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2024
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[2024] ZAECMHC 82
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Jumba v Jumba and Another (2502/2023) [2024] ZAECMHC 82 (24 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.:
2502/2023
In the matter between:
CHIEF
KUTALA JUMBA
Applicant
and
LWAZI
JUMBA
1
st
Respondent
PREMIER
OF THE EASTERN CAPE
2
nd
Respondent
JUDGMENT
MQOBI
AJ
Introduction.
[1]
T
his is an opposed application in which the
applicant, a senior traditional leader and head of the Jumba
Traditional Council, in
Tabase Administrative Area, Mthatha seeks a
final interdict to restrain the first respondent from holding himself
out as the head
man
of
the same administrative area when he has not been appointed as such
and from interrupting and interfering with the programs of
the Jumba
Traditional Council.
Facts.
[2]
The applicant alleges that the first respondent holds himself out as
headman
of Tabase
Administrative Area and continues to harm the community of that area
in the following respects:
(a)
he issues out letters meant for initiation
of boys from the administrative area.
(b)
he issues letters as if he is a headman and
has created for himself headman’s official stamp.
(c)
he continues to give instructions to the
sub-headman and is obstructing them from communicating with the
applicant regarding traditional
affairs of the area.
(d)
he demarcates and allocates sites to people
in the area.
(e)
he charges a sum of R100.00 for each
service that he renders to community members.
(f)
he interrupts whatever program the
applicant plans for the benefit of the people of Tabase
Administrative Area, no4, for example
the applicant planned for the
office of the Community Safety of South African Police Service (SAPS)
to address the issue of the
prevalence of drugs and the danger they
cause to the youth in the area. The first respondent approached the
SAPS sector manager,
warrant officer Bebeza to cancel that
arrangement on the basis that he is the headman of the area and such
program never took effect.
[3]
The first respondent
claims that he is the
legitimate person to be appointed as the headman and that he was
identified as such by the Royal Family. It
is on this basis that the
members of the community approach him for advice.
[4]
He states that the applicant blocked his
appointment when she objected to his recognition as headman of Tabase
Administrative Area,
in response to a notice issued by the second
respondent on 15 October 2021.
[5]
He further states that the applicant was
never accepted as a wife by his family and her recognition as the
chief was rejected by
the members of the community.
[6]
The first respondent
does
not dispute:
6.1
t
hat the applicant is a recognised senior traditional leader
and head of
Jumba Traditional Council
.
6.2
that he was never recognized as the headman of
Tabase
Administrative Area.
6.3
that he
made and uses a headman’s
stamp but contends that he did so on the advice of a delegation from
Cogta.
6.4 that he completed
circumcision letters and appended a headman’s stamp upon
request by Mr Ngcali of Cogta.
[
7
]
The first respondent, however, denies that:
7.1
he
continues to give instructions to the sub-headman not to communicate
with the applicant regarding traditional affairs of the
area.
7.2
he demarcates and allocates sites to
people.
7.3
he
charges a sum of R100.00 for each service that he renders to
community members.
7.4
he
interrupts whatever program the applicant plans for the benefit of
the people of Tabase Administrative Area as alleged.
[
8
]
In his heads of argument and in court the applicant submitted that
the first respondent has not seriously and vigorously addressed
the
allegations made by the applicant against him and has failed to raise
a real, genuine and
bona -fide
dispute of fact.
[
9
]
The applicant further submitted that the matter should be decided
based on the application of the
Plascon-Evans
[1]
principles
in her favour.
[
10
]
The first respondent denies that any injury was committed to the
applicant and that there is no suitable alternative remedy.
[
11
]
He submitted that the criminal prosecution may be a suitable
alternative remedy and that it was also open to the applicant to
report his alleged conduct to the Royal Family.
Issues.
[
12
]
Whether the first respondent is holding himself out as the headman of
the Tabase Administrative Area in circumstances in which
he has not
been recognised as such in accordance with the law. If so, whether
the requirements for a final interdict have been
met.
The Law.
[1
3
]
The legal position regarding final interdicts is that the court can
only grant the final relief if the facts alleged by the applicants
which are admitted by the respondents in the answering affidavits
together with the facts alleged by the respondents justify the
granting of such relief.
[1
4
]
In
Plascon-Evans
Paints Lfirsimited v Van Riebeeck Paints (Pty) Ltd
[2]
this legal position was clarified and developed by Corbett JA as
follows:
“
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits which
have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances, the
denial by the respondent of a
fact alleged by the applicant may not be such as to raise a real,
genuine or bona fide dispute of
fact (see in this regard Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T), at
1163-5; Da Mata v Otto NO
1972 (3) SA 858(A)
, at 882D-H).
If
in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for cross-examination
under Rule 6(5)(g) of the Uniform Rules of Court (cf Petersen v
Cuthbert & Co Ltd
1945 AD 420
at 428; Room Hire case supra at
1164) and the Court is satisfied as to the inherent credibility of
the applicant’s factual
averment, it may proceed on the basis
of the correctness thereof and include this fact among those upon
which it determines whether
the applicant is entitled to the final
relief which he seeks (see eg. Rikhoto v East Rand Administration
Board and Another 1983(4)
SA 278 (W) at 283E-H). Moreover, there may
be exceptions to this general rule, as, for example, where the
allegations or denials
of the respondent are so far–fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers.”
[15]
For the applicant to succeed in her application, she has to satisfy
the requirements of a final interdict.
[1
6
]
In
Masstores
(Pty) Limited v Pick n Pay Retailers (Pty) Limited
[3]
, Froneman J, confirmed the requirements of a final interdict as
follows, (a) a clear right; (b) an injury actually committed or
reasonably apprehended; and (c) the lack of an adequate alternative
remedy
[4]
.
[17]
In
Levi
and
Another v Blankitny and Another
[5]
,
the
court held:
“
[63] The granting
of an interdict is discretionary
[6]
and the remedy of the interdict itself has been described as
unusual
[7]
.
The remedy of an interdict is termed discretionary in the sense that
a court may not grant an interdict in circumstances
where there is an
alternative remedy available to an applicant for an interdict and
which may satisfactorily safeguard the right
sought to be protected.
Put differently, the discretion of the court is bound up with the
question whether the rights of the party
complaining can be protected
by an alternative and ordinary remedy
[8]
.”
[18] In
Madikizela
v
Nkosi and Another
[9]
,
the court stated:
“
[9] A respondent’s
denial of a fact alleged by applicant may not be such as to raise a
real genuine or
bona- fide
dispute of fact. Furthermore, a
bare denial of applicant’s material averments cannot be
regarded as sufficient to defeat
the applicant’s right to
secure relief by motion proceedings in appropriate cases.”
[19]
The first respondent, notwithstanding his allegation that there are
material disputes of fact, did not make
an application to refer the
matter for oral evidence. Thus, as far as the disputes are concerned,
this matter falls to be determined
on the basis of what is stated in
the first respondent’s answering affidavit.
[20]
In any event my view is that the first respondent has not seriously
and unambiguously addressed the facts
said to be disputed,
consequently he has failed to raise a real, genuine and
bona-fide
dispute of fact.
Clear right.
[21]
In the case of
Levi,
supra
, the court
stated:
“
[61]
To determine whether an applicant has a clear right is a matter of
substantive law
[10]
.
Whether
that right is clear is a matter of evidence. In order therefore to
establish a clear right, the applicant has to prove on
a balance of
probability, facts which in terms of substantive law establish the
right relied on
[11]
.”
[22]
It is common cause that the applicant was recognised as a senior
traditional leader and head of Jumba Traditional
Council in Tabase
Administrative Area. n terms of the relevant regulatory
framework,
[12]
she is vested
with a responsibility to oversee the institution of headmanship
within her area of jurisdiction.
[23]
It follows therefore that the applicant has established a clear
right.
An
injury actually committed or reasonably apprehended.
[24]
An injury actually committed or reasonably apprehended would justify
the granting of the relief sought by
the applicant.
[25]
The first respondent disputes that the applicant has established that
an injury was actually committed or
reasonably apprehended.
[26]
The applicant, in her founding affidavit sets out the harm committed
by the first respondent in holding himself
out as a headman of Tabase
Administrative Area, without having been recognised as such in terms
of the law.
[27]
Notwithstanding the admissions he made
[13]
,
the first respondent persists in denying having held himself out as a
headman of Tabase Administrative Area.
[28]
Based on the first respondent’s aforementioned admissions and
his continued possession and use of the
headman’s stamp, I find
that the first respondent through his conduct did hold himself out as
a headman of Tabase Administrative
Area thereby committing an injury
to the rights of the applicant and those of the community of Tabase
Administrative Area.
[29]
The applicant is apprehensive of the first respondent continuing to
hold himself out as a headman of Tabase Administrative
Area and
interfering with the programs of the Jumba Traditional Council.
[30]
It is common cause that the first respondent has a headman’s
stamp which he believes he is entitled to have based on
the advice of
the officials of COGTA and is clearly intending to continue using it.
[31]
I am of the view that, unless interdicted, the first respondent will
continue to hold himself out as a headman of Tabase Administrative
Area and continue to interfere with the programs of Jumba Traditional
Council.
[32]
In the absence of an undertaking by the first respondent to either
discontinue using the headman’s
stamp or destroy it, I am
satisfied that there is a reasonable apprehension of a further injury
or breach of the applicant’s
rights in this regard.
Absence
of an
adequate
alternative
remedy.
[33]
The final question for consideration is whether there is any similar
protection by any other ordinary remedy
through which the applicant
can protect the institution of headmanship within her area of
jurisdiction and correct any irregularities
which harm the community
members and the constitutionally recognised institution of
traditional leadership.
[34]
It is trite that the existence of another remedy will preclude the
grant of an interdict where the proposed
remedy will afford to the
injured party, a remedy that gives similar protection to an interdict
against the injury that is occurring
or is apprehended.
[14]
[35]
The applicant makes the following allegations in her founding
affidavit:
35.1 that she
approached Mthatha Central Police Station, to report the conduct of
the first respondent after she was advised
that the first
respondent’s conduct amounts to an offence in terms of the
Eastern Cape Traditional Leadership and Governance
Act.???
35.2 a criminal
case was opened under CAS No: 128/03/2023, and an investigator, Sgt
Zonele was assigned to handle the matter.
35.3 she was later
advised by Sgt Zonele that the police are not equipped to handle a
case of that nature.
[36]
The first respondent merely denies knowledge of the aforesaid
allegations and states that he was never called
by the police
regarding the allegations that a criminal case was opened against him
by the applicant.
[37]
In court, the first respondent submitted that criminal prosecution
constituted an alternative remedy, but was not pursued by
the
applicant.
[38]
He does not seriously dispute that the applicant approached the
police and opened a criminal case against
him and that she was
advised that the police were not equipped to handle her complaint.
[39]
Based on the detail provided by the applicant, I am satisfied that
she indeed opened the criminal case against
the first respondent and
was advised as stated in her affidavit. In any event opening a
criminal case against any person ordinarily
results in prosecution,
which does not prevent the ongoing threat to the applicant’s
rights.
[40]
Consequently, I find that the laying of the criminal charges against
the first respondent does not and did
not constitute an alternative
and ordinary remedy to the applicant.
[41]
The first respondent further submitted that reporting his conduct to
the Royal Family would have constituted
an alternative remedy for the
applicant. I disagree. Besides, the first respondent has not
explained how referring the matter would
have been an
effective remedy.
[42]
I agree with the applicant that there is no satisfactory alternative
remedy which can afford her the similar protection
to that afforded
by an interdict.
[43]
I am of the view that the granting of the final interdict will not
infringe on any of the first respondent’s
constitutional rights
neither has the first respondent alleged that there would be such an
infringement. Instead, the interdict
will restrain the first
respondent from discharging responsibilities which lawfully vest in a
traditional leader.
[44]
I am satisfied that the applicant has made out a case for the grant
of a final interdict against the first respondent.
Costs.
[
45] I find no basis for departing from the general rule that costs
follow the result.
Order.
[46]
In the result, I make the following order:
1.
The first respondent is interdicted and restrained from holding
himself out as
a headman of Tabase Administrative Area and
interfering with the programs of the Jumba Traditional Council.
2.
The first respondent is ordered to stop discharging any functions of
a headman,
including the following:
(a)
u
sing
a headman’s stamp for any purpose.
(b) completing
forms and/or issuing any letters which ought to be issued by a
headman.
3.
The first respondent is
directed to pay costs of this application.
MQOBI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Applicant:
Mr
Msindo
Instructed
by:
V.
V. Msindo & Associates Inc
Mthatha
For
the Respondents:
Mr
Mantyi
Instructed
by:
Mantyi
Attorneys
Mthatha
Heard
on:
15
August 2024
Delivered
on:
24
October 2024
[1]
Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd, 1984
(3) SA 623 (A),
[2]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 9-10
[3]
2017
(1) SA 613
(CC) at para 8.
[4]
See also Setlogelo v Setlogelo
1914 AD 221
at 227. These requisites
have been restated countless times by this court, most recently in
Van Deventer v Ivory Sun Trading
77 (Pty) Ltd 2015 (3) SA 532 (SCA)
[2014] ZASCA 169
para 26, and Red Dunes of Africa v Masingita
Property Investment Holdings
[2015] ZASCA 99
at para 19. They were
affirmed by the Constitutional Court. Pilane and Another v Pilane
and Another
[2013] ZACC 3
;
2013 (4) BCLR 431
(CC) (Pilane) at para
38.
[5]
[2023]
ZAWCHC 149.
[6]
United
Technical Equipment Co (Pty) Ltd v Johannesburg City Council
1987
(4) SA 343
(T); Burger v Rautenbach
1980 (4) SA 650
(C) and
Grundling v Beyers
1967 (2) SA 131
(W).
[7]
Transvaal Property Investment Co v SA Townships Mining and Finance
Corp 1938 TPD 521.
[8]
Transvaal Property Investment Co at 351.
[9]
1
9408/2021)
[2023] ZAGPJHC 322.
[10]
1994 (3) SA 89
(BG) at 97–98.
[11]
LAWSA Vol. 11, 2
nd
Ed. 397.
[12]
Section
1 of the Traditional and the Khoisan Leadership Act 3 of 2019 and
Eastern Cape and Traditional Leadership and Governance
Act 1 of
2017.
[13]
Paragraph 6 above
[14]
Hotz
vs UCT (730/2016)
2016 ZASCA 159
(20 October 2016) at para 36.