Ngomane Lugedlane Inner Royal Family v Premier of Mpumalanga and Others (2077/2021) [2023] ZAMPMBHC 40 (21 July 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

CASE NO: 2077/2021

In the matter between:

NGOMANE – LUGEDLANE INNER ROYAL FAMILY Applicant

and

THE PREMIER OF MPUMALANGA

First Respondent

MPUMALANGA DEPARTMENT OF CO-OPERATIVE

GOVERNANCE AND TRADITIONAL AFFAIRS

Second Respondent

SIZWE MKHULU NGOMANE

Third Respondent

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 21 July 2023 at 10:00.

JUDGMENT

MASHILE J:

[1] This is an application by which the Applicant seeks an order compelling the First Respondent (“the Premier”) to Withdraw the certificate of recognition of the Third Respondent as ‘Inkosi’, to publish a notice in the Provincial Gazette with particulars of the Third Respondent and thereafter, to advise the Applicant, the Third Respondent and the Provincial House of Traditional Leaders of the removal of the Third Respondent as ‘Inkosi’. Should the Premier fail to take the necessary steps to remove the Third Respondent within Fourteen days of the date of service of the order of this Court on her, the Sheriff of this Court be authorised to take such steps as is necessary on her behalf.

[2] The Premier opposes the application compelling her to remove the Third Respondent. The Second and Third Respondents, although cited, are not opposing the application. The basis of the Premier’s opposition is that the Third Respondent has not committed any of the matters mentioned in Section 20(1)(a) to (d) of the Mpumalanga Traditional Leadership and Governance, Act 3 of 2005 (“the Act 2005”). The Act only refers to three instances where the Premier can legitimately remove an ‘Inkosi’. The Third Respondent has not offended any of those and therefore does not deserve removal. I will later in this judgment discuss the instances which would entitle the Premier to remove an Inkosi.

FACTUAL MATRIX

[3] The circumstances leading to the launching of this application appear to be common cause and they are that the Applicant is certified and recognised in terms of Act 3 of 2005 as well as the Judicial Leadership and Governance Framework, Act 41 of 2003 (“Act 41 of 2003”). The Third Respondent was appointed as ‘Inkosi’

and certified and recognised in terms of Section 19 of Act 3 of 2005 under the authority of the Applicant. It is not contested that the Third Respondent was at all times obliged to perform his functions in line with the Applicant’s directions, the laws of the Republic of South Africa and the applicable customary laws and principals.

[4] On 3 December 2020, the Applicant resolved to remove the Third Respondent as Chief and ‘Inkosi’. The reasons cited for the removal of the Third respondent were that:

4.1 The Third Respondent had disrespected and disregarded the Ngomane Inner Royal Family;

4.2 The Third Respondent was accused to have destroyed the very being of the Ngomane tribe by chasing away the aunt sister, (probably meaning ancestors);

4.3 The Third Respondent was accused of failure to execute his traditional duties and was alleged to have committed crime.

[5] On 19 January 2021, the Applicant’s attorneys of record addressed a letter to the Second and Third Respondents informing them of its decision to remove the latter. Responding to the letter of 19 January 2021, the Third Respondent on 26 January 2021 stated that he would communicate directly with the Second Respondent. On 28 January 2021, the attorneys of the Applicant wrote to the Premier advising her of the decision of the Applicant. The letter also conveyed a request to the Premier to:

5.1 Withdraw the certificate of recognition of such an Inkosi;

5.2 Publish a notice in the Provincial Gazette with the particulars of the removed ‘Inkosi’; and

5.3 Inform the Inner Royal Family concerned, the Third Respondent and the Provincial House of Traditional Leaders of such removal.

[6] On 8 March 2021, the attorneys of the Applicant wrote to the Second Respondent attaching the letter that it had sent to the Premier on 28 January 2021. On 15 April 2021, the attorneys of the Applicant caused the sheriff to serve a letter setting out the terms of Section 20 of Act 3 of 2005 upon the Premier and the Second Respondent. The Premier steadfastly refused to accede to the request of the Applicant prompting the latter to commence these legal proceedings by which the relief in the notice of motion is sought.

ASSERTIONS ADVANCED BY THE PARTIES

[7] The Applicant argues that the wording of Section 20 of Act 3 of 2005 and Section 10B of Act 41 of 2003 are couched in peremptory terms. This, says the Applicant, deprives the Premier to exercise any discretion following receipt of a decision of the Applicant to remove an ‘Inkosi’. Once the Applicant has followed the procedure described in those Sections, the Premier, as an administrator, must accede to the resolution reached by the Applicant.

[8] The provisions of the Sections in both Acts do not leave room for a different interpretation from that put forward by it. Accordingly, no need exists to read the whole Act in context to determine what the legislature might have possibly meant by the use of the word, ‘must’. The word ought to be given its ordinary every day meaning. If one

does so, it becomes evident that the Premier has no discretion, concludes the Applicant.

[9] As such, For the Applicant it will be adequate for it to firstly, demonstrate that it has taken a decision and secondly, that it has supplied the decision and reasons to the Premier. The Premier does not have the rights to overrule the decision taken by the Applicant nor is it for her to assess whether

or not a case has been made out.

[10] Additionally, the Applicant has asserted that it is not without significance that the Third Respondent is not opposing the application. The Premier has no right to oppose on his behalf. The Third Respondent on his own can either challenge or accept the decision taken by the Applicant against him. Accordingly, says the Applicant, there is no dispute between the Applicant and the Third Respondent.

[11] The Premier, on the other hand, argued that both Acts 3 of 2005 and 41 of 2003 in Sections 20 and 10B respectively contemplate three instances upon the occurrence of which the Premier must remove an ‘Inkosi’. None of the three set of circumstances mentioned in either Act have taken place. To the extent that the Applicant relies on the Third Respondent having contravened a customary rule warranting his removal, it has failed to levy evidence in support of the claim. The ‘Inkosi’ cannot as such be removed.

[12] Furthermore, the Applicant seeks final relief in circumstances where there exist a material disputes of fact. In these circumstances, it is trite that the principle and general rule to be applied is as was stated in Plascon-Evans Paints Ltd v Van riebeeck Paints (Pty) Ltd[1] that final relief may only be granted if those facts stated by the Respondent together with those put forward by the Applicant and admitted by the Respondent, justify the granting of such an order.

ISSUES

[13] From the facts and assertions of the parties described above, the Court ought to determine whether or not the Applicant has made a case for the Premier to remove the Third Respondent by withdrawing the certificate of recognition of the Third Respondent as Inkosi and to inform the Applicant and the Provincial House of Traditional Leaders of his removal. In addition, to determine whether or not the disputes of fact that may exist render the matter incapable of resolution on these papers without reference to oral evidence.

LEGAL FRAMEWORK

[14] The starting point here is obviously the citation of the relevant sections of the two pieces of legislation governing the appointment and removal of Inkosis. These are the two Acts referred to above, one provincial and the other, national. Section 10B of the latter legislation is a duplication of Section 20 of Act 3 of 2005. In consequence, it will suffice to refer to the provisions of one of them only instead of both to avoid repetition.

[15] Against that background, Section 20 of Act 3 of 2005 is titled: Withdrawal of recognition and removal of Inkosi, and it provides that:

(1) An Inkosi may be removed from office on the grounds of –

(a) conviction of an offence which carries a sentence of imprisonment of more than 12 months without the option of a fine;

(b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for that inkosi to function as such;

(c) wrongful appointment or recognition; or

(d) a transgression of a customary rule or principle that warrants removal.

(2) Whenever any of the grounds referred to in subsection (1)(a), (b) and (d) come to the attention of the inner royal family and the Inner royal family decides to remove an Inkosi, the inner royal family concerned must, within a reasonable time and through the relevant customary structure (a) inform the Premier of the particulars of the Inkosi to be removed; and (b) furnish reasons for such removal.

(3) Upon receipt of the particulars of the Inkosi to be removed and the reasons for such removal as contemplated in subsection (2), the Premier must-

(a) withdraw the certificate of recognition of such an Inkosi;

(b) publish a notice in the Provincial Gazette with particulars of the removed Inkosi, and

(c) inform the inner royal family concerned, the removed Inkhosi and the Provincial House of Traditional Leaders of such removal.

(4) Where an Inkosi is removed from office, a successor identified in line with customs may, subject to the provisions of this Act, assume the position, role and responsibilities of such Inkhosi.”

[16] To the extent that this matter may involve the interpretation of Act 3 of 2005, it is necessary to set out the case law dealing with interpretation of documents and statutes. When interpreting statutes, the Constitutional Court in Amabhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa [2] held that:

“. . . One must start with the words, affording them their ordinary meaning, bearing in mind that statutory provisions should

always be interpreted purposively, be properly contextualised and must be construed consistently with the Constitution. This is a unitary exercise. The context maybe determined by considering other subsections, sections or the chapter in which the keyword, provision or expression to be interpreted is located. Context may also be determined from the statutory provision as a whole. A sensible interpretation should be preferred to one that is absurd or leads to an unbusinesslike outcome.”

ANALYSIS

WHETHER THE PREMIER HAS LEGISLATIVE DISCRETION TO REMOVE AN ‘INKOSI’ OR NOT

[17] The contention that the Premier performs administrative function of rubberstamping all the decisions of the Applicant must be explored without losing sight of what was held in the Amabungane case supra -one begins by:

17.1 Giving the words used in the document their ordinary meaning;

17.2 Have regard to the purpose for which the statute was designed;

17.3 Consider its context; and

17.4 Its construal must accord and be harmonious with the Constitution.

[18] The purpose of the legislation is to provide for the recognition and withdrawal of recognition of traditional communities, establishment of their governing structures, appointment and removal of the functionaries within those governing structures. The idea is that all these must be executed within the dictate of a democratic country that the Republic of South Africa is. This is evident from the pre-amble of the statute.

[19] It is against that context that the issue whether the Premier has a discretion to remove or not must be addressed with in mind the contents of paragraph 17 supra. To this end, the provisions of Section 20(2) and (3) of the Act are significant and require close scrutiny. Section 20(2) directs that once the grounds for the removal of Inkosi described in Subsection (1)(a), (b) and (d) has occurred and the Applicant resolves to remove the Inkosi concerned, it must, through a recognized traditional structure and within a reasonable time inform the Premier of its decision and reasons thereof.

[20] It is the argument of the Applicant that the use of the word, ‘must’ is an indication that the Premier cannot exercise discretion once she has been advised that the Applicant has resolved to remove the Inkosi (the Third Respondent). While the word, ‘must’ may, in appropriate instances, denote no accommodation of discretion, its

employment against the backdrop of the Applicant required to furnish reasons to her constitutes an unequivocal indication that she must, prior to removing the Inkosi concerned, exercise discretion whether to endorse the decision or not. If the legislature had wanted her to rubberstamp all procedurally compliant decisions of the Applicant, it would have dispensed with the need to supply reasons to the Premier.

[21] I am fortified in this respect by similar provisions in other Sections and Subsections of the same statute. The provisions of the preceding Section are pertinent. Section 19(4) Provides that:

(1) “When there is evidence or an allegation that the identification of a person referred to in subsection was not done in accordance with customary law, customs or processes applicable in that traditional community, the Premier -

(a) may refer the matter to the Provincial House of Traditional Leaders for investigation;

(b) may refuse to recognise the person so identified; and

(c) must refer the matter back to the inner royal family for reconsideration.”

[22] This discretion in the case of Section 19 of the Act is notwithstanding that parts thereof are couched in peremptory terms. Accordingly, it cannot be concluded from the use of the word, ‘must’ in Section 20 that the Premier enjoys no discretion whether to appoint or not. As is evident, Section 19(4)(1)(a) – (c) allows the Premier to exercise her discretion, depending on whether or not there is evidence or allegation that the identification of a person referred to in the Section was not done in accordance with customary law, customs or processes applicable in that traditional community,

the Premier may act in terms of Subparagraphs (a) – (c).

[23] Thus, the furnishing of reasons is not without significance. Where the Premier is presented with evidence or allegations that the person sought to be removed has committed any of the three grounds of removal mentioned in Section 20(1)(a), (b (and (d) or is advised of the existence of procedural irregularity, the Premier cannot simply endorse the decision of the Applicant.

[24] This is why Subsection 4 of Section 20 provides that ‘where an Inkosi is removed from office, a successor identified in line with customs may, subject to the provisions of this Act, assume the position, role and responsibilities of such Inkosi.’ It is therefore envisaged that there will be those instances where the Premier may not ratify the removal, the decision of the Applicant to the contrary aside.

[25] The duty of assessing whether or not the assumption of the role of the removed Inkosi accords with customs and the provisions of the Act rests squarely on the Premier. The purpose of the legislation is to ensure that traditional communities, their governing structures and functionaries operate within the confines of the Constitution to which the Republic of South Africa is subject. To take the argument of the Applicant to its logical conclusion, it would be possible for the Applicant to appoint and remove Inkosis at will without any checks and balances. In the opinion of this Court, the supplying of reasons for the removal of the Inkosi to the Premier is to enable her to make an assessment and decide whether to endorse the decision of the Applicant or not. This is necessary especially in circumstances where allegations of the Applicant having been improperly constituted

when it made the decision exist.

[26] The argument of the Applicant must as such be rejected as misguided. The Premier has a discretion to exercise whether to reject the appointment or not. The discretion, however, cannot be exercised in a manner that gives her authority to decide on who should be identified as Inkosi. That will always be the prerogative of the Applicant.

HAS THE THIRD RESPONDENT VIOLATED THE PROVISIONS OF SECTION 20(1)(A), (B) AND (D) OF THE ACT

[27] Section 20(1) provides that an Inkosi may be removed for transgressing one of the provisions referred to in Section 20(1)(a), (b) or (d). See, Para 15 supra. The issue is whether or not the Third Respondent has contravened any of those. Needless to state that if he has, the Applicant would be entitled to remove him and the Premier under statutory obligation to endorse the decision of the Applicant

[28] There was neither evidence nor argument made in Court that the Third Respondent had been convicted of an offence which carries a sentence of imprisonment of more than 12 months without the option of a fine. Additionally, no attempt was made to demonstrate or show that the Third Respondent had suffered physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for him to function as an Inkosi.

[29] In the circumstances, there only remains one ground on which the Applicant relies. This is Section 20(1)(d) of the Act, which states that the Inkosi must have violated a customary rule or principle justifying his or her removal. I agree with the Premier that the onus of showing existence of the customary rule or principle and that the Third Respondent has transgressed it rests on the Applicant.

[30] Insofar as the existence of the customary rule of chasing ancestors is concerned, the allegation is bald. Firstly, the founding papers fail to allege that this is a principle that exists and recognized by the community. Secondly, how the act of chasing was committed and thirdly, that its transgression by the Inkosi is punishable by removal. The Section is specific that the transgression must be one that attracts removal. Thus, if it is transgression that does not require removal, the Inkosi concerned may not be removed. These should have been the reasons that the Applicant submitted to the Premier for evaluation to enable her to make an informed decision whether to remove or not.

DISPUTES OF FACT

[31] The Premier has contended that there exist disputes of fact and that the matter is as such, incapable of resolution on these papers without oral evidence. Once I have resolved that the Premier in her own right could refuse to ratify the decision of the Applicant, the evidence presented in the form of confirmatory affidavits annexed to the answering affidavit of the First Respondent do not really count. The point is that the Premier would have assessed the reasons and refused to endorse the decision of the Applicant without the confirmatory affidavits in particular, that of the Third Respondent. She has refused to endorse the decision based on the ground that the Third Respondent did not transgress any of the grounds mentioned in Section 20(1)(a), (b) or (d) of the Act.

[32] The disputes of fact creep in only when the confirmatory affidavits are considered. They are concerned with the procedure leading to the decision to remove by the Applicant. Those affidavits do not touch on the transgression of the customary rule or principle by the Third Respondent. No doubt, a dispute of fact would exist if the decision was founded on who constituted the Applicant at the time when the decision was made. For that reason, I regard the point concerning disputes of fact as superfluous. The first point relating to the locus standi of the Premier is dispositive of this whole matter.

[33] In the result, I make the following order;

The application is dismissed with costs;

The costs of the application shall include those of two Counsel, where applicable.

______________________________

B A MASHILE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA

APPEARANCES:

Counsel for the Applicant: Adv H Forie Instructed by: Cronje, De Waal – Skhosana Inc Counsel for the Respondent: Adv G Shakoane SC Adv M H Mbatha Instructed by: BV Mbungela Attorneys

Date of Judgment: 21 July 2023

[1] [1984] ZASCA 51; 1984 (3) SA 623 (A)

[2] [2022] ZACC 31 at para 36