[19]
On 28 November 2014 the Supreme Court of Appeal upheld an appeal in
part
against
the judgement of Booyens AJ.
[20]
The order granted by the Supreme Court of Appeal was as follows:
"1. The appeal is
upheld in part.
2. Save from that part of
the order dismissing the appellants' application to be substituted
for the deceased in her capacity as
guardian of Phathokuhle, the
order of the court below is set aside and for it Is substituted as
follows:
“
(a) the Applicant,
Sthembile Valenncia Mkhize, in her capacity as executrix of the
estate of the late Zwelibhekile Slbusiso Mbuyazl,
is hereby
substituted as Applicant In the deceased's damages claim and in his
funding application.
(b) The First and Second
Respondents are ordered to pay the Applicant's costs in both
applications, jointly and severally the one
paying the other to be
absolved.
(c) The First and Second
Respondents applications for the discharge of the rule
nisi
and
for the rescission of the orders granted on 7 June 2011are both
dismissed, with costs”.
3. The First and Second
Respondents are ordered to pay the costs of the appeal jointly and
severally, the one paying the other to
be absolved”.
[21]
As Mr Dickson SC for the First and Fifth Respondents correctly
pointed out, this dispute has been complicated by the decision
of the
Supreme Court of Appeal which has given rise to this application and
the action by the Fourth Respondent.
[22]
Mr Dickson in the heads of arguments submitted that the conclusion of
the SCA appeal left all parties confused as to the rights
of the
parties. For this reason First and Fifth Respondents and Fourth
Respondent launched applications for leave to appeal to
the
Constitutional Court but both these applications were refused. This
uncertainty has caused various steps to be taken. Fourth
Respondent
has now instituted an action to achieve certainty and the Second and
Third Respondents have brought this application.
He submitted that
the Premier persist in defending the recognition of the Second
Respondent as lnkosi. However in this application
First and Fifth
Respondents abide the decision of the court. First and Fifth
Respondents are required to be of assistance to this
court and these
submissions are made to that end on the issue of law. His Input was
of great assistance to this court and I thank
him for that.
[23]
What appears to be evident from the judgement of the SCA (SCA
82212013) is the following:
1.
The wife of the deceased, the Fourth Respondent
herein, In her capacity as guardian of Phathokuhle is not substituted
for the deceased.
2.
The wife of the deceased, the Fourth Respondent
herein, as executrix is substituted as Applicant in the damages claim
and the funding
application.
3.
The rule
nlsi
and
the standing orders in the application granted and altered on the 26
May 2010 stand. The applicant's application to be substituted
as
Applicant in the review application was dealt with as follows by the
Supreme Court of Appeal (paragraph 12 of the SCA judgment):
"I propose to
consider first the appellant's application to be substituted as
applicant In the review application. 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 lnkosl of Mbuyazl
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 Mbuyazl Community and reinstate him (the deceased) as
such, was personalto
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 the deceased. Jt terminated upon his death. (see
the relevant authorities referred to by Holmes jA in
Government
of the Republic of South Africa v Khumbani
1972 (2) SA 601(A)
at 607 A B). In my view the claim for the
reinstatement could not be serious, even after
litis
contestatius, andis thus not transmissible to
the deceased' heirs. It follows that the appellant cannot be
substituted as applicant
in the review application proper".
[24]
Counsel for the Second Respondent, Mr Ngema, submitted that the death
of the Applicant, the Fourth Respondent's husband, terminated
his
mandate and
Jocu standi
in
this matter which eventually terminated the Rule 53 review
proceedings. He submitted further that for his review application
to
proceed where oral evidence had to be led, he needs to be alive and
be present at court.
[25]
He also argued that because the Fourth Respondent is not in a
position to pursue the issue of her late husband as to the
chieftainship
that the order of reference to the hearing of oral
evidence would be of no purpose and that order should be set aside.
He finally
argued that the Rule
nisi
which
was kept alive by the Supreme Court of Appeal be discharged.
[26]
Counsel for the Fourth Respondent. Mr Goddard SC, submitted that the
Supreme Court of Appeal held that the Rule
nisi
should remain in place. Given that the
Applicant has a valid claim In her capacity as executrix, and has
already been substituted
as the Applicant herein, there Is no basis
for the rescission of the order granted on 7 June 2011. He further
submitted that the
Supreme Court of Appeal further held that the
minor son has a right to claim to be appointed lnkosi, although this
could not be
done in the same proceedings initially Instituted under
case number 2367/2010. The Applicant has accordingly instituted
separate
proceedings in her capacity as guardian of the minor son.
The essential issue in both this matter (the salary claim), and the
action
(the minor's claim to appointment) is the question of whether
the deceased was correctly identified and appointed as lnkosl, is
the
same. He then submitted that it is convenient, just and equitable for
this application and that action to be consolidated.
[27]
The fourth Respondent states that although she is only substituted in
respect of the monetary claim that the SCA effectively
ruled against
this application, she contends that the first issue to be decided is
whether the deceased was wrongfully removed
as lnkosi and that it
then fallows that the deceased's son is next in line for succession.
[28]
The issue in this matter appear to be revolving around the legal
principles and the proper interpretation of the Supreme Court
of
Appeal judgment.
[29]
The submission on behalf of the Fourth Respondent referred to above
should be considered in the light of what was said in paragraph
15 of
the Supreme Court of Appeal judgment. It would be appropriate at this
stage to refer to the whole of paragraph 15 which provides
as
follows:
"15. Thus, under
Zulu Laws of hereditary succession Phathokuhle would be next in line
for the position of lnkosi, were it to
be proved that the deceased
had been wrongfully removed as lnkosi. But section 3 of the Act
obliges the traditional community to
"transform and adapt
customary law and custom so as to comply with the principles
enshrined In the Constitution...by, in particular,
preventing unfair
discrimination, promoting equality and seeking to progressively
advance gender representation In the succession
to traditional
leadership position. Phathokuhle Is not necessarily guaranteed, by
reason only of his being the deceased's elder
son, to succeed the
deceased as lnkosl (assuming it could be established that the
deceased was wrongfully and unlawfully removed
as lnkosi). That would
depend on development. if any, within the Mbuyazi Community. But as
elder son, he would have a right to
be considered when Umdeni wenkosi
goes into the process of identifying a person who qualifies in terms
of customary law to assume
the possession of lnkosi, (section 19(1) A
of the Act). The question whether
or
not
the deceased was wrongfully removed is not before us".
[30]
What is therefore clear from reading of this paragraph of the
judgment as a whole is that the court stated clearly that Phathokuhle
is not necessarily guaranteed, by reason only of being the deceased's
elder son to succeed as lnkosi assuming that could be established
that the deceased was wrongfully and unlawfully removed as lnkosi.
[31]
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 at 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.
[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.
[33]
In terms of this decision of the Supreme Court of Appeal, the Fourth
Respondent has no claim in law to have the deceased's
successor
removed or the decision set aside.
[34]
It therefore stands to reason that the submissions made on behalf of
the Fourth Respondent as set out above are not sustainable.
[35]
It is also important
to
emphasise that the issue of the
monetary claim for damages is a totally separate issue wherein the
Supreme Court of Appeal held
that the Fourth Respondent was entitled
to bring an action against the MEC in this regard, in her capacity as
executor of the estate,
to adjudicate on the monetary issue. This
monetary issue, however, has nothing whatsoever to do with the
declaration of the Second
Respondent as lnkosi and Chief of Mbonambi
Tribe or the fact that Zwellbhekile Slbusiso Mbuyazi may have been
unlawfully removed
as lnkosi.
[36]
With the regard to the substitution of the Fourth Respondent to
pursue a claim In her capacity as executrix in her late husband's
estate, the Supreme Court of Appeal in paragraph 16 on page 14 of the
judgment said there was no apparent reason as to why she
should not
be substituted to pursue her claim which was in fact described by the
learned judge as a claim for damages founded on
the allege wrong
which resulted in the diminution in the patrimony of the deceased's
estate. The learned judge rightly held in
line 5 of paragraph 16 on
page 14 of his judgment that whilst she may pursue her claim for
payment of arrear salary or for damages,
that does not destruct from
the facts that it is claim distinct and separate from the one for
reinstatement of the deceased's heir
as lnkosi.
[37]
The effect and import of the judgment of the Supreme Court of Appeal
was to refer the matter back into this court to consider
the main
review application and to make a determination.
[38]
The import of the Supreme Court of Appeal judgment is that there is
no Applicant now to pursue the issue of chieftaincy of
the Mbonambi
Tribal Community as the Supreme Court of Appeal held that the
deceased's widow can no longer pursue her claim and
has no locu
standi
to pursue the
finalisation of this review application regarding the issue of the
chieftaincy of the Mbuyazi Tribal Community.
[39]
In the light of the decision of the Supreme Court of Appeal and the
fact that in the present review application there is no
more an
Applicant. this court is bound not to rescind the order and to
discharged the rule
nisi
referred
to earlier on in this judgment.
[401
It is therefore clear that the application for consolidation should
also fall. It is clear from the reading of the SCA judgment
that the
Fourth Respondent's son cannot achieve anything in his favour in this
litigation.
[41]
It was submitted correctly in my view that in the light of the SCA
decision and the fact that the Fourth Respondent is 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. There is no
reason why costs should not follow the results in these matters.
[42]
Having considered all the above, I make following order:
1)
The application for consolidation of a review
application with an action under case number 4862/2015 Is accordingly
dismissed.
2)
The order of this court granted by Honourable Mr
Justice van Zyl on 7 June 2011 is hereby rescinded.
3)
The rule
nisi
granted
by this court on 11 May 2010 and subsequently varied by this court on
26 May 2010 is hereby discharged.
4)
In
the interlocutory consolidation application the Applicant therein
being the Fourth Respondent should pay the costs thereof.
5)
In
the review application the Fourth Respondent is also ordered to pay
the costs of the review application.
_________________
SJSHI
J
Date
of hearing: 3 April 2016
Date
delivered: 06 October 2016
Appearances:
For
the Appellant: Adv G.D.Goddard SC
Instructed
by: Schreiber Smith Attorneys
c/o
Stowe!& Co.
295
Pietermaritz Street
Pietermaritzburg
For
the 1
st
& 5
th
Respondents: Adv A.J. Dickson
SC
Instructed by: PKX
Attorneys
Suite 36, Cascades
Crescent
Montrose
Pietermaritzburg
For
the Second Respondent: Adv J.N.N. Ngema
Instructed
by: Pretorious, Mdletshe & Partners Inc.
Stanger
c/o
McGregor & Associates
14
Leathern Street
Pietermaritzburg
IN
THE HIGHCOURT OF SOUTHAFRICA
KWAZULU-NATAL
DIVISION, PIETERMARlTZBURG
Case
no. 2367/10
ON
THE 6
TH
DAY OF OCTOBER 2016
Before
The Honourable Mr Justice SISHI
In
the matter between:
ZWELIBHEKJLE
SIBUSISO
MBUYAZI
APPLICANT
and
THE
PREMIER OF THE PROVINCE OF KZN
FIRST
RESPONDENT
MKHANYISENIMBUYANI
SECOND
RESPONDENT
uMNDENIWENKOSl
STHEMBILE VALENCIA MKHIZE N.O.
THIRD
RESPONDENT
THE
M.E.C. OF THE DEPARTMENT OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS
FOURTH
RESPONDENT
HAVING
read the Notice of Motion and the other documents filed of record;
and HAVING heard Counsel on the 3rd day of April 2016
for the
Applicant;
THE
COURT RESERVED JUDGMENT;
THEREAFTER
ON THIS DAY;
1.
The application for consolidation of a review
application with an action under case number 4862/2015is accordingly
dismissed.
2.
The order of this court granted by Honourable Mr
Justice van Zyl on 7 June 2011 be and is hereby rescinded.
3.
The
rule nisi
granted
by this court on 11 May 2010 and subsequently varied by this court on
26 May 201o be and is hereby discharged.
4.
In
the interlocutory consolidation application the Applicant therein
being the Fourth Respondent should pay the costs thereof.
5.
In
the review application the Fourth Respondent Is also ordered to pay
the costs of the review application.
BY
ORDER OF THE COURT,
R
J JOOSTE
REGISTRAR
Stowell
& Co.