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[2014] ZACC 36
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Bapedi Marota Mamone v Commission on Traditional Leadership Disputes and Claims and Others (CCT 67/14) [2014] ZACC 36; 2015 (3) BCLR 268 (CC) (15 December 2014)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 67/14
In
the matter between:
BAPEDI
MAROTA
MAMONE
................................................................................................
Applicant
and
COMMISSION
ON TRADITIONAL LEADERSHIP
DISPUTES
AND
CLAIMS
...........................................................................................
First Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH
AFRICA
....................................
Second
Respondent
MINISTER
OF PROVINCIAL AFFAIRS
AND
LOCAL
GOVERNMENT
..................................................................................
Third Respondent
MOHLALETSI
TRADITIONAL
AUTHORITY
.....................................................
Fourth
Respondent
ACTING
KGOŠIKGOLO
KGAGUDI
KENNETH
SEKHUKHUNE
....................................................................
Fifth
Respondent
Neutral
citation:
Bapedi Marota Mamone v
Commission on Traditional Leadership Disputes and Claims
and Others
[2014]
ZACC 36
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J
and Zondo J
Judgments:
Jafta J (dissenting): [1] to [66]
Khampepe
J (majority): [67] to [111]
Heard
on:
26 August 2014
Decided
on:
15 December 2014
Summary:
Promotion of Administrative Justice Act
3 of 2000
—
section 6(2)(e)(iii)
and
6
(2)(f)(ii)(cc) and
(dd) — failure to consider relevant facts and rationality
review — decisions of specialist bodies
must be treated with
appropriate respect — the Commission’s decision did not
fail to consider relevant facts and was
not irrational
Traditional
Leadership and Governance Framework Act 41 of 2003
—
section
25(3)
— Commission required to establish the relevant customary
law as it was when the events that gave rise to the dispute or claim
occurred and to apply that law
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
North Gauteng High Court, Pretoria):
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
JAFTA
J (Nkabinde J concurring):
Introduction
[1]
This case concerns the application of
customary law and customs of the Bapedi traditional community so as
to determine the rightful
king of that community. The matter
comes before this Court as an application for leave to appeal against
a decision of the
Supreme Court of Appeal in terms of which the
applicant’s appeal was dismissed.
[2]
The applicant is Bapedi Marota Mamone, a
traditional community in Limpopo province. It cites as
respondents the Commission
on Traditional Leadership Disputes and
Claims, President of the Republic of South Africa, Minister of
Provincial Affairs and Local
Government, Mohlaletsi Traditional
Authority and Acting Kgošikgolo Kgagudi Kenneth Sekhukhune.
It is the Commission
only that opposes the application.
[3]
This litigation commenced as a review
application in the North Gauteng High Court, Pretoria (High Court).
The applicant challenged
the Commission’s decision that the
kingship of the Bapedi traditional community resorted under the
lineage of Kgoši
Sekhukhune I. That challenge was
unsuccessful hence the appeal to the Supreme Court of Appeal.
Historical
context
[4]
In
pre-colonial times, the only form of government known to Africans was
traditional leadership headed by a traditional leader known
as
inkosi
by the communities that spoke Nguni languages and
morena,
or
kgosi
or
kgoši
in
Sotho speaking communities. The colonial powers called
them chiefs and those who held a higher office, paramount chiefs,
and
others were referred to as kings.
[1]
[5]
The
Commission traced interference with the traditional government of
Bapedi to the period when the British ruled the area then
known as
the Transvaal from 1877 to 1881. The British passed a law which
declared that the Governor of the Transvaal was
the supreme chief
over all African communities in the Transvaal and magistrates were
appointed as administrators.
[2]
This changed the policy on non-interference in the internal matters
of Africans which was followed by the Zuid Afrikaanse
Republiek
(Transvaal Republic) before the British rule. On conquering the
Republic, the British authorities introduced new
laws, including the
one referred to here.
[6]
The Commission found that during that
period, the British authorities established a Department of Native
Affairs which was responsible
for the affairs of the Africans.
Traditional communities were governed under their own laws and
customs which were administered
by traditional leaders, subject to
the right of appeal to the Governor as the supreme chief.
[7]
When
the Transvaal Republic regained independence from British rule, held
the Commission, it also passed a law that declared its
President as
the supreme chief of Africans with powers of a senior traditional
leader (
Hoofkaptein
).
He could remove traditional leaders from office and replace them with
others of his choice. He could also put in
prison those who
refused to carry out the policies of the Republic. These powers
were used from time to time. In consequence
the customary law
rules of succession were not followed.
[3]
[8]
In
1909, the control of African affairs was vested in the
Governor-General who succeeded the governors of the various
colonies.
[4]
In 1927 the
Native Administration Act was passed.
[5]
In
Western
Cape Provincial Government
,
this Court described this legislation in these words:
“
The
Native Administration Act, 38 of 1927 appointed the Governor-General
(later referred to as the State President) as ‘supreme
chief’
of all Africans. It gave him power to govern Africans by
proclamation. The powers given to him were virtually
absolute.
He could order the removal of an entire African community from one
place to another. The Native Administration
Act became the most
powerful tool in the implementation of forced removals of Africans
from the so-called ‘white areas’
into the areas reserved
for them. These removals resulted in untold suffering.”
[6]
(Footnotes omitted.)
[9]
The de-legitimisation of traditional
leadership continued under the Native Administration Act which was
amended and given a new
title on a number of occasions. The
treatment of traditional leaders under that Act was described by
Professor Bennett in
these terms:
“
Those
[traditional leaders] who opposed the government, no matter what
traditional legitimacy they might have enjoyed could be ousted
from
office or passed over in matters of succession. Hence, although
the Department of Native Affairs was generally prepared
to make
appointments from the ruling families, where necessary it could
depart from the established order of succession by choosing
uncles or
younger brothers or by promoting subordinate headmen. The
outcome was a compliant cadre of ‘traditional’
leaders
who provided the personnel needed to realise an increasingly
unpopular state policy.”
[7]
[10]
The colonial and apartheid laws also had a
negative impact on customary law which was denied space to develop
and evolve within
the changing times. Customary law could not
be applied if it was repugnant to the common law. It was ranked
lower than
the common law and any customary rule that was
inconsistent with the common law was considered to be invalid.
But that is
no longer the position. The Constitution recognises
customary law as a system of law equivalent to the common law.
[11]
Both the common law and customary law
derive their legal force from the Constitution. The validity of
each of them is tested
against the Constitution. This means
that a customary law rule that is inconsistent with the common law
retains its validity
if it is in line with the Constitution.
The days of declaring customary law invalid for being in conflict
with the common
law are over.
[12]
Indeed, this Court in
Alexkor
declared:
“
While
in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law.
Like all law
it depends for its ultimate force and validity on the Constitution.
Its validity must now be determined by reference
not to the common
law but to the Constitution. The Courts are obliged by section
211(3) of the Constitution to apply customary
law when it is
applicable, subject to the Constitution and any legislation that
deals with customary law.”
[8]
Constitutional
context
[13]
The
entire Chapter 12 of the Constitution is devoted to matters
pertaining to traditional leadership and customary law. Section
211 proclaims that the institution of traditional leadership is
recognised.
[9]
This
recognition is extended to the status and the role played by
traditional leadership in our society. It is apparent
from the
language of the section that recognition was given to an institution
which was already in existence, having been established
in terms of
customary law.
[14]
The Constitution also recognises
traditional authorities that apply customary law and permits them to
function subject to it.
Every court is obliged to apply
customary law when it is applicable, subject to the Constitution and
legislation that deals with
customary law. In
Alexkor
it was held:
“
It
is clear, therefore that the Constitution acknowledges the
originality and distinctiveness of indigenous law as an independent
source of norms within the legal system. At the same time the
Constitution, while giving force to indigenous law, makes it
clear
that such law is subject the Constitution and has to be interpreted
in the light of its values. Furthermore, like the
common law,
indigenous law is subject to any legislation, consistent with the
Constitution that specifically deals with it.
In the result,
indigenous law feeds into, nourishes, fuses with it and becomes part
of the amalgam of South African law.”
[10]
Relevant
legislation
[15]
As
the Constitution recognises traditional leadership institutions that
were established in terms of customary law only, Parliament
passed
the Traditional Leadership and Governance Framework Act
[11]
(Framework Act) to regulate traditional leadership. In
passing the Framework Act, Parliament was giving effect to Chapter
12
of the Constitution. One of the objects of the Act was to
“restore the integrity and legitimacy of the institution
of
traditional leadership in line with customary law and practices”.
To that end, the Framework Act established the
Commission on
Traditional Leadership Disputes and Claims, the first respondent in
these proceedings.
[16]
The
President appointed members of the Commission. They were
persons “knowledgeable regarding customs and the institution
of
traditional leadership”.
[12]
The Act required the Commission to “carry out its functions in
a manner that is fair, objective and impartial”.
[13]
[17]
The Commission’s functions were set
out in section 25 of the Framework Act. Owing to its centrality
to the determination
of this matter, it is necessary to quote the
entire section:
“
Functions
of Commission
(1)
The Commission operates nationally and has authority to decide on any
traditional leadership dispute and claim contemplated
in subsection
(2) and arising in any province.
(2)
(a) 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’;
(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.
(b)
A dispute or claim may be lodged by any person and must be
accompanied by information setting out the nature of the dispute
or
claim and any other relevant information.
(c)
The Commission may refuse to consider a dispute or claim on the
ground that—
(i)
the person who lodged the dispute or claim has not provided the
Commission with relevant or sufficient information; or
(ii)
the dispute is to be dealt with in terms of section 21(1)(a) in a
case where section 21(1)(b) does not apply.
(3)
(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 a kingship; and
(ii)
the 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.
(c)
Where the Commission investigates disputes resulting from the
determination of traditional authority boundaries and the merging
or
division of ‘tribes’, the Commission must, before taking
a decision in terms of section 26, consult with the Municipal
Demarcation Board established by section 2 of the Local Government:
Municipal Demarcation Act, 1998 (Act No. 27 of 1998).
(4)
The Commission has authority to investigate all traditional
leadership claims and disputes dating from 1 September 1927, subject
to subsection 2(a)(vi).
(5)
The Commission must complete its mandate within a period of five
years or within such longer period as the President may determine.
(6)
Sections 2, 3, 4, 5 and 6 of the Commission Act, 1947 (Act No. 8 of
1947), apply, with the necessary changes, to the Commission.
[18]
The Commission was authorised to “decide
on any traditional leadership dispute and claim contemplated in
subsection (2)”
arising anywhere in the country. It had
the authority to investigate on request by an affected party or of
its own accord.
Section 25(2) listed matters which could be
investigated and decided by the Commission. These were—
(a)
cases where there was doubt that a kingship,
senior traditional leadership or headmanship was established in
accordance with customary
law and customs;
(b)
instances where the title or right of the incumbent to a traditional
leadership position was contested;
(c)
claims by communities who sought to be recognised as traditional
communities;
(d)
the legitimacy, the establishment or disestablishment of tribes;
(e)
disputes resulting from the determination of traditional authority
boundaries and the merging or division of tribes; and
(f)
any matter relevant to those listed above, including the
consideration of events that may have arisen before 1 September 1927
if there are good grounds for a consideration of those events.
[19]
Notably section 25(3)(a) obliged the
Commission to “consider and apply customary law and the customs
of the relevant traditional
community as they were when the events
occurred that gave rise to the dispute or claim”. This
section delineated the
scope of investigations by the Commission.
When considering a dispute or claim, the Commission was required to
apply customary
law and customs only. The Commission had to
apply the customary law and customs of the relevant traditional
community.
This meant that in this case, the Commission had to
consider and apply Bapedi customary law and customs only.
[20]
Even
then, the Commission was required to apply customary law and customs
“as they were when the events occurred that gave
rise to the
dispute or claim”. This is a clear indication that the
Framework Act was to be applied retroactively to
disputes and claims
that arose before the Act came into force. In fact section
25(4) empowered the Commission to investigate
“all traditional
leadership claims and disputes dating from 1 September 1927, subject
to subsection 2(a)(vi)”.
Subsection 2(a)(vi) authorised
the Commission to consider events that occurred before 1 September
1927 where good grounds existed.
But the consideration of the
events that preceded 1 September 1927 was an exception to the
general power that the Commission
should investigate claims and
disputes which arose from that date onwards. The date marked
the coming into operation of the
Native Administration Act.
[14]
[21]
In operating retrospectively, the Framework
Act sought to remedy many wrongs committed over centuries by the
colonial and apartheid
governments against the institution of
traditional leadership. As mentioned earlier, the Governors and
later the State President
became the “supreme chief” of
all Africans with absolute powers that he could use as he pleased
against Africans.
Many traditional leaders who were opposed to
discriminatory policies of those governments were deposed and
replaced with more pliable
candidates who were appointed contrary to
customary law and customs of the communities over which they were
imposed.
[22]
The Native Administration Act was one of
the most comprehensive and potent tools used to advance apartheid
policies. It was
invoked to spearhead an onslaught on any
traditional leadership which resisted implementation of those
policies. Many traditional
leaders were removed from office and
others were demoted. The result was that a number of
traditional leadership institutions
were established and people who
did not qualify under customary law were appointed as traditional
leaders. These traditional
leaders were willing to implement
the policies of the government that appointed them, even if the
communities they were supposed
to lead rejected those policies.
This destroyed the legitimacy of traditional leadership and the
confidence that many communities
had in the traditional institutions.
[23]
When
democracy was attained in 1994, there were many traditional
leadership institutions created by the apartheid government, contrary
to customs of African people. These institutions continued to
operate under the Constitution, even though it recognised
institutions that were established in terms of customary law only.
It was left to Parliament to pass legislation that abolished
illegitimate traditional leadership institutions. The Framework
Act is this legislation. It has established a Commission
whose
task was to determine institutions that were not genuine and abolish
them. The Commission was obliged to begin its
functions by
investigating the position of paramountcies and “paramount
chiefs” that were in existence when the Framework
Act came into
operation.
[15]
[24]
A
decision of the Commission had to be supported by at least two thirds
of its members.
[16]
The
Commission was obliged to convey its decision to the President for
implementation, within two weeks from the date on
which it was
taken. If the decision affected a king or queen, the President
had to implement it immediately in terms of section
9 or section
10.
[17]
This is the
background against which this matter must be decided. It is now
convenient to set out the facts.
Facts
[25]
Acting of its own accord, the Commission
investigated the position of all the kingships in existence when the
Framework Act came
into force. This investigation included the
kingship of the Bapedi traditional community. The Commission
concluded
that the kingship was established in accordance with
customary law and customs of the Bapedi. A report to this
effect was
submitted to the President in January 2008.
[26]
In the report, the Commission held that the
paramountcy of Bapedi is a kingship. It concluded further that
the kingship “resorts
under the lineage of Sekhukhune”.
Kgoši Sekhukhune I became king in 1861, following the death of
his father,
Kgoši Sekwati I. Kgoši Sekwati had
two sons, Sekhukhune I and Mampuru II. The latter was entitled
in
terms of customary law to become king but Sekhukhune I contested
this. He challenged Mampuru II to a fight by throwing a spear
towards him. Mampuru II declined the challenge and fled from
the Bapedi community.
[27]
Sekhukhune I became king of Bapedi until he
was incarcerated by the British government when it defeated the
government of the Boer
Republic which then ruled the Transvaal.
Mampuru II returned and took over the kingship while Sekhukhune I was
in prison.
The British were later defeated by the Boers who
re-established their Republic. Sekhukhune I was released from
prison.
The re-established government demanded that Mampuru II
should relinquish the kingship and swear allegiance to it. When
he
refused, a Boer commando led by General Joubert was dispatched to
deal with him. Mampuru II fled again and sought refuge under
Chief Marishane. The commando took five hundred head of cattle
that belonged to Mampuru II.
[28]
Subsequently the Ba-Marishane traditional
community was attacked by an army from the Boer Republic, with the
assistance of Sekhukhune
I. Their Chief was taken prisoner but
Mampuru II managed to escape and sought shelter under Chief Nyabela
of AmaNdebele.
In 1882 and with the help of Chief Nyabela,
Mampuru II returned and killed Sekhukhune I. The government of
the Boer Republic
demanded that Chief Nyabela should surrender
Mampuru II so that he could be tried for the killing of Sekhukhune
I. But, Chief
Nyabela declined to hand him over. A
commando attacked the AmaNdebele and a war ensued. Mampuru II
was captured.
He was convicted of murder and sentenced to
death. He was later executed.
[29]
In its investigation, the Commission
identified two rules it considered relevant for determining whether
at present the Bapedi kingship
resorts under the Sekhukhune royal
family or the Mampuru royal family. These families are made up
by the descendants of Sekhukhune
I and Mampuru II, who were the sons
of Sekwati I.
[30]
The Commission established that under the
customary law of Bapedi in 1861, there was a rule of succession in
terms of which a successor
to a king was identified. It found
that in terms of that rule, Mampuru II was entitled to succeed
Sekwati I. However,
on the evidence before the Commission, this
did not happen because Mampuru II fled when he was challenged to a
fight by Sekhukhune
I, who became the king of Bapedi community.
[31]
The Commission determined that kingship of
Bapedi could then also be acquired by violent means. It defined
this as the might
and bloodshed rule. It held that Sekhukhune I
had become king in terms of this rule. It was for this reason
that the
Commission concluded that the kingship of Bapedi “resorts
under the lineage of Sekhukhune”. This decision led
to
the present litigation.
Litigation
history
[32]
Dissatisfied with the Commission’s
decision, the applicant instituted a review application in the High
Court. It challenged
the decision on various grounds,
including:
(a)
The decision that the kingship of Bapedi resorts under the lineage of
Sekhukhune is “flawed as it is neither rationally
connected to
the information before the Commission nor to the reasons given by
it”.
(b)
The conclusion reached by the Commission in paragraph 9.7 of its
report is “not supported by facts and evidence placed
before it
and is inconsistent with the findings as pointed out in paragraph 8
of the same report”.
[33]
The Commission and the Acting Kgošikgolo
Sekhukhune opposed the application. They defended the decision
and asserted
that it was properly made. The Commission disputed
that its decision was not rationally connected to the information
that
was placed before it.
[34]
The High Court rejected, as lacking
substance, the grounds of review advanced by the applicant. As
a result the application
was dismissed with costs.
[35]
The applicant appealed to the Supreme Court
of Appeal. The issues raised in that Court were—
“
(a)
whether the High Court’s finding that there was a succession
battle between Sekhukhune I and Mampuru II, which the former
won, was
correct;
(b)
whether the succession issue should have been determined solely on
the basis that it was not unusual for kingship to be obtained
through
might and bloodshed and not by birth;
(c)
whether the High Court’s findings that the Commission did not
ignore relevant material evidence in its determination and
was
rationally connected to the information at its disposal was correct;
and
(d)
whether the High Court’s approach to the review of the
Commission’s administrative action was correct.”
[18]
[36]
The
Supreme Court of Appeal held that the Commission had correctly found
that “Sekhukhune I legitimately usurped the kingship
as it was
not uncommon to do so through might and bloodshed”.
[19]
With regard to the killing of Sekhukhune I by Mampuru II, the Supreme
Court of Appeal held that “Mampuru II’s
conduct in
clandestinely killing Sekhukhune I and thereafter fleeing was
entirely inconsistent with an intention to conquer and
take over
kingship and was sheer murder for which he was accordingly convicted
by a court of law and executed”.
[20]
[37]
Furthermore,
the Court found that the Commission had properly concluded that the
applicant’s reliance on certain historical
facts was misplaced
as those facts were irrelevant to the issues. Consequently, the
Supreme Court of Appeal held that the
applicant had failed to show
that the Commission ignored relevant evidence and that there was “no
basis on the record to
conclude that the Commission’s decision
was not rationally connected to the information before it, or the
reasons given by
it”.
[21]
The appeal was dismissed with costs.
In
this Court
[38]
The preliminary issue is whether leave to
appeal should be granted. The matter raises a constitutional
issue relating to the
status and role of the Bapedi traditional
leadership and the application of the Framework Act that was passed
to give effect to
section 211 of the Constitution. It is in the
interests of justice to grant leave. A judgment of this Court
on the
interpretation and application of the relevant provisions will
be of benefit regarding disputes that arose before the amendment
of
the statute. Moreover, there are prospects of success.
Issues
[39]
The applicant persisted in the argument
that the Commission had ignored relevant information that was placed
before it and that
the impugned decision was irrational. To
substantiate the argument, the applicant contended:
“
[
W]hile
the High Court and the Supreme Court of Appeal have accepted and in
fact ruled that Sekhukhune I legitimately usurped the
kingship from
Mampuru II, because it was not ‘
unusual at that time for
kingship to be obtained by might and bloodshed
’, both the
High Court and the Supreme Court of Appeal have nonetheless failed to
locate any justification of this critical
finding in the Commission’s
report. No reasons or specific examples of pertinent cases were
provided by the Commission
in its report to substantiate its
statement and to justify its deviation from the normal rules of
customary succession by birth
when it adopted the premise that ‘it
was not unusual at the time for kingship to be obtained by might and
bloodshed’.
Applicant contended before the Supreme Court
of Appeal (and also contends with respect before this Court) that no
historical records
show that the principle of usurpation of kingship
was a custom or tradition for succession among the Bapedi nation.”
(Emphasis in original.)
[40]
In
essence the complaint captured in the statement above is that the
Commission failed to apply the customary law rule of succession
in
reaching its decision. It will be recalled that we are
concerned here with the decision to the effect that the kingship
of
the Bapedi traditional community presently resorts under the lineage
of Kgoši Sekhukhune. It will also be remembered
that in
making this decision, the Commission had to consider events that
occurred before 1 September 1927 which was the
cut-off date
for claims and disputes investigated by the Commission.
[22]
[41]
For a better understanding of the issues
raised, it is necessary to remind ourselves about the requirements of
the empowering provision,
section 25(3) of the Framework Act.
This section stipulated that—
“
[w]hen
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.”
[42]
What this meant was that the Commission was
obliged to consider and apply the Bapedi customary law of succession
and their customs,
as they were when the events that gave rise to the
succession dispute occurred. Since the dispute related to
succession to
kingship after the death of Kgoši Sekhukhune,
the Commission had to apply customary law followed by Bapedi at that
time.
The report compiled by the Commission at the conclusion
of its investigation records that at the relevant time the Bapedi
customary
law of succession permitted only the sons of a timamollo to
succeed a king. This is the customary rule the Commission
identified
and was obliged to apply. The Commission failed to
do that.
[43]
Instead what appears in the conclusion
recorded by the Commission is that the impugned decision was advanced
as one of the reasons
to support the finding that the kingship of the
Bapedi was established in accordance with customary law and customs
of that community.
[44]
On this aspect its report reads:
“
9.1
The official recognition of the institution of
bogoši
bjo bogolo
was in line with customary
law and customs of the traditional community of Bapedi in that:
9.1.1
The status of a traditional leader should be determined by the rank
that he occupies within the traditional community as a
whole.
9.1.2
The rank is determined by well-established customary laws common to
most of the indigenous people of South Africa being the
status of the
mother, male primogeniture and the performance of specific rituals.
9.1.3
In this case the areas of jurisdiction will be those populated by
Bapedi traditional communities and headed by senior traditional
leaders who owe allegiance to
bogoši bjo bogolo
.
9.2
In the course of the history of Bapedi a kingship was established by
Thulare I through subjugating and conquering neighbouring
communities
(1770 1820).
9.3
From the reign of Thulare I the kingship passed from one generation
to the next through custom and sometimes through bloodshed.
9.4
Sekwati I virtually recreated the kingship after the wars of Mfecane.
Sekwati re-established and extended the kingship
of Bapedi
started by Thulare I. After the death of Sekwati I in 1861 the
kingship was claimed by Mampuru II and Sekhukhune
I.
9.5
Sekhukhune I won the succession battle against Mampuru II upon the
death of Sekwati I in 1861 and ascended the throne.
9.6
The paramountcy of Bapedi is a kingship.
9.7
The kingship resorts under the lineage of Sekhukhune.”
[45]
This conclusion lists a number of reasons
underpinning the Commission’s determination that the
establishment of the kingship
of the Bapedi accords with the
requirements of the Constitution and the Framework Act and should be
given recognition. The
impugned decision appears last in that
list, more like a throw-away line made without any consideration and
application of the
relevant customary law.
[46]
The Commission did not direct its attention
to determining the succession question. That is borne out by
further parts of
the report. In paragraph 8.1 of the report,
the Commission listed the issues to be determined as follows:
“
(a)
Whether in the course of the history of Bapedi, a kingship was
established;
(b)
if it was established by whom, how and when;
(c)
whether the kingship has since been passed on from one generation to
another according to the custom of Bapedi;
(d)
whether after the death of Sekwati I the kingship was legitimately
claimed by Sekhukhune I; and
(e)
whether the position of the Bapedi paramountcy was established in
terms of customary law and customs.”
[47]
Succession after the death of Kgoši
Sekhukhune is not part of the issues identified by the Commission
itself. Barring
only one, those issues related to determining
whether the kingship was established in terms of customary law and
customs.
The sole issue that referred to Kgoši
Sekhukhune was whether he had legitimately claimed the kingship after
the death of
his father. That issue had nothing to do with the
question of succession after the death of Kgoši Sekhukhune.
[48]
Consequently, in determining the succession
question, the Commission misconstrued the essence of its power.
It was enjoined
to make the determination after considering and
applying the relevant customary law of succession. The
Commission’s
failure to follow peremptory requirements of the
empowering provision rendered its decision reviewable.
[49]
However,
the difficulty that stands in the way of disposing of the matter on
this ground is the fact that it was not raised as a
ground of review
in the High Court and the Supreme Court of Appeal. It is raised
for the first time in this Court.
As a general rule, all
grounds on which a constitutional challenge is mounted must be
pleaded in the court of first instance.
But, like any general
rule, this rule has exceptions. In special circumstances, a
litigant is permitted to raise an issue
for the first time in this
Court. It is a matter of the Court’s discretion.
[23]
[50]
This discretion may be exercised in favour
of a party raising a review ground for the first time here if the
ground is apparent
from the papers on record and allowing it to be
raised would not prejudice the other parties. The question
whether the Commission
applied the customary law rule of succession,
as contemplated in section 25(3) of the empowering legislation,
is a legal one.
And it must appear from the Commission’s
report that it had acted in the manner prescribed by the empowering
provision when
the Commission exercised its power. That report
forms part of the record. It is apparent from the report that
when
the Commission reached the impugned decision, it did not apply
the Bapedi customary law of succession, notwithstanding that it was
obliged to do so.
[51]
Since the new ground of review raises a
question of law that does not depend on new facts not on record
already, it can hardly be
argued that the Commission would be
prejudiced by its determination. Its report was completed and
submitted to the President
a long time ago. It is not as if the
Commission would, in this litigation, add new facts to the report,
showing that it did
apply the customary law rule in question.
[52]
Moreover, in response to the allegations
made in the statement quoted in [39], the Commission did not dispute
that it failed to
give reasons to justify “its deviation from
the normal rules of customary succession by birth”. Nor
did it object
to the applicant raising this new ground of review for
the first time in this Court.
[53]
In any event the applicant pertinently
raised the following grounds of review in the High Court:
“
(a)
the Commission, in deciding on the question where the lineage in
which the Bapedi kingship resorted, ignored relevant facts
and
evidence placed before it or to which it had access as contemplated
in section 6(2)(e)(iii) of the Promotion of Administrative
Justice
Act, 2000 (PAJA).
(b)
the decision of the Commission regarding the choice of lineage of the
kingship of Bapedi is neither rationally connected to
the information
placed before it nor to the reasons given by it as contemplated in
section 6(2)(f)(ii)(cc) and (dd) of PAJA.”
[54]
But before considering these grounds of
review, which the Commission admits were raised in the High Court, it
is necessary to outline
the importance of the Bapedi customary law of
succession. It is recorded in detail in the Commission’s
report.
The rule entitled only the sons of a timamollo to
succeed a king. It developed from the fact that Bapedi kings,
like other
traditional leaders, contracted polygynous marriages.
It became necessary to formulate a rule in terms of which the king’s
successor was to be determined.
[55]
The result was an extensive rule which
catered for almost every eventuality. In terms of this rule a
king had to marry a timamollo
in order to raise the heir to the
throne. If a king died without marrying one, it became the
responsibility of the royal
family (Bakgoma and Bakgomana) to
identify and marry a timamollo on behalf of the deceased king.
They would also appoint
someone to “raise seed” on behalf
of the deceased king. This is what happened in the case of
Kgoši Malekutu
who was killed by his brother Matsebe for the
throne. Kgoši Malekutu died without having married a
timamollo.
It was only during the reign of Kgoši
Sekwati, who was appointed much later as a regent for the successor
to Kgoši
Malekutu, that the Bakgoma and Bakgomana identified
and married a timamollo to bear the heir to Kgoši Malekutu.
[56]
As a regent, Kgoši Sekwati assumed
the responsibility to raise seed on behalf of Kgoši Malekutu.
The result
was the birth of Mampuru II to whom the title to the
Bapedi kingship belonged. In its report the Commission further
records
that in the Bapedi community, paternity was not an overriding
consideration in determining succession to kingship. Hence
Mampuru II became the heir of Kgoši Malekutu even though he
was not his son but Kgoši Sekwati’s son.
[57]
The
Commission’s report also shows that in the event of a timamollo
being unable to bear children, a surrogate mother was
appointed.
[24]
If a timamollo died without issue, one of her sisters or a close
relative would be married to the king in the same manner
that a
timamollo wife was married.
[25]
This illustrates how extensive the Bapedi customary law of
succession was.
[58]
The importance of this rule was not
confined to determining the heir to the throne only. It also
facilitated participation
of the royal family in choosing and
marrying a timamollo and thereby took part in the process of
determining the future king.
The community was also involved in
that process as the lobolo (dowry) of a timamollo was paid from
contributions made by the community.
Therefore it was not the
acts of the reigning king only which determined who the future king
would be. It was the acts of
a collective, including the royal
family and the community. In that way there was some control by
the royal family and the
community over the issue of succession.
This explains why, on the common cause facts before the Commission, a
timamollo for
Kgoši Malekutu was married only during the reign
of Kgoši Sekwati.
[59]
A timamollo could have been married during
the rule of Kgoši Matsebe but one was not. Similarly
this could have happened
during the kingship of Kgoši Phetedi
who became king upon killing his brother Matsebe. The only
rational explanation
for why this was not done is that the royal
family and the community did not approve the manner in which Kgoši
Matsebe and
Kgoši Phetedi became kings. Both killed the
reigning king in order to ascend to the throne. This also
explains
why Mampuru II was regarded as the heir and rightful
successor to Kgoši Malekutu who was also a son of a
timamollo.
The royal family and the community did not treat the
usurpation of the kingship by Kgoši Matsebe and Kgoši
Phetedi
as having transmitted the kingship of Bapedi from the house
of Kgoši Malekutu to their own houses. If that was the
case, Mampuru II could have been the heir to Kgoši Phetedi.
[60]
It is against this background that the two
grounds of review raised by the applicant in the High Court must be
assessed.
Ignoring
relevant facts
[61]
The source of this ground is section
6(2)(e) of PAJA. It provides that a court has power to review
an administrative action
if relevant considerations were not
considered. Here it is clear that in reaching the impugned
decision, the Commission failed
to take account of the fact that on
the common cause facts before it, the acquisition of kingship through
violence did not translate
into an automatic transmission of power to
the offspring of a king who assumed kingship by violent means.
Had the Commission
taken into account that upon the killing of Kgoši
Malekutu by Kgoši Matsebe, the kingship did not pass to Kgoši
Matsebe’s house so as his descendants could claim it, the
Commission could not have reached the impugned decision.
Its
decision was in conflict with the undisputed facts.
Rationality
[62]
With regard to this ground of review, the
applicants invoked the provisions of section 6(2)(f)(ii)(cc) and (dd)
of PAJA. This
provision empowers courts to review an
administrative action if the action was not rationally connected to
the information before
the administrator or the reasons given for
it. What this means is that the information on which the
decision is based and
the reasons given for such decision must
support and justify the decision taken. If they do not, the
decision must be regarded
as being arbitrary.
[63]
Both
section 33 of the Constitution
[26]
and PAJA prohibit arbitrary administrative actions. As this
Court observed in
Democratic
Alliance
,
[27]
the rationality requirement relates to both the means and the end,
that is the process by which the decision is reached and the
decision
itself. In that case it was stated:
“
The
conclusion that the process must also be rational in that it must be
rationally related to the achievement of the purpose for
which the
power is conferred, is inescapable and an inevitable consequence of
the understanding that rationality review is an evaluation
of the
relationship between means and ends. The means for achieving
the purpose for which the power was conferred must include
everything
that is done to achieve the purpose. Not only the decision
employed to achieve the purpose, but also everything
done in the
process of taking that decision, constitute means towards the
attainment of the purpose for which the power was conferred.”
[28]
[64]
Here I have already demonstrated that the
Commission failed to consider and apply the Bapedi customary law of
succession in deciding
the lineage in which the Bapedi kingship
resorted. The Commission omitted to apply the relevant
customary law despite being
obliged to do so by section 25(3) of the
Framework Act. It follows that the Commission’s decision
was not rationally
connected to the purpose of applying the relevant
customary law when determining a dispute.
[65]
Furthermore, in the light of the undisputed
facts on succession from Kgoši Malekutu to Mampuru II,
the Commission’s
decision was not rationally connected to the
information submitted to it. In the context of those facts
there was no link
between Kgoši Sekhukhune’s ascension
to the throne and the question about lineage which was essentially an
issue of
succession, following the death of Kgoši Sekhukhune.
[66]
It follows that the grounds of review
raised by the applicant in the High Court justify the setting aside
of the Commission’s
decision. For these reasons I would
uphold the appeal with costs.
KHAMPEPE
J (Moseneke DCJ, Cameron J, Froneman J, Leeuw AJ, Madlanga J, Van der
Westhuizen J and Zondo J concurring):
[67]
I have had the benefit of reading the
judgment prepared by my brother, Jafta J (main judgment). I
embrace the main judgment’s
exposition of the facts and agree
that leave to appeal should be granted. I differ, however, from
its reasoning and conclusion.
I find no reason to unsettle the
Commission’s decision. In my view, the appeal should
fail.
Background
[68]
The
Commission on Traditional Leadership Disputes and Claims (Commission)
was established by section 22(1) of the Traditional Leadership
and
Governance Framework Act
[29]
(Framework Act). It was a specially constituted body which had
“authority to decide on any traditional leadership dispute
and
claim”
[30]
contemplated
in section 25(2) of the Framework Act. This included cases
“where there is doubt as to whether a kingship
. . . was
established in accordance with customary law and customs”.
[31]
The Commission could institute investigations on request from
interested parties or of its own accord.
[32]
[69]
The
Commission’s first task was to investigate the position of
paramountcies that were established and recognised in South
Africa
upon commencement of the Framework Act.
[33]
Once the Commission had investigated the position of a paramountcy,
it was required to make a decision and communicate it
to the
President “for immediate implementation”
[34]
by notice in the
Gazette
.
[35]
[70]
In accordance with the Framework Act, the
Commission instituted an investigation into the Bapedi paramountcy of
its own accord in
2005. The issues before it were whether the
Bapedi had a paramountcy and, if so, under whose lineage it
resorted. The
latter question rested principally on whether
Kgoši Sekhukhune I legitimately claimed the kingship after the
death of Kgoši
Sekwati.
[71]
The Commission released its decision and
report on 15 January 2008. It concluded that the Bapedi had an
established paramountcy.
More contentious, though, was the
question of entitlement to the throne. For a start, the report
identified two means through
which kingship might be acquired.
First, the firstborn son of a timamollo wife (the candle wife or
great wife) was the king’s
rightful successor. A
timamollo wife was nominated from among the king’s wives by the
royal advisors and community.
Various ancillary rules applied
in the event that the rightful heir predeceased his father or the
timamollo wife was unable to
bear a son. Second, the Commission
found that kingship might be usurped from another “through
might and bloodshed”
(usurpation rule). The rule
permitted one to forcibly take the kingship from another.
[72]
The report then tracked the succession of
leadership in the Bapedi community from its first leader, Diale, in
the sixteenth century.
Leadership transferred from father to
son for a number of generations until Kgoši Dikotope, the
incumbent king, was killed
by his younger brother, Thulare, who
usurped his kingship. Kgoši Thulare was succeeded by
Kgoši Malekutu, who
was the eldest son of Kgoši
Thulare’s timamollo wife. But before Kgoši
Malekutu could produce an heir,
he was poisoned by his younger
brother, Matsebe, who took the throne for himself. Kgoši
Matsebe ruled until he was
killed and replaced by his brother,
Phetedi.
[73]
Kgoši Phetedi’s reign was
short-lived, however. The Bapedi kingdom was ravaged by King
Mzilikazi’s Matebele
in the early 1800s, and Kgoši
Phetedi was killed in the process. Sekwati, Kgoši
Thulare’s only surviving
son, was nominated as regent for Kgoši
Malekutu, and slowly rebuilt the kingdom. Mampuru II was born
of Kgoši
Sekwati’s nominated timamollo wife, and was
therefore the rightful heir. But, upon Kgoši Sekwati’s
death,
Kgoši Mampuru II was challenged by Kgoši
Sekwati’s eldest son, Sekhukhune I, who also claimed the
throne.
Kgoši Mampuru II fled the kingdom under this
challenge, and Kgoši Sekhukhune I thereafter ruled the Bapedi
for around
20 years. The Commission found that, in taking the
throne by force, Kgoši Sekhukhune I had legitimately usurped
the
Bapedi kingship from Kgoši Mampuru II.
[74]
Kgoši Sekhukhune I’s reign
ended in 1882 when he was ambushed and killed by Kgoši Mampuru
II, who was assisted
by Nyabela, a chief of the Ndebele. Kgoši
Mampuru II, however, immediately fled upon killing
Kgoši Sekhukhune I.
He
ultimately sought refuge at Chief Nyabela’s residence, where he
was captured by the Boer government and executed for Kgoši
Sekhukhune I’s killing. The Commission
thus found that Kgoši
Mampuru II
“did not ascend the throne” and, for that reason,
concluded that Kgoši
Mampuru II
could not have retaken the kingship, which remained with Kgoši
Sekhukhune I’s lineage.
[75]
The applicant is the traditional authority
that represented the descendants of Kgoši Mampuru II during
the Commission’s
investigations. It challenges the
Commission’s decision.
The
applicant’s challenge
[76]
The
applicant’s review application is brought on two bases.
First, the applicant argues that the Commission’s
decision that
the kingship “resort[ed] under the lineage of [Kgoši
Sekhukhune I]” was irrational. The
decision was, the
applicant posits, not rationally connected to the information placed
before the Commission or the reasons it
gave, a ground of review
under section 6(2)(f)(ii)(cc) and (dd) of the Promotion of
Administrative Justice Act
[36]
(PAJA).
In
essence, the ground of review requires that a decision be rationally
justified and supported by the information before the decision maker
and the reasons given by it.
[37]
[77]
Second,
the applicant argues that the Commission ignored relevant facts and
evidence. It argues that this renders the Commission’s
decision reviewable under section 6(2)(e)(iii) of PAJA, which applies
where “relevant considerations were not considered”
by a
decision-maker.
[38]
Standard
of review
[78]
Before
considering the factual basis for the applicant’s contentions,
it is necessary to sound a note of caution. Our
right to just
administrative action
[39]
and
PAJA, the legislation enacted to give effect to that right,
[40]
require rigorous scrutiny of administrative decisions. But
neither asks courts to substitute their opinions for those of
administrative bodies.
It
is not required that a decision of an administrative body be perfect
or, in the court’s estimation, the best decision on
the
facts.
[41]
And this is
particularly so for rationality review under PAJA. Hoexter
notes that—
“
[a]
crucial feature [of rationality review under PAJA] is that it demands
merely a rational connection – not perfect or ideal
rationality. In a different context Davis J has described a
rational connection test of this sort as ‘relatively
deferential’
because it calls for ‘rationality and
justification rather than the substitution of the Court’s
opinion for that of
the tribunal on the basis that it finds the
decision . . . substantively incorrect’.”
[42]
(Footnotes omitted.)
[79]
A
level of deference is necessary – and this is especially the
case where matters fall within the special expertise of a particular
decision-making body. We should, as this Court counselled in
Bato
Star
,
treat the decisions of administrative bodies with “appropriate
respect” and “give due weight to findings of
fact . . .
made by those with special expertise and experience”.
[43]
[80]
This
has resonance here. The Commission is a specialist body
constituted by experts “who are knowledgeable regarding
customs
and the institution of traditional leadership”.
[44]
As this Court held in
Nxumalo
,
it is appropriate to treat its decisions with some deference.
[45]
When considering a claim, the Commission is required by section
25(3)(a) of the Framework Act to—
“
consider
and apply customary law and the customs of the relevant traditional
community as they were when the events occurred that
gave rise to the
dispute or claim.”
Notably,
this provision tasks the Commission not only with applying the
relevant customary law to the case before it, but also with
determining what that law was at the relevant time. This latter
question depends primarily on historical and social facts,
which the
Commission must establish through evidence led before it and its own
investigation.
[81]
In this case that investigation ran over
two years. It covered a wealth of historical material, which
this Court cannot easily
assess. It also included a series of
hearings, in which the applicant participated extensively.
First, the Commission
conducted separate hearings for the Sekhukhune
and Mamone royal families, whose representatives gave testimony under
oath and referred
the Commission to supplementary research material.
After these hearings the Commission conducted its own research, on
the
basis of which it drafted preliminary statements which it put to
both royal families. The statements were about whether Kgoši
Sekhukhune I successfully challenged Kgoši Mampuru II in 1861
and whether, after returning to kill Kgoši Sekhukhune
I, Kgoši
Mampuru II ascended the throne. Both royal families commented
on these in writing. Thereafter they
attended a joint hearing
where their testimony and arguments were again heard. The
Commission’s 40-page report was
released some months later.
[82]
This Court may not neglect its duty to
scrutinise the rationality of the Commission’s decision.
But, in doing so, it
must be cognisant of the Commission’s
special expertise as well as the wealth and complexity of the factual
evidence it considered
in its wide-ranging enquiry. The
fairness of that process, where representations were solicited from
interested parties,
was not challenged.
The
existence of the usurpation rule
[83]
In its papers before this Court, the applicant
sought to challenge the Commission’s customary-law finding that
kingship could
be usurped through
“might and
bloodshed”. It said that the Commission’s report
failed to substantiate this critical finding
and “justify its
deviation from the normal rules of customary succession by birth”.
[84]
This argument, however, faces a fundamental difficulty.
In its founding affidavit in the High Court, the
applicant expressly conceded that the Commission had correctly
established the
usurpation rule. It said:
“
The
Commission has found, correctly so, that it ‘was not unusual
for the kingship to be obtained through might and bloodshed
and
therefore usurpation of kingship by Sekhukhune I was in line with
common practice at that time’.”
The
remainder of its affidavit proceeded on this basis. It assumed
that the rule existed, but argued that the Commission was
wrong not
to apply that rule to Kgoši Mampuru II’s killing of
Kgoši Sekhukhune I. It said Kgoši
Mampuru II’s
act “qualified [him] to assume the kingship through ‘might
and bloodshed’”. That
the applicant’s
founding affidavit repeatedly confirmed the rule’s existence is
unsurprising, for its own claim to
the throne ultimately derived from
Kgoši Thulare’s usurpation by force of the kingship of
his brother, Kgoši
Dikotope.
[85]
In its written submissions in this Court,
the applicant tried to evade the concession in its founding
affidavit. It said that
it had conceded only the factual
existence of the practice of usurpation by force, not its status as a
custom. But that is
not correct. The meaning of the
applicant’s concession, in the scheme of its affidavit, is
clear. Indeed, the
applicant went on to rely expressly on the
usurpation rule to found its own claim to the kingship.
[86]
In
oral argument the applicant wisely
abandoned
its attempt to evade its concession and dispute the establishment of
the usurpation rule. The applicant emphasised
that it did not
question the establishment of the rule, the existence of which was
clearly established by the historical examples
cited by the
Commission’s report.
[46]
This renders it unnecessary for this Court to consider whether the
late challenge should be entertained and, if so, whether
it should be
successful.
Rationality
challenge
[87]
The applicant’s case for rationality
review before this Court is therefore narrow, just as it was in the
High Court and the
Supreme Court of Appeal. It is that the
Commission acted irrationally in applying the usurpation rule to
Kgoši Sekhukhune
I’s ousting of Kgoši Mampuru II,
but not applying it to Kgoši Mampuru II’s later
assassination of
Kgoši Sekhukhune I. The question is,
accordingly, whether there is a rational point of distinction between
Kgoši
Sekhukhune I’s ousting of Kgoši Mampuru II
and the latter’s killing of Kgoši Sekhukhune I two
decades
later.
[88]
In my view, there plainly is. Kgoši
Sekhukhune I challenged Kgoši Mampuru II with force.
The latter
declined to accede to that challenge, and fled. After
that, Kgoši Sekhukhune I took the throne and killed Kgoši
Mampuru II’s followers. He welded together separate
entities in the Bapedi nation, subjugating communities that were
not
paying him allegiance. And he ruled the Bapedi nation for a
period of 20 years.
[89]
Kgoši Mampuru II’s killing of
Kgoši Sekhukhune I was different in a material respect.
Kgoši Mampuru
II did not exert his authority over the Bapedi
nation after killing Kgoši Sekhukhune I. Instead, he
immediately fled
and ultimately returned to
the
home of Chief Nyabela of the Ndebele, his co-conspirator in Kgoši
Sekhukhune I’s killing. While the
applicant disputed this in the High Court and claimed that Kgoši
Mampuru II thereafter assumed the kingship, it
offered no cogent evidence to substantiate its claim.
[90]
This seems to me an obvious and powerful
point of distinction. After driving off Kgoši Mampuru
II, Kgoši Sekhukhune
I ascended the throne and reigned for
20 years. By contrast, after killing Kgoši
Sekhukhune I, Kgoši Mampuru
II fled and never subsequently
reigned. As the Commission said, he “did not ascend the
throne”. The distinction
between the two events is not
one this Court may find irrational.
[91]
The applicant invited us at the hearing to
understand these facts differently. It said that we should view
the intervening
20 years between Kgoši Sekhukhune I’s
driving-off of Kgoši Mampuru II and Kgoši Sekhukhune
I’s
death as a continuing battle between the two for kingship,
which Kgoši Mampuru II ultimately won when he killed Kgoši
Sekhukhune I. This interpretation of the historical evidence,
it argued, is supported by a number of skirmishes between the
two
during that period, to which it said the Commission should have
attached greater weight.
[92]
But even if we were persuaded by this
argument, it misses the point of rationality review. That we
could interpret the facts
differently to the Commission does not,
especially given the respect we must show to its findings in this
context, entitle us to
set aside its decision. If the
Commission’s decision is a rational one, as I have concluded,
it is not open for us
to intervene.
Failure
to consider relevant evidence
[93]
The applicant also continues to press,
although faintly, a further argument it made before the High Court.
This argument was
based on the fact that Kgoši Mampuru II was
installed as leader of the Bapedi for a period of two years during
Kgoši
Sekhukhune I’s reign when the latter was
incarcerated by the British. The applicant says the Commission
failed to consider
this evidence, and that Kgoši Mampuru II
reclaimed his kingship while Kgoši Sekhukhune I was
incarcerated.
[94]
The
High Court and Supreme Court of Appeal correctly dispensed with this
argument. It is so that the Commission’s report
does not
mention Kgoši Sekhukhune I’s incarceration.
But the Commission’s affidavits explain why
this was the case.
His incarceration has no legal relevance. As the Supreme Court
of Appeal held, Kgoši Mampuru
II’s coronation by the
British “was inconsequential as it was a unilateral act,
inconsistent with Bapedi customary
law, and intended merely to fulfil
that government’s policy.”
[47]
And there was no evidence that his coronation was sanctioned by the
Bakgoma and Bakgomana, the royal advisors, upon whom
the task of
identifying the king in accordance with Bapedi customary law and
custom rests.
[48]
The
illegitimacy of Kgoši Mampuru II’s rule during this
period, the Commission pointed out, was borne out by
the fact that
Kgoši Sekhukhune I returned and reclaimed his kingship upon
release.
Other
arguments
[95]
Before the Supreme Court of Appeal, the
applicant also attempted to raise several other arguments it had not
raised at first instance.
That Court rightly dispensed with
these, and they were not seriously pressed before us. It is
thus not necessary to deal
with their merits.
[96]
The main judgment, however, seeks to
develop the applicant’s case in another direction not
contemplated by the parties.
It states that the Commission’s
decision is susceptible to review because it wrongly assumed that
Kgoši Sekhukhune
I’s heirs were able to succeed him in
terms of customary law. It says the Commission assumed this
only because it ignored
relevant facts about Kgoši Matsebe and
Kgoši Phetedi’s usurpation of their brother Kgoši
Malekutu’s
rule. The main judgment concludes that the
Commission thus failed to appreciate that, while a king might acquire
kingship
through usurpation, he did not acquire kingship for his own
house and could not, therefore, pass kingship on to his successors.
[97]
In
support of this, the main judgment points to the fact that Kgoši
Sekwati raised seed for Kgoši Malekutu, and that
no timamollo
wives were married during the respective reigns of Kgoši
Matsebe and Kgoši Phetedi, the younger brothers
who usurped
Kgoši Malekutu’s kingship. According to the main
judgment, the “only rational explanation”
for why this
was the case “is that the royal family and the community did
not approve the manner in which Kgoši Matsebe
and Kgoši
Phetedi became kings”.
[49]
The judgment further states that this “also explains why
[Kgoši] Mampuru II [and not Kgoši Phetedi and
Kgoši
Matsebe] was regarded as the heir and the rightful successor to Kgoši
Malekutu who was also a son of a timamollo”.
[50]
[98]
It
is, however, not open for us to find for the applicant on this
basis. The applicant’s founding papers in the High
Court
contain no trace of this argument, and did not argue that, if Kgoši
Mampuru II did not reclaim the kingship in 1882,
Kgoši
Sekhukhune I’s heirs did not inherit his kingship.
[51]
The applicant conceded that the Commission found “correctly”
that the usurpation rule existed. And it never
suggested that
the rule entitled only the usurper, and not his heirs, to take the
kingship. To the contrary, it stated that
Kgoši Mampuru
II’s killing of Kgoši Sekhukhune I “qualified
[Kgoši Mampuru II] to assume the kingship
through might and
bloodshed”, with the implication that his descendant, who is
the leader of the applicant, was now the rightful
king. That
was the sole basis on which the applicant sought to show that the
Commission’s decision was irrational.
[99]
In addition, the applicant has not sought
to depart from its pleaded case. The applicant has not disputed
in any court that,
if Kgoši Sekhukhune I rightfully took the
kingship, his heirs were entitled to succeed him. The cited
portion of the
applicant’s papers on which the main judgment
relies related to its challenge to the establishment of the
usurpation rule,
and whether it was competent for Kgoši
Sekhukhune I to take Kgoši Mampuru II’s kingship through
force.
For convenience, I repeat it:
“
[W]
hile
the High Court and the Supreme Court of Appeal have accepted and in
fact ruled that Sekhukhune I legitimately usurped the kingship
from
Mampuru II, because it was not ‘unusual at that time for
kingship to be obtained by might and bloodshed’, both
the High
Court and the Supreme Court of Appeal have nonetheless failed to
locate any justification of this critical finding in
the Commission’s
report. No reasons or specific examples of pertinent cases were
provided by the Commission in its
report to substantiate its
statement and to justify its deviation from the normal rules of
customary succession by birth when it
adopted the premise that ‘it
was not unusual at the time for kingship to be obtained by might and
bloodshed’.
Applicant contended before the Supreme Court
of Appeal (and also contends with respect before this Court) that no
historical records
show that the principle of usurpation of kingship
was a custom or tradition for succession among the Bapedi nation.”
[100]
This challenge, as I noted above, was
abandoned by the applicant’s counsel during oral argument.
Certainly, the applicant
has never put in issue the transmissibility
of a usurping king’s kingship. That is hardly surprising,
given that, as
pointed out above, Kgoši Mampuru II’s own
claim to the kingship depended on Kgoši Thulare being able to
pass
his kingship down to his heirs after taking it by force.
[101]
The applicant’s case before this
Court, as it was in the High Court, was narrowly that the Commission
should have found that
Kgoši Mampuru II reclaimed the kingship
in 1882 when he killed Kgoši Sekhukhune I. Were we now
to find for
the applicant on the basis the main judgment proposes, it
would cause the Commission irredeemable prejudice. The
Commission
has not been afforded any opportunity to respond to these
assertions, which appear for the first time in the main judgment.
It would be denied basic procedural fairness if we were to decide
that case against it here, without ever affording it an adequate
hearing.
[102]
And this unfairness would be even more
sharply felt by other respondents. The fourth and fifth
respondents are the Mohlaletsi
Traditional Authority and Acting
Kgošikgolo Kgagudi Kenneth Sekhukhune, the ruling house and
incumbent leader of the Bapedi
according to the Commission’s
decision. Though active before the High Court, neither party
opposed the application
before the Supreme Court of Appeal or this
Court. They likely did so believing that the Commission’s
papers and arguments
competently covered all the points that have
ever been in issue. If a new point becomes the basis of this
Court’s decision,
it would be unfair to these parties whose
interests in the award of the kingship to their line are at the core
of this case.
[103]
In addition, the parameters of the
usurpation rule and whether usurping kings could pass their kingship
on to successors are not
pure questions of law, as the main judgment
states. They are predominantly factual enquiries. I have
already stated
that the rules of Bapedi customary law depend on fact
for their existence. That is why the Commission considered
reams of
historical evidence in compiling its report. The
establishment of these facts, not whether the Commission misconstrued
its
powers under section 25(3), underpins the conclusion reached by
the main judgment. The evidence necessary to prove or disprove
these facts has not been placed before us, since no party has ever
disputed Kgoši Sekhukhune I’s competency to pass
on his
kingship under Bapedi customary law.
[104]
We cannot now find for the applicant on the
ground the main judgment proposes. But even if we could, I am
not persuaded that
the main judgment demonstrates that the
Commission’s decision is reviewable.
[105]
The
first reason should already be clear. The main judgment finds
that the Commission ought to have considered more fully
the issue of
succession after Kgoši Sekhukhune I’s death, and the
facts of Kgoši Malekutu’s, Kgoši
Matsebe’s
and Kgoši Phetedi’s reigns and their bearing on that
succession. It is, however, understandable
that the
Commission’s report fails to deal with this. The dispute
before the Commission related to the feud between
Kgoši
Mampuru II and Kgoši Sekhukhune I, their various skirmishes,
the ultimate killing of Kgoši Sekhukhune
I and whether this
revived Kgoši Mampuru II’s claim to the throne. I
therefore part ways with the main judgment
when it characterises the
dispute before the Commission as “related to succession to
kingship after the death of Kgoši
Sekhukhune [I]”.
[52]
The Commission’s report can hardly be faulted – or
declared unlawful – for omitting to cover in more detail
something that was never in issue before it.
[106]
Second, our standard of review is not
“relatively deferential” if we draw a speculative chain
of inferences to review
an administrative decision. We should
be slow to say, as the main judgment does, that the
only
rational explanation for the fact that no timamollo wives were
married during Kgoši Matsebe’s and Kgoši
Phetedi’s
reigns – and that Kgoši Sekwati raised
Kgoši Malekutu’s (and not his usurping brothers’)
seed –
was the royal family’s disapproval of the manner
in which Kgoši Matsebe and Kgoši Phetedi took the
kingship.
There may be many other explanations, circumstantial
or related to customary law, which were not canvassed because neither
party
drew attention to or relied on this aspect of the report.
The reason might lie, for example, in the war with the Matebele,
which decimated the Bapedi population and left its traditional
structures in disarray.
[107]
And even if the explanation was the
disapproval of the royal family, this does not mean that it
constituted a customary-law rule
that usurping kings can never pass
on kingship. Nor does it mean that the royal family similarly
disapproved of Kgoši
Sekhukhune I’s reign and refused to
nominate a timamollo wife from among his wives. It should also
be remembered, as
stated above, that the Commission’s decision
need not, in the view of this Court, be perfectly explained in every
respect.
It need only be justifiable.
[108]
Finally, the Commission’s factual
findings included that Kgoši Thulare forcibly dispossessed
Kgoši Dikotope,
becoming the leader of the Bapedi without any
prior entitlement based on the customary rules of succession.
Notwithstanding
that Kgoši Thulare became king solely through
usurpation, the Commission’s report found – and this is
not disputed
by any party – that the Bakgoma and Bakgomana
nominated a timamollo wife for him. That wife’s son,
Kgoši
Malekutu, became “the rightful heir and successor
in title to the kingship of the Bapedi after the death of [Kgoši
Thulare]”. Here is an undisputed example where the
Bakgoma and Bakgomana did nominate a timamollo wife for a king who
acquired his rule through usurpation. And, still more
significantly, the Commission’s finding on this point
controverts
the main judgment’s core proposition that usurping
kings could not pass on their authority to their heirs. It also
provides ample justification for the Commission’s decision that
Kgoši Sekhukhune I’s kingship competently passed
down to
his successors.
Conclusion
[109]
The above considered, I find no reason to
set aside the Commission’s decision. The decision was
neither irrational,
nor did it ignore relevant facts. The
appeal must be dismissed.
Costs
[110]
In
accordance with the normal rule that applies to constitutional
litigation against an organ of state,
[53]
I make no order as to costs.
Order
[111]
In the result the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
For
the Applicant:
IV
Maleka SC and KJ Selala
instructed
by Hogan Lovells (South Africa)
Incorporated
as Routledge Modise Inc.
For
the First Respondent:
G
Bofilatos SC and LM Montsho SC
instructed
by Bhadrish Daya Attorneys.
[1]
Bennett
Customary
Law in South Africa
(Juta
& Co Ltd, Cape Town 2004)
at 101-3.
[2]
Law
No 11 of 1881.
[3]
Bennett
above n 1 at 120.
[4]
Section
147 of the South Africa Act of 1909.
[5]
38
of 1927.
[6]
Western
Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd
v North West Provincial Government
[2000]
ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC) at para 41.
[7]
Bennett
above n 1 at 109.
[8]
Alexkor
Ltd and Another v Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC)
(
Alexkor
)
at para 51.
[9]
Section
211 provides:
“
(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.”
[10]
Above
n 8.
[11]
41
of 2003.
[12]
Section
23 of the Framework Act.
[13]
Id
section 22.
[14]
Above
n 5.
[15]
Section
28(7) of the Framework Act provided:
“
The
Commission must, in terms of section 25(2), investigate the position
of paramountcies and paramount chiefs that had been established
and
recognised, and which were still in existence and recognised, before
the commencement of this Act, before the Commission
commences with
any other investigation in terms of that section.”
[16]
Id
section 26(1).
[17]
Id
section 26(2).
[18]
Bapedi
Marota Mamone v Commission of Traditional Leadership Dispute and
Claims and Others
[2014] ZASCA 30
;
[2014] 3 All SA 1
(SCA) (Supreme Court of Appeal
judgment) at para 14.
[19]
Id
at para 19.
[20]
Id.
[21]
Id
at para 21.
[22]
Section
25(4) of the Framework Act.
[23]
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR 1
(CC) at paras
67-8.
[24]
In
Sepedi the surrogate mother was called a hlatswadirope.
[25]
The
married sister of a timamollo was called a seantlo.
[26]
Section
33(1) of the Constitution provides:
“
Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair.”
[27]
Democratic
Alliance v President of South Africa
[2012] ZACC 24
;
2013 (1) SA 248
(CC);
2012 (12) BCLR 1297
(CC).
[28]
Id
at para 36.
[29]
41
of 2003. All references are to the Framework Act as it applied
when the Commission’s enquiries were conducted.
The Act
has subsequently been amended by the Traditional Leadership and
Governance Framework Amendment Act 23 of 2009.
[30]
Section
25(1).
[31]
Section
25(2)(a)(i).
[32]
Section
25(2)(a), read with section 25(2)(b).
[33]
Section
28(7).
[34]
Section
26(1) and (2)(a).
[35]
Section
9(2)(a).
[36]
3
of 2000. Section 6(2)(f)(ii)(cc) and (dd) of PAJA reads:
“
A
court or tribunal has the power to judicially review an
administrative action if the action itself is not rationally
connected
to—
.
. .
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator”.
[37]
Trinity
Broadcasting (Ciskei) v Independent Communications Authority of
South Africa
[2003] ZASCA 119
;
2004 (3) SA 346
(SCA)
at
para 21 and
Carephone
(Pty) Ltd v Marcus NO and Others
[1998] ZALAC 11
;
1999 (3) SA 304
(LAC) (
Carephone
)
at para 37. See also
Hoexter
Administrative
Law in South Africa
2 ed (Juta & Co Ltd, Cape Town 2012) at 340-3.
[38]
Section
6(2)(e)(iii) of PAJA reads:
“
A
court or tribunal has the power to judicially review an
administrative action if the action was taken because irrelevant
considerations
were taken into account or relevant considerations
were not considered”.
[39]
Section
33 of the Constitution.
[40]
Section
33(3).
[41]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star
)
at paras 45-9;
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd and Another; Minister of Environmental
Affairs and Tourism
and Others v Bato Star Fishing (Pty) Ltd
[2003] ZASCA 46
;
2003 (6) SA 407
(SCA)
at
paras 51-2; and
Carephone
above
n 37 at paras 32 and 36.
[42]
Hoexter
above
n
37
at 342,
citing
Nieuwoudt
v Chairman, Amnesty Subcommittee, Truth and Reconciliation
Commission; Du Toit v Chairman, Amnesty Subcommittee, Truth
and
Reconciliation Commission; Ras v Chairman, Amnesty Subcommittee,
Truth and Reconciliation Commission
2002 (3) SA 143
(C) at 155G-H and 164G-H
.
Froneman DJP (as he was then) in
Carephone
id at para 36 also helpfully stated:
“
In
determining whether administrative action is justifiable in terms of
the reasons given for it, value judgments will have to
be made which
will, almost inevitably, involve the consideration of the ‘merits’
of the matter in some way or another.
As long as the Judge
determining this issue is aware that he or she enters the merits not
in order to substitute his or
her own opinion on the correctness
thereof, but to determine whether the outcome is rationally
justifiable, the process will
be in order.”
[43]
Bato
Star
above n 41 at para 48. See also
Ekurhuleni
Metropolitan Municipality v Dada NO and Others
[2009] ZASCA 21
;
2009 (4) SA 463
(SCA) at para 10 and
Associated
Institutions Pension Fund and Others v Van Zyl and Others
[2004]
ZASCA 78
;
2005 (2) SA 302
(SCA) at para 39. See generally
Hoexter above n 37 at 147-55.
[44]
Section
23(1) of the Framework Act.
[45]
Nxumalo
v President of the Republic of South Africa and Others
[2014] ZACC 27
at para 21. The Court stated:
“
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. It was required to apply customary law in
adjudicating those disputes.
Members
of the Commission were required to have expertise in traditions and
customs.
The
High Court cannot be criticised for its approach.”
(Footnotes omitted.)
[46]
These
were Kgoši Thulare’s forcible dispossession of his
older brother, Kgoši Dikotope; Kgoši Matsebe’s
usurpation of his brother Kgoši Malekutu’s reign; and
Kgoši Phetedi’s subsequent removal of his brother,
Kgoši Matsebe.
[47]
Supreme
Court of Appeal judgment above n 18 at para 19.
[48]
Id.
[49]
At
[59].
[50]
Id.
[51]
Ordinarily
a litigant must stand or fall by the case made in its founding
papers. This rule ensures fairness to respondents
who are
forewarned of the case they must meet. See
Betlane
v Shelly Court CC
[2010]
ZACC 23
;
2011 (1) SA 388
(CC);
2011 (3) BCLR 264
(CC) at para 29;
Van
der Merwe and Another v Taylor NO and Others
[2007] ZACC 16
;
2008
(1) SA 1
(CC);
2007 (11) BCLR 1167
(CC) at para 122; and
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 150.
[52]
At
[42].
[53]
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at
paras 21-3.