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[2012] ZAGPPHC 84
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Sigcau v President of the Republic of South Africa and Others (68501/2010) [2012] ZAGPPHC 84 (12 April 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 68501/2010
DATE:12/04/2012
JUSTICE
M PON DO MBINI
SIGCAU
.........................................................................
Applicant
and
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA
.........................................................................................
First
Respondent
THE
COMMISSION ON TRADITIONAL
LEADERSHIP
DISPUTES AND
CLAIMS
....................................................
Second
Respondent
CHAIRPERSON
OF THE COMMISION ON TRADITIONAL LEADERSHIP
DISPUTES
AND
CLAIMS
................................................................................
Third
Respondent
ZANUZUKO
TYELOVUYO
SIGCAU
.............................................................
Fourth
Respondent
MINISTER
OF LOCAL GOVERNMENT
AND
TRADITIONAL
AFFAIRS
..........................................................................
Fifth
Respondent
PREMIER
: EASTERN CAPE
PROVINCE
......................................................
Sixth
Respondent
NATIONAL
HOUSE OF
TRADITIONAL
LEADERS
..........................................................................
Seventh
Respondent
EASTERN
CAPE HOUSE OF
TRADITIONAL
LEADERS
.............................................................................
Eighth
Respondent
IKUMKANI
AMAMPONDO ASE
NYANDENI
...................................................
Ninth
Respondent
DE
KLERK, AJ
[1]
The applicant launched this review application as a result of
President's Minutes published as no.'s 406 and 407 , respectively,
both on the 3rd November 2010 , by the first respondent , recognizing
the kingship of AmaPondo and recognizing King Zanozuko Tyelovuyo
Sigcau [ the Fourth Respondent ] as its king
1
.
Previously the applicant used to be Paramount Chief of Eastern
Pondoiand , having been nominated by the fourth respondent's
grandfather
, Nelson Sigcau , seconded by one Stanford Sigcau and
having been unanimously accepted as such by the Regional Tribal
Authority
on the 10th December 1978
2
to succeed his father , Botha Sigcau , as Paramount Chief, after the
latter's demise . These minutes followed on President's Minute
No
144
3
,
published in terms of sec 26(3) of Act 41 of
2003
, as amended , on the 7th April 2010 , accepting the recommendations
of the Commission , referred to in paragraph [2] infra
.
[2]
The afore said minutes were published subsequent to the investigation
and decision of a commission , appointed in terms of the
Traditional
Leadership and Governance Framework Act , Act No 41 of 2003 ["the
old act"] , as amended by the Traditional
Leadership and
Governance Framework Amendment Act , Act No 23 of 2009 ["the new
act"] . It should be mentioned already
at this stage that the
old act was amended by the new act, the date of its commencement
being the 25th January 2010 .
[3]
A brief chronology of events relevant to the ultimate decision of the
Commission , conveyed by means of a report
4
to the first respondent on 9 February 2010 , may assist in
understanding the ultimate decision in this judgement:
(a)
Sections 211 and 212 was incorporated in the Constitution of the
Republic of South Africa , 1996 , certified by the Constitutional
Court and provide as follows :
RECOGNITION
211(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.
ROLE
OF TRADITIONAL LEADERS
212(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 .
(b)
As a result of section 212 the Traditional Leadership Framework Act ,
Act No 41 of 2003 ["the old act] , was launched through
Parliament , with date of commencement being 24th September 2004 .
(c)
On the 4th November 2004 and in terms of section 22 of the old act
the second respondent , commonly termed THE NHLAPHO COMMISSION
[
Commission on Traditional Leadership Disputes and Claims ] , was
established , with a two-pronged instruction - firstly to investigate
the legitimacy of the then 12 paramountcies, to ultimately decide how
many of them qualify as kingships and , secondly , to identify
the
kings of each kingship .
Section
22 of the old act provided as follows :
"22.
(1) There is hereby established a comission known as the Commission
on Traditional Leadership Disputes and Claims .
(2)
The commission must carry out its functions in a manner that is fair,
objective and impartial "
The
mandate of the commission was set forth in section 21 of the old act,
providing :
"21.
(1)(a) Whenever a dispute concerning customary law or customs arises
within a traditional community or between traditional
communities or
other customary institutions on a matter arising from the
implementation of this Act , members of such community
and
traditional leaders within the traditional community or customary
institution concerned must seek to resolve the dispute internally
and
in accordance with customs .
(b)
Whenever a dispute envisaged in paragraph (a) relates to a case that
must be investigated by the Commission in terms of section
25(2) ,
the dispute must be referred to the Commission and paragraph (a) does
not apply .
(2)(a)
A dispute referred to in subsection (a) that cannot be resolved as
provided for in that subsection must be referred to the
relevant
provincial house of traditional leaders , which house must seek to
resolve the dispute in accordance with its internal
rules and
procedures.
(b)
If a provincial house of traditional leaders is unable to resolve a
dispute as provided for in paragraph (a) , the dispute must
be
referred to the Premier of the province concerned , who must resolve
the dispute after having consulted -
(i)
the parties to the dispute ; and
(ii)
the provincial house of traditional leaders concerned."
(d)
The commission completed the first part of its task during 2008 and
decided that there are seven kingships , namely :
(i)
AbaThembu ;
(ii)
AmaXhosa;
(iii)
AmaMpondo ;
(iv)
AmaZulu ;
(v)
AmaNdebele of Manala and AmaNdebele as a whole ;
(vi)
Bapedi ba Maroleng
(vii)
VhaVenda Kingship .
(e)
Having completed its primary task , the Commission [second
respondent] then commenced the second leg of their investigation
,
namely to establish who should be recognized as kings in the various
kingships , inter alia also in the kingship of AmaMpondo
(over which
kingship no dispute was mentioned during the second phase of the
second respondent's task [ except that the present
applicant at one
stage during the hearing almost dwelled into facts relevant thereto ,
but was reminded by the chairman that it
was not part of the current
proceedings ] or during the hearing of the review application). It
was not disputed that there .were
various kingships and incumbents
thereof [kings] which were contested country wide , inundating the
second respondent in litigation
.
(f)
The Commission , under chairmanship of its Deputy Chairman ,
Professor Moieleki , the third respondent herein , investigated
the
incumbency of the kingship of AmaMpondo as the result of a claim
thereto by the fourth respondent - the applicant claiming
at the same
time that he was the ukumkani of the AmaMpondo . The record of those
proceedings reveals the following chronology :
(i)
The first cession commenced on the 28th January 2008 and lasted till
the 30th January 2008
5
.
During this cession a number of technical points were raised in
limine , of which some was raised again in the present proceedings
,
being firstly that the matter is res judicata , in that Davies , J.
in the Cape Provincial Division and after that the Appellate
Division
of the Supreme Court of South Africa (in 1944) has already found that
the applicant's father was recognised as Paramount
Chief of the
AmaMpondo aseQuakeni by the then Governor- General and thereafter ,
and that the Commission cannot upset a decision
by the Courts of this
country.
The
second respondent dismissed these points taken by the applicant.
(ii)
At the request of the applicant the matter was postponed to the 31st
March 2008 and its hearing then lasted till 3 April 2008
. During
this cession
6
the fourth respondent stated his case , without calling any witnesses
and closed his case after completing his own testimony .
Thereafter
the applicant started his case by first calling some fairly elderly
witnesses to enable their evidence to be recorded
. The last witness
to testify was the applicant himself. The record reflects his
testimony as Kumkani Sigcau , whereas the evidence
of the fourth
respondent , who conducted his own case (applicant having been
represented by {junior} counsel ) was referred to
as that of Mr
Sigcau . A further cession had to follow , as all evidence had not
yet been placed before the commission .
(iii)
The third and final cession was held on the 2nd to 6th June 2009
7
,
during which cession the fourth defendant applied to re-open his case
and called two witnesses to substantiate his case . Both
parties were
then requested to present any further evidence to support their case
by means of affidavits , including their closing
arguments and they
were put on terms to supply the latter by 16th July 2009 .
The
further evidentiary material and written submissions included the
full record of the proceedings in the Cape Provincial Division
as
well as the report of the Appellate Division's decision in 1944 . It
also includes court papers of other applications which
the parties
considered relevant to the issues , e.g. between the applicant and
the Government of the Transkei as well as proceedings
by Magingqi
Sigcau and other members of the Royal Family of the AmaMpondo
aseQuakeni .
(iv)
It is now accepted that the second respondent arrived at its ultimate
decision on the 21st January 2010 and conveyed its recommendations
to
the first respondent by means of a
122 [hundred and twenty two]
page report
8
on the 9th February 2010.
it
was as a result of the second respondent's report to the first
respondent that Presidential Minute No 144 saw the light on the
7th
April 2010
9
.
[4]
The functions of the second respondent were spelt out in section 25
of the old Act:
"25.(1)
The Commission operates nationally and has authority to decide on any
traditional leadership dispute and claim contemplated
in subsection
(2) and arising in any province .
(2)(a)
The Commission has authority to investigate, either on request or of
its own accord -
(i).......................................
(ii)
a traditional leadership position where the title of the incumbent is
contested;
(iii).....................................
(iv)......................................
(v).........................................
(vi).......................................
(b)................................
(c)................................
0)
..............................
(ii)......................................
(3)(a)
When considering a dispute or claim ,the Commission must consider and
apply customary laws 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 to 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 a kingship;"
[5]
Section 26 of the old Act directed the second respondent as far as
its decisions are concerned :
"26.(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
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
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.
Due
to the continuous reference to sections 9 and 10 , it would be
apposite to have reference thereto :
9.(1)
Whenever the position of a king or queen is to be filled , the
following process must be followed :
(a)
The royal family must, within a reasonable time after the need arise
for the position of a king or queen to be filled , and
with due
regard to applicable customary law -
(i)
identify a person who qualifies in terms of customary law to assume
the position of a king or queen , as the case may be , after
taking
into account whether any of the grounds referred to in section
10(1)(a) , (b) and (d) apply to that person: and
00....................................................
(aa)................................................................
(bb)................................................................
(b)
the'President must, subject to subsection (3) , recognise a person so
identified in terms of paragraph (a)(i) as a king or queen
, taking
into account-
(i)..............................
(ii).............................
(aa)............................
(bb).............................
(cc)............................
(iii)..............................
(2)
The recognition of a person as a king or queen in terms of subsection
(1)(b)
must be done by way of -
(a)
a notice in the Gazette recognising the person identified as king or
queen ; and
(b)
the issuing of a certificate of recognition to the identified person
.
(3)
Where there is evidence or an allegation that the identification of a
person referred
to in subsection (1) was not done in accordance
with customary law , customs or
processes , the President -
(a)
may refer the matter to the National 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 reconsideration
and resolution where the certificate of recognition had been
refused
.
10.(1)
A king or queen may be removed from office on the grounds of-
(a)...............................................
(b)...............................................
(c)
wrongful appointment or recognition ;
or
(d)............................................... "
[6]
Section 23(1) provided that the President must appoint a Commission
of not more than 15 persons as members , who are knowledgeable
regarding customs and the institution of traditional leadership .
[7]
The fourth respondent \o6ge6 his claim to the kingship of AmaMpondo
on 26 April 2007
10
After the Commission completed its preliminary task of identifying
the kingships to be recognised , the Commission commenced with
the
investigation of claims and disputes regarding either the recognition
or not of a kingship and claims to [the incumbency of]
the position
of king . As remarked previously , the Commission recognised seven
kingships and apart from its investigation at that
stage , it was
then and is presently inundated in litigation regarding its various
decisions .
[8]
In terms of section 25(5) the Commission had to complete its mandate
within a perlo6 of five years or within such longer period
as the
President may determine . Pursuant to this provision , the
Commission's lntial term , which would have terminated on 3 November
2009 , was duly extended by the President to 31 January 2010 . As has
been stated before , the Commission made its decision regarding
the
incumbency of the kingship of AmaMpondo or 21 January 2010 and
delivered its report with its recommendations to the President
on '
February 2010 .
It
follows then that the Commission completed its task regarding the
incumbency of tr kingship of AmaMpondo on a date just prior
to the
coming Into effect of the new ac amending the old act on 25 January
2010 , but instead of conveying a decision taken by
its, it
recommended to the President that the fourth respondent be regarded
as the king of the AmaMpondo .
[9]
When this review hearing commenced , counsel for the applicant
outlined the scheme of his argument by referring to no less than
10
points he termed points in limine :
1)
Neither the second , nor the third respondent were entitled to be
before the Court;
2)
The Commission has no legal personality ;
3)
The report brought out by the Commission is of no force or effect as
the Commission ceased to exist before it was handed in on
the 9th
February 2010 , as the new act has come into effect and the "old
Commission's" mandate had lapsed ;
4)
Section 26 of the new act is NOT retrospective in its application -
the Commission should have followed the procedure prescribed
by the
old act;
5)
The locus standi in iudicio of the Commission came under attack , in
that the third respondent had no further interest in the
matter once
its report was filed with the first respondent - the real parties to
be represented before court should have been the
first and the fifth
respondents ;
6)
The fourth respondent has neither opposed , nor is he represented
before the Court;
7)
In view of the decision written by Goldstone J [as he then was] in
GERHARDT vs THE STATE PRESIDENT , 1989 (2) SA 499 (T) , the
third
respondent couid not file an affidavit on their behalf as that would
amount to inadmissible hearsay evidence ;
8)
The first respondent's decision , pronounced on the 5th of November
2010 was null and void , as it was not taken within 60 (sixty)
days (
if the Commission's decision was taken on the 21st January 2010 , the
report should have been handed to the first respondent
on the 4th
February 2010 , but even where it was handed to him 5 days late on
the 9th February 2010 , the date of the 5th November
2010 was way
more than 60 days);
9)
The decision of the first respondent should be reviewed and set aside
as the first respondent failed to act in terms of section
26(3) of
the new act; - and -
10)
Annexure "JMS 2(1)" to the pleadings
11
, the Press Statement dated 29 July 2010 does not amount to a notice
in terms of section 9(2) of the new act:
"(2)
The recognition of a person as a king or a queen in terms of
subsection
(1Kb)
must be done by way of-
(a)
a notice in the Gazette recognising the person identified as king or
queen ; and
(b)
the issuing of a certificate of recognition to the identified
person/'
Thereafter
counsel for the applicant indicated that he would deal with the
merits of the application .
[10]
In support of his first point in limine applicant relied on the
wording of section 28(11) of the new act, which provides :-
"(11)(a)
The Commission established by section 22 as amended by the
Traditional Leadership and Governance Framework Amendment
Act , 2009
(hereinafter referred to as "new Commission") , is the
successor in law of the Commission as it existed immediately
before
that Amendment Act (hereinafter referred to as the "old
Commission).
(b)
All disputes and claims that were before the old Commission are
deemed to have been lodged with the new Commission."
Reference
was made to the fact that the old Commission , appointed by the
President , consisted of not more than 15 members , whereas
the new
Commission , appointed by the Minister , would consist of only 5
(five) members
12
.
According to the argument , the old
Commission
ceased to exist on the 31st January 2010 , the new act having
commenced on 25 January 2010 , introducing the new Commission
and the
old Commission's mandate having only been extended to 31st January
2010 . Therefor the new Commission should be before
Court , not the
Commission lead by the third respondent , whereas the third
respondent's deponent should have been the chairperson
of the new
commission , not Professor Moleleki.
A
new Commission has as yet not been appointed .
Counsel
also referred to the fact that the Commission was not a juristic
person with a continuous existence , but was established
by the old
act and no legal personality was conferred on it by the old act.
The
Court was also referred to Stafford vs The Special Investigation Unit
1999 (2) SA 130 (EC)139 B - D and to paragraphs 169 ,
183 , 186 and
188 of LAWS A , Vol 2 , 2nd Re-Issue p 147 and further , as well as
paragraph 9 at page 545 of the same volume .
It was further pointed
out that only certain sections of the Commissions Act, 1947, referred
to in section 25(6) of the old act
[2 , 3 , 4 , 5 and 6 - dealing
with the securing of witnesses etc.] was made applicable to the
Commission . There was therefore
no vesting or transfer of powers
from the old to the new Commission . The old Commission could thus
not sue or be sued as it lacked
legal personality .
Counsel
appearing for the first , second , third and fifth respondents argued
that the Commission in terms of the old act (and even
in terms of the
new act) is sui generis , as it was neither appointed by the
President, nor in terms of the Commissions Act, 1947
, but in terms
of the Traditional Leadership and Governance Framework Act, 2003 ,
especially if one has regard to the purpose and
preamble of both the
old and the new acts , the relevant parts of which provides :-
"To
provide for the recognition of traditional communities ;...
to
provide a statutory framework for leadership positions within the
institution of traditional leadership , the recognition of
traditional leaders and the removal from office of traditional
leaders ; .... to provide for the functions and roles of traditional
leaders ; to provide for dispute resolution and the establishment of
the Commission on Traditional Leadership Disputes and Claims
;
WHEREAS
the State , in accordance with the Constitution , seeks -
•
to
set out a national framework and norms and standards that will define
the role and place of traditional leadership within the
new system of
democratic governance
•
to
transform the institution in line with constitutional imperatives ;
•
to
restore the integrity and legitimacy of the institution of
traditional leadership in line with customary law and practices ;
AND
WHEREAS......
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 ail spheres of government and organs of state ; and
-
promote a sufficient , effective and fair dispute- resolution system
, and a fair system of administration of justice , as envisaged
in
applicable legislation ."
In
view of the fact that it is the Commission in terms of the old act
whose decision was taken before the expiry of its mandate
and whose
decision is now being taken on review , the correct respondents to be
before Court are in fact the second and third respondents
. Counsel
for the respondents also argued that the Stafford-decision is
distinguishable as the Special Investigation Unit had no
legal
successor.
[13]
As far as the legal personality of the second respondent is concerned
, the applicant argued that the Commission did not have
any legal
personality , as stated in paragraph [10] above and therefore cannot
be sued or sue .
The
simple answer is that the applicant saw fit to take the second
respondent on review and joined it as a party to the proceedings
.
The Commission did not intervene as a respondent to become a party to
the proceedings .
[12]
As to the third point in limine the applicant submitted in essence
that a Commission which has ceased to exist cannot bring
out a
report, notwithstanding that a new act came into operation before the
expiry of the old Commission's extended mandate , as
the new act
created a new Commission .
In
this regard it was argued on behalf of the respondents that it was
not the filing of the report that was the decisive moment,
but the
taking of the Commission's decision , which was done before the
expiry of the term of its mandate and the report was merely
the
writing evidencing and motivating its decision - due to the
commencement of the new act , the '''decision' was converted into
a"recommendation".
[13]
Dealing with the fourth point in limine it was forcefully argued by
the applicant that the new act has no retrospective application
.
Respondents'
counsel argued that there was no need for the new act to apply
retrospectively , as the second respondent completed
its mandate
within its term of existence . The Commission in fact followed the
old act in taking its decision . Only the decision
was not conveyed
to the first respondent as a "decision" , but in the form
of a "recommendation" , for the
first respondent to act
upon.
[14]
As far as the locus standi in iudicio of the second respondent is
concerned (the fifth point in limine) , that has to a large
extend
been dealt with when both counsel were dealing with the first point
in limine , in paragraph [10] above . Applicant argued
that once the
report was brought out , the second respondent had no further
interest in the matter , as the first respondent was
bound to follow
the recommendation of the second respondent , unless the first
respondent acted in terms of the provisions of section
26(4) and
supplied reasons why he did not follow the second respondent's
recommendation . Again , the applicant elected to join
the second
respondent as a respondent.
The
respondents' reply was with reference to JACOBS EN 'N ANDER vs WAKS
EN ANDERE 1992 (1) SA 521 (AD) 534C - D :
"....die
beoordeling van die vraag of 'n litigant se belang by die geding
kwalifiseer as 'n direkte belang , dan wel of dit
te ver verwyder is
, [is] altyd afhankiik van die besondere feite van elke afsonderlike
geval , en geen vaste of algemeen gelclende
reels kan neergele
word vir die beantwoording van die vraag nie.................... "
The
second respondent in fact had a very real and substantial interest in
these proceedings as its whole investigation of the fourth
respondent's claim was at stake .
[15]
The fourth respondent was criticised for not being represented in
Court (the sixth point in limine) , although he was present
in Court
during the review hearing . If one has regard to the fact that he
appeared in person at the Commission's hearings, one
possible reason
why he did not have somebody to represent him , may be financial in
nature , but there may also be other considerations
. He might
perhaps have sufficient confidence in the Commission's investigation
and recommendation . The Court cannot speculate
on the absence of
representation on his behalf , as he was not the only defendant not
represented in Court , seeing that the sixth
to ninth respondents
were also not represented . The sixth respondent decided to abide by
the Court's decision and the others did
not file notices of intention
to oppose . There is nothing in law obliging him to have a
representative and he cannot be forced
to have one .
[16]
The seventh point in limine : the applicant stated that there were
eight prayers in its amended notice of motion which the
first and
fifth respondents had to answer
13
. The applicant argued that he joined them in terms of Rule 10 of the
Uniform Rules of Court in that only the first respondent
[ the fifth
respondent being the responsible Minister ] can answer to those
prayers . Furthermore, the third respondent could not
answer on their
behalf , in view of the decision of Goldstone , J , as he then was,
in GERHARDT vs STATE PRESIDENT AND OTHERS 1989
(2) SA 499 (T) 504E -
G - it would be hearsay evidence and , accordingly , inadmissible .
Counsel for the respondents (first ,
second , third and fifth) , who
all filed a notice of intention to oppose the review application
through the State Attorney nevertheless
could and did argue the
mentioned prayers on the first and fifth respondents' behalf. The
Court acknowledged Goldstone J's approach
.
[17]
The eighth point in limine was that the first respondent's decision
was out of time and therefore null and void . No decision
was
conveyed to him before 31st January 2010 when the second respondent's
mandate terminated through the effluxion of time , and
it couid
therefore not have been validly conveyed on the 9th February 2010 ,
so the argument went . Furthermore , no decision was
taken within 60
days and the 5th November was clearly way out of time .
Counsel
for the first respondent answered this argument with reference to the
terms of section 26(3)of the old act, in which no
time limit was
applicable within which the Commission had to convey its decision to
the President or for the first respondent to
recognise the
recommended king .
[18]
Next it was argued (the ninth point in limine) that the first
respondent's decision should be reviewed and set aside as he
failed
to act in time . As stated in the immediate preceding paragraph [17]
, respondents argued that no time limit was imposed
upon the first
respondent to recognise the recommended king .
[19]
The tenth point in limine that annexure JMS 2(1) was not a notice as
was prescribed by section 9(2) and 26(3) of the [old]
act.
tt
was argued on behalf of the said respondents that sections 26(2)(a)
and (b) are not applicable and that the only analogy to section
9 is
in section 25(3)(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 . However ,
so it was
argued by respondents , that would only happen when the position of a
king or a queen is to be filled .
In
casu there was an incumbent in the position [the applicant] , when
the Commission investigated the fourth respondent's claim
to the
throne of the kingship of the amaMpondo and it was not a question of
a position of a king or a queen to be filled. It was
equally not a
matter of a king or a queen to be removed from office , as envisaged
by section 10(1)(c) .
[20]
With reference to paragraphs 92.5
14
and 92.7
15
the applicant commenced its argument on the merits of the review
application by stating that the second respondent did not heed
the
audi alteram parfem-principle in that the applicant was not given an
opportunity to be heard as to why the fourth respondent
and not he
himself was to be the ubukumkani of the AmaMpondo .
The
answer to this submission by the applicant was that he had every
opportunity to present his case at the hearings of the second
respondent , which he used by calling a number of witnesses on his
behalf before he himself testified at length before the Commission
.
There
is no substance in this argument of the applicant.
[21]
Much emphasis was placed on the hearings in the Cape Provincial
Division before Davis , J [c. 1938] which ultimately ended
up in the
Appellate Division in 1944 . Those decisions concerned litigation
regarding the appointment of the applicant's father
[ Botha Sigcau ]
as Paramount Chief in terms of section 23 of Act 38 of 1927 , the
so-called Black Administration Act .During the
hearing in 1938
another Paramount Chief of the AmaMpondo [Western Pondoiand] , who
wrote a book on Pondo customs and customary
law , also testified to
the effect that allegedly the customs favoured the applicant's father
, whom the applicant succeeded in
1978 .'The Court was invited to
respect those decisions as rendering the matter res judicata , as was
attempted to also persuade
the Commission at its first hearing .
There
does , however, appear an interesting dictum in the judgment of the
late Watermeyer, CJ , at p 78 of the reported decision
:
"There
remain two other points, discussed in the course of the argument,
which must be dealt with.
The
first one arises out of the allegation made in paragraph 6 of the
declaration that the plaintiff was: "in accordance to
Native Law
and Custom... duly recognised as such heir by the people of Pondoiand
East" this allegation was denied in the plea,
but some evidence
was put before the court, on which it might be possible to contend
that meetings of the tribe had been held and
that the majority of
those present favoured the claims of plaintiff. Counsel for the
plaintiff not only drew that conclusion, but
contended that in a
disputed matter, such as this, the customary and proper manner to
settle the dispute was by taking the decision
of a tribal meeting,
and that such a decision was taken in this case which settle the
dispute in plaintiffs favour...
As
matters stand, these questions were not investigated, and no decision
upon them has been given in this action, nor can such a
decision be
given."
16
There
was especially reference to the evidence of Magingqi Sigcau during
the proceedings in the CPD [1938] in that she was not consistent
about her position , when she was very young and recently married to
her husband Mandlonke as his first wife , and later in the
old
Transkei General Division of the then independent homeland's Supreme
Court , when she claimed [in 1983] that she was his Great
Wife [as
opposed to his Right Hand Wife as she testified in 1938].
Respondents
argued that sight should not be lost of her reply under cross
examination in the first mentioned case that these things
were
decided by the men and she doesn't really know the customs
17
.
The focus should rather be on the testimony at the second
respondent's hearings , where the evidence of the respondent , as
well
as that of the applicant's own witnesses tended to favour
Magingqi's assertion that she in all probability was the late
Mandlonke's
Great Wife
18
.
The
respondents [as mentioned before] emphasised that the Court was
requested to review the second respondent's decision to appoint
the
fourth respondent as king of the AmaMpondo - it was not an appeal
against the second respondent's decision . In this regard
the court
was referred to a number of cases , to which can be added FOODCORP
(PTY) LTD vs DEPUTY DIRECTOR GENERAL , DEPARTMENT
OF ENVIRONMENTAL
AFFAIRS AND TOURISM , BRANCH MARINE AND COASTAL MANAGEMENT , AND
OTHERS , 2006 (2) SA 191 (SCA)196F-G/H :
"
The distinction between appeals and reviews must be maintained since
in a review the court is not entitled to reconsider
the matter and
impose its view on the administrative functionary. In exercising its
review 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'........................ PAJA , requires a
simple test , namely whether
the
decision was one that that a reasonable decision-maker could not have
reached or, put slightly differently a decision-maker
could not
reasonably have reached".
On
the concept of "deference" , in particular , the Court was
referred to , inter alia ,the following :
Hoexter
Administrative Law in South Africa , pp 143 and 517
Logbro
Properties CC vs Bedderson NO and Others , 2003 (2) SA 460 (SCA) 471A
-D , paragraphs [21] and [22]
Be!
Porto School Governing Body and Others vsPremier Western Cape and
Another 2002 (3) SA 265 (CC)
Minister
of Environmental Affairs and Tourism and Others vs Phambili Fisheries
(Pty) Ltd ; Minister of Environmental Affairs and
Tourism and Others
vs Bato Star Fishing (Pty) Ltd 2003 (6) SA 406 (SCA) paragraphs [47]
- [53]
Bato
Star Fishing (Pty) Ltd vs Minister of Environmental Affairs and
Tourism and Others 2004 (4) SA 490 (CC) paragraphs [46], [48],
[49],
[50] and [52]
Baxter
Administrative Law pp 712 - 713
Oudekraal
Estates (Pty) Ltd vs City of Cape Town 2004 (6) SA 222 (SCA) ,
paragraph [36]
Chairperson
, Standing Tender Committee and Others vs JFE Sapeia Electronics
(Pty) Ltd and Others 2008 (2) SA 638 (SCA) paragraph
[28]
The
respondents' counsel was firmly of the view that only the old act
applied to the review of the second respondent's decision
of 21s!
January 2010 and dismissed the applicant's submission that section
28(9) of the new act should be applicable to the position
of the
applicant . He also referred to the definition of "king" in
section 1 of the old act , meaning a traditional leader-
(a)
under whose authority , or in whose area of jurisdiction, senior
traditional leaders exercise authority in accordance with customary
law ; and
(b)
recognised as such in terms of this act.
and
also section 1(2) :
Nothing
contained in this Act may be construed as precluding members of a
traditional community from addressing a traditional leader
by the
traditional title accorded to him or her by custom , but such
traditional title does not derogate from , or add anything
to the
status , ro!e and functions of a traditional leader as provided for
in this Act .
Apart
from a definite submission that the old [or new] act is not
unconstitutional , it was also submitted that especially section
8
[of the old act] is in consonance with the Constitution :
"RECOGNITION
OF TRADITIONAL LEADERSHIP POSITIONS
8.
The following leadership positions within the institution of
traditional leadership are recognised :
(a)
Kingship;
(b)
senior traditional leadership ; and
(c)
headmanship."
It
was in fact after the official announcement of the various kingships
and paramountcies that the instant claim was investigated
by the
second respondent.
To
bolster his submissions , counsel for the mentioned respondents
argued that there was no recognition of kingships before the
enactment of the old act and that in terms of section 28(7) of the
old act the Commission had to ( ["must] in terms of section
25(2) ) investigate the position of paramountcies and paramount
chiefs that had been established and recognised , and which were
still in existence and recognised , before the commencement of the
[old] act, before the Commission commences with any other
investigation
in terms of that section .
Counsel
further argued that as the applicant was not a king when the decision
of the Commission was taken (with the support of at
ieast two thirds
of the members of the Commission - section 26(1)) , the provisions of
section 26(2)(a) [ conveyance of its decision
to the President within
two weeks for immediate implementation in accordance with section 9
or 10 ] could not apply and that in
terms of section 26(3) no time
limit was applicable within which the Commission had to convey its
decision to the President.
[22]
One of the Commissioners , Advocate Ndengezi , was suspected and
accused of bias against the applicant , as he was alleged
to have
tried a case in the Supreme Court , but Advocate Ndengezi was a
Magistrate at the time and could not preside in the Supreme
Court .
He was only afterwards admitted as an advocate and has never presided
in the Supreme Court . In this regard the second
respondent was
criticised for not having accepted a letter
19
during the hearings , dealing with this very complaint, the second
respondent considered the content of the letter which was handed
in
by a person who alleged "they" had a "watching brief"
but the instructors identity was never revealed ,
as a result of
which the letter was not admitted . After the second respondent had
already handed in its report on the 9th February
2010 , one M FAKU
made an affidavit , attested on 29th March 2011 , attempting thereby
to put the letter before Court. Respondents'
counsel applied for the
striking out of this material , correctly so . The third respondent
dealt with the request for the recusal
of Advocate Ndengezi in his
answering affidavit
20
and nothing contained in these parts of the pleadings points to
either bias or lack of bona fides .
[23]
Judging the methodology employed by the second respondent
21
, it cannot be found that the functions were not carried out fair ,
objective and impartial , as required by section 22(2) of the
old act
. Reasons were given for its rejection of the points in limine ,
which are reasonable
22
.
The
second respondent had regard to the genealogical history and
customary law of succession of the AmaMpondo . The claim/case of
the
fourth respondent was first considered and thereafter the case of the
applicant
23
.
In
its determination , the issues to be determined by the second
respondent was outlined
24
and thereafter analysed
25
,
where after the evidence was analysed
26
,
to arrive at its conclusion
27
that in terms of customary law and customs of the AmaMpondo and the
"Framework Act" [ Traditional Leadership and Governance
Framework Act ] the fourth respondent is the rightful successor to
the throne of the AmaMpondo . Its final finding being that
28
:
"The
appointment of Botha to the position of Paramount Chief which was
subsequently inherited by the Respondent , Mpondombini
Justice Sigcau
, was irregular and not in accordance with the customary law and
customs of amaMpondo and the Framework Act".
The
applicant can , in any event, not reiy on the provisions of section
28(8)(b) of the new act, that he should be regarded as king
of the
AmaMpondo , even though he was recognised as Paramount Chief of
Eastern Pondoland , as this was made subject to the investigation
and
recommendation of the second respondent.
[24]
It can safely be stated that the methodology applied by the second
respondent in arriving at its conclusion was lawful , reasonable
and
procedurally fair
29
and in accordance with section 33(1) of the Constitution , 1996 , as
well as section 3(1) of the Promotion of Administrative Justice
Act,
Act No 3 of 2000 , as amended ["PAJA"] . In the end the
second respondent provided comprehensive written reasons
for its
conclusion , thereby complying with the dictates of section 33(2) of
the Constitution .
As
PAJA was enacted as a result of section 33 of the Constitution, the
second defendant's conduct of its investigation into the
fourth
respondent's claim and its Determination must satisfy the
requirements of section 3(2) of PAJA . It is clear from the record
of
the proceedings before the second respondent and its Determination
30
that ail the requirements of section 3(2) had in fact been met.
[25]
Despite the allegation of bias (which has been dealt with in
paragraph [22] above) , the following subsections of section 6(2)
of
PAJA cannot find any application in the instant review proceedings :
subsections (a) , (c) , (d) , (e), (f), (i) and (g) .
Sections
6(2)(b), f(ii) and (h) will be dealt with in due course .
[26]
As far as subsection 6(2)(b) is concerned , the relevant facts were
the following :
26.1
The second respondent took its decision in terms of section 26(1) of
the old act on the 21st January 2010 ;
26.2
The date of the commencement of the new act was the 25th January 2010
;
26.3
The second respondent's extended term of authority terminated on the
31st January 2010 ;
26.4
The content of the Determination
31
was conveyed to the first respondent on the 9th February 2010.
It
was argued by the applicant that in terms of section 26(2) of both
the old and the new act that the content of the Determination
had to
be conveyed to the first respondent on or before the 4th February
2010 and , accordingly , the decision was null and void
being
conveyed 5 days later than the peremptory 14 day period . Counsel for
the respondents , on the other hand , argued that section
26(2) was
not applicable and that section 26(3) of the old act had been
complied with .
To
assist the Court to decide whether it was a mandatory and material
procedure or condition prescribed by an empowering provision
which
was not complied with , counsel for respondents advanced an argument
based on the interpretation of the old act
(which
he argued was the only act applicable to the second respondent's
terms of investigation) . Counsel argued thus :
(a)
At the time of the investigation by the second respondent into the
claim of the fourth
respondent
, there was no king of the AmaMpondo . The applicant was the
Paramount Chief of East Pondoland and there was a Paramount
Chief of
Western Pondoland ;
(b)
The second respondent decided that the kingship of the AmaMpondo
should be
recognised
as a single kingship and it was so accepted by the first respondent
and everybody else . including the applicant;
(c)
Due to the fact that there was no king of the AmaMpondo, before the
second
respondent's
investigation of the fourth respondent's claim „ section 9(1)
of the old act could not apply , as there was no
position of a king
as yet to be filled and , accordingly , it was not necessary to
involve the Royal Family , nor was it necessary
to follow the
provisions of section 26(2) .
(d)
There were no time constraints within which to recognise a person as
a king as
envisaged
by section 9(2) .
(e)
Equally , there was no king to be removed from office on the grounds
of wrongful
appointment
or recognition , as envisaged in section 10(1 )(c) - the applicant
was the Paramount Chief and recognised as such in
terms of section
28(1) , subject to a decision by the second respondent in terms of
section 26 .
(f)
The dispute caused by the fourth respondent's claim had to be
referred to the second respondent, in terms of section 21 (1 )(b)
,
to be investigated by the second respondent in terms of section 25(2)
and , accordingly , section 21(1)(a) does not apply and
the dispute
was not to be solved internally .
This
argument is meritorious and indeed correct , as the numbered
subparagraphs of this paragraph ([26]) shows that the decision
in
terms of section 26(1) was indeed taken before the commencement of
the new act , indicating that all of the second respondent's
investigation and deliberation must have been done under and in terms
of the old act. As for the remainder, the interpretation
of the old
act is in terms of its ordinary grammatical meaning
[27]
Counsel for the applicant aiso argued that the second respondent ;s
reasons for disqualifying Paramount Chief Botha Sigcau
in favour of
Chief Nelson Sigcau were inadequate and neither rational , nor
logical , with particular reference to the second respondent's
Determination at Volume 4 , page 766 , paragraph 5.9.12 [ the
reference therein to Eastern Pondoland should be a reference to
Western Pondoland (Nyandeni)], as well as at page 793 , paragraph (c)
, up to the end of paragraph (d) at page 795 .
There
is no substance in this argument , as the second respondent dealt
with Paramount Chief Victor Poto's book
32
, his mediation in the concurrent claims of Botha Sigcau and Nelson
Sigcau after the death of Paramount Chief Mandionke , and his
evidence before the 1938-Commission throughout its Determination
33
.
It is clear that the second respondent's criticism of Chief Victor
Poto's evidence before the 1938-Commission can be regarded
as both
rational and logical , as well as well-founded .
[28]
It is clear from an overview of the whole Record of the second
respondent's investigation into the fourth respondent's claim
34
that the second respondent in its Determination did not fail to take
all relevant evidence into account , as argued by the applicant,
but
that it thoroughly dealt with all the evidence and submissions , both
oral and in writing , presented to it both at the hearings
and
afterwards in writing . Its criticism of the evidence of Paramount
Chief Victor Poto , in particular , was justified , as is
also
evident from the answering affidavit by the third respondent. The
whole "controversy
35
about Magingqi was satisfactorily explained in the third respondents
answering affidavit
36
.
The
applicant's argument , based on the fact that the third respondent
informed the second respondent at a meeting heid on 10 August
2009
that their decision had lapsed as it had not been conveyed to the
first respondent within 14 days
37
, that, therefor, section 26(2) [ of both acts ] applies , resulting
in the second respondent's decision of 21 January 2010 also
being
invalid , as it was conveyed 5 days later than the 14 day-period to
the first respondent , cannot prevail , as it was correctly
argued by
the respondents that only the old act was applicable , that this was
not a case where either section 9 or section 10
was applicable and
that, accordingly , section 26(3) applied , imposing no time limit on
the second respondent to inform the first
respondent of its decision
.
Closing
his argument , the applicant argued that it was irrational of the
first respondent to declare the fourth respondent king
of the
AmaMpondo before the removal of the applicant as such . The
respondents' answer to this was that the applicant was never
regarded
as king of the AmaMpondo - he was only recognised as Paramount Chief
of the AmaMpondo aseQuakeni after the commencement
of the old and new
acts and would only have been recognised as king AFTER the
investigation and decision of the second respondent
- if that
decision were that the applicant be recognised as such . However ,
the investigation and decision of the second respondent
were in the
fourth respondent's favour and the applicant could therefor never
have been regarded as king of the AmaMpondo .
The
approach of the respondents in this regard is the correct approach
and is followed in this judgment.
[29]
In closing the argument on behalf of the first, second , third and
fifth respondents it was submitted that the third respondent
dealt
decisively
38
with the argument regarding the letter
39
submitted to the second respondent during its investigation of the
fourth respondent's claim , calling for the recusal of Advocate
Ndengezi on the ground of his alleged bias against the applicant.
Finally regard should be had to Presidential Minute No 144 ,
dated 07
April 2010 [ within two months after the 9th February 2010 ] in which
is stated4
40
:
"...
in terms of section 26(3) of the Act I accept the recommendations of
the Commission [second respondent]."
Presidential
Minute No 407
41
starts with the same phrase :
"...
in terms of section 26(3) of the [ Traditional Leadership and
Governance Framework]Act, 2003 (Act 41 of2003)
where
after five kings of the recognised kingships [ as recommended by the
second respondent ] were simultaneously recognised in
terms of
section 28(8) and five deemed kings were simultaneously recognised in
terms of section 28(9) [both subsections ] of the
new Act . The
latter recognition would lapse on the death of the incumbent kings ,
in terms of section 28(9)(c) of the new act.
[30]
Lastly the court was reminded by respondents of their application to
strike out
42
the alleged inadmissible evidence of Sabatha Mbalekwa . The reasons
advanced for the striking out of this affidavit are sound ,
especially where the second respondent made a ruling regarding the
attachment to the affidavit (letter referred to in note 39 ,
supra)
already during its investigation of the fourth respondent's claim .
regarding
the attachment to the affidavit (letter referred to in note 39 ,
supra) already during its investigation of the fourth
respondent's
claim .
[31]
As provided for in Rule 53 of the Uniform Rules of Court, the
applicant amended Part B of its Notice of Motion , after having
received the record of the proceedings before the second respondent
43
.
Prayer
1 ( and all its sub-prayers ) deals with the review and setting aside
of the second respondent's "determination or recommendation
dated July 2010" , which clearly is referring to the second
respondent's decision , taken on the 21st January 2010 , and the
Determination handed to the first respondent on the 9th February 2010
.
There
is no substance in any of the sub-prayers of prayer 1 of the Notice
of Motion . It is clear from the Determination
44
,
as dealt with in the course of this judgment, that the criticism as
voiced in the various sub-prayers is without foundation .
The
Determination is well reasoned , fair and unbiased and founded
squarely on the evidence adduced in the fourth respondent's
case and
the applicant's case , as well as written submissions by the
applicant and fourth respondent and such admissible written
material
as had been submitted after the oral hearings .
The
second respondent acted in accordance with its mandate , within the
parameters of the old act and did not contravene any provision
of
PAJA .
Prayer
2 invited the Court to find that section 211 of the Constitution only
empowered the Royal Family or a structure formed according
to custom
, on who new Kings/Queens should be and when an old King/Queen can be
removed . Such an interpretation would be too restrictive
, in view
of section 212 of the Constitution, which provided for the enactment
of legislation to regularise the aspect of kingships
and to establish
who the Kings/Queens should be.
applicant
, without the involvement of the AmaMpondo in any way ] and section
26 [ to the extent that it grants the first respondent
the power to
remove/appoint Kings/Queens ] . It has already been pointed out that
the old act was enacted as a direct result of
the provisions of
sections 211 and 212 of the Constitution4
45
.
It cannot be regarded as unconstitutional as its whole purpose was to
regularise matters and rectify wrongs of the past , as set
out in its
preamble .
As
far as Prayer 5 is concerned , the Court has found that sections 9
and 10 do not find application , as was pointed out in paragraph
[26]
herein before .
Due
to the fact that the applicant was a Paramount Chief and recognised
as such and not as ikumkani, section 10 does not apply and
the
applicant would not be removed as a king , but replaced as
traditional leader by the fourth respondent as King . Prayer 6
therefor falls away . Prayer 8 is for all intents and purposes
similar to prayer 6 and also falls away . The same reasoning also
applies to Prayer 9, seeing that the applicant was never recognised
as King of the AmaMpondo .
[32]
From the conclusion in paragraph [31] above , it is clear that the
applicant could not satisfy the Court on a balance of probabilities
that he is entitled to any of the relief sought in Part B of his
Amended Notice of Motion . That being the position , it follows
that
the order granted by his lordship , Mr Acting Justice Hiemstra ,
which was granted on 8 November 2010 , pending the outcome
of Part B
of this Application , must lapse .
[33]
In the result, the following order is granted :-
33.1
The order granted by his lordship , Mr Acting Justice Hiemstra ,
which was granted on 8 November 2010 , pending the outcome
of Part B
of this Application , lapses .
33.2
The application to strike out the affidavit of Sabatha Mbalekwa is
granted ;
33.3
The applicant's application is dismissed ;
33.4
The applicant is ordered to pay the costs of the first , second ,
third and fifth
respondents
, such costs to include the costs occasioned by the employment of two
counsel .
L
S DE KLERK ACTING JUDGE
NORTH
GAUTENG HIGH COURT
PRETORIA
.
19th
MARCH ,2012.
1
"Pleadings"
, Bundle 6 , pp 537 -9
2
"Record"
, Vol 5, Bundle 9 , pp 862 -3
3
"Pleadings"
, Bundle 6, pp 536
4
"Record"
, Vol4, Bundles 8 & 9, pp 707 - 829
5
Record
, Vol 1, Bundle 1, pp 1 - 63
6
Record
, Vol 2 , Bundle 1 p 64- Bundle 4 p 404
7
Record,
Vol 3 , Bundle 5 p 405 - Bundle 7 p 706
8
Record
, Vol 4 , Bundle 8 p 707 - Bundle 9 p 829
9
"Pleadings"
, Bundle 6, pp 536
10
Record , Vol 5 , Bundle 9 , pp 833 - 842
11
Record , Vol 5 , Bundle 9 , pp 833 - 842
12
Section 23(l)(a) of the new act ["a chairperson and not more
than four persons"]
13
Pleadings,
Bundle 1, pp 67 - 69 , prayers 2 - 9
14
Pleadings,
Bundle 1, p38
15
Pleadings,
Bundle 1, p39
16
Record,
Vol 5, Bundle 13, p.1304.
17
Record
, Vol 5, Bundle 10 , pp925 - 926
18
Record
, Vol2 , Bundle 3 p 290 [Ms Madikizela]; Bundle 4 pp 311-312 , 314 ,
344 [Ms Jam Jam]; Bundle 4 , p 375 [Mr Gideon Sigcau]
; Bundle 7 , p
650 [Mr Ncoyenij; p 669[Ms Magqwaru Sigcau]; Vol , Bundle 14, p 1317
paragraph 7.10 as opposed to p 1313[Answering
Affidavit by all five
respondents in Magingqi's 1983-Application ]
19
Pleadings,Bundle
3 , pp 203-4
20
Pleadings
, Bundle 4 , p 332 , par 133.11 with a curriculum vitae of the
advocate in par 179 at pp 365 - 7
21
Record
, Vol 4, Bundle 8 , pp 712 - 716
22
Record
, Vol 4, Bundle 8, pp716 - 721
23
Record,
Vol 4, Bundle 8, pp 721 - 743 and pp 743 - 783
24
Record
, Vol 4 , Bundle 8 p 783
25
Record
, Vol 4 , Bundle 8 , pp783 - 784
26
Record
, Vol 4, Bundles 8 - 9 , pp 784 - 828
27
Record
, Vol 4 , Bundle 9 , pp 828 - 829
28
Record
, Vol 4, Bundle 9, p 828, paragraph 7.1.2
29
Record
, Vol 4, Bundle 8, pp 712-716
30
Record
, Vol 4, Bundles 8 & 9, pp 707 - 807 and 808 - 828
31
See
note 30 above
32
Record
, Vol 7, Bundle 17 , pp 1653 - 1715 , "Ama-Mpondo ibali ne
Ntalo Ngu Victor Poto Ndamase
33
Record
, Vol 4, Bundle 8 p 725 par 5.1.10 ; p 766 par 5.9.12 ; p 777 par
(d); p 786 par (f); p790 par (iii) - par (cc) at p 792
; p 793 par
(c) - par (d) at p 795; p 797 par (c)(1); Bundle 9 , p 822 par
(k}(i) - (k)(ii) at p 823
34
Record
, Volumes 1-7 , Bundles 1- 18, pp 1-1802
35
Pleadings,
Vol 5, pp 484-5, par (h)
36
Record
, Vol 2 , Bundle 4, p 304 line 5 and Record , Vol 3 , Bundle 5 p 484
, c. lines 11 - 16 , answered in Pleadings , Vol 3,
p 278, par 52
37
Exhibit
"D" , annexure "K" thereto , 2
nd
paragraph on the second page thereof
38
Pleadings,
Bundle 4, pp 312-3 , paragraph 117 . A curriculum vitae of Adv
Ndengezi appears in paragraph 179 at pp 365-6
39
Pleadings
, Bundle 3 , pp 203-4
40
Pleadings,
Bundles, p 536
41
Pleadings,
Bundie 6, p 537-8
42
Pleadings, Bundle 4, pp 364-5 , paragraph 177 (including ail its
subparagraphs
43
Pleadings
, Vol 1, pp 65 - 69
44
Record,
Bundle 4, Volumes 8 and 9, pp 707 - 829
45
Paragraphs
[3](a) & (b), pp3 - 4 , above