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[2011] ZAECMHC 8
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Dudumayo and Others v Dalasile and Others (1842/10) [2011] ZAECMHC 8 (26 May 2011)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 1842/10
Delivered on : 26 May 2011
In the matter between:
MKHANYISELI DUDUMAYO
…......................................................
1
st
Applicant
VUYISA DALASILE
….......................................................................
2
nd
Applicant
TSHOMANE TRADITIONAL COUNCIL
…...................................
3
rd
Applicant
and
MHLABUNZIMA DALASILE
…....................................................
1
st
Respondent
MEC FOR LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS,
EASTERN CAPE
…..........................................................................
2
nd
Respondent
THE PREMIER OF THE EASTERN CAPE
…............................
3
rd
Respondent
THE CHAIRPERSON, HOUSE OF
TRADITIONAL LEADERS, EASTERN CAPE
…........................
4
th
Respondent
_______________________________________________________________
JUDGMENT
NHLANGULELA J:
[1] This application concerns an administrative review
of a decision made by the third respondent, duly assisted by the
second respondent,
on 08 June 2010 recognizing the first respondent
as the Inkosana of ama-Tshomane Tribe and entitled to be the headman
of Maphuzi
Administrative Area 15A. Further, the applicants seek
confirmation of an interdictory relief that the third respondent
should not
take any further step in effecting its decision; the first
respondent should not hold himself out or execute duties as the
headman;
and that the third respondent should not recognize the first
respondent as the Inkosana. Finally, the applicants seek an order
that the third respondent recognize the first applicant as the
headman of Maphuzi Administrative 15A (Maphuzi 15A).
[2] In my view the central issue for decision of this
application is whether the decision taken by the second respondent,
acting
for the third respondent, complies with the provisions of
section 18 of the Eastern Cape Traditional Leadership and Governance
Act, Act No. 4 of 2005 read with the provisions of sections 21, 22
and 25 of the Traditional Leadership and Governance Framework
Act,
Act No. 41 of 2003. If the decision taken is found not to be in
compliance with these legal instruments the entire relief
sought by
the applicants will be granted. A finding that it does comply will
lead to the dismissal of the application.
[3] It will help to set out the provisions of the
sections referred to in the preceding paragraph because the decision
of virtually
all the issues arising from this application swing on
the provisions thereof. Section 18 of Act 4 of 2005 reads:
“18
(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; and
(b) The Premier must, subject to subsection (5), by the notice in the
Gazette, recognize the person so identified by the royal
family as an
Inkosi or Inkosana, as the case may be.
(2) Before a notice recognizing an Inkosi or Inkosana is published in
the Gazette, the Premier must inform the Provincial House
of
Traditional Leaders of such recognition.
(3) The Premier must, within a period of thirty days after the date
of publication of the notice recognizing an Inkosi or Inkosana
issue
to the person who is identified in terms of paragraph (a)(i), a
certificate of recognition.
(4) Where the Premier has received evidence or an allegation that the
identification of a person referred to in subsection (1)
was not done
in accordance with the provisions of this Act, customary law or
custom the Premier-
(a) may refer the matter to the 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.
(5) Where a matter, which has been referred back to the royal family
for reconsideration and resolution in terms of subsection
(4)(a), 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 has been done in
accordance with customary law.”
[4] The provisions of s 21 of Act No. 41 of 2003 read:
“21(1)(a) Whenever a dispute concerning customary
law or customs arises within a traditional
community or between traditional communities or other institutions on
a matter arising from the implementation of this Act, members
of such
a community and traditional leaders within the traditional community
or customary institutions concerned must seek to resolve
the dispute
internally and in accordance with customs before such dispute or
claim may be referred to the Commission.
(b) • • •
(2)(a) A dispute referred to in subsection (1)(a) that cannot be
resolved as provided for in that subsection must be referred to
the
relevant provincial house of traditional leaders, which house must
seek to resolve the dispute in accordance with its internal
rules and
procedures.
(b) If a provincial house of traditional leaders is unable to resolve
a dispute as provided for in paragraph (a), the dispute must
be
referred to the Premier of the province concerned, who must resolve
the dispute after having consulted-
(i) the parties to the dispute; and
(ii) the provincial house of traditional leaders.”
[5] The provisions of section 22 of Act No. 41 of 2003
read:
“(1) There is hereby established, with effect from the date of
coning into operation of the Traditional Leadership and Governance
Framework Amendment Act, 2009, a commission known as the Commission
on Traditional Leadership Disputes and Claims.
(2) The Commission must carry out its functions in a manner that is
fair, objective and impartial.
[6] The provisions of section 25 of Act No. 41 of 2003
read:
(1) The Commission operates nationally in plenary and provincially in
committees and has authority to investigate and make recommendations
on any traditional leadership dispute and claim contemplated in
subsection (2).
(2)(a)
The Commission has authority to investigate
and make recommendations on
-
• • •
(iii)
a traditional leadership position where the title or right
of the incumbent is contested.
(The underlinings are mine for emphasis)
• • •
(b) A dispute or claim may be lodged by any person and must be
accompanied by information setting out the nature of the dispute
or
claim and any other relevant information.
(c) The Commission may decide not to consider a dispute or claim on
the ground that the person who lodged the dispute or claim
has not
provided the Commission with relevant or sufficient information or
the provisions of section 21 have not been complied
with.
(3)(a) When considering a dispute or claim, the
Commission must consider and apply customary law and the customs of
the relevant traditional community as they applied when the
events
occurred that gave rise to the dispute or claim.
• • •
(9)
Provincial legislation must provide for a mechanism to deal
with disputes and claims related to traditional leadership: Provided
that such a mechanism must not deal with matters to be dealt with by
the Commission.”
(The underlinings are mine for emphasis)
[7] In this matter the respondents are challenging the
title or right of the first applicant to succeed his father,
Ntilivana, as
the Headman. I have taken notice from the papers filed
of Court that the disputes raised by the respondents invite an
examination
of the history of genealogical family tree of Chief
Dudumayo Dalasile going back to the falling of the Chief in 1928.
Before dealing
with that history the identity of the parties before
this Court must be ascertained.
[8] The first applicant is Mkhanyiseli Dudumayo, an
adult male person of Maphuzi 15A, Mqanduli, Eastern Cape Province. He
describes
himself as being a biological son of the late Inkosana of
Maphuzi 15A, Mr Daliwonga Ntilivana Dudumayo. The second applicant is
Vuyisa Dalasile, an adult male Inkosi (Chief) of ama- Tshomane Tribe
and a member of the third applicant. The third applicant is
Tshomane
Traditional Council, Mqanduli, Eastern Cape. This Council is
established as such in terms of sections 1 and 6 of Act No.
4 of
2005. It is the administrative organ of ama-Tshomane Tribe.
[9] The first respondent is Mhlabunzima Dalasile, a 77
years old male person of Maphuzi 15A. The second and third
respondents are
the MEC and Premier, respectively, of the Government
of the Eastern Cape Province. The fourth respondent is the
Chairperson of
the House of Traditional Leaders, Eastern Cape.
[10] I now turn to deal with the history. The background
facts are the following:
The people of ama-Tshomane Tribe occupy approximately
seven Administrative Areas in the district of Mqanduli, of which
Ngcanguba
Administrative Area No. 15 (Ngcanguba 15) is one. Chief
Dudumayo Dalasile (Dudumayo) reigned in Ngcanguba 15 as both a Chief
and
Headman until his demise in 1928. He was the head of his family
in which the first applicant and first respondent are a part.
Dudumayo
had six wives. In the great house Gwebindlala and
Candulwandle were the first born and second born children
respectively. The third
son, one Mgudlwa, was born of a right hand
house. The customary rule of primogeniture would dictate that the
heir and successor
(inkosana) to Dudumayo’s throne is
Gwebindlala.
[11] Gwebindlala, the great son, established his own
extended family in which four sons were born. Those were Zwelibanzi,
Dalingozi,
Ntlokwinendaba and Dabulamanzi who are mentioned
chronologically in accordance with the customary arrangement of the
houses. Therefore,
Zwelibanzi was the son born of the great house.
Ntlokwinendaba was the son born of the right hand house. Dalingozi
was the son
born of the third house. Dabulamanzi was the son born of
iqadi
house which is attached to the great house. Zwelinzima
Vuyisa Dalasile, the second applicant, is one of the sons from the
great
house of Zwelibanzi. Since Vuyisa is not the first born child
he is not the great son. The first applicant is the grandson of
Dabulamanzi.
He is the direct heir and successor to Ntilivana
Daliwonga, the son of Dabulamanzi.
[12] Briefly stated the first applicant is the
descendant of Gwebindlala in the
iqadi
house.
[13] Mgudlwa died in 1934 without a son.
[14] Candulwandle is also deceased. He is survived by a
son, the first respondent. It may also be mentioned that the first
respondent
is not a customary heir and successor to Dudumayo.
[15] Whilst still living, Dudumayo established Upper
Nenga Administrative Area No. 14, from Ngcanguba 15, and allocated
headmanship
over it to Mgudlwa. Upon his death in 1928 Ngcanguba 15
was again partitioned to produce a portion from it which is called
Maphuzi
15A. This was done on the suggestion of the magistrate with
the aim of creating the headmanship in Maphuzi 15A in favour of
Ntlokwinendaba
whose father, Gwebindlala, had predeceased Dudumayo.
All the children of Gwebindlala were still young when Dudumayo died.
Candulwandle
then stepped into the shoes of his brother, Gwebindlala,
to act as the Chief of ama-Tshomane and Headman in Ngcanguba 15
including
Maphuzi 15A. He did so on behalf of Zwelibanzi and
Ntlokwinendaba. Ntlokwinendaba died during the reign of Candulwandle
whilst
still being a minor. The death of Ntlokwinendaba saw Maphuzi
15A reverting to the great house. In 1930 Zwelibanzi was installed
as
a Chief of ama-Tshomane Tribe. However, Candulwandle continued to act
as Headman in Ngcanguba 15 and Maphuzi 15A. In 1947 Candulwandle
lodged a claim for his appointment as the Headman in Maphuzi 15A. His
claim did not succeed as the Tribe decided to appoint Dabulamanzi.
However, the magistrate of Mqanduli ignored the decision of Tshomane
Tribal Authority by appointing Candulwandle as the Headman
in Maphuzi
15A. In 1955 Candulwandle retired and the headmanship of Maphuzi 15A
was restored to the
iqadi
house. Dabulamanzi resumed
headmanship and reigned until 1971. After Dabulamanzi, the Royal
Family appointed Ntilivana as the Headman.
Ntilivana reigned as the
Headman in Maphuzi 15A until his death in January 2010.
[16] On 24 February 2010 the meeting of the Royal Family
identified the first applicant as the Headman of Maphuzi 15A. The
second
and third applicants approved the decision of the Royal
Family. On 22 March 2010 the meeting of the residents of Maphuzi 15A
also
decided that the first applicant be appointed as the Headman.
The two meetings produced written minutes which were forwarded to
the
third respondent to recognize the appointment of the first applicant
and confirm such appointment in accordance with the provisions
of s
18 of Act No. 4 of 2005. The appointment is as yet to be confirmed.
[17] The first respondent contested the headmanship of
the first applicant on the following grounds:
He is the son of Candulwandle and, thus, he is of royal
blood of the great house of Dudumayo;
The first applicant is the child of the
iqadi
house (the third house);
In 1980 he brought a claim for headmanship against
Ntilivana which
upon investigations the King of aba-Thembu ruled on 8
October 2007, that he (first respondent) is the person who is
entitled to
succeed Ntilivana as the headman;
Despite the ruling, he allowed Ntilivana to act as the
Headman on his
behalf;
On 05 August 2010 the MEC, acting on behalf of the
third respondent, approved his appointment;
On 17 December 2009 the fourth respondent approved his
headmanship because in 1948 Zwelibanzi transferred his rights of
headmanship
over Maphuzi 15A to Candulwandle as a reward for good
services rendered while acting as a Chief in Ngcanguba 15 on behalf
of
Zwelibanzi; and
Dudumayo had allotted Maphuzi 15A to Candulwandle.
[18] The first applicant, duly supported by the second
and third applicants, resist the contestation by the first respondent
on
the following grounds:
(a) Upon the death of Ntlokwinendaba the headmanship in
Maphuzi 15A reverted to the royal family. At the time Zwelibanzi was
the
headman in Ngcanguba 15;
(b) On 08 August 1947 Candulwandle claimed headmanship
against Zwelibanzi. In a meeting that was held before Mr Wilson, the
magistrate
of Mqanduli at the time, Candulwandle was recommended for
headmanship. Such a recommendation was irregular because the meeting
was held in the absence of Zwelibanzi and Candulwandle was legally
disqualified from holding a position of a headman by reason that
he
had a criminal record. As a result the government refused to appoint
Candulwandle as the headman of Maphuzi 15A. Zwelibanzi
duly lodged a
complaint against the recommendation made by Mr Wilson to the Chief
Magistrate in Mthatha. However, the appeal before
the Chief
Magistrate was not finalized; and
(c) The second and third respondent’s decision to
give headmanship to the first respondent falls foul to the provisions
of
Act No. 41 of 2003 in that despite the fact that the claim by the
first respondent had been disputed by Ntilivana during his lifetime,
the respondents did not refer such dispute to the Commission for a
proper investigation and a determination to be made in accordance
with customary law.
[19]
Mr Matoti
submitted on behalf of the first
respondent that the Premier acted correctly in resolving the dispute
in favour of the first respondent
as it was enjoined to do so in
terms of section 18 (1) of Act No. 4 of 2005; that the headmanship
position was vacant because Ntilivana
was acting in the post and
having no legal rights to be appointed in the post permanently
because he was the descendant of the
iqadi
house; and that the
applicants had foreseen that the challenge to the recognition of the
first respondent would raise a dispute
of fact necessitating the
dismissal of the application.
Mr Matoti
submitted further that
since the dispute concerns the issue of succession under customary
law generally, the provisions of s 25(2)(a)
of Act No. 41 of 2003 (on
the referral of a dispute to the Commission) cannot apply to this
case because the referral of the dispute
to the King and fourth
respondent was sufficient compliance in terms of s 18(1) of Act No. 4
of 2005.
[20]
Mr Matyumza
appeared on behalf of the 2
nd
,
3
rd
and 4
th
respondents. He submitted, aligning
himself with the arguments advanced by
Mr Matoti
, that the
dispute between the parties concerns the applicability of customary
law of succession in the family of Gwebindlala which
must have
consequences to both the first applicant and the first respondent. He
contended that it was correct of the second and
third respondents to
decide who between the parties should be recognized as the legitimate
headman of Maphuzi 15A. To resolve the
dispute the respondents were
enjoined to act only in terms of s 21(2)(b) of At No. 41 of 2003 read
with s 18(1) of Act No. 4 of
2005 by referring the dispute to the
King and fourth respondent to make a recommendation. Since the
respondents have utilized the
internal rules and procedures at their
disposal and resolved the dispute there was no need for the matter to
be referred to the
Commission in terms of s 25(2(a) of the Act No. 41
of 2003. He submitted further that the
doctrine
of estoppel
should be invoked against the applicants because they took part in
the investigations which were conducted in 2009
and knew that the
King recommended the first respondent for recognition as the headman
of Maphuzi 15A.
[21]
Mr Dukada
submitted on behalf of the
applicants that two things happened after the demise of Ntilivana.
Firstly, the first applicant succeeded
Ntilivana as the headman of
Maphuzi 15A. Therefore, there was no vacancy that needed to be
filled. Secondly, the first respondent
contested the position of
headmanship which was already held by Ntilivana. He contended that
the vacancy did not exist when the
respondents took a decision to
recognize the first respondent on 08 August 2010 because the Royal
Family, acting in terms of s
18 of Act No. 4 of 2005, had already
determined headmanship in accordance with customs applicable to
ama-Tshomane Tribe. Once the
Royal Family identified the first
applicant as the successor to Ntilivana the third respondent was
obliged to recognize the first
applicant as the headman. He submitted
that the second and third respondents were not authorized by the
provisions of s 18 of Act
No. 4 of 2005 to recognize the first
respondent as the headman because, in terms of s 25 of Act No. 41 of
2003, the first respondent’s
objection constituted a contest
against the rights of the
iqadi
house of Ntilivana and the
first applicant to the headmanship of Maphuzi 15A.
Mr Dukada
contended that the contestation should have been referred to the
Commission and a failure by the third respondent to allow the
Commission to decide the dispute in terms of s 25 of Act No. 41 of
2003 would render the impugned decision invalid.
[22] The provisions of Act No. 41 of 2003 and Act No. 4
of 2005, the National and Provincial Statutes respectively, are not
in conflict
with each other on the question of the machinery that is
applicable in the resolution of disputes between the parties. The
provisions
of the statutes read harmoniously and there is no
interpretational problem raised in their applicability in this
matter. It is
envisaged in s 25(2)(a)(iii) of Act No. 41 of 2003 that
a dispute concerning a contestation of traditional leadership
position
involving the title or right of the incumbent must be
investigated and a recommendation be made on such investigations by
the Commission
which has been established for that purpose in terms
of s 22 (1) of Act No. 4 of 2003. The Act is specific in its terms.
The provisions
of s 18 of Act No. 4 of 2005 and s 21 of Act No. 41 of
2003, which the respondents relied upon for their decision, do not
refer
in specific terms to disputes which are enumerated in s 25
(2)(a) of Act No. 41 of 2003. Significantly, it is provided in s 18
(4) of Act No. 4 of 2005 that the Premier who has received “evidence
or allegation” that the identification of a person
for a
position of headmanship was not done in accordance with the Act,
customary law or custom must refer the matter to the Royal
Family for
reconsideration and resolution. In this case the dispute has not been
referred back to the Royal Family but the third
respondent elected to
refer the matter to the fourth respondent and the King. It may be
inferred from this approach that the third
respondent was not
satisfied with the decision of the Royal Family. In that case, the
third respondent would not have been empowered
to deal with the
matter at hand any further under the legislative scheme of Act No. 4
of 2005. It comes as no surprise that the
provisions of s 25 of Act
No. 4 of 2003 provide an appropriate procedure to be adopted by the
Premier who is not satisfied with
the reasons which influenced the
Royal Family in identifying the headman.
[23] The
proviso
in s 25(9) of Act No. 41 of
2003, the National Statutes, reads that provincial legislation (such
as Act No. 4 of 2005) must not
deal with matters specifically
mentioned in s 25(2) to be dealt with by the Commission, of which the
contestation of first applicant’s
right to headmanship in
Maphuzi 15A is one. It is by no means co-incidental that s 18(4) of
Act No. 4 of 2005 does not provide
for a dispute resolution mechanism
of the Commission. In terms of s 25(9) of Act No. 41 of 2003 the
Legislature in the Eastern
Cape Province had to fashion Act No. 4 of
2005 in such a way that it does not conflict with s 25 (2) of Act No.
41 of 2003.
[24] Therefore, it is my view that the respondents were
not empowered by law to resolve the dispute without recourse to the
Commission.
It is the Commission itself that should decide the
dispute. The decision of 08 August 2010 is, therefore, not in
compliance with
s 25 of Act No. 41 of 2003. It is an unlawful
administrative action within the meaning of s 33 of the Constitution
read with
s 6(2)
of the
Promotion of Administrative Justice Act No. 3
of 2000
.
[25] I now turn to deal with the interdicts sought. It
do this against the background that the decision recognizing the
first respondent
as the headman is invalid. It must follow that the
first respondent may not hold out as the headman or be assisted by
the second
and third respondents to do so.
[26] The decision whether to grant the interdict that
the first applicant be recognized as the headman hinges on the
lawfulness
or otherwise of the decision by the Royal Family
identifying the first applicant as the headman of Maphuzi 15A. It is
common cause
that the headmanship has been in the hands of the
iqadi
house of Gwebindlala from time immemorial. The Royal Family and
ama-Tshomane people have approved of that state of affairs with
visible consistency over decades. Based on the customary law
principle of primogeniture, the headmanship has inexorably descended
from successive generations of the
iqadi
house until the
current generation of the first applicant. The Court has not been
asked to disturb that state of affairs. On the
strength of the maxim:
“
omnia praesumuntur rite esse acta”
it must
continue to prevail until such time as it has been declared to be
unlawful by a court of law. See the case of
Oudekraal Estates
(Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA),
paras [26] and [27] at 242.
[27] Since the location of headmanship in the
iqadi
house of Gwebindlala is valid and the identification of the first
applicant complies with the provisions of
s 18
(1)(a) of Act No. 4 of
2005, the third respondent would be obliged to recognize the first
applicant as the headman in terms of
sections 18(1)(b), 18(2) and
18(3) of the same Act. If the third respondent is not satisfied that
the decision of the Royal Family
is in accordance with customary law
and custom she must request the Commission to decide the dispute as
envisaged in s 25 of Act
No. 41 of 2003.
[28] On the foregoing, it is my view that the third
respondent may be directed to entertain the first applicants’
request
for his consideration as the Inkosana of Maphuzi 15A.
[29] The dispute of fact argument is irrelevant to the
relief sought because the case of the applicants is premised on
non-compliance
by the respondents with the dispute resolution
mechanism which was created by the Legislature in s 25 of Act No. 41
of 2003. The
factual disputes arising from the contestation of the
position of headmanship should be resolved by the Commission itself.
[30] I do not agree with the respondents that the
applicants have not proved the requisites for granting of an
interdict. In my
view, as demonstrated in this judgment, the
applicants have proved that they are entitled to a relief setting
aside the decision
of 08 August 2010 to prevent harm that is being
caused to the people of ama-Tshomane Tribe in Maphuzi 15A by an
unlawful deprivation
of a headman. There is no alternative remedy at
the disposal of the applicants to correct the decision of the third
respondent
as well as the consequences thereof.
[31] There is no reason in ordering the second and
fourth respondents to pay the costs of the application because they
are serving
the interest of the first respondent and assisting the
third respondent in this application. The third respondent is the
only person
who is obliged to entertain requests by the Royal Family
for the recognition of traditional leaders in terms of the provisions
of s 18 of Act No. 4 of 2005. Therefore, both the first and third
respondents must pay the costs of this application.
[32] In the result, the following order shall issue:
(a) That the decision of the 2
nd
and 3
rd
respondents to recognise the 1
st
respondent as Inkosana of
Maphuzi Administrative Area 15A, Mqanduli dated 08 June 2010 be and
is hereby set aside.
(b) That the 2nd and 3
rd
respondents be and are hereby
interdicted and restrained from taking any further step in effecting
the decision to recognize the
1
st
respondent as the
Inkosana of Maphuzi Administrative Area 15A, Mqanduli.
(c) That the 3
rd
respondent be and is hereby directed
to consider the 1
st
applicant’s request for
recognition as Inkosana of Maphuzi Administrative Area 15A, Mqanduli.
(d) That the 1
st
respondent be and is hereby
interdicted and restrained from holding himself out or executing any
duties as Inkosana of Maphuzi
Administrative Area 15A, Mqanduli.
(e) That the 1
st
and 3
rd
respondents pay the
costs of the application jointly and severally, the one paying and
the other to be absolved from liability.
_____________________________
Z. M. NHLANGULELA
JUDGE OF THE HIGH COURT
Legal representations for the applicant : Mr D.Z. Dukada
of
D.Z. Dukada & Co Inc
MTHATHA
Counsel for the 1
st
respondent : Adv. L.
Matoti
Instructed by : Mnikelo Dalasile & Assoc
MTHATHA
Counsel for the second, third and fourth
respondents : Adv. M.M. Matyumza
Instructed by : The State Attorney
MTHATHA