Royal Family of Amadlomo and Another v Premier of the Eastern Cape and Others (1944/2020) [2020] ZAECMHC 29 (23 July 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

EASTERN CAPE LOCAL DIVISION: MTHATHA

Case No: 1944/2020

In the matter between:-

THE ROYAL FAMILY OF AMADLOMO

1st Applicant

AZENATHI DALINDYEBO

2nd Applicant

And

THE PREMIER OF THE EASTERN CAPE

1st Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL

Responsible for COOPERATIVE GORVENANCE AND

TRADITIONAL AFFAIRS: EASTERN CAPE

PROVINCE

2nd Respondent

BUYELEKHAYA ZWELIBANZI DALINDYEBO

3rd Respondent

CORAM:

MBHELE, J

HEARD ON:

16 JULY 2020

DELIVERED ON:

23 JULY 2020

MBHELE J

[1] The applicants approached this court on an urgent basis seeking an order in the following terms:

1. Granting the applicants leave to bring this application by way of urgency in accordance with the provisions of uniform rule 6 (12) ;

2. That it is reviewed, set aside and declared unlawful the first respondent's decisions communicated to the second applicant by a letter dated 19 June 2020:

2.1 That the second applicant's acting stint as King of AbaThembu is no longer necessary;

2.2 To officiate the termination, with immediate effect, of the second applicant's service as Acting King of AbaThembu;

2.3 Officiate the third respondent's resumption of duties as King of AbaThembu; and

2.4 Evicting the second applicant from his home, Tyalara Farm, Mthatha without an order of Court and in breach of Level 3 Lockdown Regulations Promulgated in terms of the Disaster Management Act 2002 ( Act No. 57 of 2002 )

3. That the second applicant be and is hereby permitted to discharge the functions and duties of Acting King of AbaThembu, unreservedly in accordance with the customary law of AbaThembu and subject to the Eastern Cape Traditional Leadership and Governance Act, ( Act No.1 of 2017 ), and the Constitution of the Republic of South Africa, 1996 ( Act No. 108 of 1996) .

4. That the first and second respondents, acting through any of their officials or otherwise, and the third respondent be and are hereby interdicted and restrained from, in any manner whatsoever unlawfully taking steps, the effect of which would be to denude the second applicant of the authority, power and status which the position of Acting King of AbaThembu confers upon him.

5. That pending a decision of this Court on the relief sought in prayers number 2, 3 and 4 the :

5.1 The first and second respondents shall not officiate the third respondent's resumption of duty as King of AbaThembu.

5.2 The third respondent shall not resume duty as King of AbaThembu.

6. The second respondent is forthwith directed to see to the immediate return to the second applicant of the vehicle, a white Jeep with:

6.1 Registration letters and numbers HLM […]

6.2 Engine No. FC707778; and

6.3 Vin No. 1C4[…].

7. Directing the first and second respondents to pay costs of this application jointly and severally, the one paying to be absolved, and the third respondent, to pay costs only in the event of opposition.

8. That such further and or alternative relief as this court may deem be granted in applicants' favour.

[2] The third respondent is the reigning King of AbaThembu Nation. On 01 October 2015 the third respondent was convicted of various offences and sentenced to 12 years imprisonment. He commenced his 12 year prison term on 30 December 2015 leaving the position of King of Abathembu vacant. Tensions arose and the members of the clan broke into 3 factions with each faction having different views on who should be appointed as the Acting King.

The first Applicant nominated the second Applicant, the second faction nominated Nkosi Mankunku Mtirara, the third respondent's brother, and a third nominated Nkosikazi Nokwanda, the third respondent's wife. On 08 February 2017 the first respondent sent a letter to the first applicant recognising second

applicant as an Acting King of Abathembu on the basis that his Acting stint would be reviewed annually and would endure until there was finality to the Dalindyebo Kingdom issues.

[3] On 13 February 2018 the first respondent sent a letter to the Royal family of Abathembu confirming the extension of the Acting Appointment of the second applicant and that there would be a review after 3 years from 08 February 2017.

[4] During October 2019 the third respondent sent Mr. Maraqana, chairperson of the Correctional Supervision and Parole Board as well as Mr. Nweba the Correctional Services Area Commissioner to notify the second applicant of his impending release. This was done in compliance with section 26 (11) of the Eastern Cape Traditional Leadership And Governance Act 1 of 2017 (the Provincial Act). On 23 December 2019 the third respondent was released on parole. On 11 February 2020 the first applicant wrote a letter to the first respondent making a representation on why it was necessary for the second applicant to continue Acting as the King.

[5] On 13 February 2020 the third respondent wrote a letter to the second applicant communicating his intentions to return to Komkhulu Residence (the palace) and his desire to occupy the main bedroom in the palace. The second applicant, through his lawyers responded to the said letter on 26 March 2020 indicating his willingness to cooperate in the third respondent's reinstatement to the throne. It is in the same letter where he acknowledged that there is no protest about the third respondent's right to occupy the palace. There was a suggestion that in order to facilitate the third respondent's smooth transition to the throne his emoluments be received by the second applicant until the process was finalised.

[6] On 31 May 2020 the second respondent wrote a letter to the second applicant with the following contents:

‘My office has received a correspondence from King Zwelibanzi. King Zwelibanzi advises that he gave you notice to resume his responsibilities as King in October 2019. In terms of section 26(11) of the Traditional leadership and Governance Act 1 of 2017 whenever the circumstances referred to in subsection (1) (c) are no longer applicable, any recognition of acting capacity shall automatically lapse on the date on which the relevant person is identified and recognised by the notice in the Provincial Gazette, or the date on which the traditional leader referred to in subsection (1) (c) resumes his or her responsibilities.

My office was never at any stage advised either by the King or yourself as the person acting in his stead that a notice of intention to resume the responsibilities was given. I was only informed for the first time by the King in May 2020.

In the circumstances I will initiate the removal process of your acting appointment and consequently you are requested to make representations stating reasons, if any, why you may not be removed as the Acting King on grounds that circumstances for acting capacity have ceased to exist. The second ground is that the King has given notice of his intentions to resume his responsibilities."

[7] On 03 June 2020 the second applicant responded to the second

respondent's correspondence and he inter alia stated that he did not receive the notice referred to in the letter and reminded the second respondent of the letter written by the first applicant in February 2020 informing the first respondent of the first applicant's decision that it was still necessary for him to continue acting as King. He further urged the second respondent not to initiate the process of removing him as Acting King.

[8] On 19 June 2020 the first respondent wrote a letter to the second applicant informing him of termination of his services as Acting King with immediate effect. On 22 June 2020 the second respondent informed the third respondent of the termination of acting capacity of the second applicant and that he may resume his duties as King. The applicants approached this court 4 days later for the aforementioned relief.

[9] POINTS IN LIMINE

9.1

Locus standi and authority

The third respondent, in his answering affidavit. took issue with the first applicant's authority to institute these proceedings as well as the authority of the deponent to depose to the founding affidavit on behalf of the first applicant.

In both the founding and replying affidavits the first applicant failed to show where it derives the powers to institute these proceedings,

neither was it able to show where the deponent to its affidavit derives the powers and authority to depose thereto. The only allegation made by the deponent is that he is the chairperson of the first applicant and as such authorised to depose to the affidavit.

The institution and prosecution of application proceedings have to be authorised. The first applicant, despite being invited to show that it had authority to institute these proceedings, failed to cure the defect. Nothing was presented to show how the first applicant is constituted and whether the decision to institute these proceedings was taken by the first applicant.

9.2

Non - joinder

The first and second respondents take issue with the applicants' failure to join the President of South Africa to the proceeding as the President has a substantial and direct interest in the proceedings. This is so because the third respondent's certificate of recognition as the King of AbaThembu was issued by the President and such certificate still persists.

[10] It has become settled that the joinder of a party to the proceedings is required as a matter of necessity - as opposed to convenience- if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned it is necessary to join that party. See (Judicial Service Commission and Another v Cape Bar Council and another 2013 (1) SA 170 (SCA).

[11] It is a fundamental principle of law that the court should not at the instance of another party grant an order whereby another party's interests may be directly affected without formal judicial notice of the proceedings. See (Economic Freedom Fighters and Others v Speaker of the National Assembly And Others 2016 (1) All SA 520 WCC).

[12] The president has a substantial interest in the matter in view of the recognition certificate. His statutory powers are affected by these proceedings. Failure to give him a notice is fatal to these proceedings. Ordinarily non joinder and lack of authorisation may be dispositive of the matter. There are however other issues which I intend to deal with below.

CONTENTIONS BY THE PARTIES

The Applicants decry the decision by the Premier to discontinue the Acting stint of the second applicant as the King of Abathembu. The decision is impugned on the basis that due process was not followed before the decision was taken and further that the applicants' views were not sought by the first respondent prior to the decision being taken. At the heart of the applicants' complaint is that the incumbent of the Position of the King (the third respondent) is not a fit and proper person to occupy the said position. This is based on his previous convictions, for which he served a prison term and got released on parolet and the violence he is alleged to have meted out on his son and daughter in law during March 2020. The applicants contend, further, that his sentence of more than 12 months imprisonment without an option of a fine disqualifies him from occupying the position of King.

The first and second respondents contend that there was no need to undertake a review because the acting stint of the second applicant

ended by effluxion of time and operation of the law. In their view the release of the third respondent on parole signalled the end of the second applicant's acting stint. They submit further that the second applicant's acting stint ended in February, on the date the review was to be undertaken.

LEGAL PRINCIPLES

Section 10 of the Traditional Leadership And Governance Framework Act 41 of 2003 as amended provides as follows where it deals with the removal of kings and queens:

‘10 (1) A king or queen may be removed from office on the grounds of-

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;

(b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for the king or queen 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 royal family and the royal family decides to remove a king or queen, the royal family must, within a reasonable time

and through the relevant customary structure-

(a) inform the President, the Premier of the province concerned and the Minister, of the particulars of the king or queen to be removed from office;

(b) furnish reasons for such removal; and

(c) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly.

(3) Where it has been decided to remove a king or queen in terms of subsection (2), the President on the recommendation of the Minister must-

(a) withdraw the certificate of recognition with effect from the date of removal;

(b) publish a notice with particulars of the removed king or queen in

the Gazette; and

(c) inform the royal family concerned, and the removed king or queen of such removal.

(4) Where a king or queen is removed from office, a successor in line with customs may assume the position,"

[13] The certificate of recognition as King is issued by the President of the country and its withdrawal is within the province of the President. Firstly the royal family must take a decision to remove the king and communicate same to the President and the Premier of the Province where the king is reigning. In the absence of the procedure stated above the incumbent of the position of the king remains in office. It is only after the process outlined in Section 10 of the National Act and section 24 of the Provincial Act have been complied with that the King will be removed. The applicants recognise that the King has not been removed in terms of the prescribed law and yet they want the acting stint of the second applicant to persist. The allegations of lack of fitness advanced in the founding affidavit are of no consequence if the prescribed procedure has not been followed.

In MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 the following was said:

"[103] The fundamental notion - that official conduct that is vulnerable to challenge may have legal consequences and may not be ignored until properly set aside - springs deeply from the rule of law. The courts alone, and not public officials, are the arbiters of legality. As Khampepe J stated in Welkom, "[t]he rule of law does not permit an organ of state to reach what may turn out to be a correct outcome by any means. On the contrary, the rule of law obliges an organ of state to use the correct legal process. For a public official to ignore irregular administrative action on the basis that it is a nullity amounts to self­ help. And it invites a vortex of uncertainty, unpredictability and irrationality. The clarity and certainty of governmental conduct, on which we all rely in organising our lives, would be imperilled if irregular or invalid administrative acts could be ignored because officials consider them invalid."

[14] The above dictum supports the submission by the first and second respondents that for as long as the recognition certificate exists, the third respondent must be recognized as King. It matters not that the King's actions might be deplorable, ignoring his certificate of recognition by the first and second respondents would have been to fly in the face of the law.

The applicants contend that the third respondent is not in a position to govern because he is a parolee.

In S v JIMMALE AND ANOTHER 2016 (2) SACR 691 (CC) at paragraph 1 the court remarked as follows about parole:

"[1] Parole is an acknowledged part of our correctional system. It has

proved to be a vital part of reformative treatment for the paroled person who is treated by moral suasion. This is consistent with the law: that everyone has the right not to be deprived of freedom arbitrarily or without just cause and that sentenced prisoners have the right to the benefit of the least severe of the prescribed punishments. As courts are now clothed with the power to postpone consideration of parole for sentenced offenders, the public interests demand that they have full knowledge of the offender's transgression and personal circumstances, including knowledge of the offender's conditions, when parole is considered. In other words, knowledge and an assessment by courts of facts relevant to the conduct of the prisoner, after the imposition of sentence, are usually a must."

[15] The main purpose of parole is to integrate offenders with the community. It is an incentive for prisoners to behave well and complete prescribed programs while behind bars. It is considered a reward for good behaviour. The third respondent was released on parole with no conditions attached. It is incumbent upon the society to receive him and regard him as one of their own. Nothing disqualifies him form partaking in activities that all other members of the society are partaking in, including kingship unless removed therefrom by due process.

[16] Another question to answer is whether the termination of the second applicant's acting appointment was as a result of a review envisaged in section 26 (5) of the Provincial Act or by effluxion of time and operation of the law. One has to look into when and how an acting king should be appointed.

[17] Section 26 (1) (c), (10) and (11) provides as follows:

"26 (1) The royal family must identify a suitable person in terms of customary law and customs to act as a traditional leader where•:

(c) a king or queen, principal traditional leader, senior traditional leader or headman or headwoman as the case may be, is absent from his or her area of jurisdiction for a period of more than six months due to-

(i) illness;

(ii) study purposes; or

(iii) any other lawful purpose

(10) Whenever the successor to a traditional leadership position has been identified, or the circumstances referred to in subsection (1) (c) are no longer applicable, any recognition of acting capacity shall automatically lapse on the date on which the relevant person is identified and recognised by notice in the Provincial Gazette, or the date on which the traditional leader referred to in subsection (1) (c) resumes his or her responsibilities.

(11) A king or queen, principal traditional leader, senior traditional leader or headman or headwoman in whose stead a person has been identified to act, must give three months' notice of his or her intention to resume the responsibilities of the position, to a person acting in his or her stead."

[18] Section 26 regulates acting appointments of traditional leaders. The second applicant knew that his acting appointment was as a result of the King's absence due to his lawful incarceration. He was at all material times aware that his position was not permanent. Subsection 10 states that whenever the circumstances referred to in subsection (1) (c) cease to exist any recognition of acting capacity shall automatically lapse.

[19]

A further requirement is that the incumbent of the position must give the person acting in his position 3 months' notice of his intention to resume the responsibilities of his position. The second applicant does not deny that he was visited by Mr. Maraqana who informed him of the King's intention to resume his responsibilities. This constituted a notice. The fact that he called Mr. Maraqana to inform him that the third respondent had no right to tell the second applicant to vacate the palace upon his release, is a clear indication that notice was given. The requirements of section 26 were satisfied when the first respondent informed the second applicant of the termination of his acting capacity.

[20] It is clear from the Act that a vacancy has to exist for an acting King to be appointed. There was no vacancy. The circumstances that led to the acting position ceased to exist when the third respondent was released on parole. For the acting appointment to persist the first respondent had to ignore the certificate of recognition issued by the President. With the Acting appointment lapsing automatically upon the removal of the impediment that created the vacancy there was no need to undertake the review in terms of section 26 (5).

[21] The argument by Mr. Bodlani, on behalf of the applicants, that the applicants were not given a hearing before the decision was taken is without basis. The first applicant wrote a letter in February stating reasons why it believes that the second applicant must continue to act as the King. The second applicant was asked in a letter of the 31st May to give reasons why his acting stint should not be terminated. He responded to the said letter on 03 June 2020. Both applicants had an opportunity to make their wishes known before the first respondent terminated the acting position.

[22] The other issue to deal with is whether the second applicant has made out a case for spoliation. He contends that he was in undisturbed possession of the motor vehicle described in the notice of motion (Jeep) when the officials of the second respondent arrived and demanded the keys.

[23] In Ivanov v North West Gambling Board and others 2012 (6) SA 67 (SCA) at 67B-D at paragraph 19 the requirements for the mandament van spolie were restated as follows:

"The historical background and the general principles underlying the mandament van spolie are well established. Spoliation is the wrongful deprivation of another 1s right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands. An applicant upon proof of two requirements is entitled to a mandament van spolie restoring the status quo ante. The first is proof that the applicant was in possession of the spoliated thing. The cause for possession is irrelevant - that is why possession by a thief is protected. The second is the wrongful deprivation of possession. The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute."

[24] It is so that for an application for mandament van spolie to succeed the applicant must show that he she was unlawfully deprived of a property that he/ she was in undisturbed possession of. The second applicant was informed through a letter from the second respondent that his services as Acting King have been terminated and that all government support resources, namely, Motor vehicle, fuel cards and cell phones were to be collected. He knew that the said tools were attached to the position that he was occupying and that such position ceased to exist on 19 June 2020 when he received a letter from the second respondent.

On 22 June 2020 when the officials came to do inventory of government property in his possession he had already received a notice that such tools would be removed from him. This was done on the same day the third respondent was informed of his right to resume his duties as King. The officials demanded the keys of the vehicle from him in terms of the notice given and same were handed over.

[25] He was no longer acting as King and there was no justification on the part of the second respondent to allow him access to government resources. Allowing him continued access to government resources post his acting position would have resulted in irregular and wasteful expenditure. The vehicle was removed after due process was followed.

[26] The requirements for granting a final interdict are trite. The applicants must inter alia establish a clear right. The applicants have failed to establish such a right, inter alia, in view of the fact that the acting stint of the second applicant lapsed automatically by operation of the law. It was never extended.

[27] The application ought to fail in toto. The respondents prayed for costs on punitive scale. There is no reason for a punitive costs order. Costs are to follow the event.

[28] ORDER

1. The application is dismissed with costs

2. The applicants to pay the respondents' costs jointly and severally, the one paying the other to be absolved.

3. Costs to include costs of employing two counsel, where so employed.

N.M MBHELE, J

On behalf of Applicants: Advocate Bodlani MAKANGELA MTUNGANI INC.

50 Blakeway Road

MTHATHA

On behalf of 1st and 2nd Respondents: Advocate Ngcukaitobi SC

THE STATE ATTORNEY

94 Sisson Street, Fortgale

On behalf of 3rd Respondent: Advocate Mpofu SC

M TYOPO ATTORNEYS

63 Nqadu Street

Ncambedlana