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[2015] ZAECMHC 47
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Saliwa v MEC For Local Government & Traditional Affairs, Eastern Cape and Others (2244/2010) [2015] ZAECMHC 47 (2 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION – MTHATHA)
CASE
NO: 2244/2010
Delivered
on: 02/04/2015
In
the matter between:
LUNGISILE
SALIWA
..............................................................................................................
Applicant
and
MEC
FOR LOCAL GOVERNMENT & TRADITIONAL
AFFAIRS,
EASTERN
CAPE
..........................................................................................
1
st
Respondent
INKOSI
ZWELIDUMILE
NDARALA
........................................................................
2
nd
Respondent
NDARALA
TRADITIONAL
COUNCIL
......................................................................
3
rd
Respondent
JUDGMENT
NHLANGULELA
ADJP:
[1]
In these application proceedings the applicant seeks an order
directing the first respondent to recognise him as the Headman
over
the people of Amanywabe who are resident in Keilands Administrative
Area No. 41, Cofimvaba. It is common cause that
the recognition
sought in the proceedings that is provided for in s18 of the
Traditional Leadership and Governance Act, 2005 (Eastern
Cape) (Act
No. 4 of 2005).
[2]
The applicant does not seek any substantive relief against the second
and third respondents, they having been cited in the papers
by reason
that they might have an interest in the relief sought. In point
of fact the second respondent is the Chief and
the head of Ndavula
Traditional Council through which the traditional affairs of the
Amanywabe people are administered.
[3]
The grounds upon which the applicant seeks recognition as the duly
identified headman by Amanywabe Royal Family through this
court is
because the first respondent ignored the applicant’s lawful
request from until in October 2011 when the applicant
resorted to
bring this application.
[4]
It appears from the evidence that the social status of the applicant
was considered prior to him being identified as the headman.
He
is proved to be the descendant of the Saliwa family tree and
relations from which his predecessors were appointed headman going
back to many years before one Richard Saliwa died in 1984 whilst on
the seat as the headman. Richard was immediately succeeded
by
Ntanase Dlubom who was later on followed by Zihlalele Saliwa in
1991. Zihlalele reigned as the headman until year 1995
when he
was brutally murdered by some unknown persons. For some reasons
not apparent from the record, the successor to Zihlalele
was never
appointed with the result that the post of headmanship remained
vacant for approximately 14 years. To break the
void and fill
the post the Royal Family directed to identify the applicant as the
next appropriate incumbent for appointment as
the headmen.
[5]
Mr Mongezi Cyprian Giyose, the manager in the office of the first
respondent and who deposed in the answering affidavit on behalf
of
the first respondent does not contest the facts stated in the
affidavits of the applicant and his witnesses that the applicant
is
the suitable person for the appointment. The respondents did not file
affidavits, yet in terms of the notice to oppose filed
by the State
Attorney they oppose the relief sought by the applicant. In the
event it may safely be assumed in favour of
the applicant that his
case is admitted by the co-respondents. The opposition against
the relief sought is premised on the
assertion that Kielands
Administrative Area No. 41 (Keilands) ceased to exist and, for that
reason, ordering the first respondent
to recognise the applicant as
the headman for an administrative area that does not exist is not
feasible. Mr Giyose goes
further to state that the applicant
belongs to Amanywabe tribe which had been settled in Keilands.
Amanywabe tribe
was caused to move from Keilands and settled at
Boomplaas Locality, which is one of three localities of Zigudu
Administrative Area
No. 40 (Zigudu). Amanywabe people had to
co-exist with Amandungwana tribe of Sentile Locality, and subjected
to the rule
of Xhanti Sentile in such a way that even Richard Saliwa
had to agree with Sentile that he, Richard, would not have a
successor
after his death. In essence the first respondent contends
that Amanywabe Royal Family cannot decide the fate of headmanship of
Zigudu without the involvement of Amandungwana Royal Family. Mr
Giyose states further that the complaint that Amanywabe tribe
wished
to be freed from Sentile rule was received by Chief Ngangomhlaba
Matanzima, Xhanti Sentile and Paramount Chief Zwelenkosi
Matanzima at
meetings that were held in 2005, 2006 and 2009. In all those
meetings Amanywabe people were advised that they
should seek
allocation of residential and arable land from agricultural officers
that is separate from Sentile Locality so that
a headman may be
appointed.
[6]
The applicant contends that Keilands does exist, Amanywabe people
were re-settled in Boomplaas which is within Keilands, and
that
Zigudu where Sentile rules as the headman is a completely separate
land from Keilands. This being the real disputed
issue, on 16
September 2011 the parties sought and they were granted an order
referring the dispute to hearing of oral evidence
as envisaged in
Rule 6 (5) (g) of the Rules of this Court. Pursuant thereto a
trial court was convened at various times for
oral evidence of
witnesses and documents to be received. The issue for decision
was framed in the following terms:
“
Whether
Keilands Administrative Area No. 41 in the district of Cofimvaba
exists, and if it does exist whether the place called Boomplaas
Location is in Keilands Administrative Area No. 41 or not.”
[7]
Although the trial process was a protracted business spanning three
years which were punctuated by long adjournments, the Court
finally
obtained the necessary evidence. I re-count that evidence in its
truncated form in the following manner. Two expert witnesses
were
subpoenaed to testify. The first was Mr Colin Davies, and the
second was Mr Skobi Cossie. Both witnesses are qualified
land
surveyors who are possessed of appropriate skills and experience in
land surveying and are involved in private practice respectively.
Mr
Davies testified in support of the applicant’s case. He
told the Court that during 2011 the land surveyor by the
name of Mr
J.A. Nelson had surveyed the land in Cofimvaba, posted his
survey on written plans and submitted them to the office
of the
Surveyor General in Cape Town for registration according to law.
It would appear that the plans were drawn in accordance
with the
Government Gazette No. G9262 dated 15 February 2010 and duly
published as a public official record. In my view the plans
of Mr
Nelson are
prima facie
valid and correct records of survey information that was supplied by
him.
[8]
Mr Davies testified that, based on the official record, Keilands and
Zigudu Administrative Area No. 40 are two separate areas
which are
referred to as Farm 116 and Farm 115 respectively. He also
confirmed that Boomplaas Locality is a place which is
situated within
Farm 116. Mr Davies pointed the boundary line appearing on the
map, the line separating the two farms, and
stated that the boundary
line was justified by the information as extracted from the
Government Gazette.
[9]
When Mr Cossie testified in support of the respondent’s case.
He conceded that Farms 116 and Farm 115 are two separate
pieces of
land. That is, Keilands does exist as a separate piece of land
in Cofimvaba. However, he disagreed with the
information
contained in the official records that Boomplaas Locality is situated
within Keilands. In his opinion, based
on physical survey he
performed and the reading of Government Gazette No. G9262 and the
Proclamation in terms of which the government
had established the two
farms, Mr Nelson did not locate the boundary line that divides
the farms correctly with the result
that the official plans situate
Boomplaas Locality in Keilands instead of Zigudu. According to Mr
Cossie, Mr Nelson’s survey
plans were wrong because he failed
to identify the curvilinear boundary as described by existing beacons
situated at Nquna Stream
and Wagon Road.
[10]
The fact that the survey plans drawn by Mr Cossie are not official
records is a significant one. I will revert to this
point later
on.
[11]
The submissions made on behalf of the parties during arguments mirror
the versions as presented through evidence that I must
now evaluate.
[12]
The common cause facts outlined earlier on with regard to the
suitability of the applicant for appointment as the headman is
the
starting point. The next point to deal with is the meaning of oral
evidence that was adduced.
[13]
The upshot of the oral evidence and the plans/maps referred to by the
witnesses is that Keilands does exist. It is now described
as Farm
116. I accept the credible evidence emanating from the official
record that Boomplaas Locality is situated within Keilands.
To
that extent the version of the applicant is true. I reject the
evidence adduced on behalf of the first respondent in so far
as it is
at variance with the version of the applicant. Consequently,
there is no need for the people of Amanywabe tribe
to be provided
with another land because they are still in occupation of Boomplaas.
[14]
The finding that Keilands does exist is re-inforced by the order
issued by this Court, differently constituted, on 03 December
2012
under Case No. 1707/92. The order in question is annexed to the
applicant’s replying affidavit as annexure “LJS
16”.
The parties involved in that matter were Zihlalele Saliwa, the
headman, as the applicant. The respondents
were Zwelidumile
Ndarala, (the second respondent in this case), Keke Sentile, The
Office of the Military Council and Ndarala Traditional
Council.
That is a final order interdicting the respondents from,
inter
alia,
interfering with the authority of
Zihlalele Saliwa in Keilands. Therefore, there is no reason to
doubt the fact that Keilands
does exists and that Mr Giyose and the
second respondent misled the Court in saying that no person took over
the reigns of headmanship
from Richard Saliwa in 1978.
[15]
In my finding, the applicant has made out a case for the relief
sought with costs.
[16]
In the result the following order shall issue:
1.
That the first respondent be and is
hereby directed to consider the applicant’s request for
recognition as Inkosana of Keilands
Admininstrative Area No. 41 in
the district of Cofimvaba.
2.
That the first respondent pays the
costs of this application.
__________________
__________________
Z. M. NHLANGULELA
ACTING
DEPUTY JUDGE PRESIDENT
Attorney
for the applicant : Mr V.M. Sapulana
c/o
D Z Dukada & Co Inc
MTHATHA.
Counsel for the
respondent : Adv. K.D. Qitsi
Instructed by :
Office of the State Attorney
MTHATHA.