About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2019
>>
[2019] ZASCA 58
|

|

Mphephu v Mphephu-Ramabulana and Others (948/17) [2019] ZASCA 58; [2019] 3 All SA 51 (SCA); 2019 (7) BCLR 862 (SCA) (12 April 2019)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 948/17
In
the matter between:
MASINDI
CLEMENTINE
MPHEPHU                                                                APPELLANT
and
REGENT TONI PETER
MPHEPHU-RAMABULANA                                                              FIRST

RESPONDENT
THE PRESIDENT OF THE
REPUBLIC
OF
SOUTH
AFRICA                                                                     SECOND

RESPONDENT
THE MINISTER OF
CO-OPERATIVE
GOVERNANCE
AND TRADITIONAL AFFAIRS                               THIRD

RESPONDENT
PREMIER:
LIMPOPO
PROVINCE                                                FOURTH

RESPONDENT
NATIONAL HOUSE OF
TRADITIONAL
LEADERS                                                                 FIFTH

RESPONDENT
LIMPOPO HOUSE OF
TRADITIONAL
LEADERS                                                                 SIXTH

RESPONDENT
COMMISSION ON
TRADITIONAL
LEADERSHIP
DISPUTES AND CLAIMS                                   SEVENTH

RESPONDENT
MPHEPHU-RAMABULANA
ROYAL FAMILY
COUNCIL                                                                                        EIGHTH

RESPONDENT
Neutral
Citation:
Mphephu
v Mphephu-Ramabulana & others
(948/17)
[2019] ZASCA 58
(12 April 2019)
Coram:
Maya P, Swain, Mathopo and Mocumie
JJA and Mothle AJA
Heard:
30 November 2018
Delivered:
12 April 2019
Summary:
Customary law –
traditional leadership – points
in
limine
–
whether first respondent was lawfully identified by Royal Family
Council and lawfully recognised by the President as the
King of
Vhavenda community in terms of the provisions of s 9 of
Traditional
Leadership and Governance Framework Act 41 of 2003
– the
President’s decision reviewed and set aside and proceedings
referred back to the high court for further hearing
on the merits.
ORDER
On
appeal from
:
Limpopo Division of the High Court, Thohoyandou (Makgoba JP sitting
as court of first instance):
1 The appeal is upheld
with no order as to costs.
2 The matter is referred
back to the Limpopo Division of the High Court, Thohoyandou for
further adjudication on the merits before
another judge.
3 The order of the high
court is set aside and replaced with the following:
‘
(a)
It is declared that the decision of the eighth respondent of 14
August 2010 to identify the first respondent as a suitable person
to
be appointed as the King of the Vhavenda Traditional Community is
unlawful, unconstitutional and invalid and is reviewed and
set aside.
(b) It is declared that
the decision of the second respondent dated 14 September 2012 to
recognise the first respondent as the King
of the Vhavenda
Traditional Community published in
Traditional Leadership and
Governance Framework Act 41 of 2003
: Recognition of Mr Toni Peter
Mphephu (Ramabulana) as King of Vhavenda Community GNR 766,
GG
,
35705, 21 September 2012 is unlawful, unconstitutional and invalid
and is reviewed and set aside.
(c) It declared that the
decisions of the eight respondent to identify, and that of the second
respondent to recognise the first
respondent as King of Vhavenda are
based on a criteria that promotes gender discrimination, and are
reviewed and set aside in that
the discrimination impedes compliance
with the provisions of
s 2A(4)(
c
) of the Traditional
Leadership and Governance  Framework Amendment Act 23 of 2009,
to progressively advance gender representation
in the succession to
the position of King or Queen of Vhavenda.
(d) The second and the
fourth respondents are directed to refer the following issues of
customary laws and custom to the fifth and
sixth respondents
respectively for opinion and advice to be submitted to the high
court:
(i) What measures are in
place, or have to be in place, for the adaptation and transformation
of the principle of primogeniture
by the traditional communities
within the context of s 2A(4
)(c)
of the Traditional leadership
and Governance  Framework Amendment Act 23 of 2009;
(ii) Whether a child born
before the parent is recognised as a traditional leader, qualifies to
be the successor of the parent to
that position of traditional
leadership; and
(iii) Whether in the
Vhavenda custom, the
Ndumi
qualifies to be identified and
recognised as a successor to a position of traditional leadership.
(e) The cost order is
costs in the cause.
(f) The withdrawal of the
certificate of recognition of the first respondent as King of
Vhavenda, shall be stayed pending the final
determination of the
proceedings.’
JUDGMENT
Mothle
AJA (Maya P, Swain, Mathopo and Mocumie JJA
concurring):
[1]
In December 2012, the appellant, Ms Masindi Clementine Mphephu,
instituted review proceedings in the Limpopo Division of the
High
Court, Thohoyandou (the high court), against the first respondent,
cited as Regent Toni Peter Mphephu-Ramabulana; the second
respondent,
the President of the Republic of South Africa; the third respondent,
the Minister of Cooperative Governance and
Traditional Affairs; the
fourth respondent,  the Premier: Limpopo Province; the fifth
respondent,  National House of
Traditional Leaders; the sixth
respondent,  the Limpopo House of Traditional Leaders; the
seventh respondent,  the Commission
on Traditional Leadership
Disputes and Claims and the eighth respondent, Mphephu-Ramabulana
Royal Family Council. The appellant
sought relief to have the
identification and recognition of the first respondent as the King of
Vhavenda, reviewed and set aside.
Her founding and replying
affidavits were deposed to by her uncle, Mr Mbulaheni Charles
Mphephu, as the second applicant. Only
the first, second, third,
seventh and eighth respondents opposed the application. The fourth,
fifth and sixth respondents did not
participate in the proceedings.
[2]
At the commencement of the proceedings before the high court, the
appellant and the respondents raised several points
in
limine
. They agreed
to a separate determination of the points in
limine
and the agreement
was made an order of court on 31 August 2015. The agreement isolated
fourteen issues for separate adjudication.
The high court upheld some
of the points
in
limine
and
dismissed the application as well as the application for leave to
appeal. The appeal is before this court with its leave.
[3]
On 26 February 1994, Mr Dimbanyika Mphephu, the appellant’s
father, was installed to succeed his deceased father, Paramount
Chief
Patrick Ramabulana, as the chief of the Mphephu-Ramabulana Tribal
community. The appellant was three years old at that time.
Upon
ascending the throne, Chief Dimbanyika appointed his half-brother,
the first respondent, as his
Ndumi.
[1]
He
ruled for only three years before his death in 1997. After his
passing, on 11 January 1998 the eighth respondent identified the

first respondent to take over the chieftaincy.
[2]
[4]
In 2003 the first respondent approached the high court for his
recognition as the king of Vhavenda. The application was dismissed
by
Lukoto J.  In the same year and acting in terms of s 212 of the
Constitution,
[3]
the
legislature enacted the
Traditional Leadership and Governance
Framework Act 41 of 2003
, which would come into operation on 24
September 2004. The Act was later amended under the same title, by
the Traditional Leadership
and Governance Framework Amendment Act 23
of 2009.  Since the issues raised in this appeal cover the
period between 1998 and
2012, reference will be made interchangeably
to both Acts. To distinguish them, the 2003 Act will be referred to
as ‘
the
Original Act
’
and the 2009 Act as ‘
the
Amended Act
’.
Where applicable, both Acts will be referred to jointly as the
Framework Act.
[5]
The Framework Act established a Commission to deal with traditional
leadership disputes and claims. Thus, the citation of the
Commission
as the seventh respondent needs to be clarified. In this judgment,
reference is made to two Commissions. Chapter 6 of
the Original Act
provides for traditional leadership dispute resolution and the
establishment of a Commission on Traditional Leadership
Disputes and
Claims (the old Commission). The old Commission had the power or
authority
to
investigate,
mero
motu
or on receipt
of a claim, and decide on leadership disputes and claims in respect
of the Kingship/Queenship. It had a lifespan
of five years, from 2004
to 2009, within which to complete its mandate. In January 2010 the
Commission completed its mandate and
its term of office expired. In
anticipation of the expiry of the old Commission’s term of
office in January 2010, Parliament
in 2009 amended the Original Act
in order to, amongst others, establish a successor Commission (the
new Commission). The new Commission
had ameliorated powers or
authority, only in case of a claim
,
to investigate and only recommend, on matters relating to leadership
dispute resolution and claims. It also had a lifespan of five
years
scheduled to end in 2016, which after an extension of a year, expired
on 31 December 2017. Therefore as at the hearing of
this appeal in
November 2018, the terms of office of both Commissions had expired.
[6]
In 2005, the first respondent lodged a claim with the old Commission
for the establishment of a Kingship/Queenship of the Vhavenda,
to
vest in the Mphephu-Ramabulana Royal Family. In addition, he also
lodged a claim to be recognised as the incumbent to that throne.

Three other Vhavenda communities, namely the Ravhura, the Tshivhase
and the Mphaphuli also lodged claims for the Kingship/Queenship.
The
old Commission investigated the claims for Kingship/Queenship. In
January 2010, it issued a determination that it recognised
a single
Vhavenda Kingship/Queenship (the Throne) which would vest solely in
the Mphephu-Ramabulana Royal Family. The old Commission
did not
pronounce on the incumbency to the Throne, ie it did not determine or
announce who in the Mphephu-Ramabulana Royal Family
should be the
King/Queen.
[7]
The determinations of the old Commission on the vesting of the
Kingship/Queenship to various South African communities, including

the Vhavenda, were formally announced by the second respondent in a
public statement dated 29 July 2010. In the same statement,
the
second respondent stated that for the Vhavenda and Ama-Ndebele
Kingships/Queenships, ‘the Commission must still decide
who the
two rightful incumbents are’. And further that ‘the
incumbents will be determined by a new Commission which
will be
established soon’.
On
14 August 2010, the eighth respondent identified the first respondent
as the king of the Vhavenda and submitted a request to
the second
respondent, through the third and fourth respondents, for his
recognition as such.
[8]
The other Vhavenda communities that contested the Throne, instituted
court proceedings to dispute the old Commission’s
award of the
Throne to the Mphephu-Ramabulana Royal Family. Consequently, the
second respondent delayed the requested recognition
of the first
respondent as the King of Vhavenda.
[9] The proceedings were
dismissed by Legodi J on 6 September 2012. On 21 September 2012, the
second respondent published in the
Government Gazette (Traditional
Leadership and Governance Framework Act 41 of 2003: Recognition of Mr
Toni Peter Mphephu (Ramabulana)
as a King of Vhavenda Community GNR
766,
GG
35705, 21 September 2012) the recognition of the first
respondent as the King of the Vhavenda.  It is this decision
which
prompted the appellant to institute the review proceedings.
Points
in Limine
[10] The following are
the points
in
limine
as they appear in the judgment of
the high court:
‘
1
Whether the applicants are precluded from approaching the Court for
relief, for failure to:
1.1 follow
the dispute resolution process under section 21 of the Traditional
Leadership and Governance Framework Act 41 of
2003 (as amended) (“the
Act”);
1.2 lodge
a dispute with the Commission over the First Respondent’s title
under section 25(2) (a) or (b) of the Act;
1.3 produce
evidence and make allegations to the President under section 9(3) of
the Act.
2
Whether the Court lacks jurisdiction to hear the review, in that it
concerns matters that can only properly be determined by a
specialist
Commission.
3
Whether the Court ought to decline to consider this review
application out of deference to the executive and the Commission.
4
Whether the application falls to be dismissed for want of a
pre-existing jurisdictional fact, in that the applicants have not

asked that the recognition by then-Premier of the Limpopo Province be
set aside or that the First Respondent be removed from his
position
of incumbency.
5
Whether the applicants’ claim has prescribed under section
25(5) of the amended Act.
6
Whether the applicants’ claim has prescribed under the
Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
7
Whether an investigation of the incumbent of the Vhavenda kingship or
queenship is pending before the Seventh Respondent (the
Commission on
Traditional Leadership Disputes and Claims) in terms of section 25(4)
and / or section 28(11) (b) of the Act, for
the purposes of the
making of a recommendation to the Second Respondent (the President)
or for the purposes of a final determination.
8
Whether the Second Respondent and / or the Seventh Respondent are
estopped from denying that a determination of the incumbent
of the
Vhavenda kingship or queenship is pending before the Seventh
Respondent as a result of the President’s public statement
of
29 July 2010.
9
Whether the applicants have a legitimate expectation that the Seventh
Respondent shall investigate and determine the incumbent
of the
Vhavenda kingship or queenship, and if so, whether such legitimate
expectation entitles the applicants-
9.1
to a determination of  the incumbent by the Seventh Respondent;
or
9.2
to a hearing by the Second Respondent before the taking of a decision
to recognise the incumbent of the Vhavenda kingship or
queenship.
10
Whether the Second Respondent’s decision to recognise the First
Respondent as King of the Vhavenda under section 9 of the
Act
constitutes administrative action reviewable under PAJA or executive
action reviewable under the principle of legality.
11
Whether the aforesaid Second Respondent’s decision is
reviewable and unlawful, and falls to be set aside, on the grounds
of
review set out in paragraphs 85.1, 85.1.1, 85.2 and 85.6 of the
founding affidavit and paragraphs 19-23, 24.1.6 and 24.3 of
the
supplementary founding affidavit (dated 8 April 2013), including,
without detracting from the generality of any of the foregoing,
the
questions whether-
11.1
the President ought to have known that there was evidence or at least
allegations that the first respondent was not identified
according to
customary law, and that this requires investigation, as a result of
the judgment of Legodi J (which notes that the
first respondent’s
claim to title is disputed);
11.2
the President failed to elicit any recommendation from the Minister
as required by section 9(1) (b) of the TLGFA.
12
Whether the decision of the Second Respondent to recognise the First
Respondent as King of the Vhavenda and / or the decision
of the
Eighth Respondent to identify the First Respondent as a King of the
Vhavenda is reviewable and unlawful, and falls to be
set aside, for
having been taken under the old (pre-amended)
Traditional Leadership
and Governance  Framework Act 41 of 2003
.
13
Whether, and without conceding that the Eighth Respondent constitutes
or legitimately represents “the royal family”
as
contemplated in section 9 of the Act, the decision of the Eighth
Respondent to identify the First Respondent as King of the
Vhavenda
constitutes administrative action reviewable under PAJA and / or the
principle of legality.
14
Whether the decision of the Eighth Respondent is reviewable and
unlawful, and falls to be set aside, for the failure to take
into
account the rights enshrined in the Bill of Rights (including the
right to equality), and its obligation to develop customary
law in
line with the Constitution when it identifies the king or queen of
the Vhavenda
.’
[11] There is a fair
amount of duplication in the questions raised as points
in limine
,
listed above. Consequently, I deal with some of them jointly to avoid
repetition.
Prescription
[12] The respondents
contended that consequent to the expiry of the terms of office of the
Commission, the appellant was no longer
in a position to lodge a
claim with any of the two Commissions and that her claim had thus
prescribed. It is correct that in so
far as lodging a claim or
declaring a leadership dispute with the Commission in terms of ss 21
and 25 of the Framework Act is concerned,
that claim has prescribed.
The high court ruling was correct. However the effect of that
prescription did not close the door on
the lodging of a claim or
declaring a leadership dispute. The appellant still had a remedy in
terms of s 9(3) of the Framework
Act, which she did not avail herself
to. I return to this aspect later in this judgment.
Jurisdiction
[13]
The respondents contended in the high court and before us that the
court lacked jurisdiction to hear the review as it concerned
a matter
that could only properly be considered by the specialist Commission.
The high court ruled that it lacked jurisdiction
as the dispute was
not lodged with the Commission in terms of s 21 of the Framework Act,
which provides for lodging of claims,
declaring of disputes over the
traditional leadership positions as well as the resolution of such
claims and disputes by the Commission.
[14]
This matter indeed concerns customary law and customs, a body of laws
recognised by the Constitution.
[4]
The
Commission, with its special knowledge of customary law, was designed
mainly to deal with the distortions in traditional leadership,

lineages and disputes as a result of interference by the apartheid
regime. But, as pointed out by the appellant, the respondents’

argument confuses judicial deference, which a court may appropriately
exercise in judicial review proceedings,
[5]
and
the justiciability of the appellant’s application. The
jurisdiction of the courts is not dependent on whether or not a

person has lodged a claim or declared a leadership dispute with the
Commission. The exercise of judicial deference is unwarranted
in this
instance. The courts are vested with authority to adjudicate
customary law issues in appropriate cases and to that end
s 211 of
the Constitution obliges them to apply and give effect to customary
law where it is implicated. Moreover, the separated
issues do not
concern disputed aspects of the Venda customary law that require the
Commission’s expertise. It is trite that
courts in exercising
their jurisdiction, strive not to intrude into the domain of other
branches of the State. To do so would upset
the balance of power and
offend the doctrine of separation of powers.
[6]
[15] The procedures
outlined in ss 9(3) and 21 of the Framework Act are designed such
that by the time the dispute is raised in
the courts, the customary
institutions or structures; specialist entities on customary laws and
custom, shall have had the opportunity,
as a matter of precedence, to
pronounce their views on the customary laws and custom rules
applicable. Their views as custodians
of that system of laws
constitute a part of the record of the decision, essential for any
court seized with a review of a decision
concerning customary laws
and custom.  The high court therefore erred in its finding that
it lacked the jurisdiction to adjudicate
this case.
Reviewability
[16]
The scheme of the Framework Act governs the taking of decisions by
the second, third and fourth respondents, the Commission,
Members of
the Executive Council for Traditional Affairs (MECs) and Traditional
Councils. All these officials and entities are
organs of state,
[7]
exercising
public power or performing public functions in terms of the Framework
Act, which may adversely affect the rights of persons
where it has
direct legal effect in the manner envisaged in the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). Their
decisions are of
an administrative nature, made under empowering legislative
provisions, which include the Framework Act and thus
constitute
administrative action, which is reviewable under PAJA.
[8]
[17]
The royal family stands on a different footing. It is not an organ of
state, but an institution of customary law, exercising
its powers in
terms of customary law, custom and processes. The genesis of the
process leading to the recognition of a traditional
leader lies with
a royal family. In performing that function, the royal family
initiates a process of identification of a person,
which process
leads to the exercise of public power and performing a public
function of the recognition of that person, by the
President or the
Premier, in terms of the Framework Act. The identification of a
traditional leader or successor to a traditional
leader is, as the
high court correctly observed, only the initial part of an
administrative action, which would only become ripe
for review after
the organ of state has taken the decision.
[9]
It
is after that stage that an aggrieved party whose rights have been
adversely affected, may exit the process
[10]
and
approach a court for appropriate relief. Pending the decision to
recognise, the President or the Premier is obligated by the
Framework
Act
[11]
to
ensure that the identification process complied with customary laws,
custom and processes. These are the internal processes to
the
Framework Act, provided for in Chapter 6, which must be followed
before a review of the decision is referred to court.
[18]
A decision of the President or the Premier is thus reviewable in
terms of the Framework Act. Section 6(1) of PAJA provides
that such
review proceedings may be instituted in a court or tribunal. Section
1 of PAJA defines ‘court’ as including
the Constitutional
Court in certain circumstances, the High Court or to a limited
extent, the Magistrate’s Court as courts
of first instance
where the proceedings may be instituted. PAJA therefore grants the
courts jurisdiction to adjudicate the review
of an administrative
action taken in terms of the Framework Act. In terms of s 8 of PAJA,
the court may, after review, grant any
order that is just and
equitable as an appropriate relief.
[12]
Failure to lodge a
claim, legitimate expectation and estoppel
[19]
It is common cause that the appellant neither lodged a claim nor
declared a dispute with either the old or new Commission or
in terms
of any provision of the Framework Act. She had the opportunity to
declare a dispute during the public investigation of
the claim for
the establishment of the Throne by the old Commission between
November 2005 and December 2008. It was submitted in
this Court that
she could not do so as she was a minor aged between 14 and 17 at that
time. She turned 18 years of age, the statutory
age of majority, in
2009, as the old Commission was finalising its investigation of the
claim for establishment of the Throne.
She was therefore a major in
January 2010, when the old Commission announced its decision to award
the Throne to the Royal Family
of Mphephu-Ramabulana, with no
decision on the incumbent to that Throne. But she still did not stake
her claim for the Throne.
[20]
It was the function of the old Commission to
mero
motu
or on lodging
of a claim or declaring a leadership dispute for incumbency, in terms
of s 25 (2
)(a
)(ii)
of the Original Act, to conduct an investigation and take a decision
in resolving the leadership dispute. Similarly, it was
also the
function of the new Commission on lodging of a claim or declaring a
leadership dispute to investigate and make a recommendation
in terms
of s 25(2)(
a
)(iii)
of the Amended Act. The new Commission did not have the authority to
investigate
mero
motu
or take a
decision after investigation.
[21] The appellant
contends that the old Commission was obligated to investigate the
claim for the leadership incumbency as lodged
by the first
respondent. She contended further that she held that view, consequent
to the second respondent’s public statement,
that the new
Commission as successor-in-title, was seized with the investigation
of the incumbent and would announce its decision.
The texts of both s
25(2)(
a
)(ii) (in the Original Act) and  s 25(2)(
a
)(iii)
of the Amended Act deal with claims for leadership incumbency and are
identical. They provide, as one of the functions listed,
that the
Commission has the authority to investigate a dispute or claim
concerning;
‘…
a
traditional leadership position where the title or right of the
incumbent
is contested.’
(My
emphasis
.)
[22]
It is plain from the language of s 25(2)(
a
)
that the old and the new Commissions were obligated to conduct an
investigation of a leadership dispute to the title or right
of the
incumbency within the context of a disputed or contested leadership
claim.
[13]
As
far as the Commission was concerned, there is thus no evidence that
the claim for incumbency lodged by the first respondent was
either
contested or disputed. Therefore the contention that the appellant
had a legitimate expectation that the old and the new
Commissions
were seized with the investigation of the first respondent’s
claim for incumbency, was legally and factually
incorrect. The
Commission did not have the power to identify a person for
recognition as King or Queen. Those powers vest with
the royal
family, in particular, in terms of the custom of Vhavenda, Khadzi
(the sister to the incumbent ruler), would announce
her choice of
successor. The Commission’s power in this context was only to
resolve a dispute concerning a contested identification.
[23]
If the appellant’s version that she believed the Commissions to
be seized with an investigation of the leadership incumbency,
is to
be accepted, then she, with the assistance of her uncle Mr Mbulaheni
Charles Mphephu, should have realised in August 2010
when the eighth
respondent identified the first respondent for recognition, that the
process of appointing a King for Vhavenda
in terms of s 9 of the
Framework Act had commenced. At that point, she could have inquired
from the Commission as to progress in
the investigation of the
incumbency she erroneously assumed was underway. She had two years to
do so before the recognition by
the second respondent was gazetted in
September 2012. She failed and offered the high court no explanation.
[24]
Further, her reliance on the opening remarks by the Chairperson of
the old Commission is misplaced. The evidence on record
is that
reference by the Chairperson at the meeting, to the claims for
Kingship/Queenship as well as that of incumbency, was simply
to place
on record what was claimed. There was no undertaking made in that
meeting that the old Commission was or would be conducting
an
investigation on the question of the leadership incumbency. During
the Commission hearings, the first respondent, including
the other
three claimants for the Kingship/queenship, made presentations in
support of their claims for the throne, as well as
submissions
concerning their own personal claims for incumbency. The submissions
did not imply that the Commission was seized with
the question of
incumbency. Once the throne was awarded to a particular tribal
community, in this instance the Mphephu-Ramabulana
Royal Family, the
contestations for incumbency could only have arisen if there was a
dispute or other claim. There was no contested
claim for incumbency
in the Royal Family of Mphephu-Ramabulana.
[25]
Thus, the public statement by the second respondent that the
Commission was investigating the leadership incumbency was based
on
an assumption that was also legally and factually incorrect. The
point
in
limine
pertaining
to the question of estoppel, that the second respondent is estopped
from denying the statement, is equally flawed as
it is based on an
assumption and statement that was legally incorrect.
[14]
In
addition, and as the first respondent correctly submitted, estoppel
should be raised as a defence.
[15]
[26]
It is further common cause that the appellant did not present any
evidence or allegation to the second respondent in terms
of s 9(3) of
the Framework Act. The section provides that where there is evidence
or an allegation that the identification of a
person referred to in s
1 (in this case the first respondent) was not done in accordance with
customary law, custom or processes,
the second respondent may deal
with that evidence or allegation as provided for in s 9(3)
(a)
and
(b)
and must do so in
(c)
read with s (4) of both the Acts. Between 14 August 2010, when the
eighth respondent identified the first respondent as the incumbent
to
the Throne, and 21 September 2012 when the second respondent
recognised him as the King of Vhavenda, the appellant, then aged

above 18 and assisted by her uncle, had ample opportunity to produce
evidence or make an allegation to the second respondent in
support of
her claim. She contends that she was not obligated to do so. Stated
otherwise, she contends that she had no obligation
to comply with the
Framework Act.
[27]
This court in
Netshimbupfe
[16]
held
that a party seeking the kind of relief such as that sought by the
appellant, had to follow the process outlined in the Framework
Act.
There is no authority to support the contention by the appellant that
she can at will ignore the dispute resolution provisions
of the
Framework Act and directly approach the court. The Framework Act
provides for a designed leadership dispute resolution process
in
terms of customary laws and customs. Apart from the allegation that
her uncle unsuccessfully attempted to approach the eighth
respondent
prior to and during the meeting of 14 August 2010, to which I will
later return, the appellant in the high court and
this court
manifested an intention of non-compliance with the provisions of the
Framework Act in prosecuting her claim to ascend
the Throne. In
particular, in regard to lodging a claim or declaring a dispute with
the old or new Commissions, she allowed such
to prescribe. The high
court was thus correct in concluding that the appellant is non-suited
for failure to follow the processes
provided for in ss 9, 21 and 25
of the Framework Act. The high court was also correct in dismissing
her allegation that she held
a legitimate expectation that the
leadership incumbency was under investigation by both Commissions.
The high court was also correct
in dismissing her further claim that
the second respondent is estopped from denying the legality of the
public statement to the
alleged pending investigation.
The
principle of primogeniture and the attack on the constitutional
validity of ss 2, 2A and 2B of the Framework Act.
[28] The appellant
contends, with reference to the minutes of the meeting of the eighth
respondent dated 14 August 2010, where the
first respondent was
identified for recognition as King, that she was not identified to
ascend the Throne due to gender discrimination
which offends the Bill
of Rights in the Constitution. The minutes of the meeting records in
part:
‘
Mr
Mphephu explained as to how according to Vhavenda tradition and
customary a future king or chief is identified. He did mention
the
following criteria: that
he
should be from the royal family and dzekiso wife-
he
should not have criminal records-
he
should be discipline(d) (good behaviour). He should respects
(respect) elders. He should be a good leader. He further mentioned

that according to Vhavenda customs a female (makhadzi is the one who
must identify the king and supported by all makhotsimunene
and other
khadzi.
In
the Mphephu-Ramabulana family in particular the chief or king must
come or must be a man
(
sons
).’
(My emphasis.)
[29]
This being the first identification of the incumbent to the Throne as
King or Queen of Vhavenda, a precedence was declared,
that only men
would qualify for the position. Apart from the fact that there is no
evidence in the minutes that the criteria was
declared to prohibit
the identification of the appellant, the effect of this criterion is
that the appellant, and any other woman
who may meet the  other
criteria to succeed as queen in the Mphephu-Ramabulana Royal Family,
would be disqualified by her
gender. Therefore contrary to the
submission by the eighth respondent, this issue is very much alive as
it established a criterion
which upholds the principle of
primogeniture that offends the right to equality in the Bill of
Rights.
[30] Ordinarily, and on
this point
in
limine
, the criterion that promotes
gender discrimination should be declared unconstitutional, invalid
and consequently be set aside.
However the Constitutional Court,
supported by the legislature, are of the view that the proper
approach in dealing with amendments
or repeal or changes of customary
laws and customs, should be in a form of development, implemented
progressively by the affected
traditional community. The
Constitutional Court, in
Shilubana & others v
Nwamitwa
2009 (2) SA 66
(CC), considered the question of a traditional
community’s authority to develop their customs and traditions
so as to promote
gender equality in the succession of traditional
leadership, in accordance with the Constitution. In outlining the
approach to
the development of customary law and custom, the
Constitutional Court concluded thus:
‘
[73]
... Section 211(2) specifically provides for the right of traditional
authorities to function subject to their own system of
customary law,
including amendment or repeal of laws. A community must be empowered
to itself act so as to bring its customs into
line with the norms and
values of the Constitution. Any other result would be contrary to
section 211(2) and would be disrespectful
of the close bonds between
a customary community, its leaders and its laws.
[74]
It follows that if the traditional authority has only those powers
accorded it by the narrow view, it would be contrary to
the
Constitution and frustrate the achievement of the values in the Bill
of Rights. Section 39(2) of the Constitution obliges this
Court to
develop customary law in accordance with the spirit, purport and the
aims of the Bill of Rights. This power should be
exercised
judiciously and sensitively, in an incremental fashion. As the
Supreme Court of Canada has held in relation to common
law, “[t]he
judiciary should confine itself to those incremental changes which
are necessary to keep the common law in step
with the dynamic and
evolving fabric of our society.” The same remarks apply to
customary law. It is appropriate for the
Court to exercise its
section 39(2) powers in a manner that will empower the community
itself to continue the development.’
[31] The legislature also
provided in s 2A(4) of the Framework Act as follows:
‘
A
kingship or queenship must transform and adapt customary law and
custom relevant to the application of this Act so as to comply
with
the relevant principles contained in the Bill of Rights in the
Constitution, in particular by-
(a)
preventing
unfair discrimination;
(b)
promoting
equality; and
(c)
seeking
to progressively advance gender representation in the succession to
traditional leadership positions.’
[32] The criteria that
only men should succeed to the Throne in the Mphephu-Ramabulana
community impedes compliance with the provisions
of s 2A(4)(
c
)
of the Framework Act. Section 2A(4)(
c
) provides for a
progressive transformation and adaptation of the selection criteria
in order to ensure that the customary law and
custom complies with
the provisions of the Bill of Rights on gender equality. The Vhavenda
traditional communities have an obligation
to develop the criteria
for identification of a King or Queen to bring it in line with the
Bill of Rights. In this case, s 9 of
the Framework Act obliged the
second respondent to effect recognition of an identified person as
King on the recommendation of
the third respondent. Thus the second,
third and eighth respondents failed to consider this issue in terms
of s 6(2
)(e
)(iii
)
of PAJA when effecting the
identification and recognition respectively of the first respondent
as King of Vhavenda. The decisions
to identify and recognise the
first respondent should thus be reviewed and set aside, as the
criteria impedes compliance with s
2A(4
)(c)
of the Amended
Act. The high court erred in dismissing this point
in limine
.
Declaration of
invalidity
[33]
The appellant contends that ss 2A(4) and 2B(4) of the Amended Act
should be declared constitutionally invalid. These sections
in the
Framework Act provide for the progressive transformation and
adaptation of the customary laws and custom, to comply with
the
relevant principles of the Bill of Rights in the Constitution.
Section 2A(4) is quoted and referred to under the discussion
of the
point
in
limine
on
primogeniture above.
[34]
The appellant contends that the words ‘to progressively
advance’ in those sections should be declared constitutionally

invalid, in that they cause the delay of the envisaged transformation
and adaptation of the customary laws and customs, in complying
with
the relevant principles contained in the Bill of Rights. This
contention was not supported by any objective facts or evidence
in
relation to any form or manner of delay on the part of Vhavenda, to
transform their customary laws, custom or practices. The

primogeniture principle is a criterion that was introduced as one of
the other criteria to identify a King/Queen in the Mphephu-Ramabulana

Royal Family. There was no evidence of a delay in general in seeking
to advance gender representation in the succession to other

traditional leadership positions in the custom of Vhavenda. On the
contrary, the appellant in the founding affidavit deposed to
on her
behalf, avers that Makhadzi Phophi Mphephu (a female and sister to
the incumbent leader) who at some point acted as regent
in the house
of Mphephu-Ramabulana, is a senior traditional leader in her own
right. Further, and as already stated in this judgment,
the
Constitutional Court in
Shilubana
[17]
held
that the development of customary laws and customs should be effected
incrementally by the traditional communities affected.
Thus the
attack of constitutional invalidity on ss 2A and 2B(4
)(c
)
of the Framework Act has no merit for want of evidence and was
correctly dismissed by the high court.
‘
Notice
to recognise’ issued in terms of the Original Act
[35]
The second respondent took the decision to recognise the first
respondent as King of Vhavenda on 21 September 2012, in terms
of the
provisions of s 9 of the Original Act. The appellant contends that
the second respondent in publishing the recognition in
terms of the
Traditional Leadership and Governance Framework Act 41 of 2003
:
Recognition of Mr Toni Peter Mphephu (Ramabulana) as King of Vhavenda
Community GNR 766, GG 35705, 21 September 2012
,
relied on the old
version of s 9 of the Original Act, which had been changed in the
Amended Act to require the second respondent
to act on the
recommendation of the third respondent. The high court was of the
view that the decision was taken correctly in terms
of the Original
Act, but did not provide reasons therefor.
[36]
The crux of the different texts of s 9 is that under the Original
Act, the second respondent could act alone to recognise the

identified person. Under the Amended Act, the second respondent must
act on the recommendation of the third respondent. The notice
issued
on 21 September 2012 makes no mention that the recognition is on
recommendation of the third respondent. This case is the
direct
opposite of what transpired in
Sigcau,
[18]
where
the Constitutional Court declared invalid, a notice of recognition
issued under the Amended Act instead of the Original Act.
The second
respondent does not dispute that the notice was issued in terms of s
9 of the Original Act. As at 14 August 2010 when
the first respondent
was identified and through to 21 September 2012, the Original Act had
been amended and the Amended Act was
in force. The notice was not in
accordance with the Amended Act and was thus invalid. On this ground
too, the decision of the second
respondent stands to be reviewed and
set aside in terms of s 6(2)(
d
)
of PAJA, in that the action was materially influenced by an error of
law. The high court erred in dismissing this point
in
limine.
Composition of the
meeting of the eighth respondent on 14 August 2010
[37] The appellant
questioned the presence of traditional leaders who were not members
of the eighth respondent in the meeting of
14 August 2010. The
Framework Act defines a royal family as:
‘
[T]he
core customary institution or structure consisting of immediate
relatives of the ruling family within a traditional community,
who
have been identified in terms of custom and includes, where
applicable, other family members who are close relatives of the

ruling family.’
[38] There were members
of the Royal Council present in the meeting. The Royal (Tribal)
Council is an administrative structure established
in terms of the
Framework Act, and some of its members would also be members of a
royal family. The persons who serve as both the
Royal Family and the
Royal Council are entitled to attend and participate in the Royal
Family meetings. However, the members of
the Royal Council who were
not related to the Mphephu-Ramabulana Royal Family, were not entitled
to attend the meeting of 14 August
2010. The eighth respondent itself
confirmed in its affidavit that the meeting was also attended by
other senior traditional leaders
who are members of the Royal Council
but not of the Mphephu-Ramabulana Royal Family. Thus the decision to
identify the King of
Vhavenda was not taken by the Royal Family only,
as required by customary law, custom and the Framework Act. It was
taken by a
joint sitting of the Royal Family and the Royal Council.
The decision of the meeting was thus not in accordance with the law
and
stands to be reviewed and set aside in terms of s 6(2)
(a)
(ii)
of PAJA. This is so because the decision was taken under a delegation
of power which was not authorised by the empowering provision;
in
terms of s 6(2)
(b)
of PAJA, in that a mandatory material
procedure prescribed by an empowering provision was not complied with
and in terms of s 6(2)
(e)
(iv) in that the action was taken
because of the unauthorised dictates of another person.  The
high court erred in dismissing
this point
in limine.
Pending disputes of
facts
[39] Apart from the
points
in limine,
there were other factual disputes between
the parties on the merits. These disputes require application of
principles of customary
laws and custom, without which the
adjudication of this case cannot reach finality. Three of these
issues are the following.
(1)
The issues of
Dzekis
o
wife and
the
appellant being older than the Throne
[40] The eighth
respondent alleged that the appellant was not considered for
identification because she was older than the Throne,
in the sense
that she was born three years before her father ascended the Throne.
The eighth respondent contended that according
to its custom, in
order for the appellant to qualify as successor to the Throne, she
had to be born of an incumbent traditional
leader. The appellant
admitted that she was born before her father ascended the Throne. The
second reason advanced for her exclusion
from the identification
process was that she was not born of a
Dzekiso
wife. The
Dzekiso
wife is the wife of the traditional leader selected by
the royal family, in the Vhavenda custom in the person of
Makhadzi
,
to bear an heir to the throne. The appellant’s mother was,
according to the eighth respondent, not married by custom to
bear an
heir. The appellant responded that her mother was in fact the
Dzekiso
wife. There is thus a dispute of fact on the question whether or not
the appellant’s mother was a
Dzekiso
wife, an issue
which must be referred to the high court for evidence and
adjudication.
(2)
Attempt to consult Royal Family
[41] The appellant
disputed the eighth respondent’s allegation that she did not
personally or with the assistance of others,
communicate her claim to
the eighth respondent before she approached a court. Her uncle, Mr
Mbulaheni Charles Mphephu, stated in
the replying affidavit that he
contacted Makhadzi, Ms Mavis Mphephu, and requested her to raise the
issue of the appellant as successor.
In response he received
intimidating phone calls from someone he identified as the first
respondent’s spokesperson. He alleged
that this person
threatened him and the appellant and told them to stop contesting the
first respondent’s leadership. They
both received further
threatening messages which caused them to contact the police VIP
protection services. Such conduct, if found
to be true, would impugn
the credibility and the reliability of the outcome of the meeting.
This aspect is also referred to the
high court for adjudication, more
so it was raised in the replying affidavit, although the respondents
did not request to strike
it out or obtain leave of the court to
respond in supplementary affidavits.
(3) The position of
Ndumi
and Regent
[42] The appellant
contended that the first respondent was
Ndumi
to her father
and consequently, according to customary law and custom of Vhavenda,
he was disqualified to succeed her father as
the traditional leader.
She further contended that the first respondent ascended the position
of senior traditional leader as a
regent. In support of that
contention, she attached copies of the minutes of a meeting held in
1998, at which the first respondent
was allegedly identified by the
eighth respondent to be recognised as a regent and not senior
traditional leader. These issues
require further evidence and
adjudication before the high court for a proper determination.
Conclusion
[43]
In light of these findings, the decision by the second respondent to
recognise the first respondent as King of Vhavenda, is
reviewed and
set aside and the appeal must succeed. However, it would obviously be
premature to consider a just and equitable remedy
before the entire
review is finalised.
[19]
The
outstanding issues and points
in
limine
referred to the high court for evidence and adjudication have a
direct bearing on any future identification and recognition of
a
person, even in an acting capacity, as King or Queen of Vhavenda.
Thus, any attempt to appoint anyone to the Throne at this stage
of
the proceedings, would require a prior resolution of the very same
issues pending adjudication in the high court. It would be
in the
interest of all the parties to have these matters resolved before the
next process of identifying and recognising a leader
in terms of s 9
of the Framework Act commences. Consequently, the effect of the
review and setting aside of the first respondent’s
recognition
as King of Vhavenda and the withdrawal of his recognition certificate
as King will have to be stayed, pending the completion
of the
proceedings, including any appeal process that might arise therefrom.
[44] The fifth and sixth
respondents are the recognised statutory structures, established to
advise the President and the Premier
in terms of ss 9(3
)(a
)
and 11(3)
(a)
of the Framework Act respectively, on matters of
customary laws and customs. In the absence of the Commission, they
serve as a
primary source of knowledge and expertise on the
prevailing customary laws and customs. It would therefore be
necessary in this
case, and to assist the high court, for the second
and fourth respondents to be directed to refer the questions of
customary laws
and custom arising from this case to the fifth and
sixth respondents for advice and guidance. These questions would
include: (a)
what measures have to be taken for the adaptation and
transformation of the principle of primogeniture by the traditional
communities
within the context of s 2A(4)
(c)
of the Amended
Act; (b) whether a child born before the parent is recognised as a
traditional leader, qualifies to be the successor
of the parent to
that position of traditional leadership and (c) whether in the
Vhavenda custom, the
Ndumi
qualifies to be identified and
recognised as a successor to a position of traditional leadership.
The response to these questions
must then be placed before the high
court as part of the evidence in the adjudication of the merits.
Costs
[45]
All the parties in this appeal have had a measure of success and
failure in regard to their points
in
limine
. In view of
the referral of this matter back to the high court for adjudication
on the merits, it would thus be inappropriate to
award any party
costs of the appeal. The ruling of the high court in regard to the
costs on the points
in
limine
should be
similarly set aside and the costs awarded by the high court should be
costs in the cause.
[46] In the premises the
following order would be appropriate at this stage:
1 The appeal is upheld
with no order as to costs.
2 The matter is referred
back to the Limpopo Division of the High Court, Thohoyandou for
further adjudication on the merits before
another Judge.
3 The order of the high
court is set aside and replaced with the following:
‘
(a)
It is declared that the decision of the eighth respondent of 14
August 2010 to identify the first respondent as a suitable person
to
be appointed as the King of the Vhavenda Traditional Community is
unlawful, unconstitutional and invalid and is reviewed and
set aside.
(b) It is declared that
the decision of the second respondent dated 14 September 2012 to
recognise the first respondent as the King
of the Vhavenda
Traditional Community published in
Traditional Leadership and
Governance Framework Act 41 of 2003
: Recognition of Mr Toni Peter
Mphephu (Ramabulana) as King of Vhavenda Community GNR 766,
GG
35705, 21 September 2012 is unlawful, unconstitutional and
invalid and is reviewed and set aside.
(c) It declared that the
decisions of the eight respondent to identify, and that of the second
respondent to recognise the first
respondent as King of Vhavenda are
based on a criteria that promotes gender discrimination, and are
reviewed and set aside in that
the discrimination impedes compliance
with the provisions of s 2A(4)
(c)
of the Traditional
Leadership and Governance Framework Amendment Act 23 of 2009, to
progressively advance gender representation
in the succession to the
position of King or Queen of Vhavenda.
(d) The second and the
fourth respondents are directed to refer the following issues of
customary laws and custom to the fifth and
sixth respondents
respectively for opinion and advice to be submitted to the high
court:
(i) What measures are in
place or have to be in place for the adaptation and transformation of
the principle of primogeniture by
the traditional communities, within
the context of s 2A(4)
(c)
of the Traditional leadership and
Governance Framework Amendment Act 23 of 2009;
(ii) Whether a child born
before the parent is recognised as a traditional leader, qualifies to
be the successor of the parent to
that position of traditional
leadership and
(iii) Whether in the
Vhavenda custom, the
Ndumi
qualifies to be identified and
recognised as a successor to a position of traditional leadership.
(e)  The costs shall
be costs in the cause.
(f) The withdrawal of the
certificate of recognition of the first respondent as King of
Vhavenda, shall be stayed pending the final
determination of the
proceedings.
______________________
S P Mothle
Acting Judge of Appeal
APPEARANCES:
For
Appellant: A Dodson SC, J Bleazard and M Maenetjie
Instructed
by:
Hammann-Moosa
Incorporated
C/o
Webbers Attorneys, Bloemfontein
For
1
st
and 8
th
Respondent: I A M Semenya and T J
Macuaba
Instructed
by:
Nkhume
Makhavhu Attorneys
C/o
Matsepes Attorneys, Bloemfontein
For
2
nd
, 3
rd
and 7
th
Respondent: N M
Arendse SC &   Z Z Matebese SC Instructed by:
Bhadrish
Daya Attorneys
C/o
MatsepesAttorneys, Bloemfontein
[1]
Ndumi
,
in terms of Vhavenda custom, is a male person appointed by the royal
family as one of the assistants to the reigning King or
Queen. One
of the points of dispute between the parties is whether a
Ndumi
could be a successor to the Throne.
[2]
The question whether King Ramabulana was identified to succeed as
senior traditional leader or as regent is one of the issues
in this
case.
[3]
The Constitution of the Republic of South
Africa
Act 108 of 1996.
[4]
Section 211 of the Constitution.
[5]
To avoid
intruding into the domain of other branches of the State and
upsetting the balance of power as entailed in the doctrine of

separation of powers. See
International
Trade Administration Commission v SCAW
South
Africa
[2010] ZACC 6
;
2010 (5) BCLR 457
(CC),
2012 (4) SA 618
(CC) para 95.
[6]
Footnote
5 para 95.
[7]
Section 239
of the Constitution.
[8]
Section 1
of the
Promotion of Administrative Justice Act 3 of 2000
.
[9]
See
Netshimbupfe &
another v Mulaudzi & others
[2018] ZASCA 98; [2018] 3 All SA 397 (SCA).
[10]
Tshivhulana
Royal Family v Netshivhulana
2017 (6) BCLR 800
(CC) para 32.
[11]
Section (3) of the
Traditional Leadership and Governance Framework
Act 41 of 2003
in the case of the second respondent, and ss 10B(5)
and 21 of the Traditional Leadership Governance Framework Act 23 of
2009
in the case of the fourth respondent.
[12]
Allpay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency
& others
[2013] ZACC 42
,
2014 (1)
BCLR 1
(CC),
2014 (1) SA 604
(CC) para 25.
[13]
See
Sigcau & another v
Minister of Cooperative Governance and Traditional Affairs &
others
[2018]
ZACC 28
;
2018 (12) BCLR 1525
(CC) para 1 (
Sigcau
II).
[14]
Provincial
Government of the Eastern Cape & others v Contractprops 25 (Pty)
Ltd
[2001]
4 All SA 273
(A);
2001 (4) SA 142
(SCA) at 148.
[15]
Mann v Sydney Hunt Motors
(Pty) Ltd
1958 (2) SA 102
(GW) at 107D.
[16]
Netshimbupfe
& another v Carthcart & others
[2018] ZASCA 98
;
[2018] 3 All SA 397
(SCA)
para 17.
[17]
Shilubana & others v
Nwamitwa
2009 (2) SA 66
(CC) paras 73 to 75.
[18]
Sigcau
v President of the Republic of South Africa & others
[2013] ZACC 18; 2013 (9) BCLR 1091 (CC).
[19]
Footnote 12 para 56
.