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[2009] ZAGPPHC 389
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Dlamini and Another v Chairperson Of The Commission On Traditional Leadership Disputes And Claims and Another (55175/2009) [2009] ZAGPPHC 389 (16 October 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE
16 OCTOBER 2009
CASE
NO: 55175/2009
In
the matter between:
INKOSI
PRINCE MMELIZWE
DLAMINI FIRST
APPLICANT
THE
NHLANGWINI TRADITIONAL
COUNCIL
SECOND
APPLICANT
AND
THE
CHAIRPERDON OF THE
COMMISSION FIRST
RESPONDENT
ON
TRADITIONAL LEADERSHIP DISPUTES
AND
CLAIMS
THE
PRESIDENT OF REPUBLIC
OF
SECOND
RESPONDENT
SOUTH
AFRICA
JUDGMENT
PHATUDI
(J)
[1]
The Applicant instituted an urgent application seeking an order
against the First Respondent as set out in the Notice of Motion.
No
order was sought against the Second Respondent. On the date of the
initial hearing (29 September 2009), the Applicants and First
Respondent, by agreement, caused amendment of the Notice of Motion
and further caused a draft order that was subsequently made
an Order
of Court.
[2]
In terms of the court order, 'a Rule Nisi was issued calling up on
the Second Respondent to show cause before this Honourable
Court by
no later than 10 am on Frioay 9 October 2009 why he should not be
ordered to extend the period within which the First
Respondent is to
complete its mandate for a period long enough to enable the First
Respondent to comply with orders 2, 3, 4 4A
and 5.
[3]
The Applicants, acting on behatf of the Nhlangwmi nation, lodged a
claim with the First Respondent sometime during 2005 for
recognition
of a Kingship in terms of Section 25 of the Traditional Leadership
and Governance Framework Act 41 of 2003 (Framework
Act).
[4]
The First Respondent conceded that the
Appliant did lodge the claim as aforesaid with them.
[5]
The First Respondent further conceded
that they had to complete its mandate as envisaged by the orovisions
of Section 25(5) of Frameworks
Act within a period of 5 (Five) years
or within such longer period as the
President of the Republic of South Africa may determine.(my
underline)
[6]
The Applicant and the First Respondent
have since the lodging of the claim by the Applicants exchanged an
umpteenth correspondence
that eventually led to this application It
must be borne in mind that they never involved the Second Respondent
in their communique
but for this application.
[7]
At the hearing before me, the First
Respondents counsel, Mr Madlanga, submitted that they withdraw the
relief sought in the Rule
nisi, save in the event the court grant an
order ordering the Second Respondent to extend the time tnat such
extended time be more
than 12 months.
[8]
I asked Mr Matthis, counsel for the Applicants, to address me on
urgency of this matter. He submitted that the contents of the
letter
from the First Respondent dated 25 August 2009, annexed to the
founding affidavit marked “S”, prompted the applicants
to
launch this application.
[9]
He further said that the wording of the second paragraph thereof
tipped the scale of urgency in that:
“
The
commission members were appointed v/ith effect from 1 November 2004.
which means that their term of office expires on 31 October
2009.”
[10]
I further enquired if the Second Respondent was ever contacted to get
his feeling to that effect. Mr Matthis said that the
applicant never
contacted the Second Respondent to that effect.
[11]
On perusal of the content of the said letter I noted that the First
Respondent stated
“
the
commission must complete its mandate within a period of 5 years
OR
within such longer period as the President may determine ."
(My
emphasis)
[12]
On further enquiry from Mr Matthis if
the Second Respondent had created any impression or intention through
any communique not to
determine an extension of a 5 year period. He
said that the First Respondent is a creature of Statute as envisaged
in terms of
Section 25(5) of the Framework Act.
[13]
Further thereto, counsel for the
Applicants submitted that should the said period not be extended tnen
the present commissioner
will become
functus
officio
.
[14]
On the other hand, Mr Madlanga submitted
that the First Respondent would need an extension of a reasonable
time, which he said to
realistically be a calendar year, to complete
its mandate.
[15]
I then asked counsel for the First
Respondent if the commission had ever summoned the Presidency to
extend the time frame? He referred
me to paragraph 4 (page 163) of
the First Respondent opposing affidavit that state:
“
Accordingly,
the investigation into the claims and finalisation of the
determination could lake up to a full calendar year. As a
result the
commission is working closely with the legal division of the
Presidency and will do everything possible to ensure that,
if an
extension of the temi of the commission is granted by the President,
it (the extension) will be sufficient.”
[16]
It is not clear from the wording of the
paragraph if the First Respondent did indeed request or engage the
Second ResDondent to
extend the time prior to this application.
[17]
Mr Nthai, counsel for the Second
Respondent, submitted that this matter is not urgent on the basis
that the term of office of the
First Respondent expired on 31 October
2009. He further stated that none of the parties (Applicant or First
Respondent) had asked
for an extension of time from the President.
[18]
He further submitted that this
application is premature and stands to be dismissed.
[19]
It is clear from the papers before me
that there is no communique or conduct on the part of the Second
Respondent that could have
created the impression that the Presidency
will not consider an extension of time to enable the First Respondent
to complete its
mandate.
[20]
I find it difficult to accept that the
contents of the First Respondent letter to Applicants (Annexure “S”)
and paragraph
4 of the First Respondent opposing affidavit have
created the “impression” that the Presidency will not or
is not inclined
to extend the First Respondent's term of office.
[21]
I further find it difficult to accept
that urgency was created by the wording of the said communique or
that of Section 25(5) of
the Framework Act.
[22]
I, as a result thereof, have no any
other option but to struck the matter off.
[23]
The following order is thus made:
[23.1]
The Application is struck off the roll,
[23.2]
The Applicants are ordered to pay the
Second Respondent s costs on party and party scale including the
costs of 2(two) counsel.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on:
8\10\2009
For
the Applicant:
Adv
MATTHIS
Instructed
by:
Messrs Rooth Wessels Motla
Conpadie, Pta.
For
the Respondent:
Adv NTHAI
Instructed
by:
Messrs Makaula Zilwa Inco, Pta.
Date
of Judgment:
16 OCTOBER 2009