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[2015] ZAECBHC 14
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Premier of the Eastern Cape and Others v Ntamo and Others (169/14) [2015] ZAECBHC 14; 2015 (6) SA 400 (ECB); [2015] 4 All SA 107 (ECB) (18 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE
LOCAL DIVISION, BHISHO
Case no. 169/14
Date heard: 7/8/15
Date delivered:
18/8/15
Reportable
In the matter between:
PREMIER
OF THE EASTERN CAPE
First
Appellant
CHIEF
GECELO
Second
Appellant
THE
GCINA TRADITIONAL COUNCIL
Third
Appellant
MEC
FOR LOCAL GOVERNMENT
AND
TRADITIONAL AFFAIRS
Fourth
Appellant
and
PENROSE
NTAMO
First
Respondent
NOMVUZO
NOPHOTE
Second
Respondent
DUNGUZA
CUBA
Third
Respondent
ZOYISILE
TYANDELA
Fourth
Respondent
LOCAL
PLANNING COMMITTEE, CALA RESERVE
Fifth
Respondent
JUDGMENT
PLASKET, J
[1]
It is the constitutional function of the judicial arm of government
to determine and resolve justiciable
disputes between parties. That
function includes deciding disputes as to whether the executive or
legislative arms of government,
or other organs of state, have acted
within or beyond the powers conferred on them by law. This is a
function that has, in the
jurisprudential tradition of which our
Constitution is part, always been entrusted to the courts since the
landmark case of
Marbury
v Madison
.
[1]
No
other branch of government is institutionally able to perform this
function
[2]
and,
to the extent that it may be suggested that this jurisdiction offends
the doctrine of the separation of powers, it is an intrusion
into the
terrain of the other branches of government that is permitted,
expressly, by the Constitution.
[3]
[2]
This appeal concerns the limits of administrative power, exercised by
the fourth respondent, the
MEC for Local Government and Traditional
Affairs in the Eastern Cape provincial government (the MEC), acting
on the delegated authority
of the first appellant, the Premier of the
province, to recognise (ie appoint) a headman. The respondents –
the applicants
in the court below – brought an application to
review and set aside the appointment of Mr NJ Yolelo (the fifth
respondent
in the court below, who is not party to this appeal) as
headman for the Cala Reserve in the Xhalanga district of the Transkei
region
of the Eastern Cape.
[3]
In the court below, Nhlangulela ADJP, in granting the application,
made an order:
‘
1.
That the decision of the fourth and/or first respondent to recognise
the fifth respondent as the headman of the Cala Reserve,
taken on or
about 04 July 2013, be and is hereby reviewed and set aside.
2. That the first
respondent be and is hereby directed to refer the matter back to the
Royal Family in terms of sections 18(3) and
18(4) of the Traditional
Leadership and Governance Act 4 of 2005.
3. That it be and is
hereby declared that the customary law of the Cala Reserve requires
its headmen to be elected by members of
the community, in accordance
with custom and customary law.
4. That the first, third
and fourth respondents pay the costs of ths application, the one
paying and others being absolved from
liability.’
[4]
That order is appealed against, with the leave of the court below, by
the first to fourth respondents,
the Premier, Chief Gecelo, the
amaGcina Traditional Council and the MEC.
The
facts
[5]
The material facts are, when the principles set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[4]
are
applied, not in dispute. This is a classic case for which the
application procedure was designed: it involves undisputed facts
and,
a number of technical points aside, a crisp legal issue.
[5]
[6]
As stated, the dispute between the parties concerns the validity of
the decision taken by the
MEC to appoint Yolelo as headman of the
Cala Reserve. That, in turn, raises whether the MEC and the amaGcina
royal family acted
in compliance with the Traditional Leadership and
Governance Act 4 of 2005 (EC), the legislation that empowers royal
families to
‘identify’ candidates for headmanship and the
Premier to ‘recognise’ headmen in the province.
[6]
I
shall refer to this Act as the Governance Act.
[7]
Mr JH Fani was appointed as headman of the Cala Reserve in 1979. In
late 2012, he indicated to
the amaGcina Traditional Council that he
wished to retire. He later informed the fifth respondent, the local
planning committee
appointed by him as an advisory body, that the
amaGcina Traditional Council had acceded to his request that he be
allowed to retire.
[8]
The planning committee convened a community meeting to discuss the
issue. As residents of the
Cala Reserve have always elected their
headmen, debate developed as to a suitable successor to Fani. Mr
Gideon Sitwayi, a sub-headman
and Fani’s de facto deputy,
emerged as the favoured candidate.
[9]
On 25 February 2013, a community meeting was held at which Sitwayi
was elected as headman by the
majority of those present. Fani and Mr
Penrose Ntamo, the deponent to the founding affidavit and a member of
the planning committee,
were given the task of reporting the result
of the election to the amaGcina Traditional Council. When they tried
to do so, on 27
February 2013,Chief Gecelo, the head of the Council,
was not available so their report was left with the Council’s
secretary
who informed them that the community had acted unlawfully
by conducting an election in the absence of the Council.
[10]
When the Council met on 4 March 2013, it was critical of Fani for
allowing the community meeting to take
place without Council members
being present. He was informed that the Council would go to the Cala
Reserve on 11 March 2013 to
‘introduce’ the new headman.
He was also told, strangely, that arrangements would be made for the
police to be present.
It became clear from the Council’s
meeting that it did not accept the election of Sitwayi because he was
not a member of
the royal family.
[11]
The meeting only took place on 27 March 2013. The Council’s
representatives included Gecelo. A Mr Jentile,
a councillor, informed
those present that the delegation had no intention of having a
meeting with the community: it was there
to introduce the person
chosen by the royal family to be the new headman for the Cala
Reserve. Gecelo said that the delegation
would not answer any
questions. He then announced that the new headman was Yolelo.
[12]
Unhappiness was expressed about the community being ‘silenced’
both as to the election of the
headman and in having a headman
imposed on it. Ntamo, in the founding affidavit, set out the
Council’s response as follows
– and this captures the nub
of the issue in this appeal:
‘
Jentile
proceeded to explain that while it is true that the Cala Reserve
always elected its headmen, the new law had stopped that
practice and
instructs the royal family to elect the headman. We understood the
reference to the “new law” to be a
reference to the
Eastern Cape Act. Chief Gecelo took the opportunity to tell the
crowd: “
nokuba niyathanda okanye
anithandi na, yiroyal family ethatha izigqibo ngokubekwa kwenkosana
”
(whether you like it or not, it is the royal family that decides on
the headman”).’
[13]
The planning committee then commenced with a process of engagement
with various bodies and functionaries.
Letters were sent, over a
period of time, to the Council, the Regional Traditional Council at
Qamata, the Department of Local Government
and Traditional Affairs
and the Premier of the province. The central theme of all of the
correspondence was that ‘the royal
family did not follow
procedure as laid out in the Eastern Cape Act which indicates that it
must consider the customary law of
the area in replacing a headman’.
All of these efforts of the planning committee, and later, of its
attorneys, came to naught.
In the meantime, it emerged that Yolelo
was already receiving an official salary and that plans were afoot
for his installation
as headman.
[14]
The applicants in the court below launched an urgent application in
which they claimed two forms of relief.
In part A of the notice of
motion, they sought to interdict Yolelo ‘from continuing with
his planned inauguration as headman
of the Cala Reserve, scheduled
for 25 March 2014, pending the determination of the relief sought in
Part B
of this application’. Part B of the notice of
motion embodied prayers for the review and setting aside of the
decision to
appoint Yolelo and for a related declaratory order.
[15]
The interdict was granted, unopposed, by Mjali J. Despite that,
however, Yolelo proceeded with his inauguration.
Apparently, contempt
of court proceedings were instituted against him because of his
disregard of Mjali J’s order.
[16]
The basis for the decision to identify and recognise Yolelo was given
in the answering affidavit, deposed
to by Mr JS Mateta, the Acting
Director-General of the Department of Local Government and
Traditional Affairs. He stated that,
at the meeting at which Yolelo
was introduced to the community as its headman, it was explained to
those present that in identifying
Yolelo, ‘the Royal Family
took into account existing customary practice in identifying the
fifth respondent as he is a member
of the Royal Family by virtue of
being and belonging to the “Gcina” clan’.
[17] A
more detailed explanation is contained in a letter, dated 25 November
2013, written by the Superintendent-General:
Local Government and
Traditional Affairs to the Chief State Law Advisor in the office of
the Premier, and also given to the respondents’
attorneys. It
states:
‘
1.
. . .
2. It is the prerogative
of the Gcina Royal Family to identify a suitable person to occupy a
Traditional Leadership position as
inkosana of Cala Reserve
Administrative Area.
3. The department
received one resolution from the royal family and as such the
Honourable MEC recognised Ndodenkulu (Ndodenkulu)
Yolelo as inkosana
of Cala Reserve Administrative Area in the district of Cala.
4. In terms of the
repealed Transkei Authorities Act, 1965 (Act 4 of 1965) the then
tribal authority had the power to appoint a
headman of the particular
administrative area and as such that person was not necessarily
required to have royal blood in his or
her veins.
5. However, the Transkei
Authorities Act had a provision which required the consultation of
the registered voters before the appointment
could be confirmed by
the then office of the Prime Minister of the Transkei homeland
administration.
6. In terms of the
National & Provincial legislations it is the prerogative of the
royal family just to identify a person who
will be an inkosana or
headman with no provision stipulating the involvement of the
respective community of that particular administrative
area.
7. In
the light of the foregoing, the identification and recognition of Mr
N Yolelo as inkosana of Cala Reserve Administrative Area
in the
district of Cala had been done in accordance with the provisions of
the legislation.’
The legislation
[18]
The Cala Reserve falls within the Transkei region of the Eastern
Cape. It was formerly a so-called independent
homeland. Its road to
‘independence’, as part of the implementation of grand
apartheid, commenced with the Black Authorities
Act 68 of 1951,
included the grant of self-governing status in terms of the Transkei
Constitution Act 44 of 1963 and ended with
the promulgation of the
Status of the Transkei Act 100 of 1976 in terms of which it,
supposedly, ceased to be part of the Republic
of South Africa and
became an independent country.
[7]
It
then adopted its own Constitution, the Republic of Transkei
Constitution Act 15 of 1976. Its model of local government in the
rural areas was based on tribal institutions created by the Black
Authorities Act, essentially tribal and regional authorities.
[19]
Prior to the promulgation of the Governance Act by the Eastern Cape
legislature, a Transkei statute governed
the appointment of chiefs
and headmen in that region. That was the Transkei Authorities Act 4
of 1965. I shall say more of this
Act later. It was, in truth,
nothing more than the Transkeian version of the Black Authorities
Act. The system that has replaced
it consists of an interlocking
complex of constitutional provisions, national legislation and
provincial legislation.
[20] In
the first place, s 211 of the Constitution provides:
‘
(1)
The institution, status and role of traditional leadership, according
to customary law, are recognised, subject to the Constitution.
(2) A traditional
authority that observes a system of customary law may function
subject to any applicable legislation and customs,
which includes
amendments to, or repeal of, that legislation or those customs.
(3) The courts must apply
customary law when that law is applicable, subject to the
Constitution and any legislation that specifically
deals with
customary law.’
[21]
The national legislation that applies is the Traditional Leadership
and Governance Framework Act 41 of 2003
(the Framework Act). It
serves, as its name suggests, as the framework for detailed and
context-specific provincial legislation.
The preamble of the
Framework Act sets out both its purpose and the values upon which it
is based. It states:
‘
WHEREAS
the State, in accordance with the Constitution, seeks-
*
to set out a national framework and norms and standards that will
define the place and role of traditional leadership within the new
system of democratic governance;
*
to transform the institution in line with constitutional imperatives;
and
*
to restore the integrity and legitimacy of the institution of
traditional
leadership in line with customary law and practices;
AND WHEREAS the South
African indigenous people consist of a diversity of cultural
communities;
AND WHEREAS the
Constitution recognises-
*
the institution, status and role of traditional leadership according
to customary law; and
*
a traditional authority that observes a system of customary law;
AND WHEREAS-
*
the State must respect, protect and promote the institution of
traditional
leadership in accordance with the dictates of democracy
in South Africa;
*
the State recognises the need to provide appropriate support and
capacity
building to the institution of traditional leadership;
*
the institution of traditional leadership must be transformed to be
in harmony with the Constitution and the Bill of Rights so that-
-
democratic governance and the values of an open and democratic
society
may be promoted; and
-
gender equality within the institution of traditional leadership may
progressively be advanced; and
*
the institution of traditional leadership must-
-
promote freedom, human dignity and the achievement of equality and
non-sexism;
-
derive its mandate and primary authority from applicable customary
law and practices;
-
strive to enhance tradition and culture;
-
promote nation building and harmony and peace amongst people;
-
promote the principles of co-operative governance in its interaction
with all spheres of government and organs of state; and
-
promote an efficient, effective and fair dispute-resolution system,
and a fair system of administration of justice, as envisaged in
applicable legislation,
BE IT THEREFORE ENACTED
by the Parliament of the Republic of South Africa, as follows:-‘
[22]
The Governance Act is the provincial legislation that concerns
traditional leadership in the Eastern Cape
province. It, in other
words, is intended to give effect to s 211 of the Constitution
consistent with the framework created by
the Framework Act and in
accordance with its norms and standards. Its preamble makes this
clear. It states:
‘
WHEREAS
the National Government has, in the White Paper on Traditional
Leadership and Governance, set out the norms and standards for
transformation in line with constitutional imperatives and
restoration of the integrity and legitimacy of the institution of
traditional
leadership in accordance with custom and customary
practices;
AND
WHEREAS
the Traditional Leadership and
Governance Framework Act, 2003 (Act No. 41 of 2003) was enacted to
set norms and standards for traditional
leadership and governance
throughout the Republic of South Africa;
AND
WHEREAS
there is need for the
Government of the Province of the Eastern Cape to enact Provincial
legislation within the framework of the
Traditional Leadership and
Governance Framework Act, 2003
to provide for matters which are
peculiar to the Province;
BE
IT THEREFORE ENACTED
by the Legislature
of the Province of the Eastern Cape, as follows:-‘
[23]
Section 3
contains guiding principles.
Section 3(1)
places an
obligation on the State to ‘respect, protect and promote the
institution of traditional leadership in accordance
with the dictates
of democracy in South Africa’.
Section 3(2)
provides:
‘
The
institution of traditional leadership must be transformed to be in
harmony with the Constitution and the Bill of Rights so that:-
(a) democratic governance
and the values of an open and democratic society may be promoted; and
(b) gender equality
within the institution of traditional leadership may progressively be
advanced.’
Sections 3(3)(a) and (b)
provide that the institution of traditional leadership must ‘promote
freedom, human dignity and the
achievement of equality and
non-sexism’ and ‘derive its mandate and primary authority
from applicable customary law
and practice’.
[24]
Section 18 provides for the procedure for the appointment of a
headman (iNkosana in isiXhosa). It states:
‘
(1)
Whenever the position of an iNkosi or iNkosana is to be filled –
(a) The royal family
concerned must subject to such conditions and procedure as
prescribed, within sixty days after the position
becomes vacant, and
with due regard to applicable customary law –
(i) identify a person who
qualifies in terms of customary law to assume the position in
question, after taking into account whether
any of the grounds
referred to in section 6(3) apply to that person; and
(ii) through the relevant
customary structure, inform the Premier of the particulars of the
person so identified to fill the position
and of the reasons for the
identification of that person; and
(b) the Premier must,
subject to subsection (5), by notice in the
Gazette
, recognise
the person so identified by the royal family as an iNkosi or
iNkosana, as the case may be.
(2) Before a notice
recognising an iNkosi or iNkosana is published in the
Gazette
,
the Premier must inform the Provincial House of Traditional Leaders
of such recognition.
(3) The Premier must,
within a period of thirty days after the date of publication of the
notice recognising an iNkosi or iNkosana
issue to the person who is
identified in terms of paragraph (
a
)(i), a certificate of
recognition.
(4) Where the Premier has
received evidence or an allegation that the identification of a
person referred to in subsection (1) was
not done in accordance with
the provisions of this Act, customary law or custom the Premier –
(a) may refer the matter
to the Provincial House of Traditional Leaders for its
recommendation; or
(b) may refuse to issue a
certificate of recognition; and
(c) must refer the matter
back to the royal family for consideration and resolution where the
certificate of recognition has been
refused.
(5) Where a matter, which
has been referred back to the royal family for reconsideration and
resolution in terms of subsection 4(
a
), has been reconsidered
and resolved, the Premier must recognise the person identified by the
royal family if the Premier is satisfied
that the reconsideration and
resolution by the royal family has been done in accordance with
customary law.’
[25]
Section 6(3) of the Governance Act specifies five qualities that a
person must possess in order to be a member
of a traditional council
and, in terms of s 18(1)(a)(i), in order to be identified as a
headman. They are that the person:
‘
(a)
is above the age of 21;
(b) has not been
convicted of an offence and sentenced to more than 12 months
imprisonment without the option of a fine;
(c) is not an
unrehabilitated insolvent;
(d) is a South African
Citizen; and
(e) is ordinarily
resident within the jurisdiction of the traditional council.’
[26] It
is evident from s 18 of the Governance Act that customary law plays a
role in the identification of a
headman: when the royal family
identifies a person to fill the position of a headman, it must have
‘due regard to applicable
customary law’ and the person
so identified must be a person who ‘qualifies in terms of
customary law to assume the
position in question’. It is
therefore necessary to turn to the question of what the applicable
customary law is in this
matter. (I do so mindful of the argument
advanced by Mr Sishuba who, together with Mr Poswa, appeared for the
appellants, that
the Transkei Authorities Act abolished the
applicable customary law and that there is now a customary law void
in respect of the
appointment of headmen in the Transkei region. I
shall return to this argument in due course.)
The applicable
customary law
[27]
Sections 1(1)
and (2) of the
Law of Evidence Amendment Act 45 of 1988
provides:
‘
(1)
Any court may take judicial notice of the law of a foreign state and
of indigenous law in so far as such law can be ascertained
readily
and with sufficient certainty: Provided that indigenous law shall not
be opposed to the principles of public policy and
natural justice:
Provided further that it shall not be lawful for any court to declare
that the custom of lobola or bogadi or other
similar custom is
repugnant to such principles.
(2) The provisions of
subsection (1) shall not preclude any party from adducing evidence of
the substance of a legal rule contemplated
in that subsection which
is in issue at the proceedings concerned.’
[28]
It is not possible for judicial notice to be taken of the customary
law that applies in the Cala Reserve
to the appointment of headmen.
It cannot ‘be ascertained readily and with sufficient
certainty’. That being so, it
must be proved.
[8]
[29]
The requirements for the recognition of a custom as a binding rule of
common law or customary law have been
held to be four-fold: the
custom must be long established, reasonable and certain and be
uniformly observed.
[9]
In
Shilubana
& others v Nwamitwa
[10]
this
formulation was criticised and modified because it was held not to be
capable of accommodating changes to customs and the development
of
customary practices: as Van der Westhuizen J said, ‘while
change annihilates custom as a source of law, change is intrinsic
to
and can be invigorating of customary law’.
[11]
[30]
As I understand the judgment, it adapts
Van
Breda & others v Jacobs & others
[12]
in
order to factor in recognition of developing practices and the
altered constitutional framework. It does so in two ways. In the
first place, it recognises that the requirement of the reasonableness
of a custom must be ‘applied in a way compliant with
the
Constitution’.
[13]
Secondly,
the court formulated the rest of the requirements as follows:
[14]
‘
To
sum up: where there is a dispute over the legal position under
customary law, a court must consider both the traditions and the
present practice of the community. 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 addition, the imperative of
s 39(2) must be
acted on when necessary, and deference should be paid to the
development by a customary community of its own laws
and customs
where this is possible, consistent with the continuing effective
operation of the law.’
[31]
The Constitutional Court has, on a number of occasions now, dealt
with the place of customary law in the
South African legal order. In
Bhe
& others v Magistrate, Khayalitsha & others (Commission for
Gender Equality as amicus curiae); Shibi v Sithole &
others;
South African Human Rights Commission & another v President of
the Republic of South Africa & another
,
[15]
Langa
DCJ observed that ‘the Constitution itself envisages a place
for customary law in our legal system’ and that particular
provisions ‘put it beyond doubt that our basic law specifically
requires that customary law should be accommodated, not merely
tolerated, as part of South African law, provided the particular
rules or provisions are not in conflict with the Constitution’.
In
Alexkor
Ltd & another v The Richtersveld Community & others
,
[16]
the
following was said:
‘
While
in the past indigenous law was seen through the common-law lens, it
must now be seen as an integral part of our law. Like
all law it
depends for its ultimate force and validity on the Constitution. Its
validity must now be determined by reference not
to common law, but
to the Constitution. The courts are obliged by s 211(3) of the
Constitution to apply customary law when it is
applicable, subject to
the Constitution and any legislation that deals with customary law.
In doing so the courts must have regard
to the spirit, purport and
objects of the Bill of Rights. Our Constitution
“
.
. . does not deny the existence of any other rights or freedoms that
are recognised or conferred by common law, customary law
or
legislation, to the extent that they are consistent with the Bill (of
Rights)”.
It is clear, therefore,
that the Constitution acknowledges the originality and
distinctiveness of indigenous law as an independent
source of norms
within the legal system. At the same time the Constitution, while
giving force to indigenous law, makes it clear
that such law is
subject to the Constitution and has to be interpreted in the light of
its values. Furthermore, like the common
law, indigenous law is
subject to any legislation, consistent with the Constitution, that
specifically deals with it. In the result,
indigenous law feeds into,
nourishes, fuses with and becomes part of the amalgam of South
African law.’
[32]
Evidence as to the customary law that applies to the appointment of
headmen in the Cala Reserve was tendered
in the affidavit of
Professor Lungisile Ntsebeza who occupies the NRF Research Chair in
Land Reform and Democracy in South Africa
as well as the AC Jordan
Chair in African Studies at the University of Cape Town and who is
the director of the Centre for African
Studies at the same
university. His expertise, which is unchallenged, stems from his
research, including his doctoral research,
over the last 20 years
into ‘the political implications of Constitutional recognition
of the hereditary institution of traditional
leadership in post-1994
South Africa for the democratisation process in the rural areas of
the former Bantustans’, with a
focus on ‘the sphere of
rural local government in the Xhalanga District’, within which
the Cala Reserve falls.
[33]
Professor Ntsebeza’s evidence is to the following effect. The
districts of Xhalanga and Southeyville
formed what was termed
Emigrant Thembuland (now referred to as Western Thembuland) when
amaThembu people who had moved to the Glen
Grey area in the 1830s
were persuaded by the colonial authorities to move from there in
1865. These districts were allocated to
four chiefs who had agreed to
move from Glen Grey, namely Matanzima, Ndarala, Gecelo and Stokwe.
According to Professor Ntsebeza,
all of these chiefs apart from
Ndarala, had ‘lacked legitimacy and authority at the time for
various reasons and saw the
relocation as an opportunity to
strengthen their chieftaincies’.
[34] In
addition to the amaThembu people who now occupied these districts, a
number of amaMfengu people were also
invited by the four chiefs.
They, unlike the amaThembu, ‘did not have chiefs and owed
allegiance to no chiefs’. Professor
Ntsebeza states that
chieftaincies were ‘imposed upon them – with greater and
lesser success’. Importantly,
he states that the
amaMfengu, ‘together with the so-called “school people”
of the area did not regard chieftaincy
as part of their custom and
even actively undermined the institution’. In this, they were
supported by the local colonial
administrators, with the result that
‘the chieftaincies of Xhalanga and Stokwe’s Southeyville
were far weaker than
in other areas around them’.
[35]
After the Gun War of 1880 to 1881, a select committee of the Cape
Parliament recommended that Gecelo be dispossessed
of his land and
stripped of his title.
[17]
This
ended the chieftaincy in Xhalanga until the 1950s following the
implementation of the Black Authorities Act 68 of 1951, the
National
Party government’s initial building block for grand apartheid
and the homeland system.
[18]
[36]
Professor Ntsebeza describes that resultant system of local
government in the district from the 1890s until
the 1950s as follows:
‘
The
new system of governance that emerged towards the 1890s was one where
a magistrate was directly responsible to the chief magistrate
who was
put in charge of each of the districts. Districts were divided into
“wards” or “locations”. Government
appointed
a headman in each location. The latter was not necessarily from a
chiefly background, and was accountable to the magistrate.
The
headman served as an important link between government and rural
people.’
[37]
The Glen Grey Act of 1894 introduced a system of local district
councils but the establishment of these structures
was resisted in
the Xhalanga district for a number of years. It was only in 1924 that
the Union Government succeeded in imposing
a local district council
on the Xhalanga community.
[38] A
dual system of administration developed. The local district councils
functioned at district level, while
headmen administered at location
level. They were, in effect, the link between magistrates (who then
performed a range of administrative
functions, as well as their
judicial functions) and local communities. They were elected by
members of the community in the Xhalanga
district, including the Cala
Reserve.
[39]
The Black Authorities Act, which made provision for tribal, regional
and territorial authorities, was premised
on administration by
chiefs.
[19]
The
imposition of chiefs in Xhalanga in the late 1950s gave rise to
resistance. The Act was used by KD Matanzima, who later became
the
first prime minister, and later, president, of the Transkei after
so-called self-government and then independence, to entrench
himself
in power in Emigrant Thembuland and to revive the chieftainships of
Gecelo and Stokwe that had been abolished in the late
19th century.
[40]
Even as the authorities sought to impose the Act on the people of
Xhalanga, the latter continued to insist
‘on their democratic
right to elect their leaders, to which they were, by then
accustomed’. Despite this, four tribal
authorities –
kwaGcina, emaQwathini, aHlathini and eQolombeni – were created
in Xhalanga in 1957.
[41] On
12 August 1958, KD Matanzima was to be introduced as paramount chief
of Emigrant Thembuland and Gecelo
and Stokwe were to be introduced as
sub-chiefs to administer Xhalanga. Matters spiralled out of control
when paramount chief Sabata
introduced Matanzima to the gathering,
with extremely strong views being expressed against both Matanzima
and chiefly rule.
[42]
Professor Ntsebeza says of this incident:
‘
There
are various contrasting accounts of what happened that day but that
the meeting was disrupted and that unhappiness with chieftaincy
was
expressed is beyond doubt. The installation only went ahead in the
afternoon and under heavy police guard.’
[43]
Ten men were later charged with contravening a provision of the Black
Administration Act 38 of 1927 on the
basis of their forthright and
colourful utterances that made it clear that they were opposed to
Matanzima and chiefly rule in Xhalanga.
They made these views clear
in their trial as well, contributing, no doubt, to their conviction.
[44] As
a result of resistance such as this, increasingly repressive measures
were used against the people of
Xhalanga and, according to Professor
Ntsebeza, rule by chiefs and headmen ‘became decidedly
authoritarian and despotic’,
with Matanzima going out of his
way to ‘persecute and humiliate the people of Xhalanga’.
[45]
In 1963, the South African Parliament enacted the Transkei
Constitution Act 44 of 1963 which conferred self-governing
status on
the Transkei homeland. It was able to pass legislation in certain,
limited, fields only.
[20]
One
piece of legislation that it passed was the Transkei Authorities Act
4 of 1965, which replaced the Black Authorities Act for
the
Transkei.
[46]
The Transkei Authorities Act’s procedure for the appointment of
headmen was set out in s 41(3) which
provided:
‘
The
appointment of a headman or an acting headman shall be made after
consultation, free of any tribute, fee, reward or present,
with the
paramount chief concerned and with the registered voters of the
particular administrative area at a meeting convened for
this
purpose.’
[47]
Professor Ntsebeza says of the application of this procedure in the
Xhalanga district:
’
56.
In the case of Cala, this clause was interpreted to provide
registered voters with the opportunity to identify candidates of
their choice for election by them. There may well be other parts of
Transkei where a different practice is followed, especially
in places
such as Mpondoland, where headmen were drawn from the relatives of
chiefs. However, the appointment of chiefly relatives
was not the
general practice in Cala. There was one administrative area in
Xhalanga called Mbenge, where consultation of registered
voters did
not take place, but this was under specific and unusual circumstances
that are explained below. The general practice
in Xhalanga, including
Cala, was that registered voters identified and elected candidates.
57 The Transkei
administration may have followed the tradition that had been
established in parts of Transkei. Indeed, the case
Xhalanga shows
that even a dictator and despot such as Chief KD Matanzima failed in
his attempt to change established practices
and tradition, including
the election of headmen.’
[48]
Professor Ntsebeza’s affidavit establishes that the practice in
Xhalanga (with one limited exception
with its own peculiar history)
has been, for more than 100 years, that the community elects its
headmen. He also states that from
his study of rural local government
in Xhalanga, ‘headmanship in Xhalanga changed hands across
various families in the same
administrative area’.
[49]
The facts set out in Professor Ntsebeza’s affidavit establish a
practice of long duration. That practice,
judging from the community
of the Cala Reserve’s response to the retirement of Fani, is
the current practice. It is a reasonable
practice in that it is not
in conflict with legislation or the Constitution. Indeed, it is a
practice that is consonant with the
value of democratic governance,
aimed at the achievement of accountability, responsiveness and
openness, that is one of the Constitution’s
founding
values.
[21]
It
is also consistent with various fundamental rights, such as the right
to dignity,
[22]
the
right to freedom of opinion,
[23]
the
right to freedom of association
[24]
and
the right to make political choices.
[25]
It
is, furthermore, certain in its content. In other words, the practice
of electing headmen in the Xhalanga district is part of
the customary
law of the Xhalanga community.
The issues
[50]
The appellants have taken a number of preliminary, technical, points
which I shall deal with before turning
to the central issue, which
ultimately concerns the interpretation of s 18 of the Governance Act.
The preliminary points
[51]
The first point taken was that the declarator that was issued by
Nhlangulela ADJP was never applied for and
so should not have been
granted. That point was wisely abandoned because paragraph 4 of Part
B of the notice of motion contains
a prayer for a declarator in the
precise terms in which it was granted.
[52] It
was also argued that this was not a proper case for a declarator to
be issued, but no reason was advanced
for this submission except
perhaps that ‘there are other specific statutory remedies in
existence namely section 18 of the
Governance Act’. This refers
to the discretionary power of the Premier to refer a matter to the
Provincial House of Traditional
Leaders for a recommendation where a
person may not have been identified as a candidate for headmanship in
accordance with customary
law. The short answer is that the Premier
did not refer this matter to that House when she had the opportunity.
Later, when the
application to review the decision to recognise
Yolelo was brought, the court below had before it a live, justiciable
dispute as
to what the applicable customary law was. The issue of a
declaratory order was justified to clarify that dispute.
[53]
Reference was also made to
National
Director of Public Prosecutions & another v Mohammed NO &
others
.
[26]
I
do not understand how this case assists the appellants. It concerned
s 172(1)(a) of the Constitution which provides that a court
‘must
declare’ a law inconsistent with the Constitution to be
‘invalid to the extent of the inconsistency’.
Ackermann J
said in this respect:
[27]
‘
The
Constitution thus makes provision in s 172(1)(a) for its own special
form of declaratory order, and allows no room for a declaratory
order
as envisaged by the common law or s 19(1)(a)(iii) of the Supreme
Court Act.’
[54]
This case does not concern s 172 of the Constitution but s 8 of the
Promotion of Administrative Justice Act
3 of 2000 (the PAJA). It
provides for the award of just and equitable remedies in proceedings
for the review of administrative
action and includes an order
‘declaring the rights of the parties in respect of any matter
to which the administrative action
relates’.
[28]
[55] As
for whether the respondents have an existing, future or contingent
right or obligation (for purposes of
s 21(1)(c)
of the
Superior
Courts Act 10 of 2013
), the answer is clearly that they do for the
reasons advanced above as to why the issue of a declaratory order is
appropriate.
In any event, save to say that ‘the present case
was not a proper case and the court
a quo
erred in granting
the declaratory order’, there is no specific attack on the
exercise of the court below’s discretion.
This point
accordingly has no merit.
[56]
Secondly, it was argued that the court below erred in paragraph 2 of
its order by directing the Premier to
refer the matter back to the
royal family. Once the decision to appoint Yolelo was set aside on
account of the applicable customary
law not having been applied, the
only course of action that was available to the Premier (or the MEC
acting in terms of delegated
authority) was to refer the matter back
to the royal family. The order simply gives effect to the inevitable
and, in doing so,
avoids delay in the process of appointing a headman
for the Cala Reserve.
[57]
To the extent that the order amounts to a substitution for purposes
of
s 8(1)(c)(ii)
of the PAJA,
[29]
I
am of the view that exceptional circumstances, as contemplated by the
section, were present. First, the court below was in as
good a
position as the Premier to decide the issue. Secondly, as indicated
above, the course the matter had to take once the decision
had been
set aside was a foregone conclusion. Thirdly, it contributed to
efficient administration in the sense that it avoided
further delay
in the finalisation of a matter of importance for the Cala Reserve
community and the public interest.
[30]
In
any event, I cannot see what practical effect a setting aside of this
order would have if the decision of the court below to
review and set
aside the decision to recognise Yolelo was correct.
[58] It
was argued that the order interfered with the Premier’s
discretion in terms of s 18(4) of the Governance
Act to either refer
the matter to the Provincial House of Traditional Leaders for a
recommendation or refuse to issue a certificate
of recognition. Once
the court below decided and declared what the applicable customary
law was, and that it had not been applied
by the royal family, no
purpose could be served in referring the matter to the Provincial
House of Traditional Leaders for a recommendation
because the process
of identification and recognition had to commence afresh. The Premier
has been ordered to take the only course
of action that is open to
him. There is, accordingly, no merit in this point.
[59]
The third point raised is that the court below’s review and
setting aside of the MEC’s decision
to recognise Yolelo as
headman for the Cala Reserve was not competent as Yolelo’s
recognition had not been gazetted and his
certificate of recognition
had not been issued when the application was launched. In other
words, the argument is that the decision
was not ripe for challenge
because it was not a final decision.
[60] Mr
Mateta, in the answering affidavit, stated that ‘a new headman
has since been recognised and appointed
and has subsequently
appointed his own planning committee’. This appears to be
consistent with the allegation made by Ntamo
in the founding
affidavit, which is not denied by Mateta, that Yolela has ‘already
started operating as if he had been inaugurated
as headman’.
Mateta also admitted that Yolelo had been introduced as the new
headman of the Cala Reserve at the meeting of
27 March 2013. He did
not dispute that Yolelo had accepted the nomination: indeed, Mateta
stated that the sole purpose of the meeting
‘was not to consult
the community about the identification of the headman but rather to
inform and introduce to the community
the new headman after his
identification and recognition aforementioned’. He admitted too
that Yolelo is receiving a salary,
a fact that is borne out by the
rule 53 record.
[61]
Mateta stated that Yolelo’s name will be published in the
Gazette
‘as soon as this Honourable Court which is
seized with the matter makes its ruling’. And later, he stated
that ‘the
certificate of recognition has not been issued as yet
and the name of the new headman has not been published in the
government
gazette’ but that the delay in doing both ‘is
occasioned by the instant proceedings’.
[62]
In
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd
;
Chairman,
State Tender Board v Sneller Digital (Pty) Ltd
&
others
[31]
it
was held that ‘whether an administrative action is ripe for
challenge depends on its impact and not whether the decision-maker
has formalistically notified the affected party of the decision or
even on whether the decision is a preliminary one or the ultimate
decision in a layered process’. It is clear from the
appellants’ own evidence that the decision to recognise Yolelo
has been taken, communicated to both himself and to the people of the
Cala Reserve and that he is performing the functions of a
headman and
being paid by the government to do so. There can be no doubt that the
decision has had an impact – it has had,
in the words of the
PAJA, an adverse effect on rights, in the sense of having the
capacity to affect rights adversely, and a direct,
external legal
effect.
[32]
It
is thus ripe for challenge even if two formalities have not been
complied with yet. Furthermore, because, even in the absence
of the
formalities, it is a final decision, having been made public, the MEC
is
functus
officio
and cannot alter his decision even if he wished to.
[33]
There
is accordingly no merit in this point.
[63]
The fourth point is that the court below erred in reviewing the
decision despite the fact that the respondents
had not exhausted
their internal remedies as required by s 7(2) of the PAJA. This
section provides:
‘
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b) Subject to paragraph
(c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph
(a) has not been exhausted,
direct that the person concerned must first exhaust such remedy
before instituting proceedings in a
court or tribunal for judicial
review in terms of this Act.
(c) A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.’
[64] It
was argued that the internal remedy that had not been exhausted was
the referral of the matter to the
Provincial House of Traditional
Leaders ‘for its recommendation’, in terms of s 18(4)(a)
of the Governance Act. There
is no merit in this point for two
reasons.
[65]
First, it is not a procedure available to the respondents. The
Governance Act grants the Premier the discretion
to refer the matter
to the Provincial House of Traditional Leaders. It is, in other
words, not an avenue for possible redress in
the hands of the
respondents: they are not able to utilise it, even if they wished to.
Secondly, it is not an internal remedy as
envisaged by s 7(2) of the
PAJA – an internal appeal or internal review – but a
process in terms of which the Provincial
House of Traditional Leaders
may make a ‘recommendation’, not a binding decision.
[34]
[66]
The fifth point taken is that the court below erred in holding that
there was no dispute of fact on the papers.
The dispute of fact that
is alleged is that Professor Ntsebeza’s evidence as to the
customary law applicable to the identification
of a new headman is in
conflict with the provisions of s 18 of the Governance Act. This is
not a dispute of fact but a legal point
that turns ultimately on an
interpretation of s 18. This point is also without merit.
The central issues
[67]
Three arguments were advanced on the central issue, which boils down
to what s 18 of the Governance Act means
and how it was applied. They
are interlinked. The first is that the court below erred in finding
that the appellants acted in breach
of s 18. The second is that the
court below erred in not accepting that the royal family took into
account customary law when identifying
Yolelo. The third is that the
court below erred ‘in requiring the appellants to adduce
“evidence of a living customary
practice in support of the
conclusion made in (their) papers that the existing customary
practice in Cala Reserve is that the Royal
Family can identify a
headman outside an election process and without involving members of
the community”’. In addition,
a new argument,
inconsistent with the argument that the royal family did have regard
to the applicable customary law, and with
the papers, was advanced
before us. It was that s 41(3) of the Transkei Authorities Act had
abolished whatever customary law applied
previously to the
identification of headmen in the Transkei region.
[68] In
what follows, I shall first consider the evidential point, then the
new argument and finally the nub of
this appeal, namely the
interpretation of s 18 of the Governance Act and how the royal family
and the MEC applied their minds to
the identification and recognition
of a headman for the Cala Reserve.
[69]
The first point can be disposed of speedily. The only evidence as to
the customary law in the Cala Reserve
concerning the identification
of headmen is that tendered on behalf of the respondents by Professor
Ntsebeza. His evidence stands
unchallenged. It is the only admissible
evidence on the issue. No reason was advanced as to why it ought not
to be accepted.
[70]
If the appellants contended that the customary law was something
other than that stated by Professor Ntsebeza,
they should have
adduced evidence to that effect. They did not. They are in the same
position as any other litigant who does not
challenge evidence
properly adduced by an opposing party. They are not able to rebut it
and are bound by it if it is properly accepted
by the court. They
chose not to adduce this evidence at their peril.
[35]
[71]
Section 41(3) of the Transkei Authorities Act vested the power to
appoint headmen in tribal authorities after
consultation with the
paramount chief concerned and ‘the registered voters of the
particular administrative area at a meeting
convened for the
purpose’.
[72]
Three initial points arise. The first is that the section did not
expressly or impliedly affect any customary
law rules or practices
that may have informed the consultation process. It did not, in other
words, abolish (or to use the word
preferred by Mr Sishuba –
euphemistically, in the context – ‘vary’) any
customary law practices unless,
perhaps, they were inconsistent with
the consultation requirement (which is not the case in this matter).
Instead, I can see no
reason why customary law rules or practices
that give substance to the consultation requirement would not have
continued to exist
and apply.
[73]
Secondly, the implications of this argument are far-reaching: Mr
Sishuba submitted that s 41(3) abolished,
permanently, all customary
law rules in relation to the identification and appointment of
headmen in the entire Transkei region
from the moment the Transkei
Authorities Act came into force. Similar far-reaching effects may
also apply if this argument is correct.
So for instance, the
customary law rules relating to the appointment of chiefs and
paramount chiefs may, on this argument, have
been destroyed in the
same way.
[74]
Thirdly, on Mr Sishuba’s argument, the relevant rules of
customary law have been abolished permanently
and did not come into
effect again after the repeal of the Transkei Authorities Act (by the
Governance Act) and the demise of the
Transkei homeland with the
advent of democratic rule. This makes reference to ‘applicable
customary law’ where it appears
in s 18 of the Governance Act
meaningless. Furthermore, it is a strange outcome given that one of
the purposes of the Governance
Act is to restore ‘the integrity
and legitimacy of the institutions of traditional leadership in
accordance with custom and
customary practice’.
[75]
Professor Ntsebeza has given evidence as to how the relevant
customary law rules of the Xhalanga district,
including the Cala
Reserve, were applied during the currency of the Transkei Authorities
Act. He stated that s 41(3) ‘was
interpreted to provide
registered voters with the opportunity to identify candidates of
their choice by election by them’
and he concluded that ‘the
case of Xhalanga shows that even a dictator and despot such as Chief
KD Matanzima failed in his
attempt to change established practices
and tradition, including the election of headmen’.
[76] I
conclude in respect of this argument that the customary law practice
of electing headmen in Xhalanga, for
purposes of the consultation
process in terms of s 41(3), is not inconsistent with that section,
with the result that the argument
that the section abolishes the
relevant customary law rules is not sound and must be rejected.
Secondly, the evidence establishes
that the practice of electing
headmen – more than 60 years old by the time the Transkei
Authorities Act came into force –
continued without
interruption during the years of homeland rule.
[77] I
turn now to s 18 of the Governance Act and whether the royal family
and the MEC applied their minds to
the identification and appointment
of Yolelo in accordance with the behests of the Governance Act.
[78]
The argument advanced by Mr Sishuba is that while the royal family is
given the power to identify a person
who qualifies to be appointed
with due regard to customary law, it is not a requirement that the
royal family ‘must take
into account the popular views of the
community’ and no ‘community consultation is envisaged by
s 18 of the Governance
Act’. Mr Sishuba conceded that the
effect of this argument was that the people of the Transkei region
enjoyed greater democratic
rights in respect of the identification
and appointment of headmen under homeland rule than they do under a
democratically elected
government.
[79]
Whether he is correct relies on the interpretation of s 18 and its
application to the facts. Section 18(1)
provides that when a headman
is to be appointed the royal family concerned must have ‘due
regard to applicable customary
law’ when it identifies ‘a
person who qualifies in terms of customary law’, having also
considered whether there
are any grounds of disqualification (in
terms of s 6(3)). Having performed this function, the royal family
then has the task of
informing the Premier of the name of the person
so identified, and this is done ‘through the relevant customary
structure’.
When this has been done, the Premier, by notice in
the
Gazette
, must (subject to s 18(5)) recognise ‘the
person so identified by the royal family’ and issue a
certificate of recognition.
[80] In
other words, the way in which a candidate is identified by the royal
family concerned is dependent on
‘the applicable customary law’
and the nominee qualifying for appointment ‘in terms of
customary law’.
That, in turn, makes the applicable customary
law, in each case, a relevant consideration (to put it at its lowest)
and raises
the question of what the customary law is whenever a
particular candidate for appointment as a headman is to be
identified. From
this, it is clear that a royal family’s power
to identify a candidate for headmanship is constrained in at least
two respects:
first, in identifying a candidate, it must ‘have
due regard to the applicable customary law’; and secondly, its
power
of identification is limited to persons who qualify for
appointment ‘in terms of customary law’.
[81]
The practical implementation of s 18 may differ across the province,
from place to place, according to the
customary law that is
applicable in each. That may mean that in identifying candidates for
headmanship, royal families may enjoy
varying degrees of discretion:
how much discretion a royal family will have to identify candidates
will depend on the applicable
customary law and the customary law
requirements for qualification as a headman in each case.
[82]
This interpretation of s 18 is in accordance with the plain meaning
of the words of the section, read in
context. It is, furthermore, an
interpretation that is consistent with, and furthers, s 211 of the
Constitution as well as the
purposes of the Framework Act and
Governance Act. It also advances, rather than retards, the promotion
of democratic governance
and the values of an open and democratic
society by recognising the customary law of local communities in the
identification of
those who will govern them on the local, and most
intimate, level. This, in turn, is a recipe for legitimacy of local
government.
[83]
What this means in the specific case of the Cala Reserve is that the
royal family’s discretion is limited
in the following way. In
identifying a candidate for headmanship, it has to have due regard to
the fact that, in terms of the applicable
customary law, headmen are
elected by the community and do not have to be drawn from any
particular family. Then, it has to consider
who qualifies in terms of
customary law to be identified for appointment. That person is the
person who has been elected by the
community. It is then obliged to
inform the Premier of the particulars of the person so identified and
the reason for his or her
identification – that he or she was
elected by the community in terms of the applicable customary law.
When this has been
done, the Premier (or, as in this case, the MEC
acting in terms of delegated authority) ‘must, subject to
subsection (5),
by notice in the
Gazette
, recognise the person
so identified by the royal family . . .’.
[84]
In my view, the decision of the court below that the MEC’s
decision to recognise Yolelo was invalid
was correct. If the MEC took
a decision to recognise Yolelo despite the fact that someone else
qualified in terms of customary
law, the MEC’s decision was
vitiated by an error of fact.
[36]
If
the MEC took the decision in the belief that the royal family had an
unfettered power to identify a new headman for the Cala
Reserve
(which, given what is said in the answering affidavit and the letter
of 25 November 2013, is more probable), then his decision
is vitiated
by a material error of law.
[37]
In
either event, the decision was correctly set aside by Nhlangulela
ADJP in the court below, and the appeal must fail.
[85]
Before turning to the order that has to be made, it is necessary to
say something of the point made by the
appellants that the community
of the Cala Reserve cannot be expected to be treated differently to
other communities. The provincial
legislature clearly, in my view,
contemplated that the process for the identification of candidates
for headmanship could differ
from community to community. That is why
it opted for the ‘applicable customary law’ as the
touchstone by which candidates
are to be identified. The intention of
the legislature was that the customary practices of each community
would guide each royal
family in the exercise of its powers.
Professor Ntsebeza has made this very point in his affidavit: that
the practice in Mpondoland
is that headmen are drawn from the
‘relatives of chiefs’ and that, for unique historical
reasons, in the Mbenge administrative
area of Xhalanga, headmen are
not elected but appointed from within the royal family. This is
consistent with the very nature of
customary law – that it
‘derives from the practices of particular communities’
and that not only do ‘these
practices differ considerably from
place to place’ but they may also change over time.
[38]
Conclusion and order
[86] I
have found that there is no merit in any of the preliminary points
raised by the appellants. That means,
in particular, that the
application to review the decision of the MEC is not premature and
that the declaratory order was an appropriate
order for the court
below to have made. I have also found that the decision of the MEC to
recognise Yolelo as headman of the Cala
Reserve was tainted by
irregularity and was correctly set aside by the court below. That
being so, the appeal must fail and costs
should follow the result.
Counsel were agreed, and justifiably so, that the successful party on
appeal is entitled to the costs
of two counsel.
[87] I
make the following order.
The appeal is dismissed
with costs, including the costs of two counsel.
C Plasket
Judge of the High
Court
I agree.
JD Pickering
Judge
of the High Court
I agree.
B Sandi
Judge of the High
Court
APPEARANCES
For
the appellants:
MH
Sishuba and SG Poswa
Instructed
by
the
State Attorney,
King
Williams Town
For
the respondents:
M
Bishop and L Siyo
Instructed
by
the
Legal Resources,
Cape
Town and Gordon McCune Attorneys,
King
Williams Town
[1]
Marbury
v Madison
[1803] USSC 16
;
(1803) 1 Cranch 137.
See too Tribe
American
Constitutional Law
(2 ed) at 24-25.
[2]
Mahomed
‘The Independence of the Judiciary’
(1998) 115
SALJ
658
at 660: ‘Some credible body must be vested with the power
to blow the whistle when the constitutional covenant is
transgressed.
Without such power, that covenant has no teeth. The
body armed with that power cannot be the alleged transgressor
itself. It
cannot be the state agency accused of the transgression.
In a credible democracy it can therefore
only
be the judiciary. It, and it alone, must have the final power to
decide whether the impugned enactment or decree of a powerful
legislature, or the action of an equally powerful executive, or
administration, has transgressed the constitutional covenant.’
See too Mahomed ‘The Role of the Judiciary in a Constitutional
State’ (1998) 115
SALJ
111 at 111.
[3]
Minister
of Health & others v Treatment Action Campaign & others (No.
2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC), para 99. See too ss 34 and 172 of the Constitution.
[4]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C.
[5]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA), para 26.
[6]
The
term ‘royal family’ is defined in s 1 of the Governance
Act as ‘the core customary institution or structure
consisting
of immediate relatives of the ruling family within a traditional
community, who have been identified in terms of custom,
and
includes, where applicable, other family members who are close
relatives of the ruling family’.
[7]
This
‘independence’ was not recognised by any country apart
from South Africa, leading Streek and Wicksteed to comment
in
Render
Unto Kaiser: A Transkei Dossier
,
199: ‘If the proof of Transkei’s national independence
is whether or not other independent countries recognise it,
then
Matanzima’s state has been an ignominious failure from the
start. Attempting to gain credence in the capitals of a
disbelieving
world, it has only succeeded in converting stony silence into
derisive laughter.’
[8]
Mabena
v Letsoala
1998 (2) SA 1068
(T), 1075A-B.
[9]
Van
Breda & others v Jacobs & others
1921 AD 330
, 334;
Ex
parte Minister of Native Affairs: In re Yako v Beyi
1948 (1) SA 388
(A), 384-395. See too Bennett
A
Sourcebook of African Customary Law for Southern Africa
,
138.
[10]
Shilubana
& others v Nwamitwa
2009 (2) SA 66 (CC).
[11]
Note
10, para 54.
[12]
Note
9.
[13]
Note
10, para 52.
[14]
Note
10, para 49.
[15]
Bhe
& others v Magistrate, Khayalitsha & others (Commission for
Gender Equality as amicus curiae); Shibi v Sithole &
others;
South African Human Rights Commission & another v President of
the Republic of South Africa & another
[2004] ZACC 17
;
2005 (1) SA 580
(CC), para 41.
[16]
Alexkor
Ltd & another v The Richtersveld Community & others
[2003] ZACC 18
;
2004 (5) SA 460
(CC), para 51. See too
Bhe’s
case (note 15), paras 42-46;
MM
v MN & another
2013 (4) SA 415
(CC), paras 23-25;
Shilubana’s
case (note 10), paras 42-43.
[17]
The
Gun War was a localised rebellion in Basutoland, led by a chief,
aimed at resistance to the attempts by the colonial authorities
to
disarm African people of their firearms. The impact of this and
other similar incidents in other parts of the country was
‘to
make the chiefs suspect in the eyes of the Cape government’.
Laurence
The
Transkei: South Africa’s Politics of Transition
,
18. See too Davenport and Saunders
South
Africa: A Modern History
(5 ed), 160-161.
[18]
See
Carter, Karis and Stultz
South
Africa’s Transkei
,
46. Although this observation is not part of Professor Ntsebeza’s
affidavit, the legal process by which the apartheid
system and the
homelands in particular were created is well known, and that
legislative history is not contentious.
[19]
Horrell
Laws
Affecting Race Relations in South Africa: 1948 to 1976
,
36.
[20]
Horrell
(note 19), 44.
[21]
Constitution,
s 1(d).
[22]
Constitution,
s 10.
[23]
Constitution,
s 15.
[24]
Constitution,
s 18.
[25]
Constitution,
s 19.
[26]
National
Director of Public Prosecutions & another v Mohammed NO &
others
2003 (4) SA 1 (CC).
[27]
Para
56.
[28]
Section
8(1)(d).
[29]
Section
8(1)(c) of the PAJA provides:
‘
The
court or tribunal, in proceedings for judicial review in terms of
section 6(1), may grant any order that is just and equitable,
including orders –
. . .
(c) setting aside the
administrative action and –
(i) remitting the matter
for reconsideration by the administrator, with or without
directions; or
(ii) in exceptional
cases –
(aa) substituting or
varying the administrative action or correcting a defect resulting
from the administrative action.’
[30]
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd & another
[2015] ZACC 22
, para 47;
Tripartite
Steering Committee & another v Minister of Education &
others
ECG 26 June 2015 (case no. 1830/15) unreported, paras 50-52.
[31]
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd: Chairman,
State Tender Board v Sneller Digital (Pty) Ltd &
others
2012 (2) SA 16
(SCA), para 20.
[32]
Greys
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), para 23.
[33]
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye and Laser Institute
2014 (3) SA 219
(SCA), para 15.
[34]
Reed
& others v Master of the High Court of SA & others
[2005] 2 All SA 429
(E), paras 20-25.
[35]
See,
for a similar situation,
Umndeni
(Clan) of Amantungwa & others v MEC, Housing and Traditional
Affairs, KwaZulu-Natal & another
[2011] 2 All SA 548
(SCA), para 21 in which Mpati P held that as the
appellants had not disputed the evidence adduced as to the
applicable customary
law rules of hereditary succession, that
evidence was to be accepted as correct.
[36]
Chairpersons’
Association v Minister of Arts and Culture & others
2007 (5) SA 226
(SCA), para 48;
Chairman,
State Tender Board
(note 31), paras 34-36.
[37]
Hira
& another v Booysen & another
1992 (4) SA 69 (A).
[38]
Bennett
Customary
Law in South Africa
,
44.