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[2011] ZAKZPHC 52
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Mngomezulu and Others v Premier of the Province of Kwazulu-Natal and Others (6404/11) [2011] ZAKZPHC 52 (17 November 2011)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 6404/11
In the matter between:
SOLOMON MNGOMEZULU
….......................................
1
ST
APPLICANT
TINDLA ORELIUS
MNGOMEZULU
…..........................
2
ND
APPLICANT
JABULANI SEVENDAYS
MNGOMEZULU
…...............
3
RD
APPLICANT
BUYILE THANDIWE
MNGOMEZULU
….......................
4
TH
APPLICANT
JAMESON MKHAWULI
MNGOMEZULU
…..................
5
TH
APPLICANT
MNCANE W. MNGOMEZULU
…....................................
6
TH
APPLICANT
AGNES MNGOMEZULE
…............................................
7
TH
APPLICANT
THANDEKILE MNGOMEZULU
…..................................
8
TH
APPLICANT
MKHETHWA MNGOMEZULU
…....................................
9
TH
APPLICANT
and
THE PREMIER OF THE
PROVINCE OF
KWAZULU-NATAL
…................................................
1
ST
RESPONDENT
MEMBER OF THE
EXECUTIVE COUNCIL OF
THE PROVINCE OF
KWAZULU-NATAL
DEPARTMENT OF
CO-OPERATIVE
GOVERNANCE &
TRADITIONAL AFFAIRS
….......
2
ND
RESPONDENT
KWAZULU-NATAL
DEPARTMENT OF LOCAL
GOVERNMENT &
TRADITIONAL AFFAIRS
….......
3
RD
RESPONDENT
KHANYISA MKHIZE
4
TH
RESPONDENT
JUDGMENT
Delivered
on 17 November 2011
______________________________________________________
SWAIN J
[1] Albeit couched in a
number of alternative ways in the notice of motion, the substance of
the relief sought by the applicants
as against
the respondents, and in
particular the first respondent, is that the first
respondent be compelled
to recognise first applicant as Ibambabukhosi of the Mngomezulu
Tribal Community of Ingwavuma and surrounds,
in terms of Section 30
read together with Section 19 of the KwaZulu-Natal Traditional
Leadership and Governance Act No. 5 of 2005
(the Act).
[2] It is therefore
necessary at the outset to examine these sections of the Act. Section
30 provides as follows:
“
30.
Ibambabukhosi. – (1)
Ibambabukhosi
may
only be identified and recognised where –
a successor to the leadership
position concerned has not been identified;
the successor to the position of
Isilo
or
Inkosi
is a minor;
Isilo
or
Inkosi
recognised as contemplated in sections 17 or 19, as the case may be,
would be absent from his or her area of jurisdiction for
a period of
more than six months for –
the treatment of illness;
study purposes; or
any other lawful purpose but
excluding circumstances contemplated in section 26 (1).
(2) The recognition of
Ibambabukhosi
must be reviewed by the Premier, after consultation with the
responsible Member of the Executive Council, at least once every
three
years.
(3) For purposes of identification and
recognition of
Ibambabukhosi,
the provisions of section 17 and
19 apply with the necessary changes.
(4)
Ibambabukhosi
must carry
out the duties of office on behalf of
Isilo
or
Inkosi
,
as the case may be, until such time that
Isilo
or
Inkosi
is in a position to assume office.
(5) For purposes of the removal
of
Ibambabukhosi,
the provisions of section 21 apply with the
necessary changes.
(6) If, within 30 days,
Ibambabukhosi
has not been identified, the Premier, may, after consultation
with the Provincial House of Traditional Leaders and the Executive
Council, appoint an appropriate person to function in the interim as
Ibambabukhosi
until such time that the Royal Family or
umndeni
wenkosi
has identified
Ibambabukhosi”.
[3] It is apparent from
subsection 3, that for the purposes of identification and recognition
of Ibambabukhosi, the provisions of
Section 17 and 19 apply with the
necessary changes. On the facts of the present case the provisions of
Section 17 are not applicable,
dealing as they do with the
recognition of Isilo as Monarch. Section 19 is however applicable as
the present case is linked to
the issue of the recognition of an
Inkosi to the Mngomezulu Tribal Community.
[4] Section 19 of the Act
reads as follows:
“
19.
Recognition of an
Inkosi.
-
(1)
Whenever the position of an
Inkosi
is
to be filled, the following process must be followed-
Umndeni wenkosi
must, within a
reasonable time after the need arises for the position of an
Inkosi
to be filled, and with due regard to applicable customary law
and section 3-
Identify a person who qualifies in
terms of customary law to assume the position of an
Inkosi
after taking into account whether any of the grounds referred to in
section 21 (1)
(a), (b)
or
(d)
apply to that person;
Provide the Premier with the reasons
for the identification of that person as an
Inkosi;
and
The Premier must, subject to
subsection (3) of this section and section 3, recognise a person so
identified in terms of subsection
(1)
(a)
(i) as
Inkosi
:
Provided that if the reason for the vacancy is the death of the
recognised
Inkosi, umndeni wenkosi
must, before identifying
the person to be recognised as
Inkosi
, consider the content
of the testamentary succession document referred to in section 19A.
[Sub-para.
(iii) substituted by s 3 of Act No. 9 of 2007]
(2) The recognition of a person as an
Inkosi
in terms of subsection (1)
(a)
(iii) must be
done by way of –
a notice in the
Gazette
recognising the person identified as an
Inkosi;
and
the issuing of a certificate of
recognition to the indentified person.
(3) The Premier must inform the
Provincial House of Traditional Leaders of the recognition or
appointment of an
Inkosi.
(4) Where there is evidence or an
allegation that the identification of a person to be appointed as an
Inkosi
was not done in accordance with customary law, customs
or processes, or was done in contravention of section 3 of this Act,
the
Premier-
may refer the matter to the
Provincial House of Traditional Leaders for comment; or
may refuse to issue a certificate of
recognition; and
must refer the matter back to
umndeni
wenkosi
for reconsideration and resolution where the certificate
of recognition has been refused.
(5) Where the matter which has been
referred back to
umndeni wenkosi
for the reconsideration and
resolution in terms of subsection (4) has been reconsidered and
resolved, the Premier must recognise
the person identified by
umndeni
wenkosi
if the Premier is satisfied that the reconsideration and
resolution by
umndeni wenkosi
has been done in accordance with
customary law.
(6) The recognition of an
Inkosi
as the senior traditional leader of a recognised traditional
community takes effect on a date specified in a notice published in
the
Gazette
by the Premier.
(7) Within three weeks after the date
of recognition or the date of publication of the notice referred to
in subsection (6), whichever
is the later date, an
Inkosi
so
recognised must furnish, in writing, to the Premier the names of
Induna
or
Izinduna
of that
Inkosi
, together with
the date and names of all members present at the traditional council
at which appointment of such
Induna
, or
Izinduna
was
unanimously approved by the traditional council.
(8)
(a)
An
Inkosi
is
deemed to retire from office upon his or her written request for
retirement to the responsible Member of the Executive Council.
(b)
On retirement, an
Inkosi
ceases to be recognised and appointed in terms of this Act”.
[5] In order to place in
context the present dispute it is necessary to set out certain of the
background facts.
[5.1] There is a dispute
within the Mngomezulu Tribal Community
in relation to the
succession to Inkosi Mndeni Eric Mngomezulu who died in 2003.
[5.2] The one contestant
Bikizwe Edward Mngomezulu, is a minor who is presently ten years of
age and was identified as Inkosi by
certain members of the
Mongomezulu clan. It is asserted by the applicants that Bikizwe was
identified by umndeni wenkosi. The respondents
however assert that
the individuals who comprise umndeni wenkosi, are not defined and
will have to be determined before this body
is able to identify the
Inkosi, who is to succeed the late Inkosi Mngomezulu.
[5.3] The other
contestant is Mpumelelo Ntunja who is alleged by the House of Ntunja,
to be the legitimate successor to the late
Inkosi Mngomezulu.
[5.4] On 24 July 2007,
this dispute was referred to the Commission on Traditional Leadership
disputes and Claims (the Commission)
which was established in terms
of
Section 22
of the
Traditional Leadership and Governance Framework
Act 2003
. The functions of the Commission are
inter alia
, to
investigate and make recommendations on disputes about traditional
leadership. Annexed as Annexure SM27 to the applicant’s
founding affidavit, are the submissions made on behalf of Bikizwe
Mngomezulu. It is also alleged by the applicants that they made
oral
submissions to the Commission, in hearings that were conducted in
Richards Bay on 04 August 2009.
[5.5] The Commission to
date has not determined the dispute as to who the successor to the
late Inkosi Umndeni Mngomezulu should
be. The respondents contend
that the individuals who comprise umndeni wenkosi will also have to
be determined by the Commission.
[5.6] The applicants
assert that the second to ninth applicants are members of the
Mngomezulu Royal Family and the applicants, including
the first
applicant, act on behalf of umndeni wenkosi, which consists of the
persons listed in Schedule “A”, to the
applicant’s
founding affidavit. The applicants allege that at a meeting held on
1
st
, 2
nd
and 3
rd
March 2009, the
Mngomezulu Royal Family decided that the first applicant should be
appointed Ibambabukhosi and petitioned the second
and third
respondents, advising of their resolution that the first applicant
should be recognised as such.
[5.7] The first
respondent has not recognised the first applicant as Ibambabukhosi.
[6] The defence advanced
by the respondents is that the first respondent:
[6.1] Cannot recognise
Bikizwe as Inkosi, because the first respondent has to be satisfied
in terms of Section 19 (4) and 19 (5)
of the Act, that the
identification was done in accordance with customary law. Whilst the
issue of the competing claims to succeed
as Inkosi, are pending
before the Commission, the first respondent cannot be satisfied that
the claim to Inkosi, advanced by Bikizwe
is in accordance with
customary law.
[6.2] The first
respondent does not have the authority to recognise
the first applicant as
Ibambabukhosi, whilst the dispute between the Houses has not been
resolved.
[7] The authority of the
first respondent to recognise Ibambabukhosi, is to be found in
Section 30 (1) (a), (b) and (c) of the Act.
On the present facts it
is clear that Section 30 (1) (a) has no application, because on the
applicant’s case, a successor
to the leadership position
concerned has been identified. I refer to the applicant’s case,
because the applicants could not
contend that the first respondent is
entitled to act in terms of this section, where they contend that the
successor has been identified.
In any event, it is clear that the
present case concerns the situation where it is alleged that two
successors to the leadership
position have been identified, and not
the case where no successor has been identified.
[8] It is equally clear
that Section 30 (1) (c) does not apply on the facts of the present
case, because an Inkosi has not been
recognised by the first
respondent in terms of Section 19.
[9] The only remaining
provision from which the first respondent may accordingly possess the
power to recognise Ibambabukhosi, is
where the successor to the
position of Inkosi is a minor. Although Bekizwe is a minor, it cannot
be said at this stage, while the
dispute over who is the legitimate
successor to Inkosi, has not been resolved, that Bekizwe is
“the
successor”
to the position of Inkosi.
[10] When I put this
proposition to Mr. Mngomezulu, who appeared on behalf of the
applicants, he submitted that it was sufficient
if
“the
successor”
had been identified as such by umndeni
wenkosi in terms of Section 19, even if the individual’s right
to succeed was subject
to dispute. As pointed out however, the
respondents dispute the composition of umndeni wenkosi as contended
for by the applicants,
and assert that this is an issue which will
have to be resolved by the Commission. On the papers before me the
dispute has to be
resolved, in the absence of a request by the
applicants for the matter to be referred for the hearing of oral
evidence, on the
facts stated by the respondents and the admitted
facts.
Plascon Evans
Paints v Van Riebeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
AD
at 634 E – 635 C
A referral to the hearing
of oral evidence was not requested and consequently, the legitimacy
of the composition of umndeni wenkosi,
must be resolved in favour of
the respondent. Consequently, it cannot be said that Bikizwe has
validly been identified as Inkosi
by umndeni wenkosi, in terms of
Section 19 of the Act. In any event, it seems to me, that on a
correct interpretation of Section
30 (1) (b) it could never have been
the intention of the Legislature, that even where the legitimacy of
the succession of the minor
in question, to the position of Inkosi,
was subject to dispute, the first respondent would nevertheless be
entitled to recognise
an individual as Ibambabukhosi. This is because
it is clear in terms of Section 30 (4) that Ibambabukhosi must carry
out the duties
of office
“on behalf of”
Inkosi
until such time that
“Inkosi”
is in a
position to assume office. In the context of Section 30 (1) (b) I
cannot see how the Ibambabukhosi can carry out the duties
of office,
on behalf of an Inkosi, whose right to assume office is in dispute.
In addition, it is not without significance that
the words used by
the Legislature are
“the successor”,
which
clearly indicates a single successor and not a number of potential
successors.
[11] For these reasons I
am satisfied that on the facts of this case, the first respondent
does not possess the necessary authority
in terms of Section 30 (1)
of the Act, to recognise the first applicant as Ibambabukhosi. The
facts of this case have revealed
a
lacuna
in the Act, with
regard to the powers of the first respondent to recognise
Ibambabukhosi, which may require legislative intervention.
[12] Mr. Mngomezulu
submitted in the alternative, that the first respondent had the power
in terms of Section 30 (6) of the Act,
to appoint the first applicant
as Ibambabukhosi. It is however quite clear that this section only
applies where Ibambabukhosi has
not been identified. As pointed out
above, the applicants contend that the first applicant has been
identified. Even if it is so
that the identification of first
applicant as Ibambabukhosi by umndeni wenkosi, has not been
established on the papers, for the
reasons set out above, it is quite
clear that the power vested in the first respondent, to act in terms
of Section 30 (6) of the
Act is permissive and not directory. It is
provided that the first respondent
“may”
appoint
an appropriate person to function in the interim as Ibambabukhosi,
after consultation with the Provincial House of Traditional
Leaders
and the Executive Council. It cannot be said in the context of
Section 30 of the Act, that the power of the first respondent
to act,
was coupled with a duty to do so.
Baxter –
Administrative Law pg 412
The first respondent
possesses a discretion whether to act, or not, in terms of Section 30
(6), and is not obliged by a specific
statutory duty to do so.
Baxter
supra
at pgs 690 – 691
The first respondent
consequently cannot be compelled by way of
mandamus,
to decide
whether to appoint Ibambabukhosi or not, in terms of Section 30 (6)
of the Act.
[13] The conclusion which
I have reached on the merits of the case,
renders it strictly
unnecessary to consider two further issues raised by the respondents,
but I will do so, for the sake of completeness
and because the
resolution of these issues, has a bearing on the issue of the award
of costs.
[14] The first issue is
that the respondents contend that Mpumelelo Ntunja, is a necessary
party to the present proceedings and
should have been joined. It was
initially contended by the respondents that the Commission, as well
as umndeni wenkosi, were also
interested parties and should have been
joined, but these contentions were not persisted in by Mr. Dickson S
C, who appeared for
the respondents at the hearing.
[15] It is trite that the
test is whether or not a party has a
“direct and
substantial interest”
in
the subject matter of the action, being a legal interest in the
subject matter of the litigation, which may be affected prejudicially
by the Judgment.
Erasmus, Superior
Court Practice B1 – 94
In the case of
Amalgamated
Engineering Union vs Minister of Labour
1949 (3) SA 637
(A)
at 657
it was held that the
question of joinder should not depend on the nature of the subject
matter, but on the manner in which, and
the extent to which, the
Court’s order may affect the interests of third parties. The
approach was that it first had to be
considered whether the third
party would have
locus standi
to claim relief concerning the
same subject matter, and then to examine whether a situation could
arise in which, because the third
party had not been joined, any
order the Court might make would not be
res judicata
against
him, entitling him to approach the courts again concerning the same
subject matter, and possibly obtain an order irreconcilable
with the
order made in the first instance.
See also
Gordon v Department
of Health KZN
2008 (6) SA 52
(2)
(SCA) at 529 D - F
[16] It is quite clear
that the dispute to which Mpumelelo Ntunja is a party, is solely
concerned with the appointment of Inkosi.
The appointment of
Ibambabukhosi has no legal effect upon the identification by umndeni
wenkosi of the Inkosi, nor the recognition
thereof by the first
respondent. In terms of Section 30 (4), the position of Ibambabukhosi
is temporary and only lasts until the
Inkosi
“is in a
position to assume office”
. Mpumelelo Ntunja would
not have
locus standi
to
claim the appointment of another individual as Ibambabukhosi, as only
the umndeni wenkosi is entitle to identify the Ibambabukhosi
and
request recognition of their choice by the first respondent. On this
basis, it cannot be contended that the grant of an order,
which would
have the effect of appointing the first applicant as Ibambabukhosi,
would prejudice the interests of Mpumelelo Ntunja.
Although the
appointment of the first applicant as Ibambabukhosi may have
political significance in the context of the present
dispute, it does
not prejudice the legal interests Mpumelelo Ntunja to be appointed as
Inkosi. In my view therefore, Mpumelelo
Ntunja was not a necessary
party to the present proceedings.
[17] The second issue is
that the respondents contend that the applicants have failed to
exhaust the internal remedies available
to them in terms of Section
49 of the Act, which they were obliged to do in terms of Section 7
(2) of the Promotion of Administrative
Justice Act No. 3 of 2000
(PAJA).
[18] Section 49 (1) of
the Act provides as follows:
“
49.
Dispute Resolution
– (1) Whenever a dispute concerning customary law or customs
arises within a traditional community or between traditional
communities or other traditional institutions on a matter arising
from the implementation of the Act or otherwise, members of such
a
community or institution and traditional leaders with the traditional
community or traditional institution concerned must seek
to resolve
the dispute internally and in accordance with customary law and
customs”.
[19] From the minutes of
the meeting held between the Mngomezulu family and the second
respondent on 20 November 2010 it is clear
that the appointment of
Ibambabukhosi was opposed by the Ntunja House. A dispute consequently
exists concerning customary law or
custom, between traditional
communities being the Khathwayo House and the Ntunja House. The
dispute consequently falls within the
parameters of Section 49 of the
Act.
[20] Section 6 of PAJA
provides for the judicial review of an administrative action which
includes a failure to take a decision
by an organ of State, when
exercising a public function
. “Decision”
includes
any decision of an administrative nature
“required to be
made” “under an empowering provision”.
By
reference to the definition of
“failure”
which
in relation to the taking of a decision includes a refusal to take
the decision, omissions of all kinds are included.
The New
Constitution and Administrative Law
Vol 2 Hoexter et al
pg 101
[21] Section 49 (1) of
the Act provides that the parties
“must seek to resolve
the dispute internally”.
Section 49 (2) provides
that any dispute that cannot be resolved
“must”
be
referred to the bodies and individuals described in the sub-sections.
It is therefore clear that the applicants are obliged to
exhaust
these remedies before approaching this Court, as no application was
brought by the applicants in terms of Section 7 (2)
(c) of PAJA for
exemption from the obligation to exhaust these internal remedies.
This Court is accordingly precluded in terms
of Section 7 (2) (a) of
the Act, from reviewing any such administrative action.
[22] As regards the issue
of costs of the application, by virtue of the fact that the
applicants sought a judicial review of the
“refusal”
by the first respondent to make a decision on the issue
of the recognition of first applicant as Ibambabukhosi, the
applicants accordingly
sought to assert a constitutional right, and
consequently the general rule is that if the State is unsuccessful it
pays the legal
costs, but if successful, each party bears its own
costs.
Biowatch Trust v
Registrar Genetic Resources
2009 (6) SA 232
(CC) at 246 G – H
If however, an
application is frivolous or vexatious, or in any other way
manifestly inappropriate,
the applicant should not expect that the worthiness of its cause will
immunise it against an adverse costs
award.
Biowatch at page 247 A
– B
[23] Mr. Dickson S C
submits that the present application was frivolous and vexatious,
because the applicants failed to consider
the applicable legislation
which was brought to their attention. It is submitted that they
brought
“a causeless case despite the pending
determination of the dispute in the Commission”.
It
is clear however that the defence raised by the respondents, was
simply that because there was a dispute as to the appointment
of the
Inkosi, the first respondent had no authority to recognise the first
applicant as Ibambabukhosi, because such recognition
had to take
place in terms of Section 19 of the Act. When I raised with Mr.
Dickson S C, my views in regard to the apparent lack
of authority on
the part of the first respondent in terms of Section 30 of the Act,
he agreed with the views I expressed. It cannot
be said therefore
that the basis upon which the applicants’ claim, has failed in
terms of the provisions of the Act, was
previously brought to the
attention of the applicants and despite such knowledge they
nevertheless proceeded with the application.
In addition as regards
the points
in limine
,
the respondents have not been totally successful. On the issue of the
non-joinder of Mpumelelo Ntunja they were unsuccessful,
although on
the issue of the failure of the applicants to exhaust their domestic
remedies, they were successful.
[
24] When all of the
above is considered, I am not satisfied that the general rule
enunciated in Biowatch, should be disturbed, which
will find
expression in the costs
order, I intend making.
The order I make is the
following:
The application is
dismissed.
The parties are ordered
to pay their own costs.
___________
SWAIN J
Appearances /…
Appearances:
For
the Applicant :
Mr. C. H. S. Mngomezulu
Instructed by :
CHS Mngomezulu Attorneys C/o Lushaba J & Associates
Pietermaritzburg
For the 1
st
–
3
rd
Respondents :
Mr.
A. J. Dickson S C
Instructed
by
:
PKX Attorneys
Pietermaritzburg
Date of Hearing
:
09 November 2011
Date of Filing of
Judgment :
17 November 2011