About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2015
>>
[2015] ZAECBHC 37
|
|
Gwayi v Member of the Executive Council, Responsible for Local Government and Traditional Affairs and Others (55/2015) [2015] ZAECBHC 37 (1 December 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO. 55/2015
REPORTABLE: YES/NO
In the matter between:
ENOCH
LUNGILE GWAYI
Applicant
and
THE
MEMBER OF THE EXECUTIVE COUNCIL,
First
Respondent
RESPONSIBLE
FOR LOCAL GOVERNMENT
AND
TRADITIONAL AFFAIRS
THE
SUPERINTENDENT - GENERAL,
Second
Respondent
FOR
THE DEPARTMENT OF LOCAL
GOVERNMENT
AND TRADITIONAL AFFAIRS
CHIEF
LANGA MAVUSO
Third
Respondent
DIBANDLELA
MAVUSO
Fourth
Respondent
JUDGMENT
D VAN ZYL ADJP:
[1]
This matter is concerned with the appointment of, and the removal
from office of an iNkosana.
[1]
The applicant brought an application wherein he
inter
alia
seeks an order reviewing and setting aside (a) the decision of the
first and second respondents
(the
MEC for Local Government and Traditional Affairs in the Eastern Cape
Government, and the Superintendent of the Department of
Local
Government and Traditional Affairs respectively)
to
remove him from his position as an iNkosana for the kwa Mavuso
Village in the district of Alice, and to terminate payment of
his
salary; and (b), the decision of the third respondent
(Chief
Langa Mavuso)
to
appoint the fourth respondent
(Dibandlela
Mavuso)
as
iNkosana in the applicant’s stead.
[2]
The material facts are, on an application of the principles in
Plascon
– Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
the following: the father of the third respondent, the late Phakamile
Augustus Mavuso
(the
late Chief Mavuso)
,
died in Alice on 18 November 2007. At the time of his death he
was the head of the Mavuso Royal Family,
[3]
and the head of the Gaga Traditional Council.
[4]
Following Chief Mavuso’s death, the Mavuso Royal Family
met on 20 November 2007 and resolved that the third respondent’s
younger brother, Sanqa Mavuso, would be nominated as acting chief and
head of the Gaga Traditional Council. As it appears
from the
resolution, a copy of which was annexed to the answering papers, the
rightful heir to the Mavuso Chieftainship was the
third respondent.
However, due to the fact that he was employed as a public servant by
the provincial government, his duties
precluded him from immediately
assuming his traditional role in the Mavuso Royal Family.
[3]
On 2 January 2008 the secretary of the Gaga Traditional Council wrote
to the King of the amaRharhabe,
King Zanesizwe Sandi VI, advising him
of the Mavuso Royal Family’s decision and seeking his approval
thereof. On 7
January 2008 the office of the King addressed a
letter to the first respondent requesting that the appointment of the
third respondent’s
younger brother as acting chief of the Gaga
Traditional Council be approved and processed by the department in
terms of the Eastern
Cape Traditional Leadership and Governance
Act.
[5]
The appointment
was approved by the House of Traditional Leaders on 29 April 2008 and
by the first respondent on 13 June
2008.
[4]
Following his resignation from the position which he held in the
public service, the third respondent
was eventually installed on 21
November 2009 as chief of the Mavuso Royal Family, and Head of the
Gaga Traditional Council.
In September 2013 a meeting of the
Mavuso Royal Family took place to discuss matters relating to the
Mavuso Chieftainship.
At that meeting a report was received
that the applicant and a certain Mthimkhulu, the iNkosana of the
Lenge village, were irregularly
appointed to their respective
positions. At the same meeting resolutions were also taken with
regard to the appointment of
iNkosana, including that of the fourth
respondent. It is common cause that the fourth respondent, who
is ten years of age
and is still a minor, is the son of the third
respondent.
[5]
In February 2014 the third respondent addressed a letter to the
Department of Local Government
and Traditional Affairs wherein he
brought to its attention the ostensible irregular appointment of the
applicant and of the said
Mthimkulu as iNkosana. The
irregularity was said to be that
“
on
their files at the Office of the Rharhabe Regional Co-ordinator in
your Department that they have appointed themselves as iNkosana
and
appended their signatures thereto, a role only the Chairperson and
Secretary of the Royal Family can do.”
[6]
In March 2014 the first respondent wrote a letter to the applicant
advising him, with reference
to the third respondent’s letter,
that the Mavuso Royal Family had resolved to remove him from his
position as headman as
he was wrongfully appointed. He was
given 14 days to make representations indicating why that decision
should not be given
effect to. The applicant responded by
saying that he was appointed an iNkosana by the third respondent’s
father, the
late Chief Mavuso and that in
“
early
2008, all the paper work was done by EL Gwayi
[the
applicant]
and signed by the Chairman
(Mr Masiza) as per Chief Mavuso’s instructions. All the
appointments were made permanent.
There were no guidelines
given. There was no Royal Family at that time. The
decisions were made by the Chief alone.”
[7]
In response the Department informed the applicant that his allegation
that he was appointed by
the Late Chief Mavuso was unfounded as the
resolution and the minutes of the meeting on which he relied were
dated and said to
have been signed some five months after the death
of the Late Chief Mavuso; that the minutes of the meeting were not
those of the
Royal Family; and that the applicant’s appointment
was not endorsed by the Royal Family
“
but
rather by yourself.”
The
applicant’s appointment was thereafter terminated.
[8]
The legislative framework for the appointment and removal of iNkosana
is found in section 211
of the Constitution,
[6]
the Traditional Leadership and Governance Framework Act
[7]
(the
Framework Act)
and
the Governance Act. Section 11 of the Framework Act deals with
the appointment of an iNkosana. Relevant to the present
proceedings are subsections (1) and (2) which reads:
“
(1)
Whenever the position of senior traditional leader, headman or
headwoman is to be filled
–
(a)
the royal family concerned must,
within a reasonable time after the need arises for any of those
positions to be filled, and with
due regard to applicable customary
law –
(i)
identify a person who qualifies in
terms of customary law to assume the position in question, after
taking into account whether
any of the grounds referred to in section
12(1)(a), (b) and (d) apply to that person; and
(ii)
through the relevant customary
structure, inform the Premier of the province concerned of the
particulars of the person so identified
to fill the position and of
the reasons for the identification of that person; and
(b)
the Premier concerned must, subject
to subsection (3), recognise the person so identified by the royal
family in accordance with
provincial legislation as senior
traditional leader, headman or headwoman, as the case may be.
(2)(a)
The provincial legislation referred to in subsection (1)(b) must at
least provide for
–
(i)
a notice in the Provincial Gazette recognising the person identified
as senior traditional
leader, headman or headwoman in terms of
subsection (1);
(ii)
a certificate of recognition to be issued to the identified person;
and
(iii)
the relevant provincial house of
traditional leaders to be informed of the recognition off a senior
traditional leader, headman
or headwoman.
(b)
Provincial legislation may also
provide for –
(i)
The election or appointment of a
headman or headwoman in terms of customary law and customs; and
(ii)
Consultation by the Premier with the
traditional council concerned where the position of a senior
traditional leader, headman or
headwoman is to be filled.”
[9]
These provisions are largely mirrored by section 18 of the Governance
Act. Subsections (1)
and (3) are relevant:-
“
(1)
Whenever the position of an iNkosi or iNkosana is to be filled –
(a)
the royal family concerned must
subject to such conditions and procedure as prescribed, within sixty
days after the position becomes
vacant, and with due regard to
applicable customary law –
(i)
identify a person who qualifies in
terms of customary law to assume the position in question, after
taking into account whether
any of the grounds referred to in section
6(3) apply to that person; and
(ii)
through the relevant customary
structure, inform the Premier of the particulars of the person so
identified to fill the position
and of the reasons for the
identification of that person; and
(b)
the Premier must, subject to
subsection (5), by notice in the Gazette, recognize the person so
identified by the royal family as
an iNkosi or iNkosana, as the case
may be.
(3)
The Premier must, within a period of thirty days after the date of
publication of the notice
recognizing an iNkosi or iNkosana issue to
the person who is identified in terms of paragraph (a)(i), a
certificate of recognition.”
[10]
Sections 12 of the Framework Act and 20 of the Governance Act in turn
deal with the removal of an iNkosana.
For present purposes it
is only necessary to refer to the latter section. It provides:
“
20(1)
An iNkosi or iNkosana may be removed from office on the ground 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 or that iNkosi or iNkosana
to function as such;
(c)
wrongful appointment or recognition;
or
(d)
a transgression of a customary rule
or principle that warrants removal.
(2)
Whenever any of the grounds referred to in subsection (1)(a), (b) and
(d) come to the attention of –
(a)
the royal family and the royal family decides to remove an iNkosi or
iNkosana, the royal family concerned
must, within a reasonable time
and through the relevant customary structure –
(i)
inform the Premier of the of the particulars of the iNkosi or
iNkosana to be removed from office; and
(ii)
furnish reasons for such removal;
(b)
any person, such a person must
inform the Premier and the Premier must –
(i)
refer the matter to the royal family
under whose jurisdiction the iNkosi or iNkosana falls, for an
investigation and a decision,
and a report thereon; and
(ii)
consider the report and act in terms
of subsection (3).
(3)
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 or iNkosana of such decision and, in writing, call
upon such iNkosi or 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.
(4)
Where an iNkosi or iNkosana is removed from office, a successor in
line
with custom may assume the position, role and responsibilities,
subject to the provisions of this Act.”
[11]
Proceeding then to deal with the removal of the applicant as iNkosana
and the decision of the first and /
or second respondents in that
regard, there are two difficulties with the order which the applicant
seeks. The first is that
it is evident from a reading of
section 20 of the Governance Act that the decision to remove an
iNkosana is not taken by the Premier
[8]
or by those to whom he had delegated the functions in section 20 of
the Governance Act,
[9]
but by
the Royal Family. The process provided in section 20(2) and (3)
involves the following steps: Once a ground
for removal comes
to the attention of the Royal Family, and it has been decided to
remove the particular iNkosana and the Premier
was advised as
required, the Premier must:
(a)
advise the iNkosana of the Royal Family’s decision, and call
upon him in writing to make
representations as to why that decision
“
should not be given effect to”
;
(b)
consider the representations of the iNkosana, and if the decision to
remove him or her
“
is in
accordance with custom”
, withdraw
the iNkosana’s certificate of recognition issued in terms of
section 18(3) of the Governance Act.
In the context of the
present matter, the issue raised is accordingly rather whether the
decision of the first, or for that matter,
the second respondent to
give effect to the decision of the Royal Family to remove the
applicant from his position as iNkosana,
and to withdraw the
certificate of recognition, is reviewable.
[12]
The second difficulty is that it is unclear on what grounds the
applicant is challenging these decisions.
The exercise by the
Premier of his powers in sections 18 and 20 of the Governance Act
constitutes administrative action.
[10]
A cause of action for the judicial review of administrative action
now ordinarily arises from the provisions of the Promotion
of
Administrative Justice Act
[11]
(PAJA).
The
grounds for review are contained in section 6 of PAJA. It is
trite that an applicant in motion proceedings must identify
the
issues with clarity and set out the necessary averments in support of
the case he or she intends to make out. The affidavits
in
motion proceedings fulfil a dual function: that of the pleadings and
providing the essential evidence to be relied upon by the
applicant.
[12]
The
applicant must make out his or her case in the founding affidavit so
as to alert the respondent to the case he or she
is asked to
meet.
[13]
[13]
The applicant has failed to rely on any specific ground of review in
section 6 of PAJA. What can be
distilled from the papers and
counsel’s argument is that the applicant seeks to challenge the
justification for the decision
of the Premier to give effect to the
decision of the Royal Family and to withdraw his certificate of
recognition. In the
context of the grounds in section 6 of
PAJA, counsel in argument accordingly confined himself to the
rationality and reasonableness
of that decision as grounds for
review.
[14]
Rationality review is provided in section 6(2)(f)(ii)(cc) and (dd) of
PAJA. It empowers the court to
review an administrative action
if the action was not rationally connected to the information before
the administrator or the reasons
given for it. The rationality
requirement relates to both the process by which the decision is
reached and the decision itself.
With regard to the decision,
it means
“
that
the information on which the decision is based and the reasons given
for such decision must support and justify the decision
taken.
If they do not, the decision must be regarded as being arbitrary”
[14]
[15]
Reasonableness in section 6(2)(b) of PAJA gives effect to the
Constitutional obligation on administrative
decision-makers to act
“
reasonable”
as
entrenched in section 33(1) of the Constitution. Reasonableness
must be understood
“
to
require a single test, namely that an administrative act will be
reviewable if it . . . is one that a reasonable decision-maker
could
not reach.”
[15]
What
will constitute a reasonable decision will depend
“
on
the circumstances of each case, much as what will constitute a fair
procedure will depend on the circumstances of each case.”
[16]
[16]
It is important to bear in mind that the standard of rationality or
reasonableness review does not require
that the decision of the
administrative decision-maker must be perfect or, in the court’s
estimation, the best decision on
the facts.
[17]
The distinction between appeals and reviews continues to be
significant and the court
“
should
take care not to usurp the functions or administrative agencies.
Its task is to ensure that the decisions taken by
administrative
agencies fall within the bounds of reasonableness as required by the
Constitution.”
[18]
Rationality
review calls for rationality and justification, rather than
substitution of the court’s opinion for that of the
decision-maker on the basis that the decision is substantively
incorrect.
[19]
After
all, the primary focus in scrutinising administrative action is on
the fairness of the process, not the substantive
correctness of the
outcome.
[20]
[17]
As stated, in his representations to the Department the applicant
contended that he and others were appointed
as iNkosanas by the late
Chief Mavuso who instructed them to do all the paperwork. In
support of this the applicant put up
documentation consisting of a
copy of a
“
Royal Family
Resolution”
,
the
minutes of a meeting which purportedly took place on 2 April 2008,
and an attendance register. From this documentation
the first
and second respondents concluded that the resolution and the minutes
of the meeting were not that of the Royal Family
as required by the
relevant provisions of the Governance Act. The conclusion that
it did not all add up, and that the applicant’s
contention that
he was appointed by the late Chief Mavuso was unfounded, does not in
my view fail the test of rationality or reasonableness.
[18] As
stated, the late Chief Mavuso died in November 2007. The
meeting relied on took place some five
months later. The
minutes of the meeting which the applicant contended as reflecting a
resolution for his appointment as
iNkosana, accordingly took place
during the period of interregnum when there was no appointed Chief;
that is between the death
of the Late Chief Mavuso and the
finalisation of the acting appointment of the third respondent’s
brother.
[19]
The documentation put up by the applicant also do not in itself
reflect a meeting of, and a resolution by
the Royal Family. The
minutes of the meeting are rather those of what, according to the
attendance register, appear to have
been a meeting of a committee or
of community members. The attendance register shows that the
meeting was attended by the
applicant as a
“
committee
member”
and was chaired by a
certain Gqokoma and / or Matebeni. The resolution submitted to
the Department in consequence of the decision
taken at the meeting
purports to be a resolution by the Royal Family, and was signed by
the applicant as the
“
acting
secretary of the Royal Family”
,
and by a certain Masiza as the
“
chairperson
of the Royal Family.”
However,
in the attendance register the said Masiza, similar to the applicant,
is identified as being a committee member.
This clearly does
not lend support to the capacities in which the applicant and Masiza
are said to have signed the
“
Royal
Family Resolution.”
[20]
The affidavits filed by the applicant in support of this application
do not assist in clearing-up any of
these matters. On the
contrary, it rather raises more questions. According to the
applicant he was appointed an iNkosana
in
“
1994
under the Chieftainship of the third respondent’s predecessor
in title of the tribal chief,”
and
that the late Chief Mavuso
“
found
[the applicant]
already
in the position of being a member of the council under acting Chief
Hamilton Mavuso, a brother to Chief Heshangophondo Mavuso,
after his
death.”
This, the applicant
says happened long before the installation of the late Chief Mavuso
as the Chief of the Gaga Traditional Council.
The applicant
seems to suggest that he was an iNkosana even before the appointment
of the Late Chief Mavuso. When and by
whom that appointment was
made is not stated, and the respondents denied the allegation.
It is further inconsistent with
what the applicant told the first and
second respondents in his representations to them, namely that he was
appointed by the late
Chief Mavuso. So too is it inconsistent
with the statement in his replying affidavit that it
“
is
a fact”
that he was appointed by
the late Chief Mavuso. Another aspect is that the applicant’s
unsupported statement that after
the death of the late Chief Mavuso
he acted as Chief, is inconsistent with the minutes of the meeting
and with the capacity in
which he signed the aforementioned
resolution.
[21] I
accordingly find no reason to set aside the first and / or the second
respondents’ decision.
It cannot in my view be said to
have been irrational, unreasonable, or for that matter, made in
ignorance of relevant facts.
[22]
That leaves the decision of the Mavuso Royal Family to identify the
fourth respondent as iNkosana of the
kwa-Mavuso Village. It
would appear that the relief which the applicant claims in this
regard was not intended to be substantive
relief, but rather
consequential relief following upon the setting aside of the decision
taken by the first and / or second respondents.
The reason for
saying this is twofold: Firstly, otherwise than in the case of
the first and second respondents, the applicant
did not in his notice
of motion ask the third respondent to give reasons for the decision
to identify the fourth respondent as
iNkosana.
[21]
[23]
Secondly, the applicant has not advanced any independent reason or
ground on which that decision falls to
be set aside on review.
In his founding affidavit the applicant limited himself in saying, on
what appears to be hearsay,
that he was
“
advised
that the third respondent now wishes to put in my stead, Dibandlela
Mavuso, who is currently not more than 10 years of age,
which is on
its own is a humiliation for the role that I have played in the
traditional leadership that spans over five decades
and is in fact a
humiliation to the community that we seek to lend. I do not
know of the reason that the third respondent
might have that have
caused him to act unlawfully and wrongfully against me.”
In reply and
inter
alia
with reference to the age of the
fourth respondent he added that he
“
cannot
shake the feeling that the third respondent is making a mockery of
the institution of traditional leadership.”
[24]
Before dealing with counsel’ submissions on this aspect, there
is a matter that requires comment. It
is that the age of the
fourth respondent may raise the question whether he could lawfully
have been identified by the Royal Family
as a successor to the
applicant. The reason for this lies in the provisions of
section 6(3) read with section 18(1)(a) of
the Governance Act.
The latter section provides that an iNkosana may be identified by the
Royal Family after taking into
account
“
whether
any of the grounds referred to in section 6(3) applies to that
person.”
Section
6(3) of the Governance Act determines who may, or who may not be a
member of a traditional council.
[22]
One of the
“
requirements”
in
section 6(3)(a) is that a member of a traditional council must be
above the age of 21. What the Governance Act does is
to make
the requirements for membership of a Traditional Council applicable
to the appointment of iNkosi
[23]
and iNkosana. In the Framework Act on the other hand, it is the
grounds for the removal of an iNkosi or iNkosana that serve
as
grounds for disqualifying a person from being appointed to that
position, which do not include any age limit.
[24]
[25]
The introduction of an age limit for the appointment of an iNkosana
by the Governance Act is not only inconsistent
with its own
provisions, but also that of the Framework Act and of the objectives
of both Acts. Section 21 of the Governance
Act requires the
appointment of a regent
[25]
when the person who has been identified as a successor to the
position of
inter
alia
an iNkosana, is a minor in terms of applicable customary law or
customs. The effect of this provision is that it recognises
that someone who is a minor in terms of custom or customary law may
be identified as an iNkosana. The question is whether
section
18(1)(a) must be interpreted to mean that a person who is below the
age of 21, but is regarded by custom to be a major,
can never be
identified as a successor to the position of iNkosana. However,
similar to when it is necessary to appoint a
regent, the time for the
replacement of the appointed regent by the incumbent iNkosana is not
dependent on age, but rather by the
point in time when the successor
“
ceases
to be a minor in terms of customary law,”
at
which time the regent is obliged to relinquish his or her
position.
[26]
The
process which section 21 creates for the appointment of a regent is
accordingly not based on age, but rather minority
determined by
customary law and custom.
[26]
Generally, age does not play a role in the appointment of traditional
leaders, and it is not a criterion
for the determination of
majority.
[27]
In
customary law the progression is from childhood to manhood and it is
not dependent upon chronological age, but is rather
determined by
events, such as marriage or the advent of puberty and the
accompanying rites of passage. The apparent conflict
with
custom in section 18 of the Governance Act is contrary to its own
objectives and that of the Framework Act, namely the
“
restoration
of the integrity and legitimacy of the institution of traditional
leadership in accordance with custom and customary
practices
.”
[28]
It is suggested that what is contemplated by this legislation
is that subject to the Constitution
[29]
the appointment of traditional leaders must accord with customs and
customary law. The question must be asked whether the
notion of
an age limit has anything to do with custom, and whether it is not
rather a remnant of colonial and homeland legislation
which required
a headman to be above the statutory age of majority.
[30]
[27]
Another aspect is that the provincial legislature derives its power
to legislate on traditional leadership
from the provisions of the
Framework Act.
[31]
The
age requirement seems to be in conflict with that Act. Section
11 of the Framework Act deals with the appointment
of iNkosana.
It tasks the Royal Family concerned to identify a person who
qualifies in terms of customary law to assume the
position of
iNkosana
“
after
taking into account whether any of the grounds referred to in section
12(1)(a), (b) and (d) apply to that person.”
The
relevant paragraphs in section 12 deal with matters which may
disqualify a person from holding the position of iNkosana, such
as
having been convicted of a criminal offence and sentenced to undergo
imprisonment of more than twelve months without the option
of a
fine.
[32]
It does not
refer to any age limit.
[28]
Further, section 11 of the Framework Act appears to only allow for
provincial legislation dealing with the
manner in which the Premier
is to recognise the person identified by the Royal Family,
[33]
and for
“
the
election or appointment of a headman or headwoman in terms of
customary law and customs.”
[34]
The
question raised by this is whether provincial legislation may
introduce any requirement not specifically provided for in section
11(1)(a), read with section 12(1)(a), (b) and (d) of the Framework
Act, or which is not a requirement in terms of custom or customary
law as envisaged in section 11(2)(b)(i) of that Act. If not
then the question is whether the introduction of the age limit
of 21
years in section 18(1)(a) of the Governance Act is not ultra
vires
,
which may necessitate an amendment to the Act.
[29]
The age of the fourth respondent did however not form part of the
lis
between
the parties as it was not pertinently raised or argued. As it
involves not only issues of interpretation, but also
custom, which
may require evidence,
[35]
it
is not a matter which can be dealt with without first having alerted
the parties thereof and having afforded them an opportunity
to fully
deal therewith. Counsel for the applicant instead chose to
confine himself to two submissions with regard to the
appointment of
the fourth respondent. He argued firstly that the first, second
and third respondents failed to consider and
comply with the
prescriptive provisions in section 13 of the Framework Act and
section 21 of the Governance Act. These sections
provide
inter
alia
that where the person who has been identified as the successor to the
vacant position of an iNkosana is still a minor in terms
of customary
law or customs, the Royal Family must identify a regent to assume
that position on behalf of the minor, and through
the relevant
customary structure advise the Premier thereof.
[36]
The Governance Act in turn places the duty on the Premier to
inter
alia
recognise the regent identified by the Royal Family by notice in the
Gazette, and to review the recognition of the regent at least
once
every three years.
[37]
[30]
If it is to be accepted in favour of the applicant that he is able to
get over the first hurdle, namely that
a failure to comply with the
provisions dealing with the appointment of a regent would also affect
the lawfulness of the separate
decision of the Royal Family to
identify someone as the successor to a vacant position of an
iNkosana, which in my
prima
facie
view
is unlikely, the difficulty facing the applicant is that he has
similarly failed to raise this issue in any of his affidavits,
either
pertinently or with reference to the relevant statutory provisions on
which reliance was placed in argument.
[38]
The result is that this issue was never dealt with by any of the
parties in their papers. In addition, no factual allegations
were made in support of that submission. There is accordingly
no evidence, for instance, that no one has been identified
as a
regent as required in section 21(1).
[31]
The second argument was that the third respondent’s decision to
replace him was actuated by malice
and an ulterior motive, namely to
secure the appointment of his own minor son as iNkosana. Once
again, this is an issue which
cannot be entertained on these papers.
The submission naturally carries with it the suggestion and
accusation of dishonesty.
It is well established that dishonest
conduct will not lightly be inferred by the court.
[39]
The allegation must not only be made expressly, it must have a
factual foundation, both of which is lacking in the present
matter.
[32]
For these reasons the application is dismissed with costs.
[33]
The Registrar of this Court is directed to send a copy of this
judgment to the:
(a)
Premier of the Eastern Cape, and
(b)
Eastern Cape House of Traditional Leaders, and to direct their
attention to paragraphs [24] –
[27] of this judgment.
D VAN ZYL
ACTING DEPUTY JUDGE
PRESIDENT
Counsel
for the Applicants:
Adv.
Z M. Maseti
Instructed
by:
Gordon
McCune Attorneys
140
Alexandra Road
KING
WILLIAM’S TOWN
Counsel
for the Respondents:
Adv.
P G Benningfield
Instructed
by:
The
State Attorney
Office
of the Chief State Law Advisor
Office
of the Premier
32
Alexandra Road
KING
WILLIAM’S TOWN
Date Heard:05 November
2015
Judgment
Delivered:01 December 2015
[1]
A
headman in isiXhosa.
[2]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634A to 635C. In summary it means that an
applicant who seeks final relief on motion must, in the event of
conflict,
accept the version set up by his opponent, unless the
latter’s allegations are, in the opinion of the court, not
such as
to raise a real, genuine or
bona
fide
dispute
of fact, or are so far-fetched or clearly untenable that the court
is justified in rejecting them merely on the papers.
[3]
The
term “
Royal
Family”
is defined in section 1 of the Eastern Cape Traditional Leadership
and Governance Act 4 of 2005 as “
the
core customary institution or structure consisting of immediate
relatives of the ruling family within a traditional community,
who
have been identified in terms of custom, and includes, where
applicable, other family members who are close relatives of
the
ruling family.”
[4]
A
Traditional Council is established in terms of section 6(2) of the
Governance Act in respect of a Traditional Community as defined
in
section 5(1) of the Act.
[5]
4
of 2005 (Governance Act).
[6]
It
reads: “
(1)
The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2) A traditional authority that observes a
system of customary law may function subject to any applicable
legislation and customs,
which includes amendments to, or repeal of,
that legislation or those customs. (3) The courts must apply
customary law
when that law is applicable, subject to the
Constitution and any legislation that specifically deals with
customary law.”
[7]
41
of 2003.
[8]
“
Premier”
means the Premier of the Province of the Eastern Cape
(the
definition in section 1 of the Governance Act.)
[9]
Section 34 of the Governance Act provides that the
Premier may delegate any powers conferred on him or her by the
Act,
except for the power to make regulations.
[10]
Premier
of the Eastern Cape and Others v Ntamo and Others
[2015]
ZAECBHC 14.
[11]
3
of 2000.
[12]
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999 (2) SA 279
(T) at 323F – 325C and
Cele
v The South African Social Security Agency
2008
(7) BCLR 734
(D) at para [6].
[13]
Erasmus
Superior Court Practice
at pages B1-38 and B1-45, and the authorities referred to.
[14]
Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes and
Claims and Others
at paras [62] and [63].
[15]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
2004 (4) 490 (CC) at para [44].
[16]
Ibid
at para [45].
[17]
Bapedi
Marota Mamone supra
at
para [78].
[18]
Bato
Star
supra
at
para [45].
[19]
Bapedi
Marota Mamone supra
at para [78].
[20]
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
2014
(1) SA 604
(CC) at para [42].
[21]
Rule
53(1)(b) of the Uniform Rules of Court.
[22]
It
reads
:
“A member of the traditional council shall be a person who –
(a) is above the age of 21; (b) has not been convicted
of an offence
and sentenced to more than 12 month imprisonment without the option
of a fine; (c) is not unrehabilitated insolvent;
(d) is a South
African Citizen; and € is ordinarily resident within the
jurisdiction of the traditional council.”
[23]
A
Chief in isiXhosa.
[24]
See
sections 9(1)(a); 10(1); 10A(1); 10B(1); 11(1)(a) and 12(1) thereof.
[25]
Its
equivalent is section 13 of the Framework Act. A “
regent”
is
defined in section 1 of that Act as: “
any
person who, in terms of customary la of the traditional community
concerned, holds a traditional leadership position in a
temporary
capacity until a successor to that position who is a minor, is
recognised as contemplated in section 13(4).”
[26]
Section 21(6) of the Governance Act. It reads:
“
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 recognized 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.”
[27]
See
Bennett TW,
Application
of Customary Law in South Africa
,
JUTA at 87 and Olivier NJJ
et
al
,
Indigenous
Law
,
Butterworths Durban at 4 -6.
[28]
See the preamble to both Acts.
[29]
“
Customs,
traditions or customary laws relating to traditional leadership
continue to operate subject to the Constitution.”
(Section 2(5) of the Governance Act. See also sections 2(3);
2A(4) and 3B(4) of the Framework Act)
[30]
See
section 41(2) of the Trankei Authorities Act 4 of 1965 and section
24(3) of the Ciskei Administrative authorities Act 37 of
1984.
[31]
Section
2(1) of the Governance Act says that it is “
subject
to the Constitution, the Framework Act and the Remuneration Act.”
[32]
Section
12(1)(a) of the Framework Act reads: “
A
senior traditional leader, headman or headwoman 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
senior traditional leader, headman or headwoman
to function as
such; (c) wrongful appointment or recognition; or (d) a
transgression of a customary rule or principle that
warrants
removal.”
[33]
Section
11(1)(b) read with section 11(2).
[34]
Section
11(2)(b)(i).
[35]
See section 1(1) and (2) of the Law of Evidence amendment Act
45 of 1988.
[36]
Section
13(1)(a) of the Framework Act.
[37]
Section
21(1) and (2) of the Governance Act.
[38]
See footnotes 11 and 12 above. Also
Minister
of Land Affairs and Agriculture v D e F Wevell Trust
2008 (2) SA 184
(SCA) at para [43] and
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA) at para [28].
[39]
Gates
v Gates
1939 AD 150
at 155 and
Kelleher
v Minister of Defence
1983
(1) SA 71
(E) at 75D – E.