Gwadiso and Another v Member of the Executive Council: Department of Housing and Local Government and Traditional Affairs and Another (1003/2007) [2008] ZAECHC 181 (30 October 2008)

Gwadiso and Another v Member of the Executive Council: Department of Housing and Local Government and Traditional Affairs and Another (1003/2007) [2008] ZAECHC 181 (30 October 2008)

The court held that section 20(1)(c) of the Traditional Leadership and Governance Act 4 of 2005 clearly confers power on the Member of the Executive Council to remove a headman whose appointment or recognition is considered wrongful. The functus officio principle does not apply to the exercise of this statutory power. The applicants were afforded the opportunity to make representations before the decision to revoke the appointment was made, and their failure to avail themselves of this opportunity does not render the process unlawful. The argument that the matter should have been referred to the royal family for investigation is unfounded, as section 20(1)(c) is self-contained and does...

Citation
[2008] ZAECHC 181
Parties
Applicant: Michael Gcinikhaya Gwadiso; Applicant: Lindela Gwadiso; Respondent: Member of the Executive Council: Department of Housing, Local Government and Traditional Affairs; Respondent: Mhlabunzima Nwantsu
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
30 October 2008
Case Number
1003/2007
Procedural Posture
Review Application / Application for Confirmation of Rule Nisi; Final Judgment
Outcome
Application dismissed with costs.
Judges
Petse ADJP
Legal Topics
Traditional Leadership and Governance Act, Removal of Traditional Leader, Statutory Interpretation, Functus Officio, Customary Law Appointment
Administrative Law Land and Property Traditional Leadership and Governance Act Removal of Traditional Leader Statutory Interpretation Functus Officio Customary Law Appointment

Case Brief

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Parties

Michael Gcinikhaya Gwadiso

Applicant

Lindela Gwadiso

Applicant

Member of the Executive Council: Department of Housing, Local Government and Traditional Affairs

Respondent

Mhlabunzima Nwantsu

Respondent

Procedural Posture

Review Application / Application for Confirmation of Rule Nisi; Final Judgment

Legal Issues

  1. 1 Whether the Member of the Executive Council had statutory authority to revoke the appointment of the second applicant as headman of Mamolweni Administrative Area.
  2. 2 Whether the applicants were afforded a proper opportunity to make representations before the revocation decision.
  3. 3 Whether the functus officio principle precluded the first respondent from rescinding the appointment without judicial review.

Ratio Decidendi

The court held that section 20(1)(c) of the Traditional Leadership and Governance Act 4 of 2005 clearly confers power on the Member of the Executive Council to remove a headman whose appointment or recognition is considered wrongful. The functus officio principle does not apply to the exercise of this statutory power. The applicants were afforded the opportunity to make representations before the decision to revoke the appointment was made, and their failure to avail themselves of this opportunity does not render the process unlawful. The argument that the matter should have been referred to the royal family for investigation is unfounded, as section 20(1)(c) is self-contained and does...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.