Ngomane - Lugedlane Inner Royal Family v Premier of Mpumalanga and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mashile J |
| Judgment Date | 21 July 2023 |
| Citation | 2023 JDR 2793 (MN) |
| Hearing Date | 21 July 2023 |
| Docket Number | 2077/2021 |
| Court | Mpumalanga Division, Mbombela |
Mashile J:
This is an application by which the Applicant seeks an order compelling the First Respondent (“the Premier”) to Withdraw the certificate of recognition of the Third Respondent as ‘Inkosi’, to publish a notice in the Provincial Gazette with particulars of the Third Respondent and thereafter, to advise the Applicant, the Third Respondent and the Provincial House of Traditional Leaders of the removal of the Third Respondent as ‘Inkosi’. Should the Premier fail to take the necessary steps to remove the Third Respondent within Fourteen days of the date of service of the order of this Court on her, the Sheriff of this Court be authorised to take such steps as is necessary on her behalf.
The Premier opposes the application compelling her to remove the Third Respondent. The Second and Third Respondents, although cited, are not opposing the application. The basis of the Premier’s opposition is that the Third Respondent has not committed any of the matters mentioned in Section 20(1)(a) to (d) of the Mpumalanga Traditional Leadership and Governance, Act 3 of 2005 (“the Act 2005”). The Act only refers to three instances where the Premier can legitimately remove an ‘Inkosi’. The Third Respondent has not offended any of those and therefore does not deserve removal. I will later in this judgment discuss the instances which would entitle the Premier to remove an Inkosi.
2023 JDR 2793 p3
Mashile J
FACTUAL MATRIX
The circumstances leading to the launching of this application appear to be common cause and they are that the Applicant is certified and recognised in terms of Act 3 of 2005 as well as the Judicial Leadership and Governance Framework, Act 41 of 2003 (“Act 41 of 2003”). The Third Respondent was appointed as ‘Inkosi’ and certified and recognised in terms of Section 19 of Act 3 of 2005 under the authority of the Applicant. It is not contested that the Third Respondent was at all times obliged to perform his functions in line with the Applicant’s directions, the laws of the Republic of South Africa and the applicable customary laws and principals.
On 3 December 2020, the Applicant resolved to remove the Third Respondent as Chief and ‘Inkosi’. The reasons cited for the removal of the Third respondent were that:
The Third Respondent had disrespected and disregarded the Ngomane Inner Royal Family;
The Third Respondent was accused to have destroyed the very being of the Ngomane tribe by chasing away the aunt sister, (probably meaning ancestors);
The Third Respondent was accused of failure to execute his traditional duties and was alleged to have committed crime.
On 19 January 2021, the Applicant’s attorneys of record addressed a letter to the Second and Third Respondents informing them of its decision to remove the latter. Responding to the letter of 19 January 2021, the Third Respondent on 26 January 2021 stated that he would communicate directly with the Second Respondent. On 28 January 2021, the attorneys of the Applicant wrote to the Premier advising her of the decision of the Applicant. The letter also conveyed a request to the Premier to:
2023 JDR 2793 p4
Mashile J
Withdraw the certificate of recognition of such an Inkosi;
Publish a notice in the Provincial Gazette with the particulars of the removed ‘Inkosi’; and
Inform the Inner Royal Family concerned, the Third Respondent and the Provincial House of Traditional Leaders of such removal.
On 8 March 2021, the attorneys of the Applicant wrote to the Second Respondent attaching the letter that it had sent to the Premier on 28 January 2021. On 15 April 2021, the attorneys of the Applicant caused the sheriff to serve a letter setting out the terms of Section 20 of Act 3 of 2005 upon the Premier and the Second Respondent. The Premier steadfastly refused to accede to the request of the Applicant prompting the latter to commence these legal proceedings by which the relief in the notice of motion is sought.
ASSERTIONS ADVANCED BY THE PARTIES
The Applicant argues that the wording of Section 20 of Act 3 of 2005 and Section 10B of Act 41 of 2003 are couched in peremptory terms. This, says the Applicant, deprives the Premier to exercise any discretion following receipt of a decision of the Applicant to remove an ‘Inkosi’. Once the Applicant has followed the procedure described in those Sections, the Premier, as an administrator, must accede to the resolution reached by the Applicant.
The provisions of the Sections in both Acts do not leave room for a different interpretation from that put forward by it. Accordingly, no need exists to read the whole Act in context to determine what the legislature might have possibly meant by the use of the word, ‘must’. The word ought to be given its ordinary every day meaning. If one does so, it becomes evident that the Premier has no discretion, concludes the Applicant.
2023 JDR 2793 p5
Mashile J
As such, For the Applicant it will be adequate for it to firstly, demonstrate that it has taken a decision and secondly, that it has supplied the decision and reasons to the Premier. The Premier does not have the rights to overrule the decision taken by the Applicant nor is it for her to assess whether or not a case has been made out.
Additionally, the Applicant has asserted that it is not without significance that the Third Respondent is not opposing the application. The Premier has no right to oppose on his behalf. The Third Respondent on his own can either challenge or accept the decision taken by the Applicant against him. Accordingly, says the Applicant, there is no dispute between the Applicant and the Third Respondent.
The Premier...
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