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[2013] ZAECMHC 37
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Matiwane v President of the Republic (2026/2011) [2013] ZAECMHC 37; [2014] 2 All SA 419 (ECM) (12 December 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION :
MTHATHA
CASE
NO. 2062/2011
In
the matter between:
LUZUKO
MATIWANE Applicant
and
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA 1
st
Respondent
MINISTER
OF CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS 2
nd
Respondent
THE
GOVERNMENT OF THE REPUBLIC
OF
SOUTH
AFRICA 3
rd
Respondent
VICKS
VELILE
TONJENI 4
th
Respondent
MASIBULELE
MASETI 5
th
Respondent
COMMISSION
ON TRADITIONAL
LEADERSHIP
DISPUTES AND
CLAIMS 6
th
Respondent
JUDGMENT
GRIFFITHS,
J.:
[1]
The AmaMpondomise are people who reside predominantly in the
districts of Qumbu and Tsolo, Eastern Cape. They previously
resided
in those two districts and in the neighbouring districts of Mount
Frere, Mount Fletcher, Maclear and Elliot, but were displaced
from
the latter four by previous colonial governments. For many years they
have steadfastly maintained and claimed that before
such
dispossession they were a united nation led by a king. This
application has as its underlying purpose the restoration of such
kingship which has been denied them by a series of governments prior
to the advent of democracy.
[2]
The applicant seeks an order in the following terms:
1. Reviewing and
setting aside the decision of the Commission on Traditional
Leadership Disputes and Claims the substance
of which was that
AmaMpondomise never had a kingship and thus refusing to instate or
re-instate it (the kingship).
2. Declaring that
AmaMpondomise did have a Kingship.
3. Instating or
re-instating or restoring the said kingship.
4. Declaring that
the applicant is the person entitled to become king of AmaMpondomise.
5. Costs against
the first and third respondents and against the remaining respondents
only in the event of them opposing
this application.
[3]
There were initially five respondents but, by way of a court order
dated 5 April 2012, the Commission on Traditional Leadership
Disputes
and Claims (“the Commission”) was joined as the sixth
respondent. The first, second, third and sixth respondents
have
opposed the grant of all the orders mentioned earlier, whilst the
fifth respondent has only opposed the grant of prayer four.
In doing
so, he has joined forces with the applicant in the applicant’s
quest for a grant of the orders sought in prayers
one, two and three
but has maintained that he, and not the applicant, should be restored
as king of the AmaMpondomise Nation. The
fourth respondent has not
opposed the application.
[4]
The matter served before me as an opposed motion on 12 June 2013. At
that hearing the applicant was represented by Mr. Mbenenge
SC (with
him Mr Sambudla), the first second third and sixth respondents were
represented by Mr. Arendse SC (with him Mr Matebese)
and the fifth
respondent was represented by Mr. Gabavana. Subsequent thereto, the
Constitutional Court matter of
Sigcau
v President of the RSA and Others
[1]
was handed down. In my view, that case has no relevance to the
present but as a measure of caution, I requested counsel to indicate
their views in this regard. They did so by way of further heads of
argument from which it emerges that they are in agreement with
my
aforementioned view.
[5]
During November 2013 I was furnished with a set of unreported
judgments which had been referred to in the heads of argument
filed
on behalf of the first, second, third and sixth respondents. These
judgments, whilst also dealing with decisions of the Commission,
dealt in the main with individual claims to kingship and, in my view,
have no direct bearing on the present matter.
BACKGROUND
[6]
The institution, status and role of traditional leadership are
recognized in accordance with customary law but subject to the
relevant provisions of the Constitution. In this regard, sections 211
and 212 of the Constitution provide:
“
211
Recognition
(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.
212
Role of traditional leaders
(1)
National legislation may provide for a role for traditional
leadership
as an institution at local level on matters affecting
local communities.
(2)
To deal with matters relating to traditional leadership, the role
of
traditional leaders, customary law and the customs of communities
observing a system of customary law—
(a)
national or provincial legislation may provide for the establishment
of houses of traditional leaders; and
(b)
national legislation may establish a council of traditional leaders.”
[7]
In pursuance of the imperative contained in 212(1) of the
Constitution, the Legislature enacted the Traditional Leadership and
Governance Framework Act
[2]
("the Act"), which provided the necessary framework
envisaged in that subsection. This Act was amended in 2009 by the
Traditional Leadership and Governance Framework Amendment Act
[3]
.
[8]
The Act provided for the recognition of traditional communities,
[4]
the establishment and recognition of traditional councils and
withdrawal of recognition of traditional communities,
[5]
and for the functions of traditional councils.
[6]
It recognised three leadership positions within the institution of
traditional leadership, namely kingship, senior traditional
leadership and headmanship.
[7]
For present purposes only the provisions relating to kingship are of
importance .
[8]
[9]
The recognition and removal of kings and queens under the Act would,
in the normal course, proceed in terms of sections 9 and
10.
Both these sections require the involvement of the royal family
concerned.
[9]
[10]
Disputes concerning leadership positions within the institution of
traditional leadership
[10]
had
to be resolved by the Commission.
[11]
The Commission had the authority to investigate, either on
request or of its own accord, cases of doubt as to whether a
kingship, senior traditional leadership or headmanship was
established in accordance with customary law and customs,
[12]
and where the title or the right of the incumbent to a traditional
leadership position was contested.
[13]
[11]
Section 25(3)(a) and (b) of the Act provided that:
“
(a)
When considering a dispute or claim, the Commission must consider and
apply customary law and
the customs of the relevant traditional
community as they were when the events occurred that
gave rise to the dispute or claim.
(b)
The Commission must—
(i)
in respect of a kingship, be guided by the criteria set out in
section 9(1)(b)
and such other customary norms and criteria
relevant to the establishment of kingship; and
(ii)
in respect of a senior traditional leadership or headmanship, be
guided by the customary
norms and criteria relevant to the
establishment of a senior traditional leadership or
headmanship,
as the case may be.”
[12]
Section 26 regulated the decisions of the sixth respondent, and
provided that:
“
(1)
A decision of the Commission is taken with the support of at least
two thirds of the members of
the Commission.
(2)
A decision of the Commission must, within two weeks of the decision
being taken, be
conveyed to—
(a)
the President for immediate implementation in accordance with section
9 or 10 where
the position of a king or queen is affected by such a
decision; and
(b)
the relevant provincial government and any other relevant functionary
which must immediately
implement the decision of the Commission in
accordance with applicable provincial legislation in so far as the
implementation of
the decision does not relate to the recognition or
removal of a king or queen in terms of section 9 or 10.
(3)
Any decision taken by the Commission must be conveyed to the
President.”
[14]
[13]
One of the changes which the amending Act brought about was to reduce
the powers of the Commission. At the time when the Commission
made
its determination in this matter, it had the power to determine
whether or not a kingship existed and, if it did, to determine
who
should be the incumbent. The amended Act reduced the role of the
Commission to more of an advisory one in terms of which the
Commission advises the President who makes the final determination.
[14]
Section 25(4) of the Act provided that the Commision has the
authority to investigate all Traditional Leadership claims and
disputes dating from 1 September 1927, subject to the provisions of
subsection 2(a)(vi) which provides as follows:
"Where good grounds
exist, any other matters relevant to the matters listed in this
paragraph, including the consideration
of events that may have arisen
before 1 September 1927."
[15]
Prior to embarking upon the claim made by the AmaMpondomise, the
Commission was obliged to investigate the position with regard
to
paramountcies and paramount chiefs that had been established and
recognized and which were still in existence and recognized
before
the commencement of the Act
[15]
.
Apparently the applicant and the AmaMpondomise did not fall under
section 28(7) of the Act as they were not recognised as a
paramountcy.
On 29 to 30 April 2008 the sixth respondent released its
findings on the status of the 12 paramountcies as required by section
28 (7) of the Act.
[16]
The AmaMpondomise lodged a claim for the restoration of the
AmaMpondomise kingship and the applicant's brother, together with
two
other claimants, laid claim to the position of king. The other two
claimants were the fourth and fifth respondents respectively.
Prior
to the hearings of the commission, the applicant was substituted for
his brother upon his brother’s demise.
[17]
After the commission had held three public hearings and completed its
own investigations, it made its determination on 21 January
2010,
which determination was apparently unanimous. This determination,
which was the conclusion of some 34 pages of reasons, read
as
follows:
"8.1.1
In terms of the Framework Act, AmaMpondomise do not have a kingship.
8.1.2
Thus, there is no kingship to be restored.
8.1.3 Therefore claims by
Loyiso Matiwane, Vicks Velile Thonjeni and Masibulele Maseti are
unsuccessful."
[18]
According to the answering affidavit of Moleleki, the Commission was
composed of persons who are practicing lawyers, academics
and
linguists who are knowledgeable experts in matters relating to the
institution of traditional leadership, South African history,
customary law and traditional affairs in general. Its members, who
heard the claim of the AmaMpondomise, were: Moleleki himself,
a
professor of African languages and employed as such in the Department
of African Languages at the University of the Free State;
Mr. A S
Hlebela, a practicing attorney; Ms S R Mdluli a member of the
department of African languages at UNISA; Adv. S D Ndengezi;
Dr. R M
Ndou a retired educationist; Prof. PP Ntuli a sociologist; Adv. S
Poswa-Lerotholi; Adv. Z B Pungula and Ms P P Robinson,
a Magistrate.
[19]
At the time when the Commission was appointed, it was chaired by
Prof. R T Nhlapo and was thus referred to as the "Nhlapo
Commission". Nhlapo resigned during December 2007 and Moleleki
duly took up the position of acting chairperson.
[20]
Initially, there were 12 members of the commission. However, apart
from the resignation of Nhlapo, there were two other resignations,
namely Prof. J B Pieres and Prof. J C Bekker due, apparently, to
pressure of work.
[21]
As will be noted, the Commission accordingly consisted of a number of
eminently qualified persons who were undoubtedly chosen
because of
the expertise which each of them could bring to bear on the
Commission's work.
[22]
It was common cause amongst the parties that the determination by the
Commission amounted to administrative action for the
purposes of the
Promotion of Administrative Justice Act
[16]
("PAJA") and therefore subject to judicial review. As I
have indicated, the Commission consisted of an eminently qualified
panel of experts who, one would assume, would have applied their
considerable expertise to the matter at hand. In these circumstances,
a court would be loath to interfere with such a commission's findings
and should be particularly careful lest it cross the boundary,
as
blurred as it might be, between appeal and review. Indeed, much time
was spent by counsel in arguing this very point.
[23]
On the other hand, courts are not to lose sight of the purpose of
judicial review which, as expressed in section 33 of the
Constitution, is that everyone has the right to administrative action
that is lawful, reasonable and procedurally fair. Where,
in any given
case, a court comes to the conclusion that the administrative action
in question does not pass muster in this regard
it should not refrain
from exercising its duty to correct administrative action which is
unjust. As stated by Harms JA:
“
The
right to just administrative action is derived from the Constitution
and the different review grounds have been codified in
PAJA, much of
which is derived from the common law. Pre-constitutional case law
must now be read in the light of the Constitution
and PAJA. The
distinction between appeals and reviews must be maintained since in a
review a court is not entitled to reconsider
the matter and impose
its view on the administrative functionary. In exercising its review
jurisdiction a court must treat administrative
decisions with
'deference' by taking into account and respecting the division of
powers inherent in the Constitution. This does
not 'imply judicial
timidity or an unreadiness to perform the judicial function'.”
[17]
[24]
Mr. Mbenenge, in arguing that the Commission's findings should be
reviewed and set aside, has levelled a multipronged attack
on the
procedure, and the findings of the Commission. He has submitted,
inter alia:
24.1
That the Commission was not properly chaired at all relevant times;
24.2
That the Commission was not quorate at all relevant times;
24.3
The Commission misconceived the nature of the discretion conferred
upon it resulting in
it taking into account irrelevant considerations
whilst ignoring relevant ones;
24.4
That the decision to refuse recognition of the AmaMpondomise kingship
is not rationally
connected to the purpose, spirit and objectives for
which the Commission was established in that the evidence clearly
showed that
the AmaMpondomise nation had senior traditional leaders
who served under an even more senior traditional leader, i.e. the
King;
24.5
That the decision of the Commission is bad in law and irrational;
24.6
That the Commission failed to apply its mind when taking the decision
and completely ignored
vital information relevant to the decision it
ought to have taken;
24.7
That it failed in its mandate to investigate the claim properly and
readily rejected evidentiary
material in support of the claim;
24.8
That it took a decision that is so unreasonable that no person acting
reasonably would
have taken it;
24.9
That it failed to properly apply the
audi alteram partem
rule.
On
the other hand Mr Arendse submitted that the Commission had conducted
itself within the law, fairly, and that it’s conclusion
was
unassailable.
SUBSTANTIVE
FAIRNESS
[25]
There is much force in the argument presented by Mr. Mbenenge to the
effect that the Commission appears to have overlooked
certain
important information which was readily available, or has, at the
least, failed to conduct sufficient research in order
to ensure that
it had before it all the material relevant to its reaching a just and
proper conclusion. This is particularly so
in view of the fact that,
as is apparent from the record of the proceedings, the applicant
(together with those other respondents
who, as applicants before the
Commission, sided with the applicant in his quest to prove that there
existed an AmaMpondomise kingship)
presented largely oral submissions
based upon historical fact which had been handed down through the
generations. The more objective
material which emanated from sources
outside the AmaMpondomise, such as writings of local magistrates and
missionaries of the time
[18]
,
the report of the Cape Law Commission (of 1893) and material from
other writers such as F Brownlee and Stainier Green, which were
easily obtainable, appears to have been largely overlooked.
[26]
An example of this is the conclusion reached by the Commission that
no evidence existed of any one of the AmaMpondomise traditional
leaders having established a kingship. In the founding affidavit the
applicant referred to various sources which, so he claimed,
confirmed
the fact that the AmaMpondomise were one of the four kingdoms in the
Eastern Cape. Some of the sources referred to were:
"(a) Stavenisse
survivors: During 1688, the Dutch ship Stavenisse was wrecked off the
Transkei coast. The survivors recorded
the names of the nations
through which they passed: “the Semboes (abaMbo), Mapontemousse
(amaMpondomise), the Maponte (amaMpondo),
the Matimbes (abaMthembu),
the Magryghsa (Griquas) and Magosse (amaXhosa). R Vigne, Guillaume
Chenu de Chalezac (Cape Town: Van
Riebeeck Society, 1993,p. 108.)
(b)
Vete, the son of Mizba, recounted to the Cape Native Commission in
1883 as follows: "Four of the chiefs living at the Dedesi
(ancestral River) were Togu, the ancestor of what are now called
Gcakelas, Hala, the ancestor of what are now called the Abatembu,
and
Malangana and Rudula, the fathers of the Amampondomise. The Amampondo
separated from us before this time, and crossed the Umzimvubu
River
lower down that we did
[19]
.
(c) Dennis Pennington of
Flagstaff, a white person who is reported to have been a fluent
isiXhosa speaker, recorded the following
in the
Umthunywa
newspaper of 31 January 1953:….
"He
was blessed with twins, Mpondomise and Mpondo. The two children,
Mpondomise the older one and Mpondo the younger one, grew
up."
[20]
"
[27]
Based on this and other material, the applicant submitted that these
sources prove conclusively that the existence of the AmaMpondomise
nation is as ancient as the various other nations whose kingships
have been recognized, and that the AmaMpondomise have equal status
with the other kingdoms having been one of the four original
traditional communities (nations) who settled in the present day
Transkei region.
[28]
The Commission's response to this was, in effect, to maintain that
these sources do not show that the AmaMpondomise were ever
a
kingship. Nowhere in the answering affidavit does the Commission
state that it took these sources into account, that it analyzed
them
fully and properly and that on a proper understanding of them, it
concluded that such authorities do not establish the existence
of a
kingship.
[29]
A further disturbing aspect is the fact that, as I have alluded to,
Prof. Pieres resigned from the Commission during the course
of its
hearings. The applicant has, as an annexure, put up a letter from
Prof. Pieres dated 20 June 2011 in which he (Prof. Pieres)
stated:
"I am a professional
historian, currently employed by Rhodes University as the head of the
Cory Library, a specialist library
concentrating on the history of
the Eastern Cape. From 1989 to 1994, I was the professor of History
at the University of Transkei
in Mthatha, during which time, I
interviewed the late Chief Isaac Matawani of Sulenkama on the history
of the AmaMpondomise. From
2005 two 2007, I was a member of the
Nhlapo Commission. However I was excluded from the Mpondomise
hearings with my own consent,
due to the fact that I had already
publicly expressed my opinion concerning the restoration of the
Mpondomise kingdom."
[30]
In that letter, and other documentation prepared by Prof. Pieres
which was also annexed to the founding affidavit, he referred
to
various sources in support of his statement that:
"In conclusion, as a
professional historian, I can assert with confidence that the
AmaMpondomise have a kingdom"
[31]
To this, the Commission made the somewhat extraordinary response that
the research document prepared by Prof. Pieres was not
submitted to
the Commission during the hearings. It was clearly thus not taken
into account by the Commission. It seems to me that
the Commission
must have been possessed of the knowledge that Prof. Pieres is an
historian who is clearly well versed in the very
subject matter which
the Commission was mandated to decide. Prof. Pieres was a member of
the Commission and, according to his letter,
left the Commission for
these hearings for the very reason that he had made clear his view
that the AmaMpondomise was a kingdom.
In the circumstances, one would
have thought that the Commission would have turned to him as an
expert in this field and taken
advantage of his knowledge and obvious
expertise. By its own admission it clearly did not.
[32]
However, in the view which I take of this matter, it is not necessary
for me to decide whether or not the failure by the Commission
to take
into account these obvious sources of historical information renders
the Commission’s conclusions so unfair or unreasonable
that
they fall to be set aside on review.
PROCEDURAL
FAIRNESS
[33]
Section 3(2)(a)(ii) of the Promotion of Administrative Justice
Act
[21]
requires an
administrator to ensure that a reasonable opportunity is given to
make representations, within the greater imperative
to ensure
procedural fairness. The extent of this requirement has been the
subject of much judicial debate but it seems to be clear
that whether
or not this requirement has been complied with will depend largely on
the nature of the proceedings. It is also clear
that the
administrator concerned is enjoined to ensure that, in any given
context, such opportunity must be a meaningful one and
that paying
mere lip service to this requirement will not suffice
[22]
.
[34
In a case where the administrator concerned relies on evidence or
information of an expert nature, and particularly where the
conclusion of the administrator is likely to rest squarely on such
information, it seems to me equally important for the administrator
to ensure that a reasonable opportunity is given to the parties
concerned to make representations in response. This is even more
so
where the information so relied upon by the administrator is adverse
to the conclusion sought by that particular party. In the
case of
Heatherdale
Farms (PTY) Ltd. v Deputy Minister of Agriculture and Another
[23]
Colman
J expressed this aspect of the audi alteram partem principle as
follows:
"It is clear on the
authorities that a person who is entitled to the benefit of the audi
alteram partem rule need not be afforded
all the facilities which are
allowed to a litigant in a judicial trial. He need not be given an
oral hearing, or allowed representation
by an attorney or counsel; he
need not be given an opportunity to cross-examine; and he is not
entitled to discovery of documents.
But on the other hand (and for
this no authority is needed) a mere pretence of giving the person
concerned a hearing would clearly
not be a compliance with the Rule.
For (Nor) in my view will it suffice if he is given such a right to
make representations as
in the circumstances does not constitute a
fair and adequate opportunity of meeting the case against him. What
would follow from
the lastmentioned proposition is, firstly, that the
person concerned must be given a reasonable time in which to assemble
the relevant
information and to prepare and put forward his
representations; secondly he must be put in possession of such
information as will
render his right to make representations a real,
and not an illusory one.
As to the provision of
information to the person who is to be heard there is authority. In
Minister of the Interior v Bechler and
Others; Beier v Minister of
the Interior and Others
1948 (3) SA 409
(A) it was indicated
at 451 that what should be disclosed to the person concerned is "the
substance of the prejudicial
allegations against him". But what
is meant by that "substance" appears from other decisions.
In Sachs v Minister
of Justice
1934 AD 11
STRATFORD JA at 38 approved
the approach adopted by TINDALL J (as he then was) in the Court
below. And what TINDALL J had said
was that the person concerned
should have "a fair opportunity of submitting any statements in
his favour and of controverting
any prejudicial allegations made
against him". And in the later Appellate Division case of R v
Ngwevela (supra) CENTLIVRES
CJ again approved that formulation.
A special application of
the general principle, invoked in Lukral Investments (Pty) Ltd v Rent
Control Board, Pretoria, and Others
1969 (1) SA 496
(T), arises in
relation to a fact which is equivocal, in the sense that it tends to
support a certain inference, but may not do
so if it is put in its
proper setting. It was held that there cannot be a fair hearing
unless the person against whom such a fact
is to be used has been
given an opportunity to place the equivocal fact in its setting and
thus show that no inference should be
made from it which is adverse
to his interests.
I do not know of any
authority which discusses the application of the audi alteram partem
rule to a situation where the case against
a person whose interests
are in jeopardy rests wholly or partly upon the opinion of an expert.
It seems to me, however, to flow
necessarily from the relevant
principles that the person concerned:
(a)
should be made aware, not merely of the expert's conclusion, but also
of his reasoning
and of the relevant facts accepted or assumed by
him; and
(b)
should have an opportunity of refuting or correcting the relevant
facts, of putting
forward other relevant facts, and of adducing
contrary expert opinion."
[24]
[35]
In the present matter, the Commission held three separate public
hearings. After the first two of these, the Commission recessed
for
the expressed purpose of doing its own research. According to the
answering affidavit:
"After the first two
hearings the Commission, through its own researchers, collected
information relevant to the claim by amaMpondomise
and prepared
questions which were afforded to the claimants for their attention
and comments."
[36]
The claimants, including the applicant, were required to submit their
answers to these questions and were given an opportunity
to amplify
thereon in a subsequent public hearing. In the applicant’s
supplementary affidavit the point was made that the
Commission only
furnished the applicant with the document embodying these specific
questions but that the materials and information
allegedly accessed
by the Commission subsequent to the initial hearings, was not availed
to him .
[37]
This elicited the following response from the Commission in a
supplementary answering affidavit:
"12.1 The materials
and information that I referred to was a collection of information
that we, as Commissioners, obtained
from a number of sources and
which we used to compile the questions that we directed to the
claimants.
12.2 The information that
was obtained by the Commission to which I referred on 7 and 8
September 2009 was different to that submitted
by the claimants hence
they were given an opportunity through the list of questions and
invitation to make oral representations
to respond thereto.
12.3 The Commission had,
in terms of the Act, wide powers to conduct its affairs and
proceedings provided the claimants were given
a fair opportunity to
present their cases and to respond to whatever information that the
Commission obtained in the course of
its investigation, which is what
the Commission did in this case.
12.4 The fact that the
sources of the information were not disclosed is irrelevant for
review purposes."
[38]
I have read the transcript of the proceedings, inclusive of the final
hearing. For some reason, the record provided by the
Commission does
not include the actual questions posed. However, it becomes patently
clear from the answers given that some of
those questions were
directed at the question of kingship, whereas the remainder were
directed at the issues of the individual
claims to kingship.
[39]
Nowhere in the answering affidavit, or the supplementary answering
affidavit, delivered by the Commission has the Commission
disclosed
precisely what these questions were or, more importantly, the precise
nature of the information which came to light during
the course of
its research. It has, as I have indicated, referred to "
a
collection of information…. obtained from a number of sources
"
and has alleged under oath that such information "
was
different to that submitted by the claimants
". The import of
these statements, as against the background and nature of the
Commission's task, would tend to indicate that
this was vitally
important information upon which the Commission ultimately concluded
that no kingship existed. If this is incorrect,
one finds it somewhat
strange that the Commission did not produce chapter and verse of this
"collection" of information
which would indicate its
precise nature. In this regard, the Commission was specifically
invited by the applicant to provide this
information, which
invitation it refused with the statement that its failure to disclose
the sources of such information "
is irrelevant for review
purposes
".
[40]
In my view this was wholly insufficient to satisfy the requirement
that the applicant be given a reasonable opportunity to
make
representations. On a reading of the transcript it is clear that a
few specific questions were levelled with regard to the
question of
the AmaMpondomise kingship and that such questions clearly did not
convey the import of the "collection"
of adverse
information which the Commission alleges it had gathered. The
applicant ought to have been provided with all the information
which
the Commission had independently gathered, particularly that which
was adverse to his quest for a declaration that a kingship
existed,
in order that he might have been placed in a position to meaningfully
deal therewith. This is particularly so in that
the contextualization
of such information given the nature of the matter could well have
provided a completely different meaning
or slant thereto. This had
the potential to affect Commission's deliberations had it been
availed of such submissions, but it was
not.
[41]
I am accordingly of the view that this failure on the part of the
Commission was procedurally unfair and sufficient to render
the
decision of the Commission subject to being set aside on review.
[42]
As indicated at the outset of this judgment, in the event of my
coming to this conclusion I have been requested to make a
determination that indeed a kingship existed and to determine whether
the applicant or the fifth respondent qualifies for the position
of
King. However, neither Mr. Mbenenge nor Mr. Gabavana argued this
aspect with much force and I am of the view that this is not
a matter
where there is any basis for this court to substitute its decision
for that of the Commission.
[43]
In the result, I make the following orders:
1. The decision of the
Commission on Traditional Leadership Disputes and Claims (the sixth
respondent), the substance of which was
that AmaMpondomise never had
a kingship and thus the refusal to in-state or reinstate such
kingship, is hereby reviewed and set
aside;
2. The first, second,
third and sixth respondents are ordered to pay the costs of this
application, such costs to include the costs
of two counsel where
such were employed.
JUDGE
OF THE HIGH COURT
DELIVERED
ON
:
12 DECEMBER 2013
COUNSEL
FOR APPLICANT
:
Mr Mbenenge SC with
:
Mr Sambudla
INSTRUCTED
BY
: Mvuzo Notyesi Inc.
COUNSEL
FOR
1
ST
, 2
ND
, 3
RD
, 6
TH
RESPONDENTS
: Mr Arendse SC with
:
Mr Matebese
INSTRUCTED
BY
: State Attorney
COUNSEL
FOR 5
TH
RESPONDENT :
Mr Gabavana
INSTRUCTED
BY
: M/s M.A. Mhlutshana
:
Attorneys
[1]
CCT
93/12
[2013] ZACC 18
(13 June 2013)
[2]
No.
41 of 2003.
[3]
No.
23 of 2009.
[4]
Section
2 of the Act.
[5]
Sections
3 and 7.
[6]
Ssections
4 and 5.
[7]
Id
section 8.
[8]
Although
section 8(a) of the Act speaks of “Kingship” only, the
further provisions envision the recognition of both
kings and
queens.
[9]
Sections
9 and 10 of the Act
[10]
For
those not resolved internally within a traditional community or
customary institution: see section 21(1)(a) and (2) of
the Act.
[11]
The
Commission was established under section 22 of the Act.
[12]
Section
25(2)(a)(i) of the Act.
[13]
Section
25(2)(a)(ii) of the Act.
[14]
See
generally in this regard:
Sigcau
v President Of The Republic Of
South
Africa
& Others Case CCT 84/12
[2013]
ZACC 18
[15]
Section
28 (7) of the Act.
[16]
No.
3 of 2000
[17]
Foodcorp
(Pty) Ltd v Deputy Director-General: Department of Environmental
Affairs and Tourism: Branch Marine and Coastal Management
and Others
2006 (2) SA 191
(SCA) at 196E-G; ([2005]
1 All SA 531)
[18]
For
example; "The Reminiscences of Sir Walter Stanford" Van
Riebeeck Press;
Edited
by J.W. Macquarrie
[19]
F
Brownlee,
Transkeian
Native Territories; Historical Records
(Lovedale,
1923), page 111
[20]
As
directly translated from isiXhosa by the applicant.
[21]
No.
3 of 2000
[22]
Sokhela
v MEC for Agriculture and Environmental Affairs (Kwa-Zulu Natal)
2010 (5) SA 574
(KZP) at paragraph 55; Hoexter "Administrative
Law in South Africa" (2
nd
.
Ed.) at page 371 – 372
[23]
1980
(3) SA 476
(T)
[24]
At
486D – G; See further: Baxter "Administrative Law"
(1984) 546; Hoexter (fn 22) 371 – 376; Kadalie v Hunsworth
1928 TPD 495
at 506 – 507; Lawson v Cape Town Municipality
1982 (4) SA (C) at 12 E – F.