Maxwele family appeals ruling on succession of headmanships

By Lulamile Feni

The groundbreaking judgment by acting judge Mvuzo Notyesi that headmanships, hereditary or not, are dependent on their senior traditional leaders and the incumbents cannot automatically be succeeded by their heirs or decide on their successor, is being appealed.

Aggrieved Maxwele royal family and Asiphe Solanga Maxwele, son of sacked headwoman Nosizwe Maxwele, maintained that they had a hereditary headmanship in their royal family of Zimbane administrative area in Mthatha, where they have ruled over 23 villages for many generations.

The Zimbane headmanship went to court after Nosizwe’s brother-in-law, Baxolele Maxwele, was recognised by the provincial government as the acting Zimbane headman, instead of Asiphe.

The provincial government recognised Baxolele after a submission in his favour was submitted by the Sangoni royal family, who are senior traditional leaders and rulers of the Qokolweni Traditional Council, to which the Zimbane headmanship reports.

Notyesi, in his landmark March 23 judgment, ruled: “In my view, headmanship does not qualify as the royal family. It is irrelevant that the headmanship is hereditary. A headman is subjected to the royal family of the senior traditional leader as the administration is not the traditional community.”

The acting judge said that according to the Traditional Leadership and Governance Framework Amendment Act (the Framework Act), read with the Eastern Cape Traditional Leadership and Governance Act, only a senior traditional leader (chief) has a royal family; only this structure can appoint and dismiss headmen/women.

Notyesi said royal families are traditional leaders ruling traditional communities, and that headmen rule over administrative areas, which in the Act are not defined as traditional communities.

Notyesi confirmed the appointment of Baxolele, but Asiphe’s lawyer Sipho Zono, had a different view, and on April 7, filed a notice of application for leave to appeal the whole judgment and order.

“A headman or headwoman is defined in section 1 of Act 41 of 2003, to mean a traditional leader who is under the authority of, or exercises authority within the area of jurisdiction of senior traditional leader in accordance with customary law, and is recognised as such in terms of the Act.

“Importantly, headman s not defined in the  Act with reference to the expanse or size of the area in which they exercise authority.  A headman is simply defined with reference to his positioning within the hierarchy of traditional leadership and to the effect that he must be recognised as such in terms of the Act.

“A traditional leader, which includes a headman, is defined to mean any person who in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of the Act,” Zono wrote in court papers.

Zono said that the reasoning of Notyesi simply suggests that senior traditional leaders who fall under the authority of a kingship, also do not have royal families, for to suggest otherwise in respect of senior traditional leaders and kingship, would contradict the very reasoning of the learned judge.

“The matter involves interpretation of a legislation and is a matter of public interest and the decision of the court has far-reaching implications within the institution of traditional leadership,” wrote Zono.

Also cited as respondents are Eastern Cape premier Oscar Mabuyane, Cogta MEC Xolile Nqatha, Baxolele Maxwele and the Sangoni royal family.

This article first appeared in the Daily Dispatch on 24 May 2021.

Permanent link to this article: https://www.customcontested.co.za/maxwele-family-appeals-ruling-on-succession-of-headmanships/

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