- The Amambalu Royal Family selected Pakamisa Swelindawo as its senior traditional leader in 2009.
- Later, the Eastern Cape Premier decided not to recognise him and referred the issue to an investigative committee.
- The High Court in Mthatha overturned both decisions and ordered the Premier to recognise Swelindawo within 30 days.
The Eastern Cape Premier is now required to recognise Pakamisa Swelindawo as the senior traditional leader of the Amambalu Traditional Community.
In the High Court in Mthatha, Acting Judge M Mhambi found that the Premier had exceeded his statutory powers and ruled that Swelindawo had already been chosen by the Amambalu Royal Family in 2009 after the death of his father, Chief Lazola Swelindawo.
Because Swelindawo was still a minor and working for the Department of Education, his mother, Nolingene Swelindawo, was appointed to act as regent on his behalf. The premier’s office accepted the royal family’s decision and officially recognised her as regent.
Royal family had already identified successor
Nolingene passed away on 16 December 2023. After her death, the MEC for Cooperative Governance and Traditional Affairs asked the royal family to provide new resolutions for its records. The royal family met on 9 January 2024 and once again named Swelindawo as the senior traditional leader.
Despite this, the Premier again refused to recognise him on 15 August 2024 and sent the matter to an investigative committee. The Premier relied on an objection raised by Mr Mncameni in June 2022. However, the court found that this objection was never shared with Swelindawo, the royal family or the late regent.
Swelindawo and the royal family only learned about the objection when it was attached to the Premier’s response during the court proceedings.
The Premier’s office argued that because a dispute existed, the Premier was entitled to use Section 59(2)(a) of the Traditional and Khoi-San Leadership Act to order an investigation. Judge Mhambi did not accept this approach.
Premier had no power to reopen recognition
The judge found that the Premier failed to understand that Swelindawo had already been chosen by the royal family back in 2009. Traditional leadership is best suited to the Royal Family, Judge Mhambi said.
The judge found that the royal family holds the power to choose and nominate someone for the role of senior traditional leader according to customary law.
Once the regent had passed away and the royal family reaffirmed Swelindawo’s position, the Premier could have simply issued the recognition certificate required by the Act. Instead, the Premier chose to use the dispute provisions in section 59.
Judge Mhambi found that the Premier was without the right to use those provisions in this situation and had gone beyond the powers provided by Section 8 of the Act. The court also rejected the idea that the Premier could just ignore the earlier recognition because it was supposedly wrong.
An administrative decision remains valid and carries legal consequences until it is overturned by a competent authority or court.
Objection was never disclosed
The court also found another issue with the Premier’s decision, which was procedural unfairness. Swelindawo and the royal family had not been informed about the 2022 objection and so they were denied a chance to respond before the Premier made his decision.
Judge Mhambi found it was unfair for the Premier to try to justify his decision after the fact through the answering affidavit. The judge also rejected the argument that Mncameni had a direct and substantial interest that meant he needed to be joined to the proceedings.
The court concluded that the Premier’s decisions were unreasonable, irrational and procedurally unfair.
Recognition ordered within 30 days
The court reviewed and overturned the Premier’s refusal to recognise Swelindawo as senior traditional leader. It also set aside the Premier’s decision to refer Swelindawo’s recognition to an investigative committee under Section 59(2)(a) of the Traditional and Khoi-San Leadership Act.
The Premier was ordered to recognise Swelindawo as the senior traditional leader of the Amambalu Traditional Community within 30 calendar days of being served with the order.
The Premier was also ordered to pay the costs of the application.
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