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[2018] ZACC 50
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Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50; 2019 (3) BCLR 360 (CC) (6 December 2018)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 285/17
In the matter
between:
SITHEMBILE
VALENCIA MKHIZE
N.O.
Applicant
and
PREMIER OF THE
PROVINCE OF
KWAZULU-NATAL
First
Respondent
MKHANYISENI
MBUYAZI
Second
Respondent
UMNDENI
WENKOSI
Third
Respondent
MEMBER OF THE
EXECUTIVE COUNCIL OF
THE DEPARTMENT OF
CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL AFFAIRS,
KWAZULU-NATAL
Fourth
Respondent
Neutral citation:
Mkhize N.O. v Premier of the Province of KwaZulu-Natal and Others
[2018] ZACC 50
Coram:
Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron J
Judgment:
Dlodlo AJ (unanimous)
Heard on:
2
August 2018
Decided on:
6
December 2018
Summary:
administrative action — right to seek review —
customary law — transmissibility of right to review
res judicata
— requirements — finality — decision concerning
legal standing is final
ORDER
On appeal from the
High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg:
1. The condonation applications of both the applicant and the
respondents are granted.
2. Leave to appeal is granted.
3. The appeal is upheld and the order of the High Court of South
Africa, KwaZulu-Natal Division, Pietermaritzburg is replaced with
the
following order:
“(a)
The application by Mr Mkhanyiseni Mbuyazi initiated in November 2015
for the order of Van Zyl J, to be rescinded and
for ancillary relief
is dismissed; and
(b)
The counter-application for consolidation of the application under
case number 4862/2015 by Ms Sithembile Valencia Mkhize N.O.,
and for
relief in prayer 2 of her notice of application for consolidation, is
granted.”
4. The consolidation application of the applicant is granted.
5. The respondents are ordered to pay the costs of the application in
this Court, jointly and severally, including the costs of
two
counsel.
JUDGMENT
DLODLO AJ
(Mogoeng CJ, Basson AJ, Cameron J, Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron
J concurring):
Introduction
[1]
Before us is an application for leave to appeal against the
judgment and order of the High Court of South Africa, KwaZulu-Natal
Division, Pietermaritzburg (High Court).
[2]
The applicant is Sithembile Valencia Mkhize (Ms Mkhize), the
wife of the late Inkosi Zwelibhekile Sibusiso Mbuyazi (deceased) who
was the Inkosi
[1]
of the Mbuyazi Traditional Community (Community) in KwaZulu-Natal
(KZN). Ms Mkhize is acting in her capacity as executrix
of the
estate of the deceased.
[3]
The first and fourth respondents are the Premier of KZN
(Premier) and Member of the Executive Council (MEC) of the Department
of
Co-operative Governance and Traditional Affairs of KZN
(Department), respectively. The second respondent is Mr
Mkhanyiseni
Mbuyazi, the deceased’s brother from the second
wife of the deceased’s father. The third respondent is
umndeni
wenkosi, which is the Royal Family of the Community in KZN.
Background
[4]
The deceased’s father and the Community’s former
Inkosi, Inkosi Mtholeni Mthiyane Mbuyazi, had more than one wife as
is customary in Zulu tradition. In a Zulu polygamous marriage
each wife constitutes a separate house. The house of
the first
wife is known as “indlunkulu”,
[2]
the house of the second, “ikhohlo”,
[3]
and the house of the third, “iqadi”.
[4]
[5]
In succession under Zulu law, the general rule is that the
heir to the throne is the first born son in the indlunkulu.
There
are exceptions to this rule recognised in customary law.
[6]
The deceased’s father passed away on 22 June 2005. The
Premier and the Department were informed that umndeni wenkosi
had met
for purposes of selecting the successor and had selected the deceased
in terms of section 19(1) of the KwaZulu Natal
Traditional
Leadership and Governance Act
[5]
(Act). The Premier resolved to recognise the deceased as Inkosi
in terms of the Act and informed the deceased of his decision.
The deceased took over as
de facto
Inkosi in September 2006.
However, there was a dispute amongst members of umndeni wenkosi
regarding who the rightful
Inkosi was, and an expert in Zulu law,
Professor Langalibalele Mathenjwa, was appointed with the
agreement of umndeni wenkosi
to investigate and resolve the dispute.
Following his investigation, Professor Mathenjwa recommended
that the second
respondent be appointed as Inkosi. The Premier
notified the deceased that his recognition as Inkosi had been
withdrawn and
issued a certificate of recognition in favour of the
second respondent.
[7]
Aggrieved by this, the deceased launched an urgent application
in the High Court on 29 March 2010 seeking a review of the
Premier’s
decision to withdraw his recognition as Inkosi
(review application). He also sought an interim order in the
form of a rule
nisi
calling on the respondents to show cause
why he should not be reinstated and the appointment of the second
respondent, suspended
pending the outcome of the review (interim
relief). The interim relief was granted on 11 May 2010 by
Madondo J.
On 26 May 2010, upon application by the
Premier, Koen J varied the interim relief. Koen J granted
the Premier leave
to oppose the review and directed the Premier to
appoint an appropriate person, being neither the deceased nor second
respondent,
to function as IbambabuKhosi.
[6]
[8]
The deceased subsequently supplemented his prayers and
introduced a claim seeking the reinstatement of payment of his salary
and
payment of arrear salary amounts (monetary claim).
[9]
The review application was heard in the High Court by Van Zyl
J on 23 September 2010 and on 7 June 2011 judgment was handed
down (Van Zyl J order). Van Zyl J held that the matters before
him were too complex to be decided on the papers and considered
that
the interests of both the parties and the Community would be best
served if the matter was referred to trial. He ordered
that the
succession dispute go to trial and that the interim relief remain in
force pending the finalisation of the review.
[10]
In October 2011, the deceased then brought an application
seeking funding for the review application and the monetary claim
from
the Mbonambi Community Development Trust (funding application).
He was the founder of that Trust and co founder of the
Mbonambi
Community Public Benefit Trust and a trustee in both Trusts.
The funding application was heard by the High Court
and judgment was
reserved.
[11]
On 7 July 2012, the deceased passed away. Following the
deceased’s death the second respondent brought an application
in the High Court seeking an order: (a) discharging the interim
relief granted in the High Court by Madondo J and subsequently
varied
by Koen J; (b) dismissing the review; (c) confirming the Premier’s
decision to withdraw recognition of the deceased
as Inkosi; and
(d) suspending and terminating the appointment of IbambabuKhosi.
[12]
The grounds on which these orders were sought can be
summarised as follows: The rights of the deceased to be recognised as
Inkosi
were personal to him; to be recognised as Inkosi he must be
alive; and these rights were not transmissible to his heirs or anyone
else. It was accordingly submitted by the second respondent
that there was no legal basis upon which the executrix or any
heir
could lay claim to the traditional leadership position in the absence
of a declaratory order confirming the deceased as the
rightful
Inkosi.
[13]
On 9 November 2012, the Premier also brought an application
seeking the dismissal of both the main review application and the
funding
application with costs. The basis for the Premier’s
application was similar to that of the second respondent.
[14]
On 12 November 2012, Ms Mkhize filed a notice of opposition to
both applications and on 16 November 2012, brought a
counter-application
seeking to be substituted as the applicant in the
review application, monetary claim and funding application in her
capacity as
executrix of the deceased’s estate. She also
sought to be joined in the proceedings as mother and legal guardian
of
the minor son of the deceased, Phathokuhle Mbuyazi. Ms
Mkhize also sought an order directing the Premier to pay to the
estate
the further amounts to which the deceased was entitled as
salary from November 2010 until 7 July 2012. The
counter-application
was opposed by the Premier and second respondent.
[15]
The questions before the High Court were whether: (a) the
death of the deceased had put to an end his right to review the
decision
of the Premier; (b) his minor son had any right to claim
that he should be appointed as Inkosi; and (c) the applicant as
executrix
should be appointed as Regent until such time that the son
reached majority.
[16]
On 9 July 2013 Booyens AJ dismissed Ms Mkhize’s
application to be substituted as the applicant in her capacity as
executrix
in the deceased’s review and funding applications and
be joined as applicant in her capacity as mother and legal guardian
of her minor child (Booyens AJ judgment). Booyens AJ also
rescinded the Van Zyl J order referring the succession dispute
to
trial and discharged the rule
nisi
but made no order as to
costs
.
[17]
Unsatisfied
with this outcome, Ms Mkhize appealed to the Supreme Court of
Appeal. That Court held that the deceased’s
right to
reinstatement was a personal right and consequently not transmissible
to Ms Mkhize.
[7]
For this reason, the Court held that she could not be substituted for
the deceased in the review application.
[8]
However, the non-transmissibility of this right did not preclude
Phathokuhle’s claim to succeed the deceased.
[9]
But the deceased’s son would need to be appointed by umndeni
wenkosi in terms of section 19(1) of the Act.
[10]
On this reasoning, the Supreme Court of Appeal upheld the appeal in
part and made the following order:
“2. Save for that part of the order dismissing the appellant’s
application to be substituted for the deceased in her
capacity as
guardian of Phathokuhle, the order of the court below is set aside
and for it is substituted the following:
(a)
The applicant, Sithembile Valencia Mkhize, in her capacity as
executrix of the estate of the late Zwelibhekile Sibusiso Mbuyazi,
is
hereby substituted as applicant in the deceased’s damages claim
and in his funding application.
. . .
(c)
The first and second respondents’ applications for the
discharge of the rule
nisi
and for the rescission of the
orders granted on 7 June 2011 are both dismissed, with costs.”
[11]
[18]
Significantly, the Supreme Court of Appeal held that the
monetary claim was separable from the review application as it was
contingent
upon proving that the deceased had been wrongfully
removed, and that Ms Mkhize could be substituted for the deceased in
the monetary
claim.
[12]
Further, it refused the application to rescind the Van Zyl J order
referring the matter to trial or to discharge the interim
order made
by Madondo J and varied by Koen J.
[13]
[19]
In January 2015 the Premier approached this Court for leave to
appeal against the order of the Supreme Court of Appeal. Ms
Mkhize brought a separate application in her capacity as mother and
legal guardian of Phathokuhle; she sought to be joined on behalf
of
Phathokuhle to assert the child’s rightful succession to the
deceased’s position of Inkosi on the basis that the
deceased
had been wrongfully removed by the first respondent. Both of
those applications were refused by this Court, on the
basis that it
was not in the interests of justice to hear the matter.
[20]
Following the judgment of the Supreme Court of Appeal, Ms
Mkhize instituted a separate action in the High Court in her capacity
as mother and legal guardian of Phathokuhle to assert his claim to
succession as Inkosi (succession claim). Simultaneously,
and notwithstanding the Supreme Court of Appeal judgment, the
second respondent brought an interlocutory application in the
deceased’s review application for the rescission of the Van Zyl
J order. This application was opposed by Ms Mkhize
through a
counter-application and an application for the consolidation of the
monetary claim and the succession claim.
[21]
The High Court, per Sishi J, held that the findings by the
Supreme Court of Appeal were incontrovertibly that Ms Mkhize had no
claim
in law to pursue a review of the withdrawal of recognition of
the deceased as Inkosi or appointment of the second respondent and
that consequently, there was no applicant to pursue the issue of
ubuKhosi
[14]
as a result of the death of the deceased. Sishi J held that the
monetary claim was a separate issue, unrelated to the fact
that the
deceased may have been unlawfully removed as Inkosi or the validity
of the appointment of the second respondent as Inkosi.
In the
light of the Supreme Court of Appeal judgment, Sishi J concluded
that the application for consolidation should also
fail, as Ms Mkhize
and Phathokuhle could not achieve anything in favour of Phathokuhle
in the litigation. Contrary to the
Supreme Court of Appeal
order, the High Court rescinded the Van Zyl J order of 7 June 2011
and discharged the rule
nisi
granted on 11 May 2010
and subsequently varied on 26 May 2010, in light of the finding that
Ms Mkhize could no longer
pursue the issue of ubuKhosi (as it
related to the deceased) and ordered her to pay costs.
[15]
[22]
Ms Mkhize applied to Sishi J for leave to appeal to the Full
Court but that application was dismissed. Her applications for
leave to appeal and for reconsideration suffered the same fate at the
Supreme Court of Appeal.
Jurisdiction and
leave to appeal
[23]
This matter raises issues of constitutional importance,
specifically: (a) the interpretation and application of a court
order;
[16]
and (b) the proper boundaries of the exercise of public power by the
Premier and the MEC. These issues plainly engage the
jurisdiction of this Court.
[24]
There has been protracted litigation in this matter and the
judgments handed down have varied immensely in their approach.
The applicant has reasonable prospects of success and it would be in
the interests of justice to grant leave to appeal expeditiously
to
secure finality in this matter.
Condonation
[25]
The applicant’s delay in filing her application was
negligible and the explanation for the delay was reasonable. The
same applies to the respondents’ application. Condonation
should be granted.
Issues
[26]
In respect of the merits of the appeal, the issues to be
decided are:
(a) whether the relief granted by Sishi J in the High Court was
competent;
(b) what the correct interpretation of the Supreme Court of Appeal
judgment is; and
(c) whether the interim relief should be set aside and the rule
nisi
discharged.
Applicant’s
submissions
[27]
First, counsel for Ms Mkhize submitted that the judgment by
Sishi J misinterprets and effectively overrules the judgment of the
Supreme Court of Appeal; and second, that that judgment and the two
later orders by the Supreme Court of Appeal dismissing her
application for leave to appeal failed to apply the principle of
res
judicata
(matter already adjudicated).
[17]
Counsel further submitted that the outcome of the judgment of Sishi J
is not only inconsistent with the order of the
Supreme Court of
Appeal, but is also unfair and unjust, and breaches the principle of
res judicata.
[28]
During the hearing before us it was also argued, on behalf of
Ms Mkhize, that the monetary claim is necessarily contingent upon the
question whether the deceased was wrongfully removed from office, as
is Phathokuhle’s succession claim. Ms Mkhize
echoes
the Supreme Court of Appeal’s sentiments that “convenience”
and “the interests of all” require
that the question of
salary and succession be resolved together and at trial.
Premier’s
and MEC’s submissions
[29]
The Premier and the MEC made two main submissions with regard
to the impact of the deceased’s death on the review of his
removal
from office and the interim order granted by Madondo J and
varied by Koen J. The nub of their submissions in respect of
the
review application was that the decisions of the Premier are
administrative actions and stand until they are set aside by a court
on review. They argued that, without a transmissible right and
an applicant to step into the deceased’s shoes in the
review
application, there is no one who has standing to bring a review of
the removal of the deceased, nor are there grounds upon
which to
bring it. There is only the monetary claim for loss of income
and the succession claim, which would not have the
effect of setting
aside the Premier’s decisions to withdraw recognition of the
deceased as Inkosi and appoint the second
respondent. Moreover,
they submitted that it was actually the review of the removal of the
deceased that was referred to
trial in the Van Zyl J order, not the
issue of the identity of the proper Inkosi. They therefore
submitted that the monetary
and succession claims are fundamentally
flawed as they cannot be decided without a determination of who ought
to be Inkosi.
[30]
In respect of the interim order, the Premier and MEC submit
that its purpose was to prevent prejudice to either party while the
review was pending and the review has now fallen away making the
interim relief unnecessary. Moreover, because there can be
no
review without a proper applicant, this order will continue
indefinitely, leaving the community without an Inkosi. It
was
further argued by the Premier and MEC that all attempts at appointing
IbambabuKhosi have failed because of unwillingness among
different
factions of the community to reach a compromise.
[31]
The Community has been without Inkosi since 2010, which has
had a detrimental effect on its governance. This, the Premier
and MEC submit, is despite the fact that there is a recognised adult
Inkosi (the second respondent) who could function as Inkosi
if
permitted. Counsel relied on these circumstances to argue that
even if this Court were to uphold Ms Mkhize’s appeal,
the rule
nisi
should be discharged on the basis of changed
circumstances or as an exercise of this Court’s discretion.
The Premier
and MEC further submit that even if the interests of
justice require that the second respondent or Phathokuhle must go
through
litigation to have one of their claims recognised, until
then, the rule
nisi
should be discharged and the second
respondent should be allowed to function as Inkosi.
Second
respondent’s submissions
[32]
The second respondent submitted that the right to seek a
review of the removal of the deceased was personal to the deceased
and
therefore non-transmissible. Consequently, when the
deceased died, the right to seek a review, and therefore the review
application
itself, died with him. In the result, the second
respondent argues that neither Ms Mkhize nor her son has the right to
pursue
the review application.
[33]
The second respondent also asserted that the monetary claim is
separate from the review but contingent on the question of wrongful
removal, which must be decided through a trial. However, that
trial would not be a review. It flows from this that
the
judgment of Sishi J was correct in setting aside the Van Zyl J order
insofar as it related to the review application.
The second
respondent conceded, however, that the Sishi J order may have erred
in rescinding the Van Zyl J order in its entirety
instead of
rescinding specifically the part of the order regarding the review
application.
[34]
Like the Premier and MEC, the second respondent supported
doing away with the interim relief. He argued that the Supreme
Court
of Appeal judgment provided no reasons why the rule
nisi
should not be discharged, and gave no direction in relation to
interim relief. He submitted that it therefore could not
definitively be said that the Supreme Court of Appeal judgment
ordered that the interim relief be kept in place. Moreover
the
interim relief was granted at a time when the review application was
still pertinent and before the deceased brought the monetary
claim;
however, the review application has since fallen away. Thus the
second respondent submitted that there is no longer
a reason for the
interim relief to persist. Alternatively, it must follow that
the Supreme Court of Appeal judgment left
the interim relief in
place, in which case it must be accepted that the interim relief was
granted in respect of the review application
alone, which ought to
have been, and was, set aside by the Sishi J order.
[35]
The second respondent argued that for a defence of
res
judicata
to succeed there must have been a final judgment on the
merits of a matter. He submits that he did not raise the issue
of
standing (although the Supreme Court of Appeal determined this
issue) in his second interlocutory application before Sishi J.
The second respondent sought relief only in respect of: (a) the rule
nisi
, which the Supreme Court of Appeal judgment had not
addressed and (b) the dismissal of the review application, which
flowed from
the Supreme Court of Appeal judgment and on which he
submitted the Supreme Court of Appeal had not made a finding.
The upshot
of that would be that the doctrine of
res judicata
does not apply.
Was the relief
granted by Sishi J competent?
[36]
Much of this case turns on the question whether Sishi J
reconsidered issues already pronounced upon by the Supreme Court
of
Appeal and whether in so doing, he infringed on the principle of
res judicata
. In
Molaudzi
this Court defined it
as “the legal doctrine that bars continued litigation of the
same case, on the same issues, between
the same parties”.
[18]
Importantly, the enquiry in respect of
res judicata
is not
whether the judgment is correct, but simply whether there is a
judgment.
[19]
The rationale of the doctrine is to bring finality to legal
proceedings by limiting repeat litigation on the same issues
and to
“ensure certainty on matters decided by the courts”.
[20]
[37]
In
Baphalane ba Ramokoka Community
[21]
this Court affirmed the Supreme Court of Appeal’s decision
in
National Sorghum Breweries,
[22]
holding that “the plea of
res judicata
may be raised
only where the same litigant seeks the same relief on the same cause
of action”.
[23]
However, the defence has been extended by the courts, on a case by
case basis, over time. This started in
Boshoff
where the
Transvaal Provincial Division held that the strict requirements of
res judicata
should not be applied inflexibly.
[24]
Since
Boshoff
the ambit of the
res judicata
defence has
been extended to include cases where the same issue must arise
between the same parties. The expanded defence
is sometimes
referred to as issue estoppel.
[25]
Broadly stated, the “same issue” enquiry is “whether
an issue of fact or law was an essential element of
the judgment on
which reliance is placed”.
[26]
In its explanation of the expanded defence in
Smith
[27]
the Supreme Court of Appeal said: “Each case will depend on its
own facts and any extension of the defence will be on a case-by-case
basis. Relevant considerations will include questions of equity
and fairness not only to the parties themselves but also
to
others”.
[28]
[38]
Importantly, the doctrine of
res judicata
will apply
only “where a cause of action has been litigated to
finality
between the same parties on a previous occasion”.
[29]
Where an order does not have final effect, the doctrine cannot
apply.
[30]
It has been held that the doctrine of
res judicata
does
not apply to interim interdicts or matters related to those
orders.
[31]
There is a good reason for this. Often interlocutory orders
such as interim interdicts are issued with the intention
of being
revisited, likely by the same court that issued them. A rule
nisi
, by its very nature is an interlocutory order. It
is intended to govern a situation in the interim, for a period, until
it
is discharged or confirmed. Similarly, the Van Zyl J order,
although contained in a reasoned judgment, was essentially a case
management order. In brief, it provides that: (a) the matter
will proceed to trial; (b) the affidavits filed will stand as
pleadings; (c) costs will be reserved; and (d) the interim
arrangements as per the rule
nisi
will remain in effect.
[39]
In considering whether an order is of final effect, Muller JA
in
Wanderers
stated:
“From a reading of the judgment of Howard J, and having regard
to the terms of the order made by him . . . I have no doubt
but that
the learned Judge intended that the issues raised before him would be
finally resolved in an action to be instituted by
the club and that
all that he was called upon to do was to make an order which would
operate
pendente lite
. The order made by him was
therefore not a final and definitive order.”
[32]
[40]
There is little difference between what was contemplated in
the order in
Wanderers
and the Van Zyl J order. There is
no doubt that Van Zyl J envisioned that his order would operate only
while the main matter
– the review application – was
pending. The order was not determinative of the issues between
the parties nor
did it determine the rights of the parties. The
Van Zyl J order merely set out the path to be followed in order to
have the
issues between the parties finally determined. It
served to govern the status quo until the main application had
reached
finality following the trial. For this reason, the Van
Zyl J order cannot itself be considered final.
[41]
The orders of Booyens AJ, the Supreme Court of Appeal and
Sishi J all concerned the rule
nisi
and the Van Zyl J order.
The pertinent question is therefore whether an order can be
considered final when it is concerned
with dismissal or discharge of
interim or interlocutory orders.
[42]
In
Cohn,
the finality of a dismissed matter was
considered and the Court stated:
“In dealing with the position where an action is dismissed,
Spencer Bower says that the answer to the question whether anything
can be said to have been decided, so as to conclude the parties,
beyond the actual fact of the dismissal depends upon whether .
.
. the dismissal itself is seen to have
necessarily involved a
determination of any particular issue or question of facts or law
,
in which case there is an adjudication on that question or issue; if
otherwise, the dismissal decides nothing, except that in
fact the
party has been refused the relief which he sought.’”
[33]
(Own emphasis.)
[43]
Also instructive is the more recent case of
Cipla
,
which dealt with the finality of court decisions in the context of
whether or not they could be appealed.
[34]
In that case, the Supreme Court of Appeal listed the following
attributes: “it must be final in effect; it must be
definitive
of the rights of the parties; and it must have the effect of
disposing of at least a substantial part of the relief
claimed”.
[35]
[44]
It appears that the question is whether Booyens AJ made a
determination of “any particular question of fact or law”
with the result that his order was final. I believe that he
did. In his judgment, Booyens AJ stated:
“The issue that falls to be decided is whether the death of the
[deceased] would put an end to his rights of review of the
decision
of the Premier and whether his minor son has got any right to claim
that he should be appointed Inkosi and the executrix
be appointed as
Regent until such time as he reached majority.”
[36]
[45]
Booyens AJ then held that “the right [of the deceased to
be Inkosi] is a purely personal right of his. He cannot in any
way deal with this right by transferring it in any way
whatsoever.”
[37]
On this basis, Booyens AJ held that Ms Mkhize did not have legal
standing to pursue the review of the deceased’s removal
and
dismissed her application for substitution. Does this satisfy
the
Cipla
criteria? Yes. The decision was final in
effect as Booyens AJ made a final determination of Ms Mkhize’s
legal
standing with the consequence that she was barred from pursuing
a review of the deceased’s removal from office – indeed,
the Booyens AJ order went so far as to bar anyone besides the
deceased from pursuing a review. It defined the rights of the
parties, specifically Ms Mkhize’s rights, and legal standing.
And the result was that the relief sought by Ms Mkhize
was disposed
of entirely. In light of the above, I must conclude that the
Booyens AJ order was final and fell within the
purview of the
doctrine of
res judicata
.
[46]
On the same reasoning, the Supreme Court of Appeal’s
decision was also substantively definitive in respect of Ms Mkhize’s
legal standing and was final. A final determination of a legal
issue is relevant to the application of the doctrine of
res judicata,
but also to that of precedent. The doctrine of precedent is
a cornerstone of the rule of law. It requires that where
a
legal issue has been authoritatively decided by a higher court, later
issues arising from similar facts must be resolved on the
authority
of the precedent set by the higher court.
[38]
In
Camps Bay
, Brand AJ noted that
the doctrine of precedent “is . . . not simply a matter of
respect for courts of higher authority.
It is a manifestation
of the rule of law itself, which in turn is a founding value of our
Constitution”.
[39]
Unlike issue estoppel, in the application of the doctrine of
precedent it hardly matters who the parties in the subsequent
litigation are. A court is bound by the
ratio
decidendi
(rationale for the decision) of a higher court’s decision on
the relevant legal issue.
[47]
Irrespective of whether we apply the doctrine of precedent or
issue estoppel, the crucial question is whether the Supreme Court of
Appeal made a final determination on the legal issue that
subsequently came before Sishi J. If it did not, neither
precedent
nor
res judicata
– even in the extended form
of issue estoppel – can assist Ms Mkhize. If it did, then
Ms Mkhize must succeed
on the basis of issue estoppel and the
doctrine of precedent, which overlap in this case.
[40]
[48]
Before Sishi J, the second respondent sought the same relief
that he had sought before Booyens AJ in the High Court and which was
decided on appeal by the Supreme Court of Appeal, namely a rescission
of the Van Zyl J order and the discharge of the rule
nisi
.
The case advanced by the respondents was that in the light of the
Supreme Court of Appeal decision there was no longer an
applicant in
the review application, and consequently the circumstances had
changed. On this basis, the respondents contended
that the
application for the discharge of the rule
nisi
and the
rescission of the Van Zyl J order application ought to be
reconsidered. According to the Supreme Court of Appeal
in
Mostert
, although the general rule is that a court’s
final judgment may not be altered or supplemented, there are some
exceptions
to this rule. One exception is that—
“a court may clarify its judgment or order if, on a proper
interpretation, the meaning remains uncertain and it is sought
to
give effect to its true intention. Even then the sense and
substance of the order must not be altered.”
[41]
(Citations omitted.)
[49]
The question that arises is whether, in considering and
deciding the second respondent’s new application, Sishi J went
beyond
a mere interpretation of the Supreme Court of Appeal decision
and breached the constraints imposed by the doctrines of precedent
and
res judicata
. To answer this, it is necessary first
to determine the correct interpretation of the Supreme Court of
Appeal judgment.
What is the
correct interpretation of the Supreme Court of Appeal judgment?
[50]
The respondents argued that the
Supreme Court of Appeal judgment held that the right to seek a review
of the withdrawal of recognition
of Inkosi and the recognition of the
second respondent as Inkosi perished with the death of the deceased.
Consequently, they
argue, there is no one who has the legal standing
to bring a review application and the review application cannot
proceed.
Is this interpretation of the Supreme Court of Appeal
judgment correct? I think not.
[51]
In
Fohlisa
, this Court held that an order must be
considered in the context in which it was given.
[42]
When interpreting a judgment or order, one must consider the
“manifest purpose” of the judgment or order and
the
court’s intention must be ascertained primarily from the
language of the judgment or order which must be read as a whole.
[43]
The Supreme Court of Appeal judgment must be considered with this
injunction in mind.
[52]
The relevant paragraph of the
Supreme Court of Appeal judgment states:
“I propose to consider first the appellant's application to be
substituted as applicant in the review application. I
agree
with the finding of the court below that the deceased’s claim,
in the review application, that the Premier’s
withdrawal of his
recognition as Inkosi of the Mbuyazi Community be set aside; that the
Premier be directed to do all things necessary
to withdraw the
appointment of the second respondent as Inkosi of the Mbuyazi
Community and to reinstate him (the deceased) as
such, was personal
to him and therefore not transmissible to anyone else.
He
was the only one, were he to be successful, who could be reinstated
as Inkosi
. However, since he has died, an order setting
aside the Premier’s withdrawal of the deceased’s
recognition as
Inkosi and directing the Premier
to reinstate him
as Inkosi can no longer be made. That claim, therefore, could
no longer be pursued after the death of the deceased
.
It
terminated upon his death. (See the relevant authorities
referred to by Holmes JA in
Government of the Republic of South
Africa v Ngubane
. . .). In my view, the claim for
reinstatement could not be ceded, even after
litis contestatio
[pleadings are closed], and is thus not transmissible to the
deceased’s heirs. It follows that the appellant cannot
be
substituted as applicant in the review application proper.”
[44]
(Citation omitted.)
[53]
Notably, the discussion of the
nature of the right and its transmissibility focuses specifically on
the relief that was originally
sought by the deceased – his
reinstatement as Inkosi. It is with regard to the question of
his reinstatement that the
Supreme Court of Appeal remarked
that “the claim . . . could not be ceded, even after
litis
contestatio
, and is thus not
transmissible to the deceased’s heirs”.
[45]
[54]
Ngubane
concerned the cession by one party to another
of a delictual claim for damages arising from an assault.
[46]
The Appellate Division held that—
“claims for pain and suffering and the like are of so personal
a nature that they should be regarded as being
extra commercium
[outside commerce and not susceptible to being traded]. It
seems to me desirable as a matter of public policy to have some
curb
against the risk of trafficking in essentially personal claims.”
[47]
That case therefore
concerned the narrow issue of ceding personal claims under the common
law, like claims for pain and suffering.
It did not deal with
the transmissibility of the right to review the exercise of public
power which is at issue in these
proceedings. And as was argued
by the Premier and MEC in their papers, the recognition or withdrawal
of recognition of an
Inkosi is manifestly administrative action and
thus amounts to an exercise of public power.
[55]
It appears that the Supreme Court of Appeal classified
specifically the deceased’s claim for reinstatement, which his
widow
sought to pursue, as a personal and non-transmissible right.
This conclusion is bolstered by a consideration of subsequent
paragraphs of the judgment. For example, the Supreme Court of
Appeal stresses its “finding that the deceased’s
claim
for his
reinstatement
as Inkosi was not transmissible upon his
death”.
[48]
Similarly in paragraph 16, which is possibly the clearest instance of
the Court’s distinguishing between the non-transmissibility
of
the claim for reinstatement and a review application, the Supreme
Court of Appeal held that—
“[i]t is true that the claim for payment of arrear salary is
included in the review application, but that does not detract
from
the fact that it is a claim separate from the one for reinstatement
of the deceased as Inkosi.”
[56]
By parity of its reasoning on the non-transmissibility of the
reinstatement claim, the Supreme Court of Appeal held that the
applicant’s
son Phathokuhle would not “have been able to
obtain an order directing the Premier to appoint him as Inkosi”.
[49]
In other words it is because Phathokuhle, like Ms Mkhize, was not
entitled to the relief sought in the review application,
that he
could not be substituted for the deceased as the applicant in the
review.
[57]
However, it does not follow from this that Phathokuhle would
lack standing in a review to declare the decisions unlawful, set them
aside, or remit them to the Premier for reconsideration. Nor is
it a consequence that Phathokuhle does not have a claim for
succession. The Supreme Court of Appeal says as much in
paragraph 14 of its judgment.
[50]
[58]
The Supreme Court of Appeal judgment goes on to reason that
the monetary claim would succeed only on the basis of a finding that
the decision to withdraw recognition of the deceased as Inkosi was
wrongful and unlawful, and that Ms Mkhize could be substituted
in the
monetary claim.
[51]
The Supreme Court of Appeal therefore distinguished between the
review application, which sought to declare the decisions
unlawful,
and the application that sought to secure reinstatement of the
deceased.
[59]
Ms Mkhize could thus not be substituted in the review
application insofar as it related to the claim for the deceased’s
reinstatement
because she has no standing to claim the relief that
could be sought only by the deceased.
[52]
However, the Supreme Court of Appeal pointed out that the
monetary claim on behalf of the deceased could be based on
the same
premise – his unlawful removal – but it would seek a
different relief, namely monetary fulfilment and not
reinstatement.
That, the Supreme Court of Appeal concluded, remained open to the
applicant.
[60]
The Supreme Court of Appeal was considering an appeal
against a decision by Booyens AJ to rescind the interim relief and
Van Zyl
J referral to trial. The Court overruled the order
Booyens AJ granted because it held – plainly and unequivocally
–
that the applicant had standing to take the matter to trial.
This it seems to me was a final decision on whether the Van Zyl
J order should be rescinded – and it was based on a final
determination that the applicant had standing in the impending
review
proceedings.
The correct interpretation of
the Supreme Court of Appeal judgment is therefore that the applicant
was barred from being substituted
in the review application that the
deceased brought solely insofar as that application sought to
reinstate the deceased as Inkosi.
The reason for circumscribing
her standing was that only the deceased was entitled to be reinstated
as Inkosi, and not the applicant.
The Court held that the
substitution, seeking that the applicant be recognised as Inkosi, is
not possible.
[61]
However, as the Supreme Court of
Appeal held, it does not follow from this that the applicant does not
have standing to bring a
review application. It only means that
she could not seek the same relief the deceased sought. She was
fully entitled
to seek different relief like a declarator that the
deceased was unlawfully removed from office. The Supreme Court
of Appeal
judgment equally recognised that Phathokuhle’s
succession claim was also not extinguished.
[53]
[62]
The Supreme Court of Appeal made a final determination on a
legal issue. An interpretation of that Court’s judgment
shows that the Court did not dispose of the merits of the review.
What the Supreme Court of Appeal finally decided was that
Ms Mkhize
could not be substituted because she could not be reinstated as
Inkosi in the place of the deceased.
[54]
By overturning the rescission of the Van Zyl J order by Booyens AJ,
the Supreme Court of Appeal also finally decided
that the review
application, in which the traditional leadership dispute was central,
encompassed Ms Mkhize’s monetary
claim and Phathokuhle’s
succession claim and that those legal questions ought to be decided
under the Van Zyl J order.
[63]
This can only lead to one conclusion: Sishi J was bound and
constrained by the Supreme Court of Appeal’s holding that the
lawfulness of the traditional leadership question was to be decided
under the Van Zyl J order, based on both precedent and issue
estoppel.
[64]
It is clear that Sishi J’s decision did not give effect
to the Supreme Court of Appeal decision and in effect
altered the substance of that decision. Moreover, Sishi J’s
decision, in interpreting the Supreme Court of Appeal
judgment in the
manner that it did, had the effect of overruling it. In
deciding afresh questions that the Supreme Court
of Appeal had
already decided, Sishi J flouted the injunctions of issue estoppel;
and in disregarding the plain injunction
of the Supreme Court of
Appeal that the interim order persist and that the matter be
determined at trial, the constraints
of the doctrine of precedent.
Indeed, the public purposes of issue estoppel or
res judicata
and the doctrine of precedent are related. They are to secure
finality in litigation. Consequently, the decision of
Sishi J
fell outside the bounds of proper interpretation as well as the
prescripts of precedent and must be set aside. The
final issue
for determination is what Sishi J’s decision ought to have
been.
[65]
Before the
last issue, it is desirable to linger briefly on the common law
interpretation of rights at customary law employed
by Booyens AJ
and the Supreme Court of Appeal, although these decisions are
not before us. In
Alexkor
,
this Court held that customary law rights should be “considered
in their own terms and not through the prism of the common
law”.
[55]
As was the case in
Alexkor
the customary law issues for determination are not before this Court,
however, the
obiter
dicta
in
that judgment are of significance here:
“
While in the past
indigenous law was seen through the common law lens, it must now be
seen as an integral part of our law. Like
all law it depends
for its ultimate force and validity on the Constitution. Its
validity must now be determined by reference
not to common law, but
to the Constitution.”
[56]
(Citations omitted.)
And:
“
In 1988, the Law of
Evidence Amendment Act provided for the first time that all the
courts of the land were authorised to take judicial
notice of
indigenous law. Such law may be established by adducing
evidence.”
[57]
(Citations omitted.)
[66]
When adjudicating matters concerning
rights in customary law, courts must do so through a customary law
and not a common law lens.
If the courts lack clarity on the
position taken by the relevant customary law, it is open to them to
establish its position by
inviting the parties to adduce evidence.
This would apply, amongst other things, to legal standing and
transmissibility of
rights.
[67]
Both the High Court, per Booyens AJ,
and the Supreme Court of Appeal applied the common law principles of
legal standing to the
issues that came for determination before
them. It is, however, common cause that the dispute before
those courts concerned
traditional leadership. The law
governing traditional leadership is customary law. Why do
courts attempt to resolve
traditional leadership disputes by
employing the common law? Perhaps, if the High Court had
resolved the issues before it
through the application of Zulu
customary law, the matter would not have even reached the Supreme
Court of Appeal.
[68]
In terms of Zulu customary law,
Ms Mkhize could have been substituted as the applicant, not only
because of her role as executrix
but also by virtue of being the
deceased Inkosi’s wife. She had a substantial interest in
the matter pursued by the
deceased Inkosi. Her substitution
would not have presented any difficulty at all. If the review
application succeeded,
all that the court would do is to make a
declarator that the deceased Inkosi was wrongfully removed. The
court would not
make an order as to who must be recognised as
Inkosi. The matter would simply be referred back to umndeni
wenkosi to identify
and appoint the correct person whose name would
be forwarded to the Premier for recognition in terms of section 19 of
the Act.
[69]
Beyond this, however, the review
application was brought by the deceased in terms of the Promotion of
Administrative Justice Act
[58]
(PAJA), in terms of which anyone may institute proceedings for the
judicial review of an administrative action.
[59]
A review under PAJA determines, finally, whether an administrative
action is lawful or not. It is an objective exercise,
the
outcome of which binds not only the litigating parties, but everyone
else.
[60]
The review of administrative action attaches therefore not to the
party bringing the review, but to the exercise of public
power
itself. It stands to reason then, that Ms Mkhize had standing
both to bring and be substituted in the review application
by virtue
of her position as executrix of the estate and status as the legal
guardian of her minor son, Phathokuhle. This
is not only
because she has a direct and substantial interest in the matter, but
also because she was entitled to review the Premier’s
administrative action under section 6(1) of PAJA. The
Supreme Court of Appeal did not have explicit regard to the nature
of
a PAJA review, but the outcome it reached is compatible with previous
decisions of this Court. Additionally, the Constitution
provides broad scope for legal standing in section 38 and this has
been applied to grant standing in a number of cases. As
Chaskalson P held in
Ferreira
:
“I can see no good reason for adopting a narrow approach to the
issue of standing in constitutional cases. On the contrary,
it
is my view that we should rather adopt a broad approach to standing.
This would be consistent with the mandate given to
this Court to
uphold the Constitution and would serve to ensure that constitutional
rights enjoy the full measure of the protection
to which they are
entitled.”
[61]
[70]
Given that this Court has held that the review of public power
is a constitutional matter,
[62]
it follows that a broad approach to standing must be taken in such
reviews. That PAJA was enacted to give effect to the
constitutional right to just administrative action in section 33 of
the Constitution, and so reviews under PAJA are a way of enforcing
the right in section 33, also implies that the broad standing
requirements in section 38 should apply to the review of
administrative
action.
[71]
For these reasons, the respondents’
submission that there can be no review application for the reason
that there is no one
with standing to bring a review application
cannot stand. The first and fourth respondents conceded as much
in oral argument
before us.
The determination sought in
the review application is also of importance to the second
respondent. If, following the trial,
the High Court finds that
the deceased’s recognition was correctly withdrawn and the
second respondent correctly recognised
and appointed, such a finding
will only serve to legitimise the second respondent’s ubuKhosi.
It was conceded by the respondents during
oral argument that the determination of the succession dispute at
trial would be in everyone’s
best interests.
[72]
The correct interpretation of the
Supreme Court of Appeal judgment is that it allows the determination
of the review application
and the monetary claim; and that the
referral to trial by Van Zyl J of the succession dispute was
reinstated, but that Ms Mkhize
could not seek the relief that
the deceased alone could seek. The review application is
therefore remitted to the High Court
for determination.
[73]
The interests of justice and convenience to all involved, as
well as the need to bring finality to this matter expediently,
dictate
against having the review application, monetary claim and
succession claim run separately but concurrently. Ms Mkhize’s
consolidation application is therefore granted.
Should the
interim relief be discharged?
[74]
The respondents collectively made the argument that the effect
of the interim relief has left the Community without an Inkosi since
2010. They submitted that should the matter be remitted to the
High Court, the interim relief should be set aside in order
to let
the second respondent govern until the rightful Inkosi is
determined. In oral argument, however, they conceded the
implausibility of their argument that a neutral IbambabuKhosi could
not be appointed. In any event, the Supreme Court of
Appeal
judgment ordered that the interim relief remain in place pending the
outcome of the review application. This is a
sensible state of
affairs and I see no reason why it should be altered.
Order
[75]
The following order is made:
1. The condonation applications of both the applicant and the
respondents are granted.
2. Leave to appeal is granted.
3. The appeal is upheld and the order of the High Court of South
Africa, KwaZulu-Natal Division, Pietermaritzburg is replaced with
the
following order:
“(a)
The application by Mr Mkhanyiseni Mbuyazi initiated in November 2015
for the order of Van Zyl J, to be rescinded and
for ancillary relief
is dismissed; and
(b)
The counter-application for consolidation of the application under
case number 4862/2015 by Ms Sithembile Valencia Mkhize N.O.,
and for
relief in prayer 2 of her notice of application for consolidation, is
granted.”
4. The consolidation application of the applicant is granted.
5. The respondents are ordered to pay the costs of the application in
this Court, jointly and severally, including the costs of
two
counsel.
For the Applicants:
G Goddard SC and M Z F Suleman instructed by Schreiber Smith Inc.
Attorneys
For the First and
Fourth Respondents: A J Dickson SC instructed by PKX Attorneys
For the Second
Respondent: I Topping SC and S Mlondo instructed by Pretorius,
Mdletshe & Partners Inc
[1]
“Traditional leader”, formerly referred to as “chief”.
[2]
“First wife” or “chief wife”.
[3]
Directly translated, “ikhohlo” means “left hand”
but also refers to the second wife of a Zulu traditional
leader.
[4]
“Third wife” or “bride of the first wife”.
[5]
5 of 2005. Section 19(1) and (2) provides:
“(1) Whenever the position of an
Inkosi
is to be
filled, the following process must be followed—
(a)
Umndeni wenkosi
must, within a reasonable time after the
need arises for the position of an
Inkosi
to be filled, and
with due regard to applicable customary law and section 3—
(i) identify a person who qualifies in terms of customary law to
assume the position of an
Inkosi
after taking into account
whether any of the grounds referred to in section 21(1)(a), (b) or
(d) apply to that person;
(ii) provide the Premier with the reasons for the identification of
that person as an
Inkosi
; and
(iii) the Premier must, subject to subsection (3) and section 3,
recognise a person so identified in terms of subsection (1)(a)(i)
as
an
Inkosi
.
(2) The recognition of a person as an Inkosi in terms of subsection
(1)(a)(iii) must be done by way of—
(a) a notice in the
Gazette
recognising the person identified
as
Inkosi
; and
(b) the issuing of a certificate of recognition to the identified
person.”
[6]
“Interim Inkosi”.
[7]
Mkhize v Premier of the Province of KwaZulu-Natal
[2014]
ZASCA 204
; 2014 JDR 2528 (SCA) (Supreme Court of Appeal judgment) at
para 12.
[8]
Id.
[9]
Id at para 14.
[10]
Id.
[11]
Id at para 19.
[12]
Id at paras 16 and 18.
[13]
Id at paras 17 and 19.
[14]
“Traditional leadership”.
[15]
Mbuyazi v Premier of the Province of KwaZulu-Natal
,
unreported judgment of the High Court of South Africa, KwaZulu-Natal
Division, Pietermaritzburg, Case No 2367/2010 (6 October
2016)
(Sishi J judgment) at para 42.
[16]
Section 165(5) of the Constitution provides:
“An order or
decision issued by a court binds all persons to whom and organs of
State to which it applies.”
[17]
S v Molaudzi
[2015] ZACC 20
;
2015 (2) SACR 341
(CC);
[2015]
JOL 33409
(CC) (
Molaudzi
) at fn 17. On
res judicata
,
and its limits, see
Ekurhuleni Metropolitan Municipality v
Germiston Municipal Retirement Fund
[2017] ZACC 1
; 2017 JDR 0084
(CC);
2017 (6) BCLR 750
(CC) paras 29-31.
[18]
Id at para 14.
[19]
Id.
[20]
Id at para 16.
[21]
Baphalane ba Ramokoka Community v Mphela Family, In re: Mphela
Family v Haakdoornbult Boerdery CC
[2011] ZACC 15
; 2011 JDR 0394
(CC);
2011 (9) BCLR 891
(CC) (
Baphalane ba Ramokoka
) at para
31.
[22]
National Sorghum Breweries Ltd (t/a Vivo African Breweries) v
International Liquor Distributors (Pty) Ltd
[2000] ZASCA 70;
2001 (2) SA 232 (SCA).
[23]
Baphalane ba Ramokoka
above n 21 at para 31.
[24]
Boshoff v Union Government
1932 TPD 345
at 346.
[25]
Harms “Issue estoppel as part of
res judicata
” in
LAWSA
3 ed (2015) Vol 18 at para 75.
[26]
Smith v Porritt
[2007] ZASCA 19
;
2008 (6) SA 303
(SCA) at
para 10.
[27]
Smith
id.
[28]
Id .
[29]
Molaudzi
above n 17 at para 16.
[30]
African Wanderers Football Club (Pty) Ltd v Wanderers Football
Club
1977 (2) SA 38
(A) (
Wanderers
) at 47H.
[31]
See
Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation
[2017] ZASCA 134
;
2018 (6) SA 440
(SCA) at para 19, where the
Supreme Court of Appeal confirmed that the doctrine of
res
judicata
does not apply to interlocutory orders. Specifically,
the Court held that matters decided for purposes of granting an
interim
interdict do not become
res judicata
.
[32]
Wanderers
above n 31 at 47F-H.
[33]
Cohn v Rand Rietfontein Estates, Limited
,
1939 TPD 319
at
324. See also
Cipla
above n 31.
[34]
Cipla
id.
[35]
Id at para 18.
[36]
Mbuyazi v Premier of the Province of KwaZulu-Natal,
unreported
judgment of the High Court of South Africa, KwaZulu-Natal Division,
Pietermaritzburg, Case No 2367/2010 (9 July 2013)
at para 11.
[37]
Id at para 13.
[38]
Camps Bay Ratepayers’ and Residents’ Association v
Harrison
[2010] ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) (
Camps Bay
) at para 28. See also
Afrox
Healthcare Ltd v Strydom
[2002] ZASCA 73; 2002 (6) SA 21 (SCA).
[39]
Camps Bay
id at para 28.
[40]
Prinsloo N.O. v Goldex (Pty) Ltd
[2012] ZASCA 28
;
2014 (5) SA
297
(SCA) at para 23. See also
Pratt v FirstRand Bank
Limited
[2014] ZASCA 110
; 2014 JDR 1827 (SCA) at para 8.
[41]
Mostert N.O. v Old Mutual Life Assurance Co (SA) Ltd
[2001]
ZASCA 101
;
2002 (1) SA 82
(SCA) (
Mostert
) at para 5.
[42]
National Union of Metalworkers of SA obo Fohlisa v Hendor Mining
Supplies (A Division of Marschalk Beleggings (Pty) Ltd)
[2017]
ZACC 9
; (2017) 38 ILJ 1560 (CC);
[2017] 6 BLLR 539
(CC) (
Fohlisa
)
at para 12.
[43]
Id at para 11.
[44]
Supreme Court of Appeal judgment above n 7 at para 12.
(Emphasis added.)
[45]
Id.
[46]
Government of the Republic of South Africa v Ngubane
1972 (2)
SA 601
(A);
[1972] All SA 489
(A) (
Ngubane
).
[47]
Id at 609A.
[48]
Supreme Court of Appeal judgment above n 7 at para 14.
[49]
Id at para 13.
[50]
This is what the Supreme Court of Appeal said in respect of
Phathokuhle’s succession claim:
“It must be stressed, however, that it does not follow from
the finding that the deceased’s claim for his reinstatement
as
Inkosi was not transmissible upon his death, that Phathokuhle has no
claim to the position of Inkosi of the Mbuyazi Community.
Section 19(1)(a)(i) of the Act enjoins the umndeni wenkosi (royal
family) to identify a person who qualifies in terms of customary
law
to assume the position of an Inkosi.”
[51]
Id at para 17.
[52]
This is dealt with in further detail below.
[53]
Supreme Court of Appeal judgment above n 7 at para 14.
[54]
Id.
[55]
Alexkor Ltd v Richtersveld Community
[2003] ZACC 18
;
2004 (5)
SA 460
(CC);
2003 (12) BCLR 1301
(CC) (
Alexkor
) at para 55.
[56]
Id at para 51.
[57]
Id at para 52.
[58]
3 of 2000.
[59]
Section 6(1) of PAJA provides:
“Any person may institute proceedings in a court or a tribunal
for the judicial review of an administrative action.”
[60]
Ferreira v Levin N.O.; Vryenhoek v Powell N.O.
[1995] ZACC
13
;
1996 (1) SA 984
(CC);
1996 (4) BCLR 441
(CC) (
Ferreira
)
at para 26
[61]
Id at para 165.
[62]
Pharmaceutical Manufacturers Association of SA: In re ex parte
President of the Republic of South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 51.