Amantusi (Hanxa) Royal Family and Another v Premier of the Eastern Cape Province and Others (08/2020) [2020] ZAECMHC 27 (15 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO CA. 08/2020

Date heard: 22 April 2020

Date delivered: 15 July 2020

In the matter between:

AMANTUSI (HANXA) ROYAL FAMILY

First Appellant

KUKI HANXA

Second Appellant

and

THE PREMIER OF THE EASTERN

CAPE PROVINCE

First Respondent

THE MEC FOR CO-OPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS

Second Respondent

NONTSEBENZO HANXA

Third Respondent

HANXA ROYAL FAMILY

Fourth Respondent

JUDGMENT

RUGUNANAN, J

[1] With the consent of the appellants as the only participating parties, the appeal before us has been entertained on the papers in accordance with the provisions of section 19(a) of the Superior Courts Act 10 of 2013, this being due to the restrictions in movement imposed by the regulations promulgated as a result of the national state of disaster declared in response to the current Covid-19 pandemic. The appeal, with the leave of the court a quo, lies against a judgment handed down on 19 May 2019 by Toni AJ in which he dismissed the appellants’ claim for relief in their amended notice of motion.[1] Although served with copies of the appeal record, the first and second respondents have not opposed the appeal. In the case of the third and fourth respondents, indications are that they have not been served with copies of the record and are for practical purposes unaware of these proceedings. I will revert to this issue later in this judgment save to state at the outset that it has unacceptably precluded us from finalising these proceedings.

[2] Essentially, the claim by the appellants as applicants in the court a quo was for orders:

(a) declaring unlawful and invalid the first and second respondents failure to recognise the second applicant as acting iNkosana of Amantusi, Mthambalala Administrative Area, Lusikisiki;

(b) directing the first and second respondents to recognise the second applicant as acting iNkosana;

(c) declaring unlawful and setting aside a recognition of the third respondent, in the event such recognition had been effected by the first and second respondents;

(d) declaring the first applicant as the sole royal family of Amantusi, Mthambalala Administrative Area, Lusikisiki;

(e) declaring unlawful and invalid the resolution dated 29 May 2015 by

the fourth respondent; and

(f) interdicting the first and second respondent from recognising the third respondent as a regent in the Emthweni Traditional Council, Lusikisiki.

[3] Although the judgment a quo offers comprehensive detail of the historical backdrop to the proceedings and the legal issues relevant thereto, it is considered convenient to proffer a brief summary without recapitulating maximum detail.

BACKGROUND

[4] The appellants seek recognition of the second appellant as acting iNkosana of the Amantusi traditional community, ostensibly based on the assertion that all the jurisdictional requirements for such recognition as are prescribed by section 22 of the Eastern Cape Traditional Leadership and Governance Act [2] have been met. Moreover, the appellants seek derecognition of the third respondent on the premise that the jurisdictional requirements

for recognition in terms of the said Act have not been satisfied.[3] For reasons to follow, this judgment does not deal with the merits of the relief claimed by the appellants in their appeal to this court.

[5] The case for the appellants is that the Act aforementioned does not cloak the first respondent with a discretion but simply obliges him to recognise the second appellant once he received the first appellant’s resolution taken on 2 December 2015 which identified her as acting iNkosana for the Mthambalala Administrative Area. During January 2016, the appellants learnt that the third respondent was identified by the fourth respondent as regent iNkosana for the same administrative area.[4] Thus, two royal families (the first appellant and the fourth respondent) paraded to the first respondent two competing resolutions; each party having identified their suitable candidate and with each arrogating unto itself the mantle of being the lawful royal family.

[6] Confronted by the two competing resolutions submitted to him, and there being no prospect of the parties settling the candidature issue amicably between themselves, the first respondent appointed the Eastern Cape Provincial House of Traditional Leaders (“the House”) for the purpose of conducting an investigation and making a recommendation as to which of the two competing incumbents would be eligible for recognition. The investigative findings and recommendation of the House was made known on 31 January 2017.

Essentially, the House recommended that the third respondent be recognised.[5] The recommendation and findings of the House were communicated to the disputant parties in writing and included provision for a

dissatisfied disputant to lodge an appeal to the first respondent.[6]

[7] The appellants did not lodge an appeal against the aforestated recommendation, nor did they seek to challenge it in the proceedings

before the court a quo; they electing rather to pursue with the relief set out in their amended notice of motion. Since the recommendation remains extant, it is conceivable that it has legally valid consequences until set aside.[7]

THE RECORD ON APPEAL

[8] The record reflects that the first, second and third respondents were initially cited in the notice of motion at the time of the

institution of the proceedings a quo. Following service of the application on all three respondents, the state attorney filed a notice to oppose on behalf of the first and second respondents. It is not known if the third respondent filed a similar notice. However, on 25 July 2017 Dawood J ordered inter alia that the matter be postponed to 15 August 2017, and that “the third respondent shall be served with the notice of set down for 15/08/2017”.[8] Indeed, service as directed was complied with.[9]

[9] On 15 August 2017, Griffiths J granted an order postponing the matter to “16 November 2017 in the opposed motion court.” [10] The appellants’ attorneys served a notice of set down for that date on the office of the state attorney. The notice makes no reference to the delivery address of the third respondent and indications are that she was not notified of the stipulated date.[11]

[10] On 16 November 2017, the matter once again served before Griffiths J but resulted in a postponement sine die.[12]

[11] On 20 March 2018, Tokota J granted an order to the effect that the Hanxa Royal Family be joined as fourth respondent in the main application and that the applicants be given leave to file a further affidavit to deal with the cause of action against the fourth respondent. Following this order the appellants amended their notice of motion to include reference to the relief claimed against the fourth respondent.[13] Although the amended notice of motion makes reference to the delivery addresses of the third and fourth respondents, there is no indication or proof that it was served on them.

[12] By notice dated 7 June 2018, the appellant’s applied to the registrar of this court for a date for the hearing of the application on the opposed motion court roll. The notice was served on the office of the state attorney; no reference is made to the delivery addresses of the third and fourth respondents and indications are that they were not notified accordingly.[14]

[13] In a notice of set down dated 15 June 2018, the appellants’ attorneys notified the state attorney that the matter was set down for hearing in the opposed motion court for 6 September 2018 at 09h30. Once again, no reference is made to the delivery addresses of the third and fourth respondents and the logical deduction is that they were not notified of this date.

[14] On 6 September 2018, Dawood J postponed the matter to 13 December 2018 for hearing on the opposed motion court roll. The notice of set down that followed was served on the state attorney but not on any of the other respondents and it is clear from a perusal thereof that their delivery addresses are not indicated therein.[15]

[15] On 13 December 2018, the application proceeded for hearing before Toni AJ. The third and fourth respondents made no appearance nor had they filed opposing papers. The judgment a quo offers no indication whether counsel who appeared for the appellants (as applicants), either offered an explanation, or was requested to furnish an explanation for the overt failure by the applicants’ attorneys to have served notice of set down on the third and fourth respondents.

THE RULES

[16] Relevant to the prosecution of an appeal from the high court, sub-rule (6)(a) of rule 49 of the Uniform Rules of Court specifically provides that upon making written application to the registrar for the hearing of an appeal, an appellant shall furnish the registrar with his full residential address “and the name and address of every other party to the appeal”. Simultaneously with such application the appellant shall, in accordance with sub-rule (7)(a), file copies of the record with the registrar and furnish copies to the respondent. Sub-rule (7)(b) explicitly provides that copies of the record “shall be served” on the respondent. Once an appeal has been assigned a date for hearing, sub-rule (7)(c) obliges the registrar to notify the parties of the date in writing.

[17] Except for indicating the address of the state attorney, the appellants’ Notice of Application for an Appeal Date completely excludes reference to the third and fourth respondents.[16] The same applies to the notice issued by the registrar setting down the appeal for hearing on 22 April 2020. The appellants’ attorneys similarly filed a notice of set down confirming this date; and yet again it is significant to note that it makes no reference to the third and fourth respondents and open to infer that they have not been notified of the date assigned for the hearing of this appeal. Equally significant is the fact that there is an absence of proof that the appeal record was ever served on each of them.

THE INTERESTS OF THE THIRD AND FOURTH RESPONDENTS

[18] The amended notice of motion indicates that substantive relief is sought against the third and fourth respondents. Moreover, the relief claimed directly against the first and second respondents could have the concomitant effect of depriving the third and fourth respondents of rights which may accrue to them. No court can make findings adverse to any litigant’s interests without them having knowledge of the proceedings and being afforded an opportunity to make an appearance.

[19] Plainly, the third and fourth respondents have been kept in the dark about the proceedings in the court a quo and of the appeal in this court. Invoking the time-honoured audi alterem partem principle that the other side should be heard, is fundamental to the rule of law. In the circumstances, it would be entirely inappropriate to adjudicate the appeal on the sole version of the appellants and for this court to inadvertently risk making findings against the third and fourth respondents without affording them the opportunity of stating their position.

[20] The appellants’ attorney signed a certificate of correctness.[17] Perhaps he did so well knowing that the third and fourth respondents had no knowledge of the appeal proceedings. The sub-rules clearly detail the steps that ought to have been taken. Had there been a belated appearance by the third and fourth respondents ventilating the concerns expressed in this judgment, necessitating a postponement of the appeal, I would have shown no hesitation in mulcting him with a punitive costs order.

[21] In the circumstances the following order issues:

(a) The appeal is removed from the roll;

(b) The appellants’ attorney who signed the certificate of correctness shall:

(i) explain on affidavit and seek condonation for non-compliance with sub-rules (6)(a) and (7)(b) of rule 49; and

(ii) proffer reasons for excluding reference to the delivery addresses and failure to serve on the third and fourth respondents the notices referred to in paragraphs [9], [11], [12], [13] and [14] of this judgment;

(c) The appeal record shall be served on the third and fourth respondents with proof of service being filed of record;

(d) A notice of application for a date for the hearing of the appeal shall be served on all the respondents with proof of service being filed of record;

(e) The registrar shall assign a date for the hearing of the appeal once the orders in paragraphs (b), (c) and (d) hereof, have been complied with.

____________________________

M. S. RUGUNANAN

JUDGE OF THE HIGH COURT

I agree. It is so ordered.

_________________________

N. G. BESHE

__________________________

R. W. N. BROOKS

Appearances:

For the Appellants:

Mr. A. S. Zono

A. S. ZONO AND ASSOCIATES

Mthatha

(Ref: 1771/2017 (CA8/2020))

Tel: (047) 532 4263 or 083 364 3515

Email: zono@telkomsa.net

For the First and

Second Respondents: No Appearance

but c/o The State Attorney

(Ref: 860/17-A2Ntsi)

For the Third and

Fourth Respondents: No Appearance

This judgment was handed down electronically by circulation to the appellants’ attorneys by email and release on the SAFLII

website. The date and time for hand-down is deemed to be 10h00 on 15 July 2020.

[1] Record p 6

[2] Act No. 4 of 2005. This Act has subsequently been repealed by the Eastern Cape Traditional Leadership and Governance Act No. 1 of 2017

[3] Judgment a quo, paragraph [8]

[4] Founding affidavit, Annexure “C”, page 33

[5] Judgment a quo, paragraphs [3], [15] – [16]

[6] Record, page 38, paragraph 3

[7] Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA)

[8] Order of court, record, page 80

[9] Notice of set down and return of service, record, pages 81-83

[10] Order of court, record, page 115

[11] Notice of set down, record, page 116-117

[12] Order of court, record, page 118

[13] Amended notice of motion, record, pages 5-8

[14] Notice of application for an opposed date, record page 120-121

[15] Notice of set down, record, page 139-140

[16] Record, pages 193-194

[17] Record, pages 195-196