Ludidi v Amahlubi Royal Family and Others (3576/2020) [2020] ZAECMHC 47 (15 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE LOCAL DIVISION: MTHATHA]

Case No. 3576/2020

In the matter between:

VUYANI EPHRAIM LUDIDI

Applicant

And

AMAHLUBI ROYAL FAMILY

1st Respondent

MEMBER OF THE EXECUTIVE COUNCIL FOR LOCAL

GOVERNMENT & TRADITIONAL AFFAIRS; EC

2nd Respondent

SIBONGISENI LUDIDI

3rd Respondent

JUDGMENT

JOLWANA J

Introduction

[1] The applicant moved by way of urgency an application consisting of parts A and B of his notice of motion. In part A the applicant seeks the following relief:

“1. That the applicant’s non-compliance with the 72 – hour notice in terms of section 35 of the General Law Amendment Act 62 of 1955 when instituting interim interdict against an organ of state be and is hereby condoned.

2. That the applicant be and is hereby granted leave to bring this application by way of urgency in accordance with the provisions of Rule 6(12) and as such the usual time frames relating to forms and service be dispensed with.

3. That the second respondent be and is hereby interdicted and restrained from implementing the decision to terminate applicant’s services as headman of Mdeni Administrative Area, Qumbu, pending finalization of Part B of this notice of motion hereunder.

4. An order directing the second respondent to pay costs of Part A of this application.

5. An order directing the first and third respondents to pay costs of part A of this application jointly and severally the one paying the other to be absolved only in the event of opposition of same.

6. Granting such further and/or alternative.”

[2] In part B of the notice of motion the applicant seeks an order reviewing and setting aside the first respondent’s resolution taken on 30 May 2017 in which the third respondent was identified as a headman of Mdeni Administrative Area. The applicant also seeks an order reviewing and setting aside the second respondent’s decision terminating his services as the headman of Mdeni and his reinstatement to the position headman of Mdeni Administrative Area, Qumbu.

[3] The applicant serves as an acting headman/headman of Mdeni Administrative Area and has been holding that position since 1999.

I hasten to add that whether or not the applicant was appointed headman or acting headman when he was so appointed is highly contested. However, before I deal with the point in limine of urgency which all the respondents argued at length, there is a point raised by the applicant the purpose of which is to non-suit the second respondent. I first deal with it hereunder.

Is the second respondent properly before court?

[4] A submission was made on behalf of the applicant quite strenuously that the second respondent should be non-suited. Essentially there were two reasons cited for this submission. First, it was submitted that the second respondent has not established that the powers to remove a traditional leader, the applicant in this case, were delegated to him by the Premier. Second, it was submitted that the authority of the deponent on behalf of the second respondent to oppose this application has not been established. I do not intend to deal with these submissions in any detail. They are intended to say that the second respondent is not before me to oppose the application. This is not an appropriate case for the applicant’s case to be considered and decided on the basis that the second respondent is not before court, certainty not at this stage. If the applicant wants to pursue those submissions further, he can do so before the court hearing part B of the notice of motion. In my view, the interests of justice require that none of the respondents should be non-suited, even if it were to be found that there is a technical basis for doing so.

[5] I was urged by all three respondents to strike this application off the urgent roll on the basis that the applicant has failed to make a case for urgency. I was also referred to the case of Masipa v Masipa[1]. In that matter the court said:

“[2] Before a court will make a finding on the merits of an urgent application, the court must first consider whether the application is indeed so urgent that it must be dealt with on the urgent court roll. Where an applicant does not succeed in convincing the court that he will not be afforded substantial redress at a hearing in due course, the matter will be struck from the roll. This will enable the applicant to set the matter down again, on proper notice and compliance – SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; 2006 (4) SA 292 (SCA). Likewise, where the facts indicate that the urgency is self-created, an applicant will not be entertained and the application will be struck from the roll – Lindeque and Others v Hirsch and Others, In Re: Prepaid24 (Pty) Limited (2019/8846) ZAGPJHC 122 (3 May 2019).

[3] …

[4] Whether a matter is urgent depends on the relief sought seen in context with facts of a case. As a result, urgency is determined on a case-by-case, context specific basis.”

[6] I do not think that there can be any dispute about the correctness of the legal position stated in Masupa with which I am in respectful agreement.

The facts

[7] The facts averred by the applicant on the basis of which he alleges that the matter is urgent as to warrant a deviation from the normal rules of court and those averred by the respondent in opposition thereto are central to whether or not the application should be struck off the urgent court roll. Truncated as much as possible, the case of the applicant is that he received a letter dated 02 September 2020 from the second respondent in which he was advised that his representations which he had made to the second respondent were received, considered and dismissed. He was also advised that he had 30 days within which to vacate office as acting headman of Mdeni Administrative Area. That letter was received by the applicant on 15 September 2020.

He understood this to mean that he had until the 15 October 2020 within which to vacate office unless he obtained the interim relief

sought in part A of the notice of motion as he is not an acting headman as the second respondent suggested.

[8] After he received the aforementioned letter, hereinafter referred to as the termination letter he went to see his attorneys about the matter. His attorneys of record wrote a letter dated 17 September 2020 to the second respondent in which the second respondent was requested not to implement his decision removing him as headman and to confirm in writing within 5 days that he would not be removed pending a review application which he would launch within 15 days from the 17 September 2020. The said letter was successfully delivered to the second respondent. The 5 day period which was given to the second respondent reckoned from Monday the 21 September 2020 and ended on 28 September 2020. He then consulted with his attorneys in preparation for the launching of this application when the second respondent did not respond. He had to collect all information and relevant annexures to the founding papers and doing so took him until the 4 October 2020 and this application was issued on 7 October 2020.

[9] In their answering affidavit the first and third respondents do not engage with these facts averred by the applicant on urgency. They challenge the urgency of the matter on a different factual basis. They say that the relief sought in part A is intertwined with and cannot be divorced from the resolution of the first respondent to remove him from his position taken on 30 May 2017 which the applicant seeks to review and set aside in part B. It was submitted that on his own showing the applicant had two years to challenge that resolution since he became aware of it in 2018 and he did not do so. Therefore, so the submission goes, the urgency is self-created.

[10] The second respondent aligns himself with the first and third respondents on this issue of the resolution and the failure of the applicant to do something about it for two years. However, the second respondent takes the matter further. He submits that the period from the 15 September 2020 when the termination letter was received to the 7 October 2020 when the application papers were issued is not properly accounted for or sufficiently explained. However, the second respondent does not deal with the 5 day period which the applicant’s attorneys gave him in their letter dated 17 September 2020 within which to confirm that the termination of the applicant’s services would be suspended pending a review application that would be issued within 15 days. The second respondent’s officials acknowledged receipt of the said letter on 18 September 2020 but there was no response one way or the other.

[11] It was submitted on behalf of the first and third respondent that the application cannot be urgent as against them since on the applicant’s own version the resolution which he intends to challenge in Part B has been known to exist by the applicant since 2018. He could have challenged it but failed to do so. It is common cause that indeed the applicant became aware of the allegation that there is a resolution by the first respondent allegedly to remove him from his position in 2018.

[12] However, the applicant contends that the letter dated 29 October 2018 annexed as annexure VEL4 in which he was told formally by the second respondent about the existence of the resolution did not attach the said resolution. He, in any event, approached the chairperson of the first respondent Mr Sikho Ludidi who wrote a letter addressed to the second respondent’s department dated 9 November 2018. In that letter Mr Ludidi says that recalling the applicant was never discussed in any meeting. He further says that the applicant is still the recognised traditional leader of Mdeni Administrative Area and offers further clarity if necessary. It is worth noting that Mr Ludidi wrote that letter in his capacity as the chairperson of the first respondent. That letter formed part of the representations made to the second respondent by the applicant’s attorneys on his behalf. It is apposite to mention that the primary purpose of the second respondent’s letter dated 29 October 2018 was to bring to the attention of the applicant that the first respondent had resolved to remove him as acting headman. Secondly and most importantly it was to give him an opportunity to make representations on why he should not be removed from his position.

[13] However, it appears that the representations made by the applicant dated 21 November 2018 were not received by the second respondent. The second respondent, on that basis, wrote annexure VEL 5 to the applicant’s affidavit dated 15 February 2019 in which it was brought to the applicant’s attention that he had not responded to the second respondent’s letter dated 29 October 2018 in which he had been called upon to make representations to the second respondent. It is then that the applicant’s attorneys wrote their letter dated 22 February 2019 in which they forwarded to the second respondent their letter dated 21 November 2018 containing the representations and attached proof that they had faxed the said letter.

[14] This prompted the second respondent’s officials to write back to the applicant’s attorneys acknowledging receipt of the applicant’s letter dated 22 February 2019. That response is dated 01 April 2019 in which the second respondent indicates therein that he was considering the applicant’s representation. He also indicated that the letter dated 15 February 2019 in which the applicant was told to vacate office because he had failed to make representations was being withdrawn immediately.

[15] From this point onwards nothing happened about the possible removal of the applicant from office until the second respondent penned the letter dated 02 September 2020, the termination letter which the applicant received on 15 September 2020. In that letter the applicant was given 30 days to vacate office as acting headman. The said letter reads:

“1. The above matter refers.

2. Kindly be informed that your representations dated 22 February 2019 were received and considered however, dismissed by the department.

3. The dismissal of the said representations is due to the fact stated below that:

· Mr Sikho Ludidi who is disputing that the royal family had ever discussed in a meeting the matter to recall acting headman Vuyani Ludidi chaired the meeting on 30 May 2017 for the identification of Sibongiseni Ludidi and subsequently signed the resolution form on his capacity as the chairperson of Hlubi Royal Family and cannot overrule the resolution of the royal family.

4. You are hereby given thirty (30) days to vacate the office as Acting Headman of Mdeni Administrative Area under Hlubi Traditional Council in the district of Qumbu: Emboland region.

The Department wishes to thank you for the excellent service during your time in the office.”

[16] The difficulty in understanding some of the respondents’ submissions is that both the second respondent’s letter dated 29 October 2018 inviting the applicant to make representations and the termination letter are premised on the applicant having served the period for which he was required to remain as acting headman. As indicated earlier Mr Sikho Ludidi’s letter dated 9 November 2018 on the basis of which a lot of submissions attacking urgency were also made disputes that the meeting of the 30 May 2017 discussed the removal of the applicant and confirms that “he is still a recognised traditional leader of Mdeni Administrative Area in Qumbu with no doubt.”

[17] Indeed, the meeting of the 30 May 2017 does not appear to have discussed that the applicant should be removed. The minutes of that meeting form part of the papers. They are written in isiXhosa. The parties and their legal representations speak isiXhosa as their mother tongue. Nowhere does it appear in those minutes that the meeting of the 30 May 2017 ever discussed the removal of the applicant.

[18] Particularly significant about those minutes is that the deponent on behalf of the second respondent avers in his answering affidavit that he deposed to it also on behalf of the first and third respondents. He also says:

“31. In a Royal Family meeting held on 30 May 2017 a resolution was taken in terms whereof the applicant was removed from his acting position[2] and the third respondent was identified to take over as Headman. Sikho Ludidi was in attendance at this meeting in his capacity

as the Chairperson of the Royal Family. On 20 June 2017, Sikho duly signed the resolution of the Royal Family meeting for onward transmission to the second respondent. I annex hereto, marked “MN7” and “MN8” a copy of the minutes and resolution and other documents attached thereto.

32. It was sometime in 2017 when the second respondent received correspondence from Hlubi Royal Family to the effect that the applicant’s acting stint had been brought to an end and a resolution taken to remove him from office and replace him with the third respondent.”

[19] MN7 is the minutes of the 30 May 2017 and MN8 is the resolution. In MN7 there does not appear to have been a discussion to remove the applicant. MN8 is the resolution and it does not contain a resolution for the removal of the applicant. I pause now to mention that it is common cause between the parties that the applicant has been holding the position of Mdeni headmanship since 1999. It was almost twenty years when in 2017 the resolution identifying the third respondent was taken without any discussion about the removal of the applicant. Therefore, the debate about a four year period having expired is raised in the context of a person who has been in that position for almost twenty years.

Urgency

[20] There is nothing new about urgent applications. In fact this court deals with such applications very regularly. It was submitted on behalf of the first and third respondents and counsel for second respondent aligned himself with such submissions that this matter is not urgent. The upshot of those submissions is that in light of the applicant having evidently become aware that there was a resolution in existence to displace him as far back as 2018 he did nothing about that for two years.

[21] It was, however, never submitted that the applicant should not have given the second respondent time to look into the representations before taking the matter to court and indeed such a submission would have been absurd. The very logical basis of inviting a person to make representations is that the representations may very well resolve the matter and thus avoid litigation. To then assume that having considered the representations especially Mr Sikho Ludidi’s disavowal of the existence of the resolution removing the applicant from his position, the second respondent would not have invited the applicant to make further representation is problematic in my view. The decision of the second respondent removing the applicant, after having considered the representations, was communicated to the applicant in a letter dated 02 September 2020. The applicant received that letter only on 15 September 2020. The second respondent does not dispute that the applicant received the said letter on that date. It is not clear why that letter dated 02 September 2020 was not written much earlier. The argument about the entitlement of the applicant to demand a decision from the second respondent when none was forthcoming is misplaced in my view.

[22] It is perhaps necessary to restate the legal position as it applies in this Division and elsewhere regarding motion court applications in general and urgent applications in particular. In Pohlmann[3] the court said:

“[6] In application procedure the starting point is that the provisions of rule 6(5) of the Uniform Rules of Court are peremptory. Rule 6(5) stipulates, inter alia, the form of the notice of motion (rule 6(5)(a), the time frame within which a respondent must notify the applicant of intended opposition (rule 6(5)(b), the time frames for delivery of the answering affidavit (rule 6(5)(d) (ii) and for subsequent delivery of a replying affidavit (rule 6(5)(e)). Where no answering or replying affidavit is delivered, rule 6(5)(f) makes provision for applying to the registrar for a date for the hearing of the matter which must be done within a stipulated time frame.

[7] Rule 6(12) distinctively deals with urgent applications. Such applications, it may be mentioned, involve not only the abridgement of the time frames stipulated by rule 6(5), but also a departure from the conventional sitting times of the court and of the prescribed forms and manner of service fixed by the rules. In an urgent application an applicant is permitted to proceed on notice of motion without full regard to the rules applicable in the ordinary course. Depending on the circumstances, an applicant is allowed to make its own rules, but “as far as practicable” in accordance with the existing rules. A respondent confronted by an application brought on an alleged urgent basis must provisionally accept the time frames set by the applicant, and may only raise its objection when the matter comes before a judge (Caledon Street Restaurants CC v D’Aveiera).

[8] Although most of the divisions of the High Court have their own local rules of practice relating to urgent applications, the conventional procedure which enjoins a court to dispose of an urgent matter is pertinently laid down by rule 6(12) itself and is that “which shall as far as practicable be in terms of these rules.” Relevant to this wording, and in the context of declaring that the rule provides for an “extraordinary adjudication” procedure, Kroon J in Caledon Street Restaurants appositely stated that practitioners must be reminded that the rule “must not be treated as pro non scripto.”

[9] In amplification, the judgment states:

“The applicant, or more accurately, his legal advisors, must carefully analyse the facts of each case to determine whether a greater or lesser degree of relaxation of the rules and the ordinary practice of the court is merited and must in all respects responsibly strike a balance between the duty to obey rule 6(5)(a) and the entitlement to deviate therefrom, bearing in mind that [such]

entitlement and the rules should not be greater than the exigencies of the case demand (and it need hardly be added these exigencies must appear from the papers).”

[23] There are a number of issues which are raised by the applicant in his attorneys’ letter dated 17 September 2020 addressed to the second respondent who was requested in light thereof to advise the applicant’s attorneys within 5 days whether he would suspend the contents of the termination letter pending a review application which would be instituted within 15 days. It is not explained why the second respondent did not respond even if to say that no such suspension would be allowed. I do not think it was unreasonable for the applicant to allow the second respondent time to reflect and decide on the request for suspension of termination pending the intended review application. Everybody knows that litigation is very expensive for ordinary people. An attempt to avoid it must be encouraged and not be visited with the matter being struck off the roll in all cases. If the applicant were to assume that the second respondent would not give him time to issue the review application the second respondent might very well have been correct in saying the applicant never asked him for time to do so before approaching this court on an urgent basis and therefore there was an alternative remedy. This is more so that the resolution of the first respondent was taken in May 2017 and was communicated to the applicant in October 2018, more than a year after it was received by

the second respondent.

[24] Having considered the papers and the submissions made, the application is, in my view, urgent and the respondents’ point in limine on urgency is not sustainable on the facts of this matter.

Requirements for interim interdicts

[25] The requirements for interim interdicts have been stated and restated for over a century now. In Setlogelo[4] the court said:

“So far as merits are concerned the matter is very clear. The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended and absence of similar protection by any other ordinary means”

[26] During the constitutional dispensation, the Setlogelo test was endorsed in Urban Tolling Alliance[5] as follows by the Constitutional Court:

“[41] The High Court relied on the well-known requirements for the grant of an interim interdict set out in Setlogelo and refined, 34 years later, in Webster. The test requires that an applicant that claims an interim must establish (a) a prima facie right even if it is open to some doubt; (b) a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; (c) the balance of convenience must favour the grant of the interdict and (d) the applicant must have no other remedy.”

[27] In his affidavits the applicant’s case is also that as a headman he gets paid a salary. The last time when his services were terminated by the second respondent he suffered including the deterioration of his health and his children being chased out of school and his vehicle was repossessed as he could not pay for it. If he goes through the same experience again his health will further deteriorate from the consequences of not earning a salary and as such he will suffer irreparable harm. He further submits that the first and third respondents have recently taken the second respondent to court about the recognition of the third respondent. He is cited in that application and is opposing it. Pending the resolution of that matter it is against public policy for a traditional community to be without a headman even for a short period.

[28] The respondents have not in the papers shown with any cogency that the requirements for an interdict have not been met. There is no factual submission cogently made for instance that the balance of convenience does not favour the applicant. I need to mention that the issue of whether the applicant is a headman or an acting headman is a matter for determination in part B. There is no saying how the court will decide on that issue save to re-emphasize that the applicant and the respondents are diametrically opposed on it. If the court were to find in his favour, it is inescapable that he would have suffered immeasurably both financially and in his dignity. The fact of the matter is that he has been acting headman/headman of Mdeni Administrative Area for almost 20 years now.

[29] While the issue of the traditional leadership be it a headman, a chief or even a king should never be reduced to a salary, it is so that they do derive a salary from those positions. The role that traditional leaders from the lowest rung in the hierarchy of traditional leadership to a king play in rural areas in administering the affairs of rural communities is very important. I do not think that the issue of a salary of a traditional leader is an irrelevant consideration if regard is had to the fact that the salary earned provides sustenance to a traditional leader and his family. In my view it is cold solace to say that if a litigant were to win the case the salary can be claimed back and on that basis refuse protection of pecuniary interests of traditional leaders, even if derived from salaries. Doing so would be in total disregard of the role traditional leaders play which is often not sufficiently appreciated and their constitutional right to dignity must always be protected to enable them to continue playing the role that the Constitution enjoins them to play unhindered.

[30] I do not regard the dicta of the court in Mtirara[6] as authority for the view that the salary of a traditional leader cannot and should not be protected, if threatened. In any event, this matter is in my view, bigger than just a salary. The applicant insists that he was appointed a headman as against an acting headman from the very beginning in 1999. It is not for this court in part A to make a finding now on that issue. The point I am making is that to suggest that because the applicant is also protecting a salary, his claim to permanent headmanship to which the salary is linked should be disregarded as part of considering the balance of convenience is incorrect. What actually happened in the meeting of the 30 May 2017 is highly contested as I said before and it is not for this court at this stage to determine. On the facts of this matter all the requirements for an interim interdict have been satisfied.

Costs

[31] The submission on behalf of the first and third respondents that part A is in some ways connected to Part B is in my view, correct. For that reason I do not think that the issue of costs should be determined at this stage without a proper ventilation of part B. The costs in respect of part A can best be determined once the whole matter has been fully canvased and ventilated in part B. There is nothing wrong with the first and third respondents opposing the application even at this stage. In fact their submissions assisted this court immensely in understanding the full factual matrix. It would not be correct to order them to pay costs at this stage.

Results

[32] The applicant succeeds in respect of part A of the notice of motion.

[33] I therefore make the following order:

1. That the applicant’s non-compliance with the 72-hour notice in terms of Section 35 of the General Law Amendment Act 62 of 1955 when instituting an interim interdict against an organ of state be and is hereby condoned.

2. That the applicant be and is hereby granted leave to bring this application by way of urgency in accordance with the provisions of rule 6(12) and as such the usual time frames relating to forms and service be and is hereby dispensed with.

3. That the second respondent be and is hereby interdicted and restrained from implementing the decision to terminate the applicant’s services as headman of Mdeni Administrative Area, Qumbu, pending finalization of part B of the notice of motion.

4. The costs in respect of the hearing of part A of the notice of motion are reserved for determination by the court hearing part B thereof.

____________________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances

Counsel for Applicant: VV MSINDO

Instructed by: V.V. MSINDO & ASS.

MTHATHA

Counsel for the 1st & 3rd Respondents: V. KUNJU with S. MZILENI

Instructed by: M.T. MLOLA ATTORNEYS

Counsel for the 2nd Respondent: T.M. JIKWANA

Instructed by: STATE ATTORNEY

HEARD ON : 13 & 14 OCTOBER 2020

DELIVERED ON : 15 OCTOBER 2020

[1] Masipa & Another v Masipa (23224/2020) [2020] ZAGPPHC (4 June 2020) unreported.

[2] My emphasis

[3] Pohlmann and Another v Pohlmann N.O. and Others (873/2020) [2020] ZAECGHC 53 (2 May 2020)

[4] Setlogelo v Setlogelo 1914 AD 221 at 227.

[5] National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) para 41.

[6] Mtirara v MEC for Housing Local Government and Traditional Affairs, Eastern Cape (unreported judgment of Millar J case no. 996/2005 delivered on 31/01/2008)