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Maxwele Royal Family and Another v Premier of the Eastern Cape Province and Others (2970/2020) [2021] ZAECMHC 10

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Maxwele Royal Family and Another v Premier of the Eastern Cape Province and Others (2970/2020) [2021] ZAECMHC 10

Maxwele Royal Family and Another v Premier of the Eastern Cape Province and Others (2970/2020) [2021] ZAECMHC 10

26th March 2021

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[1]          Pursuant to the invocation of rule 53 of the Uniform Rules of the High Court,[1] the applicants instituted this review application on 3 September 2020, challenging the identification process of the fourth respondent, which culminated in the appointment of the third respondent by the second respondent as acting headman of the Zimbane Administrative area[2]  (“Zimbane”), Mthatha on 12 June 2020.

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[2]          The Applicants contend that the fourth respondent has no legislative power to identify person(s) for appointment as headman or headwoman in respect of Zimbane, and therefore, cannot identify an acting headman.  In their further contentions, the applicants allege that it is the first applicant who has a statutory mandate over the identification of a headman or headwoman in Zimbane.  To reinforce their submission, the applicants allege that the first applicant had identified the second applicant in 2008 to succeed his late father, Mzimtsha Maxwele, as a headman, and not the third respondent.

[3]          The gravamen of the applicants’ contention is that both the identification and appointment of the third respondent as acting headman of Zimbane is contrary to the material provisions of the Traditional Leadership and Governance Framework Amendment Act[3] (the Framework Act) read with the Eastern Cape Traditional Leadership and Governance Act[4] (the Eastern Cape Act).

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[4]          In opposing the application, the respondents have challenged applicants’ locus standi to institute these proceedings.  The respondents contend that the first applicant is not a royal family in terms of the Framework Act. They also question the applicants’ authority to institute and prosecute these proceedings. To that end, they caused a rule 7 notice to be served upon the applicants and they allege that it has not been complied with and therefore, the applicants are barred from proceeding with the application.  

[5]          Additional to the objections based on locus standi, the respondents raise several dilatory pleas, which include the non-joinder of the Qokolweni Traditional Council, mis-joinder of the fourth respondent, non-compliance with rule 41 of the Uniform Rules, by the applicants, and the defence of lis pendens.  In relation to the latter defence, the respondents allege that there are pending proceedings similar to the proceedings which had been instituted by the applicants before the Mthatha High Court.   

[6]           This Court has mero motu raised a legal question whether the appointment of the third respondent is compliant with section 140(2) of the Constitution[5] in view of the fact that the letter of appointment for the third respondent is not countersigned by the Premier (first respondent).

The parties

[7]          For the sake of convenience, the first applicant shall be referred to as “Maxwele Royal Family”, the second applicant “Asiphe Maxwele”, and “The Premier of the Eastern Cape”, “The MEC responsible for Cooperative Governance and Traditional Affairs”, “Baxolele Maxwele”.  Maxwele Royal Family is the first applicant. Asiphe Maxwele is the second applicant. The Premier of the Eastern Cape is the first respondent, the MEC responsible for traditional affairs is the second respondent, Baxolele Maxwele is the third respondent and Sangoni Royal Family is the fourth respondent. 

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