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This judgment will be handed y circulation to the parties and by publication on SAFLII.
The judgment shall be deemed to have been handed down on 24 February 2025 at 1 0:00.


JUDGMENT


Roelofse AJ :
INTRODUCTION
[1] The appellant appeals an order by this court dated 21 July 2023 (Mashile J sitting ,
hereinafter referred to as “the court a quo ”), dismissing its application for an order
compelling specific performance by the first respondent in terms of her obligations as set
out in section 20 of the Mpumalanga Traditional Leadership and Governance Act 3 of 2015
(“the Act”) ; compelling the first respondent to withdraw the certificate of recognition of
the third respondent as Ink hosi; to publish a notice in the provincial Gazette with particulars
of the removed Ink hosi; and to inform the appellant , the third respondent and the Provincial
House of Traditional Leaders of the removal of the third respondent as Ink hosi.
[2] The appellant purports1 to be the Ngomane -Lugedane Inner Royal Family (“the
royal family”) . The royal family was established and is recognised in terms of the
Mpumalanga Traditional Leadership and Governance Act 3 of 2005 (“the Act”) . The first
respondent is the Premier of Mpumalanga Province (“the Premier”) . The second
respondent is the Mpumalanga Department of Cooperative Governance and Traditional
Affairs (“COGTA”) . The third respondent is the present Chief (“the Chief”) of the
Ngomane -Lugedlane Traditional Community (“the community”) .
[3] The appellant seeks the removal of the Chief. The purpose of the application

1 I refer to the appellant as the “purported” Ngomane - Lugedlane Inner Royal Family because, in his confirmatory
affidavit, the Chief denies that the Ngomane - Lugedlane Inner Royal Family is before court. The Chief alleges that
the persons that took the purported resolution does not constitute the Ngomane - Lugedlane Inner Royal Family.

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was for the Premier to act in accordance with her powers in terms of section 20 of
the Act2.
[4] The Premier opposed the application . COGTA did not oppose the application.
Although not opposing the application, the Chief filed a confirmatory affidavit
wherein the appellant’s allegations were challenged . In its replying affidavit, the
appellant did not deal with the disputes or evidence raised by the Chief in his
confirmatory affidavit. Although the appellant’s failure to deal with the allegations
made by the Chief in his confirmatory affidavit is not de cisive in this appeal, it will
demonstrate why the appellant’s interpretation of the provisions of section 203 of the
Act and more particularly, the powers of the Premier , is wrong.
FACTUAL BACKGROUND
[5] The appellant took a purported resolution on 3 December 2020 (“the
resolution”) in terms of which the purported members of the royal family are alleged
to have resolved to remove the third respondent as Chief, head and representative of
the community; remove him as chairperson of the community’s tribal Council;
disallowing him to represent the community in any forum or institution and that the
third respondent’s certificate of Chieftaincy and the recognition by the government
through the Department of Coop erative Governance and Traditional Affairs
(“COGTA) be revoked “entirely .”
[6] The appellant’s reasons for the removal of the chief are recorded in the
resolution . The Chief allegedly , with total disregard of the Lugedlane -Nkomane
royal family , destroys the very being of the Ngomane tribe by chasing away its

2 See paragraph 13 below where the provision of the relevant section of the Act is set out.

3 Fn 2 ibid.


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ancestors; fails to execute traditional duties and is also alleg edly involved in
criminality.
[7] Pursuant to the purported resolution, the appellant informed the Premier and
COGTA about the resolution.4 When the Premier did not act upon the purported
resolution, the appellant demanded that the Premier act in terms of section 20(3) of
the Act.5
[8] On 21 May 2021, the Chief Director: Traditional Institutional Management
sent a memorandum6 to the Acting Head: Cooperative Governance and Traditional
Affairs dealing with the removal of the Chief. The purpose of the memorandum
was: “To provide a report on the interventions made by the Department in the above -
mentioned matter……”, the matter being the removal of the Chief.7
[9] In the memorandum, amongst others, it is recorded that COGTA has made
intervention relating to the correspondence over the Chief’s alleged conduct of the
affairs of the Chieftaincy, including harassment of the members and a dysfunctional
working relationship between him and the inner royal family. The memorandum also
refers to the correspondence received from the appellant’s attorneys. The Chief
Director sets out the failures of interventions and meetings to resolve the impasse
between the parties. In the memorandum it is alleged that the inner royal family
admitted the existence of family disputes and lack the of cooperation among the
members of the family. In the memorandum it is also recorded that it was agreed
that all affected parties attend a joint meeting to be con ducted with everyone

4 On 28 January 2021 and 20 January 2021 respectively.

5 Fn 2 ibid.

6 Annexure “RM1”.

7 The appellant does not deny the memorandum or it content.

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involved in the dispute to find a solution. Furthermore, it is recorded in the
memorandum that the family was unable to resolve the issues amongst themselves.
The memorandum states that the department’s position is that the allegations against
the Chief are false.
[10] What is furthermore clear from the memorandum is that the dispute concerns
various factions within the royal family.
[11] In paragraph 3.13 of the memorandum, the director records as follows:
“It was clarified that the recognition certificate of the current incumbent is still valid and
the senior traditional leader together with the royal family must interact and engage the
communities to dispel those false rumours and misinformation being spread around the
communities a nd to take a stand , by reporting criminal elements other than the laissez faire
approach they have adopted. The family were satisfied with most of the responses provided
by the department and undertook to engage collectively in smooth running of the
chieft aincy.”
[12] It is against this backdrop that the Premier states in paragraph 15 of the
answering affidavit as follows:
“To this very extent, I submit that before taking any steps as envisaged in Section 20(3) of
the Act, I need to be convinced that it is in the interest of the Traditional Community that
the grounds raised are justifiable for me to invoke my powers in terms of the Act. I must
further indicate that the issues relating to the removal of the Third Respondent as Inkhosi
was dealt with by the second respondent thereafter, the second respondent recorded its
findings in the report.”
THE PROVISIONS OF THE ACT
[13] The relevant provisions of the Act regarding the removal of an Ink hosi are as
follows:
“20. Withdrawal of removal of Inkhosi

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(1) An inkhosi may be removed from office on the grounds of -
(a) conviction of an offence which carries a sentence of
imprisonment of more than 12 months without the option of
a fine;
(b) physical incapacity or mental infirmity which, based on
acceptable medical evidence, makes it impossible for that
inkhosi to function as such;
(c) wrongful appointment or recognition; or
(d) a transgression of a customary rule or principle that warrants
removal.
(2) Whenever any of the grounds referred to in subsection (1)(a), (b)
and (d) come to the attention of the inner royal family and the inner
royal family decides to remove an inkhosi, the inner royal family
concerned must, within a reasonable time and through the relevant
customary structure -
(a) inform the Premier of the particulars of the inkhosi to be
removed; and
(b) furnish reasons for such removal.
(3) Upon receipt of the particulars of the inkhosi to be removed and the
reasons for such removal as contemplated in subsection (2), the
Premier must -
(a) withdraw the certificate of recognition of such an inkhosi;
(b) publish a notice in the Provincial Gazette with particulars of
the removed inkhosi, and
(c) inform the inner royal family concerned, the removed

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inkhosi and the Provincial House of Traditional Leaders of
such removal.
(4) Where an inkhosi is removed from office, a successor identified in
line with customs may, subject to the provisions of this Act, assume
the position, role and responsibilities of such inkhosi.”
[14] This appeal largely concerns the provisions of Section 20(3) of the Act. Other
peripheral issues include the alleged transgression by the Chief of a customary rule or
principle that warrants removal and the existence of factual disputes in this regard.
THE APPELLANT’S INTERPRETATION OF SECTION 20( 3) OF THE ACT
[15] It is the appellant’s view that Section 20( 3) of the Act does not afford the Premier
any discretion. Therefore, as soon as the Premier is notified about a decision to remove an
Inkhosi, the Premier must remove the Chief . The appellant alleged that “ ….the reasons for
the removal of the Third Respondent from office of Inkhosi has been properly set out and
is same in line with the prerequisites of the Act”8 and “…. But that, despite being obliged
in terms of the Act and to act accordingly, the first respondent has failed and all
[sic] refused to perform its duties in terms of section 20 of the Act .”9The appellant argued
in the court a quo that the wording of section 20 of the Act and section 10B of Act 51 of
2003 is couched in peremptory terms. Therefore, these provisions deprive the Premier of
any discretion following the receipt of a decision to remove an Ink hosi. The thrust of the
appellant’s argument in this court was the same.
THE PREMIER’S VIEW OF SECTION 20( 3) THE ACT
[16] The Premier ’s view is that in acting in terms of Section 20( 3) of the Act, the
Premier needs to be convinced that it would be in the interest of the Traditional

8 Para. 11 of the Founding Affidavit at p. 13.

9 Para. 18 of the Founding Affidavit at p. 15.

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Community that the grounds for the removal of an Inkhosi are justifiable and would
be in the interest of Traditional Community . The Premier s ays that the Premier will
not at the mere request and upon allegations made by certain members of a
Traditional C ommunity, withdraw a certificate of recognition or remove an
incumbent Inkhosi. The Premier’s view is therefore that the Premier retains a
discretion to act in terms of Section 20( 3) of the Act.
FINDINGS OF THE COURT A QUO
[17] The court a quo identified three issues to be considered, being: whether the
Premier has a discretion to remove an Inkhosi or not; whether the Chief violated the
provisions of section 20(1)(a), (b) and (d) of the Act; and whether there are disputes
of fact.
Does the Premier have a discretion?
[18] In interpreting the provisions of section 20(4) of the Act, the court a quo
considered the purpose of the Act and found that the purpose of the Act is to provide
for the recognition and withdrawal of the recognition of traditional communities, the
establishment of their governing structures and the appointment and removal of
functionaries within those governing structures. In addition, the court a quo also
considered the provisions of sections 20(1) to 20(4) of the Act. The court a quo
considered the discre tion that is afforded to the Premier in Section 19(4)(a) to (c) of
the Act where the Premier ha s a discretion to refer a decision by a Traditional
Community to appoint an Ink hosi to the Provincial House of Traditional Leaders or
refuse to recognize the person identified and refer matter back to the inner royal
family for reconsideration.
[19] The court a quo found:

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“The duty of assessing whether or not the assumption of the role of the removed Ink hosi
from office accords with the customs and the provisions of the Act rests squarely with the
Premier. The purpose of the recognition is to ensure that traditional communities, their
governing structures and functions operate within the confines of the Co nstitution to which
the Republic of South Africa subject s.”10
Did the Chief violate the provisions of Section 20(1)((a), (b) or (d) of the Act?
[20] The court a quo found that the only ground upon which the appellant could
rely upon was the ground in section 20( 3)(d) of the Act which provides that the Chief
must have transgressed a customary rule or principle that warrants removal. In this
regard the court a quo found that the onus of showing the existence of the customary
rule or principle and that the Chief has transgressed it rested that upon the appellant.
The court a quo found that the appellant had not shown the existence of the
customary rule, that it was transgressed and that the transgression warrants the
removal of the Chief.
Dispute of fact ?
[21] In the court a quo , the Premier argued that upon the facts and evidence in the
papers, the appellant has failed to discharge its onus of proving that the Chief has
transgressed or violated a customary rule of the community. To that end, so the
Premier says, there is a materi al dispute of fact. In this court’s view, this is a point
well taken. The appellant sought a final order which may only be granted in motion
proceedings if the facts averred in the applicant's affidavits which have been
admitted by the r espondent, together with the facts alleged by the respondent, justify
such an order. The Chief ’s confirmatory affidavit seriously contests the evidence
presented by the appellant especially with regards to his alleged transgression of

10 Para. 24 of the judgment.

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supposed customary rules. As part of the premier’s version, this evidence cannot be
overlooked. Yet it is not necessary to decide the appeal on this basis for reasons that
will appear later this judgment.
[22] The court a quo found that inasmuch as the Premier has referred to disputes
of fact which are incapable of resolution on the papers, once the court has found that
the Premier has a discretion, whether or not there are disputes of fact becomes
irrelevant. The court a quo did however find that having regard to the confirmatory
affidavits, no transgression of the customary rule or principle was established.
THE GROUNDS OF APPEAL
[23] Summarised, the appellant raises ten grounds of appeal. The appellant’s
grounds of appeal are as follows: (a) the court a quo failed to attribute the ordinary
meaning to the word “must” in section 20( 3), being a peremptory provision of the
Act; (b) the court a quo erred in attributing a further obligation beyond what is
required in section 20( 3); (c) the appellant has furnished sufficient reasons for the
removal of the Chief and that is all that was required; (d) the appellant failed to show
(and the court a quo failed to consider why ) the Premier would be in a better position
or more suitable to evaluate the custom or tradition and the observance thereof rather
than to simply act on the peremptory provisions of section 20( 3); (e) the Premier
only had to be satisfied that the appellant has taken certain preliminary steps in
seeking the removal of the Chief; (f) the court a quo erred in equating the word
“must” in section 20 with the word “may”; (g) the court a quo erred in finding that
the duty of assessing whether or not the Ink hosi must be removed lies with the
Premier; (h) the court a quo erred in ignoring that the Chief did not challenge the
decision or the application; (i) the court a quo erred in finding that the Chief did not

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transgress the grounds listed in section 20( 3)((a) to (d); (j) the court a quo erred in
awarding costs to the respondents.

ANALYSIS
Grounds of appeal: (a), (b), (e), (f) and (g)
[24] The appellant’s challenge of the powers of the Premier in terms of Section
20(3) of the Act is unfounded. It can never be said that it is expected of the Premier
to be aware of every customary rule o r principle. For that purpose , COGTA is part
of the process. The Premier has established that in this matter, the disputes were
referred to COGTA. As a matter of fact, the appellant itself wrote to COGTA and
also forwarded its resolution to it. The report clearly shows COGTA’s involvement
and its efforts to resolve the dispute. The appellant relies upon Minister of
Environ mental Affairs an d Tourism and Others v Pepper Bay Fishing (Pty) Ltd11 for
its submission that the word “must” in Section 20( 3) of the Act shows that th ose
provisions are peremptory and t herefore, the Premier had no choice but to remove
the Chief from office. Pepper Bay lays down a proviso. The proviso is that
circumstances may mitigate against a p eremptory interpretation . What those
circumstances are will inevitable differ from case to case or else Pepper Bay would
have listed those circumstances. In Cool Ideas 1186 CC v Hubbard and Another12,
the following was held:

11 2004(1) SA 308 (SCA), para. 32.
12 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) , referred to in argument by the appellant.


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“[28] A fundamental tenet of statutory interpretation is that the words in a statute must be
given their ordinary grammatical meaning, unless to do so would result in an absurdity.
There are three important interrelated riders to this general principle, na mely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to preserve their
constitutional validity. This proviso to the general principle is closely related t o the
purposive approach referred to in (a). ” (Endnotes omitted).
[25] The appellant’s insistence on the literal meaning of the word “must” in Section
20(3) of the Act ignores the riders mentioned in Cool Ideas .13 To attribute only a
literal m eaning to the word “must” in Section 20( 3) of the Act would offend the
purpose of the Act which includes, amongst other things, the upholding of the
principle of democratic governance and the promotion of unity . In addition, since
the Act does not provide for a procedure for an Inkhosi to be heard before a decision
in terms of Section 20(3) is taken , same will not only offend the purpose and object
of the Act but also would be unconstitutional. Such a literal interpretation would be
at odds with the Constitutional preservation of the provisions of section 20(3). In our
view, the court a quo correctly found that the context of section 20(3) of the Act
mitigates against a peremptory meaning of the section in that the Premier is afforded
no discretion.
Ground s of appeal : (c) and (d)
[26] The reasons the applicant furnished for the removal of the chief are set out in
the resolution. These reasons are challenged in the Chief’s confirmatory affidavit .

13 Para, 24 ibid.