CUSTOMARY

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.

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)

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.

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.

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.

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.

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.

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.

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.

Facts and issue: The applicant seeks relief by way of review. The first prayer is for the setting aside of the decision by the first and second respondent to abide the recommendations of the Injula Lwazi Research Institute. The second prayer is for a declaratory order that there was a “wrongful appointment and recognition of the third respondent Aas the iNkosi of the eMpangisweni community. The rest of the prayers follow, being the removal of the third respondent from his position as iNkosi and to recognize the applicant as such. 

Discussion: The specific grounds of review relied upon by the applicant are firstly that the report was biased and unreasonable. A consideration of the report as a whole does not support that argument. The applicant pointed out no specific instances demonstrating bias or an unreasonable approach by the ILRI and the ground has no merit. Secondly, the lack of evidence of the third respondent’s appointment and the ignoring of the meeting of 11 September. The ILRI had the documentary evidence referred to. The events happened about 30 years ago and nothing more is available. The available documents result in an unavoidable inference, that the third respondent was so appointed. The unjustifiable delay has now insulated that appointment. Thirdly, the action was procedurally unfair. The procedure required by section 21 of the KZN Act was followed and the investigation involved all parties, including the applicant. 

Findings: The first respondent acted lawfully in consequence of the complaint lodged by the applicant under section 21 of the KZN Act and the requirements of section 21(3) were complied with. There is no evidence justifying the applicants PAJA complaints. The applicant has not established merit in any of them.

Order: The application is dismissed. 

Facts and issue: The applicants seek to review and set aside certain decisions and proceedings of the Commission and the Premier which purport to approve the report and recommendations of the Commission. The applicants aver that the extension of the term of office of the Commission were not validly made, as they followed upon a proclamation that was non-existent, having been withdrawn in May 2018. Subsequent thereto, the proclamation was not published in the Government Gazette but the Provincial Gazette, and did not relate to the applicants. The applicants assail the proceedings conducted by the Commission as void ab initio and fall to be set aside.

Discussion: The Commission acted arbitrarily in the exercise of its powers, in the conduct of the proceedings, in its considerations in compiling the report, and in its recommendations contained in the report to the Premier. The termination of the proceedings as well as the report, and its approval by the Premier were not communicated to the applicants. For that reason the findings of the Commission are susceptible to be set aside on the ground of procedural impropriety. The domino effect of the setting aside of the findings and recommendations of the Commission is that their approval by the Premier was premature and cannot stand. The recommendations were based on a flawed report which was marred by irregularities as stated above. The effect thereof is that the Commission did not discharge its mandate. 

Findings and order: The report of the first respondent and the recommendations contained therein, are reviewed and set aside. The decision of the second respondent based on and approving the report by the first respondent and the recommendations thereto, is reviewed and set aside. 

Facts and issue: Application pertaining to the leadership of the fifth respondent. The applicants seek the review and setting aside of the respondents’ failure to decide an application for the removal of the sixth respondent as acting traditional leader. They also seek recognition of the first applicant as its senior traditional leader, and the review and setting aside of the respondents’ refusal to grant such recognition.

Discussion: It is not at all clear that either the Mfanta Royal Family or the Hala Traditional Council authorised these proceedings. There is, moreover, no indication that the applicant has exhausted the internal remedies available to him in accordance with the applicable legal framework. It is the first applicant’s procedural delay, however, that presents an insurmountable hurdle to the granting of the relief that he seeks. That such delay was unreasonable is beyond dispute. The court is not prepared to condone the delay. The application must be rejected. 

Findings and order: The application is dismissed.