Lurhani and Another v Premier of the Eastern Cape Province Government and Others (3048/2013) [2018] ZAECMHC 19; [2018] 2 All SA 836 (ECM) (27 March 2018)

Lurhani and Another v Premier of the Eastern Cape Province Government and Others (3048/2013) [2018] ZAECMHC 19; [2018] 2 All SA 836 (ECM) (27 March 2018)

The court found that the Committee and Premier misinterpreted Mpondo customary law by disregarding historical evidence and living practices in the Mbalisweni Traditional Community, which demonstrate that adulterine children have succeeded to traditional leadership positions where there is no male issue from the deceased's marriages. The Committee distorted key witness evidence and ignored relevant submissions, resulting in recommendations that were irrational and misleading. The Premier failed to apply her mind to all available evidence, relying solely on the Committee's flawed recommendations. The Framework Act requires the Premier to consider all relevant material and, if necessary,...

Citation
[2018] ZAECMHC 19
Parties
Applicant: Mzikayise Goodman Lurhani; Applicant: Mbangatha Royal Family; Respondent: Premier of the Eastern Cape Province Government; Respondent: MEC for Local Government & Traditional Affairs: Eastern Cape; Respondent: Chairperson: House of the Traditional Leaders: Eastern Cape; Respondent: Mbalisweni Traditional Council; Respondent: Nobongile Mbangatha; Respondent: Paramount Chief; Western Pondoland; Respondent: Commission on Traditional Leadership Disputes and Claims; Respondent: Eastern Cape Committee of the Commission on Traditional Leaders Disputes and Claims; Respondent: Mzingisi Mbangatha
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
27 March 2018
Case Number
3048/2013
Procedural Posture
Review Application / Judgment After Hearing
Outcome
Application granted. The Premier's decision is reviewed and set aside. The matter is remitted for reconsideration in accordance with the correct interpretation of Mpondo customary law.
Judges
Jolwana
Legal Topics
Traditional Leadership Disputes, Customary Law Succession, Review of Administrative Action, Living Customary Law, Constitutional Rights of Cultural Communities
Administrative Law Land and Property Traditional Leadership Disputes Customary Law Succession Review of Administrative Action Living Customary Law Constitutional Rights of Cultural Communities

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Mzikayise Goodman Lurhani

Applicant

Mbangatha Royal Family

Applicant

Premier of the Eastern Cape Province Government

Respondent

MEC for Local Government & Traditional Affairs: Eastern Cape

Respondent

Chairperson: House of the Traditional Leaders: Eastern Cape

Respondent

Mbalisweni Traditional Council

Respondent

Nobongile Mbangatha

Respondent

Paramount Chief; Western Pondoland

Respondent

Commission on Traditional Leadership Disputes and Claims

Respondent

Eastern Cape Committee of the Commission on Traditional Leaders Disputes and Claims

Respondent

Mzingisi Mbangatha

Respondent

Procedural Posture

Review Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the Premier and Committee correctly interpreted Mpondo customary law regarding succession by adulterine children.
  2. 2 Whether the Premier's decision to dismiss the applicant's claim for senior traditional leadership was rational and based on all relevant evidence.
  3. 3 Whether living customary law and historical practices in the Mbalisweni Traditional Community support the applicant's claim.

Ratio Decidendi

The court found that the Committee and Premier misinterpreted Mpondo customary law by disregarding historical evidence and living practices in the Mbalisweni Traditional Community, which demonstrate that adulterine children have succeeded to traditional leadership positions where there is no male issue from the deceased's marriages. The Committee distorted key witness evidence and ignored relevant submissions, resulting in recommendations that were irrational and misleading. The Premier failed to apply her mind to all available evidence, relying solely on the Committee's flawed recommendations. The Framework Act requires the Premier to consider all relevant material and, if necessary,...

Court Disposition

Application granted. The Premier's decision is reviewed and set aside. The matter is remitted for reconsideration in accordance with the correct interpretation of Mpondo customary law.

Orders

  • The decision of the first respondent dismissing first applicant's claim for the position of senior traditional leadership of Mbalisweni Traditional Council is reviewed and set aside.
  • The first respondent is directed to take appropriate steps as contemplated in section 26 read with sections 11 and 12 of the Framework Act within 60 days from the date of this order.