Gwayi v Member of the Executive Council, Responsible for Local Government and Traditional Affairs

JurisdictionSouth Africa
JudgeD Van Zyl ADJP
Judgment Date01 December 2015
Docket Number55/2015
CourtEastern Cape Division
Hearing Date05 November 2015
Citation2015 JDR 2662 (ECB)

D Van Zyl ADJP:

[1]

This matter is concerned with the appointment of, and the removal from office of an iNkosana. [1] The applicant brought an application wherein he inter alia seeks an order reviewing and setting aside (a) the decision of the first and second respondents (the MEC for Local Government and Traditional Affairs in the Eastern Cape Government, and the Superintendent of the Department of Local Government and Traditional Affairs respectively) to remove him from his position as an iNkosana for the kwa Mavuso Village in the district of Alice, and to terminate payment of his salary; and (b), the decision of the third respondent (Chief Langa Mavuso) to appoint the fourth respondent (Dibandlela Mavuso) as iNkosana in the applicant's stead.

[2]

The material facts are, on an application of the principles in Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [2] the following: the father of the third respondent, the late Phakamile Augustus Mavuso (the late Chief Mavuso), died in Alice on 18 November 2007. At the time of his death he was the head of the Mavuso Royal Family, [3] and the head of the Gaga Traditional Council. [4] Following

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Chief Mavuso's death, the Mavuso Royal Family met on 20 November 2007 and resolved that the third respondent's younger brother, Sanqa Mavuso, would be nominated as acting chief and head of the Gaga Traditional Council. As it appears from the resolution, a copy of which was annexed to the answering papers, the rightful heir to the Mavuso Chieftainship was the third respondent. However, due to the fact that he was employed as a public servant by the provincial government, his duties precluded him from immediately assuming his traditional role in the Mavuso Royal Family.

[3]

On 2 January 2008 the secretary of the Gaga Traditional Council wrote to the King of the amaRharhabe, King Zanesizwe Sandi VI, advising him of the Mavuso Royal Family's decision and seeking his approval thereof. On 7 January 2008 the office of the King addressed a letter to the first respondent requesting that the appointment of the third respondent's younger brother as acting chief of the Gaga Traditional Council be approved and processed by the department in terms of the Eastern Cape Traditional Leadership and Governance Act. [5] The appointment was approved by the House of Traditional Leaders on 29 April 2008 and by the first respondent on 13 June 2008.

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[4]

Following his resignation from the position which he held in the public service, the third respondent was eventually installed on 21 November 2009 as chief of the Mavuso Royal Family, and Head of the Gaga Traditional Council. In September 2013 a meeting of the Mavuso Royal Family took place to discuss matters relating to the Mavuso Chieftainship. At that meeting a report was received that the applicant and a certain Mthimkhulu, the iNkosana of the Lenge village, were irregularly appointed to their respective positions. At the same meeting resolutions were also taken with regard to the appointment of iNkosana, including that of the fourth respondent. It is common cause that the fourth respondent, who is ten years of age and is still a minor, is the son of the third respondent.

[5]

In February 2014 the third respondent addressed a letter to the Department of Local Government and Traditional Affairs wherein he brought to its attention the ostensible irregular appointment of the applicant and of the said Mthimkulu as iNkosana. The irregularity was said to be that "on their files at the Office of the Rharhabe Regional Co-ordinator in your Department that they have appointed themselves as iNkosana and appended their signatures thereto, a role only the Chairperson and Secretary of the Royal Family can do."

[6]

In March 2014 the first respondent wrote a letter to the applicant advising him, with reference to the third respondent's letter, that the Mavuso Royal Family

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had resolved to remove him from his position as headman as he was wrongfully appointed. He was given 14 days to make representations indicating why that decision should not be given effect to. The applicant responded by saying that he was appointed an iNkosana by the third respondent's father, the late Chief Mavuso and that in "early 2008, all the paper work was done by EL Gwayi [the applicant] and signed by the Chairman (Mr Masiza) as per Chief Mavuso's instructions. All the appointments were made permanent. There were no guidelines given. There was no Royal Family at that time. The decisions were made by the Chief alone."

[7]

In response the Department informed the applicant that his allegation that he was appointed by the Late Chief Mavuso was unfounded as the resolution and the minutes of the meeting on which he relied were dated and said to have been signed some five months after the death of the Late Chief Mavuso; that the minutes of the meeting were not those of the Royal Family; and that the applicant's appointment was not endorsed by the Royal Family "but rather by yourself." The applicant's appointment was thereafter terminated.

[8]

The legislative framework for the appointment and removal of iNkosana is found in section 211 of the Constitution, [6] the Traditional Leadership and

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Governance Framework Act [7] (the Framework Act) and the Governance Act. Section 11 of the Framework Act deals with the appointment of an iNkosana. Relevant to the present proceedings are subsections (1) and (2) which reads:

"(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)

a notice in the Provincial Gazette recognising the person identified as senior traditional leader, headman or headwoman in terms of subsection (1);

(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 off 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."

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[9]

These provisions are largely mirrored by section 18 of the Governance Act. Subsections (1) and (3) are relevant:-

"(1)

Whenever the position of an iNkosi or iNkosana is to be filled –

(a)

the royal family concerned must subject to such conditions and procedure as prescribed, within sixty days after the position becomes vacant, 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 6(3) apply to that person; and

(ii)

through the relevant customary structure, inform the Premier 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 must, subject to subsection (5), by notice in the Gazette, recognize the person so identified by the royal family as an iNkosi or iNkosana, as the case may be.

(3)

The Premier must, within a period of thirty days after the date of publication of the notice recognizing an iNkosi or iNkosana issue to the person who is identified in terms of paragraph (a)(i), a certificate of recognition."

[10]

Sections 12 of the Framework Act and 20 of the Governance Act in turn deal with the removal of an iNkosana. For present purposes it is only necessary to refer to the latter section. It provides:

"20(1) An iNkosi or iNkosana may be removed from office on the ground 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 or that iNkosi or iNkosana to function as such;

(c)

wrongful appointment or recognition; or

(d)

a transgression of a customary rule or principle that warrants removal.

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(2)

Whenever any of the grounds referred to in subsection (1)(a), (b) and (d) come to the attention of –

(a)

the royal family and the royal family decides to remove an iNkosi or iNkosana, the royal family concerned must, within a reasonable time and through the relevant customary structure –

(i)

inform the Premier of the of the particulars of the iNkosi or iNkosana to be removed from office; and

(ii)

furnish reasons for such removal;

(b)

any person, such a person must inform the Premier and the Premier must –

(i)

refer...

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