Yende and Another v Premier Mphumalanga Province and Others (80576/2014, A602/2017) [2019] ZAGPPHC 237 (26 June 2019)

Yende and Another v Premier Mphumalanga Province and Others (80576/2014, A602/2017) [2019] ZAGPPHC 237 (26 June 2019)

The appeal was upheld because the Commission failed to comply with the mandatory requirements of section 11 of the Traditional Leadership and Governance Framework Act. The Royal family, as defined by statute, was not properly consulted or represented in the identification of the Senior Traditional Leader. The absence of Felani and his sisters from the proceedings constituted a material irregularity, and the process was procedurally unfair, violating the audi alteram partem rule and sections 6(2)(b) and 6(2)(c) of PAJA. Furthermore, the Commission applied incorrect succession criteria by recognising Themba, a son not born of the great wife, contrary to Zulu customary law. The High Court...

Citation
[2019] ZAGPPHC 237
Parties
Appellant: Felani Yende; Appellant: Amayende Asogenyaneni Royal Family; Respondent: Premier Mphumalanga Province; Respondent: Member of the Executive for Cooperative Governance and Traditional Affairs; Respondent: Chairperson Commission on Traditional Leadership Disputes and Claims: Mpumalanga Province; Respondent: Themba Michael Yende; Respondent: Amayende Asogenyaneni; Respondent: Traditional Council
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 June 2019
Case Number
80576/2014, A602/2017
Procedural Posture
Civil Appeal / Appeal From Dismissal of Review Application by High Court
Outcome
Appeal upheld; High Court judgment and Commission's recognition decision set aside.
Judges
Strijdom, Molopa-Sethosa, Potterill
Legal Topics
Customary Succession, Review of Administrative Action, Traditional Leadership Disputes, Procedural Fairness, Primogeniture, Recognition of Traditional Leader
Administrative Law Land and Property Customary Succession Review of Administrative Action Traditional Leadership Disputes Procedural Fairness Primogeniture Recognition of Traditional Leader

Case Brief

Summary, issues, holding and outcome

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Parties

Felani Yende

Appellant

Amayende Asogenyaneni Royal Family

Appellant

Premier Mphumalanga Province

Respondent

Member of the Executive for Cooperative Governance and Traditional Affairs

Respondent

Chairperson Commission on Traditional Leadership Disputes and Claims: Mpumalanga Province

Respondent

Themba Michael Yende

Respondent

Amayende Asogenyaneni

Respondent

Traditional Council

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Review Application by High Court

Legal Issues

  1. 1 Whether the Commission's recognition of Themba Michael Yende as Senior Traditional Leader complied with applicable customary law and statutory requirements.
  2. 2 Whether the Royal family was properly consulted and involved in the identification process as required by section 11 of the Traditional Leadership and Governance Framework Act.
  3. 3 Whether the administrative process was procedurally fair and in accordance with PAJA.

Ratio Decidendi

The appeal was upheld because the Commission failed to comply with the mandatory requirements of section 11 of the Traditional Leadership and Governance Framework Act. The Royal family, as defined by statute, was not properly consulted or represented in the identification of the Senior Traditional Leader. The absence of Felani and his sisters from the proceedings constituted a material irregularity, and the process was procedurally unfair, violating the audi alteram partem rule and sections 6(2)(b) and 6(2)(c) of PAJA. Furthermore, the Commission applied incorrect succession criteria by recognising Themba, a son not born of the great wife, contrary to Zulu customary law. The High Court...

Court Disposition

Appeal upheld; High Court judgment and Commission's recognition decision set aside.

Orders

  • The appeal is upheld.
  • The judgment and order of the High Court under case number 80576/2014 handed down on 10 March 2017 is set aside.