CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 373/22
In the matter between:
MPHEPHU-RAMABULANA ROYAL FAMILY Applicant
and
THE PREMIER LIMPOPO PROVINCE First Respondent
MEMBER OF THE EXECUTIVE COUNCIL,
CO-OPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS AND TRADITIONAL
AFFAIRS Second Respondent
MINISTER OF COOPERATIVE GOVERNANCE
AND TRADITIONAL AFFAIRS Third Respondent
TONI PETER MPHEPHU-RAMABULANA Fourth Respondent
MASINDI CLEMENTINE MPHEPHU Fifth Respondent
Neutral citation: Mphephu-Ramabulana Royal Family v Premier of the Limpopo
Province and Others [2024] ZACC 12
Coram: Zondo CJ, Bilchitz AJ, Chaskalson AJ, Majiedt J, Mathopo J,
Mhlantla J, Theron J and Tshiqi J
Judgment: Theron J (unanimous)
Heard on: 22 February 2024
Decided on: 21 June 2024
THERON J
2
Summary: Traditional and Khoi -San Leadership Act 3 of 2019 —
section 13(1) — recognition of traditional leader — failure to
make a decision
Direct leave to appeal — no reason to bypass lower courts — not
in the interests of justice — refused
Relief sought — remittal to the High Court — High Court dealt
with merits — functus officio — incompetent relief sought —
bound by pleadings
ORDER
On appeal from the High Court of South Africa, Limpopo Division, Thohoyandou:
1. The application for leave to appeal directly to this Court is refused.
2. There is no order as to costs in this Court.
JUDGMENT
THERON J (Zondo CJ, Bilchitz AJ, Chaskalson AJ, Majiedt J, Mathopo J, Mhlantla J
and Tshiqi J concurring):
Introduction
This matter concerns the appointment of an acting King of the Vhavenda.
Section 13(1) of the Traditional and Khoi -San Leadership Act 1 provides for the
1 3 of 2019. Section 13(1) reads:
“13. Recognition of acting traditional and Khoi-San leaders—
THERON J
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identification of an acting King where the successor to the position of King or Queen
has not been identified. This application follows upon protracted litigation between the
parties about the appointment of a King or Queen of the Vhavenda.
Parties
The applicant is the Mphephu -Ramabulana Royal Family (Royal Family) , a
customary institution within the Mphephu -Ramabulana Traditional Community
established in terms of the Limpopo Traditional Leadership and Institutions Act.2 The
first respo ndent is the Premier of the Limpopo Province (Premier). The second
(1) Within 90 days of becoming aware of any of the instances mention ed in
subparagraphs (i), (ii) and (iii)—
(a) a royal family must identify a suitable person to act as a king, queen, principal
traditional leader, senior traditional leader, headman or headwoman, after
taking into account whether any of the grounds referre d to
in section 9(1) or 16(11)(h) or 16(14) apply to such person; or
(b) a royal family or Khoi -San council, as the case may be, must identify a
suitable person to act as a senior Khoi-San leader or branch head, as the case
may be, after taking into accoun t whether any of the grounds referred to
in section 11(1) or 16(14) apply to such a person,
where—
(i) a successor—
(aa) to the hereditary position of a king, queen, principal
traditional leader, senior traditional leader, headman,
headwoman or senior Khoi -San leader has not been
identified by the royal family concerned in terms of
section 8 or 10, as the case may be; or
(bb) to the position of senior Khoi-San leader or branch head has
not been elected by the Khoi -San council as contemplated
in section 10(1)(b);
(ii) the identification of a successor to the position of a king, queen,
principal traditional leader, senior traditional leader, headman,
headwoman, senior Khoi-San leader or branch head is being dealt
with in terms of section 8(4) or 10(7), as the case may be; or
(iii) a king, queen, principal traditional leader, senior traditional leader,
headman, headwoman, senior Khoi-San leader or branch head, as the
case may be, is unable to perform his or her functions under
circumstances other than those provided for in section 14 for—
(aa) the treatment of illness for a period of more than three
months;
(bb) study purposes for a period of more than three months; or
(cc) any other lawful purpose.”
2 6 of 2005.
THERON J
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respondent is the Member of the Executive Council: Cooperative Governance, Human
Settlements and Traditional Affairs, Limpopo (MEC). The third respondent is the
Minister of Cooperative Go vernance and Traditional Affairs (Minister). The fourth
respondent is Mr Toni Peter Mphephu -Ramabulana (Mr Mphephu-Ramabulana) who
has been identified by the Royal Family as the King of the Vhavenda. The fifth
respondent is Ms Masindi Clementine Mphephu (Ms Mphephu), who is contesting the
position of the Vhavenda Kingship/Queenship.
Background litigation
On 14 August 2010, the Royal Family identified Mr Mphephu-Ramabulana as
the King of the Vhavenda .3 On 21 September 2012, the President of the Republic of
South Africa (President) recognised Mr Mphephu-Ramabulana as the King of the
Vhavenda.4
In December 2012, Ms Mphephu instituted review proceedings in the
High Court (2012 review proceedings) , to have the identification and recognition of
Mr Mphephu-Ramabulana as the King of the Vhavenda, reviewed and set aside. The
High Court, per Legodi J, dismissed the application.
On appeal, the Supreme Court of Appeal concluded that the decisions by the
Royal Family and the President , respectively, to identify and recognise
Mr Mphephu-Ramabulana, the fourth respondent, as the King of the Vhavenda were
unlawful, unconstitutional and invalid and fell to be set aside.5 The following paragraph
from the Supreme Court of Appeal’s judgment is key to this matter:
“In light of these findings, the decision by the [President] to recognise the first
respondent as King of Vhavenda, is reviewed and set aside and the appeal must
3 This takes place in terms of section 13 of the Traditional and Khoi-San Leadership Act cited in n 1 above.
4 Traditional Leadership and Governance Framework Act (41/2003): Recognition of Mr Toni Peter Mphephu
(Ramabulana) as a King of Vhavenda Community, GNR 766 GG 35705, 21 September 2012.
5 Mphephu v Mphephu-Ramabulana [2019] ZASCA 58; 2019 JDR 0753 (SCA) (Mphephu SCA).
THERON J
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succeed. However, it would obviously be premature to consider a just and equitable
remedy before the entire review is finalised . The outstanding issues and points
in limine [preliminary matter] referred to the High Court for evidence and adjudication
have a direct bearing on any future identification and recognition of a person, even in
an acting capacity, as King or Queen of Vhavenda. Thus, any attempt to appoint
anyone to the Throne at this stage of the proceedings, would require a prior resolution
of the very same issues pending adjudication in the High Court. It would be in the
interest of all the parties to have these matters resolved before the next process of
identifying and recognising a leader in terms of section 9 of the [Traditional Leadership
and Governance] Framework Act commences. Consequently, the effect of the review
and setting aside of the first respondent’s recognition as King of Vhavenda and the
withdrawal of his recognition certificate as King will have to be stayed, pending the
completion of the proceedings, including any appeal process that might arise
therefrom.”6
The Supreme Court of Appeal ordered that t he matter be remitted to the
High Court for adjudication o f the outstanding issues before another Judge. The
Supreme Court of Appeal also ordered that the withdrawal of the certificate of
recognition of Mr Mphephu-Ramabulana as King of Vhavenda be stayed, pending the
final determina tion of the proceedings. The order of the Supreme Court of Appeal
reads:
“1. The appeal is upheld with no order as to costs.
2. The matter is referred back to the Limpopo Division of the High Court,
Thohoyandou for further adjudication on the merits before another Judge.
3. The order of the High Court is set aside and replaced with the following:
‘(a) It is declared that the decision of the eighth respondent of
14 August 2010 to identify the first respondent as a suitable
person to be appointed as the Kin g of the Vhavenda
Traditional Community is unlawful, unconstitutional and
invalid and is reviewed and set aside.
(b) It is declared that the decision of the second respondent dated
14 September 2012 to recognise the first respondent as the
6 Id at para 43.
THERON J
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King of the Vhavenda Traditional Community published
in Traditional Leadership and Governance Framework Act
[41/2003]: Rec ognition of Mr Toni Peter Mphephu
(Ramabulana) as King of Vhavenda Community , GNR 766
GG 35705, 21 September 2012 is unlawful, unconstitutional
and invalid and is reviewed and set aside.
(c) It declared that the decisions of the eight h respondent to
identify, and that of the second respondent to recognise the
first respondent as King of Vhavenda are based on a criteria
that promotes gender discrimination, and are reviewed and set
aside in that the discrimination impedes compliance with the
provisions of s ection 2A(4)(c) of the Traditional Leadership
and Governance Framework Amendment Act 23 of 2009, to
progressively advance gender representation in the succession
to the position of King or Queen of Vhavenda.
(d) The second and the fourth respondents are directed to refer the
following issues of customary laws and custom to the fifth and
sixth respondents respectively for opinion and advice to be
submitted to the High Court:
(i) What measures are in place or have to be in place for
the adaptation and transform ation of the principle of
primogeniture by the traditional communities, within
the context of s ection 2A(4)(c) of the Traditional
Leadership and Governance Framework Amendment
Act 23 of 2009;
(ii) Whether a child born before the parent is recognised
as a traditional leader, qualifies to be the successor of
the parent to that position of traditional leadership ;
and
(iii) Whether in the Vhavenda custom, the Ndumi qualifies
to be identified and recognised as a successor to a
position of traditional leadership.
(e) The costs shall be costs in the cause.
(f) The withdrawal of the certificate of recognition of the first
respondent as King of Vhavenda, shall be stayed pending the
final determination of the proceedings.’”
THERON J
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Mr Mphephu-Ramabulana and the Royal Family appealed to this Court against
the decision of the Supreme Court of Appeal. Ms Mphephu conditionally
cross-appealed against the stay order (paragraph 3(f) of the order of the Supreme Court
of Appeal ).7 This Court , in Mphephu-Ramabulana8 (Mphephu 1 ), dismissed the
main application and upheld the cross-appeal. This Court set aside the stay order on the
basis that it would not be just and equitable to suspend the order of invalidity after a
finding that the identification and recognition decisions were unlawful and invalid. This
Court held that a stay, in these circumstances, did not vindicate the rule of law or the
fifth respondent’s right to administrative justice.9 The order of this Court reads:
“1. Condonation is refused in the main application.
2. The main application is dismissed.
3. Condonation is granted in the application for leave to cross-appeal.
4. Leave to cross-appeal is granted.
5. The cross-appeal is upheld to the extent set out in paragraphs 6 to 8 below.
6. Paragraph 1 of the order of the Supreme Court of Appeal is set aside and
replaced with the order that:
‘The appeal is upheld, and the second respondent is ordered to pay the costs of
the applicant.’
7. Paragraph 3(e) of the order of the Supreme Court of Appeal is set aside and
replaced with the order that:
‘The second respondent is ordered to pay the costs of the applicants.’
8. Paragraph 3(f) of the order of the Supreme Court of Appeal is set aside.
9. The second respondent is ordered to pay the costs of the first respondent in this
Court.”
7 Paragraph 3(f) of the Supreme Court of Appeal’s order states: “The withdrawal of the certificate of recognition
of the first respondent as King of Vhavenda, shall be stayed pending the final determination of the proceedings”.
8 Mphephu-Ramabulana v Mphephu [2021] ZACC 43; 2022 ( 1) BCLR 20 ( CC); 2021 JDR 2796 (CC)
(Mphephu 1).
9 Id at para 75.
THERON J
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Current litigation
On 17 February 2022, the MEC and the Minister informed the Royal Family that
they would implement the Constitutional Court’s decision in Mphephu 1. That involved
no longer recognising Mr Mphephu-Ramabulana as King and withdrawing his benefits.
On 1 March 2022, the Royal Family convened a meeting where Mr Mavhungu David
Mphephu was recognised as the acting King.
On 1 April 2022, t he Royal Family requested that the Premier recognise
Mr Mavhungu David Mphephu as the acting King. Almost eight months passed, but
the Premier failed to recognise an acting King. On 29 November 2022, the
Royal Family approached the High Court on a “semi -urgent” basis , to review the
Premier’s failure to recognis e Mr Mavhungu David Mphephu as acting Ki ng of
Vhavenda. It sought an order declaring the failure to take a decision as unconstitutional,
unlawful and invalid and that it be replaced with a decision recognising Mr Mavhungu
David Mphephu as the acting King.
In the High Court, the Premier, the MEC and the Minister collectively opposed
the application. They raised five points in limine, namely “non-joinder, disputes of fact,
urgency, locus standi [standing], lack of exhaustion of internal remedies and, order of
substitution of first respondents”.10
The High Court dealt with two in limine points in deciding the application before
it. First, whether the application was indeed urgent and second, whether the application
was premature in light of the Supreme Court of Appeal’s direction that an acting
King/Queen could not be appointed until the review application before the High Court
was finalised.
10 Mphephu-Ramabulana Royal Family v Premier Limpopo Province [2022] ZALMPTHC 11 (Mphephu HC) at
para 11.
THERON J
9
The High Court first dealt with urgency in terms o f rule 6(12) of the
Uniform Rules of Court.11 The High Court held that the matter was not urgent as the
test for urgency was not met. 12 The High Court found that there was no adequate
explanation, nor proper circumstances placed before it, to justify the matter being heard
on an urgent basis. It thus held that the matter ought to “be struck off the roll”.13
Despite this finding, the High Court proceeded to deal with the merits of the
matter. It held that the application to appoint an acting King was premature as the
Supreme Court of Appeal had found that an acting King could not be identified until
the review application before the High Court under case number 773/2012 had been
finalised. It thus dismissed the application.
In this Court
The Royal Family applies for leave to appeal directly to this Court against the
High Court’s judgment and order. Alongside its application for leave to appeal to this
Court, the Royal Family conditionally applied for leave to appeal to the Full Court of
the Limpopo Division in the event that this Court did not grant it leave to appeal.
Issues
The issues arising in this matter are:
11 Rule 6(12) of the Uniform Rules of Court reads:
“(a) In urgent applications the court or a judge may dispense with the forms and service
provided for in these rules and may dispose of such matter at such time and place and
in such manner an d in accordance with such procedure (which shall as far as
practicable be in terms of these rules) as it deems fit.
(b) In every affidavit filed in support of any application under paragraph ( a) of this
subrule, the applicant must set forth explicitly the circumstances which is averred
render the matter urgent and the reasons why the applicant claims that applicant could
not be afforded substantial redress at a hearing in due course.
(c) A person against whom an order was granted in such person’s absence in an urgent
application may by notice set down the matter for reconsideration of the order.”
12 The test is whether, if the matter were to follow its normal course as laid down by the rules, an applicant will
be afforded substantial redress.
13 Mphephu HC above n 10 at para 18.
THERON J
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(a) Does this matter engage this Court’s jurisdiction, and should leave to
appeal directly to this Court be granted?
(b) Is the appointment of an acting King premature?
(c) Did the Premier fail to recognise Mr Mavhungu David Mphephu as the
acting King?
(d) If so, what is the appropriate remedy?
Jurisdiction
This Court’s constitutional jurisdiction is engaged a s the matter concerns the
review of the exercise of a public power. 14 In addition, t his Court has held that the
institution of traditional leadership and the determination of who should hold positions
of traditional leadership raise constitutional issues.15
Leave to appeal directly
The next question i s whether leave to appeal directly to this Court should be
granted. This question is linked to the interests of justice.
In Union Refugee Women16 and Freedom of Religion South Africa ,17 this Court
laid down the principles governing leave to appeal directly to this Court . The factors
relevant to deciding whether leave to appeal directly should be granted include: whether
only constitutional issues are involved; the importance of the constitutional issues
raised; the urgency, if any, of having a final determination of the matter ; whether
coming directly to this Court will save time and costs; the prospects of success; and any
disadvantage as a result of bypassing the lower courts . As stated, u ltimately, the
question is whether it is in the interests of justice to hear a direct appeal.
14 Steenkamp N.O. v Provincial Tender Board of the Eastern Cape [2006] ZACC 16; 2007 (3) SA 121 (CC);
2007 (3) BCLR 300 (CC) at para 20.
15 Sigcau v President of the Republic of South Africa [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) at para 15.
16 Union Refugee Women v Director, Private Security Industry Regulatory Authority [2006] ZACC 23; 2007 (4)
SA 395 (CC); 2007 (4) BCLR 339 (CC) (Union Refugee Women) at para 21.
17 Freedom of Religion South Africa v Minister of Justice and Constitutional Development [2019] ZACC 34; 2020
(1) SA 1 (CC); 2019 (11) BCLR 1321 (CC) (Freedom of Religion South Africa) at para 27.
THERON J
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In Democratic Party18 this Court said the following about direct appeals:
“In deciding what is in the interests of justice, each case has to be considered in the
light of its own facts. A factor will always be that direct appeals deny to this Court the
advantage of having before it judgments of the Supreme Court of Appeal on the matters
in issue. Where there are both constitutional issues and other issues in the appeal, it
will seldom be in the interests of justice that the appeal be brought directly to this Court.
But where the only issues on appeal are constitutional issues the position is different.
Relevant factors to be considered in such cases will, on one hand, be the importance of
the constitutional issues, the saving in time and costs that might result if a direct appeal
is allowed, the urgency, if any, in having a final determination of the matters in issue
and the prospects of success, and, on the other hand, the di sadvantages to the
management of the Court ’s roll and to the ultimate decision of the case if the
Supreme Court of Appeal is bypassed.”
The applicant submits that direct leave should be granted for the following
reasons: (i) the application bears reasonab le prospects of success; (ii) it is the
Supreme Court of Appeal’s order being challenged, thus making bypassing it necessary;
(iii) the matter concerns constitutional issues; (iv) there is a vacuum in traditional
leadership which must be promptly resolved; and (v) the matter involves an
infringement of the applicant’s rights to fair administrative action and to practice their
culture. The applicant contends that the Supreme Court of Appeal has already
pronounced on the matter and it cannot be approached to consider its own judgment.
None of these reasons justify us bypassing the lower courts in this case. The
contention that the Supreme Court of Appeal has already made a pronouncement and
can therefore not be approached in respect of its own order, is un founded. The
Supreme Court of Appeal has not pronounced on whether the Premier unjustifiably
failed to make a decision , in particular, whether he failed to recogni se Mr Mavhungu
David Mphephu as acting King.
18 Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic
Party [1998] ZACC 9; 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855 (CC) (Democratic Party) at para 32.
THERON J
12
The unarticulated concern of the applicant is that the Supreme Court of Appeal
ordered a stay in Mphephu 1, that the High Court justified its decision with reference to
the stay order of the S upreme Court of Appeal and that the S upreme Court of Appeal
cannot be expected now to reverse the logic of its stay judgment in Mphephu 1. This
concern ignores the fact that this Court, in its judgment in Mphephu 1, overturned the
stay and explained why it was in appropriate. Consequently, if the Supreme Court of
Appeal now has to consider the present appeal, it will do so in the light of this Court’s
judgment in Mphephu 1 and will know that its earlier reasoning in relation to the stay
has been rejected.
The Royal Family has advanced no reason why the Supreme Co urt of Appeal
and the Full Court should be bypassed and deprive this Court of the benefit of judgments
of those courts.19
The relief sought by the Royal Family is also incompetent. As mentioned,
despite th e conclusion by the High Court that the matter was not urgent, it rather
curiously dealt with the merits of the application. It found that the matter was premature
and dismissed the application.
In its notice of motion, the Royal Family seeks that leave to appeal be granted
against the order of the High Court, that the appeal be upheld with costs and that the
order of the High Court be set aside and replaced with an order, inter alia, that:
“a. The order of the High Court of Limpopo Local Division Thohoyandou is set
aside;
b. The matter is remitted back to the High Court for determination of the
remaining points in limine and merits of the application.”
19 See Economic Freedom Fighters v Gordhan; Public Protector v Gordhan [2020] ZACC 10; 2020 (6) SA 325
(CC); 2020 (8) BCLR 916 (CC) at paras 68-75.
THERON J
13
This relief was sought on the basis that the High Court had not dealt with the
merits of the matter and had struck the matter from the roll for lack of urgency. This is
not so. While stating that the applicant had not made a case out for urgency and the
matter ought to be struck from the roll, the High Court nevertheless dealt with the merits
of the application, albeit, in very brief terms. It is abundantly clear from the order that
the High Court dismissed the application.
In these circumstances, the relief sought by the applicant, namely, remittal to the
High Court to determine the merits of the application, is not competent. That Court is
functus officio (its authority over the matter i s over). The general rule is that once a
court has pronounced a final judgment or order, it has no auth ority to correct, alter or
supplement it.20
Further, t he applicant , in its heads of arguments asks that the order of the
High Court be set aside and replaced with an order directing the first respondent to
recognise Mr Mphephu as the acting King . It is tr ite that parties are bound by their
pleadings. Pleadings are there to “delineate the issues to enable the other party to know
what case has to be met. It is impermissible to plead one particular issue and to then
seek to pursue another at the trial”.21
This Court in Molusi22 explained:
“The purpose of pleadings is to define the issues for the other party and the Court. And
it is for the Court to adjudicate upon the disputes and those disputes alone. Of course,
there are instances where the court may, of its own accord (mero motu), raise a question
of law that emerges fully from the evidence and is necessary for the decision of the
case as long as its consideration on appeal involves no unfairness to the other party
against whom it is directed. In Slabbert, the Supreme Court of Appeal held:
20 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306F.
21 Minister of Agriculture and Land Affairs v De Klerk [2013] ZASCA 142; 2014 (1) SA 212 (SCA) at para 39.
22 Molusi v Voges N.O. [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) (Molusi).
THERON J
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‘A party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead a particular
case and seek to establish a different case at the trial. It is equally not
permissible for the trial court to have recourse to issues falling outside
the pleadings when deciding a case.’”23
A remedy directing the first respondent to take a decision was impermissibly
raised for the first time in the applicant’s written submissions. This is prejudicial to the
respondents. Therefore, that relief is not properly before this Court.
For these reasons, it is not in the interests of justice for this Court to grant leave
to appeal directly to it.
However, this is not the end of the road for the applicant. In its
founding affidavit, the applicant states that, together with its application for leave to
appeal directly to this Court, it conditionally applied to the High Court fo r leave to
appeal. Plainly, the applicant can still pursue its application for leave to appeal in the
High Court.
I emphasise that this matter should be resolved promptly and must be taken
seriously by all parties involved. The lacuna that has existed in the leadership of the
Vhavenda community since February 2022 is deeply troubling and requires speedy
resolution.
Costs
The ordinary rule is that costs follow the result. Having regard to the
circumstances of this matter, I am of the view that it is appropriate not to make a costs
order.
23 Id at para 28.
THERON J
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Order
For these reasons, the following order is made:
1. The application for leave to appeal directly to this Court is refused.
2. There is no order as to costs in this Court.
For the Applicant:
For the First and Second Respondents:
For the Fifth Respondent:
S Ravele instructed by S.O Ravele
Attorneys
MS Mphahlele SC and ZS Mothupi
instructed by State Attorney,
Thohoyandou
J Roux SC and LF Taljard instructed by
Hammann Moosa Attorneys