Makhosini v MEC for Local Housing and traditional affairs and Others (697/2006) [2007] ZAECHC 60 (17 August 2007)

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no: 186

PARTIES: MDITSHA FELIX MAKHOSINI VS MEC FOR LOCAL HOUSING AND TRADITIONAL AFFIARS

REFERENCE NUMBERS –

Registrar: 679/2006

Magistrate:

Supreme Court of appeal/Constitutional Court: HIGH COURT, MTHATHA (TRANSKEI DIVISION)

DATE OF HEARING: 14 AUGUST 2007

DATE DELIVERED: 17 AUGUST 2007

JUDGE(S): E REVELAS

LEGAL REPRESENTATIVES –

Appearances:

for the State/Applicant(s)Appellant(s): ADV MTSHABE for the accused/respondent(s): ADV MATYUMZA

Instructing attorneys:

Applicant(s)/Appellant(s): ZZ MATEBESSE INC.

Respondent(s): PRINCE MADIKIXELA & CO

CASE INFORMATION –

Topic:

Keywords:

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

Case No: 679/06

Date Heard: 14/08/07

Date Delivered: 17/08/07

In the matter between

FELIX MAKHOSINI MDITSHWA Applicant

and

MEC FOR LOCAL GOVERNMENT

& TRADISTIONAL AFFAIRS 1st Respondent

JONGAMAMPONDO MDITSHWA 2nd Respondent

THE PREMIER: EASTERN CAPE 3rd Respondent

JUDGMENT

REVELAS J

[1] This matter concerns a dispute about Chieftainship. The applicant (Makhosini Mditshwa) seeks an order confirming his appointment as the Chief and Head of the Imizizi Tribal Authority, taken on 7 December 2001 and again on 4 June 2004. The resolution is recorded in the minutes of these meetings, copies of which were attached to the applicant’s papers as an annexure. The applicant also seeks ancillary relief incidental to the main relief, such as payment of his salary, retrospective as from 4 June 2004, as well as an interdict against the second respondent (Jongamampondo Mditshwa, who also aspires for the position of Chief), to prevent the latter from interfering with his (the applicant’s) duties as Chief. This application was filed with the registrar on 31 January 2007.

[2] The second respondent, who opposes this application, brought an application on 16 September 2004, to review the aforesaid resolution of the Quakeni Regional Authority, who was cited in that application as the second respondent. That application (brought under case number 1208/04) was withdrawn and an order was made to that effect. The order does not specify the conditions, if any, subject to which the application for review was withdrawn. In opposition to the application before me, the second respondent has raised two points in limine, namely non-joinder and lis pendens.

[3] I will deal with the second point in liminefirst. The lis pendens is based on the second respondent’s contention that the question of Chieftainship (Ubukhosi) regarding the Imizizi Tribe was the subject matter raised in the review application which was withdrawn only, because of a pending investigation by the Commission for Traditional Leaders, who has not yet dealt with the matter. This was in dispute, and there was no proof before me that the question was being considered by such a Commission. The application for review was unconditionally withdrawn according to the file in question. That there was no costs order made, is neither here or there. If the matter was postponed until such time as the Commission concluded its alleged investigations, then perhaps the second respondent’s point of lis pendens have some merit. As it stands now, it has none.

[4] The first point in limineraised by the second respondent ( the issue of non-joinder) was premised on the submission that the first respondent (the MEC for Local Government and Traditional Affairs) is not the government functionary charged with the appointment of Chiefs (or “iNkosi”), as that function belongs to the office of the Premier. In this regard I was referred to Section 18 of the Eastern Cape Traditional Leadership and Governance Act 4 of 205, (“the Act”) which came into operation on 1 April 2006. Section 18 thereof provides that whenever the position of an iNkosi (or iNkosana) is to be filled, the Premier must notify her recognition of such a person in the Government Gazette, and before doing so, inform the Provincial House of Traditional Leaders, and within 30 days of the notification in the Gazette, issue the person (iNkosi or iNkosana) with a certificate of recognition (section 18(3)). If it comes to the attention of the Premier (by way of evidence or allegation) that the identification of a person as Chief was not done in accordance with the provisions of the Act, the Premier may then refer the matter to the Provincial House of Traditional Leaders for its recommendation, or, she could refuse to issue the aforesaid certificate of recognition, or she may refer the matter back to the royal family for reconsideration and resolution (section 18(4)). If the Premier is satisfied that the reconsideration and resolution by the royal family have been done in accordance with customary law, then the Premier may recognize that person as a Chief (section 18(5)).

[5] The second respondent has argued that because of the aforesaid provisions of section 18 of the Act, the Premier should have been cited as a party in these proceedings, and since she was not, the application should be dismissed. Dismissal of an application does not automatically follow non-joinder. At best for the second respondent, the matter may be postponed so that the Premier could be joined as a third respondent, and called upon to consider whether she wishes to oppose the matter in terms of the provisions of the Act.

[6] However, section 37(2) of the Act (which came into operation some time after the resolution in question) provides that “Despite the repeal of laws referred to insection (1)[laws listed in column 1 of Schedule 2, which are repealed to the extent indicated in column 2 thereof], any thing or act done in terms of such laws be deemed to have been done in terms of the corresponding provisions of this Act”. The applicant argued that although the old Transkeian Authorities Act, Act 4 of 1965, upon which he relied in support of this application, has been repealed in its entirety, the resolution in question should stand by virtue of the above provisions of section 37(2) of the Act.

[7] It was also submitted that the resolution, once taken, can only be set aside by an order of court. I was referred to the decision in Oudekraal Estate (Pty) Ltd City ofCape Town and Others 2004(6) SA 222 at 242 A-Bin support of this submission. I am not sure how that judgment assists the applicant, but I agree that the resolution taken still stands. The new legislation recognizes it as a lawful act. The second respondent has also placed nothing before me which persuades me that he has any lawful entitlement to the position in question. In fact, the minutes mentioned above reflect that the second respondent supported the applicant’s appointment as iNkosi.

[8] The second respondent has also argued that the matter could not be determined on the affidavits before me since they are fraught with disputes of fact, and argued that the matter should be referred to oral evidence. It is correct that there are many disputes of fact in this matter. As one can expect, they relate to the suitability and popularity of the contenders for the Chieftainship. These issues have been however been disposed of by the abovementioned resolution which was adopted before the new Act came into operation. To refer the matter to oral evidence would not solve this dispute. The resolution has been taken, apparently in accordance with the principles adopted in the Act. There seems to be no reason why the resolution cannot be given effect to. The first respondent has not objected to it either.

[9] The applicant wants the resolution to be confirmed by this court. I am inclined to grant such relief, however I believe that it would be prudent and practical to grant the relief, subject to the Premier having an opportunity to indicate whether she is prepared to issue a certificate of recognition in terms of section 18(3) of the Act and to thereby give effect to the resolution taken by the Tribal Authority in June 2004. Even though the Act expressly refrains from interfering with, or undoing decisions taken prior to its promulgation and its becoming operative, section 18 does introduce an aspect which in my view, should not be ignored, namely the requirement that the Premier should furnish an iNkosi with a certificate of recognition. If the appointment of the applicant is confirmed, there should, in my view, be some form of recognition by the Premier. It would not be in the interest of fair administration or justice if some Chiefs had a certificate of recognition and others not. Traditional leaders and those who believe that they should remain on the political landscape, aspire for more government recognition, and their status has become a sensitive issue. It would therefore be in the interests of justice if the Premier be joined as a respondent in this matter, in particular with regard to her role envisaged in section 18 of the Act.

[10] Accordingly, I make an order as follows:

The Premier of the Eastern Cape is joined as the third respondent in these proceedings and a copy of this judgment and the affidavits filed of record in this matter should be served on her by the Sheriff, or his lawful Deputy.

The first respondent is ordered to confirm the appointment of the applicant, Makhosini Mditshwa as Chief, or iNkosi of the Imizizi Tribal Authority, Bizana, with effect from 4 June 2004.

The first respondent is ordered to direct the payment of the applicant’s salary in accordance with his appointment, with effect from June 2004.

The second respondent is interdicted from interfering with the applicant in the performance of his duties as the Chief of the

Imizizi Tribal Authority, Bizana.

The second respondent is forthwith interdicted and restrained from performing the duties of Chief including, but not limited to, the signing of documents on behalf of the Imizizi Tribal Authority.

The third respondent (Premier of the Eastern Cape) is called upon to show cause on 25 September 2007 at 10h00, or so soon thereafter as counsel maybe heard, why a final order should not be made in terms of paragraphs 2,3,4 and 5 above;

whether a certificate of recognition of the applicant as iNkosi should be issued by her, alternatively, the Premier may simply issue the certificate of recognition of the applicant as iNkosi, thereby disposing of the matter.

The costs of the application are to be determined when the matter is finally heard.

________________

E REVELAS

JUDGE OF THE HIGH COURT