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[2024] ZAECMHC 22
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Mkono and Another v MEC for Co-operative Governane and Traditional Affairs Eastern Cape and Others (3603/2021) [2024] ZAECMHC 22 (30 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE NO.: 3603/2021
In the matter between:
SAZISO
MKONO
First Applicant
GIBISELA TRADITIONAL
COUNCIL
Second Applicant
and
MEC FOR CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL AFFAIRS,
EASTERN CAPE
First Respondent
PREMIER OF THE EASTERN
CAPE
Second Respondent
NTSIKA
MKONO
Third Respondent
LWAZI
MKONO
Fourth Respondent
JUDGMENT
CENGANI-MBAKAZA AJ
Introduction
[1] To
address the principle of finality in litigation, Chacklason P (as he
then was) stated that legal disputes
must come to an end to caution
against uncertainty and prejudice if courts could be approached to
reconsider final orders made
[1]
.
Although the court was seized with an application for the variation
of a court order in that matter, I find these remarks pertinent
in
the present instance and agree with the principle raised.
[2] This
matter involves a history of litigation from a dispute over the
headmanship of the Ndanya Administrative
area in Ngqeleni
district(‘AmaNdanya community’). The dispute had
originated following the death of Velile Mkono(‘Nkosana
Velile’). In the papers filed, the parties’ legal
representatives referred to previous court cases and orders. The
relevance thereto will be demonstrated during the course of this
judgment.
The parties
[3] The
first applicant is an adult male person, of Mpindweni location,
Ndanya Administrative Area in the
district of Ngqeleni.
[4] The
second applicant is the Gibisela Traditional Council, a traditional
structure formed and recognised
in accordance with section 6 of the
Eastern Cape Traditional Leadership and Governance Act 2017 (‘the
Act’). Mr Mdodana
appeared on behalf of both applicants.
[5] The
first respondent is a Member of the Executive Council for Cooperative
Governance and Traditional
Affairs in the Province of the Eastern
Cape (‘the MEC’).
[6] The
second respondent is the Premier of the Eastern Cape (‘the
Premier’) cited in his capacity
as a person entrusted with the
responsibility to recognise traditional leaders in the Province of
the Eastern Cape. Mr Ngumle appeared
on behalf of the first and
second respondents.
[7] The
third and fourth respondents are cited as interested parties in the
proceedings. No relief is sought
against them. Mr Mtshabe appeared on
behalf of the third and fourth respondents.
The factual matrix
[8] In
the era of the former Republic of Transkei, the late Nkosana Velile
occupied the position of the headman
of the amaNdanya community.
After leaving his position as a headman, he stayed with the first
applicant’s mother who was
his second wife.
[9] Preceding
his death he signed a will
(‘umyolelo’
) where he
bequeathed the headmanship and the land of the amaNdanya Tribal
Authority to the first applicant. However, when it came
to the issue
of the land the master of the High Court declined to administer the
will stating that he has no jurisdiction and authority
to administer
a land that falls under the Tribal Authority. Subsequently, some
members of the amaNdanya community held a meeting
where they
identified the third respondent as their headman. For the purposes of
fulfilling the wishes of the late Nkosana Velile,
on 02 April 2018,
the first applicant and his siblings from the second wife’s
lineage held a meeting where they identified
the first applicant as
the headman of the amaNdanya. The meeting was held under the
chairpersonship of one of the aunts Nomawonga
Mapipa (‘udadobawo
Nomawonga’).
[10] The
third respondent approached the court under case number 3067/2019
challenging
umyolelo
,
the matter of which is still pending before court. Despite this, the
MEC under provincial gazette No. 4483/2020 dated 26/11/2020
[2]
expressed his intention to recognize the first applicant as the
headman of the amaNdanya community.
[11] Consequently,
the third respondent launched an application under case No. 4048/2020
against the MEC.
By way of summation, the third respondent sought to
interdict the MEC from identifying the first applicant as the headman
of the
amaNdanya community. Around February 2021, the parties were ad
idem that the issue of the suitable headman should be investigated
by
the MEC.
[12] On
09 February 2021, the parties obtained an order by consent under case
No.4048/2020. The order reads
thus,
“
Having
considered the documents filed of record and hearing Mr Mtshabe, for
the applicant:
IT IS ORDERED BY CONSENT
THAT:
1.
The
application, in respect of both PART A and PART B, is stayed pending
the investigation by the 1
st
Respondent, the MEC for Co-operate Governance and Traditional
Affairs, on the suitable candidate for the Headmanship of AmaNdanya
Administrative Area, Ngqeleni, between the Applicant and the 7
th
Respondent;
2.
That
costs of the application are hereby reserved.”
[13] In
the court order dated 09 February 2021, Ntsika Mkono was cited as the
first applicant and amaNdanya
royal family as the second applicant,
Saziso Mkono was cited as the seventh respondent. Around March 2021,
the MEC appointed a
panel which concluded its investigation into the
suitable candidate to be recognised as the headman of the Amandanya
community
[3]
.
The MEC jotted its findings in a letter dated 14 July 2021. The
letter which was addressed to the first applicant demonstrates
the following extracts:
“
FINDINGS
The findings by the panel
are based on presentations received from parties to the dispute and
historical evidence from the archive
consulted by the panel.
Finding 1
1.
The
headmanship of Ndanya location is hereditary as it has been evidently
passed from one heir to another over generations for over
a century.
Finding
2
2.
With
regard to the meeting of the Ndanya Royal Family to nominate a
successor, the findings are:
(a)
The
meeting was not properly convened as Mrs Nomawonga Mapipa was not
qualified to convene such a meeting in terms of the custom
applicable
to amaNdanya, although she qualifies to be a full participant and
that the senior house of Velile Mkono and their paternal
uncles were
not involved in convening the meeting as per the custom.
(b) The
composition of the meeting was not adequately representative of
amaNdanya as a family as it was held
exclusive of other houses of
amaNdanya which used to be included before.
(c)
The
venue of the meeting was not in terms of custom as it was not held at
the Great Place that is, Bertie’s homestead at Mconco
Location
or the senior house of Velile Mkono. The custom does not permit the
holding of such a crucial meeting in the junior house
of Inkosi or
headman.
Finding
3
3. With
regard to the nomination of a successor to Velile Mkono:
(a) The
nomination of anyone for permanent recognition other than Lwazi
Mkono, who is currently
inkulu
-
the great son- of Velile upon the death of Mcoseleli, is at variance
with applicable customary law of practice of succession among
the
amaNdanya as a sub-tribe of AmaMpondo.
Neither
Ntsika nor Saziso Mkono have a legitimate claim to succession so far
in terms of the customary law and practice applicable
to amaNdanya.
(accentuation added)
(b) Either
of them can only be appointed on an acting capacity for Lwazi as long
as Lwazi is still alive
or Lwazi’s son in the unfortunate event
he dies, of course, such appointment would be on the recommendation
by the legitimate
royal family with active involvement of Lwazi and
amaNdanya royal family.
(c)
The
person who qualifies to succeed Velile Mkono or Mcoseleli Mkono in
terms of the applicable custom is Lwazi as inkulu of velile
upon the
death of Mcoseleli.
Upon the above findings
and its recommendations that the rightful heir to the position is Mr
Lwazi Mkono, I therefore communicate
that the Department will process
a resolution as per the findings which the rightful royal family is
to take into account.”
[14] On
27 July 2021, the royal family consisting of thirty-two members held
a meeting where they identified
the fourth respondent as the headman
of the amaNdanya community. On 15 October 2021, the Premier through
the government gazette
No.4053/2021 expressed his intention to
recognise the fourth respondent as the headman.
[15] Aggrieved
by the findings of the MEC, the first and second applicants
approached this court for an order
in terms of Uniform Rule 53
of the Uniform Rules of Court. The relief sought by the applicants in
the amended notice of motion
reads as follows:
“
Reviewing
and setting aside the First Respondent’s decision
conveyed in a letter dated 14 July 2021 addressed to the
First
Applicant and annexed to the First Applicant’s founding
affidavit as ‘SM 14’.
Declaring the First
Respondent’s act of appointing a panel to investigate the
headmanship of Ndanya Administrative Area, Ngqeleni
between the First
Applicant and the Third Respondent to be unlawful and of no legal
force and effect whatsoever.
Declaring that the
resolution of Ndanya Administrative Area Headmanship dispute by the
Second Applicant on the 3
rd
April 2018 remains the lawful
determination of who should be the headman of Ndanya Administrative
Area between the First Applicant
and the Third Respondent.
Declaring unlawful the
Second Respondent’s stated intention to recognise the Fourth
Respondent as headman of Ndanya Administrative
Area published in the
Provincial Gazette No. 4653 dated 25 November 2021 being Provincial
Notice 176/2021.
Directing the Second
Respondent or the First Respondent to recognise the First Applicant
as the Headman of Ndanya Administrative
Area in the district of
Ngqeleni.
That the First and Second
Respondent be directed to pay the costs of the application jointly
and severally with the Third and Fourth
Respondent to pay the costs
of the application in the event of them opposing same, in which event
they will be liable together
with the First and Second Respondent
jointly severally the one paying each other to be absolved.
Granting the Applicants
such further and/or alternative relief as the Honourable court deems
meet
(sic)’”
[16] In
opposing the application, the third and fourth respondents
filed affidavits. The third respondent’s
affidavit and the
confirmatory affidavit of Dickson Mkono, a member of the royal
family, demonstrate that all the erstwhile headmen
of the amaNdanya
community had been the first sons of the great house which were
identified by the royal family. They contended
that the royal family
that identified the first applicant as the headman was not properly
constituted. The second
applicant, so they averred, failed
to resolve the dispute arising from the headmanship of the amaNdanya
community. On 06 June 2021,
the MEC and the Premier filed the notice
to oppose the application but filed no opposing papers.
The legal framework
[17] Section
211 of the Constitution
[4]
protects the institutions that are unique to customary law. Within
customary law, the institution, status and the role of traditional
leadership are duly recognised subject to the provisions of the
Constitution
[5]
. In terms
of the Constitution, the national
[6]
and provincial legislation may provide for the establishment of
houses of traditional leaders
[7]
.
Pertaining to the issue of headmanship, as in the present case, the
provincial legislation applicable is the Eastern Cape and
Traditional
Affairs Act 1 of 2017. The Act aims,
inter
alia
,
to consolidate the laws governing traditional institutions in
the Eastern Cape Province (‘the Province’), including
the
recognition of traditional communities as well as the establishment
and recognition of principal traditional councils. The
Act further
aims at providing for the recognition of traditional leaders, their
functions and their removal from the office.
[18] Section
23 of the Act provides,
“
Whenever
the position of a traditional leader is to be filled-
(a)
The
relevant royal
family
must
within
14 days after the position becomes vacant-
(i)
Identify
a person who qualifies in terms of the customs of
the
relevant traditional community to
assume
the position in question after taking into account whether any
grounds referred to in section 24 (1) apply to that person;
and
(ii)
Through
the relevant customary structure, inform the Premier of the
particulars of the person identified to fill the position and
of the
reasons for the identification of that person; and
(b)
(i) the
Premier
must subject to subsection (5) by notice in the
Provincial
Gazette,
invite
comments on the intended recognition of the person identified by the
royal
family
as
a
traditional
leader
and;
(iii)
Comments
as contemplated in subsection (b)(i), must be submitted within 21
days of the date of the publication of the notice.”
[19]
The
conflict resolution procedures are governed by section 36 (2) of the
Act which empowers the king or queen’s council or
principal
traditional council to refer the dispute to the Provincial House of
Traditional Leaders. If for whatever reason the Provincial
House of
Traditional Leaders is unable to resolve the dispute, such must be
referred to the Premier. The Premier must seek to resolve
the dispute
after having consulted the parties involved in the dispute; the king
or queen's council; the principal traditional
council; the provincial
traditional council and the Provincial House of Traditional
Leaders
[8]
.
The preliminary
issues
[20]
Before
I traverse to the main issues, it is imperative to dispose of a crisp
question of procedure that was raised by Mr Ngumle
on behalf of the
MEC and the Premier. Mr Ngumle, although failing to file affidavits
sought leave to file heads of argument which
I granted. Relying,
in part, on the impugned Rule 53 record, he argued that the matter
must be referred for oral evidence
in terms of the Uniform Rule
6(5)(g) of the Uniform Rules of Court
[9]
.
The issue of customary practise, so he contended, cannot be resolved
on the papers filed. Messrs Mdodana and Mtshabe held a contrary
view
and argued that in the spirit of the expeditious resolution of this
matter, the court is empowered by the Plascon Evans Rule
[10]
to adjudicate and resolve the disputes through the affidavits. Mr
Mdodana went on further and argued that the issue of customary
practice was settled by the Traditional Council.
[21]
The
principle is that a real, genuine and accentuated dispute of fact can
exist only where the court is satisfied that the party
who purports
to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. In
Frank
v Ohlsson’s Cape Breweries Ltd
[11]
.
Innes C.J (as he then was), said:
“
But where the
facts are really not in dispute, where the rights of the parties
depend upon a question of law, there can be no objection,
but on the
contrary a manifest advantage in dealing with the matter by the
speedier and less expensive method of motion”.
[22]
The
approach of relying on the defied Rule 53 record in support of the
application for the referral of the matter for oral evidence
with no
affidavits filed is impermissible. Messrs Mdodana and Mtshabe were in
agreement that this matter could be disposed of through
the motion
proceedings. It is also worth mentioning that, considering the
circumstances of this particular matter, it would even
be undesirable
for the court to
mero
motu
raise a question of the dispute of fact, especially because there is
no basis to do so
[12]
.
In my opinion, the facts are a common cause and largely necessitate a
finding on the question of law. If necessary, the application
of the
Plascon-Evans Rule will apply. For the reasons set out above, and
with respect, there is no cogency in the argument raised
by Mr Ngumle
in this regard.
[23]
It
is gleaned from the fourth respondent’s answering affidavits
that certain points of law were raised namely, misjoinder
and
non-joinder. These issues were not seriously pursued in the written
and oral arguments presented before the court. To avoid
prolixity, no
finding will be made since these issues are not the essential
ingredients of the case.
The impugned record
[24] It
is well-established that
the primary purpose of Uniform Rule 53 is to facilitate and regulate
review applications
[13]
.
In
terms of Uniform Rule 53 (b) the party seeking a review shall call
upon the Chairperson or the Presiding officer to dispatch
within 15
days of receipt of the notice of motion, to the Registrar, the record
of the proceedings sought to be reviewed. The record
enables the
court to fully assess the lawfulness or otherwise of the
decision-making process.
[25]
In
the matter under consideration, the record titled ‘NDANYA
HEADMANSHIP SUCCESSION DISPUTE INVESTIGATION REPORT BY THE PANEL
OF
THE MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF COOPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS (EASTERN CAPE) 2021’
is
found on pages 92-167 of the court’s bundle( the Rule 53
record/ the record). The record is accompanied by certain attachments
that were submitted by the interviewees during the consultation and
or investigation process.
[26] It
is common cause that the record is a result of the court order that
was obtained by consent on 09
February 2021. On 24 February 2021, the
MEC appointed a panel comprising of Mr Malibongwe L.Ngcai (‘the
Chairperson of the
panel’), Mrs Nomsa Mabanga and Mr Vuyo
Stofile. Various meetings between the members of the panel appointed
by the
MEC(‘the panel’), the first applicant, the third
and fourth respondents, Chief Bokleni, the Gibisela traditional
council’s
representative, King Ndamase Ndamase and many other
relevant parties were held.
[27] Gathering
from the record and the affidavits filed, the genealogy of the
amaNdanya is uncontroverted.
The AmaNdanya is a traditional community
at the level of headmanship which is a branch of the AmaKhonjwa
sub-tribe. Administratively,
the community is under Gibisela
Traditional Council in the magisterial district of Ngqeleni. The
AmaNdanya’s Traditional
Council is under the Nyandeni Kingship
an area which used to be called Western Pondoland.
[28] The
last incumbent in the position of headmanship was Celuxolo
Mkono(Nkosana Celuxolo) who succeeded
Mcoseleli after their father
Nkosana Velile left the office. Nkosana Velile had two wives,
Noncedile Mildred Mkono of the Great
House (‘the Great wife’)
and Nonzwakazi Elizabeth Mkono of the Right-Hand House(‘the
Right-Hand wife’).
[29] The
Great wife bore four children: a daughter named Nonkosazana followed
by three sons: Mcoseleli(deceased),
Lwazi, Ntsika and Celuxolo.
Conversely, the Right-Hand wife bore three sons Silulami,
Saziso, and Likhona and three daughters
Khuthala,
Kholiswa(deceased) and Mfusikazi.
[30] During
the consultation, the first applicant informed the panel that
amaNdanya adheres to the distinct
law of succession that differs from
that of amaKhonjwa and amaFaku. According to the record, udadobawo
Nomawonga and the first
applicant were agreeable that the succession
position of amaNdanya is always through
umyolelo
of
inkosi
.
When asked to explain whether the customary procedure to nominate the
first applicant as a headman of the amaNdanya was followed,
the first
applicant asserted that all the elders of the great house which
included Nonkosazana, Lwazi and Ntsika were invited but
did not
attend the meeting.
[31] When
consulted by the panel, the third and fourth respondents gave insight
on the customary practice
of amaNdanya. They expressed that when
Inkosi/Nkosana dies, the royal family convenes a meeting and
identifies anyone from the
Great wife as a headman. The elder
son-
inkulu
is by default the successor unless his character is
deemed unfit for the role. The sons of the Right-Hand wife could only
be nominated
in circumstances where there were no suitable heirs from
the Great wife’s lineage.
[32] Chief
Bokleni who represented the second applicant informed the panel that
the amaNdanya headmanship
was a gift from amaFaku. He asserted
that the identification of the first applicant as a headman was not
based on
umyolelo
but rather on the decision of the right-hand
wife’s sons and daughters. According to Chief Zuzekile Bokleni
who was also
interviewed, Silulami, although he was an elder son of
the Right-Hand wife could not be nominated because he does not have a
strong
character. He further stated that it was not customary for a
Great wife to birth an heir or a successor.
[33] King
Ndamase Ndamase informed the panel that he is not familiar with the
custom of
umyolelo
among amaMpondo. Nkosazana Malahle also
indicated that in traditional leadership,
umyolelo
is not
applied; instead
, inkulu
is nominated as the successor. He
stated that the
inkulu
is
intlabamkhonto
- the one who
is the custodian of the customary spear and must always reside at the
Great Place. Inkosi Gxaba added that
inkulu
automatically
assumes the position from birth, the identification is only a
formality. King Ndlovuyezwa informed the panel that
the son from the
junior house could only be appointed as a headman in an acting
capacity. The Kingship advised the panel that the
aunt-
u dadobawo
is permitted to attend the meetings where a headman is nominated
even if she is married, but has no authority to convene and chair
a
meeting.
The grounds of
review
[34] In
his founding affidavit, the first applicant raised the following
grounds of review:
“
34.1 The
headmanship dispute of Ndanya Administrative Area was resolved at the
Gibisela Traditional Council
on 03 April 2018 in Nyandeni Kingdom in
accordance with the provisions of Section 31(1) of Act No 1 of 2017
read with the provisions
of the Traditional Leadership and Governance
Framework Act No. 41 of 2003(as amended).
34.2 There
was no basis in law, to act in terms of Section 36(2) of Act No
1 of 2017 once the second
applicant had resolved the dispute as it
did.
34.3 There
was lacking jurisdictional facts for the first respondent to exercise
power conferred on the second
respondent (the Premier) by section
36(2)(d) of Act No 1 of 2017.
34.4 The
court order dated 9 February 2021 confined the investigation to
suitability between the adversaries
at the time. It did not open an
investigation to include the fourth respondent.”
[35] In
his answering affidavit, the fourth respondent contended that the
investigation was unanimously approved
by all the parties involved in
the litigation. The investigation traced the hereditary status of
headmanship and concluded that
neither the first applicant nor the
third respondent is eligible to be recognised as the headman.
Furthermore, the fourth respondent
maintained that the protocol
preceding his identification as the headman of the amaNdanya was
procedurally followed.
Discussion and
analysis
[36] In
the amended notice of motion which is accompanied by the founding
affidavit, the first applicant
did not specify whether the
proceedings ought to be reviewed in terms of the common law
[14]
or the Promotion of Administration of Justice Act ( the PAJA)
[15]
.
However, reference to the PAJA was correctly made in the applicants’
supplementary heads of argument. The PAJA is
the most
significant source of judicial review by the court, drawing its own
legitimacy from section 33 of the Constitution which
provides,
“
Just
administrative action
(1)
Everyone
has the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone
whose rights have been adversely affected by the administrative
action has the right to be given
reasons.
(3) National
legislation must be enacted to give effect to these rights, and must-
(a) provide for the review
of administrative action by the court or,
where appropriate an independent and impartial tribunal………”
[37] In
his body of work, Cora Hoexter
[16]
says,
“…
..however
PAJA is now the primary or
default
pathway to review. (accentuation added). This follows logically from
its main purpose, which is to give effect to the constitutional
rights in s 33”. (footnote omitted)
[38] In
Batho
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[17]
,
O’Regan
J confirmed that the PAJA provides the foundation for the cause of
action for judicial review of administrative action
and not from the
common law as it was previously. In paragraph 25 of the judgment she
provided the summary of the post-PAJA position
as follows:
“
The provisions of
s 6 divulge a clear purpose to codify the grounds of judicial review
of administrative action as defined in PAJA.
The cause of action for
the judicial review of administrative action now ordinarily arises
from PAJA, not from the common law as
in the past”.
[39]
In
this matter, it is common cause that the decision taken by the MEC is
an administrative action
[18]
.
Furthermore, the applicant's case falls within the realm of the PAJA.
Considering the pronouncement made by the Constitutional
Court
[19]
,
as highlighted at paragraph 38 of this judgment, section 6
[20]
of the PAJA sheds light on how I should approach these review
proceedings. Section 8 of the PAJA deals with the remedies that are
applicable in proceedings for judicial review. I shall now proceed to
deal with the grounds of review.
Was the
administrative action lawful and reasonable?
[40] The
most significant principle of administrative law is that the exercise
of the power must be authorised
by the law. The question is whether
the dispute which arose from the headmanship of the Ndanya
Administrative Area was resolved
by the Gibisela Traditional Council.
One must also examine whether the MEC was authorised to act in
accordance with section (36)
(2) of the Act as he did. I am acutely
aware that the court’s responsibility does not entail a
thorough analysis of the administrative
action’s merits. The
court cannot usurp the function of the administrative agency
[21]
.
This notwithstanding, it is worth mentioning that the administrative
action has the substantial and procedural ingredients. For
that
reason,
inter
alia,
the
highlighted grounds of review require a consideration of the brief
historical background of this dispute.
[41] From
time immemorial, there has been a dispute over the headmanship of
amaNdaya. Upon consideration
of the papers filed, it was known by
Chief Bokleni, the representative of the Gibisela Traditional Council
and others that Nkosana
Velile’s sons are uncontrollable and
the dynamics of polygamy are the core cause of the family feud. It
was expected of Nkosana
Velile’s sons including the sons and
daughter of the Great wife to form part of the meeting when the first
applicant was
identified as a headman. It has been established that
the fourth respondent and his siblings were not present in the
meeting where
the first applicant was identified as the headman. It
was further acknowledged by Dickson Mkono (a royal member),the third
and
fourth respondents that contrary to the customary practice
udadobawo Nomawonga chaired the meeting which identified the first
applicant
as the headman of the amaNdanya.
[42] The
whole procedure that was adopted in identifying the first applicant
as the headman led to the institution
of civil proceedings under case
No.4048/2020. The Gibisela Traditional Council was cited as the fifth
respondent in the proceedings.
[43] Undisputedly,
the parties’ legal representatives constituted a meeting where
it was agreed that
the MEC must be given an opportunity to
investigate and determine who should be the headman of kwaNdanya.
This settlement was approved
by the court and is legally binding
between the parties. Considering the above, it is axiomatic that in
retrospect the Gibisela
Traditional Council under the leadership of
Chief Blokleni doubted its own recommendations and was therefore
unable to resolve
the dispute hence it entered into the legally
binding settlement which led to the investigation by the MEC. If the
dispute was
resolved, there would be no basis for the Gibisela
Traditional Council under the leadership of Chief Bokleni to enter
into a legally
binding agreement authorising MEC to investigate
the dispute in terms of section 36(2) (d) of the Act. In the
circumstances,
the argument positing that the dispute was resolved by
the Gibisela Traditional Council is implausible. The recommendations
of
the Gibisela Tribal Council where the first applicant was
identified as the headman were overtaken by the events. In this
regard
the horse has bolted and with respect, the applicants are
grasping at straws.
[44] Section
6(2) (a) (i) of the PAJA envisions judicial review where the
administrator was not authorised
by the empowering provision to take
administrative action. The general rule is that powers given to one
administrator must be exercised
by that administrator and not by some
other unauthorised person or body
(delegatus
delegare non-potest).
The next question is whether the first respondent was authorised by
any empowering provision to act in terms of Section 32(2)(d)
of the
Act as he did. Referring to the case of
Fedsure
Life Assurance Ltd and Others v Great Johannesburg
MetropolitanCouncil and Others
[22]
,
Mr Mdodana correctly argued that in every sphere, the legislature and
the executive are constrained by the principle that they
may exercise
no power and perform no function beyond that which is conferred upon
them by the law. It is trite that the exercise
of public power must
strictly comply with the principle of legality
[23]
.
[45] To
answer the question raised, it is apposite to pass through the
provisions of section 88 of the Act.
This provision empowers the
Premier to delegate any powers conferred on him to the MEC excluding
the powers to make regulations.
Therefore, by investigating this
dispute the MEC acted within the scope of his powers as delegated to
him by the Premier. It was
always known through the exchange of
letters between the MEC and the parties involved in this matter that
his delegated authority
is statutorily prescribed.
[46] Upon
proper examination of the objective facts, it is my view that it was
incumbent upon the MEC to
investigate because: the dispute could not
be resolved by the amaNdanya community, the traditional leaders, the
king and the Provincial
House of Traditional leaders. It
is common cause that the Provincial House of Traditional
Leaders recused itself in
the matter since it was already pending
before the court
[24]
;
the issues relating to customary practice and the dispute on who
should take over the headmanship were intertwined; and further,
the
MEC was authorised to investigate and determine a candidate through a
legally binding document, the court order. The argument
postulating
that the report and its findings should be set aside is tantamount to
an application for the revocation of the very
same court order dated
03 February 2021 through a backdoor.
[47] There
was a contention that the MEC acted beyond his powers by recognising
the fourth respondent as
the headman of the amaNdanya. Mr Mdodana
argued that the court order limited the MEC to investigate and
determine a headman between
the first applicant and the third
respondent. Respectfully, this argument has no merit. In the
erstwhile proceedings, case No.
4048/2020 the amaNdanya royal family
was cited as the second applicant. Another entity called amaNdanya
royal family chaired by
udadobawo was also cited as the fifth
respondent. Although no names of the royal family were specified in
the papers filed, it
was obligatory upon the MEC to include the royal
family in its consultation and make a determination as authorised by
the court.
The Act defines the royal family as follows:
“
Royal
family means 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 the custom, and
includes, where applicable other family members who are close
relatives
of the ruling family.”
[48] The
fact that the fourth respondent was birthed by the Great wife is
undisputed. The seniority of the
Great wife in the family remains
uncontroverted. In terms of the definition of the royal family, the
offspring of the great-wife
are immediate relatives who qualify to be
part of the investigation and the determination process as authorised
by the court. In
my opinion, there is no shred of evidence to suggest
that the MEC acted arbitrarily or capriciously.
[49] Mr
Mdodana further challenged a document that was completed in the
identification of the fourth respondent
as Inkosana of the
amaNdanya
[25]
.
The nub of his complaint is that such a document is clearly a nullity
on the basis that a repealed legislation was quoted in the
document.
The Act applicable in these proceedings is Act No.1 of 2017 and not
the Traditional Leadership and Governance Act
No.4 of 2005 as
reflected in the document. The question is whether the form that was
completed which reflects a repealed law nullifies
the entire process
of identification as prescribed by Section 23 of Act 1 of 2017.
[50] Mr
Mtshabe submitted that the members of the royal family may not be
legal experts and educated people.
For that reason, he argued, they
may not have had a clear knowledge of the legal provisions that were
applicable in the identification
process. This argument was never
advanced in the affidavits filed. To settle this issue, it should be
observed that section 23
of the Act and the regulations applicable
thereto, do not prescribe the paper work that needs to be filled out
in the identification
process. In my considered view, the goal of the
identification of the headman was achieved. Despite the fact that a
repealed legislation
is quoted in the document that was completed to
identify the fourth respondent as the headman, there is nothing to
fault in the
route that was followed in achieving such a goal. I,
therefore, conclude that the decision of the MEC fell within the
ambit of
reasonableness as required by the PAJA and the Constitution.
Was the
administrative action procedurally fair?
[51] It
is well settled that in every administrative action, the rules of
natural justice ought to be followed.
Procedural fairness in the form
of
Audi
alterm
partem
affords the participants an opportunity to state their case and
participate in the decisions that will affect them. In the bulky
record of the administrative action proceedings, the applicants have
failed to identify which of the areas in the record were procedurally
unfair. Undisputedly, all the relevant role-players including the
applicants were: notified of the prepared administrative action
[26]
;
given an opportunity to be heard and given an opportunity to prepare
and submit all the relevant information and or documents
that would
assist in the investigation process. They all participated and played
their key roles in the administrative action proceedings.
[52] Despite
the fact that the panel noted intricacies in the cultural practice of
amaNdanya,
the evidence presented did not establish any
unfairness, bias, or perceived bias
in the
administrative action proceedings. Consequently, the applicants have
failed to make up a case for the relief sought.
Order
[53] The
following order is issued:
1.
The
application is dismissed.
2.
The
first and second applicants are ordered to pay the costs of the third
and fourth respondents jointly and severally, the one
paying the
other to be absolved.
N CENGANI-MBAKAZA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
APPEARANCES
:
Counsel for the
Applicants
: Adv. N. Mdodana
Instructed
by
: Mr V.M Sapulana
DZ
Dukada &Co
73
Nelson Mandela Drive
MTHATHA
Counsel for the First and
Second Respondent : Adv: L.L. Ngumle
Instructed
by
: State Attorney
MTHATHA
Counsel for the Third and
Fourth Respondent : Mr NZ Mtshabe
137
York Road
MTHATHA
Date
Heard
: 01 February 2024
Date
Delivered
: 30 April 2024
[1]
The
Minister of Justice v v Nicko Ntuli, Case No CCT 17/95;CCT 15/97
heard on 22 May 1997 and delivered on 5 June 1997; see also
MEC for
the Department of Public Works and Others v Ikamva Achitects (PTY)
Ltd(596/2008) [2024]ZAECBHC 6(25 April 2024) para
1.
[2]
The government gazette was published by the Department of
Cooperative Gorvenance and Tradition Affairs. It reads,
THE
INTENDED RECOGNISION OF THE PERSONS IDENTIFIED BY THE ROYAL FAMILIES
AS TRADITIONAL LEADERS IN THE EASTERN CAPE.
‘I,
Xolile Nqatha, Member of the Executive Council responsible for the
Co-operative Governance and Traditional Affairs in
the Eastern Cape
Province under the power delegated to me by Section 23 (1)(b)(i) of
the Traditional Leadership and Governance
Act, 2017 (Act No. 1 of
2017) and affetr having informed the Provincial House of Traditional
Leaders of such intended recognitions,hereby
make known for general
information the intended recognition of persons identified by the
royal families as traditional leaders
in the Eastern Cape per
attached schedule. Comments (if any) must be submitted within 21
days of the date of the publication
of the notice as contemplated in
subsection (b)(i) of the same act’. In terms of the annexure,
SAZISO MKONO (the 1
st
applicant) is identified as such.
[3]
In a letter dated 23/03/2021, the MEC notified the first applicant
that a panel was appointed. Further to that, he was advised
to
prepare for an interview and focused on the following area: the
geneology of Amandanya headmanship, Customary law of succession(the
houses and their seniorities; history of succession;houses of the
late headman, precedence of a will.
[4]
The Constitution of the Repuoblic of South Africa, Act 108 of 1996,
(the ‘Constitution’)
[5]
Section 211(1) of the Constitution.
[6]
The national legislation is the Traditional Leadership and
Government Framework Act, 2003.
[7]
Section 211(2) of the Constitution provides, ‘To deal with the
matters relating to traditional leadership, the role of
the
traditional leaders, customary law and the customs of communities
observing a system of customary law- (a) national or provincial
legislation may provide for the establishment of houses of
traditional leaders; and (b) national legislation may establish a
council of traditional leaders.
[8]
Section 36(2)(d)(i),(ii) and (iii) of the Act.
[9]
Uniform Rule 6(5)(g) of the Uniform Rules of court provides that
where an application cannot properly be decided on affidavit,
the court may dismiss the application or make such order as it deems
fit with a view of ensuring a just and expeditious decision.
[10]
Plascon- Evans Paints Limited v Van Riebeeck Paints Pty Ltd (53/84
[1984] ZASCA). The Rule is provided at para as follows,’
where
there is a dispute as to the factsa final interdict should only be
granted in the notice of motion proceedings if the facts
as stated
by the respondents together with the admitted facts in the
applicant’s affidavits justify such an order….where
it
is clear that facts, though not formally admitted cannot be denied,
they must be regarded as admitted..’’see also
Stelenbosch Winery (Pty)Ltd 1957(4) SA 234 (C)
[11]
1924 AD 289
at. 294
[12]
Santini Publishers CC v Waylite Marketing CC 2010(2) SA p.53.
[13]
Jockey Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(AD) at 661 E.
[14]
At common law, the the three well established grounds of review
which are now missing from the list expounded by PAJA were:
vagueness, rigidity, and fettering.
[15]
Promotion of Just Administrative Justice Act 3, 2000. The Act gives
effect to the right to administrative action that is lawful,
reasonable and procedurally fair and to the right to written reasons
for administrative action as contemplated in section 33
of the
Contitution.
[16]
Administrative law in South Africa, Cora Hoexter page 114 at para b.
[17]
2004(4) SA 490 CC at para 25.
[18]
Administrative action means a decision taken or any failure to take
a decision by by –(a) any organ of the state when-(i)
exercising a power in terms of the Constitution or a provincial
Constitution, or(ii) exercising a power in terms of any legislation.
[19]
See above fn 17.
[20]
Section 6 of the PAJA provides, ‘1. Any person may institute
proceedings in a court or a tribunal for the judicial review
of an
administrative action.
2. A court or tribunal
has the power to judicially review an administrative action if-(a)
the administrator who took it-(i) was
not authorised to do so by the
empowering provisions;(ii) acted under the delegation of power which
was not authorised by the
empowering provision; or(iii) was biased
or reasonably suspected of bias;(b) a mandatory and material
procedure or condition
prescribed by an empowering provision was not
complied with;(c) the action was procedurally unfair;(d) the action
was materially
influenced by an error of law;(e) the action was
taken-(i) for a reason not authorised by the empowering
provision;(ii) for an
ulterior purpose or motive; (iii) because
irrelevant considerations were taken into account or relevant
considerations were not
considered;(iv) because of an unauthorised
or unwarranted dictates of another person or body;(v) in bad
failt;or (vi) arbitrarily
or capriously;(f) the action itself (i)
contravens the law or is not authorised by the empowering provision;
or (ii) is not rationally
connected to-(aa) the purpose for which it
was taken;(bb) the purpose of the empowering provision;(cc) the
information before
the administrator;or(dd) the reasons given for it
by the administrator;…………….
[21]
See above fn.17.
[22]
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at para 58.
[23]
Merifon (Pty) Limited v Greater Letaba Municipality &Another
[2022] ZACC 25
at para 1.
[24]
In a letter dated 14/07/2021 addressed to the first applicant, the
MEC notified the him that on 16 May 2019 the House of Traditional
Leaders attended a claim lodged by Ntsika Mkono for the Ndanya
Adiminstrative Area. The MEC further advised the first applicant
that the House of Traditional Leaders resolved that it had no power
to adjudicate over a matter that had a court judgment. ‘SM
14’
at page 62 of the index bundle.
[25]
The document is annxed at page 239 of the bundle and is titled:
ROYAL
FAMILY RESOLUTION FORMS. IDENTIFICATION OF A PERSON TO ASSUME THE
POSITION OF
INKOSANA
/ACTING
INKOSANA/REGENT
.
The following are the extracts of the document: The amaNdanya
in a meeting held on 27 July 2021 identified Lennox Lwazi
Mkono of
Mchonco Administrative Area id number :…………
as Inkosana of Gibisela Traditional Council/
administrativeArea in
the district of Ngqeleni. In terms of the Traditional Leaders and
Governance Act, 2005 (Act no.4 of 2005)……………
[26]
Fn. 3
supra.