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2024
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[2024] ZAECMHC 90
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Gwebindlala v President of the Republic of South Africa and Others (194/2016) [2024] ZAECMHC 90; [2024] 4 All SA 810 (ECM) (5 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
CASE
NO: 194/2016
In
the matter between:
THANDABANTU
WILSON GWEBINDLALA
APPLICANT
and
PRESIDENT
OF THE REPUBLIC
FIRST RESPONDENT
OF
SOUTH AFRICA
MINISTER
OF COOPERATIVE GOVERNANCE
SECOND RESPONDENT
THE
GOVERNMENT OF THE REPUBLIC
OF
SOUTH AFRICA
THIRD RESPONDENT
THE
PREMIER OF THE EASTERN CAPE
FOURTH RESPONDENT
MEC
FOR CO-OPERATIVE GOVERNANCE &
FIFTH RESPONDENT
TRADITIONAL
AFFAIRS FOR THE EASTERN CAPE
PROVINCIAL
GOVERNMENT
KING
ZWELONKE MPENDULO SIGCAWU
SIXTH RESPONDENT
CHAIRPERSON
OF THE EASTERN CAPE
SEVENTH
RESPONDENT
HOUSE
OF TRADITIONAL LEADERS
JUDGMENT
Noncembu
J
[1]
The advent of a democracy post-1994 rendered the institution of
traditional leadership
in the whole of South Africa one that has been
fraught with sensitive and thorny issues. The institution is not only
riddled with
its own weaknesses and internal squabbles, but it
presents a challenge for the government today for various reasons
that are not
pertinent for purposes of this judgment. Suffice it to
say that it is against this backdrop that the current application
serves
before this court.
[2]
In
casu,
the applicant seeks relief premised on the
provisions of PAJA, legality and the Constitution. As set out in the
notice of motion,
he seeks the review and setting aside of the
decision of the fifth respondent (MEC) in refusing the recognition of
AmaBomvana as
a principal traditional community. He also seeks
consequential orders: declaring that AmaBomvana qualifies for
recognition as a
principal traditional community and that the
government and/or respondents recognise the traditional community as
such; directing
the fourth (the Premier) and fifth respondents to
take all necessary measures to effect the said recognition; and
declaring that
the applicant is the person entitled to become the
principal traditional leader of the recognised principal traditional
community
of AmaBomvana forthwith upon conclusion of the necessary
process for recognition.
[3]
The impugned decision was sequel to a determination of an application
filed by chieftainess
Nobangule Gwebindlala, the applicant’s
mother, on behalf of the Bomvana traditional community, in which the
MEC decided as
follows:
‘
3.1
This communique is sequel to numerous engagements by my predecessor
and myself with the Bomvana Ro
yal House and
King Mpendulo Sigcawu of AmaXhosa;
3.2 The recognition of a
traditional community as a principal traditional community as
provided in the national legislation;
3.3 However, there is no
provision in the provincial legislation for the recognition of a
principal traditional community;
3.4 The intention of the
legislature, even in the national legislation was to accommodate
those traditional leaders who had been
recognised by the other senior
traditional leaders within their areas of jurisdiction for example
those who hold the traditional
leadership positions of the then
paramount chiefs;
3.5 In the Eastern Cape,
for example, only those traditional leaders who were Kings and
relegated to the status of principal traditional
community by the
Nhlapo Commission that the department has recognized as principal
traditional leaders;
3.6 In the light of the
foregoing exposition, the application for their recognition of
Amabomvana as principal traditional community
is not approved. In
this regard, I attach a copy of the letter marked “A” and
refer this honorable court thereto.’
[4]
In respect of the legality challenge, the applicant asserts that the
application finds
expression on the basis that the exercise of power
is only lawful when sanctioned by relevant legislation, and that the
MEC clearly
failed to apply his mind to the provisions of the statute
and wrongly interpreted the Act. The assertion therefore, is that the
MEC’s actions in this context constitute illegality and are
reviewable under the legality principle and the Constitution.
[5]
Under PAJA, the applicant contends, principally, that the decision is
irrational and
that the MEC has failed to apply his mind to the
provisions of the Act and ultimately misconstrued his powers.
Furthermore, it
is contended that the MEC acted
ultra
vires
in that he was not empowered in terms of the relevant legislation to
make the said decision, as such powers vested in the Premier.
[1]
[6]
The application is opposed by the respondents, specifically the
second, third, fourth,
fifth, sixth, and seventh respondents, as the
first respondent has filed a notice to abide. The relief in the
matter is sought
only against the fourth and fifth respondents, with
costs being sought against any party opposing the application.
[7]
At the onset, a number of preliminary issues were raised in the
matter, some of which
were said to be dispositive of the matter. An
application was thus made by the respondents that these be separated
from the main
issues and that they be dealt with before the main
application. These were the misjoinder of the first, second and third
respondents;
lack of condonation for the late filling of the review
application and the replying affidavit; as well as the
locus
standi
of the applicant. The respondents however, did not persist
with the latter in their argument in court. After hearing arguments
from both parties on the issue, I gave an
ex tempore
judgment
that there would be no separation and that all the issues would be
dealt with at the same time. In this judgment, I deal
first with the
preliminary issues before delving into the main application.
Condonation
[8]
It is common cause that the impugned decision was made on 12 December
2014 and communicated
to the applicants in February 2015. The
application in
casu
was only lodged in January 2016. Section 7 of PAJA requires that
proceedings
for judicial review be
instituted within a reasonable time or not later than 180 days.
Similarly, in terms of common law, judicial
review proceedings must
be instituted within a reasonable time.
[9]
T
he applicant contends that there was a
delay of five months in the institution of the current proceedings.
The argument, however,
is that this is not an extensive delay given
the complexity of the matter, which is a first of its kind. The
explanation given
for the delay is that it was occasioned by the
nature of the public interest in the matter which involves the entire
AmaBomvana
nation. Therefore, it required that proper consultation be
undertaken before the review was launched. This was further
encumbered
by the lack of funds on the part of the applicant to lodge
the proceedings, which necessitated fundraising from the various
communities
to secure sufficient funds to cover the proceedings.
[10]
A f
urther
argument advanced for condonation in this regard is that the
unlawfulness of the impugned decision is clear in that the MEC
had no
power to make the impugned decision, and he took same in ignorance of
relevant material. In the circumstances, it is argued
that the Gijima
principle postulates that even if the court does not condone the
unreasonable delay, it must review the impugned
decision where the
illegality is clear.
[2]
[11]
It is also contended that no prejudice has been suffered by the
respondents as a result of the
delay, and that none is even alleged.
And as a Parthian shot on this point, it is argued that it is in the
interests of justice
that this matter be decided by this court.
[12]
Under the common law, an application for review is to be made within
a reasonable time. Section
7(1) of PAJA sets an upper limit on the
delay,
requiring
reviews brought under the Act to be brought no later than 180 days
after becoming aware of, or reasonably expected to
have become aware
of the decision and its reasons.
[3]
However, condonation may be granted where the interests of justice
require.
[4]
[13]
Regarding the aspect of the delay, Skweyiya J, relying on section 237
of the Constitution,
[5]
held in
Khumalo
:
‘
[46]
Section 237 acknowledges the significance of
timeous compliance with constitutional prescripts. It
elevates
expeditious and diligent compliance with constitutional duties to an
obligation in itself. The principle is thus
a requirement of
legality.
[47]
This requirement is based on sound judicial policy that includes an
understanding of the strong public interest in both certainty
and
finality. People may base their actions on the assumption of
the lawfulness of a particular decision and the undoing
of the
decision threatens a myriad of consequent actions.
[48]
In addition, it is important to understand that the passage of a
considerable length of time may weaken the ability of a court
to
assess an instance of unlawfulness on the facts. . . . Thus the
very purpose of a court undertaking the review is potentially
undermined where, at the cause of a lengthy delay, its ability to
evaluate fully an allegation of illegality is impaired.’
[6]
(Footnotes omitted.)
[14]
The primary reason for requiring reviews to be instituted without
undue delay is therefore to
ensure certainty and promote legality.
In
Merafong
Cameron J said:
‘…
The rule against delay in
instituting review exists for good reason: to curb the potential
prejudice that would ensue if the lawfulness
of the decision remains
uncertain. Protracted delays could give rise to calamitous
effects. Not just for those who
rely upon the decision but also
for the efficient functioning of the decision making body
itself.’
[7]
[15]
These aspects however, do not raise material concerns in the present
matter. Hence even counsel
for the respondents emphasised in his
argument that they joined no issue with the late filling of the
application itself, as their
main issue on the lack of condonation
pertained to the late filling of the replying affidavit. They
implored this court to consider
the replying affidavit as
pro non
scripto
as there was no condonation application filed by the
applicant for its late filling.
[16]
On this aspect, the applicant’s argument is that there was no
delay in the filling of their
replying affidavit (7 years as alleged
by the respondents). This is premised on the argument that the
proceedings were suspended
as the parties were attempting to resolve
the matter in a non-litigious manner. Reference to the Rule 41A
Notice in support of
this contention is made in this regard.
[8]
The contention thus, is that once it became apparent that the
resolution of the matter via mediation was not going to succeed,
a
notice was served on the respondents advising them that the
proceedings would be resumed. This is further supported by the said
notice.
[17]
According to the applicant there was no delay in the filling of the
replying affidavit as the
proceedings had been suspended to
accommodate the aforementioned alternative dispute resolution. The
submission is that the delay
was primarily due to the suspension of
litigation which was partly due to the complexity of the matter.
Because of this the matter
was held in abeyance as parties engaged in
discussions to resolve the matter in a non-litigious manner.
[18]
What the applicant’s submissions fail to address however, is
that the answering affidavits
were served on them on 7 July 2016. The
matter remained on the roll until it was removed on 26 October 2017
when it was postponed
sine
die
.
[9]
As indicated above, the rule 41A notice was only served on the
respondents on 23 April 2021. No explanation for the period in
between (more than 4 years) is proffered by the applicants. The legal
position is very clear in this regard, a party seeking condonation
must give an explanation for the delay which covers the entire period
of the delay. As clearly demonstrated herein, this the applicant
has
failed to do.
[19]
However, considering the nature of the proceedings before me, in
particular the constitutional
rights implicated in the application.
And further taking into consideration that no prejudice is alleged to
have been suffered
by the respondents due to the delay in both the
late launching of the application and the late filling of the
replying affidavit,
it is my considered view that the interests of
justice require that all pleadings be considered in the determination
of this matter.
For these reasons therefore, condonation of the late
launching of the application and the late filling of the replying
affidavit
is hereby granted.
Misjoinder
[20]
The respondents contend that the first respondent (President of the
RSA), the second respondent
(Minister of Co-operative Governance) and
the third respondent (the Government for the Republic of South
Africa) are misjoined
in the matter as they are not necessary parties
in the proceedings.
[21]
The applicant, however, persists that the interest of these parties
is very clear in that, firstly;
traditional institutions are provided
for in the Constitution. The argument is that the President, being
the custodian of the Constitution,
has a vested interest in the
outcome of the matter. Secondly, as the matter involves the rights of
traditional communities, the
MEC for Co-operative Governance has a
clear interest. For similar reasons it is contended that the
Government of the Republic has
an interest in the matter and
therefore, is a necessary party.
[22]
The legal principle on the question of whether all the necessary
parties have been joined in
a matter however, does not depend upon
the nature of the subject matter of the suit, but upon the manner in
which, and the extent
to which the Court’s order may affect the
interests of third parties.
[10]
[23]
The test is whether or not a party has a ‘direct and
substantial interest’ in the
subject of the action, that is, a
legal interest in the subject matter of the litigation, which may be
affected prejudicially by
the judgment of the court.
[11]
This salutary rule is that the mere fact that a party may have an
interest in the outcome of the litigation does not warrant a
joinder
thereof.
[24]
The
principle is that any person is a necessary part and should be joined
if such person has a direct and substantial interest in
any order the
court might make or if such an order cannot be sustained or come into
effect without prejudicing that party, unless
the court is satisfied
that he has waived to be joined
[12]
.
[25]
The respondent’s
contention is that the
President, the Minister of Cooperative Governance and Traditional
Affairs as well as the government of the
Republic of South Africa
have no interest in this litigation. It is equally submitted that
they will not be affected by the court
orders this Court may grant,
and that the order can be sustained or come to effect without
prejudicing them. I agree.
[26]
Therefore, based on the aforegoing, i
t cannot be
said that these parties have a direct and substantial interest in the
order that this court might make in the present
matter, or that an
order cannot be sustained or come into effect without prejudicing
them. In the circumstances, it follows that
these parties have been
misjoined in the present proceedings. Consequently, the point
in
limine
of
misjoinder in respect of the three must be upheld.
The
review (main) application
[27]
The following sets out the background to the application as
extrapolated from the applicant’s
founding papers.
[28]
The applicant resides at Elliotdale (Xhorha) and has lodged the
current application in his personal
capacity as the Prince of the
AmaBomvana Nation and on behalf of the AmaBomvana Nation. He is the
heir apparent to the throne of
the AmaBomvana Nation and the eldest
son of Chieftainess Nobangile Gwebindlala, the current acting chief
of the AmaBomvana. He
is the direct descendant of King Bomvu, the
immediate founding father of AmaBomvana and the heir apparent of the
late Chief Gambushe,
head of AmaBomvana, occupying the land between
Mthatha and Mbashe rivers.
[29]
Presently AmaBomvana are settled in the area known as
Elliotdale and / eXhorha, whose land was under Chief Gambushe. The
applicant
is the current Prince of AmaBomvana as his mother is still
acting for him since he is still engaged in professional work as a
civil
servant.
[30]
The initial application preceding the impugned decision by the MEC
was lodged by the applicant’s
mother, Chieftainess Nobangile
Gwebindlala. The MEC refused the application for the reasons stated
in paragraph 3 above. It is
this decision by the MEC that prompted
the current review application.
[31]
The application is predicated on the provisions of section 2B of the
Traditional Leadership and
Governance Framework Act as amended.
[13]
Section 2B of the Act provides –
(1) a number of
communities that are grouped together may be recognized as a
principal traditional community, if they –
(a)
are recognised as such in terms of applicable provincial legislation;
(b)
each have a recognised traditional council with a defined area of
jurisdiction in terms
of applicable provincial legislation;
(c)
each have a senior traditional leader recognised in terms of the
applicable provincial
legislation;
(d)
recognise a recognised senior traditional leader, who is of higher
status than the other
senior traditional leaders in terms of custom
and customary law, as their principal traditional leader;
(e)
recognise themselves as a distinct group of traditional communities
separate from kingships
or queenships and all other traditional
communities; and
(f)
have a system of traditional leadership at the provincial traditional
leadership level
recognised by other traditional communities.
(2) The traditional
communities applying for recognition as a principal traditional
community must have a proven history of existence
recognising a
senior traditional leader of higher status as a principal traditional
leader in terms of customary law of succession.
(3) (a) The Premier may,
by notice in the Provincial Gazette, after consultation with the
provincial house of traditional leaders,
and the senior traditional
leaders who form part of the principal traditional community being
applied for, recognise the traditional
communities envisaged in
subsections (1) and (2) as a principal traditional community.
(b)
The Premier may –
(i)
direct the member of the Executive Council responsible for
traditional affairs to conduct
the consultation referred to in
paragraph (a) in his stead; and
(ii)
prescribe a fixed period within which the Member of the Executive
Council responsible
for traditional affairs must finalise the
consultation regarding the recognition of a principal community
envisaged in subsections
(1) and (2).
[32]
The applicant avers that the AmaBomvana traditional community
complies with the requirements
as set out in the above provisions,
and that the MEC’s decision not to grant their application is a
reviewable irregularity
which ought to be set aside on the grounds
that:
(a)
the MEC misconstrued his powers and acted
ultra
vires
; and
(b) he did not take into
account any historical documents and material relevant to the history
of AmaBomvana.
[33]
A closer look at the individual grounds raised is pertinent in the
determination of the matter.
[34]
On the first ground the applicant, underpinning his case on section
2B (3) of the Framework Act,
contends that the fifth respondent had
no power to make the decision in question as such power vests with
the Premier in terms
of the said provision.
[35]
He argues that the Act is explicit that the power to recognise a
principal traditional community
lies with the Premier and similarly,
the power to withdraw such recognition lies with the Premier in terms
of section 2B (5) (b)
of the Framework Act. This is underscored by
the assertion that the only provision allowing for a delegation in
terms of section
2B of the Framework Act is subsection (3) (b), which
provides as such, but only in so far as the consultation envisaged in
paragraph
(a) of subsection (3). The subsection reads –
‘
(b)
The Premier may –
(i)
direct the member of the Executive Council responsible for
traditional affairs to conduct
the consultation referred to in
paragraph (a) in his stead; and
(ii)
prescribe a fixed period within which the Member of the Executive
Council responsible
for traditional affairs must finalise the
consultation regarding the recognition of a principal community
envisaged in subsections
(1) and (2).’
[36]
The applicant asserts therefore, that the MEC’s decision is
unlawful in that it was taken
by a functionary with no powers to do
so. The contention is that the decision offends section 6 (2) (a) (i)
of PAJA which provides
that a decision is reviewable if the
administrator who took it was not authorised by an empowering
provision. In addition, it is
argued that by exercising a power that
he did not have, the MEC also acted inconsistently with the principle
of legality.
[37]
The upshot of the applicant’s argument in this regard is that
in terms of the Framework
Act, delegation is limited to consultation
only and not to all the powers of the MEC, as such, the delegation
cannot go against
what the section provides. The argument is that the
MEC acted beyond what the section provides in making the said
decision and
therefore, the decision is a clear illegality which on
this ground alone, is liable to be reviewed and set aside.
[38]
In assailing this assertion, the respondents contend that the MEC had
delegation of authority
from the Premier to deal with the application
and to make the decision
in
casu
.
Although not attached to their answering papers, a copy of the said
delegation was submitted to court in the course of their argument
in
court.
[14]
[39]
In addition to the aforementioned delegation, the respondents contend
that the applicant acquiesced
to the MEC’s exercise of
authority as his mother, Chieftainess Nobangile Gwebindlala,
throughout her persistence with the
application, had been dealing
with the MEC and his predecessor.
[40]
In coming to a decision in this regard it is apposite, as a point of
departure, to consider the
original source from which the Premier of
a province derives his/her powers. Most pertinent in this regard is
section 127 of the
Constitution,
[15]
which provides that the Premier of a province has the powers and
functions entrusted to that office by the Constitution and any
legislation. Another relevant provision is section 133 of the
Constitution where it is stated that the Members of the Executive
Council of a province are responsible for the functions of the
executive assigned to them by the Premier.
[41]
The delegation submitted by the respondents to court makes specific
reference to section 238
of the Constitution which gives executive
organs of state the authority to delegate their powers. The section
reads as follows:
‘
An
executive organ of state in any sphere of government may –
(a)
Delegate any power or function that is to
be exercised or performed in terms of legislation to any other
executive organ of state,
provided that the delegation is consistent
with the legislation in terms of which the power is exercised or the
function is performed;
or
(b)
…
.’
[42]
Whilst I agree that the powers of delegation provided for in terms of
subsection (3)(b) of the
Framework Act are clearly circumscribed, in
my view this does not limit the wider powers of delegation nor divest
the Premier of
his powers of delegation provided for by the
Constitution, which the MEC purports to have acted under in dealing
with this matter.
In the answering affidavit it is specifically
stated that the MEC acted in terms of the powers delegated to him by
the Premier.
The only argument raised by the applicant in this regard
was that they were promised to be provided with the said delegation,
something
which had not happened by the time they were arguing their
case in court and was only presented when the respondents presented
their case in reply.
[43]
In fact, on the applicant’s own papers, further support
pertaining to the delegation
of the MEC is found in the letter
from the Premier (attached to the applicant’s papers) which the
applicants referred to
as the Premier’s response when they
sought his intervention in the matter.
[16]
In the letter, the Premier explicitly states that the MEC was duly
delegated to deal with the matter, and as such, his decision
remains
extant until overturned by a court of law.
[44]
Given the above, coupled with the fact that the applicants had been
dealing with the MEC throughout
pertaining to the application, I find
the ground that the MEC had no power to make the impugned decision to
be without merit and
therefore unsustainable.
[45]
The second ground is that the MEC failed to consider historical
documents and material pertaining
to the history of AmaBomvana. In
this regard it is alleged that the MEC failed to take into account
relevant material which includes
writings of historians such as the
master’s thesis by William Soga, which details the history of
AmaBomvana and a report
of the Sobahle task team which was
established to investigate the status of AmaBomvana.
[46]
One of the primary reasons given for the assertion that these
materials were not considered is
that there was no rule 53 record
provided by the respondents in the matter. The applicant contends
that the absence of the rule
53 record is dispositive of the matter
as it demonstrates that the relevant considerations were not
considered by the MEC in the
decision making.
[47]
Rule 53 (1)
[17]
is a very
important tool in review applications as it provides the machinery
for the record to be provided to the applicant. The
Supreme Court of
Appeal dealing with the rule stated the following in
Helen
Suzman Foundation v Judicial Services Commission and Others
[18]
:
‘
The
primary purpose of the rule is to facilitate and regulate
applications for review by granting the aggrieved party seeking to
review a decision of an inferior court, administrative functionary or
state organ, access to the record of the proceedings in which
the
decision was made, to place the relevant evidential material before
court. It is established in our law that the rule which
is intended
to operate to benefit the applicant, is an important tool in
determining objectively what considerations were probably
operative
in the mind of the decision maker when he or she made the decision
sought to be reviewed. The applicant must be given
access to the
available information sufficient for it to make its case and to place
the parties on equal footing in the assessment
of the lawfulness and
rationality of such decision. By facilitating access to the record of
proceedings under review, the rule
enables the court to perform their
inherent review function to scrutinize the exercise of public power
for compliance with constitutional
prescripts.’
[48]
In response to the applicant’s rule 53 notice, a letter dated 1
April 2015 was sent by
the MEC stating that there was no record of
proceedings because the entire process was through consultations in
the presence of
the applicant’s mother (the initial
applicant). According to the respondents, the applicant’s
mother was part
of the consultations and would be told throughout the
process that what they were seeking was non-existent in the customary
structure
of the Eastern Cape.
[49]
Mr Msiwa for the respondents submitted that the absence of a record
of a consultative process
in the presence of the applicant’s
mother does not bring about an illegality of the decision.
Furthermore, confirmatory affidavits
from parties who were part of
the consultative process were filed by the respondents. The only
response by the applicant to these
was that they were irrelevant. I
do not see how that can be the case.
[50]
Whilst I acknowledge that a record is a helpful tool in assisting a
court in objectively exercising
its inherent review functions, it
cannot be said that the absence thereof
per se
renders the
proceedings an illegality. More particularly on the circumstances of
this case where confirmatory affidavits forming
evidential material
pertaining to the decision making by the MEC were submitted to court.
Further elucidation on this point appears
below.
[51]
In addition, it is stated in the answering affidavit that the reasons
for the decision taken
by the MEC are contained in annexure “A”
to the founding affidavit, where the decision was communicated to the
applicants.
What stands out in annexure “A” is that the
primary reason for the decision of the MEC is that he found that the
applicant’s
application for recognition did not meet the
legislative prescripts for recognition as a principal traditional
community. In other
words, on the MEC’s finding, the
application did not meet the jurisdictional requirements provided for
in section 2B of the
Framework Act. This then leaves the question of
whether his interpretation of the legislation was correct in this
regard.
[52]
Fortifying this view is the applicant himself, where he states in his
founding affidavit that
‘the application concerns a narrow, but
important legal issue: “
is the interpretation of the MEC
correct that recognition of principal traditional communities is
reserved for the accommodation
of those traditional leaders who were
Kings and relegated by the Nhlapho Commission
”’. I
agree with this formulation of the issue.
[53]
Added to this is the fact that the application is also based on PAJA
as a separate cause of action.
PAJA has its own built-in mechanisms
for the provision of ‘adequate reasons’ for review
purposes. In terms of
section 5 of PAJA an
applicant can request ‘adequate reasons’ for the decision
taken by the administrator. Such a request
must be made within 90
days after the date on which the interested party (applicant) became
aware of the action or might reasonably
have been expected to become
aware thereof. There is nothing on the papers before me to indicate
that such provision was invoked
in the present matter.
[54]
In my view, the absence of a rule 53 record in the present matter
cannot on its own be construed
to mean that the MEC considered
irrelevant considerations in deciding the matter, or that he did not
consider relevant considerations.
I also find the reference to the
MEC’s statement in the answering affidavit, ie. that ‘he
knows nothing of the history
of the AmaBomvana’, as lending
support to the view that he did not consider the historical material
and task team report,
to be an inaccurate restatement of what it said
in the affidavit. What the said paragraph states is that the MEC has
no knowledge
of
the
accuracy of the history
stated
therein.
[19]
I do not think
that one can read more to that than what is actually stated.
(emphasis intended)
[55]
I agree with the applicant’s averments that this matter turns
on whether or not the MEC
correctly interpreted the legislative
provisions with regards to the recognition of AmaBonvana as a
principal traditional community.
Which then brings me to that
assessment.
The
jurisdictional requirements for recognition as a principal
traditional community
[56]
It is common cause that the jurisdictional requirements for
recognition as a principal traditional
community are set out in
section 2B of the Framework Act as highlighted above.
[20]
It stands to reason therefore, that the starting point in determining
the application is to consider whether or not the application
meets
the jurisdictional requirements as set out in terms of the aforesaid
provisions.
[57]
In deciding the recognition application, the MEC found that the
applicants did not meet the said
requirements. His reason primarily,
was that there is no provision in the provincial legislation for the
recognition of a principal
traditional community. Expatiating in this
regard he stated that the intention of the legislator, even in the
national legislation,
was to accommodate those traditional leaders
who had been recognised by the other senior traditional leaders
within their areas
of jurisdiction, for example, those who hold the
traditional leadership positions of the then paramount chiefs. He
stated further,
that in the Eastern Cape, only those traditional
leaders who were Kings and relegated to the status of principal
traditional community
by the Nhlapo Commission that the department
has recognised as principal traditional leaders.
[58]
To get a better understanding in this regard, a closer examination of
the relevant provision
is warranted. Subsection (1) (a) of section 2B
provides that ‘a number of traditional communities that are
grouped together
may be recognised as a principal traditional
community if they are recognised as such
in
terms of applicable provincial legislation’
.
(emphasis intended) In this regard, the applicable provincial
legislation is the Eastern Cape Leadership and Governance Act (the
Governance Act).
[21]
[59]
I find it of material significance that nowhere in the founding
papers, or even the replying
papers, do the applicants refer to the
said provincial legislation. This notwithstanding that subsection (1)
of section 2B, in
terms of which the application is premised,
requires that for the said recognition to take place, the traditional
community must
be so recognised in terms of the applicable provincial
legislation. In this regard the application falls short and is found
to
be wanting.
[60]
Whilst the Governance Act
[22]
gives a definition of a kingship/ queenship as well as the various
tiers of traditional leadership, it provides no definition of
a
principal traditional community or a principal traditional leader.
The section only defines a principal traditional leader as
one who
has been recognised in terms of section 22 of the Act (Governance
Act).
[61]
Section 22 in turn, states the following regarding the recognition of
a principal traditional
leader:
(1)
The Premier must recognise a person as a principal
traditional leader where, pursuant to an investigation conducted in
terms of
section 25 (2) of the Traditional Leadership and Governance
Framework Act, the Commission recommended that a paramountcy does not
qualify to be recognized as a kinship or queenship and –
(a)
the paramountcy has been vacant from 1 February 2010; or
(b)
the king or queen who had permanently occupied the position, dies.
(2)
If any of the circumstances referred to in subsection (1) (a) and
(b), become applicable,
the Premier must request members of the royal
family concerned to identify a suitable person in terms of section 23
as a principal
traditional leader.
(3)
The Premier must recognise a person identified by the royal family as
a principal traditional
leader in terms of subsection (1)
and
must at the same time recognise the community as a principal
traditional community.
(Emphasis
intended)
[62]
Notably, this is the only time that the Governance Act refers to the
recognition of a principal
traditional community. And from the above
provision, it is clear that such recognition is preceded by the
recognition of a principal
traditional leader, and not the other way
around.
[63]
On a closer examination of section 25 (2) of the Framework Act, it
becomes apparent that the
section alludes to the investigation
envisaged in section 22 of the Governance Act referred to above. The
section provides –
(2)
(a)
The Commission has authority to
investigate and make recommendation on –
(i)
a case where there is doubt as to whether a kingship or, principal
traditional
leadership, senior traditional leadership or headmanship
was established in accordance with customary law and customs;
(ii)
a case where there is doubt as to whether a principal traditional
leadership, senior
traditional leadership, headmanship was
established in accordance with customary law and customs;
(iii)
a traditional leadership position where the title or right of the
incumbent is contested;
(iv)
claims by communities to be recognised as kingships, queenships,
principal traditional communities, traditional communities, or
headmanships; (
emphasis intended)
(v)
the legitimacy of the establishment or disestablishment of ‘tribes’
or
headmanships;
(vi)
disputes resulting from the determination of traditional authority
boundaries as a result
of merging or division of ‘tribes’;
(vii)
all traditional leadership claims and disputes dating from 1
September 1927 to the coming into
operation of provincial legislation
dealing with traditional leadership and governance matters;
(ix)
gender related disputes relating to traditional leadership positions
a rising after 27
April 1994.
[64]
On my examination of the above provisions, considered wholistically,
they lend credence to the
interpretation proffered by the MEC to the
applicable legislation (the Framework Act). Therefore, it behoves me
to conclude that
the interpretation afforded by the MEC to the
provisions of the Framework Act (specifically subsection (1) (a) of
section 2B),
is the only interpretation to be favoured in this
regard. The only other provision that pertains to the recognition of
a principal
traditional leader in the Framework Act is section 10A.
That section however, only refers to the filling of a vacant position
of
a principal traditional leader, and not the recognition thereof as
is the case in the present matter.
[65]
From the language used in section 2B of the Framework Act, together
with the relevant provisions
of the Governance Act as discussed
above, and considering the said provisions wholistically and
contextually, if one applies the
principles enunciated in
Endumeni
[23]
, the only sensible
interpretation one can come to is that there is no provision for the
recognition of a principal traditional
community in terms of the
provincial legislation (the Governance Act). This would also bring
some clarity as to why no such reference
is made by the applicants in
their papers, despite this being a clear proviso in terms of the
provisions they predicate their case
upon.
[66]
In light of these factors, it cannot be correct to say that the MEC
failed to interpret the legislative
provisions properly.
[67]
Even with the other subsections of the provision (section 2B), I have
difficulty in concluding
that the applicant has satisfied the
jurisdictional requirements of the Act. By way of an example, the
respondents contend in their
papers that the applicant has not shown
that he is recognised as a senior traditional leader of a higher
status than the other
senior traditional leaders of AmaBomvana.
[24]
[68]
As appoint of departure, it is common cause that the applicant is not
on the throne currently
as he is employed as a civil servant whilst
his mother holds the position of acting chieftainess. It can
therefore not be said
that he enjoys the recognition of other senior
traditional leaders as being of a higher status than them.
Furthermore, the application
itself is supported by four traditional
councils; the Ngubezulu traditional council headed by the applicant’s
mother, the
Dubulamanzi traditional council headed by chief
Vulindaba, the Ngonyama traditional council headed by chief Ayanda
Ngonyama and
the Ngqwangele traditional council headed by chief
Dumalitshona Siruni.
[69]
It is noteworthy that while it is alleged in the founding affidavit
that the recognition of AmaBomvana
as a principal traditional
community is supported by at least seven traditional councils who are
all under senior traditional leaders,
these are not listed in the
affidavit. The only traditional councils listed are those mentioned
in the preceding paragraph who
submitted letters supporting the
current application. This however, tells this court nothing about
which traditional councils supported
the recognition of AmaBomvana as
a principal traditional community. The respondents on the other hand,
listed a number of traditional
communities belonging to the Amatshezi
group, which also forms part of Amabomvana, who are opposed to the
aforementioned recognition.
[70]
The anomaly that arises here is that the applicant disavows that
these communities are part of
the Amabomvana. He submits in his
replying affidavit that those who filed confirmatory affidavits
supporting the respondents in
opposing the application/recognition of
AmaBomvana are not relevant for the present consideration as they
belong to the Xhosas.
[71]
The confusion here arises in that among those who filed confirmatory
affidavits in opposing the
application and the recognition of
AmaBomvana is No-Office Mdabuka who is the regent chieftainess of
Gcaleka-Ncihana traditional
council. At paragraph 79 of the replying
affidavit the applicant contends that Mdabuka is not a member of
AmaBomvana nation and
is a member of the Xhosa nation, and as such
his affidavit is irrelevant. On the same breath however, and quite
confusingly, in
his founding affidavit it is stated that his mother,
chieftainess Nobangile Gwebindlala, is also the chieftainess of
Gcaleka-Nchihana
amongst other traditional authorities.
[25]
[72]
Acting chieftainess Mdabuka however is averse to this allegation, and
even makes various other
submissions supporting the opposition of the
application. Most significant of these is that she alleges that she
is of equal status
as chieftainess Nobangile Gwebindlala; they both
fall under the jurisdiction of the King (sixth respondent) and both
their traditional
councils report to the King; her traditional
council is one of those that was consulted in the consideration of
the recognition
of AmaBomvana which, in the presence of the
applicant’s mother, voiced their opposition to the said
recognition (together
with other groups of AmaBomvana).
[73]
I find it quite telling that none of this is denied in the replying
affidavit, except to state
that the said affidavit is irrelevant.
This leaves this court in a state of quandary because on the one hand
the traditional council
(Gcaleka-Nchihana) is said to fall under the
chieftainship of the applicant’s mother (Ngubezulu traditional
council) which
is part of the AmaBomvana supportive of the
application, and yet on the other hand (replying affidavit) they fall
under the Xhosa
nation. The affidavit by chieftainess Mdabuka
supports the version of the sixth respondent (the King), who asserts
that the traditional
councils said to support the application all
fall under his jurisdiction and report to him as the King. Given all
these circumstances
and in applying the
Plascon Evans
principle, I am constrained to accept the respondents’ version
in this regard.
[74]
As clearly demonstrated above, the applicant has failed to establish
that the application meets
the jurisdictional requirements for
recognition as a principal traditional community as provided for in
section 2B of the Framework
Act.
[75]
Under these circumstances, I cannot find that the MEC failed to apply
himself in the consideration
of the applicable legislative provisions
in deciding the matter. I find his interpretation to be in accordance
with the legislative
prescripts, and therefore correct. In the
circumstances therefore, the review application is inept and falls to
be dismissed.
Order
[76]
Consequently, the following order is made:
The application is
dismissed with costs which are to be in accordance with scale B as
provided for in terms of rule 69 of the Uniform
Rules of Court. Such
costs to include the costs of two counsel where so employed.
V P NONCEMBU
JUDGE OF THE HIGH
COURT
APPEARANCES
Counsel
for the Applicant
:
L Haskins
Instructed
by
:
Mvuzo Notyesi Inc
Mthatha
Counsel
for the Respondents
:
P V Msiwa (SC) with L
Mncotsho
Instructed
by
: Office of the State Attorney
Mthatha
Date
of
hearing
: 23 November 2023
Date
judgment delivered
: 5 September 2024
[1]
Section
2B of the Traditional Leadership Governance Framework Act 41 of
2003.
[2]
State Information Technology Agency SOC Limited v Gijima Holdings
(PTY) Ltd 2018 (2) SA 23 (CC).
[3]
Promotion of Administration of Justice
Act
3 of 2000.
[4]
Section
9 of PAJA; see also Opposition to Urban Tolling Alliance v The South
African National Road Agency Limited
2013 (4) All SA 639
(SCA)
(OUTA) para 26 which held that ‘section 7 of PAJA creates a
presumption that a delay of longer than 180 days is per
se
unreasonable, whether the delay was unreasonable or not and the
extent of that unreasonableness is still a factor to be considered
in determining whether an extension should be granted or not’.
[5]
This section provides: “All constitutional obligations must be
performed diligently and without delay.”
[6]
Khumalo and Another v Member of the Executive Council for Education:
KwaZulu Natal
2014 (5) SA 579
(CC). at paras 46-48.
[7]
Merafong City Local Municipality v AngloGold Ashanti Limited
[2016]
ZACC 35
;
2017 (2) SA 211
(CC);
2017 (2) BCLR 182
(CC) (Merafong) at
para 73.
[8]
Dated
23 April 2021 and served on the same day on the respondents.
[9]
Per
court order of Laing AJ dated 1 November 2017.
[10]
Segal
v Segil
1992 (3) SA 136
C at 141 A – C; Sikhutshwa v MEC for
Social Development, Eastern Cape 2009 (3) SA (TKHC) at 561 –
570A.
[11]
Judicial
Services Commission v Cape Bar Council
2013 (1) SA 170
(SCA) at 176
H-I.
[12]
Absa Bank Limited v Naude N.O
[2015] ZASCA 97
at para 10
[13]
Act
41 of 2003 (the Framework Act).
[14]
Dated
12 June 2014.
[15]
The
Constitution
of the Republic of South Africa, 1996.
[16]
RA 5 to the replying affidavit.
[17]
Uniform
Rules of the High Court.
[18]
2017
(1) SA 367
(SCA) at 374 G – 375 C.
[19]
MEC’s
answering affidavit, para 44.
[20]
Para
29
supra.
[21]
Act
1 of 2017.
[22]
The
definitions section.
[23]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA).
[24]
Section
2B (1) (d) of the Framework Act.
[25]
Para
8.1 of the founding affidavit.