President of the Republic of South Africa v Sigcau and Others (CCT 282/22) [2024] ZACC 21 (3 October 2024)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 282/22

In the matter between:

PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA First Applicant

MINISTER OF COOPERATIVE GOVERNANCE AND
TRADITIONAL AFFAIRS Second Applicant

COMMISSION ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS Third Applicant

CHAIRPERSON OF THE COMMISSION
ON TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS Fourth Applicant

and

WEZIZWE FEZIWE SIGCAU First Respondent

LOMBEKISO MAKHOSATSINI SIGCAU Second Respondent

NOBANDLA SIGCAU Third Respondent

ZIYANDA SIGCAU Fourth Respondent

PREMIER, EASTERN CAPE PROVINCE Fifth Respondent

NATIONAL HOUSE OF TRADITIONAL LEADERS Sixth Respondent

EASTERN CAPE HOUSE OF TRADITIONAL LEADERS Seventh Respondent

IKUMKANI YAMAMPONDO ASENYANDENI Eighth Respondent

2
Neutral citation: President of the Republic of South Africa v Sigcau and Others
[2024] ZACC 21

Coram: Dodson AJ, Chaskalson AJ, Kollapen J, Mathopo J, M hlantla J,
Rogers J, Schippers AJ and Tshiqi J.

Judgments: Tshiqi J (unanimous)

Heard on: 28 November 2023

Decided on: 3 October 2024

Summary: Admin law — Commission committed no error of law or fact —No basis
to review the Commission’s findings — Customary law — Commission sufficiently
resolved the dispute by considering customary la w, genealogy and the views of
amaMpondo — rightful successor was never determined customarily but statutorily and
in terms of colonial and apartheid laws.




ORDER



On appeal from the Supreme Court of Appeal of South Africa (hearing an appeal from
the High Court of South Africa, Gauteng Local Division, Johannesburg):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and substituted with
the following:
“(1) The appeal is dismissed
(2) There is no order as to costs.”
4. There is no order as to costs in this Court.




JUDGMENT




TSHIQI J (Chaskalson AJ, Dodson AJ, Kollapen J, Mathopo J, Mhlantla J, Rogers J
and Schippers AJ concurring):


Introduction
[1] This is an application for leave to appeal against a judgment and order of the
Supreme Court of Appeal. The matter concerns the historical determination of the
rightful King of amaMpondo community. I will often refer to the parties who share the
common name Sigcau and other parties frequently mentioned, using their first names.
I do so for the sake of brevity , convenience and clarity and do not intend to disrespect
any of them.

Background
[2] The discernible history of amaMpondo, which has been the basis of at least three
commissions,1 can be traced back to uKumkani (King) Faku’s reign over amaMpondo
which was from 1824 – 1867. Faku’s Great Place (and thus the then homestead of
amaMpondo people) was at Qaukeni. After fending off iNkosi uShaka’s (King Shaka)
attacks, uKumkani Faku left Qaukeni to establish a second Great Place for the
amaMpondo people near to the west of the Mzimvubu river. After establish ing the
second Great Place, uKumkani Faku returned to Qaukeni, leaving his eldest son
Ndamase to rule there. This effectively separated amaMpondo into two:
amaMpondo aseQaukeni (Eastern Pondoland) an d amaMpondo aseNyandeni
(Western Pondoland).


1 The three commissions being: the 1938 Commission which recommended the appointment of Botha followed
by the 2006 Commission which determined the position of the paramountcies of the amaMpondo and lastly the
2010 Commission which appointed Zanozuko. The sequence of these events follows in the text.
TSHIQI J
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[3] In Qaukeni, uKumkani Faku was succeeded by his son Mqikela, who in turn was
succeeded by his son Sigcau. Sigcau was succeeded by his son Marhelane who, when
he died in 1921, was succeeded by his son Mandlonke. There was no known challenge
to uKumkani Mandlonke’s kin gship and that of his predecessors . Mandlonke was
however still a minor at the time, and his uncle, Mswakeli, acted in his position between
1921 and 1935. During this period, the Black Administration Act2 (initially called the
Native Administration Act) was enacted. It was on the basis of that Act that the kings
and queens of African communities were referred to as Paramount Chiefs.

[4] In 1937 uKumkani Mandlonke died without leaving any male issue, in or out of
wedlock. As there was no identified male issue, his brothers had to be considered for
kingship. A dispute arose between two of his half-brothers, the late Botha and the late
Nelson Sigcau who were both Ma rhelane’s sons, but were born of different mothers .
Nelson was a son of iQadi (a King’s wife who plays a supportive role to one of the
King’s houses to which she is attached.) and Botha was the son of a Right-Hand Wife.
In 1938, Botha solicited the intervention of the Governor-General, who was responsible
for the administration of the Black Administration Act , to investigate and determine
who was to succeed Mandlo nke between Botha and Nelson. The 1938 Commission
was subsequently established and it recommended that Botha be appointed as
Paramount Chief. Botha was then installed by the Governor -General as
Paramount Chief of Eastern Pondoland . It is common cause that the dispute was
statutorily settled in terms of the Black Administration Act and not customarily, when
Botha was recognised as the “ Paramount Chief” of the Eastern Pondo land by the then
Governor-General.

[5] Such recognition is refl ected in minute 956 dated 9 May 1958 by the office of
the Governor-General which states in relevant part:

“[The] Ministers accordingly have the honour to recommend that His Excellency may
be pleased in terms of subsection (7) of section two of the Native Administration Act,

2 38 of 1927 (Black Administration Act).
TSHIQI J
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1927 (Act No. 38 of 1927), as amended, and section one hundred and two of
Proclamation No. 180 of 31 August 1956, to authorise–
1. Botha Sigcau to assume the title of Paramount Chief of Eastern Pondoland,
comprising the districts of Bizana, Flagstaff, Lusikisiki and Tabankulu;
and
2. Victor Poto to assume the title of Paramount Chief of Western Pondoland,
comprising the districts of Libode, Ngqeleni and Port St Johns.”

[6] In Sigcau the Appellate Division, in determining a dispute between Nelson and
Botha as to who was the rightful heir to the property of the Great House after the death
of uKumkani Mandlonke, noted that the Governor-General had appointed Botha as the
Paramount Chief. In its analysis , the Court dealt with what happened after
uKumkani Mandlonke’s death as follows:

“[T]ribal meetings were held but no agreement could be arrived at because there was a
genuine dispute as to the right of succession in an unprecedented situation . It is
unnecessary to go into the details of what happe ned thereafter save that two tribal
meetings were held at which the majority favoured the claim of Nelson. Thereafter the
Government appointed a commi ssion to enquire into the ma tter of the Chieftainship
and, acting on the recommendation of the commission, appointed Botha Paramount
Chief in terms of section 23 of Act 38 of 1927. But the appointment did not determine
the question of succession to the property of the Great House.”3

The Court reasoned further:

“The Government in making an appointment is not bound to appoint the man who
would be chief according to Native Custom, and it could not be seriously s uggested
that a custom has grown up since 1927 of giving the property of the man who would
be Chief by Native Custom to the Chief appointed by the Government if they were not
one and the same person.”4


3 Id at 74.
4 Id at 75.
TSHIQI J
5
[7] It is thus clear that Botha was recognised as traditional leader , not in terms of
custom or the views of the majority in the community , but in terms of the
Native Administration Act. Author Govan Mbeki writes that the people at that time
felt that Botha had enlisted the assistance of the aparthei d authorities who , after
setting up a commission, concluded that Botha should succeed. 5 According to
Govan Mbeki, this enraged the community and they, amongst others, demanded the
removal of Botha. 6 This was not placed in dispute at the Commission , the
proceedings of which are at issue in the present litigation.7 In any event, Botha was
not appointed as a K ing of amaMpondo, but as a Paramount Chief, which was the
office created statutorily to replace customary kin gship. As will be explored later,
amaMpondo had another string to their bow: they decided to rely on
ukungena custom (a traditional custom wherein a widow becomes the wife of her
brother in law) to produce an heir for Mandlonke’s house. More about that later.

[8] Botha passed away in 1978. After his death , a special meeting of the
Qaukeni Regional Authority was held on 10 December 1978. The minutes of the
meeting reflect that the meeting was held before Botha’s funeral service and its purpose
was to consider his successor. At that meeting Nelson, seconded by Mak Sigcau, moved
for the recommendation of Mpondombini Sigcau, the eldest son of Botha, as the
successor to his late father.

[9] The dispute over kingship did not end. It re-emerged, this time between Botha’s
son, Mpondombini, and Zwelidumile Sigcau, the son of his brother Nelson . This
discontent resulted in the intervention of the then Transkei Government under the
leadership of Kaizer Daliwonga Matanzima who issued an instruction that amaMpondo
should vote on the issue. The majo rity voted in favour of Mpondombini . He was
subsequently appointed as the Paramount Chief, which meant that he succeeded his

5 Mbeki The Peasant’s Revolt (1964, South Africa) at 116.
6 Id.
7 See n 1 above.
TSHIQI J
6
father, Botha. Following this, Zwelidumile launched a court challenge , but he passed
away in 1984 before the matter reached finality.

[10] In September 2004, the Traditional Leadership and Governance Framework
Act8 (Traditional Leadership Act) came into operation. Where relevant I shall refer to
the Traditional Leadership Act as it read prior to coming into force on 25 January2010
of the Traditional Leadership and Governance Framework Amendment Act9 as the
“unamended Act”. I shall use the expression “amended Act” for the
Traditional Leadership Act as it read as from 25 January 2010. With effect fro m
1 April 2021, the Traditional Framework Act was repealed by the
Traditional and Khoi-San Leadership Act.10

[11] In terms of the unamended Act, the Commission on Traditional Leadership
Disputes and Claims (Commission) was established. The members of the Commission
were appointed by the then President of the Republic of S outh Africa in terms of
section 23(1) of the unamended Act. It is not in dispute that the members of the
Commission were appointed because of their expertise in customary law and traditional
leadership. Regarding amaMpondo, the Commission’s first task, relevant to this matter
was to investigate and make determinations in relation to amaMpondo aseNyandeni and
amaMpondo aseQaukeni paramountcies. In particular, in respect of this first task, the
Commission complied with its duty in terms of section 28(7) and exercised its powers
in terms of section 25(2)(a)(i) of the unamended Act. Section 28(7) provided:

“The Commission must, in terms of section 25(2), investigate the position of
paramountcies and paramount chiefs that had been established and recognised, and
which were still in existence and recognised, before the commencement of this Act,
before the Commission commences with any other investigation in terms of that
section.”


8 41 of 2003.
9 23 of 2010.
10 3 of 2019.
TSHIQI J
7
[12] Section 25(2)(a)(i) of the unamended Act stated that the Commission ha d
authority to investigate, either on request or of its own accord, amongst others and
relevant to this case:

“(i) 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.”

[13] The Commission concluded that the kingship of amaMpondo exists, that
Mqikela retained the kingship of amaMpondo as a whole and that in terms of customary
law and the Framework Act, the Nyandeni paramountcy was not a kin gship. This
determination, which concluded that there was only one kingship/queenship, united
amaMpondo aseQaukeni and amaMpondo aseNyandeni. The method and procedure of
that investigation, the narrative and the findings of t hat report were never legally
challenged and remain extant.

[14] In 2006, during Mpondombini’s reign, Zwelidumile’s son, Zanozuko, who was
born in 1974, lodged a claim with the Commission contesting the incumbency of t he
envisaged kingship/queenship. This was opposed by Mpondombini. The
Commission’s mandate to investigate this claim was sourced in section 28(8) read with
section 25(2)(2)(ii) of the unamended Act. Section 28(8) of the unamended Act
provided as follows:

“(a) Where, pursuant to an investigation conducted in terms of subsection (7), the
Commission has decided that a paramountcy qualifies to be recognised as a
kingship or queenship, such a paramountcy is deemed to be recognised as a
kingship or queenship in terms of section 3A.
(b) The incumbent paramount chiefs, in respect of the kingships and queenships
contemplated in paragraph (a), who were recognised before the
commencement of this Act, are deemed to be kings or queens, subject to
investigation and recommendation of the Commission in terms of
section 25(2).”

TSHIQI J
8
[15] Section 25(2)(a)(ii) of the unamended Act stated that the Commission ha d
authority to investigate “a traditional leadership position where the title or right of the
incumbent is contested.”

[16] The manner in which the Commission dealt with the dispute is set out i n the
answering affidavit of the then Acting Chairperson of the Commission, filed at the
High Court during the review proceedings in this matter. The then Acting Chairperson
said that the investigation included conducting research , interviews and consultation s
with the elders of both groups. Further, he stated that the Commission applied the
following procedure in dealing with the dispute on incumbency: that upon receipt of the
claim from Zanozuko, it referred it to Mpondombini for his comment, which he
provided. Thereafter, the Commission referred Mpondombini’s response to Zanozuko
and then summoned the parties to a public hearing regarding the claim and the
opposition thereto. Each par ty was invited to present oral and documentary evidence
and could summon any number of witnesses . All the witnesses were subjected to
cross-examination by the opposing party and questions from the panel of the
Commission’s experts. In reaching its conclu sion the Commi ssion further relied on
section 25(3)(a) of the unamended Act which provided:

“When considering a dispute or claim, the Commission must consider and apply
customary law and the customs of the relevant traditional community as they were
when the events occurred that gave rise to the dispute or claim.”

[17] Although the Acting Chairperson of the Commission does not elaborate on this,
it is clear from its determination that it also considered the 1978 court challenge relevant
to the present dispute, the report emanating from the 1938 Commission and several
authors such as Govan Mbeki and Victor Poto. Regarding the court challenge the
Commission said:

“Botha ruled as Paramount Chief of amaMpondo aseQaukeni until his death in 1978.
Nelson's biological son Zwelidumile Sigcau again raised the issue of succession to the
throne. In 1978 Zwelidumile instituted an action against the Respondent over
TSHIQI J
9
ubuKumkani of amaMpondo aseQaukeni in the Supreme Court of the former Transkei.
The basis of Zwelidumile's claim was that he was the sociological first born son of
Mandlonke and therefore the heir to the throne according to custom . Unfortunately,
Zwelidumile passed away in 1984, before the matter could be finali sed. In 1983
Magingqi lodged an application in the former Supreme Court of Transkei against the
Respondent wherein she unsuccessfully sought to return to Mzindlovu. Prior to the
public hearings before this Commission, the Claimant had approached the office of the
Registrar of the High Court, Mthatha, for more information in the matter. However,
the court file concerning this application could not be located.”

[18] The Acting Chairperson of the Commission said the following regarding its
determination and findings:

“44.2 The Commission then considered the issues to be determined, and they are:
(a) When Mandlonke died without a successor, who was to succeed him
in terms of the customary law and customs of amaMpondo?
(b) Was Magingqi the great wife of Mandlonke?
(c) Was the appointment of Botha according to the customary law and
customs of amaMpondo?
(d) Did Nelson and Magingqi enter into a union of ukungena?
(e) Is the claimant [Zanozuko] the rightful heir to the throne of
amaMpondo?
44.3 The Commission then went on to analyse the issues, and in doing so took
cognisance of the following:
44.3.1 The traditional leader:
(i) should not have lost his position through indigenous political
processes;
(ii) in considering the dispute the Commission must consider and apply
customary law and customs as they were when the dispute arose; and
(iii) the Commission has authority to investigate disputes dating from
September 1927 unless the claimant provides good grounds for the
Commission to go beyond this date.”

[19] The Commission subsequently made its finding in January 2010, informing the
President that Zanozuko is entitled to be heir to the throne of amaMpondo. It was while
TSHIQI J
10
Mpondombini was in hospital in August 2010 that he learnt that a public announcement
to this effect had been made.

Litigation history
[20] In November 2010, Mpondombini instituted the current review proceedings. In
order to avoid confusion, it bears mentioning that, in those earlier proceedings ,
Mpondombini was unsuccessful in the High Court and the Supreme Court of Appeal
but succeed ed in this Court . This Court did not determine the merits. The review
proceedings proceeded in this fashion: Mpondombini’s review application was heard in
the High Court and on 19 March 2012, De Klerk AJ dismissed it and refused leave to
appeal. The app lication suffere d a similar fate at the Supreme Court of Appeal.
However, he was granted leave to appeal by the Constitutional Court. He subsequently
died in March 2013, before the Constitutional Court delivered its judgment on
13 June 2013.

[21] In a judgment that came to be known as Sigcau I,11 the Constitutional Court set
aside the judgment and orders of De Klerk AJ on a procedural ground of review, and
ruled that the recognition of Zanozuko was invalid because the then President of the
country had relied on the provis ions of the amended Traditional Leadership
Framework Act instead of the unamended version . As stated, t he Court left the
consideration of the merits of the review application open for re-adjudication.

[22] The Commission and the Presidency’s understanding of the judgment was that
all that was needed was for the fo rmer President to issue another notice of recognition
in compliance with the provisions of the unamended Act in recognising Zanozuko
again. This led to the second application , which was brought by the
Minister of Cooperative Governance to seek a proper interpretation of the order in
Sigcau I. The application came before Murphy J in the High Court,
Gauteng Division, Pretoria. The High Court judgment was delivered on 20 November

11 Sigcau v President of the Republic of South Africa [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) (Sigcau I).
TSHIQI J
11
2015, in which Murphy J agreed with the Minister ’s inter pretation of the
Constitutional Court order in Sigcau I to the effect that all that the decision entailed was
that the President should publish the requisite notice of Zan ozuko’s recognition in the
Government Gazette and issue a certificate of recognition in favour of Zanozuko under
the unamended Act.

[23] The second respondent in this matter, Lombekiso Makhosatsini Sigcau,
Mpondombini’s widow, and her daughter, Wezizwe Feziwe Sigcau, the first respondent
in this matter, disagreed with this view. This was after Mpondombini’s death in 2013.
With leave of the High Court granted on 3 June 2016, they launched an appeal to the
Supreme Court of Appeal which delivered its judgment on 7 June 2017, dismissing the
appeal. Lombekiso then approached this Court whi ch delivered its judgment on
11 September 2018 in Sigcau II.12

[24] This Court upheld the Supreme Court of Appeal and High Court orders. It held
that on a proper construction of Sigcau I, and in light of the decision of the Commission
which held him not to be entitled to be K ing, Mpondombini’s deemed recognition as
iKumkani ceased upon the issuing of the decision of the Commission. Accordingly, it
was not necessary to remove him as iKumkani as provided for in section 10. The
President did not, on the facts of this case, have to either initiate, or wait for, the removal
of Mpondombin i as iKumkani as part of the steps taken to ensure the
“immediate implementation” of the Commission ’s decision. The President was
authorised to recognise Zanozuko in terms of the unamended Act. Again , this Court
left “alive” the question of the merits of the review application.

[25] Following this, on 5 October 2018, We zizwe and Lombekiso applied for
substitution as applicants in the review application , due to the death of Mpondombini .
The substitution order was granted by consent in the High Court. In the same year on
30 November 2018, the President of the Republic of South Africa published a

12 Sigcau v Minister of Cooperative Governance and Traditional Affairs [2018] ZACC 28; 2018 (12) BCLR 1525
(CC) (Sigcau II).
TSHIQI J
12
Presidential Minute recogni sing Zanozuko as iKumkani of amaMpondo. On
10 December 2018, the mother and daughter requested the
High Court, Gauteng Division, Pretoria to place the review application on the roll for
the adjudication of the merits.

The High Court review application on the merits of the succession to kingship
[26] The review application canvassed the following issues:
(a) Whether the applicants must seek condonation for any delay in
prosecuting this review application and if so, whether condonation should
be granted.
(b) Whether the evidence of an expert, Dr Claassens should be admitted.
(c) Whether the impugned decisions should be reviewed on any of the
following grounds:
(i) that the Commission, in investigating and deciding the above disputes,
failed to correctly fulfil its statutory role in ascertaining the relevant
provisions of amaMpondo customary law; and
(ii) that the Commission erred in concluding that Nel son and not Botha
was the rightful successor to Mandlonke in terms of the customary law
of amaMpondo.
(d) Whether Zwelidumile, and later Zanozuko , had a legitimate claim to the
throne through the custom of ukungena, including the questions whether:
(i) ukungena was practised by royalty in amaMpondo custom;
(ii) Magingqi was a Great Wife in the royal house; and
(iii) an ukungena union in fact occurred between Nelson and Magingqi.
(e) Whether the Commission had a duty to consider the views of amaMpondo
on whether Zanozuko Sigcau ought to be appointed and, if so, whether
this duty was satisfied.
(f) If the review is successful, what the remedy should be.

[27] In determining the question of condonation, the Court concluded that, in spite of
the failure by the applicants to prosecute the review application without delay and
TSHIQI J
13
failure to apply for condonation, which ordinarily would be fatal to their case, any
prejudice suffered by the respondents as a result of the delay was outweighed by the
need to bring this matter to finality. The Court reasoned that it was essential that after
Sigcau I and Sigcau II, the litigation between the parties regarding this dispute should
be adjudicated to finality. It further held that it was in the interests of both parties not
to have another round of appeals solely on the issue of delay.

[28] Regarding Dr Claassens’ evidence, the High Court admitted such evidence. The
contention was that the Commission , in arriving at its decision, failed to consult
amaMpondo. This submission by the applicants was predicated on the opinion of
Dr Claassens that customary law is not static, that it evolves and that popularity is one
of the relevant factors in determining traditional leadership succession in customary
law.

[29] The High Court considered the contention of the respondents that by
interviewing the members of the amaMpondo community during the first investigation
to determine the existence of kingship/queenship, and thereafter conducting public
hearings where oral evidence was presented during the second investigation on
incumbency, the Commission's approach was properly consultative.

[30] In deciding this issue the High Court said—

“The notion of ‘consulting the public’ for the traditional leadership succession in this
case was certainly fraught with inconsistencies and obvious practical difficulties.
Firstly, during the hearing before the Commission in 2009, Mpondombini contended
that the Commission should consider his popularity with the ‘Chiefs’ (senior traditional
leaders). In support of that contention he submitted the Chiefs' confirmatory affidavits.
As it will appear later in this judgment, that popularity was not an event as at the time
the dispute arose, which would require consideration in terms of section 25(3)(a) of the
old Act.
Similarly, the applicants in Sigcau II relied on the notion that the Commission had to
consult the royal family in terms of section 9 of the old Act, before taking the impugned
TSHIQI J
14
decision. The Constitutional Court in the main judgment of Sigcau II rejected the
applicants’ argument that the decision of the Commission taken in terms of
section 25(2)(b)(ii) of the old Act had to be referred to the royal family in terms of
section 9 of the same Act. The Court found that on a proper reading of the Act, that
form of consultation with the royal family would be inconsistent with the purpose of
section 25 of the old Act.
In this Court, the applicants now rely on the notion of public consultation as the living
law. In the first instance , this Court could not find any evidence of the sources and
content of customary law rules on public consultation for the determination of
traditional leadership succession in the customary laws and cus tom of amaMpondo.
Further, there was no evidence presented to this Court as to what form that consultation
would take, in terms of customary law. In particular, and as observed by Froneman J
in the dissenting judgment in Sigcau II , in instances where the royal family,
alternatively the entire amaMpondo nation evidence prevalence of division or
factionalism in regard to views on the choice of leadership , it seems that eventually
traditional leadership may have to be determined through a democratic process of
casting of votes.”

[31] The High Court then held that neither counsel nor Dr Claassens, in her opinion
to the Court, attempted to demonstrate, with reference to this case, how the living
law should have been applied by the Commission to resolve the dispute, against the
customary rules of leadership succession as the Commission found them.

[32] It continued and held—

“It seems to me that the Commission was thus enjoined by section 25(3)(a) to go back
in time, to the events of 19 37 to 1939, to unravel what appeared from the evidence
submitted by both parties and their witnesses, to be the root of the dispute, namely, the
events relating to the leadership contestation between Nelson and Botha. The living
law applicable was therefore that of the period from 1937, after Mandlonke's death to
1939 when the then apartheid government installed Botha as uKumkani. The living
law during the period between 2008 to 2009, when the Commission heard evidence
leading to the impugned decision, would not have assisted the Commission to resolve
the dispute within the prescribed terms of section 25(3)(a).”

TSHIQI J
15
[33] The High Court then referred to the living law at the time of the dispute and held:

“The Commission’s 2010 report records that in regard to the question of popularity ,
Nelson was more popular and acceptable to the community than Botha. Mbeki in his
publication wrote:
‘The then Nationalist government moved to invade the area with its
new policies, and from the very start it went wrong, making the serious
mistake of choosing as the arch­champion of Bantu Authorities
Chief Botha Sigcau, a man already discredited in the eyes of his
people. As far back as 1939, when the choice had had to be made of a
successor to the Paramount Chief of East Pondoland the government
of the day had picked on Chief Botha in preference to his half-brother
Nelson, who had been regarded by many as the rightful heir. The use
of Chief Botha by the Nationalists to introduce Bantu Authorities in
the face of popular opposition to his chieftainship, was bound to
provoke widespread resentment.’
Having regard to Mbeki’s views expressed above, had the apartheid government then,
consulted the public in resolving the dispute between Nelson and Botha in compliance
with the popularity factor as the living law, it seems Botha would not have been
appointed uKumkani. Consequently, Mpondombini would not have be en entitled to
succeed him either. However, the popularity factor as advocated by the applicants to
be considered post 2008, is not the basis on which the Commission took the impugned
decision.”

The Court then concluded on this score that:

“The Commission was constrained by section 25(3)(a) of the old Act to consider the
events as they were at the time the dispute arose. In that regard, the content of the
evidence presented by both parties and their witnesses pointed to the events as they
were when the dispute started in 1937. The Commission’s decision was thus informed
by that evidence, which came from some witnesses who lived during that period;
witnessed and experienced the events as they unfolded then and lived long enough to
narrate them in 2009. It seems to me that the Commission’s public hearings and the
evidence obtained therein between 2008 and 2009, were a form of public consultation
within the notion o f the living law on the customary law and custom of amaMpondo
relevant to this case.”
TSHIQI J
16

[34] It further held that there was no evidence placed before the Commission that, in
spite of section 25(3), the Commission had to consult the people of amaMpondo. It
highlighted that the witnesses had testified about the events that occurred from
1937 to 1939. It also held that apart from making the allegation that the Commission
failed to consult the people of amaMpondo, the applicants in the High Court “could not
point to the customary rules of succession as to how and with whom, in view of the
provisions of section 25(3), the Commission should have conducted the consultation”.

[35] The High Court also applied its mind to the question whether the Commission,
in investigating and deciding the above disputes, correctly fulfilled its statutory role in
ascertaining the content of the relevant provisions of amaMpondo customary law. The
High Court held that the Commission applied the customary law and custom of the
traditional leadership succession of amaMpondo which dictates that the son of the
Right-Hand Wife does not succeed the king. In arriving at this conclusion , the
High Court rejected the evidence of uKumkani Victor Poto whom it concluded had
given different versions about the custom on two different occasions. The Court dealt
with this in this fashion:

“Mpondombini testified before the Commission with reference to the statement by
uKumkani Poto that a son of the Right­Hand Wife succeeds ahead of any son of iQadi.
Poto was an author who, when presenting evidence before the courts in the 1940s i n
regard to the dispute between Botha and Nelson, recanted the view he expressed in his
book published in 1927, prior to the eruption of the dispute between Botha and Nelson.
In his book, Poto wrote that sometimes the chief dies without an issue. Under those
circumstances the men choose a Great Wife from the king’ s wives. The son of that
chosen great wife is then installed as the chief. The successor is never chosen from the
Right-Hand House. Sometimes the chief dies without a great wife, the men choose a
successor.
Poto recanted this statement when he was called to assist in resolving the dispute. He
changed his view in favour of Botha that a son from the Right-Hand House can succeed.
Of importance to note, when in l944 Poto was recanting what h e wrote back in 1927,
he had ascended the position of uKumkani of amaMpondo of Nyandeni as the son of a
TSHIQI J
17
Right-Hand Wife. He was thus conflicted and had a vested interest in asserting this
view. The Commission accepted the view Poto had expressed in the book because he
expressed such view in 1927, at the time he was free of influence and vested interests.”

[36] The High Court then dealt with the question whether the Commission erred in
concluding that Nelson, and not Botha , was the rightful successor to Mandl onke in
terms of the customary law of amaMpondo. The High Court held that the evidence
showed that had it not been for the intervention of the Government of the time, and
having regard to the living customary law at the time of the dispute, Nelson, who wa s
more popular than his brother Botha, would have ascended the throne.

[37] Then the Court considered whether Zwelidumile in any event had a legitimate
claim to the throne through the custom of ukungena. The High Court dealt with this
issue by asking different interrelated questions. It first asked itself whether ukungena
was practised by royalty in amaMpondo custom. In order to answer this question, it
referred to Mpondombini’s affidavit submitted to the Commission du ring the hearing,
where he stated “if a deceased Paramount Chief is succeeded by two brothers , and
leaves no issue of his own, then ukungena union can only be entered into between the
widow and the elder of the two such brothers .” The Court then said further about
Mpondombini’s affidavit:

“Mpondombini went on to state in the affidavit that his father Botha being older than
Nelson was the first to be requested to enter into the ukungena union with Magingqi
and he refused. The point being made is that Mpondombini’s affidavit corroborated
the finding by the Commission that the ukungena custom was indeed practised by
the royalty of amaMpondo.”

[38] In this regard the High Court concluded that Mpondombini himself had
confirmed that ukungena was part of the amaMpondo custom at the time.

[39] Next, the High Court determined whether Magingqi was a Great Wife in the
royal house. The High Court held that the Commission found, on the basis of the
TSHIQI J
18
evidence placed by witnesses before it, that at the time Nelson performed the custom of
ukungena, Magingqi was still the occupant of the Great House at Mzindlovu. The elders
intended that the ukungena union be held with the occupant of the Great House, who at
that time was Magingqi and not Mandlonke’s other wife, Mampofane. The High Court
found it significant that Poto himself at that time had warned that any ukungena union
with Magingqi would spell trouble in future. He (Poto) had not referred to Mampofane.
The High Court also referred to the conclusions of the Commission:

“The Commission therefore concluded, mainly from the direct and indirect
evidence of the witnesses that Magingqi was the Great Wife, who had resided with
Mandlonke at the Great House before the latter's death. The evidence also supports
the allegation that she continued to stay there after the death of Mandlonke, until
she was pressured to leave the Great House, hence her application to the Supreme Court
of Transkei in 1983 in an attempt to return to the Great House.”

[40] The High Court asked whether an ukungena union had in fact occurred between
Nelson and Magingqi. It also accepted that this union had in fact occurred and that from
this union Zwelidumile was Zanozuko’s biological father, but was regarded as
Mandlonke’s son sociologically by virtue of the ukungena system.

[41] The High Court held that, for the above reasons, it was unable to find any
evidence that the decision of the Commission was either irrational, unlawful ,
unreasonable or procedurally unfair and that it should be set aside.

Supreme Court of Appeal
[42] Aggrieved by the decision of the High Court, Wezizwe and Lombekiso
approached the Supreme Court of Appeal. The S upreme Court of Appeal listed the
grounds of review as being that the Commission:
(a) misunderstood the nature of customary law;
(b) failed to consider the import of the appointment of Mpondombini in
Sigcau I in 1979;
(c) failed to consider the views of the amaMpondo in 2008; and
TSHIQI J
19
(d) incorrectly determined that Botha was not the legitimate successor in
1938.

[43] Before the Supreme Court of Appeal, the two appellants in that Court argued that
the Commission made an error of law in that, in its process, it made use of rigid rules
of genealogical succession. It failed to investigate and apply the relevant customary
law at the time of the dispute. They further submitted that in 1939, Botha rather than
Nelson, was the candidate preferred by the community and that the Commission ignored
this f actor. It was also submitted that the report by the Commission reveals that it
centred its inquiry on genealogy as the absolute requirement for leadership positions
and paid no regard to the question of public participation in the determination of a king
or queen. Furthermore, it was contended that the Commission also failed to consi der
that amaMpondo preferred Mpondombini to Zwelidumile in 1979, failed to consider
the fitness of Zanozuko to govern and had no regard for community participation in its
2010 report.

[44] The two appellants in that Court also contended that the Commission adopted an
adversarial, trial-like fact-finding process and did not, on its own, investigate the issues
before it. It confined its task to the consideration of the evidence and arguments
presented to it by the rival claimants to the throne.

[45] The respondents in the Supreme Court of Appeal argued that the Commission
heard extensive evidence from Mpondombini’s witnesses. They retort ed that the
Commission had no duty to “patch-up” the evidence provided by Mpondombini.
Having heard evidence from Zanozuko (the claimant) and members of the community
called by Mpondombini, the Commission could rely on the expertise of its own
members in assessing, understanding and contextualising the evidence, as the members
of the Commission were customary law experts themselves.

[46] The Supreme Court of Appeal held that the Commission misunderstood its
function in the 2010 process, in confining itself to the evidence led by Mpondombini
TSHIQI J
20
and Zanozuko and the witnesses who testified at the hearing. It also ignored relevant
evidence on how amaMpondo had chosen their leaders at various times in the past. In
line with the submission on behalf of Mpondombini in that Court , on the evidence
before the Commissio n amaMpondo customary law incorporated indigenous political
processes where the public or community participated in choosing between eligible
candidates, based on both the strength of their familial claim and their ability to lead.
The Supreme Court of Appeal reasoned further that the Commission’s findings belied
its claim that it took all relevant factors into account because c onsiderations of public
participation and acceptability or fitness for office were ignored.

[47] The Supreme Court of Appeal continued:

“A clear example of the Commission’s misconception of relevant principles was its
view that the 1938 Commission was wrong in considering the character flaws of a
potential successor. The Commission remarked that such consideration was ‘not in
line with customary law and customs of amaMpondo’. Clearly, the Commission erred
in this regard . . .
It is undoubtedly so that the Commission’s 2010 hearing was adversarial. All that it
did was to listen to the competing claims of Mpondombini and Zanoz uko. It merely
decided on the basis of that evidence. When the hearing took place, certainly the
amaMpondo customary law and customs had evolved. It was incumbent on the
Commission to investigate these factors by calling more members of the royal family,
an imbizo, or experts, or all of them, to widen the base from which the salient principles
of the living customary law of amaMpondo on traditional leadership could be
determined.”

[48] It referred to this Court’s judgment in Shilubana:13

“[T]he practice of a particular community is relevant when determining the content of
a customary-law norm. As this Court held in Richtersveld, the content of customary
law must be determined with reference to both the history and the usage of the
community concerned. ‘Living’ customary law is not always easy to establish and it

13 Shilubana v Nwamitwa [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC); (Shilubana) at para 46.
TSHIQI J
21
may sometimes not be possible to determine a new position with clarity. Where there
is, however, a dispute over the law of a community, parties should strive to place
evidence of the present practice of that community before the courts, and courts have
a duty to examine the law in the context of a community and to acknowledge
developments if they have occurred.”

[49] The Supreme Court of Appeal then compared the process followed by the
Commission in 2008 with the one followed in 2010 and said:

“Curiously, as explained in its 2008 report, the methodology used by the Commission
in discharging its function of investigating both paramountcies of amaMpondo14
comprised two stage hearings. During both stage s it held public hearings in which
selected members of the royal houses and others appointed by them testified under
oath. Those members also referred the members of the Commission to supplementary
research material. Thereafter, the commissioners asked q uestions. Interested parties
were afforded the opportunity to challenge the versions provided by the members of
the royal houses. Members of the public were permitted to pose questions to the
presenters and to make comments. As already explained, and in stark contrast with this
procedure, in its investigative function during 2009 and 2010, the Commission
confined itself to the evidence tendered by the claimants to the throne. In my view, the
process in which the Commission engaged during 2009 to 2010, which was essentially
receiving such evidence as the parties chose to tender, was not proper. An investigation
as envisaged in section 25(2) of the Framework Act entailed the Commission listening
to tendered evidence, initiating active searches for further evidence, and inviting input
from relevant persons other than the contenders to the throne.”

[50] Regarding the appointment of M pondombini in 1979 , the
Supreme Court of Appeal held that neit her the Commission nor the High Court
considered the relevance of the evidence to the effect that Mpondombini’s ascendance
to the throne was not confined to kinship with his predecessor but was based on a choice
made by the community in an election which was held at the instance of the then
Transkei Government, who referred the matter to a vote.


14 That is, amaMpondo aseQaukeni and amaMpondo aseNyandeni.
TSHIQI J
22
[51] The Supreme Court of Appeal held that the Commission failed to apply the
correct customary law at the time of the dispu te. It held that the Commission was
incorrect in confining itself to the evidence led by both disputants to the throne and in
failing to incorporate community participation.

[52] The Supreme Court of Appeal held that the Commission and the High Court
erred in finding that Botha could never succeed his father bec ause he is the son of the
Right-Hand House. The Supreme Court of Appeal determined that it was possible for
Botha to ascend the throne and that Right-Hand House ascensions were not unheard of
in amaMpondo custom.

[53] The Court held that it was important that Mpondombini’s succession to the
throne had been supported by other traditional leaders of the amaMpondo nation (who
had served under Botha), including Nelson. The evidence before the Commission was
that Mpondombini was supported by 25(twenty-five) senior traditional leaders
compared to the 3(three) who supported Zanozuko. The Supreme Court of Appeal
found it important that even though Mpondombini was opposed t o the idea of holding
an election, the amaMpondo heeded the call and voted in his favour. However, the
Supreme Court of Appeal acknowledged that the election was facilitated by the
Government of the Transkei homeland.

[54] The Supreme Court of Appeal upheld t he appeal and set aside th e order of the
High Court. It further set aside the Commission’s 2010 determination, as well as the
President’s report and notice on the appointment of Zanozuko as King.

In this Court
Applicants’ submissions
[55] The applicants argue that the statutory powers given to the Commission must be
understood against the background of the following interlinked principles: (a) the
Commission’s actions are administrative action, and can only be reviewed in
TSHIQI J
23
accordance with section 6(2) of the Promotion of Administrative Justice Act15 (PAJA),
and that the review basis envisaged in sec tion 6(2) has not been shown; (b) that
deference ought to be shown to the determinations of the Commission, bearing in mind
its expertise regarding traditional leaders hip and the content and application of
customary law for a particular community; and (c) that the Commission was tasked with
determining the applicable customary law and customs of amaMpondo as they were
when the events occurred which gave rise to the dispute or claim.

[56] The applicants argue further that there was no basis for the conclusion by the
Supreme Court of Appeal that the Commission was bound to hold a process akin to an
imbizo (gathering to share knowledge) to resolve the matter. The applicants submit that
the Commission did take the community’s views and the living customary law of
amaMpondo into consideration when it determined the matter.

[57] The applicants argue further that Mpondombini was allowed a full opportunity
to be heard before the Commission. He raised no serious attack on the fairness of the
process at the time. Therefore, it is not open to the respondents to raise an issue
regarding the process followed, long after its completion, when they were happy with
it at the time and raised no objection until the investigation was finalised.

Respondents’ submissions
[58] The respondent s’ contentions are that the Commission failed in its duty to
investigate and apply the customary law at the time relevant to the dispute. To support
their argument, they submit that by applying a strict genealogical approach, the
Commission failed to identify the customs go verning amaMpondo and also the central
role of community preference and fitness to govern in choosing between viable
candidates.


15 3 of 2000.
TSHIQI J
24
[59] The further criticism is directed at the method of the investigation and the process
followed by the Commission. The respondents argue that the Commission adopted an
adversarial court-like process and did no t engage in public consultations with the
amaMpondo community. They argue that as a result, it ignored evidence relating to
Mpondombini’s support in 2008, and failed to consider whether amaMpondo supported
the appointment of Zanozuko and if he was fit to govern. Finally, the respondents argue
that in crafting the remedy, the Supreme Court of Appeal exercised discretion in a true
sense, something this Court will only interfere with if it is at odds with the law.

Issues
[60] These are the issues before us:
(a) Does the matter engage the jurisdiction of this Court? If it does, is it in
the interest s of justice for this Court to grant leave and determine the
matter?;
(b) The review test applicable to the findings of the Commission. Did the
High Court and the Supreme Court of Appeal apply the correct review
test?;
(c) The mandate of the Commission;
(d) Whether the Commission was obliged to follow the living law of the
amaMpondo, for what period, and what this entails;
(e) The method adopted by the Commission in its investigation;
(f) The concept of deference to the findings of the Commission;
(g) Whether the factual findings of the Commission can be re–determined;
and
(h) The remedy.

Jurisdiction and leave to appeal
[61] Section 211 of the Constitution provides that the institution, status and role of
traditional leadership are recognised in accordance with the Constitution. Customary
law must be recognised as “an integral part of our law” and “an independent source of
TSHIQI J
25
norms with in the legal system.” 16 Furthermore, this matter raises issues of great
importance on traditional leadership and the issues go beyond the parties before the
Court. The community of amaMpondo have been at a crossroads regarding the rightful
heir to the throne since 1937 with numerous litigation challenges brought before the
courts since then. Therefore, our jurisdiction is engaged and it is in the interests of
justice that leave to appeal be granted.

Review test
[62] The respondents sought to review and set aside the decision of the Presid ent, in
terms of PAJA. Section 6 in relevant parts reads:

“(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—
. . .
(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
. . .
(d) the action was materially influenced by an error of law;
(e) the action was taken—
. . .
(iii) because irrelevant considerations were taken into account or
relevant considerations were not considered;
(f) the action itself—
. . .
(ii) is not rationally connected to—
. . .
(cc) the information before the administrator; or
(dd) the reasons given for it by the administrator.”


16 Alexkor Ltd v Richtersveld Community [2003] ZACC 18; 2003 (12) BCLR 1301 (CC); 2004 (5) SA 460 (CC)
at para 51.
TSHIQI J
26
[63] The applicants argue that the Supreme Court of Appeal made significant
findings regarding the Commission’s factual determinations related to customary law
principles of successi on and traditional leadership. They argue that the
Supreme Court of Appeal, in doing so, was incorrect in two respects. Firstly, it deviated
from its precedent that dictates deference to decisions or findings of a commission,
especially one that is an expert body, such as the one in this matter. Secondly, the
applicants further contend that, by re -determining these findings of the Commission,
the Supreme Court of Appeal conflated the nature of a review and an appeal.

[64] The respondents submit that this matter should be considered using a standard
that considers acceptability, fitness to govern and popularity. They argue that the
Commission committed errors of law in that it did not conduct an all-encompassing
investigation into the living cus tomary law of amaMpondo. The respondents also
contend that the Commission adopted an adversarial, trial-like fact-finding process and
did not, on its own, investigate the issues before it. It confined its task to the
consideration of the evidence and arg uments presented to it by both claimants to the
throne. As a result, so argue the respondents, the Commission committed errors of fact
on who was the rightful heir of amaMpondo.

[65] In this Court, counsel for the respondents submitted that the basis of review in
this matter is mixed and encompass es both error of law and fact. Counsel for the
respondents elaborated and argued that the alleged failure to apply the living customary
law of amaMpondo was an error of law but that this resulted in a factual error. He raised
the same argument regarding what he referred to as an adversarial approach adopted by
the Commission. It seems, in my view, that the review is based on section 6(2)(e)(iii)
and (f)(ii)(cc) and (dd) of PAJA.

Mandate of the Commission
[66] In or der to contextualise the grounds of review, I set out the mandate of the
Commission and its powers. Section 212(1) of the Constitution provides that
“[n]ational legislation may provide for a role for traditional leadership as an institution
TSHIQI J
27
at local level on matters affecting local communities”. Pursuant to this provision in the
Constitution, the Framework Act was passed in 2003. The Framework Act was
amended in 2009 with effect from 25 January 2010.

[67] The amended Act was repealed b y the TKLA. The TKLA was found to be
unconstitutional by this Court in May 2023 in that “ Parliament had failed to comply
with its constitutional obligation to facilitate public involvement before passing the
TKLA”.17 The order of constitutional invalidity was suspended for 24 months to allow
Parliament to cure the defect in the TKLA. The unamended Act is, however, the
relevant statute in the resolution of this traditional leadership dispute as it was the
applicable legislatio n at the time of the decision -making sub ject to review in these
proceedings.

[68] Section 22(1) of the unamended Framework Act provided for the establishment
of the Commission. In terms of section 25(2) of the Framework Act, the Commission
had the authority to investigate, either on request or on its own accord, any of the matters
listed in section 25(2)(i) to (vi). Section 25(3)(a) of the Framework Act provided that
when considering a dispute or claim, the Commission : “must consider and apply
customary law and the customs of the relevant traditional community as they were when
the events occurred that gave rise to the dispute or claim”. Section 25(3)(b)(i) provided
that the Commission must, in respect of a kingship, be guided by “the criteria set out in
section 9(1)(b)18 and such other cus tomary norms and criteria relevant to the
establishment of a kingship”.

17 Mogale v Speaker of the National Assembly [2023] ZACC 14; 2023 (6) SA 58 (CC) ; 2023 (9) BCLR 1099
(CC).
18 Section 9(1)(b) stated:
“(1) Whenever the position of a king or queen is to be filled, the following process must be
followed:
. . .
(b) the President must, subject to subsection (3), recognise a person so identified in terms
of paragraph (a)(i) as a king or a queen [that is, identified by the relevant royal family] ,
taking into account—
TSHIQI J
28

[69] Section 9(1)( a)19 provided for what ha d to be considered before someone is
recognised as a king or queen . The Commission had powers to investigate and decide
disputes of various kinds resulting from historical aberrations of customary law and
customary law institutions under colonial and apartheid laws dating back to
1 September 1927 (when the Native Administration Act took effect), or earlier if good
grounds existed. The mandate of the Commission was that it had to restore the integrity
of the institution of traditional leadership and right the wrongs of the past by resolving
traditional leadership disputes dating from as far back as 1 September 1927.

(i) the need to establish uniformity in the Republic in respect of the status
afforded to a king or queen;
(ii) whether a recognised kingship exists—
(aa) that comprises the areas of jurisdiction of a substantial number of
senior traditional leaders that fall under the authority of such king or
queen;
(bb) in terms of which the king or queen is regarded and recognised in
terms of customary law and customs as a traditional leader of higher
status than the senior traditional leaders referred to in subparagraph
(aa); and
(cc) where the king or queen has a customary structure to represent the
traditional councils and senior traditional leaders that fall under the
authority of the king or queen; and
(iii) the functions that will be performed by the king, or queen.”
19 Section 9(1)(a) stated:
“(1) Whenever the position of a king or a queen is to be fille d, the following process must
be followed:
(a) The royal family must, within a reasonable time after the need arises for the
position of a king or a queen to be filled, and with due regard to applicable
customary law—
(i) identify a person who qualifies in terms of customary law to assume
the position of a king or a queen, as the case may be, after taking into
account whether any of the grounds referred to in section 10(l)(a),
(b) and (d) apply to that person; and
(ii) through the relevant customary structure—
(aa) inform the President, the Premier of the province concerned
and the Minister, of the particulars of the person so
identified to fill the position of a king or a queen;
(bb) provide the President with the reasons for the identification
of that person as a king or a queen; and
(cc) give written confirmation to the President that the Premier
of the province concerned and the Minister have been
informed accordingly.”
TSHIQI J
29

[70] Importantly, the Commission , in terms of se ction 25(3)(a) of the
Framework Act, had to consider and apply customary law and customs of the relevant
traditional community as they were when events occurred that gave rise to the dispute
or claim.

[71] As to the time frame envisaged in section 25(3)(a) of the Framework Act, the
respondents argued that the insta llation of Botha as a Paramount Chief in 1938 and
Mpondombini’s installation in 1979, after his nomination , are both re levant in
determining the relevant period. They argue that the Commission failed to consider the
events in 1979 when Mpondombini did not inherit automatically but on the basis of
Nelson’s nomination at the meeting convened after Botha’ death. According to the
respondents, these two events illustrated that Botha was a pref erred candidate by
amaMpondo in 1938 and that his son Mpondombini was also a preferred candidate by
virtue of the nomination in 1979.

[72] We know that the kin gship was a bone of contention from the date of
Mandlonke’s death. For a while , the then Gove rnment and later the
Transkei Government intervened and utilised colonial powers and processes in order to
appoint Botha as a Paramount Chief of amaMpondo, and not as a king in terms of the
living customary law of amaMpondo. From that period there was no resolut ion of the
amaMpondo kingship through their customs because w e know that the then
Government did not resolve the dispute through reliance on customary law. It did so in
terms of the Native Administration Act.

[73] The meeting that took place after Botha’s dea th was not to nominate an
amaMpondo king as stated. It was to replace Botha as a Paramount Chief. The
nominated candidate would be submitted to the Transkeian authorities. The meeting
held on 10 December 1978, where Mpondombini was nominated, was that of a regional
authority. It was not a customary body. It was a body recognised at that stage in terms
TSHIQI J
30
of the Transkei Constitution20 and the Transkei Authorities Act.21 A regional authority
was provided for in section s 1 and 2(1)(a) of that Act. Anyway, the
President of Transkei in terms of section 66 of the Transkei Constitution had the power
to grant or withhold confirmat ion of appointment as Paramount Chief. Nelson was a
chief at the time. He probably realised that the ultimate decision to appoint a
Paramount Chief was that of the President and that there was no point in nominating a
candidate not favoured by the Transkeian authorities at the time.

[74] Voting processes under the Transkei Bantustan authorities after Botha’s death
cannot be assumed to have reflected the will of amaMpondo. The rightful successor to
uKumkani Mandlonke was never determined customarily and that dispute pertaining to
the kingship was not resolved according to custom. Therefore, the events that occurred
and that gave rise to the dispute or claim occurred way back in 1937 when
uKumkani Mandlonke died without leaving an heir to the throne.

[75] The Commission could not ignore the hist ory and the fact that the event giving
rise to the dispute or claim was Mandlonke’s death in 1937. Of course , Nelson
ultimately relented during Botha ’s reign as a Paramount Chief but Botha was never
iKumkani of amaMpondo. His son Mpondombini, as well, succeeded him as a
Paramount Chief, not as iKumkani yamaMpondo(the K ing of amaMpondo). It is
common cause that Botha and Nelson died years before a dispute arose before the
Commission. The dispute that served before the Commission was between the rival
claimants Mpondombini born in 1942 and Zanozuko born in 1974.

[76] Mpondombini and Zanozuko contested the matter before the Commission as a
continuation of Zwelidumile’s claim as an heir from ukungena between Magingqi and
Nelson. Zanozuko made it clear before the Commission that the house of Mandlonke
to which he claimed to belong was revived by Nelson through ukungena. Because there

20 47 of 1963.
21 4 of 1965.
TSHIQI J
31
was no iKumkani yama Mpondo appointed in terms of the customary law of
amaMpondo after Mandlonke’s reign, the Commission had to trace the kingship from
the date when the dispute to succeed Mandlonke started . It had to do so even though
the dispute had cascaded to the extent that the grandchildren or subsequent generations
continue to contest the kingship. It is a fact , and I emphasise, that their contestation
dates back to when the dispute occurred after the event of the death of Mandlonke
without leaving a male issue.

[77] The first criticism is that the Commission committed an error of law in that it
failed to consider the living customary law of amaMpondo. The second criticism is that
it adopted an adversarial court-like hearing and did not embark on public participation
involving consultation of amaMpondo. Therefore, we must first consider what living
customary law is and then deal with whether it was considered . Thereafter we must
consider whether the criticism aimed at the process adopted by the Commission in its
investigation was flawed.

Did the Commission adopt the living customary law of amaMpondo?
What is living customary law?
[78] In understanding customary law, an important distinction needs to be drawn
between codified customary law and living customary law.22 Customary law is mostly
unwritten, with no dedicated body of persons tasked with making rules or with the
authority to define its norms. This body of law covers all matters regulating personal
and family life, and only certain aspects of customary law have bee n codified, for
example the recognition of customary marriages, and parts of the law o f succession,
especially that dealing with the abolition of the principle of primogeniture. Often, this
codification emanates , in effect, from court judgments on dispute s lodged with the
courts pertaining to traditional leadership and custom.23

22 Moore and Himonga “Living Customary Law and Families in South Africa” in Hall, Richter, Mokomane and
Lake (eds) Child Gauge (Children’s Institute, Cape Town, Child Gauge) 2018 at p 61.
23 Id at page 62.
TSHIQI J
32

[79] The Recognition of Customary Marriages Act24 defines customary law as the
customs and usages traditionally observed among the indigenous African people of
South Africa and form ing part of our culture. Section 211 protects those institutions
that are unique to customary law. Specifically, section 211(3) of the Constitution
enjoins the application of customary law by the courts, where this law is applicable ,
“subject to the Constit ution and any legislation that specifically deals with customary
law.” It follows from this that , in the constitutional era, customary law must be
interpreted by the courts in a manner that is compatible with the Constitution.

[80] Many South Africans subscri be to and live according to customary law .
Sections 30 and 31 of the Constitution provide for the right to cultural diversity. The
recognition and application of customary law rest s on the right to culture of the
particular community. Customary law in South Africa is tied to ethnicity, therefore the
law regulating the lives of people will differ across communities, ethnicities and
provinces.

[81] Living customary law exists in the system of living norms that regulate everyday
lives of people who live according to customary law. In Pilane25 this Court confirmed
the notion of living customary law as follows: “[t]he true nature of customary law is as
a living body of law, active and dynamic, with an inherent capacity to evolve in keeping
with the changing lives of the people whom it governs .”26 The system of living
customary law is thus dynamic, evolving and context-specific as it adapts to changes in
the beliefs and circumstances of the people it applies to. This is highlighted in
Shilubana.27 The Court rejected the contention that custom should be “certain” and

24 120 of 1998.
25 Pilane v Pilane [2013] ZACC 3; 2013 JDR 0295 (CC); 2013 (4) BCLR 431(CC).
26 Id at para 34.
27 Shilubana above n 14.
TSHIQI J
33
“uniformly observed for a long period of time”. 28 The Court instead held that change
is intrinsic to customary law, and as such, customary law must be permitted to
develop.29

Did the Commission consider the living customary law then?
[82] The respondents rely on the evidence adduced by Dr Claassens that the living
customary law of amaMpondo requires acceptability and a popular assessment of the
candidates’ fitness to govern and that the courts need to take into account these specific
factors beyond purely genealogical rules. Therefore, they submit that the customary
law of amaMpondo considers three primary elements for ascension to the throne:
genealogy, fitness to govern and popular opinion. Their c riticism is that the
Commission based its findings purely on genealogy. The applicants do not dispute that
the three elements of customary law needed to be considered, but argue that they were
all considered by the Commission.

[83] It is undisputed that i n taking into account the three primary elements, the
Commission also had to consider customary law as it was prior to the interference of
colonialism and the implementation of the Black Administration Act and be able to
separate practices enforced through statutory colonial laws, from practices observed by
the community as their customary practices and law.

[84] It is helpful in this judgment to deal at length with the evidence considered by
the Commission regarding the living customary law of amaMpondo and ho w the
Commission dealt with it. The purpose of this exercise is not necessarily to determine
the correctness of the findings of the Commission, but to deal with the criticism that the
Commission made its fin dings based solely on gene alogy and did not consider other
factors such as fitness to govern and popularity, when it made its findings.


28 Id at paras 52-4.
29 Id at paras 54-5.
TSHIQI J
34
The evidence relating to the living customary law and the Commission’s approach to it
[85] In his answering affidavit filed in the High Court, the Acting Chairperson of the
Commission repeatedly states that its findings were based on the customary law of
amaMpondo as it was when the events occurred that gave rise to the dispute or claim.
This is in compliance with section 25(3)(a) of the Framework Act. There is no evidence
to suggest that the customary law of amaMpondo had remained rigid from time
immemorial and that at the time of the events it had not adapted. A clear example is
the custom relating to the succession to the throne. Evidence led at the Commiss ion
suggested that the custom to the effect that the eldest son of a king should not succeed
the throne was adapted because of the fear that if such a son were to succeed his father,
he would compete for Chieftaincy with his father, and this would lead to fragmentation
of the tribe.

[86] Furthermore, the Commission considered several customs practised by
amaMpondo at the time. These customs also emerged from the testimony of the
witnesses of both parties. These were ukungena and isifingo30. The Commission had
regard to the right of succession customarily between the Great House,
Right-Hand House and iQadi. It had regard to the undisputed fact that before the
intervention of the then Governor-General, Nelson was regarded as more popular than
Botha. Evidence about popularity could only have been established through listening
to the amaMpondo who knew the events at the time and possibly through research.

[87] We also know that before Botha was appointed, there was a succession battle
between him and Nelson. As state d, amaMpondo favoured Nelson. He was therefore
the popular brother, having regard to popularity as envisaged in the living customary
law. Through the intervention of the then Governor, Botha was appointed. The
1938 Commission was established by the then Government and it was this
Commission’s recommendation that Botha be ap pointed as Paramount Chief. Botha

30 The witnesses at the Commission had a different understanding of what isifingo entailed in practice. But what
was not in dispute was that it was a ceremony performed to signify ukungena union between the two families.
TSHIQI J
35
was then installed by the Governor-General as Paramount Chief of Eastern Pondoland.
It is fair to say, as the Commission reasoned, that were it not for the intervention of the
then Government, Nelson would have been appointed and succession would have
followed his lineage, subject to other elements of living customary law.

[88] It is not disputed, however, that traditional rulers were recognised and appointed
by the colonial government and their positions were no longer determined in accordance
with indigenous laws and procedures. 31 It is also common cause that the dispute was
statutorily settled in terms of the Bla ck Administration Act and not customarily, when
Botha was recognised as “Paramount Chief” of Eastern Pondoland by the then
Governor-General.

[89] It is not disputed that after Botha’s death, Mpondombini, as Botha’s son, was
recommended. Amongst the people who recommended him was Ne lson. What is not
clear from the evidence is what led Nelson to overlook his son , Zwelidumile
(Zanozuko’s father), and to recommend Mpondombini instead. Perhaps the
Commission could have investigated this behaviour by Nelson. But we do not know if
anyone knew the answer to this question. At that stage Nelson had long passed on. The
Acting Chairperson of the Commission in his answering affidavit in the High Court
dealt with this issue in the following manner:

“It is therefore misleading for the ap plicant to claim that he was ‘appointed King of
amaMpondo, on 10 December [1978].’ Nowhere does the extract of the meeting of
10 December 1978 say or indicate that the applicant was appointed as the
‘King of amaMpondo’. It simply and in very clear terms , states that the applicant
succeeded his late father since he was the eldest son. Furthermore, nowhere does the
resolution say that the applicant's succession to the paramountcies was done or effected
in accordance, with Pondo customs or customary law. I t is also noteworthy that only
(19) nineteen chiefs and councillors were present, and more than (20) twenty chiefs
were absent from the said meeting. The legitimacy and validity of the decision was
therefore questionable. It is therefore misleading to say that the appointment was made

31 Id at page 210.
TSHIQI J
36
by ‘unanimous decision of amaMpondo’, when more than half those entitled to be
present were indeed absent from the meeting. It would also appear that the meeting
was convened as a ‘special meeting’, and was called at short notice ‘just before the
funeral service of the late Botha Sigcau’. In any event it is also manifestly the case if
one reads the minute of the meeting that the purpose of the meeting was ‘to obtain the
authority’s resolution on the matter’. If this was indeed the case, it is quite clear that
the purpose of the meeting was not to decide the issue of the succession of the late
Chief Botha Sigcau in accordance with Pondo customs or customary law, but rather ‘to
obtain the authority’s resolution of the matte r’. As we know the authority was
established under the discredited apartheid system. In the first place, Botha Sigcau was
appointed in terms of section 23 of the Black Administration Act, 1927 in any event.”

[90] I endorse the reasoning of the Commission in this regard. Botha was not
appointed in terms of the living customary law of amaMpondo. He was in fact
statutorily made a Paramount C hief of amaMpondo and not iKumkani. His son
Mpondombini was also recommended to take over statutorily as a Paramount Chief.
The meeting took place before a Magistrate. The entire cabinet of the Transkei
homeland was present at his installation.

[91] It should not be overlooked that Botha had been in power for several decades.
Nelson had lost the challenges to the throne. Bu t it cannot be that his decision to
recommend Mpondombini cuts through the powers of the Commission to rectify the
wrongs of the past. It is just another relevant factor. It is also not insignificant that at
the time of his death, Botha had also been President of the then Transkei, a so -called
independent State according to apartheid laws, and had been at the helm for two years,
having been imposed by the then government. If the Commission had found itself
bound by these practices, it would not have f ulfilled its mandate to right the wrongs of
the past and restore dignity to customary law.

[92] We know that shortly after Mpondombini’s appointment , Nelson’s son
Zwelidumile challenged Mpondombini’s paramountcy. He did not consider himself
bound by the recom mendation made after Botha’s death. This discontent resulted in
the intervention of the then Transkei Government under the leadership of
TSHIQI J
37
Kaizer Matanzima who then issued an instruction that amaMpondo should vote on the
issue. Mpondombini was subsequently appointed as the Paramount Chief which meant
that he succeeded his father, Botha as a Pa ramount Chief, and not as iKumkani, as
already alluded to. Following this, Zwelidumile launched his court challenge in 1978.

[93] What is noteworthy is that the voting process initiated by Kaizer Matanzima was
not in accordance with amaMpondo custom and tradition. Mpondombini himself
launched a court challenge on this very basis, but he lost it. Mpondombini’s
appointment as Paramount Chief was therefore not made in accordance with
amaMpondo living custom and tradition but was, like his father, as a result of the
intervention of the then Government. The Framework Act was established in order to
deal with these interventions by past Governments to correct the erosion of customary
law and tradition. There are scanty details on the turn-out, the freeness or the fairness
of the election and there is no evidence sugges ting that tradition and custom w ere
considered when the voting took place.

[94] Zanozuko’s version about his claim to kingship included the contention that
Nelson performed ukungena with Magingqi, one of the late Mandlonke’s wives. Before
it answered this que stion, however, the Commission first determined whether the
appointment of Botha was according to custom. According to Zanozuko, the
appointment of Botha had been irregular and was not in line with the customary law
and customs of amaMpondo in that, at the time, the Government was not obliged to
follow the customs of amaMpondo in appointing a Paramount Chief, and did not do so.
The Commission found that Botha, as the son of the Right -Hand House, could not
succeed. In his claim form Zanozuko state d that Botha was the son of the
Right-Hand House and was not allowed to succeed. He also alleged that according to
the living custom, where iKumkani dies without an issue in the Great House, the heir
was identified from the sons of amaQadi to the Great House or if this fails, any iQadi
was given preference over the Right-Hand House.

TSHIQI J
38
[95] Zanozuko argued that after Botha was irregularly installed, amaMpondo decided
to revive Marhelane’s Great House through ukungena. Zanozuko’s claim is based on
the proposition that Zwelidumile was the direct heir to Mandlonke sociologically
because of the ukungena relationship between Nelson and Magingqi , his biological
parents.

[96] The respondents, on the other hand , argued that in appointing Botha the
Government had been guided by the custom of amaMpondo and the recommendations
of the 1938 Commission. They argued that t he custom applicable was that if there is
no son in the Great House and no Great Wife to nominate a successor, then the first -
born son of the Right-Hand House would succeed over the son of iQadi to the
Right-Hand House.

[97] In resolving the question as to whether the son of iQadi or the Right-Hand House
could succeed, the Commission referred to the following recommendations of the
1938 Commission:

“(a) The custom to be followed is that of the commoners, which is that the first
woman married is the great wife and the second woman to be married is the
right-hand house. On failure of the male issue, in the Great House the son of
the right-hand house succeeds to the Great House;
(b) As regards the relative merits of the two Claimants there is a consensus of
opinion that Botha bears a better character than Nelson [because] he is more
mature in years and has a good reputation for straight dealings among both
Europeans and natives and is progressive. Under his charge, the Pondos will
have a better chance of developing. Nelson on the other hand, is a weakling
under the sway of hangers on at the great place. It seems to us very probable
that the backing he has received from those in contact with the great place is
inspired by the wish of the men in question to retain the power in their own
hands, which they have undoubtedly wielded since the death of Mswakeli.”

[98] Regarding the 1938 recommendation that Botha was more suitable and the
criticism of Nelson, the Commission found that the 1938 Commission placed more
TSHIQI J
39
emphasis on the perceived character flaws of Nelson as opposed to custom. This, it
found, was not in line with customary law and customs of amaMpondo. In that regard,
the Commission’s affidavit stated:

“The dispute between Nelson and Botha should be viewed in its proper context and in
relation to the prevailing political climate at the time:
(i) There was great resistance to the policies of the colonial gove rnment. It
therefore suited the colonialists to place people such as Botha , who were
pliable and easy to manipulate , in positions of authority . Armed with the
Native Administration Act , the Government was able to impose its will a nd
frustrate amaMpondo. Against determined amaMpondo opposition, the
government installed Botha as paramount chief of amaMpondo.
(ii) The disaffection of amaMpondo with the installation of Botha over Nelson is
said to be part of the reasons for what was known as the ‘The Pondo Revolt’
in 1960.
(iii) During this time, it is alleged that Botha was forced to flee and sought refuge
from the colonialists. They secured h is return, and he advocated the
introduction of the Bantu Authorities Act.”

[99] The Commission then concluded that i n view of the above, the appointment of
Botha was irregular and not in line with the customary law and customs of amaMpondo.
In reaching that conclusion , the Commission had regard to the popularity of the two
brothers and furnished reasons why Nelson was a preferred candidate by amaMpondo,
and the consequences of the Government’s intervention in appointing Botha as a
Paramount Chief.

[100] As to fitness to lead, the 1938 Commission had rejected Nelson because of
amaMpondo’s affinity to him. In this regard the 1938 Commission had characterised
him as a weakling under the sway of hangers -on at the Great Place. It said that it was
probable that the backing he had received from those in co ntact with the Great Place
was inspired by the wish of the men in question to retain the power in their own hands.
It characterised Botha as having a good reputation for straight dealings among “both
Europeans and natives and [was] progressive.”
TSHIQI J
40

[101] However, if one ha d regard to the fact that in the two meetings held after
Mandlonke’s death , Nelson was favoured by the majority, then the question for the
Commission was who had to determine the suitability of the two brothers to lead and
what criterion was more consistent with living customary law of amaMpondo. Why
was Nelson criticised and labelled a weakling, yet the very same amaMpondo preferred
him, such that they revolted after Botha was appointed as Paramount Chief by the
colonial government? It is improbable that the majority of amaMpondo would choose
someone not fit to govern simply because some of them wanted to retain power in their
own hands.

[102] The Commission then determined whether Nelson and Magingqi entered into a
union of ukungena. This question was very important because prior to ukungena, the
customary succession would have probably required that Gwebinkumbi , who was
Nelson’s heir , be considered after Nelson. However, none of the parties to the
Commission pursued this route seriously as the dispute was about a successor to
Mandlonke. Ukungena was adopted because the intention was to raise a seed for
Mandlonke. The product from ukungena became the sociological son of Mandlonke,
whilst Gwebinkumbi was an heir to Nelson rather than Mandlonke. The Commission’s
affidavit summarised Zanozuko’s version thus:

“(i) In an attempt to wrestle the kingship from Botha, amaMpondo resorted to the
custom of ukungena. Nelson was approached to ngena Magingqi, the great
wife of Man dlonke. To this end, Nelson was taken out of schoo l and he
subsequently performed all the rituals attendant to the custom of ukungena,
that is, isifingo and ukuhlamba izitya.
(ii) The objective of this exercise was for Nelson to raise seed and thus revive the
house of Mandlonke.
(iii) [T]he decision that Nelson should ngena Magingqi was not unusual in that
historically, the sons of ukungena ascended the throne of amaMpondo. He
[Zanozuko] cited the following examples:
(aa) during the reign of Cabe, Gangatha ngena’d Qiya's wife;
(bb) one chief Zondwayo, ngena the wife of Nonkonyana; and
TSHIQI J
41
(cc) recently, the Respondent installed Siyoyo, a son born of ukungena.”

[103] The Commission noted that Zanozuko’s witnesses Magqwar hu Sigcau and
Pawuli Ncoyeni corroborated his version. It also noted that Magqwarhu, the third wife
of Nelson married in 1949, confirmed that Nelson ngena’d Magingqi in that she
witnessed the performance of isifingo by Nelson at the home of Magingqi. According
to Zanozuko’s witnesses, Magingqi was not regarded as the wife of Nelson but iqabane,
(a term used for a woman in an ukungena union). His witnesses also stated that
Magingqi resided at her marital home and only left as a result of death threats from
Botha; that Nelson’s Great P lace was at Khimbili; and that Magingqi never lived at
Khimbili with Nelson. To the contrary, Nelson visited Magingqi at her marital home.
When Nelson died, Magingqi did not participate in the mourning rituals with Nelson’s
wives. The Commission also considered the evidence of Pawuli Ncoyeni, the uncle and
neighbour to Magingqi, who stated that Nelson ngena’d Magingqi and that he was
present during the ritual of isifingo, where Nelson presented a white horse to Magingqi’s
family and that, after the marriage to Mandlonke, Magingqi did not live at her home.

[104] The Commission considered the evidence of Mpondombini and his witnesses,
who denied that Magingqi and Nelson entered into the union of ukungena. According
to Mpondombini, the possibility of such a union was never mooted. His version was
that after the death of Mandlonke, Magingqi and Nelson fell in love , Magingqi then
returned to her maiden home and married Nelson who delivered six head of cattle and
a white horse as lobola (dowry) to the home of Mag ingqi. She lived with Nelson at
Khimbili. Mpondombini stated that the supporters of Nelson could not have proposed
ukungena because according to the custom of amaMpondo, children born of ukungena
union do not succeed at the level of ubuKumkani(kingship). This, according to him ,
would clearly have been an exercise in futility and in n any even t, the union between
Nelson and Magingqi could not have been ukungena because none of the rituals of
ukungena were performed in that (a) Magingqi left the marital home; (b) Nelson paid
lobola and married Magingqi; (c) the isifingo ritual was not performed at the marital
TSHIQI J
42
home of the deceased husband; and (d) the children born of the union between Nelson
and Magingqi were regarded as those of Nelson and not Mandlonke.

[105] Mpondombini’s witnesses, Sylvia Noyolo Madikizela, Mlungu Gideon Sigcau
and Mercy Nonceba Jam-Jam, also denied that there was ukungena between Nelson and
Magingqi. Noyolo Madikizela, who was a midwife at Holy Cross Hospital,
Eastern Cape, at the t ime of the birth of Zwelidumile , stated that she believe d that
Nelson and Magingqi were husband and wife because at their first meeting, Nelson had
introduced himself as such. She had heard rumours that Nelson was supposed to ngena
Magingqi in order to give birth to iKumkani of amaMpondo but to everyone's surprise,
he paid lobola and married her. It was unusual for lobola to be paid twice for the same
woman.

[106] Another witness, Mercy Nonceba Jam-Jam, who lived at Mzindlovu during the
reign of Mandlonke, stated that Magingqi was the first wife of Mandlonke. After the
death of Mandlonke , it was rumoured that Nelson had ngena’d Magingqi and that
Magingqi left the marital home and she later heard that Magingqi and Nelson had
married. Therefore, there could not be ukungena between Magingqi and Nelson. She
understood isifingo to constitute one beast. Six cattle and a horse, paid by Nelson ,
would be tantamount to lobola.

[107] Another witness for Mpondombini was Mlungu Sigcau, the son of Marhelane .
He also confirmed that Magingqi was the first wife of Mandlonke. He stated that
Nelson never ngena’d Magingqi because he took Magingqi from her marital home and
took her to her maiden home where he married her and settled at Khimbili with her. He
said that he never heard of ukungena between Nelson and Magingqi but he knows that
Poto had warned that neither Botha nor Nelson should ngena Magingqi as this would
result in a never-ending dispute.

[108] Another witness, Malangana Ndunge, testified generally about the custom of
ukungena. He stated that the purpose of ukungena was to revive the bloodline of the
TSHIQI J
43
deceased. Therefore, it was important that a man who ngena’s the widow does not
dilute the said bloodline. The restriction of ukungena at the level of kingship wa s in
order to prevent the dilution of the bloodline. The widow was not restricted as to who
might ngena her. There was therefore a danger of the bloodline b eing diluted. He
denied that Gangatha ngena’d Qiya's wife because the former was still alive.

[109] Gwebizilwana Sigcau also testified and denied that the union between Magingqi
and Nelson constituted ukungena because they fell in love and she left the marital home
and they had children. He denied that children born of ukungena are permitted to ascend
the throne and, like Ndunge, he stated that Gangatha did not ngena Qiya’s wife.

[110] In determining w hether Nelson and Magingqi were engaged in a union of
ukungena, the Commission stated that it would have to first determine where Magingqi
resided before and after the death of Mandlonke. In this regard the Commission
considered both versions and took into account the version of the Zanozuko that
Magingqi always resided at Mzindlovu during the lifetime of Mandlonke; that she never
left the marita l home; that Magingqi le ft Mzindlovu for Khubeni at the instance of
Botha; and that as a result of death threats from Botha, she had to leave Khubeni for
Matshona. The Commission highlighted that Zanozuko’s evidence in this regard was
corroborated by Magqwarhu Sigcau, Nelson’s third wife.

[111] The Commission also dealt with Mpondombini’s version and highlighted that
initially the version put by his counsel during Zanozuko’s case was that Magingqi never
lived at Mzindlovu but was allocated a house at Khubeni; that h owever, during
Mpondombini’s case, the version changed: that Mercy Nonceba Jam-Jam testified that
both Magingqi and Mampofana lived at Mzindlovu during the lifetime of Mandlonke.

[112] The Commission also referred to the evidence of Mlungu Gideon Sigcau who
stated that after Botha had been installed, Botha took Magingqi to Khubeni . It also
referred to Mpondombini’s testimony to the effect that , upon marriage, Magingqi was
informed that she would be allocated a house at Khubeni. She later moved to Khubeni
TSHIQI J
44
and visited Mandlonke at Mzindlovu. After the death of Mandlonke, Magingqi left
Khubeni at night, taking with her all her belongings including the livestock.

[113] The Commission also referred to Mpondombini’s version to the effect that
ukungena is only valid if the widow does not leave the marital home. It referred to his
argument that Magingqi’s departure from the marital home support ed their contention
that ukungena union did not exist between Nelson and Magingqi.

[114] After analysing the evidence, the Commission found that the probabilities were
that Magingqi lived at Mzindlovu during the lifetime of Mandlonke and moved to
Khubeni after his death. It reasoned that her departure from the marital home pointed
to one who was fleeing. In support of this reasoning it referred to Mpondombini’s own
version, that Magingqi left at night with all her belongings including the livestock. It
highlighted that Magqwarhu also stated that Magingqi fled from Khubeni at night. This,
according to the Commission, was an indication that her depa rture from the marital
home was involuntary.

[115] The Commission then considered what the ritual of isifingo entails and whether
in the case of Nel son and Magingqi the ritual was performed. It seems from the
evidence that isifingo has to be carried out in order for ukungena to be complete. The
Commission referred to the evidence of Zanozuko that isifingo was a ritual thr ough
which the man chosen by the family to ngena the widow was introduced to her maiden
family. It further referred to his evidence that Nelson delivered six head of cattle and a
white horse to Magingqi's maiden home as isifingo.

[116] It highlighted that the following witnesses also supported his version:
Magqwarhu Sigcau, who stated that isifingo was the ritual of delivering a beast to the
widow’s maiden home by ukungena and introducing the widow’s consort and that she
was present when this ritual was performed at Magingqi's home in kwaGingqi. It also
referred to her evidence to the effect that after isifingo, a ritual called ukuhlamba
izitya(literally translated:to wash dishes) is usually performed at the widow’s marital
TSHIQI J
45
home. The Commission highlighted that she had no knowledge whether this was done
at the marital home of Magingqi.

[117] The Commission dealt with the evidence of Pawuli Ncoyeni who stated that
isifingo was the presentation of a white horse to the maiden home of the widow’s family
and the introduction of the ukungena consort to the family of the widow. It also referred
to his evidence that he was present when this ritual was performed at Magingqi’s home.

[118] The Commission considered the evidence of Mpondombini to the effect that the
ritual of isifingo was performed when a beast wa s slaughtered. The man introduced
himself to the marital home of the widow and t he man was counselled to take care of
the widow. It dealt with his witnesses in this regard and took into account the evidence
of Malangana Ndunge , Mpondombini’s fourth witness who stated that according to
custom, there wa s no need for isifingo, that was, the introduction of the suitor to the
maiden home of the widow, because the widow belon ged to her marital home .
Ukuhlamba izitya was a ritual performed at the marital home of the widow.
Mercy Nonceba Jam-Jam stated that one beast and one horse would amount to isifingo
and that anything more would amount to lobola. Gwebizilwana Sigcau stated that
isifingo was defined as the introduction of the suitor into the marital home of the widow.
Traditional beer was brewed and a beast was slaughtered.

[119] After considering the evidence of both parties on this aspect, the Commission’s
findings were that from the evidence it wa s not clear what isifingo entailed but that it
was evident that isifingo likely constituted some form of introduction between the
consort and the maiden home of the widow; that it was probable that the consort had to
introduce himself to the maiden home of the widow; and that it would also be logical
for members of the marital family to publicly announce the union and counsel the
consort.

[120] The Commission found that, in the case of Nelson and Magingqi, it was common
cause that Ne lson delivered six beasts and a white horse to the maiden home of
TSHIQI J
46
Magingqi. It also found that it wa s highly improbable that Nelson would have paid
lobola for his brother’s wife, in that according to custom lobola was not paid twice for
the same woman from the same family. The purpose of lobola was to establish and
maintain the relationship between the two families. Lobola was redeemable because if
the woman “misbehaved” she was returned to her maiden home. It found that Nelson
was merely introducing himself to the maiden home of Magingqi and that , therefore,
the six beasts and horse delivered to the maiden home of Magingqi constituted isifingo
and not lobola.

[121] Having made a finding on isifingo, the Commission examined the broader issue
of ukungena. It noted as common cause the fact that amaMpondo were not satisfied
with the installation of Botha by the Government. According to Zanozuko, this led to
the decision that Nelson should ngena Magingqi. It acknowledged that the question
whether Nelson performed ukungena with Magingqi was disputed by Mpondombini. It
found that from the evidence, it was clear that ukungena was mooted. In this regard, it
found that Magqwarhu Sigcau and Pawuli Ncoyeni supported Zanozuko’s version. It
found that even though Mpondombini denied that ukungena occurred, his witnesses did
not. Sylvia Madikizela heard rumours that Nelson was supposed to ngena Magingqi.
Mlungu Sigcau was aware of the warning against ukungena by Poto.

[122] The Commission also found that it was common cause that Ntombiyokwenzani,
the first child from the relationship between Nelson and Maginqi, was born whilst
Magingqi was at her marital home. Nelson always maintained that Zwelidumile, the
second child of this relationship, was the son of Mandlonke. This is consistent with
Zwelidumile being the sociological child of Mandlonke. The Commission stated that
the evidence of Gwebizilwane supported this to the effect that , when Nelson engaged
in ukubusa (to request permission for allocation of land ) for Zwelidumile, he referred
to him as the son of Mandlonke. The Commission also accepted evidence to the effect
that Magingqi did not participate in the mourning rituals upon the death of Nelson,
which was consistent with a relationship based on ukungena. It found that it was highly
probable that indeed Ntomb iyokwenzani, which literally means “what do we do with
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47
this girl” or “of what use is this girl” was so named due to the fact that amaMpondo
were disappointed when a boy was not born, that is, a male successor to Mandlonke.

[123] The Commission stated that in view of the fact that amaMpondo were frustrated,
that custom was not followed when Botha was appointed as Paramount Chief and this
was supported by the colonialists, the custom of ukungena seemed to the community to
be the necessary and the reasonable solution. It then concluded that in the circumstances
there was ukungena between Nelson and Magingqi and that the objective was to raise a
seed to revive the house of Mandlonke.

[124] In considering the evidence of ukungena in detail, the Commission was not
strictly determining a line of descent traced continuously from an ancestor, genealogy
in the strict sense. Mandlonke, the ancestor, had passed on without leaving a male issue.
The Commission did not limit its f ocus to who, of the two brothers , could succeed
genealogically but considered whether a custom that could be resorted to, in order to
raise a seed, was practised by amaMpondo royalty and whether it in fact occurred. In
essence, the Commission was looking at ukungena as a living customary law practice
that amaMpondo resorted to in the 1940s in order to prevent Botha, an appointee of the
colonial authorities, to ascend the throne as their iKumkani over their preferred leader,
Nelson.

[125] The next issue the Commission determined was whether according to the custom
of amaMpondo, a son born of an ukungena union could ascend the throne. It referred
to Zanozuko’s version that ukungena was widely practised at the level of ubuKumkani
and the example of Qiya and Gangatha which Zanozuko cited in support of this version
to the effect that Qiya was the son of Cabe, a former king of amaMpondo. After a
succession dispute, Qiya was banished and his wife was ngena’d by his younger brother,
Gangatha.

[126] The Commission also referred to the evidence of Mpondombini who conceded
that ukungena was practised amongst amaMpondo but denied that it was practised at
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the level of ubuKumkani. Mpondombini went further to state that a son born of
ukungena never succeeded to the throne of amaMpondo. He further denied that the
union between Qiya's wife and Gangatha was ukungena because at the time of the union
Qiya was still alive. According to him, Bala, who was born of the union between Qiya’s
wife and Gangatha , was regarded as the son of Gangatha and accordingly succeeded
him as king.

[127] In this regard the Commission found that ukungena was indeed practised at the
level of ubuKumkani. It stated that the warning by Poto that neither Nelson nor Botha
should ngena Magingqi was not on the basis that ukungena between Magingqi and the
sons of Marhelane (Nelson and Botha) would be contrary to custom, but rather that the
children born of the union would have a legitimate claim to the kingship of amaMpondo.
The Commission stated that since it accepted that the above warning by Poto supported
Zanozuko’s contention that ukungena did take place at the level of ubuKumkani, it did
not deem it necessary to make a finding on the veracity or otherwise of the example of
Qiya and Gangatha cited by Zanozuko. It found that a ccording to the customary law
and customs of amaMpondo, a son born of an ukungena union could ascend the throne.

Analysis of the Commission’s reasoning
[128] There is no basis to interfere with the finding of the Commission regarding the
nature of the relationship between Nelson and Magingqi. Even Mpondombini’s
witnesses, Mrs Madikizela and Magqwarhu Sigcau and Pawuli Ncoyeni, supported
Zanozuko’s version that ukungena was mooted, even though their recollection of what
occurred differed in several respects . Mrs Madikizela heard rumours that Nelson was
supposed to ngena Magingqi. Mlungu Sigcau was aware of the warning against
ukungena by Poto. Mrs Madikizela testified that people were expecting Nelson to
ngena Magingqi so she could give birth to the future king, but that instead of performing
ukungena, he married her. However, the Commission had to deal with this evidence in
the context of undisputed evidence that a brother would not customarily pay lobola and
marry his late brother’s wife, let alone cohabit with her at his late brother’s home , and
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49
that lobola would not have been paid twice for the same woman by the deceased’s
family, hence its finding that the union was ukungena and not a marriage.

[129] Mercy Nonceba Jam-Jam, who was also Mpondombini’s witness , said that she
heard rumours of ukungena between Nelson and Magingqi, whilst she was at her marital
home in eKhubeni but had not witnessed it. The Commission also took into account
the evidence of whether Magingqi mourned for Nelson according to custom . One of
Mandlonke’s wives testified that she did not do so as she was still regarded as
Mandlonke’s wife and this had to be compared with the evidence of the younger brother
to Magingqi, who testified that as a family they only recognised Mandlonke as
Magingqi’s husband and that Nelson introduced himself to them as the person who had
practised ukungena with Magingqi. Furthermore, the evidence by these witnesses
shows that the custom of ukungena, and the practice of isifingo to solidify the
relationship, was part of the living customary law at the time and the Commission
accepted it as such.

[130] The above evidence also shows that the Commission dealt with the living
customs of amaMpondo at length and did not solely resolve the dispute by following
the genealogical system. It considered the fact that the claim by Zanozuko was based
on the fact that he was a descendant of the custom of ukungena and the cultural practice
of isifingo performed by his grandparents.

[131] The function of the Commission was to deal with disputes over kingships that
arose because of the distortions of customary law in the apartheid and colonial periods.
So, the focus of the Commission had to be on the time of those distortions, not on the
present or the “prospective” provisions of the Act and whether they have recognition
mechanisms that will provide for living customary law to be used to resolve kingship
disputes going forward.

[132] Chapter 6 of the Act was essentially a transitional mechanism that provided for
the Commission to ensure that the basis on which disputes should be adjudicated was a
TSHIQI J
50
basis that should, as far as possible, be re -determined so as to undo colonial and
apartheid distortions of custo mary law in the historical appointment of kings. That is
why the Commission was given jurisdiction over disputes dating back to 1927. So, the
statutory mandate of the Commission required a primary focus on the time at which the
apartheid and colonial dis tortions took place, not on the popularity of competing
candidates today or at some stage between the original distortion and today.

[133] According to Dr Claassens, one of the factors that are relevant and have come to
form part of living customary law in the traditional community in question is the
popularity of the traditional leader. The respondents relied on this alleged component
of living customary law and submitted that the appointment of iKumkani should not be
dictated only by genealogy but should also be influenced by popularity. This was
considered by the Commission. The Commission concluded that the evidence
established that Nelson was more popular amongst amaMpondo than Botha. Otherwise,
why did the amaMpondo revolt take place if amaMpondo were not signifying their
discontent with the leader chosen by the colonial government? Why did amaMpondo
resort to ukungena between Nelson and Magingqi in order to produce an heir? It was
in an attempt to avoid having Botha imposed on them as iKumkani. Zwelidumile was
eventually born after the ukungena union between Nelson and Magingqi and he was
Mandlonke’s sociological son. After the first attempt, a girl named Ntombiyokwenzani
was born. The name itself suggests that amaMpondo were disappointed after her birth
because their objective had not been met. In its findings, the Commission mentions that
a series of meetings were held after Mandlonke’s death. Poto was invited and in one of
the meetings, he chose Botha, but the majority favoured Nelson. The
Appellate Division in Sigcau, had earlier accepted that b ecause there was a genuine
dispute as to the right of succession in an unprecedented situatio n, two tribal meetings
were held at which the majority favoured the claim of Nelson.32


32 Sigcau above n 3.
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51
[134] The respondents submit that Mpondombini was more popular because he was
nominated by a majority at the meeting held after Botha’ s death. In this regard they
rely on evidence of the votes in favour of Mpondombini at that m eeting but ignore the
political context in which those votes took place. This process was, as stated, not in
accordance with the living customary law of amaMpondo. There is also no basis to
conclude that amaMpondo paramountcy elections held under the watchful ey e of
Kaizer Matanzima represented the will of amaMpondo.

[135] In finding that Botha was not the rightful heir, the Commission also had regard
to a custom it found amaMpondo had adopted from amaXhosa. The Commission
accepted that according to the tr adition, the sons of the Right-Hand Houses never
succeeded and that Nelson, born of iQadi (Mamtshibeni) and the only surviving son of
iQadi, was entitled to succeed. It rejected Poto’s evidence that Botha, of the Right-
Hand House could succeed. It rejected his evidence on the basis that he was reneging
on the contrary earlier opinion expressed in his book. It found the two versions mutually
exclusive.

[136] The mandate of the Commission was to deal with disputes over royal succession
that arose because of the distortions of customary law in the apartheid and colonial
periods. So, the focus of the Commission had to be on the time of those distortions, not
on the present – the “prospective” provisions of the Act have recognition me chanisms
that will provide for living customary law to be used to resolve royal succession disputes
going forward

[137] The evidence above shows that the Commission dealt with the living customs of
amaMpondo at length and resolved the dispute not by following the genealogical system
strictly, but by considering the fact that Zanozuko’s claim was not based on genealogy
by itself but on the fact that he was a descendant of the custom of ukungena and the
cultural practice of isifingo performed by his grandparents. He was also the descendant
of the candidate who had been identified by the majority of the community in question
at two meetings as more popular and having the better claim to kingship.
TSHIQI J
52

[138] The contention by Mpondombini that the living customary law of amaMpondo
was not considered is not supported by the careful manner in which the Commission
evaluated the evidence of the parties and the manner in which it arrived at its conclusion.
This then brings me to the next criticism and ground on which the Commissio n’s
findings are challenged.

The method adopted and the process followed during the investigations
[139] The criticism directed at the method of the investigations and the process
followed is that the Commission adopted a court-like process and that it should have
adopted a pro-active inquisitorial role rather than leave it to the parties to decide what
evidence was to be brought before it. The Acting Chairperson of the Commission
responded to this criticism in his answering affidavit and outlin ed that the mandate of
the Commission was to conduct an investigation. He said:

“Insofar as the applicant alleges or contends that the Commission acted ultra vires its
powers to investigate in that it conducted itself as a court of law, I point out that I stated
at the outset of the hearings on 28 January 2008 (Bundle 1, page 4), the following:
‘Lest we misunderstand how the Commission ought to operate and
operates let us bear in mind that the concept that underpins our
mandate is investigative. And investigate means search into matter,
seek information about matter. Thus whilst we subscribe to the
principle of fairness and we are keen to comply with procedures of the
legal courts, the very nature of our mandate makes it incumbent on us
to explore all po ssible avenues to access the information we seek .
Consequently, we do entertain information based on hearsay and
over-and-above the hearings we also conduct our own research .
Evidently, a final decision in any matter is based on a
wide-encompassing investigation.’”

The Acting Chairperson continued and said:

“When the hearings commenced on 31 March 2008, I again reiterated the following:
TSHIQI J
53
‘The decisions of the Commission are final, but they can be challenged
through the court of law. In terms of section 22(2) the Commission
must carry out its functions in a manner that is fair, objective and
impartial. I would also like to point out that the inquiry is set down for
this week, it's only a tool to gather evidence. Hereafter the Commission
would still have to conduct its own research. Decided cases will also
form part of the Commission’s research activity.’”

[140] There is no criticism that the process followed was unfair. There is also no
evidence that the Commission did not conduct its own research as it undertook to do.
In fact, there is no evidence suggesting that what the Acting Chairperson says they did,
did not happen. It is very important to keep in mind that there was no prescribed method
of conducting the investigation. There is also no evidence criticising the expertise of
the members of the Commission. In fact, we know that its 2008 recommendation about
whether the kingship reside d with amaMpondo aseQaukeni or aseNyandeni was
accepted. Of course during the earlier investigation, the members of the Commission
consulted the community widely. Nothing suggests that some of that earlier evidence ,
to the extent relevant, was ignored in the second phase.

[141] It is also curious to note that none of the respondents’ predecessors challenged
the process at the time of the investigation. They participated fully. The method and
procedure followed by the Commission in conducting the investigation was in terms of
its mandate and beyond reproach. There is no basis to find that a mandatory and
material procedure or condit ion prescribed by the Framework Act was not complied
with. It cannot be said either that relevant considerations were not consid ered. It also
appears from the findings of the Commission that it considered evidence emanating
from community meetings that were called during the first phase.

[142] The Commission had a difficult task of sifting through hearsay evidence and
evidence based on a faint recollection of the witnesses about what really occurred after
the death of Mandlonke and somehow connect the dots about the prevailing custom at
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54
the time and compare this against the witnesses’ recollection s of what had happened
factually.

[143] The q uotation below encapsulates how the Commission had to deal with
conflicting evidence during the hearing:

“This is the problem of history. We cannot know that which we were not there to see
and hear and experience for ourselves. We must rely upon the words of others. Those
who were there in the olden days, they told stories to the children so that the children
would know, so that the children could tell stories to their children. And so on, and so
on. But now we come upon the problem of conflicting stories. Kojo Nyarko says that
when the warriors came to his village their coats were red, but Kwame Adu says that
they were blue. Whose story do we believe, then?
We believe the one who has power. He is the one who gets to write the story. So when
you study history, you must ask yourself, whose story am I missing? Whose voice was
suppressed so that this voice could come forth? Once you have figured that out, you
must find that story too. From there you get a clearer, yet still imperfect, picture.”33

[144] The Commission had to ask itself what story it was missing and find that story
too. It heard evidence from the community members, members of the royal family and
the contenders for the kingship position. The Commission also conducted its own
research in line with the evidence and made findings which took this into account . In
the first investigations, it had expanded its investigations and consulted the community
widely before it recognised a single amaMpondo kingship, under the lineage of a
common ancestor, Mqikela. This information was still at its disposal. It is not said
what other information regarding the living law of amaMpondo was ignored by it ,
simply because it did not adopt the same process it adopted during the first phase.

[145] Secondly, it found that Zanozuko was the rightful successor to the throne of
amaMpondo and that Mpondombini’s ascendancy to the status of Paramount Chief had
been irregular. It is this determination that lies at the heart of the current matter. There

33 Gyasi Homegoing (Penguin Random House, United Kingdom 2017) at 206.
TSHIQI J
55
is therefore no basis to review the findings of the Commission on this ground. It was
not successfully argued that relevant considerations were ignored or that there was a
material error of law in this regard.

Should there be deference to the findings of the Commission, specifically on findings of
fact?
[146] When one considers this review application, it is helpful to set out how the courts
approach the decisions of administrative bodies in review applications. In Bapedi,34
this Court acknowledged that our right to just administrative action and PAJA, the
legislation enacted to give effect to that right, require rigorous scrutiny of the decisions
of administrative bodies. But the Court cautioned that neither asks courts to substitute
their opinions for those of administrative bodies. It also highlighted that it is not
required that a decision of an administrative body be perfect or, in the court’s
estimation, the best decision on the facts. This Court reasoned that this is particularly
so for rationality review under PAJA. It referred to Hoexter:

“[A] crucial feature of [rationality review under PAJA] is that it demands merely a
rational connection – not perfect or ideal rationality. In a different context Davis J has
described a rational connection test of this sort as relatively deferential because it calls
for rationality and justification rather than the substitution of the Court’s opinion for
that of the tribunal on the basis that it finds the decision . . . substantively incorrect”.35

[147] This Court continued and held that a level of deference is necessary in a case
where matters fall within the special expertise of a particular d ecision-making body.36
The Court referred to Bato Star37 and highlighted that there this Court said that we
should treat the decisions of administrative bodies with “appropriate respect” and give

34 Bapedi Marota Mamone v Commission of Traditional Leadership Disputes and Claims [2014] ZACC 36; 2015
(3) BCLR 268 (CC) (Bapedi).
35 Id at para 78.
36 Id at para 79.
37 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4) SA
490; 2004 (7) BCLR 687 (CC).
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56
due weight to findings of fact. More importantly this Court highlighted tha t the
Commission, which was also tasked to investigate the Vhavhenda kingship dispute in
Bapedi, is a specialist body constituted of experts who are knowledgeable regarding
customs and the institution of traditional leadership. The Court continued:

“As t his Court held in Nxumalo, it is appropriate to treat its decisions with some
deference. When considering a claim, the Commission is required by section 25(3)(a)
of the Framework Act to ‘consider and apply customary law and the customs of the
relevant traditional community as they were when the events occurred that gave rise to
the dispute or claim.’ Notably, this provision tasks the Commission not only with
applying the relevant customary law to the case before it, but also with determining
what that law was at the relevant time. This latter question depends primarily on
historical and social facts, which the Commission must establish through evidence led
before it and its own investigation.”

[148] Professor Hoexter states that like any other law, customar y law answers to the
Constitution.38 She further remarks that , as with any unwritten source, “an
administrator who relies on customary law may have a difficulty in establishing the
existence and extent of his powers”.39

[149] What the Commission was tasked to do in terms of its mandate in Bapedi is no
different from what the Commission had to do in this matter. It also comprised of
practising jurists, academics, and linguists who were knowledgeable experts in matters
relating to the institution of traditional leadership, history, customary law, and
traditional affairs. The Commission was also assisted by researchers.40


38 Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta & Co) at 49.
39 Id at 49-50.

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57
[150] It is helpful to also consider what the Supreme Court of Appeal said in
Logbro Properties CC,41 in describing “deference” in this context as—

“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 scrutini se 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.”42

[151] In South Durban Community Environmenta l Alliance 43 the
Supreme Court of Appeal said:

“In sum, a court may interfere where a functionary exercises a competence to decide
facts but in doing so fails to get the f acts right in rendering a decision, provided the
facts are material, were established, and meet a threshold of objective verifiability.
That is to say, an error as to material facts that are not objectively contestable is a
reviewable error. The exercise of judgment by the functionary in considering the facts,
such as the assessment of contested evidence or the weighing of evidence, is not
reviewable, even if the court would have reached a different view on these matters were
it vested with original competence to find the facts.”

41 Logbro Properties CC v Bedderson N.O. 2003 (2) SA 460 (SCA) (Logbro Properties CC) at 471A-D at paras
21-2; Hoexter, “The Future of Judicial Review in South African Administrative Law ” (2000) 117 SALJ 484 at
501-502.
42 Logbro Properties CC id at para 21. The quotation came from the Hoexter article at 501 -2, where the author
in turn cited Cockrell “‘Can you Paradigm?’ Another Perspective on the Public Law / Private Law Divide” 1993
Acta Juridica at 227.
43 South Durban Community Environmenta l Alliance v MEC for Economic Development, Tourism and
Environmental Affairs: KwaZulu-Natal Provincial Government [2020] ZASCA 39; 2020 (4) SA 453 (SCA); 2020
(7) BCLR 789 (SCA) para 23 ( as said in Airports Company South Africa v Tswelokgotso Trading Enter prises
[2018] ZAGPJHC 476; 2019 (1) SA 204 (GJ); [2019] JOL 41030 (GJ) at para 12); Dumani v Nair [2012] ZASCA
196; 2013 (2) SA 274 (SCA); [2013] 2 All SA 125 (SCA); and Pepcor Retirement Fund v Financial Services
Board [2003] ZASCA 56; 2003 (6) SA 38 (SCA); [2003] 3 All SA 21 (SCA).
TSHIQI J
58

[152] In this matter, the applicants allege that the Supreme Court of Appeal entered
into the fray and made findings that the Commission’s factual determinations were
indeed incorrect and essentially morphed the review proc eedings into an appeal or at
the very least into a review based on an error of fact.

[153] One of the functions of the Commission was to take into account and apply both
customary law and the customs of the relevant traditional community as they existed at
the time when the events giving rise to the dispute or claim occurred (as stipulate d in
section 25(3)(a)). In dealing with the submissions from the disputants, the Commission
examined in detail, the customary genealogical rules regarding traditional leadershi p,
and to a certain extent, popularity. It also considered the impact of a commission
established by the colonial Government in the Transkei ( 1938 Commission), which
made some determinations regarding the charact er of Nelson as a potential iKumkani.
The Commission found that su ch determinations from the 1938 Commission were not
in line with custom. Therefore, although the Commission did not deal to any specific
extent with fitness to govern, it is safe to assume that fitness to govern is reflected in
popularity, and the Commission was correct in its refusal to place reliance on an
assessment of fitness to govern by white colonial administrators whose preference was
for pliant traditional leaders.

[154] Furthermore, the Commission went on to set the contextual scene at that time,
outlining how the Native Administration Act and colonial Government sought to
frustrate the amaMpondo people and impose traditional leaders who were more pliant
and willing to fall in line with the Government’s objectiv es. The Commissi on found
that Botha was such a leader, hence his imposition as a Paramount Chief of the
amaMpondo. The Commission also considered its own research and was guided by the
expertise of its panel members.

[155] The process and approach adopted was in line with the statutory purpose and
mandate of the Commission. The Commission also matched the evidence with the
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59
socio-political context at the time of contestation between Nelson and Botha whilst still
considering the preceding accepted customary practices, leading t o its conclusions. It
also referred to legal proceedings between the contending parties at the time, and the
minutes of meetings held to discuss various issues concerning paramount chieftainship
as well as kingship.

[156] It is not clear why the Supreme Court of Appeal rejected the findings of the
Commission that firstly, Botha, as the son of the Right-Hand House, could never
succeed as iKumkani and, secondly, that amaMpondo resorted to ukungena to raise a
seed for Mandlonke’s house. The Supreme Court of Appeal failed to show how these
findings were out of kilter with the evidence presented to the Commission and the
Commission’s own research. This failure wa s primarily due to a lack of
acknowledgment that the Commission was an expert body in its own right like another
administrative body. 44 It overlooked the fact that the Commission comprehensively
engaged in the collection and evaluation of evidence from various sources and
conducted its own research.

[157] Another error by the Supreme Court of Appeal was that it ventured beyond the
proper scope of its judicial review powers by suggesting that the Commission should
have considered a broader scope of evidence to obtain a more comprehensive view of
living customary law of amaMpondo. It second -guessed the assertion of the
Acting Chairperson, who in his affidavit states that the living customary law of
amaMpondo at the time was considered and how the Commission’s report and evidence
are replete with evidence of what occurred at the relevant time.

[158] To suggest that the Commission should have held an imbizo(a public gathering
of the community usually convened at the behest of a traditional leader) goes against
the assertion by the Acting Chairperson who states that during the first phase, that
process was embarked upon and that during the second phase , the Commission relied

44 See by way of analogy, Bato Star above n 40 at para 48.
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60
on all the evidence at the second hearings and supplemented this with evidence already
at its own disposal and further research. This begs the following questions: was an
imbizo of amaMpondo the only method to be adopted by the Commission and did it
have to do it every time it was tasked to conduct an investigation ? Additionally, was
there a method prescribed for gathering evidence during the investigation? The answer
is no. This was a matter to be determined by the Commission based on its expertise.

[159] Khampepe J in Bapedi emphasised that, even if arguments concerning the factual
correctness of findings are persuasive, that is not the focus of a review. Even differing
in the interpretation of the facts to the Commission does not, especially given the respect
owed to its findings in this context, entitle a court to set aside the Commission’s
decision. There is no cogent analysis in the Supreme Court of Appeal judgment that is
illustrative of any incongruity or discordance, between the evidence placed before the
Commission and gathered through its research, and its resulting findings. Therefore,
the Supreme Court of Appeal had no grounds to re-determine the factual findings of the
Commission.

Conclusion
[160] The mandate of the Commission was to determine the dispute in terms of
section 25(3)(a) of the unamended Framework Act. In this regard it had to consider and
apply customary law and customs of the relevant traditional commu nity as they were
when events occurred that gave rise to the dispute or claim . We know that the rightful
successor to uKumkani Mandlonke was never determined customarily and that the
dispute regarding kingship in terms of customary law was not resolved. Therefore, the
events that occurred that gave rise to the dispute or claim occurred way back in 1937
when uKumkani Mandlonke died without leaving an heir to the throne.

[161] As illustrated above, the Commission carefully analysed the evidence relating to
the customary law practised by amaMpondo at the time and how it was applied in order
to try and resolve the dispute regarding the successor to the kingship after Mandlonke
died without leaving an heir. Its findings were based on that analysis. Therefore, apart
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61
from genealogy, the Commission analysed how amaMpondo resorted to ukungena and
isifingo in order to raise seed in Mandlonke’s house. It concluded that Zanozuko was a
descendant of those customs.

[162] It also analysed the evidence of events showing that Nels on was more popular
than Botha and how he lost the claim to kingship through colonial intervention. The
Commission is very careful in its report to emphasise and highlight that Botha was
actually a Paramount Chief and not a king of amaMpondo because the c olonialists
distorted the amaMpondo history and their titles. When Mpondombini succeeded his
father, he did so as a Paramount Chief and not as a king of amaMpondo. In fact, the
headnote of the meeting where he was nominated by Nelson and others states that the
meeting was convened to forward names to the Governor. The purpose of the meeting
therefore was not to correct what happened in 1938 and the appo intment of Botha as a
Paramount Chief. It was to nominate and send Botha’s successor as Param ount Chief
to the colonial authorities.

[163] The appointment of Botha, was something that certainly called for intervention
and reconsideration by the Commission pursuant to its mandate, because it was patently
impacted by the colonial authorities and ignored the very criterion of popular support
for which the respondents contend as part of living customary law.

[164] Furthermore, Mpondombini’s nomination was a decision taken in the regional
authority, a body th at has its origins in the Bantu Authorities Act,45 and it was subject
to scru tiny and confirmation by Kaizer Matanzima u nder secti on 66 of the
Transkei Constitution, which may have influenced Nelson’s conduct. I also do not think
a once -off election called by Kaizer Matanzima as a statutory functionary of an
apartheid imposed homeland system is enough of a basis for concluding that elections
have become part of amaMpondo living customary law.


45 68 of 1951.
TSHIQI J
62
[165] Regarding the process followed by the Commission, there is no complaint that it
was unfair. No objections were raised at the time until it was finalised. There was no
prescribed procedure with which the Commission was required to comply in conducting
the investigation. There is also no evidence that the Commission considered irrelevant
factors or did not consider factors it had to consider. There is no justification for
second-guessing the assertion by the Acting Chairper son that some of the research
collected during the first phase was used, as well as the expertise of the panel members
and th eir own research. In fact, it appears through t heir reference to the
Appellate Division and Govan Mbeki and Poto’s book s that they did not confine
themselves to the evidence of the witnesses.

[166] This was a review, not an appeal. A review is different from an appeal. As stated
above with reference to Bapedi, even a difference in the interpretation of the facts placed
before the Commission, does not entitle a court to set aside the Commission’s decision.
So long as the Commission’s decision is rational and does not suffer from a review
ground set out in section 6(2) of PAJA, a court may not intervene. 46 Having said that,
I do not find a basis to find that the Commission committed an error in law or in fact.
There is thus no basis to review the findings of the Commission.

Remedy
[167] The respondents submit that, in addition to the review and setting aside of the
Commission’s decision, the matter must be referred to the Royal Family for
determination. As illustrated above, I have found no basis to review the findings of the
Commission. The application for review has no merit.

[168] The parties approached the courts because they were struggling to resolve the
dispute amongst themselves. There have been decades of uncertainty for amaMpondo
as to who should be the true heir to the throne.47 In my view, therefore, even from a

46 Bapedi above n 55 at para 92.
47 Shilubana above n 14 at para 43.
TSHIQI J
63
practical point of view, it is impossible to determine who the “royal family” is without
first determining which line of descent, that of Nelson or that of Botha, produces the
true heir.

[169] This Court in Zuma held:

“Like all things in life, like the best of times and the worst of times, litigation must, at
some point, come to an end. The Constitutional Court, as the highest court in the
Republic, is constitutionally enjoined to act as the final arbiter in litigation. This role
must not be misunderstood, mischaracterised, nor taken lightly, for the principles of
legal certainty and finality of judgments are the oxygen without which the rule of law
languishes, suffocates and perishes.”48

[170] This case requires an effective remedy , which in this case is an order replac ing
the decision of the Supreme Court of Appeal with one dismissing the appeal against the
judgment and order of the High Court.49 Mpondombini and Zanozuko have passed
away. But, in November 2018 the President recognised Zanozuko as King and this was
duly promulgated in the Government Gazette . Zanozuko died after his recognition.
Although his successor will have to be identified, this will be done against the
background that Zanozuko was so recognised as the K ing. The order of this Court
therefore leaves in place such recognition.

Costs
[171] The Supreme Court of Appeal ordered the app licants to pay the respondents
costs. This was in light of the fact that the Supreme Court of Appeal had reversed the
High Court’s decision. It is common cause that the award of costs is a matter with in
the discretion of the Court. Therefore, I make no order as to costs.


48 Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and
Fraud in the Public Sector Including Organs of State [2021] ZACC 28; 2021 JDR 2069 (CC); 2021 (11) BCLR
1263 (CC) at para 1.
49 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (1) BCLR
39 (CC); 2000 (2) SA 1 (CC) at para 89.
TSHIQI J
64
Order
[172] I therefore make the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“(i) The appeal is dismissed.
(ii) There is no order as to costs.”
4. There is no order as to costs in this Court.


TSHIQI J
65

For the Applicants:


N Arendse SC and D Borgström SC
instructed by Bhadrish Daya Attorney

For the First and Second Respondents:


G Budlender SC, M Mbikiwa and D
Mutemwa-Tumbo instructed by Webber
Wentzel and Richard Spoor
Incorporated Attorneys