IN THE CONSTITUTIONAL COURT OF APPEAL OF SOUTH AFRICA
Case no:
In the matter between:
MPISANE ERIC NXUMALO Applicant
and
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
CHAIRPERSON OF THE COMMISSION ON TRADITIONAL LEADERSHIP DISPUTES AND CLAIMS Second Respondent
MINISTER OF COOPERATIVE GOVERNMENT & TRADITIONAL AFFAIRS Third Respondent
NATIONAL HOUSE OF TRADITIONAL LEADERS Fourth Respondent
LIMPOPO HOUSE OF TRADITIONAL LEADERS Fifth Respondent
PREMIER OF LIMPOPO PROVINCE Sixth Respondent
ANSWERING AFFIDAVIT ON BEHALF OF THE FIRST, SECOND AND THIRD RESPONDENTS
I, the undersigned,
MOHLOMI ALBERT MOLELEKI
do hereby make oath and state that:
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1. I am a Professor of African Languages employed in the Department of African
Languages at the University of the Free State. I was at all material times the
acting chairperson of the Commission on Traditional Leadership Disputes and
Claims (“the Commission”), being the second respondent in this application,
until its mandate expired on 31 January 2010.
2. I am duly authorised to depose to this affidavit on behalf of the Commission.
On account of the fact that the first respondent (“the President”) and the third
respondent (“the Minister”) accepted the findings and decisions of the
Commission in this matter, I am authorised to depose to this affidavit on their
behalf. I refer to the Commission, the President and the Minister collectively as
“the respondents”.
3. The facts deposed to herein are within my personal knowledge and belief
unless the context indicates otherwise and are to the best of my belief true and
correct. Where I make legal submissions I do so on the advice of my legal
representatives. I believe the correctness of such advice.
INTRODUCTION
4. In this application the applicant seeks leave to appeal against:
4.1. The well-considered, and detailed, judgment and order, granted by
the Honourable Mr Justice Tuchten in the North Gauteng High Court
(“the court a quo”) on 12 November 2012. A copy of that judgment
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is attached to the founding papers as annexure “LA 2”. On
11 February 2013 Tuchten J refused the Applicant leave to appeal
against that judgment and order; and
4.2. The order of the Supreme Court of Appeal (“the SCA”) of 22
October 2013, refusing an application for condonation for the late
filing of an application for leave to appeal to that court. A copy of
that order is attached to the founding papers as annexure “LA 1”.
In granting this order the SCA (per Cachalia JA and Saldulker JA)
found that an inadequate explanation had been provided for the
delay in bringing the application, and that in any event, the applicant
had “no reasonable prospects of success”.
5. In addition, the applicant again seeks condonation for the fact that it
brought the application, before this Court, out of time. This is quite
extraordinary, and (I am advised), unprecedented.
6. It is submitted that the applicant’s explanations for delay in bringing its
application in the SCA are self-evidently weak. This was exacerbated by
delays caused by the applicant in the proceedings in the court a quo, and
the failure to timeously file the application before this Court.
7. With respect to the application for leave to appeal, the respondents
submit (for the reasons dealt with below) that there is no reasonable
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prospect that this Court or another court will come to a different decision.
Indeed, the merits are very weak.
CONDONATION
8. The proceedings in the court a quo were launched in early 2011. The
Commission duly filed a record in terms of Rule 53 of the Uniform Rules
of the High Court, and the applicant filed a supplementary founding
affidavit on 17 June 2011. In that affidavit the applicant indicated that he
was in the process of procuring an affidavit from an unnamed “expert”,
who was a professor of history, and which would be filed “as soon as
possible”. Pending the filing of this affidavit, it was clear that the
respondents could not file answering papers.
9. The applicant and his attorney thereafter requested several extensions to
file the affidavit. When the affidavit was still not filed, the respondents
attorney (Mr. Bhadrish Daya) sought an explanation on several
occasions as to when it could be expected.
10. By 25 August 2011 the applicant’s attorneys indicated that the much-
vaunted affidavit was still not available, and the respondents should
instead proceed to prepare and file answering papers. The respondents
filed answering papers on 17 October 2011.
11. The applicant did not file replying papers, but instead filed an index in
the court a quo on 27 March 2012. In terms of the practice directions of
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the court a quo, the applicant should have thereafter filed heads of
argument within 15 court days. This was not done. Instead, after being
prodded by the respondents’ attorney, on 17 May 2012 the applicant’s
attorney requested an extension for the filing of heads. The heads were
eventually filed on 8 June 2012. As this was in the mid-year recess, the
respondents sought additional time to file their heads of argument, which
were filed on 30 July 2012.
12. The matter was thereafter set down for hearing in the court a quo on 5
and 6 November 2012; and the court a quo’s judgment was handed down
on 12 November 2012 (annexure “LA 2” to the founding papers)
13. The applicant applied for leave to appeal in the court a quo on
11 December 2012. Pursuant thereto the court a quo indicated several
dates in December 2012 and then again in January 2013 when it would
be prepared to hear this application, but the applicant’s counsel were
apparently not available.
14. The hearing of the application for leave to appeal came before Tuchten J
on 11 February 2013. Tuchten J gave an ex tempore judgment after the
hearing, in the presence of the counsel and attorneys for the applicant,
and the respondents, in which he shortly summarised the arguments and
stated that there were no good grounds to conclude that another court
may come to a different conclusion.
15. It appears that the applicant’s attorneys did not at that stage order a
transcription of the judgment. Instead, the applicant explains that his
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attorneys waited for two weeks (until 28 February 2013) before
attempting to place the onus on Tuchten J to make a transcribed version
of the judgment available. I am advised that in practice it is the duty of
the party intending to apply for leave to appeal to request in writing the
transcription from the transcribers – not the presiding judge. Once the
transcribed judgment is obtained, it is then placed before the presiding
judge for editing etc. This was clearly not done in this instance.
16. The applicant’s correspondent attorney thereafter appears to have
waited a further three (3) weeks (until 18 March 2013) before
ascertaining that there was no written judgment in the court a quo’s file.
This should, with respect, have been self-evident: I am advised that a
transcribed version of the judgment would only have been ordered from
the transcribers at the request of one of the parties. As no party had
requested a transcription, none was made.
17. It appears that it was only at this stage that a transcription was ordered.
The applicant’s attorneys however then still waited a further month (until
24 April 2013) before contacting Tuchten J’s office to determine whether
it had been finalised and signed. The applicant states that the judgment
was then made available on 10 May 2013. This judgment is attached to
the founding papers as “LA 7” - and comprises just two pages! A three
(3)-month delay in obtaining a two (2)-paged document is, with respect,
almost wholly attributable to the applicant and his attorneys. I
respectfully submit that this is unacceptably long and should not be
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condoned, in circumstances where this Kingship claim (and several
others) were heard by the Commission over an almost five (5)-year
period. Finality must be brought to these proceedings, especially where
(as in this case) there are no prospects of success on the merits.
18. To compound matters, it appears that it was only at this stage that the
applicant and his attorneys instructed counsel to draft an application for
leave to appeal to the SCA – notwithstanding that the contents of
Tuchten J’s judgment were known to them and their counsel. And it is
manifest in any event that the grounds of appeal in this application
almost verbatim reflect the applicant’s grounds of appeal in the leave to
appeal application in the court a quo, and applicant counsel’s heads of
argument in the court a quo..
19. It then inexplicably took a further two (2) months (until 22 July 2013) to
serve a copy of the application for leave to appeal to the SCA and on the
offices of the respondents’ attorneys.
20. As noted above, the SCA refused condonation on 22 October 2013
(annexure “LA 1” to the founding papers). The applicant’s
correspondent attorney received the order on 23 October 2013, and had
15 court days to file an application for leave to appeal in this Court.
Notwithstanding the fact that the affidavit supporting the current
application largely repeats that filed in the SCA (save for minor additions
dealing with the requirements under this Court’s rules, and the
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proceedings in the SCA), the applicant again failed to file the current
application timeously.
21. In light of this unfortunate history of delay and failure to comply with the
rules of various courts, it is submitted that the SCA quite correctly
refused condonation; and it is further submitted that this Court should
similarly refuse condonation.
22. Quite apart from the inadequate explanation given by the respondents,
the current application is, with respect, one which does not enjoy any
realistic prospects of success. As such, it is submitted that it is not in
the interests of justice for this Court to hear the matter.
BACKGROUND FACTS
23. Section 211 of the Constitution provides that the institutions, status and role of
traditional leadership, according to customary law, are recognised, subject to
the Constitution, and that a traditional authority that observes a system of
customary law may function subject to any applicable legislation and customs,
including amendments thereto. Section 212 of the Constitution left the finer
details regarding the issue of traditional leadership to legislation.
24. The Commission was established in terms of section 22(1) of the Traditional
Leadership and Governance Framework Act 41 of 2003 (“the Act”), which came
into operation on 24 September 2004. The initial twelve (12) members of the
Commission were appointed by the President. It became known as the Nhlapo
Commission, after its then chairperson, Prof Nhlapo.
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25. The Act was subsequently amended by the Traditional Leadership and
Governance Framework Amendment Act 23 of 2009, with effect from
25 January 2010. For the sake of convenience, I refer to the Act in its form
before the amendment as “the Old Act”, and in the form after its amendment as
“the New Act”.
26. The Commission was originally mandated, in terms of section 28(7) of the Old
Act to first investigate the position of existing paramountcies and paramount
chiefs.The Commission released its findings on the status of the twelve
paramountcies in April 2008, without pronouncing on the rights and status of
the incumbent paramount chiefs. AmaShangana were not one of these existing
paramountcies.
27. Once the investigation phase was completed, the Commission was required to
initiate an inquiry in terms of section 25(2) of the Old Act into “other” disputes
and claims enumerated in section 25(2)(a)(ii) – (vi).1 The applicant’s claim was
one of these disputes, i.e. one “where the title or right of the incumbent is
contested”.
1 “25. Functions of Commission. – (1) The Commission operates nationally and has authority to decide on any traditional leadership dispute and claim contemplated in subsection (2) and arising in any province. (2) (a) The Commission has authority to investigate, either on request or of its own accord- (i) …. (ii) a traditional leadership position where the title or right of the incumbent is contested; (iii) claims by communities to be recognised as traditional communities; (iv) the legitimacy of the establishment or disestablishment of “tribes”; (v) disputes resulting from the determination of traditional authority boundaries and the merging of division of “tribes”; and (vi) where good grounds exist, any other matters relevant to the matters listed in this paragraph, including the consideration of events that may have arisen before 1 September 1927”. (My emphasis).
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28. The Commission commenced its public hearings into the applicant’s claim in
respect of the recognition of amaShangana kingship, of which he claimed to be
the rightful heir, in two separate sittings in March 2006.
29. Subsequently, on 7 December 2007, three members of the Commission
(including Prof Nhlapo) resigned from the Commission. As a consequence, the
second leg of the hearings into the applicant’s kingship claim, during or about
December 2008, were chaired by me (in my capacity as the acting Chairperson
of the Commission).
30. The second stage of the public hearing was held on 8 December 2008. The
second stage of the hearings was held after the Commission had conducted
independent research into the applicant’s claim and the purpose of this hearing
was to canvass with the applicant the information gathered by the Commission
during the course of its research.
31. The applicant was furnished with a set of questions arising from the
Commission’s research to which he was expected to file a response prior to the
second phase of the hearings. These hearings were intended to provide the
applicant an opportunity to expand on, amplify and contextualise his responses
to certain questions. His answers to the questions are included in annexure
“LA 4” to the founding papers.
32. On or about 30 October 2009, the President extended the date by which the
Commission was to complete its mandate to 31 January 2010.
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33. The Commission finalised its work in relation to this second phase of its
mandate in terms of section 25(2)(a)(ii) of the Act on 21 January 2010 and
handed its report to the President, and the Minister on that day. The decision of
the Commission in relation to the claim by the applicant for recognition of the
kingship of amaShangana, is attached to the founding papers as annexure
“LA 12”. This concluded that there was no kingship to be restored, and that
the applicant’s claim in this regard had to fail.
34. The New Act then commenced on 25 January 2010, which substantially
amended many of the governing provisions
35. The President communicated his acceptance of the Commission’s report on
7 April 2010 by way of President’s Minute No 144. The President
communicated his acceptance of the report publicly on 29 July 2010.
36. On 3 November 2010, the President – by way of President’s Minute 407 –
recognised certain kingships in terms of section 28(8) of the Act. The
applicant’s kingship claim was not among those recognised by the President.
THE RELIEF SOUGHT BY THE APPLICANT IN THE COURT A QUO
37. In the court a quo the applicant sought to review and set aside a decision
of the President not to recognise the applicant’s claim for recognition as
the king of amaShangana. The applicant further sought to review and
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set aside the determination of the Commission rejecting his kingship
claim.
38. It is submitted that the Commission alone made any “decision” in respect
of the applicant’s kingship claim, in accordance with the then applicable
provisions of s 26(1), (2) and (3) of the Old Act. 2 The President, by
contrast, was merely required to “implement” the Commission’s
determination.
39. I note, for the sake of completeness, that under the New Act the
constitution and role of the Commission changed. Most notably, under
section 26 of the New Act, the Commission no longer makes “decisions”,
but merely “recommendations”. 3 The President no longer merely
2 “26. Decisions of Commission.-(1) A decision of the Commission is taken with the support of at least two thirds of the members of the Commission. (2) A decision of the Commission must, within two weeks of the decision being taken, be conveyed to- (a) the President for immediate implementation in accordance with section 9 or 10 where the position of a king or queen is affected by such a decision; and (b) the relevant provincial government and any other relevant functionary which must immediately implement the decision of the Commission in accordance with applicable provincial legislation in so far as the implementation of the decision does not relate to the recognition or removal of a king or queen in terms of section 9 or 10. (3) Any decision taken by the Commission must be conveyed to the President”. (Our underlining). 3 “[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 having been 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 … (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.
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“implements” (as he did under the Old Act), but now makes the governing
“decision”. These changes to the Act are however not of immediate
reference. As this Court held in the case of Sicgau v President of the
Republic of South Africa 2013 (9) BCLR 1091 (CC) at para 20-21, a process
which commenced under the Old Act had to be completed under the provisions
of that Act.
40. The upshot is that the only decision capable of being reviewed is that of
the Commission. The President made no reviewable decision – either
under the Old Act; the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”); or the principle of legality (pursuant to the rule-of-law in section 1(c) of
the Constitution).
41. The applicant’s principal complaints, in his founding papers, were that:
41.1. the President failed to independently investigate his claim or
provide reasons for his actions. This is, as a matter of law,
patently mistaken;
41.2. the Commission came to incorrect factual conclusions that the so-called
Gaza kingdom was destroyed in the period from 1895-1897, and was
never resuscitated. As will be dealt with below, this finding of fact was
(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.”
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premised on, and consistent with, information provided to the
Commission by the applicant himself.
42. In heads of argument, the applicant’s legal representatives attempted to bolster
his case by introducing new arguments, including that the Commission
impermissibly introduced new reasons for its decision in its answering papers in
this Court.
43. All of these arguments are again made in support of the current application, and
underlie the various arguments made in support of the application for leave to
appeal. I deal with each in turn.
44. I do not intend to deal seriatim with the founding affidavits. To the extent
that the averments made by or on behalf of the applicant are inconsistent
with my statements in this affidavit, or my affidavits in the court a quo,
they are expressly denied.
THE APPLICABLE PROVISIONS AND THE ROLE OF THE PRESIDENT
45. As noted above, in this case the provisions of the Old Act are determinative. As
explained, under its provisions the President did not make a decision, but
merely had to implement a decision of the Commission.
46. The applicant however contends that the President was required to conduct an
independent investigation into his claim prior to his acceptance of the
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Commission’s decision. To the extent that the President did not do so, it is
suggested that his ‘decision’ ought to be reviewed and set aside.
47. The applicant clearly misconceives/misinterprets the nature and scope of the
role assigned to the President in terms of the Old Act. There is nothing in the
Old Act which grants to the President the power to make a decision which
differs from that of the Commission. The decision is made by the Commission,
and in terms of section 26 of the Old Act, constituted administrative action as
defined under PAJA. The President’s role was merely to implement this
decision.
48. But even if the New Act applies, the applicant lays no basis for his suggestion
that the President must conduct an independent investigation of his own
(following on that of the Commission) into all kingship claims. The New Act only
requires the President to provide reasons if his decision differs from the
Commission’s recommendation in terms of s 26(4) of the New Act. In the
current case the President accepted the Commission’s recommendation. In
such circumstances there can be no requirement for him to separately
investigate the matter, or to provide reasons of his own.
49. In any event, the attorneys for the President and the Commission clearly
explained in a letter of 10 May 2011 (annexure “LA 14” to the founding papers)
that the President accepted the Commission’s decision and reasons.
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50. The applicant’s argument that the President failed to fulfil his statutory or other
(perceived) duties is thus plainly incorrect. Similarly, the suggestion that the
applicant has suffered some form of procedural unfairness
51. A further issue raised by the applicant (at paragraphs 30 to 33 of the founding
papers) relates to the fact that when the President took action in this case (in
April 2010 and thereafter), he committed an error of law because he thought
(incorrectly) that he was acting under the New Act.
52. It is correct that the President’s actions in April 2010 and thereafter indicate
that he thought that he was required to act under the New Act (which had
commenced on 25 January 2010).
53. It is also accepted that – as found by this Court in the Sicgau case – the
President’s assumption that he was required to act under the New Act was
incorrect. Although the New Act was by then operative, proceedings which had
commenced under the Old Act had to be completed under that Act.
54. It is however submitted that the court a quo properly recognised that the
President’s error in this regard caused no discernible prejudice to any party, and
that setting aside the President’s actions on this basis would be an exercise in
futility. In this regard it is significant to note that:
54.1. Such an attack would only impugn the President’s actions – and not the
more important underlying decision of the Commission taken in terms of
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s 26 of the Old Act. In other words, the Commission’s decision not to
recognise the kingship of amaShangana, would stand.
54.2. The upshot of the President applying the New Act (albeit incorrectly), is
that he applied his mind on the basis that he was required to make a
decision. In fact, under the Old Act, he was not required to make any
decision, but merely to implement the Commission’s decision. It is
submitted that it would make little sense to set aside the President’s
existing action in these circumstances. All that this would mean is that the
Commission’s existing decision would again serve before him. This time,
instead of applying his mind (as he previously did under the New Act), he
would simply have to implement the Commission’s decision (under the Old
Act). It would, with respect, be an absurd outcome to remit the matter to
the President in these circumstances. I am advised by our legal
representatives that this Court will not hear an appeal the outcome of
which would have no practical result, or effect.
THE COMMISSION’S CONSIDERATION OF FACTUAL ISSUES
55. In terms of section 25(4) of the Old Act, the Commission had the authority to
investigate all traditional leadership claims and disputes which arose after
1 September 1927. In terms of section 26(2)(a)(vi) of the Old Act, the
Commission could only investigate older disputes (i.e. which arose before
1 September 1927) “where good grounds exist”.
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56. In terms of section 25(2)(a)(viii) of the New Act the Commission has the
authority to investigate and make recommendations on “all traditional leadership
claims and disputes dating from 1 September 1927 …”. (I note for the sake of
completeness that under the New Act no reference is made to the
Commission’s power to consider disputes which arose before 1927, save that
section 25(4)(a) notes that the Commission may investigate and make
recommendations on those disputes and claims that were before it when the
amendment came into force).
57. This is relevant to the current matter in that it is common cause that the
applicant’s claim relates to the restoration of a kingdom which ceased to exist
well before 1 September 1927.
58. It is submitted that the applicant failed to present any compelling or good
reasons why the Commission should resuscitate a kingdom which had ceased
to exist prior to 1 September 1927. Particularly in circumstances where most of
that kingdom was located outside of the borders of present-day South Africa.
59. The applicant however contends that the Commission failed to take proper
account of relevant information presented by him. The approach of the
Commission was, quite correctly, to look at the totality of the evidence
presented in coming to its decision.
60. It is submitted that the applicant’s own oral presentation to the Commission
(annexure “LA 4” to the founding papers) supports the Commission’s finding
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that the amaShangana kingdom (also known as the Gaza empire) was – as an
incontrovertible fact – destroyed.
61. The applicant conceded that the last king of amaShangana, Nghunghunyani,
was defeated by the Portuguese in 1895, and signed a treaty with the
Portuguese which compromised the sovereignty of the Gaza empire.
62. The above statements were supported by the presentation notes submitted to
the Commission by the applicant’s representatives. In order to avoid burdening
these papers, I do not attach these notes. These notes state that:
62.1. The amaNdwandwe people were a part of the Nguni people occupying
northern Zululand. After being defeated by Shaka in 1819, the royal family
of amaNdwandwe and its followers fled, eventually settling in a place
known as Bileni (in modern day Mozambique). Along the way,
amaNdwandwe in turn conquered and subjugated various indigenous
communities, and created the kingdom of amaShangana.
62.2. King Nghunghunyani was the last ruler of the Gaza.
62.3. After the defeat of King Nghunghunyani in 1895, none of his descendants
were recognised as a King.
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62.4. The ‘headless’ subjects of the Empire were treated with disdain. The
military defeat of the Gaza Empire in 1895 was only the first step towards
the complete subjugation of the Kingdom.
63. The applicant also submitted to the Commission a document entitled the
“Historical Background of the Gaza-Ndwandwe Nxumalo Royal House” which
adds further weight to the Commission’s findings. This document is again not
attached, but records:
63.1. In 1884 to 1885 King Nghunghunyani negotiated with the governor of
Lorenço Marques, culminating in an agreement by which the Gaza empire
agreed to fly the Portuguese flag and permit mineral prospectors.
63.2. By the 1880s the “largest single state of the Gaza Empire was already in
decline by various reasons”, including Portuguese expansion and
increased migrant labour.
63.3. In 1894 the Gaza were defeated in two decisive battles.
63.4. King Nghunghunyani was the “last great king of the Ndwandwe Kingdom
who ruled Gaza”.
63.5. No chief was appointed to replace Nghunghunyani and Gaza was divided
into districts under Portuguese rule. In 1897 a rebellion was co-ordinated
by Magigwana Khosa, who had been Nghunghunyani’s general of war.
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This was suppressed after a “decisive battle” of 21 July 1897 which
completed the “crushing of the Gaza Empire”.
63.6. The kingdom was scattered. The remnants of the Gaza royal household
and a “contingent of supporters” moved to Bushbuckridge, under the
leadership of the King’s uncle, Mpisani Nxumalo (who acted as regent for
the King’s remaining sons). Others moved to area controlled by the
Portuguese or Musapa.
63.7. In 1910 Mpisani Nxumalo renounced his regency in favour of one of
Nghunghunyani’s sons, Thulamahashi Msinganyela Nxumalo, however,
neither Mpisani nor Thulamahashi’s authority extended beyond their
immediate followers.
64. The applicant also submitted to the Commission a book edited by Dr U de V
Pienaar “Neem Uit die Verlede”, published by the National Parks Board in 1990,
which was contained in its entirety in the record before the High Court. This
however only added credence to the approach adopted by the Commission’s
decision. In chapter 3 of this book, written by Prof J H Eloff and entitled “’n
Nuwe Orde”, the history of the “Changana-Tsonga” is dealt with. This records
the rise of the Gaza kingdom in the 19th Century, as well as its destruction.
65. In addition, as dealt with above, the commissioners placed questions before the
applicant at the second stage of the hearings. The applicant was specifically
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asked to clarify whether he was claiming a restoration of a previously existing
kingship or the establishment of a new kingship for amaShangana.
66. The applicant in his written responses stated that his application was for the
restoration of the Gaza kingdom which had been destroyed after the defeat of
Nghunghunyani in 1895. The applicant went on to assert that in his view the
Gaza Kingdom was sent into perpetual limbo and that the remnants of the Gaza
Royal House were never given an opportunity to reassert their royalty having
been reduced to the level of ordinary chiefs.
67. This version was again confirmed by the applicant’s representative at the
second phase of the hearings.
67.1. Adv S D Ndengezi asked the applicant’s representative when he would
say that the kingdom or empire that they were claiming was lost, to which
the he responded that he regarded the Kingdom as having been lost in
1895 with the capture of Nghunghunyani.
67.2. Adv Ndengezi requested the applicant’s representative to place before the
Commission any relevant reasons or circumstances which would justify
the Commission investigating a claim in relation to an empire which on the
applicant’s own version disappeared during or about 1895.
67.3. In response the applicant’s representative merely repeated what he had
stated in the main presentation. Despite the Commission pointing this out
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to him and allowing him the opportunity to supplement his reasons, he was
unable to provide any such good grounds for the Commission to
investigate the applicant’s claim.
67.4. Adv Ndengezi also asked the applicant’s representative to clarify what the
applicant’s current status is among his own people. This resulted in a
concession by the applicant’s representative that the applicant is regarded
merely as a senior traditional leader among his own people.
68. Interested parties were granted an opportunity to contest the applicant’s version
at the public hearings into his claim. It is clear from the record that at least two
interested parties did in fact raise significant challenges to the applicant’s claim.
As such the applicant’s claim was not uncontested.
69. The applicant’s version was contested by Mr Mandla Darance Mathebula (“Mr
Mathebula”), as well as by the Bangwanati senior traditional leaders
represented by Mr Mkhacani Godfrey Maluleke (“Mr Maluleke”) – both of whom
posed serious challenges to the applicant’s version.
70. It is common cause that the Gaza kingdom was subjugated and destroyed
during or about 1895 -1897. As such the applicant was required to show good
grounds for the Commission to consider the restoration of the kingship claimed
by him. It is abundantly clear from the record that despite having numerous
opportunities to place such information before the Commission the applicant
simply failed to do so.
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71. Further the applicant appears to be of the view that the Commission was
precluded by the relevant legislation from taking into account events
which occurred as a result of what he terms “colonial intrusion”. This is
simply not the case.
72. There is no provision in either the Old Act or the New Act which
precludes the Commission from taking into account the fact that the
applicant’s ancestors signed a treaty with the Portuguese in terms of
which they surrendered their sovereignty.
73. The Commission was alive to the injustices of the colonial era, and the
impact on traditional authorities. That does not, however, change the
fact that – even on the applicant’s version – the Gaza kingdom was
destroyed in the last five years of the nineteenth century and has never
been resurrected.
74. The applicant was accordingly not merely asking the Commission to
recognise a de facto kingdom which had been reduced in legal stature as
a result of historical travails. He was essentially asking the Commission,
by a legal process, to conjure a kingdom back into life over a century
after its demise.
75. The applicant further stated that the Commission misdirected itself by
pointing out that much of the area which historically fell under the Gaza
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kingdom, now lies outside of South Africa. Once again the applicant’s
own version supports the Commission’s findings in this regard.
75.1. During the second phase of the hearings into the applicant’s claim, this
issue was addressed by one of the Commissioners, Ms Robinson, who
asked the applicant’s representative whether he was aware of any leader
of amaShangana who had reigned as a king, not a chief, inside the
present borders of South Africa. It was conceded by the applicant’s
representative that he was not aware of any such king.
75.2. The applicant in his written responses confirmed that the Great Places of
the Gaza kingdom, which he identified as being Bileni, Musapa, Chayimithi
and Mandlakazi, are all situated in either present-day Zimbabwe or
Mozambique.
75.3. At the second phase of the hearings, Mr Nkuna for the applicant confirmed
these facts.
76. The applicant’s criticism of the Commission’s factual findings is
accordingly misplaced.
77. It is submitted in any event that the applicant blurs the boundary
between review, and an appeal. The now well-established principle of
“judicial deference” entails due regard to the division of powers under the
Constitution.
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78. The applicant suggests that Tuchten J over-emphasised, or
misconceived, the nature of judicial deference. This is not correct.
Deference does not involve judicial timidity, or mean that a court will
close its eyes to material legal errors and demonstrable factual errors. It
does, however, mean that a Court will be slow to intervene in a factual
assessment made by a specialist body. This was plainly, and correctly,
appreciated by Tuchten J.
79. I would highlight that the applicant cannot point to any instance in which
the Commission simply got a fact wrong, or which was not extracted from
the material before it. As such, the Commission’s decision was rationally
connected to the material before the Commission.
80. The applicant instead cavils about the Commission’s assessment and
weighting of common-cause facts. It is submitted that it is precisely in
this sort of situation in which a Court should be slow to intervene in the
Commission’s findings – unless its conclusions are obviously
unreasonable.
81. In terms of this principle the “test” under PAJA is whether the decision
was one that a reasonable decision-maker could not have reached or put
slightly differently, a decision-maker could not reasonably have reached.
This is not such a case.
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82. The applicant attempts to make some headway out of an apparent
contradiction in the Commission’s determination (annexure “LA 12” to
the founding papers). In particular, reliance is placed on the paragraph
7.3.19 of the determination, in which the evidence before the
Commission was recounted. The Commission noted that after the defeat
of Nghunghunyani, he and his two sons were imprisoned by the Portuguese.
The remnants of the royal house regrouped in Bushbuckridge. In 1922 one of
the sons, Buyisonto, was released and “joined the royal family at Bushbuckridge
where he assumed the position of king of amaShangana. The South African
Government, however, did not recognise him as king ...”.
83. The Commission continued to make findings in paragraph 7.4 of its
determination. The findings did not include anything to the effect that Buyisonto
assumed the position of king. Clearly some people may have thought of him as
a king (and the son of a king), but the more important and incontrovertible point
remains that the kingdom itself no longer existed. At least, all that
remained was a small portion of the kingdom.
84. In the circumstances it is submitted that Tuchten J was quite correct in
his finding that the supposed contradiction was “at a textual level and is
thus more apparent than real” (at paragraph 57 of his judgment).
85. In the circumstances, there is no basis on which the court a quo could
have, or should have, set aside the decision of the Commission. There
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is no reasonable prospect that any other court will come to a different
decision.
SUPPOSED NEW REASONS FOR THE COMMISSION’S DECISION
86. In its heads of argument in the court a quo, the applicant introduced an
argument (made for the first time) that the Commission’s answering
papers in the review proceedings differed from those in its original record
of decision. This is simply not so.
87. In the current application, the applicant presents a detailed legal
argument that it is impermissible, and unfair, to introduce ‘new’ reasons
in papers before a Court in order to justify an impugned decision (at
paragraphs 43 to 53 of the founding papers). As a legal proposition,
there is no dispute that in review proceedings the impugned decision
must be tested against the reasons actually given, and that a decision-
maker cannot justify its decision on additional reasons subsequently
thought of in the course of legal proceedings.
88. The respondents also never suggested that they were free to present
new reasons for the Commission’s determination, in addition to those
stated in the determination document itself (annexure “LA 12”).
Tuchten J also did not find that such new reasons could be introduced.
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89. Instead, the respondents submitted that as a matter of fact they did not
present any ‘new’ reasons. The reasons were those in the Commission’s
determination. These reasons were accepted by the President. These
reasons were expressed with sufficient clarity and detail. The answering
papers merely expanded on, or explained, these existing reasons.
90. In the current application, the applicant fails to indicate any example in
which the respondent’s introduced a ‘new’ reason in the court a quo
which was not grounded in the Commission’s determination. I am
accordingly advised that it is not incumbent on me to illustrate that the
reasons relied on in the respondent’s answering papers were the same
as those in the Commission’s original determination – i.e. that no ‘new’
reasons were introduced.
91. The respondents’ heads of argument in the court a quo conclusively
showed that no ‘new’ reasons were introduced. The fact that the
applicant cannot indicate any clear examples of supposed reliance on
such ‘new’ reasons is telling.
92. Similarly, the applicant makes an abstract argument that reasons must
be provided, and must be clearly stated. Again, there is no dispute in
this regard.
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93. In this case the Commission’s determination was supported by a lengthy
discussion of the evidence before it and its findings. The Commission’s
reasons and resulting decision were accepted by the President.
CONCLUSION
94. It is not disputed that the current case, dealing with a traditional kingship claim
and a decision of the Commission, has a “constitutional dimension” (as stated
by this Court in the Sigcau matter at para15). It is however submitted that it is
not in the interests of justice for this Court to grant leave to appeal.
95. It is common cause that the Gaza kingdom was destroyed in 1895-1897. The
remnants of the royal household that escaped enjoyed the support of only a
fragment of the former subjects of the Gaza empire. They were never
recognised formally as a royal household, and as a fact appeared to have
limited power and reach.
96. The applicant could illustrate no compelling reasons for the Commission to
consider a claim which on his own version arose prior to 1 September 1927.
Accordingly, in terms of the Act, the Commission reasonably and rationally
decided to reject his kingship claim.
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97. Further the Commission’s reasons accord with the totality of evidence
placed before it by the applicant and other interested parties as well as
its own research.
98. The Commission’s decision was not only correct, but was also reasonable,
rational, and fair in that it accorded with the provisions of the Constitution and
the applicable legislation.
99. On the basis of the aforegoing it is submitted that the court a quo correctly
dismissed the applicant’s application, with costs. The SCA also correctly
refused leave to appeal. It is submitted that there is no reasonable prospect
that a different Court will come to another decision. In the circumstances, it is
further submitted that the application for leave to appeal should be dismissed
with costs, including the costs of two (2) counsel.
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MOHLOMI ALBERT MOLELEKI
I certify that the above affidavit was signed and sworn to at before me on this the day of NOVEMBER 2013 by the deponent after he declared that he knew and understood the contents of this affidavit, that he had no objection to taking the prescribed oath which he regarded as binding on his conscience, and after he uttered the words: “I swear that the contents of this affidavit are true, so help me God”.
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COMMISSIONER OF OATHS