Congress of Traditional Leaders of South Africa v Speaker of the National Assembly and Others (2474/16) [2016] ZAWCHC 206; [2017] 2 All SA 463 (WCC) (23 November 2016)

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[2016] ZAWCHC 206
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Congress of Traditional Leaders of South Africa v Speaker of the National Assembly and Others (2474/16) [2016] ZAWCHC 206; [2017] 2 All SA 463 (WCC) (23 November 2016)

Republic of South Africa
In the High Court of
South Africa
(Western Cape Division,
Cape Town)
[REPORTABLE]
Case
No:   2474/16
In
the matter between:
CONGRESS
OF TRADITIONAL LEADERS
OF
SOUTH
AFRICA
Applicant
and
SPEAKER
OF THE NATIONAL
ASSEMBLY
First
Respondent
PARLIAMENT
OF THE REPUBLIC OF
SOUTH
AFRICA
Second
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Third
Respondent
MINISTER
OF CO-OPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS
Fourth
Respondent
NATIONAL
PROSECUTING
AUTHORITY
Fifth
Respondent
Matter
Heard on:
17 and 18 August
2016
Judgment
delivered on:       23 November 2016
JUDGMENT
MANTAME,
J
A
INTRODUCTION
[1]
Applicant brought an application seeking numerous prayers before this
Court in the following; an interdict against the fourth
respondent or
any relevant executive authority under the Constitution of the
Republic of South Africa Act 108 of 1996, (“
the
Constitution
”), from taking steps under
Section 10
of the
Traditional Leadership and Governance Framework Act 41 of 2003
to
cause the removal of His Majesty King Dalindyebo (“
the
King
”) of the AbaThembu nation; declaring that the
Parliament of the Republic of South Africa has failed in its
constitutional
duty in terms of
section 212(2)
of the of the
Constitution to “deal with matters relating to traditional
leadership, the role of traditional leaders, customary
law and the
customs of communities observing a system of customary law” in
that it has not passed legislation dealing with
the status and powers
of traditional authorities and their jurisdiction over traditional
courts;  declaring that the Parliament
of the Republic of South
Africa has violated the constitutional rights of the traditional
leaders guaranteed in terms of section
9(1) of the Constitution and
the equal protection and benefit of the law, in that they do not
enjoy judicial immunity from criminal
and civil liability arising
from their decisions in the traditional courts; declaring that the
Parliament of the Republic of South
Africa has violated the
constitutional rights of the traditional communities guaranteed in
terms of section 34 of the Constitution
to have any dispute that can
be resolved by the application of the law decided in a fair public
hearing before a traditional court,
in accordance with customary law.
[2]
In addition a declaration is sought that the decision of the National
Director of Public Prosecutions to prosecute His Majesty,
King
Buyelekhaya Dalindyebo for exercising his civil and criminal
jurisdiction, violated section 211(1) of the Constitution in
that it
violated the principle of judicial immunity extended to traditional
leaders when they exercise their judicial power; declaring
that the
decision of the National Director of Public Prosecutions to prosecute
His Majesty, King Buyelekhaya Dalindyebo violated
section 10 of the
Constitution which guarantees the right to dignity.  Applicant
also seeks to review and set the decision
of the National Director of
Public Prosecutions to prosecute His Majesty, King Buyelekhaya
Dalindyebo on the ground that the actions
of the King were not
offences in terms of the Criminal Procedure Act, read together with
the Transkei Penal Code and directing
the Parliament of the Republic
of South Africa to pass appropriate legislation in terms of section
212(2) of the Constitution dealing
with the status of traditional
courts and the criminal jurisdiction of traditional leaders, within a
period of thirty six (36)
months from the date of the order of this
Court.
[3]
Mr Masuku and Ms Long appeared for the applicant, Mr Bokaba SC and Ms
Mangcu-Lockwood appeared for first and second respondents
and Mr
Arendse SC, Ms Mayosi and Ms Mbangeni appeared for third, fourth and
fifth respondents.
B
BACKGROUND
[4]
Applicant, the Congress of Traditional Leaders of South Africa
(“
Contralesa
”
)
was formed in 1987 by some traditional leaders of the erstwhile
homeland of Kwa Ndebele under the auspices of the United Democratic

Movement (“
UDM
”
)
with the material and political support of the African Nation
Congress (“
ANC
”
).
The purpose of its formation was to resist the apartheid programme of
homeland – style independence.  Since
it was part of the
mass democratic movement, it continued its relationship with the ANC,
up until after the unbanning of political
organisations.  Their
relations deteriorated when the ANC failed to support the
participation of traditional leaders, or Contralesa,
in CODESA.
After some negotiations, the traditional leaders participated in the
drafting of the Interim Constitution and
to some extent the Final
Constitution (“
The
Constitution of the Republic of South Africa Act, 108 of 1996
”
)
– See
www.contralesa.org
.
It appears that the objective of applicant has broadened, as
currently, amongst others, it now operates as a voluntary
organisation which aims to protect, reinstate and promote the
institution of traditional leadership, its traditional status and

bonding function in the communities and the nation.
C
SUMMARY OF FACTS
[5]
Applicant contends that it was authorised to bring these proceedings
before this Court by its National Executive Committee on
27 January
2016.  As its aim is to re-instate, protect, organise and
promote the institution of traditional leaders, a number
of
traditional leaders belonging to the applicant support this
application.
[6]
The main trigger for Contralesa to bring these proceedings before
this Court is the fear and anxiety caused to traditional leaders
of
South Africa and their communities by the arrest, criminal charges,
trial, conviction and sentencing of His Majesty, King Dalindyebo
of
the AbaThembu nation.  In the eyes of traditional leaders, the
whole criminal trial resulting in the conviction and sentence
of the
King meant that traditional leaders do not enjoy immunity from civil
and criminal liability for applying customary law in
the traditional
courts.  When the High Court in Mthatha convicted the King, it
did not address the matter in the context of
sections 211 and 212 of
the Constitution more particularly section 211(3) of the Constitution
that makes it mandatory for the Courts
to apply customary law when
that law is applicable, subject to the Constitution and any
legislation that specifically deals with
customary law.
Further, the High Court did not deal with the question of immunity.
Furthermore, the failure of Parliament
to pass appropriate
legislation in accordance with sections 211 and 212 of the
Constitution has undermined their constitutional
rights, as a
consequence of which traditional leaders are not able to discharge
their judicial functions without fear, favour and
prejudice.
This issue, without doubt, appeared central to these proceedings.
[7]
In addition to the claim for judicial immunity, Controlesa seeks to
vindicate its constitutional rights, that is, section 9,
the right to
equality; section 10, the right to dignity; Section 30, the right to
use the language and to participate in the cultural
life of their
choice (this relief was never sought in the applicants notice of
motion); and Section 34, the right to have any dispute
that can be
resolved by the application of law and decided in a fair public
hearing before Court.
[8]
According to applicant, the King was charged with having committed
certain criminal offences in 1995.  On 21 October 2009,
the King
was convicted on charges of culpable homicide; three counts of arson;
three counts of assault with intent to do grievous
bodily harm;
defeating the ends of justice and kidnapping.  He was sentenced
to fifteen (15) years direct imprisonment.
The matter was taken
on appeal, whereafter the Supreme Court of Appeal set aside some of
the convictions and sentences and his
term of imprisonment was
reduced to twelve (12) years.  A further appeal to the
Constitutional Court was then dismissed.
[9]
Traditional leaders, now take issue with the fact that they may face
criminal charges pursuant to the execution of their judicial
duties.
They claim this happened to the King.  Their heightened fear is
that their rights to have disputes resolved
in traditional Courts in
accordance with customary law has been subverted by the
criminalization of the King’s actions.
In dispensing
justice in traditional courts on a daily basis, the traditional
leaders never felt that the system is criminally
deficient.  The
fact that traditional leaders can be criminally or civilly charged
for decisions taken at traditional courts
is inconsistent with the
principle that recognizes the status, role and functions of
traditional leaders.
[10]
According to applicant, the Constitution requires that Parliament
specifically grant protection to traditional leaders in legislation,

so as to ensure the independence of traditional leaders and their
courts.  The principle of judicial immunity that applies
to
other members of the judiciary, i.e. magistrates and judges, must
apply with equal force and effect to members of the judiciary

presiding in traditional courts.  The prosecution and conviction
of the King for carrying out his traditional leadership role
simply
means that traditional leaders do not enjoy the same judicial
immunity that magistrates and judges enjoy.  This is
unfair
discrimination and a violation of section 9(1) of the Constitution.
D
ARGUMENTS PRESENTED BY THE PARTIES IN COURT
[11]
Central to applicant’s submissions was that Parliament has
failed to comply with its obligations in terms of section
212(2) of
the Constitution by not granting traditional leaders judicial
immunity from criminal and civil liability for the decisions
taken
during their performance of judicial functions in traditional
courts.  Parliament has violated their constitutional
rights in
terms of sections 9, 10 and 30 and 34 of the Constitution.  As a
result, traditional leaders do not enjoy the same
judicial immunity
as magistrates and judges.  In order for this situation to be
remedied, Parliament must “
pass appropriate legislation in
terms of section 212(2) of the Constitution dealing with the status
of traditional Courts and the
Criminal jurisdiction of traditional
leaders
.”  Further, that legislation should grant them
immunity when they commit misconduct in the performance of their
judicial
functions.
[12]
It was argued in no uncertain terms that the spark of these
proceedings is the conviction and sentence of the King, which caused

fear or distress amongst other traditional leaders.
[13]
First and second respondent opposed the granting of the relief sought
by applicant on the basis that applicant seeks to undo
and reverse
the findings of the High Court, Mthatha, Supreme Court of Appeal and
the Constitutional Court on the conviction and
sentencing of the
King.  It was pointed out that,
first
,
there is
no obligation
imposed on Parliament by section 212 of the Constitution
to pass legislation as contended by applicant;
second
,
pursuant to the provision of section 212 of the Constitution,
Parliament has enacted the Traditional Leadership and Governance

Framework Act 41 of 2003 (“
the
Traditional Leadership Act
”
) which
provides for the institution, status and role of traditional
leadership in accordance with customary law.  For this
reason,
Parliament cannot be said to have failed to discharge its obligation
in terms of section 212 of the Constitution;
third
,
to the extent that Parliament may not have fulfilled its obligations
as contended by applicant and in accordance with the principle
of
subsidiarity, the applicant must challenge the constitutionality of
the Traditional Leadership Act and not seek to compel Parliament
to
legislate in the manner preferred by the applicants;
fourth
,
the relief sought by the applicant would amount to interference with
the principle of separation of powers, and
last
,
the claims of discrimination made by the applicant are not only
unsubstantiated but are unfounded both on the facts and in law.
[14]
First and second respondents submitted that in order for this Court
to conclude that there is a
lacuna
in the law dealing with the status, role and function of
traditional leaders, proper interpretation of sections 211 and 212 of
the
Constitution must be employed.
[15]
Mr Bokaba SC for first and second respondent argued that the
institution, status and role of traditional leadership according
to
customary law are dealt with under sections 211 and 212 of the
Constitution.  On a proper reading and construction of these

provisions, there is no obligation imposed on Parliament to pass the
particular legislation so advocated by applicant.  The
language
of section 212(1) is framed in permissive, and not in obligatory,
terms.  Our Courts have made a clear distinction
between
provisions that impose an obligation and others that do not do so.
Section 212(1) merely enables Parliament to enact
legislation that
provides a role for traditional leadership as an institution.
Any such legislation is subject to the Constitution.
The
absence of legislation dealing or seeking to grant judicial immunity
to traditional leaders for conduct not countenanced by
the
Constitution, as pleaded by the applicant, cannot amount to failure
by Parliament to discharge any obligation in terms of section
212(1).
[16]
It was first and second respondents’ submission that even on a
generous or widest meaning; section 212 does not require
Parliament
to pass legislation granting immunity to traditional leaders or to
pass legislation dealing with the status of traditional
leaders when
they exercise judicial functions.  The only legislation
specified under section 212, and which Parliament is
permitted, as
opposed to obliged, to pass is legislation that provides for a role
for traditional leadership as an institution
and nothing more than
that - See
My Vote Countes NPC v Speaker of the National
Assembly and Others 2016(1) SA 132 (CC) at para [28] and [30].
[17]
First and Second respondents further contended that it is both
factually and legally incorrect for the applicant to claim that

Parliament has failed to pass any legislation pursuant to the
provisions of section 212 of the Constitution.  For instance,

the roles and functions of traditional leadership are dealt with in
Chapter 5 of the Traditional Leadership Act, and thus giving
effect
to section 212 of the Constitution.
[18]
Much emphasis was made to the effect that it is only in the absence
of legislation that applicant may rely on section 212 not
in the
instant case – See
My Vote Counts
(
supra
)
at para [160] –
“
Circumstances
in which the principle of subsidiarity applies and the need for it
[160]
Contrary to the
suggestion in the minority judgment that our insistence on compliance
with the principle puts form ahead of substance,
this principle plays
an important role.  The minority judgment correctly identifies
the ‘interrelated reasons from which
the notion of subsidiarity
springs’.  First, allowing a litigant to rely directly on
a fundamental right contained in
the Constitution, rather than on
legislation enacted in terms of the Constitution to give effect to
that right, would defeat the
purpose of the Constitution in requiring
the right to be given effect by means of national legislation.
Second, comity between
the arms of government enjoins courts to
respect the efforts of other arms of government in fulfilling
constitutional rights.
Third, ‘allowing reliance directly
on constitutional rights, in defiance of their statutory embodiment,
would encourage the
development of two parallel systems of law.”
[19]
It was also contented that applicant is not seeking relief to
increase the slow pace of the conclusion of the Traditional Courts

Bill (“
the Bill
”) that is before Parliament; it
only registered its complaint on the delay in its processing.
Perhaps applicant was
well advised in not seeking relief on the Bill,
as the foundation of this application is the conviction and
sentencing of the King.
In any event, that Bill does not
address the issues applicant sought relief on.
[20]
It was argued further that applicant has failed to challenge the
legislation giving effect to section 212(1) of the Constitution,

because it recognized that Parliament has enacted the Traditional
Leadership Act.  Applicant only pointed out the legislative

deficiencies, either in the Traditional Leadership Act, or at all in
that there is no mechanism for dealing with judicial misconduct

involving traditional leaders especially when they exercise judicial
authority.  According to first and second respondent,
this
assertion cannot be correct, as the Courts have recognized in the
clearest of terms that the Traditional  Leadership
Act is the
legislation that was enacted in pursuance of the imperative contained
in section 212(1) of the Constitution and that
the Traditional
Leadership Act provides the necessary framework envisaged in section
212(1) – See
Matiwane v President of the Republic of
South Africa and Others
[2014] 2 All SA 419
(ECM), at paras [6] to
[8]; Mmuthi Kgosietsile Pilane & Another v Nyalala Pilane and
Another Case No. CCT 46/12
[2013] ZA CC 3
, at para [33]; Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes and
Claims
2015 (3) BCLR 268
(CC), at para [15]
.
[21]
In light of the fact that applicant has identified a deficiency in
the legislation that was enacted to give effect to section
212(1),
can it be said that Parliament has failed to discharge its obligation
in terms of section 212(1) of the Constitution, and
demand that
Parliament enact a different piece of legislation?  It was
Parliament’s submission that when Parliament
has passed
legislation pursuant to a particular provision of the Constitution, a
party is not permitted to rely directly on an
obligation imposed on
Parliament to pass legislation pursuant to that provision.  A
party must challenge the validity of the
legislation enacted pursuant
to that particular provision of the Constitution.  In
My
Vote Counts
(
supra
)
, the
subsidiarity principle dictates that:-
“
[53] …
a
litigant cannot directly invoke the Constitution to extract a right
he or she seeks to enforce without first relying on or attacking
the
constitutionality of, legislation enacted to give effect to that
right.  This is the form of constitutional subsidiarity

Parliament invokes here.  Once legislation to fulfil a
constitutional right exists, the Constitution’s embodiment of

that right is no longer the prime mechanism for its enforcement.
The legislation is primary.  The right in the Constitution
plays
only a subsidiary or supporting role.
”
[22]
If the charge and complaint by applicant is that there is a
deficiency or inadequacy in the Traditional Leadership Act to deal

with misconduct matters involving traditional leaders when exercising
judicial authority, it follows that the proper recourse is
to
challenge the constitutional validity of this piece of legislation
enacted to give effect to section 212(1) of the Constitution.
Since
there is no constitutional challenge to the Traditional Leadership
Act which gives effect to Section 212(1), applicant cannot
rely
directly, on or invoke section 212(1).
[23]
Again, it was submitted that by not passing legislation and granting
immunity to traditional leaders when they exercise judicial

functions, Parliament has unfairly discriminated against traditional
leaders, and that this constitutes a violation in terms of
section
9(1) of the Constitution.  First and second respondents
contended that this claim only serves to highlight the disjointed

nature of this application.  This claim is terse, veiled, vague
and unsubstantiated.  Thus applicant has not pointed
out any
specific legislation that it claims gives magistrates and judges
immunity for which it seeks, equality with magistrates
or judges, and
or the passing of such appropriate legislation giving immunity to
traditional leaders.  The claim for the infringement
of
constitutional rights of traditional leaders ought to be clear and
forthright, not only clearly identifying the alleged offending

conduct or provisions and the constitutional rights that have been
infringed by Parliament, but also demonstrating, in the clearest

possible language the nature and extent of the alleged infringement –
See
Phillips and Others v National Director of Public
Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC) at para
[43]
; Minister of Safety
and Security v Sekhoto
2011 (5) SA 367
(SCA) at para [49]
.
A complainant who invokes the equality clause to attack a legislative
provision or executive conduct on the ground that
it differentiates
between people or categories of people in a manner that amounts to
unequal treatment or unfair discrimination
must establish the
following:-
first
, whether the respondents’ legislation
or policy differentiates between people or categories of people –
See
Mbana v Shepstone & Wylie
2015 (6) BCLR 693
(CC)
at paras [26], [27], [35] and [36]; Harksen Lane No and Others
[1997] ZACC 12
;
1998
(1) SA 300
(CC) at para
[54]
,
second
, whether that
differentiation is unfair,
last
, the complainant bears the
onus of proving that conduct complained of is not rational, it
amounts to discrimination and that discrimination
is unfair.
First and second responded submitted that applicant’s claim of
discrimination hopelessly fails this test.
[24]
It was applicant’s contention that their claim for judicial
immunity is based on common law and not upon a particular
provision
in a particular legislation passed by Parliament.  So in their
own words, there is no legislation passed by Parliament
granting
judicial immunity to magistrates and judges that effectively excludes
traditional leaders.  If that is so it can
never be said that
there is a differentiation by Parliament between judges and
magistrates on the one hand, and the traditional
leaders on the
other.
[25]
Regarding the Traditional Courts Bill, first and second respondents
argued that there is no connection between matters covered
in the
Bill and the complaints raised and the relief sought by the
applicant.  The Bill does not address the issue of judicial

immunity for traditional leaders who exercise judicial functions, nor
does the Bill seek to legitimize the unconstitutional conduct
of
traditional leaders who exercise judicial functions such as King
Dalindyebo for which he was charged, convicted and sentenced.

In any event, it was conceded by applicant that no piece of
legislation, including the Bill will countenance the type of conduct

for which King Dalindyebo was convicted of and sentenced.
Besides, the complaint raised by the applicant that the processing
of
the Bill has been delayed tremendously cannot be determined by this
Court. The power to determine what process ought to be followed
falls
within the constitutional domain of the national assembly, and it is
not for the Court to dictate to the National Assembly
how it should
go about regulating its own business – See
Oriani-Ambrosini
v Sisulu, Speaker of National Assembly 2012(6) SA 588 (CC) at paras
[54] and [84]
– See also
My Vote Counts
(
supra
) at para [156] –
“
[156]
Despite its protestation to the contrary, what
the applicant wants is but a thinly veiled attempt at prescribing to
Parliament to
legislate in a particular manner.  By what dint of
right can the applicant do so?  None, in the present
circumstances.
That attempt impermissibly trenches on
Parliament’s terrain; and that is proscribed by the doctrine of
separation of powers.
”
[26]
It was pointed out by first and second respondents that applicant’s
ultimate quest in this application is nothing other
than to have the
conviction and sentence of the King on charges of unconstitutional
conduct set aside.  In essence, applicant
seeks to bypass the
Traditional Leadership Act which is the legislation that was enacted
to give effect to section 212 of the Constitution,
and to order
Parliament to enact the specific legislation sought by the applicant,
and that will trench upon the doctrine of separation
of powers.
Applicant may not prescribe to Parliament to enact a particular
legislation that is not contemplated by the Constitution.
The
relief sought by the applicant is impermissible.  According to
Parliament, it has fulfilled all its obligations in terms
of section
212 of the Constitution.  It therefore follows that this
application should be dismissed with costs, including
costs of two
counsel.
[27]
Mr Arendse SC informed the Court that he received a notification from
Mr Masuku for the applicant on the eve of the hearing
that applicant
is no longer proceeding with the interdictory relief that was sought
against the fourth respondent.  No reasons
were put forward for
such withdrawal.  For the reason that such withdrawal came at
such a late stage, it was Mr Arendse SC’s
submission that a
cost order should be awarded to respondents in respect of the first
relief.  When this Court requested clarity
from Mr Masuku as to
which other prayers was the applicant abandoning as no submissions
were made by him on all prayers.
Mr Masuku responded that
applicant was not abandoning any prayers, and that his instructions
were to proceed with all prayers in
the notice of motion.
[28]
No relief is sought against third respondent.  Be that as it
may, third respondent felt obliged to make submissions before
this
Court, as the Department led by the third respondent is responsible
for, and involved in the research and promotion of legislation,

including the legislation complained about by the applicant, that is,
dealing with the status and powers of traditional authorities
which
has a bearing on the administration of justice.  Also, third
respondent submitted that he has an interest in the relief
sought
against the fifth respondent in as much as it seeks to review and set
aside the decision of the fifth respondent as allegedly
in violation
of section 10 of the Constitution; on the grounds that the actions of
the King were not offences in terms of the Criminal
Procedure Act
read with the Transkei Penal Code; and that the decision to prosecute
the King by fifth respondent violates the provisions
of section
211(1) of the Constitution to the extent that it violated the
principle of judicial immunity extended to traditional
leaders in the
exercise of their judicial power.
[29]
It was argued that legal proceedings can be stayed if - it can be
shown that the point at issue has already been adjudicated
upon.
That is the fundamental doctrine of
res judicata
.  It is
common cause that the King has been criminally prosecuted by the High
Court Mthatha, the Supreme Court of Appeal and
the Constitutional
Court where his application for leave to appeal was refused.  So
the King’s guilty finding and his
subsequent imprisonment
constitute
res judicata
.
[30]
Further, Mr Arendse SC submitted that the principle of judicial
immunity as claimed by applicant is misconceived, and is based
on a
misunderstanding and misinterpretation of what constitutes judicial
immunity.  The reasons for judicial immunity are
founded on
legal policy.  Historically, judges have been held immune
against actions for damages arising out of the discharge
of their
judicial functions, but there was an exception from this immunity:
when the Judge’s conduct was malicious or in
bad faith.
In the case of the King, it would not apply, having regard to the
serious and grave charges he was found guilty
of in various courts
and for which he was sentenced to an effective 12 year term of
imprisonment.  Besides, this judicial
immunity principle was
neither addressed in the 2008 Traditional Courts Bill nor in the
current Draft Bill.
[31]
The King was instrumental in inflicting corporal punishment upon the
victims, which is unconstitutional.  By doing so,
he brought the
law, the Courts and the entire administration of justice into
disrepute.  He acted as judge, jury, prosecutor
and enforcement
officer in his case.  The conduct of the King cannot be
countenanced in customary law.
[32]
According to third respondent, the Traditional Courts Bill was
initially introduced into the National Assembly in 2008.
It was
developed to replace sections 12 and 20 of the Black Administration
Act 38 of 1927, colonial-era provisions that still empowered
chiefs
and headman to determine civil disputes and try certain offences in
Traditional Courts.  It was apparent that no sufficient

consultation was initiated on this Bill.  Further public
hearings were therefore suspended by the Portfolio Committee until

further consultation had taken place.  The Bill lapsed when
Parliament dissolved prior to 2009 elections.  The Bill was

again introduced in the National Council of Provinces (“
NCOP
”)
in 2012 in order to address concerns raised previously.  The
Bill was referred to the Provincial Legislatures for
consultation, as
the purpose was to advance South Africa’s access to justice by
recognising the traditional justice system
in a way that upholds the
values of customary law, and our Constitution.
[33]
When the Bill was first introduced into Parliament in 2008, it was
met with a mountain of criticism that: - people who were
mostly
affected by it were excluded, whilst the traditional leaders have
been involved in the drafting process.  Rather than
the Bill
affirming the traditional process, it fundamentally altered the
customary law by centralising power in the hands of senior

traditional leaders and added powers that they did not traditionally
hold under customary law; it denied those appearing before

traditional courts legal representation; it did not promote the right
of access to traditional courts by women, either as parties
or
members; it created new inequalities including denying people right
to appeal to state courts and empowering traditional leaders
to
deprive people of customary law benefits or to sentence them to
community services which were perceived in some quarters as
forced
labour.  More objections were raised that the Bill did not allow
a person to “opt out of the traditional justice
system.”
It perpetuated the boundaries of the “
Bantustan”
system and it did not recognise the constitutional imperative of the
National Prosecuting Authority to institute and conduct prosecutions

in criminal matters.  It lapsed eventually.
[34]
Third respondent detailed the history of the delay in the Bill as
follows: - In July 2014, his Department embarked on a process
towards
proposing a new draft Bill and a task team was formed.  At a
meeting held on 11 August 2015, core principles which
would form the
basis of the new Bill were discussed by his Department and the
Department of Traditional Affairs.  Further
meetings followed on
30 November 2015 and 3 December 2015 respectively with all key
stakeholders, the applicant, the National House
of Traditional
Leaders and civil society.  Further consultative meeting
followed on 4 December 2015 when it was agreed that
a reference group
be established to take the process forward.  The reference group
met on 29 February 2016 and 22 April 2016
respectively.
[35]
Otherwise, it has been demonstrated that attempts have been made to
give effect to Parliament’s constitutional duties
in terms of
section 212(2) of the Constitution.  Applicant’s
application should be dismissed with costs including costs
of two
Counsel.
[36]
In addition, the submission advanced by applicant that the decision
of the fifth respondent to prosecute the King should be
reviewed and
set aside are without any legal or factual foundation.  They are
speculative and based on hearsay evidence.
No substantive
argument rooted in or based on customary law is, neither advanced,
nor expert evidence to that effect in support
of applicant’s
claim.  As has been submitted, the issue related to the
prosecution, conviction and sentence of the King
is
res judicata –
See
Molaudzi v S
2015 (8) BCLR 904
(CC) paras [14], [15],
[22] and [23]
where the legal doctrine of
res judicata
was captured.  The argument advanced by applicant is flawed, and
not consistent with the proper interpretation of the constitution.

The status of customary law in South Africa is constitutionally
entrenched.  The decision by the fifth respondent to prosecute

the King for exercising his civil and criminal jurisdiction cannot be
said to be in violation of section 211(1) of the Constitution.

Section 211 of the Constitution provides that the institution, status
and role of traditional leaders are subject to the Constitution.

Currently, the traditional authority observes the system of customary
law subject to the relevant legislation, in this regard,
the Black
Administration Act 38 of 1927.  The relevant sections do not
confer upon the King the criminal jurisdiction, traditional
authority
or judicial immunity as contended by the applicant.
[37]
It was therefore the fifth respondent’s contention that
applicant’s claims are unsubstantiated.  At the time
of
the occurrence of the incidents that led to his trial he was not
acting or ruling as a King.  According to his evidence
he was
merely implementing a community decision; he did not act as a tribal
authority in relation to any decision made; and that
he was not
involved in those offences.  This Court should therefore not
consider new or other grounds of defence that were
never raised at
trial or at the SCA.  Judging from his defence, it is clear that
when those offences were committed, at no
stage was the King
exercising any civil or criminal jurisdiction in a judicial
capacity.  If a violation of dignity has taken
place, it is the
King himself who violated the dignity of his victims.  There is
no indication on the record of proceedings
from the Mthatha High
Court that the King’s right to dignity was violated.
Applicant’s contention that the King
was charged in terms of
the Criminal Procedure Act is misplaced as the King was charged with
offences under the Transkei Penal
Code Act 9 of 1993.
[38]
In as far as the judicial immunity that is enjoyed by judicial
officers, and that has to be extended to traditional leaders
is
concerned, fifth respondent submitted, this was never raised by the
King at the High Court, it never formed grounds of appeal
or was ever
part of issues to be determined by the Supreme Court of Appeal.
This application has to be dismissed with costs
including two costs
of Counsel.
E.
ANALYSIS OF EVIDENCE AND THE APPLICABLE LEGISLATION
[39]
On considering the submissions that were put before this Court, it is
evident that the relief sought by applicant has reduced
dramatically,
though Mr Masuku failed to concede that applicant has abandoned some
prayers.  The issues have now crystalized
to the following:- (i)
judicial immunity, (ii) failure of Parliament with its obligations in
terms of sections 211 and 212 of the
Constitution to pass
legislation; (iii)  and the review and setting aside of the
fifth respondent’s decision to prosecute
the King.  These
were the three (3) issues that were substantially dealt with in these
proceedings.
(i)
Judicial Immunity
[40]
Judicial Immunity is a form of protection afforded to judicial
officers by public policy in the performance of their duties.

It protects the judiciary against legal action brought against them
for judicial actions, regardless of their incompetency, negligent

conduct or in violation of the status.  The purpose of judicial
immunity is to encourage judges to act in a fair and just
manner,
without regard to the possible extrinsic harms their acts may cause
outside of the scope of their judicial work.
This protection is
not at all absolute.  Judicial immunity does not protect judges
from decisions made while off the bench.
However, while the
judiciary may be immune from legal action involving their conduct or
actions, they may still be subject to criminal
prosecutions.  It
cannot be disputed that judicial immunity is not legislated in our
statutes.  It is public policy whose
origins can be traced back
from the English law.
[41]
Applicant seeks a declaratory order that the Parliament of the
Republic of South Africa has violated the constitutional rights
of
the traditional leaders guaranteed in terms of section 9(1) of the
Constitution to equality and the equal protection and benefit
of the
law, in that they do not enjoy judicial immunity from criminal and
civil liability arising from their decisions in the traditional

courts.
[42]
I turn to agree with first and second respondents’ submission
that applicant’s claim of discrimination in this
regard is
terse, veiled and unsubstantiated.  It is trite law that where a
complainant invokes the equality clause to attack
a legislative
provision or executive conduct on the ground that it differentiates
between people or categories of people in a manner
that amounts to an
unequal treatment or unfair discrimination, the approach to follow is
laid out in
Mbana and Harksen
(
supra
).
Applicant has failed dismally to establish a foundation on which such
discrimination is founded.
[43]
In law, context is everything.  It is common cause that the
spark or trigger of this application is the incarceration
of King
Dalindyebo.  If the genesis for the claim of judicial immunity
by traditional leaders is the King -
first
, the
question arises to whether the King was acting as King when these
offences were committed?  The answer is No.  At
his trial
in Mthatha High Court, he testified that he was not a King, at that
time of the commission of these offences his brother
Patrick
Dalindyebo was acting as a King.  He was deployed by the Africa
National Congress to the Eastern Cape Provincial Government
as a
Member of Parliament (“
MP
”).
Second
,
when these offences were committed, was the King acting as a judicial
officer?  The answer again is No.  The King’s

response in testimony was that he was carrying out the decision of
the community.
Third
, since he relinquished his
position as a King at that time, the Paramount Chief of Abathembu and
head of the regional authority
was his brother Patrick Dalindyebo.
The King did not act as Tribal Authority or Regional Authority at the
time of the commission
of the offences.  Patrick Dalindyebo, the
King’s brother acted in these capacities – See
S v
Buyelekhaya, Case No. 267/04 ECDM.
[44]
In order for judicial immunity discussion to be alive, the King
should have acted as a King and or judicial officer when these

offences were committed.  There should be some foundation laid
by the applicant, whether factual or legal that the King was

performing judicial functions.  In my opinion, there has not
been a linkage demonstrated for this judicial immunity discussion
to
ensue.
[45]
Besides, this judicial immunity defence was never invoked as a
defence at the Mthatha High Court or at the SCA.  I would

imagine that it was not necessary to raise such a defence.
During his cross-examination at the High Court Mthatha High Court,

the King said; “the assaults were not authorized by him; that
it did not constitute any form of punishment under Tribal Law
or
customary law; but that it constituted “
people’s
justice
.”  And by people (
sic
) … “
taking
the law into their own hands
…”  He said that
the injuries were and assaults were caused by the community who
assaulted them before he, the
accused, administered only three (3)
light lashes”. – See
S v Buyelekhaya Dalindyebo
(
supra
) para [158]
.  The
King even called this type of justice, “
Jungle Justice
.”
If that was the status of the King’s actions when these
offences were committed, other traditional leaders
can only be
fearful and their anxiety be raised if they themselves administer
“
people’s justice” or “jungle justice
.”
There could be no fear or panic caused if traditional leaders apply
punishment and sanction in terms of the customary
law guiding
principles, and within the confines of the Constitution.
Applicant has to take into account that the status and
role of
traditional leaders is constitutionally entrenched.  Hence,
their actions have to keep up with the rule of law and
constitution.
[46]
Traditional leaders and or the Kings are not above the law, more
especially in our constitutional democracy.  The King
testified
that he knew of the structure obtaining in his area of jurisdiction.
He was aware of the legislation governing
the traditional leaders and
all other officials resorting in those structures.  The civil
and criminal disputes are dealt
with from the lower levels, i.e. by
headmen, chiefs, tribal authority up until they reach the regional
authority, if all other
levels fail to resolve them.  The King
is the Head of the Regional Authority.  In the offences that he
was charged with,
this well-known traditional court process was not
followed despite his knowledge of his own structure.  There was
no sitting
of any traditional court which sanctioned the punishment
that the King meted out to his victims.
[47]
At this stage, the claim by the applicant for judicial immunity to
extend to traditional leaders has no factual foundation.
Though
it has always been denied by applicant’s counsel Mr Masuku that
this application was nothing other than a back-door
appeal by the
King to this Court – when asked by Davis J, if what would
happen, if this Court were to find that the King
should have enjoyed
judicial immunity at the High Court, Mthatha?  Mr Masuku
responded “
The King will walk tomorrow, my Lord
.”
That was rather an acquiescence that this application has to do with
the incarceration of the King, and intends to
reverse the findings of
the High Court, Supreme Court of Appeal and Constitutional Court.
[48]
It was applicant’s assertion that the threat of prosecuting
traditional leaders for their judicial decisions is a violation
of
the Constitution and can be cured by Parliament passing appropriate
legislation giving immunity to traditional leaders.
This
assertion by the applicant is rather peculiar in nature.  Even
though traditional leaders derive this judicial immunity
from the
magistrates and judges, they failed to point out to this Court the
authority in South African law - affording magistrates
and Judges
such immunity in order to equalise the discrimination complained
about.  I turn to agree with the submission by
the first and
second respondents that this is a disjointed application.
Judicial Immunity enjoyed by magistrates and judges
is not
legislated.  It therefore follows that this Court cannot
instruct Parliament, without more, to pass
[
a
]
legislation without any basis being laid by the applicant.
Besides it is not the business of the Court to trench on Parliaments

terrain and prescribes to Parliament how to legislate.  The
Courts should always be seen to respect the doctrine of separation
of
powers. – See
My Vote Counts
(
supra
)
at paragraph [156]
and other numerous
authorities to this effect.
[49]
In my opinion, if traditional courts perform their judicial functions
according to applicable customary legislation and more
importantly in
line with the Constitution, there would be no need for them to be
anxious, and fear prosecution.  The judicial
immunity will flow
to them automatically the way it is applicable to magistrates and
judges.  For the reasons stated above,
this relief fails.
(ii)
Failure of Parliament with its obligations in terms of sections
211 and 212 of the Constitution to pass legislation
[50]
It was applicant’s argument that in order to ensure that the
integrity of traditional leaders and traditional courts
are
preserved, Parliament has a constitutional obligation to pass laws
which give effect to the spirit and purport of traditional
leaders
and the courts they preside over.  Parliament has a
constitutional duty to pass legislation that protects the
constitutional
rights of citizens who operate under the customary law
system.  The failure of Parliament to pass appropriate
legislation
in accordance with sections 211 and 212 of the
Constitution has undermined these constitutional rights, as a
consequence of which
traditional leaders are not able to discharge
their judicial functions without fear, favour or prejudice.  The
High Court
in Mthatha when convicting King Dalindyebo, did not
address the matter in the context of sections 211 and 212 of the
Constitution,
particularly section 211(3) of the Constitution that
makes it mandatory for the Courts to apply customary law when that
law is
applicable, subject to the Constitution and any legislation
that specifically deals with customary law.
[51]
This assertion was vigorously opposed by Parliament.  Parliament
pointed out that,
first
, there is no obligation imposed
on Parliament by section 212 of the Constitution to pass a kind of
legislation contended by the
applicant;
second
,
pursuant to the provisions of section 212 of the Constitution,
Parliament has enacted the
Traditional Leadership and Governance
Framework Act 41 of 2003
, which provides for the institution, status
and role of traditional leadership in accordance with customary law.
For this
reason, Parliament cannot be held to have failed to
discharge, its obligation in terms of section 212 of the
Constitution;
third
, to the extent that Parliament may
not have fulfilled its obligations as contended by the applicant, and
in accordance with the
principle of subsidiarity, the applicant must
challenge the constitutionality of the Traditional Leadership Act and
not seek to
compel Parliament to legislate in the manner preferred by
the applicant;
fourth
, the order sought by the
applicant would amount to interference with the principle of
separation of powers; and the claims of discrimination
made by
applicant are not only unsubstantiated, but also unfounded on facts
and in law.
[52]
Sections 211 and 212 of the Constitution deal with traditional
leaders and it reads as follows:-
“
CHAPTER 12
Traditional Leaders
Recognition
211. (1) The
institution, status and role of traditional leadership,
according to customary
law, are recognised, subject to the Constitution.
(2) A traditional
authority that observes as system of customary law may function
subject to any applicable legislation and customs,
which includes
amendments to, or repeal of, that legislation or those customs.
(3) The courts must
apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically
deals with
customary law.
Role of traditional
leaders
212. (1) National
legislation may provide for a role for traditional
leadership as an
institution at local level on matters affecting local communities.
(2) To deal with
matters relating to traditional leadership, the role of traditional
leaders, customary law and the customs of communities
observing a
system of customary law –
(a) national or
provincial legislation may provide for the establishment of houses of
traditional leaders; and
(b) national
legislation may establish a council of traditional leaders
.”
It
was first and second respondents submission that applicant’s
interpretation of the provision of section 212 is wrong for
the
following reasons:
first
, the provision is permissive
and not obligatory;
second
, it requires Parliament to
pass legislation at local level on matters affecting local
communities;
third
, it requires national and provincial
legislation to provide for the establishment of house of traditional
leaders and that the
national legislation may establish a council of
traditional leaders.  These sections do not have anything to say
about traditional
courts and their status and or their judicial
role.  I agree fully with this interpretation.
[53]
Regrettably it seems applicant read the judgment of the High Court
superficially when it contended that the High Court, Mthatha

convicted the King without applying customary law when that law is
applicable, subject to the Constitution and any legislation
that
deals with customary law.  This contention by applicant is
incorrect as Alkema J in
S v Buyelekhaya
(
supra
)
in the background of his judgment states that:-
“
[3] ...
The accused derives his powers as Paramount
Chief from Statutes which date back to the old constitutional order
and which are still
operative in our new democratic constitutional
order.  His powers, duties and functions are regulated by the
Transkeian Authorities
Act No. 4 of 1965 (Transkei)
(
“
the
TAA Act
”
)
,
and his area of jurisdiction is regulated by
the Black Administration Act No. 38 of 1927, as amended (
“
the
BLA Act”) (sic)
.
…
[11]…
The
accused is charged not in terms of South African common law, but
under the Transkei Penal Code (Act 9 of 1983 Transkei) which,
for
mysterious reasons, has not yet been repealed and it remains
operative in the former geographic area of the Transkei.
The
constitutionality of the code and the practice to prosecute accused
persons under its terms are often questioned by the Judiciary
and
practitioners, but since this is not issue in this case I am called
upon, and will, decide the case under the Code.
”
Applicant
contended that the King was charged in terms of the Criminal
Procedure Act read with the Transkei Penal Code.  Judging
from
the extract of Alkema J’s judgment para [11] (
supra
),
which was not the case.  In fact the application of customary
law including the Transkei Penal Code, is evident throughout
the
judgment.  Further, there was no challenge to the
constitutionality of the Transkei Penal Code when the King was
charged
at the High Court, Mthatha.  It appears that this
challenge is only put before this Court for the first time in order
to bolster
applicant’s case.  Without condoning the
applicability of the old laws in the erstwhile Transkei jurisdiction,
it is
so that the Courts in that jurisdiction have to function with
what is applicable at the time, in the absence of any challenge and

repeal for constitutional alignment.  Applicant’s
submission that the High Court, Mthatha did not address the matter
in
the context of sections 211 and 212 and more especially section
211(3) of the Constitution is flawed.  It can be so that
the
High Court Mthatha did not mention these sections specifically.
Judging from the extracts I have referred to above, it
is clear that
the High Court Mthatha recognised the status and role of traditional
leaders in a constitutional democracy.
It could not have been
expected for this Court to go beyond what it was called to determine
at that particular time.
[54]
I agree with first and second respondent that there is no obligation
imposed on Parliament by section 212(1) of the Constitution
to pass
any legislation as envisaged by the applicant.  The Traditional
Leadership Act has already been passed by parliament
in fulfilment of
its duty to recognise the institution, status, role and functions of
traditional leadership according to customary
law.  That is
evident in Chapter 5, Sections 19 and 20 of the Traditional
Leadership Act.  Respondents correctly put
that Parliament’s
duty to fulfil its constitutional mandate in terms of Section 212(1)
was acknowledged fully by the Constitutional
Court in
Bapedi
Marota Mamone
(
supra
) at para [15] where it was
stated:-
“
As the
Constitution recognises traditional leadership institutions that were
established in terms of customary law only, Parliament
passed the
Traditional Leadership and Governance Framework Act (Framework
Act)
to regulate traditional leadership.  In passing the Framework
Act, Parliament was giving effect to Chapter 12 of the
Constitution.
One of the objects of the Act was to “restore the integrity and
legitimacy of the institution of traditional
leadership in line with
customary law and practices.  To that end, the Framework Act
established the Commission on Traditional
Leadership Disputes and
Claims, the first respondent in these proceedings
.”
[55]
Applicant did not dispute that the Traditional Leadership Act has
fulfilled this constitutional duty as submitted by the respondent,

hence in my view it did not challenge the constitutionality of the
same Act.  The absence of certain legislation that is envisaged

by applicant does not amount to failure by Parliament to discharge an
obligation in terms of section 212 of the Constitution.
In any
event, section 212(1) is permissive or lenient.  It is not
obligatory, rigid, instructive or authoritarian in nature.

Likewise, this Court is not empowered by that section to instruct
Parliament to enact certain legislation as contemplated by applicant.
[56]
Moreover, applicant contended that within the Traditional Leadership
Act, there is a legislative deficiency in that there is
no mechanism
in place for dealing with judicial misconduct involving traditional
leaders when they exercise judicial authority.
In my view, this
assertion amounts to nothing other than a mere complaint.  It is
trite law that a party is not permitted
to rely directly on an
obligation imposed on Parliament to pass legislation pursuant to that
provision of the constitution, where
parliament has already passed
such legislation in accordance with the same provision of the
Constitution.  A litigant should
challenge the validity of the
legislation enacted pursuant to that particular provision of the
Constitution.  That is referred
to as the constitutional
subsidiarity principle.  In
Mazibuko and Others v City of
Johannesburg and Others
2010 4 SA 1
(CC)
, it was held that a
litigant who seeks to assert his or her rights in terms of the
provisions of the Constitution should in the
first place base his or
her case on any legislation enacted to regulate the right and not on
a particular provision of the Constitution.
If the legislation
is for any reason wanting in its protection of a right in the
litigant’s view, then that legislation should
be challenged
constitutionally.  This principle has always been articulated in
numerous Constitutional Court judgments and
the most recent being the
My Vote Counts
(
supra
) at paragraph [20] of this
judgment.
[57]
The approach adopted by applicant, to say the least, is legally
impermissible if regard is had to these authorities.
Applicant,
in essence seeks to have Parliament legislate in a manner preferred
by it.  The judiciary should not be seen to
be interfering in
the processes of other branches of government unless mandated so by
the Constitution.  See paragraph [25]
above.
[58]
Applicant acknowledged that Parliament has recognized its
constitutional duty to pass the law dealing with the status and role

of traditional courts by processing the Traditional Courts Bill.
Regardless of such acknowledgment, there is no nexus between

applicant’s complaints and the outstanding Bill before
Parliament.  Be that as it may, there is no relief sought by
the
applicant on this Bill.  Applicant only or merely registered a
complaint of delay in its processing, nothing more and
nothing less.
Third respondent has, in any event, explained the reasons for its
delay.  Seemingly, the traditional leaders
are somehow to blame
for the delay, as concerns were raised about the traditional leader’s
conduct which is neither in line
with the applicable customary law,
nor with the Constitution.  It seems they need to put their
house in order before approaching
this Court with complaints.
First and second respondents have also explained the reasons for the
delay in processing the
Bill which tallies with third respondent’s
explanation.  It is not for this Court to direct Parliament what
to do.
In any event, the relief sought has nothing to do with
the Traditional Courts Bill that is before Parliament.  Whereas
it
makes perfect sense to align traditional and civil courts, it was
not an issue for determination before this Court.  This Court

was comforted by the fact that the Bill was in the process of being
introduced, with the hope that there would not be a delay in
this
instance.
[59]
Even if there was a proper case made by applicant, the relief sought
in this regard amounts to interference with the principle
of
separation of powers.  In any event, there is no merit in
applicant’s complaint.  This relief fails.
(iii)
The review and setting aside of the fifth respondent’s
decision to prosecute the King
[60]
Applicant contended that the decision of the fifth respondent to
prosecute the King for exercising his civil and criminal jurisdiction

violated section 211(1) of the Constitution of the Republic of South
Africa in that it violated the principle of judicial immunity

extended to traditional leaders when they exercise their judicial
power; it violates section 10 of the Constitution which guarantees

the right to dignity; and that the decision to prosecute the King
should be set aside on the ground that the actions of the King
were
no offences in terms of the Criminal Procedure Act read with the
Transkei Penal Code.
[61]
It is common cause that when the King committed those offences, he
was not exercising his civil and criminal jurisdiction as
a King nor
acted in any capacity as a Tribal Authority or Regional Authority.
Section 211(1) was never invoked as a defence
in the High Court,
Mthatha – See extract Alkema J’s judgment (
supra
).
Judicial Immunity cannot apply to a person who was not performing his
judicial functions.  Further, the King did not
raise a complaint
at the High Court, Mthatha that his right to dignity has been
violated in terms of section 10 of the Constitution.
This
argument as it were cannot hold.
[62]
The contention by the applicant that the King was charged in terms of
the Criminal Procedure Act read with the Transkei Penal
Code is
unfounded.  In fact, the King was charged with offences under
the Transkei Penal Code 9 of 1983 and not in terms of
the Criminal
Procedure Act.  Most unfortunately, it is the law applicable in
the former Transkei, despite the current constitutional
order.
[63]
This Court finds that the matter involving the prosecution of the
King is
res judicata
.  It cannot tolerate a situation
where there would be an endless litigation on the same case - same
issues involving the same
party coming through the back door.
The King has exhausted all legal avenues and his leave to appeal to
the Constitutional
Court was refused.  It is inevitable that
there should be some finality to this matter.
[64]
Be that as it may, even if applicant’s claim were
constitutionally legitimate, this Court does not have jurisdiction
to
review and set aside the decision of a Court of an equal status
sitting in another Province. Likewise, it does not have jurisdiction

to overturn the decision of the Supreme Court of Appeal.  This
prayer is impermissible and should therefore fail.
[65]
Having considered this application, it seems there was no foundation
laid by applicant both in facts and in law.  The
prosecution of
the application amounts to nothing other than a swaggering show of
courage on a shaky ground.  The application
was misconstrued or
wrongly planned, and as a result has no merit.  It is for these
reasons that it fails.
[66]
In the result, the following order is made:-
66.1 The application is
dismissed.
66.2 Applicant is ordered
to pay costs of first, second, third, .fourth and fifth respondents,
including the costs of each set of
counsel in these proceedings.
_______________________
MANTAME,
J
DAVIS
J
Introduction
[1]
I have had the considerable benefit of reading the
judgment of Hlophe JP and Mantame J.  Both judgments advance
compelling
reasons for the conclusion to which they arrive.  The
significant difference is that, whereas Mantame J dismissed the
entire
application brought by applicant, the learned Judge President
concluded that certain of the relief should be granted because the

Republic of South Africa Constitution Act 108 of 1996 (“the
Constitution”)imposes, in his view, a mandatory duty on

Parliament in terms of ss 211 and 212 read together with ss 34, 38
and 165 of the Constitution to pass specific legislation dealing
with
the administration of justice in traditional communities and a
consequent provision for judicial immunity to traditional leaders

when acting as judicial officers.
[2]
The reasons, which are compellingly advanced in the
judgment of Hlophe JP, justify the grant of declaratory order in
terms of which
the court would confirm Parliament’s mandatory
duty to recognise traditional leaders and thus pass legislation
specifically
giving effect to the constitutional rights of
traditional leaders and to their courts.
[3]
It is here where the difference between the two
judgments lies, because it is common cause that any order could not
grant judicial
immunity to the King of the AbaThembu Nation, His
Majesty Dalindyebo.  Such an order is not legally competent and
accordingly
this Court could not fashion an order which would disturb
the conviction and sentence of the King, the details of which are set

out in the judgment of Mantame J.
[4]
Given the differences of approach between the two
judgments, it is appropriate for me to set out the reasoning that I
adopt insofar
as the relief sought is concerned; that is whether
Parliament should be compelled to pass legislation specifically
dealing with
the status of traditional authorities and their right to
judicial immunity from civil and criminal liability for acts
performed
within traditional courts.   I agree fully with
Hlophe JP that, at present, traditional courts cannot be said to
operate
in the same fashion as other courts of the land; that is
within an established statutory framework which gives appropriate
recognition
to traditional leaders as  judicial officers.
This omission is most unfortunate in that it represents a failure
to
embrace customary law fully into the legal system of a democratic
South Africa
[5]
In
Shilubana and others v
Nwamitwa
2009 (2) 66 (CC) at para 42 Van der
Westhuizen J said:
‘
The status of
customary law in South Africa is constitutionally entrenched.
Section 211 of the Constitution provides
that the institution, status
and role of traditional leadership are recognised subject to the
Constitution.  It further states
that a traditional authority
that observes a system of customary law may function subject to
applicable legislation and customs,
including amendments to or repeal
of that legislation and those customs, and that courts must apply
customary law where it is applicable,
subject to the Constitution and
relevant legislation.’
[6]
In short, the courts have asserted that customary law
enjoys a status that demands equal respect, albeit that it must
accord with
the Constitution.  Customary law must be treated as
an integral part of the South African legal system representing an
independent
source of norms within the legal system.   In
Alexkor Ltd and another v Richtersveld
Community and others
2004 (5) SA 468
(CC) the
Court said at para 51:
‘
It is clear,
therefore, that the Constitution acknowledges the originality and
distinctiveness of indigenous law as an independent
source of norms
within the legal system.  At the same time the Constitution,
while giving force to indigenous law, makes it
clear that such law is
subject to the Constitution and has to be interpreted in the light of
its values.  Furthermore, like
the common law, indigenous law is
subject to any legislation, consistent with the Constitution, that
specifically deals with it.
In the result, indigenous law feeds
into, nourishes, fuses with and becomes part of the amalgam of South
African law.’
[7]
That customary law is by its nature a system which
involves constant evolution (save during the apartheid period when
its development
was frustrated and its rules and principles were
polluted by the racist practices of a cynical regime) is a critical
issue; the
other is the extent to which Parliament is under a legal
obligation to pass legislation which gives full and substantive
effect to customary law and its institutions as an integral part of a
South African legal system.  In the view of Hlophe JP,
ss 211
and 212 of the Constitution provide broad constitutional obligations
imposed upon Parliament to pass the necessary legislation
which would
give full recognition to traditional courts.  I fully agree with
the learned Judge President that far too much
time has passed without
relevant legislation having been adopted by Parliament.  It may
well be as he notes ‘had the
applicants not brought this
application Parliament may well have taken another 22 years to give
to a law specifically dealing with
the administration of justice
within the traditional communities’. I fully associate myself
with the judicial frustration
at the lack of legal transformation.
As to the importance thereof see, for example, Chuma Himonga ‘The
future
of living customary law in African legal systems and beyond
with special reference to South Africa in J Fenrich
et
al
(eds)
The future of
African Customary Law
(2011) at 31-57
[8]
But agreement on the vital importance of this area of
law still leaves the critical question open for determination, namely
whether
there is an obligation imposed upon Parliament to pass
legislation, which given the facts, has not yet occurred.
I
turn to deal with the relevant law.
Legal
Framework
[9]
Section 211 of the Constitution provides as follows:
‘
211.
Recognition
(1)
The
institution, status and role of traditional leadership according to
customary law, are recognised, subject to the Constitution.
(2)
A
traditional authority that observes a system of customary law may
function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of, that legislation or those
customs.
(3)
The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.’
Section
212 reads thus:
‘
212.   Role
of traditional leaders
(1)
National
legislation may provide for a role for traditional leadership as an
institution at local level on matters affecting local
communities.
(2)
To
deal with matter relating to traditional leadership, the role of
traditional leaders, customary law and the customs of communities

observing a system of customary law –
(a)
national
or provincial legislation may provide for the establishment of houses
of traditional leaders; and
(b)
national
legislation may establish a council of traditional leaders.’
[10]
It is significant that the wording of these sections is
couched in permissive and not mandatory terms.   By
contrast,
s 32 of the Constitution which provides that in as far as
the right to access to information is concerned, “national
legislation
must
be
enacted to give effect to this right… (my emphasis)   See
also s 9 (4) and s 33 (3) for a similar use of the
word ‘must’.
In short, it is not as if the word ‘may’ is used
throughout the constitutional text.
When the drafters of
the Constitution intended that Parliament have a clear obligation to
pass legislation the word ‘must’
was employed.
In the case of s 212, it is significant that the word ‘may’
was used.
[11]
But even if I am incorrect in this interpretation, the
Constitutional Court has provided a clear view of the role and status
of
the
Traditional Leadership and Governance Framework Act 41 of 2003
in the vindication of ss 211-212 of the Constitution.   In
this connection, Jafta J in
Bapedi Marota
Mamone v Commission on Traditional Leadership Disputes and Claims and
others
2015 (3) BCLR 268
(CC) said at para
15:
‘
As the
Constitution recognises traditional leadership institutions that were
established in terms of customary law only, Parliament
passed the
Traditional Leadership and Governance Framework Act (Framework
Act)
to regulate traditional leadership.  In passing the Framework
Act, Parliament was giving effect to Chapter 12 of the
Constitution.
One of the objects of the Act was to “restore the integrity and
legitimacy of the institution of traditional
leadership in line with
customary law and practices”.  To that end, the Framework
Act established the Commission on
Traditional Leadership Disputes and
Claims, the first respondent in these proceedings.’
[12]
To the application of this
dictum
to the present dispute Hlophe JP provides two
responses.  The first concerns draft legislation with which
Parliament is engaged.
The learned Judge President suggests
that Parliament was engaged in a “mandatory constitutional
exercise” when it sought
to pass the Traditional Courts Bill.
The object of this Bill is described in the Preamble to:
1.
affirm
the values of the traditional justice system, based on restorative
justice and reconciliation and to align them with the
Constitution;
2.
affirm
the role of the institution of traditional leadership;
3.
create
a uniform legislative framework, regulating the role and functions of
the institution of traditional leadership in the administration
of
justice, in accordance with the constitutional imperatives and
values; and
4.
enhance
the effectiveness, efficiency and integrity of the traditional
justice system.
[13]
It is common cause that this Bill was originally
introduced to Parliament through the National Assembly by the
Minister of Justice
and Constitutional Development 2008 has not been
passed.   Since its inception a number of controversial
questions have
arisen insofar as the contents of the Bill are
concerned. In first and second respondents answering affidavit, Mr
Tau explains
the delay during the recent period.  I cite
extensively from this affidavit because it explains problems
encountered with
the Bill:
‘
In response to the
publication of the draft Bill the Select Committee received 57
submission on the Bill from NGO’s, civil
society and
communities.  The outcome of this process was that the Select
Committee received eight (8) negotiating mandates
from all Provincial
Legislature except Mpumalanga.  The Mpumalanga legislature
requested an extension of the deadline for
concluding the public
hearing process, and a postponement of the negotiating mandates’
meeting by three (3) months.
I point out that at that stage
there was insufficient support from the Provincial Legislatures to
pass the Bill as there were only
2 provinces in support thereof,
namely Free State and Northern Cape, although they proposed some
amendment to the Bill.  Five
(5) provinces’ negotiating
mandates were not in support of the Bill, namely Eastern Cape,
Gauteng, North West, Western Cape;
and, apart from Mpumalanga, 2
provinces had not adopted a mandate, namely KwaZulu Natal and
Limpopo.  In terms of NCOP, the
Rule 155 (2) five (5) supporting
provinces are required in order to pass a Bill into legislation.
In addition to
Mpumalanga’s request for an extension, the Deputy Minister for
Women, Children and People with Disabilities
requested a meeting with
the Select Committee to outline her concerns regarding the Bill in a
letter annexed and marked “RT3”.
There were also
requests by national stakeholders and interested parties that had not
had an opportunity to present their concerns
on the Bill, such as the
Law, Race and Gender Research Unit (“LRG”), the
Federation of Unions of South African (“FEDUSA”),
…
The Select Committee
considered the request for extension reasonable.  An extension
would give effect to the political premise
for hosting parliamentary
public hearings, namely to afford the widest possible public
participation on the Bill without compromising
the provinces’
constitutional mandate to determine its views on the Bill.  It
was important while crafting the legislation,
for the Select
Committee to take into account any concerns raised in the provinces,
and to have sufficient information and guidance
to propose amendments
that would take the provinces’ concerns into account and any
other matters that might be raised, including
the object, principles
and constitutional implications of the Bill, as well as the impact to
vulnerable groups in society.
The negotiating mandates are
important in this regard in that they assist in guiding the thinking
of the Select Committee.
Clearly, an extension would
enhance the application of s 72 (1) (a) of the Constitution by
facilitating public involvement in the
legislative processes of the
Council.  I also add that in terms of NCOP Rule 240 (1) all s 76
Bills should be dealt with in
a manner that will ensure that
provinces have sufficient time to consider the Bill and confer
mandates.
There was also a proposal
made for the Select Committee to widen the public hearing process by
hosting public hearings, not only
nationally but also in the
provinces, in co-operation with the provincial legislatures, and
especially targeting areas not reached
by Provincial Legislatures
during the provincial haring process.
Another time-related
consideration at the time was statutory deadline of 30 December 2012
by which the legislation envisaged by
the Bill should be enacted to
repeal the Black Administration Act 38 of 1927.  The intention
was that the Bill would regulate
matters dealt with in ss 12 and 20
and the Third Schedule of the Black Administration Act which deal
with the judicial functions
of traditional leaders.  This
deadline has been previously postponed in 2008 and 2010, to
anticipate the finalisation of the
Bill.  The Select Committee
undertook to endeavour to conclude its business and report to the
house before the deadline for
the repeal of the Black Administration
Act, whilst allowing sufficient time for the National Assembly to
consider the Bill.
The Select Committee
considered and discussed the above issues at length on 30 May 2012,
and decided to request the Chairperson
of the NCOP to approve the
extension of the deadline of the Bill, in terms of NCOP Rule 240 (3)
which requires the Chairperson’s
approval for such an
extension.
On 31 May 2012 the Select
Committee sent a letter to the NCOP Chairperson …, setting out
the consideration taken into account
in arriving at its conclusion to
extend the legislative cycle of the Bill and widen the ambit of its
public participation process,
and requesting his approval.’
[14]
Mr Tau then describes what occurred after 2012 and
concludes:
‘
On 6 April 2016
the Department briefed the National Assembly Portfolio Committee of
Justice on key policies and legislation that
are currently under
development in the short -, to medium -, term.  I attach, marked
“RT15”, a copy of the power-point
presentation made by
the Department, and refer to pages 4,5 which indicate that the Bill
is again under consideration by the Department,
and, if all goes
according to plan, should be approved by Cabinet by 11 May 2016 for
introduction to Parliament by May or June
2016.’
[15]
For a detailed critique of the Bill see Jennifer
Williams and Judith Klusener “
The
Traditional Courts Bill:  A woman’s perspective
”
2013 (29) SAJHR 276
; Nica Siegal “
Thinking
the boundaries of customary law in South Africa
”
2015 (31) SAJHR 357
, particularly at 378
‘
The battle over
access to judicial remedy, and especially debate over the form of the
courts available to customary communities,
is clearly a major
frontier of contemporary legal activism involving customary law.
Evidence for this claim includes
the recent controversy over the
Traditional Courts Bill, an attempt to further institutionalise the
damaging conflation of chiefly
authority and democratic governance in
customary communities.  The Bill had been returned by the
National Council of Provinces
to the hands of local communities for
further consideration after the Bill was roundly criticised for
creating a ‘second-tire’
legal system that leaves those
who are least legally empowered especially vulnerable to abuse.’
Sigel
concludes:
‘
As South Africa
takes up the challenge of mediating conflicts of genuine diversity,
the goal must be to create new kinds of legal
institutions and
mechanisms, courts and other forms empowered by the Constitution.
Such institutions must be suited not to
solve the problem of the
boundary of customary and statutory law, but rather to mediate and
pursue justice without recourse to
hegemonic interference on the one
hand and the hatred of sovereign institutions that sustains
unregulated neoliberal capitalism
on the other.’
[16]
The delay in passing this Bill is most unfortunate and,
and manifestly the time lines set out in Mr Tau’s affidavit for
the
introduction of legislation in 2016 have already come and gone.
However, the answering affidavit and the literature I have
cited
indicate the difficulties which have confront Parliament with regard
to the contents of the Bill.
[17]
On the assumption that there was a mandatory obligation
on the part of Parliament to pass such legislation, what timelines
should
a Court set?   Further, to what extent can a Court
dictate to the National Assembly how to regulate its own business in

circumstances where there is significant public controversy about the
contents of a particular Bill before Parliament?  To
what extent
can a court provide the precise content of legislation to be passed?
[18]
The solution to this problem would have been for the
applicants to contend that the piece of legislation already passed by
Parliament,
namely the
Traditional Leadership and Governance
Framework Act, which
the Constitutional Court has held has given
effect to Chapter 12 of the Constitution in general and ss 211 and
212 of the Constitution
in particularly, does not pass constitutional
muster, in that there is a clear constitutional obligation to provide
for the independence
of traditional courts and the ancillary
requirement of granting immunity to presiding officers acting in a
judicial capacity.
This however was not the basis upon which
the applicant came to court.   It failed to attack the
contents of the Framework
Act and did nothing to suggest that the
relief it sought should be granted on the basis that the Framework
Act did not cover constitutional
obligations imposed upon Parliament
to pass legislation.
[19]
This conclusion brings me to the question of
subsidiarity and the second of the two responses of Hlophe JP which I
have noted.
[20]
Hlophe JP found that the principle of subsidiarity is
not applicable in this case, given that in the Preamble to the
Framework Act
there is a provision which states that there should be
a fair system of administration of justice, as envisaged in
applicable legislation.
Hence, the Framework Act makes it clear
that it was not intended to cover the full gamut of Parliament’s
constitutional obligations
in terms of s 212 of the Constitution.
[21]
On the assumption that there was a mandatory obligation
upon Parliament to pass such legislation, failure to do so would
surely
have rendered the Framework Act unconstitutional in that it
was passed without the provision of applicable legislation in
relation
to traditional courts.   Absent legislation
covering traditional courts, the Framework Act, which purported to
give content
to ss 211 and 212,  does not then cover fully the
constitutional promise and, accordingly, the Framework Act stands to
be
attacked as falling short of the mandatory guarantee.
[22]
It is this situation which is covered by the principle
of subsidiarity.   As the court said in
My
Vote Counts  v Speaker of the National Assembly and others
2016 (1) SA 132
(CC) at para 52-53:
‘
But it does not
follow that resort to constitutional rights and values may be
freewheeling or haphazard.  The Constitution
is primary, but its
influence is mostly indirect.  It is perceive through its
effects on the legislation and the common law-to
which one must look
first.
These considerations
yield the norm that a litigant cannot directly invoke the
Constitution to extract a right he or she seeks to
enforce without
first relying on, or attacking the constitutionality of, legislation
enacted to give effect to that right.
This if the form of
constitutional subsidiarity Parliament invokes here.  Once
legislation to fulfil a constitutional right
exists, the
Constitution’s embodiment of that right is no longer the prime
mechanism for its enforcement. The legislation
is primary.  The
right in the Constitution plays only a subsidiary or supporting
role.’
See
also para 161-166
[23]
In the present case the effect of applicant’s
argument is that the Framework Act does not fulfil the necessary
constitutional
obligation.   Absent further legislation,
there is no legislative provision governing a significant component
of customary
law; that is the protection and recognition of
traditional courts.   If this application had been brought
to seek an
order that Parliament needs to recognise the
administration of justice for traditional communities and the
provision of traditional
immunity for traditional leaders in the
Framework Act, this would have fallen within the recognised doctrine
of subsidiarity.
[24]
I express no firm view on the point, save that this form
of relief falls clearly within the scope of the judicial function in
respect
of orders that effect Parliament’s role as the arm of
the State which is responsible for legislation.
[25]
Mention is made by the learned Judge President about
Parliament passing a law which abolished the death penalty and that
it introduced
recognition of same-sex marriages, notwithstanding
public opposition to such legislation.   But in these
cases, the Constitutional
Court found that there was a clear
violation of the Constitution, declared the death penalty to be
unconstitutional and held that
the definition of marriage, that is
the then distinction of marriage being between a man and a woman,
breached provisions of the
Constitution.
[26]
Staying with the question of same-sex marriages, the
Court in
Minister of Home Affairs v Fourie
[2005] ZACC 19
;
2006 (1) SA 524
(CC) ordered that the common law
definition of marriage was inconsistent with the Constitution.
Hence, the omission from
s 30 (1) of the Marriage Act 25 of 1961
after the words “or husband” after the words “or
spouse” was declared
to be inconsistent with the Constitution.
Parliament was ordered to cure these defects.  Had the
Framework Act
been attacked in similar fashion on the basis of
subsidiarity, Parliament could have been ordered to include
particular provisions
to cater for the relief sought.  But that
is an entirely different problem from seeking to impose upon
Parliament an obligation
to pass a detailed piece of legislation,
regarding matters which already are before the House by way of the
Bill and where the
existing contents thereof have created significant
opposition so as to retard the progress of its introduction.
[27]
In summary:  It does not appear to me that there is
a mandatory obligation upon Parliament to pass the legislation sought
by
applicants.  To the extent that legislation has already been
passed, it is in the form of the Framework Act.  To the extent

that the Framework Act falls short of what might be constitutionally
required, then, on the basis that I am wrong and there is
a mandatory
requirement, it should have been the Framework Act which was made the
subject of applicant’s legal attack.
[28]
For these reasons, but with extreme reluctance, because
of the compelling assertion of the importance of customary law to a
transformed
legal system I depart company from the approach adopted
by Hlophe JP.  I emphasise that I do so with reluctance because
his
approach to customary law and the vital importance of ensuring
that customary courts operate on a position of parity with the other

courts of the land is critical to a constitutional system which
substantively recognises the dignity of difference and diversity
as
well as the imperative of ensuring the development of law which
applies to millions of South Africans.  That the present
Bill
should move expeditiously through Parliament is obvious; that there
is nothing, in my view, in the Constitution which justifies
the
precise relief contended for by applicants is a different question
and is the only one which we are required to answer.
[29]
With regard to costs, Hlophe JP noted that, were he to
have found against the applicants, he would have adopted the approach
that
as constitutional issues were raised by applicants which are of
significance and importance, it is inappropriate for a costs order
to
be granted.  However, it is clear that the substance of this
dispute as was outlined clearly by Mr Masuku, who appeared
on behalf
of the applicant, was to ensure relief for His Majesty the King.
As Mr Masuku told the Court, if the orders
sought are granted,
the King walks free!  This relief could never have been granted
and accordingly I agree with Mantame J
that an adverse costs order is
justified.  For these reasons I agree with the order as proposed
by Mantame J.
_________________
DAVIS
J
DISSENTING
JUDGMENT
HLOPHE
JP
INTRODUCTION
1.
This application raises very important constitutional
issues relating to the status of traditional leaders and traditional
courts
within our constitutional system. These issues arise from the
arrest, trial, conviction and sentencing of the King of AbaThembu

Nation, His Majesty Dalindyebo. Contralesa, the Applicant, contends
that the conviction and sentence of His Majesty King Dalindyebo
has
heightened the constitutional necessity for Parliament to ensure that
there is appropriate legislation regulating the proper
functioning of
traditional courts as required in the Constitution. In particular,
the Applicants are concerned that the significance
of the case of His
Majesty Dalindyebo is that traditional leaders are vulnerable to
civil and criminal liability for acts committed
by them in their
capacity as judicial officers in the traditional courts. They
therefore contend that this Court should grant an
order affirming
that traditional leaders enjoy judicial immunity from civil and
criminal prosecution for acts committed by them
in traditional
courts. Consequent upon that the Applicant seeks an order directing
Parliament to pass appropriate legislation in
terms of section 212 of
the Constitution, giving effect to traditional courts, more
particularly, judicial immunity.
2.
Although the Applicant sought orders directed
essentially at applying the principle of judicial immunity to the
case of His Majesty
Dalindyebo, it is clear that such orders are not
competent. Whether or not King Dalindyebo should not have been tried,
convicted
and sentenced as a consequence of judicial immunity is not
for this court to decide. It is competent for us to decide the issue

of principle relating to whether in terms of our traditional court
system, judicial immunity for traditional leaders applies. Whether
or
not judicial immunity applies depends on whether our traditional
courts are established and operate in accordance with the
Constitution.
3.
At the commencement of the hearing, the interdictory
relief sought against any member of the executive from causing the
removal
from his throne of His Majesty King Dalindyebo was abandoned.
This was done on the basis that the State Attorney on behalf of the

Fourth Respondent had indicated that a decision to remove His Majesty
under section 10 of the Traditional Leadership and Governance

Framework Act 412 of 2003 (hereinafter the Traditional Framework Act)
had been recommended to the President. The Court was informed
that
the President was considering that recommendation. Furthermore that
the President had offered His Majesty the opportunity
to make
representations to him why the recommendation should be accepted. His
Majesty, King Dalindyebo had availed himself that
opportunity to make
representations to the President. On the basis of this process, the
Applicant abandoned the interdict orders.
In my view the abandonment
was a reasonable one and I need say no more about it.
4.
Similarly, the Respondents abandoned the challenge to
the
locus standi
of
the Applicant to bring the application and to seek the relief that it
sought on behalf of its members. The concession to the
locus
standi
of the Applicant was well made and I
need say no more than that section 38 of the Constitution would have
been dispositive of that
challenge had the Respondents persisted with
it.
5.
There are two issues of constitutional substance that I
need to address for which I, with respect, deviate from the judgment
of
my esteemed sister, Mantame J. The first relates to whether
Parliament may be compelled to pass legislation specifically dealing

with the status of traditional authorities and their right to
judicial immunity from civil and criminal liability for acts
performed
within the traditional courts. The second relates to the
issue of judicial immunity to the extent that the Respondent's
initial
position was that it was not applicable to traditional
leaders. The third relates to costs. I deal with each of these issues
in
tum.
The
constitutional obligation in section 212 of the Constitution
6.
Parliament contends that, on a proper construction of
the provisions of section 211 and 212 of the Constitution, there is
no obligation
imposed on Parliament to pass legislation dealing with
the administration of justice and the traditional courts. In clear
and precise
terms, it was argued that 'there is no duty or obligation
in terms of section 212(1) of the Constitution or any other
provision,
on Parliament to pass the specific legislation, dealing
with the status of traditional authorities when they exercise
judicial
functions, and more particularly legislation that grants
immunity to traditional leaders when they exercise judicial
functions.'
This position requires some attention because if
Parliament's approach represents the correct interpretation of the
obligations
set out in section 211 and 212 of the Constitution, then
the very existence of traditional courts and the role of traditional
leaders
to apply African customary law within the constitutional
system is dependent on Parliament's attitude and not what the
Constitution
requires of Parliament. On the approach adopted by
Parliament, it cannot be held accountable for the state of our
African customary
system of law and the establishment of our
customary courts to operate within the Constitution.
7.
Parliament's stance in respect of the obligations it has
in section 211 and 212 of the Constitution is troubling for a number
of
reasons. Firstly, while it was the position of Parliament that
section 211 and 212 of the Constitution imposes a permissive
obligation
generally, it was not clear whether that was its attitude
when it passed the
Traditional Leadership and Governance Framework
Act, 41 of 2003
. I did not understand Parliament's position to be
that when it passed the Traditional Framework Act, it was not in
terms of a mandatory
constitutional obligation. Of course that
position would be inconsistent with the ordinary meaning of section
211 and 212 of the
Constitution. Parliament, in my view, could not
say that it was not mandatory in terms of the constitutional
obligation in section
211 and 212 of the Constitution for it to pass
the Traditional Framework Act. The obligation in section 212 of the
Constitution
is clearly mandatory, even though the provisions are
couched in permissive terms. It would gravely undermine the
institution, status
and role of traditional leaders if it was not
mandatory for Parliament to pass national legislation to provide for
the role for
traditional leadership as an institution at local level
on matters affecting local communities and dealing with matters
relating
to traditional leadership, the role of traditional leaders,
African customary law and the customs of communities observing that

legal system. If that were the position, we would have no alignment
between the traditional law and customs with the Constitution,

alternatively the obligation to implement African customary law in
accordance with the dictates of the Constitution would be left
on the
shoulders of traditional leaders and communities alone. If there is
no mandatory constitutional obligation on Parliament
to develop
legislation specifically dealing with the administration of justice
within communities practising traditional and customary
law, it is
not difficult to see why the Applicant is concerned that traditional
leaders who must implement African customary law
in a manner
consonant with the Constitution, without any guidance from
Parliament, are left vulnerable to civil and criminal liability,

should they implement what is acceptable in terms of customary law
but not consonant with the Constitution.
8.
Secondly, Parliament saw the enactment of the
Traditional Leadership and Governance Framework Act as
a complete
fulfilment of its obligations under section 212 of the Constitution.
It contends that the Applicant must, on the principle
of subsidiary,
challenge the constitutionality of the Traditional Framework Act, if
its claim is to succeed. This approach accepts
that the Traditional
Framework Act does not deal with the administration of justice in
traditional communities. It does not provide
any guidance to
traditional leaders on what procedural and substantive aspects of
customary law must be bended to conform to the
dictates of the
Constitution. There are problems with this approach to interpreting
the scope of the duty of Parliament to traditional
communities. It is
this aspect that causes gross offence to the traditional communities
- that while the Constitution requires
traditional leaders to operate
within the framework of the Constitution when they administer
justice, Parliament does not see it
as a mandatory obligation in
terms of section 212 to pass specific legislation dealing with the
administration of justice in traditional
communities. The
administration of justice in traditional communities is so central to
how traditional communities are governed
by traditional leaders just
as the administration of justice outside the traditional system is to
the proper governance of that
community. It is unimaginable that our
constitutional state would be complete and function properly without
the institutions that
are central to the administration of justice
being established. The proper constitutional governance of
traditional communities
is impossible without the institutions
responsible for the administration of justice being in place. Rule of
law as encapsulated
in the supremacy of the Constitution, is as
important to traditional communities as to the modem communities. To
suggest that Parliament's
legislative obligations are not obligatory
where they relate to the enactment of legislation giving effect to
the proper administration
of justice in traditional communities is to
denigrate not just the Constitution, but to deliberately place the
development of African
customary law and institutions at grave risk.
9.
The question is whether the issues in this application
may be fobbed off on the basis of the principle of subsidiarity. In
my view
not. Firstly, in my view, the principle of subsidiarity does
not apply in this case, for l have found that Parliament's duty under

sections 211 and 212 is mandatory and requires the enactment of
specific legislation dealing with the administration of justice.

Secondly, as was mandatory for Parliament to pass the Traditional
Framework Act, it is mandatory for it to pass a law that deals
with
the administration of justice in traditional communities. Thirdly.
according to the principle of subsidiarity, it is not competent
for a
party to
..directly invoke the Constitution to
extract a right he or she seeks to enforce without first relying 011,
or attacking the constitutionality
of.
legislation enacted to give effect to that right.
"
The Applicant, so Parliament contended, should attack the
constitutionality of the Traditional Framework Act, to the extent

that the Traditional Framework Act does not give effect to its right.
The principle of subsidiarity would apply in this matter
if the
Traditional Framework Act was held to represent the precise scope of
the constitutional duty in section 211 and 212 of the
Constitution.
(see My Vote Counts case, para 67-74, minority) This case is
distinguishable from My Vote Counts, because it is clear
that
sections 211 and 212 read with the Traditional Framework Act does not
require Parliament to pass only one piece of legislation
to address
everything about the constitutional existence of traditional
communities. It is envisaged that Parliament has the power
to pass
different legislation dealing with different aspect relevant to the
constitutional governance of traditional communities.
10.
In my view, the principle of subsidiarity does not apply
since this is not a challenge to the constitutionality of the
Traditional
Framework Act. The question is not whether or not the
Traditional Framework Act is valid, but whether Parliament has
fulfilled
its duty to pass a law dealing with the administration of
justice in African traditional courts. In any event, the
constitutional
duty envisaged in section 211 and 212 of the
Constitution is broad and permits Parliament to pass a range of
different legislation
dealing with different aspects relevant to the
proper constitutional functioning of the system of traditional
communities. The
Traditional Framework Act is one of them and deals
with issues relating to the recognition and political governance in
traditional
communities. It broadly deals with the recognition and
establishment of traditional communities, recognition of Kings and
Queens,
removal of Kings and Queens and the establishment of
traditional councils. It does not purport to address everything
necessary
for the institution, status and role of traditional
leadership. For example, the Traditional Framework Act does not
purport to
deal at all with the issue so central to the governance of
traditional communities and rule of law- the administration of
justice.
11.
Sections 211 and 212 of the Constitution create broad
constitutional duties of Parliament to enable Parliament to pass
legislation
relevant to different areas of traditional communities.
This is reflected more clearly in section 19 and 20 of the
Traditional
Framework Act. Section 19 states that:
"A traditional
leader performs the functions provided for in terms of customary law
and customs of the traditional community
concerned, and in applicable
legislation."(emphasis added)
12.
Section 20 of the Traditional Framework Act states the
following:
(1)
National government or a provincial government,
as the case may be,
may,
through
legislative or other measures, provide for a role for traditional
councils or traditional leaders in respect of-
(a)
Arts and culture;
(b)
Land administration;
(c)
Agriculture;
(d)
Health;
(e)
Welfare;
(f)
Administration of justice(emphasis added)
(g)
Safety and security;
(h)
Registration of births, deaths and customary
marriages;
(i)
…
(j)
…
(k)
…
13.
Section 20 of the Traditional Framework Act clearly
demonstrates that the scope of legislation for Parliament does not
end with
the enactment of the Traditional Framework Act. It is clear
that Parliament has a duty to pass specific law dealing with the
administration
of justice. The Applicant wants Parliament to pass a
law dealing with the administration of justice in traditional
communities.
That demand is long overdue in my view and sabotaged by
Parliament's own mistaken interpretation of what its duties are to
traditional
communities and leaders.
14.
The recognition of the institution, status and role of
traditional leadership and customary law in section 211 of the
Constitution,
provides as follows:
"211
Recognition
(1)
The institution, status and role of
traditional leadership, according to customary law, are recognised,
subject to the Constitution.
(2)
A traditional authority that observes a
system of customary law may function subject to any applicable
legislation and customs,
which includes amendments to, or repeal of,
that legislation or those customs.
(3)
The courts must apply customarily law when
that law is applicable, subject to the Constitution and any
legislation that specifically
deals with customary law."
15.
It is necessary to point out that the constitutional
status of traditional leadership includes their role in the
traditional courts
to dispense justice in accordance with African
customary law. When they dispense justice, they are equally bound by
section 38(2)
Constitution which states that when interpreting any
legislation and when developing the common law or customary law,
every court,
tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights. This means that traditional
communities have
a right to African traditional court that is able to
resolve disputes by reliance on African customary law in a manner
that is
consonant with the Bill of Rights. The African customary
courts must therefore be courts referred to in section 34 and 165 of
the
Constitution, able to dispense justice in a manner that upholds
the Constitution. They must enjoy the attributes of impartiality
and
independence, fully equipped to dispense justice without fear,
partiality and bias.
16.
The constitutional change in 1994 would be incomplete
without the recognition of traditional courts and their system of
justice.
The recognition was specifically given constitutional
imprimatur, first in the section 181 of the Interim Constitution.
Section
181 of the Interim Constitution:
"181 Recognition
of traditional authorities and indigenous law
-
(1)
A
traditional authority which observes system of indigenous law and is
recognised by law immediately before the commencement of
this
Constitution, shall continue as such an authority and continue to
exercise and perform the powers and functions vested in
it in
accordance with the applicable laws and customs, subject to any
amendment or repeal of such laws and customs by a competent

authority.
(2)
Indigenous law shall be subject to regulation by law."
17.
The difference between section 181 of the Interim
Constitution and section 211 of the Constitution is important for
evaluating the
status of African customary law and traditional
leadership prior to the adoption of the Constitution in 1996.
18.
Section 211(3) of the Constitution provides that
customary law is subjected to the Constitution and any legislation
that specifically
deals with African customary law. This means that
Parliament must provide for a legislation that would give guidance to
this qualification
for the application of African customary law. It
was not expected for traditional leaders, in their traditional
courts, to develop
customary law in accordance with the Constitution,
without legislative guidance. Recognising the importance of aligning
customary
law with the Constitution, section 212(1) of the
Constitution imposes a constitutional obligation on Parliament to
pass national
legislation to clarify the role for traditional
leadership as an institution at local level on matters affecting
local communities.
In addition, section 212(2) of the Constitution
requires Parliament to pass legislation that deal with matters
relating to traditional
leadership, the role of traditional leaders,
customary law and the customs of communities observing a system of
customary law.
19.
Section 181 of the Interim Constitution did not provide
for the limitation provided for in section 211(3) of the Final
Constitution
in that nothing is said about African customary law
being subject to the Constitution. This is important when analysing
the relief
sought by CONTRALESA against the background facts
involving the charging, trial, conviction and sentencing of His
Majesty King
Dalindyebo. Section 181 of the Interim Constitution
specifically states that a traditional authority
'shall
continue as such an authority and continue to exercise and pe1form
the powers and functions vested in it in accordance with
the
applicable laws and customs, subject to any amendment or repeal of
such laws and
customs by a competent authority. '
20.
The Constitutional Court, when certifying the
Constitution, recognised and certified the constitutional legitimacy
of traditional
leaders and african customary law. The Constitutional
Court said the following;
"In a purely republican
democracy, in which no differentiation of status on grounds of birth
is recognised, no constitutional
space exists for the official
recognition of any traditional leaders, let alone a monarch.
Similarly, absent an express authorization
for the recognition of
indigenous law, the principle of equality before the law in
Constitutional Principle IV (CP) could be read
as presupposing a
single and undifferentiated legal regime for all South Africans, with
no scope for the application of custom01y
law,
hence
the need (or expressly articulated CPs recognising a degree of
cultural pluralism with legal and cultural, but not necessarily

government consequence."
[1]
(Emphasis added.)
"The New Text (of
the Constitution) (NT) complies with CPX/11by giving express
guarantees of the continued existence of traditional
leaders and the
survival of an evolving customary law. The institution, status and
role of traditional leadership are thereby protected.
They are
protected by means entrenchment in the NT and
any
attempt at inte1ference would be subject to constitutional scrutiny.
The
Constitutional
Assembly (CA) cannot be constitutionally faulted for leaving the
complicated, varied and ever-developing specifics
of how such
customary law
should
develop and be interpreted, to future social evolution, legislative
deliberation
and judicial interpretation."
[2]
(Emphasis
added.)
21.
The constitutional authority for the argument that
Parliament has a constitutional obligation to pass a law dealing with
the judicial
obligations and privileges of traditional leaders is not
only section 212(1) of the Constitution. It is also a judgment of the
Constitutional Court when the Constitution was certified. The
Constitutional Court specifically commended the Constitutional
Assembly
for
"leaving the complicated,
varied and ever-developing specifics of how such customa1y law should
develop and be inte1preted,
to future social evolution, legislative
deliberation and judicial interpretation."
22.
In any event, the position of Parliament in this matter
is inconsistent with its own demonstrated understanding of its
constitutional
obligation to pass a law regulating the operation of
traditional courts. When Parliament introduced the Traditional Courts
Bill
for debate sometime in 2012 it did not do so on the
understanding that this obligation was not mandatory. The Traditional
Courts
Bill may well have demonstrated the complexity of ensuring
that African customary law reflects the constitutional values and
principles,
but that does not mean that Parliament was entitled to
abandon its constitutional obligation to pass such a law.
23.
To show that
Parliament was acutely aware of this mandatory constitutional duty to
pass a law governing the administration of justice
in the traditional
communities, one must look at the preamble and the objectives of this
Traditional Courts Bill. The Traditional
Courts Bill leaves no doubt
that Parliament understands its constitutional obligation to pass a
law dealing specifically with traditional
courts and the application
of African customary law.
[3]
There can be no doubt to my mind that Parliament's position in these
proceedings regarding its duty to pass a law dealing specifically

with the administration of justice in traditional communities is
inconsistent with its constitutional obligation as reflected in

section 211 and 212 read together with section 165, 34 and 38 of the
Constitution.
24.
Whereas Parliament has failed in its duty to pass a law
dealing with traditional courts, it has nonetheless passed the
Traditional
Framework Act. It contends that the passage of this
particular legislation was the complete fulfilment of the duty
imposed on it
in terms of section 212 of the Constitution. What is
clear from the provisions of the Framework Act though is that it was
not intended
to address the issue of traditional courts or the
administration of justice to ensure that traditional leaders governed
in accordance
with the rule of law and the Constitution. Only through
the traditional courts can the rule of law be given effect to in
traditional
communities. Only through the traditional courts can the
protection of constitutional rights in traditional communities be
achieved.
25.
The Framework Act provided the framework envisaged in section 212(1)
of the Constitution,
inter
alia,
the
recognition of traditional communities;
[4]
the establishment, and recognition of traditional councils;
[5]
the functions of traditional councils
[6]
and the functions of traditional leaders;
[7]
Section 19 of the Framework Act defers to those functions of a
traditional leader as provided for in terms of customary law and

customs.
26.
The Framework Act itself does not purport to be the
complete fulfilment of the duty imposed on Parliament in terms of
section 212
of the Constitution. The last principle expressed in the
preamble to the Framework Act, states that the institution of
traditional
leadership must "promote an efficient, effective and
fair dispute-resolution system, and a fair system of administration
of
justice,
as envisaged in applicable
legislation.
"(emphasis
added). Section 20 of the Framework Act
disposes of Parliament's submission that the Framework Act represents
the fulfilment of
the constitutional obligation imposed on Parliament
and that the Applicant's case is hit by the principle of
subsidiarity.
27.
The duty to pass legislation specifically dealing with
the administration of justice in traditional communities is engraved
in section
20 of the Framework Act. This cannot be a discretionary
legislative function. It is a mandatory power. It is inconceivable
that
Parliament's duly to ensure that the traditional communities
enjoy a judicial system that is consonant with the Constitution can

be regarded as merely discretionary. This would essentially mean that
traditional institutions responsible for the administration
of
justice are left untouched by the Constitution and therefore unable
to give effect to constitutional rights.
28.
The Courts have given their view of the importance of
customary law and the role African traditional leaders in giving
effect to
three inalienable rights- the right to access courts and
the right to dignity and equality. Parliament has no discretion over
passing
laws that give effect to these constitutional rights and to
argue thus is to denude the full extent of its legislative power.
Read
with section 7(2) of the Constitution, it is clear that
Parliament has a constitutional duty to ensure that "it
respects,
protect, promote and fulfil the rights in the Bill of
Rights." Section 212 of the Constitution specifically imposes a
broad
constitutional power intended to enable Parliament to pass laws
that give effect to the constitutional rights of traditional
communities
under African customary law.
29.
In Bhe &
others v Magistrate, Khayalitsha & others (Commission for Gender
Equality as amicus curiae); Shibi v Sithole &
others; South
African Human Rights Commission & Another
v
President of the Republic of South Africa & another,
[8]
Langa
DCJ observed that 'the Constitution itself envisages a place for
customary law in our legal system' and that particular provisions

'put it beyond doubt that our basic law specifically requires that
customary law should be accommodated, not merely tolerated,
as part
of South African law, provided the particular rules or provisions are
not in conflict with the Constitution'. (see: Mabuza
v Mbatha
2003
(4) SA 218
(C) at 226-229 (Hlophe JP for similar sentiments).
30.
In
Alexkor
Ltd & another v The Richtersveld Community & others,
[9]
the
following was said:
'While in the past
indigenous law was seen through the common-law lens, it must now be
seen as an integral part of our law. Like
all law it depends for its
ultimate force and validity on the Constitution. Its validity must
now be determined by reference not
to common law, but to the
Constitution. The courts are obliged by s 2I 1(3) of the Constitution
to apply customary law when it
is applicable, subject to the
Constitution and any legislation that deals with customary law.
'
31.
In MM v MN,
[10]
the Constitutional Court dealt with the position of African customary
law under the Constitution. Paragraph 24 of the judgment
is relevant
and says:
"[24]
This court
has, in a number of decisions, explained what this resurrection of
customary law to its rightful place as one of the
primary sources of
law under the Constitution means:
(a)
customary law must be understood in its
own terms, and not through the lens of the common law;
(b)
so understood, customa1y law is
nevertheless subject to the Constitution and has to be inte1preted in
the light of its values;
(c)
customary law is a system of law practiced
in the community, has its own values and norms, is practiced from
generation to generation
and evolves and develops to meet the
changing needs of the community;
(d)
customary law is not a fixed body of
formally classified and easily ascertainable rules. By its ve1y
nature it evolves as the people
who live by ii its norms change their
pattern of life;
(e)
customary law will continue to evolve within the
context of its values and norms consistent with the Constitution;
(f)
the inherent flexibility of customary law
provides room for consensus seeking and the prevention and
resolution, in family and clan
meetings, of disputes and
disagreements;
(g)
these aspects provide a setting which
contributes to the unity of family structures and the fostering of
co-operation, a sense of
responsibility and belonging in its members,
as well as the nurturing of healthy communitarian traditions like
Ubuntu."
32.
The Constitutional
Court reaffirmed its observation that the strength of customary law,
which is its "adaptive inherent flexibility",
is also its
potential weakness and difficulty when it comes to its application
and enforcement in a court of law. In Alexkor v
Rkhtersveld
Community, the Constitutional Court held that African customary law
must be recognised as an, 'integral part of our
law' and 'an
independent source of norms within the legal system'. In Shulubana &
Others v Mwamitwa
[11]
the
Constitutional Court held that customary law "is a body of law
by which millions of South Africans regulate their lives
and must be
treated accordingly." Furthermore, the Court held that the
process of determining the content of a particular
customary-law norm
must be one informed by several factors.
"First, it will be necessary to
consider the traditions of the community concerned. Customary law is
a body of rules and norms
that ha,\· developed over centuries.
An inquiry into the position under customary law will therefor
invariably involve a
consideration of past practice of the community.
Such a consideration also focuses the enquiry on customary law in its
own setting
rather than in terms of the
common-law
paradigm, in line with the approach set out in Bhe ...
"
[12]
33.
The right of
communities to observe and practice customary law includes, in terms
of section 211(2) of the Constitution, the right
of traditional
authorities to amend and repeal their own customs.
[13]
This is because of the nature of customary law, which is its inherent
adaptive flexibility. The Constitutional Court called for
the respect
of communities to develop their own laws to meet the needs of a
rapidly changing society and the Constitution.
[14]
34.
The conclusion made by the Constitutional Court is worth
quoting in full and is as follows:
[49] To sum up: where there is a
dispute over the legal position under customary law, a court must
consider both the traditions
and the present practices of the
community. If development happens within the community, the court
must strive to recognise and
give effect to the development, to the
extent consistent with adequately upholding the protection of rights.
In addition, the imperative
of s 39(2) must be acted on when
necessa1J1, and deference should be paid lo the development by
customary communities of its own
laws and customs where this is
possible, consistent with the continuing effective operation of the
law.
35.
This approach is
significant for many reasons relevant to this case. First the Courts
recognise the constitutional status of traditional
leaders and their
institutions. Secondly, the Courts have also recognised that the
traditional institutions may on their own develop
their Jaws and
customs in a manner that must conform to the values of the
Constitution. That said, traditional institutions have
autonomy on
how their laws must be developed. Furthermore, there is a
constitutional responsibility on Parliament to ensure that

traditional institutions function with a legislative environment that
does not undermine their independence and the Bill of Rights.
[15]
Whether or not traditional leaders have immunity from civil and
criminal liability, is a matter that must be deliberated upon by

Parliament, and cannot be left to the traditional Courts. While the
Courts during the apartheid period recognised the common law

principle of immunity for traditional leaders for their judicial
decisions, the Constitution now requires that Parliament should

specifically recognise this protection to traditional leaders in
legislation - so as to ensure the independence of traditional
leaders
and their courts. It should not be expected that traditional leaders
themselves will develop the scope of immunity that
they enjoy when
they preside over cases. To give guidance to all the stakeholders, it
is necessary for Parliament to pass a law
specifically giving
traditional leaders immunity from civil and criminal liability for
their judicial role in the customary courts.
All other Courts in
South African, including Small Claims Courts operate within a
statutory framework. There is no reason why traditional
courts should
not be regulated, as all other courts in South Africa, properly by
legislation.
THE
STATUS OF TRADITIONAL COURTS
36.
The constitutional status of traditional courts is
recognised by the Constitution and immunity flows from such
recognition. Traditional
Court, are courts as referred to in the
Constitution. Sections 165 and 166 of the Constitution provide as
follows:
"
165 Judicial
Authority
(1)
The judicial authority of the Republic is
vested in the courts.
(2)
The courts are independent and subject
only to the Constitution and the law, which they must apply
impartially and without fear,
favour or prejudice.
(3)
No person or organ of state may inte1fere
with the functions of the courts.
(4)
Organs of state, through legislative and
other measures. must assist and protect the courts to ensure the
independence, impartiality,
dignity, accessibility and effectiveness
of the courts.
(5)
An order or decision issued by a court
binds all person to whom and organs of state to which it applies."
And
"
166 Judicial
System
(1)
The Courts are
–
(a)
…
(b)
…
(c)
…
(d)
…
(e)
any other court established or recognised
in terms of an Act of Parliament, including any court of a status
similar to either the
High Courts or the Magistrates' Courts."
37.
The genesis of the recognition is the Interim
Constitution that dealt with judicial authority and the transitional
arrangement relating
to the judiciary that was valid at the relevant
time. Section 96 of the Interim Constitution provided as follows:
"96 Judicial
Authority
(1)
The judicial authority of the Republic
shall vest in the courts established by this Constitution and any
other law.
(2)
The judiciary shall be independent,
impartial and subject only to this Constitution and law.
(3)
No person and no organ of state shall
interfere with judicial officers in the performance of their
functions. "
38.
The relevant subsections of section 241 of the
Constitution provided as follows:
"241
Transitional arrangements: Judiciary
(1)
Every court of law existing immediately
before the commencement of this Constitution in an
area which forms part of the national territory,
shall
be deemed to have been duly constituted in terms of this Constitution
or the laws in force after such commencement, and shall continue to
function as such
in accordance with the
laws applicable to it until changed by a competent authority.
Provided
–
(a)
…
(b)
…
(c)
…
(1A) Until the court
structures contemplated in Chapter
7
have
been established as required by section 242(1),
the
jurisdiction of courts of law which existed immediately before the
commencement of this Constitution and which continued to
exist by
virtue of subsection (1) of this section, shall be as follows:
(a)
…
(b)
…
(c)
Any other court shall
,
in addition to the jurisdiction vested in it immediately before the
commencement of this Constitution, have the
same
jurisdiction as that which is vested in terms of section 103 in a
court of similar status
contemplated
therein, and shall exercise such jurisdiction in respect of the area
of jurisdiction for which it was established.
[Subs.
(l A) inserted by s 15(b) of Act 13 of 1994.]" (My emphasis.)
39.
The legislative and constitutional context set out above
make it abundantly clear that the traditional system of jurisprudence
and
customary law are not only recognised within the South African
Law but also that our Courts should recognise and adhere to these

principles when applicable.
40.
Section 42(1 ) of the TA Act which provided as
follows:
"A paramount
chief, chief or headman shall
–
(a)
enjoy the status, rights and privileges
and be subject to the obligations and duties conferred or imposed
upon his office by recognised
customs or usages of his tribe;
(b)
…
(c)
…
(d)
maintain law and order
and report to the Government, without delay, any
matter of important of concern, including any condition of unrest or
dissatisfaction
,'
(e)
exercise within his area, in
relation to any resident
–
(i)
The powers of arrest
conferred upon him, in his capacity as a peace
officer, by Chapter IV of the Criminal Procedure Act, 1995 (Act No.
56 of 1995);
and
(ii)
Subject to the provisions of subsections (3)
and (4) of section
forty- six
of the said Act ,
the powers of search
and seizure
relating to stolen stock,
liquor, habit-forming drugs, arms, ammunition and explosives,
referred to in subsection (1) of that section;
(f)
ensure tile protection of life, persons
and property and the safety of bona fide travellers within his area,
and report forthwith
to the competent authority
(g)
…
(h)
…
(i)
…
(j)
ensure compliance with all laws and the
orders and instructions of any competent authority
."
(My emphasis.)
41.
Section 20 of the Black Administration Act 38 of 1927
deals with the powers of the chiefs, headman and chiefs deputies to
try certain
offences:
"20
Powers of
chiefs, headman and chief's deputies to try certain offences
(1)
The Minister may
–
(a)
by writing under his hand confer upon any
Black chief or headman jurisdiction to try and punish any Black who
has committed, in
the area under the control of the chief or headman
concerned
–
(i)
any offence at common law or under Black
law and custom other
than an offence
referred to in the Third Schedule to this Act; and
(ii)
any statutory offence oilier than an
offence referred to in the Third Schedule to this Act, specified by
the Minister:
Provided that if any
such offence has been committed by two or more persons any of whom is
not a Black, or in relation to a per.r;on
who is not a Black of
property belonging lo any person who is 1101 a Black other than
property, movable or immovable, held in trust
for a Black tribe or a
community or aggregation of Blacks or a Black, such offence may not
be tried by a Black chief or headman;
(b)
at the request of any chief upon whom
jurisdiction has been conferred in
terms
of paragraph (1), by writing under his hand confer upon a deputy of
such chief jurisdiction to try and punish any Black who
has
committed, in the area under the control of such chief. any offence
which may be tried by such chief.
[NB: (Sub-s.(l ) has been
repealed by s.1(3} of the Repeal of the Black A
dministration
Act and Amendment of Certain L
aws Act 28 of
2005, with effect from such date as national legislation to further
regulate the matter dealt with in sub-s (1) is
implemented.]
(2)
The procedure at any trial by a chief,
headman or chief’s deputy under this section, the punishment,
the matter of execution
of any sentence imposed
any
subject to the provisions of paragraph (b) of subsection (1) of
section nine of the Black Authorities Act, 1951 (Act 68 of 1951),
the
appropriation of fines shall, save in so far as the Minister may
prescribe otherwise by regulation made under subsection (9),
be in
accordance with Black law and custom: Provided that in the exercise
of the jurisdiction conferred upon him or her under subsection
(1) a
chief. headman or chief's deputy
may
not inflict any punishment involving death, mutilation, grievous
bodily harm or imprisonment or impose a fine in excess of R100
or two
head of large stock or ten head of small stock or impose corporal
punishment.
"
(My
emphasis.)
[NB:Sub-s
(2)
has been repealed by s. 1(3) of tile Repeal of tile Black
Administration Act and Amendment of Certain Laws Act 28 of 2005, with

effect from such date as national legislation to further regulate the
matters dealt with i11 sub-s. (1) is implemented.]
(3) Any jurisdiction conferred upon a
chief, headman or chief's deputy under any provision of this Act
before the date of commencement
of the Black Administration Amendment
Act, 1955, and which at that date had not been revoked under any such
provision , shall be
deemed to have been conferred under and subject
to the provisions of this section.
[NB: Sub-s. (3) has
been repealed by s.1(3) of tile Repeal of tile Black Administration
Act and Amendment of Certain Laws Act 28
of 2005, with effect from
such date as national legislation to further regulate the matters
dealt with in sub-s. (4) is implemented.]
(4) The Minister may at any time
revoke the jurisdiction conferred upon a chief, headman or chief's
deputy under any provision of
this Act before or after the
commencement of the Black Administration Act, 1955.
NB: Sub-s. (4) has
been repealed by s. 1(3) of the Repeal of the Black Administration
Act and Amendment of Certain laws Act 28 of
2005, with effect from
such date as national legislation to further regulate the matters
dealt with in sub-s. (4) is implemented.]
(5)
…
42.
It is clear from the provisions of the BA Act
quoted above that there is an expectation of national legislation
that will specifically
address issues relating to the administration
of justice and traditional courts. It follows therefore that section
211 and 212
of the Constitution provide broad constitutional
obligations on Parliament to pass legislation giving recognition to
traditional
communities. The Traditional Framework Act itself expects
Parliament to pass a law dealing with the administration of justice
in
traditional communities. It is also an expectation in the BA Act
that Parliament will pass a law dealing with the administration
of
justice and the application of African customary law. Finally, the
Constitution itself expects Parliament to pass a law to ensure
that
the institutions necessary for the constitutional governance of
traditional communities are established. The traditional Courts
play
a vital role in how justice is dispensed. In particular, they play a
role in upholding the rule of law. Therefore, it is expected
that the
African traditional courts would give effect to the constitutional
rights of people in traditional communities. This cannot
be done in a
vacuum. Thus it is deeply flawed for Parliament to see the important
legislative duty relating to the proper functioning
of traditional
courts as merely discretionary.
43.
The administration of justice is central to the
proper constitutional functioning of traditional communities in that
only through
it is the rule of law consonant with the Constitution
possible. The Traditional Framework Act is, but one such legislation
in the
many steps that Parliament must take to give effect to section
2I I and 212 of the Constitution. It also follows that Parliament
was
incorrect to believe that it had no obligation in section 211 and 212
read together with section 165, 34 and 38 of the Constitution
to pass
legislation specific to the administration of justice in the
traditional communities. I would, in all circumstances, grant
the
order.
44.
In addition to this, I accept that Parliament indicated
that it was already engaged in developing the specific legislation
demanded
by the Applicant. However, this appears to have been on the
false premise that this was not a mandatory constitutional obligation

of Parliament. Had the Applicants not brought this application,
Parliament may well have taken another 22 years to give effect
to a
law specifically dealing with the administration of justice within
traditional communities. I would accordingly grant the
declaratory
order declaring Parliament to be in breach of its constitutional
obligation to pass legislation dealing with the administration
of
justice in traditional communities. I would further grant an order
declaring that as a consequence of Parliament's failure to
pass the
specific law dealing with the administration of court, the
constitutional rights of traditional communities have been

undermined.
45.
In my judgment,
the submissions made on behalf of the Applicant correctly reflect the
duty of Parliament to traditional leaders
and traditional communities
in respect of section 212 of the Constitution. I specifically find
that the obligation in section 212
of the Constitution is a mandatory
one requiring Parliament to pass legislation specifically dealing
with the status of traditional
Courts and the role of traditional
leaders in those courts. Secondly, the Traditional Framework Act does
not represent the full
compliance of the constitutional duty imposed
on Parliament lo ensure that appropriate legislation giving
recognition to traditional
leaders and communities is passed. I agree
with the submission that the Traditional Framework Act specifically
deals with the political
governance in traditional communities and
not the administration of justice. In my view, Parliament's
interpretation of its constitutional
obligations towards traditional
leaders and communities is not consistent with the constitutional
recognition of traditional leaders,
institutions and African
customary law. More specifically, I did not understand that
Parliament believed that it was
•
not mandatory for it to process the Traditional Courts
Bill.
[16]
A reading of the
Traditional Courts Bill indicates that Parliament was engaged in a
mandatory constitutional exercise.
46.
There was much said about why Parliament could not pass
the Traditional Courts Bill but it does not appear that the reasons
had
anything to do with the fact that Parliament believed that it was
mandatory for it to do so. As I understood the issues, in terms
of
Parliament's practice, the term for the passing of the Traditional
Courts Bill lapsed. I do not accept the reason offered by
Parliament
that public opposition to the Traditional Courts Bill forced it to
abandon its duty to pass the legislation. The institution
of
traditional courts is so central to the governance of traditional
communities as our Courts are to the modem constitutional
governance
to be left unregulated by legislation. If, as I have found, the duty
to pass a law dealing with the administration of
justice in
traditional communities arises from the Constitution, public
sentiments about it play a secondary role. In other words,
where
Parliament is mandated by the Constitution to pass a law, public
sentiment about that law is not paramount and may not be
used to
abandon that constitutional duty. That is why Parliament could pass
the law abolishing the death penalty or same sex marriages
despite
what the public sentiment may have been about such legislation.
47.
The absence of a law giving guidance to traditional
Court has far reaching constitutional ramifications for the exercise
of constitutional
rights and the rule of law in traditional
communities. Our democratic system specifically guarantees the right
to access courts,
and this must include the right of communities to
have their disputes resolved in traditional courts and in accordance
with the
application of African customary law. The lacuna in the law
dealing with the status, role and functions of traditional leaders
has had profound constitutional consequences, one of which is
depriving traditional communities to enjoy the constitutional right

to have their disputes resolved in traditional courts and in
accordance with African customary law. A more sinister impact of
Parliament's failure to pay attention to this constitutional duty is
possibly the criminalization of judicial actions taken under

customary law within a customary system of law.
48.
Parliament has a constitutional duty to pass a law
specifically dealing with traditional courts and how those courts
should dispense
justice within the Constitution. This duty is found
in a number of interrelated constitutional provisions. The first is
section
211 and 212 read together with section 165, section 38 and 34
of the Constitution. Read within the context of the Constitution as
a
whole, it cannot be correct that the duty of Parliament is not
mandatory. The current position of traditional courts is
constitutionally
untenable and cannot be said to comply with the
Constitution. The fact that the authority of traditional leaders to
exercise their
judicial powers in traditional courts by applying
African customary law depends on the Minister's powers, in terms of
the BA Act
is not a position consonant with the Constitution. The
authority of the traditional leaders to operate independently and
impartially
in traditional courts is a matter that requires urgent
resolution and should not continue to be a gift of the responsible
Minister.
49.
It does not reflect the correct constitutional position that
traditional leaders and traditional courts are not operating in
a
manner consistent with section 165 of the Constitution. In its
current form, traditional courts are not independent and traditional

leaders cannot be said to operate in courts that are free from
interference. While all other courts in South Africa operate within
a
statutory framework, it is untenable for Parliament to regard its
duty to extend similar legislative recognition to traditional
leaders
as merely permissive.
50.
Traditional Courts must enjoy the constitutional
attributes of independence. Traditional leaders must perform their
functions without
fear, favour or prejudice as all other judicial
officers. Customary law has unique attributes that reflect the values
of traditional
communities. These unique attributes may be undermined
by the failure of Parliament to give specific recognition to the
institution
of traditional courts.
51.
The legislation cried out for should have been passed a
long time ago after the promulgation of the Constitution. Furthermore
to
approach the issues of traditional communities in the manner
advocated by Parliament would essentially mean that it was not
constitutionally
mandatory for Parliament to pass the Traditional
Framework Act. To suggest that Parliament does not have a mandatory
duty to pass
a law specifically dealing with the administration of
justice in traditional communities is essentially to bring the
supremacy
of Parliament to decide whether to give effect to the
constitutional rights of traditional communities or not.
52.
It would undermine the constitutional status of
customary or traditional institutions if Parliament continued to see
its constitutional
duty to pass legislation specifically recognising
traditional courts as merely discretionary and not mandatory. It is
for this
reason that I differ with the judgment of my sister, Mantame
J.
The
power to impose criminal sanction in a criminal traditional court
53.
The constitutional and legislative context for this
matter has been addressed above and from that, it is clear that
traditional
leaders are a constitutional institution with powers to
adjudicate civil and criminal cases according to customary law. In
the
absence of specific legislation dealing with the powers of
traditional leaders to impose specific forms of punishment, it is
unclear
how they can be expected to operate within the Constitution
if no legislation giving them guidance is enacted. The power of
punishment
is a critical incident in the protection of rights on the
one hand and the rule of law on the other. The current position is
that
traditional leaders cannot lawfully impose punishment that would
otherwise be acceptable in terms of customary law, without being

exposed to civil or criminal liability. In the absence of specific
legislation regulating the proper functioning of traditional
courts,
traditional leaders do not have procedural or substantive safeguards
to guide how they exercise their judicial powers.
54.
Although the issues relating to His Majesty King
Dalindyebo cannot be dealt with by this court, it is important to
make remarks
relevant to the risks of Parliament not accepting, as
mandatory, the duty to pass appropriate legislation that gives
guidance to
how traditional leaders may exercise their powers of
punishment in a manner that is consonant with the Constitution. The
King's
acts for which he was convicted were committed in early 1996
and before the new (final) Constitution took effect. Under the
hodgepodge
legislation existing at the time, the King may well have
been properly exercising his civil and criminal jurisdiction over his
subjects. Because there is no legislation giving traditional leaders
guidance on how they may exercise their powers of punishment,
a
traditional leader, who under customary law has the power to impose
particular forms of punishment, may find himself or herself
held
liable in civil or criminal law for his punishment decisions.
55.
The issue of immunity was debated extensively during
argument and requires some attention since it is critical to the
proper functioning
of any judicial or prosecutorial system. At the
hearing, it is clear that the Respondent, who had initially opposed
the submission
that traditional leaders enjoyed immunity when they
exercise their powers in traditional court and in accordance with
customary
law, changed their view and conceded that immunity was
applicable to traditional leaders. The scope of this immunity was a
matter
extensively debated with the parties, demonstrating the
complexity of the issue. Let me first deal with the position prior to
the
Constitution.
56.
The power of African Kings and Chiefs to impose a
compulsory levy to pay for the expense of tribal litigation and to
seize property
of those who refused to pay was recognised in
Molusi
v Matlaba
1920 TPD 389.
The power to levy,
said Wessels JP, was
"an extraordinarily
large power ".
57.
In the mid-1920s the Appellate Division had an
opportunity to consider the extent of a chief s powers. In
Mokhatle
and Others v Union Government
1926 AD 71
; the
judges decided that according to native law and custom a chief had
power to banish a
"recalcitrant and
rebellious"
person from his tribe and
home. Significantly, the Court ruled that this power, as it was not
an exercise of criminal jurisdiction,
could be exercised without an
investigation or trial, and was not in conflict with the general
principles of civilization.
58.
Kotze JA accepted the evidence given by a missionary,
and an
"aged headman'',
and
explicitly rejected that of the applicant's star witness, the African
intellectual and ANC leader Sol Plaatjie. Plaatjie's education,
said
Kotze,
"has evidently influenced him in
the forming of hi.,· opinions, which incline towards the
introduction of modem civilised
principles in the government of
native tribes by their chiefs"
(76-7).
59.
The extraordinary powers of the traditional authorities
to banish recalcitrant persons had not been abrogated in 1996 when
the final
Constitution was adopted.
60.
The Applicant's case exposes the incomplete process of
transformation of the judicial system with all its flaws inherited
from apartheid
and colonialism. While it is clear that the High Court
and the Supreme Court of Appeal, King Dalindyebo's 'customary
justice' exemplifies
the worst kinds of abuses possible in customary
courts, the question is whether, the remedy for the abuse is
criminalising those
perceived excesses.
61.
And yet, no answer has been provided and no legislation
has been introduced to give guidance to traditional authorities and
their
subjects on the proper boundaries of criminal justice in
customary courts. Section 212(1) of the Constitution provides that
"(N)ational legislation may provide for a
role for traditional leadership at local level on matters affecting
local communities."
Parliament has
simply failed to pass the legislation that could give guidance to
traditional leaders when they exercise criminal
or civil authority.
The consequences for such failure may be far-reaching, in that they
may well result in judicial acts of traditional
leaders being
criminalised or subjected to civil liability. The absence of a clear
Jaw specifically setting out the scope of immunity
enjoyed by
traditional leaders when they exercise civil or criminal
jurisdiction, in my view undermines the constitutional status
of
traditional and customary law. Immunity from civil and criminal
liability is therefore important to whether traditional courts
may
function properly.
JUDICIAL
IMMUNITY
62.
Judicial immunity
is central to judicial independence. It was recognised as a common
law principle but has received constitutional
recognition.
Historically, judges (and others exercising adjudicative functions)
have been held immune against actions for damages
and criminal
liability arising out of the discharge of their judicial functions.
An exception from this immunity has been granted
only when the
judge's conduct was malicious or in bad faith.
[17]
63.
The decisive
policy underlying the immunity of the judiciary is the protection of
its independence to enable it to adjudicate independently
and
fearlessly. Litigants (like those depending on an administrative
process) are not 'entitled to a perfect process, free from
innocent
[ie, non
mala
fide
]
errors'
[18]
The threat of an
action for damages, or criminal prosecution for that matter, would
'unduly hamper the expeditious consideration
and disposal of
litigation.
[19]
The
Position in South Africa
64.
In South Africa the position regarding judicial immunity
stems from the common law and has been the subject matter of many
cases
in the last 80 years.
Johannes Voet in his
Commenta1y on the Pandects
5.1.58
said:
'But in our customs and
those of many other nations it is rather rare for the judge to [bear
the responsibility for the outcome]
by ill judging. That is because
the trite rule that he is not made liable by mere lack of knowledge
or [lack of skill], but by
fraud only, which is commonly difficult of
proof. It would be a bad business with judges, especially lower
judges who have no skill
in law, if in so widespread a science of law
and practice, such a variety of views, and such a crowd of cases
which will not brook
but sweep aside delay, they should be held
personally liable to the risk of individual suits, when their unfair
judgment springs
not from fraud, but from mistake, lack of knowledge
or lack of skill.'
65.
This statement
reflects the current legal position.
[20]
The different judgments in
R
v Kumalo
&
Others
[21]
are in
this regard instructive. A chief, who had civil jurisdiction but did
not have the necessary jurisdiction to impose corporal
punishment,
imposed it on the complainant for contempt of his court. The chief
and some others were then criminally charged with
assault. Van den
Heever JA thought that the chief was entitled to the indemnity
mentioned by Voet and in addition quoted an 1886
judgment of Lord de
Villiers holding that judicial officers are also not liable in
damages in relation to administrative functions
performed by them in
good faith in the course of their duties. Hoexter JA, speaking on
behalf of the majority, confirmed the conviction
on the ground that
the chief knew that he was acting outside the terms of his judicial
authority.
66.
In the
Telematrix
[22]
judgment,
in reference to the
Khuma/o
judgment,
the Supreme Court of Appeal states that:
'More of interest though
is Schreiner JA's finding (concordant with that of van den Heever JA)
that the fact that the chief had
exceeded his jurisdiction on its own
would not have made him liable. This, I would suggest, in the
ordinary course of things makes
good sense because a wrong assumption
of jurisdiction does not differ in kind from any other wrong
decision.'
[23]
67.
In the
Claasen
case
the Court asked the question whether judicial immunity applies in a
situation in which a magistrate exercised powers that he
did not
have, i.e. he acted outside of his jurisdiction. To this Binns-Ward J
responded that the acts of the magistrate were in
relation to the
subject matter of the case before him. Accordingly, 'his acts in
connection therewith, fundamentally misdirected
though they might
have been, were nevertheless 'judicial acts'.'
[24]
The Court therefore found that the actions of the magistrate were
performed within the context of his capacity as a magistrate
and
accordingly judicial immunity thus applied.
68.
The proper
functioning of the traditional courts will require that traditional
leaders be afforded immunity from criminal and civil
liability for
their actions as judicial officers. In Claassen v Minister of Justice
and Constitutional Development,
[25]
Justice Binns-Ward quoted from the judgment of Chief Justice of
Australian as following;
"This immunity from civil
liability is conferred by the common law, not as a perquisite of
judicial office for the private
advantage of judges but for the
protection of judicial independence in the public interest ...''
69.
Section 165(4) of the Constitution specifically requires
organs of state to, through legislative and other measures, assist
and
protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of all Courts. Section
165(3)
prohibits any person from interference with the functioning of
the Courts. The threat of prosecuting traditional leaders for their

judicial decisions is a violation of the Constitution and can be
cured by Parliament passing appropriate legislation giving immunity

to traditional leaders.
70.
The principle of immunity is universal and has been the
reason for the effectiveness of traditional courts until the
conviction
and sentencing of King Dalindyebo. Without deciding
whether immunity would have covered the actions of His Majesty King
Dalindyebo,
it is important to recognise that, there are forms of
punishment accepted under customary law, but are not consonant with
the Constitution.
To leave customary law untouched by legislative
intervention would place it in constant conflict with the
constitutional norms
and principles.
71.
Common law courts
have recognised absolute immunity for nearly 400 years.
[26]
The origins of the litigation privilege have been traced back to
medieval England. The privilege arose soon after the Nonnan Conquest

and the introduction of the adversarial system in the eleventh
century. Courts have aptly declared that the doctrine of absolute

immunity is
"as
old as the law."
[27]
The
first opinion dismissing a lawsuit against an attorney by applying
the doctrine of absolute immunity was rendered in 1606.
[28]
In that case, the attorney was accused of slandering his client's
adversary during a previous trial by asserting that the opponent
was
a convicted felon."
[29]
Even assuming that the attorney's assertion was false, the court held
that the attempt to discredit the witness during the previous

litigation was protected by absolute immunity." The court
declared: "[A]
counsellor
in law retained hath a privilege to enforce any thing which is
informed him by his client, and to give it in evidence,
it being
pertinent to the matter in question, and not to examine whether it be
true or false ."
72.
Centuries later,
the doctrine of absolute immunity remained intact. In the 1883 case
of Munster v Lamb, an English court granted
an attorney immunity from
suit even assuming his conduct was
"without
any justification or even excuse, and from the indirect motive of
personal
ill-will or anger"
toward
his former client's adversary.
[30]
The court explained:
"With
regard to counsel, the questions of malice, bona fides, and
relevancy, cannot be raised; the only question is, whether
what is
complained of has been said in the course of the administration of
the law. If that be so, the case against a counsel must
be stopped at
once."
[31]
Munster
v. Lamb was followed by Henderson v. Broomhead, which declared the
following:
"No
action will lie for words spoken or written in the course of any
judicial proceeding. In spite of all that can be said
against it, we
find the rule acted upon from the earliest times. The mischief would
be immense if the person aggrieved, instead
of preferring an
indictment far perjury, could turn his complaint into a civil action.
By universal assent it appears that in this
country no such action
lies."
[32]
English
Courts
73.
Early English
decisions initially found that judges lost immunity from suit for
acts clearly beyond their jurisdiction. Only in
a single area did the
English common law grant a broad form of immunity to judges.
Recognizing a need to protect judges from the
displeasure of the
Crown and its ministers, the Star Chamber in
Floyd
v. Barker
[33]
had
held that a judge could not be prosecuted in another court for an
alleged criminal conspiracy in the way he had handled a murder
trial.
In refusing to try the case, the judges of Star Chamber held simply
that if the king wished to discipline a judge, the king
must do so
himself without resort to a criminal prosecution. Despite this narrow
focus,
Floyd
frequently
is cited as the foundation of the American judicial immunity
doctrine.
[34]
74.
It is said in
English law that;
"an
action will not lie against a witness for giving false evidence in a
court of justice."
[35]
Effectively
then
"no
action lies, whether against judges',
counsel,
jury, witnesses or parties for words spoken in the ordinary course of
any proceedings before any court or tribunal recognised
by law. The
evidence of all witnesses or parties speaking with reference to the
matter before the court is privileged, oral or
written,
relevant or irrelevant, malicious or not."
[36]
"This no civil action lies against a
witness
for perjury at the suit of the person damnified by the false
evidence. This immunity is immunity form any form of civil

action."
[37]
75.
This general immunity from civil liability attaches
"to
all persons in respect of their participation in proceedings before a
court of justice, judges, court officials, witnesses,
parties,
counsel and solicitors alike ..." "Why should a witness be
able to avail himself of his position in the box
and to make without
fear of civil consequences a false statement which in many cases is
perjured, and which is malicious and affects
the character of
another?
The rule of law exists not because the conduct of those persons ought
not to be
actionable,
but because if their conduct was actionable, actions would be brought
against
judges
and witnesses in cases, where they had not spoken with malice, in
which they had not spoken with falsehood. "
[38]
76.
The immunity of a witness from suit in respect of
evidence given in court was described by Simon Brown LJ in
Silcott
v Commissionr of Police for the Metropolis
(1996) 8 Admin Law 633 at 636, as a fundamental rule of law. The
origins of the rule were traced in the judgment of Kelly CB in
Dawkins v Lord Rokeby
(1873) LR 8 QB at 263-265 where the following appears:
..upon all these authorities it may
now be taken to be settled law that no action lies against a witness
upon any evidence given
before any court or tribunal constituted
according to law."
77.
The basis of immunity in respect of evidence given in
court was explained by Lord Halsbury in
Watson
v M'Ewan, Watson v Jones
[1905] UKHL 1
;
[1905] AC 480
at
486:
“…
the conduct of legal
procedure by Courts of justice, with the necessity of compelling
witnesses to attend, involves as one of the
necessities of the
administration of justice the immunity of witnesses from actions
being brought against them in respect of the
evidence they have
given. In my view. it is absolutely inarguable. it is settled law and
cannot be doubted."
78.
The immunity given
to a witness or potential witness in civil or criminal proceedings is
based on the reasoning that, the administration
of justice would be
greatly impeded if witnesses were to be in fear that persons against
whom they gave evidence might subsequently
involve them in costly
litigation."
[39]
(Additional reasons why immunity is traditionally conferred upon
witnesses in respect of evidence given in court include the need
to
ensure that witnesses,
"may
give their evidence fearlessly and to avoid a multiplicity of actions
in which the value or truth of their evidence would
be tried over
again. Moreover the trial process contains in itself, in the
subjection to cross examination and confirmtation with
other
evidence, some safeguard against careless, malicious; or untruthful
evidence."(
Roy
v Prior
[1970]
2 All ER 729
at 736,
[1971] AC 470
at 480.).
79.
It is not only the need to stop matters being litigated
over and over again by disgruntled parties
(
Roy
v Prior
[1970]
2 All ER 729)
, but also the need to protect witnesses themselves from
suits stemming from the evidence they are to give
(
Munster
v Lamb
(1883)
11 QBD, 588)
,
"a
fortiori
the need to encourage witnesses to come
forward and say what they have to say in court." (
Stanton
v Callaghan
[2000]
1 Q.B.75.) The immunity extends to any civil proceedings brought
against a defendant that are based on the evidence that
he or she
gives in court. Consequently, immunity from suit extends to the
honest as well as the dishonest witnesses,
"immunity
is not granted primarily for the benefit of the individuals who seek
it. They themselves are the beneficiaries of
the overarching public
interest, which can be expressed as the need to ensure
that the administration of justice is not impeded'' (Sta11to11 v
Callaghan
[2000] 1 Q.B.75). Immunity is granted "on the basis of
a supervening public interest which transcends the need to provide a

remedy in an individual case." (Stanton (supra) at 88.
80.
Collins J pointed out in
Meadow
v General Medical Council
[2006] EWCH 146
that the dishonest witness may then be guilty of the criminal offence
of perjury and can be prosecuted if sufficient
evidence exists,
however, if such evidence is not available the immunity exists
because of the requirement that a witness should
be able to give
evidence free from fear of any reprisal. Public policy states that
there is a need to protect the honest witness.
This may result in
immunity for the dishonest witness. Nonetheless, the balance between
the right of the individual to make a claim
and the need, in the
interests of the administration of justice, to ensure that witnesses
give evidence in the knowledge that they
cannot be subjected to
action which may seek to penalise them is struck by giving priority
to the latter.
81.
In
Darkur v Chief Constable of
the West Midlands
[2000] UKHL 44
;
2001 1 AC 435
at p 464
D, Lord Hutton stated that the rule was necessary,
"in
order to shield honest witnesses from the vexation of having to
defend actions against them and to rebut an allegation
that they were
activated
by malice
the courts have decided that ii is necessary to grant absolute
immunity Jo witnesses in respect of their words in court
though this
means that the shield covers the malicious and dishonest witness as
well as the honest one."
82.
Although Lord Hutton was referring specifically to
actions for defamation, it is clear that the public policy, which
grants immunity,
extends for the same reason to any action brought,
whether or not it alleges malice, bad faith or dishonesty. The Court
continued
in Darkur v Chief Constable of the West Midlands
supra
and concluded thus: "By complete
authority, including the authority of this house (see
Dawkins
v Lord Rokeby
(18
75) LR 7HL
744) it has
been decided that the privilege of a witness, the immunity from
responsibility in an action where evidence has been
given by him in a
court of justice, is too well established now to be shaken.
Practically I may say that in my view it is absolutely
unarguable -
it is settled law and cannot be doubted. The remedy against a witness
who has given evidence which is false and injurious
to another is to
indict him for perjury; but for very obvious reasons, the conduct of
legal procedure by courts of justice, with
the necessity of
compelling witnesses to attend, involves as one of the necessities of
the administration of justice the immunity
of witnesses from actions
brought against them in respect of evidence they have given.
United
States Courts
83.
Absolute immunity from civil liability for damages was
affirmed by the Supreme Court in
Briscoe v LaHue,
460 US. 325
, 103 S Ct.1108
75 L.Ed 200
96 (1983), "
in damages
suits against witnesses, 'the claims of the individual must yield lo
the dictates of public policy, which requires that
the paths which
lead to the ascertainment of the truth should be left as
free
and unobstructed as possible . A witness's apprehension of subsequent
damages liability might induce two forms of self-censorship.
First
witnesses might be reluctant to come forward to testify. And once a
witness is on the stand, his testimony might be distorted
by the fear
of subsequent liability."
In
US
v Parra-Garcia
2001 10Cir 13
242 F.3d 392
the
court held that:
“
public: policy
reasons for the rule include: (1) the absolute immunity for witnesses
in judicial proceedings as discussed in Briscoe
v Lahue
(supra),
i.e. encourages witnesses to speak fi·
eely without fear of civil liability, (2) perjury is a public offence
and subject
only to the criminal law, (3) the need for finality in
judgments, (4) possibility of a multiplicity of suits by parties
dissatisfied
by the outcomes of trials, and (5) lack of precedent for
such actions."
84.
In 1978, the
Supreme Court in
Stump
v Sparkman
[40]
held
that the doctrine forbade a suit against an Indiana judge who had
authorized the sterilization of a retarded 15-year-old girl
under the
guise of an appendectomy. The judge had approved the operation
without a hearing when the mother alleged that the girl
was
promiscuous. After her marriage two years later, the girl discovered
she was sterile.
85.
In 1980, the
Seventh Circuit Court of Appeals in
Lopez
v Vanderwater
[41]
held a
judge partially immune from suit for personally arresting a tenant
who was in arrears on rent owed the judge's business associates.
At
the police station, the judge had arraigned the tenant, waived the
right to trial by jury, and sentenced him to 240 days in
prison. Six
days of this sentence were served before another judge intervened.
The Seventh Circuit found the judge immune for arraigning,

convicting, and sentencing the tenant but not for conducting the
arrest and "prosecution."
86.
In 1985, the
Eleventh Circuit Court of Appeals held in
Dykes
v. Hosemann
[42]
that
the immunity doctrine required dismissal of a suit against a Florida
judge who had awarded custody of a child to its father,
himself the
son of a fellow judge. This "emergency" order had been
entered without notice to the mother or a proper hearing
when the
father took the boy to Florida from their Pennsylvania home after a
series of marital disputes.
87.
In 1985, the Tenth
Circuit Court of Appeals in
Martinez
v Winner
[43]
held a
federal judge immune who, during a trial, had conducted a secret
meeting with prosecutors without notifying the defendant
or his
attorneys. Expressing concern that the jury would be "intimidated"
into a not-guilty verdict, the judge agreed
to declare a mistrial
after the defense had presented its case so the government could
prosecute anew with full knowledge of the
defense's strategies.
88.
In just 20 years, these precedents and others like them
have established absolute judicial immunity as a settled feature of
American
law. Under the current doctrine, any act performed in a
'judicial capacity' is shielded from suit or criminal liability.
89.
The varied approaches to immunity in different
jurisdictions demonstrates the importance of immunity to judicial
independence. Each
approach is influenced by the unique legal and
constitutional traditions. Each is influenced by the history and the
unique experiences
of particular jurisdiction. South Africa under the
Constitution has a stronger claim to judicial independence and with
it, a more
enhanced form of judicial immunity. The application of
judicial immunity in South Africa must reflect the Constitution,
taking
into account its strong emphasis on the protection and
promotion of constitutional rights, accountable and democratic
government
and independent constitutional institutions.
90.
The failure to afford traditional leaders immunity from
civil and criminal liability undermines the capacity and ability of
traditional
courts to act as independent judicial institutions
envisaged in section 165 of the Constitution. The absence of clear
legislation
establishing the precise parameters of judicial immunity
for traditional leaders exposes them to criminal and civil liability.
The fact that there are certain acts that would be acceptable in
terms of African customary law but not consistent with the
Constitution,
means that traditional leaders who preside in
traditional courts to adjudicate disputes in accordance with African
Customary law
are constantly exposed to the possibility of being held
liable in civil and criminal liability. Since African customary
courts
and law must be bended to the requirements of the
Constitution.
91.
Traditional leaders may only enjoy immunity from
civil and criminal liability if they are operating in traditional
courts that are
established in a manner consonant with the
Constitution. Immunity is for reasons of judicial independence and
the protection of
constitutional rights. The fact that the
traditional courts are unregulated in a manner that complies with the
Constitution means
that traditional leaders are constantly exposed to
the possibility of civil and criminal liability. Their courts exists
by virtue
of ministerial directive in terms of the BA Act. This means
that they are not courts in terms expected by the Constitution in
that
they are not independent.
92.
I am in agreement with the judgment of my
esteemed colleague, Mantame J, that the relief sought in respect of
His Majesty King Dalindyebo
cannot be granted by this Court. I do not
agree however that
res judicata
is
the reason for this. The basic requirements of
res
judicata
are not present in this case. The
issues were different, the parties were different and this was
certainly not a retrial of His
Majesty's case. The reason, in my
view, is that there is no evidence placed before this Court to
determine whether or not the question
of judicial immunity was
applicable to His Majesty's case. I certainly agree that his guilt
has been finally determined and it
is not for this Court to revisit
that issue. As I understood the issue. it was not being asked of us
to revisit the issue of His
Majesty's guilt or innocence. The
question, as I understood it, was whether or not His Majesty's
actions could be covered under
the principle of judicial immunity.
The fact that His Majesty King Dalindyebo and other traditional
leaders are not afforded immunity
for their judicial acts violates
their constitutional rights and undermines judicial independence in
traditional communities.
THE
RELIEF AGAINST THE FIFTH RESPONDENT
93.
The Fifth Respondent was particularly opposed to the
existence and application of judicial immunity to traditional
leaders. At the
hearing of this application, the Fifth Respondent
conceded that judicial immunity existed for and applied to
traditional leaders.
That concession makes it clear that prior to
pursuing criminal charges against a traditional leader for acts
committed in the traditional
court, a prosecutor must first be
satisfied that the acts are not covered by immunity. Whether or not
immunity applied to His Majesty,
King Dalindyebo, is not for this
court to decide. Suffice to re-emphasize the correct and proper
constitutional position- which
is that - traditional leaders enjoy
immunity from civil and criminal liability for their judicial acts in
traditional courts. This
means that traditional leaders may not be
held liable in civil and criminal proceedings for their
interpretation and application
of African customary law in their
traditional courts.
CONCLUSION
94.
I have concluded that the Constitution imposes a
mandatory duty on Parliament in terms of section 211 and 212 read
together with
sections 34, 38 and 165 of the Constitution, to pass
specific legislation dealing with the administration of justice in
traditional
communities and judicial immunity to traditional leaders.
The mandatory duty is reinforced by the general duty of Parliament in

section 7(2) of the Constitution to respect, protect, promote and
fulfil the rights in the Bill of Rights of persons under traditional

leadership and governed in accordance with African customary law.
This, Parliament, must do by passing appropriate legislation,
as
required in section 165(4) of the Constitution, to ensure that
traditional Courts are independent, impartial, have dignity,
are
accessible, and effective. Parliament has failed to pass legislation
providing for the administration of justice in traditional

communities in that no legislation envisaged in section 165(4) of the
Constitution exists. It has failed to give legislative recognition
to
the status of traditional courts the effect of which the position of
traditional leaders and communities remains constitutionally

vulnerable. The failure of Parliament to pass laws that recognise the
judicial status of traditional leaders has undermined customary
law
and the constitutional rights of communities to that law.
95.
Traditional leaders have the power to adjudicate
disputes in their courts in accordance with African customary law.
When they do
so, they enjoy immunity from civil and civil liability,
provided they act within the law and the Constitution.
96.
It would therefore be appropriate to give the
declaratory order in terms of which it is made clear that
Parliament's mandatory duty
to the traditional leaders and
communities of South Africa include passing legislation specifically
giving effect to the constitutional
rights of the traditional leaders
and their court. It would therefore be a just and equitable remedy
for an order declaring that
Parliament has a mandatory constitutional
duty to pass legislation dealing with the administration of justice
in traditional communities.
COSTS
97.
In my judgment, the Applicant have scored significant
success, including a declaratory order that Parliament has a
mandatory duty
to pass a law specifically dealing with the
administration of justice. The Applicant has also succeeded on the
issue of inununity.
I would grant Applicant costs including costs of
two counsel. The fact that they did not succeed in so far as their
relief concerned
His Majesty, King Dalindyebo does not and cannot
detract from the significant success in the relief against Parliament
and on the
issue of judicial immunity.
98.
However even if I had found against the
Applicant, I would follow the principle generally accepted in our
courts that Applicant
who have raised constitutional matters of
substance should not be burdened with costs. The constitutional
issues raised by the
Applicant are significant and important for a
great majority of very vulnerable communities who live in traditional
communities
practising African customary law. The issues were neither
recklessly raised nor raised in bad faith. I do not think that a cost

order is appropriate in this case even if the Applicant had not been
successful in all its orders.
___________________
HLOPHE
JP
[1]
Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996 1996 (4) SA 744
(CC) CC 1996, Butterworth Constitutional Lew
Report, 1996 (October) at page 1322
[2]
Ibid page 1323.
[3]
See clause 2, 3, 7, 8, 9 and 10 of the Traditional Courts Bill.
[4]
Section 2 of the Old Act.
[5]
Ibid section 3.
[6]
Ibid
sections 4 and 5.
[7]
Ibid section 19.
[8]
Bhe & others v Magistrate, Khayalitsha & others (Commission
for Gender Equality as amicus curiae); Shibi v Sithole &
others;
South African Human Rights Commission & another v President of
the Republic of South Africa & another
[2004] ZACC 17
;
2005 (1) SA 580
(CC),
para 41.
[9]
Alexkor Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004 (5) SA 460
(CC), para 51. Also Bhe's case (note 15), paras
42-46; MM v MN & another
2013 (4) SA 415
(CC), paras 23-25;
Shilubana's case (note 10), paras 42-43.
[10]
2013 (4) SA 415
(CC) at para 23 to 25.
[11]
2009 (2) SA 66
(CC) at para 43
[12]
Ibid para 44.
[13]
Ibid para 45.
[14]
Ibid para 45.
[15]
Section 7 of the Constitution
[16]
Annexure NM6.
[17]
Claassen v Minister of Justice and Constitutional Development and
Another 2010 (6) S 399 (WCC).
[18]
Logbro Properties CC v Bedderson NO & others
2003 (2) SA 460
(SCA) para (17).
[19]
Knop v Johannesburg City Council
[1994] ZASCA 15
;
1995 (2) SA 1(A)
33C-D.
[20]
Penrice v Dickinson
1945 AD 6
at 14-15. Similar considerations apply
to defamation claims: May v Udwin 1981 (1) SA 1(A)19E-F.
[21]
1952 (l) SA 381 (A).
[22]
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA 2006 (1) SA 461(SCA)
[23]
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA
2006 (1) SA 461(SCA)
at para 19
[24]
Claassen v Minister of Justice and Constitutional Development and
Another
2010 (6) SA 399
(WCC) at para 27
[25]
At para 30.
[26]
See authorities referred to for the discussion on litigator's
privilege: Paul T. Hayden, Reconsidering the Litigator's Absolute

Privilege to Defame, 54 OHIO ST. L.J. 985, 1018 (1993) (citing R.H.
HELMHOLZ, SELECT CASES ON DEFAMATION TO 1600 (1985) and Frank
Carr,
The English Law of Defamation, 18 L. Q. REV. 255, 263-67 (1902));
see also Post v. Mendel,
507 A.2d 351
, 353-55 (Pa. 1986) (detailing
history of doctrine or absolute immunity).
The
first English case to apply the privilege was decided in 1497; R.C.
Donnelly, History of Defamation, 1949 WIS. L. Rev. 99,
109 n.48
(1949); William S Holdsworth, A History of English Law 376 (1926)
(dating same case 1569); Theodore F.T. Plucknett,
A Concise History
of the Common Law 497 n.3 (5th ed. 1956); David R. Cohen, Note,
Judicial Malpractice Insurance? The Judiciary
Responds to the Loss
of Absolute Judicial Immunity, 41 Case W. Res. L. REV. 267, 272
(1990) (dating the first English case to
advance absolute immunity
for judges in the early fourteenth century).
[27]
Randall v. Brigham, 74 U.S.
(7 Wall.) 523
, 536 (1868) (endorsing the
doctrine of absolute judicial immunity).
[28]
Brook v. Montague, 79 Eng. Rep. 77, 77 (K.B. 1606).
[29]
Brook, 79 Eng. Rep. at 77.
[30]
Munster v. Lamb, II Q.B.D. 588, 599 (1883).
[31]
Id. at 605; see also Rex v. Skinner, 98 Eng. Rep. 529 (1772).
[32]
Henderson v. Broomhead, 157 Eng. Rep. 964, 968 (Ex. Ch. 1859)
(Crompton, J., concurring).
[33]
777 Eng.Rep. 1305 (Star Chamber 1608).
[34]
See, for example, Pulliam v Allen,
104 S. Ct. 1970
, 1975 (1984). The
Supreme Court first relied on Floyd as a precedent for judicial
immunity in Bradley v Fisher, 80 U.S. (13Wall.)
335, 351 (1872)
[35]
Revis v Smith
[1856] EngR 51
;
(1856) 18 CB 126
at 144.
[36]
Halsbury 4th Edition Volume 28.
[37]
Clerk and Lindsell on Torts, 18th edition, 2000.
[38]
Munster v Lamb
(1883) 11 QBD, 588.
607).
[39]
See per Salmon LJ in Marsha11 v Vibart [1962) I All ER 869 at 871.
[40]
435 U .S. 349 (1978).
[41]
620 F.2d 1229
(7th Cir. 1980).
[42]
[1985] USCA11 1755
;
776 F.2d 942
(11th Cir.1985)
[43]
[1985] USCA10 226
;
771 F.2d 424
(10th Cir. 1985).