The KwaZulu-Natal House of Traditional Leaders v The Member of The Executive Council of The Province of KwaZulu-Natal for Local Government, Housing and Traditional Affairs

• Jurisdiction: South Africa
• Judge: McLaren J
• Judgment Date: 04 September 2008
• Docket Number: 10171/2008
• Court: Natal Provincial Division
• Hearing Date: 01 September 2008
• Citation: 2008 JDR 1094 (N)

McLaren J:

1.

In this urgent opposed application, Mr Olsen and Ms Annandale appeared for the Applicant. The Respondents were represented by Mr Stewart, Ms Gabriel and Mr du Plessis.

2.

The reasons for the urgency appear from paragraphs 80 and 81 of the founding affidavit. There I am enjoined to have a "full hearing of the matter" and to make a "considered adjudication thereof prior to 17 September 2008". Leaving aside 2 September 2008, when I heard the matter, there were thus 11 "court days" within which I had to dispose of it. In terms of the duty roster which the Deputy Judge President issued on 26 August 2008, I have already been allocated specific duties on 7 of those 11 days. On 3 of the remaining 4 days, the trial roll will be called by the Deputy Judge President and I may be in court

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on some of those days. In short, my workload between 2 and 17 September 2008 is such that it is extremely unlikely that I will be able to give this matter any greater attention than I have been able to do over these last few days. In preparing for the hearing I was greatly assisted by the comprehensive heads of argument which had been delivered on behalf of the parties. I am indebted to counsel for their efforts. In view of the aforegoing, I concluded that I should deliver this judgment as soon as possible - I can only do the best I can.

3.

The Applicant claims the following relief:

"1.

The resolution of the executive council of the province of KwaZulu-Natal taken on 11 June 2008 and the similar one taken on 9 April 2008 that the positions of chairperson and deputy chairperson of the KwaZulu-Natal House of Traditional Leaders are to be full time with effect from 1 September 2008 are declared invalid.

2.

The respondents are interdicted against taking any steps whatsoever in pursuance of the resolution referred to in paragraph 1 of this order.

3.

The first and second respondents are ordered jointly and severally to pay the costs of the application."

4.

The resolution, dated 9 April 2008, ("the first resolution") is set out in a letter, dated 10 April 2008. This letter is signed by the First Respondent; is addressed to the Applicant's Chairperson; deals with the subject "Determination of position of Chairperson and Deputy Chairperson of the KwaZulu-Natal House of Traditional Leaders as full-time" and reads as follows:

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"The abovementioned matter refers.

All salaries and allowances of Traditional Leaders are determined by the Honourable President in terms of section 5(1) of the Remuneration of Public Office Bearers Act, 1998 (Act No 20 of 1998), and on 14 December 2007, the President published Proclamation No 48 of 2007 in Government Gazette 30596, determining that both the Chairperson and the Deputy Chairperson of a Provincial House of Traditional Leaders may be remunerated on the basis that both positions are determined as full-time.

In light of this provision, the KwaZulu-Natal Executive Council determined on 9 April 2008 that the positions of Chairperson and Deputy Chairperson of the KwaZulu-Natal Provincial House of Traditional Leaders are to be full-time with effect from 1 June 2008, and I hereby wish to advise you accordingly.

In the event that you occupy another full-time position as an office-bearer, and elect not to accept the determination of your position as Chairperson of the House as full-time, I request that you inform me by no later than 25 April 2008 of such decision, to enable me to declare a vacancy in the Executive Committee of the House, as contemplated in the KwaZulu-Natal Traditional Leadership and Governance Act, 2005 (Act No 5 of 2005), and to call for the election of a new Chairperson, as contemplated in regulation 49 of the KwaZulu-Natal Traditional Leadership Regulations, 2006.

I trust that you will find the above in order, and await your urgent reply."

5.

The resolution, dated 11 June 2008, ("the second resolution") is set out in a letter, dated 17 June 2008, from the Respondents' attorneys to the Applicant's attorneys, which reads thus:

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"We refer to the above matter and wish to advise that the matter was considered by the Executive Council on 11 June 2008.

The Executive Council resolved that, having considered the representations from the Chairperson and House of Traditional Leaders, that the positions of Chairperson and Deputy Chairperson of the KwaZulu-Natal House of Traditional Leaders are to be full time with effect from 1 September 2008.

The Chairperson and Deputy Chairperson are to be given 90 days to make the necessary administrative arrangements to give effect to the above resolution.

In the event that the Chairperson and Deputy Chairperson fail to give effect to the resolution of the Executive Council, then the MEC for Local Government, Housing and Traditional affairs is directed to take such steps to give effect to the resolution of the Executive Council.

We trust that your clients will give effect to the resolution."

6.

The source of and the reason for the 17 September 2008 "deadline" appear from paragraph 5.

7.

Although the terms of the first resolution and the second resolution differ, they do have one common feature, namely that they both convey that a decision was taken by the KwaZulu-Natal Executive Council ("the Executive Council") "that the positions of the Chairperson and the Deputy Chairperson of the KwaZulu-Natal House of Traditional Leaders are to be full-time" ("the decision"). It appears from a consideration of the affidavit evidence before me, that the second resolution confirmed the first resolution.

8.

Although the second resolution does not set out the "steps" which the First Respondent has to take in order to give effect thereto, it is safe to

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assume that those steps are envisaged in the pen-ultimate paragraph of the letter quoted in paragraph 4.

9.

The real issue is the question whether the Executive Council had the power to take the decision ("the power"). If the power does not exist, it seems to me to follow that no authority exists to take the steps referred to in paragraph 8.

10.

I think the background history of the dispute between the parties is of limited relevance and should not be allowed to cloud the issue referred to in paragraph 9. The answer to that issue is to be found in the relevant legislative provisions. The views of any party regarding the existence, or otherwise, of the power are irrelevant. The determination of the said issue involves a consideration and interpretation of the said provisions, in accordance with well-established legal principles. In performing this task, I am not concerned with what the parties think or say about the existence of the power.

11.

The application papers run into 267 pages, but, in the light of the urgency of the matter, the time constraints for the disposal thereof and, perhaps most importantly, my views set out in paragraphs 9 and 10, there will be limited reference herein to the facts set out in those papers.

12.

The following is said in paragraph 3 of the Applicant's heads of argument:

"As it is necessary in the light of the approach the applicant adopts in relation to this application to have...