CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 174/20
In the matter between:
KGABAGARE DAVID LANGA Applicant
and
PREMIER, LIMPOPO First Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR
COOPERATIVE GOVERNANCE, HUMAN
SETTLEMENTS AND TRADITIONAL
AFFAIRS, LIMPOPO Second Respondent
RALUSHAI COMMISSION OF INQUIRY Third Respondent
KGATLA COMMISSION OF INQUIRY Fourth Respondent
HANS MASEBE LANGA Fifth Respondent
Neutral citation: Langa v Premier, Limpopo and Others [2021] ZACC 38
Coram: Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J,
Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J
Judgment: Theron J (unanimous)
Heard on: 13 May 2021
Decided on: 5 November 2021
2
ORDER
On appeal from the High Court of South Africa, Limpopo Division, Polokwane, the
following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order granted by the High Court is set aside and replaced with the
following:
“(a) The first respondent’s Notice 4 of 2017 in Provincial Gazette 2843
of 8 August 2017 is unlawful, invalid and set aside.
(b) The first respondent’s Notice 5 of 2017 in Provincial Gazette 2845
of 16 August 2017 is unlawful, invalid and set aside.
(c) The orders in paragraph (a) and (b) above will apply from the date
of this order.”
5. The first respondent must pay the applicant’s costs in both the High Court
and in this Court, including the costs of two counsel.
JUDGMENT
THERON J (Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ,
Tlaletsi AJ and Tshiqi J concurring):
Introduction
[1] The applicant in this matter seeks leave to appeal against the order and judgment
of the High Court of South Africa, Limpopo Division, Polokwane (High Court), in
which the High Court dismissed an application to review and set aside the Premier of
the Limpopo Province’s decision to remove the applicant as the senior traditional leader
3
of the Mapela Traditional Community and recognise the fifth respondent as senior
traditional leader in his stead.
[2] The applicant, Mr Kgabagare David Langa, was appointed as senior traditional
leader of the Mapela Traditional Community in 2009 . The first respondent is the
Premier of the Limpopo Province, who issued the applicant’s certificate of recognition
as senior traditional leader. T he second responden t, the Member of the Executive
Council for the Department of Co -operative Governance, Human Settlement and
Traditional Affairs in Limpopo Province (Department), is the political overseer of the
Institution of Traditional Leadership of Limpopo Province. Th e third respondent, the
Ralushai Commission of Inquiry, and the fourth respondent, the Kgatla Commission of
Inquiry, were delegated provincial committees established to deal with disputes and
claims of chieftainship in Limpopo Province. The fifth respondent, Mr Hans Masebe
Langa, was recognised by the Premier as the senior traditional leader of the Mapela
Traditional Community in 2017 upon the removal of the applicant as senior traditional
leader. The first, second, third and fourth respondents filed an answering affidavit in
the High Court but have not filed papers in this Court.
[3] Before canvassing the factual background against which the present dispute must
be understood , it is necessary to set out the legal framework that regulates the
appointment and removal of senior traditional leaders in Limpopo Province.
Legislative scheme
[4] The appointment and removal of traditional leaders in Limpopo Province is
governed by overlapping provincial and national legislation. The relevant national
legislation is the Traditional Leadership and Governance Framework Act 1
(Framework Act), which was amended by the Traditional Leadership and Governance
Framework Amendment Act2 (2009 Amendment Act). The Framework Act anticipates
1 41 of 2003.
2 23 of 2009.
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the promulgation of provincial legislation dealing with traditional leadership, and in
Limpopo Province that legislation is the Limpopo Traditional Leadership and
Institutions Act 3 (Limpopo Act). Section 2 (1) of the Limpopo Act makes the
Limpopo Act subject to the Framework Act.
[5] Both the Framework Act and the Limpopo Act require executive sanction for the
appointment and removal of traditional lead ers. Under the Framework Act, the
appointment and removal of a king or queen falls within the purview of the President of
the Republic, 4 whereas the appointment and removal of senior traditional leaders ,
headmen or headwomen is within the remit of the Premier of the relevant province.5
Appointment of traditional leaders
[6] Section 12 of the Limpopo Act, which mirrors section 11 of the Framework Act,
regulates the recognition of senior traditional leaders by the Premier:
“12 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 structu re of the traditional
community concerned and after notifying the traditional council,
inform the Premier of the particulars of the person so identified
3 6 of 2005.
4 Sections 9 and 10 of the Framework Act.
5 Id sections 11-2.
5
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.
(2) Where there is evidence or an allegati on that the identification of a person
referred to in subsection (1) was not done in accordance with customary law,
customs or processes, the Premier—
(a) may refer the matter to the provincial house of traditional leaders and
the relevant local house of tradi tional leaders for their
recommendations; 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.
(3) Where the matter which has been referred back to the royal family for
reconsideration and resolution in terms of subsection (2) has been reconsidered
and resolved, the Premier must recognise the person identified by the royal
family if the Premier is satisfied that the re consideration and resolution by the
royal family has been done in accordance with customary law.”
[7] Section 12(1) is concerned with recognition at the instance of a royal family,
which is given effect to by the Premier in terms of section 12(2) . Notably, section 12
does not make provision for the appointment of a traditional leader at the instance of,
or pursuant to a recommendation or decision by a Commission established in terms of
the Framework Act.
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Removal of a traditional leader
[8] Section 13 of the Limpopo Act, which mirrors section 12 of the Framework Act,
sets out the procedure for relieving someone of their royal duties . It reads in relevant
part:
“13 Relief of royal duties
(1) Relief of royal duties shall be 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 t o function
as such;
(c) wrongful appointment or recognition;
(d) a transgression of a customary rule or principle that warrants
removal; or
(e) persistent negligence or indolence in the performance of the
functions of his or her office.
(2) Whenever any of the grounds ref erred to in subsection (1)(a), (b), (d)
and (e) 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 must—
(a) withdraw the certificate of recognition with effect from the
date of removal;
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(b) publish a notice with particulars of the removed senior
traditional leader, headman or headwoman in the Gazette; and
(c) inform the royal family concerned, the removed senior
traditional leader, headman or headwoman, and the provincial
house of traditional leaders as well as the relevant local house
of traditional leaders of such removal.”
[9] Section 13(2) draws a distinction between removal on any of the grounds
referred to in subsection 1(a), (b), (d) and (e), on the one hand, and removal on the
ground of wrongful appointment or recognition (subsection 1(c)), on the other. In the
case of the for mer (removal for a reason other than wrongful appointment or
recognition), section 13(2) says that when any of the listed grounds come to the
attention of the royal family, they must inform the Premier of the particulars of the
relevant leader and furnish reasons for the removal. When there has been a decision by
a royal family to remove a leader in terms of section 13(2), the Premier, acting in terms
of section 13(3), must withdraw the leader’s certificate of recognition, publish a notice
of the withdrawal in the Gazette and inform the royal family and the Provincial House
of Traditional Leaders (Provincial House) of the withdrawal. It is significant, at this
stage, to note that section 13 is silent on the procedure to be followed when removal is
on the ground of wrongful appointment or recognition envisaged in section 13(1)(c).
Disputes concerning traditional leadership
[10] The Framework Act makes provision for the investigation of disputes concerning
traditional leadership by Commissions constituted either in terms of section 22 or
section 26A of the Framework Act.6 Section 26A establishes provincial committees to
deal with disputes and claims relating to traditional leadership, whose members are
appointed by the Premier by notice in the Provincial Gazette. In terms of
section 25(2)(a), a Commission has the authority to investigate a traditional leadership
6 Section 21 of the 2009 Amendment Act, which inserted section 26A of the Framework Act. Where the
Framework Act uses the word “Commission”, it refers either to a provincial committee established under
section 26A of the Framework Act, which operates provin cially, or the Commission on Traditional Leadership
Disputes established under section 22 of the Framework Act, which operates nationally.
8
position where the title or right of the incumbent is contested. Both the Ralushai and
Kgatla Commissions were delegated the authority to inves tigate and make
recommendations on traditional leadership disputes and claims in Limpopo Province,
including in respect of traditional leadership disputes in the Mapela Traditional
Community. Whereas the Ralushai Commission was formed before the promulgat ion
of the Framework Act in 2003, the Kgatla Commission derived its authority from
section 26A of the Framework Act.7
[11] Both the Limpopo Act and the Framework Act regulate the possible
implementation of recommendations made by a Commission constituted in terms of
either section 22 or section 26A of the Framework Act. As I explain below, the relevant
provisions in each Act deal with a different leg of the process by which a
recommendation by a Commission may be implemented by the Premier.
[12] Section 26 of the Framework Act provides:
“26 Recommendations of Commission
(1) A recommendation of the Commission is taken with the support of at least two
thirds of the members of the Commission.
(2) A recommendation of the Commission must, within two weeks of the recommendation
being made, be conveyed to—
(a) the President and the Minister where the position of a king or queen is
affected by such a recommendation; and
(b) the relevant provincial government and any other relevant functionary to which
the recommendation of the Commission applies in accordance with applicable
provincial legislation insofar as the consideration of the recommendation does
7 The Kgatla Commission (whose full title is the Limpopo Provincial Committee of the Commission on Traditional
Leadership Disputes and Claims) was established in terms of section 26A(1) of the Framework Act. The Premier
of Limpopo appointed four members of the Provincial Committee in terms of section 26A(2)(a) of the
Framework Act and the Minister of Co-operative Governance and Traditional Affairs appointed a member of the
Commission as chairperson in terms of section 26A(3) of the Framework Act, thus making a five -member
committee.
9
not relate to the recognition or removal of a king or queen in terms of section 9,
9A or 10.
(3) The President or the other relevant functionary to whom the recommendations
have been conveyed in terms of subsection (2) must, within a period of 60 days,
make a decision on the recommendation.
(4) If the President or the relevant functionary takes a decision that differs with the
recommendation conveyed in terms of subsection (2), the President or the relevant
functionary as the case may be must provide written reasons for such decision.”
[13] Notably, before the Framework Act was amended by the 2009 Amendment Act,
section 26 referred to the implementation of a “decision” of a commission. Section 26
of the Framework Act now refers to a “recommendation” made by a commission. This
amendment was not reflected in section 30 of the Limpopo Act, which purports to
regulate the implementation of “decisions” taken by a commission in terms of
section 26(2) of the Framework Act. It provides:
“(1) The Premier must, within seven days of receipt of the decision of the
commission in terms of section 26(2) of the Framework Act, refer such
decision to the provincial house of traditional leaders for its advice on
implementation.
(2) The provincial house of traditional leaders must submit its advice contemplated
in subsection (1) to the Premier within 14 days of receipt: Provided that the
Premier may, if he or she deems it necessary, require the provincial house of
traditional leaders to submit its advice within a specified shorter period.
(3) The Premier must im plement the decision of the commission within 30 days
of receipt of such decision from the commission.” (Emphasis added.)
[14] The applicant accepts – and I do not understand the fifth respondent as seriously
disputing – that the word “decision” in section 30 can be read as “recommendation”.
I agree. By cross-referring to “the decision of the commission in terms of section 26(2)
of the Framework Act ”, section 30(1) imports the change of language from
“recommendation” to “decision”.
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[15] At the hearing of this matter, there was an extensive debate as to the interplay
between section 26 of the Framework Act and section 30 of the Limpopo Act. It seems
clear to me that, properly construed, the two provisions regulate different matters.
Section 26 of the Framework Act regulates the Premier’s decision whether to approve
a recommendation made by a Commission. Section 26(4 ) makes it clear that the
Premier is entitled to take a decision that differs with the Commission’s
recommendation and then provide written reasons for that decision . Section 26(5)(a)
then imposes on the Premier an obligation to provide the President and the Minister
with a report on the implementation of decisions she has made on the recommendations
of the Commission. This s eems to be a clear indication that there is a distinction
between the Premier’s decision on the recommendation of the Commission, on the one
hand, and the implementation of that decision, on the other. And this is where
section 30 of the Limpopo Act comes in. The section, which is headed “Implementation
of decisions of c ommission”, requires, as a first step, that the Commission’s
recommendation be referred to the Provincial House for its advice on implementation.8
[16] Together, section 26 of the Framework Act and section 30 of the Limpopo Act
empower the Premier to take a decision on a recommendation made by a commission
and to implement that recommendation, provided the requirements of each provision
are met.
Background to the present dispute
[17] At the heart of this appeal is a leadership dispute that has pitted the applicant and
fifth respondent against each other as rival claimants to the position of senior traditional
leader of the Mapela Traditional Community. This dispute was referred to the Ralushai
and Kgatla Commissions, which both recommended the recognition of the fifth
respondent as senior traditional leader . The applicant has denied the correctness of
these recommendations. As such, it is not possible to set out a common cause account
of the historical antecedents to the dispute between the applicant and fifth respondent.
8 Section 30(1) of the Limpopo Act.
11
However, because the applicant’s challenge to the recommendations made by the
Ralushai and Kgatla Commissions is not properly before this Court, and the correctness
of those recommendations has no bearing on the resolution of the present appeal, I will
not make a finding on this issue, but merely set out this history according to the
overview provided by the Kgatla Commission in its report, which was accepted by the
High Court. Nothing turns on the correctness of this account , which is included here
merely to provide the context within which the Royal Family and the Premier acted to
replace the applicant with the fifth respondent.
[18] Kgoshi Hans Malesela Langa I was the first traditional leader of the
Mapela Traditional Community. He had 29 wives . The applicant’s father, Hendrik
Madikwe Langa, was the progeny of the late Kgoshi Hans Langa I and his fifth wife
and therefore came from the fifth house of the late Kgoshi. Kgoshi Hans Langa I was
succeeded by Alfred Sedibu Langa, who was the first -born son of the late Kgoshi and
his first wife. Th e applicant’s father and Kgoshi Alfred Sedibu Langa were therefore
half-brothers born to different houses.
[19] Kgoshi Alfred Sedibu Langa died in 1937 without male issue to succeed him as
Kgoshi. He was succeeded by his younger brother, Johannes Nkgalabe Lan ga, who
acted as regent until his death in 1957. The death of Johannes Nkgalabe Langa gave
rise to a new line of successors with the nomination of the applicant’s uncle,
Godwin Motape Langa, in 1957. Like the applicant’s father, Godwin’s mother was
the fifth wife of the late Kgoshi Hans Langa I and was thus born from the fifth house
of the late Kgoshi. When Godwin died in 1958, he was succeeded by the
applicant’s father, who was nominated and appointed as acting Kgoshi.
[20] The reign of the applicant’s father ended in 1976 when John Masebe Langa, who
was from the second house of Kgoshi Hans Langa I, was appointed as acting senior
traditional leader of Mapela Community. John Masebe Langa was appointed with the
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sole mandate of cohabiting and having a child with the candle wife ( masechaba),9
Rosina Queen Langa . That child would be the successor to Alfred Sedibu Langa.
The fifth respondent was born out of the cohabitation of John Masebe Langa and
Rosina Queen Langa.
[21] In the wake of unrest instigated b y supporters of the applicant’s father ,
John Masebe Langa was replaced by the applicant’s father, who reigned until his death
in 1990. He was succeeded by his wife Athalia, who ruled as a regent until 2009.10
She was in turn succeeded by her son, the applicant, who was recognised as
senior traditional leader of the Mapela Traditional Community in terms of a certificate
of recognition issued by the Premier, which took effect from 6 November 2009.
[22] In 1997, the Ralushai Commission completed its work and handed its report to
the Premier. In its report, the Commission recommended that the applicant’s mother,
Athalia, be removed as regent and replaced by the fifth respondent on the basis that the
fifth respondent’s appointment would restore the bloodline of Chief Alfred
Sedibu Langa. For reasons which are not apparent from the record before us, t hese
recommendations were not implemented.
[23] In a letter dated 16 January 2009, it appears that the Office of the Premier advised
the District Manager that the same leadership dispute which had been investigated by
the Ralushai Commission had been referred to the Provincial House for hearing.
The letter further stated that the Provincial House approved the finding that the
applicant’s mother “was properly marrie d as a candle wife and that [the applicant] is
the rightful heir to the throne”. The District Manager appears to have forwarded this
letter to the Royal Family on 16 October 2009. On 6 November 2009, the applicant
9 A candle wife is a woman married to a member of the royal family for the sole purpose of producing a male
child.
10 The Framework Act defines “regent” as “any person who, in terms of customary law of the traditional
community concerned, holds a traditional leadership position in a temporary capacity unti l a successor to that
position who is a minor, is recognised”.
13
received a certificate of recognition issued by the Premier in terms of section 12(1)(b)
of the Limpopo Act.
[24] The Kgatla Commission was established in terms of section 26A(1) of the
Framework Act. At some stage, the date of which is not evident from the papers, the
dispute concerning the applicant’s recognition as senior traditional leader was lodged
with the Kgatla Commission . On 23 January 2013 t he Commission gave notice of a
public hearing concerning this dispute.
[25] In a report dated 17 September 2013, the Kgatla Commission recommended that
the applicant be removed from his position as senior traditional leader of the
Mapela Traditional Community in terms of section 12(1)(c) of the Framework Act, read
with section 13(1)(c) of the Limpopo Act (i.e. on the basis of “wrongful appointment
or recognition”) and that the fifth respondent be recognised as senior traditional leader
in terms of section 12(1)(b) of the Limpopo Act. Its recommendation was also based
on a finding that the appointment of the fifth respondent would restore the bloodline of
the original Kgoshi’s son, Alfred Sedibu Langa.
Withdrawal of the applicant ’s certificate of r ecognition and recognition of the
fifth respondent
[26] The correspondence and documents before this Court reveal that the Premier and
various functionaries within the Department and the Premier’s office had a somewhat
murky understanding of the statutory regim e governing the recognition and
appointment of senior traditional leaders. In particular, the correspondence reveals
uncertainty about the role played by the Royal Family where a commission has
recommended the removal of a senior traditional leader and the appointment of another
person in their stead. Some correspondence refers to the Royal Family “identifying”
the senior traditional leader, whereas other correspondence suggests that the
Royal Family’s role is one of implementation only. In view of the conclusions I reach,
the internal correspondence between the Premier and Department officials is of no
moment. All that is germane, for purposes of determining this appeal, is that on
14
8 August 2017 the Premier published a notice in the Provincial Gazette stating that he
recognised the fifth respondent “as senior traditional leader in terms of
section 12(1)(b)(i) of the [Limpopo Act]” (recognition notice). Thereafter, on
16 August 2017, the Premier published a further notice in the Provincial Gazette stating
that “in terms of section 13(3)(b) of the [Limpopo Act]” the applicant “is removed from
office as senior traditional leader” (withdrawal notice). The present matter concerns the
validity of these two notices.
Litigation history
[27] In review proceedings before the High Court, the applicant brought a
wide-ranging attack on the Premier’s decisions to withdraw his certificate of recognition
and to recognise the fifth respondent as senior traditional leader in his stead. He also
sought orders setting aside recommendations by the Ralushai Commission and
Kgatla Commission that the fifth respondent be recognised as senior traditional leader.
The applicant contended that the Premier’s recognition and withdrawal decisions were
ultra vires sections 12, 13 and 30 of the Limpopo Act.
[28] The applicant also pleaded that the issue and withdrawal of a certificate of
recognition amounted to procedurally unfair administrative action in terms of the
Promotion of Administrative Justice Act11 (PAJA). In this regard, the applicant said he
was not given notice of the Premier’s intention to withdraw his certificate of recognition
and was not provided with an opportunity to make representations or given notice of his
right to request reasons or to appeal or review the decision. . Notably, although the
applicant contended in his founding affidavit that the conclusions and recommendations
made by the Ralushai and Kgatla Commissions were “incorrect” and procedurally
unfair, the applican t abandoned these arguments in his replying affidavit in the
High Court.
11 3 of 2000.
15
[29] The High Court dismissed the review application. I t rejected the argument that
the Royal Family’s identification of the fifth respondent did not meet the requirements
of section 12(1)(a) of the Limpopo Act. It noted that the resolution identified the
fifth respondent as “the legitimate one to hold the ti tle” of the original Kgoshi’s
successor. It held that while the word “identify” (which is used in section 12(1)(a)(i))
was not used in the resolution, the use of “acknowledge” sufficed. The High Court also
rejected the contention that the recognition dec ision was nullified because the
Royal Family and the Premier did not inform the Provincial House of the recognition
of the fifth respondent. It found that it was clear from the plain wording of section 12(1)
of the Limpopo Act that the Provincial House plays no role in the identification and
recognition of a chief. The Court held that the Legislature could not have intended that
a failure to inform the Provincial House would nullify the entire recognition process.
[30] The High Court held that section 13(2)(a) is only applicable where the removal
of the traditional leader , or the relief of his royal duties , is at the instance of the
royal family concerned on one of the grounds listed in s ubsections (1)(a), (b), (d)
and (e). It noted that , in this instance, the relief of royal duties was based on
subsection (1)(c).
[31] Finally, the High Court rejected the applicant’s contention that non -compliance
with section 30 of the Limpopo Act invalidates the entire recognition process. It noted
that while section 30(1) is couched in peremptory terms, non-compliance would only
vitiate the decision if, having regard to the subject matter of the prohibition, its purpose
in the context of the legislation, the remedies provided in the event of any breach of the
prohibition, and the nature of the mischief it was designed to remedy or avoid , it
appeared that non-compliance would be visited with nullity. The High Court accepted
that because the Provincial House played no part in the decision -making process, a
failure to notify it did not vitiate the Premier’s recognition of the fifth respondent.
[32] The High Court dismissed the review application and thereafter refused leave to
appeal. The applicant’s further application for leave to appeal was also dismissed by
16
the Supreme Court of Appeal. In this Court, the applicant seeks leave to appeal against
the High Court’s dismissal of his review application.
The applicant’s case in this Court
[33] In the High Court, the applicant sought an order setting aside the Premier ’s
withdrawal and recognition decisions, as well as the decisions of the Kgatla and
Ralushai Commissions. In his replying affidavit before the High Court, the applicant
expressly stated that he was applying to have the decision of the Premier reviewed and
not the decisions of the Commissions. The fifth respondent argues that this amounted
to an abandonment of the applicant’s review against the findings of both Commissions.
[34] In his founding affidavit in this Court, the applicant did not seek to impugn the
findings and decisions of the Commissions. However, in the applicant’s written
submissions, he raises two additional points regarding the lawfulness of the
Kgatla Commission’s recommendations that were not raised in his founding affidavit.
First, he points to the Kgatla Commission’s non -compliance with section 26 of the
Framework Act, which required it to convey its recommendation to the Premier within
two weeks of the recommendation being made . Secondly, he emphasises that the
Kgatla Commission did not have jurisdiction to resolve the present leadership dispute
because the claim was submitted six months after Chapter 6 of the Framework Act came
into operation. He also points to a number of defects in the Commission’s constitution
and approach. In addition – also for the first time in this Court – the applicant contends
that the Kgatla Commission had neither the power to identify a person for recognition
as a traditional leader nor the power to recommend that the applicant be removed from
his position.
[35] Parties are bound by their pleadings and are generally precluded from arguing a
different case than that which they pleaded.12 As mentioned, even though the
12 Minister of Local Government, Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd [2013] ZACC 39; 2014
(1) SA 521 (CC); 2014 (2) BCLR 182 (CC) at para 35 and SATAWU v Garvas [2012] ZACC 13; 2013 (1) SA 83
(CC); 2012 (8) BCLR 840 (CC) at paras 113-4.
17
lawfulness of the Kgatla Commission was raised in the applicant’s notice of motion in
the High Court, the applicant subsequently abandoned, in express terms, any review of
the Commission’s work. The applicant does not challenge the Commission’s findings
in his founding affidavit in this Court and has sought to resuscitate the challenge for the
first time in his written submissions. It follows that his challenge to the constitution of
the Kgatla Commission is not properly before this Court. Moreover, even if this Court
were minded to consider a challenge to the Kgatla Commission’s findings, the record
does not contain the factual information necessary to make a determination on this
question. Th is would also be prejudicial to the respondents, who have not had an
opportunity to fully address the challenge.
[36] The case that is properly before this Court is whether the High Court erred when
it dismissed the applicant’s challenge to the Premier’s decis ion to recognise the
fifth respondent as senior traditional leader of the Mapela Traditional Community ,
which was given effect to by the recognition notice, and the decision to remove the
applicant from the position, which was given effect to by the withdrawal notice.
Jurisdiction and leave to appeal
[37] This matter concerns the lawfulness of the Premier’s recognition of the
fifth respondent as senior traditional leader and removal of the applicant as senior
traditional leader, pursuant to the provisions of th e Framework Act and Limpopo Act.
This determination turns on the proper interpretation of certain provisions of both of
those Acts, which regulate the removal and appointment of senior traditional leaders.
The matter also implicates section 211(1) of the Constitution to the extent that it
concerns the institution of traditional leadership, which this Court has said has
“important constitutional dimensions”. 13 The appeal thus engages this Court’s
jurisdiction. Leave to appeal should be granted on the bas is that the application
13 Sigcau v President of the Republic of South Africa (Centre for Law and Society as amicus curiae) [2013] ZACC
18; 2013 (9) BCLR 1091 (CC) at para 15.
18
implicates a matter of considerable importance to the Mapela Traditional Community ,
and has strong prospects of success, as will become evident.
Lawfulness of the Premier’s withdrawal notice
[38] On 8 August 2017, the Premier published the recognition notice, which stated
that the recognition of the fifth respondent as senior traditional leader was in terms of
section 12(1)(b)(i) of the Limpopo Act. In a further notice published in the
Provincial Gazette on 16 August 2017, the Premier purported to remove the applicant
from office as senior traditional leader in terms of section 13(3)(b) of the Limpopo Act.
[39] The applicant says there are two flaws in the Premier’s withdrawal of the
applicant’s certificate of recognition. The first is that when the Premier issued the notice
in the Provincial Gazette, he purported to act in terms of section 13(3)(b) of the
Limpopo Act, even though that section only becomes applicable when the ground for
removal is any of the grounds listed in section 13(1) other than wrongful appointment
and recognition. In this matter, the withdrawal of the applicant’s certificate of
recognition was “wrongful appointment and recognition”, which means that the Premier
could not have ac ted lawfully in terms of sec tion 13(3) of the Limpopo Act.
The applicant also says that in Tshivhulana14 this Court confirmed that the Premier has
no power to remove a senior traditional leader on the ground of wrongful appointment
or recognition . The second flaw in the withdrawal of the applicant’s certificate of
recognition, according to the applicant, is that the Royal Family did not pass a resolution
in which it decided to relieve the applicant of his duties. In view of the co nclusion I
reach, it is not necessary to delve into the merit of this submission.
[40] The fifth respondent submits that removal on the ground of wrongful
appointment or recognition is excluded from the domain of the Royal Family by virtue
of section 13(2) of the Limpopo Act. And, since the Royal Family was excluded from
recommending removal on the ground of wrongful appointment, it was the Premier who
14 Tshivhulana Royal Family v Netshivhulana [2016] ZACC 47; 2017 (6) BCLR 800 (CC) (Tshivhulana).
19
had to comply with section 13(1)(c). The fifth respondent submits that the Premier thus
acted in terms of se ction 13(1)(c) on the findings and recommendations of the
Kgatla Commission as he was required, and entitled, to do.
[41] I disagree. A Premier’s powers under section 13(3) are triggered only once she
is informed of the royal family’s decision to remove a senior traditional leader on any
of the grounds in section 13(1) other than wrongful appointment and recognition .
In this matter, it i s common cause that the basis for the withdrawal of the applicant’s
certificate of recognition was “wrongful appointment and recognition”. It follows that
the Premier’s section 13(3) powers were not triggered.
[42] But if a Premier is not empowered by section 13(3) to remove a traditional leader
on the grounds of wrongful appointment or recognition, is there another legal basis for
doing so? While section 12(1)(c) of the Framework Act and section 13(1)(c) of the
Limpopo Act clearly authorise the removal of a senior traditional leader on either of
these grounds, these provisions do not prescribe the procedure that must be followed,
nor do they say who is empowered to exercise th is power of removal. However, as I
explain, when these provisions are read with sections 25 and 26 of the Framework Act,
it is clear that the Premier, acting on the recommendation of a commission, has the
power to remove a senior traditional leader on the ground of either wrongful
appointment or recognition.
[43] Section 25(2)(b)(ii) of the Framework Act specifically confers on a commission
the authority to investigate, either on request or of its own accord, a traditional
leadership position where the title or right of the incumbent is contested. Upon
undertaking such an investigation, a commission may very well conclude that the
incumbent does not have a legitimate claim to the position and should be replaced on
the ground that he or she was wrongfully appointed. Section 26 of the Framework Act
then requires the commission to communicate its recommendation to the Premier, who
in turn is obliged to decide whether to accept the recommendation and implement it .
If the Premier decides to accept and implement a recommendation regarding the
20
outcome of a traditional leadership dispute which requires the removal of the incumbent
traditional leader, the removal would be authorised by section 12(1)(c) of the
Framework Act (and section 13(1)(c) of the Limpopo Act, to the extent that it is
applicable). Section 30 of the Limp opo Act (to the extent that it is applicable) would
then empower the Premier to implement the removal.
[44] For completeness, it is necessary to deal with the argument advanced by the
applicant that the effect of this Court’s decision in Tshivhulana is that the Premier does
not ever have the power to remove a senior traditional leader on the basis of wrongful
appointment of recognition. In Tshivhulana, this Court was asked to decide whether a
traditional community is obliged to exhaust the internal remedies prescribed in
section 21 of the Framework Act when its dispute is against the decision of the Premier.
This Court reasoned that because the Premier is a key role-player in the dispute
resolution scheme in section 21, it would be absurd for the traditional community to
pursue a remedy in terms of that scheme. In a dispute concerning allegedly wrongful
appointment or recognition by the Premier, if the section 21 process were to be
followed, the Premier would, in effect, be both a party to, and resolver of, the dispute.15
The Court made the point that it must be correct that the Premier is disqualified from
resolving a dispute concerning wrongful appointment or recognition in terms of
section 21 because the Premier, by virtue of the fact that the Framework Act gives her
the exclusive power to appoint a headman, is also impliedly disqualified from removing
a headman on the ground of wrongful appointment or recognition. 16 The Court also
went on to remark that “[t] he Framework Act does not prescribe a procedure for the
removal of a headman on the ground of wrongful appointment or recognition”. 17
However, apart from being obiter dicta (comments said in passing), when read in their
proper context it is clear that these remarks were made with only the Premier’s powers
under section 12(2) of the Framework Act in mind. The Court was commenting on the
fact that section 12(2) of the Framework Act does not give the Premier the power, at
15 Id at para 40.
16 Id at para 42.
17 Id at para 41.
21
the instance of a royal family, to remove a traditional leader on the ground of wrongful
appointment or recognition. Crucially, the dispute in Tshivhulana did not concern a
removal by the Premier at the instance of a commission and the and the Court did
consider the possibility of removal on the ground of wrongful appointment or
recognition pursuant to a recommendation made by a commission in terms of section 26
of the Framework Act. These obiter statements must be read in context and cannot be
interpreted as denuding the Premier of the power to implement a recommendation made
by a commission to remove a senior traditional leader on the ground of wrongful
appointment or recognition. To read Tshivhulana as precluding the Premier from ever
withdrawing a senior traditional leader’s certificate of recognition on this basis would
effectively neuter the legal force of recommendations made by commissions. Limiting
the holding in Tshivhulana to the Premier’s powers in terms of section 12 (2) of the
Framework Act avoids this absurdity.
[45] In this matter, the Premier could therefore have derived the power to implement
the decision of the Kgatla Commission from sections 13(1)(c) and 30 of the
Limpopo Act, read with sections 25 and 26 of the Framework Act. Instead, the Premier
purported to issue the withdrawal notice in terms of section 13(3)(b) of th e
Limpopo Act. This is significant. In Harris,18 the Minister of Education issued a notice
in terms of section 3(4) of the National Education Policy Act ,19 which purported to
require independent schools to enforce an age requirement for admission of learners to
grade 1. This Court concluded that section 3(4) did not give him the power to do this.
The Minister attempted to argue that even if the notice was not valid under section 3(4),
it was valid under section 5(4) of the South African Schools Act 20 (Schools Act), and
therefore that the mistaken reference to section 3(4) did not render the notice
ultra vires.21 This Court rejected that argument and held t hat it was not open to the
Minister to rely on section 5(4) of the Schools Act “to validated what was invalidly
18 Minister of Education v Harris [2001] ZACC 25; 2001 (4) SA 1297 (CC); 2001 (11) BCLR 1157 (CC) (Harris).
19 27 of 1996.
20 84 of 1996.
21 Harris above n 18 at paras 14-5.
22
done under section 3(4) of the National Education Policy Act”.22 Thus the decision of
the Minister could “not be rescued by reference to powers which the Minister might
possibly have had but failed to exercise under the Schools Act”.23
[46] Thus, if a functionary purports to exercise under one Act a power that that Act
does not confer upon him or her, that exercise of power is unlawful even if there is
another Act that confers such power on the functionary. 24 In this case, the Premier
published a notice in the Provincial Gazette in which he purported to remove the
applicant “in terms of section 13(3)(b)” of the Limpopo Act. There is no suggestion of
an administrative error in the affidavits filed by the Minister. When this apparent
misquote in the Premier’s notice was raised at the hearing of this matter, counsel for the
fifth respondent attempted to argue that the Premier had exercised his power in terms
of section 30 of the Limpopo Act and only had “regard to” section 13. Following this
Court’s approach in Harris, it is not open to the Premier to now place rel iance on
section 30.
[47] It follows that the Premier was not authorised to act in terms of section 13(3)(b),
given that the withdrawal of the applicant was on the ground of wrongful appointment
or recognition.
Conclusion and remedy
[48] In issuing the withdrawal notice, the Premier purported to exercise powers not
conferred on him by section 13 of the Limpopo Act , and accordingly infringed the
constitutional principle of legality. The withdrawal notice is therefore unlawful and
stands to be set aside.
22 Id at para 18.
23 Id.
24 This principle has subsequently been confirmed by this Court in Sigcau above n 13 at para 27 and Nxumalo v
President of the Republic of South Africa [2014] ZACC 27; 2014 (12) BCLR 1457 (CC) at para 14.
23
[49] The notice in which the Premier purported to recognise the fifth respondent must
likewise be set aside because the recognition notice and withdrawal notice are two sides
of the same coin. If the withdrawal notice is set aside, this Court cannot uphold the
recognition notice, since there is nothing in the Limpopo Act which suggests that two
different people can hold the position of senior traditional leader at the same time.
I understood counsel for the fifth respondent accepting as much at the hearing of this
matter. I am fortified in this view by the fact that section 12(1) of the Limpopo Act
envisages that a senior traditional leader is only recognised in terms of the section if
there is a need for the position to be filled. Recognition takes place together with the
withdrawal of the incumbent senior traditional leader’s certificate of recognition. If the
withdrawal notice falls, so too must the recognition notice.
[50] What remains to be determined is whether the notices should be set aside with
prospective or retrospective effect. This Court has previously held that the
retrospectivity of an order of invalidity can be limited “to avoid the dislocation and
inconvenience of undoing transactions, decisions or actions taken under [ the
invalidated] statute”.25 Likewise, limiting the retrospective effect of an order setting
aside an unlawful exercise of public power can protect the interests of persons who have
altered their position on the basis that it was valid and would suffer prejudice if it were
set aside with full retrospective effect. Of course, “even then the ‘desirability of
certainty’ needs to be justified against the fundamental importance of the principle of
legality”.26
[51] In Bengwenyama, this Court endorsed a flexible appro ach for determining an
appropriate just and equitable remedy following a declaration of unlawful
administrative action:
25 Minister of Police v Kunjana [2016] ZACC 21; 2016 (2) SACR 473 (CC); 2016 (9) BCLR 1237 (CC) at para 36.
26 Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd [2010] ZACC 26; 2011 (4) SA 113 (CC);
2011 (3) BCLR 229 (CC) (Bengwenyama) at para 84.
24
“The rule of law must never be relinquished, but the circumstances of each case must
be examined in order to determine whether factual certainty requires some amelioration
of legality and, if so, to what extent. The approach taken will depend on the kind of
challenge presented – direct or collateral, the interests involved and the extent or
materiality of the breach of the constitutional right to just administrative action in each
particular case.”27
[52] In the papers before this Court, the fifth respondent directed our attention to the
outcome of interdict proceedings in the High Court that were finalised after the
High Court dismissed the applicant’s review application. In its judgment, the
High Court recorded that the fifth respondent had been inaugurated as senior traditional
leader on 18 March 2018 and that the royal kraal was thereafter restored from Fothane
to Magope, where the late Kgoshi Alfred Sebudi Langa had once ruled. The result of
the proceedings was a n order interdicting the applicant and others from holding
themselves out to be Mapela Traditional Council members; issuing permission to
occupy certificates ; operating in the name of the senior traditional leader from the
Fothane office; collecting monies from the Mapela Traditional Community in the name
of the Mapela Traditional Authority ; and acting in the position of senior traditional
leader and presiding over traditional hearings.
[53] Although neither party made submissions regarding remedy, what the
High Court judgment makes plain is that the inauguration of the fifth respondent on
18 March 2018 as senior traditional leader had a host of practical and administrative
consequences. In this case, a retrospective order invalidating the withdrawal and
recognition notices would upend the legal effect of actions taken by the fifth respondent
in his capacity as senior traditional leader and thus cause prejudice to those members of
the Mapela Traditional Community who have altered their position on the assumption
that these actions were valid.
27 Id at para 85.
25
[54] In publishing the recognition and withdrawal notices, the Premier acted upon the
recommendation of the Kgatla Commission, which reached the same conclusion as the
Ralushai Commission, namely, that the fifth respondent is the rightful senior traditional
leader of the Mapela Traditional Community. Due to the Premier’ s incorrect
understanding of the process and legal framework to be followed in order to implement
such a recommendation, notices were issued that referred to the wrong empowering
provision. I am not satisfied that this was a flagrant instance of illegality.
[55] To allow the invalidity of the notices to operate retrospectively would risk
disruption to the orderly and effective administration of the Mapela Traditional
Community. In view of the extent of the illegality and the fact that the fifth respondent
has carried out the functions of a senior traditional leader since March 2018, I am
satisfied that the order setting aside both the recognition notice and withdrawal notice
must operate prospectively.
[56] It is thus unnecessary to consider whether the Premier complied with
sections 12(1)(b) and 30 of the Limpopo Act, and whether either the recognition or the
withdrawal can be set aside on the basis that the requirements of procedural fairness in
terms of section 3 of PAJA were not met. Similarly, it is not necessary to deal with the
admissibility of the Commissions’ reports in the High Court, given that the lawfulness
of the Premier’s decisions does not turn on the correctness of these reports. Finally, as
explained, a challenge to the cons titution, jurisdiction and work of the Ralushai and
Kgatla Commissions is not properly before this Court.
26
Order
[57] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order granted by the High Court is set aside and re placed with the
following:
“(a) The first respondent’s Notice 4 of 2017 in Provincial Gazette 2843
of 8 August 2017 is unlawful, invalid and set aside.
(b) The first respondent’s Notice 5 of 2017 in Provincial Gazette 2845
of 16 August 2017 is unlawful, invalid and set aside.
(c) The orders in paragraph (a) and (b) above will apply from the date
of this order.”
4. The first respondent must pay the applicant’s costs in both the High Court
and in this Court, including the costs of two counsel.
For the Applicant:
For the Fifth Respondent:
C Da Silva SC, A Lamey and
BH Mathape instructed by Friedland
Hart Solomon and Nicolson
Incorporated
SJ Bekker SC and JLH Letsoalo
instructed by Faber Goertz Ellis Austen
Incorporated