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[2016] ZAGPPHC 933
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Sandile v President of the Republic of South Africa and Others (22654/2011) [2016] ZAGPPHC 933 (18 October 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 22654/2011
DATE:
18/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
KING
BANGILIZWE MAXHOBAYAKHAWUZELA
SANDILE
APPLICANT
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
FIRST
RESPONDENT
CHAIRPERSON
OF THE COMMISSION ON TRADITIONAL     SECOND
RESPONDENT
LEADERSHIP
DISPUTES AND CLAIMS
MINISTER
OF COOPERATIVE GOVERNMENT AND                     THIRD

RESPONDENT
TRADITIONAL
AFFAIRS
NATIONAL
HOUSE OF TRADITIONAL LEADERS                     FOURTH

RESPONDENT
EASTERN
CAPE HOUSE OF TRADITIONAL LEADERS                FIFTH

RESPONDENT
PREMIER
OF EASTERN CAPE PROVINCE
SIXTH
RESPONDENT
KING
MPENDULO
SIGCAWU
SEVENTH
RESPONDENT
JUDGMENT
TLHAPI
J
INTRODUCTION
[1]
This is an application to review and to set aside two decisions in
terms of the
Promotion
of Administrative Justice Act 3 of 2000 (“PAJA”). The
decisions are that of the President and the Commission
in which the
following relief is sought:
“
1 Reviewing and setting
aside the decision of the First Respondent taken on or
about 29 July 2010, in which he
failed to recognise the amaRharhabe paramountcy;
2 Reviewing and setting aside the
decision of the Commission on Traditional Leadership Disputes and
Claims taken on an unknown date,
in which it rejected the applicant’s
claim and that of the amaRharhabe people in respect of recognition of
the amaRharhabe
paramountcy;
3 To the extent necessary,
extending the period of 180 days in
section 7
of the
Promotion of
Administrative Justice Act 3 of 2000
to the date of the institution
of the present application;
4 Directing the first and second
respondents, together with any other respondent opposing this
application, to pay the Applicant’s
costs.”
The
application was opposed by the first, second and third respondents.
[2]
Again, added to the decision not to recognize the status of the
amaRharhabe Paramountcy was another decision by the second
respondent, taken on an unknown date
which
declared King Sandile’s position as paramount chief to be that
of a senior traditional leader. The latter decision was
suspended and
replaced with one that stated that King
Sandile
was to remain King until his death.
[3]
King Bangilizwe Maxhobayakhawuleza Sandile “King Sandile”,
is the ninth generation paramount chief of the amaRharhabe.
His
Paramountcy consists of 40 traditional councils, each presided over
by a Senior Traditional Leader. He is regarded by all as
a
traditional leader of higher status in charge of each one of the 40
traditional councils. The said traditional councils were
established
under the Administrative Authorities Act, 1984 (Ciskei) and the
Traditional Leadership and Governance Act 2005 (Eastern
Cape). On 17
September 1990 King Sandile was appointed Paramount Chief of the
‘
Rharhabe and cognate
tribes in the Ciskei
,’
with effect from 1 October 1990,  ‘KSX4’.
[4]
The second respondent, The Commission on Traditional Leadership
Disputes and Claims was established in terms of s22(1) of the

Traditional Leadership and Governance Framework Act 41 of 2003,
(“the Act”) and came into operation on 24 September
2004.
The Act recognized  three positions within the institution of
traditional leadership, that of
Kingship;
Senior Traditional Leadership
and
Headmanship
in
terms of section 28(7):
“
The Commission must in
terms of section 25(2), investigate the position of paramountcies and
paramount chiefs that had been recognised,
and which were still in
existence and recognised, before  the commencement of this Act,
before the Commission commences with
any other investigation in terms
that section
”
.
Section
25 of the Act provides:
“
(1) The Commission operates
nationally and has authority to decide on any traditional leadership
dispute and claims 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 .......was
established in accordance with customary
law and customs;
(ii)
a traditional leadership position
where the title or right of the incumbent is contested;”
The
Commission chaired initially by Prof T Nhlapo was established to
perform the following asks, being, an investigation into the
position
of the then twelve paramounticies ‘established under the
Administration statutory regime, to decide whether they
qualified as
kingships, to investigate the position of existing paramount chiefs
and to determine matters brought under section
25(2) of the Act.
[5]
After the Commission presented its report to the President, the
President without giving reasons accepted and decided to implement

the determination of the Commission not to recognize the amaRharhabe
paramountcy and, he pronounced on the status of  the
applicant,
King Sandile and that of his successors.
BACKGROUND
TO THE AMARHARHABE PARAMOUNTCY
[6]
It is necessary to begin by stating the divergent accounts of the
origins of Kingship / Paramountcy in the pre-constitutional
era among
the AmaRharhabe and amaGcalekas sketched in the founding affidavit
deposed to by King Sandile; the answering affidavit
as deposed to by
Prof Mohlomi Albert Moleleki(“Prof Moleki”) and the
replying affidavit of her Majesty Queen Noloyiso
Sandile (“Queen
Sandile”). The accounts briefly point out to the difference in
the approach by which each party viewed
as relevant to the
determination of the Paramountcy of the amaRharahabe . Queen Sandile
was substituted as applicant upon the death
of King Sandile.
Without now pronouncing on the application to strike out the
supplementary and supporting affidavits, their
content shall for the
record be summarised.
KING
SANDILE
“
19. The AmaRharhabe are
descendants of the Right Hand House of Phalo, King of the amaXhosa
who died circa 1775. According to the
history of the amaXhosa Phalo
had two sons who both became prominent in the history of the
amaXhosa: Gcaleka, his son from the
Great House and Rharhabe his son
from the Right Hand House. Rharhabe was by birth senior to Gcaleka by
several years.
20. During the reign of Phalo,
there was a disruption of the politics of the amaXhosa that led to a
split of the amaXhosa into amaRharhabe
and amaGcaleka. This important
fissure of the House of Phalo took place between the two half
brothers and their followers when
Gcaleka, soon after reaching
manhood, tried to control the Great House while Phalo was still
ruling. He failed in his attempts.
Rharhabe who had opposed Gcaleka’s
designs to the throne, decided to move to a new country with a
section of the tribe under
his leadership. There had also been
tensions between the two half brothers.
21. Rharhabe’s decision to
“secede” in the circumstances was accepted by Phaloand
his Councillors. Rharhabe duly
left Phalo’s Chiefdom and
settled across the Kei River. Initially, Phalo left in the company of
Rharhabe and crossed the
Kei with him in the latter’s search
for a new home. He however later returned to his headquarters in the
Transkei where he
died and was succeeded by Gcaleka, as head of the
Great House.
22. After crossing the Kei with
Rharhabe, Phalo is said to have disappeared from public life and did
not take any further notable
part in the control of the affairs of
the amaXhosa until his death in 1775. Meanwhile, Rharhabe had lost no
time is asserting himself
by military force over the tribes across
the Kei (many of whom had much earlier moved away from the main body
of the amaXhosa in
pursuit of an independent political existence)
until the acknowledged PARAMOUNT Chief. He settled there after
defeating the authority
of Hinsati of the amaLawu. He settled there
after defeating the latter and subjecting his tribe under his
authority. It is emphasised
that Hinsati and his tribe had not at any
stage prior thereto been part of the amaXhosa Kingdom.
23. The amaRharhabe have been
politically independent since the time of the
“
secession”
of Rharhabe described above.........
24. The Rharhabe
Paramountcy/Kingship has been acknowledged by both Colonial and
Apartheid authorities prior to the coming into
operation of the Bantu
Administration Act, 1927.
25. The Rharhabe paramountcy has
thus existed since circa 1740, and its legitimacy has never been
contested by the traditional communities
by which it is constituted,
the colonial and the apartheid era authorities. The said traditional
communities and the amaRharhabe
in general have at all material times
accepted the position of descendants of Rharhabe as Paramount Chiefs
of the amaRharhabe”
QUEEN
SANDILE’S AFFIDAVIT DELIVERERED IN TERMS OF RULE 53
This
is a response to the Commission’s determination on the status
of the amaRharhabe paramountcy and to the content of the
review
record which addresses the historical development of the Rharhabe and
Gcaleka paramountcies. Reference is made to the historical

authorities used by the Commission and to leading published
authorities which ought to have reasonably been considered by the
Commission in their investigation. It is contended that the key
events charted in the supplementary affidavit were irreconcilable

with the determination made by the Commission and upon which the
President’s decision is based. According to Queen Sandile
these
findings and decisions will not withstand review, that is, having
regard to certain key events in the history of the amaXhosa.
The
key events pointing to the independence of the amaRharhabe and which
it is contended should have been considered by
the Commission, is
dealt with under the following headings:
“
29.1   The
dynastic split between the Gcaleka and Rharhabe components of the
amaXhosa;  29.2  the political
implications of Gcaleka’s
graduation as divine doctor;  29.3 Rharhabe secedes from the
Great House;   29.4
Rharhabe establishes a new and
independent centre of political control west of the Kei River; 29.5
The death of Rharhabe and the
period under Ndlambe as the amaRharhabe
King  Regent – era of consolidation of Rharhabe Kingship;
29.6 The amaGcaleka’s
attempt to exercise influence over the
amaRharabe paramountcy affairs;29.7Amagqunukwebe, Imidange, amaMbalu
and amaHeke pay allegiance
to amaRharhabe Kingship; 29.8The political
context of the battle of maLinde; 29.9  Consolidation of
amaRharhabe kingship sovereignty
during the period of Maqoma as
regent king;   29.10  The expulsion of the amaRharhabe
out of the “ceded”
territory of Victoria East;
29.11   King Mgolomabne Sandile’s accession as King
of the amaRharhabe;
29.12  AmaRharhabe declarations
of war against the British colonial government and the conclusion of
peace agreements were
independent acts of sovereignty;  29.13
British Kaffraria proclaimed over west of the Kei in 1847 leaving
Gcaleka paramountcy
independent;  29.14 British dominance over
the amaGcaleka and amaRharhabe sovereignty;   29.15
Attempts
to expel the amaRharhabe from their country and undermine
Rharhabe sovereignty;  20.16  The Killing of Hintsa during
the war of 1834 -35, and the aftermath;   29.17  and
Archie Velile Sandile’s accession as King of the amaRharhabe.”
1.
The
history of the amaRharhabe and amaGcaleka Kingships is said to
predate the arrival of the British Government in that area of
the
Eastern Cape in 1795. Although there was recognition and respect by
the amaRharhabe Kingship of the representation of seniority
of the
amaGcaleka Kingship in the amaTshawe ancestral line, this was merely
‘nominal and for ritualistic purposes’
(‘the
account by Rev. R RDugmore: “
A
Compendium of Kaffir Laws and Customs”
document
by Colonel John Maclean’). The British found that the amaXhosa,
who had long settled to the East and West of the
Kei River, though
having a common ancestry, were recognised and respected as two
independent polities, each controlled by a King
as political head. Up
to this day these two Kingships are known by the names of their
progenitors.
2.
The
independence of the amaRharhabe is also demonstrated by the
manner in which in which the Missionaries independently sought

permission to teach and established the Christian Faith among them
and, the manner in which  the Colonial authorities and
their
emissaries interacted,  taught the Christian religion and,
established diplomatic ties with the amaRharhabe Kingship.
3.
Among
the amaRharhabe, the King presided as Chairman of his Council Which
adjudicated over criminal and civil cases independently
of the
amaGcaleka Kingship and there was no right of appeal ‘to the
Court of the amaGcaleka King’. However, on certain
occasions
the Kings of these two independent polities would be invited to
resolve matters arising mainly in mediatory capacities.
Further
pointers to independence of the amaRharhabe Kingship is to be seen in
the strength of their military and how independently
of the
amaGcaleka, they fought wars on Rharhabe land territory with the
British.
4.
Professor
Timothy Stapleton (‘in the Department of History, Trent
University’) in a supporting affidavit, contended
that there
was a unanimous finding by most historians since the early 20
th
century that ‘ the split’
resulted in the formation of separate and independent Kingships
dating as far back as the
1700’s. In pre-colonial Africa there
evidence of formation of ‘a splinter group from the royal
family moving away to
form a new independent state’, this
occurring after conflict within the state. Although the amaRharhabe
respected the ancestral
seniority of the amaGcaleka, his opinion was
that “
by the 1820’s
the two represented separate independent states that could and did
act in their own. For historians and political
scientists, an
important element in proving the existence of a sovereign state is
the ability to exercise coercive force, in other
words to make
decisions about going to war against other groups . On many occasions
the amaRharhabe leaders of the late 1700 and
1800’s made their
own decisions about going to war and making peace, sometimes with
other African states and sometimes with
the British, which were
different and separate from the decisions of the neighbouring
amaGcaleka leaders.”
PROF
MOLELEKI IN RESPONSE TO KING SANDILE IN THE ABOVE
PARAGRAPHS
IN THE FOUNDING AFFIDAVIT
“
78. ....It is however,
stated that the age of Rharhabe was immaterial in deciding the issue
of succession. The material and determining
factor here is that of
birth from the Great House to which Rharhabe did not belong hence he
was not entitled to assume the position
of kingship.
79. It was not unusual for a Right
Hand House (similar to that of Rharhabe) to create a new traditional
community independent of,
but subordinate to the Great House in
respect of family, ceremonial matters and those affecting the
community of amaXhosa as a
whole. The leader of such an ‘independent’
community did not assume the position of King.
Gcaleka did not attempt to take
control of the Great House during Phalo’s reign. Gcaleka, as
successor-in-title, had to take
lessons on traditional leadership
whilst his father Phalo, was alive. Gcaleka did not have callous
plans for the throne as, on
the contrary, he was legitimately
destined to succeed his father to the throne. Thus Rharhabe opposed
Gcaleka’s legitimate
claim. Rharhabe had designs to be king.
80. Rharhabe did not decide to
‘secede’. His ambition to substitute Gcaleka as king of
amaXhosa motivated him to remove
himself from the proximity of his
senior brother (in terms
of the amaXhosa customary law of succession) who was poised to become
king after the death of Phalo.
Rharhabe
remained within Phalo territory (Chiefdom) when he crossed to occupy
the land west of the Kei. This is borne out by the
following
historical facts:
(a)
Gwali, son to the Right Hand House
of Phalo, was already settled west of the Kei River with his
followers, amaGwali, when Rharhabe
made his move.
(b)
Similarly, Mdange, a brother to
Tshawe (the father of Phalo), asked for Permission from Phalo to move
across the Kei River. This
he did after Installing Phalo as king of
amaXhosa. His followers were called imiDange. It must be noted that
Mdange was Rharhabe’s
paternal uncle.
(c)
Likewise, Langa a brother of Phalo
and leader of amaMbalu, had also obtained permission from Phalo to
settle across the Kei.
(d)
By the same token, the InquaKhoi,
who were ruled by Hinsati, and who had been defeated by the alliance
of Mdange and Gwali and thus
subjugated by those who owned allegiance
to Phalo, also occupied the area across the Kei.
(e)
Furthermore, Phalo himself resided
at Zeleni, west of the Kei, which was one of his Great Places.
(f)
Moreover, Phalo accompanied
Rharhabe across the Kei because he wanted to see Rharhabe settled and
installed as an overseer over
his people who had already settled
across the Kei. It must be noted that Gcaleka succeded Phalo not as
King of amaGcaleka but as
King of amaXhosa as a whole. AmaRharhabe
always maintained and spoke the same language, isiXhosa, and kept the
same culture and
customs of amaXhosa and thus always remained part of
the fabric of the amaXhosa nation
81. Although some of the tribes
moved away from the Great House (main body) to create new traditional
‘independent’
communities, they however always remained
subordinated to the Great House in respect of family, ceremonial and
customary matters
as well as matters affecting various communities
which made up the nation of amaXhosa as a whole. In terms of custom
the expanding
communities always remained ‘junior’ to the
Great House.
Hinsati and his followers had
already been subjugated by imiDange and amaGandi (who were part of
the Xhosa nation) long before the
arrival of the Rharhabe followers.
It could not have been problematic
for the leaders of the communities west of the Kei to acknowledge
Rharhabe as the most senior
‘chief’ among them. However,
the most senior ‘chief’ (ingotya) among amaXhosa,
remained Gcaleka. The cause
of conflict between Rharhabe and the
communities west of the Kei was his insistence that he be recognised
as inkosi enkulu (king)
who was on par with his senior brother,
Gcaleka. Those communities always regarded themselves as falling
within the entire ‘empire’
of amaXhosa and therefore
under the overall leadership of Gcaleka.
The chiefdoms of amaGwali,
imiDange, amaNtinde, amaMbalu and amaGqunukhwebe established
themselves as separate enclaves in the Zuurveld,
between the Fish and
Bushman Rivers. When around 1814, Charles Henry Somerset, Governor of
the Cape Colony, suggested the
‘
spoor
law’ to Nqika, Rharhabe’s heir, Nqika balked at the idea
he was to undertake returning all stolen cattle to Government.
He is
reported to have retorted ‘still every chief rules and governs
his own people.’ This meant that he was
responsible only
for his own tribe. This is further evidence that he was not king of
the territory across the Kei.
82. It is denied that amaRharabe
ever seceded from the nation of amaXhosa. History and available
material does not bear out such
a contention of secession. History
shows that Rharhabe was accompanied by his father, Phalo, across the
Kei in order to ‘introduce’
him to the amaTshawe
communities who had already settled on this territory and who fell
under the ultimate rule of AmaXhosa kingship.
83. The acknowledgement of Rharhabe
Paramountcy/Kingship by the Colonial and Apartheid authorities is
telling and must be viewed
within the historical context outlined
above.
QUEEN
SANDILE IN RESPONSE TO PROF MOLELEKI IN THE ABOVE
PARAGRAPHS
IN THE ANSWERING AFFIDAVIT
“
38. The essence of the
relationship between the Rharhabe Paramount and the Gcaleka Paramount
is that the Rharhabe Paramount acknowledges
the
Gcaleka
Paramount as ritually senior in rank (umkhuluwa) but the Rharhabe
Paramount is independent; and does not accept any implication
of
political subordination to the Gcaleka Paramount.
39. The Rharhabe Paramountcy’s
ascendance among the Western Xhosa was consolidated under the
Rharhabe Regent Paramount Ndlambe
who took office in 1782, during the
minority of Nqika. The consolidation entailed initial subjugation of
imiDange, amaMbalu,
amaGwali, amaNtinde and amaHleke. By 1792
Ndlambe had broken the resistance of the amaGqunukwembe and brought
them under the Rharhabe
Paramountcy. Therefore, in a period of 10
years, Ndlambe had consolidated all Western Kei amaXhosa under the
Rharhabe Paramountcy.
40. Accordingly, while at some
earlier stage (during the reign of King Phalo) it could have been
argued, that there were disparate
co-segments of amaXhosa in Western
Kei under the domination of a central political authority, by 1792
the entire Western amaXhosa
communities had been brought under the
political domination of the amaRharhabe Paramountcy.
41. When Nqika assumed his position
as Rharhabe Paramount he intensified his uncle’s policy; and
engaged independently with
the British, while strengthening his
personal power among the amaRharhabe. Attempts by the Gcaleka
Paramountcy to assert itself
over the Western amaXhosa were resisted
by Nqika and he fought a war against the Gcaleka Paramount in 1794
which he won, capturing
Hintsa the Gcaleka Paramount, although he was
allowed to escape. This defeat of the Gcaleka Paramount pushed the
amaGcaleka Paramount
permanently across the Kei.
42. As a result of this the Kei
came to be accepted as the political ‘border’ between the
two centres of power, the
Rharhabe Paramountcy in the Western Kei and
the Gcaleka Paramountcy in the Eastern Kei long before the coming
into operation of
the Native Administration Act in 1927.
43. The dominance of the
amaRharhabe Paramountcy in Western Kei was sealed when the area west
of the Kei was brought under British
jurisdiction in 1847. The
Western Kei amaXhosa were then turned into British subjects, while
the Gcaleka Paramountcy remained independent,
until its annexation.
44. Therefore, while at some stage
before the dynatic split, Rharhabe was the Right Hand House under the
central political authority
of Phalo, over time there was no longer
one but two central authorities, one under the Rharhabe Paramountcy,
and the other under
the Gcaleka Paramountcy.
54.2 As regards Ngqika’s
response to Charles Henry Somerset, he reportedly stated that
although he was a King, each head of
the Chiefdoms owing allegiance
to him, was responsible for the government of his own people. This
was indeed the true nature of
the political structure of the Western
amaXhosa, which included a substantial degree of local
self-governance. The Rharhabe Paramount
did not interfere in the
government of the chiefdoms under the Rharhabe Paramountcy;
notwithstanding their allegiance to him. It
was nevertheless accepted
that Ngqika was the Paramount of all the Western Kei amaXhosa. The
deponent distorts the quotation from
Milton’s “Edges of
War”
55. The term ‘secede’
was used in inverted commas to denote the detachment of Rharhabe from
the jurisdiction of the
Great House as a result of dynastic split,
resulting in the creation of two kingships, one ranking above the
other culturally,
but politically independent.
56. To the amaXhosa under the
amaRharhabe Paramountcy of Western Kei, Ngqika (and Sandile) was
iNkos’ enkulu (King) and the
same term was accorded to the
amaGcaleka Paramount Hintsa and Sarhili.”
THE
COMMISSION’S INVESTIGATION AND DETERMINATION
[7]
In a letter dated 23 June 2005 the erstwhile chairperson the
Commission Professor T Nhlapo informed King Sandile of the
Commission’s
investigation and of its intention to visit and to
meet all the royal houses and to hold public hearings  to :
‘
investigate the position
of paramountcies and paramount chiefs that had been established and
recognised, and which were still in
existence and recognized before
the commencement of this Act”
.
The
Commission is instructed to do this before other investigation in
terms of section 25(2) ............... In view of the above,
the
Commission will be visiting all existing royal houses in the near
future in order to hold public hearings and meet with royal
family
members. In case of the Eastern Cape, these hearings will be held in
the weeks 4 – 8 July and 18
–
22
July 2005.”
King
Sandile averred that no visits were undertaken by the Commission to
the Royal Houses in the 40 traditional communities in the
Rharhabe
Paramountcy. The millions of amaRharhabe resident outside the 40
designated areas received no notice from the Commission.
Furthermore,
neither he nor any member of the amaRharhabe  were informed that
the objective of the Commission was to ‘investigate
and
determine whether the Rharhabe Paramountcy qualifies for recognition
‘as a kingship Under the Framework Act or whether
it  was
established in accordance with customary law.’ The Notice gave
the impression that the Commission was to investigate
and gather
evidence on existing paramountcies. There was further no indication
that the legitimacy of the Rharhabe Paramountcy
was in contention.
[8]
The hearings commenced between 18 and 19 July 2005.  The
amaRharhabe delegation  was heard between 20 and 21 July
2005.
They made oral submissions and responded to questions by members of
the Commission. No research by the Commission, or documentation

submitted by third parties on issues adverse to the paramountcy of
the amaRharhabe was availed prior to or at the hearing.  This

material included historical records and archival research, some of
which was available before to the 2005 hearings. This material
had
not been ‘tested against the view of the amaRharhabe’.
[9]
It was some two years later where Prof Nhlapo in a letter to King
Sandile dated 3 May 2007 stated that the Commission had in
the final
stages of the final individual determinations realised that it was
legally required to make available to him all  material
it had
available, which had not been availed to him and  which included
‘historical records and archival research’
for his ‘views
and actions’.
[10]
The material was made available under cover of a letter from Prof T
Nhlapo dated 11 June  2007, which required written
submissions
to be made by no later than the 29 June 2007 and inviting him to make
oral submissions on the material at a hearing
scheduled for 16 July
2007. The letter stated further:
“
It is important for me to
emphasise that the issues now being put before you do not in any way
represent the Commission’s
thinking. We simply think that it
will assist us to arrive at the truth to have your reaction to these
statements, however controversial
you might consider them to be.”
The
letter did not explain why the material was not availed to the
amaRharhabe before June 2005 to enable them to evaluate the material

and  to conduct their  own research, to refute content
adverse to them. A very short notice was given to the king and

amaRharhabe to consider the material. Prince Siqithi Maqoma on behalf
of King Sandile attended and made oral submissions on 16
July 2007.
The issues to be dealt with were contained in ‘
KSX8
’
and certain documents were attached
for his response. In ‘
KS9’
the Commission was made
aware of the little time afforded  to the amaRharhabe to
evaluate the material, to conduct their own
research and to refute
content which was adverse to them. They complained that some of the
documents were unreadable and clearer
and retyped documents were
later furnished.
[11]
It is averred that during the hearing and after hearing the
amaGcaleka and amaRharhabe, a new document purporting to have been

prepared by the House of Phalo was furnished by the amaGcaleka
delegation. The house of Phalo refers to the Rharhabe and Gcaleka

Houses. The document ‘
KSX14
’
,was
a response to research conducted on behalf of the Commission by one
William Kekale Kaye, and it disputed ‘the independent
political
existence of the amaRharhabe’. The Rharhabe’s did not
give input to its preparation but merely noted its
contents at the
hearing. Concern by King Sandile was raised that the amaGcaleka
representative was allowed to introduce new matter
in response and
the Rharhabe delegation requested an opportunity to reply thereto and
the request was denied ‘
KSX15
and ‘
KSX16
’
.
Besides the amaRharhabe were not informed in the letter of invite to
bring their representatives along or that the amaGcaleka
would be
making submissions adverse to their paramountcy.
[12]
On 18 April 2008 under hand of the President, King Sandile was
notified of the release of the Commission’s report on
the
position of the Rharhabe Paramountcy ‘
KS17’
.
The letter also talked about the implementation process provided for
in Section 26 (2) of the Act, to the effect that the decision
of the
Commission which affected a king or queen must, within two weeks of
the taking of such decision be communicated to the President,
for
implementation in terms of ‘section 9 and 10 thereof. The
implementation process as described was not engaged. The Commission

released the report to the Rharhabe paramountcy on 29 April 2009 and
announced that the determination would not be implemented
since it
still had to investigate the position of each incumbent paramount
chief before completing its mandate in terms of section
28(7) of the
Act. The Department of Local Government and Traditional Affairs of
the Province of the Eastern Cape, in a memorandum
dated 19 May 2008
to all its staff, confirmed the Commissions determinations and
directive regarding implementation.
King
Sandile averred that the Traditional Leadership and Governance
Framework Amendment Act, 2009 was introduced to implement the

determination of his status whichwas not in terms of section 9 and
10. On 30 July 2008 the Rharhabe paramountcy informed the Commission

that it rejected the Commission’s determination and intended
bringing legal action, ‘KS20’.
[13]
Representatives of the Rharhabe paramountcy requested a reopening of
the investigation by the Commission at the hearing on
6 October 2008.
This request was declined and the amaRharhabe delegation withdrew
from the proceedings. The final determination
of King Sandile’s
status as Senior Traditional Leader was published on the Commission’s
website on 29 April 2009.
THE
DECISION OF THE PRESIDENT
[14]
On 30 July 2010 the President announced that the Commission had
presented its report to him and that he had accepted its findings.

King Sandile summarised ‘KSX23’ as follows :
“
44.
1
South Africa has only seven legitimate Kingships and Kings. Another 6
Kingships/ Queenships whose status would come to end on
death of the
current incumbents of the position of King in each case.
44.2 Regarding the Gcaleka and the
Rharhabe paramountcy the Commission had recognised only one Kingship
of the amaXhosa under King
Zwelonke Sigcawu , of the amaGcaleka.
44.3 Future investigations and
determinations of Kingships and their incumbents would be determined
by a new commission set up in
terms of the 2009 Amendment to the
Framework Act.
44.4 The amaRharhabe paramountcy is
not recognised as a Kingship but shall be deemed to be a Kingship
until death. Upon my demise,
my successors will be recognised by the
Premier as Principal Traditional leaders and the paramountcy will be
recognised as a Principal
Traditional Leadership”
[15]
According to King Sandile the Commission was undertaken in terms of
Chapter 6 of the Act, which was followed by the report
and
determinations made by the Commission. This was indicated in the
information sheet issued by the Ministry of Co-operative Governance

and Traditional Affairs that preceded the President’s
statement, communicating his decision, deeming the Rharhabe
paramountcy
an interim one and his position, that of King, till his
death. King Sandile contended that the 2009 amendments to the
Framework
introduced in terms of section 28(9) of the Act were made
at a time when the Rharhabe paramountcy had
‘
legitimate
and historically based claims and where notice had already been given
to challenge the Commissions determinations. He
contended further
that the amendments were made in an effort to placate the ‘incumbent
paramount chiefs into acquiescence’
in the determinations of
the Commission.
[16]
King Sandile contended that the determination by the Commission that
the kingship of the amaXhosa was established under amaGcaleka
alone
was flawed. It  failed to recognise the ‘ historical
exigencies’ which resulted in the well documented effects
that
the
‘
split’ had in
the creation of the two independent paramountcies of the amaGcaleka
and amaRharhabe. There was further failure
to give recognition to the
fact that   customary law was determined by taking into
account and recognising ‘the
inherent flexibility and dynamic
nature’ of customary law.
[17]
Prof Moleleki deposed to the answering affidavit as acting
chairperson of the Commission. He was actively involved in the
Commission from inception and was appointed after the resignation of
Prof Nhlapo during 2007. He conceded that the President’s

announcement and  reliance on provisions of the 2009 Act and of
referring to the Commission’s determination as recommendations

was incorrect. The Commission had decision making powers in terms of
section 26 of the 2003 Act and that the President’s
duty was to
have announced the Commission’s decision and not as
‘recommendations’. He further averred that the
Commission
had authority to decide on traditional leadership disputes and claims
in terms of sections 25(2)(a)( vi),  which
provided that where
good grounds existed consideration had to be given to events that
preceded 1 September 1927. He contended that
the Commission’s
decisions were ‘reasonable, rational and fair and that they
accorded with the provisions of the Constitution
of the Republic of
South Africa (‘the Constitution’) and PAJA. He denied
that the Commission had misconstrued the need
to establish
‘uniformity’ as provided in section 9(1)(b)(i).
[18]
He averred that the applicant had participated in the effort to
establish the Commission and had fully embraced it.  Although

the proceedings were not court proceedings they involved ‘the
examination of witnesses, cross-examination; re-examination
and
questions of clarity by the Commissioners.’ The hearings in the
first phase were conducted in two sessions, the first
hearing was
held with the amaGcaleka and  the second hearing with the
amaRharhabe. The applicant had timeously been furnished
with all
material including submissions which were adverse to its claim. Ample
opportunity was given to prepare and to make oral
and written
submissions. Based on the evidence obtained during the initial
hearings of the amaGcaleka and amaRharhabe and before
proceeding to
the second stage, the Commission conducted its own research. The
applicant was invited to avail any additional information
for
consideration before the final decision was made by the Commission .
The purpose of the second stage of the hearings was to
provide a set
of questions based on the research and to obtain response from the
parties on information gathered during its research.
Prior to the
second meeting being convened, the applicant was notified that he
would be given an opportunity to ‘amplify,
contextualise,
explain, question, refute or support any or all of the outstanding
items of evidence’ and a list of issues
to be addressed was
annexed,KSX8.  At the hearing the delegations were given an
opportunity to make presentations and  to
interrogate each other
and to be interrogated by the Commissioners.
[19]
Prof Moleleki contended that the purpose of the first phase was
solely to determine the status of the paramountcies of the

amaRharhabe and amaGcaleka. The determination was that:
·
‘
Customary
Law of Succession among amaXhosa is governed by the principle of
primogeniture.’
·
‘
In
terms of the amaXhosa customary law of succession, only the first
born son of the Great House could succeed Phalo. Thus Gcaleka
was the
rightful successor. Rharhabe, the first born son of the Right Hand
House of the king of amaXhosa, could at best establish
a separate
chieftainship / traditional Leadership that would be
semi-independent, but not of equal status to the Great House’
[20]
At the second hearing the applicant was legally represented by
Advocate Izak Smuts. According to Prof Moleleki the amaRharhabe
tried
to revisit the decision of the Commission made in the first phase.
The issue was whether the applicant could contest such
a decision.
After the Commission had clarified its position and that the purpose
of the second phasehearing was to determine the
position of the
applicant in terms of section 28(7) of the Act, the applicant, his
legal team and delegation withdrew from the
proceedings. The
conclusion of this second phase decided that the applicant was a
Senior Traditional Leader. It was denied that
the decisions made by
the Commission were susceptible to review on any of the grounds
stated by the applicant..
SUPPLEMENTARY
AFFIDAVIT AND CONFIRMATORY AFFIDAVITS
[21]
There was an application for the striking out of the supplementary
and confirmatory affidavits. According to Prof Moleleki
these were
impermissible as this application for review of the decisions and or
determinations of the Commission must be based
on the record of the
proceedings that unfolded before the Commission. In as far as the
supplementary affidavit purported to adduce
the same or similar
evidence to that of King Sandile or his witnesses at the hearings,
the allegations are disputed. It was further
denied that the deponent
to the supplementary affidavit  was a queen, in view of the fact
that King Sandile’s status
as ‘King’ ceased at his
death in terms of s28(9)(c)(ii) of the Framework Act. Furthermore,
the affidavits had introduced
new matter which was not presented to
and considered by the Commission when an opportunity was given at the
hearings to do so and
where the applicant had failed or refused to do
so. The applicant had further not given reasons why it had failed to
adduce such
evidence at the hearings. The applicant further was
invited to direct the court to the precise citation of the pages of
the authorities
relied upon in such affidavits.
CONDONATION
[22]
King Sandile contended that there were a number of factors that
contributed towards this application not being launched within
the
applicable time frames. The President did not immediately implement
the Commission’s determination on the amaRharhabe
paramountcy
and  on his status. The implementation was delayed by the
Commission pending the outcome of the determination
on his status. He
contended that the President by not implementing the determination
for an extended period, effectively suspending
such determination.
Then came the amendments to the Act which was meant to allow the
‘
incumbent paramount
chiefs to retain their status till death.’
[23]
The Commission and the relevant authorities were consulted and
litigation was considered as a last resort. The decision of
the
President was announced on 29 July 2010. King Sandile averred that
he only instructed his attorneys to brief counsel to obtain
legal
opinion whether the impugned decisions were reviewable. He also had
to seek advice from experts in customary law and history
pertaining
to the issues that had relevance to his status and that of the
amaRharhabe.
[24]
Careful research reaffirmed his view that the findings of the
Commission were unsustainable. Funding had to be sought for the

appropriate legal representation and for briefing of counsel with
expertise in the issues addressed in this application. The 180
day
period within which it was expected the review application should
have been launched  commenced from 29 July 2010
and would
have expired on 29 January 2011. He contended that having regard to
the complexity of the issues and the volume of relevant
documentation
which had to be considered, the delay was not substantial.
GROUNDS
FOR REVIEW
[25]
King Sandile contended that the decisions of the Commission and the
President had to be reviewed and set aside in terms of
PAJA on the
following grounds:
·
section
6(2)(d) of PAJA in that the decisions were materially influenced by
an error of law;
·
section
6(2)(e)(iii) of PAJA in that the decision was materially influenced
by errors of fact and was taken because irrelevant considerations

were taken into account;
·
section
6(2)(f)(ii)(cc) of PAJA in that the decision was not rationally
connected to the information before the Commission; and
·
section
6(2)(h) of PAJA in that the decision was unreasonable.
[26]
It was averred that the Commission’s procedure was flawed in
that there was
‘
inadequate notice at various
stages of the proceedings; the Commission failed to provide the
amaRharhabe  relevant documents
or adverse submissions which,
either at all or sufficiently timeously to enable them to respond;
the Commission admitted and relied
upon inadmissible evidence; and
the Commission failed to take into account admissible evidence
adduced by the amaRharhabe;’
[27]
Another ground of review related to the contention that the
Commission had erred in its interpretation and application of section

9 of the Act in relation to the criteria it used to determine
Kingship and in particular the incorrect interpretation of section

9(1)(b)(i) in as far as it was determined that there was a need to
establish ‘uniformity’ in ‘its assessment
of the
Rharhabe Kingship’.
In
as far as the President was concerned another ground for review was
in terms of section 6(c) of PAJA ‘in that the action
was
procedurally unfair’.
A
further ground of review was in respect of the amendments to the Act
that were allegedly passed in order to allow the incumbent
paramount
chiefs to retain their positions until death. It was contended that
the amendments were meant to allow administrative
action which was
not ‘authorised by the Act.
THE
LAW
[28]
Section 211 of the Constitution gives recognition to the
‘institution, status and role of traditional leadership
according
to customary law. Customary law is therefore ‘one of
the primary sources of law under the Constitution’. Our courts

and traditional communities have from time to time also engaged in
the development of customary law and this development should
be
consistent with and always ‘in accordance with the norms and
values of the Constitution’. Therefore, when adjudicating
over
a customary law matter a court is expected to be ‘mindful of
its obligations as set out in section 39(2) of the Constitution,
and
the guidelines of the process to be engaged as set out in
Shilubana
and Others v Nwamitwa
2009
(2) SA 66
(CC) paragraphs 42 – 49; and
MM
v MN
2013 (4) SA 415
(CC) para 24.
[29]
It was further common cause that the decisions of the President and
the Commission constituted ‘administrative action’
that
fell to be reviewed under PAJA. The applicant also relied on further
grounds as stated above.
[30]
In addressing the standard the court had to apply in review, Mr
Arendse submitted that deference had to be accorded to the
decision
of the Commission,
Bapedi Marota Mamone v Commission on
Traditional Leadership Dispute and Claims and Others
2015 (3)
BCLR 268
(CC) para 78, 79, 80, 92, 107.
While
Mr Marcus conceded that deference had to be given in appropriate
cases, according to him there was no scope for deference
in this
matter in that there was challenge not only to the legality of the
decisions taken, deference was not applicable to statutory

interpretation and where it had to be determined whether the
procedures were fair or unfair. In
Bapedi
supra at para 82 the
following is stated:
“
This Court, may not neglect
its duty to scrutinize the rationality of the
Commission’s
decision. But, in doing so, it must be cognisant of the Commission’s
special expertise as well as the wealth
and complexity of the factual
evidence it considered in its wide- ranging enquiry.
The
fairness of that process, where representations were solicited from
interested parties, was not challenged.”
(my
underlining)
The
President’s Decision ( Chapter 6 of the Old Framework Act (‘the
old Act’) and
Chapter
6 in terms of the new Chapter 6 of  the Framework Act (“the
new Act”)
[31]
There existed a fundamental difference in the process of decision
making under the old and the new Act. In terms of section
26 of the
old Act the Commission was authorised to make decisions which were
then conveyed to the President to be implemented by
him. In terms of
section 26 of the new Act the Commission could only make
recommendations to be conveyed to the President for his
decision.
The President announced in Government Gazette No. 33732,  No
1027 published on 5 November 2010 that
‘in terms of section
28(8) read with section 2A of the Traditional and Governance
Framework Act, 2003 (Act No.41) (the Act),’
he recognized the
listed kingships and kings and ......that in terms of section 28(9)
of the Act, that he among others gave deemed
recognition to the
amaRharhabe kingship and of its incumbent, King Sandile.
[32]
Mr Marcus submitted that this notice falls to be set aside, as the
President was not allowed to apply the new Framework Act,
in giving
effect to a decision made by the Commission as it was mandated to do
in terms of the old Framework Act. He argued that
the setting aside
would be in keeping with the decision in
Sigcau
v President of the Republic of South Africa
2013
(9) BCLR 1091
(CC) and
Nxumalo
v President of the Republic of South Africa
2014
(12) BCLR 1452
(CC)
[33]
Mr Arendse’s submissions were articulated in his Heads of
Argument, where he submitted that nothing turned on the President

having invoked the new Act, that the
‘
President took no decisions of
its own.. ...regardless of the unfortunate terminology used in the
....notices; as the final outcome
would have been the same even had
he invoked the old Act.’ In the main, the President ‘accepted
and implemented the
decisions made by the Commission...that in the
present case the President’s role was merely secondary; even
should this Court
set aside the President’s decision, as was
the case in
Nxumalo,
it is discernable from that of the
Commission and does not taint the validity of theCommission’s
decision’.
[34]
In dealing with the President’s notice in
Sigcau
supra,
the following was said:
“
[21] The Commission’s
procedures were thus initiated and substantially completed under the
old Act. The procedure of 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 above
notice 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 difference 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 recommendation under the new Act, also differs
materially
from the process of implementation of theCommission’s
decision under the old Act.
[24] The implementation of the
Commission’s decision under the old Act could thus not be done
under the provision of the new
Act. In an argument it was suggested
that the reference to the provisions of the new Act in the notice was
a mistake. The problem
with this, however is that nowhere in the
paper does the President say that it was a mistake.
[25] On the contrary, a perusal of
the notice indicates that
the
President
elected to invoke
the new Act......
[27] ......it cannot be said that a
notice issued under the new Act can be taken to have been issued
under the old Act.”
In
Nxumalo
supra,
“
[14] 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 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.”
[35]
Mr Marcus argued that the difference between this matter and the
Sigcau
was that
in
this matter the President’s decision and that of the Commission
was attacked on four separate grounds and that in the constitutional

court the review decision was still pending so there was nothing
before the constitutional court by way of review. In
Nxumalo
supra
the
review did not have to consider the issue of  procedural
fairness .   In my view, and in light of the above

decisions, the argument by Mr Arendse that nothing turned on the
President having invoked the new Act has no merit. Agreeing that
the
decision is of no consequence would amount to one endorsing an
illegality. The decision of the Commission could only have been
put
into effect or be implemented by an announcement by the President
under the correct Act, in this instance, the old Act.
[36]
Mr Marcus submitted that in as far as it was argued that the use of
terminology by the President was unfortunate, it was only
the
President himself who could say so. As I see it, this referred to the
answering affidavit deposed to by Prof Moleleki. It is
trite that one
person in an affidavit could not give evidence concerning another
person where no confirmatory affidavit was filed
to confirm such
evidence,
Crawford Lindsay Von Abo v
The
President of the Republic of South Africa
2009
(2) SA 526
(T) para 46. Mr Marcus argued further that, where the
Commission had found that King Sandile was a Senior Traditional
Leader, a
position recognised by the old Act, the President announced
in terms of the new Act that King Sandile would be recognised as a
Principal Traditional Leader, which was clear indication that the two
decisions were substantially different. What was present was
the
express statement by the President in his announcement which showed
that there was a clear understanding that the Commission’s

mandate was under the old Act and that his announcement was tabled in
terms of the new Act.
The
inference to be drawn is that there is clear indication that the
President understood what he was doing and that he purported
to
exercise a discretion to take a decision that differed from that of
the Commission. I am of the view that the President’s
decision
must be set aside.
The
Commission’s Failure to Afford a Proper Hearing
[37]
Mr Marcus submitted that the Commission’s ‘investigative
and decision making process’ was attacked on grounds
of
procedural fairness,  and on incidents as stated in paragraphs
7 – 11 and 13 above. Mr Arendse submitted that the
proceedings
were fair and that having regard to the methodology adopted by the
commission, which was disclosed to the parties,
the principles of
procedural fairness are not applicable in this case. The invitation
to participate in the hearings was extended
to the general public and
to the 40 traditional communities aligned to the amaRharhabe. The
concluding remarks of Prince Ncamashe
at the first hearings were an
indication that there was ‘a huge amount’ of consultation
with the amaRharhabe. The Commission
made available its research
material after the first hearing and the follow up hearing on 16 July
2007 was not meant to conduct
a fresh investigation but was an
opportunity given to the Rharhabe and Gcaleka paramountcies  to
give further input.
[38]
In my view, the initial invite does not give indication that in
addition to investigating existing paramountcies the Commission
was
going to investigate and make decisions on the legitimacy of the
amaRharhabe  paramountcy as against that of the amaGcaleka,
nor
is there any indication initially that the Kinghips were being
contested. It however became apparent when the follow up meeting
two
years later was arranged that there was more to the investigation
than was initially imparted in writing to these two paramountcies.
Mr
Marcus submitted that critical to the follow up hearing of 16 July
2007 was the fact that a new document was produced by the
amaGcaleka
delegation which purported to be a document emanating from the House
of Phalo. Despite the fact that the House of Phalo
referred to the
Rharhabe and Gcaleka houses of the amaXhosa, the amaRharhabe were not
party to its preparation and the maRharhabe
were seeing it for the
first time at the hearing.
[39]
What followed was a decision by the Commission not to recognize the
amaRharhabe paramountcy. A request to reopen and to give
input into
the legitimacy and independence of the amaRharhabe, was denied at the
opening of the second phase hearings. Mr Marcus
argued that the
decision of the commission and also that of the President, which was
based on the prior finding fell to be set
aside,  on the basis
of what has been consistently applied by our Courts, as appears in
MEC for  Health
Eastern Cape and Another v Kirkland Investments (Pty) Ltd t/a Eye and
Lazer Institute
2014
(3) SA 481(CC)
at para 102
(which
confirmed as appears in foot note 74 page 511, the decision in
Seale
v Van Rooyen NO and Others
2008
(4) SA 43
(SCA) ((2008)
3 All SA 245)
at para 14 “the acts
performed on the basis of the validity of a prior act are themselves
invalid if and when the first decision
is set aside , in para 13 the
court rightly rejected an argument in misconceived reliance on
Oudekraal, that the later (second)
act could remain valid despite the
setting aside of the first”)
It
is the decision of the Commission that is being attacked on the basis
that it was procedurally unfair.
[40]
In ‘KSX 6’ the Commission with regard to material which
was not availed to the amaRharhabe stated:
“
After a wide-ranging debate
on the implications of this state of affairs on the obligation placed
on us to be fair at all times
and to observe all the requirements of
administrative justice, we have come to the conclusion that we are
legally required to seek
your opinions and responses to any material
that is relevant to your situation”
The
complaint related to the ‘consolidated report’ said to be
in response to a request by the Commission for comment
on its
research, it also disputed the legitimacy and independence of the
amaRharhabe ‘KSX14’. In my view, of importance
is to look
at the reaction of the amaRharhabe to this document at the hearing .
A request by King Sandile on 18 July 2007 to be
given an opportunity
to respond to this new matter was denied. With regard to the
complaint on what transpired at the hearing of
the 16 July 2007  King
Sandile stated twodays after the hearing ‘KSX 15’ :
“
with the benefit of
hindsight, I am of the view that we should have been afforded an
opportunity to reply. Indeed that course should
have been taken by
the commission.”
The
response from the chair of the Commission Prof Nhlapho was the
following, ‘KSX16’:
“
I am writing to express my
regret that you felt unfairly treated. I am unable to agree that this
was in fact the case. The Commission
considers itself quite capable
of assessing the stories that it was told and of taking account of
dramatisation or exaggeration
in any testimony. We have been doing
this over some forty hearings in the last few years. I am also unable
to agree that the procedure
itself is flawed. Again this is the
procedure we have applied consistently in our past hearings. Not
being a court of law, we have
devised procedures that help us arrive
at an understanding of the issues while allowing all parties to have
a say. It would have
been irregular to alter this procedure just for
the hearings under discussion.”
Mr
Marcus argued that that the material had not been tested against the
view of King Sandile and the amaRharhabe and that the Commission
held
back on documentation which dealt with the very important  issue
that it had to consider. Furthermore, the amaRharhabe
were given very
short notice to give oral evidence and to make written submissions on
the questions posed by the Commission.
[41]
Full participation by all participants in any proceeding is the
essence of a fair hearing as it not only recognises the dignity
of
the participants, it gives credence to the process. It also gives the
participants an opportunity to influence the outcome of
the
proceedings;
Joseph
and Others v City of Johannesburg
2010
(4) SA 55
(CC), at para 42.
In
De
Lange
v Smuts NO and Others
1993
(3) SA 785
(CC) the following was stated at para 131:
“
.....
at
heart, fair procedure is designed to prevent arbitrariness in the
outcome of the decision......Everyone has a right to state
his or her
own case, not because his or her own version must be accepted, but
because, in evaluating the cogency of any argument,
the arbiter,
still a fallible human being must be informed about the points of
view of both parties in order to stand any real
chance of coming up
with an objectively justifiable conclusion that is anything more than
chance.”
[42]
Mr Marcus submitted that the procedure was fundamentally unfair and
that a failure to afford a proper hearing vitiated the
decision of
the Commission.  He argued that the concept of legitimate
expectation conferred a right to be heard on the amaRharhabe.
The
concept was ‘an intergral part’ of the
audi alteram
partem
principle which was well established in our law,
Administrator, Tvl and Others v Traub and Others
[1989] ZASCA 90
;
1989
(4) SA
731
(A) at 761 D-G;
Administrator Cape and
Another v Ikapa Town Council
[1990] ZASCA 34
;
1990
(2) SA 882
(A).
[43]
In my view, in order to put the application of this concept into
perspective one needed to go back to the reason for the follow
up
hearing. Besides a complaint about the utterances of Mr Mda and if
one had regard to the record of proceedings the issue was
also that
the ‘consolidated report’ emanated from the House of
Phalo.  According to Mr Arendse the purpose of
the follow up
meeting was not to conduct a fresh investigation but was meant to
give input on new material and on the commissions’
research.
The Commission itself was cognisant of the gravity of the decisions
it was expected to give and then it observed the
audi alteram
partem
rule when it invited the parties to the follow up
meeting. One cannot trivialize the importance of that document which
the amaRharhabe
say came to their attention for the first time at
such hearing. The document was important in that it was requested by
the Commission
and it was going to be considered by it in arriving at
its decision. The amaRharhabe maintain that it contained information
adverse
to their interests. The fact that the Commission itself
deemed it necessary in its letter to observe the rules of natural
justice,
it had no reason in my view to deny the amaRharhabe audience
on issues arising out of such document. I wish to point out to what

was said by Prof Moleleki at the beginning of the hearings: at page 5
and 6of the transcript:
“
we are going to be here
today and tomorrow, but we are likely to come back several times in
the future, so this is going to be a
long and arduous process, we
need your cooperation”.
Based
on the concept of legitimate expectation ‘which is an integral
part’ of the
audi
alteram partem
rule, the
amaRharhabe had a right to insist upon the Commission to be heard.
Supplementary
affidavit and Error of Fact and Relevant Considerations
(Mr
Marcus assisted by Mr Brickhill)
[44]
Firstly, there was objection to the filing of the supplementary and
confirmatory affidavits on grounds that new matter was
raised outside
of the perimeters of the Commission. Mr Arendse submitted that no
other forum had mandate to ‘analyse and
decide’ on the
paramountcies and paramount  chiefs. Furthermore, that since the
applicant enjoyed legal representation
before the Commission no
explanation was offered why such new matter was raised in such
affidavits and not before the Commission.
He criticised the annexing
of whole books of literature to the papers.  Mr Arendse filed a
post hearing note in response to
Mr Marcuts’s  ‘notes
on argument’ and these related to the admissibility of the
supplementary affidavit,
error of fact and condonation
[45]
It is common cause that the supplementary affidavits dealing with
the ‘living customary law’ of the amaRharhabe,
were
served before the answering affidavit and that they have gone
unanswered. Although it is contended that the facts therein
be struck
out, such facts, in as far as they were not dealt with by the
respondents, remained uncontested and are not in dispute.
[46]
Mr Marcus argued that the supplementation was not limited to the
record of the proceedings,
Johannesburg Consolidated Investment
Co v Johannesburg Town
Council
1903 TS 111
at 115.
The requirements for fair proceedings obliged the Commission to
consider all relevant matter, and that a ‘material
mistake of
fact even if made in ignorance constituted a reviewable irregularity,
Government Employees
Pension Fund and Another v Buitendag and Others
2007
(4) 2 (SCA) para 11
;
Pepcor Retirement Fun and Another v Financial Serives Board and
Another
2003 (6) SA 38
(SCA) para 47. In  order to justify a striking out the
“(i)
matter must
be scandalous, vexatious or irrelevant
,
and
(ii)the court must be
satisfied that if such matter is not struck out, the party seeking
such relief
would
be prejudiced
”
; para
26 deals with the test to determine relevancy and para 136 states the
rule ‘
that a party who
seeks to strike out must nevertheless on affidavit deal with the
allegations made that he seeks to strike out.”
Helen
Suzman Foundation v President of the Republic of South Africa
2015
(2) SA 1
(CC)
[47]
Mr Arendse relied on the case of
Lufuno Mphaphuli and
Associates (Pty) Ltd v
Andrews
and Another 2008 (2) SA SCA
para
14, 15 and 16. Para 14: ‘that an applicant was not allowed to
make out a new case in a supplementary affidavit; Para
15 that
circumstances to be relied upon had to be set out in the founding
affidavit  ...and  amplified ‘ in so
far as may be
necessary’ in the supplement affidavit by new information that
had since become available;  Para 16 the
new information did not
justify the lengthy supplementary affidavit, ostensibly brought under
rule 53(4). He conceded that an applicant
for review may supplement
the founding affidavit, however, he submitted that the supplementary
affidavit was unjustifiably lengthy
it totalling  76 pages
excluding annexures as compared to the 33 pages of the founding
affidavit. The court had to reject
those pages not arising from
the record.
In
my view the facts in
Lufuno
supra are distinguishable
to the present. There the parties had by agreement bound themselves,
in the event of  a dispute regarding
payment for services, that
adjudication be by way of private arbitration. That adjudication was
in turn regulated by the
Arbitration Act 42 of 1965
. It was held that
the review if any was confined to grounds of procedural irregularity
provided for in terms of
section 33(1)
of the said Act. By agreeing
that the arbitrators award ‘shall be final and binding on the
parties’, the parties had
waived their right to have the merits
reconsidered.
[48]
The new information that had since become available related to the
discovery of three secret meetings that Andrews had with
Bopanang.
The court found that putting aside the three ‘secret meetings’,
Lufuno in the lengthy supplementary affidavit
raised a
‘
completely
new case’ and that it was not suggested that the court
a
quo’s
discretion was ‘
exercised
capriciously or upon a wrong principle or upon any other ground
justifying interference by a court of appeal”
.
In the Constitutional Court, the
Lufuno
matter concerned the
interpretation of section 34 of the Constitution  and how it
should be applied to the
Arbitration Act, the
majority judgement left
intact the decision of the High Court and SCA on the merits.
In
this matter the respondent failed to deal with what it contended was
new matter. It was argued for the applicant that the Commission
being
the decision maker was obliged to consider all relevant facts. In my
view, it is not open to the court on the basis that
such evidence
ought  to have been placed before the commission,  to out
rightly decide to strike them out without considering
the facts
presented by both parties and the reasons why it should be struck out
or not.
[49]
Mr Arendse submitted that the supplementary affidavit was filed four
years after the commission’s decision and that the
applicant
had failed to identity precisely, information considered by the
Commission. This amounted to a trial by ambush and the
applicant had
failed to heed the invite in the answering affidavit to direct the
court to the relevant information. Furthermore
that the whole content
of the books produced did not constitute new information, in that the
substance of the information was before
the Commission therefore the
decisions relied upon, among others Pepcor and Buitendag did not find
application. This argument in
my view has no merit.
[50]
Mr Arendse seems to criticize the reliance by the applicant on
authority by Prof Periers who was one of the commissioners and
who
participated in the decision not to recognise the kingship of the
amaRharhabe. The supplementary affidavit gives guidance on
some of
the authorities relied upon by mentioning authors, names of the books
and pages. For example, at page 221/222/237
it is mentioned
that in the book by the very Prof Periers (“The House of Phalo
pages 48 and 131) the independence of
amaRharhabe was recognized. The
respondents could have responded to this statement. For example (not
raised by the parties Page
54 of the record), and concerning Prof
Periers:  he was prevented by the chairperson in the initial
hearings from asking a
question which he considered was fair but
controversial. If the applicant says in the supplementary affidavit,
one of your commissioners
in his book and other writers agreed with
the version that the amaRharhabe were independent,  the
respondent should have responded.
[51]
Mr Arendse gave examples where in the record there appears evidence
of the version of the amaRharhabe’s claim to independence
and
the authorities relied upon. Some of the literature referred to
served before the Commission. The applicant contends that there
has
been no response in the answering affidavit with the issues in the
supplementary affidavit on the material which served before
the
commission and additional authorities provided which supported the
version that the Kingship of the amaRharhabe was not based
on the
principle of primogeniture.
[52]
Besides information obtained at the hearings, based on stories that
were handed down from generation to generation, and literature,
the
material involved historical events, research and divergent views
that spanned 250 years of governance of the 31 traditional

communities headed by senior traditional leaders under the
amaRharrhabe paramountcy, which demonstrated the existence of an
independent
kingship. These facts are dealt with in paragraph 29 of
the supplementary affidavit. Mr Brickhill argued that the answering
affidavit
foreclosed the possibility of the recognition of a dual
kingship. The Commission took the stance that male primogeniture as
existed
in 1740 was the deciding factor, thus making only Gcaleka,
first son of the Great House, successor to Phalo. This approach he
argued
was defended also in the heads of argument for the respondent
which ‘rejected the possibility that customary law had evolved

to recognise dual kingships. Its decision, with the stroke of pen,
for the first time took away the status of the amaRharhabe which
was
‘a single narrative of independent kingship, ...consolidated
and established’ over many years.
[53]
Although there were facts sufficient for substituting the decision of
the Commission, the applicants were not praying for such
order. In my
view, the quality of the Commission’s final determination
should be seen to have interrogated and considered
all the facts and
material available, including such information the Commission refused
to hear and information predating the cut-off
date. After all, the
complaint was about a decision not to recognise the legitimacy of the
Rharhabe paramountcy and that of its
incumbent.
[54]
Customary law was a living system as recognised and confirmed by the
constitutional court;
Pilane
v Pilane
2013 (4) BCLR
(CC) at para 34:
“
..customary law is a vital
component of the constitutional system, recognised and protected by
the Constitution while ultimately
subject to its terms. The true
nature of customary law is as a living body of law, active and
dynamic, with an inherent capacity
to evolve in keeping with the
changing lives of the people whom it governs”
The
test for determining the content of customary law said Mr Brickhill
‘was looking backwards, looking to the present
and as
stated in
Shilubana and Others v Nwamitwa
2009 (2) SA
66
(CC) para 49”
“
if development happens
within the community, the court must strive to recognise and give
effect to that development, to the extent
consistent with adequately
upholding the protection of rights.”
In
a recent decision our courts recognised that customary law had
developed where the Xhalanga community in the Eastern Cape had
over
60—100 years adopted a system of electing its own head man,
rather than having one chosen on their behalf from the royal
house,
Premier of the Eastern Cape and Others v Ntamo and Others
(2015) ZAECBHC 14 (18 August 2015). Having regard to the above
matters, it should be accepted that today there is greater need
to
appreciate that the development of customary law is a reality, that
customary law is mutable, therefore it was important for
the
Commission to have considered claims to such development especially
where it is alleged to have existed. This in my view would
have been
in line with the mandate in terms of section 28 (7) of the Act.
The
Commission’s Interpretation of section 9 (1)(b) of the old Act
and the 1927 cut off
[55]
Mr Brickhill submitted that the Commission’s interpretation
that the need to create uniformity only meant one kingship
was
incorrect. It ruled out the possibility of dual kingships from the
beginning. He argued that this was evident from the manner
in which
the Commission went about its investigation as seen from the extract
from the Commissions determination and decision.
While it commenced
correctly in identifying the issues as
‘
requiring
in essence, a finding whether two independent kingships were
established,’ under its heading ‘Analysis of
Issues’
the following is stated:
“
9.2.1
In
pursuit of uniformity
in
the Republic as envisaged by the Framework    Act the
Commission takes cognisance of the following principles:
(a)
The
establishment of an independent traditional community under
one
leader;
(b)
Welding
together diverse cultural and linguistic elements or communities
each with its own recognisable
traditional leader under one principal traditional leader;
(c)
The
traditional community should not have
lost
its independence through indigenous
political processes which resolved themselves during the centuries
before colonial intrusion;
(d)
The
principal
traditional leader should rule
over
the entire traditional
community
with linguistic and cultural
affinities rather than a section thereof.” (emphasis added)
Commission’s Determination,
annexure “B” to answering affidavit pages 447-448 and
sub-paragraphs.
It
was argued that the Commission interpreted ‘the ‘uniformity’
considerations along
‘’
principles
”
that were not properly part of the
statute at all’ and that tended to indicate that the section
required or preferred, “one
leader”; “welding
together”; “one principal traditional leader’ to
rule “over the entire traditional
community.” This
approach he said precluded both the amaGcaleka and amaRharhabe from
interpreting ‘uniformity’
to mean, one kingship only per
community. The responsibility on the Commission was to interpret the
application of the Act in such
a way that it conforms to the
Constitution.
[56]
Mr Brackhill submitted that the commission was empowered  to
investigate disputes after  the cut off date of 1 September
1927
in terms of section 26(6) of the old Framework Act. This was however
qualified in that, in terms of section 25(5)(a)(vi) they
were
entitled to investigate and consider events that preceded the cut-off
date and that nowhere in the answering affidavit does
the Commission
give ‘good grounds’ which would have entitled it to
temporarily extend its authority to look into the
independence of the
amaRharhabe. In my view these kingships were investigated as if there
was a dispute about kingship whose origins
were vested in customary
law only,  that had been lodged and which the commission had to
investigate and make a finding.
Condonation
[57]
Mr Arendse submitted that this application was wholly and
unreasonably late. The application was launched three years after
the
decision on kingship was taken on 28 April 2008. This decision did
not affect the position of late King Sandile it related
to Kingships
only Of importance was a letter written on behalf amaRharhabe on  30
July 2008 notifying the Commission that
its decision was not accepted
and that the applicant intended instituting legal proceedings.
[58]
He argued that it was recorded at commencement of the second leg of
hearings  that the amaRharhabe were legally represented
by
Advocate Smuts and his junior. There was a request to revisit the
2008 decision of the Commission on grounds that it was not
a final
decision. There was engagement with him on the appropriate forum to
hear a review application. The Commission he said made
it clear that
they were
functus officio
and that their decision was final.
This would mean that administrative action cannot be reviewed because
the commission was
functus officio
.  I agree with Mr
Marcus that this line of argument would be ‘destructive’
of any of the grounds of review a litigant
is entitled to raise
including error fact and an error of law.
[59]
Mr Arendse argued further that there was no legal basis to reconvene
the commission. He argued that he was not certain whether
the old Act
would be applicable as the mandate of the commission had been
terminated and that it no longer sits. The decision not
to give
recognition was made under the old Act, under ‘transitional
arrangements’ which differed from the process now
applicable
under the new Act. The decision of the Commission must still stand
because ‘all the President had to do at the
time was just
publicise the decision in the Gazette,
The
Minister of Cooperative Governance and Traditional Affairs and Others
v Wezizwe Feziwe Sigcau and Others (40750/2014;
Gauteng
Division of the High Court, Pretoria)
[60]
Mr Marcus argued that the matter was distinguishable from this one in
that it was not a review application and at para 42 on
page 288 where
Judge Murphy stated that:, “
the
applicants do not seek to review any administrative action on the
grounds of ........illegality or procedural fairness”.
[61]
Mr Arendse further argued that it was not possible, for the applicant
to have compromised his position by entering into the
second phase
when they were not happy with the fundamental issue of kingship. He
submitted that the same points raised then were
now raised as new
evidence in the founding and supplementary affidavits. Furthermore,
that the the failure by counsels for the
applicants to pursue the
condonation application in oral argument was suggestive of a lack of
confidence in the merit of its reasons
for lateness. This latter
argument is without merit.
[62]
As I see it the record reflects that the issues raised by Advocate
Smuts related to his request to revert to the decision taken
by the
Commission and the debate revolved around whether the decision of
2008 was an interim or final one. This is only one of
the many issues
raised as grounds of review in this application. Mr Arendse argues
that the 2005 hearing being before the 2008
decision there was
nothing stopping the amaRharhabe from making representations to the
Commission. This loses sight of the fact
that they had been denied an
opportunity to make representations during July 2007 on issues that
were adverse to their assertions
of independence.
[63]
Mr Arendse argued that the main task of the Commission was to
investigate the distortions caused by our colonisers and the

apartheid regime, whether the existing paramountcies were genuinely
established under customary law at the time and not today.
According
to him the Commission was bound by the mandate in the empowering
statute and they concluded after considering the versions
from both
sides that  ‘golden rule’ of male primogeniture was
applicable. The methodology adopted was disclosed
to the parties and
accepted and that some material referred to in the supplementary
affidavit, for example Milton’s Book
was referred to by the
Commission.
[64]
In my view the Act should not be interpreted to mean that the
Commission was directed only to investigate distortions to the

customary law as it existed as at time of the
‘
split
and cut off date, thereby empowering the commission to make decisions
that would have the effect of wiping out
an entire history of a
people.
[65]
Mr Brickhill argued that while the Commission’s view was that
their decision was final,  the decision was taken
in 2008 and
only communicated to the President via the Minister in 2010. To the
amaRharhabe the process presented an incomplete
picture informed by
hindsight during 2010 in that the President referred to the
Commissions finding as a recommendation and to
his decision which
meant the final decision. According to the applicant the timing ran
from the President’s decision. It
was argued that from 2010 to
2013 the legal position on the decision of the commission was not
clear until determined by the constitutional
court  when the
President’s decision was set aside. Furthermore given the
applicable timeframe which expired on 29 January
2011 the delay was
not substantial.  It was therefore not unreasonable for the
applicant to have launched the application
when it did.
[66]
In my view, of importance is that the applicants are not seeking this
court to substitute the decision of the commission, but
that the
matter be referred back for proper investigation and consideration by
having regard to the issues raised in this review.
I agree that the
Commission as initially constituted is no longer in existence. It is
therefore the duty of the First Respondent
to initiate a process
that would address this matter. Condonation should be granted not
because the applicant expects the court
to be sympathetic, but
because this application is one that touches on decisions that have
affected so many lives, it is a decision
that strikes to the core of
their belief in who they are in the overall family of the amaXhosa.
Thirty-one traditional communities
and their King say on hindsight
they now realize that the decisions were wrong, and based on the
various grounds of review we they
the process preceding the 2008
decision was procedurally unfair and the President’s decision
in 2010 was legally incorrect.
The Commission and the Commissioners
repeatedly throughout the record insisted on fairness. The follow up
hearing was motivated
by an understanding among them that fairness
had to prevail.  The respondents will not be prejudiced by a
re-consideration.
It should not be about the impossibility of the
process being revisited, it should be about a people who say our
situation is different
and we have a right to demand that we should
have been heard then before the decision was taken and again
that consideration
be given to our version and how that should
be interpreted in light of the Constitution.
[67]
In the result the following order is given:
1.
The
decision of the First Respondent taken on 29 July 2010 is reviewed
and set aside;
2.
The
decision of the Commission on Traditional Leadership Disputes and
Claims in which it rejected the Applicant’s claim and
that of
the amaRharhabe people in respect of the recognition of the
independence of the amaRharhabe paramountcy is reviewed and
set
aside.
3.
The
period of 180 days in
section 7
of the
Promotion of Administrative
Justice Act 3
of 2000
is
extended to the date of institution of the present application.
4.
The
First, Second and Third respondents are ordered to pay the costs of
this application including costs of two counsel.
__________
TLHAPI
VV
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON

:           27
NOVEMBER 2015
JUDGMENT
RESERVED ON

:           27
NOVEMBER 2015
ATTORNEYS
FOR THE APPLICANT
:
SMITH
TABATA INC.
ATTORNEYS
FOR THE RESPONDENTS
:

BHADRISH DAYA ATT.