About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2014
>>
[2014] ZASCA 30
|
|
Mamone v Commission of Traditional Leadership Dispute And Claims and Others (260/13) [2014] ZASCA 30; [2014] 3 All SA 1 (SCA) (28 March 2014)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 260/13
DATE:
28 MARCH 2014
Reportable
In
the matter between:
BAPEDI
MAROTA MAMONE
.....................................................
Appellant
And
THE
COMMISSION OF TRADITIONAL
LEADERSHIP
DISPUTES AND CLAIMS
..........................
First
Respondent
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA
........................................................
Second
Respondent
THE
MINISTER OF PROVINCIAL
AFFAIRS
AND LOCAL GOVERNMENT
........................
Third
Respondent
MOHLALETSI
TRADITIONAL AUTHORITY
..............
Fourth
Respondent
ACTING
KGOSHIKGOLO
KGAGUDI
KENNETH SEKHUKHUNE
..............................
Fifth
Respondent
Neutral
citation:
Bapedi
Marota Mamone v The Commission of Traditional Leadership Disputes and
Claims & others
(260/13)
[2014] ZASCA 30
(28 March 2014)
Coram:
Maya,
Leach, Theron and Willis JJA and Mocumie AJA
Heard:
17
February 2014
Delivered:
28 March 2014
Summary:
Review
–
s 6(2)
of the
Promotion of Administrative Justice Act 3 of
2000
– review threshold – whether the Commission of
Traditional Leadership Disputes and Claims ignored relevant material
information placed before it when deciding that the institution of
the Bapedi kingship resorts under the Sekhukhune lineage –
whether such decision rationally connected to that information or
justifiable on the reasons given for it.
ORDER
On
appeal from
:
North Gauteng High Court, Pretoria (Makgoba J sitting as court of
first instance).
The
appeal is dismissed with costs that include the costs of two counsel.
JUDGMENT
Maya JA: (Leach, Theron and
Willis JJA and Mocumie AJA concurring)
[1]
This is an appeal against the judgment of the North Gauteng High
Court (Makgoba J) dismissing an application
for the review, setting
aside and remittal for reconsideration of a decision taken by the
first respondent, the Commission of Traditional
Leadership Disputes
and Claims (the commission), and ancillary relief. The commission and
the fourth and fifth respondents opposed
the proceedings in the court
below and the second and third respondents abided the court’s
decision. Only the appellant and
the commission are involved in this
appeal, brought with the leave of this court.
[2]
The appellant is a traditional authority
recognised
as such in terms of the Traditional Leadership and Governance
Framework Act 41 of 2003 (the Act)
[1]
and s 211 of the Constitution.
[2]
It has a vested interest in the determination of the institution of
the kingship of the Bapedi community and the lineage under
which it
resorts. It is represented in these proceedings by Kgoshi Mampuru
Mampuru III, its traditional leader. The fourth respondent
is an
opposing traditional authority, represented by its traditional
leader, Acting Paramount Kgoshi Kenneth Sekhukhune, in whose
royal
house the commission found the Bapedi kingship to resort. It was
cited in the proceedings merely as an interested party and,
accordingly, no order was sought against it.
[3]
The commission is an organ of state established in terms of s 22(1)
of the Act. It is one of the bodies
created under the Act to counter
the erosion of the institution of traditional leadership by past
colonisation, by carrying out
the Act’s objectives of (a)
defining the place and role of the institution within the new system
of democratic governance;
(b) transforming it in line with
constitutional imperatives and (c) restoring its integrity and
legitimacy in line with customary
law and practices.
[3]
One of its functions is to investigate and make recommendations in
cases where there is doubt as to whether a kingship that was
established and recognised before the commencement of the Act, was
established in accordance with customary laws and customs of
the
relevant traditional community as they applied at the time.
[4]
[4]
In the exercise of that function and of its own accord, the
commission initiated an investigation, which
entailed public hearings
involving interested parties as well as research, for the Kgagudi
Sekhukhune Rhyne Thulare Sekhukhune
and Mampuru Royal Houses, to
determine whether the paramountcy of the Bapedi was established in
accordance with customary laws
and customs of the Bapedi traditional
community.
[5]
In that exercise, the commission first established that (a) the
Bapedi currently have an officially recognised paramountcy; (b)
Kgoshi Kgagudi Kenneth Sekhukhune is the acting paramount chief; and
(c) there are 70 officially recognised senior traditional
leaders
[6]
within his area of jurisdiction, Sekhukhune District, Greater
Tubatse, Makhuduthamaga, Fetakgomo and Marble Hall.
[5]
The commission then traced the history of the Bapedi lineage and
kingship, which may be summarized as
follows. The Bapedi traditional
community originated from a Batswana clan, Bakgatla ba Makau, which
lived near the Vaal River during
the 16
th
century. It was led by Tabane who had five sons, Diale his heir and
successor, Kgwadi, Kgetsi, Matsibolo and Mosia. Diale left
the area
with his wife and followers, who would form the core of the Bapedi,
and resettled at Fateng near Fort Weeber.
[7]
He was succeeded by his son, Thobela, who founded the Bapedi
traditional community and settled at the foot of the Leolo mountains,
at Mohlake, around 1650. The chieftaincy then passed down the
generations to Kabu, Thobejane, Moukwange and Mohube, respectively.
[6]
Upon Mohube’s death, his younger brother, Mampuru I, became
regent for Mohube’s young heir
and successor, Moramotshwe I.
Subsequently, a succession struggle ensued between Mampuru I and
Morwamotshe I. Mampuru I was defeated
and fled the community with his
followers. Dikotope, Morwamotshe I’s son, then succeeded his
father. His younger brother,
Thulare I, however, contested the
chieftaincy. Assisted by Mampuru I, Thulare I killed Dikotope and
usurped the chieftaincy. He
then established the Bapedi kingship by
conquering several neighbouring tribal communities between 1790 and
1820. When he died
the kingship passed to his heir and successor,
Malekutu I. The latter was poisoned for the throne by one of his
brothers, Matsebe
who was then killed by another brother, Phetedi.
Phethedi and Thulare I’s other sons were subsequently
assassinated by the
Matebele of Mzilikazi in the Difaqane war.
[7]
Only one of Thulare I’s sons, Sekwati I, survived the invasion.
He settled north-east of present
day Nebo district with his followers
and re-established the Bapedi monarchy, which he expanded by
conquering surrounding tribal
communities. As regent for Malekutu I,
who died without an heir, he was expected, in terms of custom, to
raise seed for the late
king. Although Sekwati I had a wife and son,
Sekhukhune I, he took a candle wife or a timamollo
[8]
to bear Malekutu I’s heir and successor in accordance with
Bapedi custom. The candle wife duly bore a son, Mampuru II.
[8]
After Sekwati I’s death in 1861, Sekhukhune I challenged his
half-brother for the kingship by
throwing a spear at him. Mampuru II
would not fight. Instead, he fled the kingdom with the royal
insignia and took refuge
among the Swazi tribes. Sekhukhune I then
buried their father and ascended the throne. He killed all Mampuru
II’s followers
and forcefully consolidated several communities
to further expand the Bapedi kingdom. In 1879, the British colonial
government,
which was in power at the time, incarcerated Sekhukhune I
and installed Mampuru II in his place. But, upon Sekhukhune I’s
release in 1881, Mampuru II fled again and Sekhukhune I successfully
reclaimed the kingship. On 13 August 1882, however, Mampuru
II
ambushed and killed Sekhukhune I. Surprisingly though, he fled
thereafter without ascending the throne. Subsequently, on 21
November
1883, he was convicted and hanged in Pretoria for the murder.
[9]
Successive regencies followed thereafter. Notably in the chain,
Kgoloko, Sekhukhune I’s half-brother,
became regent for the
latter’s minor son, Sekhukhune II, until he came of age. The
latter did ascend the throne in due course
and was predeceased by his
heir, Thulare II. Thus, after his death, his other son, Moramotshe
III, became regent until he died
in 1965. Mampuru II, on the other
hand, was succeeded (presumably where he had settled) by Malekutu II
who died in 1905. The latter’s
son, Malekutu III, succeeded him
and ruled until death in 1958. Thereafter his son and heir, the
current Kgoshi Mampuru III, took
reign over the Mamone traditional
community which falls under the appellant.
[10]
A dispute arose in the commission’s investigation between the
opposing royal houses’ versions concerning
the status of
Sekhukhune I and Mampuru II following the death of Malekutu and the
rest of Thulare I’s sons. According to
the Sekhukhune royal
house, Sekwati I refused to marry a candle wife because he had a wife
and had already identified Sekhukhune
I as his successor. Despite his
refusal, the Bakgoma and Bakgomana
[9]
took a candle wife who bore a child that Sekwati I could not have
sired as he was too old, so they said. The Mampuru royal house,
on
the other hand, contended that according to Bapedi custom the power
to marry a candle wife for a deceased king vests solely
in the
Bakgoma Bakgomana and not in the regent. Who actually fathers the
heir is irrelevant and the deciding factor for succession
is that the
child is borne by a candle wife. Sekwati I’s attitude towards
marrying a candle wife was, therefore, immaterial.
In any event, he
recognised Mampuru II as the rightful heir and even gave him the
royal insignia, they argued.
[11]
Against this backdrop, the commission made the following findings. It
agreed with the version that according to
Bapedi custom, in the case
of a king who dies without an heir, the Bakgoma and Bakgomana
take responsibility for identifying
and marrying a candle wife and
appoint someone to raise seed for the deceased king. But it matters
not who sires the candle wife’s
child as maternity is the
overriding consideration for succession. As Sekwati I was a mere
regent, he had no kingship to pass to
his eldest son, Sekhukhune I.
It was not unusual, however, for kingship to be obtained through
might and bloodshed. As such, Sekhukhune
I’s usurpation of the
kingship accorded with common practice at that time. Mampuru II’s
possession of the royal insignia
alone did not give him kingship and
he did not ascend the throne according to custom at any stage. The
commission then concluded,
inter alia
, that (a) Sekhukhune I
won the succession battle against Mampuru II; (b) the Bapedi
paramountcy is a kingship; and (c) the kingship
resorts under the
lineage of Sekhukhune I.
[12]
The Mampuru (Bapedi Marota Mamone) royal house accepted these
findings. It took issue only with the finding that
Mampuru II never
ascended the throne and its decision that the kingship resorted under
the Sekhukhune lineage. Consequently, the
appellant launched review
proceedings in the high court. Mainly, it wanted the commission to
reconsider the decision, alternatively
declaratory relief vesting the
kingship in it and declaring Kgoshi Mampuru Mampuru to be the king of
Bapedi.
[10]
The application was premised on the grounds that:
‘
1
The Commission in deciding on the question where the lineage in which
[the] Kingship resorts ignored relevant facts and evidence
placed
before it or to which it had access as contemplated in section
6(2)(
e
)(iii)
of [the Promotion of Administrative Justice Act 3 of 2000 (PAJA)].
2
The decision of the Commission regarding the choice of lineage of the
kingship of Bapedi is neither rationally connected to the
information
before it nor to the reasons given by it as stated in section
6(2)(
f
)(ii)(
cc
) and (
dd
) of PAJA.’
[13]
The appellant contended that the commission ignored Mampuru II’s
reign during Sekhukhune I’s incarceration
and that he defeated
and killed him upon his release which, it argued, ended Sekhukhune
I’s lineage to the kingship. The
court below rejected these
contentions. It took the view that the commission’s methodology
met the constitutional standard
and was proper,
[11]
that it considered all the evidence placed before it and that its
decision was rational. The court concluded that the commission’s
determination on the facts before it was unimpeachable and dismissed
the application.
[14]
On appeal, the appellant identified the following issues for
determination:
(a)
whether the high court’s finding that there was a
succession battle between Sekhukhune I and Mampuru II, which the
former won, was correct;
(b)
whether the succession issue should have been determined solely on
the basis that it was not unusual for kingship to be obtained
through
might and bloodshed and not by birth;
(c)
whether the high court’s findings that the commission did not
ignore relevant material evidence in its determination and
was
rationally connected to the information at its disposal was correct;
and
(d)
whether the high court’s approach to the review of the
commission’s administrative action was correct.
[15]
The appellant’s key contentions in argument before us were that
the court below: (a) ignored the commission’s
failure to
consider the evidence of Mampuru II’s reign, even if brief,
which the commission conceded in its answering affidavit
and was in
accordance with established customary principle of male
primogeniture; (b) disregarded the appellant’s submission
that
there was no succession battle between the two protagonists as
Sekwati I had already passed the kingship to Mampuru II, the
only
king to have ruled the whole Bapedi nation, and that kingship was a
birth right which cannot be lost whether exercised or
not; (c) failed
to properly evaluate the customary principle of usurpation of
kingship by might and bloodshed, which the commission
applied
inconsistently, by ignoring the evidence that Mampuru II killed
Sekhukhune I to defend his kingship of the Bapedi nation
and was thus
the last king after Sekwati I; (d) failed to evaluate the facts
within their historical context as it ignored the
evidence that
Mampuru II, who was favoured by the British authorities as the
rightful heir to the throne by birth, refused to submit
to the
jurisdiction of the Boer authorities, the incumbent government upon
Sekhukhune’s release from jail, which favoured
the latter for
that reason. It was finally contended that the court below blindly
deferred to the commission and accepted its findings
without question
as it should have found that there was no rational connection between
the information at the commission’s
disposal and its finding on
lineage, which was not justifiable in relation to the reasons given
for it.
[16]
It must be pointed out at the outset that the only allegations made
in the appellant’s founding papers in
support of its review
grounds, on which the case was conducted in the court below, were
that the commission (a) ignored the fact
of Mampuru II’s brief
installation on the throne by the British authorities during
Sekhukhune I’s incarceration; (b)
correctly found that kingship
could be usurped through might and bloodshed but failed to apply this
rule to Sekhukhune I’s
murder by Mampuru II, acting in defence
of his throne; and (c) ignored historical, official records which
supported these facts.
Therefore, most of the contentions made in its
heads of arguments and orally in court as set out in paragraph [15]
above, have
no foundation in its affidavits. It is trite that an
applicant in motion proceedings must set out the allegations upon
which it
relies and make out a proper case in its founding papers. It
cannot make a case on appeal that was not pleaded in its papers.
[12]
The appellant is thus precluded from relying on any newly raised
allegations that were not made in its affidavits.
[17]
Turning to the review grounds in issue, the first consideration is
the standard of review of administrative action
which must be applied
in adjudicating this appeal.
[13]
The right to administrative action that is lawful, reasonable and
procedurally fair derives from s 33(1) of the Constitution. Section
33(3) of the Constitution envisages the enactment of national
legislation to give effect to that right. The Promotion of
Administrative
Justice Act 3 of 2000 (PAJA) is that legislation.
Section 6(2) of PAJA provides, in relevant part, for the judicial
review of administrative
action if
‘…
(e)
the action was taken –
…
(iii)
because irrelevant considerations were taken into account or relevant
considerations were not considered;
…
(f)
the action itself –
(ii)
is not rationally connected to –
…
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator;’
(It
is relevant too that s 22(2) of the Act itself requires the
commission to carry out its functions in a manner that is fair,
objective and impartial.)
[18]
The review threshold is rationality.
[14]
The test is an objective one
[15]
and the reviewing court asks if there is a rational objective basis
justifying the connection made by the administrative decision-maker
between the material made available and the conclusion arrived
at.
[16]
Administrative action that fails to pass this threshold is
inconsistent with the requirements of the Constitution and is
unlawful.
[17]
It matters not that the decision-maker acted in the belief, in good
faith, that the administrative action was rational.
[19]
As indicated, the only contentions in support of the appellant’s
case that warrant determination (and with
which the court below dealt
squarely) are those set out in paragraph [16] above. In regard to the
allegations in (a) and (b), the
court below agreed with the
commission, correctly so in my opinion, (and the appellant properly
accepted this finding in its papers)
that Sekhukhune I legitimately
usurped the kingship as it was not uncommon to do so through might
and bloodshed. In the court’s
view, Mampuru II’s
coronation by the British government was inconsequential as it was a
unilateral act, inconsistent with
Bapedi customary law, and intended
merely to fulfil that government’s policy. This must be so as
no evidence whatsoever was
given to the commission that the Bakgoma
and Bakgomana, upon which it was agreed the task of identifying the
king in accordance
with Bapedi customary law and custom rests, was
involved in Mampuru II’s enthronement. The court below further
approved the
commission’s finding that Mampuru II’s
conduct in clandestinely killing Sekhukhune I and thereafter fleeing
was entirely
inconsistent with an intention to conquer and take over
kingship and was sheer murder for which he was accordingly convicted
by
a court of law and executed. I can find no fault with this finding
on the evidence placed before the commission.
[20]
The contention set out in (c), which counsel rightly did not argue
with any vigour, is equally without merit. The
commission dealt
comprehensively with the historical records which purportedly
supported the appellant’s case and showed
that the appellant’s
reliance on them was totally misplaced as they were irrelevant to the
issues under consideration and
were quoted out of context. The
commission’s report, which forms part of the record, succinctly
described the methodology
employed by the commission in its
investigations, which was properly not challenged, and is replete
with references to various
historical texts and legislation.
[21]
In short, the appellant failed to prove that the commission ignored
any relevant evidence. There simply is no basis
on the record to
conclude that the commission’s decision was not rationally
connected to the information before it, or the
reasons given by it.
There is also no basis for the bald contention that the court below
blindly deferred to the commission. It
is well to keep in mind that
unlike, in the case of appeals, in review proceedings
‘
[t]he
setting of [the review] standard does not mean that the Courts can or
should substitute their opinions as to what is appropriate
for the
opinions of those in whom the power [to make administrative action]
has been vested. As long as the purpose sought to be
achieved by the
exercise of public power is within the authority of the functionary,
and as long as the functionary’s decision,
viewed objectively,
is rational, a Court cannot interfere with the decision simply
because it disagrees with it …’
[18]
[22]
Lastly, it is necessary to deal briefly with an issue which, although
not raised in argument before us, was nonetheless
not expressly
abandoned – the quest for a declarator concerning who should be
the rightful heir to the Bapedi throne. Suffice
to say that it was
ill-conceived as it had no basis at all. The task of the commission
was merely to determine the existence of
the Bapedi kingship and its
lineage. It made a decision solely in that regard and it is only the
rationality of that decision that
could be the subject of any review
proceedings. And again, as was common cause in the papers, the power
to identify the king rests
solely with the Bakgoma and Bakgomana, in
accordance with Bapedi customary law and custom.
[23]
In all the premises, I am satisfied that the commission
did
nothing that constitutes a ground, recognised in our law, for review.
The
decision
it made is one which a reasonable decision-maker could reach.
[19]
The
high court correctly dismissed the application and t
he
appeal must, therefore, fail.
[24]
Accordingly, the following order is made:
The
appeal is dismissed with costs that include the costs of two counsel.
MML
MAYA
JUDGE
OF APPEAL
APPEARANCES:
For
appellant:
DS Kumalo SC (KJ Selala)
Instructed
by:
JP Moloto &
Co, Johannesburg
Matsepes
Inc, Bloemfontein
For 1
st
respondent:
G Bofilatos SC (LM Montsho)
Instructed
by:
Bradrish
Daya Attorneys, Pretoria
Webbers
Attorneys, Bloemfontein
[1]
Defined under the heading ‘traditional
leadership’ in s 1 of the Act as a customary institution or
structure recognised
by traditional communities.
[2]
Under s 211(1), read with s 212 of the Constitution Act 108 of 1996,
the institution, status and role of traditional leadership,
according to customary law, are recognized, subject to the
Constitution.
[3]
As
stated in the Act’s preamble.
[4]
In
terms of s 25(2)(
a
)(i) of the Act.
[5]
A traditional community is defined in s 1 of the Act as a
community
that is subject to a system of traditional leadership in terms of
that community’s customs and observes a system
of customary.
[6]
Defined in s 1 of the Act as ‘a traditional leader of a
specific traditional community who exercises authority over a number
of headmen or headwomen in accordance with customary law, or within
whose area of jurisdiction a number of headmen or headwomen
exercise
authority’.
[7]
Legend has it that he left to protect his wife and unborn child whom
the community wanted to kill because the child had cried
whilst
still in the womb, an incident perceived as a bad omen.
[8]
A
wife married specifically to bear an heir and successor for a
deceased king.
[9]
The
royal advisors.
[10]
The alternative relief was sought in amendment
proceedings brought in terms of Uniform rule 28 after the
institution of the application.
[11]
The means employed by the commission in its
investigation was, in any event, not placed in issue.
[12]
Shakot Investments (Pty) Ltd v Town Council of the Borough of
Stanger
1976 (2) SA 701
(D);
National
Council of SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA
339
(SCA);
Betlane v Shelley
Court
2011 (1) SA 388
(CC) at 396C.
[13]
It was not in dispute that the commission’s
decision constituted administrative action and that the provisions
of the
Promotion of Administrative Justice Act 3 of 2000
, which the
appellant invoked, apply.
[14]
Bel Porto School Governing Body & others v
Premier, Western Cape & another
[2002] ZACC 2
;
2002
(3) SA 265
(CC) para 89;
Carephone
(Pty) Ltd v Marcus NO & others
1999
(3) SA 304
(LAC) paras 31 and 32.
[15]
Pharmaceutical MNFRS of SA: In re Ex Parte
President of the RSA & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) para 86.
[16]
Carephone
above
n14;
Trinity Broadcasting (Ciskei) v
ICASA
2004 (3) SA 346
(SCA) para 21.
[17]
Democratic Alliance v President of the Republic of South Africa &
others
2013 (1) SA 248
(CC) para 27;
Masetlha
v President of the Republic of South Africa & another
[2007] ZACC 20
;
2008
(1) SA 566
(CC) para 81;
Pharmaceutical MNFRS of SA
above, para 90
.
[18]
Pharmaceutical MNFRS of SA,
above para 90
.
[19]
Bel
Porto
above,
para 90.