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CUSTOMARY

CUSTOMARY – Traditional leadership – Imposition of levies – Levies not discussed or adopted by communities – Adopted by chiefs or traditional authorities and then announced to villagers who are given no choice but to pay them – Traditional levies and rates are taxes – Only legislative bodies may impose taxes – Traditional leaders have no power to impose a tax – Provincial legislature cannot delegate power to impose taxes to traditional leaders or to premier – Limpopo Traditional Leadership and Institutions Act 6 of 2005 – Section 25 is unconstitutional.

Facts: Before colonialism, communities in Limpopo paid tributes to their traditional leaders, often in the form of goods or labour. With the advent of colonialism and apartheid, these practices were corrupted as traditional leaders were co-opted to act as servants of the State, and to collect taxes both for themselves and for the colonialists. The practice of traditional leaders imposing taxes rather than receiving voluntary tributes has survived to this day. Across Limpopo, communities are forced to pay levies to traditional leaders. Communities are required to pay a wide range of levies imposed, and collected by, traditional authorities. The most common is the annual levy.


Application: For confirmation of an order of constitutional invalidity granted by the High Court in terms of section 172(2)(a) of the Constitution. The High Court declared section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 (the Limpopo Act) unconstitutional. Section 25 provides for traditional councils to “levy a traditional council rate upon every taxpayer of the traditional area concerned”. That rate must be approved by the Premier and gazetted in the Provincial Gazette, and if the rate is not paid, a taxpayer can be “dealt with in accordance with the customary laws of the traditional community concerned”.


Discussion: Levies are imposed to raise money for a specific purpose, including in one instance for a new car for a chief. Some levies are imposed in order to access a common resource. These include levies to allocate a stand, allow the running of a business or bury a family member. Levies are imposed for an act that should be free of charge, like providing a proof of address letter. Fines are often imposed for the non-payment of levies. The levies are not discussed or adopted by communities. They are adopted by chiefs, or traditional authorities, and then announced to villagers who are given no choice but to pay them. The levies are enforced by denying access to services or resources until outstanding levies have been paid. The evidence reveals that another common method of extracting payment is refusing to provide a proof of address letter, or other letters required by the State. These are important for members of traditional communities to access government services – such as social grants – and basic commercial services such as bank accounts. Refusal to pay levies has real consequences for community members.


Findings: A charge is still a tax if it is imposed on a section of the population. The Limpopo Act authorises the imposition of a charge on all the residents in a traditional authority’s area of jurisdiction. Under the Constitution, traditional leaders are not democratically elected legislative bodies, and therefore cannot impose taxes in terms of legislation. Neither can they impose taxes under customary law. The Provincial Legislature cannot delegate its power to impose taxes to either traditional leaders or the Premier. The rates and levies share all the characteristics of traditional taxes – they are compulsory charges, uniformly imposed, paid into a general fund, for the public good or the provision of services. The High Court was correct to conclude that section 25 of the Limpopo Act is unconstitutional and invalid and the order of invalidity of that Court must be confirmed.

* See from para [51] for the discussion on how briefing four counsel for the purposes of opposing a costs order was not justified.


Order: The High Court’s order of invalidity is confirmed. Section 25 of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 is declared inconsistent with the Constitution and invalid.

THERON J (unanimous)

Mohlaba v Minister of CoGTA [2024] ZACC 32

20 December 2024

THERON J

CUSTOMARY – Traditional leadership – Royal duties – Decision by premier to remove respondents as headmen and headwomen – Application for condonation refused – Appeal – Review application was brought almost six years later – Reasons for delay – Legal route was expensive – To grant condonation after such an inordinate and largely unexplained delay would undermine principle of finality – Explanation not reasonable – Appeal dismissed – Traditional Leadership and Governance Act 41 of 2003.

Facts and issue: This is an appeal against the judgment and order of the full court, upholding an appeal which emanated from the court of first instance, in the same division (the High Court). The High Court refused an application for condonation of the late filing of the review and dismissed the application to review and set aside the Premier of Limpopo’s decision to remove the respondents as headmen and headwomen. The Premier removed them and withdrew their certificates of recognition on 29 July 2013. The review application was launched on 11 February 2019, nearly six years later.


Discussion: The review application was against the decision of the Premier and the primary relief sought by the headmen/women respondents was to set aside the Premier’s administrative action to remove them from their positions. The Legislature recognises that the Premier may not revoke or review an earlier decision because he or she would be functus officio, having discharged his or her office. The dispute before the full court was not a dispute as envisaged by s 21 of the Framework Act and there was no internal remedy that the headmen/women respondents had to exhaust in terms of that provision. The full court therefore erred in finding that a condonation application was not necessary as internal remedies under s 21 of the Framework Act were not exhausted. Taking into consideration the 180-day period prescribed by s 7(1) of PAJA 3 of 2000, the review application was brought almost six years later. The contention by counsel for the headmen/women respondents that the 180-day period only commenced when they were provided with the full reasons in terms of rule 53, is without merit.


Findings: The inordinate delay denies litigants the closure they are entitled to on the issue, and the litigation. To grant condonation after such an inordinate and largely unexplained delay of almost six years would undermine the principle of finality and will have a negative effect on the administration of justice. Even if the court accepts the version that the respondents only realised that they were no longer headmen and headwomen at a meeting on 27 June 2015, their explanation for the delay in launching the review application in February 2019 is not reasonable. Lack of finality will also cause prejudice to the institution of traditional leadership in the Bahananwa community. The headmen/women respondents did not make out a proper case for condonation, and that is dispositive of the matter. There was unreasonable delay, and no good reasons were provided why the delay should be condoned.


Order: The order of the full court is set aside and substituted with an order dismissing the appeal with costs.

Kgoshi Ngoako Isaac Lebogo v Headman Matome Kobe [2024] ZASCA 160

18 November 2024

MOLEFE JA

CUSTOMARY – Traditional leadership – Headman – Carrying out duties of headman when not appointed as such – Interrupting and interfering with programs – Respondent failed to raise a real, genuine and bona-fide dispute of fact – Applicant recognised as senior traditional leader – Vested with responsibility to oversee institution of headmanship – Clear right established – Respondent committed an injury to rights of applicant and those of community – Interdicted and restrained.

Facts and issue: Application in which the applicant, a senior traditional leader and head of the Jumba Traditional Council, in Tabase Administrative Area, Mthatha seeks a final interdict to restrain the respondent from holding himself out as the headman of the same administrative area when he has not been appointed as such and from interrupting and interfering with the programs of the Jumba Traditional Council.


Discussion: The applicant alleges that the first respondent holds himself out as headman of Tabase Administrative Area and continues to harm the community of that area. The respondent has not seriously and unambiguously addressed the facts said to be disputed, consequently he has failed to raise a real, genuine and bona-fide dispute of fact. The applicant was recognised as a senior traditional leader and head of Jumba Traditional Council in Tabase Administrative Area. In terms of the relevant regulatory framework, she is vested with a responsibility to oversee the institution of headmanship within her area of jurisdiction. It follows therefore that the applicant has established a clear right. An injury actually committed or reasonably apprehended would justify the granting of the relief sought by the applicant. The respondent disputes that the applicant has established that an injury was actually committed or reasonably apprehended. The applicant sets out the harm committed by the respondent in holding himself out as a headman of Tabase Administrative Area, without having been recognised as such in terms of the law.


Findings: Notwithstanding the admissions he made, the respondent persists in denying having held himself out as a headman of Tabase Administrative Area. Based on the respondent’s admissions and his continued possession and use of the headman’s stamp, the respondent through his conduct did hold himself out as a headman of Tabase Administrative Area thereby committing an injury to the rights of the applicant and those of the community of Tabase Administrative Area. Unless interdicted, the respondent will continue to hold himself out as a headman and continue to interfere with the programs of Jumba Traditional Council. There is no satisfactory alternative remedy which can afford the applicant the similar protection to that afforded by an interdict. The granting of the final interdict will not infringe on any of the respondent’s constitutional rights neither has the respondent alleged that there would be such an infringement.


Order: The first respondent is interdicted and restrained from holding himself out as a headman of Tabase Administrative Area and interfering with the programs of the Jumba Traditional Council. The first respondent is ordered to stop discharging any functions of a headman.

Jumba v Jumba [2024] ZAECMHC 82

24 October 2024

MQOBI AJ

CUSTOMARY – Traditional leadership – Commission findings – Dispute as to heir to throne of amaMpondo – Commission carefully analysed evidence relating to customary law practised by amaMpondo at the time – Findings were based on that analysis – No evidence that commission considered irrelevant factors or did not consider factors it had to consider – Sufficiently resolved dispute by considering customary law, genealogy and views of amaMpondo – No basis to review findings – Traditional Leadership and Governance Framework Act 41 of 2003, s 25(3)(a).

Facts: The discernible history of amaMpondo, which has been the basis of at least three commissions, can be traced back to uKumkani (King) Faku’s reign over amaMpondo which was from 1824 to 1867. Disputes over kingship endured over the years. It re-emerged, this time between Mpondombini and Zwelidumile Sigcau. This discontent resulted in the intervention of the then Transkei Government under the leadership of Kaizer Daliwonga Matanzima who issued an instruction that amaMpondo should vote on the issue. The majority voted in favour of Mpondombini. In September 2004, the Traditional Leadership and Governance Framework Act 41 of 2003 came into operation and the Commission on Traditional Leadership Disputes and Claims was established. In 2006, during Mpondombini’s reign, Zwelidumile’s son, Zanozuko, who was born in 1974, lodged a claim with the Commission contesting the incumbency of the envisaged kingship/queenship.  This was opposed by Mpondombini.


Appeal: The Commission subsequently made its finding in January 2010, informing the President that Zanozuko was entitled to be heir to the throne of amaMpondo. It was while Mpondombini was in hospital in August 2010 that he learnt that a public announcement to this effect had been made. He passed away during the ensuing litigation. See also the two earlier Sigcau cases (details below headnote). The High Court was unable to find any evidence that the decision of the Commission was either irrational, unlawful, unreasonable or procedurally unfair and that it should be set aside. The Supreme Court of Appeal held that the Commission failed to apply the correct customary law at the time of the dispute. That court upheld the appeal and set aside the order of the High Court. It further set aside the Commission’s 2010 determination, as well as the President’s report and notice on the appointment of Zanozuko as King.


Discussion: The mandate of the Commission was to determine the dispute in terms of section 25(3)(a) of the Framework Act. In this regard it had to consider and apply customary law and customs of the relevant traditional community as they were when events occurred that gave rise to the dispute or claim. The rightful successor to uKumkani Mandlonke was never determined customarily and the dispute regarding kingship in terms of customary law was not resolved. Therefore, the events that occurred that gave rise to the dispute or claim occurred way back in 1937 when uKumkani Mandlonke died without leaving an heir to the throne. The Commission carefully analysed the evidence relating to the customary law practised by amaMpondo at the time and how it was applied in order to try and resolve the dispute regarding the successor to the kingship after Mandlonke died without leaving an heir. Its findings were based on that analysis. Therefore, apart from genealogy, the Commission analysed how amaMpondo resorted to ukungena and isifingo in order to raise seed in Mandlonke’s house. It concluded that Zanozuko was a descendant of those customs.


Findings: Regarding the process followed by the Commission, there is no complaint that it was unfair. No objections were raised at the time until it was finalised. There was no prescribed procedure with which the Commission was required to comply in conducting the investigation. There is also no evidence that the Commission considered irrelevant factors or did not consider factors it had to consider. There is no justification for second guessing the assertion by the Acting Chairperson that some of the research collected during the first phase was used, as well as the expertise of the panel members and their own research. In fact, it appears through their reference to the Appellate Division and Govan Mbeki and Poto’s books that they did not confine themselves to the evidence of the witnesses. This was a review, not an appeal. So long as the Commission’s decision is rational and does not suffer from a review ground set out in section 6(2) of Promotion of Administrative Justice Act 3 of 2000, a court may not intervene. The court does not find a basis to find that the Commission committed an error in law or in fact. There is thus no basis to review the findings of the Commission.


Order: The appeal is upheld and the order of the Supreme Court of Appeal is substituted with one dismissing the appeal.

TSHIQI J (unanimous)


* Sigcau v President of RSA [2013] ZACC 18 and Sigcau v Minister of CoGTA [2018] ZACC 28.

President of RSA v Sigcau [2024] ZACC 21

3 October 2024

TSHIQI J

CUSTOMARY – Traditional leadership – New headman or headwoman – Authority to identity – Dispute as to who fulfils attributes of royal family – Whether Rambuda Royal Family or Tshibvumo Royal Family is entitled to identify headman – Application to Premier for recognition – Premier did not exercise discretion in lawful manner – Premier must refer matter to provincial house of traditional leaders and relevant local house of traditional leaders for their recommendations – Limpopo Traditional Leadership and Institutions Act 6 of 2005, s 12(2).

Facts: Tshibvumo Village is a settlement in the Vhembe District, Limpopo. The village has been under the traditional leadership of the Rambuda Royal Family for the past several decades. Ms Singo was appointed as the headwoman of the Tshibvumo Village from 1982 until her death in 2014. After her death, there was a vacancy for a headman/headwoman in Tshibvumo Village. Two successors were purportedly identified. Mr Rambuda was identified by the Rambuda Royal Family and Mr Mavhungu by the Tshibvumo Royal Family. The Rambuda Royal Family is that of the senior traditional leader, while the Tshibvumo Royal Family is purported to be that of the headmanship/headwomanship. These “royal families” are in dispute but are both under the governance of the Rambuda Traditional Council. When the Tshibvumo Royal Family selected Mr Mavhungu as successor, the resolution was communicated to the Rambuda Traditional Council. Chief Avhatendi refused to acknowledge the identification and instead made an application to the Premier for the recognition of Mr Rambuda as the former headwoman’s successor, giving rise to a dispute between the two families.


Appeal: The High Court reviewed and set aside the decision of the Premier, in terms of which Mr Rambuda was recognised as headman of the Tshibvumo Village. That court held that the Premier failed to exhaust “an internal remedy” in terms of section 12(2) of the Limpopo Traditional Leadership and Institutions Act 6 of 2005. It remitted the matter to the Premier.


Discussion: The central enquiry in this case is whether the Rambuda Royal Family or the Tshibvumo Royal Family is entitled to identify the headman. Related to this enquiry is whether the High Court was correct in its finding that there were two royal families. This case also raises the proper interpretation of section 12(2) of the Limpopo Traditional Leadership Act. A dispute exists between the parties as to who fulfils the attributes of a royal family, with the applicants submitting that the High Court erred in its finding that there are two royal families. It is clear that the Premier did not exercise his discretion under section 12(2) in a lawful manner. The Premier should not slavishly follow the prescripts set out in section 12(2). He must satisfy himself that there is evidence or an allegation, that is not frivolously advanced, of non-compliance with customary law in the identification of a person before referring the dispute to the relevant bodies in terms of the Limpopo Traditional Leadership Act.


Findings: The Premier simply recognised Mr Rambuda on the basis of misinformation in the form of a memorandum received from the MEC which incorrectly interpreted a notice of withdrawal of the application by the respondents. He did not apply his mind to the matter but acted on the strength of the erroneous facts in the memorandum which rendered his decision reviewable. Before any decision is taken to recognise the headman or headwoman of the Tshibvumo Village, the dispute should be remitted to the Premier to act in accordance with the provisions of section 12(2)(a) of the Limpopo Traditional Leadership Act. The Premier must then refer the matter to the Provincial and Local House of Traditional Leaders, as well as the relevant local house of traditional leaders for their recommendations. As the party who recognised the person nominated, it is prudent that the Premier not be involved in the internal mechanism of the dispute. He cannot be a party to and a resolver of the dispute at the same time. Hence the direction to act in terms of section 12(2)(a) upon remittal.


Order: The appeal succeeds to the extent only that paragraph 32.2 of the High Court’s order is set aside and replaced with the following order:

“32.2 The matter is remitted to the Premier of the Limpopo Province with the following directions:

(a) the Premier must refer the matter to the provincial house of traditional leaders and the relevant local house of traditional leaders for their recommendations in terms of section 12(2)(a) of the Limpopo Traditional Leadership and Institutions Act 6 of 2005; and

(b) in all the further decision-making in the matter the provisions of section 2(1) of the Traditional and Khoi-San Leadership Act 3 of 2019 must be taken into account.”

There is no order as to costs.

MATHOPO J (unanimous)

Chief Avhatendi Ratshibvumo Rambuda v Tshibvumo Royal Family [2024] ZACC 15

17 July 2024

MATHOPO J

CUSTOMARY – Traditional leadership – Restoration of kingship claim report – Alleged non-compliance with mandate – Report and decision to decline claim – Legality review – Accepted recommendation made in October report – Declined Kingship claim – Considered and relied on October report and adopted recommendation of that report – Did so in circumstances where October report was unlawful – Offending functus officio doctrine – Decision reviewed and set aside.

Facts and issue: The applicants seek an order that the “Report on the Reconsideration for the Restoration of the Vatsonga Kingship Claim by Mkhari (October Report), be declared not to constitute a report in compliance with the mandate of the Ad-hoc Panel. Further, that the respondent’s decision declining the applicant’s Vatsonga Kingship claim, be declared to be unlawful and invalid, and be reviewed and set aside.


Discussion: When the Ad-hoc Panel issued the July report on 28 July 2021, the Ad-hoc Panel became functus officio. The powers that the Ad-hoc Panel had to investigate the Vatsonga Kingship claim and to make recommendations thereon, conferred on it by the order of 21 September 2020, were exhausted. This applies whether the criticism of the respondents concerning the lawfulness of the July report is correct or not. Neither those respondents nor anyone else has had the July report reviewed and set aside by a court. It follows that when the October report was issued, purportedly by the same Ad-hoc Panel, it acted unlawfully because having exhausted its powers regarding the Vatsonga Kingship claim, the same were spent and it had no further power to act. After considering the July report and the October report, the respondent decided to accept the recommendation that was made in the October report and thus declined the Vatsonga Kingship claim. In taking this decision the respondent considered and relied on the October report and adopted the recommendation of that report. The respondent did this in circumstances where the October report was unlawful.


Findings: The respondent’s decision depends on the validity of the October report, which is not valid. If the October report is set aside, the legal foundation the respondent’s decision falls away. It follows that the invalidity of the October report vitiates the validity of the respondent’s decision. The October report is reviewable in terms of the principle of legality, and that it falls to be reviewed and set aside for offending the functus officio doctrine, and accordingly for offending the principle of legality.


Order: The October report is declared not to constitute a report in compliance with the mandate of the Ad-Hoc Panel, is declared to be unlawful and invalid, and is reviewed and set aside. The fourth respondent’s decision declining the applicant’s Vatsonga Kingship claim, is declared to be unlawful and invalid, and is reviewed and set aside. The matter is remitted back to the fourth respondent to make a fresh decision.

Mkhari v Chairperson, Ad Hoc Panel: Vatsonga Kingship Claim [2024] ZAGPPHC 658

1 July 2024

WESLEY AJ

CUSTOMARY – Traditional leadership – Recognition of king – Failure to make a decision – Relief sought – Remittal to High Court – High Court dealt with merits – Functus officio – Incompetent relief sought – Bound by pleadings – Direct leave to appeal – Advanced no reason why Supreme Court of Appeal and Full Court should be bypassed and deprive this court of benefit of judgments of those courts – No reason to bypass lower courts – Not in the interests of justice – Application refused.

Facts and issue: This matter concerns the appointment of an acting King of the Vhavenda. Section 13(1) of the Traditional and Khoi-San Leadership Act provides for the identification of an acting King where the successor to the position of King or Queen has not been identified. This application follows upon protracted litigation between the parties about the appointment of a King or Queen of the Vhavenda. The Royal Family applies for leave to appeal directly to this court against the High Court’s judgment and order.


Discussion: The Royal Family identified Mr Mphephu-Ramabulana as the King of the Vhavenda. The President of the Republic of South Africa recognised Mr Mphephu-Ramabulana as the King of the Vhavenda. Ms Mphephu instituted review proceedings in the High Court to have the identification and recognition of Mr Mphephu Ramabulana as the King of the Vhavenda, reviewed and set aside. The High Court dismissed the application. On appeal, the Supreme Court of Appeal concluded that the decisions by the Royal Family and the President, respectively, to identify and recognise Mr Mphephu Ramabulana, the fourth respondent, as the King of the Vhavenda were unlawful, unconstitutional and invalid and fell to be set aside. None of the reasons advanced justify bypassing the lower courts in this case. The contention that the Supreme Court of Appeal has already made a pronouncement and can therefore not be approached in respect of its own order, is unfounded. The Supreme Court of Appeal has not pronounced on whether the Premier unjustifiably failed to decide whether he failed to recognise Mr Mavhungu David Mphephu as acting King.


Findings: The Royal Family has advanced no reason why the Supreme Court of Appeal and the Full Court should be bypassed and deprive this Court of the benefit of judgments of those courts. The relief sought by the Royal Family is also incompetent. Despite the conclusion by the High Court that the matter was not urgent, it rather curiously dealt with the merits of the application. It found that the matter was premature and dismissed the application.


Order: The application for leave to appeal directly to this court is refused.

Mphephu-Ramabulana Royal Family v Premier of Limpopo [2024] ZACC 12

21 June 2024

THERON J

CUSTOMARY – Traditional leadership – Zulu Royal House – Expenditure and source of funding – Interdicts sought against Ingonyama Trust and its Board – Such relief cannot be granted – Argument that applicants lack locus standi to seek relief is well founded – Requirement that applicants should be right persons to bring such proceedings is not met – Seek a personal advantage which no court can regard as legitimate – Application dismissed.

Facts and issue: The death of the late King Goodwill Zwelithini Ka Bhekuzulu has generated a rash of litigation over, or otherwise connected with, the issue as to who should succeed the late King. This is one such case. The applicants sought an order that, pending the final decision of the case heard in the Gauteng Division, the seventh respondent should not be entitled to occupy the position of trustee of the Ingonyama Trust.


Discussion: The Trust has made it clear that it regards the payment of the costs incurred by the seventh respondent whilst represented by Strauss Daly Attorneys as beyond the power and capacity of the Ingonyama Trust, and that the Board will not be paying any such costs. The Board’s view is that the payment of any such costs is unlawful extends equally to the amounts it has paid and continues to pay to Strauss Daly Attorneys. The sole viable target of the relief sought in paragraph 4 of Part A of the notice of motion would be the payments being made to Strauss Daly Attorneys. No other costs have been identified in the papers. Any interdict granted at this stage against the payment of such legal costs would have to flow from a decision that the contract the Board concluded with the attorneys is unlawful and invalid; or unenforceable because it is contrary to public policy. Such an order cannot be granted if Strauss Daly Attorneys are not afforded an opportunity to be heard. That firm has not been joined in these proceedings. One of the requirements for the grant of an interdict against future conduct is that the occurrence of the future harmful conduct should be “reasonably apprehended”. A well-grounded apprehension of harm is required. Save with regard to the costs discussed immediately above, such a reasonable apprehension has not been established. The same requirement, that of a well-grounded apprehension of harm, is also not satisfied in the case of the interdict sought against the payment of the personal expenses of the seventh respondent. The Board makes it clear that it agrees with the principle relied upon by the applicants, and that it will not be paying any such expenses.


Findings: The interdicts against the eighth and ninth respondents cannot be granted. Almost nothing is said in the founding papers to support the claim for an interdict against the fourth respondent, beyond the statement that it would be irrational for, inter alia, the fourth respondent to offer financial and administrative support to the seventh respondent in circumstances where his appointment will likely be found to be unlawful. The claim for an interim interdict against the fourth and fifth respondents is without merit.


Order: The application for relief under Part A of the notice of motion is dismissed.

Prince Mbonisi Bekithemba Ka Bhekuzulu v President of RSA [2024] ZAKZPHC 47

13 June 2024

OLSEN J

CUSTOMARY – Traditional leadership – Acting Kgosi – Duties and powers – Premier has not withdrawn applicant’s certificate – No distinction between duties of Acting Kgosi and that of Kgosi – Respondent does not have right to call any community meetings – Such right vests with Acting Kgosi or Kgosi – Clear right and reasonable apprehension of irreparable harm established – Interdict granted – North West Traditional Leadership and Governance Act 2 of 2005, ss 16 and 18.

Facts and issue: The applicants seek an interdict against the respondent from claiming to be, or purporting to be, a legitimate representative of the community. The interdict also seeks to prevent the respondents from convening community meetings to discuss developments and projects of the community. The applicant was issued with a Certificate of Recognition by the Premier of the North West Province as the lawful Acting Kgosi of the community.


Discussion: The respondent claims that the applicant is no longer the Acting Kgosi as the Certificate of Recognition has lapsed with the passing of the respondent’s father. The applicant has been duly appointed as the Acting Kgosi of the Traditional Community and Traditional Council. The Certificate of Recognition as issued by the Premier cemented that position and has not been withdrawn. The applicant approaches the court for an interdict to prevent the first respondent from purporting to be a community leader and to prevent the first respondent from calling community meetings. Section 18(1)(g) of the North West Traditional Leadership and Governance Act 2 of 2005 provides the right to call meetings of the traditional community, exclusively to the applicant. The respondent thus does not have the right to call any community meetings. The applicant has established a clear right to the relief sought.


Findings: When the respondent issues a notice in calling a community meeting, it appears on the face of it that the respondent, as some type of community leader, is calling the meeting. The Act does not make provision for any concerned community member to call for a community meeting. Since it is only the Acting Kgosi or Kgosi that is legislatively empowered to call a community meeting, the respondent’s conduct in calling a community meeting is disruptive to the duties of the Acting Kgosi or Kgosi. The applicant has established a clear right to the relief sought, a reasonable apprehension of irreparable harm in the event that the relief is not granted, and the applicant has successfully established that there is no alternative relief available to him.


Order: The respondent and any other person or group of people acting at their behest or as their agents, or on their own, individually or as a group in association with the respondents, are interdicted and restrained from claiming and/or purporting to be legitimate representatives of Bahurutshe boo Manyana Traditional Community.

Mangope v Mangope [2024] ZANWHC 126

14 May 2024

REID J

CUSTOMARY – Traditional leadership – Nomination of king or queen – Dispute as to which is legitimate royal family – At appeal hearing transpired that President had subsequently recognised one of the parties as king under s 9 – Neither party disclosed to either full court or in appeal record that President had formally recognised party as king – In circumstances, appeal moot – Traditional Leadership and Governance Framework Act 41 of 2003, s 9.

Facts and issue: The substance of this appeal concerns the kingship of AmaMpondomise and, more particularly, who has the right, as the royal family, to identify a person as king or queen, under the relevant provisions of the Traditional Leadership and Governance Framework Act 41 of 2003. It was this question that engaged the High Court as both the court of first instance and as a full court on appeal against the order of the full court. Following the full court’s dismissal of the appeal, special leave was granted to the appellants to appeal to this court.


Discussion: The failure on the part of the legal representatives to disclose the fact that Mr Matiwane had already been recognised as king prior to the hearing in the full court, and then to proceed with an appeal before this court, is disturbing. The President’s recognition was subject to a review application. This fact too was not disclosed to this court prior to the hearing of the appeal. Both parties were represented by their attorneys and senior counsel, a fact that makes the non-disclosure by the legal representatives even more egregious. The conduct of the attorneys and counsel must be severely censured. The question that arises is that if Mr Matiwane has already been recognised under the Act as the king by the President, what practical effect would there be in a further appeal against the declarator, and interdict granted by the High Court? The President exercised his power under s 9 and recognised Mr Matiwane as king. Once that happened, the whole point and practical need for the relief granted to the respondents fell away. The live issue between the parties, namely whether the Phahlo family required the protection provided by the interdict and declarator, was moot. It follows that it would serve no practical purpose to revisit whether the relief was correctly granted by way of a further appeal to this court. The appeal process was overtaken by events that occurred after the first High Court judgment. For whatever reason, neither party disclosed to either the full court or in the appeal record filed in this court that the President had formally recognised Mr Matiwane as king. This was a fact crucial to the exercise by this Court of its appellate power.


Findings and order: The appeal is dismissed.

Molosi v King Phahlo Royal Family [2024] ZASCA 73

10 May 2024

KEIGHTLEY AJA

CUSTOMARY – Traditional leadership – Disputed appointment – Investigation into appropriate appointment of Headsman – MEC acted within scope of his powers as delegated to him by Premier – MEC was authorised to investigate and determine candidate through court order – Applicants failed to identify which areas in record were procedurally unfair – Evidence presented did not establish any unfairness, bias, or perceived bias in administrative action proceedings – Application dismissed.

Facts and issue: This matter involves a history of litigation from a dispute over the headmanship of the AmaNdanya community. The royal family consisting of thirty-two members held a meeting where they identified the fourth respondent as the headman of the amaNdanya community. The Premier expressed his intention to recognise the fourth respondent as the headman. Aggrieved by the findings of the MEC, the applicants approached this court for an order declaring the first respondent’s act of appointing a panel to investigate the headmanship of Ndanya Administrative Area, Ngqeleni to be unlawful and of no legal force and effect whatsoever.


Discussion: The most significant principle of administrative law is that the exercise of the power must be authorised by the law. The question is whether the dispute which arose from the headmanship of the Ndanya Administrative Area was resolved by the Gibisela Traditional Council. One must also examine whether the MEC was authorised to act in accordance with section (36) (2) of the Act as he did. It was incumbent upon the MEC to investigate because: the dispute could not be resolved by the amaNdanya community, the traditional leaders, the king, and the Provincial House of Traditional leaders. It is common cause that the Provincial House of Traditional Leaders recused itself in the matter since it was already pending before the court; the issues relating to customary practice and the dispute on who should take over the headmanship were intertwined; and further, the MEC was authorised to investigate and determine a candidate through a legally binding document, the court order. The decision of the MEC fell within the ambit of reasonableness as required by the PAJA and the Constitution. The evidence presented did not establish any unfairness, bias, or perceived bias in the administrative action proceedings. Consequently, the applicants have failed to make up a case for the relief sought.


Findings and order: The application is dismissed.

Mkono v MEC for CoGTA, Eastern Cape [2024] ZAECMHC 22

30 April 2024

CENGANI-MBAKAZA AJ

CUSTOMARY – Traditional leadership – Procedural fairness – Claim to traditional leadership refused – Failure to comply with sections of the Framework Act – Ignorance and failure to consider customary law applicable – AmaQwathi custom was never considered – Unlawful procedure – Manner applicant’s claim was handled and decided was procedurally unfair – Decisions taken as a result cannot be sustained – Decision declared invalid – Reviewed and set aside.

Facts and issue: When Chief Henry Hinana left the family decided to nominate Pawula Hinana as the Chief of amaQwathi in Sterkspruit. However, the fourth respondent was installed as Chief of the community. It is the applicant’s contention that Pawula should have been appointed as Chief, as the surviving and younger brother of Chief Henry in terms of Customary law. In this review, the issues to be determined are whether proper procedure was followed in arriving at the decision to dismiss the applicant’s claim and whether the third respondent took a reviewable decision within the prescripts of PAJA in dismissing the applicant’s claim and appointing the fourth respondent as Senior Traditional Leader of amaQwathi.


Discussion: It is the applicant’s contention that the amaQwathi custom was never considered because if it indeed was considered and applied the fourth respondent ought not have been installed as the Chief of amaQwathi in Sterkspruit. This is not disputed. Section 6 (2) (b) of PAJA finds application in this matter if one considers the provisions of section 25 (3) of the Framework Act and as correctly submitted on behalf of the applicant. It is contended that the second and third respondent failed to apply the audi alteram partem rule, this is in respect of the interview held in the absence of the fourth respondent.


Findings: The way the applicant’s claim was handled and decided is procedurally unfair and the decisions taken as a result thereof cannot be sustained and falls to be reviewed and set aside. The visible failure to comply with sections 21, 22 and 25 of the Framework Act in as far as doing the investigation is concerned cannot be ignored. The ignorance and failure to consider the customary law applicable at the relevant time more specifically Chief Henry Hinana’s circumstances surrounding his migration is similar to that of Bebeza as per Garikayi report. The procedure followed by the third respondent in arriving at the decision was unlawful, unreasonable, and procedurally unfair.


Order: The first and second respondents’ decision is declared invalid and is reviewed and set aside. The third respondent’s decision is declared invalid and is therefore reviewed and set aside. The third respondent is directed to give effect to the Hinana Royal Family in terms of which the applicant was identified to be Senior Traditional Leader.

Hinana v Commission on Traditional Leadership [2024] ZAECMHC 14

26 March 2024

CUBUNGU J

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