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[2012] ZAGPPHC 209
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Bapedi Marote Mamone v Commission on Traditional Leadership Disputes and Claims and Others (40404/2008) [2012] ZAGPPHC 209; [2012] 4 All SA 544 (GNP) (21 September 2012)
REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA /ES
(REPUBLIC OF SOUTH
AFRICA)
CASE
NO: 40404/2008
DATE:21/09/2012
IN
THE MATTER BETWEEN:
BAPEDI
MAROTA
MAMONE
...................................................................................
APPLICANT
AND
THE
COMMISSION ON TRADITIONAL
LEADERSHIP
DISPUTES AND
CLAIMS
..............................................................
1
ST
RESPONDENT
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA
…..............................................................................................
2
nd
RESPONDENT
THE
MINISTER OF PROVINCIAL AFFAIRS
AND
LOCAL
GOVERNMENT
..................................................................................
3
rd
RESPONDENT
MOHLALETSI
TRADITIONAL
AUTHORITY
............................................................
4
th
RESPONDENT
ACTING
KGOSHIKGOLO
KGAGUDI
KENNETH
SEKHUKHUNE
..................................................................
5
th
RESPONDENT
JUDGMENT
MAKGOBA, J
INTRODUCTION
[1]
Over the years the institution of traditional leadership has been
undermined, distorted and eroded. Some of the main causes
of this
distortion are imperialism, colonization and repressive laws of the
past.
Chapter
12 (sections 211 and 212) of the Constitution of the Republic of
South Africa provides for the recognition of the institution
of
traditional leadership, its status and role according to customary
law, subject to democratic principles.
[2]
In order to restore the dignity of this institution, the State
President of the Republic of South Africa appointed a Commission
on
Traditional Leadership Disputes and Claims. This Commission is
mandated to regularise and restore the dignity of the institution
of
traditional leadership. The Commission is established in terms of
section 22(1) of the Traditional Leadership and Governance
Framework
Act, 41 of 2003 ("the Framework Act").
[3]
In terms of section 25(2)(a) of the Framework Act the Commission has
authority to investigate, either on request or of its own
accord,
amongst others, a case where there is doubt as to whether a kingship,
senior traditional leadership or headmanship was
established in
accordance with customary law and customs and also a traditional
leadership position where the title or right of
the incumbent is
contested. Section 28(7) of the Framework Act enjoins the Commission
to investigate, in terms of section 25(2),
the position of
paramouncies and paramount chiefs that had been established and
recognised, and which were still in existence and
recognised, before
the commencement of this Act, before the Commission commences with
any other investigation in terms of section
25(2).
[4]
In the present case the Commission's investigation was to determine
whether the paramouncy of Bapedi was established in accordance
with
customary law and custom. The Commission made a finding that the
institution of kingship of Bapedi resorts under the lineage
of
Sekhukhune Royal House and not Mampuru/Mamone Royal House.
It
is this finding of the Commission that triggered the present
application before this Court.
THE
APPLICATION
[5]
The applicant brought an application against the respondents seeking
an order in the following terms:
5.1
That the decision of the first respondent to the effect that the
kingship of Bapedi resorts under the lineage of Sekhukhune
Royal
House, be reviewed and set aside;
5.2
The investigation and report of the first respondent concerning the
kingdom of Bapedi be referred back to the first respondent
for
reconsideration;
alternatively
5.3
That this Court should declare that the kingdom of Bapedi resorts in
the lineage of Bapedi Marota Mamone Royal House;
5.4
Directing the second and third respondents to refrain from
recognising any appointment regarding the kingship of Bapedi pending
full prosecution (including any possible appeal) of these review
proceedings.
[6]
The applicant has since brought an amendment to its prayers in the
notice of motion to read, in addition to the relief sought
above, the
following:
"That
His Majesty King Mampuru Mampuru be declared the King of Bapedi -
Lekwebepe Kingdom (formerly known as Transvaal) for
all intents and
purposes."
[7]
There were initially four respondents in these proceedings. The fifth
respondent has since been joined as such. The first, fourth
and fifth
respondent oppose this application. The second and third respondents
do not oppose the application, they apparently abide
the decision of
the Court.
[8]
In a nutshell the purpose of this application is to seek an order
reviewing and setting aside the decision of the Commission
on
Traditional Leadership Disputes and Claims to the effect that the
institution of the Kingship of Bapedi resorts under the lineage
of
the Sekhukhune Royal House to the exclusion of Mampuru/Mamone Royal
House.
GROUNDS
FOR REVIEW
[9]
The application is brought in terms of the provisions of section 6 of
the Promotion of Administrative Justice Act no 3 of 2000
("PAJA").
The declaratory order referred to in 5.3 above is sought in terms of
section 8(1 )(c) of the Act.
The
Commission is an organ of State as defined in section 239 of the
Constitution in that in conducting its investigation and taking
decisions, it is exercising a public power and performing a public
function in terms of the Framework Act. Its decisions are therefore
reviewable and this Court has jurisdiction to do so.
[10]
The relevant provisions of section 6 of PAJA are set out hereunder.
"6. Judicial review of administrative action
(1)
Any person may institute proceedings in a Court or a tribunal for the
judicial review of an administrative action.
(2)
A Court or tribunal has the power to judicially review an
administrative action if—
(a)
the administrator who took it -
(i)
was not authorised to do so by the empowering provision;
(ii)
acted under a delegation of power which was not authorised by the
empowering provision; or
(iii)
was biased or reasonably suspected of bias;
(b)
a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the action was procedurally unfair;
(d)
the action was materially influenced by an error of law;
(e)
the action was taken —
(i)
for a reason not authorised by the empowering provision;
(ii)
for an ulterior purpose or motive;
(iii)
because irrelevant considerations were taken into account or
relevant considerations were not considered;
(iv)
because of the unauthorised or unwarranted dictates of another person
or body;
(v)
in bad faith; or
(vi)
arbitrarily or capriciously;
(f) the action itself-
(I)
contravenes a law or is not authorised
by the empowering
provision; or
(ii)
is
not rationally connected to -
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision; (cc)
the information
before the administrator;
or (dd)
the reasons given for it by
the administrator
."
(My
underlining.)
[11]
There are basically two grounds upon which this application is
brought.
First
,
the applicant contends that the decision of the first respondent
falls to be reviewed and set aside on the basis that in deciding
the
question as to where the lineage in which the Bapedi kingship
resorts, the first respondent ignored relevant facts and evidence
placed before it or to which it had access - section 6(2)(e)(iii). In
the case of Pepcor Retirement Fund and Another v Financial
Services
Board and Another 2003(6) SA 38 (SCA) at 58H-59A Cloete JA noted that
"If
legislation has empowered a functionary to make a decision, in the
public interest, the decision should be made on material
facts which
should have been available for the decision properly to be made. And
if a decision has been made in ignorance of facts
material to the
decision and which therefore should have been before the functionary,
the decision should (subject to what is said
in paragraph [10] above)
be reviewable at the suit of inter alia, the functionary who made it
- even although the functionary may
have been guilty of negligence
and even where a person who is not guilty of fraudulent conduct has
benefited by the decision,"
[12]
Secondly
, that the first respondent's decision in that regard
was neither rationally connected to the information placed before it
nor the
reasons given by it for the decision - section
6(2)(f)(ii)(cc) and (dd). In Trinity Broadcasting (Ciskei) v
Independent Communication
Authority of South Africa 2004(3) SA 346
(SCA) at 354H-355A the Court set out the test for rationality for the
purpose of section
6(2)(f)(ii) of PAJA as follows:
"In
the application of that test, the reviewing Court will ask: Is there
a rational objective basis justifying the connection
made by the
administrative decision-maker between the material made available and
the conclusion arrived at?"
[13]
The grounds for review raised by the applicant in this matter are in
principle, good grounds for a review of an administrative
action.
However the question remains whether on the facts of this case the
applicant has made out a case for the review of the
first
respondent's decision. The factual matrix of the case are outlined
below.
FACTS:
EVIDENCE SUBMITTED BEFORE THE COMMISSION
[14] The first
respondent (the Commission) conducted public hearings and heard
evidence from interested parties. The Commission
duly conducted
hearings and conducted its own research and the parties were granted
a further opportunity during the second stage
of the hearing to state
their case.
[15]
What follows is the historical background of Bapedi kingship as
outlined by the Commission upon hearing evidence and doing
its own
research.
[16]
Thobela, the son of Diale, founded the Bapedi traditional community
round about 1650. He settled at Mohlake, at the foot of
Leolo
Mountains. His royal palace was at Tsate.
[17]
Thobela was succeeded by his son Kabu. Kabu was succeeded by his son
Thobejane and the latter was in turn succeeded by Monkangwe.
[18]
The eldest son of Monkangwe, Leseilane, pre-deceased him and his
younger son, Mohube, became regent.
When
Mohube died his younger brother Mampuru I became regent for
Morwamoche I, the son of Mohube.
[19]
A succession struggle ensued between Mampuru I and Morwamoche I.
Mampuru I was defeated and fled with his followers. Morwamoche
I
rebuilt his village along the Steelpoort River, where he died.
[20]
Morwamoche I was succeeded by his son, Dikotope. Thulare I, the
younger brother to Dikotope, assisted by Mampuru I, fought
and killed
Dikotope. Thus Thulare I usurped the kingship.
[21]
Thulare I was succeeded by Molekutu I who ruled for two years and
died without an heir. He was succeeded by his brother Phetedi.
[22]
Phetedi, together with his followers and other sons of Thulare I were
killed by Matebele of Mzilikazi during the Difaqane war.
Sekwati I
was the only surviving son of Thulare I after the Mzilikazi invasion.
He hid in the Leolo Mountains with a number of
his followers.
[23]
Sekwati I thereafter expanded and consolidated the efforts initiated
by Thulare I of establishing the Bapedi kingship. He died
in 1861.
[24]
After the death of Sekwati I, his son Sekhukhune I made his intention
to succeed him. Sekhukhune I challenged his half-brother
and claimant
to the title, Mampuru II, to a fight by throwing a spear towards him.
Mampuru II declined the challenge. Instead he
cowered and fled,
taking the royal accessories//ra7gra'a with him.
[25]
Sekhukhune I went on to burry his father, Sekwati I. He forcefully
claimed the kingship. He killed all the supporters of Mampuru
II. He
gathered all the various traditional leaders who were under his
father and challenged them. They all cowered. He then ascended
the
throne. He further consolidated the Bapedi kingship initially
established by Thulare I and Sekwati I.
[26]
Mampuru II later returned and killed Sekhukhune I on 13 August 1882
at his Great Place, Manoge. However, Mampuru II could not
rule as he
was hanged for the murder of Sekhukhune I on 21 November 1883.
[27]
After the death of Sekhukhune I the history of Bapedi kingship is
characterised by successive regencies.
Kgoloko,
the half-brother of Sekhukhune I became regent as Sekhukhune II was
still a minor. When Sekhukhune II became of age he
ascended the
throne.
[28]
Sekhukhune II was pre-deceased by his son and heir, Thulare II. The
latter had no heir from his
timamollo
, (candle wife)
Lekgolane. After the death of Sekhukhune II, Morwamoche III, a
brother to Thulare II, was appointed regent until
his death in 1965.
DIFFERENT
VERSIONS
[29]
There are different versions in relation to the status of Mampuru II
and Sekhukhune I following the deaths of Malekutu I and
the rest of
his brothers.
[30]
According to the Mampuru royal family:
30.1
Thulare I was the first kgosi of Marota a Mamone and was succeeded by
Malekutu I. Malekutu I died without issue therefore Sekwati
I became
regent.
30.2
Sekwati I was a regent and as such he was expected to raise seed for
Malekutu I.
30.3
Sekwati I had a wife called Thorometsane who gave birth to a son,
Sekhukhune I.
Sekwati
later married Kgomomakatane (Lekgolane) as a
timamollo
to the
late Malekutu I. She gave birth to a son, Mampuru II who was to
succeed Malekutu I.
30.4
According to the custom of Bapedi it is irrelevant who fathers the
heir, so long as he is born of
timamollo
(candle wife). The
power to decide on the marriage of
timamollo
for a deceased
kgosi rests with Bakgoma and Bakgomana not the regent.
30.5
Sekwati I recognised Mampuru II and gave him the royal insignia
including
sefoka
(royal emblem) and
pheta ya thaga
(royal
beads).
30.6
When Sekwati I died, Sekhukhune I usurped the kingship.
Mampuru II
fled with his followers.
Later
Mampuru II returned to kill Sekhukhune I. Mampuru II was hanged in
Pretoria for the murder of Sekhukhune I.
30.7
Malekutu II succeeded Mampuru II. He died in 1905 and was succeeded
by his son Malekutu III who died in 1958. He was succeeded
by Mampuru
III the current kgosi of Marota a Mamone.
[31]
On the other hand the Sekhukhune Royal House states the following-
31.1
They do not dispute that Malekutu I died without issue and was
followed by Sekwati I as regent.
31.2
They maintain that when Sekwati I became regent he already had a wife
Thorometsane, the mother of Sekhukhune I.
31.3
When Bakgoma and Bakgomana suggested that Sekwati I should marry a
candle wife to raise seed for Malekutu I, he refused and
pointed out
that he already had a son Sekhukhune I, whom he had identified as his
successor.
31.4
Bakgoma and Bakgomana went on to marry a
timamollo
,
Kgomomakatane, the mother of Mampuru II, despite the refusal of
Sekwati I.
31.5
According to Sekhukhune royal family, Sekwati I could not have
fathered Mampuru II as he was too old at the time Mampuru was
conceived. In other words they contend that Mampuru II was a "
hlaba
"
(illegitimate child).
31.6
Upon the death of Sekwati I, a succession war ensued between
Sekhukhune I and Mampuru II until the latter fled. Sekhukhune
I
succeeded Sekwati I.
COMMON CAUSE FACTS
[32] It is common cause
that:
32.1
Malekutu I as the son of
timamollo
(candle wife) was the
rightful heir and successor in title to the kingship of Bapedi after
the death of Thulare I.
32.2
Sekwati I became the only surviving son of Thulare I after the
fratricide and attack by Mzilikazi.
32.3
Sekwati I was a regent for the successor of Malekutu I. Thus as a
regent he had no kingship to pass to Sekhukhune I.
32.4
The possession of royal insignia alone does not bestow kingship.
32.5
In African customary law and practice it was not unusual for the
kingship to be obtained through might and bloodshed.
32.6
The Mampuru royal family contends that Mampuru II as the son of
timamollo
, Kgomomakatane was the rightful successor to
Malekutu I. However, the Sekhukhune royal family contends that
Mampuru II was not
the rightful heir as he was not born of
timamollo
recognised by Sekwati I, furthermore that Mampuru II was not fathered
by Sekwati.
ISSUES
[33]
The factual issue to be determined is whether by virtue of forcefully
driving Mampuru II away Sekhukhune I legitimately usurped
kingship.
Furthermore, whether by killing Sekhukhune I Mampuru II did in fact
assume kingship, and if so, did he do that legitimately.
[34]
The legal issue to be determined by the Court is whether the decision
of the Commission in determining that the kingship of
Bapedi resorts
in the lineage of Sekhukhune, was rationally connected to the
information before it or the reasons given by it;
and whether it
ignored relevant facts and evidence placed before it, to which it had
access.
SUBMISSIONS
AND FINDINGS
[35]
The version of the Mampuru royal family that maternity and not
paternity is the overriding consideration in determining succession
to
bogosi
is correct, as this is the case in many African
communities including the Bapedi. Therefore the contention by the
Sekhukhune royal
family that Mampuru II could not be king because he
was not fathered by Sekhukhune I cannot hold water.
[36]
However in the present case the determination of the lineage of
kingship was not necessarily based on birth but on the fact
that it
was not unusual for the kingship to be obtained through might and
bloodshed, hence it was found that Sekhukhune I legitimately
usurped
kingship by forcefully driving Mampuru II away. Mampuru II fled with
his followers, without kingship. Even after returning
to kill
Sekhukhune I, Mampuru II did not ascend the throne. Malekutu III
succeeded Mampuru II as leader of the followers of Mampuru
II and not
as king of Bapedi.
[37]
The applicant contends that the Commission ignored the following
facts:
37.1
While Sekhukhune I was deposed and in 1879 incarcerated by the
British Mampuru II took over and was king of the Bapedi crowned
by
the British Government.
37.2That
when Sekhukhune I returned to claim the position of the king, he was
defeated and killed by Mampuru II. The applicant further
contends
that the lineage of kingship of Sekhukhune I, if ever there is
argument that it existed after his incarceration, ended
there and
then when he was killed by Mampuru II on 13 August 1882.
[38]
There are no merits in the aforesaid contention made by the applicant
for the following reasons:
38.1
The coronation of Mampuru II by the British after the incarceration
of Sekhukhune I cannot be said to be consistent with the
customary
law of the Bapedi. There is no evidence that the Bakgoma, Bakgomana
and Dikgadi sanctioned or were part of the alleged
coronation. The
deposition of Sekhukhune I and the subsequent coronation of Mampuru
II by the British Government can simply be
seen as a unilateral act
of a colonial master who disregarded the laws and practices of the
indigenous Bapedi nation.
38.2
The killing of Sekhukhune I by Mampuru II cannot be said to
constitute conquest by might and bloodshed as was the common practice
in customary law. The evidence shows that when Mampuru II surfaced
from where he had fled he was in the company of Nyabela who
had given
him sanctuary. With the assistance of Nyabela he killed Sekhukhune I,
fled again to Nyabela
'
s place where he was eventually
captured, convicted by a court of law and eventually executed.
The
conduct of Mampuru II in killing Sekhukhune I and fleeing to Nyabela
is not consistent with the conduct of a person who had
come to
conquer and take over kingship. With respect, this is the conduct of
a common criminal. It is a fact that he paid the ultimate
price for
the crime he committed.
[39]
Mampuru II did not kill Sekhukhune I in the context of a challenge
between them for kingship as was the case upon Sekwati I's
death in
1861 when Mampuru II fled with his followers and Sekhukhune
subsequently usurped kingship.
[40]
On the basis of the facts before me I make a finding that there is a
rational connection between the determination or decision
of the
first respondent and the material facts presented before it. That is
that Sekhukhune I had won the succession battle against
Mampuru II
upon the death of Sekwati I in 1861, and ascended the throne, as it
was not unusual for the kingship to be obtained
through might and
bloodshed as it was in line with common practice at the time. The
decision of the first respondent in this regard
cannot be faulted.
[41]
Members of the Commission on Traditional Leadership Disputes and
Claims (the first respondent in casu) are appointed in terms
of
section 23(1 )(a) of the Framework Act. The qualification for
appointment of such members is that they should be knowledgeable
regarding customary law, customs and the institution of traditional
leadership.
[42]
Judging by the methodology employed by the first respondent in the
present case it cannot be found that its functions were
not carried
out in a manner that is fair, objective and impartial as required by
section 22(2) of the Framework Act. In its determination,
the issues
to be determined by the first respondent were outlined and thereafter
analysed, whereafter the evidence was analysed
to arrive at its
conclusion that in terms of customary law and customs of the Bapedi
and the Framework Act, the lineage of the
Bapedi kingship resorts to
Sekhukhune Royal House.
[43]
There is no merit in the applicant's contention that the first
respondent failed to consider all the evidence put before it
by the
parties to the dispute. In any event the applicant failed to produce
any evidence to that effect save for the bear allegations.
[44]
Counsel for the first, fourth and fifth respondents correctly
emphasised that the Court was requested to review the first
respondent's decision. It was not an appeal against the
first
respondent's decision.
In
Foodcorp (Pty) Ltd v Deputy Director-General, Department of
Environmental Affairs and Tourism: Branch Marine and Coastal
Management
and Others 2006(2) SA 191 (SCA) at 191F-H
Harms
JA (as he then was) said the following:
"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 a reasonable
decision-maker could not have reached or, put slightly differently a
decision-maker could not reasonably
have reached."
[45]
On the concept of "deference" in particular, the Court was
referred to, inter alia, the following decisions:
Logbro
Properties CC v Bedderson NO and Others 2003(2) SA 460 (SCA)at
471A-D;
Bel
Porto School Governing Body and Others v Premier Western Cape and
Another 2002(3) SA 265 (CC);
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Bato Star Fishing (Pty) Ltd 2003(6) SA 406 (SCA) paragraphs [47] -
[53];
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others 2004(4) SA 490 (CC) paragraphs [46], [48],
[49],
[50] and [52];
Minister
of Environmental Affairs and Tourism and Another v Scenematic
Fourteen (Pty) Ltd 2005(6) SA 182 at 202J-203A.
[46]
In the light of those principles set out in the abovementioned
authorities this Court can justifiably defer the issues canvassed
in
the Commission's report and determination thereof to the first
respondent as the suitable administrative functionary in that
regard.
CONCLUSION
[47]
It can safely be stated that the methodology applied by the first
respondent in arriving at its conclusion was lawful, reasonable
and
procedurally fair and in accordance with section 33(1) of the
Constitution of the Republic of South Africa Act, 1996 as well
as
section 3(1) of PAJA. In the end the first respondent provided
comprehensive written reasons for its conclusion, thereby complying
with the dictates of section 33(2) of the Constitution.
[48]
It is clear from an overview of the whole record of proceedings of
the first respondent's investigation into the Bapedi kingship
dispute
that the first respondent in its determination did not fail to take
all relevant evidence into account as argued by the
applicant. Still
less can it be said that its decision was irrational. 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.
[49]
The first respondent acted in accordance with its mandate, within the
parameters of the Framework Act and did not contravene
any provision
of PAJA.
In
the circumstances the applicant's application falls to be dismissed.
[50]
I accordingly grant the following order:
(a)
The application is dismissed with costs.
(b)
The applicant to pay the costs of the first, fourth and fifth
respondents, such costs to include the costs occasioned by the
employment of two counsel.
EMMAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
40404-2008
HEARD
ON: 12 SEPTEMBER 2012
FOR
THE APPLICANT: ADV K L SELALA
INSTRUCTED
BY:T P MOLOTO & COMPANY INC c/o MOLEFE ATTORNEYS
FOR
THE 1
ST
RESPONDENT: ADV G BOFILATOS SC
ADV
L MOLOISANE SC
INSTRUCTED
BY: BHADRISH DAYA ATTORNEYS
FOR
4
th
AND 5
th
RESPONDENTS: ADV A M M MOTIMELE SC
ADV
F I BALOYI ADV N MTHEMBU
INSTRUCTED
BY:RAPHELA INCORPORATED