Sigcau and Another v Minister of Cooperative Governance and Traditional Affairs and Others (612/2016) [2017] ZASCA 80; [2017] 3 All SA 608 (SCA) (7 June 2017)

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[2017] ZASCA 80
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Sigcau and Another v Minister of Cooperative Governance and Traditional Affairs and Others (612/2016) [2017] ZASCA 80; [2017] 3 All SA 608 (SCA) (7 June 2017)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable/Not
Reportable
Case
No: 612/2016
In
the matter between:
WEZIZWE
FEZIWE SIGCAU

FIRST APPELLANT
LOMBEKISO
MAKHOSATSINI
MASOBHUZA
SIGCAU

SECOND
APPELLANT
and
MINISTER
OF COOPERATIVE GOVERNANCE
AND
TRADITIONAL
AFFAIRS

FIRST RESPONDENT
PRESIDENT
OF THE REPUBLIC OF
SOUTH
AFRICA

SECOND RESPONDENT
THE
COMMISSION ON TRADITIONAL
LEADERSHIP
DISPUTES AND CLAIMS

THIRD RESPONDENT
Neutral
Citation:
Sigcau
v Minister of Cooperative Governance and Traditional Affairs
(612/2016)
[2017] ZASCA 80
(7 June 2017).
Coram:
Shongwe ADP, Navsa,
Zondi, Dambuza JJA and Gorven AJA
Heard:
17
May 2017
Delivered:
7 June 2017
Summary:
Customary law:
decision of the Commission on Traditional Leadership Disputes:
whether implementation of the decision in terms of
s 26(2) of
the Traditional Leadership and Governance Framework Act 41 of 2003
(Old Act) required prior consultation with Royal
Family under s 9
of the Old Act: whether implementation of the decision required
compliance with provisions of s 10(1)
(c)
of the Old Act: implementation of the decision of the Commission did
not require consultation in terms of s 9 of the Old Act:
deeming
provision under s 28 of the Old Act and s 26 of the New Act
did not bestow status of king where the Commission
did not uphold
claim to kingship: provisions of s 10(1)
(c)
were not applicable.
ORDER
On
appeal from
the
Gauteng Division of the High Court, Pretoria (Murphy J sitting as
court of first instance).
The
appeal is dismissed.
JUDGMENT
Dambuza
JA (Shongwe ADP, Navsa and Zondi JJA and Gorven AJA concurring):
[1]
The main issue in this appeal is the correct procedure to be followed
by the second respondent, the President of the Republic
of South
Africa (the President) in implementing a decision of the third
respondent, the Commission on Traditional Leadership Disputes
and
Claims (the Commission), made in terms of s 26(2)
(a)
of
the Traditional Leadership and Governance Framework Act 41 of 2003
(the Old Act)
[1]
on a disputed kingship. The two appellants, Wezizwe Feziwe Sigcau
(Wezizwe) and Lombekiso Makhosatsini Masobhuza Sigcau (Masobhuza)

contend that, before implementing the decision of the Commission on
the disputed kingship of the amaMpondo aseQaukeni, the President
must
consult the royal family as prescribed in s 9 of the Old Act.
[2]
The appeal is against the order of the Gauteng Division of the High
Court, Pretoria (Murphy J) (the high court), declaring that
s
26(2)
(a)
read
with ss 9 and 10 of the Old Act does not ‘permit, require or
empower’ the President to follow a process of consultation
with
the royal family of amaMpondo aseQaukeni before implementing the
decision of the Commission. The high court also declared
that the
aforesaid provisions only require the President to issue a
certificate of recognition to Zanozuko Telovuyo Sigcau (Zanozuko)
to
‘publicise’ the decision of the Commission as
contemplated in s 9(2) of the Old Act. The appeal is with the leave

of the high court. For the sake of convenience and clarity, I will
refer to the members of the royal family by their first names
as they
all carry the same last name. No disrespect is intended.
[3]
The dispute is set against the backdrop of contestations in relation
to various kingships by traditional leaders around the
country,
emanating from manipulation of traditional systems by colonial and
apartheid governments. They exploited the institutions
of traditional
leadership so as to control Africans and traditional leaders and to
compel dependence on the State for their authority
and financial
security. Those who were perceived as uncooperative were replaced
with conformists. By the dawn of democracy many
illegitimate leaders
were entrenched as traditional leaders of state exploited
communities.
[2]
[4]
In an attempt to resolve these distortions Parliament, in 2004,
acting in terms of s 22 of the Old Act, established the Commission

which comprised various experts on customs and institutions of
traditional leadership.
[3]
It had a lifespan of five years.
[4]
Its tasks included investigation and resolution of traditional
leadership claims and disputes within the Republic. In terms of
s
28(7) of the Old Act it had to investigate the positions of
paramountcies and paramount chiefs that had been established and

recognised and were still in existence when that Act came into
effect. It had authority to investigate and determine, amongst other

things, whether the paramountcies qualified to be recognised as
kingships, and to determine the identity of the legitimate kings
in
respect of the kingships.
[5]
In terms of s 26(2), the decision of the Commission had to be
conveyed to the President within two weeks of it being taken, for

immediate implementation in accordance with s 9 or s 10,
where the position of a king or queen was affected by such a

decision.
[5]
On
22 October 2009
the
life of the Commission was extended,
i
n
terms of s 25(5) of the Old Act, to 31 January 2010. On 25
January 2010 the Old Act was amended extensively
in
terms of the Traditional Leadership and Governance Framework
Amendment Act 23 of 2009 (the New Act). Of significance
,
under the New Act, the powers of the Commission regarding resolution
of traditional leadership disputes and claims were altered
so that it
could only make recommendations on the resolution of the disputes, as
opposed to making decisions in respect thereof.
[6]
The New Act provides that the recommendation of the Commission must
be conveyed to the President within two weeks (of having been
made)
for him to make a decision thereon within 60 days.
[7]
A further relevant change brought about by the New Act is a deeming
provision, s 28(8), in terms of which an incumbent paramount

chief, at the time of coming into effect of the New Act, is deemed to
be a king subject to the investigation and recommendation
of the
Commission in terms of s 25(2).
[6]
In April 2008 the Commission affirmed the kingship of amaMpondo
aseQaukeni, and, almost two years thereafter, on 21 January
2010 it
decided that Zanozuko was the rightful king in respect of that
kingship. On the same day the Commission communicated its
decision to
the President. However, only on 3 November 2010 did the President
purport to recognise the amaMpondo kingship and Zanozuko
as the
legitimate king. The purported recognition was done in terms of
s 28(8) of the New Act.
[7]
The decision of the Commission followed its investigation into a
claim made by Zanozuko to the kingship of amaMpondo aseQaukeni.
At
the time his brother Mpondombini Justice Sigcawu (Mpondombini) was
the incumbent paramount chief of amaMpondo aseQaukeni. Briefly,
the
decision of the Commission was based on the following tenets of
history and custom. The customary succession of amaMpondo has
always
been governed by the principle of male primogeniture. In its pure
form, the custom was that the leader of the amaMpondo,
[8]
referred to as the ‘ikumnkani,
[9]
and later as the ‘paramount chief’’ would marry
several wives: the ‘great wife’ (undlunkulu), whose
son
would be the preferred successor, the ‘right hand wife’
(ikunene), being the ‘first wife’, whose son
would not
succeed the father, but could establish a semi-independent community,
and the consorts (amaqadi (singular ‘iqadi’))
who
supported the two main wives and whose eldest sons would step in as a
successor if the great wife had no male issue.
[8]
In this instance, Mandlonke, Botha, Nelson, and four other sons were
born of the regent Marhelane Sigcau. Mandlonke succeeded
Marhelane.
In 1937 Mandlonke
[10]
died without a male issue, leaving his brothers Botha from the right
hand house and Nelson from the iqadi house. The government
of the day
favoured Botha over Nelson, and, contrary to custom, Botha was
appointed as the paramount chief of the amaMpondo aseQaukeni,
in
terms of the Black Administration Act 28 of 1927 and, later, in terms
of ss 45 and 73 of the Transkei Constitution Act 48 of
1963. He was
succeeded by his son Mpondombini, the incumbent regent at the time of
establishment of the Commission. Nelson’s
grandson,
Zanozuko,
[11]
lodged a claim to the throne with the Commission. The Commission
found that the appointment of Botha had been irregular and not
in
accordance with the law and customs of amaMpondo; hence the decision
that the claimant, Zanozuko, was the rightful successor
to the throne
of amaMpondo aseQaukeni.
[9]
Mpondombini brought court proceedings, challenging the decision of
the Commission and the President’s recognition of Zanuzuko.
He
contended that the President should have consulted the royal family
before implementing the decision of the Commission as prescribed
in
ss 9 and 10 of the Old Act. Those proceedings ultimately served
before the Constitutional Court.
[12]
Mpondombini died on 27 March 2013, before the matter was heard by the
Constitutional Court.
[10]
The Constitutional Court did not make any ruling on the challenge to
the decision of the Commission. It only found that, because
the
proceedings and the decision of the Commission had been made in terms
of the Old Act, the President should have appointed Zanozuko
in terms
of that Act. Instead the notice of recognition read:
‘
In
terms of section 28(8) read with section 2A of the Traditional
Leadership and Governance Framework Act, 2003 (Act No 41 of 2003)

(the Act), I Jacob Gedleyithlekisa Zuma, President of the Republic of
South Africa, hereby recognise the following Kingships and
Kings.’
The
Old Act contained neither s 28(8) nor s 2A. The Constitutional Court
concluded that the President had purported to exercise
powers not
conferred on him by the provisions of the Old Act. It accordingly set
aside the appointment on that basis.
[11]
Mpondombini’s widow, the second appellant, (Masobhuza) adopted
the stance that the decision of the Constitutional Court
vindicated
the position of her late husband as the ikumnkani of amaMpondo
aseQaukeni. She then took up position as the regent.
In that capacity
she nominated her daughter, the first appellant, (Wezizwe) as the
queen. Following a meeting of the members of
Mpondombini’s
extended family (the broad extended royal family) held on 13 October
2014, correspondence was exchanged between
that family and the office
of the President, calling upon the President to recognise Wezizwe, in
terms s 9 of the Old Act, as the
queen of amaMpondo.
[12]
The first respondent (the Minister of Cooperative Governance and
Traditional Affairs), the President, and the Commission (the

respondents) instituted proceedings in the high court asserting their
view that the decision of the Commission remained valid and
seeking a
declaratory order on its implementation. In essence, these
proceedings, it was said, were aimed at seeking clarity on
how the
President should implement the decision of the Commission.
[13]
Both in the high court and before us the parties were in agreement
that the decision of the Commission had to be implemented
in terms of
the provisions of s 26(2)
(a)
of the Old Act. The issue
was the extent to which the provisions of ss 9 and 10 of that
Act were applicable in the implementation
process. The appellants
insisted that the President was obliged to consult the royal family
prior to implementing the decision
of the Commission, as provided for
in s 9 of the Old Act. Section 26(2) of the Old Act provided
that:
‘
(2)
A decision of the Commission must, within two weeks of the decision
being taken, be conveyed to-
(a)
the President for immediate
implementation in accordance with section 9 or 10 where the
position
of a king or queen is affected by such a decision; and
(b)
the relevant provincial government and any other relevant functionary
which must immediately
implement the decision of the Commission in
accordance with applicable provincial legislation in so far as the
implementation of
the decision does not relate to the recognition or
removal of a king or queen in terms of section 9 or 10.’
[14]
In the relevant part s 9 provides:
‘
Recognition
of kings and queens’
9.
(1)
Whenever the position of a king or queen is to be filled, the
following process must be followed:
(a)
The
royal family must, within reasonable time after the need arises for
the position of a king or a queen to be filled, and with
due regard
to applicable customary law-
(i)
Identify
a person who qualifies in terms of customary law to assume the
position of a king or a queen, as the case may be, after
taking into
account whether any of the grounds referred to in section 10(1)
(a),
(b)
and
(d)
apply
to that person; and
(ii)
through
the relevant customary structure-
(aa)
inform
the President, the Premier of the province concerned and the
Minister, of the particulars of the person so identified to
fill the
position of a king or a queen;
(bb)
provide
the President with the reasons for identification of that person as a
king or a queen; and
(cc)
give
written confirmation to the President that the Premier of the
province concerned and the Minister have been informed accordingly;

and
(b)
The
President must, subject to subsection (3), recognise a person so
identified in terms of paragraph
(a)
(i)
as a king or a queen taking into account –
(i)
the need to establish uniformity in the Republic in respect of the
status afforded to a king or queen;
(ii)
whether a recognised kingship exists-
(aa)
that
comprises the areas of jurisdiction of a substantial number of senior
traditional leaders that fall under the authority of
such king or
queen;
(bb)
in
terms of which the king or queen is regarded and recognised in terms
of customary law and customs as a traditional leader of
higher status
than the senior traditional leaders referred to in subparagraph (aa);
and
(cc)
where
the king or queen has a customary structure to represent the
traditional councils and senior traditional leaders that fall
under
the authority of the king or queen; and
(iii)
the functions that will be performed by the king or queen.
(2)
The
recognition of a person as a king or a queen in terms of subsection
(1)
(b)
must
be done by way of-
(a)
a
notice in the
Gazette
recognising the person identified as king or queen; and
(b)
the
issuing of a certificate of recognition to the identified
person.’
[13]
(3)
Where there is evidence on an allegation that the identification of a
person referred
to in subsection (1) was not done in accordance with
customary law, customs or processes, the President-
(a)
may
refer the matter to the National House of Traditional Leaders for its
recommendation; o
(b)
may
refuse to issue a certificate of recognition; and
(c)
must
refer the matter back to the royal family for reconsideration and
resolution where the certificate of recognition has been
refused.’
[15]
Related to the main issue was the question of non-joinder of the
royal family of amaMpondo who, it was contended by the appellants,

were vested, under customary law, with the power to identify and
appoint a traditional leader for the community. The appellants
also
took issue with the respondents’ locus standi to seek the
declaratory orders as they were not ‘interested persons’

in the subject matter of the litigation.
[16]
A proper interpretation of the provisions of both Old and the New
Acts must take into  account
the  background set out
in paragraph 3 of this judgment, together with the provisions of
Chapter 12 of the Constitution,
1996. Sections 211 and 212
[14]
of the Constitution provide, inter alia, for recognition of the
institution and role of traditional leadership and for application
of
customary law and customs of communities in dealing with matters of
traditional leadership. In line with these ideals, in its
preamble,
the Old Act identified its three main purposes:
‘
[T]o
set out a national framework and norms and standards that will define
the place and role of traditional leadership within the
new system of
democratic governance;
to
transform the institution in line with constitutional imperatives;
and
to
restore the integrity and legitimacy of the institution of
traditional leadership in line with customary law and practices.’
[17]
As it became evident from the submissions made on behalf of the
appellants, there may be a view that the settlement of traditional

disputes through the Commission does not constitute a solution
reached in terms of customary law. Dissatisfaction has been expressed

with the approach adopted by the Commission, in certain instances, to
‘evidence’ of customs of certain communities.
[15]
However the intention of the legislature, that customary law and
customs of the relevant communities must be central to resolution
of
traditional leadership disputes, is clearly and consistently
expressed in the Constitution and in both the New and the Old Acts.

In terms of s 25(3) of the Old Act, when considering a dispute or
claim, the Commission was obliged to consider and apply customary
law
and the customs of the relevant traditional community, as they were
when the events occurred that gave rise to the dispute
or claim. In
respect of a kingship, it had to be guided, in its decision, by the
criteria set out in section 9(1)
(b)
of
that Act and such other customary norms and criteria relevant to the
establishment of a kingship.
[16]
Therefore the process of consultation was expressly built into the
processes of the Commission.
[18]
In terms, s 25 of the Old Act provided:
‘
Functions
of Commission
25.
(I)
The Commission operates nationally and has authority to decide on any
traditional leadership dispute and claim contemplated
in subsection
(2) and arising in any province. accord-
(2)
(a)
The Commission has authority to investigate, either on
request or of its own
(i)
a case where there is doubt as to whether a kingship, senior
traditional leadership or headmanship was established accordance
with
customary law and customs;
(ii)
a traditional leadership position where the title or right of the
incumbent is contested;
(iii)
claims by communities to be recognised as traditional communities;
(iv)
the legitimacy of the establishment or disestablishment of “tribes”;
(v)
disputes resulting from the determination of traditional authority
boundaries and the merging or division of “tribes”;
and
(vi)
where good grounds exist, any other matters relevant to the matters
listed in this paragraph, including the consideration of
events that
may have arisen before 1 September 1927.
(b)
A
dispute or claim may be lodged by any person and must be accompanied
by information setting out the nature of the dispute or claim
and any
other relevant information.
(c)
The Commission may refuse to consider a dispute or claim on the
ground that-
(i)
the person who lodged the dispute claim has not provided the
Commission
(ii)
the dispute is to be dealt with in terms of section 21(l)(a) in a
case where
(3)
(a)
When considering a dispute or claim, the Commission must
consider and apply customary law and the customs of the relevant
traditional
community as they were when the events occurred that gave
rise to the dispute or claim. with relevant or sufficient
information;
or section 21(l
)(b)
does not apply.
(b)
The
Commission must-
(i)
in respect of a kingship, be guided by the criteria set out in
section 9(1)(b) and such other customary norms and criteria relevant

to the establishment of a kingship; and
(ii)
in respect of a senior traditional leadership or headmanship, be
guided by the customary norms and criteria relevant to the

establishment of a senior traditional leadership or headmanship, as
the case may be.
[19]
It is for that reason that the Commission conducted extensive
consultations with the communities and members of the affected

families, including the appellants, prior to taking its decision. It
was not in dispute that extensive consultations were held
by the
Commission with the members of the amaMpondo community and the royal
family, including the appellants. That is why, incidentally,
there
can be no merit in the appellants’ non-joinder argument.
[20]
As with other decisions of public bodies, the decisions and processes
of the Commission and its interpretation of history and
customary law
and practices have been challenged in certain instances.
[17]
I highlight, however, that the decision of the Commission is extant
in this case. And although the Constitutional Court set aside
the
recognition of Zanozuko by the President, the decision remains. All
that is required is its implementation by the President.
It is within
that context that the matter now proceeds. Must the President then
hold further consultations with the members of
the royal family as
part of the process of implementing the decision of the commission?
[21]
The proper approach to interpretation of documents and statutes has
been repeatedly explained by this court. In
National
Joint Municipal Pension Fund v Endumeni Municipality
[18]
this court held, amongst other things, that, in interpreting
documents, ‘consideration must be given to the language used
in
the light of the ordinary rules of grammar and syntax; the context in
which the provision appears; the apparent purpose to which
it is
directed and the material known to those responsible for its
production.’ And that: ‘A sensible meaning is to
be
preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent purpose of the document.’
[19]
[22]
The approach suggested by the appellants to interpretation of s 26(2)
of the Old Act would clearly lead to absurdity. Even
on a purely
textual approach it makes nonsense of the dispute resolution process
provided for in s 25(1) and 25(2)(i) and(ii) of
the Old Act. It is
inconsistent with the plain reading of the Old Act and ignores the
role and authority of the Commission, and
the provisions of s 26(2).
The plain meaning of s 26(2)
(a)
is
that once the Commission has made a decision, the President must
implement it. On the appellants’ interpretation the decision
of
the Commission would be followed by another round of consultations
from which the royal family could identify, as the king,
a person
other than the one identified in the decision of the Commission. In
terms of s 9(1)
(b)
the President would be obliged to recognise the person so identified
by the royal family subject to the provisions of s 9(3).
[23]
In terms of the Old Act neither the President nor members of the
royal family can ignore, or act contrary to, the decision
of the
Commission. Such would be the case if the provisions of s 9
would be applicable as contended by the appellants. It
is
inconceivable that, having vested the Commission with the power to
decide disputes, the legislature would, thereafter, put in
place a
process that would undermine the authority of the Commission. As set
out above, proper adherence to s 25(3) meant
that consultations
were to be held prior to the decision being taken by the Commission.
Nowhere else in the Old Act, other than
in s 25, was the power
to decide leadership disputes granted. Therefore once the Commission
had taken a decision on a dispute,
there was no room for consultation
after the fact. That decision had to be communicated to the President
for
immediate
implementation
.
[20]
Implementation could only be done in terms of s 9(2) of the Old Act
which sets out the method of recognising a king.
[24]
In my view once there was a dispute as to the identity of a king, and
the provisions of s 25 of the Old Act became applicable,
the
legislature did not envisage that the provisions of s 9(1) would
be applicable. Section 9(1) would only be applicable
in instances of
uncontentious succession to the king’s throne.
[25]
A further string to the appellants’ bow was that the provisions
of s 10(1)
(c)
of the Old Act
[21]
were applicable to the implementation process, because the process
entailed the removal of Mpondombini who had been deemed to be
a king
in terms of s 28(1) of the Old Act and s 28(8) of the New Act.
The submission was that the identification of Zanozuko,
on 21 January
2010 as the rightful king had no external effect until the purported
recognition on 3 November 2010 when the President
purported to issue
the notice of recognition. By that time Mpondombini had, with effect
from 25 January 2010 been deemed a king,
so it was argued.
[26]
Section 28 of the Old Act was headed ‘Transitional
arrangements’. In the relevant part it provided that:
‘
(1)
Any traditional leader who was appointed as such in terms of
applicable provincial legislation and was still recognised as a

traditional leader immediately before the commencement of this Act,
is deemed to have been recognised as such in terms of section
9 or
11, subject to a decision of the Commission in terms of section 26.’
[27]
Section 28(8) of the New Act provides that:
‘
(8)
(a)
Where
pursuant to an investigation conducted in terms of subsection (7),
the Commission has decided that a paramountcy qualifies
to be
recognised as a kingship or queenship, such a paramountcy is deemed
to be recognised as a kingship or queenship in terms
of section 3A.
(b)
The
incumbent paramount chiefs, in respect of the kingships and
queenships contemplated in paragraph
(a),
who
were recognised before the commencement of this Act, are deemed to be
kings and queens subject to investigation and recommendation
of the
Commission in terms of section 25(2).’
[28]
It is necessary to point out that, contrary to the appellants’
submission, the Constitutional Court said in its judgment
that
Mpondombini’s challenge to the decision of the Commission and
the President’s recognition of Zanozuko was instituted
in the
Gauteng High Court, Pretoria, before the President’s notice of
recognition was issued.
[22]
In any event, reliance on these provisions of the Acts does not
assist the appellants. As stated, their argument is that, based
on
these provisions, Mpondombini was deemed to be a king and he would
have had to be removed from the throne in terms of s 10(1)
(c).
To demonstrate the error of the appellants’ reliance on s10 the
provisions thereof are cited in full. The section provides:
‘
10.
Removal
of kings or queens
.
(1)
A
king or queen may be removed from office on the grounds of—
(a)
conviction
of an offence with a sentence of imprisonment for more than 12 months
without an option of a fine;
(b)
physical
incapacity or mental infirmity which, based on acceptable medical
evidence, makes it impossible for the king or queen to
function as
such;
(c)
wrongful
appointment or recognition
(d)
a
transgression of a customary rule or principle that warrants removal.
(2)
Whenever any of the grounds referred to in (1)
(a)(b)
and
(d)
comes to the attention of the royal family and the royal family
decides to remove the king or queen, the royal family must, within
a
reasonable time and through the relevant customary structure-
(a)
inform
the President, the Premier of the Province concerned and the
Minister, of the particulars of the king or queen to be removed
from
office;
(b)
furnish
reasons for such removal; and
(c)
give
written confirmation to the President that the Premier of the
province concerned and the Minister have been informed accordingly.
(3)
Where it has been decided to remove the king or queen in terms of
subsection (2),
the President must-
(a)
withdraw
the certificate of recognition with effect from the date of removal;
(
b
)
publish a notice with particulars of the removed king or queen in the
Gazette
;
and
(
c
)
inform the royal family concerned, and the removed king or queen of
such removal.
(4)  Where
a king or queen is removed from office, a successor in line with
customs may assume the position, role and
responsibilities, subject
to
section
9
.’
[29]
Section 10(1) sets out the reasons for which a king may be dethroned.
Even if, as the appellant claimed, Mpondombini had been
deemed to be
a king and therefore the implementation of the Commission’s
decision required his removal for the reason stated
in s 10(1)
(c),
no
process or procedure is laid down in s 10 for such removal. The
provisions of this section therefore do not support the
appellants’
contentions.
[30]
Lastly, regarding the respondents’
locus
standi
to seek the declaratory relief, it is trite that an existing dispute
is not a pre-requisite for jurisdiction.
[23]
There must be, as there are in this case, interested parties so that
the declaratory order is binding. Further, considering the
nature of
this matter, the exercise by the high court of its discretion in
favour of making the declaratory order, was proper.
All the three
respondents have an interest in the proper implementation of the
decisions of the commission. This is so particularly
in the light of
their assertion that more decisions of the Commission presently await
implementation.
[31]
Consequently the following order is granted:
The
appeal is dismissed.
________________
N DAMBUZA
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellants:

P M Mtshaulana SC (with P Seleka SC)
Instructed by:
Webber Wentzel Attorneys, Johannesburg
c/o Webbers, Bloemfontein
For
the Respondents:

N Arendse SC (with D Börgstrom)
Instructed by:
Bhadrish Daya Attorneys, Pretoria
c/o Matsepes Inc,
Bloemfontein
[1]
Since its extensive amendment by the
Traditional Leadership and Governance Framework Act 23 of 2009 this
Act has been referred
to as the Old Act (eg in the proceedings
before the high court. See also
Sigcau
v President of the Republic of South Africa & others
2013
(9) BCLR 1091 (CC)).
[2]
In s 5.10 of the White
Paper which preceded the establishment of the Commission this is
explained as follows: ‘[Colonial]
legislation transferred
powers to identify, appoint and/or recognise and depose traditional
leaders from traditional institutions
to the [colonial] government.
In the process the role of customary institutions in the application
of customary rules and procedures…
were substantially
reduced. In some instances, not only [were] illegitimate traditional
leaders and authority structures appointed
or established. But other
legitimate traditional leaders were removed and legitimate authority
disestablished.’ See Jeff
Peires ‘History v Customary
law: Commission on Traditional Leadership – Disputes and
Claims’ (2014) 49
South
African Crime Quarterly
1 at 14.
[3]
Section 22(1) of
the old Act provides that, ‘[t]here is hereby established a
commission known as the Commission on Traditional
Leadership
Disputes and Claims.’
In
terms of s 23(1) ‘[t]he President must appoint not more than
15 persons as members of the Commission who are knowledgeable

regarding customs and the institution of traditional leadership
.’
[4]
In terms of s 25(5) of the Act, this
period could be extended by the President.
[5]
Section 25(2)
(a)
(i)
of the Old Act.
[6]
See sections 25(2)
and 26(1) of the New Act. For instance, s
25(2)
(a)
(i)
of the New Act provides that [t]he Commission has authority to
investigate and
make
recommendations
on a case
where there is doubt as to whether a kingship … was
established in accordance with customary law and customs.’
(my
emphasis) Section 26 thereof deals with the recommendations of
Commission.
[7]
Section 26(2) and (3).
[8]
For a brief history of the amaMpondo
lineage, see
Sigcau v
President of the Republic of South Africa and others (Centre for Law
and Society as amicus curiae)
[2013] ZACC 18
;
2013 (9) BCLR 1091
(CC) paras 1-3.
[9]
Loosely translated, an ‘ikumnkani’
means a ‘chief’.
[10]
Whose lineage is traced back to the
great regent Faku.
[11]
Nelson’s son was Zwelidumile,
Zanozuko’s father.
[12]
See
Sigcau
v President of the Republic of South Africa and others (Centre for
Law and Society as amicus curiae)
[2013] ZACC 18; 2013 (9) BCLR 1091 (CC).
[13]
Subsection 3 relates to instances
where there is evidence or allegations that the identification of a
person as a king or a queen
was not done in accordance with
customary law, customs or processes.
[14]
These sections read:
‘
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.
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 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.’
[15]
Pereis, see above fn 2. The criticism
being that members of the Commission impose their personal views of
customary law and custom
rather than those emanating from the
communities. For example, the Commissioners were unwilling to accept
that the amaMpondo
could have two kingships, ie in respect of
amaMpondo aseNyandeni and amaMpondo aseQaukeni.
[16]
Section 25(1
)(b)
of the Old Act.
[17]
Sandile v President of the
Republic of South Africa & others
(GP)
unreported case no 22654/2011 of 18 October 2016.
[18]
National Joint
Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13;
2012 (4) SA
593 (SCA).
[19]
Ibid
para 18.
[20]
See s 26(2)
(a)
of the old Act.
[21]
Section 10(1)
(c)
states
that a king or queen may be removed from office on the grounds of
wrongful
appointment or recognition.
[22]
Para
14 of the judgment.
[23]
Ex Parte Nell
1963
(1) SA 754
(A).