IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO: 67/2014 SCA APPEAL CASE NO: 967/2013 NGHC CASE NO: 40404/2008
In the matter between:
BAPEDI MAROTA MAMONE APPELLANT (Applicant in the Court a quo)
And
COMMISSION OF TRADITIONAL LEADERSHIP 1ST RESPONDENT DISPUTES AND CLAIMS
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 2ND RESPONDENT
MINISTER OF PRROVINCIAL AFFAIRS AND LOCAL 3RD RESPONDENT GOVERNMENT
MOHLALETSI TRADITIONAL AUTHORITY 4TH RESPONDENT
ACTING KGOSHIKGOLO 5TH RESPONDENT KGAGUDI KENNETH SEKHUKHUNE
FIRST RESPONDENT’S WRITTEN ARGUMENT PURSUANT TO THE COURT’S DIRECTIONS DATED 23 MAY AND 06 JUNE 2014
INTRODUCTION
NON COMPLIANCE WITH DIRECTIONS BY APPLICANT:
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This argument is filed by the First Respondent (“the Commission”) pursuant to the Directions of the Chief Justice dated 23 May and 06 June 2014. Although it was only the Applicant that was required to do so, the “portions of the record” presented by the Applicant in respect of the issues raised by the Honourable
Court in paragraphs 1(a) and 1(b) of the Directions dated 6th June 2014, the First
Respondent contends that the Applicant has failed to comply therewith in its undated submissions in the following respects:
1.
AD NON-COMPLIANCE WITH PARAGRAPH 1(a) OF DIRECTION:
1.1 The First Respondent points out that there are, in addition to the
Applicant’s references to the record which appear in the paragraph 3 of his
submission insofar as it relates to “usurpation of kingship by might and
bloodshed”, further relevant references thereto in the First Respondent’s
report, which are the following:
[Reference to the record herein is to the Supreme Court of Appeal record].
Record, Vol 1, pages 36 to 39, paras 4.1.10; 4.1.11; 4.1.13;
4.1.14; 4.1.16; 4.1.18 to 4.1.21
Record, Vol 1, pages 60 to 63, paras 8.2; 8.3.5 and 8.3.7
Record, Vol 1, page 67, para 9.2 - 3 -
The Court is also referred to section 9(1)(b) of the Traditional Leadership
and Governance Framework Act, No.41 of 2003 (“the Framework Act,
2003”).
1.2 Furthermore, the Applicant fails to identify the “authoritative” sources
referred to in paragraph 4 of his submissions, herein, contrary to the
Directions issued by the Chief Justice. Furthermore, the additional
references referred to above, when read with the references of the
Applicant which appear in paragraph 3 of its submissions, establish the
existence of the rule of succession by might and bloodshed to traditional
leadership amongst the Bapedi.
2.
AD Paragraph 1(b) of the Directions dated 06 June 2014
The Applicant was instructed under the Directions to refer to portions of the record which pertained to the terms (content) of the “might and bloodshed rule”, and, whether or not this rule formed part of the customary law at the time
Sekhukhune I assumed kingship. The Applicant failed to do so, instead proffering only argument in respect of the issue raised in paragraph 1(b) of the Direction.
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The Honourable Court, as regards the mandate of the Commission, is referred to sections 25(2) to 25(4) of the Framework Act, 2003. Furthermore, as regards the issue of whether or not the customary law was established, the First Respondent makes the following submissions:
3.
Was the customary law rule of usurpation of kingship through “might and bloodshed” established or not?
3.1 The Applicant does not dispute the following facts which are material for
the determination of whether the aforesaid customary law rule was
established or not, following the application thereof from generation to
generation and over a long period of time:
3.1.1 that Thulare I established the kingship of the Bapedi through
conquering and subjugating neighbouring communities during the
period between 1790 to 1820, having assumed the kingship after
killing his brother Dikotope, the rightful heir to the dynasty of
Morwamotshe I;
3.1.2 that Thulare I was succeeded by Malekutu I, who in turn was
succeeded by Motsepe who was killed by his brother Phetedi, the
latter succeeding him as kgoshi. - 5 -
See: SCA Record, Vol 1, pages 36 to 37 paras 4.1.10
to 4.1.14
3.1.3 that Sekwati I ruled over the Bapedi nation only as regent for the
heir to Malekutu I, being Mampuru II;
See: SCA Record, Vol 3, page 408, lines 1 to 7
3.1.4 that Sekwati I, even though only a regent, virtually recreated and
extended the kingship started by Thulare I by subjugating
neighbouring communities;
See: SCA Record, Vol 1, page 38, para 4.1.7
3.1.5 that Sekhukhune I won the succession battle against Mampuru II
upon the death of his father Sekwati I in 1861 and ascended the
throne, Mampuru I having fled after being challenged by
Sekhukhune I;
3.1.6 that Sekhukhune I forcefully claimed the kingship and killed all
supporters of Mampuru II and ascended the throne;
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See: SCA Record, Vol 1, pages 38 to 39, paras 4.1.18 to
4.1.21
3.1.7 that the version of the Mampuru Royal House during the
Commission hearings was that when a king flees and leaves the
tribe and thereafter forms another tribe, he cannot return to re-claim
the Kingship.
See: SCA Record, Vol 3 page 403, lines 28 to 30
3.2 We submit that in the light of the consistent application and occurrence of
the customary practice aforesaid during the period 17th to the 19th centuries
and as outlined in the history of the kingship of the Bapedi1, it does appear
that the practice was established as a rule of customary law.
4.
As regards the terms of the rule and whether it forms part of the rule that applied to the Bapedi Community at the time Sekhukhune I assumed kingship, the following submissions are made by the First Respondent in response to submissions made by the Applicant in this regard:
1 See: SCA Record, Vol 1, pages 35 to 45 (Determination, paragraph 4, under the heading Historical Background) - 7 -
4.1 The Applicant contends that while the Commission has “argued” that it was
not unusual for kingship to be acquired by might and bloodshed, to justify
its conclusion on the location of the lineage of kingship within the
Sekhukhune Royal House, the Applicant contends that the conclusion
arrived at by the Commission was not justifiable in view of the fact that
there is no evidential material in the Commission’s report nor any
authoritative sources referred to by any of the parties to show that any
usurpation of kingship by might or bloodshed was an established rule of
succession to traditional leadership among the Bapedi.
See: Applicant’s submissions in response to the Chief
Justice’s directions dated 06 June 2014, par 4.
4.2 The Applicant further contends that the usurpation of kingship by might
and bloodshed was never a rule but simply a practice which was never
elevated to customary law or principle of succession to traditional
leadership and kingship.
See: Applicant’s submissions in response to the Chief
Justice’s directions dated 06 June 2014, par 5.
4.3 The issue is addressed by the Commission in its Determination under the
heading “Historical Background”. - 8 -
See: SCA Record, page 36 par 4.1.10
SCA Record, page 37 par 4.1.12
SCA Record, page 62 par 8.3.4
SCA Record, page 65 par 8.4.6
5.
What are the terms of the rule and whether it formed part of customary law that applied at the time Kgoshi Sekhukhune I assumed kingship?
5.1. In Shilubana & Other v Nwamitwa 2009(2)SA 66 (CC), the Constitutional
Court held that in order to establish the applicability of customary law the
enquiry had to be rooted in the contemporary practice of the community in
question.
See: par [55] at 84 B – D
5.2. In the aforesaid judgment the court further held that the classical test for
the existence of custom as a source of law, namely: that the practice had
to be certain, uniformly observed for a long period of time, and reasonable,
could not be applied to a customary law where the development of the
living law was at issue. That was not to say that past practice was not - 9 -
relevant: past practice and tradition would still be a factor to be considered
together with others.
See: par [56] at 84 E - G
5.3. The court further held that the value of recognising community- led change
was in this case not overweight by the requirements of legal certainty and
the need to protect rights.
See: par [84] at 91 C – D
6.
We submit that the mere fact that the customary practice aforesaid was consistently applied as outlined in the history of the kingship of the Bapedi is clearly indicative that this was not just a practice but a rule of customary law which was observed by the Bapedi nation.
6.1 Such practice however, had it occurred today, would no longer be
applicable in the light of section 211(2) of the Constitution of the Republic
of South Africa Act No. 108 of 1996 (“the Constitution”), and due to the
development of customary law so as to be consistent with the values
enshrined in the Constitution.
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6.2 In the case of Alexkor Limited v Richtersveld Community & Others,
case no: CCT 19/03 (CC), it was held that the question whether a court,
when considering the common law applicable at the time before the interim
constitution and the Constitution came into force, may develop the
common law in the light of the provisions of the Constitution as provided
for by section 39(2) of the Constitution, did not arise in that case. The court
held that that was a case for future decision. Section 39(2) provides:
“when interpreting any legislation, and when developing the
common or customary law, every court, tribunal or forum must
promote the spirit, purport and objects of the Bill of Rights”
6.3 The court further held that when it comes to the legal effect of other events
prior to 19 June 1913 (when the Native Land Act came into effect), these
must be adjudged according to the law then prevailing.
See: par 41 of the Judgment
6.4 While in the past indigenous law was seen through the common law lens, it
must now be seen as an integral part of our law. Like all law it depends for
its ultimate force and validity on the Constitution. Its validity in respect of
historical events which occurred after the passing of the interim and final
Constitutions, must now be determined by reference not to common law,
but to the Constitution. The courts are obliged by section 211(3) of the - 11 -
Constitution to apply customary law when it is applicable, subject to the
Constitution and any legislation that deals with customary law. In doing so,
the court must have regard to the spirit, purport, and objects of the Bill of
Rights.
See: par [51] of the judgment, and section 39(2)& (3) of
the Constitution. Section 39(3) provides:
“The Bill of Rights does not deny the existence of
any other rights and freedoms that are recognised
or conferred by common law, customary law or
legislation, to the extent that they are consistent
with the Bill”
6.5 The court further held that:
“[53] In applying an indigenous law, it is important to bear in
mind that unlike common law, indigenous law is not written. It is
a system of law that was known to the community, practice and
passed on from generation to generation. It is a system of law
that has its own values and norms. Throughout its history it has
evolved and developed to meet the changing needs of the
community. And it will continue to evolve within the context of its
values and norms consistently with the Constitution.
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[54] Without attempting to be exhaustive, we would add that
indigenous law may be established by reference to writers on
indigenous law and other authorities and sources, and may
include the evidence of witnesses if necessary…. In the cause of
establishing indigenous law, court may also be confronted with
conflicting views on what indigenous law on a subject provides”.
6.6 The Applicant in both the High Court and the Supreme Court of Appeal
(“the SCA”) does not dispute the finding of the Commission regarding the
existence of the aforesaid customary rule and concede that fact. In his
founding affidavit in the Court a quo, he stated:
“8.3 The Commission has found correctly so, that “it was not
unusual for the kingship to be obtained through might and
bloodshed and therefore usurpation of kingship by Sekhukhune I
was in line with common practice at that time””.
See: SCA Record, Vol 1 page 19 par 8.3
6.7 A distinct term of the rule “usurpation of power throughout might and
bloodshed” was that the new incumbent reigned over his subjects who, in
turn, subjected themselves to his rule. This is a geographical and territorial
aspect. Kingship remains in a particular territory where the king reigns over
his subjects. The Appellant’s contention is that “when Sekhukhune I - 13 -
returned to claim the position of king he was defeated and killed by
Mampuru II. It is the Appellant’s contention that the lineage of kingship of
Sekhukhune if ever there is argument that it existed after his incarceration
ended there and then when he was killed by Mampuru II on the 13th August
1882”.
See: SCA Record, Vol 1, page 16, para 7.2.1
6.8 The Applicant relies on the “evidence supporting the facts” as published in
the University of South Africa titled “Native Tribes of the Transvaal – 1905”,
dated 1962. The relevant portion reads:
“Sekwati died in 1861. His successor was Sekhukhune I (sic),
who managed to drive away Mampuru, the rightful heir
………. On the British occupation in 1877 Sekhukhune
professed friendship with the government and a peace was
patched up, but the attitude of the Bapedi continuing defiant,
the expedition under Sir Garnet Wolseley was dispatched
against them in 1879 ….. the Bapedi were completely
subjugated, and Sekukuni himself taken prisoner. Mampuru,
who had taken refuge with the Swazis in 1861 and
accompanied them in 1870, hereupon assumed the
chieftainship of the Bapedi, and on the release of Sekukuni
from prison, refused to relinquish his position, or to submit to - 14 -
the rule of the Boers ….. Mampuru eventually fled to the
Mapokh Chief Nyabel (sic) for protection, and with the latter’s
assistance surprised and killed Sekukuni in 1882. The
Mapokh war ensued, in which Nyabel and Mampuru were
captured, and the latter was hanged….”
See: SCA Record, Vol 1, pages 73 to 74
6.9 The aforegoing state of facts was conceded by the Mampuru Royal House
during the Commission hearings (Bolivia hearing). This has a direct
bearing on the terms of the aforesaid customary law rule, i.e. a king cannot
reign over his subjects away from the geographical area and territory of
such kingship.
See: SCA Record, Vol 2, page 306
6.10 The Applicant’s contention during the Commission hearings and in the
Court a quo and the SCA has been that the killing of Sekhukhune I by
Mampuru II should be construed as “usurpation of power through might
and bloodshed”.
6.11 In casu, it is common cause that Mampuru II had initially fled with only a
section of the community, leaving the geographical area and territory of the
kingship, and even after returning with Nyabela, he and the latter fled after - 15 -
the killing of Sekhukhune I. This was contrary to the customary rule or
practice as it applied.
6.11 The rule, as has been conceded by the Applicant at the Commission
hearings, is that it was in existence when Sekhukhune I assumed kingship.
6.12 Kgoshi Sekhukhune I was not removed from his kingship in terms of
customary law during his incarceration. It was the intervention of the British
Colonial Government that brought new dynamics and coronated and
inaugurated Mampuru II as the “biggest Chief of Phokwane”.
See: SCA Record, Vol 1, page 76
6.13 After the release of Sekhukhune I from prison, he went back to assume his
position as the king of the Bapedi, after his brief imprisonment. Mampuru II
fled and sought refuge with Marishane, then Nyabela, chief of the
amaNdebele.
See: SCA Record, Vol 1, p 16, par 7.2.1
6.14 The customary law rule of usurpation of kingship through might and
bloodshed applied. However in this instance, Mampuru II surprised and
killed Sekhukhune I with the assistance of Nyabela. They then fled. This
practice is inconsistent with the aforesaid customary law rule as once the - 16 -
killing takes place, the perpetrator had to assume kingship, be crowned
and remain thereafter in the territory of the kingship, reigning over his
subjects, a fact conceded by the Mampuru Royal House during the
hearings.
See: SCA Record, Vol 1, page 74
SCA Record, Vol 3, page 403 (evidence of Mr
Mampuru)
7.
CONCLUSION:
7.1 In view of the aforementioned submissions, the 1st Respondent concludes
that the practice of usurpation of kingship by might and bloodshed was
properly established and consistently applied from generation to
generation by the Bapedi nation. This fact is confirmed by the history of the
kingship of the Bapedi as stated by the various authors and in accordance
with the evidence presented at the Commission.
7.2 In the light of the aforegoing, we submit that the determination of the
Commission was rational in the light of the established practice at the time
Sekhukhune I assumed his kingship. The fleeing of Mampuru II after the - 17 -
killing of Sekhukhune I was therefore inconsistent with the practice or rule
as it applied.
WE NOW ADDRESS PARAGRAPH 2 OF THE DIRECTIONS DATED 6TH JUNE 2014.
AD PARAGRAPH 2(a) THEREOF: WHETHER THE CUSTOMARY RULE OF
ACQUISITION OF KINGSHIP THROUGH MIGHT AND BLOODSHED WAS
PROPERLY ESTABLISHED
8.
8.1 Prior to dealing with the issue raised herein, it is to be respectfully pointed
out that the historical fact which led to the present dispute, occurred in
1882 when Mampuru assassinated Sekhukhune. The principles developed
in the RICHTERSVELD and SHILUBANA matters, read together with
Section 39(2) of the Constitution, make it clear that the development of
customary law, in promoting the spirit and object of the Constitution’s Bill of
Rights, must pertain to historical facts or events which occurred
subsequent to the passing of both of the interim and the final Constitutions.
8.2 Accordingly, historical fact and circumstance which presented themselves
as at 1882, must be paramount and cannot form part of the obligation of
courts to develop customary law in line with the Constitution.
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8.3 In the premises, it is submitted, that the application of the
RICHTERSVELD and SHILUBANA judgments should be approached in
casu, with a measure of caution. This is particularly so in the light of the
historical reality that customary or indigenous systems of the time did not
afford a broad democratic base akin to the present political system under
which the constitutional dispensation operates. Put differently, it would be
inappropriate to apply present constitutional and political considerations to
the political systems and circumstances which were in place in the late
1800’s.
9.
9.1 The history of the Malekutu household (under which Mampuru II claims
royal lineage) is such that Malekutu was the rightful heir to the kingship of
Thulare I who, himself, assumed kingship after having usurped it, through
might and bloodshed, from Dikotope, the latter being the rightful heir of
Morwamotshe I.
9.2 Accordingly, if the rule, as espoused by the Applicant, namely, that
kingship through lineage is incapable of being interrupted with, is to be
applied consistently, then Mampuru II’s claim to kingship through lineage
also stands to be questioned by virtue of Thulare I having himself
ascended to the throne through might and bloodshed.
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10.
Furthermore, the historical facts set out by the Commission in its finding, are such that at the very least for the Applicant, it was established that usurpation of kingship through might and bloodshed, was a rule of practice. Once this is in place, and applying paragraph [44] of the SHILUBANA judgment, the existence of such a practice becomes an element to be considered in establishing whether or not such rule of practice developed into customary law. Another important factor in this regard, is the length of time for which Sekhukhune reigned prior to him having been incarcerated through the actions of the British Colonial
Government. In addition, it cannot be argued by the Applicant that Mampuru’s ascension to the crown as a result of British Colonial intervention, constituted ascension to the throne in terms of any customary rule of practice. It was nothing more than the unilateral political conduct of a colonial authority.
11.
AD PARAGRAPH 2(b)
11.1 It is important to bear in mind that the historical background as set out in
the First Respondent’s determination, is common cause between the
parties. Furthermore, the determination of the First Respondent must be
highlighted, in particular, in view of the Court’s deference as set out in the - 20 -
judgment of Bato Star Fishing v The Minister of Environmental Affairs 2004
(4) SA 490 CC.
11.2 In addition, it cannot be argued, on the reasoning of this Court in the
judgment of Du Plessis and Others v De Klerk and Another 1996 (3) SA
850 CC, in casu, that the enforcement of non-retrospective would be “ ….
grossly unjust and abhorrent …..”. Accordingly, the rule against
retrospectivity should not be interfered with.
11.3 In this regard, it needs to be emphasized that this Court is obliged to
consider the fact that the event took place in 1882 and, in addition thereto,
is obliged to consider the consequences of that event within the context of
the political and legal framework of the time, insofar as it pertained to
customary law/practice.
11.4 To the extent that the Honourable Court may have, in identifying the issue
being dealt with in this paragraph, been considering that a concession
made by the Applicant that kingship could be usurped by might and
bloodshed, may be reversed on appeal, it is not the Applicant’s case that
such concession should be abandoned or reversed on appeal.
12.
AD PARAGRAPH 2(c) - 21 -
12.1 The prior kingships of Malekutu I and Thulare I, as well as the kingship of
Sekhukhune I (the latter having endured for approximately 30 years)
confirm that the acquisition of kingship through might and bloodshed was
followed by the Bapedi Community.
12.2 This is further reinforced, in the instance of Malekutu I’s reign, by a tima
mollo having been nominated to ensure the continuation of the Malekutu
house and which is further enforced by the fact that Sekwati I was
recognised only as Regent for Malekutu I.
12.3 It was never the Applicant’s case that the rule/practice under which
kingship could be usurped by might and bloodshed, meant nothing more
than the acceptance of the fact that the practice of usurpation by might and
bloodshed did in fact exist at the time. As pointed out, Mampuru’s own
lineage is dependent upon a prior usurpation by Thulare I, of kingship
through might and bloodshed.
12.4 It was also never the case for the Applicant that usurpation was
characterised by both the killing of the incumbent King and the obliteration
of the entire dynasty. This is a new issue which is not canvassed in the
Applicant’s founding papers and must, accordingly, be rejected. In any
event, it begs the following question: can it be said that Mampuru, after - 22 -
assassinating Sekhukhune, obliterated the entire Sekhukhune dynasty?
The facts overwhelmingly point to an answer in the negative.
13.
AD PARAGRAPH 2(d)
It is submitted that Sekhukhune retained his kingship during his incarceration by virtue of the following:
13.1 The coronation of Mampuru took place solely as a consequence of the
colonial intervention of the British Government, which intervention did not
form part of the Bapedi customary law/practice.
13.2 There is no suggestion that the Bakgoma or other councils of elders
sanctioned or approved such kingship.
13.3 There is also no suggestion that a formal “coronation” took place.
13.4 The selected passages already referred to herein make it clear that upon
Sekhukhune having been released from incarceration, the Bapedi people
immediately renounced their allegiance to Mampuru in favour, once again,
of recognizing Sekhukhune as their legitimate King.
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14.
AD PARAGRAPH 2 (e)
14.1 In the light of the submission made in respect of paragraph 2(d), it is not
necessary to answer this question.
14.2 In the event, however, of the Honourable Court finding that Sekhukhune
did not retain his kingship during his incarceration, it is respectfully
submitted that the conduct of Mampuru, upon Sekhukhune’s release, was
such that Mampuru again, and as has always been characterised by his
behaviour in the past, fled from the very same community over which he
was purportedly exercising the powers of a monarch. Had Mampuru in
fact been recognised as monarch by the very subjects he was supposed
to reign over, such subjects would not have abandoned him in the
wholesale manner which they did.
14.3 Accordingly, even if it could be argued, which is not conceded, that
Sekhukhune did not regain kingship in terms of any recognised customary
rule of law, it may be stated that by having abandoned his subjects,
Mampuru in fact surrendered, alternatively, waived, once again, any
entitlement to succession, in favour of Sekhukhune.
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14.4 We therefore conclude that Sekhukhune’s release had the effect, at the
very least, of restoring the status quo ante, namely, Sekhukhune’s
position as king of the Bapedi prior to his incarceration.
15.
AD PARAGRAPH 2(f)
15.1 The First Respondent submits that the customary rule, as properly
interpreted, was still in place when Sekhukhune I was killed.
15.2 The First Respondent’s contention, is that the conduct of Mampuru in
having assassinated Sekhukhune, was not conduct consistent with the
application of the rule in that:
15.2.1 it was not preceded by an open challenge to Sekhukhune to
surrender the kingship;
15.2.2 there was no element of a “might” present during the assassination;
15.2.3 the assassination, by its very nature, is characterised by stealth and
surprise, being the hallmark of persons who would otherwise not
have achieved their intended result;
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15.2.4 the aforegoing is confirmed by the conduct of Mampuru in,
immediately after the assassination of Sekhukhune, “fleeing” from
his subjects. Again, such conduct is inconsistent with a person who
makes claim to having usurped kingship through both “might” and
“bloodshed”. The element of “might” and the constituents thereof,
namely, support, recognition, respect and allegiance of subjects, are
conspicuously absent.
16.
MERIT OF APPEAL:
16.1 The Applicant states in paragraph 38 of his affidavit, that five Constitutional
matters are raised in this application. It is respectfully submitted that none
of the issues raised by the Applicant constitute constitutional matters and
that, accordingly, the application should fail on this ground alone. I deal
with these grounds individually hereinafter.
16.2 As regards the first Constitutional ground (paragraph 38(a) of the
supporting affidavit), namely, that the application constitutes a review in
terms of Section 6 of PAJA, such fact, by itself, does not establish a
Constitutional matter.
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16.3 Regarding the second Constitutional issue, namely, that the legality of any
exercise of public power is a Constitutional issue, it is respectfully
contended that the Framework Act does not fall within such definition. On
the contrary, the Commission’s powers of investigation pertaining to the
objectives stated in the Framework Act, are clear. In any event, paragraph
34 of the judgment cited herein, is not applicable to the argument at hand.
16.4 As regards the third ground for the alleged constitutionality of the issues at
hand, namely, that the interpretation of the Framework Act falls within the
perimeters of Section 34 of the Constitution, is equally unsustainable when
regard is had to the fact that the Applicant has already had access to at
least two fora in which to debate and to determine the issue of the
succession to the royalty of the Bepedi people.
16.5 The next ground upon which the Constitutionality of this issue is based,
namely, that the question of whether the Commission’s administrative
process is fair and adequately protects the Applicant’s rights, this issue is
as susceptible to attack as the previous grounds. I say so by virtue of the
fact that the provisions of PAJA, in themselves, adequately protect the
Applicant’s rights and that there is no further need to scrutinise such
protection.
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16.6 As regards the last ground, namely, that the matter concerns the violation
of the Applicant’s fundamental rights to practice his culture, religion and
language, as set out in Section 31 of the Constitution read with Sections 9,
211 and 212 thereof, it is respectfully submitted that Sections 9, 221 and
212 of the Constitution stand separate and distinct from the protection of
the rights set out in Section 31 of the Constitution and, accordingly, on this
basis, this alleged ground should also be rejected.
16.7 It should be pointed out that at no stage, until this application for leave to
appeal to this Honourable Court, was any issue of Constitutionality ever
raised by the Applicant and such fact, in itself, must impact upon the bona
fides of such Constitutionality being raised only now for the first time.
In the premises aforesaid, it is respectfully contended that this application constitutes nothing more than a second attempt to appeal against a decision correctly taken by the Court a quo.
17.
17.1 As a consequence of the concise founding affidavits presented by the
Applicant in the Court a quo, as well as in this application for leave to
appeal, wherein a number of historical facts which are all common cause
have not been referred to, and mindful of the need to keep this affidavit as - 28 -
short as possible, we are obliged to refer to such historical facts herein.
This exercise is necessary in order to highlight the fact that there exists no
merit for the Applicant’s review of the First Respondent’s decision in the
Court a quo and that, flowing therefrom, no other Court might reasonably
come to another conclusion.
17.2 It is also necessary to point out to this Court that the parties, prior to the
proceedings before the Honourable Mr Justice Makgoba a quo had, by
agreement, excluded from the proceedings the transcript of the oral
evidence placed before the First Respondent, due to the poor quality
thereof and due, furthermore, to the fact that the parties had been notified
by the transcription services concerned, that they were unable to improve
upon the quality of such transcribed evidence. As a consequence hereof,
the parties agreed to accept the historical factual accuracy of the
Commission’s report which was attached to the founding affidavit, and,
indeed, the Applicant, on his own version, in the founding affidavit a quo,
made the following statement:
“5.4 Apart from the analysis of the evidence by the Commission in
paragraph 8, as well as the findings and conclusions reached in
paragraph 9.7 of the report, which the Applicant contends are flawed
and reviewable, the rest of the report are not disputed.” (our
emphasis) - 29 -
17.3 It is accordingly necessary for purposes of this application, to place not
only the undisputed historical factual allegations which appear in the
Commission’s report before this Court but also, in addition thereto, to place
additional historical factual allegations which appear in the documentation
relied upon by the Applicant in his case that the Commission’s decision
stands to be reviewed under the Promotion of Administrative Minister of
Justice Act No. 3 of 2000. (“PAJA”)
18.
AD COMMISSION’S FACTUAL FINDINGS:
18.1. References which are made in inverted commas hereinafter represent
excerpts from the Commission’s report.
18.2. Whilst it is not necessary, for purposes of this application, to commence
with a historical background relating to the origins of the Bepedi Tribe, it
remains relevant to point out that Sekwati I, although only regent for
Mampuru II, during such regency, established himself at Phiring, thereafter
attacking Marangarang (a Kgosi of Bakone who had asserted his authority
over Sekhukhuneland), and defeating the communities of Phaala and
Makgakala. He also successfully defended himself against attacks by
amaSwazi and conquered the traditional community of amaZulu under the
leadership of Mpande. By so doing, Sekwati I expanded and consolidated - 30 -
the efforts commenced with by Thulare I in establishing a Kingship for the
Bapedi people.
18.3. After Sekwati I’s death in 1861, his biological son, Sekhukhune I made his
intentions clear of wishing to assume the leadership of the Bapedi people
by challenging Mampuru II’s entitlement to succeed Malekutu I (as the
offspring of Timamollo to Malekutu I) by challenging the latter to a fight by
throwing a spear towards Mampuru II. The latter declined Sekhukhune I’s
challenge, ...”instead he cowered and fled, taking the Royal accessories
with him”.
18.4. Importantly, thereafter, Sekhukhune I:
18.4.1 buried his father, Sekwati I;
18.4.2 gathered all the traditional leaders who were under his father,
challenged them, to which they all cowered and he then ascended to
the throne;
18.4.3 immediately started attacking communities who refused to pay
allegiance to him;
- 31 -
18.4.4 further consolidated the Bapedi Kingdom initiated by Thulare I and
expanded and consolidated thereafter by Sekwati I.
18.4.5 On 14 August 1882 (i.e. 21 years after Sekhukhune’s challenge and
uninterrupted Kingship) Mampuru II with the assistance of Mapoch
Chief Nyabela returned and killed Sekhukhune I but could not rule
because he was immediately arrested, convicted and executed for
this murder by the ZAR government.
19.
19.1 The Commission found that the possession of Royal insignia alone, does
not bestow a Kingship.
19.2 The Commission also found that even after returning to assassinate
Sekhukhune I, Mampuru II did not ascend to the throne. Thus Malekutu II,
the descendent of Mampuru II, succeeded Mampuru II as leader of the
followers of Mampuru II and not as king of Bapedi. (our emphasis)
19.3. It is also common cause between the parties, and which accords with the
Commission’s finding that, in terms of customary laws and practices of the
time, it was not unusual for Kingship to be obtained through “might and - 32 -
bloodshed” and, therefore, that the usurpation of Kingship by Sekhukhune I
from Mampuru II, was in line with common practice at the time.
20.
In the founding papers in the Court a quo, the Applicant contended that the
Commission, in determining the Kingship of Bapedi finding and deciding that such Kingship resorts in the lineage of Sekhukhune, ignored the following facts:
20.1 “While Sekhukhune I was deposed and in 1879 incarcerated Mampuru II
took over and was actually the King of Bapedi, crowned by the British
Government. There was no absence or vacuum of leadership”.
20.2 The Applicant further contends that:
“When the (sic) Sekhukhune I returned to claim the position of king he was
defeated and killed by Mampuru II. It is Applicants contention that the
lineage of Kingship of Sekhukhune I if ever there is argument that it existed
after his incarceration ended there and then when he was killed by
Mampuru II on 13th August 1882.”
20.3 In support of the above two findings which the Applicant contends the
Commission ought to have made, the Applicant relied on “many historical
records” which were not specifically referred to but which included the - 33 -
following documentation which was attached to the founding affidavit of the
proceedings before the Court a quo, namely:
20.3.1 a copy of a reprinted publication by the University of South Africa
with the title “Native Tribes of the Transvaal 1905”;
20.3.2 an extract of a report No 306/1906 by the office of the Native
Location Commission in Pretoria dated 17 May 1907 addressed to
the Private Secretary of the Governor in Johannesburg;
20.3.3 an extract of the volume of Government Publications containing
formal correspondence exchanged between the then Native Affairs
officials and the British High Commissioner for South Africa in 1882;
20.3.4 lastly, a copy of minutes of record of proceedings by the Assistant
Native Commissioner of Polokwane at a gathering held at
Hooggelegen in 1935.
21.
The Applicant alleges that the Commission had access to these documents but failed to consider and deal with them by either not providing reasons for the rejection or not referring to the evidence therein contained which, according to - 34 - the Applicant, was in contrast to the Commission’s report. It is therefore necessary to deal with each one of these documents individually but before doing so, it is further necessary to point out that the passages appearing between inverted commas herein below, similarly represent excerpts from such documentation.
AD DOCUMENTATION PURPORTEDLY NOT TAKEN INTO CONSIDERATION
BY THE COMMISSION:
22.
A consideration of the first document relied upon by the Applicant, shows the following statements:
22.1 that Sekwati I died in 1861;
22.2 that “his successor was Sekhukhune I and managed to drive away
Mampuru the rightful heir”. Mampuru II then took refuge with the Swazis”;
22.3 in breach of the late Sekwati I’s peace treaty with the Boer Republic (“the
ZAR”), Sekhukhune I then indulged in cattle raiding and other excesses,
which led to a war with the ZAR from 1875 to 1877. - 35 -
22.4 In 1877 the British occupied the ZAR and Sekhukhune I professed peace
with them. However, the Bapedi continued their campaign of defiance,
including cattle raiding, which led to the British, assisted by a large body of
Swazis, dispatching an expedition against Sekhukhune I in 1879,
subjugating the Bapedi and taking Sekhukhune I prisoner. Mampuru II
was part of the Swazi contingent and “....hereupon assumed the
Chieftainship of the Bapedi”;
22.5 After the ZAR regained its independence in 1881, Sekhukhune I was
released from prison, upon which Mampuru II “...refused to relinquished his
position ...”. Mampuru II “...eventually fled to the Mapokh Chief Nyabel for
protection, and with the latter’s assistance surprised and killed
Sekhukhune I in 1882”.
23.
The second document relied upon, is flawed in that while it refers to a “Mampuru” therein who, allegedly, in 1906 presented himself to the Governor-General, it cannot relate to Mampuru II as the latter had already been executed on 22nd
November 1883.
- 36 -
24.
The third document contained the following allegations:
24.1 The document confirms that after Sekwati I’s death, Sekhukhune I
“...expelled Mampuru and established himself as paramount Chief”;
24.2 Furthermore, Mampuru II then “fled to Magakala” (his mother’s birthplace),
then to the Botshabelo Mission Station and then to the Swazis “...whose
aid he invoked”;
24.3 Thereafter, a Swazi impi under Mapehla attacked Sekhukhune I’s
stronghold on the Mosego mountain, but was heavily defeated;
24.4 In 1879 the British, accompanied by Swazis and Mampuru II, attacked
Sekhukhune I, leading to the latter’s imprisonment and Mampuru II
assumes Chieftainship while Sekhukhune I was in prison. It should
respectfully be pointed out that unlike the version put forward by the
Applicant, namely that Mampuru II, at a later stage returned to claim
Kingship, the wording used by the Commission is clear, namely, that
Mampuru II assumed Chieftainship. This wording is evidence of the fact
that Mampuru II was never regarded as having been monarch of the
Bapedi people; - 37 -
24.5 Upon Sekhukhune I’s release, Mampuru II would not relinquish his position
and, after the ZAR retrocession of 1881, Mampuru II refused to submit to
the rule of the Boer Republic. Sekhukhune II then supplied the Boer
Republic with an impi, when they attacked Mampuru II. This statement is
confirmation of the fact that, unlike Mampuru II, Sekhukhune I was always
in a position to muster and supply an impi, as and when such was
required;
24.6 Mampuru II then “...fled” to Phokwane and then to Marishane, the latter
“...assisting...” Mampuru II against the Boer Commando and Sekhukhune’s
impi, but were defeated and their chief, Marishane, taken prisoner;
24.7 Mampuru II, however, “...again escaped ...” and then “...sought shelter...”
with Magali and “...eventually fled “...to Nyabela“ ...the Mapoch ...for
protection with whose assistance he managed to surprise and kill
Sekhukhune I in 1882”;
24.8 Nyabela refused to surrender Mampuru II to the ZAR forces, leading to the
Mapoch Wars and the capture of both Nyabela and Mampuru II, the latter
thereafter being tried, convicted and executed for Sekhukhune I’s murder.
- 38 -
25.
A closer perusal of the fourth set of documents reveal that:
25.1 Upon Sekhukhune II’s capture by the British, Mampuru II “... appears to
have been recognised and confirmed by Her Majesty’s Government in the
paramount Chieftainship of the residue of Sikukuni (sic) tribe. This
paramouncy he continued to enjoy until the release and the return of
Sekhukhune” (sic) (our emphasis);
25.2 After Sekhukhune I’s release by the ZAR, Mampuru II’s people started
“...leaving him to renew their allegiance to the restored Chief” (our
emphasis);
25.3 Tribal stock disputes soon arose between Mampuru II and Sekhukhune I,
as a result of which Mampuru I, fearing an attack by Sekhukhune I
“...removed... to a position in the mountains”;
25.4 Notwithstanding demands to do so by both the Local Native Commissioner
and by the ZAR Government, Mampuru II refused to return to his previous
position. A Boer Commando under General Joubert was then dispatched
against the Mampuru II, who, upon the arrival of the Commando, “...fled
with a few of his followers. His tribe was allowed to return to their former
location and placed provisionally under a petty Chief named ...... ”. - 39 -
26.
It was common cause between the parties concerned, a quo, including the
Commission, that Kingship could be obtained through might and bloodshed. The
Applicant’s case, however, was that Sekhukhune I’s assassination by Mampuru
II, by itself constituted a usurpation of Kingship through might and bloodshed.
This statement is flawed for the following reasons:
26.1 From a chronological point of view, it is common cause that Sekhukhune I
succeeded Sekwati I in 1861 upon the latter’s death, through might and
bloodshed when he challenged Mampuru II and, accordingly, by the time
Sekhukhune I was killed in 1882 by Mampuru II, with the exception of
about three years, Sekhukhune I had ruled as monarch for a period in
excess of 20 years. During such rule, Sekhukhune I
26.1.1 attacked and subjugated communities not paying allegiance to
him;
26.1.2 killed Mampuru II’s supporters;
26.1.3 welded together previously separate entities within the Bapedi
nation.
- 40 -
26.2 In so doing, Sekhukhune I therefore conducted himself in a manner similar
to that of King Thulare I who had also usurped Kingship through might and
bloodshed from his older brother Dikotope and, thereafter, conquered
several neighbouring communities and could thereafter lay historical claim
to being the first king of the Bapedi. The same could also be said of
Sekwati I, the biological father of Sekhukhune I, who, as already pointed
out, although regent for Malekutu I’s successor (i.e. Mampuru II), during
such regency, attacked and defeated the communities of Phaala,
Makgakala and Bakone, as well as the amaZulu under the leadership of
Mpande, thereby expanding and consolidating the Bapedi Kingship started
by Thulare I.
26.3 The passages referred above, although found in the documentation relied
upon by the Applicant himself in trying to make out a case that the
Commission ignored evidence placed before it, show that the historical
recordal of Mampuru II is categorised by flight, defeat, escape and the
seeking of assistance and shelter from communities other than the
Bapedi, which statement is confirmed and characterised by the following
facts appearing in the very documentation put forward by the Applicant
which, allegedly, were ignored by the First Respondent:
26.4 that Mampuru II, having been driven away by Sekhukhune I when
challenged by the latter in 1861, after the death of Sekwati I, took refuge at - 41 -
Makgakala, Botshabelo and then taking refuge with the Swazis “...whose
aid he invoked”;
26.5 Mampuru II’s failed attempt to defeat Sekhukhune I at Mosego with the aid
of a Swazi impi under Mapehla;
26.6 a brief assumption of Chieftainship by Mampuru II “...in 1879 with the
blessing of the British Colonial Government ...” during their (initial) brief
annexation of the ZAR but at the time when Sekhukhune I had been
imprisoned for stock theft;
26.7 Mampuru II again taking flight after Sekhukhune I’s release by the Boer
Republic in 1881 and, thereafter, being attacked by Sekhukhune I and the
Boers, where Mampuru II then “... fled ...” to Phokwane and then to
Marishane where he enlisted the aid of the latter, but are defeated by the
ZAR Commando / Sekhukhune I impi, after which Marishane was taken
prisoner and after which Mampuru II “... again escaped ...” and “... sought
shelter...” with Magali and “...eventually fled ...” to the Mapoch Chief
Nyabela “... for protection with whose assistance he managed to surprise
and kill Sekhukhune I on 13 August 1882”;
- 42 -
27.
Furthermore, there exists no record in the documentation provided by the
Applicant and which the Commission considered, of Mampuru II even having, under customary law, ascended to the throne or that he was crowned King or that he ever ruled as monarch, particularly after the assassination of Sekhukhune I in
1882.
28.
Mampuru II’s “ascendancy to the throne” during the British annexation of the ZAR from 1877 to 1881, cannot constitute a usurping of Kingship “by might and bloodshed” as:
28.1 At the time of Mampuru II’s ascendancy to the Chieftainship, Sekhukhune I
was imprisoned by the act of a Colonial ruler;
28.2 The above ascendancy of Mampuru II as king occurred with the approval
of the Colonial power and not under customary law. Indeed, Colonial
legislation at the time (Law No. 11/1881), effectively did away with
traditional Kingship by providing that the Administrator of the Transvaal
was the Supreme Chief over all African tribes in the Transvaal;
- 43 -
28.3 Mampuru II was never able to defeat Sekhukhune I in any form of open
duel which could be said to have constituted elements of both “might” and
“bloodshed” – the only manner in which Mampuru II could kill Sekhukhune
I, was by way of ambush/surprise/assassination, thereby expressly
excluding the element of “might”;
28.4 There is also no record in the documentation provided (and relied upon) by
the Applicant, of Mampuru II being able to muster the widespread and
sustainable support required of a monarch, as is evidenced by the fact
that:
28.4.1 Mampuru II’s (British approved) ascendance to Kingship was only
over “... the residue of Sekhukhune Tribe ...” (our emphasis);
28.4.2 after Sekhukhune I’s release from imprisonment by the Boer
Republic, Mampuru II’s people started”... leaving him to renew their
allegiance to the restored chief”. The above is confirmed by the fact
that after Mampuru II was thereafter attacked and defeated by a joint
Boer Commando and a Sekhukhune impi, Mampuru II and his tribe
were placed under the command of a “...petty chief...”;
28.4.3 Furthermore, and, importantly, there exists no record that the Bapedi
tribe’s Bakgoma, Bakgomana or the Dikgadi, constituting tribal - 44 -
elders’ councils, sanctioned or approved Mampuru II’s coronation by
the British;
28.5 Also, Mampuru II had no time to reign as king as he was executed on 22
November 1883, barely one year after assassinating Sekhukhune, his
subsequent arrest, trial, conviction and sentencing to death;
28.6 Lastly, there exists no record in the Applicant’s documentation that, during
the period after Sekhukhune I’ assassination in 1882 and Mampuru II’s
execution on 22nd November 1883, the latter was ever crowned as Chief of
the Bapedi people.
29.
In considering the aforegoing, it is thus, respectfully, apparent that the facts appearing on the documentation which the Applicant alleges were ignored by the
Commission, rather than supporting the Applicant’s case, indeed served to fortify the correctness of the decision arrived at by the First Respondent and accordingly:
29.1 such documentation was in fact taken into consideration by the
Commission and;
- 45 -
29.2 the Commission’s decision regarding the lineage of the Bapedi Kingship is
rationally connected to both the information before it and to the reasons
given by it.
30.
Having regard to all the aforegoing the First Respondent submits that leave to appeal to this Honourable Court should be refused, alternatively, that the appeal itself should not be upheld, in which event, in both instances costs should be awarded in favour of the First Respondent, which costs are to include the costs occasioned by the services of two counsel.
DATED AT PRETORIA ON THIS THE 28th JULY 2014.
G BOFILATOS SC
L M MONTSHO SC
CHAMBERS
PRETORIA
- 46 -