Ngomane v Premier of Mpumalanga Province and Another (4577/2019) [2020] ZAMPMBHC 43 (7 May 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION

Case :4577/2019

1. REPORTABLE: YES / NO

2. OF INTEREST TO OTHER JUDGES: YES/NO

3. REVISED : YES

7 May 2020

In the matter between

Michael Ngomane

Applicant

And

The Premier of Mpumalanga Province

1st Respondent

Nicholas Ngomane

2nd Respondent

JUDGMENT

JANSEN VAN RENSBURG AJ

INTRODUCTION

[1.]. The applicant, who claim to be the representative of the Inner Circle of the Royal Family of the Siboshwa Traditional Council, brought an application to dispute the appointment of the 2nd respondent as the Chief of the Siboshwa Tribe. The applicant has attached a resolution by members of the Inner Circle to the affidavit.

[1]However, the resolution only refers to names and signatures without designations or any indication as to the position of the signatories within the Inner Circle.

[2]. The applicant alleges that the 2nd respondent has been appointed as Chief of the Siboshwa Tribeby the 1st respondent without any consulting with the Traditional Council or any other input in this regard.

[3]. On 12 December 2019, the applicant obtained a rule nizifrom this court with return date 17 February 2020, whereby the respondents had to show cause why the rule nizi should not be made final and be enforceable against the respondents.

[4]. On 17 February 2020, the application was subjected to ’case management’ [2] and the applicant and respondents were ordered to file certain documents and affidavits. The 1st respondent filed a notice to oppose the application as well as a detailed answering affidavit with annexures [3] and the 2nd respondent filed a notice that he would abide by the outcome of the application. [4]

[5]. Needless to say nothing else was filed such as practice notes and heads of argument contrary to contents of form B and the instructions contained therein.

BACKGROUND TO THE APPLICATION AND THE RULE NIZI ORDER DATED 12 DECEMBER 2019

[6]. The dispute originated in that a new Chief must be appointed in the place of the late Chief Shushu Oman Ngomane (hereafter Shushu) of the Siboshwa Tribe who passed away in 2016.

[7]. It is necessary to refer to the history of the matter to understand the sequence of events and the role that the applicant and the respondents played in this application. I will refer to the Royal Family but due to the lack of appointments or titles, I am not disrespectful it I refer to individuals by their names or just to the Royal Family.

[8]. It is alleged that Shushu was married to Monica Ngomane and a son named Njabulo was born. According to the papers Njabulo was 13 years of age at the time of this application being brought. The 2nd respondent is also a legitimate son of the late Shushu. The applicant alleges that the lobola for Monica Ngomane was paid for by the Royal Family and the lobola for the second wife of the later Shushu was paid by the community.

[9]. The matter deepens as the question is which son would be the heir to the throne so to speak? The applicant’s application

purportedly dealt with the unlawful identification and / or appointment of the 2nd responded as the heir to the throne.

[10]. The applicant refers to aspects which occurred in 200 to 2002 which does not support his case other as to indicate that the successor should come from the wife whose lobola has been paid for by the Royal Family.[5]

[11]. Thembelihle Martha Ngomane (also referred to as LaLuhlanga) lodged a complaint under complaint number MP/01/04 on behalf of her son, the 2nd respondent in terms of section 21(3) of the Traditional leadership and Governance Framework Act 41 of 2003 as amended. The Commissionis

established under section 22(1) of the Traditional Leadership and Governance Framework Act 41 of 2003 as amended and being empowered by section 25(1) of the amended Framework Act 23 of 2009 to execute its mandate. The Provincial Commission is empowered and authorised to investigateany complaint in compliance with the applicable customary law and to conducted interviews and submit documents with its findings and recommendations therein.[6]

[12]. The Commission found that the Royal Family are Shangaans and have to a large extent adopted the Swazi culture and customs.

Accordingly, it is not the son who is installed as the Chief, but rather the senior wife amongst the wife’s of the Chief being regarded as the ‘mother of the community’.

[13]. In short, the Commission found that the Chieftaincy lies within the house of LaLaluhlanga. [7]

[14]. The applicant alleges that on 6 December 2019 a meeting was held where a decision was taken that the 2nd respondent would be recognised and installed as the Chief of the Siboshwa Tribe. It is alleged by the applicant that the Royal Family was not involved or requested to take part in the decision-making process to install the 2nd respondent as the Chief of the Siboshwa Tribe.

[13]. The applicant alleges that the inauguration of the 2nd respondent as the Chief of the Siboshwa Tribe was scheduled for 12 December 2019. For this reason, the applicant obtained a rule nizi order to prevent any inauguration of the 2nd respondent as the Chief of the Siboshwa Tribe and to supplied with certain information. [8]

[14]. I must refer to the purported confirmation affidavits by Monica Goodness Ngomane, Petrus Vusi Ngomane and Flora Ngomane which is commissioned without the deponents completing the date of commissioning. For this reason, the affidavits are not dealt with as not being properly before this court.

THE ANSWERING AFFIDAVIT BY THE 1ST RESPONDENT

[15]. The application for condonation for the late filing of the answering affidavit is granted in the interest of justice[9]The 1st respondent deposed to a detailed answering affidavit which deals with all the allegations by the applicant and included a notice to oppose the application [10], an opposing affidavit [11] , various annexures and documents related to the disputed actions by the 1st respondent.

[16]. The 1st respondent deniesany unlawful actions as alleged by the applicant. The 1st respondent raised a point in limine that the MEC for Co-operative Governance and Traditional Affairs as well as the Traditional Council has not been cited as parties to the applicant’s application. [12]

[17]. The information was communicated to the Royal Family as early as 14 August 2019 where the parties were referred to section 19 of the Mpumalanga Traditional Leadership Governance act 3 of 2005. [13] The Royal Family consists of three houses of the late Chief Shushu. A meeting was scheduled for 12 December 2019 to facilitate the question of Chieftaincy. The applicant decided not to attend the meeting but elected to embark on this application.

[18]. The nomination of the 2nd respondent as the new Chief was supported by the recommendation by the Commission which is appointed in terms of section 22(1) of the act and by the support of 2 of the royal houses. [14]Section 19 read with section 20(1)(a), (b) or (d) of the Act clearly indicate the process to be followed in the appointment of a Chief. The 1st respondent is required to recognise the newly proposed Chief subjected to section 20(4) of the Act. Where there is a dispute in

terms of the recognition of a person as the new Chief which process was not done in accordance with customary law, customs or processes

applicable in the community the premier may intervene in terms of section 20(1)(a)(i) of the Act reads as follows –

‘(a). the Premier may refer the matter to the provincial House of Traditional Leaders for investigation.

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

(ç). Must refer the matter back to the inner Royal Family for reconsideration’.

[19]. From the reading of the opposing affidavit by the 1st respondent it is clear that the preliminary investigation of the appointment of a new Chief was still done in terms of section 19 of the Act whereby a meeting was scheduled for 12 December 2019 to discuss the issues and any objections. The applicant did not attend this meeting and there is no explanation by the applicant as to the reasons for his absence at the meeting.

[20]. It is obvious that the 2nd respondent was not identified as the potential new Chief of the Siboshwa Tribe nor did the 1st respondent informed the House of Traditional Leaders of any appointment of the 2nd respondent as the new Chief of the Siboshwa Tribe.

[21] The conclusion of the Commission was that the succession of a Chief in terms of Swati law and Customs is determined by the seniority of the wives of the Chief. Chieftaincy vests in the son of the mother of the community whose lobola was paid by the community and as such this points at the mother of the 2nd respondent.

[22]. The 1st respondent denies that there was any meeting held at her office on 6 December 2019 or that the 1st respondent would have recognised and confirmed the Chieftaincy on the 2nd respondent. [15]The applicant abstained from a meeting held by the Royal Family on 12thDecember 2019 for some undisclosed reasons. The 1st respondent denies that irreparable harm has been caused in the process

[23]. The 1st respondent denied that the 2nd respondent was identified to be acknowledged by the 1st respondent as the Chief of the Siboshwa Tribe. The applicant was present at a meeting held on 6th December 2019. [16]

LEGISLATION

[24]. The Constitution of the Republic of South Africa, 1996 (the Constitution) recognises the institution and system of traditional leadership. Section 211 of the Constitution is applicable and of importance in this instance and reads as follows -

‘(1) The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution.

(2). A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.

(3). The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law."

[my underlining]

[25]. The most applicable statutory provisions for a determination required in this matter, are significantly located in the Traditional Leadership and Governance Framework Act 41 of 2003 (the Traditional Leadership Framework). It is also common cause that the Premier is empowered in terms of the Traditional Leadership Framework and other legislation to take administrative decisions relating to traditional leadership.

[26] Section 11 of the Traditional Leadership Framework provides for recognition of, among others, senior traditional leaders and reads in the material part:

‘(1) Whenever the position of senior traditional leader, headman or headwoman is to be filled­

(a) the Royal Family concerned must, within a reasonable time after the need arises for any of those positions to be filled, and with due regard to applicable customary law-

(i) identify a person who qualifies in terms of customary law to assume the position in question, after taking into account whether any of the grounds referred to in section 12 (1) (a), (b) and (d) apply to that person; and

(ii) through the relevant customary structure, inform the Premier of the province concerned of the particulars of the person so identified to fill the position and of the reasons for the identification of that person; and

(b) the Premier concerned must, subject to subsection (3), recognise the person so identified by the Royal Family in accordance with provincial legislation as senior traditional leader, headman or headwoman, as the case may be.

(2)(a) The provincial legislation referred to in subsection (1) (b) must at least provide for –

(i) Notice in the Provincial Gazette recognising the person identified as senior traditional leader, headman or headwoman in terms of subsection (I);

(ii) A certificate of recognition to be issued to the identified person; and

(iii) The relevant provincial house of traditional leaders to be informed of the recognition of a senior traditional leader, headman or headwoman.

(b) Provincial legislation may also provide for-

(i) The election or appointment of a headman or headwoman in terms of customary law and customs; and

(ii) Consultation by the Premier with the traditional council concerned where the position of a senior traditional leader, headman or headwoman is to be filled.

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

(a) may refer the matter to the relevant provincial house of traditional leaders for its recommendation; or

(b) may refuse to issue a certificate of recognition; and

(c) must refer the matter back to the Royal Family for reconsideration and resolution where the certificate of recognition has been refused.

(2) Where the matter which has been referred back to the Royal Family for reconsideration and resolution in terms of subsection (3) has been reconsidered and resolved, the Premier must recognise the person identified by the Royal Family if the Premier is satisfied that the reconsideration and resolution by the Royal Family has been done in accordance with customary law’.

[27] The functions of the Commission are explained in section 25(3) of the Traditional Leadership Framework as follows -

‘(1) The Commission operates nationally in plenary and provincially in committees and has authority to investigate and make recommendations on any traditional leadership dispute and claim contemplated in subsection (2).

(2)(a) The Commission has authority to investigate and make recommendations on­

(i) a case where there is doubt as to whether a kingship or, principal traditional leadership, senior traditional leadership or headman ship was established in accordance with customary law and customs;

(ii) a case where there is doubt as to whether a principal traditional leadership, senior traditional leadership or headman ship was established in accordance with customary law and customs;

(iii) a traditional leadership position where the title or right of the incumbent is contested;

(iv) claims by communities to be recognised as kingships, queenships, principal traditional communities, traditional communities, or headman ships .

(b) A dispute or claim may be lodged by any person and must be accompanied by information setting out the nature of the dispute or claim and any other relevant information.

(c) The Commission may decide not to consider a dispute or claim on the ground that the person who lodged the dispute or claim has not provided the Commission with relevant or sufficient information or the provisions of section 21 have not been complied with.

(3)(a) When considering a dispute or claim, the Commission must consider and apply customary law and the customs of the relevant traditional community as they applied when the events occurred that gave rise to the dispute or claim.

(b) The Commission must-

(i)...

(ii) in respect of a principal traditional leadership, senior traditional leadership or headman ship, be guided by the customary law and customs and criteria relevant to the establishment of a principal traditional leadership, senior traditional leadership or headman ship, as the case may be...."

[My underlining]

[28] The Traditional Leadership Framework was amended by the Traditional Leadership and Governance Framework Act 23 of 2009 and the amended section 21(3) of the former provides that -

"(3) Where a dispute or claim contemplated in subsection (I) has not been resolved as provided for in this section, the dispute or claim must be referred to the Commission."

[29] Other than the above-mentioned national legislation, there is also provincial legislation in the form of the Mpumalanga Traditional Leadership and Governance Act 3 of 2005 as amended.

CASE LAW

[30] Traditional leadership applies to majority of people living in rural areas.[17]The majority of our people still subscribes to customs and traditional practices to regulate or control conduct or the use of power. It is therefore not surprising that the Courts, including at the higher level, have dealt with issues not only regarding traditional

leadership or but other traditional or related issues.

[31] In the Nwamitwa[18]decision the following was said which borrowed largely from other decisions -

"[44] As a result, the process of determining the content of a particular customary law norm must be one informed by several factors. First, it will be necessary to consider the traditions of the community concerned. Customary law is a body of rules and norms that has developed over the centuries. An enquiry into the position under customary law will therefore invariably involve a consideration of the past practice of the community. Such a consideration also focuses the enquiry on customary law in its own setting rather than in terms of the common law paradigm, in line with the approach set out in Bhe.48 Equally, as this Court noted in Richtersveld, courts embarking on this leg of the enquiry must be cautious of historical records, because of the distorting tendency of older authorities to view customary law through legal conceptions foreign to it.

[45] It is important to respect the right of communities that observe systems of customary law to develop their law. This is the second factor that courts must consider. The right of communities under section 211(2) includes the right of traditional authorities to amend and repeal their own customs. As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated, and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.

[46] It follows that the practice of a particular community is relevant when determining the content of a customary law norm. As this court held in Richtersveld, the content of customary law must be determined with reference to both the history and the usage of the community concerned. "Living" customary law is not always easy to establish and it may sometimes

not be possible to determine a new position with clarity. However, where there is a dispute over the law of a community, parties should strive to place evidence of the present practice of that community

before the courts, and courts have a duty to examine the law in the context of a community and to acknowledge developments if they have occurred."[19]

[32] The direct point from the Nwamitwa supra above, which deserves emphasis is that, where there is a dispute over the customary laws of a community, parties should strive to place evidence of the present practice of that community before the Courts and the Courts have a duty to examine the law in the context of the community and to acknowledge developments if they have occurred.

[33] It is also worthy of emphasis to state that section 25(3) of the Traditional Leadership Framework requires of the Commission to consider and apply customary law and the customs of the relevant traditional community as they were when the events occurred that gave rise to the dispute or claim.[20]The Commission authorities for their submissions, including that in terms of customary law of succession and particularly succession to chieftaincy, the identification of the heir to the throne of chieftaincy is based on the primogeniture rule. In terms of this

rule, the heir to the chieftaincy is primarily identified from the principal house being the house of the first wife married by the chief whose first-born son is first in line of succession to his father's throne. Other sons would inherit following the lineage of seniority.

[34]. This is the Traditional Leadership and Governance Framework Act 41 of 2003 (the Traditional Leadership Framework). As its title suggests, this legislation provides a framework for determining issues and claims relating to traditional leadership. This is therefore the primary authority or source of reference for anything relating to traditional leadership, including a determination of the issues in this matter. It is therefore, in my view, inconceivable that any of the parties would hold a contrary view.

[35]. Section 1 of the Traditional Leadership and Governance Framework Act 41 of 2003 defines a ‘’Royal Family" as "consisting of immediate relatives of the ruling family within a traditional

community, who have been identified in terms of custom, and includes, where applicable, other family members who are close relatives of the ruling family". The Royal Family is the critical player, so to speak in the identification and appointment of traditional

leaders.[21] In this matter, it is common cause that the Siboshwa Tribe Royal Family comprises three houses.

[36]. Therefore, this being an established fact, the applicant is incorrect in asserting that he (and for that matter one of the royal houses, have the exclusive role of identification and appointment of senior traditional leader of Siboshwa Tribe. This is how the applicant put his version before this court. The views of other members of the Royal Family ought to be considered and this include representations made to the Commission.

[37]. The applicant did not make any representations in this regard during the investigations by the Commission. The applicant and the remaining royal house were aware of the process but excluded themselves for some reason. The common theme in the case law discussed above is that parties should strive to place evidence of the present practice of that traditional community before the Courts. I have already expressed a view above that the circumstances of this matter this ought to have happened at the Commission before the impugned decision was made.

[38]. Therefore, a factual enquiry or as stated in section 25(3) of the Traditional Leadership Framework Act 41 of 2003 an investigation was required and completed. In my view the Commission executed its duties with exceptional diligence and the report by the Commission is found to be satisfactorily in this regard. I do not find any reason to interfere with the impugned decision, including the process followed in its taking.

[39]. The applicant on the other hand, did not disclose the true nature of the events to the court in his founding affidavit. There are many allegations made which is not substantiated by factual evidence based on documents and reports for instance by the Commission appointed to investigate the complaint regarding the appointment of the new Chief for the Siboshwa Tribe.

[40]. The 1st respondent in the answering affidavit and annexures thereto, clearly set out the procedures to be followed if there is a dispute regarding the appointment of a new Chief, which the applicant did not follow. Read herewith there was a meeting held where two of the royal houses voted in favour of the 2nd respondent to be recognised as the new Chief supported by the recommendations of the Commission convened for this purpose. The

applicant was absent from this meeting.

[41]. Furthermore the customs of the Siboshwa Tribe clearly point at the fact that the wife whose lobola was paid by the community was the senior wife and as such she became the ‘mother of the Siboshwa Tribe’ and the successor of the Chieftaincy would be the first born son of this wife. In this instance the ‘right to succession’ was found to be in the house of LaLuhlanga being that being the house of Thembekile Martha Ngomane.

[42]. Section 11(1) of the Act deals with the procedure whereby the Royal Family must within a reasonable time and taking into consideration the applicable customary law identify a suitable person to assume the position of Chief read with the requirements of section 12(1)(a), (b) and (d) of the Act.

[43]. It is clear from the papers that the process of identifying a person to assume the position as Chief of the Siboshwa Tribe was still in progress when the applicant embarked to issue this application which is before the court.In other words, being

dissatisfied and not taking part in the formal proceedings as prescribed by the Act, the applicant decided to embark on a route

which is incorrect. Furthermore, the applicant did not file a replying affidavit to reply to any of the factual points with proof

thereof set forth by the 1st respondent. The applicants pursued the matter even when it was clear that there was no final decision on the appointment of a Chief for the Siboshwa Tribe. The applicant and whoever was supposed to take part in the decision process attempted to dissociate himself / themselves from what took place in an effort to cast doubt on the work of the Commission, the decision of the remaining Royal Houses and consequently a final decision to be taken by the Premier based on the recommendations by the Commission and the voting by the two Royal Houses which representatives of the two Royal Houses present during the meeting. This, even if not mala fide, was ill-conceived and ill­ advised. This leaves much to desire.

[44]. The applicant has thrown his blanket to the wind to suit his case but left out important evidence which has been provided by the 1st respondent. The lack of filing a reply thereto must be that the version of the 1st respondent is more likely the truth base on the balance of convenience. The allegations by the applicant regarding the 1st respondent in confirming the 2nd respondent as the new Chief of the Siboshwa Tribe is well explained by the 1st respondent as being untrue as there is still some negotiations, consultation and nominations for the Chieftaincy in the process.

[45]. The fact of the matter is that two royal houses supported the appointment of the 2nd respondent as the new Chief of the Siboshwa Tribe[22] which is supported by the Commission who dealt with the complaint.

[46]. The 1st respondents’ points in limine is not going to take the matter any further.

[47]. In my view the applicant’s application was premature read with the circumstances described in the answering affidavit by the 1st respondent and the documentary proof attached to the answering affidavit.

ORDER

[48] The following order is made –

1. The application is dismissed.

2. The rule nizi is declared null and void and not being made a final order.

3. The 1st respondent is ordered to facilitate the speedily appointment of a new Chief for the Siboshwa Tribe in accordance with the provisions of the Traditional leadership and Governance Framework Act 41 of 2003 as amended within 6 months of this order being handed down.

4. The applicant is ordered pay the cost of this application.

H.C. JANSEN VAN RENSBURG

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MBOMBEL DIVISION

DATE OF HEARING AND JUDGMENT:7 May 2020

ATTORNEY FOR THE APPLICANT

HOUGH AND BREMMER ATTORNEYS

MBOMBELA

REF : MR EASTES/ab

ATTORNEY FOR THE 1ST RESPONDENT

THE STATE ATTORNEY

32 BELL STREET

REF : COR/002/ME/20

ATTORNEY FOR THE 2ND RESPONDENT

MKHONTO & NGWENYA ATTORNEYS

77 EMKHE STREET

[1] See page 18 and 19 of the application.

[2] Available on the court file.

[3] See pages 66 to 118

[4] See page 64

[5] See page 9 paragraph 10.7.

[6] Section 29A(1) of the act.

[7] See page 75

[8] See 53 to 55.

[9] Paragraphs 45 to 51 of the answering affidavit.

[10]See page 62 of the bundle.

[11] See page 66 and to 118.

[12] See page 70 of the bundle.

[13]See paragraph 14 and annexure RMM2 to the answering affidavit.

[14] See annexure RMM3 and RMM 4 to the answering affidavit.

[15] See page 90 paragraph 43.3 and 43.8. and page 91 paragraph 44.1.

[16] See annexure RMM 4 at page 116 to the opposing affidavit.

[17] Unreported decision TinyikoLwandhlamuni Philla NwamitwaShilubana and Ten Others v Sidwell Nwamitwa together with Amici Curiae, Case CCT 03/07 [2008] ZACC 9, decided on 04 June 2008 (Nwamitwa) at par [43] where it is stated: "It is a body of law by which millions of South Africans regulate their lives and must be treated accordingly."

[18]See footnote 17 above.

[19]Nwamitwa at pars [44]-[46] albeit quoted without authorities or footnotes.

[20]Mamone v Commission on Traditional Leadership Disputes and Claims 2015 JDR 0015 (CC) at pars [19] - [20].

[21] See section 11 of the Traditional Leadership Framework Act 41 of 2003.

[22] See answering affidavit page 76 paragraph 17 and annexure RMM3 thereto on page 112 to 115.