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[2016] ZAGPPHC 422
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Minister of Cooperative Governance and Others v Sigcau and Others (40750.2014) [2016] ZAGPPHC 422; [2016] 3 All SA 588 (GP) (3 June 2016)
I
N
THE
HI
GH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVISION
,
P
RETORIA
CASE
NO: 40750/2014
DATE:
3 JUNE 2016
In
the
matter
between:
THE
M
I
N
I
STER
OF COOPERATIVE GOVERNA
N
CE
AN
D F
i
rst
Appl
i
cant
TRADITIONAL
AFFAIRS
P
RE
S
I
D
E
N
T
O
F
THE RE
P
U
B
L
I
C
OF SOUTH AFR
I
CA
Second
Applicant
THE
COMMISSION ON TRADITONAL LEADERSHIP Third Applicant
DISPUTES
AND
CLAIMS
and
WEZlZWE
F
EZIWE
SIGCAU F
i
rst
Respondent
LOMBEKISO
MAKHOSATSINI MASOBHUZA Second Respondent
ZANUZUKO
TYELOWYO
S
I
GCAU
Third Respondent
NAT
I
ONAL
H
O
U
SE
O
F
TRAD
IT
ONAL
LEADERS
Fourth
Respont
H
OUSE
O
F
TRAD
I
TIONAL
LEADERS
(EASTERN
CAPE)
Fifth
Respondent
J
U
D
G
M
E
NT
AP
P
L
I
CA
T
I
ON
FOR
LEAVE
TO
APPEAL
MURPHY J
1.This is an application made
by
the
first
and second respondents for leave
to
appeal against the order Igranted on 20 November 2015
declaring that the second applicant, the President
of
the Republic
of
South
Africa,
was
not required
to
follow a process
of
consultation
with
the royal family
of
the amaMpondo aseQaukeni before implementing the decision
of
the third applicant, the Commission on Traditional Leadership
Disputes and Claims, recognising the third respondent, Mr Zanuzuko
Sigcau, as
king
of
the
amaMpondo aseQaukeni. I declared further that that the President
was
required only
to
publicise the decision
of
the Commission and
to
issue a certificate
of
recognition
to
the third respondent as contemplated in section 9(2)
of
the Traditional Leadership and Govemance Framework Act 41
of
2003 ("the
Act")
in order for the appointment
to
be
effective.
2.The three applicants
(the
respondents in the application for leave
to
appeal) oppose the application for leave and at the
same time have made application in terms
of
section 18
of
the Superior Courts
M.
10
of
2013 for an order directing that the terms
of
my order
of
20
November 2015 shall be immediately operational.The
effect
of
such an order, were
it
to
be
granted,
would
be
to permit the
President to
p
roceed
with
the formal
steps
to recognise and appoint the third respondent as king, despite
any appeal against the order.
The
first and second respondents
oppose
the application.
3. Section 17(1)(a)
of
the Superior Courts
Act.
provides that leave to appeal may only
be
given where the judge concerned is
of
the opinion that the appeal would have reasonable
prospects
of
success, or there
is
some other compelling reason why the appeal should
be
heard.
4.
As
appears from the main judgment, this matter has a
long and contentious history. In April 2008 the Commission
determined that the
then existing paramountcy
of
the
amaMpondo aseQaukenlwould henceforth
be
recognised as a "kingship" and on 21 January 2010
determined that
the
third respondent was the rightful king
of
the amaMpondo aseQaukeni. The decision
of
the Commission was conveyed to the President In terms
of section 26(2) of
the
Act
for implementation. The President made the decision
public by means
of
a notice promulgated in Government
Gazette
33732 on 5 November 2010.
The
late
Paramount Chief Justice Sigcau challenged the decision
of the Commission in this court. The application
was
not successful and leave to appeal
was
refused by
both
this court and the Supreme Court
of
Appeal.The Constitutional Court, however, granted
leave to appeal and upheld the appeal on the narrow, technical and
procedural
ground that when the President implemented the decision
of the Commission to recognise the third respondent as king,
by
way
of
the
notice In the
Gazette,
he acted incorrectly in terms of amendments introduced by the
Traditional Leadership and Governance Framework Amendment
Act.
23
of
2009 ("the Amendment
Act"),
which were not applicable to
the
facts
of this dispute. The
ConstitutionalCourt held that
the
Presldenfs notice had to
be
set aside as he had purported to exercise powers not
conferred upon him by
the
provisions
of
the
Act.
before
Its
amendment. He appeared to have made a decision in
relation. to what was assumed to
be
a "recommendation"
by
the
Commission, whereas under the old
Act.
the powerto make the decision
vested
in
the
Commission.
The
Constitutional Court did not decide whether
the
President needed
3
to
follow
the
consultative proceaa contemplated in section 9 and 1O
of
the
Act
before implementing the Commission's decision or
whether the decision
of
the
Commission
should
be
reviewed
and
set
aside. It
set
aside the order
of
this court as well as the notice
of
the
President, but did not
set
aside the decision
of
the Commission.
5. The order
of
the Constitutional Court left some uncertainty about
firstly
the status
of
the
application
by
Justice
Sigcau
to
revil!!W the decision
of
the Commission, which
was
dismissed by this court, and secondly the steps
to
be
taken
by
the
President
to
implement
the
Commission's decision. The respondents took
the
view that the Constitutional Court had vindicated Justice
Sigcau's position as king and that the
first
respondent, his daughter and successor, should
be
recognised as queen
of
the amaMpondo aseQaukeni. In
Nxumalo
v
Pr8sldent
of
the
RSA
and
others,
[1]
the Constitutional Court commented about the effect
of
its
decision in
Sigcau.
It explained that
the
order
of the
High
Court dismissing the appllcanfs review application
was
set
aside with
the
result that
the
Commission's decision still stood but also that the
appllcanfs review application in
respect
of
the Commission's decision remained undecided and,
therefore, pending before the High Court.
6. The process
of
appointing
a king
of
the
amaMpondo aseQaukeniaccordingly must
be
completed under
the
provisions
of
the
Act
as they existed prior
to
amendment Section 26(2)(a)
of
the
un-amended
Act
provides for the implementation
of
a
decision
of
the
Commission regarding
the
position
of
a
king or queen. It provides that a decision
of
the Commission must, within
two
weeks,
be
conveyed
to
the President for Immediate implementation in
accordance with section 9 and
7. According
to
the applicants all that
is
required
to
complete the process
of
recognising
and appointing the third respondent is for the President
to
immediately implement
the
decision
by
publishing a notice in the Gazette and
issuing a certificate
of
recognition in terms
of
section 9(2)
of
the
Act.
They
argue that the other provisions of section 9 do not apply.
The reference
to
section 9In section 26(2),
they
submitted, should be
restricted
to
section 9(2).
The
respondents maintained that
the
President in carrying out his role in implementing the
Commission's decision is obliged
to
carry out a full process in terms
of
section 9 and 10
of
the old
Am,
which requires the involvement
of
the royal family in a process of selection and a process
of
consultation involving the President and
the
relevant traditional structures.
If
the President
were
obliged
to
follow section 9
to
the .letter, the royal family would be required
to
identify the person who qualifies in terms
of
customary law
to
be
the
king
or queen and the President would then have
to
take a decision in relation
to
the person identified, taking into account the various
criteria and considerations mentioned in section 9(1)(b), which are
the
very same considerations which had
to
be applied
by
the Commission under section 25(3)(b)
of
the old Act when
it
took
its
decision.
8. In
the
main judgment I agreed with the President and the other
applicants that
the
steps
envisaged In the other provisions of section 9 and 10
would be superfluous resulting in
the
decision
of
the
Commission having no consequence. The President would
be required
to
make his decision
to
recognise a king or queen
based
on his
own
assessment
of the
same factors considered by the Commission. To expect the
President
to
take his
own
decision on
the
same subject decided
by
the Commission
would introduce a measure
of
dupllcatlon, a cumbersome process and Insensible
inefficiency. It would make no sense for the Commission
to
be
empowered
to
investigate
and make a decision on a
claim
or dispute, only
for
its
findings
to
be
rendered redundant
by
a fresh
process undertaken
by
the President, which gave
precedence
to
the choice
of
the
royal family above the decision
of
the Commission.
The
Investigation conducted by
the
Commission would
be
rendered futile and
its
decision valueless. The outcome would be anomalous In
that after gathering evidence, hearing all interested parties, and
making
an Impartial decision
based
on custom,
the
Commission's decision would simply fall away in the face
of
a unilateral nomination
by
the royal family in terms
of
section 9(1)(a)
of
the
Act.
This could never have been the Intention
of
the
legislature. Insistence on the President conducting a
full process under section 9
of
the
Act would undermine the legislative purpose in
establishing the structural arrangements
to
deal with traditional leadership claims
s
and disputes. From a prudential or
cost-benefit
analysis, there
is
no
sense or value in pursuing a duplicated process. The interpretation
urged for by the respondents, in my opinion, would not
have sensible
or business-like results.
9. In the application for leave
to
appeal,the first and second respondents argued
that
another higher court may interpret the ambiguous
provisions
of
section 26(2)
of
the Ad difrerently,
with
more fidelity
to
the language
used.
The
clear language
of
the section requires the President
to
act in accordance with all the provisions
of
section 9 and does not limit the requirement
to
the ministerial functions
of
section 9(2). That
Is
Indisputable. The interpretation advanced in the main
judgment, based on a contextual and purposive approach, departs
from
the clear language used
by
the legislature in the Interests
of
achieving a prudential result honouring the structural
arrangements established In
the
statute.
An
interpretative dispute
of
this order Is quite evidently one upon which judges might
reasonably difrer. For that reason alone, I am unable
to
say
the appeal has no prospect
of
success. Moreover,
the
judgment
of
the
Constitutional Court has left some uncertainty about a matter
of
great interest, pressing concern and on-going historical
significance
to
the amaMpondo aseQaukenl. The
review
of
the
decision
of
the
Commission remains pending and there is contestation in the public
domain about whether and how the President may intervene
to
bring the dispute
to
finality. That
too
is compelling reason for a higher court
to
bring authoritative clarity
to
the issues.
1O. Mr Arendse SC, on behalf
of
the
President, prevailed upon me
to
keep in mind the
fact
that
the
SCA previously refused the respondents leave
to
appeal.That may be true, but
It
did
so in relation
to
the
application for review
of
the decision
of
the
Commission and the decision
of
the High Court, which subsequently has been set
aside by the Constitutional Court on grounds that remain opaque.
The
SCA has never been seized with the interpretative Issue that
served before me, and which I have resolved by a process
of
Interpretation that other judges might consider
too
extensive. Consequently, I am persuaded
by
the first and second respondents
both
that the appeal has a reasonable prospect
of
success and that there are other compelling reasons why the
appeal should be heard. The parties agreed
that
if
I
were
inclined
to
grant
leave,
it
should
be
to
the SCA. The history and obvious importance
of
the matterjustifies such an order.
11. The first and second respondents have raised other appeal
grounds in relation
to
whether the requirements for a declaratory order have
been met, joinder
of
the
royal family and
the deeming provisions
of
the
Ad..
In light
of
my
view
concerning
the interpretative issue there is no need
to
deal
with
them.
12. In turn now
to
the application in terms
of
section 18
of
the Superior Courts
Ad.
for immediate operation
of
my
order pending appeal. Section 18(1) provides that
unless the court under exceptional circumstances orders otherwise,
the
operation
of
a
decision which
is
the
subject
of
an application for
leave
to
appeal or
of
an appeal, is
suspended pending
the
decision
of
the application or appeal. In
terms
of
section 18(3), a court may only order
otherwise
if
the party who applied
to
the court
to
order otherwise, in addition proves on a balance
of
probabilities that he or she will suffer irreparable harm if
the
court does not
80
order and
that
the other party will not suffer irreparable harm
if
the court
80
orders.
13. On the assumption that we may well have
to
do with exceptional circumstances In this case, before
I am permitted
to
depart
from
the norm that leave
to
appeal will suspend the operation
of
my decision
of
20
November 2015 pending
the
appeal,
the
President and the other
applicants must prove on a balance
of
probabilities that they will suffer irreparable harm
if
I do not order immediate operation
of
the
order.
14. The applicants rely on
two
practical considerations which they say will constitute
irreparable harm. The first is that
the
title
to
the throne will remain disputed until
the
appeal is finalised.
As
unsatisfactory as that is, the
truth
of
the matter
is
that the title
to
the throne has
been
in
dispute since
it
was
created in 2008. The outstanding substantive and procedural issues in
relation
to
the
recognition
of
the
third respondent as king must
be
resolved authoritatively and finally, and
it
would
be
·
inappropriate
to
pre-empt that by means
of
the main application before me, dealing as
it
does solely
with
a declaration
of
rights
In relation
to
a narrow procedural issue.
An
order in terms
of
section 18(3) effectively elevating the third respondent
to
the position
of
king, pending the
review
of
the
Commission's decision and
the
appeal against my declaratory order, would
be
premature. The lingering uncertainty is undoubtedly an
administrative and political .headache for the applicants, and is
deserving
of
the court's sympathy. It however does not amount
to
the kind
of
irreparable harm contemplated by section 18. Appropriate
political, financial and administrative measures can
be
taken dealing
with
the status quo, while recognising the disputed claim
of
the third respondent. Although the third respondent may suffer
harm
from
the dlspute about his title,
he
is not party
to
the section 18 application. The President, the Minister
and the Commission, the applicants in the section 18(3) application,
will
not suffer irreparable harm
by
the delay in resolving the disputB and the continued
co
1
1testad
title.
Indeed, greater harm will result
if
the third respondent is elevated to
the
throne
and another court
sets
aside
the
decision
of
the Commission on
review,
or directs the President
to
embark upon further consultation.
15. The applicants, in addition, have put forward evidence that in
the absence
of
the effective
leadership
of
the third
respondent, traditional initiation schools have not been properly
controlled, and this has resulted in death and injury
to
initiates. Again, while sharing the applicants'
understandable anxiety, the difficulties, abuses and opportunistic
practices bedeviling
initiation in
the
Eastern Cape
Cape
cannot
be
placed
at the door
of
this
dlspute. Insufficient nexus has
been
established factually on the papers
to
conclude that the unresolved contest
to
the
title
of
the throne has a bearing on the bad practices in the
initiation processes. Other traditional structures can and should
be
deployed
to
deal
with
the
problem, and the first and third respondents can use their
authority and
best
efforts
to
bring better order, in spite
of
the contest between them. The seriousness
of
the problem notwithstanding,
it
too
does
not
amount
to
irreparable harm
to
the President, the Minister or the Commission that
necessitates an order compelling immediate
of
my declaratory order.
16. In
the
result, the applicants have failed
to
establish the conditions precedent for the exercise
of
my
discration in their favour under section 18(3)
of
the Superior Courts
Act.,
and hence Ilack the jurisdiction
to
make such an order.
17. I conclude
with
a
note
of
admonition. It appears from the papers in the main
application that the first and second respondents, Ms Wemwe Sigcau
and Ms Lombekiso
Sigcau, and their perhaps overly enthusiastic
supporters, have relied on the decision
of
the
Constitutional Court regarding the procedural
irregularity in
implementing
the
decision
of
the
Commission
to
assert publicly that the first
respondent's claim
to
the throne has been vindicated. That reliance is naTve,
misplaced and unfortunate. The Constitutional Court's decision does
not
vindicate the first respondent's claim in any
way;
nor does this judgment.
As
I
stated
in
my
judgment in the main application, the authoritative
decision
of
the
Commission is based upon an Impressive scholarly endeavour by an
acknowledged panel
of
experts. In their view,
the
third respondent
is
the rightful king. There is nothing in this Judgment, my
judgment in the main application, or the judgment
of
any other court which may
be
relied upon
to
say
otherwise.
On the contrary, the Constitutional Court in
Nxumalo v
President
of
the
RSA
and
othen1
in
effect
held
that the decision
of
the Commission in relation
to
the third respondent's position as the rightful king
of
the amaMpondo aseQaukeni remains valid and intact.
There
is
no evidence
before me explaining
why
the
first and second respondents have not pursued the application
to
review the decision
of
the Commission. Moreover, the main application before
me dealt only
with
the procedure
to
be
followed by the President
to
finalise
the
recognition and appointment
of
the
third respondent as king.
My
judgment makes no pronouncement
of
any kind onthe lawfulness
of
the
decision
of
the Commission.
16.
With
regard
to
the
question
of
costs,
the applicants have not sought
costs
against
the
respondents in the
past.
Iam thus disinclined
to
award
costs
against them in relation
to
their unsuccessful application in terms
of
section 18
of
the
Superior Courts
Act..
The
costs
of
the application for leave
to
appeal, as normal, should
be
costs
in the appeal. 19.1accordingly make the following
orders:
i)
The
first
and second respondents are gran1ad leave
to
appeal
to
the Supreme Court
of
Appeal against
the
order
of
this court dated
20
November
20
1
5.
ii)
The
application in
terms
of
section
1
8(3)
of
the Superior Courts
Act
1
0
of
2013
is
dismissed.
i
i
i
)
The
costs
of
the application for
leave
to
appeal will
be
costs
in
the
appeal.
iv)
There is no order
as
to
costs
In the application in terms
of
section
1
8(3)
of
the
Superior Courts
Act
1
O
of
2013.
JR
MURPHY
J
U
DGE O
F
THE
H
I
GH
CO
U
RT
Date
H
eard:
1
1May
20
1
6
Counsel for
the
Applicants:
Aljy
N
Arendee
SC,
Aljy
D
Borgatrom
I
nstructed
by:Bhadrish
Daya Attorneys
Counsel
for
the
Respondents:
Aljy
PM
Mtshaulana
SC,
Aljy
PG
Seleka
I
nstructed
by:
Webber
Wentzel Attorneys
Date
of
Judgment:3 Ju
n
e
20
1
6
[1]
2014
(
1
2)
BCLR
1
457
(
CC)