Ntamo and Others v Premier of the Eastern Cape and Others (415/2016) [2019] ZAECBHC 23 (15 November 2019)

Ntamo and Others v Premier of the Eastern Cape and Others (415/2016) [2019] ZAECBHC 23 (15 November 2019)

The court found that the process by which the fifth respondent was elected and recognised as iNkosana of the Cala Reserve community was unlawful, as it contravened both the prior court order and the applicable customary law. The Royal family was required to identify the sixth applicant, who had been validly elected by the community in 2013, and the MEC was obliged to exercise discretion under section 18(5) of the Governance Act to ensure compliance with customary law. The Royal family decision was not administrative action subject to review under PAJA, and the failure to join the Royal family as a party was not fatal, as it had substantively participated and waived any right to formal...

Citation
[2019] ZAECBHC 23
Parties
Applicant: Penrose Ntamo; Applicant: Novuso Nopote; Applicant: Gagile Cuba; Applicant: Zoyisile Tyandela; Applicant: The Local Planning Committee, Cala Reserve; Applicant: Gideon Sitwayi; Respondent: Premier of the Eastern Cape; Respondent: Chief Gecelo; Respondent: Gcina Traditional Council; Respondent: MEC for Local Government and Traditional Affairs; Respondent: Ndodenkulu Jackson Yolelo; Respondent: Eastern Cape House of Traditional Leaders
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
15 November 2019
Case Number
415/2016
Procedural Posture
Review Application / Judgment
Outcome
Application granted; the election and recognition of the fifth respondent as iNkosana are set aside, and the sixth applicant is recognised as iNkosana.
Judges
S.K. Gough
Legal Topics
Promotion of Administrative Justice Act, Customary Law Headmanship, Joinder of Parties, Substitution of Administrative Decision, Res Judicata
Administrative Law Civil Procedure Promotion of Administrative Justice Act Customary Law Headmanship Joinder of Parties Substitution of Administrative Decision Res Judicata

Case Brief

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Parties

Penrose Ntamo

Applicant

Novuso Nopote

Applicant

Gagile Cuba

Applicant

Zoyisile Tyandela

Applicant

The Local Planning Committee, Cala Reserve

Applicant

Gideon Sitwayi

Applicant

Premier of the Eastern Cape

Respondent

Chief Gecelo

Respondent

Gcina Traditional Council

Respondent

MEC for Local Government and Traditional Affairs

Respondent

Ndodenkulu Jackson Yolelo

Respondent

Eastern Cape House of Traditional Leaders

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the identification of the fifth respondent as iNkosana by the Royal family and subsequent recognition by the MEC complied with customary law and the court order.
  2. 2 Whether the Royal family decision constituted administrative action subject to judicial review under PAJA.
  3. 3 Whether the failure to join the Royal family as a party was fatal to the application.

Ratio Decidendi

The court found that the process by which the fifth respondent was elected and recognised as iNkosana of the Cala Reserve community was unlawful, as it contravened both the prior court order and the applicable customary law. The Royal family was required to identify the sixth applicant, who had been validly elected by the community in 2013, and the MEC was obliged to exercise discretion under section 18(5) of the Governance Act to ensure compliance with customary law. The Royal family decision was not administrative action subject to review under PAJA, and the failure to join the Royal family as a party was not fatal, as it had substantively participated and waived any right to formal...

Court Disposition

Application granted; the election and recognition of the fifth respondent as iNkosana are set aside, and the sixth applicant is recognised as iNkosana.

Orders

  • The third respondent’s preliminary point on non-joinder of the ama-Gcina Royal family is dismissed.
  • The election on 14 October 2015 of the fifth respondent (Mr ND Yolelo) as iNkosana of the Cala Reserve community is declared unlawful and set aside.