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Nxumalo v President of the Republic of South Africa and Others (CCT162/13) [2014] ZACC 27; 2014 (12) BCLR 1457 (CC) (2 October 2014)

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Constitutional Law
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Brief Summary

Constitutional Law — Traditional Leadership — Review of Presidential Decision — Applicant sought restoration of amaShangana kingship and recognition as king after Commission dismissed his claim based on historical disintegration of the kingship prior to 1927 — High Court dismissed review application of both the Commission’s and President’s decisions — Constitutional Court upheld appeal against the President’s decision, finding it was made under the incorrect legislative framework, thus setting aside the President's notice — Appeal against the Commission’s decision dismissed, maintaining its validity.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an application for leave to appeal to the Constitutional Court arising from review proceedings relating to decisions made under the statutory scheme regulating traditional leadership disputes and claims, specifically claims to kingship and the restoration or recognition of a traditional kingdom.


The applicant, Mr Mpisane Eric Nxumalo, sought recognition as the king of the traditional community of amaShangana and the restoration of what he alleged to be the kingship of that community. The respondents were the President of the Republic of South Africa (first respondent), the Chairperson of the Commission on Traditional Leadership Disputes and Claims (second respondent), the Minister of Cooperative Governance and Traditional Affairs (third respondent), the National House of Traditional Leaders (fourth respondent), the Limpopo House of Traditional Leaders (fifth respondent), and the Premier of Limpopo Province (sixth respondent).


The litigation commenced in the North Gauteng High Court, Pretoria, where the applicant sought to have both the Commission’s decision (dismissing his claim) and the President’s subsequent decision/notice (communicating acceptance of the Commission’s report under the post-amendment legislative framework) reviewed and set aside. The High Court dismissed the application. Leave to appeal was refused by the High Court. A petition to the Supreme Court of Appeal for leave to appeal was lodged out of time, accompanied by a condonation application, which was dismissed on the basis that there were no reasonable prospects of success.


The applicant then approached the Constitutional Court for leave to appeal against the High Court’s order. A central feature of the proceedings in the Constitutional Court was whether the Court’s prior decision in Sigcau v President of the Republic of South Africa and Others governed the lawfulness of the President’s conduct in the present matter, given the legislative changes affecting the Commission and the President’s role.


2. Material Facts


The undisputed factual background accepted by the Court was that the applicant lodged a claim with the Commission for the restoration of the amaShangana kingship and for his recognition as king. The Commission investigated the claim, including by holding public hearings at which the applicant and members of the community testified. The Commission’s investigation considered historical material concerning the formation of the amaShangana kingship around 1828, its later expansion, and its ultimate disintegration toward the end of the nineteenth century, with subjects dispersing and settling in various parts of Southern Africa, including areas within South Africa (Bushbuckridge) as well as Zimbabwe and Mozambique.


A key chronological fact for the statutory scheme was the Commission’s completion of its report on 21 January 2010. The report dismissed the applicant’s claim substantially on the basis that the amaShangana kingship had been destroyed or had disintegrated around 1894 or 1897, i.e. before 1 September 1927, and that the applicant had not shown good cause for restoration. The Commission further found that the kingship had never been restored and that the applicant could not have inherited the position because the kingship had been “long lost”.


There was a factual dispute about when the report was delivered to the President. The applicant alleged delivery occurred on 9 February 2010, after the Commission had ceased to exist. The acting chairperson of the old Commission stated that the report was delivered on 21 January 2010. Applying the Plascon-Evans approach to factual disputes on motion, the Court accepted 21 January 2010 as the operative date for purposes of the matter.


The President later publicly communicated acceptance of the Commission’s report (in July 2010). By Presidential Minute 407 of 3 November 2010, the President recognised certain kingships, but did not recognise the amaShangana kingship.


A further material statutory fact was that the original statutory framework (the Traditional Leadership and Governance Framework Act 41 of 2003) established the Commission with power to investigate and decide disputes and claims, and required the President to implement the Commission’s decisions. The legislation was amended by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009, under which the old Commission ceased to exist with effect from 31 January 2010 and a new Commission was established, with the post-amendment scheme framed in the judgment as vesting decision-making in the President, with the Commission making recommendations.


3. Legal Issues


The central legal questions for determination were whether the President’s decision/notice was lawful given the statutory framework that properly applied to the claim, and whether the Commission’s decision dismissing the applicant’s claim was reviewable on the grounds advanced.


The dispute primarily concerned the application of law to fact and the legality of executive action: whether the President purported to act under a statutory regime that did not confer the relevant power in the circumstances, and what the effect of that misstep was. It also involved a review question combining fact and evaluative judgment, namely whether the Commission’s findings on the existence or disintegration of the amaShangana kingship before the statutory cut-off date were unreasonable or irrational, and whether the High Court was correct to accord deference to a specialist statutory body applying customary law.


A preliminary and determinative legal issue in relation to the President was whether the Constitutional Court’s decision in Sigcau v President of the Republic of South Africa and Others was applicable and binding, given the similarity in timing and statutory context.


4. Court’s Reasoning


The Court began by outlining the statutory design under the Framework Act. Under that scheme, the Commission had authority to investigate and decide disputes and claims concerning, among other matters, kingships, subject to the temporal limitation that claims and disputes were limited to those “dating from 1 September 1927”, while permitting consideration of earlier events where good grounds existed. Once the Commission decided a claim, it had to forward its report to the President, who was then obliged to implement the Commission’s decision, including by issuing notices and certificates where recognition of a king or queen was implicated.


The Court then considered the effect of the legislative amendments and the termination of the old Commission. It treated the question of which statutory regime applied as central to the legality of the President’s conduct.


In addressing applicability of Sigcau, the Court rejected the respondents’ attempts to distinguish that precedent on the basis that, unlike in Sigcau, there was allegedly no extant amaShangana kingdom and thus nothing for the President to implement. The Court treated the proposed distinction as misconceived because the operative principle in Sigcau was not dependent on whether the underlying claim would ultimately succeed on the merits. Instead, the principle concerned the lawfulness of the exercise of public power: where a functionary purports to act under an Act that does not confer the power being exercised, the action is unlawful even if some other statute might have conferred a similar power in different circumstances.


Applying that principle, the Court reasoned that the President in this matter believed he had power to decide the applicant’s claim and purported to do so under the amended legislative scheme (“the new Act”). The Court held that this was a misconstruction because the Framework Act was the applicable statute. Under the Framework Act the President had no power to decide such claims; the Commission had that power, and the President’s obligation was confined to implementation. On that reasoning, the President acted outside his powers by purporting to make a decision under an inapplicable statute. Consistent with Sigcau, the Court held that the President’s notice or decision had to be set aside, and that the High Court had erred in failing to uphold the applicant’s contention that the President should have acted in terms of the Framework Act rather than the amended scheme.


The Court then turned to the Commission’s decision and the High Court’s dismissal of the review against it. The Court addressed the applicant’s two broad criticisms: that the High Court wrongly showed deference to the Commission, and that the Commission (and the High Court) erred in finding that the amaShangana kingship had disintegrated around 1894 or 1897 and thus fell outside the crucial period.


On deference, the Court endorsed the High Court’s approach. It characterised the Commission as a specialist statutory body created to resolve a particular class of disputes affecting a significant portion of society. The Commission was statutorily required to apply customary law and the customs of the relevant community, and its members were required to have relevant expertise. In these circumstances, the Court found no merit in criticism of the High Court for showing deference to the Commission’s specialist role.


On the merits of the Commission’s factual findings, the Court considered whether the Commission’s conclusion that the kingship had crumbled toward the end of the nineteenth century was adequately supported by its report and whether the applicant had shown unreasonableness or irrationality. The applicant relied on a claimed “triumphant return” of Buyisonto to Bushbuckridge around 1922 as indicating that the kingship had been revived around that time, potentially bringing it nearer to the statutory cut-off date. The Court accepted the High Court’s explanation that this did not necessarily mean the kingship was restored; rather, Buyisonto was accorded a status no higher than that of a senior traditional leader at the time. Given the earlier disintegration and the dispersion of the community across multiple territories, the Court held that the applicant failed to show that the Commission’s factual findings were unreasonable or irrational.


Finally, on costs, the Court made an evaluative judgment that although the applicant succeeded in having the President’s decision set aside, that success was of no consequential value because the Commission’s decision—the “real decision” the applicant sought to overturn—remained intact. The Court therefore concluded that the applicant did not achieve substantial success warranting a costs award, and it made no order as to costs.


5. Outcome and Relief


The Constitutional Court granted leave to appeal.


The appeal succeeded in part. The Court upheld the appeal against the High Court’s order concerning the President’s decision/notice and set it aside, replacing it with an order setting aside the first respondent’s decision or notice.


The Court dismissed the appeal against the High Court’s order concerning the Commission’s decision, with the result that the Commission’s dismissal of the applicant’s claim remained intact.


No order as to costs was made.


Cases Cited


Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (SCA).


Mabaso v Law Society of the Northern Provinces [2004] ZACC 8; 2005 (2) SA 117 (CC); 2005 (2) BCLR 129 (CC).


Sigcau v President of the Republic of South Africa and Others [2013] ZACC 18; 2013 (9) BCLR 1091 (CC).


Minister of Education v Harris [2001] ZACC 25; 2001 (4) SA 1297 (CC); 2001 (11) BCLR 1157 (CC).


Legislation Cited


Traditional Leadership and Governance Framework Act 41 of 2003.


Traditional Leadership and Governance Framework Amendment Act 23 of 2009.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Court held that the principle in Sigcau v President of the Republic of South Africa and Others [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) applied. The President acted unlawfully by purporting to exercise power under an inapplicable statutory regime, because under the applicable Traditional Leadership and Governance Framework Act 41 of 2003 the President’s role was to implement the Commission’s decision, not to decide the claim. The President’s decision/notice was therefore set aside.


The Court further held that the High Court was not wrong to show deference to the Commission as a specialist statutory body applying customary law, and that the applicant failed to demonstrate that the Commission’s factual findings and conclusion—namely that the amaShangana kingship had disintegrated before 1 September 1927 and had not been restored—were unreasonable or irrational. The Commission’s decision accordingly remained in place, and the appeal in respect of that part was dismissed.


LEGAL PRINCIPLES


The judgment applied the principle that an exercise of public power is unlawful where a functionary purports to act under a statute that does not confer the power being exercised in the circumstances, even if another statute may confer a similar power in a different context. The legality inquiry focuses on whether the decision-maker acted within the powers conferred by the correctly applicable law.


The judgment affirmed that where legislation establishes a specialist adjudicative body to determine a defined class of disputes—particularly where the body is tasked with applying customary law and community customs and is constituted to have expertise in those matters—a reviewing court may properly accord appropriate deference to that body’s specialist competence, and criticism of such deference will not succeed absent a showing that the approach was unjustified.


The judgment applied the motion-proceedings approach to factual disputes associated with Plascon-Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (SCA) in accepting the version supported by the respondent on a material disputed date relevant to the statutory sequence.


The judgment further applied the principle that partial success that is not of consequential value to the litigant may justify a no-costs order, particularly where the principal substantive relief sought is not obtained.

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[2014] ZACC 27
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Nxumalo v President of the Republic of South Africa and Others (CCT162/13) [2014] ZACC 27; 2014 (12) BCLR 1457 (CC) (2 October 2014)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 162/13
In the matter between:
MPISANE ERIC
NXUMALO
..................................................................................................
Applicant
and
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA
............................................................................................................
First
Respondent
CHAIRPERSON OF THE
COMMISSION ON
TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS
...............................
Second
Respondent
MINISTER OF COOPERATIVE
GOVERNANCE
AND TRADITIONAL
AFFAIRS
...............................................................................
Third
Respondent
NATIONAL HOUSE OF
TRADITIONAL LEADERS
..........................................
Fourth
Respondent
LIMPOPO HOUSE OF
TRADITIONAL LEADERS
...............................................
Fifth Respondent
PREMIER, LIMPOPO
PROVINCE
...........................................................................
Sixth
Respondent
Neutral citation:
Nxumalo v President of the Republic of South Africa and Others
[2014] ZACC 27
Coram:
Mogoeng CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ,
Madlanga J, Nkabinde J, Van der Westhuizen
J and Zondo J
Decided on:
2 October
2014
ORDER
On appeal from the North
Gauteng High Court, Pretoria:
1.
Leave to appeal is granted.
2.
The appeal against the order of the High Court concerning the
President’s decision is upheld and that order is set aside
and
replaced with the following order:
“
The
first respondent’s decision or notice is set aside.”
3.
The appeal against the order of the High Court concerning the
decision of the Commission on Traditional Leadership Disputes and

Claims is dismissed.
4.
There is no order as to costs.
JUDGMENT
ZONDO J (Mogoeng CJ, Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ,
Madlanga J, and Van der Westhuizen
J concurring):
Introduction
[1]
The
Traditional Leadership and Governance Framework Act
[1]
(Framework Act) established the Commission on Traditional Leadership
Disputes and Claims (Commission).  The Commission had
power,
either upon request or of its own accord, to investigate and decide
disputes or claims concerning, among others, kingships
in accordance
with customary law and customs.
[2]
[2]
The
disputes or claims that the Commission could investigate and decide
were limited to those “dating from 1 September 1927”.
[3]
However, the Commission had authority to investigate, “where
good grounds exist, any other matters relevant to the
matters listed
in section [25(2)(a)(i)-(vi)], including the consideration of events
that may have arisen before 1 September 1927.”
[4]
[3]
Once
the Commission had made its decision concerning a claim or dispute,
it was required to forward its report to the President
who was then
obliged to implement its decision.
[5]
Where, for example, the Commission’s decision was that a
certain kingship should be restored or recognised and a certain

person was entitled to be the king, the President would give effect
to those decisions by issuing the necessary certificates.
[6]
Background
[4]
The applicant lodged a claim with the Commission for the restoration
of the kingship of the traditional community of amaShangana
and for
him to be recognised as its king.  The Commission conducted an
investigation into this claim.  The investigation
included
public hearings at which the applicant and members of amaShangana
community testified.  The Commission also heard
evidence of how
the kingship of amaShangana had been formed around 1828, how it had
grown into what was called an “empire”
and how it later
disintegrated around 1894 or 1897.  Its disintegration or
destruction entailed the movement of its subjects
to different parts
of Southern Africa with the result that some settled in Bushbuckridge
(in South Africa) and others in Zimbabwe
and Mozambique.
[5]
The
Framework Act was amended by way of the Traditional Leadership and
Governance Framework Amendment Act
[7]
(Amendment Act).  In terms of the Amendment Act the Commission
ceased to exist with effect from 31 January 2010.  A new

Commission was established by the Amendment Act.  The Framework
Act was amended with effect from 25 January 2010.  In
this
judgment any reference to the new Act is a reference to the
Traditional Leadership and Governance Framework Act as amended
by the
Traditional Leadership and Governance Framework Amendment Act.
[6]
The Commission completed its report on the applicant’s claim on
21 January 2010.  It in effect dismissed the applicant’s

claim on, mainly, the basis that the kingdom or kingship of
amaShangana had been destroyed around 1894 or 1897, before 1
September
1927 and the applicant had not shown good cause for the
restoration of the kingdom.  The Commission found that the
kingship
of amaShangana was never restored after it had disintegrated
around 1895.  It further decided that the applicant “could

not have inherited the position of kingship from his predecessors,
Buyisonto and Mafemani Heavyman Nxumalo, as the kingship was
long
lost.”
[7]
The
report was delivered to the President.  According to the
applicant, this was on 9 February 2010 after the Commission had

ceased to exist.  However, according to Professor M A Moleleki,
who was the acting chairperson of the old Commission at the
time that
it ceased to exist, the old Commission delivered the report to the
President on 21 January 2010.  It seems to me
that, in the light
of the
Plascon-Evans
rule,
[8]
we must accept the date of 21 January 2010 as the Commission was a
respondent in the High Court.
[8]
In July 2010 the President publicly communicated his acceptance of
the Commission’s report.  By way of Presidential
Minute
407 of 3 November 2010, the President recognised certain kingships
but the kingship of amaShangana was not one of them.
Litigation
history
[9]
The applicant brought an application in the North Gauteng High Court
to have the President’s decision as well as the Commission’s

decision reviewed and set aside.  Tuchten J dismissed the
application.  The applicant unsuccessfully applied to the
High Court for leave to appeal.  He then petitioned the
Supreme Court of Appeal for leave to appeal.  His petition
was
lodged out of time.  Accordingly, he lodged an application for
condonation.  The Supreme Court of Appeal dismissed
the
application for condonation on the basis that there were no
reasonable prospects of success for an appeal.
In
this Court
[10]
After
his set back in the Supreme Court of Appeal, the applicant brought an
application for leave to appeal to this Court.  In
effect he
sought to appeal against the judgment and order of the High Court.
[9]
Directions
were issued for the parties to deliver written submissions on whether
our decision in
Sigcau
[10]
was applicable to this case.  The parties delivered their
written submissions.  It is, therefore, necessary that we must

first decide whether
Sigcau
is
applicable because, if it is, we are bound by it and may not depart
from it unless we think it is clearly wrong.
[11]
The applicant submitted that
Sigcau
is applicable whereas the
first, second and third respondents submitted that it is not.  Under
the Framework Act the Commission
was required to make a decision on a
claim or dispute and the President was required to implement that
decision.  Under the
new Act the Commission’s power is to
make a recommendation to the President and the power to make a
decision on the claim
or dispute vests in the President.
[12]
The first, second and third respondents’ contention that
Sigcau
does not apply in this case is based on the submission that in
Sigcau
there was a kingdom for which a king needed to be recognised whereas
in this case there is no kingdom and, therefore, no king to

recognise.  They also submitted that in
Sigcau
the
President’s notice was set aside because there was a decision
to implement, being the recognition of a king, whereas
in the present
case there is nothing for the President to implement since, without a
kingdom, there can be no king to recognise.
[13]
In
Sigcau
’s case the applicant had lodged a claim with
the same Commission that dealt with the applicant’s claim in
this case.
Mr Sigcau claimed to be the person entitled to be
the king of amaMpondo aseQaukeni just as the applicant in this matter
claims
to be entitled to be the king of amaShangana.  Both in
Sigcau
and in this case the Commission took its decision on 21
January 2010.  The Commission’s term of office ended on 31
January
2010.  In
Sigcau
the President issued notices
later in the year purporting to implement the decision of the
Commission under the new Act.
In the present case the President
did the same.
[14]
In
my view the bases upon which the respondents attempt to distinguish
the present case from
Sigcau
are
without merit.  The principle upon which
Sigcau
is
based is that, if a functionary purports to exercise under one Act a
power that that Act does not confer upon him or her, that
exercise of
power is unlawful even if there is another Act that confers such
power on the functionary.
[11]
Here the President believed that he had power to decide the
applicant’s claim and he purported to do so in terms of
the new
Act.  In this regard he misconstrued the position.  The new
Act was not applicable.  The Framework Act was
applicable.
Under the Framework Act the President had no power to decide
claims such as the applicant’s claim.  It
was the
Commission that had the power.  The President’s obligation
under the Framework Act was to implement the decision
of the
Commission.  In the present case he did not do so but sought to
make his own decision under the new Act.
[15]
This Court held in
Sigcau
that the President should have acted
in terms of the Framework Act and not the new Act.  That meant
that the President had
acted outside his powers.  The notice
containing his decision was set aside.  We also set aside the
decision of the High
Court dismissing the review application that had
been brought by Mr Sigcau in respect of both the decision of the
Commission as
well as the President’s notices.
[16]
In
Sigcau
the President’s notices were set aside on the
basis that he had acted under a wrong Act.  There is no reason
why this
matter should not be decided on the same principle.  It
is, therefore, proper that we should set aside the President’s

notice in this case as well.  It is in the interests of justice
to grant the applicant leave to appeal against the High Court’s

decision concerning the President’s notice.  An order will
be made setting aside that decision.  The reason for
setting
aside that part of the High Court’s order is that the High
Court erred in not upholding the applicant’s contention
that
the President should have acted in terms of the Framework Act as
opposed to the new Act.
[17]
What should this Court do about the Commission’s decision?  In
his application in the High Court the applicant also
sought to have
the Commission’s decision reviewed and set aside.  Before
us he also seeks leave to appeal against that
part of the decision of
the High Court that related to the Commission’s decision.  In
Sigcau
, where the applicant had sought to have not only the
President’s notice set aside but also the Commission’s
decision,
we did not set aside the Commission’s decision.  The
order of the High Court dismissing the applicant’s review

application was set aside.
[18]
It seems to me that the result was not only that in
Sigcau
the
Commission’s decision still stood but also that the applicant’s
review application in respect of the Commission’s
decision
remained undecided and, therefore, pending before the High Court.
However, during oral argument in
Sigcau
, counsel for the
applicant informed us that the applicant would be content with an
order merely setting aside the President’s
notices.  The
reasons we gave related to the President’s decision only.
Our judgment gave no reasons for setting
aside the High Court’s
order in so far as it dismissed the applicant’s application in
Sigcau
to have the Commission’s decision reviewed and
set aside.
[19]
What should this Court do with the application for leave to appeal
against the High Court’s order dismissing the applicant’s

application to have the decision of the Commission reviewed and set
aside?  It appears to me that we should deal with it.

Since leave to appeal against the High Court’s order concerning
the President’s decision is to be granted, leave to
appeal
against the High Court’s decision concerning the Commission’s
decision is also to be granted.  It is in
the interests of
justice that the matters be dealt with in this way.
[20]
Broadly speaking, there are two bases upon which the applicant
attacks the judgment of the High Court concerning the Commission’s

dismissal of his claim.  The one is that the High Court was
wrong to show deference to the decision of the Commission.
The
other is that the High Court should have found that the Commission
had erred in its conclusion that the kingdom of amaShangana
had
disintegrated or had been destroyed around 1894 or 1897 and,
certainly, long before the date of 1 September 1927.
[21]
There
is no merit in the applicant’s criticism of the High Court’s
approach in showing deference to the Commission.
The Commission
was a specialist body established by an Act of Parliament to deal
with a special category of disputes affecting
a large section of
society.
[12]
It was
required to apply customary law in adjudicating those disputes.
[13]
Members of the Commission were required to have expertise in
traditions and customs.
[14]
The High Court cannot be criticised for its approach.
[22]
A reading of the Commission’s report seems to support
sufficiently its finding that the kingship of amaShangana crumbled

around the end of the 19th century.  The applicant’s
reliance upon the “triumphant return” of Buyisonto
to
Bushbuckridge in or about 1922 does not necessarily mean that the
kingship of amaShangana rose from the ashes then – just
in time
for the crucial date of 1 September 1927.  The High Court
explained that Buyisonto was accorded a status no higher
than that of
a senior traditional leader of amaShangana at that time.
[23]
There is no justification for criticising this reasoning by the High
Court.  The disintegration of the kingship of amaShangana
in the
decades before 1922 had seen some settling in Bushbuckridge (South
Africa), others in Zimbabwe and yet others in Mozambique.
In
these circumstances, the applicant has failed to show that the
Commission’s factual findings were unreasonable or irrational.
[24]
In the light of all the above, the applicant’s appeal is partly
successful and partly unsuccessful.  It is successful
in regard
to the High Court’s order concerning the President’s
decision and unsuccessful in regard to the High Court’s
order
relating to the Commission’s decision.  In regard to the
order concerning the President’s decision, the
appeal must be
upheld.  The appeal against the High Court’s order
concerning the Commission’s decision is dismissed.
[25]
It seems to me that, although the applicant has been partly
successful, that success is of no consequential value to him.

The real decision that he wanted to have overturned, namely, that of
the Commission, remains intact.  I do not think that
he can be
said to have achieved substantial success.  It is appropriate to
make no order as to costs.
[26]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal against the order of the High Court concerning the
President’s decision is upheld and that order is set aside
and
replaced with the following order:
“
The
first respondent’s decision or notice is set aside.”
3.
The appeal against the order of the High Court concerning the
decision of the Commission on Traditional Leadership Disputes and

Claims is dismissed.
4.
There is no order as to costs.
For
the Applicant:
D B Ntsebeza SC and G Shakoane
instructed by Knowles Husain Lyndsay Inc.
For the First, Second and
Third Respondents:
N Arendse SC and D Borgström
instructed by Bhadrish Daya Attorneys.
[1]
41 of 2003.
[2]
Section 25(2)(a)(i)-(vi) reads:
“
The Commission has
authority to investigate, either on request or of its own accord—
(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;
(ii) a traditional leadership
position where the title or right of the incumbent is contested;
(iii) claims by communities
to be recognised as traditional communities;
(iv) the legitimacy of the
establishment or disestablishment of ‘tribes’;
(v) disputes resulting from
the determination of traditional authority boundaries and the
merging or division of ‘tribes’;
and
(vi) where good grounds
exist, any other matters relevant to the matters listed in this
paragraph, including the consideration
of events that may have
arisen before 1 September 1927.”
Section 25(3)(a) reads:
“
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.”
[3]
Section 25(4) reads:
“
The Commission has
authority to investigate all traditional leadership claims and
disputes dating from 1 September 1927, subject
to subsection
2(a)(vi).”
[4]
Section 25(2)(a)(vi) reads:
“
The Commission has
authority to investigate, either on request or of its own accord
where good grounds exist, any other matters
relevant to the matters
listed in this paragraph, including the consideration of events that
may have arisen before 1 September
1927.”
[5]
Section 26(2)(a) reads:
“
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”.
[6]
Section 9(2) reads:
“
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.”
[7]
23 of 2009.
[8]
Plascon-Evans
Paints Ltd v Van Riebeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984 (3) SA 623
SCA at 634E 635C.
[9]
This is correct in light of the decision of this Court in
Mabaso
v Law Society of the Northern Provinces
[2004]
ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC).
[10]
Sigcau
v President of the Republic of South Africa and Others
[2013]
ZACC 18
;
2013 (9) BCLR 1091
(CC).
[11]
Minister
of Education v Harris
[2001]
ZACC 25
;
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC).
[12]
See section 25(2)(a)(i)-(vi) above n 2.
[13]
Section 21 provides:
“
(1)
(a)
Whenever a dispute concerning customary law or customs arises within
a traditional community or between traditional communities
or other
customary institutions on a matter arising from the implementation
of this Act, members of such a community and traditional
leaders
within the traditional community or customary institution concerned
must seek to resolve the dispute internally and in
accordance with
customs.
(b)
Where a dispute envisaged in paragraph (a) relates to a case that
must be investigated by the Commission in terms of section
25(2),
the dispute must be referred to the Commission, and paragraph (a)
does not apply.
(2)
(a)
A dispute referred to in subsection (1)(a) that cannot be resolved
as provided for in that subsection must be referred to
the relevant
provincial house of traditional leaders, which house must seek to
resolve the dispute in accordance with its internal
rules and
procedures.
(b)
If a provincial house of traditional leaders is unable to resolve a
dispute as provided for in paragraph (a), the dispute
must be
referred to the Premier of the province concerned, who must resolve
the dispute after having consulted—
(i)
the parties to the dispute; and
(ii)
the provincial house of traditional leaders concerned.”
[14]
Section 23(1).

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