15 November 2019 – Press Release: Finality in Cala Reserve Headmanship Dispute

 

 

On 15 November 2019 the High Court in Bhisho finally settled a six year dispute regarding the headmanship of the Cala Reserve in the Eastern Cape. The community (represented by the Legal Resources Centre) had their customary law practice of electing their own headman upheld by the court and recognised Mr Gideon Sitwayi’s election to this position.

 

In 2013, the community of the Cala Reserve elected Mr. Sitwayi as their new headman in accordance with their customary laws. Despite this, Mr. Ndodenkulu Jackson Yolelo was recommended by the Royal Family and the Gcina Traditional Council as the headman, and his appointment was confirmed by the MEC for Local Government and Traditional Affairs.  This was contrary to the decision of the community and their recognised customary laws.

 

Yolelo’s appointment was set aside by the High Court in 2014, and the decision was confirmed by the Supreme Court of Appeal in 2015. The courts’ decision to set aside the appointment of Mr Yolelo was on the basis that the appointment did not comply with the customary laws of the community.

 

Instead of recognising Mr Sitwayi as the headman, the Respondents then purported to hold a new “election” where Mr Yolelo was again imposed as the headman of the Cala Reserve. This prompted the applicants to again approach the court to review and set aside the second “election” as unlawful and inconsistent with the customary laws of the Cala Reserve.

 

The Legal Resources Centre argued on behalf of Mr. Sitwayi that Mr. Sitwayi is the duly elected headman of the Cala Reserve and his election was already affirmed by the Supreme Court of Appeal in 2015. The Royal Family’s decision to wilfully ignore the findings of the court and arbitrarily impose Mr Yolelo as the headman was unlawful. Furthermore, Mr. Yolelo is barred from being the headman of the Cala Reserve due to his criminal record.

 

The court agreed and directed the MEC to issue Mr. Sitwayi with a certificate of recognition of his appointment as headman within 30 days.

 

Mr. Sitwayi had this to say upon receiving the judgement:

 

“We are very excited by this result as the community has been waiting for a long time to have the rightful headman recognised. This is a very important case, not just for the Cala Reserve, but also for the Eastern Cape Province as a whole. Now chiefs will know that communities can choose their own headman in terms of their customary law. We had to fight for six years to have the chosen headman recognised and we hope that the chief and the traditional council will now accept the judgment.”

 

This case reaffirms the importance of recognising the customary laws of the community and ensures that traditional leaders do not exercise their powers in an arbitrary manner.  While this principal was established in the first Ntamo case and confirmed by the SCA, the actions of the Royal family necessitated a further approach to court to ensure that the principal was upheld. 

 

• Cecile van Schalkwyk     (046 622 9230) (cecile@lrc.org.za)
• Cameron McConnachie  (Attorney: Makhanda regional office) cameron@lrc.org.za 083 387 8738