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[2018] ZASCA 104
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Ludidi v Ludidi and Others (658/2017) [2018] ZASCA 104; [2018] 4 All SA 1 (SCA) (23 July 2018)
THE
SUPREME COURT
OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.: 658/2017
In
the matter between:
LUDIDI
LUDIDI
APPELLANT
and
NOLITHA
LUDIDI
FIRST
RESPONDENT
THE
PREMIER FOR PROVINCE OF THE
EASTERN
CAPE
SECOND
RESPONDENT
EASTERN
CAPE HOUSE OF TRADITIONAL LEADERS
THIRD
RESPONDENT
HLUBI
ROYAL
FAMILY
FOURTH
RESPONDENT
MANCAPHAYI
ROYAL
FAMILY
FIFTH
RESPONDENT
HLUBI
TRADITIONAL
COUNCIL
SIXTH
RESPONDENT
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
CO-OPERATION
GOVERNANCE AND TRADITIONAL
AFFAIRS,
PROVINCE OF THE EASTERN CAPE
SEVENTH
RESPONDENT
THE
MINISTER OF CORPORATE GOVERNANCE AND
TRADITIONAL
AFFAIRS
EIGHTH
RESPONDENT
Neutral
citation
:
Ludidi
v Ludidi
&
others
(658/2017)
[2018] ZASCA 104
(23 July 2018)
Coram:
Maya P, Dambuza, Mathopo and
Mocumie JJA and Rogers AJA
Heard:
6 March 2018
Delivered:
23 July 2018
Summary:
Customary law –
recognition of a traditional leader – regulated by the
Traditional Leadership and Governance Framework Act 41 of 2003
read
with provincial legislation, in this instance the Traditional
Leadership and Governance Act, 2005 (Eastern Cape) (Act 4 of
2005) –
right to identify the traditional leader vests solely in the royal
family – Premier’s failure to comply
with s 18(2) of the
provincial legislation does not render the recognition process a
nullity.
ORDER
On
appeal from:
Eastern
Cape Local Division of the High Court, Mthatha (Pakade J sitting as a
court of first instance):
The
appeal is dismissed with no order as to costs.
JUDGMENT
Maya
P
(Dambuza, Mathopo
and Mocumie JJA and Rogers AJA concurring):
[1]
This appeal concerns the right to succeed as Inkosi (Chief)
[1]
of
the amaHlubi tribe in Qumbu,
Eastern
Cape. The main protagonists, the appellant Mr Ludidi Ludidi, and the
first respondent, Ms Nolitha Ludidi, are first cousins.
They are
respectively born of the sons of the late Chief Dyubhele Joubert
Ludidi, namely the late Messrs Manzezulu and Manzodidi
Charles
Ludidi, who were also chiefs of the tribe during their lifetimes.
[2]
[2]
Mr Ludidi challenges Ms Ludidi’s recognition as the Chief of
the amaHlubi (the decision) by the seventh respondent, the
Member of
the Executive Council for Co-operation, Governance and Traditional
Affairs, Province of the Eastern Cape (the MEC), pursuant
to her
identification as such by the fourth respondent, the Hlubi Royal
Family. The Eastern Cape Local Division, Mthatha (Pakade
J),
dismissed his review application. In those proceedings he sought an
order (a) reviewing and setting aside the decision; (b)
directing the
MEC to recognise him as the Chief of amaHlubi, alternatively
remitting the matter back to the third respondent, the
Eastern Cape
House of Traditional Leaders (the House) for investigation and
recommendation;
and;
(c) ancillary relief. The appeal is with the leave of the court a
quo. Only the second respondent, the Premier of the Eastern
Cape
Province (the Premier), the Hlubi Royal Family, and the MEC oppose
the proceedings.
[3]
It should be stated at the outset that the parties’ affidavits
were riddled with disputes of fact. But a significant portion
of the
material background evidence was undisputed and may be summarised as
follows. According to the custom and practice of the
amaHlubi, the
eldest child from the great or senior house of the royal family ie
born of the great or senior wife, inherits a vacant
chieftainship of
the tribe. In the event that the chief and the great wife die
childless, a child born of the chief’s ‘right
hand’
wife ie a lower ranking wife where the chief had more than one wife,
assumes the chieftainship. Otherwise the chief’s
surviving
brothers, in order of seniority, assisted by the royal family and the
tribe, reconstitute the great house by marrying
a royal wife and
assuming the chieftainship.
[4]
In recent times, this custom has been practised within statutory
prescripts in terms of which a chief’s appointment is
confirmed. At the time of Chief Dyubhele’s death, the
nomination and appointment of chiefs in his area of jurisdiction,
[3]
the extent of their powers and functions, the determination of their
remuneration by the government and other related matters,
were
regulated by the Transkei Constitution Act 48 of 1963 and the
Transkei Authorities Act 4 of 1965.
[5]
In line with the relevant custom and law, after Chief Dyubhele’s
death, the Hlubi Royal Family and the sixth respondent,
the Hlubi
Traditional Council (the Traditional Council), identified and had his
eldest son, Manzodidi, installed as the new chief.
The Hlubi Royal
Family also arranged a marriage for him to reconstitute the great
house at Nobamba Administrative Area, the royal
family’s seat.
To that end, it found him a wife, Princess Nozizwe Mafaku Sigcawu
(Mafaku), the daughter of Chief Nelson Sigcawu
of Eastern Pondoland,
for whom it paid lobola and arranged a traditional wedding ceremony.
It is from that union, consummated in
1965, that Ms Ludidi, an only
child and the sole surviving member of that great house, was born.
Chief Manzodidi died in November
1978. He was survived by his wife,
his then 12 year-old daughter and his brother, Manzezulu. The latter
succeeded him as the Chief
of the amaHlubi in 1979 and ruled as such
until his death in 2012.
[6]
With the advent of democracy in South Africa and the abolition of its
homelands, including Transkei, a new statutory dispensation
had come
into force by the time Chief Manzezulu died in October 2012. The
Transkeian legislation had been repealed and the recognition
of
traditional leaders countrywide was now regulated by the Traditional
Leadership and Governance Framework Act 41 of 2003 (the
National
Act), read with the Traditional Leadership and Governance Act, 2005
(Eastern Cape) (Act 4 of 2005) (the Provincial Act)
in the parties’
area of jurisdiction.
[4]
[7]
Acting in terms of the Provincial Act, the Hlubi Royal Family
identified Ms Ludidi for recognition as the Chief of the amaHlubi
by
the Premier. The fifth respondent, the Mancaphayi Royal Family,
identified Mr Ludidi for the same position. When presented with
the
conflicting decisions the MEC, to whom the Premier had delegated the
function,
[5]
did
not recognise either of the candidates. Instead, he referred the
dispute to the House for its recommendation.
That
did not yield the desired result. The MEC’s attempts to engage
the two royal families to resolve the impasse were equally
unsuccessful. Ultimately, the MEC referred the matter back to the
Hlubi Royal family for its decision.
[6]
[8]
After a meeting of the representatives of the Hlubi Royal Family and
the Mancaphayi Royal Family held in late June 2013, it
was conveyed
to the MEC on their behalf by the chairperson of the Hlubi Royal
Family that Ms Ludidi had been identified as the
next Chief of the
amaHlubi. (Incidentally, it was also agreed at that meeting that to
address the appellant’s concern that
no one in his father’s
household earned a living, he would be appointed as the secretary of
the sixth respondent from which
he would earn a salary to support his
family.) Thereafter, on 15 July 2015, the MEC recognised Ms Ludidi as
such chief and issued
a recognition certificate to that effect. He
further published the notice of recognition in the
Government
Gazette
in terms of s 18(1)(
b
)
of the Provincial Act.
[7]
However,
he did not inform the House of the recognition before it was so
published as required by s 18(2) of the Provincial Act.
[9]
The manner in which the main basis of Mr Ludidi’s review
proceedings were couched in his papers is rather confusing. He
alleged ‘a firm, reasonable, genuine and bona fide substantive
legitimate expectation’ that he would inherit the chieftainship
as the eldest son of the queen of the amaHlubi and Chief Manzezulu,
who was a permanent chief and had introduced him to the Traditional
Council as his successor based on ‘a well-established
traditional custom and practice’. Then he asserted that his
claim to the chieftainship had nothing to do with custom and was
based strictly on the law in terms of which his late father was
appointed, ie s 66(1)(
c
)
of the Republic of Transkei Constitution Act 15 of 1976. (The latter
Act replaced the Transkei Constitution Act 48 of 1963 when
the
Transkei homeland attained sovereignty in 1976 and was in operation
when Chief Manzodidi died.) He also challenged the legitimacy
of the
Hlubi Royal Family and its right to identify Ms Ludidi as the next
chief and the process followed by the MEC in effecting
the
recognition.
[10]
The respondents’ answering affidavit was made by the MEC,
supported by members of the Hlubi Royal Family of Nobamba
Administrative Area, Mr Sikho Ludidi, a Hlubi prince and the
chairperson of the Hlubi Royal Family and Mr Ndlelantle Ludidi, a
headman of the amaHlubi of that area and a member of the Hlubi Tribal
Authority and currently, the Traditional Council which he
chairs.
They disputed the appellant’s
claim to the chieftainship on various fronts.
[11]
First, they impugned the legitimacy of Chief Manzezulu’s
chieftainship. According to them, his appointment was invalid
as it
was neither approved by the royal family, the tribal authority and
the tribe itself. Nor was it sanctioned by the State President
as was
required by the law applicable at the time. In their view, it was
unnecessary to reconstitute the great house after Chief
Manzodidi’s
death because he was survived by his heir, Ms Ludidi. So, they
contended, Mafaku should have assumed the chieftainship,
albeit as
her daughter’s regent as she in fact sought to do, until Ms
Ludidi attained majority. But her attempts to contest
Chief
Manzezulu’s claim to the chieftainship, by demanding a right to
succeed her late husband, were thwarted by Chief Manzezulu’s
trickery and she was forced to withdraw her claim.
[8]
It was alleged that Mafaku was lured by Chief Manzezulu’s
agents to a certain house on the false pretext that she would be
meeting her father. There, she was forced to sign a letter in which
she purportedly surrendered her claim to the chieftainship.
Her
subsequent formal appeal to the local magistrate to reinstate her
claim, in which she was supported by her father, was not
brought to
the attention of the royal family and the tribe at large.
[12]
Thus, Chief Manzezulu was surreptitiously designated as the Chief of
the amaHlubi with the assistance of a few members of his
coterie with
whom he falsely persuaded the magistrate that he had been unanimously
nominated as Chief Manzodidi’s successor.
And, as mentioned
above, the respondents contended that not all the legal requirements
for his chieftainship were fulfilled as
the State President did not
confirm the appointment, thus rendering it invalid.
[9]
However, the invalid designation was not challenged thereafter. There
were two reasons for this: to avoid fracturing the tribe
and
endangering the lives of Mafaku and Ms Ludidi as Chief Manzezulu had
vowed to do anything to ensure that a woman did not lead
the tribe
and assume the chieftainship himself.
[13]
The respondents contended that apart from Chief Manzezulu’s
defective title to the chieftainship, he had no legal right
to
identify his successor by anointing his son as the appellant claimed,
even if he was a legitimate chief. This was so because
that power
vested solely in the Hlubi Royal Family, which had never conducted
itself in any manner that would reasonably have laid
a basis for the
legitimate expectation asserted by the appellant.
[14]
Another matter of contention was which of the two respondent royal
families, ie the Hlubi Royal Family and the Mancaphayi Royal
Family,
is the rightful royal family of the amaHlubi vested with the right to
identify their chief. It was common cause that the
dispute around
Chief Manzezulu’s successor split the royal family into two
factions. The appellant claimed that the Mancaphayi
Royal Family was
the only legitimate leadership structure of the amaHlubi which had
always administered their affairs. The Hlubi
Royal Family was a
recently established structure, formed by his detractors only after
his father’s death ‘merely to
deal with the succession of
chieftainship’ of the amaHlubi. There ‘was no formal
structure known as the Hlubi Royal
Family because the affairs of the
royal family and the amaHlubi tribe were conducted by the Hlubi
Tribal Authority’,
[10]
and
then the Traditional Council upon the promulgation of the Provincial
Act, in terms of which traditional councils replaced tribal
authorities.
[11]
But, in the same breath, he referred to the Hlubi Royal Family which,
he stated, appointed his father as the Chief of the amaHlubi
and made
no mention of the existence of the Mancaphayi Royal Family at the
time.
[15]
According to the respondents,
the Hlubi Royal
Family has existed since time immemorial as the custodian of the
royal family’s lineage and the customs of
the amaHlubi in
Qumbu. It has always enjoyed the right to identify the tribe’s
chief. Moreover, the provincial government
has, from the beginning,
dealt only with the Hlubi Royal Family and the Hlubi Tribal Authority
and later, the Traditional Council,
in relation to the affairs of the
amaHlubi. The provincial government was unaware of the
existence of the Mancaphayi
Royal Family until the dispute over the
chieftainship rose.
[16]
The court a quo was not persuaded by Mr Ludidi’s contentions
and decided the case on the respondents’ version.
It found that
the Hlubi Royal Family, which had identified even Chiefs Dyubhele and
Manzodidi, was the rightful royal family. In
the court’s view,
the chieftainship remained in Chief Manzodidi’s house even
after his death as ‘he left an issue’
ie Ms Ludidi. In
that case, Chief Manzezulu, ‘who was an illegitimate chief’,
ruled merely as the regent of that issue,
Ms Ludidi, until she came
of age. The court concluded that Mr Ludidi’s claim to a
legitimate expectation of assuming the
chieftainship after his
father’s death therefore had no basis and that he had no legal
right to the chieftainship.
[17]
Several grounds of appeal were raised in the appellant’s notice
of appeal and heads of argument. However, the issues
which
crystallised in argument before us were whether (a) the appellant’s
expectation – that he had an automatic right
to the
chieftainship of the amaHlubi upon his father’s death based on
the validity of the latter’s appointment under
the Transkei
Constitution Act as the permanent Chief of the amaHlubi – was
legitimate; (b) the MEC arbitrarily recognised
Ms Ludidi as the Chief
of the amaHlubi in disregard of evidence that she was identified by
only one faction of the fractured royal
family and the opposing
faction’s recommendation; (c) the MEC was obliged to afford the
appellant a hearing before recognising
Ms Ludidi; and (d) the MEC’s
failure to inform the House of Ms Ludidi’s recognition before
its publication in the
Gazette
nullified the recognition.
[18]
The appellant’s counsel rightly conceded at the outset that the
court a quo was right to decide the various material
disputes of fact
on the respondents’ version, on an application of the trite
principle set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[12]
The appellant’s counsel further conceded, correctly in my view,
that on an application of this principle, it was clear that
the
Mancaphayi Royal Family was a recent splinter of the Hlubi Royal
Family, formed by the latter’s erstwhile members who
were not
direct descendants of Chief Dyubhele and were opposed to having a
female chief. These concessions are devastating to the
appellant’s
case as will appear in the discussion which follows.
[19]
Regarding issue (a), it seems to me unnecessary to resolve the
dispute relating to the validity of Chief Manzezulu’s
appointment as the Chief of the amaHlubi in light of the view I take
of the real issues in this matter. I will therefore assume
without
deciding, that Chief Manzezulu was a lawfully appointed permanent
Chief of the amaHlubi and that he indeed ‘identified’
the
appellant as his successor to the chieftainship by introducing him as
such to the Hlubi Tribal Authority and the tribe.
[20]
It is well to bear in mind that whatever relevance s 66 of the
Transkei Constitution Act,
[13]
on
which the appellant relied,
may
have had for that ‘identification’ no longer obtains as
that piece of legislation no longer exists. The issue must
be
determined in accordance with the relevant law in force in October
2012 when Chief Manzezulu died and the chieftainship vacancy
arose.
This is what the Legislature contemplated in s 28(1) of the National
Act which reads:
‘
(1) Any
traditional leader who was appointed as such in terms of applicable
provincial legislation and was still recognised as a
traditional
leader immediately before the commencement of this Act, is deemed to
have been recognised as such in terms of section
9 or 11, subject to
a decision of the Commission in terms of section 26.’
[21]
The foremost question which arises is who has the right to choose a
Chief of the amaHlubi? In terms of s 11 of the National
Act:
‘
(1) Whenever
the position of senior traditional leader, headman or headwoman is to
be filled –
(a) the royal family
concerned must, within a reasonable time after the need arises for
any of those positions to be filled, and
with due regard to
applicable customary law –
(i) identify a
person who qualifies in terms of customary law to assume the position
in question, after taking into account
whether any of the
grounds referred to in section 12 (1)
(a)
,
(b)
and
(d)
apply to that person; and
(ii) through the
relevant customary structure, inform the Premier of the province
concerned of the particulars of the person so
identified to fill the
position and of the reasons for the identification of that person;
and
(b) the Premier
concerned must, subject to subsection (3), recognise the person so
identified by the royal family in accordance
with provincial
legislation as senior traditional leader, headman or headwoman, as
the case may be.
(2)
(a)
The
provincial legislation referred to in subsection (1)
(b)
must
at least provide for –
(i)
a notice in the
Provincial
Gazette
recognising
the person identified as senior traditional leader, headman or
headwoman in terms of subsection (1);
(ii)
a certificate of
recognition to be issued to the identified person; and
(iii)
the relevant provincial
house of traditional leaders to be informed of the recognition of a
senior traditional leader, headman or
headwoman.’
A
‘senior traditional leader’ is defined in s 1 of the same
Act as ‘a traditional leader of a specific traditional
community who exercises authority over a number of headmen or
headwomen in accordance with customary law, or within whose area
of
jurisdiction a number of headmen or headwomen exercise authority’.
[22]
The Provincial Act is the provincial legislation envisaged in s 11(2)
above. Section 18 thereof provides, in relevant part:
‘
(1) Whenever
the position of an iNkosi or iNkosana is to be filled–
(a) the royal family
concerned must subject to such conditions and procedure as
prescribed, within sixty days after the position
becomes vacant, and
with due regard to applicable customary law–
(i)
identify a person who
qualifies in terms of customary law to assume the position in
question, after taking into account whether
any of the grounds
referred to in section 6(3) apply to that person; and
(ii)
through the relevant
customary structure, inform the Premier of the particulars of the
person so identified to fill the position
and of the reasons for the
identification of that person; and
(a)
the Premier must,
subject to subsection (5), by notice in the
Gazette
,
recognize the person so identified by the royal family as an iNkosi
or iNkosana, as the case may be.’
The ‘royal
family’ is defined in s 1 of the Provincial Act as ‘the
core customary institution or structure consisting
of immediate
relatives of the ruling family within a traditional community, who
have been identified in terms of custom, and includes,
where
applicable, other family members who are close relatives of the
ruling family’.
[23]
There is no question on the respondent’s evidence, the
appellant’s contradictory version in this regard as described
above and his counsel’s concession, read against these
statutory provisions, that the Hlubi Royal Family is a ‘royal
family’ as envisaged in the statutory definition. It comprises
Chief Dyubhele’s direct descendants, ie the immediate
relatives
of the ruling family, who have maintained its leadership structures
and seat and retained the kernel of the historical
royal family. It
remains the custodian of the customs of the amaHlubi and their royal
family’s lineage and is the sole repository
of the right to
identify the Chief of the amaHlubi. And it is significant that when
it exercises this right, it does not consider
only that the candidate
is the eldest child in the great house. It vets the potential
candidate against the relevant customary
law. It must also ascertain
whether he or she (a) has not been convicted of an offence with a
sentence of imprisonment for more
than 12 months without the option
of a fine; (b) does not suffer from a physical incapacity or mental
infirmity which, based on
acceptable medical evidence, makes it
impossible for him or her to function as such; and (c) has not
committed a transgression
of a customary rule or principle, as
contemplated in s 12(1)
(a
),
(b)
and (d)
of the National Act. The identification is not a predetermined
conclusion as the appellant described.
[24]
It follows therefore that Chief Manzezulu had no right whatsoever to
identify his successor.
[14]
In
that case the appellant’s expectation had no valid basis as it
did not meet the trite requirements. To qualify as a legitimate
expectation, the underlying representation, which must have been
induced by the decision-maker, must be clear, unambiguous,
reasonable,
competent and lawful for the decision-maker to make.
[15]
There
is not a whit
of
evidence that the
‘
decision-maker’
here, ie the Hlubi Royal Family, ever made any representation to the
appellant that he would become the Chief
of the amaHlubi when his
father died. Nor would it have been legally permissible for it to do
so, even on the assumption that Chief
Manzezulu made the
representation on its behalf, before the vacancy arose.
[25]
But that said, the enquiry does not end there. The consequences of
the dissension within the royal family regarding who should
be
identified as the tribe’s chief, as arose here, must still be
determined. In this regard, s 18(4) of the Provincial Act
provides:
‘
Where the
Premier has received evidence or an allegation that the
identification of a person referred to in subsection (1) was not
done
in accordance with the provisions of this Act, customary law or
custom the Premier –
(a)
may refer the matter to the
Provincial House of Traditional Leaders for its recommendation;
or
(b)
may refuse to issue a certificate
of recognition; and
(c)
must refer the matter back to the
royal family for reconsideration and resolution where the certificate
of recognition has been
refused.’
[26]
The MEC followed precisely these prescripts upon receiving the
conflicting recommendations by remitting the matter to the royal
family for reconsideration, despite his misgivings about the standing
of the Mancaphayi Royal Family in the matter. And, as indicated
above, it was not disputed that the two warring factions duly met and
that following their deliberations, the MEC was informed
on their
behalf that the Hlubi Royal Family identified Ms Ludidi as the next
Chief of the amaHlubi. It is therefore incorrect
that the MEC
paid no heed to the conflicting views regarding the identified
candidate within the royal family. The seeming dispute
of fact on the
papers as to whether the recommendation made to the MEC following
this meeting represented an agreed compromise
is more apparent than
real. The averments of the Hlubi Royal Family in this respect cannot
be dismissed out of hand on the papers
and must be accepted as
correct in adjudicating the appeal.
[27]
There was no need for the MEC to grant the appellant any hearing as
he had been amply heard by the royal family up to the last
meeting,
which was attended by members of his proponents, the Mancaphayi Royal
Family. The legislation envisages that it is in
the context of the
deliberations of the royal family that differing views, including
those of competing candidates, will be heard.
In any event, his views
on the chieftainship were placed before and considered by the MEC. It
must be accepted in the circumstances,
therefore, that the
identification of Ms Ludidi was lawfully made by the royal family as
envisaged in ss 1 and 18 of the Provincial
Act.
[28]
The final question is whether the MEC’s failure to inform the
House about the recognition before the relevant notice
was published
in the
Gazette
,
in breach of s 18(2) of the Provincial Act, nullified the recognition
process. The appellant’s counsel did not pursue this
ground
with any vigour and conceded that it was not the appellant’s
strongest point. The concession was, in my view, well
made.
[29]
In terms of s 18(2), which is couched in peremptory terms, ‘[b]efore
a notice recognizing an Inkosi or Inkosana is published
in the
Gazette
,
the Premier must inform the Provincial House of Traditional Leaders
of such recognition’. It is so that the disregard of
peremptory
provisions of a statute is fatal to the validity of the proceeding
affected.
[16]
But,
as this court explained in
Nkisimane
& others v Santam
Insurance
Co Ltd
:
[17]
‘
[S]tatutory
requirements are often categorized as “peremptory” or
“directory”. They are well-known, concise,
and convenient
labels to use for the purpose of differentiating between the two
categories. But the earlier clear-cut distinction
between them (the
former requiring exact compliance and the latter merely substantial
compliance) now seems to have become somewhat
blurred. Care must
therefore be exercised not to infer merely from the use of such
labels what degree of compliance is necessary
and what the
consequences are of non or defective compliance. These must
ultimately depend upon the proper construction of the
statutory
provision in question, or, in other words, upon the intention of the
lawgiver as ascertained from the language, scope
and purpose of the
enactment as a whole and the statutory requirement in particular.’
[30]
The subject-matter of the prohibition, its purpose in the context of
the legislation, the remedies provided in the event of
any breach of
the prohibition, the nature of the mischief it was designed to remedy
or avoid and any cognisable impropriety or
inconvenience which may
flow from invalidity are all factors which must be considered when
the question is whether it was truly
intended that anything done
contrary to the provision in question was necessarily to be visited
with nullity.
[18]
In sum, the consequence of the MEC’s omission depends upon the
proper construction of s 18(2), ie considering its words in
light of
their context and with reference to the apparent purpose to which it
is directed and any relevant background material.
[19]
And the vital question to ask in that exercise is whether the
Legislature intended the breach to nullify the entire recognition
process.
[20]
[31]
It is clear from the plain wording of s 18(2) that the House plays no
role in the identification and recognition of a chief.
All that is
envisaged by these provisions is that it will be informed of the
result of the process before such result is announced
to the public.
No provision is made for the MEC to await further input from the
House before proceeding to publish his or her decision.
Thus, the
prohibition has nothing to do with the decision itself but is merely
directed at the publication of such decision before
the House has
been informed thereof. The object of the provisions is simple. The
newly appointed chief becomes a member of and
sits in the House as a
traditional leader. It is a matter of common sense that it would be
improper for the House to learn of a
new addition to its membership
from a public announcement. The requirement of prior notification to
the House is in the nature
of courtesy to that body. It can hardly be
concluded in the circumstances that the Legislature intended to
unravel the entire recognition
process by reason of a mere failure to
observe the contemplated administrative formality. That would
undoubtedly bear a disproportionate,
inequitable and impractical
result.
[21]
[32]
The appeal must accordingly fail. But I am not inclined to make a
costs order in favour of the successful respondents having
regard to
the nature of the right asserted by the appellant in the matter.
[22]
[33]
The following order is made:
The
appeal is dismissed with no order as to costs.
___________________________________________
M
M L MAYA
PRESIDENT
OF THE SUPREME COURT OF APPEAL
APPEARANCES:
For
Appellant: Adv. N Dukada SC with Adv. L Sambudla
Instructed
by:
Babe & Talapile
Inc, Mthatha c/o Matsepes Inc, Bloemfontein
For
Second, Seventh & Eight Respondents: Adv. A M Bodlani
Instructed
by:
State Attorney,
Mthatha
For
Fourth Respondent: Adv. A M Bodlani
Instructed
by:
SS Nkonyeni Attorneys,
Mthatha
[1]
Defined
as a senior traditional leader in
s 1
of the
Traditional Leadership
and Governance Framework Act 41 of 2003
.
[2]
The
legitimacy of Chief Manzezulu’s chieftainship is an issue of
dispute as explained later in the judgment.
[3]
Which
fell under the Transkei homeland.
[4]
These
are post-democracy national and provincial statutes intended mainly
to establish a statutory framework and norms and standards
for
traditional leadership and governance that conform to constitutional
imperatives.
[5]
In
terms of s 34(1) of the Provincial Act, which empowers the Premier
‘subject to such conditions as he or she may determine
in
writing, [to] delegate any powers conferred on him or her by this
Act, except the power to make regulations, to a Member of
the
Executive Council of the Province’.
[6]
In terms of
s 18(4)(
c
)
of the Provincial Act.
[7]
Which
stipulates that ‘[w]henever the position of an iNkosi or
iNkosana is to be filled …[t]he Premier must, subject
to
subsection (5), by notice in the
Gazette
,
recognize the person so identified by the royal family as an iNkosi
or iNkosana, as the case may be’. In this instance,
the
Premier delegated the duty to the MEC in terms of s 34 of the
Provincial Act.
[8]
Her claim
was formally lodged with the relevant authorities, including the
Magistrate, Qumbu and it is documented in official
records as was
her subsequent withdrawal and reinstatement thereof.
[9]
In
terms of s 45 of the repealed Transkei Constitution Act 48 of 1963
which provided:
‘
(1)
After the Constitution of the first Cabinet of the Transkei the
function of designating paramount chiefs, chiefs and acting
chiefs
in respect of any region according to Bantu law and
custom
shall, subject to the provisions of sub-section (2), vest in the
regional authority concerned subject to confirmation by
the State
President who may in his discretion confirm any such designation or
refer it back to the regional authority concerned
or further
consideration.
(2)
The creation of any paramount chieftainship or chieftainship shall
be confirmed by the President except after consideration
of a
recommendation of the Legislative Assembly.’
[10]
Esta
blished
by the Transkei Authorities Act.
[11]
In terms of
s 28(4) of the National Act which provides that ‘[a] tribal
authority that, immediately before the commencement
of this Act, had
been established and was still recognised as such, is deemed to be a
traditional council contemplated in section
3 and must perform the
functions referred to in section 4 . . .
’.
[12]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-636C.
[13]
Which
read:
‘
(1) Subject
to the provisions of subsection (2) the power-
(a)
to designate or appoint any
person as paramount chief, chief or sub-chief, whether in a
permanent or in an acting capacity, or
(b)
to institute any paramount
chieftainship in addition to the chieftainships mentioned in
Schedule 10, or
(c)
to institute any other
chieftainship of whatever class or status, shall continue to vest in
the regional authority concerned subject
to the confirmation of such
designation, appointment of institution by the President at his
discretion.
(2) The President-
(a)
may refer back to a regional
authority any designation or appointment made by such authority
under sub-section (1); and
(b)
shall not confirm the
institution of any new chieftainship of whatever class or status
except upon the recommendation of the National
Assembly.
(3) The appointment
in his office of every person who at the commencement of this Act is
a paramount chief, chief or sub-chief
(whether in a permanent or an
acting capacity) shall be deemed to have been confirmed by the
President in terms of subsection
(1).’
[14]
It should
also be mentioned though, for what that may be worth, that even
under the provisions of the repealed Transkei Constitution
Act, the
power to designate or appoint a chief, vested in the regional
authority. So Chief Manzezulu’s ‘identification’
of his son as his successor would have held no water even under that
dispensation.
[15]
See
National
Director of Public Prosecutions v Phillips & others
2002
(4) SA 60
(W) para 28;
2001 (2) SACR 542
(W);
2002 (1) BCLR 41
(W);
South
African Veterinary Council & another v Szymanski
2003
(4) SA 42
(SCA) para 19;
2003 (4) BCLR 378
(SCA); confirmed in
Minister
of Home Affairs & others v Saidi & others
[2017] ZASCA 40
;
2017 (4) SA 435
(SCA) para 35; [2017] 2 All SA 755
(SCA).
[16]
Schierhout
v Minister of Justice
1926
AD 99
at 110.
[17]
Nkisimane
& others v Santam
Insurance
Co Ltd
1978
(2) SA 430
(A) at 433H-434A. See also,
Swart
v Smuts
1971
(1) SA 819
(A) at 829C-G;
Lupacchini
NO & another v Minister of Safety and Security
[2010]
ZASCA 108
;
2010 (6) SA 457
(SCA);
Hubbard
v Cool Ideas 1186 CC
[2013] ZASCA 71
;
2013 (5) SA 112
(SCA);
[2013] 3 All SA 387
(SCA)
para 10.
[18]
Palm
Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd
1978
(2) SA 872
(A) at 885D-G.
[19]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
; 2012 (4) SCA 593 (SCA) para 18;
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) paras 10-12.
[20]
Nokeng
Tsa Taemane Local Municipality v Dinokeng Property Owners
Association & others
2010
ZASCA 128
;
[2011] 2 All SA 46
(SCA) para 14.
[21]
See
Pottie
v Kotze
1954
(3) SA 719
(A) at 727F-H.
[22]
Biowatch
Trust v Registrar Genetic Resources & others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) paras 23-24.