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[2015] ZAECMHC 54
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Ndamase v Ndamase and Others (1961/2010) [2015] ZAECMHC 54 (23 April 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION - MTHATHA)
CASE NO. : 1961/2010
DATE: 23 APRIL 2015
In the matter between:
BULELWA
NDAMASE
............................................................................................................
Applicant
And
VUSUMZI
NDAMASE
................................................................................................
First
Respondent
NDAMASE
NDAMASE
...........................................................................................
Second
Respondent
PREMIER, EASTERN CAPE
PROVINCE
............................................................
Third
Respondent
MEC FOR LOCAL GOVERNMENT AND
TRADITIONAL
AFFAIRS
......................................................................................
Fourth
Respondent
JUDGMENT
Heard on: 4 December 2014
Date delivered: 23 April 2015
MAJIKI J:
[1] This is an application by the
applicant for an order in the following terms, in the main;
1. Declaring the resolution taken by
the second respondent nominating the 1st respondent as the Headman
(Inkosana) of Zinkumbini
Administrative Area, Libode, invalid,
unlawful, unconstitutional and of no force and effect.
2. Restraining and/or interdicting the
first respondent from passing himself off as the Headman (Inkosana)
of Zinkumbini Administrative
Area, Libode.
3. Restraining and/or interdicting the
third and the fourth respondents from giving effect to the resolution
referred to in paragraph
1 above.
4. Directing the third and the fourth
respondents to consider the resolution of the Ndamase royal family
dated 13 April 2009, nominating
the applicant as the Headman
(Inkosana) of Zinkumbini Traditional Community.
5. Costs of the application to be paid
by second, third and fourth respondents, jointly and severally, the
one paying the others
to be absolved, further, order for costs in the
same terms to be paid by the first respondent only in the event of
him opposing
the application.
[2] The application is opposed by all
four respondents. The main affidavit on behalf of the third
respondent is deposed to by Sidumo
Mateta as a person dealing with
matters of this nature within the department of local government and
traditional affairs.(“the
department”). The fourth
respondent delegated his powers in terms of section 34 of Traditional
Leadership and Governance
Act No. 4 2005 (Traditional Leadership Act)
to the third respondent.
Factual background
[3] It is common cause that the
applicant’s grandfather, Dlukulwana was nominated by King
Victor Poto (referred to as Chief
in a copy of the minutes attached
by the applicant and the second respondent) to succeed one Pesi who
was dismissed for reason
of having a criminal conviction.
[4] The said minutes are a record of a
meeting held on 26 July 1951 presided to by the magistrate at the
kraal of Nini Mbali, who
had been acting after Pesi’s
dismissal.
[5] The magistrate recorded that King
Poto had authority to nominate a headman, and his nomination would be
submitted to the government,
and if it was approved, the magistrate
would call a further meeting to instal the nominee. The second
respondent is in the direct
line of descendancy and successors of
kings of West Pondoland, King Poto’s great-grandson.
[6] Ndlukulwana was the headman of
Zinkumbini administrative area until his demise in 1969.
[7] Ndlukulwana died leaving four sons
of which the applicant’s father is the third born son.
[8] The applicant’s father became
a headman of the area in 2006. The parties hold different views as
to the nature of that
particular appointment and the nature of other
appointments that were made for the said position between 1969 and
2006. That
is, with regard to whether the applicant’s
appointment if it was permanent, it was hereditary; whether the
previous ones
were also permanent and how the process of filling of
the position left vacant by the applicant’s father at the time
of his
death on 17 April 2008 should have unfolded.
[9] The second respondent nominated the
first respondent to fill the position of the applicant’s
father. According to the
second respondent, he had authority to do
so as the administrative area in question is one of the areas in
respect of which the
king of Nyandeni has always nominated a headman
for. This is in accordance with long standing Pondo tradition,
custom and practice
of the king of Western Pondoland.
[10] The applicant avers that she was
nominated by her royal family which her father constituted. After
his father’s confirmation
as the traditional leader, he
constituted his new traditional community and his royal family
separate, independent, distinct and
quite apart from the king’s
royal family.
[11] Contrary to what the applicant
avers, the third and fourth respondents state that they did not just
process the recognition
of the first respondent’s appointment.
According to the fourth respondent upon receipt of 2 differing
recommendations for
appointment they referred the matter to
provincial house of traditional leaders, they did not issue a
certificate of recognition
and referred the matter back to the head
of the royal family, the second respondent.
[12] The applicant avers that she
addressed numerous letters to officials within the department and to
the house of the traditional
leaders, challenging what she said
were second respondent’s actions and insisting that she be
recognised.
[13] After referring the matter back to
the head of the royal family, the second respondent, the fourth
respondent sent a letter,
in response to the applicant’s
enquiry, to the applicant advising that they will process the
recognition of first respondent.
[14] The fourth respondent has raised
two points, in limine. The first point relates to the non-joinder of
Thanduxolo Mbangwa.
Mbangwa was, according to the applicant,
appointed to act on her behalf, whilst she is not available to assume
her duties in terms
of her appointment. The second point is that the
minutes attached refer to chieftaincy that does not exist in
Zinkumbini. The
applicant therefore has no locus standi to bring the
application that relates to Zinkumbini headmanship.
[15] Furthermore, the third respondent
aver that the applicant is a non-resident, within the area.
[16] Furthermore, it is denied on
behalf of the fourth respondent that permanent headmanship implies
hereditary headmanship.
[17] In my view, the issue of the
appointment of Mbangwa is not before the court in this application.
That issue would be secondary
after the determination of the alleged
main appointment, that of the applicant.
[18] According to the third respondent,
the applicant’s father was nominated by the mother of the
second respondent who was
a regent king at the time. The applicant’s
father did not inherit as the eldest son of Dlukulwana. The
applicant says her
aunt told her that her father’s eldest
brothers were not interested in taking over the headmanship.
[19] The issue for determination is;
what is the process of determining the person to be recommended to
the third and fourth respondents
as the incumbent to be recognised
and appointed as the headman of Zinkumbini administrative area.
Furthermore, whether the appointment
of the first respondent is in
accordance with the correct procedure or not.
[20] According to the first and second
respondent those appointments were only made by the reigning kings.
The applicant’s
father was appointed by the regent, the mother
of the second respondent.
[21] From the applicant’s papers
it does not seem that she has placed a different manner of procedure
in terms of which the
headman of Zinkumbini was appointed up to
2006, whether in an acting or full capacity.
[22] In my view, there is no basis upon
which the applicant has been able to dispute what is said to have
been a long practice and
tradition in Western Pondoland. The second
respondent has put forward examples in history of such appointments,
dating back from
1951 in respect of Zinkumbini area. On 26 July
1951 King Victor Poto nominated Dlukulwana Zisebenzele Ndamase who
was appointed
as permanent headman of Zinkumbini. This in my view
supports the fact that there were other permanent appointments for
the headmanship
of Zinkumbini area before. Those did not have the
effect of creating a new hereditary process in the appointments of
the successor/s
of the past headman.
[23] Furthermore, the second respondent
attached copies of official letters from the magistrate confirming
appointments of localities
whose nominations were always made by the
king.
24 February 1930 - Permanent chief
(King) Victor Poto nominated Mbizo Gadi for Nyandeni Location 2 . “
the above location
is one of those of which the Paramount Chief is
allowed by
the government to nominate the
headman.”
25 January 1928 Mhlanganiso, Libode
“the residents were not called upon to nominate a successor to
the late headman as, according
to the records in this office, this is
one of the locations in which the chief has a right to nominate
successor.”
21 September 1926 Chief Poto (King)
submitted the name of Nqwiliso as headman of Marhubeni, “Marhubeni
is one of the locations
in which chief has a right of nomination.”
[24] According to Bennett’s
customary law in South Africa, at page 1 customary law derives from
social practices that the
community concerned accepts as obligatory.
He goes on to state that, nearly all customary laws in their original
from, at least,
are unwritten. Although the legitimacy of custom
depends on its age, customary law is always up to date, because,
ancient though
it may seen, no custom is ever older than the memory
of the oldest living person.
The preamble of the traditional
leadership Act reads :
- WHEREAS the National Government has,
in the White Paper on Traditional Leadership and Governance, set out
the norms and standards
for transformation in line with
constitutional imperatives and restoration of the integrity and
legitimacy of the institution of
traditional leadership in accordance
with custom and customary practices;
- AND WHEREAS the Traditional
Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003)
was enacted to set norms and standards
for traditional leadership and
governance throughout the Republic of South Africa.
- AND WHEREAS there is need for the
Government of the Province of the Eastern Cape to enact Provincial
legislation within the framework
of the
Traditional Leadership and
Governance Framework Act, 2003
to provide for matters which are
peculiar to the Province;
[25] In the matter between Penrose
Ntamo and Others v The Premier of the Eastern Cape and Others case
number 169/2014, Nhlangulela
ADJP analysed the application of custom
in relation to the Constitution and traditional leadership Act. He
referred to section
3(1) of the traditional leadership Act, “the
state must respect, protect and promote the institution of
traditional leadership
in accordance with the dictates of democracy
in South Africa”. The decision by the royal family to identify
a headman outside
an election process and without involving members
of the community (which was the existing customary practice) was set
aside.
He referred to Umdeni (clan) of Amantungwa and Others v MEC
for Housing and Traditional Affairs, kwa-Zulu Natal and Another
(2011)(2)
AllSA 548 SCA and paragraph 21 and stated that the Supreme
Court of Appeal “confirms that a court must determine the
custom
of the community before it, in order to determine whether a
headman has been lawfully appointed.
[26] Section 18 of the Act provides :
“(1) Whenever the position of an
iNkosi or iNkosana is to be filled—
(a) the royal family concerned must
subject to such conditions and procedure as prescribed, within sixty
days after the position
becomes vacant, and with due regard to
applicable customary law—
(i) identify a person who qualifies in
terms of customary law to assume the position in question, after
taking into account whether
any of the grounds referred to in section
6 (3) apply to that person; and
(ii) through the relevant customary
structure, inform the Premier of the particulars of the person so
identified to fill the position
and of the reasons for the
identification of that person; …”
[27] The applicant’s basis for
the criticism of the conduct of the second respondent is that, she
belongs to a separate, independent
royal family, her father’s
appointment was understood by those present to be of a permanent
nature and hereditary, amongst
others. The resolution created a
legitimate expectation that, it (headmanship) would upon her father’s
death devolve upon
his family (as it was the case with her
grandfather).
[28] The customary practice as
indicated by evidence advanced on behalf of the respondents proves
to the contrary. The facts evidenced
by the records from the
magistrate, from very early on, reflect that the practice was that
the king had locations in which he had
a right to nominate a
successor to the headman, including Zinkumbini location. Pesi Ndamase
also deposed to an affidavit confirming
appointments by the kings in
iilali zika Kumkani and that Zinkumbini headmanship is not
hereditary. This to me seems to be sufficient
proof of the existence
of this custom. The applicant disputes this by relying on what she
says she was told by her aunt. She
also named chiefs like, Inkosi
Gwadiso, none of whom have deposed to a confirmatory affidavit.
Moreover, his father’s elder
brothers were never appointed by
the king, to be headmen, there is no evidence to support that they
abdicated as the applicant
alleges.
[29] In my view, there is no conflict
between this customary practice and the legislation enacted in the
form of the traditional
leadership Act. This is clear from the
preamble and section 18, of the said Act. If for any reason there
would be any such inconsistency,
which finding I would have a
difficulty in finding support for in the circumstances of this case,
section 211(3) of the Constitution
of the Republic of south Africa
Act 200 of 1983 (“the Constitution”) provides: the
courts must apply customary law
when that law is applicable, subject
to the Constitution and any legislation that specifically deals with
customary law. One of
the qualification in doing so, according to
Bennett’s customary law in South Africa at page 43, is that
customary law must
be deemed repealed to the extent that it is
inconsistent with legislation.
[30] If the custom may for any reason
be found not to be applicable, or any need may arise to change the
practice to enable the
process to be more inclusive and in line with
the provisions of section 18 of the traditional leadership Act, it
would still be
the royal family, which the applicant refers to as
the greater Nyandeni royal family, presided over by the second
respondent,
that would have power to identify the person to assume
the headmanship of eZinkumbini. It is not the case of the applicant
that
there is a reason to change or augment the customary practice in
any case. She just contends that it is her family that has the
power
to appoint a headman and it appointed her.
[31] The applicant seems to rely on the
fact that she averred that her father (after 2006), after his
appointment constituted a
new traditional community and established
his own royal family distinct and independent from the senior royal
family (grater Nyandeni
royal family presided over by the king). She
avers that that royal family appointed and recommended her as the
person to succeed
her father. She cannot be excluded purely on the
basis that she is a woman and is married.
[32] The royal family in the Act is
defined as, the core customary institution or structure consisting of
immediate relatives of
the ruling family within a traditional
community, who have been identified in terms of custom, and
includes, where applicable,
other members who are close relatives of
the ruling family.
[33] The applicant has not stated how
and when her homestead’s royal family was established. She has
not stated that its
establishment was communicated to the senior
royal house, let alone receiving the senior royal house’s
blessings. Despite
her averment about this establishment, she in her
papers also states that the headmanship in question, is an extension
of the greater
Nyandeni royal family presided over by the king.
[34] A traditional community refers to
one that has been recognised in terms of section 5 of the Act.
“ (1) The premier may, subject to
the provisions of section (2), recognise a community as a traditional
community if it –
(a) Is subject to a system of
traditional leadership in terms of that community’s customs and
(b) Observes a system of customary law.
“(2)(a) The Premier must, by
notice in a local newspaper with wide circulation in the province or
area of the province concerned,
or by such other form of
communication as determined by him or her, and after consultation
with the Provincial House of Traditional
leaders, the community
concerned and the Ikumkani under whose authority that community
falls, publish his or her intention to
recognise a community
envisages in subsection (1) as a traditional community.
(b) The Premier must, in the notice
contemplated in subsection (1), invite interested parties to submit
their comments to him or
her within such period as prescribed.
(c) The Premier must, consider the
comments submitted to him or her in terms of paragraph (b) and take a
decision regarding the
recognition of the traditional community.
(d) The Premier may, subject to the
provisions of this Act and the Framework Act, after consideration of
the comments referred
to in paragraph(c), by notice in the Gazette,
recognise a community as a traditional community.”
Nowhere in the applicant’s papers
does it appear that this is how her father ensured that the
traditional community she referred
to, was constituted.
[35] Furthermore, the applicant has not
shown that her alleged appointment which constituted a deviation from
the long practice,
in respect of previous Zinkumbini appointments,
amongst others, those done by the kings, was informed by a necessity
to change
a tradition or custom. She has only averred that the
prerogative cannot take precedence over the right of the royal family
to
nominate a successor.
[36] With regard to the headmanship
being hereditary, she only attached a letter from the housing local
government and traditional
affairs office of Libode on 13 February
2006, which only confirms her father’s assumption of duty as a
permanent headman.
The said letter does not state how the said
appointment was done. The respondents stated that it was done by the
regent king,
the second respondent’s mother. It is not the
first appointment to be referred to as permanent, there were many
before, as
indicated in annexed letters of appointment. Such never
bore a connotation of automatic inheritance. The king would still
make
subsequent appointments after termination of the one that
referred to the permanent headman.
[37] Finally, the applicant does not
meet the requirement for appointment as provided for in the
traditional leadership Act. She
is a non-resident within the
jurisdiction of the traditional council. According to her she
resides at W109, Palmgate, 11 Centenary
Boulevard, Umhlanga Ridge,
Durban. The resolution nominating the applicant would not be in
accordance with the provisions of the
traditional leadership Act.
Section 18 (1)(i) of the traditional leadership Act provides that the
person to be recognised as in
inkosi or inkosana must amongst others,
be of the person identified who qualifies in terms of customary law
to assume the position
in question, after taking into account whether
any of the grounds referred to in section 6(3) apply to that person.
Section 6(3)(e)
provides that a member of the traditional council
shall be a person who is ordinarily resident within the jurisdiction
of the traditional
council. The applicant correctly averred that a
traditional council is constituted by iilali under a senior
traditional leader.
The iilali in turn are administrative areas
headed by headman. Nowhere does section 6(3)(c) make reference to a
domicile of
choice and origin.
[38] There is a big issue made by all
the parties about the fact that the applicant is a married woman. I
do not deem it necessary
to pronounce on this issue under the
circumstances. The applicant would not validly be capable of
appointment even if she was
of the other gender in the circumstances
of this case.
[39] The dispute about the purpose and
the resolutions of the meeting of the 13 April 2009 also is also not
material in the circumstances.
Whether the meeting was to nominate
an heir and administrator to the estate of the applicant’s
father as averred by Lungile
her brother, or the applicant’s
appointment as a traditional leader as applicant avers, does not take
the applicant’s
case any further.
[40] With regard to the filing of the
replying affidavit, I hereby condone its late filing. The applicant
in the explanatory affidavit
had already tendered costs occasioned by
the postponement due to her not filing the replying affidavit
timeously.
[41] The applicant’s appointment
at her home on 13 April 2009 was one of an heir to the chieftaincy.
This could have well
been just an error in terminology. I am not
inclined to view the error about terminology in the same light as
averred on behalf
of the third and fourth respondents, that it
affects the applicant’s locus standi to bring this
application. However, any
appointment of the applicant is contrary
to the provisions of traditional leadership Act. It is so in
many respects as
indicated above. Therefore any purported
appointment of the applicant at her home on 13
April 2009 would have been flawed.
[42] Consequently, the application
stands to be dismissed
In the result,
The application is dismissed with
costs.
B MAJIKI
JUDGE OF THE HIGH COURT
Counsel for the applicant : Mr
Nonkonyana
Instructed by : Messrs H S Toni
Attorneys
1 Roostee Avenue
Corner Nelson Mandela Drive &
Eli Spilkin Road
MTHATHA
Counsel for the 1st respondent : Mr
Ndamase
Instructed by : Messrs A F Noxaka &
Company Ludidi Building
2nd Floor
63 Madeira Street
MTHATHA
Attorney for the 2nd respondent : Mr
Notununu
Instructed by : Messrs Mpumelele
Notununu & Associates
66 Owen Street
MTHATHA
Counsel for the 3rd and 4th
respondents : Mr Matyumza
Instructed by : The State Attorney
Broadcast House
94 Sisson Street
Fortgale
MTHATHA