Mditshwa and Others v Sabona and Others (634/2016) [2020] ZAECMHC 15 (3 March 2020)

Mditshwa and Others v Sabona and Others (634/2016) [2020] ZAECMHC 15 (3 March 2020)

The court found that the legitimate royal family within the jurisdiction of Mtweni Traditional Council and Lower Ntafufu Administrative Area is the Mtweni Royal Family. The evidence established that the royal family, as contemplated by the Eastern Cape Governance Act, must be inclusive of all core houses descended from Nomvalo, not limited to the immediate ruling house. The applicants failed to demonstrate that the Mtweni Royal Family Council was unlawfully constituted or that its decisions should be set aside. The process followed by the applicants to constitute the Mditshwa Royal Family was found to be unilateral, excluding key houses and contrary to both custom and statutory...

Citation
[2020] ZAECMHC 15
Parties
Applicant: Nomntu Mditshwa; Applicant: Mditshwa Royal Family; Applicant: Senzangakhona Bhungweni; Respondent: Nkosiphendule Jackson Sabona; Respondent: Nontuthuzelo Mditshwa; Respondent: Nonzuzo Mqhabalaki; Respondent: Nkosiphendule Bnkosana Sabona; Respondent: Madondile Nkilana; Respondent: Mtweni Royal Family Council; Respondent: Department of Co-operative Governance and Traditional Affairs (Eastern Cape Province)
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
3 March 2020
Case Number
634/2016
Procedural Posture
Review Application / Judgment After Oral Evidence Following Referral for Determination of Legitimacy of Royal Family
Outcome
Application dismissed with costs, including reserved costs and expert witness costs.
Judges
Majiki
Legal Topics
Traditional Leadership and Governance Act, Customary Succession, Legitimacy of Royal Family, Review of Administrative Decision, Costs Order
Administrative Law Civil Procedure Traditional Leadership and Governance Act Customary Succession Legitimacy of Royal Family Review of Administrative Decision Costs Order

Case Brief

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Parties

Nomntu Mditshwa

Applicant

Mditshwa Royal Family

Applicant

Senzangakhona Bhungweni

Applicant

Nkosiphendule Jackson Sabona

Respondent

Nontuthuzelo Mditshwa

Respondent

Nonzuzo Mqhabalaki

Respondent

Nkosiphendule Bnkosana Sabona

Respondent

Madondile Nkilana

Respondent

Mtweni Royal Family Council

Respondent

Department of Co-operative Governance and Traditional Affairs (Eastern Cape Province)

Respondent

Procedural Posture

Review Application / Judgment After Oral Evidence Following Referral for Determination of Legitimacy of Royal Family

Legal Issues

  1. 1 Which is the legitimate royal family within the jurisdiction of Mtweni Traditional Council and Lower Ntafufu Administrative Area, Lusikisiki, as contemplated in section 1 of the Eastern Cape Traditional Leadership and Governance Act.
  2. 2 Whether the establishment of Mtweni Royal Family Council was lawful and compliant with the relevant legislation and custom.
  3. 3 Whether the applicants made out a case for the review and setting aside of decisions taken by the Mtweni Royal Family Council.

Ratio Decidendi

The court found that the legitimate royal family within the jurisdiction of Mtweni Traditional Council and Lower Ntafufu Administrative Area is the Mtweni Royal Family. The evidence established that the royal family, as contemplated by the Eastern Cape Governance Act, must be inclusive of all core houses descended from Nomvalo, not limited to the immediate ruling house. The applicants failed to demonstrate that the Mtweni Royal Family Council was unlawfully constituted or that its decisions should be set aside. The process followed by the applicants to constitute the Mditshwa Royal Family was found to be unilateral, excluding key houses and contrary to both custom and statutory...

Court Disposition

Application dismissed with costs, including reserved costs and expert witness costs.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the costs of application, including all reserved costs and the qualifying, travelling and accommodation costs of the expert witness, Professor Koyana, jointly and severally, the one paying the other to be absolved.