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[2015] ZAECMHC 40
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Faku v Premier of the Eastern Cape Province and Others (2765/2013) [2015] ZAECMHC 40 (12 February 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION– MTHATHA)
Case
no: 2765/2013
In
the matter between:
AYANDA
MADODEBHUNGA
FAKU
............................................................................
APPLICANT
And
THE
PREMIER OF THE EASTERN CAPE
PROVINCE
.............................................................................................................
1
ST
RESPONDENT
THE
MEC FOR LOCAL GOVERNEMENT
AND
TRADITIONAL
AFFAIRS
..........................................................................
2
ND
RESPONDENT
SUPERINTENDENT-GENEREAL
DEPARTMENT
GOVERNMENT
AND TRADITIONAL
AFFAIRS
............................................
3
RD
RESPONDENT
NJINGALWAZI
SIGCAU
......................................................................................
4
TH
RESPONDENT
NTLENZI
TRADITIONAL
COUNCIL
...............................................................
5
TH
RESPONDENT
NTANDAZO
CRHISTIAN
LWANA
....................................................................
6
TH
RESPONDENT
HER
MAJESTY, QUEEN MASOBHUZA LM
SIGCAU
...................................................................................................................
7
TH
RESPONDENT
QAUKENI
TRADITIONAL
COUNCIL
.............................................................
8TH
RESPONDENT
JUDGMENT
HINANA AJ:
Introduction
[1]
The applicant instituted these application
proceedings against the respondents, seeking orders in the following
terms:
(i) Directing the
third respondent to pay Applicant’s salary as a Traditional
leader;
(ii) Directing the
first respondent to recognise Mfundisweni as a Traditional community
as requested by the late King Justice Mpondombini
Sigcau;
(iii) Declaring that
Mfundisweni, Tonti, Lundzwane and Maramzeni as “Ithanga”
falling under the territorial jurisdiction
of Qaukeni Traditional
Council;
(iv) Declaring that
the Royal Family referred in the Act for purposes of section 11 with
regard to the areas mentioned
(in)
paragraph 3 above and
Ntlenzi, is Qaukeni Royal Family;
(v)
Directing the respondents to pay the cost of this application.
[1.1] In support of
his claim, the applicant alleges that:
(a)
He is the traditional leader as defined in
the Traditional Leadership and Governance Framework Act, 41 of 2003
(The National Act).
The founding affidavit reflects that the purpose
of this application is to:
(i)
“
direct the
Superintendent-General to pay my salary as (a) traditional leader;
(ii)
declaring that the installation of
the sixth respondent by the 4
th
respondent as headman of Mfundisweni null and void and of no force
and effect;
(iii)
directing the Premier not to issue a
certificate of recognition to the fourth respondent in violation of
section 12 read with section
11 of the Act;
(iv)
to direct the Premier to consider to
the late King’s request to recognise Mfundisweni as a
Traditional Council;
(v)
to declare that Mfundisweni and
Tonti are “Amathanga Kubantwana Bakomkhulu and that they
together with Lundzwane, Mabovu and
Maramzeni fall under the direct
jurisdiction of the Qaukeni Regional Council;
(vi)
to declare that the Royal Family
referred to in the Act for purposes of section 11 with regard to
these areas and with regard to
Ntlenzi is Qaukeni Royal Family”
[1.2]
He was appointed a traditional leader of Mfundisweni in terms of the
then Transkei Authorities Act, 1965
[1]
by King Justice Mpondombini Sigcau, and his appointment was
recognised by the Honourable Member of the Executive Council for
Local
Government and Traditional Affairs(the MEC). Annexure
AMF1
is a letter from the MEC dated 16 July 2013 and the following is
reflected amongst others:
“
1.
Ayanda Madodebhunga Faku was appointed by Ntlenzi Tribal Authority as
headman of Mnfundisweni Administrative area in the district
of
Flagstaff in terms of the now repealed Transkei Authorities Act, 1965
(Act 4 of 1965).
2. The
appointment of Ayanda Madodebhunga Faku was confirmed by the
Honourable MEC in terms section 41(4) of the repealed Transkei
Authority Act, 1965 (Act 104 of 1965) with effect from 01 March 2013.
3. Gwebizilwane
Sigcau was the chief of the Pondo tribe resident within the area of
jurisdiction of Flagstaff and as such endorsed
the appointment Ayanda
Madodebhunga Faku as headman of Mfundisweni Administrative Area.
4. In terms of
the new Act(Traditional Leadership and Governance Act, 2005), it is
responsibility of the royal family to identify
a person to be
recognised as Inkosi or inkosana, and the royal family is usually
chaired by the Inkosi (Chief) who is the head
of that particular
tribe.
5. In the light
of the above exposition, the department would not have known that the
royal family which identified Ntandazo Christian
Lwana and now
removing Ayanda Madodebhunga Faku is an illegitimate royal family.
6. In the same
breath, the department would not have known that Sigcau Royal Family
which identified Njingalwazi Sigcau as an Inkosi
of Ntlenzi
Traditional Council was also an illegitimate royal family and had no
right to identify the son of the late Gwebizilwane
Sigcau.
7. Njingalwazi
Sigcau had already been recognised as Inkosi of Ntlenzi Traditional
Council by the Honourable MEC with effect from
23 April 2013 as
identified by the Sigcau royal family.
8.
The department will soon be arranging a meeting with Her Majesty
Queen Mesobhuza Sigcau to address her concerns”.
[2]
It is common cause that the meeting as
promised to be arranged did not take place.
[3]
After his appointment, there was no process
that was set in place to remove him. Instead, applicant’s
salary was stopped and
Ntandazo Christian Lwana (the sixth respondent
) was recognised as a headman. I interpolate here and mention that
there is no decision
pending in terms of section 26 of the National
Act.
[4]
On
or about 18 October 2012, the MEC wrote a letter
[2]
to the Applicant and the following is reflected therein:
“
Removal
from the position of Acting Inkosanana Mfundisweni Administrative
Area: Flagstaff
1.
Numerous reports from Sigcau Royal
Family, community of Mfundisweni and Ntlenzi Traditional Council have
since December 2011 been
received by this office.
2.
The complaints are as follows:
Since
01 August 2010 to date, you failed to perform your official duties
as Inkosana of Mfundisweni Administrative Area;
You
appointed yourself as Head and Senior Traditional Leader of the so
called Mfundisweni Traditional Council without the knowledge
of the
royal family and Ntlenzi Traditional Council.
You
further appointed Mr Ntandazo Christian Lwana as Inkosana of
Mfundisweni Administrative Area in replacement of yourself.
You
have illegally appointed headman in the area of Mfundisweni, thereby
dividing the community, an act which may cause unnecessary
blood
shed amongst the community of Mfundisweni; and
You
misappropriated an amount of ±R169 000.00 which was
meant for the community project development and you were found
guilty by the Mthatha High Court.
3.
As a result of the serious
allegations against you, the decision to remove you was taken in the
Sigcau Royal Family meetings on
20 November 2011 and 07 March 2012.
4.
You are therefore called upon to
make representations in writing as to why the decision to remove you
from the position of Inkosana
of Mfundisweni Administrative Area
should not be given effect and made final in terms of section
20(3)(e) of the Traditional Leadership
and Governance Act, 2005 (Act
4 of 2005).
5.
You are given fourteen days within
which to make representations, starting from the date of receipt of
this correspondence and failing
which the department will have no
option but to implement the resolution of the Sigcau Royal Family”.
[5]
Annexure
AMF6
drew a response from applicants attorneys
[3]
of which the following is reflected:
“
Dear
Sir
We act for Mr
Ayanda Madodebhunga Faku. Your letter dated October 2014 has been
handed to us for attention and reply.
We
propose to deal with your letter paragraph by paragraph and conclude
by setting out certain submissions.
1.
AD PARAGRAPH 1
1.1
The Chairperson of the Sigcau Royal
Family is u-Kumkani Mpondombini Sigcau. Our client Mr. Ayanda Faku is
with him in Sandton, Johannesburg
at the present moment. They are
attending a meeting. U-Kumkani denies having communicated any
complaints to the Department about
our client.
1.2
We annex hereto, a memorandum
written by the King to the Premier. The memorandum is dated 7 July
2010. In that memorandum the King
informs the Premier that he, as
King and representing the Royal Family had appointed our client to
act as a Traditional Leader
and further requested that a position of
Senior Traditional Leader to be created for the localities mentioned
in the letter. The
King is still awaiting a reply from the Premier on
both requests.
1.3
We further annex hereto a letter
under the King’s hand addressed to the Senior Traditional
Leader of Nhlenzi Traditional Council
requesting the letter (after
setting the history) to release the localities mentioned in the
letter for transfer to the Qaukeni
Regional Council.
2.
AD PARAGRAPH 2
2.1
There are accusations that our
client did not perform his official duties. These allegations are
bald and unsubstantiated. They
are denied.
2.2
There is also an accusation that our
client appointed himself. We have already referred to two documents
from the King in which
the King appointed out client to act as Senior
Traditional Leader for the localities and asked the Premier to
confirm such an appointment.
He further asked the Premier to create a
position of Senior Traditional Leadership. The other document
referred to was directed
at the then head of Nhlenzi Traditional
Council to release those localities so that they could be separate
and fall under Qaukeni.
2.3
We further annex minutes of a
meeting held on 4 October 2010, in which the decision of the Royal
Council or Royal Family was communicated
to the Mfundisweni Tribal
Authority by delegates sent to that meeting by his Royal Highness.
The minutes of the meeting speak for
themselves.
2.4
We further annex to this letter an
affidavit deposed to by our client in an application in which he
sought to interdict the holding
of meetings in his area. One of the
problems that the application sought to address was the holding of
meetings, one of which was
the meeting held to appoint Christian
Lwana as the Headman. This appointment had been done without our
client’s knowledge
and attention and the interdict was sought
to avoid the further holding of meetings and further appointment of
Headman without
his knowledge and without the knowledge of the Royal
Family.
2.5
There is also an allegation of
misappropriation of funds. Our client has no knowledge of these
accusations. He states that he has
not been charged let alone found
guilty for any misappropriation of funds.
3. Our client
thanks the MEC for granting him an opportunity to make submissions.
In these submissions, it is clear that the complaints
received are
not from the Royal Family. In terms of section 12(2), only the Royal
Family decides to remove a Traditional Leader.
4.
May we take this opportunity
Honourable MEC to request you to assist our client with a reply to
the King’s letter of 7 July
2010. This request is made in terms
of section 11(1)(b) read with section 2(2) of the Act”.
[6]
On 13 August 2013, the MEC wrote annexure
AFM9
to
the applicant advising him of the decision to remove him from office
as the Headman of Mfundisweni Administrative Area,
Flagstaff
due to allegations of misconduct
[4]
.
[7]
Annexure
AMF9
drew
a response as reflected in Annexure
AMF10
[5]
wherein the applicant contends that the only Royal Family that can
remove him as Inkosana is the Royal Family of the late King
Mpondombini Sigcawu and that the so called Ntlenzi Royal Family is an
illegitimate Royal Family and Ntlenzi belong to Qaukeni and
Mfundisweni as “
Ithanga
lase Qaukeni
”.
He contends that at no stage did he break the law, and that sixth
respondent is not from the Royal Family.
[8] It must be noted
that the MEC received a letter from Qaukeni Great Place on 14 June
2013 wherein the following is reflected
therein.
“
It
is not acceptable by the ruling Qaukeni Royal Family to hear that the
above mentioned traditional leader has been removed from
his position
as Inkosana and also an acting senior traditional leader of
Mfundisweni traditional council by an unknown and never
heard of so
called Ntlenzi Royal Family
The only
legitimate Royal family that has power to remove Nkosana A.M. Faku is
the ruling royal family of his majesty the recently
deceased (sic)
Justice Mpondombini the only heir of Botha Manzolwandle Sigcau.
After Botha
Manzolwandle (sic) taken “NGOKWESIKO” from Ntlenzi to
Qaukeni he chose his younger brother by the name of
Mpenkulu Sigcau
who was also to take over as a Head of Ntlenzi.
Unfortunately
Mpenkulu died and his younger brother Vukayibambe was requested now
by King Botha Sigcau to take over as new Head
of Traditional Council
as well as caretaker of all local Royal (sic) family, the homestead
of Maphakathi, Botha’s mother.
By virtue of
birth Botha is the
“Heir
” and only “
HEIR”
of Maphakathi’s house. The so called Royal family that is said
to being (sic) removing Nkosana Faku from His Legal Traditional
Positions in the absence of King Mpondombini’s Legal ruling
house is not permissible (sic) is not only illegitimate but also
completely illegal (usurpers).
There
is no Royal family under jurisdiction of Qaukeni that has a legal
right over Traditional leadership above and beyond the house
of
recently deceased King Mpondombini whose house is where all files of
ubuMpondo are kept. There is no (sic) different between
those
mentioned above…”
[9]
Save for seventh and eight respondents, all other respondents opposed
the application and premised their argument on the basis
that the
applicant was, in law, not a traditional leader, as he was appointed
by the King.
[10]
Further, so the argument goes, the applicant is not entitled to a
salary as a headman. According to the respondents, the King
could not
initiate proceedings for the recognition of the applicant as
Inkosana, instead, the King must be consulted. The court
is not bound
by the errors of the department, and the appointment of the applicant
was in terms of the Transkei Authorities Act,
and the removal of the
applicant was in terms of section 20 of the Eastern Cape Traditional
Leadership and Governance Act.
[6]
[11]
The applicant has been removed and the decision to remove the
applicant has not been challenged. As such, the decision in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
[7]
applies
against the applicant. The respondent further argued that the
applicant must “
set
a foundation upon which he seeks his salary
”.
[12]
The answering affidavit reflects that the appointment of the
applicant was never an issue. Julius Sidumo Meteta
[8]
(Meteta) who is employed by the Department of Local Government and
Traditional Affairs in the Province of the Eastern Cape in his
capacity as Acting Deputy Director-General responsible for
Traditional Affairs deposed to the answering affidavit on behalf of
all the respondents, save for the seventh and eighth respondents and,
alleged the following
[9]
:
“
8.1
The applicant has since been paid his salary
for the period from October 2013 to January 2014.
8.2
To continue to pay the applicant when he has been legally removed as
a headman will be against legislation governing public
finance and
remuneration of traditional leaders…
10.6.2
In recent times (2003), during the reign of Chief Gwebizilwane Sigcau
of Ntlenzi Traditional Council (Hewu Great Place),
after the
retirement of headman Vivian Ndamase, the chief came to the Applicant
and asked the community to elect him as the new
headman of
Mfundisweni and, amidst resistance from the community, the applicant
was appointed as the headman
[10]
10.11.13
applicant’s appointment in March 2003, was preceded by a lot of
contestation by the community of Mfundisweni such
that some men’s
livestock were confiscated as a fine for defying an instruction of
the chief as Chief Gwebizilwane Sigcau
of Ntlenzi Traditional Council
was the one who was (sic) first requested the community to choose the
applicant, and when they refused,
he imposed him on them as their
headman.
[11]
10.11.14
the community of Mfundisweni only accepted the applicant in obedience
of Chief Gwebizilwane’s instructions, and this
signalled the
beginning of the impasse the area is currently facing, and the
dispute the Honourable Court has now been asked to
adjudicate
upon.
[12]
12.
The applicant was the headman of Mfundisweni Administrative Area,
Flagstaff from year 2003 until year 2008 when he disappeared
only to
briefly reappear in 2009 and disappeared again in October 2010, and
attempts to remove (sic) him started which finally
culminated to his
removal in January 2014”.
[13]
[13]
The Transkei Authorities Act was repealed by the
Traditional
Leadership and Governance Framework Act which
came into operation on
24 September 2014. The Eastern Cape Traditional Leadership and
Governance Act 4 of 2005 came into effect
on 1 April 2006. Recently,
the Traditional Leadership and Governance Framework Amendment Act,
2009 (Act 23 of 2009) came into effect
on 01 February 2014 (the
Amendment Act).
[14]
The respondents argued that the applicant was appointed and
recognised as a traditional leader on March 2013.
[15]
Section 12 of the Traditional Leadership and Governance Act
[14]
(the National Act) provides for the removal of Inkosi or Inkosana and
it reads as
follows:
“
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 the 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.”
[16]The removal of
the Senior Traditional Leader or Headman or Headwoman is regulated by
subsection 2 and 3(of the Act) which provides
the following:
“
(2)
Whenever any of the grounds referred to in subsection(1) (a) (b) and
(d) come to the attention of the royal family and the royal
family
decides to remove a senior traditional leader, headman or headwoman,
the royal family must, within a reasonable time and
through the
relevant customary structure –
(a)
Inform the Premier of the Province
concerned of the particulars of the senior traditional leader,
headman or headwoman to be removed
from office; and
(b)
Furnish reasons for such removal.
(3) Where it has
been decided to remove a senior traditional leader, headman or
headwoman in terms of subsection (2), the Premier
of the province
concerned must, in terms of applicable provincial legislation –
(a) Withdraw the
certificate of recognition with effect from the date of removal;
(b) publish a
notice with particulars of the removed senior traditional leader,
headman or headwoman;
(c)
inform the Royal Family concerned, the removed senior traditional
leader, headman or headwoman and the provincial house of traditional
leaders concerned, of such removal.
[15]
[17]
The provisions of the Eastern Cape Traditional Leadership and
Governance are similar to those of the National Act in so far
as the
removal of a traditional leader, headman or headwoman are concerned.
[18] It is common
cause that:
(a)
The Premier did not withdraw the
applicant’s certificate of recognition;
(b)
did not publish the removal of the
applicant as Inkosana in the provincial gazette;
(c)
did not inform the applicant of his
removal, neither the Royal Family nor the Provincial House of
Traditional Leaders.
[19]
The respondents did not argue that the MEC was delegated in terms of
section 34 of the Eastern Cape Act. Neither did the issue
of the
MEC’s delegated powers were alleged in the answering affidavit.
[20]
The Superintendant-General (third respondent) wrote a letter to the
applicant’s attorneys (Webber Wentzel) on 13 December
2012
[16]
and it reflects the following amongst others:
“
10
The Defendant, will unfortunately be compelled to terminate his
services if he does not attend the meetings of Ntlenzi Traditional
Council and holding one meeting per month at the localities that fall
under his jurisdiction in terms of section 11(3) and (5)
of the
Traditional Leadership and Governance Act, 2005 (Act no 4 of 2005).
[21]
A Rule 35(12) notice was issued by the applicant and served on the
respondent’s attorneys on 22 April 2014
[17]
.
In the notice, the applicant required the 1
st
-6
th
respondents to produce for inspection the following:
1
The delegation of powers Mateta
claimed to have by virtue of his position as Acting Deputy
Director-General.
2
The documents removing the applicant
as headman in terms of section 2 of the Eastern Cape Act and
including
2.1 The Premier’s
decision informing the applicant of her decision and calling upon the
applicant to make representations
as to why the decision to remove
the applicant should not be given effect to.
2.2 The Premiers’
withdrawal of the certificate of recognition with effect from the
date of removal.
2.3 The
Premier’s notification to the royal family concerned the
applicant and the Provincial House of Traditional Leaders
concerned,
of such removal, and
2.4 The notice
with particulars of the removal of the applicant in the Gazette.
3
The documents recognising the sixth respondent, including
3.1
The notice in the Gazette; and
3.2
The certificate of recognition
[22]
It is common cause that the respondents did not provide the applicant
with the documents referred to in the Rule 35(12) notice.
It could
have been a simplest thing to do for the respondents to furnish the
applicant with such documents or would have stated
that they are not
in possession of such documents.
[23]
It has been argued by Mr
Mtshaulana
for
the applicant that the third respondent could not have been delegated
by the Premier, and was not authorised to terminate the
services of
the applicant.
[24.1]
The respondents have alleged that the applicant was removed as
headman in terms of section 20 of the Eastern Cape Act.
[18]
and;
[24.2]
He has been recognised but not installed by any of the respondents.
[25] In my view,
installation of the applicant is insignificant. The applicant
may not be installed as this entails his introduction
to the
community but recognised by the premier as in this case.
[26]
Brand JA in
Minister
of Environment Affairs and Tourism and Others v Pepper Bay Fishing
(Pty) Ltd, Minister of Environmental Affairs v Smith
[19]
had this to say about delegation of power:
“
As
a general principle an administrative authority has no inherent power
to condone failure to comply with a peremptory requirement.
It
only has such power if it has been afforded the discretion to do so”
[27]
Sir
William
Wade and Christopher Forsyth, Administrative Law
[20]
say:-
“
There
is no general principle that administrative functions are delegable.
The principle is rather that, where any sort of
decision has to be
made, it must be made by the authority designated by Parliament and
by no one.”
[28]
Lawrence
Baxter Administrative Law
[21]
states:
“
In
modern democracies original power is derived from the political
authority of elected legislatures. Because of the practical
requirements of government it is recognized that such bodies may
delegate their powers. In South Africa, Parliament is
recognized
to have unlimited powers of delegation…..But all
other administrative authorities are treated as
delegees
power having been
delegated to them by the original authority
”
[29]
In
Attorney
General, OFS v Cyril Anderson Investments (Pty) Ltd
[22]
Botha JA stated :
“
the
maxim
delegatus delegere non
protest is
based upon the
assumption that, where the legislature delegated powers and functions
to a subordinate authority, it intended that
authority itself to
exercise those powers and perform those functions, and
not to delegate them to someone else,
and that the power delegated
does not therefore include the power to delegate….”
[30]
A valid exercise of administrative powers requires both a lawful
authorisation for the act concerned and the exercise of that
power by
the proper or lawful authority
[23]
and except in the case of an exercise of power under the prerogative,
a public authority has no power other than those which have
been
conferred upon it by legislation.
[24]
[31]
In this case, the third respondent failed to provide evidence which
authorised him to act in the manner it did, and there is
no evidence
that suggest that the third respondent acted under express or implied
authority or both. I therefore find that the
third respondent
exercised powers which otherwise were not vested in him.
[32]
Mr
Bodlani,
counsel
for the respondents argued that the applicant was wrongly appointed
and recognised because he was not a headman lawfully
appointed. He
argued that the stopping of the applicant’s salary was valid
because that decision has not been challenged.
Arguing further, he
relied on the case of
Oudekraal
[25]
referred
to above and said
“
the
decision to stop the applicant’s salary remains valid until set
aside”.
[33]
I disagree with his submission and understanding of the
Oudekraal
decision. In my view and applying
Oudekraal
’
s
decision in this case, the appointment of the applicant as a headman
and his subsequent recognition is valid until set aside by
the court.
An administrative decision was taken to appoint and recognise the
applicant.
[34
There is no evidence that the applicant’s recognition
certificate was withdrawn by the Premier
[26]
[35]
Mr
Bodlani
argued
further that the recognition of the applicant was as a result of an
error within the department of the first and second respondent.
However, the applicant was recognised and earned his salary.
[36]
Once the applicant was appointed and recognised as such and his
appointment was confirmed, certificate issued and not withdrawn,
the
department of the second respondent became
functus
officio
[27]
.
Even if the Minister’s decision (the recognition of the
applicant) was based on an error of fact or law, he is still
nevertheless
functus
officio.
Henning
J in
Thompson
Trading Maharaj and Sons v Chief Constable ,Durban
[28]
had this to say:
“
In
my view where an official in the exercise of a statutory power, makes
a decision at which he would not have arrived, but for
an oversight,
he has no power to reverse it, unless he is authorised, expressly or
by necessary implications, by the legislation
from which he derives
his authority
.”
[37]
It must be noted that during argument, Mr Mtshaulana did not pursue
some of the relief’s sought in the notice of motion
and he
premised his argument primarily on the termination of applicant’s
salary.
[38]
In my view the decision of the third respondent is irrational and
ultra vires.
The third respondent including first and second respondent could have
handled the applicant’s removal differently.
[39]
Accordingly, I find that the applicant has made a case against the
third respondents’ termination of his salary.
[40]
Mr
Bodlani
did
not argue against the order sought by Mr
Mtshaulana
for
an order directing the Premier to consider the request made by the
King in terms of AMF8.
[29]
Similarly, he did not argue against the setting aside of the
appointment of Ntandazo Christian Lwana (the 6
th
respondent)
Costs
[41]
This matter appeared in court on 12 December 2013 and costs were
reserved. During argument, conflicting submissions were made
in this
court as to why those costs were reserved and as such, this court is
unable to give its decision regarding those costs.
Submissions made
could not assist this court. As a result, I make no finding with
regard to those costs. However, parties agreed
that costs should
follow the cause.
[42]In the result
the following order is made:
1.
The decision of the 3
rd
respondent not to pay applicant’s
salary as a headman is declared invalid, wrongful and is set aside.
2.
That the third respondent is directed to pay applicant’s salary
as a headman of Mfundisweni Administrative Area with immediate
effect.
3.1That
the Premier of the Eastern Cape Province is directed to consider and
decide on the request made by the Ikumkani which request
is contained
in a letter dated 15 February 2014 within 12(twelve) months from the
date of this order,
3.2
and to submit a report to this court of what he has done within 30
days after the expiration of the 12 months referred to in
paragraph
2.1 above
4.
That the appointment of Ntandazo Christian Lwana (sixth respondent)
as a headman of Mfundisweni is declared invalid and is set
aside.
5.
That the copy of this judgment should be served on the office of the
Premier and the State Attorney, Mthatha
6.
That the 1
st
– 6
th
respondents are
directed to pay costs of this application, jointly and severally, the
one paying the other to be absolved.
___________________________
M.N HINANA
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Applicants : Advocate P. Mtshaulana SC
Attorneys
for the Applicant : Mgxaji and Co Inc
3
Glencombe Flats
43
Leeds Road
Mthatha
Tel:
047 532 2848
Ref:
SLM/nk/FAKU/0001
Counsel
for the Respondent : Advocate M. Bodlani
Attorneys
for the Respondent : Nginda Attorneys
C/o
Nogaga
Attornyes
No
45 Leeds Road
Mthatha
Tel:
047 591 4741
Date
Heard : 27 October 2014
Date
Delivered : 12 February 2015
[1]
Act
4 of 1965
[2]
Annexure
AMP6 page 29
[3]
Annexure
AMF7 page 33
[4]
Page
42
[5]
Letter
from iKomkhulu lase Mfundisweni signed by the applicant on 29 August
2013
[6]
Act
4 of 2005
[7]
2004
(6) SA 222 (SCA)
[8]
Page
68
[9]
Page
71
[10]
Page
75 par 10.6.2
[11]
Page
78 par 10.11.13
[12]
Par
10.11.14
[13]
Page
82 par 12
[14]
Act
4 of 2005 which came into effect in April 2006
[15]
Section
12
[16]
Annexure
JSM3 PAGE 102
[17]
Page
106-108
[18]
Page
85 par 19.1
[19]
2004(1)SA
308 (SCA) par 31
[20]
(2004)
p 317
[21]
(1984)
p 434
[22]
1965
(4) SA 628(A)
at 639 C-A
[23]
page
384
[24]
At
page 386
[25]
See
footnote 7 above
[26]
Footnote
19 at pages 379
[27]
Baxter,
Administrative Law p372 and cases referred therein.
[28]
1965(2)
SA 296 (D)
[29]
Page
40-41