IN THE CONSITUTIONAL COURT OF SOUTH AFRICA In the matter between : CC CASE NO. : CCT 285/2017 SCA CASE NO : 568/2017 KwaZulu-Natal High Court Pietermaritzburg Case No : 2367/2010 SITHEMBILE VALENCIA MKHIZE N.O. Applicant and PREMIER OF THE PROVINCE OF KWAZULU-NATAL First Respondent MKHANYISENI MBUYAZI Second Respondent UMDENI WENKOSI Third Respondent MEC OF THE DEPARTMENT OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS Fourth Respondent FIRST AND FOURTH RESPONDENTS WRITTEN ARGUMENT
P a g e 2 Table of Contents 1. THE ORIGINAL DISPUTE AND THE LEGAL FRAMEWORK... 3 2. THE SCA JUDGMENT... 12 3. SECOND RESPONDENT S APPLICATION... 19 4. ROLE OF THE PREMIER AND THE MEC... 21 5. THE ARGUMENT OF THE PREMIER AND THE MEC IN THIS APPLICATION AND APPEAL... 23 6. CONCLUSION... 26
P a g e 3 1. THE ORIGINAL DISPUTE AND THE LEGAL FRAMEWORK 1.1. The original dispute began with the institution of an application for review by Zwelibhekile Sibusisio Mbuyazi (the Removed Inkosi). This application was brought in respect of the removal of the Removed Inkosi and the identification and recognition of Mkhanyiseni Mbuyazi as the Inkosi in his place (the Current Inkosi). This application is contained in Volumes1, 2 and 3. 1 1.2. The legal framework in which this application was set was :- Chapter 12 of the Constitution Traditional Leadership and Governance Framework Act 41 of 2003 ( The National Act ) 1 Volume 1 : page 1 to Volume 3 : page 200
P a g e 4 KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 ( The KZN Act ). 1.3. Of particular relevance to this dispute is the KZN Act. It deals with the customary system of the province which includes the Isilo (the Monarch of KwaZulu- Natal) and the traditional leaders (AmaKhosi and their chosen Izinduna). An Inkosi is a senior traditional leader who has jurisdiction in respect of a traditional community (a recognised clan) and its traditional council. 1.4. A traditional council is contemplated to govern together with a municipality and it is supported by the Provincial Government. 1.5. Section 19 of the KZN Act deals with Recognition of an Inkosi. The core of this section deals with the identification of the person to be the Inkosi by the Umndeni Wenkosi ( the immediate relatives of an Inkosi as defined), followed by the recognition of
P a g e 5 the Inkosi by the Premier. Once recognised the Inkosi s appointment is proclaimed by notice in the Provincial Gazette. 2 1.6. The constitutional principles set out in Section 3 must be applied; otherwise the customary law is applied. 1.7. The Inkosi s role is to carry out customary functions within the context of Zulu culture, history and tradition. The Inkosi has a law and order function and a governance function in the interests of his or her traditional community. (Section 20). 1.8. An Inkosi may be removed from office for misconduct or wrongful appointment or recognition in terms of Section 21 of the KZN Act. 1.9. It follows that the office of an Inkosi is extremely important and the functions performed are essential for the well-being of a community. 2 See Umndeni (Clan) of Amantungwa and Others v The MEC for Housing and Traditional Affairs and another [2011] 2 All SA 548 (SCA)
P a g e 6 1.10. In the original application the former Premier of KwaZulu-Natal explains the background to the matter (from page 48 of Volume 1). 1.11. He explains that although the Department (the Department of Co-operative Governance and Traditional Affairs) administers matters it is the Premier (in Executive Council of the Province) who performs the acts referred to in Section 19. The Department was advised that the Umndeni Wenkosi had identified the Removed Inkosi as the successor to the Inkosi who had died. This, had, according to him, not been done in accordance with customary law, customs or processes and in due course there was a request from the Umndeni Wenkosi for the Premier to appoint the Current Inkosi, who was the person identified by Umndeni Wenkosi.
P a g e 7 1.12. The matter was put on hold and referred back to Umndeni Wenkosi as contemplated by Section 19 (4) of the KZN Act. 1.13. A facilitator (Professor Mathenjwa) was used to determine the identification of the Umndeni Wenkosi. 1.14. The facilitator reported that the wrong person had been appointed according to the Umndeni Wenkosi and that the properly identified person was the Current Inkosi. 1.15. The Premier (in Executive Council) then determined that the recognition had been done wrongfully and took the decision to remove the Removed Inkosi and recognise the Current Inkosi. 1.16. These decisions were processed. 1.17. The Removed Inkosi instituted a review with interim relief on March 2010 and on 11 th May 2010 the High
P a g e 8 Court granted interim relief reinstating the Removed Inkosi as Inkosi. 3 1.18. This caused an inflammatory situation and the Premier and the MEC brought an interlocutory application to amend the interim relief. 4 1.19. At a hearing on the 26 th May 2010 the interim relief was amended and the following order made in this respect :- 4. Pending the final determination of the application for the said review and to operate as an interim order forthwith :- 4.1 First Respondent is granted leave and directed to appoint an appropriate person to function in the interim as Imbambabukhosi (which person shall not be the Applicant or the Second Respondent) until such time as an Inkosi has been recognised and appointed as contemplated in terms of Section 3 of the KwaZulu-Natal Traditional Leadership and Government Act No 5 of 2005. 3 Volume 1 : Pages 67-97 4 Volume 2 : Pages 70-83
P a g e 9 4.2 Applicant and Second Respondent are interdicted and restrained from attempting to, or taking office, as the Inkosi of the Mbuyazi Traditional Community. 5 1.20. It was recorded that the review should be heard as a matter of urgency. 1.21. The matter was argued on 23 rd September 2010 before Van Zyl J who handed down judgment on 7 th June 2011, in which he referred to the matter for trial retaining the interim arrangements set out in 1.19 above. 6 1.22. The Removed Inkosi then brought the Funding Application in order to allow his litigation costs to be funded by money held by the Mbonambi Community Development Trust. 7 5 Volume 1 : pages 84-85 6 Volume 3 : pages 184-200 7 Volume 3 : pages 201 294
P a g e 10 1.23. After the Funding Application was argued but before judgment the Removed Inkosi died. He died on 7 th July 2012. 1.24. Thereafter the Current Inkosi, the Premier and the Applicant sought relief to direct how the death of the Removed Inkosi had affected the proceedings. 8 1.25. These applications were heard by Booyens AJ who delivered a written judgment on 9 th July 2013. 9 In this judgment it was held that :- a) The death of the Removed Inkosi put an end to the review which was personal to him; b) Section 19 of the KZN Act makes it clear that procedures must be adhered to before a person can be identified to assume the position of Inkosi; 8 Volume 4 : page 296-391 9 Volume 5 : page 395-403
P a g e 11 c) Any appointments or removals are administrative action which can be challenged on review in terms of the Promotion of Administrative Justice Act 3 of 2000 ( PAJA ). 1.26. Consequently the Applicant (as Executrix) and the minor child, Phatokuhle, had no claim in the proceedings and could not be substituted therein. 1.27. Applicant took this judgment on appeal to the SCA. 1.28. It is common cause that the decisions made under Section 19 and 21 of the KZN Act are administrative action under PAJA. This is also the established law. 10 1.29. The decisions to remove the Removed Inkosi and to appoint the Current Inkosi are both administrative 10 Bapedi Marota Mamone v The Commission on Traditional Leadership Disputes and Claims 2015 (3) BCLR 268 (CC) at paras 76 78.
P a g e 12 decisions which remain valid and they retain lawful consequence until set aside on review. 11 2. THE SCA JUDGMENT 2.1. The Applicant took the matter on appeal to the SCA. The judgment is part of the record. 2.2. The key aspects of this judgment are :- 2.2.1. The Removed Inkosi s claim in the Review; that his removal be set aside and that the appointment of the Current Inkosi be set aside, were personal to him and were not transmissible to anyone else (para 12). 2.2.2. Since his death any order in the review cannot be made (para 12). 2.2.3. Those claims can no longer be made after his death. They terminated with his death. 11 MEC for Health, Eastern Cape v Kirland Investments 2014 (3) SA 481 (CC) at paras 90 103. 12 Volume 6 : pages 425-441
P a g e 13 Nor could it be ceded and it is not transmissible to his heirs. It follows that his wife cannot be substituted in the review application (para 12). 2.2.4. The same applies to the Applicant s application to be substituted for the Removed Inkosi in her capacity as mother and guardian of Phathokuhle. He (Phathokuhle) does not have a claim to be appointed as Inkosi on the papers because of the procedures set out in the Act (Section 19) (para 13). 2.2.5. Even if the Removed Inkosi s claim for reinstatement is not transmissible on his death, Phathokuhle may still have a claim subject to the process under Section 19, his position as the eldest son, and subject to any constitutional development within the
P a g e 14 Mbuyazi Community in terms of Section 3 of the Act. He, therefore, has a right to be considered if it is proved that the Deceased was wrongly removed (para 14 and 15). 2.2.6. The Applicant as the Executrix has a good claim to be substituted in respect of the monetary claim. This is a separate claim to reinstatement and is in the form of damages claimable by the estate. She is therefore substituted for the purposes of this claim. As a matter of convenience the matter should proceed to oral evidence as directly by Van Zyl J so that the matter of the rightful successor may be settled as soon as possible (para 16 and 17).
P a g e 15 2.2.7. The funding application before Henriques J should now be finalised with the Executrix substituted for the Deceased (para 18). 2.3. The SCA order is at page 440 of the Record (Volume 6). 2.4. The fundamental flaw in this judgment is that the decisions of the Premier stand until set aside. The pursuing of the monetary claim will not set aside the appointment of the Current Inkosi, which will stand until set aside on review. 2.5. There is no person who can bring this review nor are there any grounds on which to bring it. 2.6. All the parties appeared to be confused as to the rights of the parties and the Premier and the Applicant both sought leave to appeal to the
P a g e 16 Constitutional Court for leave to appeal. These applications were refused. 13 2.7. The difficulty for the Premier and the MEC was that the SCA ordered that the interim relief should remain in place. 2.8. This rendered the community without an Inkosi and without governance for the foreseeable future while all the litigation was finalised. The difficulties that have arisen therefrom are set out in the answering affidavit filed in the application for leave to appeal. 14 2.9. It is noted that the community has been without an Inkosi since May 2010 and the interim order confirmed by the SCA will continue indefinitely. 13 Volume 6 : pages 472-474 14 Volume 10 : paras 6 24 : pages 829-835
P a g e 17 2.10. All attempts to settle the issue of an interim traditional leader have met with intransigence from both parties. 15 2.11. Applicant has now instituted an action :- 2.11.1. Riding on the back of the findings in the SCA judgment, Applicant (representing Phathokuhle) has brought an action on his behalf only for :- a) an order that consolidates the action with the Review; b) that if the withdrawal of the Removed Inkosi s recognition is set aside, that the Umndeni Wenkosi must meet within thirty days to identify a successor (and if necessary, an ibambabukhosi). 15 Volume 7 : para 12 17 : pages 545-546
P a g e 18 c) Costs. 2.12. This order is based on the following cause of action :- 2.12.1. Phathokuhle is the eldest son of the Removed Inkosi; 2.12.2. The withdrawal of the recognition of the Removed Inkosi was unlawful, incorrect and has been referred for determination by trial in Case No. 2367/2010; 2.12.3. If an order is granted setting aside the said withdrawal Phathokuhle has a right to be considered by the Umndeni Wenkosi. 2.13. Again the fundamental flaw to this course of action is that the decision to appoint the Current Inkosi will still be extant and enforceable.
P a g e 19 2.14. The issues referred to trial by Van Zyl J 16 no longer existed because the Applicant (and prospective Plaintiff) had died. All that remained was the monetary claim in which the Applicant was substituted as the Plaintiff. This would leave the administrative decision to appoint the Current Inkosi intact, rendering the theory and the practicalities unaligned, because the issue of the proper Inkosi had not been referred to trial. 2.15. Second Respondent then approached the High Court for an order which had the effect of rescinding the order of Van Zyl J and the interim relief. 3. SECOND RESPONDENT S APPLICATION 3.1. This was heard by Sishi J who delivered judgment thereon. 17 3.2. In the application the Court was asked to grant relief which Applicant contends would have ended her 16 Volume 3 : pages 199-200 17 Volume 7 : pages 581-596
P a g e 20 son s succession rights altogether. The orders prayed were to :- 3.2.1. rescind the referral to trial of the wrongful removal claim; 3.2.2. uplift the rule nisi. 3.3. The Court approached its task in attempting to interpret the SCA Judgment. 3.4. The finding that the position of the Current Inkosi was unassailable was based on the SCA finding that no other person but the deceased could bring a review of the Premier s decision to appoint him. 18 3.5. This is the fundamental issue referred to above. 3.6. It is clear from the judgment of the Court a quo that it was dealing with the SCA judgment and the consequential facts which then followed. In the 18 Volume 7 : page 592 : para 32.
P a g e 21 factual circumstances that then applied the Court a quo concluded that the litigation was at an end and that there was no longer any point to the trial about who should be Inkosi because no-one was substituted for the Removed Inkosi in the trial. The Applicant was only entitled to her monetary claim. 3.7. In the event of the Court a quo s approach being found to be wrong and being set aside, the Premier and the MEC nevertheless contend that in the exercise of the discretion of the appellate court that the rule nisi should be discharged in order that the Current Inkosi may function until the litigation is at an end. 4. ROLE OF THE PREMIER AND THE MEC 4.1. The Premier set out his stance to the Removed Inkosi s application at the outset. 19 This was that he 19 Volume 1 : page 49-50
P a g e 22 abided the decision in respect of who was the person entitled to be the Inkosi of the community. 4.2. The MEC (with the concurrence of the Premier) approached the High Court when the first order was granted in order to ensure that the community had a functional Inkosi. 20 She noted that the application would from then be opposed for the reasons set out. 4.3. Once the Removed Inkosi had died the Premier brought an application to have Removed Inkosi s application finalised. This stance persisted until the SCA heard and decided the matter. 4.4. When leave to appeal was made to the above Honourable Court the Premier and the MEC noted that the issue of community governance had assumed prominence. 21 20 Volume 1 : page 75-83 21 Volume 6 : paras 26 34 : pages 452-456
P a g e 23 4.5. In Second Respondents application heard before Sishi J the Premier and the MEC abided the decision of the court and made submissions on the issues of law. 22 4.6. Thereafter the deponents for the Premier and the MEC stated that the issue of the correct Inkosi was a matter for the community but that they would be taking an active part in the litigation in order to see it finalised and bring an end to the vacuum of authority in the community. 23 4.7. This stance has persisted throughout since then. 24 5. THE ARGUMENT OF THE PREMIER AND THE MEC IN THIS APPLICATION AND APPEAL 5.1. Since the beginning of 2010 when the succession dispute first started the Mbuyazi Community have had no functioning Inkosi. 22 Volume 7 : para 22 : pages 588-589 23 Volume 8 : 24 Volume 9 : paras 10 16 : pages 727-729
P a g e 24 5.2. This has had a detrimental effect on the governance of the Community who have become two factions. 5.3. The Current Inkosi has been duly appointed and were it not for the SCA ordering the continuation of the rule nisi preventing him from functioning, he is an adult and could function as the Inkosi. 5.4. The facts are set out in the answering affidavit of the Premier and the MEC. These are, it is submitted, compelling factors to motivate the rescinding of the rule nisi. These facts were present at the SCA hearing but were not argued because this issue did not arise. 5.5. These facts have become more pressing and have exacerbated the situation since November 2014 when the SCA handed down judgment. 5.6. Essentially the Premier and the MEC argue for the stability of a functioning Inkosi pending whatever
P a g e 25 other legal challenges may follow. These may take another decade to resolve and the Community should be governed until then. 5.7. A neutral person would not be appropriate because he or she would be acceptable to neither faction. 5.8. Even if this Constitutional Court upholds the appeal it is submitted that the rule nisi could be rescinded on the basis of changed circumstances or as an exercise of the Court s discretion in deciding the appeal. 5.9. Principles of convenience and the interests of justice may dictate that the challenger should go through the litigation in order to attempt to have a claim recognised, but in the interim the Inkosi who was appointed by the Premier should function as the Inkosi in the meantime.
P a g e 26 5.10. It does not follow that neither persons should function as Inkosi while the litigation is being conducted. 6. CONCLUSION In the premises the Premier and the MEC will argue accordingly. No order of costs is sought from any party by the Premier or the MEC. DATED at PIETERMARITZBURG on this 16 th day of MAY 2018. A. J. DICKSON SC 1 st & 4 th Respondents Counsel
P a g e 27 IN THE CONSITUTIONAL COURT OF SOUTH AFRICA In the matter between : CC CASE NO. : CCT 285/2017 SCA CASE NO : 568/2017 KwaZulu-Natal High Court Pietermaritzburg Case No : 2367/2010 SITHEMBILE VALENCIA MKHIZE N.O. Applicant and PREMIER OF THE PROVINCE OF KWAZULU-NATAL First Respondent MKHANYISENI MBUYAZI Second Respondent UMDENI WENKOSI Third Respondent MEC OF THE DEPARTMENT OF CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS Fourth Respondent FIRST AND FOURTH RESPONDENTS TABLE OF CASES
P a g e 28 Cases Bapedi Marota Mamone v The Commission on Traditional Leadership Disputes and Claims 2015 (3) BCLR 268 (CC)... 11 MEC for Health, Eastern Cape v Kirland Investments 2014 (3) SA 481 (CC) 11 Umndeni (Clan) of Amantungwa and Others v The MEC for Housing and Traditional Affairs and another [2011] 2 All SA 548 (SCA)... 5 C:\Users\Advocate Dickson\Documents\2018\2018 Pleadings\COGTA\Valenciamkhize\1&4WA 080518.Docx