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[2013] ZACC 18
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Sigcau v President of the Republic of South Africa and Others (CCT 93/12) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) (13 June 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 84/12
[2013] ZACC 18
In the matter between:
JUSTICE MPONDOMBINI SIGCAU
............................................................
Applicant
and
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
.................................................................................
First
Respondent
COMMISSION ON TRADITIONAL
LEADERSHIP DISPUTES AND CLAIMS
....................................
Second
Respondent
CHAIRPERSON OF THE COMMISSION ON
TRADITIONAL LEADERSHIP DISPUTES
AND CLAIMS
....................................................................................
Third
Respondent
ZANOZUKO TYELOVUYO SIGCAU
...........................................
Fourth
Respondent
MINISTER FOR LOCAL GOVERNMENT AND
TRADITIONAL AFFAIRS
.................................................................
Fifth
Respondent
PREMIER: EASTERN CAPE PROVINCE
.......................................
Sixth
Respondent
NATIONAL HOUSE OF TRADITIONAL LEADERS
................
Seventh
Respondent
EASTERN CAPE HOUSE OF TRADITIONAL LEADERS
..........
Eighth
Respondent
IKUMKANI AMAMPONDO ASE NYANDENI
.............................
Ninth
Respondent
together with
CENTRE FOR LAW AND SOCIETY
...................................................
Amicus
Curiae
Heard on : 21 February 2013
Decided on : 13 June 2013
JUDGMENT
THE COURT: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Mhlantla
AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J
Introduction
[1] The
amaMpondo people have played a significant part in the history of
resistance to oppression in this country. Under the leadership
of
Faku, who ruled from 1824 to 1867, the amaMpondo defended themselves
in the Mfecane wars and extended their sphere of influence.
1
Their land was only colonised in 1894.
2
In 1960, during apartheid, the people rebelled in the “Pondoland
Uprising”.
3
It is ironic that both the rise of Faku and the uprising in 1960
still resonate, at different levels, in this dispute.
[2] It is
a dispute about who the rightful
ikumkani
, or king, of the
amaMpondo aseQaukeni is. The relevance of Faku’s kingship lay
in his manner of accession and the split of
the kingdom into the
amaMpondo aseQaukeni (referred to as the Eastern Pondo) and the
amaMpondo aseNyandeni (referred to as the
Western Pondo). The
relevance of the uprising is that some say that its cause lay in the
disputed kingship of the amaMpondo aseQaukeni.
4
[3] That
dispute erupted in 1937 after the then
ikumkani
, Mandlonke,
died without leaving male issue. This led to competing claims between
two of Mandlonke’s brothers, Botha and
Nelson Sigcau. The
dispute was statutorily settled when Botha Sigcau was recognised as
the “paramount chief” of the
Eastern Pondo in terms of
the Black Administration Act.
5
We say “statutorily settled”, because it was not settled
customarily. The dispute re-erupted when Botha Sigcau died,
this time
between his son (applicant) and Zwelidumile Sigcau, the son of Nelson
and the father of the fourth respondent. The applicant
won this
statutory battle and was appointed paramount chief in his father’s
footsteps under the Traditional Leadership and
Governance Framework
Act
6
(old Act). Now, some seventy-five years after the death of Mandlonke,
the dispute flared up again, this time between the applicant
and the
fourth respondent. It is necessary to explain why and how.
Constitutional
and legal framework
[4] The
institution, status and role of traditional leadership, according to
customary law, are recognised, subject to the Constitution.
Sections
211 and 212 of the Constitution provide:
“
211
Recognition
(1) The institution, status and
role of traditional leadership, according to customary law, are
recognised, subject to the Constitution.
(2) A traditional authority that
observes a system of customary law may function subject to any
applicable legislation and customs,
which includes amendments to, or
repeal of, that legislation or those customs.
(3) The courts must apply
customary law when that law is applicable, subject to the
Constitution and any legislation that specifically
deals with
customary law.
212
Role of traditional
leaders
(1) National legislation may
provide for a role for traditional leadership as an institution at
local level on matters affecting
local communities.
(2) To deal with matters
relating to traditional leadership, the role of traditional leaders,
customary law and the customs of communities
observing a system of
customary law—
(a) national or provincial
legislation may provide for the establishment of houses of
traditional leaders; and
(b) national legislation may
establish a council of traditional leaders.”
[5] The
old Act provided the framework envisaged in section 212(1) of the
Constitution. It was amended in 2009 by the Traditional
Leadership
and Governance Framework Amendment Act
7
(new Act).
[6] The
old Act provided for the recognition of traditional communities,
8
the establishment, and recognition of traditional councils and
withdrawal of recognition of traditional communities,
9
and for the functions of traditional councils.
10
It recognised three leadership positions within the institution of
traditional leadership: kingship, senior traditional leadership
and
headmanship.
11
For present purposes only the provisions relating to kingship need
closer attention.
12
[7] The
recognition and removal of kings and queens under the old Act would,
in the normal course, proceed in terms of sections
9 and 10. Both
these sections require the involvement of the royal family
concerned.
13
[8]
Disputes concerning leadership positions within the institution of
traditional leadership
14
had to be resolved by the Commission on Traditional Leadership
Disputes and Claims
15
(Commission), the second respondent. The Commission had the authority
to investigate, either on request or of its own accord, cases
of
doubt as to whether a kingship, senior traditional leadership or
headmanship was established in accordance with customary law
and
customs,
16
and where the title or the right of the incumbent to a traditional
leadership position was contested.
17
[9]
Section 25(3)(a) and (b) of the old Act provided that:
“
(a)
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.
(b) The Commission must—
(i) in respect of a kingship, be
guided by the criteria set out in section 9(1)(b) and such other
customary norms and criteria
relevant to the establishment of
kingship; and
(ii) in respect of a senior
traditional leadership or headmanship, be guided by the customary
norms and criteria relevant to the
establishment of a senior
traditional leadership or headmanship, as the case may be.”
[10]
Section 26 regulated the decisions of the Commission, and provided
that:
“
(1) A
decision of the Commission is taken with the support of at least two
thirds of the members of the Commission.
(2) A decision of the Commission
must, within two weeks of the decision being taken, be conveyed to—
(a) the President for immediate
implementation in accordance with section 9 or 10 where the position
of a king or queen is affected
by such a decision; and
(b) the relevant provincial
government and any other relevant functionary which must immediately
implement the decision of the Commission
in accordance with
applicable provincial legislation in so far as the implementation of
the decision does not relate to the recognition
or removal of a king
or queen in terms of section 9 or 10.
(3) Any decision taken by the
Commission must be conveyed to the President.”
[11] As
will be seen later, the provisions of the new Act are only relevant
to a limited extent and need not be dealt with here
in any detail. To
return, then, to the facts.
Facts
[12] The
Commission was entrusted by the President with the task of
establishing whether the existing traditional leadership structures

and positions were in accordance with customary laws and customs. The
Commission embarked on an extensive investigation, in two
phases: the
first dealing with the structures, the second with individual or
incumbent disputes. Of relevance to this matter is
that it decided,
in relation to the latter issue, that the fourth respondent was the
rightful king of the amaMpondo aseQaukeni,
not the incumbent, the
applicant.
[13] The
Commission took this decision on 21 January 2010. Its term of office
came to an end on 31 January 2010. It was only some
time later, that
the President made the decision public in a government notice.
18
[14] Even
before the notice was issued the applicant sought to set aside the
Commission’s decision in the North Gauteng High
Court, Pretoria
(High Court). The application was ultimately unsuccessful. Attempts
for leave to appeal to the Supreme Court of
Appeal also failed. The
applicant now seeks leave to appeal against the High Court judgment
in this Court.
Leave
to appeal
[15] From
the discussion of the constitutional and legal framework it is
apparent that the institution of traditional leadership
and the
determination of who should hold positions of traditional leadership
have important constitutional dimensions. Resolution
of this
festering dispute troubling the amaMpondo needs to be
constitutionally clarified. It is in the interests of justice to
do
so. Leave to appeal must be granted.
Issues
on appeal
[16] The
applicant attacked the High Court’s finding on procedural and
substantive grounds. Procedurally, he contends that
the Commission
and President erred in not following the prescripts of sections 9 and
10 of the old Act in the applicant’s
removal and that the
President issued the notice of the removal of the applicant and the
recognition of the fourth respondent in
terms of the new Act, which
he was not entitled to do. He also contends that the High Court erred
in not finding that the Commission’s
finding was substantively
wrong in its acceptance that in the customary law and customs of
amaMpondo the right-hand house never
succeeds and that amaMpondo
practised a system in terms of which an issue born of
iqadi
19
at the level of kingship takes precedence over the right-hand house.
[17] Only
the first, second, third and fifth respondents (respondents) actively
took part in the proceedings in this Court. They
accepted that the
old Act applied, but contended that the President’s notice,
although issued in terms of the new Act, was
substantively compatible
with the old Act and should be treated accordingly. They disputed
that the President had to follow the
sections 9 and 10 route, but
contended that the Commission in any event substantively complied
with the sections’ consultation
and participation requirements
in its determination of the dispute.
[18] The
Centre for Law and Society (Centre) was admitted as a friend of the
court (
amicus curiae
). Its submissions were restricted to the
approach that the Commission and the President should have adopted in
the process of appointing
a king under customary law. It contended
that this entailed a recognition of this Court’s jurisprudence
emphasising the ‘living’
aspect of customary law; that
historical ‘rules’ or ‘principles’ of
customary law were often after-the-fact
rationalisations of what was,
in its ‘living’ aspect, pragmatic decisions based on what
best served the community;
and that this approach was not apparent in
the President’s and the Commission’s approach.
[19] The
issues to be resolved are the following:
(a) Which
Act applies: the old or the new?
(b) If the
old Act applies—
What
effect does this have on the notice issued under the new Act?
Did
the Commission and President need to follow the provisions of
sections 9 and 10 of the old Act?
If
so, was this substantially done?
(c) Did
the Commission substantively err in its approach and finding?
Old or
new Act?
[20] The
respondents conceded that the provisions of the old Act applied to
the Commission’s decision. This concession was
properly and
correctly made. The ordinary rule of our law is that statutes operate
only prospectively.
20
A distinction was often made between substance and procedure which
then allowed rules that affected only procedural matters to
operate
retrospectively. In
Unitrans
21
the Supreme Court of Appeal refined this to a distinction between
cases where the amending procedures come into effect before the
old
procedures had been initiated and situations where the amendments
only come into effect after the old procedures had been initiated.
22
In the latter case, unless a contrary intention is clear from the
amendment, the old procedure remains intact.
23
[21] In
the present case the Commission investigated and made its decision on
21 January 2010, before the new Act came into
operation.
24
The Commission’s procedures were thus initiated and
substantially completed under the old Act. The procedures under the
old Act thus remained in place to be followed in respect of the final
stage of the procedure, that is, the President’s notice.
President’s
notice under the new Act
[22] It is
clear from the notice above
25
that the President purported to give effect to the Commission’s
decision under the provisions of the new Act.
[23] The
provisions of the new Act in relation to the proceedings of the
Commission are different from the provisions of the old
Act. It is
not necessary to set out and analyse the differences in detail.
Suffice it to point out that under the old Act the Commission
was
authorised to make “decisions” in respect of disputes
referred to it,
26
but under the new Act it could only make recommendations.
27
The procedure for dealing with the Commission’s recommendations
under the new Act
28
also differs materially from the process of implementation of the
Commission’s decisions under the old Act.
29
[24] The
implementation of the Commission’s decisions under the old Act
could thus not be done under the provisions of the
new Act. In
argument it was suggested that reference to the provisions of the new
Act in the notice was a mistake. The problem
with this, however, is
that nowhere in the papers does the President say that it was a
mistake.
[25] On
the contrary, a perusal of the notice indicates that the President
elected to invoke the new Act. The notice is titled:
“Recognition
of Kingships and Kings in the Republic of South Africa”. The
first part of it reads:
“
In
terms of section 28(8) read with section 2A of the Traditional
Leadership and Governance Framework Act, 2003 (Act No 41 of 2003)

(the Act), I Jacob Gedleyihlekisa Zuma, President of the Republic of
South Africa, hereby recognize the following Kingships and
Kings”.
[26] After
listing the recognised Kingships and the incumbent Kings, the notice
further states: “In terms of section 2A of
the Act, I hereby
recognise the following kingship” and then refers to the
VhaVenda Kingship. The notice then continues to
state:
“
In
terms of section 28(9) of the Act, I further hereby recogni[s]e the
following deemed kingships and kings, which recognition will
lapse on
the death of the incumbent king or as provided in terms of section
28(9)(c) of the Act”.
This demonstrates that the President did not choose to use the old
Act because it did not have a section 28(8) or (9). Neither
did it
have a section 2A.
[27]
Because of the material differences between the old Act and the new
Act, some of which have been highlighted, it cannot be
said that a
notice issued under the new Act can be taken to have been issued
under the old Act. In any event such an argument would
be
inconsistent with the decision of this Court
in
Harris
.
30
[28] The
notice must be set aside. The President purported to exercise powers
not conferred on him by the provisions of the old
Act.
[29] This
finding makes it unnecessary to deal with any of the other issues.
New
evidence
[30] At a
late stage, after the oral hearing, the respondent applied to present
new evidence relating to the date when the Commission
informed the
President of its decision and references to passages in the record
which allegedly showed the extent of consultation
the Commission had
before making its decision. The application to lead further evidence
is dismissed because it was late and the
evidence is in any event
immaterial to the outcome of the matter.
Order
[31] The
following order is made:
1. Leave to appeal is granted.
2. The application to lead further evidence is refused.
3. The appeal is upheld.
4. The order of the North Gauteng High Court, Pretoria, is set aside.
5. The notices of the President (Presidential Minute 407 and
Government Gazette
No. 33732) dated 3 November 2010 and 5
November 2010, respectively, are set aside insofar as they relate to
the applicant, Justice
Mpondombini Sigcau and the fourth respondent,
Zanozuko Tyelovuyo Sigcau.
6. The President of the Republic of South Africa
is ordered to pay the applicant’s costs in the North Gauteng
High Court,
Pretoria and the Supreme Court of Appeal, and in this
Court, including the costs of two counsel, where applicable.
For
the Applicant: Advocate PM Mtshaulana SC and Advocate PG Seleka
instructed by Webber Wentzel.
For
the First to Third and Fifth Respondents: Advocate N Arendse SC,
Advocate D Borgström and Advocate T Lupuwana instructed
by
Bhadrish Daya Attorneys.
For
the Amicus Curiae: Advocate T Ngcukaitobi instructed by Legal
Resources Centre.
1
Kepe
and Ntsebeza (eds)
Rural Resistance in South Africa: The Mpondo
Revolts after Fifty Years
(Brill, UCT Press, Cape Town 2011) at
116.
2
Pieterse
Traditionalists, traitors and sell outs: the roles and motives of
‘amaqaba’, ‘abangcatshi’ and ‘abathengisi’

in the Pondoland Revolt of 1960 to 1961
(unpublished Master’s
thesis, University of Pretoria, 2007) at 34-5.
3
Mbeki
South Africa: The Peasants’ Revolt
(Penguin Books,
Harmondsworth 1964) at 116. See also Pieterse above n 2 at 52ff.
4
Mbeki
above n 3 at 118.
5
18
of 1927.
6
41
of 2003.
7
23
of 2009.
8
Section
2 of the old Act.
9
Id
sections 3 and 7.
10
Id
sections 4 and 5.
11
Id
section 8.
12
Although
section 8(a) of the old Act speaks of “Kingship” only,
the further provisions envision the recognition of
both kings and
queens.
13
Sections
9 and 10 of the old Act provide:
“
Recognition of kings and
queens
9 (1) Whenever the position of a king or a queen is to
be filled, 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
(1)(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 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; and
(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, taking into account—
(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 custom 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.
(2) The recognition of a person as a king or a queen in
terms of subsection (1)(b) must be done by way of—
(a) a notice in the
Gazette
recognising the
person identified as king or queen; and
(b) the issuing of a certificate of recognition to the
identified person.
(3) Where there is evidence or an allegation that the
identification of a person referred to in subsection (1) was not
done in
accordance with customary law, customs or processes, the
President—
(a) may refer the matter to the National House of
Traditional Leaders for its recommendation; or
(b) may refuse to issue a certificate of recognition;
and
(c) must refer the matter back to the royal family for
reconsideration and resolution where the certificate of recognition
has
been refused.
(4) Where the matter which has been referred back to
the royal family for reconsideration and resolution in terms of
subsection
(3) has been reconsidered and resolved, the President
must recognise the person identified by the royal family if the
President
is satisfied that the reconsideration and resolution by
the royal family has been done in accordance with customary law.
(5) (a) The President may, by notice in the
Gazette
,
make regulations concerning—
(i) the traditional or ceremonial role of a king or
queen;
(ii) the responsibilities of a king or queen in respect
of nation building; and
(iii) other functions or roles of a king or queen.
(b) Regulations made in terms of paragraph (a) must be
tabled in Parliament after their publication in the
Gazette
.
Removal of kings or queens
10 (1) A king or queen may be removed from office on
the grounds of—
(a) conviction of an offence with a sentence of
imprisonment for more than 12 months without an option of a fine;
(b) physical incapacity or mental infirmity which,
based on acceptable medical evidence, makes it impossible for the
king or queen
to function as such;
(c) wrongful appointment or recognition; or
(d) a transgression of a customary rule or principle
that warrants removal.
(2) Whenever any of the grounds referred to in
subsection (1)(a), (b) and (d) come to the attention of the royal
family and the
royal family decides to remove a king or queen, the
royal family must, within a reasonable time and through the relevant
customary
structure—
(a) inform the President, the Premier of the province
concerned and the Minister, of the particulars of the king or queen
to be
removed from office;
(b) furnish reasons for such removal; and
(c) give written confirmation to the President that the
Premier of the province concerned and the Minister have been
informed
accordingly.
(3) Where it has been decided to remove a king or queen
in terms of subsection (2), the President must—
(a) withdraw the certificate of recognition with effect
from the date of removal;
(b) publish a notice with particulars of the removed
king or queen in the
Gazette
; and
(c) inform the royal family concerned, and the removed
king or queen of such removal.
(4) Where a king or queen is removed
from office, a successor in line with customs may assume the
position, role and responsibilities,
subject to
section
9
.”
14
For
those not resolved internally within a traditional community or
customary institution: see section 21(1)(a) and (2) of
the old
Act.
15
The
Commission was established under section 22 of the old Act.
16
Section
25(2)(a)(i) of the old Act.
17
Id
section 25(2)(a)(ii).
18
Government
Gazette,
33732 5 November 2010.
19
Meaning
the left-hand house in isiXhosa.
20
See
Veldman v Director of Public Prosecutions, (Witwatersrand Local
Division)
[2005] ZACC 22
;
2007 (3) SA 210
(CC);
2007 (9) BCLR
929
(CC) at paras 48-53 and 68.
21
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission and Others; Transnet Ltd (Autonet
Division) v
Chairman, National Transport Commission, and Others
[1999] ZASCA
40
;
1999 (4) SA 1
(SCA) (
Unitrans
).
22
Id
at para 17.
23
Id
at para 19.
24
It
came into operation on 25 January 2010.
25
See
above n 18.
26
See
[10] above.
27
Section
25(2)(a) of the new Act provides that “[t]he Commission has
authority to investigate ‘
and make recommendations on
.
. .’ various matters.”
28
Section
26 of the new Act provides:
“
Recommendations of the
Commission
(1) A recommendation of the Commission is taken with
the support of at least two thirds of the members of the Commission.
(2) A recommendation of the Commission must, within two
weeks of the recommendation having been made, be conveyed to—
(a) the President and the Minister where the position
of a king or queen is affected by such a recommendation; and
(b) the relevant provincial government and any other
relevant functionary to which the recommendation of the Commission
applies
in accordance with applicable provincial legislation in so
far as the consideration of the recommendation does not relate to

the recognition or removal of a king or queen in terms of section 9,
9A or 10.
(3) The President or the other relevant functionary to
whom the recommendations have been conveyed in terms of subsection
(2)
must, within a period of 60 days make a decision on the
recommendation.
(4) If the President or the relevant functionary takes
a decision that differs with the recommendation conveyed in terms of
subsection
(2), the President or the relevant functionary as the
case may be must provide written reasons for such decision.
(5) (a) The Premiers must, on an annual basis and when
requested by the Minister, provide the President and the Minister
with
a report on the implementation of their decisions on the
recommendations of the Commission.
(b) A copy of the report referred to in paragraph (a)
must be submitted to the relevant provincial house for noting.”
29
See
[10] above.
30
Minister
of Education v Harris
[2001] ZACC 25
;
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC) at paras 17-8.