IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)

CASE NO.: 2227/2023

In the matter between:

MTHETHO HLAMAND ANA 1st Applicant

BHEKAMEVA ROYAL FAMILY 2nd Applicant

and

PREMIER, EASTERN CAPE PROVINCIAL 1st Respondent
GOVERNMENT

MEC FOR COOPERATIVE GOVERNANCE 2nd Respondent
AND TRADITIONAL AFFAIRS, EASTERN
CAPE

ISIKELO TRADITIONAL COUNCIL 3rd Respondent

ADV.N. JAMES N.O 4th Respondent

JUDGMENT

ZONO AJ:

Introduction

[1] The applicants approached this court on urgent basis on 30th May 2023 and
an interdictory relief against first, second and third respondents was granted
by consent between the parties pending finalization of review application
sought in Part B of the applicati on. The urgent relief was effectiv ely
interdicting the implementation of fourth respondent’s decisions respectively
dated 12th August 2021 and 28th February 2022 pending review application.
Nothing now turns on the urgent relief granted by this court.

[2] Serving before this court is a review application which is set out in P art B of
the same application. The review is couched in the following terms:

“Be pleased to take notice that the applicants will on a date to be
determined by the Registrar of this Hon ourable court apply for orders in
the following terms:

“1. Reviewing and setting aside the decision of the first respondent
dated the 08th May 2023 that confirmed the findings and a sanction
imposed by the fourth respondent that relieved the first applicant fro m
his duties as a Headman of Isikelo Administrative Area, Bizana.

2. Reviewing and setting aside the finding s and decision s of the fo urth
respondent dated 12th August 2021 and fourth respondent’s decision
on sanction dated 28th February 2022.

3.Granting applicant’s costs of suit.

4.Granting further and/ or alternative relief.” (all sic)

[3] The application is opposed by the respondent s. In so doing the respondents
have delivered their answering affidavit deposed to by the state attorney Mr
Hanise. The replying affidavit is deposed to by Mthetho Hlamandana , the first
applicant herein. I propose to refer to the first respondent as Premier, the
second respondent as MEC, the third respondent as Traditional Council, the
fourth respondent will be referred to as the chairperson. The first applicant is
described in the papers as the headman and traditional leader of Is ikelo
Administrative Area, Bizana.

[4] The first applicant contends that pursuant to charge s for the alle ged
misconduct having been preferred ag ainst him, the chairperson found him
guilty of misconduct on 12th August 2021 . The fourth respondent was a duly
appointed chairperson of the disciplinary hearing against the first applicant.
The first applicant sought to be legally represented during the m itigation and
aggravation of sentence. For this purpose, a transcribed record was sought to
enable first applicant ’s counsel to understand and follow the proceedings.

[5] Apparently few postponements were granted by the chairperson for the first
applicant to be furnished with the transcribed record . However , the
chairperson of the enquiry delivered a sanction on 28th February 2022 in
terms of which it was recommended that the first applicant be relieved of his
duties as the Headman of Isikelo Administrative Area, Bizana . The sanction
was delivered in first applicant’s absence and without hearing the first
applicant in mitigation. It is contended that such a failure wa s in contravention
of section 31 (12) of Act 1 of 2017 .

[6] The first applicant apparently lodged an appeal against the finding of guilt and
sentence with the Premier on 16th March 2022. The appeal was concluded on
08th May 2023. The outcome of the appeal dated 08th May 2023 was
forwarded to the first applicant on 11th May 2023. The Premier confirmed t he
finding s and recommendation of the chairperson of the hearing and
consequently relieved the first applicant of his duties as the headman of
Isikelo Administrative Area, Bizana with effe ct from the date of receipt of the
outcome of appeal.

[7] In addition to chairperson’s failure to afford the first applicant an opportunity to
present hi s case on mitigation, the first applicant impugns the chairperson’s
decision on sentence on the basis that the chairperson failed to furnish the
first applicant’s legal representatives with the transcribed record for t hem to
familiarise themselves with the proceeding s to inform their submissions on
sentence.

[8] It arises from the first applicant’s founding affidavit that the recording s were
served by Mr Parkies to Mr Linyana, first applicant’s legal representative. It
appears as follows:

“15. On 15th November 2021 the fourth respondent sent an email to my
former attorneys , a copy of which is annexed hereto marked HM12. In
terms of this email the fourth respondent says that the recordings were
duly served by Parkies on Mr Linyana, my former attorney.

16. O n the 17th November 2021 m y former attorneys responded to the
fourth respondent’s email above mentioned by way of a letter and I
annex hereto a copy of the said letter and a copy of an email to which
the said letter was attached marked HM13 and HM14.

17. In the above mentioned letter my former attorn ey is saying that they
were not furnished with the transcribed record and it would appear from
the letter that what in fact was given to them is a recording and not the
transcribed record.” ( All sic)

[9] Chairpersons recommendations1 is impugned on the further basis that it is not
prescribed by section 31(14) of Act 1 of 2017 as one of the sanctions that may
be imposed by the chairperson. Secondly it is contended t hat section 31(14)
of the Act gives power to him as the chairperson to impose a sanction and not
to make a recommendation. Statutor ily prescribed sanctions do not include a
recommendation to relieve a traditional leader of his duties. Accordingly, it is
contended that the chairperson miscon strued the powers statutorily bestowed
upon him.


1 It is recommended that Mr Hlamandlana be relieved of his duties as the Headman of Isikelo
Administrative Area, Bizana.
[10] With regards to the appeal decision by the Premier, the first applicant
impugns the Premiers’ decision dated 08th May 2023 for it lacked reasons.
The Premier confirmed chairperson’s decision without providing any reasons
for such decision.

[11] The first applicant contends that chairperson’s decision was influenced by a
material error of law , contrary to what it set s out, it is not in terms of the
provisions of section 24 re ad with section 31(18) of the A ct. Premier’s removal
of first applicant as headman amounts to usurpation of the function of the
Royal Family and falls to be reviewed and set aside on that basis.

[12] The above presents a fair summary and summation of applicant’s case. I
intend to deal with respondent’s case as I discuss relevant aspects of the
applicant’s case. However, the first applicant further impugns chairperson’s
decision on the basis that t here is no rational connection between the findings
made by the chairperson and the evidence tendered. That assertion is based
on the contention that the chairperson failed to evaluate the evidence and
evidential material before him including assessment o n credibility of evidence
and witnesses . His findings were arbitrary.

Chairperson’s Decision

Failure to provide Transcribed Record by the Chairperson

[13] The applicants impugn chairperson’s decision relating to sentence on the
basis that, notwithstanding request for transcribed record, the chairperson
failed to furnish same. The applicant contends that the transcribed record was
necessary for the applicant’ s counsel to prepare for mitigation of sentence.
The applicants rely on the provisions of section 31(6) of Eastern Cape
Traditional Leadership and Governance Act No 1 of 2017 (the Act) which
provides as follows:

“6. The chairperson must keep record of the notice of an inquiry and its
proceedings .”

[14] I have alluded in paragraph 8 above to the fact that the first applicant was
aware of respondent’s version that the recordings were sent to Mr Linyana,
first applicant’s legal representative, by Mr Parkies. The answering affidavit
records the following:

“10.2 for the record, mechanical recordings were sent to Mr Linyana
the attorney on record on 08th September 2021 by Mr Parkies who was
recording secretary in the hearing. ” (all sic)

[15] In this regard, nothing further is said in the replying affidavit. Both applicant
and respondent rely in the papers on the respondent’s email of 15th November
2021 which reads in relevant parts as follows:

“The requested recordings were duly served by Mr Parkies to Mr
Linyana the respondent’s counsel on 18th October 2021, as requested
by Linyana.”

[16] What appears to be common cause is that mechanical recordings were given
to first applicant’s legal representatives. The applicants seem to be making an
issue with the fact that transcribed records were not gi ven. However, the
applicants do not contend that the mechanical recordings that were given free
of charge, could not achieve a purpose that would be achieved by the
transcribed record, had it been given to the first applicant. I find this argument
to be p reposterous and to be without merit. Mr Linyana or the first applicant’s
counsel are not on record to say they could not use the provided mechanical
recordings to prepare for mitigation. That point cannot be upheld.

[17] The aforesaid argument is unmerito rious for other reasons. The applicants do
not make out a case on their founding p apers that the chairperson was i n
possession of a transcribed record. Reliance on section 31(6) of the Act is
misplaced in this regard. The section only enjoins the chairpers on to keep a
record of the notice of an enquiry and its proceedings. No transcribed record
is mentioned in the provisions. The record of proceedings referred to in the
empowering provision is what was given to Mr Linyana in the form of
mechanical recording s. The applicants were only clutching at straws in this
regard.

[18] Having said the above the respondents are on record to say the following in
their answering affidavit:

“31.5 Furthermore, the 4th respondent is not a transcriber of records.”

[19] No contrary suggestion is given by the applicants in their replying affidavit.
There is simply no basis , both in fact and in law , for the complaint about
chairperson’s failure to provide transcribed record. Had the first applicant
wanted transcribed records, he should have done it himself by making use of
the mechanical recordings given to him through his attorney, I therefore
decline to uphold this point.

[20] Mr Linyana or first applicant’s counsel accepted the mechanical recordings
as a servant of the first applicant and not for his own interest. He received
same for purposes of preparation for first applicant’s case and prepar ation of
those records was apparently on request by applicant’ s legal representative2.

Chairperson’s failure to give first applicant opportunity to represent his case in
mitigation of sentence

[21] The applicants seek to impugn chairperson’s decision on sentence on the
basis that the first applicant was not given an opportunity to present his
relevant circumstances in the mitigation of sanction. They further seek to
assa il chairperson’s decision on a further basis that same was taken in the
absence of the first applicant. Reliance sought to be placed on the provisions
of section 31(12) of the Act which provides :


2 Feldman v Mall and Samer v Duursema 1951 (2) SA 22 (O) 25 A .
“Before deciding on the sanction, the chairperson must give the
Traditional leader an opportunity to present relevant circumstances in
mitigation…”

[22] The respondents record in their answering affidavit that the chairperson
afforded both parties time to sub mit their written submissions on aggravating
and mitigating factors. The other party complied and submitted his written
submissions on aggravation of sentence. The applicant failed to do so and
ignored all chairperson’s reminders to submit written submission in mitigation
of sentence.

[23] In suppo rt of their submission the respondents put up an evidence in the form
of an email transmitted by chairperson to the first applicant dated 15th
November 2021 which reads as follows in the relevant parts:

“This email serves to remind that the respondents/Mthetho
Hlamandana has not yet filed it mitigating factors in this matter. T he
mitigating factors and aggravating circumstances were due on the 22nd
October 2024… .an email was again sent as a reminder to submit the
mitigating factors at the end of October, nothing has been received only
the aggravating has been since received…..I once again urge you to
submit the same. The expected dated is 19th November 2021.” (all sic)

[24] It is not in dispute that the aforesaid email was received by or on behalf of the
first applicant ; neither do the applicants explain their reason to ignore this
email and other emails preceding it. It is not gainsaid or seriously disputed
that chairperson ’s endevours to elicit and obtain mitigating factors from the
first applicant we re in compliance with the provisions of Section 31(12) of the
Act. No argument was made on behalf of the applicants explaining the
manner in which the provisions of S ection 31 (12) of the Act were contravened
in the context of the facts of this case3. I therefore come to a conclusion that
the first applicant was given sufficient opportunity to present his circumstances

3 Aktebolaget Hassle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) Para 1. “ In law
context is everything. ”
in the mitigation of sentence. The empowering provision does not provide the
manner in which such opportunity must be given. I, however, conclude that
the purpose of the provisions was satisfied. Accordingly, this point too, cannot
be upheld.

Lawfulness of chairperson’s recommendations to the Premier’s decision dated
28th February 2022

[25] It is contended that the recommendation made by the chairperson to the
Premier for first applicant to be relieved of his duties is unlawful as it is not
provided for by releva nt empowering provisions. Reliance is placed on the
provisions of Section 31(14) of the Act which provides as follows:

“(14) The chairperson may impose on a traditional leader one or more
of the following sanctions -

(a) a formal warning;

(b) a final warning;

(c) a reprimand;

(d) a suspension without pay for no longer than three months;

(e) a fine not exceeding an amount equal to three months
remuneration, which may be recovered from the remuneration
paid to a traditional leader concerned in terms of the
Remunerati on of Public Office Bearers Act, 1998 (Act No. 20 of
1998), in such instalments as may be determined, which must
be paid into the Provincial Revenue Fund; or

(f) referral of the matter to the royal family with an instruction that
the matter be dealt with in accordance with section 24 of this
Act, if a presiding officer is satisfied that the matter falls within
the ambit of the referred section..”

[26] The provisio n confers power on the cha irperson to impose sanction(s) i n
circumstances where the Traditional leader has been found guilty of
misconduct. The nature of the sanctions to be imposed are statutorily
circumscribed and prescribed. They are statutorily listed. The maxim of
interpretation “expressio unius est ex clusio alterius.” applies. It means i n
simple terms: “express mention of o ne thing is an exclusion of the other4.”
Express mention of the listed sanctions in section 31(14) of the Act excludes
the possibility of another sanction (not specifically prescribed by the Act) to be
imposed by the chairperson. Any act to the contrary would be an act beyond
the scope of the power statutorily conferred on the chairperson.

[27] Judicial review is concerne d with determining whether the impugned acts
were made within the ambit of empowering legislation and in accor dance with
the precepts of such law, in particular and the constitution, in general. The
primary function of the courts is to ensure that those who are charged with the
duty to perform public functions in terms of legislation act within the
parameters of t he law.5 A repository of power may exercise no power and
perform no function beyond that conferred upon it by law6 and must not
misconstrue the nature and ambit of the power. Courts have a duty to ensure
that the limits to the exercise of public power are not transgressed. An official
functionary is not entitled to arrogate to himself powers which have not been
conferr ed on him by law.7

[28] In the final analysis I come to the conclusion that the chairperson’s decision
dated 28th February 2022 recommending that the first applicant be relieved of

4 Ndaba v Ndaba 2017 (1) S 342 (SCA) Para 51 (and the relevant footnote); GM Cockram:
Interpretation of statute, 3rd Edition, page 151 -153.
5 Mwelase v Minister of Social Development and Others (CA74/16) [2018] ZAECMHC 12 (22
March 2018) Para 24 -25.
6 Fedsure Life Assura nce Ltd and others v Greater Johannesburg Transitional Metropolitan
Council and others 1999 (1) SA 374 (CC) Para 58 .
7 Minister of Social Development and another v Mpayipheli (CA135/16) [2018] ZAECMHC 33 (21
June 2018) Para 17 -18.
his duties as the headman of I sikelo Administrative Area, Bizana is unlawful
and liable to be reviewed and set aside.

Lawfulness of the Chairperson’s decision dated 12th August 2021

[29] This decision was presupposed by charges relating to:

(1) allocation of plots without the knowledge of the traditional council;

(2) abuse of power and extortion;

(3) disobedience of the traditional leaderships institutional support;

(4) insults;

(5) breach of code of conduct

The chairperson found the fir st applicant guilty of offences referred to in
charge 1,3 ,4 and 5. The first applicant was found not guilty of an offence
referred to in charge 2 which relates to abuse of power and extortion.

[30] The applicants seek to review and set aside the decision dated 12th August
2021. No d istinction is made in the relief sought between the decision finding
the first applicant guilty; and the one that finds the first applicant not guilty.
The entire decision of 12th August 2021 is entirely sought to be re viewed and
set aside. The decision of 12th August 2021, as it is made up of two sub -
decisions , namely the one finding the applicant guilty , and the other finding
him not guilty ; it is not entirely clear why the decision finding the first applicant
not guilty is sought to be reviewed and set aside.

[31] The general reason for seeking to set aside the decision dated 12th August
2021 is that the chairperson failed to apply an established technique
applicable to two conflicting versions. It is contended that the chairperson was
faced with two conflicting versions but failed to apply this technique to
establish which one of the versions is reliable. The chairperson is criticized for
failing to demonstrate on his reasoning why he rejected one version and
preferred the other. That rendered this finding to be flawed and his decision
for that reason falls to be reviewed and set a side. The conclusion is that,
based on the aforesaid, the chairperson’s findings are not rationally
connected to the evidence. The applicant s further state that for the aforesaid
reasons the chairperson committed a gross irregularity.

[32] The applicant c ontends that the chairperson’s finding i n this regard are not
rationally connected to the evidence that was placed before him. The basis for
this contention is that the chairperson failed to evaluate the evidence placed
before him and assess witness’s cred ibility and reliability to resolve the
divergent and conflicting versions of the parties. There’s no meaningful
dispute that the chairperson failed to evaluate evidence.

[33] Proper analysis, evaluation and assessment of evidence with proper reasons
is to rationalise the finding made and the reason of the decision maker.
Evaluation, analysis and assessment of evidence go hand in hand with the
necessity to give reasons. Failure to give proper reasons is a failure to
properly rationalize the decision. There cannot be any proper reasons without
proper analysis, evaluation and assessment of evidence. Failure to evaluate,
analyse and assess parties’ versions is akin to refusal to give reasons for the
decision.

[34] Baxter: Administrative Law at Page 228 puts it thus:

“In the first place a duty to give reasons entails a duty to rationalize the
decision. Reasons therefore help to structure the exercise of discretion,
and the necessity of explaining why a decision is reached and requires
one to address one’s mind to the d ecisional referents which ought to be
taken into account. Secondly, furnishing reasons satisfies an important
desire on the part of the affected individual to know why a decision was
reached. This is not only fair - it is also conducive to public confidence
in the administrative decision making process. Thirdly - and probably a
major reason for the reluctance to give reasons -rational criticism of
decision may only be made when the reasons for it are known .”

[35] The above sentiments apply with equal force where the decision -maker has
failed to weigh two divergent and conflicting versions against each other and
explain why one evidence is preferred over the other. It is necessary to
explain to the losing party why his or her evidence is rejected. That is
obviously a process of rationalizing the decision. I reiterate that the process of
evaluating parties’ evidence does not only entail a duty to give reasons but is
also intertwined with the process of giving the reasons for the decision.

[36] On this po int, I come to the conclusion that chairperson’s decision dated 12th
August 2021 is irrational for want of evaluation of parties’ evidence and proper
reasoning. Accordingly, it cannot survive the judicial scrutiny of review and
setting aside.

Lawfulness of the Premier’s Decision dated 08th May 2023

[37] The P remier, assuming appeal authority penned a letter incorporating the
outcome of the appeal in the following terms:

“Outcome of Appeal

I refer to the above matter and to your notice of appeal submitted on
your behalf by your legal representative, Mr Linyana dated 11 March
2022.
I have considered all the facts as presented to me and I have decided
in terms of sectio n 31( 18) an d 24 of the E astern Cape Traditional
Leadership Ac, 2017 (Act No 1 of 2017) to confirm the finding and
sanction of the Presiding officer of the Hearing.
I therefore relieve you of your duties as Headman of the Isikelo
Administrative Area in the district of Bizana, with effect from the date of
receipt of this letter… ” (all sic)

The Premier took an independent decision to relieve the first applicant of his
duties as Headman of Isikelo Administrative Area, Bizana.

[38] The decision purports to have been taken or made in terms of section 31(18)
and 24 of the Act . It is therefore apposite to quote the text of section 31(18) of
the Act. Section 31(18) of the Act provides as follows:

“18. The Premier may, after having considered the appeal, confirm, set
aside or vary the decision of the presiding officer and inform the
relevant traditional leader as well as the presiding officer and inform the
relevant traditional leader as well as the presiding officer of the
outcome of the appeal”.

[39] The appeal referred to in section 31(18) of the Act is the one that has been
lodged by a Traditional leader in terms of section 31(17) of the Act which
section reads as follows:

“17. A traditional leader who has been warned, reprimanded, or
suspended, or whose matter has been refe rred to the royal
family in terms of paragraph (a), (b), (c), (d), (e) or (f) of
subsection (14), may within seven days of having been notified
of the decision of the presiding officer, appeal to the Premier in
writing, setting out the reasons on which the appeal is based ”.

It is now plain that it is the aggrieved traditional leader who must appeal the
decision to trigger the operation of section 31(17) and 18 of the Act. The
Traditional leader must have been aggrieved by the prescribed types of
sanctions. That did not happen as no reference is made to the prescribed
sanctions in the Premier’s decision. The Premier lacked the jurisdictional fact
to consider the appeal. The first applicant has not been sanctioned in terms of
section 31(1 4) and (17) of the Act .

[40] Because the provisions of section 24 of the Act are referred to in the Premier’s
letter, it is opposite to quote that section herein, especially subsection 1(e)
which refers to section 31. Section 24(1)(e) of the Act provides:

“(1) A traditional leader may, subject to the provisions of the
Promotion of Administrative Justice Act, 2000 (Act No.3 of
2000), be removed from office on the grounds of -
(a)……
(b)……
(c)……
(d)……
(e)misconduct as contemplated in section 31”.

[41] Section 24 of the Act applies only when the Royal Family has recommended
the removal of the Traditional leader to the Premier,8 in instances where any
ground for removal referred to in section 24(1) has come to its attention. The
second instance is when it has come to the attention of any person that there
is a legal ground for the removal of the traditional leader, that person must
inform the Premier of such ground who , in turn , must refer the matter to the
Royal Fami ly concerned for investigation, recommendation and a report.9
When it has been recommended by the Royal Family that a Traditional leader
be removed, the Pr emier must apply the rules of natural justice, especially
audi alteram partem rule and inform the Traditional leader, Royal Family
concerned and the Provincial house of Traditional of his decision.10 If the
decision is that of removal of Traditional leader the Premier must publish the
particulars of the Traditional leader in the pr ovincial gazette.11

[42] It is important to note that one of the sanctions the chairperson may impose is
“referral of the matter to the Royal family with an instruction that the matter be
dealt with in accordance with section 24 of this Act, if the presid ing officer is
satisfied that the matter falls within the ambit of the referred section.”

8 Section 24(2)(a) of the Act .
9 Section 24(b)(1) of the Act .
10 Section 24(3) of the Act .
11 Section 24(3)(d) of the Act .
Harmonious reading of section 24 (1)(e) and 31 (14)(f) of the Act
demonstrates that once the Premier or chairperson / Presiding officer
harbours a view that a sancti on of removal has to be meted out to the
traditional leader, he must refer the matter to the Royal family with instructions
that section 24 of the Act must be invoked

[43] The upshot of this is that if a Tradit ional leader has to be removed i n terms of
section 24 read with section 31, it has to be by and as a result of a
recommendation made by the Royal family. Premier’s decision, by all means,
must follow a recommendation of the Royal family. A recommendation of a
royal family is a preconditi on without which a power to remove cannot be
exercised by the Premier.

[44] In the administrative law parlance the Premier’s power to remove a traditional
leader under section 24 and 31 of the Act is therefore dependant on the
jurisdictional fact of a rec ommendation by the Royal Family. Under common
law, necessary preconditions that must exist before an administrative power
can be exercised, are referred to as jurisdictional facts. In the absence of such
preconditions or jurisdictional facts the administra tive authority effectively has
no power to act at all.12

[45] Jurisdictional facts refer broadly to preconditions or conditions precedent that
must exist prior to the exercise of the power and procedures to be followed, or
formalities to be observed, when exercising the power: substantive
jurisdictional facts in the case of preconditions a nd procedural jurisdictional
fact in the case of procedural requirements and formalities. These facts are
jurisdictional because the exercise of power depen ds on their existence or
observance as the case may be 13.

[46] It is true that we sometimes refer to lawfulness requirements as jurisdictional
facts. So the absence of a jurisdictional fact does not make the action a nullity.

12 Kimberly Junior School and another v head of the Northern Cape Education Department and
Others 2010 (1) SA 217 (SCA); 2009 (4) ALL SA 135 (SCA) Para 11 -12.
13 Cora Hoexter: Administrative Law in South Africa, Second Edition, Page 290 .
It means only that the action is reviewable usually on the grounds of
lawfulness (but sometimes also on the grounds of reasonableness). Our
courts have consistently treated the absen ce of jurisdictional fact as a reason
to set the action aside, rather than as rendering the action non -existant from
the outset.14

[47] Where a statute prohibits the doing of something unless something else is
done as a condition precedent to doing the th ing prescribed, it is a general
rule of interpretation that the provisions of the Act are obligatory and not
directory.15Statutory requirement construed as peremptory usually needs
exact compliance for it to have the stipulated legal consequences and any
purported compliance falling short of that is a nullity16. Provisions of section 24
and 31 of the Act are peremptory and they require exact compliance by the
Premier to have the stipulated legal consequences. Failure to comply with
peremptory statutory prov ision is fatal.

[48] In the preceding paragraphs I have already found that the chairperson has no
power t o make a recommendation to the P remier for the removal of the first
applicant. It is only the Royal family that is statutorily empowered to make
such a recommendation. In upholding, confirming , following that
recommendation the Premier did not only take a decision to reli eve the first
applicant of his duties following u nauthorised or unwarranted dictates of the
chairperson,17 he took decision that contravenes the Act and which is not
authorized by the empowering provisions.18Accordingly and for that reason
Premier ’s decision is reviewable under section 6(2) of PAJA. It matters not
that the matter was brought before the P remier under the gui se of an appeal.
The matter of the fact is , the P remier took a decision removing a Traditional
leader without the nec essary recommendations of t he Royal family
concerned. In so doing he acted in contravention of the a ct.


14 MEC for Health, Eastern Cape and another v Kirland Investments (Pty) Ltd 2014(3) SA 481
(CC) Para 98 -99; Walele v City of Cape Town and others 2008(6) SA 129 (CC) Para 72 .
15 G.M Cocram: Interpretation of Statute, 3rd Edition, Page 162 .
16 Shalala v Klerksdorp Town Council & another 1969 (1) SA 582 (T) at 587 A -C.
17 Section 6(2) (e) (iv) of Promotion of Administrative Justice Act 2 of 2000 (PAJA) .
18 Section 6(2) (e) (f) of PAJA .
[49] As a functionary exercising a public power or performing a public function i n
terms of the legislation, the Premier is an organ of state.19 State functionaries,
no matter how well -intentioned may only do what the law empowers them to
do. That is the essence of principle of legality, t he bedrock of our constitutional
dispensation, and has long been enshrined in our law.20

[50] Langa CJ21 observed as follows:

“68.…. The doctrine of legality, which requires that power should have
a source in law, is applicable whenever public power is exercised.
Private power, although subject to the law and in certain circumstances
the Bill of Rights, does not derive its authority or for ce from law and
need not find a source in law. Public power on the other hand can only
be validly exercised if it is clearly sourced in law.”

[51] Provisions of section 24 read together with section 31 of the Act de monstrably
stipulates that the P remier m ay exercise power only if there are
recommendations from the Royal family , not from the chairperson; otherwise
the P remier would not have power. On the facts of this case the P remier’s
power to remove the first applicant as traditional leader was not source d in
law. In the circumst ances stipulated in section 31(14 ) (f) of the Act, to wit,
where the royal family has recommended to the Premier that a Traditional
leader be removed , that recommendation ignites a process where Audi
alteram partem principle to be invoked. I say this only “ en passant ” because it
is a situation which comes to play when there is a recommendation from the
Royal family concerned. In this case that is not the position.

[52] The law cannot and does not countenance an ongo ing illegality. The courts
have a concomitant duty to uphold the doctrine of legality, by refusing to

19 Section 239 of the Constitution .
20 Head of Department, Department of Education, Free State Province v Welkom High School
and another; Head of Department, Department of Education, Free State Province v Harmony
High School and another 2014 (2) SA 228 (CC) Para 1 .
21 AAA Investments (Proprietary) Limited v Micro Finance Regulation Council and anothe r
2007(1) SA 343 (CC) Para 68 .
countenance an ongoing statutory contravention.22 Courts have a duty to
ensure that the doctrine of legality is upheld. They are constrained by the
doctrine of legality to enforce the law and to uphold the rule of law.23 If this
court were to allow P remier ’s decisio n dated 08 May 2022 to stand, it would
otherwise be promoting unlawfulness and lending its aid to the enforcement of
an illegal act. On this point Jafta J in the Constitutional Court24 observed as
follows:

“77. …. It is a basic principle of our law that a court can never lend its
aid to the enforcement of an illegal Act.”

Remedy

[53] The applicant s sought the chairperson’s decision dated 12 August 2021 and
28 February 2022 to respectively be reviewed and set aside. I have made my
view clear in the preceding paragraphs about the chairperson’s decisions of
12 August 2021 and 28 February 2022 and the flaws surrounding those
decisions . I don’t intend to repeat here the flaws affecting those decisions.

[54] With regard to the chairperson’s decision s dated 12th August 2021 and 28
February 202 2 I have found that the decisions are review able and they should
be set aside. The practical effect of setting aside only the decision s is that the
proceedings from which the decision s emanate are still extant before the
tribunal25. It is so because they have not been challenged in the instant
proceedings.26 The best order to make in those circumstances is to remit the
matter for a lawful decision to be taken with in the stipulated time limits27.The
adverse effects of not giving directions to the chairperson regarding the

22 Lester v Ndlambe Municipality 2015 (6) SA 283 (SCA) Para 23,27 and 28 .
23 Cools Ideas 1186 CC v Hunnard and another 2014 (4) SA 474 (CC) Para 99; Lester v Ndlambe
Municipality 2015 (6) SA 283 (SCA) Para 24,26 and 28 .
24 Cools Ideas 1186 CC V Hubbard and another 2014(4) SA 474 (CC) Para 77 .
25 Matiwane v President of the Republic of South Africa and others 2019 (3) ALL SA (ECM) Para
27
26 Fischer v Ramahlele 2014(4) SA 614 SA (SCA) Para 13 .
27 Boqwana v Road Accident Fund Appeal Tribunal and others (3823/2018) [2019] ZAECMHC 67
(12 November 2019 Para 16 .
proceedings giving rise to the decision s of 12th August 2021 and 28th February
2022 will be to stymie the proceedings. This approach is not unusual.28

[55] Premier’s decision , effectively relieving the first applicant of his duties , is
successfully challenged and deserved to be reviewed and set aside. It had no
basis in law. He did not follow the legislated legal process. The Rule of law
does not permit an organ of state to reach what may turn out to be a correct
outcome by any means. On the contrary, the Rule of law obliges an organ of
state top use the correct legal process.29

[56] In my discretion the Premier and the chairperson are found liable to pay
applicant’s costs, jointly and severally one paying the other to be absolved.

Order

[57] In the result I make the following order:

57.1 The fourth respondent’s decision s dated 12th August 2021 , finding the
first applicant guilty of misconduct is hereby reviewed and set aside.

57.2 The fourth respondent’s decision dated 28th February 2022 is hereby,
reviewed and set aside.

57.3 The first respondent’s decision dated 08th May 2022 is hereby reviewed
and set aside.

57.4 The fourth respondent is directed to finalize the proceedings from
which the decision of 12th August 2021 and 28th February 2022
emanated within 180 -days from the date of the service of this order.


28 Road Accident Fund v Duma and Others 2013(6) SA 9 (SCA), May v Health Professionals
Council of South Africa and others (1996/2016) [2017 ZAGPHC 739 (28 November 2017) .
29 Head of Department, Department of Education, Free State Province v Welkom High School
and another; Head of Department, Department of Education, Free State Province v Harmony
High School and another (CCT103/12) [2013] ZACC 25;2013(9) BCLR 989 (CC ); 2014 (2) SA 228
(CC) Para 86 .
57.5 The first and fourth respondent s are hereby directed to pay applicants ’
costs on a party and party scale jointly and severally one paying the
other to be absolved.


______________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT


APPEARANCES:

For the Applicant s : Adv Ngumle
Instructed by : DZ DUKADA & CO
73 Nelson Mandela Drive
Mthatha
Ref:VMS/tm/
Email: duxlaw@telkomsa.net

For the Respondent s : Adv Mdodana
Instructed by : STATE ATTORNEY
94 Sission Street
Fortgale
Mthatha
Ref:943/22 -A8H
Email: XHanise@justice.gov.za

Matter heard on : 21 November 2024
Delivered on : 04th February 2025