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[2019] ZAECMHC 23
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Matiwane v President of the Republic of South Africa and Others (2047/2018) [2019] ZAECMHC 23; [2019] 3 All SA 209 (ECM) (16 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION:MTHATHA
CASE NO.
2047/2018
LUZUKO
MATIWANE
Applicant
and
THE
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 1
ST
Respondent
THE
MINISTER OF CO-OPERATIVE GOVERNANCE AND
TRADITIONAL
AFFAIRS
2
ND
Respondent
THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 3
RD
Respondent
THE
COMMISSION FOR TRADITIONAL LEADERS
4
TH
Respondent
SIMPIWE
SYDWELL
MOLOSI 5
TH
Respondent
DOSINI
ROYAL
FAMILY 6
TH
Respondent
JUDGMENT
BROOKS
J
Introduction
[1]
At the heart of this application lies a claim for the official
recognition and reinstatement
of the kingship of AmaMpondomise
[1]
,
a traditional community whose members reside in the main in the
Eastern Cape province of South Africa.
[2]
The applicant is amongst those AmaMpondomise who hold competing
claims for recognition
as king. In the founding affidavit he
describes himself as “the senior Chief of AmaMpondomise”.
The fifth
respondent in this application describes himself as “a
great grandson of the AmaMpondomise King Dosini Royal Family”,
which is the sixth respondent herein.
[3]
The first to the fourth respondents, being the President of the
Republic of South
Africa, the Minister of Co-operative Governance and
Traditional Affairs, the Government of the Republic of South Africa
and the
Commission for Traditional Leaders respectively, were all
cited
nomine officio
by the applicant in these proceedings.
The fifth and the sixth respondents were not cited as parties.
At the hearing
of the application they presented themselves at court
armed with a substantive application for joinder as parties.
Preliminary
issues
[4]
The application for joinder was based upon the substantial interest
held by the fifth
and the sixth respondents in the outcome of the
proceedings. They wished initially to seek a postponement of
the matter to
enable them to file further affidavits. It was
apparent that in principle they were supportive of the application
but were
opposed to the adjudication by this court upon the issue of
the applicant’s claim to be the person entitled to be King of
AmaMpondomise. The application for joinder was opposed by the
applicant. However, the parties and their legal representatives
very properly and maturely applied their minds to the issue and
agreed that the applicant would withdraw his opposition to the
joinder application and would seek no relief declaring him to be King
of AmaMpondomise. This paved the way for the fifth
and the
sixth respondents to be joined as parties in the application and to
participate therein without first requiring a postponement.
[5]
On the issue of the appropriate order to make in respect of the costs
of the application
for joinder, the court had regard to two main
considerations. The first was that the substantial interest of
the fifth and
the sixth respondents was obvious to the applicant from
the outset. They ought to have been cited by the applicant
initially
when the proceedings were commenced by the issue of the
notice of motion in early May 2018. The second consideration
was
that, given the importance of the claim at the heart of the
application and the competing claims held by prominent members of the
community to be appointed as King of AmaMpondomise, it was somewhat
unreasonable of the fifth and the sixth respondents not to
bring
their application for joinder much earlier and at a stage before
their joinder ran the risk of being the cause of a postponement
of
the application with substantial wasted costs being incurred.
Upon due consideration of all the factors, the following
order was
made:
“
1.
The applicants in the joinder application are hereby joined as the
fifth and the
sixth respondents.
2.
No order is made in respect of the costs occasioned by the joinder
application.”
[6]
Soon after the application was issued by the applicant it became
opposed by the first
to the fourth respondents. At the hearing
of the matter counsel who appeared on behalf of the first respondent
sought the
leave of the court to introduce a further affidavit
deposed to on behalf of the first respondent in which his opposition
to the
application was withdrawn. It is apposite to record that
this affidavit had been deposed to prior to there being any
indication
of a resolution of the issues between the applicant and
the fifth and the sixth respondents pertaining to the latters’
joinder
and their opposition to the applicant seeking an order
declaring him to be the rightful heir to AmaMpondomise kingship.
Whatever
form the future conduct of the application was to take was
to be without opposition by the first respondent.
[7]
There being no opposition by any of the parties to the application,
the following
order was made:
“
The further
affidavit deposed to on behalf of the first respondent on 29 April
2019
and
effectively withdrawing the opposition by the first respondent, is
hereby accepted as part of the main application.”
The
relief sought by the applicant
[8]
The relief remaining in the applicant’s amended notice of
motion was expressed
as follows:
“
1.
Condoning the late institution of these proceedings and allowing the
applicant
to proceed accordingly;
2.
Reviewing and setting aside the decision of the President of the
Republic of
South Africa,
the substance of which was that AmaMpondomise never had
a
Kingship and thus refusing to instate or re-instate it (the
kingship);
3.
Declaring that AmaMpondomise did have a kingship;
4.
Instating or reinstating or restoring the said kingship;
5.
...
6.
Costs against the 1
st
and the 3
rd
respondents
and against the remaining
respondents only in the event of them opposing this application;
and
7.
Granting such further or alternative relief as this court may deem
appropriate.”
(sic)
Condonation
[9]
The decision sought to be reviewed and set aside was taken by the
former President
of the Republic of South Africa, J.G. Zuma (“the
former President”) and was communicated in a letter dated 21
July
2017 written by the Acting Head: Legal and Executive Services in
the Presidency, G Mphaphuli (“Mphaphuli”).
[10]
The parties were
ad
idem
that in taking the impugned decision the former President was
performing an administrative action
[2]
.
Accordingly, the manner in which the applicant should challenge the
decision is governed by the provisions of the Promotion
of
Administrative Justice Act
[3]
(“PAJA”). In terms of the provisions of s 7 (1) of
PAJA, proceedings for judicial review must be instituted without
unreasonable delay, but in any event not later than 180 days after
the applicant became aware of the decision. In order to
comply
with these provisions the applicant was obliged to institute these
proceedings prior to 21 January 2018. Inasmuch
as the applicant
instituted proceedings only in early May 2018 it was encumbent upon
him to give a full explanation for the delay
[4]
and
to seek condonation therefor. Upon consideration of the
explanation and an acceptance thereof as reasonable the court
is
empowered to grant condonation, thereby permitting the application to
proceed
[5]
.
[11]
The explanation offered by the applicant in the founding affidavit
can be summarised as follows.
As an individual the applicant
had no money to fund litigation. Moreover, the effect of the
decision taken by the former
President was upon AmaMpondomise as a
community and it was encumbent upon the applicant to consult broadly
with members of the
community before taking the decision to institute
the proceedings. Central to the consultative process was also
the question
of funding. The process involved what the
applicant describes as “countless local communities located in
numerous villages”
and lasted until March 2018. According
to the applicant “the royal house took the decision to litigate
during the first
week of April 2018”, once there was a measure
of comfort that there was enough financial support. It was only
then
that the applicant’s attorney of record commenced the
process of collecting relevant material and engaging consultations
with senior and junior counsel. This all culminated in the
finalisation of a founding affidavit during the second week of
May
2018. The application was then launched without further delay.
[12]
In explaining the basis for their opposition to the applicant being
granted condonation for his
failure to commence proceedings within
the prescribed 180 day period, counsel for the second, third and
fourth respondents submitted
that the applicant had not given
sufficient details to enable the court to conclude that the
explanation for the delay was reasonable.
What was required, it
was submitted, was an accurate summary of all the dates upon which
consultative meetings had been held, and
the names of the places
where they had been held, coupled with a more detailed summary of the
dates upon which the legal team had
taken steps to advance the
preparation of the application. In the light of the obvious
effect of the decision upon the broader
community and the applicant’s
candid disclosure that without community assistance he was
impecunious to commence litigation,
the criticism holds little
merit. Moreover, the period of time between the decision to
litigate and the institution of proceedings,
in which the legal team
was involved, is not one which is suggestive of an unusual delay
which calls for a more detailed explanation.
[13]
The court has a discretion whether or not to grant condonation.
That discretion must be
exercised in a judicial manner, with due
regard to the nature of the relief sought, the extent of the effect
of the cause of the
delay upon the administration of justice, the
reasonableness of the explanation for the delay, whether or not the
delay has caused
prejudice to the other parties, the importance of
the issue for determination to the parties and the applicant’s
prospects
of success.
[6]
[14]
The overarching focus in testing whether or not condonation should be
granted is a consideration
of what outcome would be in the interests
of justice. There can be no doubt about the fact that the
central issue with which
this application is concerned is of
considerable importance to AmaMpondomise as a community and the
applicant as one of their senior
traditional leaders. The
applicant has given a satisfactory and reasonable explanation for the
delay in commencing the proceedings,
which in itself was not
inordinate. Moreover, the applicant enjoys good prospects of
success in the application. Accordingly,
I am of the view that
it is in the interests of justice to grant the applicant condonation
for the delay in commencing these proceedings.
The
Tolo Commission
[15]
The letter written by Mphaphuli on 21 July 2017 in which the decision
taken by the former President
is communicated
[7]
raises a number of issues which the applicant relies upon.
Attached thereto was copy of the former President’s minute,
bearing the number 323, which was dated 13 December 2016.
Paragraph 4 of Mphahuli’s letter states:
“
[t]he court set
aside the decision of the Commission
[8]
.
After considering the above mentioned judgment, the
Commission decided to re-investigate the claim of your client.
Having reconsidered the claim of your client, the Commission came to
the conclusion that the claim for the restoration of
kingship
of AmaMpodomise of Qumbu and Tsolo be dismissed. The
recommendations of the Commission in this regard were
conveyed to me in terms of
section 26
of the
Traditional Leadership
and Governance Framework Act, 2003
.”
[9]
[16]
Paragraph 5 of Mphaphuli’s letter continues, stating that:
“
[a]fter taking
into consideration the recommendations of the Commission, the
President declined the kingship
claim of Nkosi Loyiso Matiwane
[10]
and directed the Minister of Co-operative Governance and
Traditional Affairs to take the necessary steps to implement
the decision. Attached is the President’s Minute
containing the President’s decision.”
[17]
The former President’s minute attached to the letter states the
following in the first
three unnumbered paragraphs:
“
WHEREAS the
Commission on Traditional Leadership Disputes and Claims
[11]
has submitted its recommendations in respect of the kingship claim of
the AmaMpondomise to the President of the Republic of South
Africa
and the Minister for Co-operative Governance and Traditional Affairs
in terms of
section 26
(2) of the Traditional Leadership and
Governance Framework Act, 2003, (Act No 41 of 2003) (Framework Act);
AND WHEREAS section 26
(3) of the Framework Act requires the President to take
a decision on
the recommendations of the said Commission within 60
days from the
date
the recommendations having been conveyed to the President;
NOW THEREFORE, in terms
of section 26 (3) of the Framework Act, I hereby
decline the kingship claims of
the following claimants:
1.
Nkosi Loyiso Matiwane;
2.
Mr Vicks Velile Tonjeni; and
3.
Mr Masibulele Maseti.”
[18]
The
Traditional Leadership and Governance Framework Act 41 of 2003
first came into operation on 24 September 2004. It was later
amended by the enactment of the Traditional Leadership and Governance
Framework Amendment Act 23 of 2009. In order to distinguish
between the two pieces of legislation in this judgment, Act 41
of
2003 shall be referred to as “the Original Act” and Act
23 of 2009 shall be referred to as “the Amended Act”.
[19]
In accordance with the provisions of the Original Act the claim for
the kingship of AmaMpondomise
was lodged with and investigated by the
Nhlapho Commission. As reflected in the former President’s
minute there were
three claimants. The Nhlapho Commission was
established in terms of the provisions of s 22 of the Original Act,
which conferred
upon it powers to decide on any dispute and claims
concerning traditional leadership. Accordingly, the Nhlapho
Commission
had the power and authority to
mero
motu
or
upon request by way of the lodgement of a claim or the declaration of
a dispute for incumbency, conduct an investigation.
Its powers
were conferred upon it by the provisions of s 25 of the Original
Act
[12]
. In terms of the
provisions of s 26 of the Original Act, the resultant decision of the
Commission had to be conveyed to the
President “for immediate
implementation”
[13]
.
[20]
In terms of the provisions of s 11 as read with s 22 of the Amended
Act the Tolo Commission was
established as the successor in law of
the Nhlapho Commission.
[14]
[21]
The powers and authority of the Tolo Commission are prescribed by the
provisions of s 25 of the
Amended Act.
[15]
A comparison of the two empowering sections reveals that the Tolo
Commission enjoys less extensive powers than those enjoyed
by the
Nhlapho Commission. There are two aspects of the reduction in
powers which are of importance in the circumstances
of the present
application. They have been referred to recently by the Supreme
Court of Appeal. In a judgment
[16]
delivered on behalf of the full court Mothle JA stated at paragraph
[20]:
“
It was the
function of the old Commission to
mero motu
or on lodging of a
claim or
declaring a leadership dispute for
incumbency, in terms of s 25 (2)
(a) (iii) of the Original Act, to conduct an investigation and
take a decision in resolving
the
leadership dispute. Similarly, it was also the function
of the
new Commission on lodging of a claim or declaring a leadership
dispute to investigate and make a recommendation
in terms of s 25 (2) (a) (iii) of the Amended Act. The new
Commission did not have the authority to investigate
mero motu
or take a decision after
investigation.”
[22]
It is common cause between the parties that the Nhlapho Commission
performed its functions in
terms of the powers conferred upon it by
the provisions of the Original Act. On 9 February 2010 it
produced its report which
contained its decision upon the claim
regarding AmaMpondomise kingship. According to the content of
the answering affidavits
filed on behalf of the fourth respondent,
its term of office came to an end on 31 January 2010. Against
this factual background
there is no room for any contention which
suggests that the Nhlapho Commission left behind it the claim
regarding AmaMpondomise
kingship as an unresolved claim, pending and
requiring the attention of its successor in law, the Tolo Commission.
[23]
The essence of the Nhlapho Commission’s decision was that
AmaMpondomise did not have a
kingship and accordingly there was no
kingship to be restored. Accordingly it decided that the three
claims before it were
unsuccessful. In making this decision and
communicating it, the Nhlapho Commission became
functus officio
.
Moreover, its term of office, characterised by the powers and
authority conferred upon it by the provisions of the Original
Act,
had come to an end by virtue of the enactment and coming into
operation of the Amended Act.
[24]
As he was entitled to do, the applicant challenged the decision of
the Nhlapho Commission.
It amounted to administrative action
which had an adverse effect upon the applicant. He held the
view that there were good
grounds upon which the decision of the
Nhlapho Commission should be set aside. Accordingly he
instituted review proceedings
in accordance with the provisions of
PAJA. Those proceedings were brought under case number
2062/2011 in this court and culminated
in a judgment of Griffiths J
which contained the following order:
“
1.
The decision of the Commission on Traditional Leadership Disputes and
Claims (the
sixth respondent), the substance of which was that
AmaMpondomise never had a kingship and thus the refusal to instate or
re-
instate such kingship, is hereby reviewed and set aside.
2.
The first, second, third and sixth respondents are ordered to pay the
costs of
this application, such costs to include the costs of two
counsel where such were employed.”
[25]
There has been no appeal against the judgment delivered by Griffiths
J. That judgment was
delivered on 13 December 2013.
[26]
Griffiths J did not make an order in terms of the provisions of s 8
(1) (c) of PAJA, remitting
the matter back to the decision maker.
Nothing in the judgment suggests that the court was requested to make
such an order.
[27]
The judgment of Griffiths J did not set aside the proceedings of the
Nhlapho commission.
No such relief was contained in the notice
of motion upon which the proceedings were premised. In the
circumstances, those
proceedings, in their completed form, remain
extant. Only the decision taken by the Commission on those
proceedings was set
aside.
[28]
One needs to look no further than the content of paragraph 4 of
Mphaphuli’s letter dated
21 July 2017 to establish what
happened in response to the judgment of Griffiths J which set aside
the decision taken by the Nhlapho
Commission. It records in
explicit terms, unequivocally, that the Commission considered the
judgment and decided to re-investigate
the claim relating to the
kingship of AmaMpondomise. Given that the judgment was delivered on
13 December 2013, the decision taken
by the Commission to
reinvestigate was undoubtedly that of the Tolo Commission. The
decision was taken
mero
motu
.
Governed as it is by the provisions of section 25 of the Amended Act,
the Tolo Commission had no power to take such a decision
and to
commence a re-investigation of a claim which, in any event, had been
investigated to completion, however unsatisfactorily,
by the Nhlapho
Commission. Accordingly, there is no justification for the
decision of the Tolo Commission to re-investigate
the claim to be
found in the provisions of s 11 (b) of the Amended Act
[17]
.
Nor was any claim or dispute placed before the Tolo Commission in
order to activate its lawful and valid engagement therewith.
Nothing in the judgment or orders of Griffiths J is capable of an
interpretation which validly places the claim relating to
AmaMpondomise
kingship before the Commission.
[29]
It follows that the re-investigation of the claim relating to
AmaMpondomise kingship by the Tolo
Commission was unlawful. It
acted
ultra vires
, without statutory authority. It
sought to respond to the judgment of Griffiths J
mero motu
and
as a successor in law to a Commission which was
functus officio
.
It acted
ultra vires
when it purported to invoke the
provisions of s 11 of the Amended Act. For these reasons alone,
the two reports prepared
by the Tolo Commission and its
recommendations are invalid.
[30]
Three answering affidavits were filed on behalf of the fourth
respondent. A fourth affidavit
of no significance was also
filed as a confirmatory affidavit. One affidavit makes no
allegation about the method by which
the claim relating to
AmaMpondomise kingship came to be reconsidered by the Tolo
Commission. It concentrates in the main
upon the work of the
Nhlapho Commission and concludes with a brief summary of the work of
the Tolo Commission. The second
answering affidavit, deposed to
by the Chairperson of the Tolo Commission, denies that the Tolo
Commission had no jurisdiction
“to entertain the AmaMpondomise
kingship claim” and refers to the provisions of the Original
Act in support of the
contention that the reconsideration was valid.
It is, moreover, silent on the method used to place the matter before
the
Tolo Commission. The third affidavit put up as an answering
affidavit deposed to on behalf of the fourth respondent was deposed
to by the Secretary to the National House of Traditional Leaders, who
described himself also as the “Chief Director of House
Traditional Leaders”, and who was the current secretary of the
Tolo Commission. This is the only affidavit which gives
any
factual information about the mechanism by which the Tolo Commission
came to reconsider the claim relating to AmaMpondomise
kingship.
The explanation is offered on behalf of the Tolo Communication in the
following words:
“
It resolved to
re-investigate the amaMpondomise dispute. The decision was
informed in
the main by the fact
that Griffiths J reviewed and set aside the decision of Nhlapo
Commission on a procedural irregularity which
can be addressed by
simply affording amaMpondomise another
opportunity to present their case before
the
Commission.”
[31]
The allegation stating that the decision to re-investigate the claim
relating to AmaMpondomise
kingship was a decision taken by that
Commission is consistent with the allegations made in the applicant’s
founding affidavit,
the content of paragraph 4 of Mphaphuli’s
letter and the content of an internal memorandum prepared by
Mphaphuli and furnished
to the applicant as part of the record of
proceedings after service of the initial notice of motion and
founding affidavit had
been served upon the respondents
[18]
.
Accordingly, it was filed, properly, along with the applicant’s
supplementary founding affidavit. It records
that:
“
[a]fter Griffiths
J’s judgment, the Commission re-commissioned the investigation
into the claims of AmaMpondomise Kingship,
and prepared a report to
the President for consideration.”
In
the circumstances, it is established in the application papers as a
fact which must be accepted that the Tolo Commission
mero motu
decided to reinvestigate the claim relating to AmaMpondomise
kingship.
[32]
Even if the court is incorrect in its conclusion that the further
investigations and reports
by the Tolo Commission were
ultra vires
and should not have been considered by the former President, the
applicant has alleged a number of criticisms of the work of the
Tolo
Commission upon which the submission was made that it’s
recommendations should not have been accepted. The more
important of these are dealt with in the following paragraphs.
[33]
When dealing with the extent of substantive fairness demonstrated in
the work of the Nhlapo Commission
in his judgment, Griffiths J stated
inter
alia
that:
[19]
“
...The more
objective material which emanated from sources outside the
AmaMpondomise, such as writings of local magistrates
and missionaries
of the time, the report of the Cape Law Commission (of 1893) and
material from other writers such as F Brownlee
and Stainier Green,
which were easily obtainable, appears to have been largely
overlooked.
An example of this is the
conclusion reached by the commission that no evidence existed of any
one of the AmaMpondomise traditional
leaders having established a
kingship. In the founding affidavit the applicant referred to
various sources which, so he claimed,
confirmed the fact that the
AmaMpondomise was one of the four kingdoms in the Eastern Cape.
Some of the sources referred
to were...
Based on this and other
material, the applicant submitted that these sources proved
conclusively that the existence of the AmaMpondomise
nation is as
ancient as the various other nations whose kingships have been
recognized, and that the AmaMpondomise have equal status
with the
other kingdoms having been one of the four original traditional
communities (nations) who settled in the present day Transkei
region.
The Commission’s
response to this was, in effect, to maintain that these sources do
not show that the AmaMpondomise were ever
a kingship. Nowhere
in the answering affidavit does the Commission state that it took
these sources into account, that it
analysed them fully and properly
and that on a proper understanding of them, it concluded that such
authorities do not establish
the existence of a kingship.”
[34]
Despite an assertion that the Tolo Commission decided to
reinvestigate the claim relating to
AmaMpondomise kingship in
response to an analysis of the judgment of Griffiths J their work and
the resultant recommendations contained
in their two reports appears
to continue to suffer from the same lack of substantive fairness.
The Tolo Commission attached
to its report lists of references it had
used in coming to its recommendations. The following
references, identified by the
applicant in his founding affidavit, do
not appear in those lists. In the answering affidavits, the
fourth respondent does
not advance any satisfactory factual response
to dispel the impression that the Commission had no regard thereto:
·
“The Reminiscences of Sir Walter Stanford”
Van
Riebeeck Press; Edited by J.W. Macquarrie;
·
Letter from Resident Magistrate Leary, Mt Frere to the Chief
Magistrate,
dated 22 December 1903;
·
Historical Atlas of Southern Africa Map,
E.A. Walker
;
·
“Hidden Struggles in Rural South Africa”
Buddy and
Beinart
;
·
“Blue Book on Native Affairs”
G.M Theal
;
·
R v Mhlontlo, Cape Archives, C.A. King Williams Town Cases
1/1/1/J/22;
·
Report of the Griqualand East Land Commission;
·
Letter from the Chief Magistrate of the Transkeian Authorities to the
Secretary
for Native Affairs dated 26 March 1930;
·
Certificate issued by the Secretary for Native Affairs to the Chief
Magistrate
Umtata (Mthatha) dated 19 December 1949.”
[35]
The allegations made in this regard are met by generalised denials in
the answering affidavits,
with the caveat that the court is referred
to the content of the Tolo Commission’s reports. Such a
response is insufficient
to deflect what must then be accepted as
valid and serious criticism voiced by the applicant in respect of the
extent of the work
done by the Tolo Commission and the poverty
evident in its reports.
[36]
Specific mention is made by Griffiths J in his judgment
[20]
of the fact that the Nhlapo Commission had failed to have any regard
to the documentation prepared by Professor Pieres on AmaMpondomise
kingship. The judgment records that Professor Pieres is an
historian “who is clearly well versed in the very subject
matter which the Commission was mandated to decide.” The
judgment records that “Professor Pieres was a member
of the
Commission and, according to his letter, left the Commission for
these hearings for the very reason that he had made clear
his view
that the AmaMpondomise was a kingdom. In the circumstances, one
would have thought that the Commission would have
turned to him as an
expert in this field and taken advantage of his knowledge and obvious
expertise. By its own admission
it clearly did not.”
[37]
In an attempt to meet this valid criticism in its purported
reinvestigation of the issue of AmaMpondomise
kingship, the Tolo
Commission appears to have had some regard to the documents prepared
by Professor Pieres. However, it
is clear from the record of
proceedings, in itself an unsatisfactory record, that no consultation
was held with Professor Pieres
in order to interrogate the strong
views expressed in the documentation which, indeed, were unequivocal
in their support of a finding
that AmaMpondomise had a kingship.
All that is contained in the second report of the Tolo Commission is
a recordal of the
evidence relied upon by Professor Pieres in a
letter dated 23 November 1994 and a brief comparison of that evidence
with other
contradictory evidence. The conclusion then recorded
is that the evidence relied upon by Professor Pieres is inaccurate
and
cannot be used to support AmaMpondmise kingship. Other
evidence relied upon by Professor Pieres is simply described as
“selective”.
No analysis of the different pieces of
evidence is evident in either the record of proceedings or the second
report produced by
the Tolo Commission to justify its dismissive
conclusion at the end of the report that “[t]he evidence
brought by Professor
Pieres in support of AmaMpondomise kingship is
therefore not convincing”. To simply brand evidence
chosen to be highlighted
because it, more than other evidence, is
supportive of a particular finding as “selective” and
immediately thereafter
dismiss it as “unconvincing” is an
attitude not demonstrative of the sort of careful, scholarly analysis
that one is
entitled to expect from a specialist commission.
Where such a dismissive attitude is evident it must have an adverse
effect
upon the integrity of the recommendations made by such a
commission.
[38]
The lack of evidence of scholarly engagement with available evidence
and the frequently glib
and dismissive manner in which the Tolo
Commission dealt with it is apparent throughout its two reports.
A reading of the
reports leaves an overwhelming impression that for
every piece of evidence identified as being supportive of the
existence of AmaMpondomise
kingship, the commission selected some
feature identified elsewhere which was not in itself completely
dispositive of the argument
and elevated it to become a clear reason
why the supportive evidence must be rejected out of hand. One
example of this approach
is demonstrated by the Commission’s
treatment of the submissions made in respect of evidence of
AmaMpondomise marriages involving
a Royal partner. The second
Tolo Commission report contains the following:
“
The other argument
by AmaMpondomise in their submission to the Commission to justify
their claim that because there were some Mpondomise
“chiefs”
marrying from other Royal houses is a qualifying factor for
kingship. This is not always the case as
there are kings who
had married from royal houses with no kingship.” (sic)
This
statement is not altogether clear but it is demonstrative of an
attitude of almost principalled and dismissive avoidance of
a full
and meaningful engagement with the submissions actually made by
AmaMpondomise based upon the evidence submitted by them.
The
expression of the term “chiefs” in inverted commas
conveys the impression that the Commission was not convinced
that
AmaMpondomise had such leaders. If this is correct, a negative
bias against AmaMpondomise kingship in principle is detectable.
Whilst there may be truth in the concluding observation made by the
Commission, the observation itself leaves room for a factual
finding
that is indeed demonstrative of a royal marriage confirming
kingship. The question as to whether the history of
AmaMpondomise to which the factor may be relevant reveals evidence of
kingship is simply not addressed and not answered. It
seems
that overall the evidence, to the extent that it was identified, was
not approached in a manner which enquired whether
it
established AmaMpondomise kingship on a balance of probabilities, but
whether it was established by the claimants beyond a reasonable
doubt. Even if the latter standard were the appropriate one,
which in my view is not the case, the lack of intellectual engagement
with the material, or academic evaluation of it in all its
complexity, that is evident in the reports militates against a
conclusion
that the Commission had validly excluded grounds which
gave rise to a reasonable doubt about the correctness of their
findings.
[39]
The applicant has alleged that the Tolo Commission failed to afford
AmaMpondomise sufficient
opportunity to make representations before
it. This is disputed in the fourth respondent’s
response. In the light
of the other difficulties evident in the
ultra vires
and insufficient work done by the Tolo Commission
it is not necessary for the purposes of this application to resolve
this dispute.
[40]
A Commission such as the fourth respondent is an organ of state
performing public functions in
terms of the Amended Act which may
adversely affect the rights of persons where those functions have a
direct legal effect in the
envisaged in PAJA. The proceedings
of the Tolo Commission constitute administrative action and its
decisions are of an administrative
nature. The proceedings and
the decisions are therefore reviewable under PAJA
[21]
.
[41]
In the light of the various criticisms directed at the validity and
sufficiency of the work done
by the Tolo Commission in respect of the
claims pertaining to AmaMpondomise kingship which emerged in the
applicant’s founding
affidavits and was developed during
argument, counsel for the fourth respondent submitted that the court
could not make any decision
thereon because the applicant had not
sought a review of the proceedings of the Tolo Commission, or its
decisions, in the amended
notice of motion. In any event,
submitted counsel for the fourth respondent, the proceedings and the
decisions were demonstrated
by the answering affidavits to be above
reproach.
[42]
In my view, insufficient merit is to be found in the submissions made
on behalf of the fourth
respondent to allow the matter to rest there.
The conclusion reached upon a consideration of the material
placed before the
court is that the Tolo Commission failed to
investigate claims relating to AmaMpondomise kingship in a manner
which was sufficiently
scholarly, logical and fair to permit the
resultant recommendations to be regarded as defensible.
Moreover, for the reasons
identified, the relevant proceedings were
ultra
vires
and its reports and recommendations are invalid and ought to be set
aside as well
[22]
.
[43]
Section 172(1) of the Constitution compels every court to declare
invalid any conduct inconsistent
with the Constitution
[23]
.
Exactly the same issues would have emerged in the founding affidavits
as is the case presently were the amended notice of
motion also to
have sought an order that the proceedings of the Tolo Commission and
its recommendations be reviewed and set aside.
It was incumbent
upon the respondents to furnish the record of the proceedings of the
fourth respondent and to respond to the allegations
made by the
applicant in the founding affidavits. They have done so. No
reason exists why an appropriate order upon
a review of the relevant
proceedings and recommendations cannot be made on the application
papers as they stand. The nature
of such an order is intimitely
connected with the enquiry relating to the decision of the former
President in response to the Tolo
Commission recommendations.
In the circumstances of this matter it is in the interests of
justice, certainty and finality
that the invalidity of the relevant
proceedings is not left undisturbed. Of final comfort to the
fourth respondent is the
fact that the applicant’s amended
notice of motion, in its final prayer, keeps the door open for
“further and/or alternative
relief”.
The
decision of the President of the Republic of South Africa.
[44]
It is plain that where a decision was made by the former President
which was based upon recommendations
made by the Tolo Commission
which were invalid, that decision cannot be valid and falls to be set
aside upon review. However,
in the present matter there are
additional features which render the enquiry a more complex one.
[45]
Whilst the opposition of the first respondent to the relief claimed
by the applicant was withdrawn
at the commencement of these
proceedings, counsel for the first respondent was clear in the
expression of her mandate to be the
submission that the court should
still have regard to the affidavits filed on behalf of the first
respondent was deposed to by
the Director – General and
Secretary to Cabinet (based in the Presidency). For the sake of
convenience it is referred
to as the first respondent’s
answering affidavit. Confirmatory affidavits were filed,
including an affidavit deposed
to by Mphaphuli.
[46]
It is common cause that subsequent to the production by the fourth
respondent of its reports
and on 12 December 2016 at Mahlamba Ndlopfu
Presidential House, a meeting with the former President and the
second respondent was
attended by the Secretary of the Tolo
Commission. The latter filed an affidavit on behalf of the
fourth respondent in which
the following allegations are set out:
“
23.At the start of
the meeting, I as a person who attended both investigations in the
AmaMpodomise kingship claim, gave a brief
background of the
AmaMpondomise kingship investigations and the court
proceedings.
24.My report only
focussed on the processes followed by the Commission and not on the
evidence given and the findings of the Commission.
25.
After I had explained all the processes the President then took over
and led the discussions.
It was clear during the discussions
that the President had thoroughly read and researched the history of
AmaMpondomise.
26.
In fact what was also clear during the discussions with the former
President was that he
had read the report and the recommendations
from the Commission. He raised questions that spoke
directly to the contents
of the Commission reports and to the
recommendations.
27.
In particular I recall the former President raising, during the
discussions a debate about
the breakaway of amaMpondo and the
information thereof, the status of the traditional leadership at the
time of the breakaway and
formation of amaMpondo, the reign of
Mhlontlo with particular reference to the status of the traditional
leadership at the time
and the killing of magistrate Hope and what is
commonly known as the Hope War.
28.
All the above pointed to a person who had intense knowledge on the
subject of the discussion
and who had applied his mind to the issues
that were being discussed in the meeting.”
The
correctness of these allegations was confirmed in the first
respondent’s answering affidavit.
[47]
In addition, in the first respondent’s answering affidavit the
deponent states:
“
69.
I confirm that the former President did not consider the full record
of the Tolo Commission.
This was for the following
reasons:
69.1
First, the record of the Tolo Commission is extremely voluminous and
would have taken days for the
former President to consider that
record
in its entirety. This was neither practical nor possible in
light of the
various demands on a President’s time.
69.2 Second, the issues
presented in disputes of this nature are complex. It is
precisely for this reason that the legislative
framework has created
a Commission and entrusted it with the powers and functions that it
has.
69.3Third, the report of
the Tolo Commission fully dealt with the relevant issues; it
did so accurately and succinctly.
Any issues that the former
President considered necessary for discussion or elucidation were
addressed at the briefing meeting
that was held.
69.4
Fourth, it was apparent at the briefing meeting that there were
inconsistent views on whether the AmaMpondomise
fell to be recognised
as a kingship. This, the former President was fully appraised
of. Notwithstanding these
conflicting views, the former
President ultimately adopted the recommendations of the Tolo
Commission.
70.
I emphasise that the former President did not consider the internal
memorandum which did
not serve before him.”
[48]
When read together, the allegations set out in the preceding
paragraphs suggest that the former
President did not have time to
read the record of the Tolo Commission, as this would have taken days
and he didn’t have the
time to do so. However, far from
being merely the recipient of a briefing, at the meeting the former
President “took
over and led the discussion”, making it
clear that he “had thoroughly read and researched the history
of AmaMpondomise.”
He had apparently also read the
reports and recommendations of the Tolo Commission.
[49]
What was the nature and the extent of the former President’s
research and reading outside
the material contained in the
recommendations and reports of the Tolo Commission? How and to
what extent did this research
and reading inform and influence his
decision to accept the recommendations made by the Tolo Commission?
Crucial though they
are to an assessment of whether the former
President’s decision was rational and clothed with legality or
whether the decision
was arbitrary and therefore unlawful, the
answers to these questions do not emerge from the application papers
because the former
President did not file an affidavit dealing with
the allegations made by the applicant about the circumstances which
gave rise
to the impugned decision. Nor did the former
President provide any record of the material to which, over and above
the reports
and recommendations of the Tolo Commission, he had regard
in taking his decision.
[50]
Given the
lacunae
created by the allegations in the answering affidavits and the lack
of an affidavit and record from the former President pertaining
to
the decision taken by him, it is difficult to avoid reaching a
conclusion that he reached his decision by unjustified, and therefore
improper, means and that the decision must be deemed to be arbitrary
and therefore unlawful
[24]
.
[51]
Once such a conclusion is reached in respect of administrative
action, the court has no discretion.
It must make a declaration
of invalidity where administrative action is inconsistent with the
provisions of the Constitution
[25]
.
Substitution
order
[52]
The court is empowered by the provisions of s 8 (1) of PAJA to grant
an order which is just and
equitable. This power arises
whenever administrative action is set aside
[26]
.
[53]
In considering whether it would be appropriate in the circumstances
of this matter to grant an
order in substitution for the impugned
decision of the former President and, if so, what order would be just
and equitable in the
circumstances, regard must be had to the
following factors.
[54]
In broad terms the claim for the reinstatement of AmaMpondomise
kingship has a long history.
Since the return of Mhlontlo to
Qumbu in 1906, AmaMpondomise have persistently appealed for the
reinstatement of their kingship
to the colonial government, the
government of the Union of South Africa, the government of the
Republic of South Africa and the
government of the former “homeland”
then known as the Republic of Transkei. On this general
history, set out
in the applicant’s founding affidavit, there
is no dispute. Correspondence was submitted to the government
of the day
through the former “native representatives” in
parliament between 1925 and 1936. Later, a group of
AmaMpondomise
known as the Mpondomise Progressive Association made
similar representations to the chief magistrate in Transkei.
[55]
In 1977 a motion for the restoration of AmaMpondomise kingship was
successfully piloted through
the Emboland Regional Authority by Chief
Tyali but it was later shelved by the office of the prime minister in
the former Republic
of Transkei. It is the view of the
applicant that this was done for reasons of political expedience.
Allegations made
by the applicant in this regard are simply “noted”
in the fourth respondent’s answering affidavit.
[56]
In 2002, subsequent to the installation of a government which was
representative of all the inhabitants
of South Africa in 1994, the
house of Traditional Leaders in the Eastern Cape recommended the
restoration of kingship. In
2003 the Provincial Standing
Committee on Traditional Affairs recommended to the provincial
legislative assembly in the Eastern
Cape that the President should
restore government recognition of the kingship of AmaMpondomise.
This was approved by the
legislative. Again, these allegations
in the applicants founding affidavit are merely “noted”
in the answering
affidavits filed on behalf of the fourth respondent.
[57]
Supported by twenty five chiefs of AmaMpondomise, each of whom has
his traditional council, the
claim for reinstatement of AmaMpondomise
kingship was submitted to the President of the Republic of South
Africa in April 2006.
It was also supported by Mhlontlo
Municipality, a local municipality which has oversight in the
districts of Qumbu, Tsolo, Ntabankulu
and portions of Libode.
This claim was referred to the Nhlapho Commission. Inasmuch as
the findings of the Nhlapho
Commission were tainted by numerous
errors and omissions, they were challenged successfully by the
applicant in this court before
Griffiths J under case number
2062/2011. Subsequent events form the more proximate premise
for the present court proceedings
and have been described earlier in
this judgment.
[58]
In his founding affidavit the applicant sets out a summary of
AmaMpondomise history. The
only challenge it receives in the
answering affidavits is a general denial in which the court is then
referred to the content of
the Tolo Commission reports. Given
their relative brevity and the deficiencies therein which have been
identified elsewhere
in this judgment, such a response from the
fourth respondent is insufficient to displace the allegations made by
the applicant.
Accordingly, the court has regard to the
applicant’s summary of relevant AmaMpondomise history.
The relevant portions
of the founding affidavit are quoted as
follows:
“
JURISDICTION
21.I
and the vast majority
[27]
of AmaMpondomise are ordinarily resident in the Qumbu / Tsolo area,
within the area of jurisdiction of this Court. The adverse
effect of the commission’s decision that is the subject
of these proceedings is being experienced, in the main,
in the
Qumbu / Tsolo area.
22.Accordingly,
I submit that, based on the definition of “court” in the
Promotion of Administrative Justice Act 3 of 2000
(“PAJA”),
this Court does have jurisdiction to entertain this matter.
AMAMPONDOMISE
AS A NATION
23.AmaMpondomise
are a people who reside presently in the districts of Qumbu, Tsolo as
well as the neighbouring districts of Mount
Frere, Mount Fletcher,
Maclear and Elliot. Nowadays in the main they are to
be
found in the first two districts (Qumbu and Tsolo). They were
dispossessed of and/or displaced from the latter four
by
previous colonial governments.
24.AmaMpondomise
were one of the four kingdoms of the Eastern Cape. This is
confirmed by the following sources:
(a)
Stavenisse survivors: During 1688, the Dutch ship Stavenisse, was
wrecked off the Transkei
coast. The survivors recorded the
names of the nations through which they passed: “theSemboes
(abaMbo), Mapontemousse
(amaMpondomise), the Maponte (AmaMpondo), the
Matimbes (abaThembu), the Magryghas (Griquas) and Magosse
(amaXhosa).” R Vigne,
Guillaume Chenu de Chalezac (Cape Town:
Van Riebeeck Society), 1993, p. 108.
[28]
(b)
Vete, the son of Mziziba, recounted to the Cape Law Commission
in 1883 as follows:
“Four of the chiefs living at the Dedesi
(ancestral river) were Togu, the ancestor of what are now
called Gcalekas,
Hala, the ancestor of what are now called the
Abatembu, and Malangana and Rudula, the fathers of the
Amampondomise.
The Amampondo separated from us before
this time, and crossed the Umzimvubu river lower down than we
did.”
[29]
(c)
Dennis Pennington of Flagstaff, a white person who is reported to
have been
a fluent isiXhosa speaker, recorded the following in
the
Umthunywa
newspaper of 31 January 1953:
“‘
Yazala
amawele amabini uMpondomise noMpondo. Bakhulile ke aabo
bantwana uMpondomise omdala noMpondo omncinane.’
[30]
They divided the land between them, ‘Mpondomise yiya
kulaa nqhayi (part of land), nawe Mpondo
yiya kuleya.’”
[31]
25.
These sources prove conclusively that:
25.1
the existence of AmaMpondomise is as ancient in the Eastern Cape as
that of AmaXhosa, AbaThembu and
AmaMpondo, all (i.e. the latter
three) of whose kingships have been recognized;
25.2
AmaMpondomise have equal status with the other kingdoms and
Amampondomise are one of the four original traditional
communities
(nations) who settled in the present day Transkei region.
26.
The kingship of AmaMpondomise was destroyed by European colonialists
in the so-called
Mpondomise rebellion of 1880-1881. King
Mhlontlo of AmaMpondomise was present when Hamilton Hope, the
white Magistrate of
Qumbu, was killed. He was supported
in the war by his brother, who was a chief under him, Mditshwa,
whose direct
descendants (the Mditshwas) are the royal family
of present place Tsolo. The current chief or senior traditional
leader
of Tsolo is Mandlesizwe Mditshwa.
27.
After the war was over, Mhlontlo went into exile in Lesotho and
Mditshwa, his brother,
was imprisoned on Robben Island. Much of
the land of the AmaMpondomise was confiscated, leaving
them with the small
portions which they have today. Source: W
Beinart and C Bundy,
Hidden
Struggles
.
[32]
28.
After Mhlontlo’s return from exile, the colonial rulers never
restored the kingship.
The European authorities forever bore a
grudge on account of the murder of one of their own, Hope.
Charles, the son of Mhlontlo,
evenabandoned his father’s name,
and adopted as his surname the name of Matiwane, his grandfather.
The colonial authorities
demoted the kingship of AmaMpondomise and
only restored chieftainship on 26 March 1930. This
chieftainship was restored to
Sigidi, son of Charles, who was a minor
at the time. His uncle, Isaac Matiwane, assumed the position of
regent. The
colonialists divided the AmaMpondomise nation into
two, namely, Tsolo and Qumbu. They installed Lutshotho
Mditshwa
as the chief of Tsolo and Sigidi as the chief of
Qumbu, thereby destroying the united kingdom of AmaMpondomise
under
one king, a descendent of King Mhlontlo.
29.
It can be seen from this brief history that the kingship of
AmaMpondomise never died a natural
death but was destroyed by
colonialism. I attach hereto a research document prepared by
Professor Jeff Peires and marked
“F” which
this Court is referred to. I also attach hereto marked “G”
and “H” a letter issued by the Chief Magistrate of the
Transkeian Territories dated 26
th
March 1930.
30.
Based on the above historical evidence and what is detailed
hereunder,
[33]
the former the existence of the AmaMpondomise monarchy over an
independent, ethnological group under an unbroken genealogical line
of a succession of kings cannot be gainsaid.
31.
The roots of AmaMpondomise date back to the pre-colonial era of King
Sibiside, the progenitor
of the AbaMbo tribes which include the
AmaNgwane of Nomafu, the Kabazela of Mavovo, AmaMpondomise, AmaMpondo
and AmaXesibe of Njanya.
The first two groups remained in what
is now known as Kwazulu-Natal and were absorbed into the Zulu
Nation. Njanya moved
South and crossed the Drakensberg into the
Umzikhulu area about 1620. This history is reflected in the
following books:
J H
Soga,
South Eastern Bantu
pp 49-51, 249-301, 336;
F
Brownlee,
Transkei Historical Records
pp 111-118;
W D
Hammond – Tooke,
Command or
Consensus
pp 43 – 44;
E A
Walker,
Historical Atlas of Southern
Africa Map 2
p. 6
THE
ESTABLISHMENT OF THE AMAMPONDOMISE KINGDOM
AND
THE SUCCESSIVE KINGS OF THAT KINGDOM
32.
Historians concur that one of the most notable kings of AbaMbo (this
being the group of
people from which AmaMpondomise originate), was
King Sibiside. King Sibiside had three sons, namely, Mavovo,
Nomafu and Njanya.
The first two sons, Mavovo and Nomafu
remained in Kwazulu-Natal and their descendants were later absorbed
into the Zulu nation.
33.
Njanya, had three sons, namely, the twins Mpondomise and Mpondo and
their
imfusi,
[34]
Xesibe. Njanya crossed the Drakensberg and settled in the
Umzimkhulu area around 1620. He established thereat his own
community and became its chief. The community expanded as there
were some other tribes that came to join in.
34.
The elder twin according to the oral and written history was
Mpondomise. Upon the
death of Chief Njanya, Mpondomise took the
reigns from his father and he became the chief. The other twin,
Mpondo, migrated
with his followers to settle along the Umzimvubu
River on the eastern side. The reason for the separation,
according to history,
was as a result of Mpondo’s rebellious
refusal to hand over to Chief Mpondomise the skin of a lion which he
had killed during
a hunting party.
[35]
This then was the beginning of the nations of AmaMpondomise (named
after Mpondomise) and AmaMpondo (named
after
Mpondo). It must be recorded that at this juncture, it is not
clear whether the kingdom (of AmaMpondomise) itself had
already
beenestablished. It was during Mpondomise’s time that the
nation grew big and spread southwards, occupying
the land between
Mzimkhulu and Mthatha rivers. The great places were Mzimkhulu,
Mzimvubu, Kinira, Tsitsa and Mthatha.
[36]
35.
35.1
Mpondomise was succeeded by Ntose, his son and the great place
of
Ntose was between Rode (a rural village in present day MountAyliff)
and the Ntsizwa Mountain Range and he died near Mzimvubu
River and
was buried there.
35.2
Ntose was succeeded by his son Ngcwina who migrated southwards
(without abandoning the land hitherto occupied
by his father and his
people) and had great places along the Mzimvubu River in Mt Frere,
the Kinira River in Mt Fletcher, the Tina
River in Mt Frere, the
Tsitsa River in Tsolo and in what are now the Qumbu and Mthatha
districts.
35.3
Ngcwina ruled over about 28 tribes, each with its own chief.
These tribes included AmaNgwane, AbaThembu,
[37]
AmaMpondo,
[38]
AmaNgutyana, AmaTolo, AmaNxasana and AbeSotho.
I do not profess to know the chiefs who ruled under Ngcwina
at that
time but the vast majority of their tribes are still part of
AmaMpondomise to this day and the present day chiefs of some
of them,
who I mention just by way of example, are:
35.3.1
Chief Ngudle of the AmaGubevu;
35.3.2
Chief Matyobeni of AmaNgwane;
35.3.3
Chief Mthetho of AmaNgwane;
[39]
35.3.4
Chief Njikelana of AmaNxasana;
35.3.5
Chief Bikhwe of AmaTolo;
35.3.6
Chief Saul of AmaHala ;
35.3.7
Chief Moshoeshoe of AbeSotho;
35.3.8
Chief Gcisa of AmaTshatshu;
35.4
During the reign of Ngcwina AmaMpondomise were occupying the land
that covers the areas of Umzikhulu, Kokstad,
Mt Ayliff, Mt Frere, Mt
Fletcher, Qumbu, Tsolo, Mthatha (up to the Mthatha River), Maclear,
Elliot and part of Ugie. They
were in control of that land with
their king Ngcwina having great places as I have mentioned above.
35.5
From this it will be observed that Ngcwina occupied quite a vast
expanse of land. Whatever issue may
be raised about when
exactly the kingdom of AmaMpondomise came into existence, during
Ngcwina’s reign the kingdom was definitely
in existence and
well-established in that Ngcwina, the leader of AmaMpondomise,
occupied a vast, identifiable expanse of land much
larger (in terms
of landmass) than some modern day countries and had under him several
senior traditional leaders (i.e. chiefs).
In the circumstances,
in accordance with customary law and customs he could not have been
anything other than king.
36.
King Ngcwina was succeeded by his son Cira, who occupied the same
land. Cira was succeeded
by his son, Mte and Mte was succeeded
by Sabe who was later succeeded by Qengeba. I must mention that
throughout this period
AmaMpondomise and their kings were occupying
and owning the land referred to continuously and uninterrupted.
37.
King Qengeba was succeeded by his son King Majola who continued to
rule AmaMpondomise as
the king until he died and upon his death the
successive kings were his son, King Ngwanya, thereafter King Phahlo
and then King
Sontlo who all had their great places along the Tina
River in Mt Frere and were buried in the Tina River. King
Sontlo was
succeeded by his son King Mngcambe who, upon his death,
was buried in the present district of Tsolo.
38.
The above mentioned kings constitute an unbroken line of kings in the
kingdom of the AmaMpondomise
nation. This history is recorded
in the book by F Brownlee,
Transkei
Historical Records
at page 111- 112 and
J H Soga,
South Eastern Bantu
at page 336, and if necessary the books shall be produced at the
hearing of this matter.
39.
AmaMpondomise had various other tribes who were subject to their rule
during all this period.
I must record that the AbaThembu,
AmaMpondo and AmaXesibe that are mentioned as being part of
Amampondomise, are those who were
naturalised in the land of
AmaMpondomise and thereby abandoned their allegiance to the
traditional communities that currently constitute
AbaThembu,
AmaMpondo and so forth.
40.
King Mngcambe was succeeded by his son King Myeki, whose daughter
married King Ngubengcuka
of AbaThembu and became the mother of King
Mtirara. It was during the time of King Myeki that the
mfecane
wars broke out. There was destabilisation during this period.
King Myeki took refuge at Mgwali (within the Engcobo
district) in
Tembuland in the area of King Ngubengcuka, his son in law. This
is recorded by J H Soga in his book titled,
South
Eastern Bantu
at pages 342-343 and also
by F Brownlee,
Historical Records
at pages 112 – 114 and 118.
41.
King Myeki died at Mgwali and was succeeded by his son, King Matiwane
who could not rule
as he died in a skirmish with AmaQwati of Chief
Fubu within Tembuland. Since King Matiwane’s son,
Mhlontlo, was still
young at the time, his (Matiwane’s) brother
Mbali acted as regent and ruled AmaMpondomise on behalf of Prince
Mhlontlo.
41.1
I must emphasise that when Myeki left for Mgwali and took refuge in
his son-in-law’s land, the vast
majority of AmaMpondomise were
left behind in the land traditionally occupied by AmaMpondomise
as the
imfecane
wars were going on. The king’s councilors and other
senior chiefs under Myeki were left behind to continue fighting.
When the war was over, a report to that effect was sent to King
Myeki who, despite his absence, remained king of AmaMpondomise;
41.2
Since he was sick at the time the war came to an end, King
Myekiinstructed his son, Matiwane to go back to
the land of
AmaMpondomise and take over the reins. Matiwane was killed as
have stated in the preceding paragraphs on the
way. His
brother, Mbali, acted as regent in the place of Mhlontlo who was
still a minor at the time;
41.3
About 1846 Mbali returned to the land of AmaMpondomise and settled in
the Qumbu district in the area known
today as Sulenkama. Upon
his return Mbali ruled AmaMpondomise in all of the land that they
occupied before the
imfecane
;
i.e. Qumbu, Tsolo, Maclear, Mt Fletcher, Mt Ayliff, Mt Frere, Kokstad
and Mthatha.
[40]
41.4
According to available historical records until the time of the war
that related to the killing of Hope,
there was never a time when
AmaMpondomise were without a king, nor were they substantially
dispossessed of their land. It
is so that the colonial rulers
did bring in some tribes to some parts of the land of
AmaMpondomise. But in
percentage terms
the affected pieces of land were miniscule. That
notwithstanding the king of AmaMpondomise was not divested
of his
rule over the land as such.
42.
When Mhlontlo came of age he took over from the regent as king and
was recognised as such
by both government and religious authorities
as well as by immigrant and neighbouring tribes as is indicated by
the following:
42.1
In the
Blue
Book on Native Affairs
1885, historian G M Theal states that long before 1844 the land
between the Mzimvubu and Mthatha rivers was occupied by AmaMpondomise
of Paramount
[41]
Mhlontlo and his brother Chief Mditshwa who was subordinate to him as
a Junior Chief accountable to him.
42.2
This is also recorded in the book of F Brownlee, pages 42-46.
42.3
In a memorandum by Magistrate Joseph Orpen to the Select Committee on
Native Affairs 1873 on the state of
tribes in East Griqualand, he
describes Mhlontlo as “paramount chief”.
42.4
Bearing in mind that (unlike the rule of the paramount chief of the
so called Emigrant Thembu) the reign
of Mhlontlo was by no means a
creation of the colonialists, the appellation “paramount chief”
could only have been
a recognition of his senior status as king, the
only issue being that nowhere in the Eastern Cape did the
colonialists recognise
the status of king amongst the African
rulers. To them there was only one king or queen and he or she
was in the United Kingdom.
42.5
Also of significance, Mhlontlo was regarded as “paramount
chief” as distinct from his brother
Mditshwa who was regarded
as “chief” when they went into rebellion in Hope’s
war of 1880.
42.6
The Anglican Church authorities regarded Mhlontlo as “paramount
chief” of so-called no man’s
land when they negotiated
with the Griquas for the establishment of Clydesdale Mission in
Mzimkhulu in 1870.
[42]
43.
The Griqua Chief, Adam Kok, paid “
busa
cattle”
[43]
and requested permission from King Mhlontlo when his people settled
on land in the Kokstad area in 1862. To prove that Mhlontlo
exercised authority over Adam Kok, Mhlontlo fined Adam Kok a yellow
mare for levying taxes on AmaBhaca who had settled in AmaMpondomise
land between the Tina and Mzimkhulu rivers after their flight from
Faku, the king of AmaMpondo.
[44]
44.
The BaSotho Chief, Lebenya, paid “
busa
cattle” to King Mhlontlo on crossing the Drakensberg into the
Mt Fletcher area to settle in Mpondomise land around
1867.
Chief Lebenya accepted King Mhlontlo as his senior and was always
respecting him and obeying his authority.
[45]
45.
The AmaHlubi Chief, Ludidi, also paid “
busa
cattle” to Chief Mbali who was regent for Mhlontlo in order to
settle at Ntlabeni in the Mount Frere area and AmaHlubi always
accepted AmaMpondomise Kings as their seniors.
[46]
46.
In sum, quite plainly the kingdom of AmaMpondomise was
well-established during the
reign of King Ngcwina and continued
to exist from that time up until the rule of King
Mhlontlo whose recognition
as the king of his people was withdrawn by
colonial rulers under the circumstances which I shall set out
below…
EVENTS
LEADING TO THE DEPOSITION OF KING MHLONTLO
48.
Prior to Hope’s War of 1880 there are no records of any
conflict between AmaMpondomise
and the Cape colonial government. The
land occupied by AmaMpondomise from the Drakensberg to the Mzimvubu
River, and between
the Mzimvubu and Mthatha Rivers, which was later
known as the East Griqualand, was brought under colonial rule between
1860 and
1877 through diplomacy, negotiation and annexation rather
than by military conquest.
[47]
Such “negotiation” was patently unequal, conducted as it
was between parties at different levels of development,
sophistication and expertise, and therefore amounted to exploitation.
49.
The historian G M Theal describes the Maitland Treaty as “colonial
ownership of Griqualand
East based nominally on a cession made by the
Pondo Chief Faku, in reality rests on the right of a civilized power
to enforce order
in districts occupied by barbarians. Faku
never had authority in it. The
Mpondomise
living eastwards of the Mthatha, further inland than
amaMpondo had always been independent and had occupied nearly the
same position
as they did in 1844 from as far back as could be
traced, namely before 1686.”
[48]
50.
It was after AmaMpondomise had been subjugated that their kingship
was vindictively withdrawn
by administrative proclamation and the
banishment of King Mhlontlo to King William’s Town, this at the
hands of the colonial
rulers. This was a sequel to the killing
of Mr Hamilton Hope by AmaMpondomise.
51.
Oral and written history put the events as follows:
51.1
The colonial government passed the Disarmament Act of 1879 and
sought to disarm the BaSotho communities,
which then resulted
in open revolt in the gun war of 1880. Hamilton Hope, the
Magistrate in Qumbu, was instructed to raise
a force to assist in
disarming the BaSotho rebels and he in turn, requested King Mhlontlo
of AmaMpondomise to provide an “
impi
”
to join the colonial forces against the BaSotho;
51.2
King Mhlontlo was reluctant to join the government forces against the
BaSotho people who had paid “
busa
cattle” to him and whom he
regarded as his people. He therefore diplomatically advised
themagistrate that he and AmaMpondomise
were in mourning for the
recent death of his mother and according to custom, “to send an
army then would invite disaster”.
51.3
It is said that Hope then retorted (possibly in what he thought was
suitable idiomatic language) that “it
was not acceptable for
Queen Victoria’s dog to refuse to go on a hunt with the Queen’s
forces”. This
was a tactless remark by the magistrate and was regarded by
Mhlontlo’s councilors as a gross insult against their king,
which could not be ignored. Plans were therefore set afoot for
the magistrate to come to the Sulenkama Great Place with suitable
arms on the pretext that AmaMpondomise would now participate in the
attack against the BaSotho. The true intention was revenge
for
the insult.
52.
On the date arranged, 23 October 1880, the magistrate and two white
army officers arrived
at Sulenkama and were killed
.
[49]
53.
Historical records indicate that the death of Hamilton Hope and the
two white army officers
near Sulenkama, Qumbu became the signal for a
general uprising by several tribes against colonial rule. The
BaSotho in Mount
Fletcher and Matatiele as well as some AbaThembu and
AmaQwati in the Ngcobo district took part in the rebellion until they
were
all defeated in 1881 by colonial forces assisted by recruited
white burghers and black immigrant tribes. Source: F
Brownlee,
Historical Records
at pages 54 – 57.
54.
In 1881 Chief Mditshwa, brother to King Mhlontlo, surrendered and was
charged with sedition
and sentenced to three years imprisonment for
which he was detained on Robben Island. King Mhlontlo went into
exile in Lesotho
from 1883 to 1903 and was arrested in 1903 on a
visit to his people in Herschel. King Mhlontlo was charged in
King William’s
Town with the murder of Hope and the two
white army. He was tried under case
Regina
vs Mhlontlo
, Cape Archives CA King
William’s Town Criminal Cases 1/1/1/1/221 and was later
acquitted of all the charges in May 1904.
55.
King Mhlontlo was nevertheless vindictively deposed as the King by
administrative proclamation
and banished to King William’s Town
and later to Willowvale until 1906 when he was allowed to return to
Qumbu where he lived
as a commoner until his death in December
1912.
[50]
56.
After the deposition of King Mhlontlo there never was another ruler
under whose rule all
the chiefs of AmaMpondomise fell. The
kingship was thus destroyed. Even the chieftainship was only
granted to the Mpondomise’s
as separate between the districts
of Qumbu and Tsolo. I refer this Honourable Court to the letter
by the Chief Magistrate
which is attached as “G” and “H”
respectively. The United Kingdom of Amampondomise under one
king
was thus destroyed by the colonialist.
57.
This is the sum total of the establishment and disestablishment of
the kingship of AmaMpondomise.
”
[59]
It is apposite to record that in its deliberations, flawed as they
were, the Tolo Commission
stated:
“
1.
In 1855 Mhlontlo became the leader of AmaMpondomise and was the first
leader of AmaMpondomise
to encounter colonialists
[51]
.
2.
In 1861, some six years after Mhlontlo had come to power, the
colonialists annexed
East Griqualand which formed part of the land of
AmaMpondomise
[52]
;
3.
there is no evidence to support the contention that Mhlontlo
was regarded
as “paramount chief” by the
colonialists
[53]
”.
[60]
On the first two findings set out in the preceding paragraph, the
Tolo Commission appears to
have been correct. However, on the
third finding the Commission was wrong. The contention that the
colonialists regarded
Mhlontlo as a “permanent chief” is
to be found in the letter dated 22 December 1903 written by the
resident magistrate
in Mount Frere, W. Leary (Leary). On page
three thereof the magistrate records:
“
Umhlontlo
[54]
was
a strict disciplinarian, none of his tribe disobeyed or dared to
disobey him, his word was law to them. He was and still
is, the
paramount chief of all the Pondomise, he had quarrelled with Mditshwa
and they fought, peace only being restored when the
country was taken
over and Mr Orpen appointed British resident of St John’s
Territory, the name under which the five districts
of Maclear, Mount
Fletcher, Mount Frere, Qumbu and Tsolo were known.” (sic)
[61]
A copy of this letter was attached by the applicant to his replying
affidavit. This appears
to have been done to meet the
allegations in the answering affidavit of the fourth respondent which
highlights an absence of such
proof. Inasmuch as the material
in reply was furnished in response to the answering affidavit, does
not constitute new material
in the sense that it supports the tenor
of the whole founding affidavit and there has been no objection
thereto or application
to strike it out, the court is at liberty to
have regard thereto.
[62]
Further evidence of this level of regard for Mhlontlo is to be found
in the magistrate Joseph
Orpen’s memorandum to the Select
Committee on Nature Affairs, 1873, which was referred to in the
applicant’s founding
affidavit.
[63]
Properly read the import of the relevant section of the Tolo
Commission report suggests that
if there was contemporaneous evidence
that the colonists had regarded Mhlontlo as a “paramount chief”
this would enable
support for the finding that AmaMpondomise kingship
did exist at the time.
[64]
Also unchallenged in the applicant’s replying affidavit, and
highly relevant to the issues
with which this application is
concerned, is the following statement:
“
In the
present government, all paramount chiefs were accepted as the kings,
and it would be unjust
to treat
AmaMpondomise kingship
differently.”
[55]
[65]
On a conspectus of all the evidence and the material which supports
it, in my view it has been
established on a balance of probabilities
that AmaMpondomise had a kingship, alongside the three other major
kingdoms whose rootedness
in the Eastern Cape is indisputable.
Factors beyond AmaMpondomise control such as
Mfecane
wars,
colonial occupation and colonial administrative acts placed
AmaMpondomise under ernomous pressure, leading to partial
disestablishment
and disarray. However, every indication is
that since the mid nineteenth century, repeated attempts have been
made by AmaMpondomise
leaders to restore or reinstate recognition of
AmaMpondomise kingship. Those attempts have not failed because
of the emergence
of strong views from within AmaMpondomise which
indicate a groundswell of support for a community without a
kingship. Rather,
again, those attempts have been thwarted by
apparent political expedience, government inefficiency and, most
recently, administrative
action which is inconsistent with the
Constitution.
[66]
There is a constitutional imperative to address the wrongs of the
past in this country and to
restore and respect the dignity of all
her citizens. The long struggle of AmaMpondomise for the
reinstatement of kingship
demonstrates the collective response of a
community to the pain and loss of a sense of full identity which
flows inevitably from
dislocation, suppression and deprivation of
land and leadership. The longstanding plea from AmaMpondomise
which lies at the
heart of this matter has been expressed
historically in every appropriate forum, without success but not
without merit. It
has finally found its way into this court.
In all the circumstances it is appropriate that an order which is
just, fair and
reasonable should now be given.
Costs
[67]
In seeking the award of costs in this matter the applicant targeted
the first and the third respondents
“and against the remaining
respondents only in the event of them opposing this application”.
In the face of this
prayer, the first, the second, the third and the
fourth respodents all opposed the application.
[68]
As has been recorded, at the hearing of the application the first
respondent was granted leave
to file a further affidavit in which the
first respondent’s opposition to the relief claimed by the
applicant in his amended
notice of motion was withdrawn. The
withdrawal of the opposition was not accompanied by any tender of
costs. Coming
as it did only on the morning of the hearing, the
effect of the withdrawal of opposition by the first respondent upon
the substantial
costs already incurred was negligible.
[69]
Ordinarily, costs should follow the result. No reason emerges
in this matter which would
justify a departure from this principle.
[70]
The second and the fourth respondents were active in their opposition
to the application.
Like the first respondent, they filed
answering affidavits and were represented at the hearing by counsel.
In the nature
of its identity, the third respondent was supine but
its opposition was never withdrawn.
[71]
The fifth and the sixth respondents, after having been joined in the
proceedings by order of
court, did not oppose the relief contended
for on behalf of the applicant at the hearing of the matter.
Indeed, the argument
advanced on their behalf by their counsel, which
was most helpful in its content, was supportive of the relief sought
on behalf
of the applicant in respect of the principles of
AmaMpondomise kingship and the impugned decision. Whilst no
order was made
in respect of costs occasioned by the application for
their joinder, the fifth and the sixth respondents should be embraced
by
the successful outcome of the application and should not have to
be burdened by the payment of their own costs in respect of their
eventual participation in the application.
[72]
The application papers were voluminous. So too was the record
of proceedings provided by
the Tolo Commission. Where the
parties made use of two counsel the additional costs this occasioned
were justified.
Relief
[73]
The following order will issue:
1.
Condonation is granted in respect of the applicant’s failure to
commence
these proceedings within the 180 day period prescribed by s
7 (1) of the Promotion Administrative Justice Act 3 of 2000 and that
time period is extended up to and including the date upon which these
proceedings commenced.
2.
The proceedings of the Tolo Commission pertaining to the claims
relating to AmaMpondomise
kingship and the reports and
recommendations produced thereon, styled “Tonjeni and Maseti
Kingship Report” and “Matiwane
Kingship Report”
respectively are hereby reviewed and set aside.
3.
The decision taken by the former President of the Republic of South
Africa on
13 December 2016 in respect of AmaMpondomise kingship is
hereby reviewed and set aside.
4.
It is declared that AmaMpondomise did have a kingship and that such
kingship
is hereby reinstated.
5.
The first, second, third and fourth respondents are directed to pay
the costs
of this application, such costs to include the fifth and
sixth respondents’ costs but to exclude the costs of their
application
for joinder, and to include the costs occasioned by the
employment of two counsel where this occurred.
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicant:
Adv Gwala, Adv Mapoma and Adv Maliwa
Instructed
by
Mvuzo Notyesi Inc,
2
nd
Floor
TH Madala Chambers
14
Durham Street,
MTHATHA
Counsel
for the first respondent:
Adv Pillay
Instructed
by: The State
Attorney
Broadcast House
94 Sissons Street
Fortgale
Mthatha
Counsel
for the 2
nd
, 3
rd
and 4
th
respondents: Adv Matebese and Adv Shibe
Instructed
by:
Bhadrish Daya Attorneys
c/o
AS Zono and Associates
Suite no 149 - 153
ECDC Building,
Cnr York and Elliot
Street,
Mthatha
Counsel
for the 5
th
and 6
th
respondents:
Adv Mathapuna
Instructed
by: Mkata
Attorneys
80 3
rd
Avenue
Norwood
Mthatha
Date
heard:
02 May 2019
Date
delivered:
16 May 2019
[1]
In isiXhosa, an official language of this country which is spoken by
AmaMpondomise, “Ama” is a plural noun prefix
used in
conjunction with the name of such a community. The prefix is
often dropped where reference is made in the English
language to the
community. So too is the definite article imported with
frequency and used either in conjunction with the
prefix “Ama”
or replacing it. In some of the older source material provided
in this application, there is reference
made to “the
Pondomise”. No distinctions of identification are to be
drawn from the different occurrences of
the terms “AmaMpondomise”,
“the AmaMpondomise”, or “the Pondomise”.
In this judgment
the use of the term “AmaMpondomise” is
preferred.
[2]
The inquiry is whether the task itself is administrative or not.
The focus is not on the arm of government to which the
relevant
actor belongs, but on the nature of the power he or she has
exercised. President of the Republic of South Africa
and
Others v South African Rugby Football Club and Others
2000 (1) SA 1
(CC) par [141].
[3]
Act 3 of 2000.
[4]
Van Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) par [22].
[5]
Section 9 of PAJA permits an extension of the 180 day time period in
appropriate circumstances.
[6]
For
example, see
Mzizi
v State
[2009]
3 All SA 246
(SCA)
par
[9];
S
v Mohlathe
2000
(2) SACR 530 (SCA).
[7]
It is apparent from the application papers that the decision was
actually taken by the former President on 13 December 2016.
Notwithstanding the obvious importance thereof and despite a formal
application having been made to the former President, no
response
was forthcoming in respect of the application by AmaMpondomise which
lay behind the decision of the former President
until a letter from
the attorney of AmaMpondomise dated 6 July 2017 appears to have
prompted Mphaphuli’s letter dated21
July 2017.
[8]
The reference to “the Commission” in the letter is a
reference to the Nhlapho Commission, whose decision came under
the
scrutiny of this court (per Griffiths J) under case number
2062/2011. The reference to “the court” is a
reference to these proceedings.
[9]
Act 41 of 2003.
[10]
The applicant’s brother, who passed away prior to the hearing
of the Nhlapho Commission. The applicant was substituted
for
his late brother alongside two other claimants.
[11]
The reference is to the Tolo Commission established as the successor
to the Nhlapho Commission upon the amendment of Act 41 of
2003 as
referred to hereinafter.
[12]
Section 25 of Act 41 of 2003 provided as follows: “( 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.
(2)
(a)
The Commission has authority to investigate, either on
request or of its own accord-
(i)
a case where there is doubt“ as to whether a kingship, senior
traditional leadership or headmanship was established
in 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 disputer 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 custom 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 headman ship, be
guided by the customary norms and criteria relevant to
the
establishment of a senior traditional leadership or headman ship, as
the case may be.
(c)
Where the Commission investigates disputes resulting from the
determination of traditional authority boundaries and the merging
or
division of “tribes”, the Commission must, before taking
a decision in terms of section 26, consult with the Municipal
Demarcation Board established by section 2 of the Local Government:
Municipal Demarcation Act, 1998 (Act No. 27 of 1998).
(4)
The Commission has authority to investigate all traditional
leadership claims and disputes dating from 1 September 1927, subject
to subsection (2)(a)(vi).
(5)
The Commission must complete its mandate within a period of 5 years
or within such longer period as the President may determine.
(6)
Sections 2,3,4,5 and
6
of the Commissions Act, 1947 (Act No.
8 of 1947), apply, with the necessary changes, to the Commission.”
[13]
Section 26 of Act 41 of 2003 provided as follows: “(1) A
decision of the Commission is taken with the support of at least
two
thirds
(2)
A decision of the Commission must, within two weeks of the decision
being taken, 45 of the members of the Commission.
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 50 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.
(3)
Any decision taken by the Commission must be conveyed to the
President.”
[14]
Section 11 and 22 of Act 23 of 2009 provide as follows: “11.
Section 9 of the principal Act is hereby amended by—
(a)
the substitution in subsection
(1)
(a)
(ii)
for subparagraph
(bb)
of
the following
subparagraph:
‘‘
(bb)
provide the President and the Minister with reasons for the
identification
of
that person as king or queen;’’
(b)
the substitution in subsection
(1)
(b)
for
the words preceding subparagraph (i) of the following words: ‘‘The
President must, on the recommendation of the
Minister and subject to
subsection (3), recognise a person so identified in terms of
paragraph
(a)
(i)
as king or queen, taking into account’’;
(c)
the substitution in subsection
(1)
(b)
of
subparagraph (ii) of the following subparagraph:
‘‘
(ii)
whether a kingship or queenship has been recognised in terms of
section 2A.’’.
(d)
the substitution in subsection (3)
for the words preceding paragraph
(a)
of the following words:
‘‘
Where
there is evidence or an allegation that the identification of a
person referred to in subsection (1) was not done in terms
of
customary law, customs or processes, the President on the
recommendation of the Minister—’’; and
(e)
the substitution for subsection (4)
of the following subsection:
‘‘
(4)
Where the matter that has been referred back to the royal family for
recognition and resolution in terms of subsection (3)
has been
reconsidered and resolved, the President on the recommendation of
the Minister must recognise the person identified
by the royal
family if the President is satisfied that the reconsideration and
resolution by the royal family has been done in
accordance with
customary law.’’.
22.
(1) There is hereby established, with effect from the date of coming
into operation of the Traditional Leadership and Governance
Framework Amendment Act, 2009, a commission known as the Commission
on
Traditional
Leadership Disputes and Claims.
(2)
The Commission must carry out its functions in a manner that is
fair, objective and impartial.
”
[15]
Section 25 of Act 23 of 2009 provides as follows: “(1) The
Commission operates nationally in plenary and provincially in
committees and has authority to investigate and make recommendations
on any traditional leadership dispute and claim contemplated
in
subsection (2).
(2)
(a)
The Commission has authority to investigate and make
recommendations on—
(i)
a case where there is doubt as to whether a kingship or, principal
traditional leadership, senior traditional leadership or
headmanship
was established in accordance with customary law and customs;
(ii)
a case where there is doubt as to whether a principal traditional
leadership, senior traditional leadership or headmanship
was
established in accordance with customary law and customs;
(iii)
a traditional leadership position where the title or right of the
incumbent is contested;
(iv)
claims by communities to be recognised as kingships, queenships,
principal traditional communities, traditional communities,
or
headmanships;
(v)
the legitimacy of the establishment or disestablishment of ‘tribes’
or headmanships;
(vi)
disputes resulting from the determination of traditional authority
boundaries as a result of merging or division of ‘tribes’;
(viii)
all traditional leadership claims and disputes dating from 1
September 1927 to the coming into operation of provincial
legislation dealing with traditional leadership and governance
matters; and
(ix)
gender-related disputes relating to traditional leadership positions
arising after 27 April 1994.
(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 decide not to
consider a dispute or claim on the ground that the person who lodged
the dispute or claim has
not provided the Commission with relevant
or sufficient information or the provisions of section 21 have not
been complied with.
(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 applied when the events occurred that
gave rise to the dispute or claim.
(b)
The Commission must—
(i)
in respect of a kingship or queenship, be guided by the criteria set
out in section 2A (1) and 9(1); and
(ii)
in respect of a principal traditional leadership, senior traditional
leadership or headmanship, be guided by the customary
law and
customs and criteria relevant to the establishment of a principal
traditional
leadership, senior traditional leadership or headmanship, as the
case may be.
(c)
Where the Commission investigates
disputes resulting from the determination of traditional authority
boundaries and the merging
or division of ‘tribes’, the
Commission must, before making a recommendation in terms of section
26, consult with
the Municipal Demarcation Board established by
section 2 of the Local Government: Municipal Demarcation Act, 1998
(Act No. 27
of 1998) where the traditional council boundaries
straddle municipal and or provincial boundaries.
(4)
Subject to subsection (5) the Commission—
(a)
may only investigate and make
recommendations on those disputes and claims that were before the
Commission on the date of coming
into operation of this chapter; and
(b)
must complete the matters
contemplated in paragraph
(a)
within
a period of five years, which period commences on the date of
appointment of the members of the Commission in terms of
section
23,or any such further period as the Minister may determine.
(5)
Any claim or dispute contemplated in this Chapter submitted after
six months after the date of coming into operation of this
chapter
may not be dealt with by the Commission.
(6)
The Commission—
(a)
may delegate any function
contemplated in this section excluding a matter related to kingships
or queenships to a committee referred
to in section 26A; and
(b)
must coordinate and advise on the
work of the committees referred to in section 26A.
(7)
Sections 2, 3, 4, 5 and 6 of the Commissions Act, 1947 (Act No. 8 of
1947), apply, with the necessary changes, to the Commission.
(8)
The Commission may adopt rules for the conduct of the business of
the Commission as well as committees referred to in section
26A.
(9)
Provincial legislation must provide for a mechanism to deal with
disputes and claims related to traditional leadership: Provided
that
such a mechanism must not deal with matters to be dealt with by the
Commission
”
[16]
Mphephu v Mphephu – Ramabulana and Others (948/17)
[2019]
ZASCA 58
(12 April 2019)
[17]
Note 13
supra.
[18]
These are review proceedings which are governed by rule 53 of the
Uniform Rules of Court. In terms thereof, upon receipt
of an
application for review of a decision the party in whose possession
it is, and upon whom service has occurred, is obliged
to produce the
record of proceedings pertaining to the impugned decision and to
make it available to the applicant.
[19]
Paragraphs [25] to [28] of the judgment.
[20]
Paragraph 31.
[21]
Mphephu v Mphephu – Ramabulana and Others (948/17)
[2019]
ZASCA 58
(12 April 2019) par [16].
[22]
Financial Services Board and Another v De Wet and Others
2002 (3) SA
525
(c) par [270].
[23]
Constitution of the Republic of South Africa, 1996.
[24]
Democratic Alliance v President of South Africa
2013 (1) SA 248
(CC)
par [36].
[25]
Merafong City v Anglogold Ashanti Ltd
2017 (2) SA 211
(CC) par 117.
[26]
MEC for Health, Eastern Cape and Another v Kirkland Investments
(Pty) Ltd t/a Eye and Lazer Institute
2014 (3) SA 481
(CC) par 52
and 54.
[27]
The operative phrase is “vast majority”.
AmaMpondomise are to be found in other areas of South Africa as
well.
[28]
It is quoted by Professor Pieres from the book by D Moodies.
[29]
F Brownlee,
Transkeian
Native Terrotories : Historical Records
(Lovedale, 1923), page 111
[30]
“He was blessed with twins, Mpondomise and Mpondo.
The two children, Mpondomise the older one and Mpondo the
younger
one, grew up.” (The applicant’s translation)
[31]
“Mpondomise, settle on that portion of land, and you Mpondo on
that one.” (The applicant’s translation)
[32]
Quoted by J H Soga,
South
Eastern Bantu
page 346 – 347
J W Macquarrie –
The Reminiscences of Sir Walter Stanford
page 158
[33]
See under the heading: THE ESTABLISHMENT OF THE AMAMPONDOMISE
KINGDOM AND THE SUCCESSIVE KINGS OF THAT KINGDOM. (below)
[34]
A child born after twins.
[35]
According to custom all subjects (royals included) were required to
surrender to the ruler the skins of lions that they had killed.
[36]
See Bundy and W Beinart,
Hidden
Struggles in Rural South Africa
,
page 119
F Brownlee,
Historical
Records
page 54
[37]
This being a breakaway section from the main AbaThembu nation.
[38]
This too being a section of AmaMpondo.
[39]
There are two areas occupied by AmaNgwane, each with its own chief.
[40]
Statement by Vete to F P Gladwin of the Commission on Native
Laws and Customs, pages 114 – 115; F Brownlee
Historical
Records
Statement
by Mandela regent for Mditshwa, page 118 -
F Brownlee
Historical Records
[41]
In a rather derogatory sense the colonialists chose to refer to
kings as “paramounts” or “paramount chiefs”.
Of course, they used the term even for rulers that they themselves
had created and who were not kings in accordance with customary
law
and customs. For example, they divided the AbaThembu into
AbaThembu and the Emigrant Thembu, each with its “paramount
chief”. In fact, the ruler of all AbaThembu (not
Emigrant Thembu) was the true king of AbaThembu. This much
has
been accepted by the relevant commission in its investigation of the
AbaThembu kingship.
[42]
Stainier Green,
The
First Hundred Years
pp 59 – 60
[43]
The verb “
ukubusa
”
means to owe allegiance to. “
Busa
cattle” would thus literally be cattle that symbolise owing
allegiance to the person to whom they are paid. But perhaps
an
appropriate translation would be that these are cattle for
naturalisation.
[44]
Stanier Green,
The
First Hundred Years
pp 59 – 60
[45]
W D Hammond – Tooke page 60
[46]
J H Soga
South
Eastern Bantu
page 423
[47]
F Brownlee,
Historical
Records
page 41 – 42; W D Hammond -Tooke,
Command
or Consensus
pages 23-24
[48]
Quoted by J H Soga
,
South Eastern Bantu
,
page 301 – 302
[49]
R
v Mhlontlo
,
Cape Archives C.A. King William’s Town cases, 1/1/1/1/221
J.W. Macquarrie,
The
reminiscences of Sir Wlater Stanford
, page 107
J.H. Soga,
South
Eastern Bantu
, page 346 – 247
F. Brownlee,
Historical
Records
, page 54, 46, 57
[50]
Report of Griqualand East Land Commission, page 5 – 19; C
Bundy and W Beinart,
Hidden
Struggles;
F Brownlee,
Historical
Records,
page 58 to 59
[51]
Report
and Recommendations,
p
29
par
7.3.15
[52]
Report
and Recommendations,
p
29
par
7.3.15(a)
[53]
Report
and Recommendations
,
p 32
par
7.3.21
[54]
The
context indicates clearly that the reference is to Mhlontlo
[55]
From
an early colonial perspective it was not possible to have monarchs
reigning over occupied territories in apparent competition
with
Queen Victoria, the reigning British monarch at the time in whose
name the territory of the Eastern Cape was annexed at
various
stages. Accordingly, all reigning traditional monarchs were
referred to officially as “paramount chiefs”.