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[2012] ZAGPPHC 369
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Nxumalo v President of the Republic of South Africa and Others (3829/2011) [2012] ZAGPPHC 369 (12 November 2012)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
REPUBLIC OF SOUTH
AFRICA
CASE NO: 3829/2011
In the matter
between:
MPISANE ERIC
NXUMALO
..............................................................................................................
Applicant
and
PRESIDENT OF THE
REPUBLIC OF SOUTH
AFRICA
.......................................................
First
Respondent
CHAIRPERSON OF THE
COMMISSION ON
TRADITIONAL
LEADERSHIP AND
CLAIMS
.................................................................
Second
Respondent
MINISTER OF
COOPERATIVE GOVERNMENT
AND TRADITIONAL
AFFAIRS
............................................................................................
Third
Respondent
NATIONAL HOUSE OF
TRADITIONAL
LEADERS
........................................................
Fourth
Respondent
LIMPOPO HOUSE OF
TRADITIONAL
LEADERS
..............................................................
Fifth
Respondent
PREMIER OF LIMPOPO
PROVINCE
....................................................................................
Sixth
Respondent
JUDGMENT
Tuchten
J
:
1. The applicant is
a direct descendent of Soshangane, a general of northern Nguni ethnic
decent. In the 1820s, war raged for control
of the resources in the
area which came to be known as KwaZulu-Natal and beyond. The major
protagonists in this conflict were the
leaders Shaka of the amaZulu
and Zwide of the amaNdwandwe. Shaka prevailed. Enormous disruptions
to the social fabric of these
regions took place. Communal
institutions were destroyed and created. Great migrations of peoples,
fleeing the terror of the conflict,
ensued. Generals in both the
defeated and the victorious armies defected and migrated to new lands
beyond the reach of the potentates
they left behind, subjugating
those peaceful and often defenceless communities they encountered and
appropriating their resources.
2. At the same time,
European imperial powers, in particular Britain and Portugal, sought
to expand into southern Africa and competed
with those who were there
when they came or arrived more or less simultaneously with them. To
add to this complex mix, an indigenous
ethnic group of largely
European descent who became known as the Afrikaners or Boers trekked
north from British controlled southern
Africa in an attempt to
dominate the resources and communities of territories beyond the
reach, so they hoped, of the British.
3. Alliances were
formed and broken. Communities were destroyed and created. Some
communities and remnants of communities fled the
reach of their
self-proclaimed rulers and sought, in search of a better life, to
establish themselves under the protection of rulers
who, the refugees
hoped, would be powerful enough to resist the efforts to dominate of
those from whom they fled.
4.
Soshangane and his followers formed one of the Nguni groupings which
migrated northwards, into and through what is today Mozambique,
to
achieve independence from and escape the wrath of the most successful
Nguni potentate, Shaka Zulu. These Nguni groupings, which
were highly
militarised, proceeded to subjugate the people they encountered. The
latter were not ethnic Nguni. In the territories
conquered by
Soshangane, they were characterised primarily by their language,
xiTsonga,
1
and
their more or less common adherence to customs and systems of
customary law which differed from those of their Nguni conquerors
in
several important respects. One of those differences, which as I
shall show would become significant, related to the chiefly
succession.
5. At the heart of
the societies presently under consideration, stood the institution of
the chief. The incumbency of this institution
usually but not
invariably descended through the male line.
6. Through military
power, Soshangane and his northern Nguni speaking warriors
established a polity described variously in the papers
as the empire,
kingdom or kingship of amaShangana or Gaza in the lands hitherto
under the control of a number of xiTsonga speaking
communities. In
this judgment, 1 shall refer to it as the kingdom. As with the other
powers seeking to dominate in the region,
some of the indigenous
people welcomed, or submitted without resistance to, Soshangane while
others from time to time actively
resisted or fled from his rule.
7.
Soshangane died and was succeeded by Mawewe. This did not suit
powerful interests within the ruling class and power was wrested
from
Mawewe by his half-brother Mzila in 1862. The manner in which this
coup d’etat was legitimised is significant: Mawewe
was the son
of the
timamollo
,
2
while
Mzila was the son of the senior wife. Under Nguni custom, the
succession devolves through the line of the
timamoHo
while
undervaTsonga custom, succession is through the senior wife.
Established in his position through military force, Mzila proclaimed
that the Nguni custom hitherto followed would be abandoned and the
vaTsonga custom would henceforth prevail.
8. Significantly for
present purposes, the followers of the deposed Mawewedid not submit
to the rule of Mzila but fled to lands
under the control of Mswati,
the king of the amaSwazi. Overtime and for various reasons, other
xiTsonga speakers also fled. In
this connection, I mention those who
fell, or placed themselves, under the authority of chiefs Maluleke
and Mhinga, who established
themselves in the then north-eastern
Transvaal where there descendants reside to this day.
9. In addition,
there are those who grouped themselves around Joao Albasini, a
Portuguese speaking merchant and diplomat of southern
European
descent A substantial number of xiTsonga speakers and other refugees
placed themselves under the authority of this controversial
figure.
Controversial as Albasini is, it is clear that he was regarded by a
substantial grouping as a chief in the sense I use
that term in this
judgment and that Albasini formed a focus of resistance to the rule
of the kingdom.
10. I make these
observations because even at the height of the power of the kingdom,
a substantial number of vaTsonga sought to
place themselves beyond
its territorial reach.
11. Mzila was
succeeded by Nghunghunyani, under whose rule the kingdom fell into
decline. Nghunghunyani was forced to come to terms
with the rising
power of the Portuguese. In so doing, he ceded aspects of his power
to Portugal. While this was, probably correctly,
regarded as a mere
tactical move, things did not go the way of Nghunghunyani. In 1895,
abandoned on the field of battle by a significant
section of his
xiTsonga speaking regiments, Nghunghunyani was defeated by a
coalition of military forces under the control of the
Portuguese,
which included at least one xiTsonga speaking grouping, the vaChopi.
Nghunghunyani, two of his sons (Godide and Buyisonto)
and others,
surrendered to the Portuguese and were taken into exile in the
islands of the Azores, then under Portuguese control
The kingdom
ceased to exist as a polity and was divided administratively into
districts under Portuguese rule. In 1897, remnants
loyal to
Nghunghunyani under his erstwhile general, Magigwana Khosa, rose in
revolt against their Portuguese conquerors. The revolt,
and any hope
of revival of the kingdom of Gaza, were crushed in a decisive battle
on 21 July 1897.
12. At this
juncture, we move into what conveniently may be labelled the modern
era. Nghunghunyani's uncle and regent, Mpisane Nxumalo,
the royal
household and a contingent of supporters moved from the lands
controlled by Portugal to Bushbuckridge, a district which
fell into
the Zuid-Afrikaanse Republiek of the Boers. Other erstwhile subjects
of the once and former king moved to areas controlled
by the
Portuguese.
13. Mpisane was
recognised by the Boers as a senior traditional leader and was given
lands consistent with this status. In 1910,
Mpisane renounced his
regency in favour of Thulamahashe Msinganyela Nxumalo. But their
authority at no stage extended beyond their
immediate followers.
14. Nghunghunyani
and Godide died in exile. But Buyisonto was restored to his people in
Bushbuckridge and his chiefly honours amid
great rejoicing. Whether
the rejoicing extended to the greater body of xiTsonga speakers or of
the former subjects of the kingdom
is, however, contentious. The
applicant is the linear descendent of and successor to Buyisonto.
15. The imperialism
of the British was succeeded by the racial domination of South Africa
by ethnic Europeans (whites) to the exclusion
of ethnic blacks and
the marginalisation of other ethnic groups. This period of domination
and exclusion was demarcated by two
crucial sociopolitical
legislative initiatives: firstly the various statutes reserving to
white people the ownership and occupation
of 87% of the surface of
South Africa and the creation or recognition of tribal trust lands
which culminated in the Bantustan policy
of a former regime;
secondly, the Administration Acts which appointed the head of the
white controlled South African state as the
paramount chief of all
black groupings within its borders and recognised certain identified
such groupings and their traditional
leaders as authority figures
within, those groupings. Certain kingly figures were recognised as
such and, where the authorities
regarded it as appropriate,
appointed. In this process, distortions were created to advance
perceived white interests. It may safely
be said that in the era of
what became to be known first as Native, then Bantu and ultimately
Black Administration, these appointments
were designed to advance the
interests of the ruling white class.
16.
In the course of this process, the Bantustan of Gazankulu (literally
Great Gaza)
was
created, a number of detached areas supposedly intended to serve as a
homeland within which xiTsonga speakers were to exercise
their
political rights and which ultimately, its creators gave out they
hoped, would become an independent state. But the rulers
of greater
South Africa did not seek to co-opt the house of Nxumalo into a
leadership role in this process and the status of the
descendants of
Nghunghunyani remained, as before, no more than that of a senior
traditional leader.
17. Times changed;
and the evils of a former regime yielded to the just and wise
supremacy of the Constitution of 1996 with its
prime purpose as
proclaimed in its preamble, to
Heal the divisions
of the past and establish a society based on democratic values,
social justice and fundamental human rights;
Lay the foundations
for a democratic and open society in which government is based on the
will of the people and every citizen is
equally protected by law;
Improve the quality
of life of all citizens and free the potential of each person; and
Build a united and
democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.
18 in that spirit,
Chapter 12 of the Constitution provided for the institution and roles
of traditional leaders:
211 Recognition
(1) The institution,
status and role of traditional leadership, according to customary
law, are recognised, subject to the Constitution.
(2) A traditional
authority that observes a system of customary law may function
subject to any applicable legislation and customs,
which includes
amendments to, or repeal of, that legislation or those customs,
(3) The courts must
apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically
deals with
customary law.
212 Role of
traditional leaders
(1) National
legislation may provide for a roie 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.
19.
To that constitutional end, the legislature enacted the Traditional
Leadership and Governance Framework Act, 41 of 2003 ("the
old
Act”), which came into force on 24 September 2004. The measure
provided, amongst many other things, for the recognition
of
traditional communities by identified organs of provincial government
and of king- or queenships
3
and
for the establishment and functioning of the Commission on
Traditional Leadership and Claims, the present second respondent.
The
old Act was amended by the Traditional Leadership and Governance
Framework Amendment Act, 23 of 2009 ("the new Act”).
At
the time relevant to the present application, the Commission was
empowered to investigate, of its own accord, under s 25(2)
of the old
Act, a number of different types of situations relevant to the
purposes of the old Act and including, in s 25(2)(a)(vi):
Where good grounds
exist, any matters relevant to the matters listed in this paragraph,
including the consideration of events that
may have arisen before 1
September 1927.
20. On 4 November
2004, in terms of s 22 of the old Act, the Commission was appointed,
with instructions to perform two tasks: firstly,
to investigate the
legitimacy of the then twelve paramountcies established under the
Administration statutory regime, to decide
how many of them qualified
as kingships and to identify the king of each such kingship; and
secondly, to determine matters brought
before it under the provisions
of s 25(2) of the old Act.
21. In April 2005,
the applicant applied to the Commission for the restoration of the
“Shangaan/Vatsonga
4
Kingship” and its royal territory in the province of Limpopo
and, consequentially, the recognition of the applicant as the
king of
the restored kingship. This ciaim was one of the matters that came
before the Commission under s 25(2)(a)(vi) of the old
Act.
22. The Commission
released its findings on the status of the twelve paramountcies in
April 2008 without pronouncing on the rights
and status of the
incumbent paramount chiefs.
23. The Commission
duly convened and began its public hearings into the applicant's
claim in two separate sittings in March 2006.
Under s 23(1) of the
Act, the members of the Commission must be knowledgeable regarding
customs and the institutions of traditional
leadership, it is not in
dispute that they were, and are. The Commission duly heard the
applicant, through his representative,
and other interested persons.
It received, mainly from the applicant, a large body of documentary
material bearing on the issue.
Some of that material is in xiTsonga.
I have read all the material, with great interest, except that in
xiTsonga, a language of
which, I regret, I am ignorant. The factual
conclusions in this judgment are taken largely from the material put
before the Commission.
24.
The Commission then adjourned and undertook its own researches, it
reconvened on 8 December 2008 to canvass with the applicant
the
information gathered by the Commission during its own researches.
5
The
Commission finished its work on 21 January 2010. its report was
handed to the President of the Republic and the Minister of
Cooperative Development and Traditional Affairs on 9 February 2010.
25. I mention these
dates firstly because a point has been made of the fact that in terms
of its statutory mandate, the Commission
was bound to complete its
mandate by 31 January 2010 and, secondly, because the new Act came
into force on 25 January 2010. So
although the Commission finished
its work while the old Act was in force, its report actually reached
the President and the Minister
after the amending Act (the new Act)
came into force.
26. The Commission
found against the applicant. It found that the kingdom had been
destroyed in the period 1895-1897 and was never
resuscitated, it
found that there was no good ground, more than a century after the
event, for the restoration of the kingdom.
27. There is no
provision for appeal against a decision of the Commission. However,
because decisions of the Commission such as
this one are
administrative actions, the decision may be reviewed by the court
under the provisions of the Promotion of Administrative
Justice Act,
3 of 2000 ("RAJA”).
28. The applicant
seeks to review both the decision of the Commission to which I have
referred and what he describes as the decision
of the President to
approve the decision of the Commission and, by doing so, translate
the Commission’s decision into law.
The application is opposed
by the first, second and third respondents, whom for convenience i
shall describe in this judgment as
the opposing respondents. The
other parties cited as respondents abide the decision of the court.
29. In relation to
the President, the submission on behalf of the opposing respondents
was that at this level the president does
not make a decision. That
is correct under the law as it stood prior to its amendment by s 20
of Act 23 of 2009 on 25 January 2010.
Under s 26(2) of the old Act,
the President and all other relevant functionaries were obliged
immediately to implement decisions
of the Commission. Under s 26 of
the new Act, the Commission makes not a decision but a recommendation
which the President and
other relevant functionaries may decide to
implement or reject, in both cases in whole or in part. When the
Commission delivered
its report, the old Act was in force. By the
time the President applied his mind to the report of the Commission,
the new Act was
in force.
30. On 7 April 2010,
the President accepted the Commission’s report in President’s
Minute no 144. The President publicly
communicated his acceptance of
the report on 29 July 2010.
31.
It is clear from a letter dated 10 May 2011, written by the
President’s attorney to the attorneys for the applicant, that
the President understood his powers and competences to be those
provided for under the Act as amended (ie the new Act). In my view,
the President erred in this regard. The common law principle is that
no statute is to be construed as having retrospective effect
unless
an intention to that effect can clearly be determined from the
amending statute.
6
It
could never have been the intention of the legislation that the
President should make a decision on whether or not to implement
the
findings (to use a neutral term) of the Commission on the basis that
those findings constituted a recommendation, when the
Commission had
in fact, perfectly properly, made not a recommendation but a
decision. The President was thus, in my view, called
upon to
implement the decision under consideration as if the new Act had not
been passed and had come into force. The only limitations,
if such
they may be called, on the power of the President to implement are
those contemplated by the principle of legality, ie
that the power
had to exercised in good faith and for the purposes for which it was
conferred.
32. Be that as it
may, the President in fact applied his mind to the Commission’s
report. He concluded, as appears from the
President’s
attorney’s letter to which I have referred and the text of his
public statement of 29 July 2010, that the
Commission had confirmed
facts in relation to the applicant’s claim that "have
generally been known all along historically".
33. The President’s
reasons for accepting the Commission’s report were thus,
firstly, that he agreed with the factual
findings of the Commission
and, secondly, that he agreed with its reasoning.
34. That in fact the
President applied his mind to the reasoning of the Commission, and
came to the conclusion that it was correct,
is in my view of no
consequence. I have found that the President had a statutory
obligation to implement the decision of the Commission.
He did so. It
is not the applicant’s case that the President’s conduct
offended against the principle of legality.
There is accordingly no
basis upon which to impugn the conduct of the President.
35.
It was further submitted on behalf of the applicant in counsel’s
heads of argument that the fact that the report and decision
of the
Commission were
transmitted
to
the President after the expiry of the Commission’s mandate
invalidated the Commission’s decision. This proposition
has
only to be articulated to be rejected. The decision was made during
the currency of the mandate of the Commission. It was therefore
(at
this level) valid. What happened
after
this
(at this level) valid decision was made cannot conceivably invalidate
it.
36. There is a
further reason why this submission cannot prevail. A court which
reviews administrative action under s 6 of PAJA
is empowered under s
8 to grant any order that is just and equitable. It would be neither
just nor equitable to set aside a decision
such as that under
consideration, otherwise vaiidly made after a protracted, fair and
costly process because there was tardiness,
if such there was, on the
part of the decision making functionaries in conveying the decision
to the implementing functionaries.
It is unnecessary to consider what
relief, if any, might have been granted if the submission were to
have been sustained.
37. The way is
accordingly clear to deal with the substance of the applicant’s
attack on the decision of the Commission.
38. The grounds upon
which the decision of the Commission is attacked appear from the
founding and supplementary affidavits of the
applicant. They are,
firstly, that the Commission was factually incorrect in finding that
pursuant to the treaty of 1885, Nghunghunyani
ceded his land and thus
sovereignty to the Portuguese; and, secondly, that after the defeat
at the hands of the Portuguese, the
kingdom disintegrated and was at
no stage re-established.
39. The applicant
contends that the mere fact that the kingdom was defeated by the
Portuguese colonialists did not put an end to
the kingdom, any more
than it did in relation to any other kingdom defeated by colonial
powers. The applicant further takes issue
with the finding that the
kingdom disintegrated and was not thereafter reestablished. In this
regard, the applicant points to the
triumphant restoration of
Buyisonto in 1922.
40.
In relation to the treaty of 1885, the finding of the Commission as
contained in paragraph 7.3.15 of its report was that the
effect of
the treaty was to compromise the sovereignty and independence of the
kingdom. The case made trenchantly in argument on
behalf of the
applicant in this regard was not that the treaty had not, as a fact,
diminished the power and prestige of the kingdom
but that as a
colonial-style treaty, the underlying agreement was invalid and void
for a number of reasons. In this regard, I was
referred by counsel to
a scholarly article titled
Why
Redraw the Map of Africa? A Moral and Legal Inquiry
by
Dr Makau wa Mutua published in vol 16:1113 of the Michigan Journal of
international Law.
41. Counsel for the
applicant also criticised the report of the Commission for internal
contradiction. The conclusion presently
under attack was, as set out
in paragraph 7.4.7 of the report, that after regent Mpisane Nxumalo
with his followers and elements
of the royal family settled at
Bushbuckridge,
... the kingship of
AmaShangana had already disintegrated. Neither Mpisane Nxumalo nor
his successors re-established the AmaShangana
kingdom that was
destroyed by the Portuguese.
42.
In carrying out its task, the Commission was required under s 25(4)
of the Act before amendment to investigate traditional leadership
claims and disputes which arose after 1 September 1927, subject to
s.25(2)(a)(vi), which empowered the Commission to investigate
any
matters relevant,
inter
alia,
to
those under consideration including the consideration of events that
may have arisen before 1 September 1927.. This date is clearly
linked
to the date of commencement of the measure currently on the statute
book titled the Black Administration Act, 38 of 1927.
43. The legislative
policy behind the cut off date of 1 September 1927 is to be found in
the preamble to the Act. The Act has amongst
its purposes to restore
the integrity and legitimacy of traditional leadership in line with
customary law and practices and to
promote the institution of
traditional leadership so as to enhance tradition and culture and to
promote nation building and harmony
and peace among people. Bearing
this in mind, in my view, the legislature determined that unless a
compelling case was made (“good
cause shown”), the
administrative efforts to redress the injustices of the past would
become ineffectual if every such act
of alleged injustice, going back
hundreds of years, were to be investigated. By importing the element
of good cause, the Act required
the applicant to make a compelling
case for investigation.
44. It is in this
light that the attack on a further finding of the Commission, in
paragraph 7.4.8 of its report, must be evaluated.
This paragraph
reads:
The claim for the
restoration of the kingship of the amaShangana predates 1 September
1927. No good grounds have been furnished
for the restoration of the
kingship that was lost long before 1 September 1927.
45. The applicant
maintains that the finding that the kingdom disintegrated and was not
re-established is erroneous. He points out
that in paragraph 4.1.21
of its report, the Commission found that in 1922, Buyisonto
... joined the royal
family at Bushbuckridge, where he assumed the position of king of the
amaShangana.
46. The applicant
locates his grounds of review in ss 6(2)(e)(iii), 6(f)(ii)(cc) and
6(2)(h) of PAJA. These grounds translate respectively
to the
propositions that the Commission took irrelevant considerations into
account or did not consider relevant considerations,
that the
Commission's decision was not rationally connected to the information
before the Commission; and that the decision was
so unreasonable that
no reasonable person could have come to the same conclusion.
47. The opposing
respondents’ answering affidavit was deposed to by Professor
Moleieki, the acting chairperson of the Commission.
He enlarged on
the reasons given by the Commission in its report for coming to its
conclusions relevant to the present proceedings.
Counsel for the
applicant took issue with what was described in argument as the
further reasons presented in the answering affidavit.
48.
Counsel for the applicant drew my attention to
National
Lotteries Board and Others v SA Education and Environment Project and
Another[20'\2]
1
All SA 451
SCA para 27, where the SCA referred to the duty of an
administrator to give reasons and held that
...
the failure to give reasons, which includes proper or adequate
reasons, should ordinarily render the disputed decision reviewabie.
In England, the courts have said that such a decision would
ordinarily be void and cannot be validated by different reasons given
afterwards - even if they show that the original decision may have
been justified. For in truth the later reasons are not the true
reasons for the decision but rather an
ex
post facto
rationalisation
of a bad decision. Whether or not our law also demands the same
approach as the English courts do is not a matter
I need strictly
decide, [footnote omitted]
49. Building on this
foundation, counsel for the applicant submitted that I should not
have regard to any reason for the decision
put up in the answering
affidavit which is not also found in the Commission’s report. I
do not think that this is a case
where the reasons given in the
report are improper or inadequate in the sense those terms were used
by the SCA. I have explained
how the Commission came to refer to the
date 1 September 1927 and the conclusion that the applicant had
failed to provide good
grounds for the restoration of the kingdom.
The applicant’s complaint was that the Commission had erred in
concluding that
no good grounds had been shown for the restoration of
the kingdom.
50. In essence the
applicant’s case, as made out in the founding affidavit and
presented to me in argument is this;
50.1 The kingdom was
brought down by the force of the arms of a colonial power, Portugal,
and in 1895 its legitimate king, Nghunghunyani,
and his sons were
taken prisoner and sent into exile.
50.2 In 1897, the
king's uncie, Mpisane, and the remnant of the royal family left the
regions controlled by Portugal and, with the
consent of the Boers,
settled in Bushbuckridge where he was recognised as a chief.
50.3 One of the sons
of Nghunghunyani, Buyisonto, survived the ordeal of exiie and, at
Bushbuckridge, was restored in triumph as
king of the kingdom.
50.4 The applicant
is the lineal descendent of Nghunghunyani and, indeed, of Soshangane,
the founder of the dynasty, himself.
50.5 Given the
purposes of the Act, which are predominantly redressive and
transformative, it is no legitimate answer to the applicant’s
case that the destruction of the kingdom was accomplished at the
hands of a colonial power and the applicant has indeed made out
a
compelling case for the restoration of the kingdom and the
recognition of the applicant itself as his king.
51. The material in
the answering affidavit which the applicant submits constitutes new
reasons, improperly relied upon, are in
my view not in fact new
reasons. The material constitutes reasoning designed to justify the
reasons given in its report which are
under attack in these
proceedings. To the extent that the reasoning in the answering
affidavit is based on material which was before
the Commission when
it made its decision, 1 think that the Commission is entitled to
refer to that material, i therefore find that
the Commission is not
precluded from relying on that material in the present context.
52. In argument,
counsel for the opposing respondents submitted that the reference to
the treaty of 1885 arises from material presented
to the Commission
by the applicant's representative not merely as material for the
Commission to consider, but as the case for
the applicant. In his
submission to the Commission, the applicant’s representative,
with reference to the treaty of 1885,
said:
Treaties were
signed. Unfortunately some of the treaties that were signed
compromised the empire.
53. In my view, the
submission is well founded. The Commission cannot be faulted for
finding, in accordance with the submission
before it on behalf of the
applicant, that the treaty compromised the kingdom. No point was made
before the Commission on behalf
of the applicant of the manifest
injustice that more often than not accompanied the colonial treaty
making procedure. It is abundantly
clear from the material before the
Commission that it was aware of this fact. The Commission was at
pains to point out in paragraph
1.1 (b) of its report that the
institution of traditional leadership had ben distorted by
imperialism, colonialism, repressive
and apartheid laws, [so-called]
self-governing states and pseudo-independent enclaves.
54. Moreover, in the
proceedings before the Commission, the applicant did not make the
factual case that Nghunghunyani had been
misled into entering into
the treaty of 1885. He did so on the advice of some of his chiefs and
as a deliberate act of policy.
55.
The reference to the treaty by both the applicant’s
representative and the Commission was in the context of
realpolitik.
It
was in that context that the applicant asked that the conduct of his
ancestor be judged; it was in that context that the Commission
made
its pronouncement. As I have said, no doubt the treaty was a tactical
move on the part of Nghunghunyani. Nobody disputes that
as an
historical fact, things worked out badly and the prestige of the
kingdom suffered as a result.
56. I find merit in
the submission on behalf of the applicant that there is a
contradiction between the Commission’s conclusion
that
Buyisonto was restored to the throne and its conclusion that the
kingdom disintegrated and thus ceased to exist.
57.
But in my view, that contradiction is at a textual level and is thus
more apparent than real. When the Commission found that
the kingdom
disintegrated, what it meant, on my analysis of the material before
it {I leave out of consideration the material in
xiTsonga which, as 1
have said, is not accessible to me) was that it no longer constituted
a viable kingdom. That is an historical
fact and its acceptance by
the applicant is implicit in his claim for the
restoration
of
the kingdom. While Mpisane and his successor were regarded by
loyalists as regents and Buyisonto and his successors were regarded
by loyalists as kings of AmaShangana, they did not exert that power
without which, according to
wa
Mutua, op cit,
an
independent state cannot exist, ie sovereign authority.
58. The grounds upon
which the opposing respondents rely for the conclusion in the report
that no good cause exists for the restoration
of the kingdom may be
summarised thus:
58.1 Most of the
kingdom was located outside the borders of the Republic of South
Africa.
58.2 Colonisation
distorted the role customary leadership played in pre-colonial
Africa. Entirely new and, in many cases, non-customary
functions were
assigned to the institution.
58.3 The pernicious
laws of the colonial and apartheid eras malformed traditional
leadership into a species of local government
designed to serve as a
source of cheap labour for mines, farms and urban industries. Most
traditional leaders eagerly complied
with government policy although
some became the focus of resistance.
58.4
The institution of traditional leadership contemplated by the
Constitution required transformation to ensure,
inter
alia,
that
the institution responds and adapts to change, is in harmony with the
Constitution, promotes democracy and its values, freedom,
human
dignity, equality and non-sexism, is grounded in applicable customary
laws and practices, enhances tradition and culture,
respects the
spirit of communality and promotes unity and peace amongst people.
58.5 Soshangane and
his descendants were of Nguni descent and ruled over ethnic vaTsonga.
58.6 The subjugation
of the kingdom was preceded by a number of factors, including dissent
among Nghunghunyani’s own chiefs,
who approached the Portuguese
to intervene in the conflict with NghunghunyanL
58.7 The applicant’s
own case was that by the 1880s the kingdom was already in decline for
various reasons; that Nghunghunyani
was the last ruler of the
kingdom; that the colonists who planned and executed the subjugation
of the kingdom made sure that no
one would revive it again; and that
after the defeat of Nghunghunyani, none of his descendants was
recognised as king.
58.8 The defeat of
Nghunghunyani in 1895 was precipitated by the defection of a
substantial body of his ethnic vaTsonga regiments,
some 30 000
fighting men.
58.9 A distinction
is to be drawn between ethnic amaShangana, who are of Nguni origin,
and ethnic vaTsonga.
58.10 The applicant
is regarded today as a senior traditional leader, as opposed to a
king.
58.11 A substantial
body of those ostensibly defeated by Soshangane remained rebellious
to the kingdom and other groups living within
the area claimed as
part of the kingdom were not incorporated at.all.
58.12 The kingdom
did not exercise effective jurisdiction in the area around present
day Tzaneen. The applicant’s submission
to the Commission took
no account of the Boiubedu who were in that area when the kingdom
sought to expand into it.
58.13 The Bangwanati
people, although ethnic vaTsonga, disputed paying allegiance to or
having been subjugated by the kingdom.
58.14 The Great
places of the kingdom, ie Bileni, Musapa, Chayimithi and Mandlakazi,
are all in present day Zimbabwe or Mozambique.
58.15 The
descendants of Soshangane were recognised in South Africa as chiefs,
not kings. The kingdom is not recognised as such
in present day
Mozambique.
58.16 After the
defeats of 1895 and 1897, the kingdom was scattered; the remnants of
the royal household and a contingent of supporters
moved to
Bushbuckridge.
58.17 It does not
appear that the authority of the regents at Bushbuckridge extended
beyond their immediate followers.
58.18 Buyisonto was
not recognised as a king by the government of South Africa or by that
of Gazankulu.
59. The conclusion
of the Commission was that the kingdom was destroyed in the period
1895-1897; that the royal family today enjoys
the support of only a
fragment of the [descendants of the] former subjects of the kingdom
and that there was no evidence before
the Commission to show that
Buyisonto [and, I would add, his descendants] were considered, in
fact if not in law, to be the kings
of the area in question or of the
former kingdom.
60. This court does
not sit as a court of appeal. The question to be considered is, as I
have already said, not whether the Commission
was correct or
incorrect in its findings but whether the Commission took irrelevant
considerations were taken into account or did
not consider relevant
considerations, whetherthe Commission’s decision is not
rationally connected to the information before
the Commission; and
whether the decision was so unreasonable that no reasonable person
could have come to the same conclusion.
So the enquiry is not so much
concerned with the merits of the decision as whether it was arrived
at in an acceptable fashion.
61.
in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
4 SA 490
CC paras 46-48, the Constitutional Court approved the
characterisation of the judicial duty, in appropriate cases, of
deference
to the findings of administrative decision makers as
follows:
7
... (a) judicial
willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies; to
admit the expertise of those agencies in policy-laden or polycentric
issues; to accord their interpretation of fact and law due
respect;
and to be sensitive in general to the interests legitimately pursued
by administrative bodies and the practical and financial
constraints
under which they operate. This type of deference is perfectly
consistent with a concern for individual rights and a
refusal to
tolerate corruption and maladministration. It ought to be shaped not
by an unwillingness to scrutinise administrative
action, but by a
careful weighing up of the need for - and the consequences of -
judicial intervention. Above all, it ought to
be shaped by a
conscious determination not to usurp the functions of administrative
agencies; not to cross over from review to
appeal.
... [J]udicial
deference does not imply judicial timidity or an unreadiness to
perform the judicial function.
... The use of the
word 'deference' may give rise to misunderstanding as to the true
function of a review Court.
This can be avoided
if it is realised that the need for Courts to treat decision-makers
with appropriate deference or respect flows
not from judicial
courtesy or etiquette but from
the fundamental
constitutional principle of the separation of powers itself.
... [Although the
word "deference" is now very popular in describing the
relationship between the judicial and the other
branches of
government, I do not think that its overtones of servility, or
perhaps gracious concession, are appropriate to describe
what is
happening. In a society based upon the rule of law and the separation
of powers, it is necessary to decide which branch
of government has
in any particular instance the decision-making power and what the
limits of that power are. That is a question
of Saw and must
therefore be decided by the Courts,
... This means that
the Courts themseives often have to decide the limits of their own
decision-making power. That is inevitable.
But it does not mean that
their aiiocation of decision-making power to the other branches of
government is a matter of courtesy
or deference. The principles upon
which decision-making powers are allocated are principles of law. The
Courts are the independent
branch of government and the Legislature
and Executive are, directly and indirectly respectively, the elected
branches of government.
Independence makes the Courts more suited to
deciding some kinds of questions and being elected makes the
Legislature or executive
more suited to deciding others. The
aiiocation of these decision-making responsibilities is based upon
recognised principles. ...
(W)hen a court decides that a decision is
within the proper competence of the Legislature or Executive, it is
not showing deference,
it is deciding the law.
... In treating the
decisions of administrative agencies with the appropriate respect, a
Court is recognising the proper roie of
the Executive within the
Constitution. In doing so a Court should be careful not to attribute
to itself superior wisdom in relation
to matters entrusted to other
branches of government. A Court should thus give due weight to
findings of fact and policy decisions
made by those with special
expertise and experience in the field. The extent to which a Court
should give weight to these considerations
will depend upon the
character of the decision itself, as well as on the identity of the
decision-maker. A decision that requires
an equilibrium to be struck
between a range of competing interests or considerations and which is
to be taken by a person or institution
with specific expertise in
that area must be shown respect by the Courts. Often a power will
identify a goal to be achieved, but
will not dictate which route
should be followed to achieve that goal. In such circumstances a
Court should pay due respect to the
route selected by the
decision-maker. This does not mean, however, that where the decision
is one which will not reasonably result
in the achievement of the
goal, or which is not reasonably supported on the facts or not
reasonable in the light of the reasons
given for it, a Court may not
review that decision. A Court should not rubber-stamp an unreasonable
decision simply because of
the complexity of the decision or the
identity of the decision-maker.
62. I think that
this is a case in which I should approach the evaluation by the
Commission of the material before it with deference.
The members of
the Commission were appointed because they were experts in the field.
Their expertise and impartiality is not in
issue. There is a further
factor which I think I should mention. The proceedings of the
Commission were conducted with great tact
and diplomacy and the
Commission itself reported its findings in the same vein. A court,
however, is called upon to pronounce its
judgment in a more
forthright manner.
63.
Taken as a whole, 1 do not think it can be said that the Commission’s
findings offend against the provisions of PAJA as
submitted on behalf
of the applicant. There was ample evidence before the Commission,
much of which was advanced in support of
the applicant’s own
case, to support its conclusions. 1 think the essence of the
conclusions of the Commission, expressed
in more direct language than
the Commission permitted itself, is this: The case for the applicant
is that his forebears established
and sustained the kingdom by
conquest, ie by the subjugation of the communities in the region
under its control from time to time.
In the modern democratic era,
the ruler, be he or she kingly, presidential or otherwise, rules by
the consent of those over whom
he or she would rule. In the present
case the applicant has not shown that he enjoys the support of a
constituency, the size of
which the Commission considered to be
adequate, of those whose interests would be affected by the
restoration of the kingdom.
8
64. In terms of s
26(3) of the Act, the Commission must consider and apply customary
iaw and the customs of the relevant traditional
community as they
were when the events which gave rise to the claim occurred and be
guided by the criteria in s 9(1 )(b), ie the
need to establish
uniformity in the Republic in respect of the status afforded to a
king or a queen, whether a recognised kingship
exists and the
functions to be performed by the king or queen.
65. It is not
suggested that the Commission failed to take these considerations
into account. I am unpersuaded that the conduct
by the Commission of
its administrative duties fell foul of PAJA in the respects suggested
by the applicant. The application for
review can therefore not
succeed.
66. Counsel were
agreed that it would not be appropriate in these circumstances to
award costs against the applicant. The applicant
sought to vindicate
constitutional rights and enjoys the support of a section of the
community in his efforts to do so. The applicant
has conducted the
litigation with propriety and respect for the rights of the other
parties to the litigation.
67. The order of
this courtis accordingly that the application is dismissed. There
will be no order as to costs.
NB Tuchten
Judge of the High
Court
12 November 2012
CASE NO: 3829/11
IN THE NORTH
GAUTENGTÍIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
PRETORIA 20 NOVEMBER
2012
BEFORE THE
HONOURABLE MR JUSTICE TUCHTEN
In the matter
between:
MPISANE ERIC
NXUMALO
........................................................................................................
APPLICANT
AND
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
...................................................
1
st
RESPONDENT
CHAIRPERSON OF THE
COMMISSION ON
TRADITIONAL
LEADERSHIP AND CLAIMS
MINISTER
OF COOPERATE GOVERNMENT
AND TRADITIONAL
AFFAIRS
.........................................................................................
3
rd
RESPONDENT
NATIONAL HOUSE OF
TRADITIONAL
LEADERS
.......................................................
4
th
RESPONDENT
LIMPOPO HOUSE OF
TRADITIONAL
LEADERS
...........................................................
5
th
RESPONDENT
PREMIER
OF LIMPOPO
PROVINCE
.................................................................................
6
th
RESPONDENT
HAVING HEARD
counsel(s) for the parties and having read the documents filed the
court reserved its judgment.
THEREAFTER ON
THIS DAY THE COURT ORDERS
JUDGMENT
THAT the application
is dismissed, and there will be no order as to costs.
BY
THE COURT
REGISTRAR
MA
1
The
papers show that xiTsonga is a family of languages ordiaiects. To
what extent, they are mutually comprehensible is not clear
from the
papers. Communities whose mother tongue is xiTsonga are known
collectively as vaTsonga. Within the vaTsonga, there are
many other
groupings orsubgroupings, the precise delineation of which is not
readily accessible except no doubt to experts in
the field.
2
The
timamollo
(candle
wife:
literally
she
who extinguishes the fire)
is
chosen by the tribal council to be a wife of the chief. Her primary
task is to bear the chief a male heir, thus securing the
chiefly
succession. This beautiful custom requires that before the
timamoHo
arrives
in the village, all fires must be extinguished. The
timamoHo
takes
a candle or taper and tours the village, igniting all the fires as
she goes.
3
In what follows, I shall refer merely and for convenience to
kingships.
4
The
conjunction of the terms Shangaan and Vatsonga presaged a dispute
that lies at the heart of the issue placed before the Commission:
whether the kingdom rule over all, or merely some, xiTsonga
speakers. The case for the applicant was that the terms are
synonymous
and that all xiTsonga speakers owed allegiance to the
kingdom and its ruler.
5
During
this period three members of the Commission, including its
chairperson, resigned and its work continued under the acting
chairmanship of Professor Moleleki.
6
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission, and Others; Transnet Ltd (Autonet
Division) v
Chairman, National Transport Commission, and Others
1999
4
SA
1
SCA para 12
7
Footnotes,
authorities cited and attributions have been omitted:
8
I
find the following, which emerges from the material before the
Commission, telling
in
this regard: the applicant has the support of no more than 18 of the
33 senior traditional leaders of the people affected by
the issue.