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IN THE HIGH COURT OF SOUTH AFRICA;

LIMPOPO DIVISION, THOHOYANDOU.

 

CASE NO: 339/2019

 

In the matter between:

DAVHANA ROYAL FAMILY	First Applicant
KHAMUSI NESENGANI	Second Applicant
And
PREMIER OF LIMPOPO PROVINCE	First Respondent
MEC FOR CO-OPERATIVE GOVERNANCE HUMAN SETTLEMEMNT AND TRADITIONAL AFFAIRS	Second Respondent
CHAIRPERSON OF LIMPOPO PROVINCE COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS	Third Respondent
LIMPOPO PROVINCIAL COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIM	Fourth Respondent
NENNGWEKHULU MANDELA WILSON	Fifth Respondent
NNENGWEKHULU ROYAL FAMILY	Sixth Respondent
LIMPOPO HOUSE OF TRADIRIONAL LEADERS	Seventh Respondent

  JUDGMENT

Delivery: The judgment shall be handed down electronically by email to the parties’ legal representatives. The date of hand down shall be deemed to be the 18 APRIL 2023 at 14:00.

SEMENYA AJP:

[1] The applicants seek an order in terms of which the decision of the first respondent, the Premier of Limpopo Province, acting on the advice of the fourth respondent, a Commission established to deal with disputes and claims of traditional leadership within the Limpopo Province, to restore the traditional leadership to Nngwekhulu on the basis of the claim for restoration of such leadership as lodged by the fifth respondent, reviewed and set aside. The decision was made on the 25 April 2018. The second respondent is the political head responsible for issues relating to traditional leadership within the Province. The first, second, third and fourth respondents shall be collectively referred to as the Government respondents. All seven respondents are opposing the application. The first to fourth respondents have filed opposing papers separately from that of the sixth and seventh respondents.

 

 [2] On the date of the hearing of the application, the applicants sought leave to amend the notice of motion. Though the application was opposed by the respondents, the court granted it on the basis of lack of prejudice on the part of the respondents. The orders sought in the amended notice was in line with the issues raised in the papers by the applicants. Furthermore, if granted, would assist the court in arriving at a just and equitable decision.

 

[3] The Government respondents raised a point of law that this court has no jurisdiction to hear the application on the basis that the decision sought to be reviewed was taken in Polokwane and not in Thohoyandou. It is the respondent’s view that the Polokwane High Court is the one that has jurisdiction to hear the application. The applicants contend that the court’s jurisdiction derives from section 6 of Promotion of Administrative Justice Act 3 of 2000 (PAJA) and the common law principle of legality. The applicants placed reliance on the decision in TMT Services & Supplies (Pty) Ltd t/a Traffic Management Technologies v MEC: Department of Transport, Province of KwaZulu-Natal and Others (case no.1059/2020) [15 March 2022]

“[27]      Finally, the purpose of the PAJA must be taken into account. It is primarily to give effect to the fundamental rights, contained in s 33 of the Constitution, to lawful, reasonable and procedurally fair administrative action and to reasons for adverse administrative action. A broad, inclusive and unqualified jurisdiction regime promotes this purpose and the fundamental right of access to court, while the approach contended for by the respondents restricts it. If one considers the origin of the ordinary residence or domicile, and location of the adverse effect, grounds for jurisdiction, namely Estate Agents Board v Lek, they were expressly intended to give effect, through s 19 of the Supreme Court Act ironically, to effective access to court. Trollip JA stated that as the ‘inhibitory effect’ of the board’s decision ‘hit respondent in Cape Town where he is resident and has his business’ and because he was ordinarily resident within the area of jurisdiction of the Western Cape court, it had jurisdiction: it was, after all, the court ‘immediately at hand and easily accessible to him and to which he would naturally turn for aid in seeking to have the diminution in his legal capacity or personality remedied’. The PAJA has codified the jurisdictional grounds recognized by Lek without qualification.”

 

 [4] The fourth and sixth respondents reside within the area of the Thohoyandou Local Division. Furthermore, the fourth respondent held the inquiries in Makwarela, which is within the area of jurisdiction of Thohoyandou Local Division. It is correct that the first respondent took the decision under review in Polokwane. Thohoyandou High Court, being a Local Division of the Limpopo High Court, has concurrent jurisdiction with the Polokwane main seat. For this reason, I find that this court has jurisdiction in this matter. The point of law is dismissed.

 

[5] It is common cause between the applicants and the fifth and sixth respondents that sometime during the year 1864, chief Davhana left Dzata area after he had lost the battle with his younger brother, Makhado. He moved to the area south of Levubu river and settled at Mpheni village. It is further common cause that the communities under the leadership of Masia, Nnengwekhulu, Mashau and Tshimbupfe had already settled in the villages south of Levubu river when the Davhana arrived.

 

[6] The disputed facts between the applicants and the fifth and sixth respondents revolve around the question whether, upon their arrival in the area, the Davhanas subjugated the Nnengwenkhulus who were occupying the area referred to as Ngwekhulu, and became their chiefs, as claimed by the applicants, or whether the Nnengwekhulus lost their status as chief and became subjects of the Davhanas in circumstances alluded to in their papers and as related to the Commission (more on this later in this judgment).

 

[7] The following was stated in the questionnaire completed by Wilson Mandela Nnengwekhulu (the fifth respondent) on the lodgement of the claim with the fourth respondent:

(i).  That in 1958, during the reign of chief Ndavhelesi Nnengwekhulu, the apartheid government promoted Davhana to the position of a Senior Traditional Leader of Ngwekhulu village;

(ii). the conduct of the apartheid government as referred to in (i) above, led to the relegation of chief Nnengwekhulu to the status of a headman who was required to serve under Davhana;

 

[8] In addition to what has been stated in the previous paragraph the fifth respondent specified the claim as being that of a position of a principal traditional leader (my own emphasis). I deem it necessary to state at this stage that there were columns for the position of a kingship, senior traditional leadership or headman, which fifth respondent chose not to tick on. In another form, the fifth respondent stated that the claim is that for a position of Senior Traditional Leader.

 

[9] Furthermore, in the same form the fifth respondent stated that the Mushasha and Ralushai Commissions of enquiries, which according to the fifth respondent had already dealt with the claim, found in favour of the fifth and sixth respondents and recommended that Nnengwekhulu should be reinstate to the status of a senior traditional leader. The statement is not correct in that in one of the commissions, the claim was rejected on the basis that the respondents were claiming restoration of land which they were never dispossessed.

 

[10] According to the report compiled by the fourth respondent, the following are the findings made by the Commission and on which the fourth respondent relied to advice to the first respondent to restore the Senior Traditional Leadership to the fifth and sixth respondents:

(a) The Nnengwekhulu community had been mahosi (chiefs) under khosikhulu (king) Mphephu Ramabulana;

(b) They still abide by the dictates of their customary law of succession;

(c) They had never been dispossessed of their rights in their land and still reside at the same village under the land claim;

(d) The Davhana royal kraal is still at its original area of Mpheni which is 40km from Ngwekhulu, and that

(e) They have their own land and traditional community.

 

[11] The applicants stated in their founding affidavit that they do not challenge these factual findings, with the exception of (d) and regard them as common cause. It is the recommendation of the fourth respondent to the first respondent that is being challenged. This recommendation was that the claim of fifth respondent for restoration of Nnengwekhulu Senior Traditional Leadership should be granted.

 

[12] Part of the evidence relied upon by the fourth respondent, which appears to be forming the core of the applicant’s case, is the evidence collected during an inspection conducted by the fourth respondent at Ngwekhulu. The fourth respondent concluded that the Nnengwekhulu arrived at that area long before the Davhanas because of the existence of three different royal grave sites which differ in terms of periods, a tribal court with a stool for the khosi made out of stone, royal assegais as well as royal drums.

 

[13] As a ground for the review of the decision of the first and fourth respondents’ decision, the applicants aver that the decision was grossly irrational in that the fourth respondent:

(i) failed to conduct an inspection in loco at Tshirululuni and Mpheni villages, which according to the applicants amount to breach of the audi alteram partem principle;

(ii) failing to conduct public hearings;

(iii) failing to conduct interviews; and

(iv) failing to consider the cut-off date of the inquiry

 

[14] On the issue of the inspection in loco, the applicants aver that had the commission conducted same at Tshirululuni and Mpheni, which are situated at a distance of about 10km from Ngwekhulu and at Mpheni, 40km away, they would have found similar features on which they relied to find in favour of the fifth respondent. In response to the averments, the government respondents stated in their answering affidavit that it was not necessary for the fourth respondent to conduct inspection in loco at Tshirululuni and Mpheni. The fifth and sixth respondents likewise denied these allegations.

 

[15] On the issue of failure to conduct public hearings, the applicants aver that it was irrational of the fourth respondent not to conduct public hearings at Tshirululuni and Mpheni. The applicants aver that the fourth respondent should have interviewed the elderly people who reside in those villages. It is contended that had this been done the fourth respondent would have obtained information which would have assisted it in determining whether the Nnengwekgulu were independent headmen, headmen or chiefs. The government respondents contend that the public hearings conducted by the fourth respondent were sufficient for it to arrive at the conclusion it has arrived at. It is further contended that the public hearings were conducted in a fair and justifiable manner at accessible venue. The fifth and sixth respondents simply denied the allegations made by the applicants in this regard.

 

[16] On the failure by the fourth respondents to interview people, as it should have done as part of its mandate, the applicants aver that the fourth respondent should have interview other people outside the royal family. The government respondents, however, contend that all interested and affected parties were given notifications of the dates and venues for public hearings and that the failure to attend cannot be placed on the door step of the fourth respondent. The fifth and sixth respondents simply denied the allegations on this issue in their answering.

 

[17] The fourth respondent sated in its report that it was delegated to investigate all traditional leadership claims and disputes dating from 1 September 1927 up to the coming into operation of the provisional legislation dealing with traditional leadership and governance matters. The applicants aver that the fourth respondent acted outside its mandate by ignoring the submissions made by Mbangiseni who testified on behalf of the Nnengwenkhulus before the inquiry conducted by Magistrate Booi, in which he stated that the Nnengwekgulu lost their senior traditional leadership during the administration of Paul Kruger who died on the 14 July 1904. The applicants aver that the fourth respondent ought to have considered the submissions in view of the fact that the documents of the Booi inquiry were before it. The government respondents did not respond to these allegations whilst the fifth and sixth, like other allegations on this issue of irrationality, simply denied it.

 

[18] The other ground for review made by the applicants is that the fourth respondent ignored, alternatively, disregarded credible, critical and uncontested evidence. In this regard, the applicants aver that they have been the chiefs since 1864 and that the installation of Ndavheleseni Muofhe William Nnengwekhulu in 1942, by Chief Kingi Davhana, as headman, is sufficient evidence to prove that the Nnengwekgulu have always been the headmen under the Davhanas. Counsel for the applicants submitted that if the version of the fifth respondent that the Davhanas were headmen and the Nnengwekhulus the chiefs, then it is unheard of that a headman can install someone as a chief. It is again alleged that this evidence provide proof that the Davhanas were not elevated to the status of a chief in 1958 as averred by the fifth and sixth respondents. It is further alleged that it is not correct that the Nngwekhulus were demoted at that stage.  All respondents barely denied these allegations.

 

[19] Contrary to what has been stated in the form which was completed as the basis of the claim, the fifth respondent stated in his oral submissions that the claim is for senior traditional leadership instead of that of a principal traditional leader. He further stated that the Nnengwekhulu do not have an objection to chieftainship position held by Davhana. Their objection is that Davhana should not exercise his chieftainship within their area of jurisdiction. Mashudu Mukele Nnengwekhulu testified that prior to 1958, they were recognised as independent headmen and that is what they want to be restored to. He referred the fourth respondent to a Government Gazette dated 1934 as prove that Nnengwekhulu, Masia and Netshimbupfe were recognised as independent headmen during that period. He however stated that they want to be recognised as chiefs now that independent headman is no longer recognised in the current dispensation.

 

[20] The fifth respondent furnished the fourth respondent with a report of the Booi Commission of inquiry into the dispute between the Davhana and the Nnegwekhulu traditional leadership which took place in 1984. In the report, one Mbangiseni Edward Nnengwekhulu told the inquiry that he is a headman of Nngwekhulu who is serving under Davhana. He further stated that Davhana arrived in the area in 1926 during at the time when Nkomishi Nngwekhulu was an independent headman under Khosi Mphephu Ramabulana. According to him, independent headman Nngwekhulu had his own petty headmen such as Gidza and others. The applicants contend that this evidence, which is from one of the Nnegwekhulus, supports their version that the Nngwekhulus have been serving as headmen and not as chiefs or Senior Traditional Leaders as early as 1926 when Davhana arrived.

 

[21] The applicants contend that the fourth respondent acted unfairly, irrationally and unreasonably by not conducting inspection in loco at Mpheni and Tshiruruluni and that in so doing, it denied Davhanas natural justice. It is submitted that this conduct resulted in unfair conclusion that there was nothing of value at the Davhana’ grave site. The sixth respondent’s case before the fourth respondent was that they were of equal status with Davhana until they were demoted in 1958. I find that the conclusion arrived at by the fourth respondent is not in line with the evidence presented before it, which proves that the Nnengwekhulu have been the headmen (gotas) as early as 1926.

 

  [22] On the issue of bias, the applicants contend that the fourth respondent was biased in favour of the fifth respondent. In line with the decision in BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union and Another [1992] ZASCA 85; 1992 (3) SA 673, is was argued that the fourth respondent approached the issues in this matter with a mind which was in fact prejudicial or not open to conviction. It is contended by the applicants that it was not clear from the evidence presented before the fourth respondent whether their status before 1958 was that of an independent headman (gota), headman or chief. Further that it was not clear whether the status sought to be restored was lost in 1926, 1934, 1958 or 1984. In their application, it is stated that they want to be recognised as Principal Traditional Leader but in oral evidence, they stated that they want to be restored to the position of a Senior Traditional Leadership. Furthermore, the Nnegwekhulus placed evidence before the Booi inquiry that they were the gotas before Davhana’s arrival.

 

[23] It is correct, as submitted by the applicants, that the fourth respondent decided on its own to promote the fifth and sixth respondents to a position which they never held under the pretext of restoration. The State respondent’s argument that the Booi, Ralushai and Mushasha Commissions are not under review and that the fourth respondent was not obliged to consider them is without merit. It is the fifth respondent who brought the findings of those Commissions to the attention of the fourth respondent, firstly in the form he completed to define the claim and, secondly, in their oral submissions. The fourth respondent could not ignore the information contained in the reports, more in particular, where they dealt with the status of the Nnengwekhulus, prior to the lodging of the claim and when it was stated that they lost the status they want to be restored to during Paul Kruger’s era, which period falls outside the terms of reference of the fourth respondent.

 

[24] The applicants correctly submitted that the fourth respondent granted a relief which was not sought by the fourth respondent, thereby acting irrationally. Section 6(2)(f)(ii)(cc) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) makes an administrative act which is not rationally connected to the information before the administrator unlawful. Furthermore, in terms of section 6 (2)(c), the findings of the fourth respondent was procedurally unfair in that an inspection in loco was only done at the fifth respondent’s area.

 

[25] The fifth respondent presented evidence before the fourth respondent in the form of a 1934 Government Gazette. The fifth respondent claimed that the Nnengwekhulu were of the same status, i.e. chiefs with the Masia and Netshimbupfe. during that period. It appears from the Gazette that the status was that of independent Headmen. However, the oral submissions made is that the Nngwekhulus want to be restored to the same position held by Davhana which, according to Mashudu Mukela Nnengwekulu, was that of a chief. I agree with counsel for the applicants that it cannot be true that Davhana was promoted in 1958 and that Nnengwekhulu was demoted in the same year.

 

[26] I find that the fourth respondent’s failure to conduct an inspection in loco at Tshiruruluni where the Davhanas’ head kraal is situated as it did with the Nnengwekhulu amounts to bias of its part. Furthermore, the fourth respondent ‘restored’ to the fifth respondent the status that he never possessed before. The fourth respondent failed to determine the period during which the fifth respondent lost the status it claims restoration for and that if it is during the era of Paul Kruger, then it fell outside its mandate.

 

[27] In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (CCT 48/13) [2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC) (29 November 2013) it was held that:

“[25] Once a ground of review under PAJA has been established there is no room for shying away from it… Section 8 of PAJA gives detailed legislative content to the Constitution’s “just and equitable” remedy.”

[28] For the reasons stated above, I find that the decision of the first respondent to bestow the status of a Senior Traditional Leader on the fifth respondent is unlawful and stands to be reviewed and set aside.

 

[29] Section 8 of PAJA provides the following remedies in proceedings under PAJA:

Special provisions applicable to both persons and panels appointed to conduct public inquiries

8. If a person or panel has been appointed in terms of section 4(2)(a) of the Act to conduct a public inquiry, that person or panel must- (a) conduct the inquiry-

(i) in accordance with the terms of reference;

(ii) with the resources provided by the administrator; and 7

 (iii) within a time and financial framework determined by the administrator; (b) regularly or on request by the administrator, report to the administrator on progress with the completion of the inquiry; and (c) immediately report to the administrator any administrative or other obstacles impeding progress with the inquiry.

 

[30] This is not an exceptional case where this court is empowered to substitute or vary the administrative act of the first respondent. In the amended notice of motion, the applicants seek an order in terms of which the fifth respondent’s claim to be restored as a Senior Traditional Leader is referred back to the first, fourth and fifth respondents for proper investigation, determination and recommendation on the following issues:

“1. was Nnengwenkhulu ever a senior traditional leader;

2. if so, when did the Nnengwekhulu lose the said status of senior traditional leader;

3. how did the Nnengwekhulu lose the said status of senior traditional leader;

4. in the event that the Nnengwekhulus were an independent headmanship, or gotaship, are the first to fourth respondents entitled, in terms of the Traditional Leadership and Governance Framework Act, 41 of 2003 (now repealed by the Traditional and Khoi-San Leadership Act 3 of 2019), as amended, and Limpopo Traditional Leadership Act 6 of 2005, to recognise the Nnengwekhulus as Senior Traditional Leaders;

5. was Davhana ever a senior traditional leader;

6. If not, when was Davhana promoted to the status of senior traditional leader; and

7. how was Davhana promoted to the position of a senior traditional leader.

 

[31] On the issue of costs, I find no reason to deviate from the general principle that costs should follow the result. In this case the applicants have succeeded in their claim. They should be compensated with costs.

 

[32] In the result I make the following order:

i. The proceedings and the findings in terms of which the third and fourth respondents recommended the fifth respondent’s claim is reviewed and set aside;

ii. The decision made by the first respondent dated the 25 April 2018 approving fifth respondent’s claim of Senior Traditional Leadership is reviewed and set aside;

iii. The fifth respondent’s claim to be restored as Senior Traditional Leadership be remitted back to the first, second, fourth and fifth respondents for proper investigations, determination and recommendation on the following issues:

1. was Nnengwenkhulu ever a senior traditional leader;

2. if so, when did the Nnengwekhulu lose the said status of senior traditional leader;

3. how did the Nnengwekhulu lose the said status of senior traditional leader;

4. in the event that the Nnengwekhulus were an independent headmanship, or gotaship, are the first to fourth respondents entitled, in terms of the Traditional Leadership and Governance Framework Act, 41 of 2003 (now repealed by the Traditional and Khoi-San Leadership Act 3 of 2019), as amended, and Limpopo Traditional Leadership Act 6 of 2005, to recognise the Nnengwekhulus as Senior Traditional Leaders;

5. was Davhana ever a senior traditional leader; 6. If not, when was Davhana promoted to the status of senior traditional leader; and

7. how was Davhana promoted to the position of a senior traditional leader.

 

 

 

iv. The fourth and fifth respondents are ordered and directed to invite and/or solicit the views to the king under whose jurisdiction the parties fall, the Netshibumpfe and Masia Traditional Leaders in the determination of the fifth respondent’s claim; and

v. The first to sixth respondents are ordered to pay the costs of the application.

MV SEMENYA

ACTING JUDGE PRESIDENT OF THE HIGH COURT; LIMPOPO DIVISION

Appearances:

For the applicants               : Adv. TJ Machaba SC

Instructed by                        : A.R Madia Attorneys

For the Respondent 1 to 4 : Adv. R Tshikororo

Instructed by                       : State Attorneys; Thohoyandou

For the Respondent 5 to 6 : Adv. MM Nengwekhulu

Instructed by                       : Nengwekhulu Tshiwandalani Inc.

Date of hearing                   : 10 January 2023

Date of Judgment               : 18 April 2023

               

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