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[2016] ZAGPPHC 696
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Mabhena v President of the Republic of South Africa and Others (87483/2014) [2016] ZAGPPHC 696 (29 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
29/7/16
CASE
NO: 87483/2014
Reportable:
No
Of
interest to other judges: No
Revised.
ENOCH
MAKHOSOKE
MABHENA
APPLICANT
And
THE
PRESIDENT OF
THE
FIRST
RESPONDENT
REPUBLIC
OF SOUTH AFRICA
COMMISSION
ON TRADITIONAL LEADERSHIP
SECOND
RESPONDENT
DISPUTES
AND CLAIMS
THE
CHAIRPERSON OF THE COMMISSION
THIRD
RESPONDENT
ON
TRADITIONAL LEADERSHIP
DISPUTES
AND CLAIMS
THE
MINISTER FOR
COOPERATIVE
FOURTH
RESPONDENT
GOVERNANCE
AND TRADITIONAL AFFAIRS
THE
PREMIER OF MPUMALANGA PROVINCE
FIFTH
RESPONDENT
THE
NATIONAL HOUSE OF
TRADITIONAL
SIXTH
RESPONDENT
LEADERS
THE
MPUMALANGA HOUSE OF
TRADITIONAL
LEADERS
SEVENTH
RESPONDENT
MBUSI
MAHLANGU
EIGHTH
RESPONDENT
JUDGMENT
AC
SASSON, J
[1]
This application deals with the crisp question whether the President
of the Republic of South Africa had the necessary power
to declare
the eighth respondent (Mr Mbusi Mahlangu) as a deemed King of the
deemed Kingship of the Ndzundza- Mabhoko on 5 November
2010.
[2]
The applicant is Mr Enoch Makhosoke Mabhena (hereinafter referred to
as "the applicant") who refers to himself as
the King of
the aManala and amaNdebele
as
a
whole,
recognized
in terms of traditional customs and according to the Traditional
Leadership and Governance Framework Act.
[1]
[3]
The respondents are the President of the Republic of South Africa
("the President" - the first respondent); the Commission
on
Traditional Leadership Disputes and Claims ("the Commission"
- the second respondent); the Chairperson of the Commission
on
Traditional Leadership Disputes and Claims (the third respondent);
the Minister for Cooperative Governance and Traditional Affairs
(the
fourth respondent); the Premier of Mpumalanga Province (the fifth
respondent); the National House of Traditional Leaders (the
sixth
respondent); the Mpumalanga House of Traditional Leaders (the seventh
respondent) and Mr Mbusi Mahlangu (the eighth respondent).
[4]
The applicant cites Mr Mahlangu as the eighth respondent in his
capacity as recognized in an
ultra vires
manner (in terms of a
notice published by the President in the Government Gazette) as the
"Deemed King" of the (incorrectly)
recognized "Deemed
Kingship of the Ndzundza-Mabhoko". (I will return to the
submissions for alleging that the recognition
of the eighth
respondent was
ultra vires
herein below.)
[5]
Only the fourth and eighth respondents opposed the relief sought in
this application.
The
dispute
[6]
The President published a notice in the Government Gazette (Notice
1027 of GG 33732 dated 5 November 2010 - hereinafter referred
to as
"the notice) in terms of which the applicant (King Enoch
Makosonke Mabhena) is recognised as the king of the Kingship
of the
amaNdebele of Manala and amaNdebele as
a whole
and the eighth
respondent (King Mbusi Mahlangu) is recognised as the deemed king of
the Kingship of the Ndzundza-Mabhoko.
[7]
This notice forms the subject matter of these proceedings. The
applicant seeks an order that -
(i)
the said
notice be set aside in so far as it refers to King Mbusi Mahlangu
(the eighth respondent) as the deemed king of the Kingship
of
Ndzundza-Mabhoko in terms of the Traditional Leadership and
Governance Framework Act;
[2]
(ii)
the President recognises the applicant as the
king for the Kingship amaNdebele of Manala and amaNdebele as a whole
in terms of the
provisions of section 26(2)(a) of the old Act prior
to its amendment coming into effect on 25 January 2010;
(iii)
the Premier recognises the eighth respondent as
senior traditional leader for the Ndzundza-Mabhoko in terms of the
provisions of
section 26(2)(b) of the old Act;
(iv)
the recognition of King Enoch Makhosoke Mabhena
as the king for the Kingship amaNdebele of Manala and amaNdebele as a
whole be published
in the Government Gazette within one month from
the date of this order;
(v)
the recognition of Mr Mbusi Mahlangu as senior
traditional leader for the Ndundza-Mabhoko be published in the
Government Gazette
within one month from the date of this order;
(vi)
the respondents who oppose the application be
ordered to pay the costs of the application (such costs to include
the costs of both
senior and junior counsel) jointly and severally
the one paying the other to be absolved.
[8]
In essence the prayers sought in the Notice of Motion are directed
against the President's recognition of the eighth respondent
as a
deemed King of the deemed Kingship of the Ndundza-Mabhoko as being
ultra vires
in terms of the
Traditional Leadership and
Governance Framework Act of 2003
as amended.
Preliminary
points
[9]
Various preliminary points were raised on behalf of the eighth
respondent. Firstly, the applicant has no
locus
standi
to
bring this application on behalf of the aManala and AmaNdebele as a
whole without authorisation in the form of a special resolution
from
the Manala Mbongo Royal Family and the Manala Mbongo Traditional
Council. Secondly, the non-jonder of the Ndzundza Mabhoko
Kingships, the Manala-Mbongo Kingship and their Traditional Councils,
the Ndzundza-Mabhoko Royal Family and the Ndzundza Mabhoko
Traditional Council constitutes a material non-joinder as any
decision of this Court will have a direct impact on the interest
of
the aforementioned parties. Thirdly, the President had a discretion
and a duty to apply his mind to the question whether the
decision of
the Commission to the effect that the applicant's family house of
Manala-Mbongo is the rightful lineage to hold the
position of King of
aManala and amaNdebele as a whole to the exclusion of the paramountcy
of the Ndzundza-Mabhoko within the amaNdebele
people, must be
implemented. Fourthly, the applicant misconstrues the decision of the
Constitutional Court in
Sigcau
v President of South Africa and others
[3]
in
light of the fact that the issues
in
casu
are
completely different from those which prevailed in the
Sigcau
matter.
[10]
I do not intend dealing with the preliminary matters at the outset
but will deal with them as part and parcel of my reasons
for my
order.
Background
Constitutional
framework
[11]
Section 211
and especially section 211(1) of the Constitution of the
Republic of South Africa
[4]
("the Constitution") recognizes the institution, status and
role of traditional leadership according to customary law.
[12]
Section 212(1) of the Constitution provides that national legislation
may provide for a role for traditional leadership as
an institution
at local level on matters affecting local communities. Section 212(2)
of the Constitution further provides,
inter alia,
for the
establishment of a Council of Traditional Leadership empowered to
deal with matters relating to traditional leaders, customary
law and
the customs of communities observing customary law.
The
Traditional Leadership and Governance Framework Act
[5
]
[13]
In order to give effect to the structure envisaged by the
Constitution, the
Traditional Leadership and Governance Framework Act
was
enacted in 2003. This Act (the old Act) was subsequently amended
("the new Act") in 2010. (Although the Amendment Act
merely
amended certain provisions and did not replace the
Traditional
Leadership and Governance Framework Act as
a whole, I will for
convenience sake refer to the unamended Act as "the old Act"
and the amendments as "the new
Act".)
[14]
The amendments to the old Act only came into effect on 25 January
2010.
[15]
The
Traditional Leadership and Governance Framework Act,
>inter
alia,
provides for the recognition of traditional communities,
the establishment and recognition of Traditional Councils and for the
establishment
of the Commission on Traditional Leadership Disputes
and Claims ("the Commission"). Chapter 6 of the old Act
deals with
the dispute resolution functions of the Commission:
Section 25
of the old Act sets out the functions of the Commission
and
section 26
deals with the decisions of the Commission. The
amendment replaced chapter 6 with a new chapter 6. Of particular
relevance to this
matter is the fact that both
sections 25
and
26
have been replaced with a new
section 25
and
section 26.
I will
return to some of these amendments herein below in so far as they are
relevant to the dispute in this matter.
[16]
In terms of
section 1
of the old Act, a king is a traditional leader
recognised in terms of the Act. In terms of the
section 1
of the new
Act, a kingship or queenship means a kingship or queenship recognised
in terms of
section 2A
of the new Act.
[17]
The old Act made specific provision for a dispute resolution process
whenever a dispute concerning customary law or customs
arose within a
traditional community or between traditional communities or customary
institutions on a matter arising from the
implementation of this Act.
In such event members of the community and traditional leaders within
the traditional community or
customary institution concerned must
seek to resolve the dispute internally and in accordance with
customs. Where a dispute relates
to a case that must be investigated
by the Commission, the dispute must be referred to the Commission.
[18]
As already pointed out, the Act provides for the establishment of a
Commission on Traditional Leadership Disputes and Claims.
In terms of
section 25(1)
of the old Act, the Commission operated nationally and
had the authority to decide on any traditional leadership disputes as
envisaged
in
section 25(2).
Where there is doubt as to whether a
kingship, senior traditional leadership and headmanship was
established in accordance with
customary law and customs, the
Commission had the authority to investigate the dispute
(section
25(2)(i)).
The Commission had the specific authority to investigate a
dispute either on request or of its own accord
(section 2(a)).
[19]
Section 9(2)
of the Act requires that the recognition of a person as
a king or queen
must
be done by way of a notice in the Gazette
recognising the person identified as king or queen and the issuing of
a certificate of
recognition to the identified person. This section
remained unaffected by the amendments.
[20]
The new Act, however, introduced a new dispensation in respect of the
Commission's powers when dealing with disputes. In terms
of
section
26(1)
of the old Act, the Commission could take a "decision"
with the support of at least two thirds of the members of the
Commission. Once a decision has been taken, the Commission must
within two weeks of the decision having been taken, convey it to
the
President. Once the decision has been conveyed to the President, the
President is required to immediately
implement
the decision in
accordance with
section 9
or
section 10
where the position of king or
queen is affected by such a decision
(section 26(2)(a)
of the old
Act).
[21]
In terms of
section 26
of the new Act, the Commission can no longer
take a "decision "but may merely make a "recommendation"
with
the support of at least two thirds of the members of the
Commission. Once a recommendation has been made, the Commission must
within
two weeks of the recommendation having been made, convey it to
the President and the Minister where the position of a king or queen
is affected by such a recommendation. The President must within a
period of 60 days make a decision on the recommendation
(section
26(3)
of the new Act).
[22]
Although the recognition of kings and queens in terms of the old Act
is not affected by the new Act, the amendment fundamentally
altered
the final process of recognition by the President: Whereas the old
Act obliged the President to merely implement any "decisions"
of the Commission commenced or made prior to the commencement of the
new Act (25 January 2010), the new Act now confers a discretion
upon
the President to implement which is now only a "recommendation"
and no longer a "decision" of the Commission.
Relevant
facts
[23]
In this matter the Commission, of its own accord, investigated the
paramountcies of the Manala-Mbongo and the Ndzundza-Mabhoko.
More in
particular the investigation was to determine whether the paramountcy
of Manala-Mbongo and the paramountcy of Ndzundza-Mabhoko
were
established in accordance with customary law and customs. They are
collectively known as the amaNdebele.
[24]
The findings of the Commission were published in a document entitled
"Determination on Manala-Mbongo and Ndzunza Mabhoko
Paramountcies" .
From this document it appears that the
Commission followed a two stage approach in determining this
question: During the first stage
evidence and information were
gathered through separate hearings for the paramountcies of the
Ndzundza-Mabhoko and Manala-Mbongo.
[25]
During the second stage the Commission conducted its own research.
The parties had been furnished with a set of questions arising
from
the research and were expected to respond to the said questions
during a hearing that was held jointly. During the public
hearings
selected members of the Ndzundza-Mabhoko and the Manala-Mbongo Royal
Households and other appointed by them testified
under oath. All
parties were afforded an opportunity to challenge the versions of the
two royal houses and state their case.
[26]
On 15 January 2008 all nine members of the Commission concluded,
inter alia,
that the amaNdebele Kingship existed and resorted
under the lineage of Manala and that in terms of the old Act, the
Ndzundza-Mabhoko
paramountcy is not a kingship but remained part of
the kingship of the amaNdebele
as
a
whole.
It was
further the view of the Commission that the kingship of the
amaNdebele is to be restored and that this can only be done under
one
king.
[27]
The Commission also investigated the dispute regarding the kingship
of the amaNdebele. The result of this investigation is
encapsulated
in a document entitled
"Determination on the Kingship dispute
of amandebele between Johannes Dlize Mabena and Mbulawa Enock Maben
a
(Makhosoke II)" .
The Commission decided firstly that, in
terms of customary law and customs of the amaNdebele, Johannes Dlize
Mabhena (the claimant)
is not entitled to the posision of king of
aManala. His claim was therefore dismissed. Secondly, Makhosoke II
(the applicant) was
determined to be the rightful lineage to hold the
position of king of aManala and amaNdebele
as
a
whole.
The
Commission accordingly determined in terms of the old Act that
"according to the customary law of succession of amaNdebele,
the house of Mbongo I, which is the house of the current incumbent,
Makhosoke II [the applicant], is the rightful lineage to hold
position of King of aManala and amaNdelele as
a
whole" .
It was consequently the determination of the Commission that King
Enoch Mabhena (King Makhosoke II - the applicant) is the rightful
king of the Manala and amaNdebele as a whole.
[28]
On 21 January 2010, the Commission made a decision again under the
old Act that the status of Ndzundza could only be that of
ikosi
and that according to customary law and customs of the
amaNdebele, his descendants could only inherit such position.
[29]
On 21 January 2010, the Commission made a further decision in terms
of the old Act that
"in terms of the law and customs of
amaNdebele and the Framework Act, the nature of the position of the
late paramount chief
of Ndzundza-Mabhoko, Cornelius Nyumbako Mahlangu
(Mayitjha Ill), is that of senior traditional leader" .
[30]
It is important to point out that these decisions were made in terms
of the old Act as they were made prior to the commencement
of the new
Act on 25 January 2010.
[31]
On 5 November 2010, the President in a notice in the Government
Gazette
( supra)
purportedly gave recognition to the decisions
of the Commission in terms of section 28(8) read with
section 2A
of
the
Traditional Leadership and Governance Framework Act, 2003
that
the amaNdebele of Manala and the amaNdebele as a whole is recognized
as a kingship with King Enoch Makhosoke Mabhena as the
king. Further
in terms of
section 28(9)
of the Act, the Ndzundza-Mabhoko is
recognised as a deemed kingship with King Mbusi Mahlangu as the
deemed king.
[32]
In so far as there may be a dispute in respect of which Act the
President published the notice, it is important to point out
that the
President, in referring to
section 28(9)
and
section 2A
, clearly
published the notice in terms of the new Act and not in terms of the
old Act as neither sections referred to in the notice
exist in the
old Act.
[33]
The recognition of King Mbusi Mahlangu as the "deemed king"
of the "deemed kingship" of Ndzundza-Mabhoko
in the notice
is in conflict with the decisions made by the Commission.
[34]
Before I proceed to the crux of the dispute, I need to make two
observations: Firstly, I express no opinion in respect of whether
the
decisions made by the Commission are correct or not, nor whether the
decisions were irrational or unreasonable. Before this
Court is not a
review of the decisions made by the Commission. Accordingly it falls
outside of the scope of these proceedings to
determine whether the
Commission's factual findings were unreasonable or irrational.
Consequently I am bound to defer to the decisions
made by the
Commission as they stand until such time they have been reviewed and
set aside. In this regard I also take note of
the fact that the
Commission was at the time a specialised body established in terms of
the old Act to apply customary law when
adjudicating disputes between
parties.
[6]
Consequently, should
this Court decide to set aside the notice of the President, the
Commission's decision in respect of the applicant's
position as the
rightful king of the amaNdebele and of Manala and the amaNdebele as a
whole remains valid and intact.
[7]
The Commission's decision in respect of the eighth respondent
likewise stands. Secondly, the only issue before this Court is
whether
the President had acted outside of his powers when the said
notice was published in the Government Gazette in the sense that the
President failed to implement the "decisions "made by the
Commission prior to the implementation of the amendments.
[35]
I have already referred to the fact that the old Act (2003) was
amended in 2010. In terms of the amendments the Commission
(as
established in terms of the old Act) ceased to exist with effect from
31 January 2010. A new Commission was established by
the amendment
Act. What is, however, important to restate is the fact that the old
Act was only amended with effect from 25 January
2010.
[36]
In this matter - as was the case in
Sigcau
- the Commission
made certain "decisions" before the Act was amended. Those
decisions were conveyed to the President to
be published as a notice
in the Government Gazette. If it is found that the President had to
exercise his powers in terms of the
old Act - even though the notice
was only published some months after the decisions were taken and
some months after the Act was
amended - and not in terms of the new
Act, the decision of the President as set in the notice falls to be
set aside.
[37]
The legal position regarding the powers of the President in terms of
the Act was succinctly summarized the Constitutional Court
in
Nxumalo
v President of the Republic of South Africa and others:
[8]
"[14] In my view,
the bases upon which the respondents attempt to distinguish the
present case from
Sigcau
are
without merit. The principle upon which
Sigcau
is
based is that, if a functionary purports to exercise under one Act a
power that that Act does not confer upon him or her, that
exercise of
power is unlawful even if there is another Act that confers such
power on the functionary. Here the President believed
that he had
power to decide the applicant's claim and he purported to do so in
terms of the new Act. In this regard, he misconstrued
the position.
The new Act was not applicable. The Framework Act was applicable.
Under
the Framework Act, the President had no power to decide claims such
as the applicant's claim. It was the Commission that had
the power.
The President's obligation under the Framework Act was to implement
the decision of the Commission. In the present case,
he did
not do so but sought to make his own decision under the new Act.
[9]
[15] This Court held in
Sigcau
that the President should have acted in terms of the
Framework Act and not the new Act. That meant that the President had
acted
outside his powers. The notice containing his decision was set
aside. We also set aside the decision of the High Court dismissing
the review application that had been brought by Mr Sigcau in respect
of both the decision of the Commission as well as the President's
notices.
[16]
In
Sigcau, the President's notices were set aside on the basis that he
had "acted under
a
wrong
Act.
[10]
There is no reason why this matter should not be decided on the same
principle. It is, therefore, proper that we should set
aside
the President's notice in this case as well ..."
[38]
I interpose here to briefly deal with the submission on behalf of the
respondents that any reliance on the decision of the
Constitutional
Court in
Sigcau
v President of the Republic of South Africa and others (Centre for
Law and
Society as amicus curiae)
[11]
is
misplaced. I do not agree. The Constitutional Court in
Sigcau
set out
the legal position in respect of what the powers of the President are
in terms of the old Act
vis
a
vis
the new
Act. The legal position was confirmed by the Constitutional Court in
Nxumalo.
In
Sigcau
the
President's notices were likewise set aside on the basis that he had
acted under a wrong Act.
[39]
This approach was also clearly set out and endorsed by the Court in
Minister
of Cooperative Governance and Traditional Affairs v Sigcau:
[12]
"[70] The
applicants' argument is supported by a number of structural and
prudential considerations. Before the amendment of
the Act, the
legislative scheme in relation to the recognition of paramountcies as
kingships clearly mandated the Commission to
act as the
decision-maker, with the President's role being confined to
"immediate implementation". As the designated
specialist,
quasi-judicial body, the Commission could expect a measure of
deference for the limited period in which its investigative
and
decision-making functions were directed at redressing the pre-
existing institutional distortions. To expect the President
to take
his own decision on the same subject decided by the Commission would
introduce a measure of duplication, 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.
[71] Moreover, the
interpretation favoured by the respondents would duplication of
functions and decision-making in relation to
the criteria and
considerations applicable in terms of section 9(1)(b) of the Act. The
same issues would be decided twice by different
functionaries. And
the President would be faced with possibly competing decisions in
relation to the ultimate decision: one from
the Commission and the
other from the royal family. If the President adopted the decision of
the Commission he would have to refuse
the nomination presented by
the royal family, would be obliged to remit the matter to the royal
family for reconsideration and
would have to continue doing so until
the royal family agreed with the choice of the Commission. On the
other hand, if he accepted
the nomination of the royal family, then
the Commission's decision would be rendered pointless.
[72] A finding that so
cumbersome and needless a process was not intended by the legislature
is supported by the textual argument
that section 26(2)(a) of the Act
in its un-amended form required
"immediate"
implementation. The wording implies that once the decision of the
Commission was conveyed to the President within two weeks of it
having been made, it had to be implemented straightaway. The
legislature did not contemplate a second lengthy process of
engagement
involving the President and the royal family, where the
latter's approval of the Commission's decision would in effect be
sought.
In addition, if a process under section 9 is followed, then
the President cannot be said to be
implementing
a decision of
the Commission. He would instead be making his own decision.
Implementation does not necessarily involve an act of
completion or
perfection. In this instance it means the carrying out of, or giving
formal effect to a concluded administrative
action of a statutory
body. It is the execution of a complete decision.
[73] To reiterate:
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 and disputes in the manner reflected
in the text of the
statute read as a whole. From a prudential or cost-benefit analysis,
there is no sense or value in pursuing
a duplicated process. In
investigations done under section 25(2) of the Act prior to its
amendment, the language and context of
the statute confirmed that the
decision of the Commission was intended to prevail over the
preference of the royal family. The
Commission was called upon to
deal with an extraordinary situation aimed at redress of past
distortions, whereas section 9 of the
Act creates a mechanism for the
ordinary succession to vacant kingships.
[74] In the premises, I
agree with the applicants that section 26(2)(a) of the old Act cannot
be construed to require the President
to engage in the full process
envisaged under section 9 of the Act. The literal interpretation
urged for by the respondents would
not have sensible or business-like
results. A more restricted meaning is justified by the context.
Accordingly, the applicants
are entitled to the declaratory relief
sought in paragraphs 2 and 3 of the notice of motion".
[40]
In the present matter it is clear from the facts that the Commission
concluded its functions and made its decisions under the
old Act. Its
term of office came to an end on 31 January 2010. Only in November
2010 did the President in a notice in the Government
Gazette made the
decision public. In
Sigcau
the Commission likewise completed
its functions and made a decision pior to its terms of office coming
to an end on 31 January 2010.
In that matter the President also only
made its decision public some months later. In
Sigcau
the
Constitutional Court pertinently dealt with the question which Act
applies in such circumstances: the old or the new Act? The
matter in
Sigcau
was further significantly decided in circumstances
where the Commission (as in the present matter) made a decision in
circumstances
where the old Act still applied. Because the Commission
exercised its functions and completed its functions - which
culminated
in a decision - the old Act also applied to the final
stage of the procedure - which is the President's notice:
"[21] In the present
case, the Commission investigated and made its decision on 21 January
2010, before the new Act came into
operation. The Commission's
procedures were thus initiated and substantially completed under the
old Act. The procedures under
the old Act thus remained in place to
be followed in respect of the final stage of the procedure, that is,
the President's notice."
[22] It is clear from the
notice above that the President purported to give effect to the
Commission's decision under the provisions
of the new Act.
[23] The provisions of
the new Act in relation to the proceedings of the Commission are
different from the provisions of the old
Act. It is not necessary to
set out and analyse the differences in detail. Suffice it to point
out that under the old Act the Commission
was authorised to make
"decisions" in respect of disputes referred to it, but
under the new Act it could only make recommendations.
The procedure
for dealing with the Commission's recommendations under the new Act
also differs materially from the process of implementation
of the
Commission's decisions under the old Act.
[24] The implementation
of the Commission's decisions under the old Act could thus not be
done under the provisions of the new Act.
In argument it was
suggested that reference to the provisions of the new Act in the
notice was a mistake. The problem with this,
however, is that nowhere
in the papers does the President say that it was a mistake".
[41]
The Constitutional Court in
Sigcau
set aside the notice on the
basis that the President purported to exercise powers not conferred
on him by the provisions of the
old Act.
[42]
In the present set of facts I am likewise of the view that the
President should have acted in terms of the old Act and not
the new
Act. Although the recognition of kings and queens in terms of the old
act was not affected by the new Act, one important
amendment, as
already pointed out, was brought about with regard to the final
process of recognition by the President: In terms
of the old Act, the
President is obliged to merely implement any "decisions "of
the Commission. It is only in the new
Act that a discretion is
conferred upon the President to implement what is now merely a
"recommendation" by the Commission.
Under the old Act the
President had no discretion to deviate from the findings of the
Commission.
[43]
The President accordingly acted outside his powers when he
purportedly published the notice under the new Act. The President
at
the time derived his powers from the old Act and consequently merely
had to implement the decisions made by the Commission.
Consequently
the notice containing his decision must therefore be set aside.
[44]
I debated with counsel on behalf of the applicant whether the Court
should order anything more than merely setting aside the
said notice
and it was conceded that an order to this effect would suffice.
[45]
Before I make my order I briefly need to briefly turn to the
preliminary points raised on behalf of the eighth respondent and
some
of the other submissions regarding the nature of these proceedings.
[46]
On behalf of the eighth respondent it was submitted that what is
before this Court is a review of the decision of the President
and
that the Court should therefore not entertain the application
because,
inter alia,
the record of the proceedings needs to be
discovered before this Court can take a proper decision. I do not
agree.
[47]
In the present matter the applicant is seeking an order setting aside
the said notice published in the Government Gazette in
so far as the
President did not have the necessary power to deviate from the
decisions made by the Commission. A review under the
Promotion of
Administrative Justice Act
[13]
("PAJA") is therefore misplaced. This Court is not seized
with a review of the reasonableness of a decision made by the
President as all that was required of the President was to give
effect to the decision of the Commission. The President was therefore
not required to make a decision and accordingly not required to give
consideration to the views of the Royal Family nor to engage
with
them.
[14]
Consequently, there
is also no merit in the submission that the Royal Family ought to
have been joined in these proceedings as
their views have no bearing
on the outcome of this application. The question before this Court is
not whether the President ought
to have consulted with the royal
family and ought to have engaged with them. The simple question
before this Court is whether the
President had acted outside of his
powers in issuing the notice which effectively ignored the decisions
made by the Commission.
I have already decided that the President had
acted outside of his powers hence my view that the decision as
published in the notice
falls to be set aside.
[48]
Order:
1.
The notice of the President dated 5 November 2010
published in the Government Gazette (Notice 1027 of GG 33732 in so
far as it refers
to King Mbusi Mahlangu (the eighth respondent) as
the deemed king of the Kingship of Ndzundza-Mabhoko in terms of the
Traditional Leadership and Governance Framework Act, Act
41 of 2003
as amended is set aside.
2.
The fourth and eighth respondents are ordered to
pay the applicant's costs including the costs of two Counsel, jointly
and severally,
the one paying the other to be absolved.
_____________________
A
C BASSON
JUDGE OF THE HIGH COURT
Appearances
:
For
the applicant
: Adv
Muller SC and Adv IZ Pansgrouw
Instructed
by
:
Schoeman & Associates
For
the fourth Respondent
:
Adv AP
Laka SC and Adv PA Managa
Instructed
by
: State
Attorney, Pretoria
For
the eight Respondent
:
Adv SM
Lebala SC and Adv MH Mphahlele
Instructed
by
: JM
Masombuka Attorneys
[1]
Act 41 of 2003.
[2]
Act 41 of 2003 as amended.
[3]
2013 (9) BCLR 1019 (CC).
[4]
Act 108 of 1996.
[5]
Act 41 of 2003.
[6]
This was also the view expressed by the Constitutional Court in
Nxumalo v President of the Republic of South Africa and others
12014
(12) BCLR 1457 (CC).
[7]
See Nxumalo at paragraphs [17] - [18].
[8]
2014 (12) BCLR 1457 (CC).
[9]
My emphasis.
[10]
Ibid.
[11]
2013 (9) BCLR 1091 (CC).
[12]
2015 JDR 2536 (GP).
[13]
Act 3 of 2000.
[14]
See also: Minister of Cooperative Governance and Traditional Affairs
v Sigcau ( supra).