Fokazi v Member of the Executive Council for Co-operative Governance and Traditional Affairs Eastern Cape

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Notyesi AJ
• Judgment Date: 04 July 2023
• Citation: 2023 JDR 2495 (ECM)
• Hearing Date: 11 May 2023
• Docket Number: 2710/2021
• Court: Eastern Cape Division

Notyesi AJ:

Introduction

[1]

Cloete JA once warned–

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“It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest – the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts.” [1]

[2]

Jongikaya Fokazi is the headman of Mndundu Administrative Area, Willowvale. He was elected for that position by the community, and thereafter, he was officially appointed by the MEC for Housing, Local Government and Traditional Affairs on 12 December 2005. His position of headmanship was challenged by Bulelani Mtshazi, who filed a dispute and a claim with the Eastern Cape House of Traditional Leaders in terms of section 21(2)(a) of the Traditional Governance and Framework Act 41 of 2003 (the Act), as amended, read with section 36(2)(c) of the Eastern Cape Traditional Leadership and Governance Framework Act 1 of 2017 (ECTLGF). The Eastern Cape House of Traditional Leaders (the House) upheld the claim of Bulelani Mtshazi on 17 November 2020. This decision was taken by the executive committee of the House.

[3]

In this application, Mr Fokazi is seeking relief for the review and setting aside of the decision by the executive committee of the Eastern Cape House of Traditional Leaders. In the notice of motion, Mr Fokazi is further seeking a declarator that the appointment of Mr Bulelani Mtshazi as the rightful headman for Mndundu Administrative Area, Willowvale, is unlawful and that it should be declared of no legal force and effect. There are other ancillary reliefs sought by Mr Fokazi. The essence of the contention by Mr Fokazi is that the investigations conducted by an ad hoc committee appointed by the Eastern Cape House of Traditional Leaders were shoddy, irregular, and procedurally unfair and that he was not afforded adequate hearing during such investigations.

[4]

The Eastern Cape House of Traditional Leaders is refuting the allegations of Mr Fokazi on the basis that the decision to uphold the claim of Mr Mtshazi was pursuant to a fair process of investigations, which was procedurally fair, public, and transparent and that Mr Fokazi was afforded an adequate hearing during the

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investigations. The House further submitted that the executive committee and the House applied their minds when taking the decision to uphold the claim and that Mr Fokazi has not attacked the decision of the House and that of its executive committee.

Issue

[5]

The crisp issue concerns the validity of the decision to uphold the claim of Mr Bulelani Mtshazi by the executive committee of the House and questions whether Mr Fokazi was afforded an adequate hearing during the investigation process of the claim.

The parties

[6]

For the sake of convenience, the parties shall be referred to as–

(a)

Applicant – Mr Fokazi;

(b)

First Respondent – the MEC;

(c)

Second Respondent – the House; and

(d)

Third Respondent – Mr Mtshazi.

Background

[7]

On 21 June 2021, Mr Fokazi launched these review proceedings in accordance with the provisions of Uniform Rule 53, essentially seeking a review of the decision by the executive committee of the House taken on 17 November 2020. The grounds of review are set out in the founding affidavit. The answering affidavit was filed on behalf of the MEC, the House and Mr Mtshazi on 28 September 2021. The answering affidavit is deposed by Senior Traditional Leader Jongisizwe Ngcongolo. Senior Traditional Leader Jongisizwe Ngcongolo was a member of the ad hoc committee that investigated the claim.

[8]

The records pertaining to the impugned decision were filed on 11 April 2022. Mr Fokazi did not supplement his grounds of review upon receipt of the records.

[9]

In the founding affidavit, Mr Fokazi had alleged that the history of the Fingoes and the headmanship was settled by colonialists after the last frontier wars. According

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to him, at the conclusion of the last wars of resistance of 1877 to 1879, a large number of Fingoes were removed from the Nqamakwe district by the government and placed on the west side of the Bashee river as a buffer against the Gcalekas.

[10]

Mr Fokazi had alleged that one Manqoba, who was a police officer at Nqamakwe, was appointed as the headman of the Fingoes by the government. He further alleged that Manqoba’s son, Enoch, was also appointed to succeed his father by the government. At each time of these appointments, according to Mr Fokazi, there were no elections nor any form of testing the views of the community. Mr Fokazi alleged that the headmen were simply imposed upon the people. Mr Fokazi alleged that the government-imposed headmen had faced resistance from the local community because they were viewed as government informers.

[11]

Mr Fokazi alleged that upon the death of Enoch Manqoba, an acting headman was appointed because the son of Enoch was a minor. In this regard, Botani Nyewe was appointed as a regent for the son of Enoch Manqoba. According to Mr Fokazi, when Botani Nyewe passed on, his son, Martin Nyewe, was appointed as a successor. Upon the death of Martin Nyewe, the position of headmanship became vacant. Mr Fokazi alleged that the community demanded that there should be elections for the position of the headman. According to him, the demand of the community was yielded. Mr Fokazi alleged that from the time of the death of Martin Nyewe, the position of headmanship for Mndundu Administrative Area was filled by way of general elections, and it was no longer hereditary.

[12]

Mr Fokazi alleged that after the death of Martin Nyewe, the position of headmanship became contested through public elections and in this regard, there were two contesting candidates, Ntefelele Gwebixhala Mtshazi and Mandlenkosi Nyewe. According to Mr Fokazi, candidate Ntefelele Mtshazi succeeded as a headman due to political influence. Mr Fokazi confirmed that when Ntefelele Mtshazi died, Bongosizwe Mtshazi was appointed as a headman.

[13]

He further alleged that when the position of the headman was again vacant, he availed himself and was contested by Anele Mtshazi and Mandlenkosi Nyewe. He was successful in those elections and was appointed as the headman. After he was

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appointed, Mr Fokazi became the headman and chairperson of the Nqabeni Traditional Council, according to his version.

[14]

Mr Fokazi confirmed that during October 2020, he received a communication dated 8 October 2020 from the House. The communication invited him to attend an enquiry at Nqabeni Traditional Council regarding a dispute and claim filed by Mr Bulelani Mtshazi regarding the headmanship of Mndundu Administrative Area. Mr Fokazi confirmed that the meeting was scheduled for a hearing on 19 October 2020 at 11h00. He confirmed that, on the appointed date, he attended the hearing with his councillors and participated in the hearing.

[15]

Mr Fokazi set out the procedure that was followed, and I directly quote the procedure as set out by him–

“a.

The chairperson of the ad hoc committee asked the Mr Bulelani Mtshazi to justify his claim;

b.

Oral presentation was made by Mr Bulelani Mtshazi;

c.

Mr Bulelani Mtshazi produced no documentary evidence, either for the chairperson of the committee or Mr Fokazi;

d.

The chairperson never handed any documents to Mr Bulelani Mtshazi or Mr Fokazi;

e.

Mr Bulelani Mtshazi was never engaged on any information that was contained in a document;

f.

According to Mr Fokazi, after the oral presentation by Mr Mtshazi, it was then a turn for Mr Fokazi;

g.

Mr Fokazi and his witnesses gave oral presentation;

h.

In the oral presentation, Mr Fokazi and his witnesses gave history of how headmanship evolved at Mndundu Administrative Area;

i.

During Mr Bulelani Mtshazi and his witnesses’ presentation, they made it clear, according to Mr Mtshazi, that all previous and subsequent headmen from Manqoba family were imposed by the government;

j.

According to Mr Fokazi, they stated plainly that the customary practice in Mndundu Administrative Area, is for headmen to be elected by the community;

k.

According to Mr Fokazi, he submitted his letter of appointment to substantiate that the practice in the area is elections;

l.

Mr Fokazi alleged that the ad hoc committee never handed him any documentary evidence and that Mr Bulelani Mtshazi merely stated that headmanship of Mndundu Administrative Area has always been held in his family, although he did not mention the years during which his family held the headmanship.”

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[16]

Essentially, Mr Fokazi’s grounds for review could be briefly summarized as follows–

(a)

That he was not furnished with documents, and that was procedurally unfair;

(b)

The failure to give him documentary information constituted non-compliance with the audi alteram partem rule, and therefore, the investigative mechanism or process was flawed;

(c)

The customary practice of Mndundu Administrative Area is for the community to elect their headman;

(d)

The historical custom of electing a headman is evident from the list of the majority of past headmen;

(e)

The institution of traditional leadership envisaged in the Act does not provide for an undemocratic process in the election and appointment of traditional leaders;

(f)

The committee had a statutory duty to investigate the claim and, in doing so, to consider the customary law and custom of the area;

(g)

There is no basis to sustain Mr Bulelani Mtshazi’s claim;

(h)

The previous and subsequent appointment of the Manqoba family without the...