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IN THE HIGH COURT OF SOUTH AFRICA
(EAST ERN CAPE DIV ISION, MTHATHA )
CASE NO .: 3603/2021
Reportable NO
In the matter between:
SAZISO MKONO First Applican t
GIBISELA TRADITIONAL COUNCIL Second Applicant
and
MEC FOR CO -OPERATIVE GOVERNANCE AND First Respondent
TRADITIONAL AFFAIRS, EASTERN CAPE
PREMIER OF THE EASTERN CAPE Second Respondent
NTSIKA MKONO Third Respondent
LWAZI MKONO Fourth Respondent
___________________________________________________________________
JUDGMENT (APPLICATION FOR LEAVE TO APPEAL)
___________________________________________________________ ________
Cengani -Mbakaza AJ
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[1] On 10 August 2021, the applicants approached this court by way of a notice
of motion seeking an order setting aside the decision of the first respondent. The
decision which was based on the findings of a panel appointed by the first
respondent effectively found that the fourth respondent qualifies as a traditional
leader of the AmaNdanya community. The ap plicants also sought an order dec laring
the first respondent’s act of appointing a panel to investigate the Headmanship of
Ndanya Administrative Area between the first applicant and the third respondent to
be unlawful and of no legal force and effect. In a ddition, the applicants sought an
order declaring that the resolution taken on 3rd April 2018 where a determination was
made on who should be the Headman of the Ndanya Administrative Area between
the first applicant and the third respondent to remain lawfu l. This resolution
recognized the first applicant as the Headman of the AmaNdanya community.
Furthermore, an order was sought directing the first or second respondent to
recognise the first applicant as the Headman of Ndanya Administrative Area.
[2] Subsequent to the relief sought which was vehemently opposed, I granted
an order dismissing the application with costs. Aggrieved by the events, the
applicants applied for leave to appeal to the Full Court against the whole judgment
(the judgment a quo) and the order that I made. The grounds of appeal are
comprehensively stated in the notice of appeal dated 14 November 2024. In my
opinion , it is unnec essary to repeat these grounds, as it appears that all these issues
listed as the grounds of appeal were submitted in the previous court hearing and
meticulously dealt with in the judgment a quo .
[3] Again, I do not see it befitting to repeat the whole background of this case .
However, it may be necessary to give a glimpse of what had led to this litigation. The
passing of Nkosana Velile Mkono (the deceased) created a contentious succession
dispute within the AmaNdanya community. This controversy w as further exacerbated
by the existence of a will, wherein the deceased leader bequeathed the communal
land of AmaNdanya and, more importantly , nominated the first applicant to succeed
him as the traditional leader of Ama Ndanya community. This will was not
administered , specifically on the issue of land because the deceased had no
authority to administer the land that falls under the Tribal Authority. The dispute
escalated when the clique of AmaNdanya community recognised the third
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respondent as the rightful successor of the AmaNdanya. Conversely, on 2 April 2018
the first applicant and his siblings from the second wife’s lineage held a meeting
under the chairpersonship of Ms Nom awonga Mapipa (the aunt/ udadobawo ) and
recognised the first applicant as the legitimate Headman of the AmaNdanya
community.
[4] Aggrieved by the events, the third respondent challenged the recognition
made under the chairpersonship of udadobawo , including the will. Following these
controversies, a plethora of litigation ensued, with numerous cases being filed one
after the other involving all the parties except for the fourth respondent.
[5] On 09 February 2021, the parties obtained an order by consent under Case
No.4048/2020 (court order) . The order reads thus :
‘Having considered the documents filed of record and hearing Mr Mtshabe
for the applicant:
IT IS ORDERED BY CONSENT THAT:
1. The application, in respect of both PART A and PART B, is stayed
pending the investigation by the 1st Respondent, the MEC for Co -
operate Governance and Traditional Affairs, on the suitable candidate
for the Headmanship of AmaNdanya Administrative Area, Ngqelen i,
between the Applicant and the 7th Respondent;
2. That costs of the application are hereby reserved. ’
[6] This court order serves as a foundation that led to the appointment of the
panel, which subsequently resulted in the recognition of the fourth respondent as the
Headman of the AmaNdanya community. In the circumstances, declaring the first
respondent’s act of appointi ng a panel to investigate the legitimate Headman
between the first applicant and the third respondent unlawful would have been
absurd because this process was because of the order that was obtained by
agreement between the parties.
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[7] An application for leave to appeal is regulated by Section 17 of the Superior
Court’s Act1 (the Superior Court’s Act) which provides as follows:
‘17. Leave to appeal
(1) Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a) (i) the appeal would have reasonable prospects of success; or
(ii) there is some compelling reason why the appeal should be heard,
including conflicting judgments on the same matter under
consideration…………’
[8] In the present instance, there are substantive grounds that underpin my
conviction that there exist compelling reasons that warrant scrutiny by the appellate
court, and it i s those reasons that I shall now turn to . It is observed that in its
investigation the first respondent embarked on a more comprehensive fair approach
and interviewed all the interested parties. Although the investigat ion was flawlessly
conducted, in my view, the court order was only limited to investigate who between
the first applicant and the third respondent should succeed the deceased. How ever,
in a curious turn of events which were culminated by the investigations, it became
apparent to the majority of the interviewees that due to the history of the customs ,
tradition al values and customary law of the AmaNdanya , inkulu (the first -born son of
the first wife) qualifie s to be appointed as a successor. For that reason, the process
of recognising the fourth re spondent as the deceased’s successor as opposed to the
first applicant and the thir d respondent ensued.
[9] A crucial question that necessitates a thorough scrutiny by the appellate
court is whether the findings of the panel appointed by the first respondent which
resultantly led to the recognition of the fourth respondent , who was not part of the
1 Act 10 of 2013.
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original dispute did not constitute the overstepping of the court order which was
obtained by agreement between the parties involved.
[10] Having conside red the submissions made by both parties including a
vigorous opposition to the application for leave to appeal, I consider the issue s that I
have raised above as compelling reason s for the granting of this application.
Consequently , the application for le ave to appeal must succeed.
Order
[11 The following order is issued:
1. The application for leave to appeal to the Full Court, Eastern Cape
Division is granted.
2. Costs shall be costs in the appea l.
______________________ _
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES :
For the Applicants : Adv. N. Mdodana
Instructed by : DZ DUKADA &COMPANY
73 Nelson Mandela Drive
MTHATHA
Ref.: VMS /tm
Tel.: 047 – 531 0547
For the First and Second Respondent : Adv: L.L. Ngumle
Instructed by : STATE ATTORNEY
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94 Sissons Street
MTHATHA
Ref.: 1342/21 -A8H (Mr Hanise)
Tel.: 047 – 502 9900
For the Third and Fourth Respondent : Mr NZ Mtshabe
NZ MTSHABE INCORPORATED
137 York Road
MTHATHA
Ref.: Mr. N.Z. Mtshabe
Tel.: 047 – 532 2454
Date Heard : 14 November 2024
Date Delivered : 11 February 2025