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[2018] ZACC 28
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Sigcau and Another v Minister of Cooperative Governance and Traditional Affairs and Others (CCT167/17) [2018] ZACC 28; 2018 (12) BCLR 1525 (CC) (11 September 2018)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
167/17
In the matter
between:
WEZIZWE FEZIWE
SIGCAU
First
Applicant
LOMBEKISO
MAKHOSATSINI MASOBHUZA
SIGCAU
Second
Applicant
and
MINISTER OF
COOPERATIVE GOVERNANCE
AND TRADITIONAL
AFFAIRS
First
Respondent
PRESIDENT OF THE
REPUBLIC
OF SOUTH
AFRICA
Second
Respondent
COMMISSION ON
TRADITIONAL
LEADERSHIP
DISPUTES AND
CLAIMS
Third
Respondent
Neutral citation:
Wezizwe Feziwe Sigcau and Another v Minister of Cooperative
Governance and Traditional Affairs and Others
[2018] ZACC 28
Coram:
Zondo
DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J and Petse AJ.
Judgments:
Zondo DCJ (majority): [1] to [66]
Froneman J
(dissenting): [67] to [90]
Heard on:
20
February 2018
Decided on:
11 September 2018
Summary:
Customary law — Traditional Leadership and Governance
Framework Act — Commission on Traditional Leadership Disputes —
statutory interpretation — the steps the President is required
to take in order to immediately implement the decision of
the
Commission on Traditional Leadership Disputes.
ORDER
On appeal from the
Supreme Court of Appeal:
1. The application
for leave to appeal is granted.
2. The appeal is
dismissed.
3. There is no order
as to costs.
JUDGMENT
ZONDO DCJ (Cachalia
AJ, Dlodlo AJ, Goliath AJ, Jafta J, Khampepe J, Madlanga J
and Petse AJ concurring):
Introduction
[1]
Before the Traditional Leadership and Governance Framework
Act
[1]
was amended by the Traditional Leadership and Governance Framework
Amendment Act,
[2]
it created the Commission on Traditional Disputes and Claims
(Commission).
[3]
The Commission’s functions included deciding any traditional
leadership dispute or claim arising out of any province
in terms of
section 25(2) of the unamended Act. Disputes or claims
under section 25(2) included a dispute or claim relating
to “
a
traditional leadership position where the title or right of the
incumbent is contested
”. This appears in section
25(2)(a)(ii). Section 25(2)(a) provided that “[t]he
Commission has authority
to investigate, either on request or of its
own accord” a number of disputes or claims which include a
dispute concerning
a traditional leadership position where the title
or right of the incumbent is contested. Section 25(4) provided:
“The
Commission has authority to investigate all traditional
leadership claims and disputes arising from 1 September 1927, subject
to
subsection (2)(a)(iv)”.
[4]
Section 26(2)(a) of the unamended Act provided that “[a]
decision of the Commission must, within two weeks of the decision
being taken, be conveyed to the President for immediate
implementation in accordance with section 9 or 10 where the
position of a king or queen is affected by such a decision”.
[2]
In this matter, if we grant the applicants leave to appeal, we
will be required to determine the steps that the President was
obliged
to take under the unamended Act to ensure an “immediate
implementation in accordance with section 9 or 10” of a
decision
of the Commission concerning a dispute or claim relating to
a traditional leadership position affecting the position of a king or
queen. The question will be: was the President obliged to take
all the steps in section 9 or 10 or was his obligation no
more than
to publish in the Government Gazette the notice announcing the
decision of the Commission in terms of section 9(2)(a)
and to issue a
certificate of recognition in favour of the person identified by the
Commission as entitled to be king or queen?
The applicants
contend that the President was obliged to follow the whole process in
terms of section 9 or 10 whereas the President
contends that all he
was required to do was to publish the notice contemplated in section
9(2)(a) and to issue the certificate
of recognition in terms of
section 9(2)(b).
Background
[3]
In 2008 the Commission made a decision that the paramountcy of
amaMpondo aseQaukeni constituted a kingship. This meant that
that paramountcy was entitled to have a king. At that time
Paramount Chief Mpondombini Justice Sigcau occupied the position
of
Paramount Chief of amaMpondo aseQaukeni in Lusikisiki, Eastern Cape.
[4]
In April 2006 Mr Zanozuko Sigcau lodged with the Commission a
claim that he was the one entitled to be the king of amaMpondo
aseQaukeni.
That meant that he was challenging the title of
Paramount Chief Mpondombini Justice Sigcau and wanted to be the king
of amaMpondo
aseQaukeni. Since both disputants bear the same
surname, I shall refer to the one as Zanozuko and the other as
Mpondombini.
No disrespect is meant to either of them. I
do so purely for convenience and to ensure a distinction between
them.
Mpondombini contested Zanozuko’s claim. He
maintained that he was entitled to occupy the position he was
occupying
and to be the king of amaMpondo aseQaukeni. The
Commission held public hearings into the dispute. Each side was
allowed
to lead evidence and to cross-examine the witnesses of the
other. Mpondombini was represented by counsel. Zanozuko
had no legal representation. In January 2010 the Commission
made a decision to the effect that Zanozuko was the one entitled
to
be the king of amaMpondo aseQaukeni. That decision was conveyed
to the President in terms of section 26(2)(a) of the unamended
Act.
[5]
The President sought to implement the decision of the
Commission by issuing a notice and a certain certificate under the
amended
Act. The notice was a notice of recognition published
in the Government Gazette. It recognised Zanozuko as the king
of amaMpondo aseQaukeni. The certificate was a certificate of
recognition in terms of section 9(2)(b). This led to
a legal
challenge in
Sigcau 1
[5]
that reached this Court in 2013. That challenge related to,
among others, the questions of whether the notice and certificate
that had been issued and published by the President to implement the
decision of the Commission were valid and whether the decision
of the
Commission fell to be reviewed and set aside. The legal
challenge took the form of a review application that was brought
by
Mpondombini in the North Gauteng High Court, Pretoria (High Court) to
have the notice, the certificate and the Commission’s
decision
reviewed and set aside.
[6]
The High Court dismissed that review application. On
appeal before this Court, this Court limited its decision to the
notice
and certificate that had been issued by the President.
This Court held that the notice and certificate were invalid, upheld
Mpondombini’s appeal, set aside the decision of the High Court
and set aside the notice and certificate. The basis
for that
outcome was that the President had acted under the amended Act when
he should have acted under the unamended Act.
[7]
A month or so before this Court handed down its judgment,
Mpondombini passed away. We were later to explain in
Nxumalo
that the effect of this Court’s decision in
Sigcau 1
was in part that the Commission’s decision stood as it had not
been set aside and that it was, therefore, still pending in
the High
Court.
[6]
It would seem that, since the handing down of this Court’s
judgment in
Sigcau 1
, nothing has been done by anybody to
pursue the application to review and set aside the Commission’s
decision. That
is assuming that, despite Mpondombini’s
passing on, somebody would have
locus standi
(standing)
to pursue the application to have the Commission’s decision
reviewed and set aside. A period of five years
has lapsed since
this Court’s decision in
Sigcau 1
. This case must
be decided on the basis that the decision of the Commission that
Zanozuko is entitled to be the king stands.
[8]
Subsequent to the judgment of this Court in
Sigcau 1
,
Mpondombini’s family held a meeting on the basis that they are
the royal family for amaMpondo aseQaukeni and they nominated
Wezizwe
Feziwe Sigcau, a daughter of Mpondombini, to succeed her father as
the queen. The nomination was conveyed to the
Premier of
the Eastern Cape and the President. The President was
then called upon to recognise Wezizwe as the queen
of amaMpondo
aseQaukeni and issue a certificate of recognition in her favour.
[9]
The President did not see his way clear to recognising Wezizwe
as he believed that he was required to implement the earlier decision
of the Commission. He thought that all that the decision
entailed was that he should publish the requisite notice of
Zanazuko’s
recognition in the Government Gazette and issue a
certificate of recognition in favour of Zanozuko under the unamended
Act.
Wezizwe and her mother, the second applicant, disagreed
with this view.
High Court
[10]
The President brought an application in the High Court of
South Africa, Gauteng Division, Pretoria for an order clarifying his
legal
obligations once the decision of the Commission had been
conveyed to him. The High Court upheld the President’s
interpretation.
It, accordingly, granted an order to the effect
that all the President was required to do was to publish the notice
and issue the
certificate contemplated under section 9(2)(a) and (b)
of the unamended Act.
Supreme Court of
Appeal
[11]
An appeal to the Supreme Court of Appeal failed. The
Supreme Court of Appeal also adopted the interpretation favoured by
the
President and upheld the decision of the High Court.
In this Court
Jurisdiction
[12]
With regard to jurisdiction, this Court has jurisdiction in
this matter for the same reasons upon which this Court relied in
Sigcau 1
to support its conclusion that it had jurisdiction in
respect of that matter.
[7]
In this case, this Court also has jurisdiction because the
matter raises an arguable point of law of general public importance
which ought to be considered by this Court. That point is: what
steps was the President required to take under the unamended
Act, in
order to immediately implement the decision of the Commission that
Zanozuko was the person entitled to be the king of amaMpondo
aseQaukeni?
Leave to appeal
[13]
The applicants have applied to this Court for leave to appeal
against the decision of the Supreme Court of Appeal. The
President
does not oppose the application. The matter raises an
issue of great importance on traditional leadership. The issue
goes beyond the parties before the Court. The prospects of
success are reasonable. In the circumstances, leave to appeal
should be granted.
Appeal
[14]
The applicants contend that, after the Commission had made its
decision, the President was required to allow the whole section 9
process to take place and effect a removal of Mpondombini as king
after the Commission had conveyed its decision to him.
The
President disputes this contention and argues that all that he was
required to do was to publish the section 9(2)(a) notice
in the
Government Gazette announcing the Commission’s decision and
issue a certificate of recognition in favour of Zanozuko
as king in
terms of section 9(2)(b).
[15]
In this matter the Commission made a decision on who should be
the king of amaMpondo aseQaukeni and conveyed it to the President.
Its decision was that Zanozuko, and not Mpondombini, was entitled to
be the king. The Commission concluded that Mpondombini
was not,
in terms of customary law and the customs of the community, entitled
to be the king.
[16]
Section 26(2)(a) of the unamended
Act reads as follows:
“(2) A decision of the Commission must, within two weeks of the
decision being taken, be conveyed to—
(a)
the President for immediate implementation in accordance with section
9 or 10 where the position of a king or queen is affected
by such a
decision.”
Section 10 governs
the requirements and process for the removal of a king or queen from
office. In the present case it is
not necessary to consider
section 10 because it is common cause that the position of king or
queen of amaMpondo aseQaukeni is vacant
and this means that there is
no king or queen who needs to be removed. However, it is
necessary to consider the provisions
of section 9.
[17]
The heading to section 9 is “Recognition of kings and
queens”. Section 9(1)(a) reads:
“(1) Whenever the position of a king or a queen is to be
filled, the following process must be followed:
(a)
The royal family must, within a reasonable time after the need arises
for the position of a king or a queen to be filled, and
with due
regard to applicable customary law—
(i) identify a person who qualifies in terms of customary law to
assume the position of a king or a queen, as the case may be,
after
taking into account whether any of the grounds referred to in section
10(1)(a), (b) and (d) apply to that person; and
(ii) through the relevant customary structure—
(aa)
inform the President, the Premier of the province concerned and the
Minister, of the particulars of the person so identified
to fill the
position of a king or a queen;
(bb)
provide the President with the reasons for the identification of that
person as a king or a queen; and
(cc)
give written confirmation to the President that the Premier of the
province concerned and the Minister have been informed accordingly.”
[18]
Section 9(1)(b) then reads:
“The President must, subject to subsection (3), recognise a
person so identified in terms of paragraph (a)(i) as king or
queen,
taking into account—
(i)
the need to establish uniformity in the Republic in respect of the
status afforded to a king or queen;
(ii)
whether a recognised kingship exist—
(aa) that comprises the areas of jurisdiction of a substantial number
of senior traditional leaders that fall under the authority
of such
king or queen;
(bb) in terms of which the king or queen is regarded and recognised
in terms of customary law and customs as a traditional leader
of
higher status than the senior traditional leaders referred to in
subparagraph (aa); and
(cc) where the king or queen has a customary structure to represent
the traditional councils and senior traditional leaders that
fall
under the authority of the king or queen; and
(iii)
the function
s
that
will b
e
performed
by
the king or queen.”
[19]
It seems appropriate to also quote section 9(2). It
reads:
“(2) The recognition of a person as a king or a queen in terms
of subsection (1)(b) must be done by way of—
(a)
a notice in the [Government
]
Gazette recognising
the person identified as king or queen; and
(b)
the issuing of a certificate of recognition to the identified
person.”
It is also
appropriate to quote section 9(3) and (4) because, although section
9(1)(b) requires the President to recognise as a
king or a queen the
person identified by the royal family, it subjects such recognition
to section 9(3). Subsections (3)
and (4) read:
“(3) Where there is evidence or an allegation that the
identification of a person referred to in subsection (1) was not done
in terms of customary law, customs or processes, the President—
(a)
may refer the matter to the National House of Traditional Leaders for
its recommendation; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to the royal family for reconsideration
and resolution where the certificate of recognition has been
refused.
(4) Where the matter that has been referred back to the royal family
for reconsideration and resolution in terms of subsection
(3) has
been reconsidered and resolved, the President must recognise the
person identified by the royal family if the President
is
satisfied that the reconsideration and resolution by the royal family
has been done in accordance with customary law.”
[20]
Section 26(2)(a) provides that the Commission conveys its
decision to the President for “immediate implementation in
accordance
with section 9 or 10 where the position of king or queen
is affected by such a decision”. The dispute between the
parties
now is what it is that the President must do to ensure the
“immediate implementation” of the Commission’s
decision
in accordance with section 9 or 10 when the position of a
king or queen is affected. This requires that we determine the
meaning of the phrase “immediate implementation in accordance
with section 9 or 10 where the position of a king or queen is
affected by such a decision”.
[21]
We must interpret the phrase purposively, paying due regard to
the language of the statute, its objects, the purpose of section 26
and the context in which the phrase is used. The unamended
Act’s objects included the provision for:
“the recognition of traditional communities; the establishment
and recognition of traditional councils; a statutory framework
for
leadership positions within the institution of traditional
leadership; recognition of traditional leaders and the removal from
office of traditional leaders; houses of traditional leaders; the
functions and roles of traditional leaders;
dispute resolution and
the establishment of the Commission on Traditional Leadership
Disputes and Claims.
”
[22]
The preamble to the unamended Act reflects the following in
part:
“Whereas the State, in accordance with the Constitution, seeks—
·
to set
out a national framework and norms and standards that will define the
place and role of traditional leaderships within the
new system of
democratic governance;
·
to
transform the institution in line with constitutional imperatives;
and
·
to
restore the integrity and legitimacy of the institution of
traditional leadership in line with customary law and practices;
…
And whereas—
·
the
State must respect, protect and promote the institution of
traditional leadership in accordance with the dictates of democracy
in South Africa;
·
the
State recognises the need to provide appropriate support and capacity
building to the institution of traditional leadership;
·
the
institution of traditional leadership must be transformed to be in
harmony with the Constitution and the Bill of Rights so that—
-
democratic governance and the values of an open and democratic
society may be promoted; and
-
gender equality within the institution of traditional
leadership may progressively be advanced.”
[23]
The unamended Act had seven chapters. Chapter 1 dealt
with the “interpretation and application”. Chapter
2 dealt with the recognition of traditional communities,
establishment and recognition of traditional councils, functions of
traditional
councils, partnerships between traditional councils and
municipalities, support to traditional councils and withdrawal of
recognition
of traditional communities. Chapter 3 dealt with
the recognition and removal of different traditional leaders,
including
regents, deputy traditional leaders and persons acting as
traditional leaders. Chapter 4 dealt with houses of traditional
leaders. Chapter 5 dealt with the roles and functions of
traditional leadership. Chapter 6 was devoted to dispute
resolution and the Commission on Traditional Leadership Disputes and
Claims. Chapter 7 contained general provisions.
[24]
Chapter 6, which dealt with dispute resolution and the
Commission, comprises sections 21 to 26. This means that the
phrase
which we are called upon to interpret, namely, “for
immediate implementation in accordance with section 9 or 10 where the
position of a king or queen is affected” in section 26(2)(a)
appears in the chapter that deals with dispute resolution.
[25]
The Cambridge International Dictionary of English reflects the
meaning of the verb “implement” as being “to put
(a
plan or system) into operation.” The South African
Concise Oxford Dictionary gives the verb “to implement”
the meaning “to put into effect”. If one accepts
that this is the correct meaning of the verb “to implement”
and that the noun “implementation” in section 26(2)(a)
means the act of putting into effect or of putting into operation,
then the phrase “for immediate implementation in accordance
with section 9 or 10 where the position of a king or queen is
affected by such a decision” in that provision means that the
President must put the Commission’s decision into effect
or put
it into operation in accordance with section 9 or 10 where the
position of a king or queen is affected by such a decision.
[26]
If the President were to wait for a process in terms of which
the royal family would identify a person who they think is entitled
to be the king or queen in circumstances where the Commission has
already identified and decided upon such a person, the President
would be failing immediately to put the Commission’s decision
into effect or into operation as required by section 26(2)(a).
In this regard I point out that the dispute resolution process in
section 9(3) which would have to be followed if, after the royal
family had identified the person to assume the position of king,
there was a dispute, may involve the referral of the matter to
the
House of Traditional Leaders. That process could take long
before there was finality. If the President were to
wait for
the invocation of the entire section 9 process, he would be failing
in his section 26(2)(a) duty immediately to implement
the
Commission’s decision. This is so because the invocation
of the whole process may lead to the identification by
the royal
family of a different person from the one decided upon by the
Commission.
[27]
Invoking the entire section 9 process is inconsistent with the
Commission’s decision. That is so because what the royal
family is enjoined to do in terms of section 9(1) is to identify
the person who is entitled in terms of customary law to be
the king
or queen and to be recognised as such under section 9(2)(a) and to be
issued with a certificate of recognition in terms
of section 9(2)(b)
by the President. Likewise, the purpose of the Commission’s
process under sections 25 and 26 is
precisely the same. In
terms of this process the Commission also identifies and decides upon
the person entitled to be the
king or queen in terms of customary
law. It is difficult to understand the proposition that, where
the Commission has already
identified and decided upon such a person
in respect of a kingship or queenship and its decision has not been
set aside, the royal
family may or must open the section 9(1) process
to identify the person entitled to be king or queen. One would
understand
a proposition that the royal family should first invoke
the section 9(1) process and identify the person entitled to be the
king
or queen and that, if, thereafter, there arises a dispute, the
Commission should then come in and resolve the dispute.
However,
to say that, after the Commission has resolved the dispute,
the royal family must still invoke the whole section 9 process and
identify the person to be the king is difficult to understand.
[28]
Section 25 dealt with the functions of the Commission.
The heading of the section was “Functions of Commission.”
Section 25(1) provided that the Commission operated nationally and
had “authority to decide on any traditional leadership
dispute
and claim contemplated in subsection (2) and arising in any
province.” Subsection (2)(a) listed the types
of
disputes or claims that the Commission had authority to decide.
Subsection (2)(b) reflected what had to be done to lodge
a claim or
dispute with the Commission.
[29]
Section 25(3)(a) provided: “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.”
This provision meant that, when the Commission had to decide a
dispute that fell under section 25(2)(a), such as the one that the
Commission decided in this matter, the Commission was enjoined to
apply not just customary law but customary law and the
customs
of the traditional community concerned as at the time of the events
that gave rise to the dispute or claim. Section 25(3)
must be
contrasted with section 9(1)(a)(i). The relevant part of the
latter provision reads:
“The royal family must, within a reasonable time after the need
arises for the position of a king or a queen to be filled,
and
with due regard to applicable customary law—
(i)
identify a person who qualifies in terms of customary law to
assume the
position of a king or a queen, as the case may be,
after taking into account whether any of the grounds referred to in
section
10(1)(a), (b) and (d) apply to that person.”
[30]
The purpose of contrasting section 25(3) with section 9(1)(a)
is to highlight the fact that both the Commission process and the
section 9(1) process have a provision that requires that customary
law be used to determine who qualifies to be the king or queen.
The question that arises is: if, in deciding a dispute or claim
relating to who should be the king or queen, the Commission has
used
or applied customary law and the customs of the traditional community
concerned, why would a process be necessary which requires
the
identification by the royal family of a person to be the king or
queen to be on the basis of customary law? That is effectively
a duplication. Is the better interpretation not one that
implies that the Commission’s decision has resolved the dispute
and, if any interested party feels that the Commission did not apply
customary law and the customs of the traditional community
in
question in deciding the dispute or claim, such party should take the
decision of the Commission on review? I think that
is the more
plausible interpretation than one that says that the whole section
9(1) process must be exhausted because the latter
interpretation
results in the duplication of processes.
[31]
Furthermore, section 9(1) applies to a case where the position
of a king or a queen is to be filled and nobody has been identified
by a lawful authority as the person entitled to be the king or
queen. In this case the Commission has decided who is entitled
to be the king or queen and, as long as it is accepted that the
Commission had power to make that decision, the section 9(1) process
for the identification of a person to be the king or queen is not
applicable. In these circumstances the process in section 9(1)
has no application in a case where the President is required to
ensure an “immediate implementation” of the decision
of the Commission.
[32]
It seems to me that what should have happened after the
Commission had conveyed its decision to the President is captured in
the
phrase “for immediate implementation in accordance with
section 9 or 10 where the position of a king or queen is affected”
in section 26(2)(a). In my view, this phrase articulates the
purpose for which the Commission is required to convey its decision
to the President. This must be viewed against the background
that there would have been a dispute or claim about who should
be the
king or queen or some other traditional leader and the Commission
would now have arrived at a decision to resolve the dispute
or
claim. The decision may say who qualifies to be the king or
queen and/or who does not qualify to be king or queen.
[33]
The purpose of the conveyance of the Commission’s
decision to the President is that the President must take steps to
implement
it immediately. That is why section 26(2)(a)
contains the phrase “for immediate implementation” soon
after
the phrase “convey to the President”. Part of
the effect of section 26(2)(a) is that it places an obligation on
the
President not just to ensure the “implementation” of the
decision of the Commission “in accordance with section
9 or 10”
but also to ensure the “
immediate implementation
[of the
decision]
in accordance with section 9 or 10 where the position of
a king or queen is affected by such a decision
”. This
necessarily means that it is not envisaged that anybody or
functionary will have any role to play or any decision
or step to
take between the time when the decision reaches the President and the
time when it is implemented by the President.
As long as the
decision of the Commission stands, the President may also not do
anything inconsistent with the notion of “immediate
implementation” of the decision of the Commission.
[34]
The President’s obligation is to ensure the “immediate
implementation” of the decision of the Commission “in
accordance with section 9 or 10 where the position of a king or queen
is affected by such a decision.” This phrase
does not
say: “where a king or queen is affected”. It says:
“where the position of a king or queen is affected”.
Accordingly, for purposes of section 26(2)(a) what is relevant is
that the decision of the Commission affects “the position
of a
king or queen”. In the present matter the decision of the
Commission did affect the position of a king.
That being the
case, the President’s obligation to ensure the immediate
implementation of the Commission’s decision
did arise as
soon as he received the decision of the Commission. If, after
the royal family had followed the section 9 process
and had
identified someone as the one entitled to be the king or queen and it
gave that name to the President and the President
recognised that
person and issued a certificate of recognition in his or her favour,
the President would have been implementing
the decision of the royal
family and not that of the Commission despite the fact that section
26(2)(a) obliged the President to
implement the decision of the
Commission.
[35]
Once it is accepted that the decision of the Commission did
affect the position of a king or queen, the next question that arises
is: what did the section 26(2)(a) obligation on the President to
immediately implement the decision of the Commission in accordance
with sections 9 or 10 entail in practical terms? This question
requires the identification of the steps and decisions that
the
section 26(2)(a) obligation required the President to take. It
seems to me that, since it is clear from section 26(2)(a)
that the
obligation to implement the decision immediately is placed on the
shoulders of the President, we must look at sections
9 and 10 to
identify those steps and decisions that can be taken by the President
in those sections and not steps or decisions
that may be taken by
someone else or by certain groups, such as, in this case, the royal
family.
[36]
When we go to sections 9 and 10, we must remember that the
obligation to implement is that of the President and that it is an
obligation
to implement immediately. That means that any step
or decision or procedure in sections 9 or 10 that falls outside the
control
of the President cannot be part of the steps or decisions
that the President is required by his section 26(2)(a) obligation to
take. This is so because, firstly, such a process would not be
up to the President and, secondly, if the President has to
wait for
steps and procedures that must be taken by other people or bodies, he
may be unable to fulfil his section 26(2)(a) obligation
to implement
the decision of the Commission immediately.
[37]
To determine whether the President should first go to section
9 or 10 to take those steps or decisions envisaged in those sections
that are necessary for him to fulfil his section 26(2)(a) obligation,
it is necessary to ascertain what Mpondombini’s status
or
position was before and after the decision of the Commission.
Mpondombini was appointed or installed as a Paramount Chief
of
amaMpondo aseQaukeni in 1978 or thereabout and, therefore, prior to
1994. Section 28(1) of the unamended Act reads as
follows:
“
Any traditional leader who was appointed as
such in terms of applicable provincial legislation and was still
recognised as a traditional
leader immediately before the
commencement of this Act, is deemed to have been recognised as such
in terms of section 9 or 11,
subject to
a decision of the Commission in terms of section 26
.”
(Emphasis added.)
[38]
As Mpondombini was appointed
Paramount Chief prior to 1994, the question whether section 28(1)
applied to him or not depends upon
whether it can be said that he was
appointed as a traditional leader “in terms of applicable
provincial legislation”
and whether he “was still
recognised as a traditional leader immediately before the
commencement” of the unamended
Act. If the answers to
both questions are in the affirmative, then in terms of section 28(1)
he is deemed to have been recognised
by the President as such in
terms of section 9.
[39]
Was Mpondombini appointed as a
traditional leader in terms of “applicable provincial
legislation”? The unamended
Act does not define what
“provincial legislation” or “applicable provincial
legislation” means. It
seems to me that “provincial
legislation” in section 28 bears the same meaning as
“provincial legislation”
in sections 11(1)(b), 11(2),
26(2)(b) and 28(5). In fact, in section 26(2)(b) there is a
reference to “applicable provincial
legislation”, exactly
the same phrase to be found in section 28(1). This suggests
that such provincial legislation
is legislation for which the
relevant provincial government is responsible. That would
normally be legislation that has been
passed by a provincial
legislature. Since Mpondombini was appointed prior to 1994, it
is not clear whether the homeland legislation
in terms of which he
may have been appointed in the Eastern Cape was still operational
immediately before the coming into operation
of the unamended Act
and, if so, whether the phrase “applicable provincial
legislation” in section 28(1) can be said
to include such
homeland legislation.
[8]
[40]
If Mpondombini cannot be said to
have been appointed in terms of applicable provincial legislation as
contemplated in section 28(1),
then he was not a king in terms of the
unamended Act because the definition of “king” in the
unamended Act requires,
among others, that a king be a person
“recognised as such in terms of this Act”. However,
even if Mpondombini
was recognized as king before he died, the fact
that he passed away means that the position is presently vacant.
That means
that there is no need to follow the section 10 removal
procedure. This means that the position is that we need to go
to section
9 to identify the steps or decisions that fall within the
power of the President and which he must take in fulfillment of his
section
26(2)(a) obligation.
[41]
If Mpondombini was recognised as a
king under the unamended Act, then his recognition could only have
been in terms of section 28(1).
Section 28(1) reads as follows:
“
Any traditional leader who was appointed as
such in terms of applicable provincial legislation and was still
recognised as a traditional
leader immediately before the
commencement of this Act, is deemed to have been recognised as such
in terms of section 9 or 11,
subject to
a decision of the Commission in terms of section 26.
”
(Emphasis added.)
It
seems to me that the phrase “subject to a decision of the
Commission in terms of section 26” in section 28(1) means
that
the deemed recognition that was conferred upon Mpondombini would come
to an end if the Commission’s decision was to
the effect that
he was not entitled to be king. This was, of course, the
decision of the Commission.
[42]
It also means that, if the decision
of the Commission was to the effect that he was entitled to be king,
after that decision, he
would then enjoy proper recognition as the
king as opposed to the deemed recognition provided for in section
28(1). In the
light of the decision of the Commission which
held him not to be entitled to be king, Mpondombini’s deemed
recognition as
king ceased upon the issuing of the decision of the
Commission. Accordingly, it was not necessary to remove him as
king as
provided for in section 10. The President did not, on
the facts of this case, have to either initiate, or wait for, the
removal
of Mpondombini as king as part of the steps taken to ensure
the “immediate implementation” of the Commission’s
decision. This means that the President could go straight to
section 9 when seeking to establish what steps or decisions
he was
required to take in order to fulfill his section 26(2)(a)
obligation.
[43]
Although the unamended Act does not
say so expressly, it is implied that the first step that the
President is required to take after
the conveyance of the
Commission’s decision to him is in turn to convey that decision
to the royal family and all concerned.
In a case such as this
one in which, in my view, section 10 does not apply, the President
would then go to section 9 and take those
steps in section 9 that he
may take to carry out his section 26(2)(a) obligation of immediately
implementing the decision of the
Commission. In seeking to
identify the steps or decisions in section 9 that the President must
take in fulfillment of his
section 26(2)(a) obligation I think that
the phrase “in accordance with section 9 or 10” in
section 26(2)(a) necessarily
means in accordance with section 9
or 10
mutatis mutandis
(subject
to necessary changes). In other words, the phrase “in
accordance with section 9 or 10” is to be read
subject to the
necessary changes demanded by the context.
[44]
I also do not think that the phrase
“immediate implementation” in section 26(2)(a) means
the implementation of
the whole section 9 process. It seems to
me that we must attach to section 26(2)(a) an interpretation that is
sensible and
most practicable. The interpretation that says
only the steps contemplated in section 9(2)(a) and (b) are
to be
invoked in the implementation of the Commission’s
decision by the President is the one that is sensible and most
practicable.
[45]
The foundation for the suggestion
that the whole of the section 9 process applies even when the
Commission has made a decision such
as the one it made in this case
is that the Commission’s decision is not final. I do not
agree with this. In
my view, the decision of the Commission is
final and stands unless it is set aside by a court of law on review.
[46]
Section 25(2) of the unamended Act
lists a number of traditional leadership disputes and claims. The
one in section 25(2)(a)(ii)
is a dispute or claim relating to
“a traditional leadership position where the title or
right of the incumbent is contested”.
This case relates
to Zanozuko’s claim that he lodged with the Commission at the
time Mpondombini was occupying the
position of Paramount Chief or,
maybe, when he was the deemed king. That brings Zanozuko’s
claim within the ambit of
a claim contemplated in section
25(2)(a)(ii).
[47]
Section 25(1) conferred upon the
Commission the “authority to decide on any traditional
leadership dispute and claim contemplated
in subsection (2) and
arising in any province”. If, therefore, it is accepted
that Zanozuko’s claim or the dispute
in this case fell within
the ambit of section 25(2)(a)(ii), then it must be accepted that it
was a dispute or claim that the Commission
had authority to decide
under section 25(1).
[48]
If the Commission had power to
decide the claim, and, if it is accepted that it decided the claim or
dispute, that decision cannot
be a provisional decision but it is a
final decision or determination of the dispute that is only subject
to review by a court.
The decision contemplated in section
25(1) which the Commission was required to make is a final decision
or determination
to settle the dispute or claim once and for all.
There is nothing in section 25 that suggests that the decision
contemplated
in section 25(1) is anything other than a final
decision. In my view, this alone militates overwhelmingly
against the
proposition that the decision of the Commission is
provisional pending the decisions contemplated under the section 9
process.
[49]
In any event, the section 9 process
includes an internal dispute resolution process within the royal
family as can be seen from
the provisions of section 9(3) and (4).
That internal dispute resolution process seems to fall within
section
21(1)(a). Section 21(1)(a) reads:
“
Whenever a dispute concerning customary law
or customs arises within a traditional community or between
traditional communities
or other customary institutions on a matter
arising from the implementation of this Act, members of such a
community and traditional
leaders within the traditional community or
customary institution concerned must seek to resolve the dispute
internally and in
accordance with customs.”
[50]
That means that, if there is a
dispute within a royal family as to who is entitled in terms of
customary law to be king or queen
and there are different names, the
royal family must try and resolve that dispute. However,
section 21(1)(b) provides that
“[w]here a dispute envisaged in
paragraph (a) relates to a case that must be investigated by the
Commission in terms of section
25(2), the dispute must be referred to
the Commission, and paragraph (a) does not apply”. Therefore,
the scheme of
the unamended Act is that disputes that fall under
section 25(2) are dealt with by the Commission and not “internally”
as contemplated in section 21(1)(a) and as would happen if the whole
of the section 9 process were to be applied in this matter.
Section 9(3) and (4) would entail that the royal family resolves
the dispute internally if the President refers it back to
the royal
family for reconsideration.
[51]
The above considerations fortify me
in the view that the provision in section 26(2)(a) that the
decision of the Commission
“be conveyed to the President for
immediate implementation in accordance with section 9 or 10 where the
position of a king
or queen is affected by such a decision”
does not mean the implementation of the whole process in section 9.
What it
means is this: section 9 has provisions which must be used to
implement a decision of the royal family under section 9(2)(b) to
recognise a king or queen who has been identified by a royal family.
Those are the provisions that must be invoked by the
President
to implement a decision of the Commission about who is entitled to be
the king or queen. In other words, when section
26(1)(a) refers
to a decision of the Commission being conveyed to the President for
immediate implementation in accordance with
section 9, it simply
means that, for purposes of implementing a decision of the
Commission, the President must use the same provisions
that he or she
would otherwise use when seeking to implement the royal family’s
decision to recognise a king or queen under
section 9 and those
provisions are section 9(2)(a) and (b). The same
provisions are used to implement the decision,
whether the decision
is that of the royal family or that of the Commission.
[52]
This makes sense when one considers
that, prior to the unamended Act, the statutory power to appoint
kings and queens was vested
in the President and the unamended Act
took that decision away and conferred it on the royal family when
there is no dispute but
on the Commission when there is a dispute.
The amended Act has reversed the situation and conferred the
power on the President
when a dispute has been to the Commission and
the Commission only makes a recommendation. Nothing turns on
this amendment.
[53]
Furthermore, by virtue of section
23(1), members of the Commission are required to be “knowledgeable
regarding customs and
the institution of traditional leadership”.
By virtue of section 25(3), “[w]hen considering a dispute or
claim,
the Commission” is required to “consider and apply
customary law and the customs of the relevant traditional community
as they were when the events that gave rise to the dispute or claim”
occurred. If the whole of the section 9 process
applies when
there is already a decision of the Commission, under
section 9(1)(a)(i), (3)(b) and (4) the royal family would
be
obliged to apply customary law to resolve the dispute. Under
section 9(1)(a)(i), the National House of Traditional
Leaders
would also be similarly obliged.
[54]
It seems to me that the approach
that says that, once the Commission has resolved the dispute or claim
applying customary law, the
position is that the immediate
implementation of the decision by the President means invoking the
steps provided for in section
9(2)(a) and (b) is more plausible.
Section 9(2)(a) relates to the publication of a notice in the
Government Gazette recognising
the person decided upon.
Section 9(2)(b) relates to the issuing of a certificate of
recognition to the person decided
upon.
[55]
Understanding section 26(2)(a) in
the way described above would mean that the reference to “the
person identified as king
or queen” in section 9(2)(a) would be
read as “the person favoured by the decision of the Commission
to be king or
queen”. Viewed in this way, the section
26(2)(a) obligation on the President to implement the decision of the
Commission
immediately
in accordance with section 9
mutatis
mutandis
would entail that the
President, must publish a notice in the Government Gazette
recognising the person favoured by the decision
of the Commission as
king or queen
[9]
and issue a certificate of recognition to such person.
[10]
[56]
There are difficulties with the
proposition that, subsequent to the conveyance of the Commission’s
decision to the President,
the royal family would still need to
identify “a person who qualifies in terms of customary law to
assume the position of
a king or queen as the case may be” as
contemplated in section 9(a). The one difficulty is that the
section 9(1) process
is to be initiated by the royal family and not
by the President. That means that that process is out of the
control of the
President and can, therefore, not be a step or process
that the President may take in fulfillment of his section 26(2)(a)
obligation.
Another difficulty is that there could be a long
delay before that process is initiated or completed and that is
inconsistent with
the notion of an “immediate implementation”
of the Commission’s decision by the President as contemplated
in
section 26(2)(a).
[57]
Another difficulty is that the
section 9 process could lead to the identification by the royal
family of a person other than the
one favoured by the decision of the
Commission as the person who is entitled to be king or queen.
If that were to happen,
the President would be put in an untenable
and invidious position where the statute would place two conflicting
obligations upon
him to carry out at the same time in regard to the
same subject matter. The one obligation would be the
President’s
section 26(2)(a) obligation to implement the
decision of the Commission immediately. The other would be the
President’s
obligation in section 9(1)(b) to recognise the
person identified by the royal family as the person entitled to be
king or queen
in terms of customary law. So, while, on the one
hand, section 26(2)(a) obliges the President to implement the
Commission’s
decision in favour of Zanozuko immediately, if the
President were to follow the whole section 9 process in this case,
section 9(1)(b)
would oblige him to recognise the person identified
by the royal family. The result would be that
section 26(1)(a)
would be requiring the President to implement
the decision of the Commission and, therefore, recognise Zanozuko
whereas section 9(1)(b)
would be requiring him to recognise
somebody identified by the royal family and that person might not be
Zanozuko. If the
President were to allow the whole section 9
process to be complied with and the royal family identified somebody
to be the king
or queen who is different from the one identified by
the Commission and the President gave effect to the decision of the
royal
family, he will not be effecting the Commission’s
decision.
[58]
As far as possible, a statute should
not be construed in a manner that produces such a result. In my
view, the President would
be precluded from recognising the person
identified by the royal family as long as the decision of the
Commission stands because
section 26(2)(a) places an obligation upon
him to implement that decision immediately. Accordingly, a
construction of section
26(2)(a) which contemplates that the whole
section 9(1) process is applicable after the Commission’s
decision may lead to
a stalemate between the royal family and the
President whereas the construction that only section 9(2)(a) and (b)
can be applied
in fulfillment of the President’s section
26(2)(a) obligation will not lead to such a stalemate or deadlock.
[59]
Another difficulty with applying the
whole section 9(1) process after the decision of the Commission
relates to section 9(3).
Section 9(3) reads as follows:
“Where there is evidence or an allegation that the
identification of a person referred to in subsection (1) was not done
in accordance with customary law, customs or processes, the
President—
(a)
may refer the matter to the National House of Traditional Leaders for
its recommendation; or
(b)
may refuse to issue a certificate of recognition; and
(c)
must refer the matter back to the royal family for reconsideration
and resolution where the certificate of recognition has been
refused.”
Section
9(3) governs a situation where someone complains that the section
9(1) process of identifying a person to assume the position
of a king
or a queen, as the case may be, was not done “in accordance
with customary law, customs or processes”.
So the
royal family could expedite the section 9(1) process as best
they can, but, once there is such an allegation about
that process,
there is bound to be a delay because section 9(3) gives the President
the discretion to refer the matter to the National
House of
Traditional Leaders or to refuse to issue a certificate of
recognition in which case he is then obliged to refer the matter
back
to the royal family “for reconsideration and resolution”.
Whichever route the President takes, a delay is
bound to occur and
the President will not be able to fulfill his section 26(2)(a)
obligation to implement the decision of the Commission
immediately.
If the statute is construed in a manner which does not include
following the whole section 9(1) process as part
of the “immediate
implementation” of the decision of the Commission, this
difficulty will not arise.
[60]
Furthermore, section 9(4) requires
that, in a case where there was a complaint about the identification
contemplated in section
9(1) and the President referred the matter
back to the royal family for reconsideration and resolution and the
royal family does
resolve the matter, the President is only obliged
to recognise the person identified by the royal family if he is
satisfied that
the reconsideration and resolution of the matter was
done in accordance with customary law. Part of the difficulty
here is
that invoking the section 9(1) process after the decision of
the Commission takes us back to square one, namely, when there is a
dispute about who should be the king or queen – something
that the whole process and decision of the
Commission were meant to
put to an end.
[61]
It is necessary to point out that,
whereas in a section 9(1) process that leads to section 9(3) and (4)
the President is only obliged
to recognise the person if he is
satisfied that the reconsideration and resolution by the royal family
were done in accordance
with customary law, when it comes to a
decision of the Commission it is not a condition precedent that,
before he can recognise
the person favoured by the decision of the
Commission, he should first satisfy himself that the Commission’s
decision is
in accordance with customary law. Instead, he is
simply required to immediately implement the decision of the
Commission.
That this is not a condition precedent in regard to
a decision of the Commission is understandable because one of the
requirements
for the appointment of members of the Commission is that
they should be knowledgeable about customs and the institution of
traditional
leadership.
[62]
I have read the judgment prepared by
my Colleague, Froneman J (second judgment). I only wish to
make two or three points
in regard to the second judgment.
The first is that the interpretation adopted in this judgment does
not deny customary
law its rightful place. The statute itself
requires customary law to be applied in identifying and deciding upon
the person
entitled to be the king or queen. This judgment
simply says that there is no need to repeat that process through
invoking
the entire section 9 process in a case where customary law
has already been applied by a legitimate and lawful body to resolve
precisely this issue.
[63]
Second, as explained elsewhere in
this judgment, the interpretation adopted by the second judgment
could potentially have resulted
in a situation where, after the
Commission had decided upon the person entitled to be the king or
queen, the whole section 9
process was invoked and the
royal family identified a different person as the one entitled to be
the king or queen. This
would have meant that the royal family
and the Commission would have made conflicting decisions on who was
entitled to be
the king or queen. The Commission’s
decision would have been an administrative decision which would have
been binding
on the President and the royal family’s
decision would also have been binding on the President by virtue of
section
9.
Conclusion
[64]
In conclusion I want to make this
point. Sometime after the Commission had announced its decision
that amaMpondo aseQaukeni
met the requirements to be a kingship or
queenship, Zanozuko lodged with the Commission a claim that he was
entitled to be the
king of amaMpondo aseQaukeni. The whole
royal family got to know about the claim. Mpondombini certainly
got to know
about it because he subsequently contested Zanozuko’s
claim and maintained that he was the one entitled to be the king.
This dispute about who was entitled to be the king of
amaMpondo aseQaukeni was then resolved by the Commission after
it had
heard evidence adduced by both sides.
[65]
The decision of the Commission,
after it had taken into account customary law and customs, was that
Zanozuko was the one entitled
to be the king and in effect that
Mpondombini
was not entitled to be the king. That decision of the
Commission has not been set aside. That being the
case, as long
as the decision of the Commission stands, the first applicant cannot
be entitled to be king or queen either.
In the circumstances
the appeal must fail. No costs order should be made against the
applicants in the light of
Biowatch.
[11]
[66]
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.
FRONEMAN J:
Introduction
“
The world changes, revolutionaries die, and
the children forget . . .
Nizilibel’uba nizalwa ngobani?”
[12]
[67]
The question that arises in this
matter is whether the President, when implementing the Commission’s
decision in terms of
section 26(2)(a), is required to comply with the
entirety of sections 9 and 10 or whether he merely has to issue the
notice and
certificate in terms of section 9(2) of the unamended Act.
[68]
In the main judgment the Deputy
Chief Justice concludes that the latter course is the correct one.
I disagree. The text
is reasonably capable of a different
reading. The context and place of customary law under our
Constitution then assumes
great importance. The main thrust of
the applicants’ argument before us was that we should allow
customary law to take
its own course and not repeat the historical
mistake of imposing it in distorted form from above. There is
force in that
argument, as I will attempt to show.
[69]
The facts are not in dispute.
I gratefully adopt the main judgment’s exposition.
Historical
context and constitutional redress
[70]
This Court has recognised the deeply harmful effects that the
distortion of custom by colonial and apartheid authorities has had
on
a community based development of customary law. In
Alexkor
,
[13]
affirmed in the minority judgment in
Bhe
,
[14]
the Court said that:
“
[A]lthough customary law
is supposed to develop spontaneously in a given rural community,
during the colonial and apartheid era
it became alienated from its
community origins. The result was that the term ‘customary
law’ emerged with three
quite different meanings: the official
body of law employed in the courts and by the administration (which .
. . diverges most
markedly from actual social practice); the law used
by academics for teaching purposes; and the law actually lived by the
people.”
[15]
(Footnotes omitted.)
[71]
The Constitution seeks to redress the previous distortions of
customary law. Sections 211 and 212 elevate the status of
customary
law to a system that works alongside the common law and
international law, subject only to the Constitution:
“Recognition
(1) The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2) A traditional authority that observes a system of customary law
may function subject to any applicable legislation and customs,
which
includes amendments to, or repeal of, that legislation or those
customs.
(3) The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that specifically
deals with customary law.
Role of traditional leaders
(1) National legislation may provide for a role for traditional
leadership as an institution at local level on matters affecting
local communities.
(2) To deal with matters relating to traditional leadership, the role
of traditional leaders, customary law and the customs of
communities
observing a system of customary law—
(a)
national or provincial legislation may provide for the establishment
of houses of traditional leaders; and
(b)
national legislation may establish a council of traditional leaders.”
[72]
While these sections are the starting point for the protection
of custom, they should be read with sections 30 and 31(1) of the
Constitution which protect the right to participate in all aspects of
cultural life. These sections hold that:
“Language and culture
Everyone has the right to use the language and to participate in the
cultural life of their choice, but no one exercising these
rights may
do so in a manner inconsistent with any provision of the Bill of
Rights.
Cultural, religious and linguistic communities
(1)
Persons belonging to a cultural, religious or linguistic community
may not be denied the right, with other members of that community—
(a) to enjoy their culture, practise their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.”
[73]
The Court recognises customary law as being a form of “living
law”. It has held that a flexible and fluid approach
to
interpretation that is alive to the changing traditions of the
particular people who practice the specific custom must be favoured
over one that views customary law as fixed.
Shilubana
established that the starting point for interpreting customary law
should be the history and long standing traditions of the community.
Courts must “consider the traditions of the community
concerned”
[16]
and it was emphasised that this means that courts must look at “the
practice of a particular community [that] is relevant
when
determining the content of a customary-law norm”.
[17]
[74]
In
Shilubana
it was further held that:
“It is important to respect the right of communities that
observe systems of customary law to develop their law. This
is
the second factor that courts must consider. The right of
communities under section 211(2) includes the right of traditional
authorities to amend and repeal their own customs. As has been
repeatedly emphasised by this and other courts, customary
law is by
its nature a constantly evolving system. Under pre-democratic
colonial and apartheid regimes, this development
was frustrated and
customary law stagnated. This stagnation should not continue,
and the free development by communities
of their own laws to meet the
needs of a rapidly changing society must be respected and
facilitated.”
[18]
[75]
The flexible nature of customary law, while profoundly
different to other legal systems, has been lauded as an enriching
factor
in our law. In
Bhe,
the Court held that:
“The positive aspects of
customary law have long been neglected. The inherent
flexibility of the system is but one of
its constructive facets.
Customary law places much store in consensus-seeking and naturally
provides for family and clan
meetings which offer excellent
opportunities for the prevention and resolution of disputes and
disagreements. Nor are these
aspects useful only in the area of
disputes. They provide a setting which contributes to the unity
of family structures and
the fostering of cooperation, a sense of
responsibility in and of belonging to its members, as well as the
nurturing of healthy
communitarian traditions such as
ubuntu
.
These valuable aspects of customary law more than justify its
protection by the Constitution.”
[19]
[76]
If we are serious about giving
customary law its rightful place under the Constitution, it would be
prudent to allow it to develop
in its own intrinsic way in accordance
with the fundamental values and rights protected in the Constitution.
Relevant
provisions of the unamended Act
[77]
The unamended Act created a
Commission of Inquiry which was tasked with addressing conflicts over
claims to traditional leadership
positions.
[20]
Section 25 established the powers of the Commission. The
following subsections are relevant:
“(2)(a) The Commission has authority to investigate, either on
request or of its own accord—
. . .
(ii)
a traditional leadership position where the title or right of the
incumbent is contested;
. . .
(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.”
[78]
Section 26(2)(a) of the Act provides that:
“A decision of the Commission must, within two weeks of the
decision being taken, be conveyed to—
. . .
(a) the President for immediate implementation in accordance with
section 9 or 10 where the position of a king or queen is affected
by
such decision.”
[79]
Section 9 is of importance here.
[21]
It reads:
“(1) Whenever the position of a king or a queen is to be
filled, the following process must be followed:
(a)
The royal family must,
within a reasonable time after the need arises for the position of a
king or a queen to be filled, and with
due regard to applicable
customary law
—
(i)
identify a person who
qualifies in terms of customary law to assume the position of a king
or a queen, as the case may be, after
taking into account whether any
of the grounds referred to in section 10(1)(a), (b) and (d) apply to
that person; and
(ii)
through the relevant
customary structure
—
(aa)
inform the President, the Premier of the province concerned and the
Minister, of the particulars of the person so identified
to fill the
position of a king or a queen;
(bb)
provide the President and the Minister with reasons for the
identification of that person as king or queen;
(cc)
give written confirmation to the President that the Premier of the
province concerned and the Minister have been informed accordingly;
(b)
The President must, on the recommendation of the Minister and subject
to subsection (3), recognise a person so identified in
terms of
paragraph (a)(i) as king or queen, taking into account
—
(i)
the need to establish
uniformity in the Republic in respect of the status afforded to a
king or queen;
(ii)
whether a kingship or
queenship has been recognised in terms of section 2A; and
(iii)
the functions that will
be performed by the king or queen.
(2) The recognition of a person
as a king or a queen in terms of subsection (1)(b) must be done by
way of
—
(a)
a notice in the Gazette
recognising the person identified as king or queen; and
(b)
the issuing of a
certificate of recognition to the identified person.
(3) Where there is evidence or
an allegation that the identification of a person referred to in
subsection (1) was not done in terms
of customary law, customs or
processes, the President on the recommendation of the Minister
—
(a)
may refer the matter to
the National House of Traditional Leaders for its recommendation; or
(b)
may refuse to issue a
certificate of recognition; and
(c)
must refer the matter
back to the royal family for reconsideration and resolution where the
certificate of recognition has been
refused.
(4) Where the matter that has
been referred back to the royal family for recognition and resolution
in terms of subsection (3) has
been reconsidered and resolved, the
President on the recommendation of the Minister must recognise the
person identified by the
royal family if the President is satisfied
that the reconsideration and resolution by the royal family has been
done in accordance
with customary law.”
Discussion
and analysis
[80]
The main judgment concludes that the
“immediate implementation in accordance with section 9 or 10”
of the Commission’s
decision would be undermined if the whole
process of referral to the royal family had to be followed.
[22]
But that begs the question of what the proper process under section 9
is.
[23]
Textually it can be the full process of referral to the royal family,
or merely the notice and certificate procedure of section
9(2).
[81]
One of the arguments in favour of
the mere “notice and registration” procedure is that it
brings immediate finality
to the dispute. Another is that it is
inconceivable that it was envisaged that the royal family route could
nevertheless,
after the Commission’s decision, override that
decision. While that approach is undoubtedly attractive, some
caution
is necessary.
[82]
First, history warns us that
so-called final determinations not grounded in community approval are
unlikely to last. This
case is a good example. The
current dispute has run for some eighty years.
[24]
What makes us so certain that this Court’s determination will
be the end of the road?
[83]
Second, we should be wary of the
assumption that allowing the royal family to be consulted in terms of
section 9 will necessarily
result in an outcome at odds with the
Commission’s decision. If a correct understanding of the
composition of the royal
family and its traditional democratic role
of looking after the interests of its subjects is given proper
thought and currency
by all, that need not be the case. The
composition of the royal family should not be determined by a
particular faction.
It should be inclusive. The royal
family must, in its traditionally democratic ways, determine the
future king or queen in
the interests of its subjects and not in the
material interests of a particular faction. None of these
important aspects
for the development of customary law in accordance
with the Constitution have yet been given appropriate attention.
[84]
So, there is something to commend
making haste slowly. If both current factions understand that
they must act as a royal family
for the benefit of all their subjects
and not merely for themselves or their particular faction, is it not
premature for a court
to deny customary law the chance to identify a
king or queen in its own “living” way?
[85]
In
Bhe
, Langa DCJ held:
“Quite clearly the Constitution itself envisages a place for
customary law in our legal system. Certain provisions
of the
Constitution put it beyond doubt that our basic law specifically
requires that customary law should be accommodated, not
merely
tolerated, as part of South African law, provided the particular
rules or provisions are not in conflict with the Constitution.
. . .
It follows from this that customary law must be interpreted by the
courts, as first and foremost answering to the contents
of the
Constitution. It is protected by and subject to the
Constitution in its own right.”
[25]
[86]
The constitutional protection of customary law “in its
own right” and as a set of norms that “first and foremost
answer to the contents of the Constitution” has important
implications. It requires the proper investigation of the
applicable rules of customary law within its own context. It
also means that legislation must not be given broad interpretations
over issues that fall within the domain of custom and traditional
societies.
[87]
In
Shilubana
, it was held that a court must “consider
the traditions of the community concerned”.
[26]
Courts must “respect the right of communities that observe
systems of customary law to develop their law”.
[27]
But it is a two-way process. Customary law must also
“answer to the contents of the Constitution”. And
the Constitution protects fundamental rights and a system of
democratic government that ensures accountability, responsiveness
and
openness. So, just as the courts and the other arms of
government must provide customary law with the space to develop
in
accordance with its traditions, so must the custodians of customary
laws, traditional leaders and their subjects alike, ensure
that those
fundamental values of the Constitution are given content in customary
law. And that should not be difficult to
do. Colonialism
and apartheid prevented customary law from giving content to its own
inherently democratic and participatory
processes. Those
shackles are no longer there.
[88]
Not only, then, is an interpretation of section 26(2)(a) of
the unamended Act to the effect that the President must
comply
with the entirety of sections 9 and 10 textually sound, but it also
gives due and proper recognition to customary law communities
to
develop customary law in their own way in accordance with
constitutional values. “Living” customary law also
means giving life to the Constitution by traditional communities. It
is a huge responsibility, but courts and other arms
of government
should allow time for traditional communities to fulfil it.
Section 9(1)(a) seems suitably geared to achieve exactly
that.
[28]
[89]
What if the traditional communities fail to develop their
customary law in accordance with constitutional values? Well,
then
the President must follow the process under section 9(3) and
(4). Admittedly that is a longer process than the finality the
main judgment favours, but it has the dual virtues of being both
consistent with the text of the Act and in keeping with traditional
notions of consultation and participation.
[90]
I would thus grant leave and allow the appeal with costs, the
costs to include those of two counsel.
For the Applicants:
P M Mtshaulana SC and P G Seleka SC instructed by Webber Wentzel.
For the Respondents:
N Arendse SC and D Borgström instructed by Bhadrish Daya
Attorneys.
[1]
41 of 2003 (unamended Act).
[2]
23 of 2009.
[3]
Section 22 of the unamended Act.
[4]
Subsection 2(a)(iv) is not relevant to the present matter.
This means that a dispute concerning a traditional leadership
position where the title or right of the incumbent is contested fell
within the jurisdiction of the Commission by virtue of section
25(4)
as well.
[5]
Sigcau v President of the Republic of South Africa
[2013]
ZACC 18
;
2013 (9) BCLR 1091
(CC) (
Sigcau 1
).
[6]
Nxumalo v President of the Republic of South Africa
[2014]
ZACC 27
; 2014 JDR 1943 (CC); 2014 (12) BCLR 1457 (CC).
[7]
Sigcau I
above n 5 at para 15:
“From the discussion of the constitutional and legal framework
it is apparent that the institution of traditional leadership
and
the determination of who should hold positions of traditional
leadership have important constitutional dimensions. Resolution
of this festering dispute troubling the amaMpondo needs to be
constitutionally clarified. It is in the interests of justice
to do so.”
[8]
In
Khohliso v State
[2014] ZACC 33
;
2015 (1) SACR 319
(CC);
2015 (2) BCLR 164
(CC);
Mdodana v Premier of the Eastern Cape
[2014] ZACC 7
;
2014 (4) SA 99
(CC);
2014 (5) BCLR 533
(CC);
and
Weare
v Ndebele
N.O.
[2008]
ZACC 20
;
2009 (1) SA 600
(CC)
;
2009 (4) BCLR 370
(CC) this Court dealt with the question whether certain
pre-1994 legislation that applied in so called “independent
states” or in certain parts of the country under apartheid
constituted provincial legislation.
[9]
Section 9(2)(a).
[10]
S
ection 9(2)(b).
[11]
Biowatch Trust v Registrar Genetic Resources and Others
[2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC).
[12]
Lyrics from Thandiswa Mazwai’s song
Nizalwa Ngobani
.
Thandiswa Mazwai is a black woman, renowned for bringing traditional
isiXhosa music into the mainstream.
“Nizilibe’uba
nizalwa ngobani?” literally translates as “Have you
forgotten who your forefathers are?”
The full lyrics can
be found at:
https://genius.com/Thandiswa-mazwai-nizalwa-ngobani-lyrics.
[13]
Alexkor Ltd v Richtersveld Community
[2003] ZACC 18
;
2004 (5)
SA 460
(CC);
2003 (12) BCLR 1301
(CC) (
Alexkor
) at footnote
51.
[14]
Bhe v Khayelitsha Magistrate (Commission for Gender Equality as
Amicus Curiae); Shibi v Sithole; South African Human Rights
Commission
v President of the Republic of South Africa
[2004]
ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC).
[15]
Id at para 151.
[16]
Shilubana v Nwamitwa
[2008] ZACC 9
;
2009 (2) SA 66
(CC),
2008
(9) BCLR 914
(CC) at para 44.
[17]
Id at para 46.
[18]
Id at para 45.
[19]
Bhe
above n 14 at para 45.
[20]
Section 22 reads:
“(1) There is hereby established a commission known as the
Commission on Traditional Leadership Disputes and Claims.
(2) The Commission must carry out its functions in a manner that is
fair, objective and impartial.”
[21]
For the reasons given in the main judgment I agree that section 10
is not of application.
[22]
Main judgment at [56].
[23]
I agree that section 10 is not applicable.
[24]
Sigcau I
above n 5 at para 3 recorded:
“That dispute erupted in 1937 after the then
ikumkani
,
Mandlonke, died without leaving male issue. This led to
competing claims between two of Mandlonke’s brothers, Botha
and Nelson Sigcau. The dispute was statutorily settled
when Botha Sigcau was recognised as the ‘paramount chief’
of the Eastern Pondo in terms of the Black Administration Act.”
[25]
Bhe
above n 14 at para 41.
[26]
Shilubana
above n 16 at para 44.
[27]
Id at para 45.
[28]
A reminder that section 9(1)(a) states that—
“The royal family must, within a reasonable time after the
need arises for the position of a king or a queen to be filled,
and
with due regard to applicable customary law—
(i) identify a person who qualifies in terms of customary law to
assume the position of a king or a queen, as the case may be,
after
taking into account whether any of the grounds referred to in
section 10(1)(a), (b) and (d) apply to that person; and
(ii) through the relevant customary structure—
(aa) inform the President, the Premier of the province concerned and
the Minister, of the particulars of the person so identified
to fill
the position of a king or a queen;
(bb) provide the President and the Minister with reasons for the
identification of that person as king or queen;
(cc) give written confirmation to the President that the Premier of
the province concerned and the Minister have been informed
accordingly.”