Shilubana and Others v Nwamitwa (011/05) [2006] ZASCA 146; 2007 (2) SA 432 (SCA) (1 December 2006)

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[2006] ZASCA 146
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Shilubana and Others v Nwamitwa (011/05) [2006] ZASCA 146; 2007 (2) SA 432 (SCA) (1 December 2006)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
Case number 11/05
Reportable
In the matter between:
TLP NWAMITWA SHILUBANA
FIRST
APPELLANT
WM
MBHALATI
SECOND APPELLANT
DISTRICT CONTROL
OFFICER THIRD APPELLANT
THE PREMIER OF LIMPOPO
PROVINCE FOURTH APPELLANT
MEC
FOR LOCAL GOVERNMENT & HOUSING FIFTH APPELLANT
HOUSE
OF TRADITIONAL LEADERS SIXTH APPELLANT
CS NWAMITWA
SEVENTH APPELLANT
MTN
NWAMITWA EIGHTH APPELLANT
B SHIPALANA NINTH
APPELLANT
E RISABA
TENTH APPELLANT
S NGOBENI ELEVENTH
APPELLANT
and
SIDWELL NWAMITWA
RESPONDENT
CORAM
: FARLAM, MTHIYANE, NUGENT, MLAMBO et MAYA
JJA
HEARD
: 29 AUGUST 2006
DELIVERED
: 1 DECEMBER 2006
SUMMARY:
Customary law –
whether election of first appellant as Hosi constituted an
ad hoc
decision to re-establish family line
ex post facto
not in
accordance with customs and traditions of tribe.
Neutral citation: This
judgment may be referred to as
Nwamitwa Shilubana v Nwamitwa
[2006] SCA 174 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] This is an appeal
from a judgment of Swart J, sitting in the Pretoria High Court, in
terms of which the respondent was declared
to be the heir to the
Valoyi tribe and entitled to succeed his father, the late Hosi
(Chief) Mahlathini Richard Mwamitwa, as Hosi
of the tribe and the
first appellant was declared not to be entitled so to succeed.
[2] It was also declared
that the term of office as Acting Hosi of the second appellant (who
had been appointed Acting Hosi of the
tribe after the death of the
respondent’s father Hosi Richard) expired on 7 January 2002. He was
ordered to cease acting as such
and to hand over the reins, books,
documents and other material relating to his appointment or to the
acting chieftainship of the
tribe to the respondent.
[3] The third appellant,
(the District Control Officer for the Limpopo Province), cited in his
capacity as the liaison officer between
the traditional authorities
and the Limpopo Provincial Government in the Provincial Department of
Local Government and Housing, the
fourth appellant (the Premier of
the Limpopo Province), the fifth appellant (the Member of the
Executive Council for Local Government
and Housing of the Limpopo
Province), cited in his capacity as the member of the Executive
Council responsible for traditional affairs
in the province, and the
sixth appellant (the House for Traditional Leaders for the Limpopo
Province), cited as the Commission responsible
for traditional
affairs in the province, were ordered to withdraw all letters of
appointment of the first appellant as Hosi of the
tribe and to issue
the letters of appointment as Hosi of the tribe to the respondent.
The judgment of the court
a quo
is reported: see
Nwamitwa v
Phillia and Others
2005 (3) SA 536(T).
FACTS
[4] The two contenders
for the chieftainship of the tribe, the first appellant and the
respondent, are cousins. The first appellant’s
father, Hosi Fofoza
Nwamitwa, and the respondent’s father, Hosi Richard Nwamitwa were
brothers. (In what follows I shall refer
to them as ‘Hosi Fofoza’
and ‘Hosi Richard’ respectively.) Before the evidence and
contentions in the court below are summarized
it will be helpful for
the understanding of what follows if I refer briefly to what may be
called the genealogical background to
the case.
[5] It was common cause
in the court
a quo
that for five generations the chieftainship
of the tribe descended patrilineally and according to the system of
male primogeniture.
The first Hosi mentioned in the evidence was Hosi
Nwamitwa, who had four wives. With his first wife he had four
children, two daughters
and two sons. It is not known what became of
the sons. He was succeeded in 1919 by Hosi Mahwahwa Nwamitwa, his
eldest son born from
his second wife. Hosi Mahwahwa had four wives.
Six children were born from his first wife, four daughters, the
first, third, fourth
and sixth children and two sons, the second and
fifth. He was in due course succeeded by his elder son Mahlabezulu
Nwamitwa, the
grandfather of the respondent and the first appellant,
as Hosi in 1922. Hosi Mahlabezulu Nwamitwa also had four wives. With
his first
wife he had four children, two daughters, Rose (the first
born) and Grace (the third born), and two sons, Fofoza (the second
born)
and Richard (the fourth born). On the death of Hosi Mahlabezulu
in 1930, his brother, Rufus Nwamitwa, took over as regent until 1948
when Fofoza came of age and took over the chieftainship. With his
first wife he had a daughter, the first appellant. He had four
daughters with his second wife and no children with his third.
Shortly before his death, when he was ill, his brother, Hosi Richard,
was appointed acting chairman of the Valoyi Tribal Authority. After
Hosi Fofoza died on 24 February 1968, Hosi Richard was appointed
Acting Hosi. Subsequently he was appointed Hosi on 24 October 1968.
He remained Hosi until his death in October 2001, after which
the
second appellant was appointed Acting Hosi. The respondent is Hosi
Richard’s first born son from his first wife.
[6] After the Interim
Constitution came into force in April 1994 certain meetings and
discussions (to which reference will be made
later in this judgment)
took place in which Hosi Richard was involved, relating to the first
appellant’s claim to entitlement to
be the Hosi of the tribe. On
several occasions Hosi Richard indicated that the first appellant was
entitled to the chieftainship
and that he was willing to stand down
and transfer his powers as Hosi to her. She indicated, however, that
she wanted him to continue
until she was ready to take up the
chieftainship: the reason for this request was apparently the fact
that she was not yet ready
to take over as Hosi because she had
recently taken up a position as a member of the National Assembly.
[7] After the death of
Hosi Richard the tribe’s Royal Family, Royal Council and Tribal
Council supported the first appellant’s
claim to be appointed Hosi.
The respondent on the other hand claimed the right to succeed his
father as Hosi. According to a letter
dated 3 July 2002, (one of
those which the third, fourth, fifth and sixth appellants were
ordered by the court
a quo
to withdraw) written by the Senior
Manager, Traditional Affairs of the Provincial Department of Local
Government and Housing, the
Provincial Executive Council took a
decision approving the first appellant’s appointment as Hosi of the
tribe with effect from
22 May 2002. On 16 September 2002 the
respondent brought an application against the appellants for the
relief which was ultimately
granted to him by the court
a quo.
Subsequently the Provincial Department of Local Government and
Housing arranged for the first appellant to be inaugurated as Hosi
at
a ceremony to be held at the Valoyi Traditional Offices on 29
November 2002, but the respondent obtained an order interdicting
the
inauguration.
RESPONDENT’S
FOUNDING AFFIDAVIT
[8] In his founding
affidavit the respondent averred that by Tsonga-Shangaan custom (the
Valoyi tribe belongs to the Tsonga-Shangaan
group) a female successor
cannot become a Hosi. As a result, so he said, his father, Hosi
Richard, had succeeded his uncle, Hosi
Fofoza, on the latter’s
death in 1968. At this stage, he pointed out, the first appellant,
who as I have said was the only child
born of Hosi Fofoza’s first
wife, was already 28 years old. She participated in the nomination
and appointment of Hosi Richard
as Hosi and did not claim at that
stage that she was entitled to succeed her father. He contended
further: ‘as soon as my father
became Hosi, it meant that his
eldest son, was going to succeed him as Hosi’. He also made the
point that ‘if the first [appellant]
did not qualify for the
position of Hosi in 1968 she cannot qualify now.’
After
dealing with the discussions which took place during his father’s
lifetime he stated that his father had written a letter
on 25
February 1999 which reads as follows in the translation placed before
the Court:
‘
Transfer
of chieftainship from chief Richard [Nwamitwa] to Tinyiko Lwandlamuni
Shilubane [the first appellant]. I withdraw.
I
chief Richard [Nwamitwa] (announce that) all the issues we have been
discussing. Concerning chieftainship failed, I withdraw, I
am no
longer interested.
My
letters of chieftainship do not say I am a regent as they alleged, I
disagree.
Yours
Richard [Nwamitwa].’
[9] While this letter is
not as clear as it might be, it is, I believe, a fair inference that
what he was saying was that he withdrew
his previous consent to stand
down as Hosi and to allow his niece, the first appellant, to take his
place. He also rejected any suggestion
that he was merely a regent
and not a Hosi.
[10] In his affidavit the
respondent referred to a meeting held at the Nwamitwa Headkraal to
inform the families of Hosi Fofoza and
Hosi Richard that the first
appellant was the Hosi. After the letter from the Provincial
Government dated 3 July 2002, to which I
have already referred, was
read out, the respondent stood up and said:
‘
I am the Chief of the Valoyi Tribe,
I am the successor to my late father, I don’t know anyone who will
succeed my father except
me.’
FIRST APPELLANT’S
ANSWERING AFFIDAVIT
[11] In
her answering affidavit the first appellant, after taking some
technical points which are no longer relevant, set out what
she
described as the ‘Principles Governing the Appointment of a Chief
in a Tsonga-Shangaan Nation’ as follows:
‘
6.1 With the Tsonga-Shangaan Nation
a hosi is not democratically elected but is born as a hosi.
6.2 The institutions which are
responsible for the appointment of a hosi are:-
6.2.1 the Royal Family which is
composed of all the members of the royal family irrespective of
gender. The members are introduced
into the institution of the Royal
Family gradually as they develop to maturity in age. It is the Royal
Family which, in a meeting
called for that purpose, chooses the hosi
or the acting hosi. It then sends the name of the chosen person to
the Royal Council.
6.2.2 the
Royal Council which is composed of both members of the Royal House
and the senior indunas of the Nation and some chosen
persons in
accordance with their skills needed to advise the hosi or the acting
hosi. The Royal Council receives the name of the
chosen person from
the Royal Family and deliberates on it in a meeting called for that
purpose. If it is not satisfied with the character
of the person
chosen it sends the name back to the Royal Family for
reconsideration. The Royal Family reconsiders the name and may
send
the same name back to the Royal Council or, if there are substantial
reasons, choose another person to be the Chief. The primary
responsibility of choosing the suitable person is the Royal
Family(’s) and at no stage in the history of the Tsonga-Shangaan
nation
has the decision of the Royal Family [been] overruled. Indeed,
the Royal Council can only refer back the name and cannot overrule
the decision of the Royal Family.
6.2.3 the
Tribal Council or Authority which is composed of the representatives
of the Nation in various stages. This institution is
only informed by
the Royal Council of the decision of the Royal Family. It has no
power to overrule the decision nor to refer the
name back for
reconsideration.
6.3 A hosi is born of a candle wife,
i.e a wife married by the nation for the purpose of bearing a hosi.
She forms a Senior House.
A candle wife can only bear one hosi.
6.4 A
hosi is the first-born son or daughter of the Senior House.
6.5 If
no-one can be chosen as a hosi from the Senior House due to various
reasons ranging from incapacity, absence of children, etc,
an acting
hosi is chosen from other houses in accordance with the seniority of
the houses.
6.6 The
acting hosi . . . has, in most cases, a responsibility of bearing a
hosi from a candle wife married by the nation.
6.7 It
must be emphasised that the reason why the acting hosi has to bear
the hosi from a candle wife is that the chieftainship belongs
to the
Senior House and the candle wife is married to the Senior House. She
raises the seed of the last hosi to die without an heir.
6.8 It
is thus after a person has been [borne] by a candle wife and has been
chosen by the Royal Family, recommended to the Royal
Council and made
known to the Tribal Authority that the person’s name is forwarded
to the Third Respondent who must forward it
to the Fourth and Fifth
Respondent[s] for appointment as a chief in terms of section 2(7) of
the Administration Act No. 38 of 1927.
6.9 The
chosen name is sent to the Executive Council for deliberation and for
a decision to appoint the person named: the premier
is member of the
Executive Council.
6.10 The
Executive Council respects the customs of the Tsonga-Shangaan Nation
and if it finds that the customs have been complied
with, makes a
decision to appoint the person recommended.
6.11 The
Premier of the Province i.e, the Fourth Respondent makes the
appointment accordingly.
6.12 The above process obtains also
with the Valoyi Royal Family.
6.13 It
is my case that the Applicant does not qualify to be a hosi for the
following reasons:-
6.12.1 he is not born of the candle
wife;
6.12.2 he
is not born from a Senior House;
6.12.3 he
has not been chosen by the Valoyi Royal Family.’
[12] She denied
specifically that by Tsonga-Shangaan custom a woman could not become
a Hosi. She said that females had been Hosis
‘especially in
Mozambique where the nation originates’. She also stated that ‘with
the Valoyi Royal Family there never existed
a situation wherein there
was no male to ascend the throne but that is a far cry from the
allegation that it is a Tsonga-Shangaan
custom not to have a female
hosi.’
She continued:
Be that as it may, it will be argued
at the hearing that to deny females a right to be
hosis is unfairly discriminatory and
is in contravention of section 9 of the Constitution of the Republic
of South Africa Act No 108
of 1996.
Further, it will be argued that any
custom which is in conflict with the provision(s) of
the Constitution is null and void and
should not be followed.’
[13] Later in her
affidavit she stated that, in accordance with Tsonga-Shangaan custom,
‘as a hosi, I am entitled to marry a candle
wife.’ She said that
the royal family would decide ‘who the seed raiser of my father
Fofoza will be.’
‘
In
other words’, she continued, ‘it will not be my natural child who
will succeed me but a sociological child who will be born
of the
candle wife and a chosen member of the Valoyi Royal Family. A candle
wife has already been married for me during June 2002
and the seed
raiser has already been chosen by the Valoyi Royal Family and is not
the Applicant [the present respondent].’
[14] She denied that Hosi
Richard was lawfully appointed to be a hosi. ‘It was an
administrative mischief’, she said, ‘on the
part of the erstwhile
apartheid government which in some cases disregarded the customs of
the Black nations. In terms of the Tsonga-Shangaan
custom the
[respondent’s] father was supposed to be appointed as an acting
hosi; was regarded as an acting hosi by Valoyi Royal
Family and he,
himself, knew that he was an acting hosi.
It was due to that
knowledge
by the [respondent’s] father and the Valoyi Royal
Family that on 22 December 1996 the Valoyi Royal Family held a
meeting in which
it was resolved,
inter alia,
that I, as the
first born of Hosi Fofoza Nwamitwa, should ascend the throne’. (The
emphasis is mine.)
[15] Further on in her
affidavit she said that ‘the custodians of chieftainship in the
Valoyi Royal Family nation
chose
me to be their hosi.’ (My
emphasis.) She further stated that ‘the matter of choosing the hosi
rested (with) and belonged to the
custodians of chieftainship on the
Valoyi Royal Family’. Referring to Hosi Richard’s ‘withdrawal’
contained in his letter
of 25 February 1999 she denied that his
withdrawal had any effect on the resolutions taken by the Royal
Family. In this regard she
said that he was not ‘the custodian of
chieftainship’ and that ‘only the Valoyi Royal Family could
withdraw.’
[16] She made it clear
that her case was that she had been appointed following the
resolution of the Valoyi Royal Family of 22 December
1996 but that as
she was, as she put it, ‘still new in the National Parliament’
she had requested Hosi Richard ‘to continue
acting as a hosi’
until she was ‘ready to take over as a hosi.’.
REFERENCE FOR ORAL
EVIDENCE AND INTERVENTION BY
AMICUS CURIAE
[17] On
8 April 2003 Motata J postponed the matter
sine die
and
referred it for oral evidence, without, however, formulating the
issues so referred. This was rectified on 4 March 2004 when Webster
J
made an order in the following terms:
‘
That oral evidence be heard to
determine the following questions:-
1.1 whether in terms of the customs
and traditions of the Tsonga-Shangaan tribe, more particularly the
Valoyi tribe, a female can
be appointed as Hosi of the Valoyi tribe?
1.2 Whether
the applicant’s father, the late Mahlathini Richard Nwamitwa, was
appointed as Hosi or acting Hosi since October 1968?
1.3 Whether
when appointing first respondent as a Hosi of the Valoyi tribe the
royal family acted in terms of the customs and traditions
of the
Valoyi tribe i.e. of the Tsonga-Shangaan nation?
1.4 Whether
the decision no 32/2002 by the Executive Council of Limpopo
Provincial Government dated 22 May 2002 appointing first respondent
as chief of the Valoyi tribe, is in accordance with the practices and
customs of the Valoyi Tribe within the meaning of the Constitution
of
the Republic of South Africa Act 108 of 1996?’
[18] On 29 June 2004
Swart J made an order admitting the Commission for Gender Equality to
intervene in the proceedings as
amicus curiae
with the right
to present written submission and oral argument.
JUDGMENT OF COURT
A
QUO
[19] The
court
a quo
gave answers on all four issues referred for trial
in favour of the respondent. In answering the first question Swart J
confined his
answer to the position before the Interim Constitution
came into force in 1994, because the question whether that position
was changed
after 1994 could, he held (at 539J-540A), more
conveniently be considered under the fourth issue referred to oral
evidence.
[20] The first issue, so
qualified, was answered in the negative. This answer was inevitable
in view of the first appellant’s concession
in evidence that before
1994 a female successor could not become a chief. ‘This entails’,
the learned judge said (at 539I-J),
‘that the essence of her case
is not that in terms of the customs and traditions of the
Tsonga-Shangaan and Valoyi tribes a female
can be appointed as Hosi,
but that the position has changed with the advent of the
Constitution.’
The
judge continued (at 540A-B): ‘As far as custom and tradition are
concerned, I think the concession is fair and in accordance
with the
evidence. Mr
Semenya
[who appeared for the appellants] did not
really argue the contrary as far as the successor to the
chieftainship is concerned.’
He added (at 540E-F):
‘
. . . as far as the Valoyis are
concerned there was no evidence of a female appointed as a Hosi, even
if first born.’
[21] The answer given in
respect of the second issue, was that Hosi Richard was appointed as
Hosi and not merely as acting Hosi. Again
the answer was inevitable
as the first appellant eventually, after the contrary position had
been strongly contended for right up
to the pre-trial conference,
conceded that her uncle was appointed Hosi after her father’s
death.
[22] In respect of the
third issue, the court
a quo
found that in appointing the
first appellant as Hosi the Royal Family did not act in terms of the
customs and traditions of the Valoyi
tribe, ie, of the
Tsonga-Shangaan nation.
[23] The factual findings
made by the court
a quo
on this issue have been accepted as
correct by counsel for the appellants. They are set out in the
judgment at 541H to 544E.
[24] In particular
reference was made to meetings which took place over the period from
22 December 1996 to 25 November 2001 and to
the letter dated 25
February 1999 signed by Hosi Richard, which has been quoted in para
[8] above.
[25] The first meeting to
which reference was made took place on 22 December 1996. It was a
meeting of the Royal Family attended by
15 people, including Hosi
Richard, the first appellant and the respondent. Matthews Nwamitwa,
who was a member of the committee which
co-ordinated the activities
of the Royal Council under the leadership of the second appellant,
stated that the first appellant was,
as it was put, ‘the owner of
the chieftainship of the Valoyis’. This was ‘because she [was]
the firstborn of Chief Fofoza Nwamitwa
with his first wife Queen
Favazi’. The Council unanimously accepted this. The reason for this
decision was explained as follows:
‘
though
in the past it was not permissible by the Valoyis that a female child
be heir, in terms of democracy and the new Republic of
South African
Constitution it is now permissible that a female child be heir since
she is also equal to a male child.’
It was also said that
‘the matter of Chieftainship and regency would be conducted
according to the Constitution’.
[26] As I have already
said the first appellant indicated that she wanted Hosi Richard to
continue as Hosi until she was ready to
take up the chieftainship.
[27] The second meeting
referred to by the judge took place on 17 July 1997 when Hosi Richard
in the presence of the local chief magistrate
and 26 other people
acknowledged that the first appellant was the heiress to the Valoyi
chieftainship and said: ‘she must be given
the position.’ On the
same day the Valoyi tribal authority sent a letter to the commission
for tribal leaders stating that the
Royal Family had reached
consensus that the chieftainship should go to ‘its rightful owner’
the first appellant. This letter
was signed by Hosi Richard and the
second appellant.
[28] At the third
meeting, on 5 August 1997, the Royal Council accepted and confirmed
that Hosi Richard agreed to transfer power to
the first appellant and
resolved that he should continue with the chieftainship and his
duties until the first appellant took over.
On the same date in the
presence of Hosi Richard and 20 members of the tribe ‘in
accordance’, as it was put, ‘with the usage
and customs of the
tribe’, it was resolved by the Tribal Authority that the first
appellant be appointed Hosi. Among those who
signed the resolution
were Hosi Richard, the respondent and the first and second
appellants.
[29] Some eighteen months
later, on 25 February 1999, Hosi Richard wrote the letter quoted in
para [8] above.
[30] The fourth meeting
took place on 4 November 2001, that is to say after Hosi Richard’s
death. It was a meeting of the royal
family of Mahwahwa, Mahlabezulu,
Rufus and Jackson Nwamitwa. The judge recorded that it was not clear
whether this was the Royal
Family referred to earlier. The meeting
which was attended by 29 people, confirmed that the first appellant
would take the chieftanship.
[31] The fifth meeting
referred to by the judge took place on 25 November 2001. It was a
meeting of the Royal Family, the Tribal Council,
local government,
civic structure and stakeholders of various organizations, attended
by 89 people. At the meeting the following
resolution was passed:
‘
.
. . the meeting aligns itself with the resolution of the Royal Family
and the Royal Council [that the first appellant is the Hosi]
. . .’
[32] The judge said that
the stated aim of the decision taken by the Royal Family at its
meeting on 22 December 1996 and of the resolutions
adopted at the
other meetings thereafter before Hosi Richard’s death was to
restore the chieftainship to the Fofoza line, which
had failed in
terms of the then prevailing customs and traditions of the tribe in
1968 for lack of legitimate male issue. He held,
however, (at 544
H-I) that ‘custom and tradition made no provision for such action,
particularly by appointing a female. Hosi Richard
was not an acting
Hosi and I have heard no evidence or [seen] in any of the
documentation precedent in custom and tradition for the
transfer of
the chieftainship to someone who does not qualify for it. It ran like
a golden thread through the evidence including
that of the first
[appellant] that a Hosi is born not democratically elected.’
[33] He held that this
question was totally disregarded. He pointed out that the respondent
was not held to be disqualified. ‘[The
first appellant] was simply
elected by the Royal Family.’ He suggested that this was probably
due in part to a misapprehension
at some stage that Hosi Richard was
acting.
[34] He went on to hold
that Hosi Richard’s acquiescence in the appointment of the first
appellant took the case no further because
it had ‘nothing to do
with custom and tradition’. There was no precedent for the transfer
of the throne and in any event he did
not vacate the throne but
remained Hosi until his death.
[35] He also rejected an
argument that the Royal Family, ‘whatever the custom and tradition
had been’, changed or adapted the
custom by appointing the first
appellant. He said the Royal Family’s function was not to elect a
Hosi but to recognise and confirm
one, unless there was not a Hosi or
the candidate was not suitable, in which case it might play a more
direct role but that was not
the case here. By electing the first
appellant as Hosi the Royal Family had gone beyond its functions and
powers. The position might
have been different if the Constitution
had applied in 1968 when Hosi Fofoza died but, he said, ‘the clock
cannot now be turned
back.’
[36] He answered the
fourth question, viz whether the Executive Council’s decision to
appoint the first appellant as Hosi was in
accordance with the
practices and customs of the Valoyi tribe within the meaning of the
Constitution, in the negative.
[37] Counsel for the
appellants had argued on this part of the case that the first
appellant’s right to succeed as Hosi was sought
to be attacked
purely on the ground of her gender and that as the Constitution
upholds the right to equality and prohibits discrimination
on the
ground of gender it followed that the respondent had to fail as he
had failed to show that the customary practice of male
primogeniture
could be regarded as a justifiable limitation of the right to
equality entrenched in section 9 of the Constitution.
The court
a
quo
rejected this submission holding (at 548E-H) that the first
appellant’s right to succeed to the chieftainship was not being
attacked
on the ground of her gender. He stated that he made no
finding that in the Valoyi tribe there could never, when the
Constitution
is taken into account, be a female successor to the
throne. He made it clear that he was not
‘
seeking
to disqualify [the first appellant] on the basis of her gender or the
custom of primogeniture [by which he clearly meant male
primogeniture] but rather on the ground (see the third dispute) that
there is no basis in custom for the Royal Family to re-establish
the
Fofoza line
ex post facto
by assuming a right to elect [the
first appellant] as Hosi, whatever may have been the motivation at
that stage.
That would in my opinion, not be a
proper balancing of the various requirements of the Constitution. I
do not think that the application
of customary law in this sense is
in any way in conflict with the Constitution.’
APPELLANTS’
SUBMISSIONS
[38] Counsel for the
appellants contended in the written heads filed in this court that
the court
a quo
erred in law in finding that the application
of the principle of male primogeniture in determining the
chieftainship of the Valoyi
tribe is consistent with the
Constitution. It was also submitted that the appointment of the first
appellant was in accordance with
the customs of the tribe because the
Royal Family, the Royal Council and the Tribal Council were able, as
it was put, to align custom
with the Constitution, by acting as they
had done in the present case. In this regard they relied,
inter
alia,
on what was said by the Constitutional Court in
Alexkor
Ltd v The Richtersveld Community
[2003] ZACC 18
;
2004 (5) SA 460
(CC) at para
[53]
, which was cited by Ngcobo J in his dissenting judgment in
Bhe
v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus
Curiae)
[2004] ZACC 17
;
2005 (1) SA 580
(CC) at para
[153]
, namely that
indigenous law ‘has evolved and developed to meet the changing
needs of the community’ and that ‘it will continue
to evolve
within the context of its values and norms consistently with the
Constitution.’
[39] Counsel
for the appellants approached this part of the case somewhat
differently when presenting oral argument in this court.
It was
submitted that after 1994 the customs and practices of the Valoyi
tribe had been altered by what were called the instruments
of
authority in the tribe, viz the Hosi, the Royal Family, the Royal
Council and the Tribal Council. What precipitated the change
was the
coming into operation of the Constitution, which was the backdrop
against which discussions took place in the Royal Family,
the Royal
Council and the Tribal Council which led to the decision to change
the custom to do away with discrimination based on gender.
The
resulting new rule was formulated as follows by the appellants’
counsel: nobody will be disqualified from succeeding to the
chieftaincy on the ground of gender. When the question was asked ‘who
inherits under the new rule?’ the answer given was: ‘the
eldest
child (son or daughter) of the late chief.’
[40] Counsel contended
further that there had been a second rule change, in order to appoint
the first appellant. When asked to formulate
the second new rule Mr
Semenya
first said that the second new rule was to the
following effect: the person to ascend the throne would be the most
suitable person
whom the Royal Family proposes and who receives the
endorsement of the Royal Council and thereafter the Tribal Council.
Subsequently
the second rule change contended for was re-formulated
as follows: that the Fofoza lineage would be re-established.
[41] Mr
Semenya
also argued that the court
a quo
erred in
substituting its own finding for that of the Executive Council of the
Limpopo Province and appointing the respondent as Hosi.
He contended
further that the court
a quo
misdirected itself in not finding
that the respondent failed to establish that his purported
appointment was in accordance with the
custom and practices of the
tribe in that he did not prove that his appointment was supported by
the Royal Family or the Royal Council.
SUBMISSIONS BY
AMICUS CURIAE
[42] In
the heads of argument filed on behalf of the
amicus curiae,
the
Commission for Gender Equality, which were drafted by Ms K Pillay, it
was submitted that an analysis of the judgment of the court
a quo
indicated that underlying its reasoning and determination of the
matter was its finding that in terms of the applicable customary
law
a woman could not be appointed as a Hosi. In making this finding, so
it was contended, the court failed to follow the correct
approach to
determining the applicability of a customary law rule which is
self-evidently inconsistent with the Constitution. It
was submitted
further that in identifying the rule at issue the court erred in not
recognizing that the rule had already been adapted
by the community
concerned so as to make it relevant to present times. Finally, it was
argued, even if it is found that the rule
has not been so adopted by
the community concerned, the court erred in not developing the rule
so as to promote the spirit, purport
and objects of the Bill of
Rights.
[43] Counsel who appeared
before us on behalf of the
amicus curiae,
Ms De Vos, argued
that the decisions by the Royal Family, affirmed by the Royal Council
and the Tribal Council (which, she submitted,
brought about a change
in the customary law of the Valoyi tribe) had, as she put it, two
‘legs’. The first amounted to a new
rule to the effect that the
rule regulating succession to the chieftainship should not be based
on male primogeniture. The second
involved a restoration of the
Fofoza line with the concomitant restoration of the surviving child
who would have been the chief but
for the discriminatory principle
which applied in 1968 when Hosi Fofoza died and Hosi Richard was
appointed to succeed him.
RESPONDENT’S
SUBMISSION
[44] Counsel for the
respondent submitted that the court
a quo
was correct both in
fact and in law in respect of all four issues referred to trial.
DISCUSSION
[45] I proceed now to
consider whether the answers the court
a quo
gave to the four
questions arising from the issues referred for trial were correct.
[46] On the first
question it is clear that the court
a quo
correctly held that
certainly up to 1994, when the Interim Constitution came into effect,
a female could not in terms of the customs
and traditions of the
Tsonga-Shangaan tribes, more particularly the Valoyi tribe, be
appointed as Hosi. (The statements to the effect
that a female could
be so appointed contained in the affidavit filed on behalf of the
first appellant were clearly incorrect as she
conceded in oral
evidence at the trial.) Apart from the fact that this was eventually
conceded by the first appellant, this finding
is buttressed by the
important evidence, which the court
a quo
accepted, that at
Hosi Richard’s installation, Rufus Nwamitwa, the uncle of Hosi
Fofoza and Hosi Richard, who had acted as regent
after the death of
his brother Hosi Mahlabezulu until Hosi Fofoza came of age, stood up
before all the Nwamitwas and said that Hosi
Richard was put on the
throne because Hosi Fofoza did not have a male child. Despite the
fact that potential objectors were repeatedly
called for, and the
first appellant was present, no-one came forward to object. Whether
that is still the position under the customs
and traditions of the
tribe is a matter I shall consider later in this judgment.
[47] I think it is also
clear that the court
a quo
correctly held that the contention
that Hosi Richard was merely a regent, acting as Hosi until his
death, was incorrect. Again this
point, despite vigorous denials at
an earlier stage, was conceded by the first appellant. Apart from the
evidence of what happened
at Hosi Richard’s installation, to which
I have already referred, a copy of Hosi Richard’s letter of
appointment signed by the
State President on 24 October 1968 was
placed before the court. As the learned judge commented later in his
judgment, there appears
to have been a misapprehension at an earlier
stage of the dispute, when the decisions of the Royal Family, the
Royal Council and
the Tribal Council were taken, that Hosi Richard
was merely a regent. This may explain, in part at least, the Royal
Family’s decision
to the effect that the first appellant would take
the chieftainship. If there had not been a genuine but mistaken
belief that Hosi
Richard was only the regent, it is difficult to see
why the contention to this effect (which was only abandoned at a
relatively late
stage) was advanced.
[48] In order to answer
the third question, whether the Royal Family acted in terms of the
customs and traditions of the Valoyi tribe,
ie, of the
Tsonga-Shangaan nation, it is necessary, as the court
a quo
did,
to consider the legal effect of the resolutions passed by the Royal
Family on 22 December 1996, the statement made by Hosi Richard
at the
meeting held on 17 July 1997, the letter sent by the tribal authority
to the Commission for Tribal Leaders on the same day
and the
decisions of the Royal Council and the resolution of the Tribal
Authority on 5 August 1997.
[49] I am prepared to
assume (without deciding) for the purposes of this case that the
effect of these resolutions, decisions and
statements was to alter
the customs and traditions of the tribe so as to abolish the
discrimination between males and females in
relation to succession to
the chieftainship. This assumption renders it unnecessary for me to
consider the interesting and difficult
questions regarding the
ascertainment of what has been described, as the ‘living customary
law’ (which were touched on by the
judge in the court
a quo)
and
also the question, which was not considered by the Constitutional
Court in
Bhe v Magistrate, Khayelitsha (Commission for Gender
Equality as Amicus Curiae), supra,
at para [94], as to the
constitutionality of the rule of male primogeniture insofar as it
relates to traditional leaders. I also express
no opinion as to the
correctness of the contention (which, as I see it, is relevant in
regard to the issue left open by the Constitutional
Court) that as a
chief must always be fathered by a chief, a female who marries would
bear children who would not be fathered by
a Valoyi chief and not be
members of the royal family and this would lead to confusion and
uncertainty. Nor do I express an opinion
on the first appellant’s
assertion in reply that this presents no problem because she had
married a candle wife from her mother’s
line, who would in due
course bear a child fathered by a close relative chosen by the royal
family.
[50] In my opinion what
Ms De Vos described as the second ‘leg’ of the resolutions, which
she correctly conceded amounted to an
ad hoc
decision to give
the chieftainship to the first appellant, cannot be regarded as
having been in accordance with the customs and traditions
of the
tribe. As Swart J pointed out a Hosi is born not elected. It was not
suggested that the custom of succession from a deceased
Hosi to his
children falls foul of s 9 of the constitution. The argument was only
that succession that excludes females is unconstitutional.
Therefore
the Royal Family, according to the customs and traditions of the
tribe, had no power to elect a person to the position
of the new
Hosi. In 1968 the Fofoza line failed because Hosi Fofoza did not
leave a legitimate son to succeed him. A decision in
1996 to give the
chieftainship to his eldest daughter because (on the assumptions I
have made) the disqualification which operated
in 1968 has now been
done away with amounts to a decision to elect a Hosi other than the
person entitled to succeed, which is in
conflict with the customs and
traditions of the Valoyi tribe, and ignores the rights of the
respondent. The facts of this case therefore
do not bring us to the
gender equality claim which the first appellant seeks to vindicate.
[51] Even if it were
possible to put the clock back and to undo the effect of a
disqualification which operated because of the customs
of the tribe
at the relevant time (which I do not think can be done), the decision
relied on cannot be regarded simply as a logical
or necessary
consequence of the first ‘leg’ of the resolutions. It will be
remembered that on several occasions in the history
of the tribe the
application of the rule of male primogeniture had disqualified
females from succession to the chieftainship. When
Hosi Mahlabezulu,
the father of Hosi Fofoza and Hosi Richard, died his eldest living
child, Rose, the aunt of the first appellant
and the respondent, was
disqualified by the rule of male primogeniture from succeeding her
father. This further reinforces the view
that the second ‘leg’ of
the resolutions was an
ad hoc
decision which cannot be
regarded as in accordance with the customs and traditions of the
tribe. It follows, in my view, that the
court
a quo
gave the
correct answer to the third question. The fourth question was, in my
opinion, correctly answered by the court
a quo
for the reasons
given by it.
[52] It
remains to consider the contention advanced by counsel for the
appellants that, even if the four questions referred for trial
had to
be answered in favour of the respondent and the respondent was
entitled to the declarations he sought as well as an order
setting
aside the first appellant’s letters of appointment, the court
a
quo
should not have ordered the third, fourth, fifth and sixth
appellants to issue letters of appointment as Hosi of the tribe to
the
respondent.
[53] The matter is
governed by
s 8(a)(c)(ii)
of the
Promotion of Administrative Justice
Act 3 of 2000
, which reads as follows:
‘
(1) The court or tribunal, in
proceedings for judicial review in terms of
sections 6
(1), may grant
any order that is just and equitable, including orders-
.
. . .
(c) setting
aside the administrative action and-
(i) remitting the matter for
reconsideration by the administrator, with or without directions; or
(ii) in exceptional cases-
substituting or varying the
administrative action or correcting a defect resulting from the
administrative action, or
directing the administrator or any
other party to the proceedings to pay compensation.’
[54] I do not think that
this case can be regarded as ‘exceptional’ within the meaning of
the section. Although it has not been
suggested that the respondent
is not a fit person to be appointed Hosi (with the consequence, that
the Royal Family would not be
entitled to refuse to recognize and
confirm him as Hosi) it appears on the evidence that the Royal Family
has at least a formal ceremonial
role to play in the appointment
process. It would, in my view, not be appropriate for the court to
order the appointment of the respondent
without the formal,
ceremonial part of the process having taken place. To that extent the
order given in the court
a quo
must be varied.
[55] I do not think that
the success enjoyed by the appellants in this minor degree is
sufficient to justify any costs order in their
favour.
ORDER
[56] The following order
is made.
Save
that the reference to prayer 4 is deleted from paragraph 3 of the
order made by the court
a quo,
the appeal is dismissed with
costs.
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
MTHIYANE JA
NUGENT JA
MLAMBO JA
MAYA JA