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[2015] ZAECMHC 4
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Zulu Royal Family of Ncapai Kamadzikane Kazulu and Others v Makaula and Others (1689/2011) [2015] ZAECMHC 4 (8 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no: 1689/2011
NOT
REPORTABLE
In
the matter between:
1.
ZULU ROYAL FAMILY OF NCAPAI
KAMADZIKANE
KAZULU
.................................................................................
First
Applicant
2.
LUMUMBA
MAKAULA
...............................................................................
Second
Applicant
3.
MZILIKAZI ELLIOT
NCAPAI
.......................................................................
Third
Applicant
4.
MABALAI JOHAN
DABULA
........................................................................
Fourth
Applicant
5.
ZIPHATHE
MAKAULA
....................................................................................
Fifth
Applicant
6.
ZUKISILE
MAKAULA
.....................................................................................
Sixth
Applicant
7.
ZOLILE
MAKAULA
....................................................................................
Seventh
Applicant
8.
NKOSAYIXAKWA
MAKAULA
....................................................................
Eighth
Applicant
9.
PHATHIZIZWE
MAKAULA
..........................................................................
Ninth
Applicant
10.
DON DORAN
DABULA
.................................................................................
Tenth
Applicant
11.
SIPHO
MPONGOMA
...............................................................................
Eleventh Applicant
12.
ZABULALANA
DABULA
..........................................................................
Twelfth
Applicant
13.
FANA
MAKAULA
...................................................................................
Thirteenth
Applicant
14.
SIMPIHWE
MAKAULA
........................................................................
Fourteenth
Applicant
15.
MNYANEZELI
MAKAULA
.....................................................................
Fifteenth
Applicant
16.
SICELO
MAKAULA
................................................................................
Sixteenth
Applicant
17.
VUYANI
MAKAULA
...........................................................................
Seventeenth
Applicant
18.
SIZWE
MAKAULA
................................................................................
Eighteenth
Applicant
vs
1.
FIKILE
MAKAULA
........................................................................................
First
Respondent
2.
MNCEDISI
MAKAULA
.............................................................................
Second
Respondent
3.
PHAMBILI
MAKAULA
................................................................................
Third
Respondent
4.
MZWANDILE
MAKAULA
.........................................................................
Fourth
Respondent
5.
THULETHU
MAKAULA-GARANE
............................................................
Fifth
Respondent
6.
THEMBISA
MAKAULA
...............................................................................
Sixth
Respondent
7.
NOMBULELO
SHUSHU
..........................................................................
Seventh
Respondent
8.
MALINGE
MAKAULA
..............................................................................
Eighth
Respondent
9.
NONCEKELELA
MAKAULA
....................................................................
Ninth
Respondent
10.
THEMBISILE NOKWEZI
MAKAULA
..................................................
Tenth
Respondent
11.
THE MEC FOR LOCAL GOVERNMENT
AND
TRADITIONAL AFFAIRS, EASTERN
CAPE
...............................................................................................................
Eleventh
Respondent
12.
THE SUPERINTENDENT-GENERAL LOCAL
GOVERNMENT
AND TRADITIONAL AFFAIRS,
EASTERN
CAPE
.............................................................................................
Twelfth
Respondent
13.
HOUSE OF TRADITIONAL LEADERS,
EASTERN
CAPE
.........................................................................................
Thirteenth
Respondent
14.
THE PREMIER, EASTERN
CAPE
....................................................
Fourteenth
Respondent
15.
MAKAULA TRADITIONAL
COUNCIL
..............................................
Fifteenth
Respondent
Date
heard: 9
th
June 2014
Date
delivered: 8 January 2015
SUMMARY:
Applicants herein sought an order to declare the existence of the
Mngcisane Royal Family formed by the first to
ninth respondents and
their cohorts to be
of no force or legal effect and first applicant to be
the
only Royal Family of the Makaula Traditional Council. The Court
concluded that the respondents’
evidence could not be said to amount
to a
genuine dispute of fact justifying a referral of the case to oral
evidence. The application was decided in favour of
the applicants with
costs.
JUDGMENT
TSHIKI
J:
[1]
In their notice of motion, the applicants herein seek an order in the
following terms:
[1.1]
that the alleged existence of the so-called Mngcisane Royal Family
formed by the first to ninth respondents and their cohorts
be and is
hereby declared to be of no force and/or legal effect;
[1.2]
that the first to ninth respondents and their cohorts be and are
hereby interdicted and restrained from arrogating to themselves
and
their so-called Mngcisane Royal Family, the right to identify any
traditional leader that falls under the auspices of the fifteenth
respondent or to perform any activity that has traditionally been
performed by the first applicant;
[1.3]
that the recognition of the so-called Mngcisane Royal Family by the
tenth to fourteenth respondents as an entity that is vested
with the
right to deal with any affairs of the fifteenth respondent be and is
hereby declared improper, irregular and is set aside;
[1.4]
that the tenth to fifteenth respondents be and are hereby ordered to
fully recognise the first applicant as the proper Royal
Family that
is vested with the right and authority to deal with issues of
identification of traditional leaders that fall under
the
jurisdiction of the fifteenth respondent;
[1.5]
that the processing and implementation of the appointment of the
tenth respondent by the eleventh, twelfth and/or fourteenth
respondents as the right inkosi and head of the fifteenth respondent
on the basis of her identification and recommendation by the
so-called Mngcisane Royal Family be and is hereby reviewed and set
aside, and the fourteenth respondent be and is ordered to reverse
such appointment;
[1.6]
that the fourteenth respondent be and is hereby ordered to facilitate
the appointment of the fifth applicant as the acting
inkosi and head
of the first respondent in terms of his identification and
recommendation by the fist applicant;
[1.7]
that any failure by the applicant to strictly comply with the
provisions of the
Promotion of Administrative Justice Act 3 of 2000
with regard to the launching of this application be and is hereby
condoned;
[1.8]
that costs of this application shall be paid by the first to ninth
respondents as well as the eleventh, twelfth and fourteenth
respondents jointly and severally, the one paying the other to be
absolved from liability and that the tenth, thirteenth and fifteenth
respondents shall pay such costs, jointly and severally with the
other respondents, only in the event of their opposition to the
application;
[1.9]
further and/or any further relief.
[2]
The eleventh to fourteenth respondents have opposed the application.
[3]
The main applicant herein is the first applicant described in
paragraph two of the founding affidavit as the Zulu Royal Family
of
Ncapai KaMadzikane Kazulu, a royal family as envisaged in the
Traditional Leadership and Governance Act 4 of 2005 (Eastern
Cape) (the Act). Its task is and has been from time to time
immemorial to deal with all aspects pertaining to Chieftainship
and
Headmanship throughout the royal house of Chief Ncapai which is based
at Lungangeni Great place in Mount Frere. The second
to
eighteenth respondents are residents of Mount Frere district.
[4]
The second applicant herein who has deposed to the applicants’
founding affidavit is the chairperson of the first applicant.
He contends to also have been duly authorised by his co-applicants to
depose to the applicants’ main affidavit on their behalf
as
well.
[5]
The third to eighteenth applicants, in terms of the founding
affidavit, are adult male residents of the various
administrative areas of the district of Mount Frere in the Eastern
Cape Province.
[6]
The first to fourth, and eighth respondents are, as they are
described in the founding affidavit, adult male persons of different
administrative areas of the district of Mount Frere in the Eastern
Cape Province.
[7]
The fifth to seventh, ninth and tenth respondents are adult female
persons of various administrative areas of the district
of
Mount Frere in the Eastern Cape Province.
[8]
The eleventh respondent is the member of the Executive Council for
Local Government and Traditional Affairs, Eastern Cape Province
who
is said to have been cited herein in his official capacity as the
political head of the Department responsible for, amongst
others, the task of processing appointments of traditional leaders
throughout the Eastern Cape Province, such as the one in issue
herein.
[9]
The twelfth to fourteenth respondents are the Superintendent-General
of the department of Local Government and Traditional Affairs,
Eastern Cape, and Premier Eastern Cape, respectively who have been
cited in their capacities as the functionaries described in
paragraphs 3.13 and 3.14 of the founding affidavit.
[10]
The fifteenth respondent is described as the Makaula Traditional
Council, a statutory body formed in terms of the law,
whose
seat and address is at Lungangeni Great Place, Lungangeni
Administrative area, Mount Frere, Eastern Cape.
[11]
The first to ninth respondents are said to have been cited herein in
their capacities as members of a purported entity called
Mngcisane
Royal Family, whose validity or legal existence is disputed by the
applicants.
[12]
The applicant herein is described in the founding affidavit as has
been in existence from time immemorial and has been the
recognised
Royal Family of Ncapai KaMadzikane Kazulu that performs the functions
envisaged in Section 18.1 of the Act. In
paragraph 6 of the
founding affidavit, line 6, the applicant refers to “
before
the advent of the Act
”
,
“
the first respondent was
known as the Zulu Royal House of Ncapai KaMadzikane Kazulu”
.
However, in paragraph 3.1 of the founding affidavit on page 18, the
first respondent is referred to as Fikile Makaula, an
adult male
person of Mgungudlovu administrative area in Mount Frere district.
This, in my view, is an error because the first
applicant is the Zulu
Royal Family of Ncapai KaMadzikane Kazulu.
[13]
According to the applicant, it is the rightful body or institution
that is clothed with authority to deal with the identification
for
appointment of all traditional leaders in the Makaula Traditional
Authority. Applicant then mentions about five chiefs
and
headmen that were appointed through the first applicant’s
structure. All those chiefs and headmen that were appointed
through the applicant were fully recognised and their appointments
confirmed by the twelfth and fourteenth respondents in terms
of the
Act.
[14]
According to the applicant, the issues between the two parties herein
surfaced after the death of Chief Mvuleni Makaula (deceased)
of
Lungangeni Adminisrative Area, who was the head of Makaula
traditional authority. He died in January of 2010. After
his death, it was customary for the Makuala Traditional Authority to
appoint the successor of the deceased chief. That process
was
necessarily delayed at the suggestion of the first respondent who was
part of the first applicant until after the funeral of
the deceased.
The deponent herein of the applicants’ founding affidavit, Mr
Lumumba Makaula who was present at the
deceased funeral announced
that first applicant had decided to delay the identification of the
deceased’s successor until
after the deceased’s funeral.
The main reason was that there had been divergent views regarding the
proper successor and
there were competing claims from the houses of
Mngcisane Royal Family. It was also decided to first appoint an
acting chief
who would hold the reigns until the successor is
identified and the date for such meeting was set as the 1
st
February 2010 where the first respondent was also present. The
fifth applicant was subsequently identified as the acting
chief. This
appointment of the fifth applicant provoked an announcement by the
second respondent, who attended as the member
of the first
applicant, that the Mngcisane Royal Family had already decided
to recommend the appointment of the tenth respondent
as the regent on
behalf of her son who was still young to be installed. It is
common cause that according to the minutes
and attendance register of
the first applicant’s meeting of the 1
st
February
2010 reflects that the first and second respondents were present as
members who were full participants in the deliberations
of the first
applicant’s meeting. Second applicant was immediately
informed that there was no such entity known as
Mngcisane Royal
Family. It is also the contention of the applicant that the
second respondent is one of the most junior members
of the Mngcisane
Royal Family and there are other senior house members of the
Mngcisane family who are part of the first applicant.
He refers
to the fifth, seventh, eighth, fifteenth, seventeenth, nineteenth and
twentieth applicants as some of those senior members.
Therefore, even if there was such a Mngcisane Royal house, it can
never lie with them to constitute such Mngcisane Royal Family
even if
it existed. A resolution was therefore subsequently made for
the selection of the fifth applicant as the acting chief
which was
implemented.
[15]
On the 16
th
February 2010, the resolution of the
identification of fifth applicant in his acting capacity as the
regent was finalised and the
first applicant totally dismissed the
existence of the so-called Mngcisane Royal Family. The written
resolution of the said
appointment of the fifth applicant as acting
chief was duly faxed to the eleventh and twelfth respondents’
Department for
confirmation. The eleventh and twelve
respondents were advised about the identification of the permanent
successor to the
late Chief Mvumeni. The contents of the
meetings aforementioned and the deliberations together with a list of
those who were
present are contained in the annexure “LM1”
appearing on page 53 of the record.
[16]
It is common cause that the eleventh and twelfth respondents did not
confirm the appointment of the fifth applicant as the
acting chief
and all attempts by the applicants to meet with or to arrange a
meeting with the eleventh and twelfth respondents
were unsuccessful.
This was due to the non-cooperation by the eleventh and twelfth
respondent’s officials. All
arranged appointments were
not honoured by the eleventh and twelfth respondents’
Department’s officials. The
department of Local
Government and Traditional Affairs wrote to the first applicant
informing them about that.
[17]
The application having been opposed by the eleventh to fourteenth
respondents the answering affidavit has been filed by only
the first
respondent but not confirmed by any of the respondents. In the
main the first respondent contends that he is an
adult Headman of
Mgungundlovu Administrative area Mount Frere district where he
resides. He is the Chairperson of the Mngcisanse
Royal Family
which is the core customary structure consisting of immediate
relatives of the ruling family of Amabhaca KaMakaula.
At the
centre of the family is the late Chief Mvumeni De Villiers Makaula,
the deceased. The aforesaid Royal Family is made
up of,
inter
alia
, the first to ninth respondents. The second, third,
fourth, eighth and himself are the uncles of Chief Makaula, the
deceased.
He also lists the other members of the Royal Family
by mentioning other eighteen (18) people of the Makaula surname.
He contends
that he has been authorised by the members of the Royal
Family to depose to the answering affidavit for and on their behalf
as
well.
[18]
The main dispute according to the first respondent relates to the
recognition (or lack therefore) of the son of Chief Makaula
as his
late father’s successor and Inkosi. As a result of his
tender age his mother, the tenth respondent, has
been
identified and recommended by the Mngcisane Royal Family and
recognised by the eleventh respondent to act on his behalf.
On
the 22
nd
January 2010 after the death of the deceased,
they met as Mngcisane Royal Family, and decided in terms of the
custom and tradition
of Amabhaca that the eldest son of Chief Makaula
would be his successor. He was in fact subsequently identified
as such person
whose name is Nkosi Gingqi. He was still young and it
was therefore necessary for his mother Thembisile Makaula to act in
his stead.
According to him such a decision was duly
communicated to the Traditional Council, Emboland Region and the
eleventh respondent.
The eleventh respondent duly recognised
the tenth respondent as the regent and published such recognition in
a government gazette.
He contends that the recognition of the
tenth respondent as a regent family are in accordance with the
provisions of the Act.
In his view, any allegations made in the
founding affidavit on behalf of the first applicant which are
inconsistent with the contents
of his affidavit are denied. He
contends that Chief Makaula (the deceased) had been the chief of
Amabhaca and head of the
Makaula Traditional Authority since 1989.
He contends further that the existence of the first applicant is
unknown and it
had played no part in the appointment of any of the
chiefs and headmen under the jurisdiction of the fifteenth
respondent.
He further contended that the applicants are a mere
collection of people who are not immediate relatives of the ruling
family.
According to him the tenth respondent is the
Chairperson of Makaula Traditional Council established in terms of
section 6 of the
Act. The fifteenth respondent accepted the
identification of the Mngcisane Royal Family. His contention is
that the
succession of traditional leaders was that the eldest son of
the ruling Chief should succeed his father. He further contends
that he was present in all the meetings after the death of the
deceased chief. On the 22
nd
January 2010 they met as
Mngcisane Royal Family and decided that the deceased would be
succeeded by his son Gingqi and that in
view of the young age of
Gingqi the tenth respondent would act in his stead.
[19]
First respondent confirms that he and others attended the meeting on
the 13
th
August 2010 on the basis that they were the only
structure that was authorised to identify a person to be recognised
as the Chief.
They left the meeting when the representative of
the first applicant insisted that identification of the regent must
be decided
by a vote. He contends that the matter could not be
decided by a vote because the first applicant has no authority to
make
a decision regarding the identification of a chief. I must
say though that it does not make sense to me to refuse to refer
a
stalemate to a vote more so that they could not resolve the issue by
any other democratic solutions. In any event, resorting
to a
vote is also democratic.
[20]
First respondent further contends that at the meetings that were held
with the officials of the Department of co-operative
Governance and
Traditional Affairs they “were required to outline their
geology” (the deponent must have meant to refer
to genealogy).
The reason thereof was that the Royal Family is made of immediate
members of the ruling family. On giving
the Department’s
officials the genealogy relating to the house of the late Chief
Mvuleni Makaula (the deceased) it became
clear that the first
applicant and its members featured nowhere. It is at that stage
that they became unhappy and left the
meeting. He contends that
the applicants have not made out a case for the relief that they
seek.
[21]
It is significant to note that none of the respondents, or any other
person for that matter, has confirmed the contents
of the first
respondent’s answering affidavit.
[22]
I intend to deal with the applicants’ replying affidavit as I
go along with this judgment.
[23]
On the date of argument of the main application
Mr P.M. Mthsaulana
SC
with him
Mr Bodlani
appeared for the applicants and
Mr
V. Notshe SC
with him
Mr P.V. Msiwa
appeared for the
respondents.
[24]
In their heads of argument respondents submit the following
contentions:
[24.1]
that in the first place the applicant’s application is
premature in that:
[24.1.1]
in terms of section 18 (4) of the Eastern Cape Traditional Leadership
and Governance Act, 4 of 2005 if there are allegations
that an
identification of a person in terms of section 18 (1) was not done in
accordance with the Act, customary law or custom,
the matter may be
referred to the Provincial House of Traditional Leaders for its
recommendation. Therefore, the applicants should
have requested the
eleventh respondent to refer the matter to the Provincial House of
Traditional Leaders for its recommendation.
[24.2]
Secondly, the affidavits filed together with reasons given by the
eleventh respondent reveal certain disputes of fact and
therefore
applicants cannot, as they do herein, seek a final interdict and her
final relief on the papers and without resort to
oral evidence.
[24.3]
In the eleventh to fourteenth respondents’ view the allegations
put up by the applicants raise a real, genuine
bona fide
dispute
of fact and are not far-fetched or clearly untenable such that the
Court would be justified in rejecting them merely on
the papers.
Therefore, Rule 6 (5)(g) of the Uniform Rules authorises this Court
to dismiss the main application if it cannot
be properly decided on
affidavit.
[25]
On the merits the respondents contended that the decision of the
eleventh respondent can only be attacked by way of review
in terms of
Rule 53. If reasons for the decision are given and no
supplementary affidavit is filed those reasons stand.
Therefore, there is no need for the decision maker to file an
affidavit. In his view, reasons for appointing the tenth
respondent
were furnished and they appear on page 213 of the record.
Lastly, the eleventh respondent contends that the application is
premature
in that the relief that applicants should have sought is to
compel the eleventh respondent to refer the matter to the house of
traditional leaders.
[26]
On the other hand as regards the merits of the application, the
applicants contend that when the Regent was appointed there
has been
no adherence to the provisions of section 34 of the Act which
provides:
“
34.
(1) The Premier may, subject to such conditions as he or she may
determine in writing, delegate any powers conferred on him or
her by this Act, except the power to make regulations, to a
Member of the Executive Council of the Province.
(2)
The delegation referred to in subsection (1) does not preclude
the Premier from exercising any such delegated
power.
(3)
The Premier may set aside, amend or withdraw, at any time,
any
decision of the delegatee made in the exercise of such
power.”
[27]
In this case we are dealing with,
inter alia
, a
situation where the issue is the appointment of a regent because the
successor to the deceased Chief is still a minor
and cannot be
appointed to succeed his late father until he is competent to rule.
Such a situation is governed by the provisions
of section 13 of the
Act which provides:
“
13
Recognition of regents
(1)
Where the successor to the position of
king, queen, principal traditional leader, senior leader, headman or
headwoman identified
in terms of section 9, 9A or 11 is still
regarded as a minor in terms of applicable customary law or customs –
(a)
the royal family concerned must, within a
reasonable time –
(i)
identify a regent to assume leadership on
behalf of the minor; and
(ii)
through the relevant customary structure,
inform the Premier of the province concerned of the particulars of
the person identified
as regent and the reasons for the
identification of that person; and
(b)
the Premier concerned must, with due regard
to applicable customary law or customs, and subject to subsections
(2) an (3), recognise
the regent identified by the royal family in
accordance with provincial legislation.
(2)
The provincial legislation referred to in
subsection (1)(b) must at least provide for –
(a)
a notice in the Provincial Gazette
recognising the person identified as regent in terms of subsection
(1);
(b)
a certificate of recognition to be issued
to the identified regent;
(c)
the recognition of a regent to be reviewed
by the Premier at least every three years; and
(d)
the relevant provincial house of
traditional leaders to be informed of the recognition of a regent.
(3)
Where there is evidence or an allegation
that the identification of a person as regent was not done in
accordance with customary
law, customs or processes, the Premier –
(a)
may refer the matter to the relevant
provincial house of traditional leaders for its recommendation;
or
(b)
may refuse to issue a certificate of
recognition; and
(c)
must refer the matter back to the royal
family for reconsideration and resolution where the certificate of
recognition has been
refused.
(4)
Where the matter has been referred
back to the royal family for reconsideration and resolution in terms
of subsection (3) has been
reconsidered and resolved, the Premier
must recognise the person identified by the royal family if the
Premier is satisfied that
the reconsideration and resolution by the
royal family have been done in accordance with customary law.”
[28]
The Act gives the royal family concerned powers to identify a regent
to assume leadership on behalf of the minor and inform
the Premier of
the province concerned of the particulars of the identified person as
well as the reasons for the identification
of such person. The
Premier concerned must, with due regard to applicable customary law
or customs, and subject to the subsection
92 and 93 of the Act
recognise the regent identified by the royal family in accordance
with provincial legislation.
[29]
The applicants have attacked the manner in which the Premier has
approached his or her role in the matter in particular
whether
or not he or she has complied with the provisions of section 34 of
the Act. The allegations by the applicants against
the eleventh
to fourteenth respondents are serious in that they call for the
particular response or responses which would adequately
address the
conduct complained of by the applicants or anyone of them against the
named respondents. Some of those allegations
are that the
relevant authorities have recognised the tenth respondent as the
regent instead of the fifth applicant who was recommended
by the
first applicant. In my view, such allegations necessitated a
response by way of an affidavit addressing the concerns
and
allegations against them. In my view, mere notice by the
eleventh respondent as the one appearing on page 207 does not
address
the applicants’ concerns and is not a response to the
allegations contended in the first applicant’s founding
affidavit.
[30]
In the first place and contrary to the provisions of section 13 (4)
of the Act, there is no allegation that the Premier (fourteenth
respondent) has delegated his powers in terms of section 34 of the
Act. If he or she did not delegate some powers, it is
not clear
which of those powers had been delegated to the eleventh respondent
(the MEC) and which of those powers did the fourteenth
respondent
retain. In my view, the MEC could only be delegated by the
Premier to exercise powers to recognise the minor as
the successor as
well as to recognise the regent. In my view, a delegation in
the circumstances envisaged in section 34 should
be in writing and
should specify the powers that the Premier is delegating to the MEC.
In the absence of such written delegation
it cannot be said that the
MEC was delegated in this particular case. In such
circumstances, I have no reason not to make
a finding that the MEC
was not delegated to recognise and appoint the regent in this
matter. The problems created by the
conduct of the eleventh and
fourteenth respondents has been compounded by their failure to file
affidavits to explain their role
in the whole scenario. It
follows that on the first respondent’s version the process as
envisaged in section 34 of
the Act has not been followed because for
reasons stated above the MEC had not been empowered in terms of the
Act when he or she
took the decision to recognise and appoint the
regent. Therefore, the decision taken by the MEC to recognise
and appoint
the regent falls to be set aside. In any event,
even if properly delegated he should never have allowed the decision
delegated
to him to be done by the Superintendent-General Mr Khanyile
an act that could not be countenanced in terms of the Act which does
not make provisions for sub-delegation.
[31]
I now proceed to deal with the issue of the first applicant and the
first respondent.
Mr Notshe
’s submission is that
in this regard there is a dispute of facts which cannot be resolved
without hearing oral evidence.
Recognising that the truth
almost always lies beyond mere linguistic determination the Courts
have said that an applicant who seeks
final relief on motion must in
the event of conflict, accept the version set up by his or her
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 (Heher
JA in
Whightman t/a JW Construction v Headfour (Pty) Ltd and
Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
[2008 (2) ALL SA 512
at
para
[12]
); see also
Plascon Evans Paints (Pty) Ltd vs
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C):
“
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of him
(
or her
).
But even that may not be sufficient if the fact averred lies purely
within the knowledge of the averring party and no basis is
laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing party must necessarily
possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead
of doing so,
rests his (
or her
)
case on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is satisfied. It also follows
that the factual averments seldom stand apart from a broader matrix
of circumstances all of which needs to be borne in mind when
arriving
at a decision...” [My emphasis]
(
Whightman
t/a JW Construction v Headfour (Pty) Ltd and Another
supra
).
[32]
In the case in issue only the first respondent Fikile Makaula has
deposed to an affidavit on behalf of the Makaula Traditional
Council,
the fifteenth respondent. In this answering affidavit the first
respondent purports to have been authorised
by the Mngcisane
Royal Family to depose to such affidavit on their behalf as well.
However, none of the members of the Mngcisane
Royal Family has filed
confirmatory affidavits confirming their alleged authorisation of the
first respondent to depose to the
answer on their behalf.
Secondly, the first to tenth and fifteenth respondents have never
filed a notice to oppose the application
which is a necessary
document to file if a person cited as the respondent intends to
oppose the application. The 16th to
29
th
respondents
were later joined as parties to the application but neither did they
file a notice to oppose nor answering affidavits
contesting the
allegations by the applicants. It follows, therefore, that the
authorisation of the first respondent by the
Mngcisane Royal Family
cannot include reference to the 16
th
to 29
th
respondents who at the time of the deposition of the first
respondent’s answering affidavit were not yet joined as parties
to the application. For that reason, they could not at that
stage have authorised the first respondent to depose to his affidavit
on their behalf. It follows, therefore, that the 16
th
to 29
th
respondents have not contested the present
application.
[33]
As for the eleventh to fourteenth respondents, they have elected at
their own peril not to file their answering affidavits
to explain
their version of events.
[34]
On receipt of the notice of application coupled with the founding
affidavit, the respondent is expected to file his or her
answering
affidavit within the time stipulated by the Rules. Rule 6
(5)(i), (ii) and (iii) provides that the respondent shall,
inter
alia
, within the time stipulated in the notice by the applicant
give applicant notice, in writing that he or she intends to oppose
the
application. He or she shall also deliver his or her
answering affidavit, if any, together with any relevant documents.
If he or she intends to raise any question of law only, he or she
shall deliver notice of intention to do so within the time stipulated
by the Rules.
[35]
It follows from the aforegoing that the first respondent has complied
with Rule 6 (5)(i)(ii) above. In my view, no person
can depose
to an affidavit on behalf of another person. This is so because
an affidavit stands in the stead of evidence which
is led
viva
voce
in action proceedings. (
Erhardt v State
President and Others
1989 (2) SA 499
(T)).
Therefore, in essence, in this case only the first respondent has
deposed to the affidavit. This Court will therefore
deal with
his evidence alone and establish whether the first respondent’s
evidence amounts to a dispute of fact when compared
to that of the
applicants. I say so, because notwithstanding that the eleventh
to fourteenth respondents have filed their
notices to oppose they
failed to file any affidavits to gainsay the contentions stated in
the founding affidavit which has been
confirmed by the third to
eighteenth applicants.
[36]
In his answering affidavit, Fikile Makaula the first respondent,
contends as follows:
“
I am the
headman of the Mngcisane Royal Family [which] is a core customary
structure consisting of immediate relatives of the ruling
family of
Amabhaca KaMakaula. At the centre of the family is the late
Chief Mvuleni De Villiers Makalua (Chief Makaula).
The
aforesaid Royal Family is made up of, among others, the first to
ninth respondents … The Mngcisane Royal Family has
been in
existence as long as the existence of the Mngcisanse House of the
Mngcisane ruling family albeit under a different name.
After
the promulgation of the Eastern Cape Traditional Leadership and
Governance Act 4 of 2005 (the Act) it was recognised by the
eleventh
to fifteenth respondents as the royal family of Chief Makaula.
Its identification and recommendations of persons
as chiefs/headmen
was accepted by the eleventh respondent who recognised them as
chiefs/headman by notices in the gazette.
I and Diko were
identified as chiefs by the Mngcisane Royal Family in terms of the
law and customary practice. We were all
recognised as such by
the eleventh respondent.”
It
is clear from the foregoing that the Mngcisane Royal Family is the
Royal Family as defined in section 1 of the Act.
[37]
To me it does not appear that there is a dispute about the heir to
the throne, and the only issues here are whether the Royal
Family’s
name that performs the functions as envisaged in section 18 (1) of
the Act is the Zulu Royal Family of Ncapai KaMadikane
KaZulu or the
Mngcisane Royal Family as well as whether the Regent was properly
nominated and appointed.
[38]
From the start, it is clear that there is only one person who is
content to support the existence of the Mngcisane Royal Family
as the
recognised Royal Family. There is no other person or persons
who have deposed to affidavits in support of the first
respondent’s
contention as against the eighteen applicants who have supported the
first applicant as the recognised Royal
Family. The first
respondent has not filed a notice to oppose the applicants’
application and for reasons which have
not been explained to this
Court.
[39]
In any event, even the first respondent’s contention is
contested by some of the respondents. The first and tenth
respondents did not file notices to oppose this application.
The very first respondent, Fikile Makaula has elected not to
support
the affidavit of the fifteenth respondent, (Makaula Traditional
Council). Pathilizwe Makaula and Leonard Fana Makaula
who are
members of the Traditional Council deny that the fifteenth respondent
has been involved in the matter of the recommendation
of the tenth
respondent as regent. This denial flies on the face of the
first respondent’s allegations in support of
the tenth
respondent. The applicants have filed their resolutions in
support of their meetings and resolutions but none of
the affidavits
have been filed by or on behalf of the fifteenth respondent.
Therefore, there is no evidence by the fifteen
respondent which has
the force to gainsay the contention by the eighteenth applicant.
In such a situation there can be no
dispute of fact because there is
no evidence from the respondents.
[40]
The eighth respondent in an affidavit written in isiXhosa has filed
an affidavit in which he distances himself from the Mngcisane
Royal
Family. He says he has never attended any meeting of the
Mngcisane Royal Family nor has he ever heard of or been invited
to
such meeting. He is, therefore, not opposing the proceedings.
Other respondents who are the second to tenth respondents
have also
not filed any confirmatory affidavits to confirm that they have
authorised the first respondent to oppose the application
on their
behalf. This also holds true with regard to Asahleli
Peter Makaula and Malinge Williamson Makaula who both
have denied
being members of the Mngcisane Royal Family as contended by Mr Fikile
Makaula.
[41]
Therefore, the first respondent’s allegation that he is
authorised to depose to the answering affidavit on behalf of
the
members of the Mngcisane Royal Family has no support from any other
person.
[42]
Where a respondent in motion proceedings chooses not to file opposing
affidavits, answering the applicant’s allegations
but to take a
legal point only, the applicant’s allegations in his founding
affidavit have to be accepted. The practice
of not filing
opposing affidavits but relying on legal points is to be
discouraged. Generally speaking, the application procedure
requires a respondent who wishes to oppose an application on the
merits to place his or her case on the merits before Court by
way of
affidavits [
Ebrahim and Another v Georgoulas and Another
1992 (2) SA 151
(B)].
[43]
By the same parity of reasoning, as is the case herein, where the
eleventh and fourteenth respondents had put forward no answer
to
allegations which, on their face, substantiated the applicants’
case but only relied on the application for a referral
of the matter
to oral evidence would be taking a risk in case the Court, on good
grounds refuses to refer the matter to oral evidence.
[
Ripoll-Dausa
v Middeton NO and Others
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C)
[2005 (2) ALL SA
83
at 151 F]. Whereas in
United Methodist Church of
South Africa v Sokufudumala
1989 (4) SA 1055
(O) at 1059 A it
was alleged that the applicant had not acted in terms of its
constitution. That allegation was not contradicted
and was
accepted. Also where the allegation by the applicant has not
been contradicted, it should be taken as being admitted
unless the
contrary can be gleaned from the context.
[44]
The fact that the second to tenth respondents have not filed notices
to oppose the application is a clear indication that they
do not
oppose the application and that their names must have been added to
that of the first respondent to give the false impression
that they
have supported the first respondent.
[45]
The following people have refuted the allegation by the first
respondent that the Mngcisane Royal Family has been in existence
for
some time. They are Malinga Makaula, Asahleli Phathilizwe a
tradition leader, Fana, Mnyazana, Avumile, Scelo Makaula
and others
have not supported the existence of the Mngcisane Royal Council.
They have deposed to affidavits which are annexed
to the replying
affidavit as annexures “LM-14 to LM-21” respectively.
[46]
It is strange that, on the face of the overwhelming evidence proving
the existence of the Zulu Royal Family of Ncapai KaMadzikane
KaZulu
which existed since 1845 the eleventh to fourteenth respondents have
decided to recommend the alleged decisions made by
the Mngcisane
Royal Family. There is overwhelming evidence which shows that
for a long time, even before the Mngcisane Royal
Family was created,
that they were aware of the applicant’s existence. Not
only that the proof of the existence of
the Zulu Royal Family of
Ncapai KaMadzikane KaZulu is supported by cogent evidence it is
opposed by allegations which have no basis
at all. For that
reason, it cannot be said that there can be a genuine dispute of fact
in the circumstances.
[47]
It also follows that the totally of the evidence also shows that on
the 13
th
August 2010 the issue between the two Royal
families had been known since July 2010. The two families have
even met on the
13
th
August 2010 with a view to make a
recommendation by way of a vote. The fifth respondent received
the majority of the votes
and the Mngcisane family refused to
recognise the decision and left in protest. The MEC who is said
to have been purportedly
delegated by the Premier was not properly
delegated. The Premier therefore did not act in accordance with
the provisions
of the Act. His decision in this regard should
be set aside because he sub delegated his powers to Mr Kanyile the
Superintendent-General
an act which is
ultra vires
in the
circumstances.
[48]
I am of the view that from the evidence before me the contention that
the first applicant, the Zulu Royal Family of Ncapai
KaMadzikane KaZulu is the only Zulu Royal Family which should deal
with the affairs of the first applicant has been down to exist
and
has been confirmed. The other so-called authority knows as
Mngcisane Royal Family cannot be and should not be recognised
by the
eleventh to fourteenth respondents as the valid Royal Family of
Makaula Traditional Authority which comprises the Royal
House of
Chief Ncapai which is based at Lungangeni Great Place, Lungangeni
Administrative Area, Mount Frere.
[49]
The overwhelming evidence which proves the existence of the first
applicant as the Makaula Traditional Authority is confirmed
and that
the Mngcisane Royal Family as the Makaula Traditional Authority is
hereby declared null and void.
[50]
My conclusion is that the Mngcisane Royal Family does not exist as
the Makaula Traditional Council. For that reason,
the meeting
that was held on the 1
st
February 2010 when the fifth
applicant was appointed as the regent was valid. It cannot, in
my view, be referred to any other
tribunal or authority because that
meeting which appointed the fifth applicant as regent was a body
recognised by the Makaula Traditional
Council operating under the
auspices and directions of the Zulu Royal Family of Ncapai KaMadizane
KaZulu. There is, in my
view no justification to have that
decision referred back to any other authority. It is hereby
confirmed.
[51]
In the circumstances, the Premier should have recognised the regent
identified by the royal family in accordance with section
13 (b) of
the Act. There was no valid justification by the Premier to
fail to recognise the regent in terms of the Act.
Neither has
the Premier or his or her delegated MEC has justified their purported
recognition of the tenth respondent elected by
the Mngcisane Royal
Family. Even if the Premier had delegated its powers to act in
terms of section 13 (1)(b) to the MEC
the decision stands to be set
aside because the MEC was not properly delegated in terms of the Act
and this is so even for other
reasons stated in paragraphs [46] nad
[47]
supra.
Even if the Premier or the MEC or one of
them, was not aware of who of the two bodies was the real royal
family, he or she
should have referred the matter to the House of
Traditional Leaders for clarity. He or she failed to do so and
for reasons
not advanced in these proceedings.
[52]
I agree that the application against the Premier and the MEC should
be upheld with costs including the costs occasioned by
the
appointment of two counsel.
[53]
For the above reasons, I make the following order:
[53.1]
The processing and implementation of the appointment of the tenth
respondent by the eleventh or twelfth and or fourteenth
respondents
as the regent Inkosi and head of the fifteenth respondent on the
basis of her identification and recommendation by
the so-called
Mngcisane Royal Family be and is hereby reviewed and set aside and
the fourteenth respondent is hereby ordered to
reverse the
appointment.
[53.2]
The fourteenth respondent be and is hereby ordered to facilitate the
appointment of the fifth applicant as the Acting
Inkosi and head of
the fifteenth respondent in terms of the identification and
recommendation by the first applicant.
[53.3]
It is declared that the recognition of the so-called Mngcisane Royal
Family by the eleventh to fourteenth respondents
is null and void and
of no force and effect.
[53.4]
It is declared that the first applicant is the only proper Royal
Family of Amabhaca.
[53.5]
That the first to ninth respondents or their cohorts are hereby
interdicted and restrained from arrogating to themselves
and their
so-called Mngcisane royal Family the right to identify any
traditional leader that falls under the auspices of the fifteenth
respondent or to perform any activity that has traditionally been
performed by the first applicant.
[53.6]
It is declared that the alleged existence of the so-called Mngcisane
Royal Family has never been part of the Makaula
Traditional Council
and is null and void and of no force and effect.
[53.7]
The first, eleventh and fourteenth respondents are hereby ordered to
pay the costs of this application jointly and
severally, the one
paying the other to be absolved.
________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
Counsel
for the applicants : Mr P.M. Mtshaulana SC with him Mr
Bodlani
Instructed
by : X.M. Petse Incorporated
MTHATHA
Counsel
for the respondents : Mr V. Notshe SC with him Mr P.V.
Msiwa
Instructed
by : State Attorneys
MTHATHA
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no: 1689/2011
Date:
12.01.2015
In
the matter between:
1.
ZULU ROYAL FAMILY OF NCAPAI
KAMADZIKANE
KAZULU
.....................................................................................
First
Applicant
2.
LUMUMBA
MAKAULA
...................................................................................
Second
Applicant
3.
MZILIKAZI ELLIOT
NCAPAI
..........................................................................
Third
Applicant
4.
MABALAI JOHAN
DABULA
...........................................................................
Fourth
Applicant
5.
ZIPHATHE
MAKAULA
.......................................................................................
Fifth
Applicant
6.
ZUKISILE
MAKAULA
.....................................................................................
Sixth Applicant
7.
ZOLILE
MAKAULA
.....................................................................................
Seventh
Applicant
8.
NKOSAYIXAKWA
MAKAULA
....................................................................
Eighth Applicant
9.
PHATHIZIZWE
MAKAULA
.........................................................................
Ninth Applicant
10.
DON DORAN
DABULA
................................................................................
Tenth Applicant
11.
SIPHO
MPONGOMA
................................................................................
Eleventh
Applicant
12.
ZABULALANA
DABULA
..........................................................................
Twelfth
Applicant
13.
FANA
MAKAULA
..................................................................................
Thirteenth
Applicant
14.
SIMPIHWE
MAKAULA
.........................................................;............
Fourteenth
Applicant
15.
MNYANEZELI
MAKAULA
...................................................................
Fifteenth
Applicant
16.
SICELO
MAKAULA
...............................................................................
Sixteenth
Applicant
17.
VUYANI
MAKAULA
..........................................................................
Seventeenth
Applicant
18.
SIZWE
MAKAULA
...............................................................................
Eighteenth
Applicant
vs
1.
FIKILE
MAKAULA
.....................................................................................
First Respondent
2.
MNCEDISI
MAKAULA
...........................................................................
Second
Respondent
3.
PHAMBILI
MAKAULA
..............................................................................
Third
Respondent
4.
MZWANDILE
MAKAULA
.......................................................................
Fourth
Respondent
5.
THULETHU
MAKAULA-GARANE
..........................................................
Fifth
Respondent
6.
THEMBISA
MAKAULA
..............................................................................
Sixth
Respondent
7.
NOMBULELO
SHUSHU
.........................................................................
Seventh
Respondent
8.
MALINGE
MAKAULA
..............................................................................
Eighth
Respondent
9.
NONCEKELELA
MAKAULA
...................................................................
Ninth
Respondent
10.
THEMBISILE NOKWEZI
MAKAULA
..................................................
Tenth
Respondent
11.
THE MEC FOR LOCAL GOVERNMEN
T
AND
TRADITIONAL AFFAIRS, EASTERN
CAPE
............................................................................................................
Eleventh
Respondent
12.
THE SUPERINTENDENT-GENERAL LOCAL
GOVERNMENT
AND TRADITIONAL AFFAIRS,
EASTERN
CAPE
...........................................................................................
Twelfth
Respondent
13.
HOUSE OF TRADITIONAL LEADERS,
EASTERN
CAPE
......................................................................................
Thirteenth
Respondent
14.
THE PREMIER, EASTERN
CAPE
..................................................
Fourteenth
Respondent
15.
MAKAULA TRADITIONAL
COUNCIL
............................................
Fifteenth
Respondent
ADDENDUM
TO MAIN JUDGMENT / ORDER
TSHIKI
J:
[1]
On the 8
th
January 2015, the main judgment in this case
was delivered.
[2]
After the judgment had been delivered, it was brought to my attention
by the attorney of the applicant that there was an error
in regard to
paragraph [53.2] on page 26 which reads as follows:
“
[53.2]
The fourteenth respondent be and is hereby ordered to facilitate the
appointment of the fifth respondent as the Acting Inkosi
and head of
the fifteenth respondent in terms of the identification and
recommendation by the first applicant.
”
[3]
Paragraph [53.2] of the order dated the 8
th
January 2015
is hereby rectified to read as follows:
“
The
fourteenth respondent be and is hereby ordered to facilitate the
appointment of the fifth applicant as the Acting Inkosi and
head of
the fifteenth respondent in terms of the identification and
recommendation by the first applicant.”
________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT