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[2016] ZACC 47
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Tshivhulana Royal Family v Netshivhulana (CCT48/16) [2016] ZACC 47; 2017 (6) BCLR 800 (CC) (14 December 2016)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
48/16
In the matter
between:
TSHIVHULANA ROYAL
FAMILY
Applicant
and
NDITSHENI NORMAN
NETSHIVHULANA
Respondent
Neutral citation:
Tshivhulana Royal Family v Netshivhulana
[2016] ZACC 47
Coram:
Nkabinde ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mhlantla J, Musi AJ and Zondo J
Judgment:
Musi AJ
Heard on:
1
November 2016
Decided on:
14 December 2016
Summary:
Section
21 of the Traditional Leadership and Governance Framework Act —
recognition of traditional headman — exhausting
internal
remedies — not applicable to disputes between Premier and
traditional communities — remitted to the High Court
to proceed
in accordance with this judgment
ORDER
On appeal from the
High Court, Gauteng Division, Pretoria (functioning as the Limpopo
Local Division, Thohoyandou) the following
order is made:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is upheld.
4. The order of the High Court, Gauteng Division, Pretoria
(functioning as the Limpopo Local Division, Thohoyandou) is set aside
and replaced with the following:
“
(a)
The point
in limine
pertaining to the exhaustion of internal remedies is dismissed.
(b)
Costs are reserved for later adjudication.”
5. The matter is remitted to the High Court to proceed in accordance
with this judgment.
6. The respondent is ordered to pay the costs in this Court.
JUDGMENT
MUSI AJ (Nkabinde
ACJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla
J and Zondo J concurring):
Introduction
[1]
This is an application for leave to appeal against an order of
the High Court, Gauteng Division, Pretoria (functioning as the
Limpopo
Local Division, Thohoyandou) (High Court). The High
Court held that in terms of the Promotion of Administrative Justice
Act
[1]
(PAJA) the applicant (Tshivhulana Royal Family) had to exhaust the
internal remedies prescribed in section 21 of the Traditional
Leadership and Governance Framework Act
[2]
(Framework Act) before approaching it with a review application.
This judgment concerns that holding.
Facts
[2]
The late Mr Rasilingwani Piet Netshivhulana was the headman of
Tshivhulana Village. He died in 1976. During 1978,
he was succeeded by his son, Mr Mugoidwa Mutheiwana Wilson
Netshivhulana (deceased), who died on 8 September 1992.
[3]
Immediately after the deceased’s burial the Tshivhulana
Royal Family convened a meeting and resolved that Mr Davhana Elias
Mulaudzi, the deceased’s brother, should be the acting
headman. According to the Tshivhulana Royal Family, Mr Mulaudzi
was appointed acting headman as the deceased died without an heir
because he did not have a “dzekiso” wife or great
wife.
[3]
The firstborn son of a dzekiso usually succeeds the headman.
[4]
The respondent is the deceased’s firstborn son and
contends that he is the deceased’s successor. He alleges
that
at the meeting where Mr Mulaudzi was identified as the acting
headman, it was resolved that Mr Mulaudzi would be regent only until
the respondent gets married. Although he was 24 years old at
the time, he was regarded as a minor because he was still unmarried.
The Tshivhulana Royal Family disputes this and alleges that he
is not a child of a great wife and has no right to be the
deceased’s
successor. It also alleges that the respondent does not have
the personality and temperament to be a headman.
[5]
The Tshivhulana Royal Family falls under the Netshimbupfe
Royal Family, which is the Senior Traditional Royal House.
During
September 2012, some of the deceased’s children
approached the Netshimbupfe Royal Family to enquire why Mr Mulaudzi
was still acting headman after such a long time. On 31 October
2012, the Tshivhulana Royal Family received a letter from the
Netshimbupfe Royal Family requesting the Tshivhulana Royal
Family to identify the deceased’s successor and to communicate
its choice to it before the end of November 2012. This was, for
various reasons, not done.
[6]
The Tshivhulana Royal Family ultimately met on 21 December
2013 and identified Mr Oriel Netshivhulana, the respondent’s
younger
brother, as the deceased’s successor. He
repudiated the designation. As a result, the Tshivhulana Royal
Family
met again on 23 December 2013 and identified Mr Mulaudzi as
the headman of the Tshivhulana Village.
[7]
Mr Mulaudzi’s name was submitted to the Netshimbupfe
Royal Council to be forwarded to the Member of the Executive Council,
Limpopo Provincial Government responsible for Co-operative
Governance, Human Settlement and Traditional Affairs (MEC) and the
Premier of the Limpopo Province (Premier).
[8]
The Netshimbupfe Royal Council wrote a letter to the
Department of Co operative Governance, Human Settlement and
Traditional
Affairs (Department) informing it of correspondence
received from the Tshivhulana Royal Family indicating that Mr
Mulaudzi should
be recognised as the headman of Tshivhulana Village.
It further informed the Department that it held a meeting on
26 January
2014 and resolved, contrary to the Tshivhulana Royal
Family’s election, that the respondent should be recognised as
the headman
of Tshivhulana Village.
[9]
On 5 May 2014, the Premier withdrew the recognition of Mr
Mulaudzi as acting headman and recognised the respondent as the
headman
of Tshivhulana Village. The Tshivhulana Royal
Family, aggrieved, approached the High Court with an application
to review and set aside the decision of the Premier.
Litigation
history
[10]
The respondents in the High Court were Mr Nditsheni Norman
Netshivhulana (first respondent), the Premier (second respondent),
the
MEC (third respondent), the Netshimbupfe Traditional Council
(fourth respondent) and the Netshimbupfe Royal Council (fifth
respondent).
Only the first respondent, who is the respondent
in this Court, opposed the application.
[11]
It was common cause that the review application was to be
adjudicated in terms of PAJA. It was also common cause that the
Tshivhulana Royal Family was obliged to exhaust internal remedies, if
any, before approaching the Court, unless there were exceptional
circumstances.
[4]
[12]
The respondent took two points
in limine
. First,
he contended that Mr Mulaudzi had a direct and substantial
interest in the matter and requested the Court to
order his joinder
as an applicant. Second, he contended that the Tshivhulana
Royal Family failed to exhaust the internal
remedies set out in
section 21 of the Framework Act.
[13]
The High Court found that Mr Mulaudzi was not an “interested
party” because the issue before it was not about him demanding
to be recognised. According to the High Court, the issue that
fell to be adjudicated was the total disregard for the customary
practice and manner in which a headman should be appointed.
[14]
The High Court opined that the issues in the review
application could be resolved by means of any of the internal
remedies prescribed
in section 21 of the Framework Act. It held
that the Tshivhulana Royal Family had not exhausted those internal
remedies.
It further held that there were no exceptional
circumstances that warranted non-compliance with the internal
remedies.
[15]
It dismissed the first point
in limine
but upheld the
second and dismissed the application. The Tshivhulana Royal
Family, dissatisfied with the order, applied for
leave to appeal
against the part of the order which upheld the second point
in
limine
. The High Court refused leave to appeal with
costs. The Tshivhulana Royal Family unsuccessfully approached
the Supreme Court
of Appeal (SCA) for leave to appeal.
This Court
[16]
On 1 November 2016, when the matter was before us for oral
argument, this Court made an agreement of the parties an order of
Court.
[5]
In terms of that order, the only issue to be determined by this
Court is the second point
in
limine
, to be decided on
the papers filed with the Court, without an oral hearing.
[6]
The parties focussed only on the main contentious issue. There
are however other issues that ought to be determined
by this Court.
[17]
The issues to be determined are:
1. Whether the late filing of the application should be condoned.
2. Whether leave to appeal should be granted.
3. Whether section 21 of the Framework Act is applicable.
4. If it is, whether the Tshivhulana Royal Family has established
exceptional circumstances to exempt it from exhausting the internal
remedies prescribed in section 21.
5. Costs.
Legislative
framework
[18]
It is apposite to start off by setting out the statutory
framework within which the issues should be determined. The
procedure
for filling a vacancy of a headman and the recognition of
headmen in Limpopo is governed by section 12 of the Limpopo
Traditional
Leadership and Institutions Act
[7]
(Limpopo Act). Section 12 provides:
“
Recognition
of senior traditional leader, headman or headwoman:
(1)
Whenever a position of a senior traditional leader, headman or
headwoman is to be filled—
(a) the royal family concerned
must, within a reasonable time after the need arises for any of those
positions to be filled, and
with due regard to the customary law of
the traditional community concerned—
(i)
identify a person who qualifies in terms of customary law of the
traditional community concerned to assume the position in question;
and
(ii)
through the relevant customary structure of the traditional community
concerned and after notifying the traditional council,
inform the
Premier of the particulars of the person so identified to fill the
position and of the reasons for the identification
of the specific
person.
(b) the Premier must, subject to
subsection (2)—
(i)
by notice in the Gazette recognise the person so identified by the
royal family in accordance with paragraph (a) as senior traditional
leader, headman or headwoman, as the case may be;
(ii)
issue a certificate of recognition to the person so recognised; and
(iii)
inform the provincial
house of traditional leaders and the relevant local house of
traditional leaders of the recognition of a senior
traditional
leader, headman or headwoman.”
[8]
[19]
It is common cause that the Premier’s action constituted
an administrative action.
[9]
Section 7(2) of PAJA provides as follows:
“
(2)(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.
(c)
A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[20]
Section 21 of the Framework Act provides:
“
(1)(a) Whenever a dispute
or claim concerning customary law or customs arises between or within
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 or
claim internally and in
accordance with customs before such dispute
or claim may be referred to the Commission.
(b) If a dispute or claim cannot
be resolved in terms of paragraph (a), subsection (2) applies.
(2)(a) A dispute or claim
referred to in subsection (1) 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
or claim in accordance with
its internal rules and procedures.
(b) If a provincial house of
traditional leaders is unable to resolve a dispute or claim as
provided for in paragraph (a), the dispute
or claim must be referred
to the Premier of the province concerned, who must resolve the
dispute or claim after having consulted—
(i)
the parties to the dispute or claim; and
(ii)
the provincial house of traditional leaders concerned.
(c) A dispute or claim that
cannot be resolved as provided for in paragraphs (a) and (b)
must be referred to the Commission.
(3) Where a dispute or claim
contemplated in subsection (1) has not been resolved as provided for
in this section, the dispute or
claim must be referred to the
Commission.”
I turn to deal with
the issues.
Condonation
[21]
The SCA dismissed the Tshivhulana Royal Family’s
petition on 3 February 2016. The notice of the Court’s
Registrar
notifying the Tshivhulana Royal Family of the dismissal of
the petition is dated 5 February 2016. The Tshivhulana Royal
Family
was supposed to file this application on or before 24 February
2016.
[10]
[22]
According to the Tshivhulana Royal Family, its Bloemfontein
attorneys received the order of the SCA only on 10 February 2016.
It was relayed and received by its Venda attorneys on 11 February
2016.
[23]
After considering its options the Tshivhulana Royal Family
resolved, on 16 February 2016, to approach this Court with an
application
for leave to appeal. Senior counsel could not deal
with the matter expeditiously because he and other members of the
Pretoria
Bar relocated to new chambers in an incomplete building,
which caused substantial disruptions for counsel. The
application
was served on the Registrar of the High Court on 25
February 2016 and on the Registrar of the SCA on 29 February 2016.
[24]
The delay is not long. The explanation is reasonable.
The application is unopposed. The prospects of success are
good. It is in the interests of justice to grant condonation.
Leave to appeal
[25]
Section 167(3)(b) of the Constitution contains the threshold
requirements for granting leave to appeal in this Court.
[11]
It must also be in the interests of justice to grant leave.
Whether it is in the interests of justice to grant leave
depends on a
careful and balanced weighing-up of all relevant factors including
the prospects of success.
[12]
[26]
The matter raises a constitutional issue relating to the
recognition of traditional leaders in terms of the Framework Act that
was
passed to give effect to section 211 of the Constitution.
[13]
In
Sigcau
[14]
this Court said:
“
The
institution of traditional leadership and the determination of who
should hold positions of traditional leadership have important
constitutional dimensions.”
[15]
[27]
The question whether the internal remedies prescribed by
section 21 of the Framework Act should first be exhausted before a
decision
of the Premier to recognise a traditional leader is taken on
review, in terms of PAJA, raises an arguable point of law of general
public importance which ought to be considered by this Court.
It is not the first time that this issue receives the attention
of
our High Courts.
[16]
Many South Africans in rural and peri-urban areas are
governed by traditional leaders. It is in the interests
of
justice that disputes pertaining to traditional leadership be
resolved with certainty and clarity in order to maintain stability.
Leave to appeal should be granted.
Applicability of
section 21
[28]
The Tshivhulana Royal Family also contends that the review
application concerns a dispute between the Tshivhulana Royal Family
and
the Premier and not a dispute within or between traditional
communities or other customary institutions. Therefore, it
contends
that section 21 of the Framework Act does not apply.
[29]
The respondent contends that the Tshivhulana Royal Family
failed to exhaust the internal remedies prescribed in section 21 of
the
Framework Act. He contends that the dispute is one that
falls squarely within the purview of disputes described in section
21(1)(a) of the Framework Act.
Interpretative
approach
[30]
In
Cool Ideas
,
[17]
this Court summarised the principles of statutory interpretation as
follows:
“
A fundamental tenet of
statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning,
unless to do so would result in
an absurdity. There are three important interrelated riders to
this general principle, namely:
(a) that statutory provisions
should always be interpreted purposively;
(b) the relevant statutory
provision must be properly contextualised; and
(c) all statutes must be
construed consistently with the Constitution.”
[18]
Where a word is
defined in a statute, the meaning assigned to it by the Legislature
must prevail over its ordinary meaning.
[19]
Architecture of
section 21
[31]
Section 21 of the Framework Act prescribes the procedure to
follow for the resolution of a dispute or claim concerning customary
law or customs arising from the implementation of the Framework Act.
In terms of section 21(1)(a), members of the traditional
community
and the traditional leaders of the community must attempt to resolve
the dispute. In terms of section 21(2), if
the dispute is not
resolved by the traditional community and its leaders it must be
referred to the provincial house of traditional
leaders (house) which
must seek to resolve the dispute with its internal rules and
procedures.
[20]
If the house cannot resolve the dispute, it must be referred to the
Premier who must resolve the dispute after consulting
the parties to
the dispute and the house.
[21]
If the dispute cannot be resolved by the Premier or the house it must
be referred to the Commission.
[22]
[32]
The dispute may be referred from one level to the next only if
it is unresolved. When a definitive decision is taken at any
level, the aggrieved party does not have any further internal
recourse. This is so because none of the levels is a review
or
appeal level. A decision at any level gives the aggrieved party
the right to exit the internal structure and approach
a court for
appropriate relief.
[33]
In terms of section 25(5)
[23]
the Commission may only deal with disputes or claims that were
submitted to it within six months after Chapter 6
[24]
came into operation. This dispute arose on 5 May 2014.
Chapter 6 came into operation on 1 February 2010.
The
Commission would therefore not have jurisdiction to resolve this
dispute.
Analysis
[34]
Some of the composite parts of section 21(1)(a) are defined in
section 1 of the Framework Act. Customary institutions or
structures
are defined as those institutions or structures
established in terms of customary law. A traditional community
is defined
as a traditional community recognised as such in terms of
section 2.
[25]
[35]
The dispute or claim that should be subjected to the internal
remedies prescribed in section 21 must be one
between
or
within
traditional communities or customary institutions as
defined in the Framework Act.
[36]
It is the Court’s duty to ascertain the real or true
nature of the dispute between the parties.
[26]
In conducting the inquiry the Court must look at the substance of the
dispute.
[27]
The Court would have regard to various factors including the
pleadings, the facts and the relief sought. The
characterisation
of a dispute by a party is not necessarily
conclusive.
[28]
Ascertaining the true nature of the dispute would assist to determine
whether the dispute is within or between a traditional
community and
a customary institution.
[37]
Although one of the underlying disputes concerns the
disagreement between the Tshivhulana Royal Family and the
Netshimbupfe Royal
Family as to who should be the headman of
Tshivhulana Village, the Tshivhulana Royal Family presented the
dispute in the High Court
as the unlawful or irregular recognition of
the respondent by the Premier.
[38]
The review application is against the decision of the
Premier. The primary relief sought is to review and set aside
the Premier’s
administrative action of recognising the
respondent as the headman of Tshivhulana Village. The dispute
is between the Tshivhulana
Royal Family and the Premier. The
Premier is not a traditional community or customary institution. The
fact that the
Premier failed, neglected or chose not to respond to
the application also does not alter the nature of the dispute. It
happens
frequently in our courts that defendants or respondents do
not oppose matters. Their failure or neglect, as a matter of
course,
leads to default judgments being granted against them.
[39]
The fact that a party is joined because it has a direct and
substantial interest in the subject matter of the dispute does not
change
the true nature of the dispute. All that it means is
that that party’s right may be affected, prejudicially, by the
Court’s order.
[29]
The interested party is given an opportunity to defend the
right if he or she so wishes. The respondent was cited as
an
interested party.
[40]
It is highly unlikely that the Legislature would have
contemplated a dispute between the Premier and a traditional
community or
a customary institution to fall within the purview of
section 21(1)(a) of the Framework Act. This is so because the
Premier
is part of the internal dispute resolution institutions or
persons in section 21.
[30]
It would be absurd to have the Premier simultaneously as a party to
and resolver of the dispute. In recognition disputes,
the
Premier’s decision would invariably be impugned because he or
she is the recognising authority. Having decided
the issue, he
or she would be disqualified to resolve the dispute about his or her
alleged unlawful conduct.
[41]
The removal of a headman is governed by section 12 of the
Framework Act.
[31]
In terms of section 12, the royal family may request the Premier to
remove a headman on the grounds listed in section 12(1)(a),
(b) and
(d). The royal family may however not request the removal of a
headman on the ground of wrongful appointment or recognition.
The
Framework Act does not prescribe a procedure for the removal of a
headman on the ground of wrongful appointment or recognition.
[42]
The Framework Act gives the Premier the exclusive power to
recognise a headman. He or she does not have the power to
remove
a headman on the ground of wrongful appointment or
recognition. The reason why the Premier is not reposed with
this power
must be because that would give rise to a conflict. It
would be the appointment action that is impugned. All
recognition
disputes would therefore involve the Premier. The
Legislature recognises, by implication, that the Premier may not
revoke
or review an earlier decision because he or she would be
functus officio
(having discharged his or her office).
[43]
It would be absurd and senseless to disqualify the Premier
from reviewing his own decision for purposes of section 12(2) but not
for dispute resolution purposes in terms of section 21. The
interpretation that the section 21 dispute resolution remedies
are
not applicable when the Premier’s action is challenged is
consonant with his or her implied disqualification in section
12.
[44]
In
Mamogale
,
[32]
Mogoeng JP remarked:
“
The
Premier of this Province has pronounced herself on the removal of the
applicant as regent of the Bakwena Ba Mogopa tribe and
on the
recognition of the second respondent as his replacement. This
decision has elevated what once was an internal dispute,
potentially
capable of internal resolution, to a dispute between a faction of the
Royal Family as well as a section of the tribe
on the one hand, and
the Provincial Government on the other, which has caused the
resolution to no longer be internal. A
truly internal dispute
is, in the context of this case, capable of being resolved by the
Royal Family through customary laws, customs
and processes. On
the contrary, a Premier who has already pronounced himself or herself
on a matter, cannot be summoned to
a meeting of the Royal Family or
of the tribe for the purpose of attempting to find any internal
solution envisaged by section
21(1)(a). Accordingly, once the
Premier takes a decision, the dispute loses every semblance of being
internal. It follows
that section 7(2) of PAJA does not apply
to this case. After the Premier decided on the dispute, it was
open to the applicant
to bring this application to this Court which
clearly has the jurisdiction to entertain it.”
[33]
[45]
The respondent sought to distinguish
Mamogale
on three
bases. First, that the issues in
Mamogale
were, in
addition to section 21 of the Framework Act, also regulated by the
Bophuthatswana Traditional Authorities Act.
[34]
Second, that
Mamogale
was about alleged misconduct rather than
about who should rightfully be recognised as the headman. Third
that this case is
not about the establishment of a headmanship but
about the recognition of a specific person as a headman.
[46]
In
Mamogale
, the Court specifically dealt with section
21 of the Framework Act. The fact that Bophuthatswana has
its own Act is
irrelevant. The Framework Act creates a
framework within which provinces may regulate traditional affairs.
Mamogale
relates to allegations of poor leadership and
maladministration against Mr Mamogale. The crux of the
matter was, however,
the removal from office of Mr Mamogale by
the Premier. It therefore dealt with the exercise of
administrative action
by the Premier, as in this case.
Mamogale
was concerned, like this case, with the removal of one person and the
recognition of another, by the Premier. The order in
Mamogale
makes this plain. It reads in relevant part:
“
(b) the decision of the
Premier to relieve the Applicant of his position as regent with
effect from 31 October 2005 is reviewed
and set aside;
(c) the decision of the Premier
to recognise the second Respondent with effect from 01 November 2005
is reviewed and set aside;
(d) the Applicant is reinstated
as regent of the Bakwena Ba Mogopa tribe.”
The attempt at
distinguishing
Mamogale
is thus flawed.
[47]
The prescribed dispute resolution mechanism culminates with
the decision of the Premier. There is no other dispute
resolution
level above the Premier. No internal appeal or
review procedure against the Premier’s decision is prescribed.
Neither
the Framework Act nor the Limpopo Act makes provision
for the Premier to review his or her own decision. There is
therefore
no internal remedy that the Tshivhulana Royal Family could
have utilised.
Conclusion
[48]
The dispute before the High Court was not a dispute as
envisaged by section 21. It is clear from the pleadings,
facts
and relief sought in the High Court that the Tshivhulana Royal
Family endeavoured to undo the Premier’s decision.
Furthermore,
even if it was a dispute as envisaged by section
21, there is no internal remedy that the Tshivhulana Royal Family had
to exhaust
in terms of that section. The High Court should
have dismissed the second point
in limine
too. The
High Court did not consider the merits of the review
application. This matter should be remitted to the
High Court
for it to deal with the merits.
Costs
[49]
There is no reason why the costs in this Court should not
follow the result.
Order
[50]
I make the following order:
1. Condonation is granted.
2. Leave to appeal is granted.
3. The appeal is upheld.
4. The order of the High Court, Gauteng Division, Pretoria
(functioning as the Limpopo Local Division, Thohoyandou) is set aside
and replaced with the following:
“
(a)
The point
in limine
pertaining to the exhaustion of internal remedies is dismissed.
(b)
Costs are reserved for later adjudication.”
5. The matter is remitted to the High Court to proceed in accordance
with this judgment.
6. The respondent is ordered to pay the costs in this Court.
For the Applicant: R
J Raath SC and U B Makuya instructed by Mathivha Attorneys
For the Respondent:
Anton Ramaano Inc
[1]
3 of 2000.
[2]
41 of 2003.
[3]
Only a male child birthed by a great wife qualifies to be an heir to
the headman. In order to qualify as a “dzekiso”
wife, a woman must have been married whilst a virgin, must be
royalty and the bride wealth that married her should have come
from
the father of the headman.
[4]
The importance of and the need for the exhaustion of internal
remedies has, amongst others, been discussed in
Koyabe v Minister
for Home Affairs
[2009] ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12)
BCLR 1192
(CC) at paras 34-40 and
Nichol v Registrar of Pension
Funds
[2005] ZASCA 97
;
2008 (1) SA 383
(SCA) at paras 15-8.
[5]
Owing to certain developments on the day of the hearing the parties
agreed to proceed as set out.
[6]
The relevant part of the order reads as follows:
“
1. The matter is postponed subject to
paragraph two (2) below.
2. The only issue to be determined by the Court is the second point
in
limine
dealt with by the Court below, to be decided
on the papers filed with the Court and without an oral hearing.
3. The respondent tenders the costs occasioned by the postponement
including the costs of senior counsel only.”
[7]
6 of 2005.
[8]
Although section 12 of the Limpopo Act contains more detail, it is
in effect similar to section 11 of the Framework Act.
[9]
The exact grounds of review are not relevant for purposes of this
judgment.
[10]
In terms of rule 19(2) of this Court’s Rules the application
should have been filed within 15 days after the order of the
SCA.
[11]
Section 167(3)(b)(i) and (ii) reads as follows:
“The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to
appeal on the grounds that the matter raises an arguable point
of
law of general public importance which ought to be considered by
that Court.”
[12]
S v Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12)
BCLR 1360
(CC) at para 15;
S v Boesak
[2000] ZACC 25
;
2001
(1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para 12.
[13]
Section 211 of the Constitution reads:
“(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.”
See also
Bapedi
Marota Mamone v Commission on Traditional Leadership Disputes and
Claims
[2014] ZACC 36
;
2015 (3) BCLR 268
(CC) at para 38.
[14]
Sigcau v President of the Republic of South Africa
[2013]
ZACC 18; 2013 (9) BCLR 1091 (CC).
[15]
Id at para 15.
[16]
Mamogale v Premier, North West
[2006] ZANWHC 63.
[17]
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16; 2014 (4) SA 474
(CC); 2014 (8) BCLR 869 (CC).
[18]
Id at para 28. See also
Natal Joint Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18.
[19]
Minister of Defense and Military Veterans v
Thomas
[2015] ZACC 26
;
2016 (1) SA 103
(CC);
2015 (10) BCLR 1172
(CC) at para 20.
[20]
Section 21(2)(a).
[21]
Section 21(2)(b).
[22]
Section 21(2)(c).
[23]
Section 25(5) reads:
“Any claim or dispute contemplated in this Chapter submitted
after six months after the date of coming into operation of
this
Chapter may not be dealt with by the Commission.”
[24]
Chapter 6 consists of sections 21 to 26A.
[25]
Section 2 reads as follows:
“(1) A community may be recognised as a traditional community,
if it—
(a) is subject to a system of traditional leadership in terms of
that community’s customs; and
(b) observes a system of customary law.
(2) (a) The Premier of a province may, by notice in the Provincial
Gazette, in accordance with provincial legislation and after
consultation with the provincial house of traditional leaders in the
province, the community concerned, and, if applicable, the
king or
queen under whose authority that community would fall, recognise a
community envisaged in subsection (1) as a traditional
community.
(b) Provincial legislation referred to in paragraph (a) must—
(i) provide for a process that will allow for reasonably adequate
consultation with the community concerned; and
(ii) prescribe a fixed period within which the Premier of the
province concerned must reach a decision regarding the recognition
of a community envisaged in subsection (1) as a traditional
community.
(3) A traditional community must transform and adapt customary law
and customs relevant to the application of this Act so as
to comply
with the relevant principles contained in the Bill of Rights in the
Constitution, in particular by—
(a) preventing unfair discrimination;
(b) promoting equality; and
(c) seeking to progressively advance gender representation in the
succession to traditional leadership positions.”
[26]
National Union of Metal Workers of South Africa v Bader Bop (Pty)
Ltd
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC)
at para 52;
Fidelity Guards Holdings (Pty) Ltd v Professional
Transport Workers Union (1)
(1998) 19
ILJ
260 (LAC)
(
Fidelity
)
Ceramic Industries Ltd t/a Betta Sanitary Ware
v National Construction Building Workers Union (2)
(1997) 18
ILJ
671 (LAC) (
Ceramic
).
[27]
Fidelity
id at 269G-H.
[28]
Ceramic
above n 26 at 677H-I and 678A-C.
[29]
Bowring NO v Vrededorp Properties CC
[2007] ZASCA 80
;
2007
(5) SA 391
(SCA) at para 21.
[30]
See section 21(2)(b) of the Framework Act at [20].
[31]
Section 12 of the Framework Act provides:
“(1) A senior traditional leader, headman or headwoman may be
removed from office on the grounds of—
(a) conviction of an offence with a sentence of imprisonment for
more than 12 months without an option of a fine;
(b) physical incapacity or mental infirmity which, based on
acceptable medical evidence, makes it impossible for that senior
traditional leader, headman or headwoman to function as such;
(c) wrongful appointment or recognition; or
(d) a transgression of a customary rule or principle that warrants
removal.
(2) Whenever any of the grounds referred to in subsection (1)(a),
(b) and (d) come to the attention of the royal family and the
royal
family decides to remove a senior traditional leader, headman or
headwoman, the royal family concerned must, within a reasonable
time
and through the relevant customary structure—
(a) inform the Premier of the province concerned of the particulars
of the senior traditional leader, headman or headwoman to
be removed
from office; and
(b) furnish reasons for such removal.
(3) Where it has been decided to remove a senior traditional leader,
headman or headwoman in terms of subsection (2), the Premier
of the
province concerned must, in terms of applicable provincial
legislation—
(a) withdraw the certificate of recognition with effect from the
date of removal;
(b) publish a notice with particulars of the removed senior
traditional leader, headman or headwoman in the Provincial Gazette;
and
(c) inform the royal family concerned, the removed senior
traditional leader, headman or headwoman, and the provincial house
of traditional leaders concerned, of such removal.
(4) Where a senior traditional leader, headman or headwoman is
removed from office, a successor in line with customs may assume
the
position, role and responsibilities, subject to section 11.”
[32]
See
Mamogale
above n 16.
[33]
Id at paras 19-20.
[34]
23 of 1978.