IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No: CCT3/07 In the matter between:

TINYIKO LWANDLAMUNI PHILLIA MAMITWA SHILUBANA First Applicant

WALTER MBIZANA MBHALATI Second Applicant

DISTRICT CONTROL OFFICER Third Applicant

THE PREMIER: LIMPOPO PROVINCE Fourth Applicant

MEC FOR LOCAL GOVERNMENT AND HOUSING Fifth Applicant

HOUSE FOR TRADITIONAL LEADERS Sixth Applicant

CHRISTINA SOMISA MAMITWA Seventh Applicant

MATHEWS T N MAMITWA Eighth Applicant

BEN SHIPALANA Ninth Applicant

ERNEST RISABA Tenth Applicant

STONE NGOBENI Eleventh Applicant and

SIDWELL MAMITWA Respondent

APPLICANTS WRITTEN ARGUMENT

Page 2

TABLE OF CONTENTS

ITEM PAGE NO.

1. Introduction 3

2. Factual Background 6

3. Legislative Framework 13

4. Status of Customary Law 18

5. The Principle of Male 25

6. Comparative Treatment of Succession to Traditional Leadership 27

7. Application of the Law to the Facts 31

8. The Findings of the Court A Quo 35

9. Questions Raised in the Court’s Directions 40

10. Application for Condonation 47

11. Application for Leave to Appeal 48

12. Appropriate Relief and Conclusion 49

13. Authorities 53

14. Applicants Chronology of Relevant Events 55

13. Copy of Supreme Court of Appeal Judgment 57

Page 3

INTRODUCTION

1. On 1 December 2006, the Supreme Court of Appeal (“the

court a quo”) delivered judgment in the above matter

dismissing with costs the Applicants appeal. This is an

application for condonation for the late filing of the Applicants

application for leave to appeal, and in the event that the

condonation is granted, an application for leave to appeal the

whole judgment and order of the court a quo, and if that is

granted, to argue the merits of the appeal.

2. On 14 March 2007, the Court issued revised directions (“the

Court’s directions”) in this matter that the written argument

must include argument on the merits of the appeal, and must

also address the following issues:

2.1 Does the Royal family have the authority to develop

the customs and traditions of the Valoyi community

so as to outlaw gender discrimination in the

succession to traditional leadership?;

2.2 In the course of developing the customs and the

traditions of a community, does the Royal family

have the authority to restore the position of

traditional leadership to the House from which it Page 4

was removed by reason of gender discrimination,

even if this discrimination occurred prior to the

coming into operation of the Constitution?;

2.3 Are the provisions of the Traditional Leadership and

Governance Framework Act, 2003 (“the Framework

Act”) applicable to these proceedings?;

2.4 If the provisions of the Framework Act are

applicable, is the dispute relating to the restoration

of traditional leadership, the kind of dispute that

ought to be dealt with by the Commission as

required by Section 21(1)(b) read with Section

21(1)(b) of the Framework Act?

3. In these written submissions, we:

3.1 deal with the factual background to the dispute;

3.2 address the relevant legislative framework;

3.3 consider the proper context within which the status

of customary law is to be approached;

3.4 discuss the principle of primogeniture; Page 5

3.5 refer to comparative treatment of succession to

traditional leadership;

3.6 apply the law to the facts in this matter;

3.7 critically look at the findings of the court a quo and

the reasons thereof;

3.8 make submissions relating to questions raised in

the Court’s Directions;

3.9 attend to the application for condonation, as well as

the leave to appeal, and finally,

3.10 argue the appropriate relief and conclusion.

Page 6

FACTUAL BACKGROUND

4. The following facts have been found by the court of first

instance, as well as the court a quo to be correct, that:

4.1 for five generations, the chieftainship of the Valoyi

community was patrilineal and according to

primogeniture;1

4.2 the first of the Hosis was a Hosi Mamitwa, who was

married to four wives. Two of his children from the

first wife were females and the other two, males. It

is unknown what became of the two sons;2

4.3 Hosi Mamitwa was succeeded by Hosi Mahwahwa,

who was the eldest son from his second wife;3 This

was as a result of the two sons from the first wife

having not returned from the war;

1 Record, Vol 1, Founding Affidavit, pg 11 – 12, para 3; Vol 7, pg 605, line 17 – 26, pg 606, line 1 – 15; Judgment of the court of first instance; Judgment of the court a quo para 5 2 Record, Vol 8, pg 674 & 675; Judgment of the court of first instance, pg 605; Judgment of the court a quo para 5 3 Record, Vol 7 pg 605, lines 21 – 24, Judgment of the court of first instance: Vol.7. p.605, lines 16 to 23; Judgment of the court a quo, para 5 Page 7

4.4 Hosi Mahwahwa also married four wives. From his

first marriage he sired six children. The first was

female, second and fifth males. Upon his death, he

was succeeded by Hosi Mahlebezulu who was

second in order of birth but the first male from his

first wife;4

4.5 at the death of Hosi Mahlebezulu Mamitwa, Hosi

Rufus Mamitwa who was a brother to Hosi

Mahlebezulu Mamitwa acted as a Hosi since Hosi

Fofoza Mamitwa was a minor. The latter was the

second born child (the first being a female) but

eldest male from the marriage of Hosi Mahlebezulu

Mamitwa to his first wife;5

4.6 when Hosi Fofoza Mamitwa came of age, he took

over the chieftainship on 26 May 1948. He reigned

until his death on 24 February 1968. He was the

father to the first respondent. He was also the elder

brother of Hosi Richard Mamitwa (the father to the

applicant);6

4 Record, Founding Affidavit Vol 1 para 3, line 1 -8; Answering Affidavit, para 17 pg 88; Judgment of the court of first instance, Vol 7, pg 605-606, lines 25-32; Judgment of the court a quo, para 5 5 Record, Founding Affidavit, Vol 1 para 3.1.1, pg 11; Judgment of the court of first instance, Vol 7, pg 606, line 25-32; Judgment of the court a quo, para 5. 6 Record, Vol 1, Founding Affidavit, para 3.1.1, pg 11, lines 12-15; Judgment of the court of first instance, Vol 7, pg 606, lines 7-15; Judgment of the court a quo, para 5. Page 8

4.7 during the illness of Hosi Fofoza Mamitwa, Hosi

Richard Mamitwa was appointed acting chairman of

the Valoyi Tribal Authority on 25 January 1968. He

was later appointed as acting Hosi on 26 March

1968. He was finally appointed a Hosi on 24

October 1968;7

4.8 on 22 December 1996 there was a meeting of the

Royal family attended, amongst others, by the late

Chief Richard Mamitwa, the Respondent and the

First Applicant;8

4.9 various resolutions were adopted including

conferring chieftainship of the Valoyi to the First

Applicant because she is the first born of chief

Fofoza Mamitwa together with his wife Queen

Favazi. The Council unanimously accepted that

resolution;9

7 Record, Founding Affidavit para 3.3, pg 12; Answering Affidavit, para 19, pg. 89, Judgment of the court of first instance, Vol. 7, pg 606, lines 11-15, Judgment of the court a quo, para 5 8 Record, Founding Affidavit, para 5, pg 14, Answering Affidavit, para 21, pg 92; Judgment of the court of first instance, Vol 7, pg 608, lines 1-6; Judgment of the court a quo, para 5. 9 Record, Founding Affidavit, paras 5.1 and 5.2 pg. 15; Answering Affidavit, para 21 pg. 92; Judgment of the court of first instance, Vol 7, pg 608, lines 6-10; Judgment of the court a quo, para 6 Page 9

4.10 the Council also revealed that though in the past it

was not permissible by the Valoyis that a female

child be heir, in terms of democracy and the

Republic of South Africa Constitution, it is now

permissible that a female child be heir since she is

also equal to a male child;10

4.11 the Council further resolved “the matter of

chieftainship and regency will be conducted

according to the Constitution of the Republic of

South Africa and according to the acceptance of the

Commission”;11

4.12 the First Applicant did not want Chief Richard

Mamitwa removed and requested that he wait for

her and continue until she finishes with her

responsibilities in Parliament. Chief Richard

Mamitwa died on 1 October 2001. The Royal Family

requested the Commission for traditional leadership

to support the resolution;12

10 Record, Judgment of the court of first instance, Vol 7, pg 608, lines 13-17 11 Record, Founding Affidavit, parag 5.3, pg 15, Answering Affidavit, para 21, pg 92, Answering Affidavit, para 32, pg 97, Judgment of the court of first instance, Vol 7, pg 608, lines 17-25, Judgment of the court a quo, para 6, pg 4 12 Record, Founding Affidavit, parag 5.3, pg 15, Answering Affidavit, para 21, pg 92, Answering Affidavit, para 32, pg 97, Judgment of the court of first instance, Vol 7, pg 608, lines 17-25, Judgment of the court a quo, para 6, pg 4 Page 10

4.13 Chief Richard Mamitwa, in writing, invited the Chief

Magistrate, Ritavi District, to attend the meeting of

the Royal Council on 17 July 1997 and in the

presence of the Chief Magistrate and 26 witnesses,

Chief Richard Mamitwa acknowledged, in writing,

that the First Applicant is the child of the eldest wife

of Chief Fofoza Mamitwa and is now heiress to the

Valoyi chieftainship. Further, that “she must be

given the position”;13

4.14 on 17 July 1997, the Valoyi Tribinal Authority sent

a letter to the Commission for Tribal Leaders stating

that the Royal Family had brought the matter to an

end. The language used was:

“The royal family does not need the interference of

the Commission because we have reached the

consensus, that the Chieftainship goes to its rightful

owner being Tinyiko Lwamdlamuni Phillia Shiluyana

who is the first child of Chief Fofoza and queen

Favazi Mwamitwa.”

13 Record, Founding Affidavit, para 5.1 and 5.2, pg 15, Answering Affidavit, para 21, pg 92, Judgment of the court of first instance, pg 609, lines 4-8 Page 11

The document is signed, inter alia, by Chief Richard

Mamitwa and the now Acting Hosi, the Second

Applicant;14

4.15 on 5 August 1997 the Royal Council accepted and

confirmed that Chief Richard Mamitwa agrees to

transfer powers to the First Applicant and resolved

that Chief Richard Mamitwa continues with the

chieftainship until the First Applicant returns from

Parliament;15

4.16 on the same day and in the presence of Chief

Richard Mamitwa and members of the community,

the Valoyi Tribal Authority resolved that “in

accordance with the usage and customs of the

Community” the First Applicant be appointed Hosi

and that Chief Richard Mamitwa support that

resolution. Signatories to the resolution are,

amongst others, Hosi Richard Mamitwa, the First

and Second Applicants and the Respondent; 16

14 Record, Founding Affidavit, para 5.2, pg 15, Answering Affidavit para 21, pg 92, Judgment of the court of first instance, Vol 7, pg 609, lines 9-18 15 Founding Affidavit, para 5, pg 15, Answering Affidavit, para 21, pg 92, Judgment of the court of first instance pg 609, lines 19-23 16 Record, Founding Affidavit, pg 5.4, pg 15, Answering Affidavit, para 22, pg 92, Judgment of the court of first instance, Vol 7, pg 609-610, lines 24-26 Page 12

4.17 on 25 February 1999, Chief Richard Mamitwa wrote

a letter withdrawing and stating that he is no longer

interested. The letter was not witnessed and unlike

the earlier resolutions and letters was not supported

by the Royal Family, the Council or the Tribal

Authority; 17

4.18 on 25 November 2001 a meeting took place of the

Royal Family, the Tribal Council, local government,

civic structures and stakeholders of different

organisations. It was attended by 89 people. After

recounting the facts, it was resolved:

“Mr Samson Mamitwa went ahead and pronounced

that N’wa-Fofoza Lwandlamuni Shilubane is the chief

of the homestead of the Valoyi’s, the meeting align

itself with the resolution of the royal family and the

royal council. There were praises and jubilations to

welcome a female figure as a leader (chief) in the

form of Mrs N’wamitwa Shilubane. It was sign of

respect and support.”18

17Record, Founding Affidavit, para 5.5, pg 16, Answering Affidavit, para 20, pg 93, Judgment of the court of first instance, Vol 7, pg 610, lines 7-17 18 Record, Answering Affidavit, para 32, pg 97, Judgment of the court of first instance, Vol 7, pg 611, lines 3-13 Page 13

4.19 on 22 May 2002 the Executive Council of the

Limpopo Provincial Government took a Decision

No.32/2002 appointing the First Applicant as the

Chief of the Valoyi community; 19

19 Record, Answering Affidavit, para 32, pg 97, Judgment of the court a quo, para 7, pg 4 Page 14

LEGISLATIVE FRAMEWORK

5. We submit that the following provisions of the Constitution of

the Republic of South Africa, 1996 (“the Constitution”), as well

as the Traditional Leadership and Governance Framework Act

41 of 2003 (“the Framework Act”), lend their relevance to the

determination of the issues that arise in this present matter.

5.1 It is trite law that the Constitution is an over-

arching umbrella under which all law, including

customary law, falls.20

5.2 One of the fundamental values enshrined in the

Constitution is the ever important goal for the

achievement and attainment of equality and the

advancement of human rights and freedoms21.

5.3 The other fundamental value enshrined in the

Constitution is that there is imbued in everyone

inherent dignity. Concomitant with that is the right

20 Sec 1(c) read with sec 2 of the Constitution “The Republic of South Africa is one, sovereign, democratic state founded on the values … supremacy of the Constitution and the Rule of Law. The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” 21 Sec 1(a) read with sec 9(1) of the Constitution “The Republic of South Africa is one, sovereign, democratic state founded on the following values (a) human dignity, the achievement of equality and the advancement of the human rights and freedoms. … Everyone is equal before the law and has the right to equal protection and the benefit of the law.” Page 15

enjoyed by all that their human dignity should be

respected and protected.22

5.4 Under our constitutional dispensation, and in line

with the respect and protection enjoyed by all, is the

right of everyone to practice and participate in the

cultural life of their choice. The right to practice

one’s culture includes the right to enjoy one’s

culture with members of one’s community. It is a

right that cannot be denied. The only limitation

imposed by the Constitution for the enjoyment,

pursuit, and practice of one’s culture, is that such

must be in harmony with the Bill of Rights.23

5.5 Amongst the constellation of laws and legal

instruments, customary law has under a

constitutional democracy acquired a proud place.

This is a ringing departure from our past, a legal

system of parliamentary sovereignty. Customary

law is now measured in its own right and is only

22 Sec 10 of the Constitution “Everyone has inherent dignity and the right to have their dignity respected and protected” 23 Sec 30 read with sec 31(a) of the Constitution “Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with the provisions of the Bill of Rights. …Persons belonging to a cultural, linguistic or religious community may not be denied the right, with other members of that community to enjoy their culture, practice their religion and use their language.” Page 16

subject to constraints and limitations imposed by

the Constitution.24

5.6 The Constitution confers capacity and competence

on the traditional authority that observes a system

of customary law to do so subject to any applicable

legislation and customs. Significantly, the

Constitution recognises that a traditional authority

may function in accordance with any custom

including amendments to those customs.25

5.7 On 24 September 2004, the Framework Act came

into operation providing for amongst other the

establishment and recognition of traditional

communities, and for dispute resolution and the

establishment of the Commission on Traditional

Leadership Disputes and Claims (“the

Commission”).

24 Sec 211 of the Constitution “The institution, status and role of traditional leadership, according to customary law, are recognised, subject to the Constitution”. 25 Sec 211(2) of the Constitution “ Traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs” Page 17

5.8 The Valoyi Traditional Community are deemed to be

a traditional community within the meaning of the

Framework Act.26

5.9 The Framework Act confers national jurisdiction on

the Commission with the authority to decide on any

traditional leadership dispute and claims

contemplated in Section 2 of that Act.27

5.10 The authority of the Commission is, amongst others,

to investigate a case where there is doubt as to

whether a kingship, senior traditional leadership or

headmanship was established in accordance with

customary law and customs, and the authority to

investigate a traditional leadership position where

the or right of the incumbent is contested.28 We

will submit later that the subject matter of the

dispute before Court falls within the ambit of the

work assigned to the Commission by the Framework

Act.

5.11 Our interpretation of the Framework Act impels a

conclusion that the Act is both prospective as well

26 Sec 28(3) of the Framework Act “Any ‘tribe’ that immediately before the commencement of this Act, had been established and was still recognised as such, is deemed to be a traditional community contemplated in sec 2.” 27 Sec 22 of the Framework Act 28 Sec 25(2)(i) and (ii) of the Framework Act Page 18

as retrospective in respect of some of the issues it

identifies.29 In particular, the Act confers

jurisdiction on the Commission to investigate

traditional leadership claims on disputes dating

from 1 September 1927. We will submit later that

the time frame of the dispute before Court falls

within the ambit of the work assigned to the

Commission by the Framework Act.

5.12 Prior to the coming into operation of the Framework

Act, the disputes relating to traditional leadership in

the Northern Province were handled in terms of a

commission of enquiry, later known as the Ralushai

Commission.30

29 Sec 21 read with 25(4) of the Framework Act 30 Commission established in terms of the Proclamation 2 of 1996 of the Northern Province with the mandate to enquire into alleged disputes regarding traditional leadership or irregularities or malpractices in the appointment of the traditional leaders in the Northern Province. Page 19

STATUS OF CUSTOMARY LAW

6. A close reading of academic literature and court

pronouncements sheds some guidance on the status of

customary law as it obtained under parliamentary

sovereignty. It is also possible to distil from the literature and

court decisions the impact the Constitution has on the status

of customary law. We point to some salient aspects in this

regard:

6.1 Under Parliamentary sovereignty the treatment of

customary law was in many respects very

paternalistic. Customary law was tolerated where it

was found not to be inconsistent with public policy

or natural justice.31

6.2 In the Certification of the Constitution judgment, the

Court remarked that the institution status and role

of traditional leadership are protected under the

final text. So too is the guarantee in relation to the

continued existence of customary law. The Court

31 Sec 1 of Law of Evidence Amendment Act 45 of 1988; Bennett TW: Application of Customary Law in South Africa 1985, pg 12 “The status of customary law is low relative to the other branches of law; it is ‘poor law’ and, especially in a country such as South Africa, remains the law of an oppressed group. People in this class are precluded in the main stream of the legal system.” Bennett TW, Customary Law in South Africa, pg 34 “Until the advent of a new Constitution in 1993, customary law had never been fully recognised as a basic component of the South African legal system. Instead, Roman Dutch Law was treated as the common law of the land.”

Page 20

went on to observe that the framers of the

Constitution had left open the complicated, varied

and ever-developing specifics on how customary law

should develop and be interpreted in the wider

democratic society.32

6.3 Under the pre-Constitutional order, Customary Law

was lamentably marginalised and allowed to

degenerate into a vitrified set of norms alienated

from its roots in the community commented Justice

Mokgoro.33

6.4 Langa DCJ (as he then was) had occasioned to state

that the positive aspects of customary law have long

been neglected. The inherent flexibility of the

system is but one of its constructive facets.

Customary law places much store in consensus

seeking and naturally provides for family and clan

meetings which offer excellent opportunities for the

prevention and resolution of disputes and

disagreements. Nor are these aspects useful in the

area of these disputes. They provide a setting which

contributes to the unity of the family structures and

the fostering of co-operation, a sense of

32 In Re Certification of the Constitution of the RSA, 1996 (4) SA 744 pg 834 para 197 33 Du Plessis and Others v De Klerk and Another, 1996 (3) SA 850 (CC) at 929 para 172 Page 21

responsibility in and of belonging to its members, as

well as the nurturing of healthy communitarian

traditions, such as Ubuntu.34

6.5 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 must now be determined by reference not

to common law, but to the Constitution.35

6.6 It is clear, therefore, that the Constitution

acknowledges the originality and distinctiveness of

indigenous law as an independent source of norms

within the legal system... In the result, indigenous

law fits into, nourishes, fuses with and becomes

part of the amalgam of South African law.36

6.7 Ours is not the only country that has a pluralist

legal system in the sense of common, statutory and

indigenous law. Other African countries that face

the same problems have opted not to replace

indigenous law with common law or statutory laws.

34 Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC) at 606 para 45 per Langa DCJ (as he then was). 35 Alexkor Ltd and Another v The Richtersveld Community and Others, 2004 (5) SA 460 (CC) at 478 para 51 per the Court. 36 Alexkor, supra pg 479 para 51per the Court Page 22

Instead, they have accepted indigenous law is part

of their laws, and have sought to regulate the

circumstances where it is applicable. In my view

this approach reflects recognition of the

constitutional right of those communities that live

by and are governed by indigenous law. It is

recognition of our diversity, which is an important

feature of our constitutional democracy.37

6.8 In applying 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 is known to

the community, practised 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.38

6.9 Indigenous law is not a fixed body of formally

classified and easily ascertainable rules. By its very

nature, it evolves as the people who live by its norms

change their patterns of life, and it has throughout

37 Bhe and Shibi, supra at pg 661 para 235 per Ngcobo J 38 Alexkor supra pg 480 at para 53 per Court Page 23

history evolved and developed to meet the changing

needs of the community.39

6.10 What needs to be emphasised is that, because of the

dynamic nature of society, official customary law, as

it exists in the textbooks and in the Acts, is

generally a poor reflection, if not a distortion of the

true customary law. True customary law will be

that which recognises and acknowledges the

changes which continually take place.40

6.11 The official rules of customary law are sometimes

contrasted with what is referred to as “living

customary law”, which is an acknowledgement of

the rules that are adapted to fit in with a chain of

circumstances. The problem with the adaptations is

that they are ad hoc and not uniform.41

6.12 The problem of proving customary law in the courts

is considerable. Aside from the question of change,

there is the matter of local variation. Customary law

is not a single corpus of rules uniformly applicable

throughout the land. There is no reason why any

particular community should not evolve its own

rules, which in principle would then be binding on

39 Alexkor supra pg 479 para 52 per the Court 40 Bhe and Shibi, supra pg 619 para 86 per Langa DCJ (as he then was) 41 Ibid pg 618 para 82 per Langa DCJ (as he then was) Page 24

members on that community. It is quite likely that

such rules will never be recorded or given a judicial

stamp of authority.42

6.13 The courts act as the final arbiters of customary

law, and there is an irresistible tendency for them to

arrogate to themselves a knowledge which might be

in fact be imperfect or fragmentary. The courts

cannot presume to know all the customary law, yet

they have been given a general discretion to apply

it.43

6.14 The rules of customary law are inherently volatile. If

customary law is acknowledged to be routed in the

community to which it applies, then it follows that if

the courts are to administer an authentic version, it

must take account of changes in social practice and

attitude. But such is the diversity of the social

groups subject to this type of legal regime, that the

full range of rules cannot possibly be accessible to a

court at any one time.44

6.15 Clearly the Courts face serious problems in

adjusting law to meet a situation which has changed

and continues to change considerably. Whilst

42 TW Bennett, A Sourcebook of African Customary Law for Southern Africa, pg 142 43 TW Bennett, A Sourcebook of African Customary Law for Southern Africa, pg 143 44 TW Bennett, A Sourcebook of African Customary Law for Southern Africa, pg 137 Page 25

retaining certainty, the law must be sufficiently

flexible to encompass the needs of the people at

varying stages of cultural transition.45

6.16 The status of indigenous law had always been one of

the most controversial aspects of the South African

law. Indigenous law has been marginalised to a

great extent by our legal system in the past. The

adoption of the Constitution brought about a

significant change pertaining to the full

acknowledgement of the status of indigenous law.46

6.17 In Bhe, the Court left open the question whether the

constitutionality of the rule of male primogeniture in

other contexts within the customary law, such as

the rules which govern status and traditional

leaders.47

45 TW Bennett, A Sourcebook of African Customary Law for Southern Africa, pg 117 (Suttner, [1970] 90 ICLQ 134-45) 46 PM Bekker: Inheemse reg – ‘n pleidooi vir die ontwikkeling van ‘n nuwe jurisprudensie – 2006 (69) THRHR pg 530 47 Bhe supra pg 622 para 94 Page 26

THE PRINCIPLE OF MALE PRIMOGENITURE

7. There are equally indicators and guidelines in academic

literature, as well as court judgments on the meaning and

applicability of the principle of male primogeniture in

customary law. There is accepted authority that under our

constitutional democracy, male primogeniture offends against

the entrenched right to equality, gender and human dignity.

This aspect is not controversial in the present proceedings,

and we point to the following:

7.1 Under customary law the guiding principle in

succession is always primogeniture in the male line.

48

7.2 The ideal candidate for heir is therefore the

deceased’s eldest son, or failing him, the eldest son’s

eldest male descendent, namely, the eldest surviving

grandson. Failing any male issue in the eldest son’s

line, succession passes to the second son and his

male descendents, and so on through all the

deceased sons. Where the deceased have no male

descendent’s, his father is heir. If the father is no

48 Sonti 1929 NAC (C&O) 23; Mazibuko 1930 NAC (N&T) 143 at 143-6 Page 27

longer alive, the deceased eldest brother is next in

, and so on it goes.49

7.3 The rationale for male primogeniture is based on the

structure of traditional communities whereby the

heir would succeed not only to the assets of the

deceased but also to the deceased responsibilities.

Property is collectively owned in traditional

communities and it is the responsibility of the family

head to administer it on behalf of and for the benefit

of all.50

7.4 In the past, females were subjugated to the control

of the family head. A marriage of a “female heir”

would thus place both the “female heir” and the

community at the mercy of an unknown family

head. The rule of male primogeniture thus

protected the community and it prevented the

partitioning of the family property.51

7.5 The Court has held that the principle of male

primogeniture, amongst others, precludes daughters

from inheriting from their parents and that the

exclusion of women from inheritance on the grounds

of gender is a violation of the equality provision, as

49 Mthembu v Letsela and Another, 2000 (3) SA 867 at 876 para 8 50 Sijila v Masumba 1940 NAC (C&O) 42; Maganu v Maganu 1938 NAC (T&N) 14 51 Bhe supra pg 617-618 para 78 Page 28

well as the right of women to human dignity under

the Constitution.52

52 Ibid pg 623 para 97 Page 29

COMPARATIVE TREATMENT OF SUCCESSION TO TRADITIONAL LEADERSHIP

8. A cursory look at foreign nations that have monarchies or

traditional leaderships shows that the communities adapted

their practices on the question of who would be appropriate to

ascend the throne. There are examples where equal

primogeniture is practiced and where females succeeded after

a prior system of male primogeniture.

8.1 After generations of the application of male or

agnatic primogeniture dictating the order of

succession, Norwegian constitution in 1990 was

altered so as to grant equal primogeniture to the

Norwegian throne. The first member of the royal

family to whom it applies is Princess Ingrid

Alexandra. She takes precedence over her younger

brother.53

8.2 The Netherlands applied the principle of male

primogeniture until 1884 when King William III’s

last male heir died and the Staten-Generaal adopted

the agnatic-cognatic primogeniture making Princess

53 Sec 6 of the Norwegian Constitution. The Norwegian provides that the order of succession is lineal, so that only a child born in lawful wedlock of the Queen or King, or of one who is herself or himself entitled to the succession may succeed, and so that the nearest line shall take precedence over the more remote and the elder in the line over the younger. Page 30

Wilhelmina heiress presumptive. No males were

born into the royal family until 1967. In 1983 the

Netherlands adopted full lineal primogeniture.

8.3 An analysis on the ascension to the British throne

shows that the principle was adjusted from time to

time to meet changing social circumstances.

8.4 In Denmark, before the 1953 Act of Succession, the

throne passed to male primogeniture to those

descended from King Christian IX who was the

grandfather of King Christian X. The monarch in

1953, King Frederik IX, had three daughters but no

sons. Under the principle of primogeniture, the heir

to the throne was Prince Knud, the King’s younger

brother. Prince Knud was far less popular than the

King was. Further, Knud’s mother-in-law, Princess

Helena, was accused of supporting the Nazi

movement during the Second World War. These

factors, combined with a belief that the principle of

primogeniture was outdated, resulted in the

movement to change the succession law so that

Frederik’s eldest daughter, the then Princess

Margrethe, could inherit the throne.

Page 31

8.5 The Danish parliament has recently unanimously

voted in favour of a new royal succession law that

would allow a first-born child to one day ascend the

throne regardless of whether it is a boy or girl,

similar to that of Sweden. Before it is adopted, the

bill must be voted through the next parliament,

before finally being submitted to a referendum.

8.6 The Japanese monarchy is the oldest continuous

in the world still in existence.

Women were barred from the throne for the first

time in 1889 by a Prussian-influenced Constitution

during 19th century.

8.7 Before September 2006, there was a potential

succession crisis since no male child had been born

into the imperial family since Prince Akishino in

1965. Following the birth of Princess Aiko, there

was some public debate about amending the

Imperial House Law to allow female descendants of

an emperor and their descendants to succeed to the

throne. In January 2005, Prime Minister Koizumi

Junichiro appointed a special panel of judges,

university professors, and civil servants to study

changes to the Imperial House Law and to make

recommendations to the government. On October Page 32

25, 2005, the commission recommended amending the law to allow females in the male line of imperial descent to succeed to the throne. There is broad public support for such a change. Page 33

APPLICATION OF THE LAW TO THE FACTS

9. Having dealt with the facts as either admitted or found to be

common cause, considered the legal framework relevant to the

present matter, dealt with the status and treatment of

customary law, compared the principle of primogeniture even

as applied in various foreign jurisdictions, we make the

following submissions;

9.1 Customary law has correctly been defined as a

“living” body of law which changes to accommodate

circumstances that present themselves at any given

time in the life of a traditional community. The

Valoyi Traditional Community is a community that

practices customary law in the conduct of its affairs.

9.2 The trigger for a change in customary practice,

particularly relating to the shift in lineage, seems to

be one or other socio-legal change. In South Africa

the legal status of women, under customary law,

has changed and their proprietary status has also

accordingly changed. The argument that there are

impediments to women to succeed to the throne

have therefore lost their anchor.

Page 34

9.3 We have demonstrated that even with foreign

traditional communities, changing circumstances

that presented specific challenges, precipitated an

adjustment to their customary practice. There is

therefore nothing irregular or untoward for the

Valoyi Traditional Community to have responded in

the manner they have when South Africa changed

its political system as well as its legal system, to a

constitutional democracy.

9.4 The evidence shows that the change initiated by the

Valoyi community affected two rules of practice.

The first was to change the rule of male

primogeniture to one of equal primogeniture. This

change is consistent with the Constitution and

therefore renders it compatible with the provisions

of sections 1, 9, 10, 30, 31, and 211 of the

Constitution. We deal later with the question

whether the Royal family is competent to initiate

this change.

9.5 The process by which the rule change was achieved

is significant. The Royal family, comprising of the

Chief, as well as the immediate members of the

Royal family initiated the rule changes and

submitted their decision to the Royal Council. The Page 35

Royal Council which has the power, if dissatisfied

with the decision to refer it back to the Royal family,

considered the decision and approved it. The

decision was then submitted to the Tribal Council

for its consideration. The Tribal Council consisting,

amongst others, of the Indunas, civil organisation

and other stakeholders, like business people, the

ministers of churches and generally all people who

represent any relevant stakeholder, then considered

the decision.54

9.6 It is significant that there was no evidence that the

process described in paragraph 9.5 above was not in

accordance with the rules or procedures adopted by

the Valoyi Traditional Community in the treatment

of its customary rules or practices. It is also

significant that no evidence was offered that any of

the processes were deficient for one or other reason.

9.7 It is important in recognising the full status of

customary law that we do not look at it through the

“prism” or “lens” of the common law as happened in

the past. The Court has frequently pointed out that

customary law is subject only to the Constitution.

54 Record: Court of first instance, Vol. 5, pg 498-499 Page 36

9.8 It is clear therefore that the Constitution

acknowledges the originality, distinctiveness and

flexibility of customary law, as an independent

source of norms within the legal system. To measure

customary law against specific judicial precepts or

the common law, is wrong.

9.9 It is significant that in Bevu v Laduma N.H.C 22

referred to in Warner: A Digest of South African

Native Civil Case Law 1984 – 1957, where a chief

had died without having made any official

declaration as to which of his wives was the chief

wife, it was held that the late chief did not have a

chief wife appointed and recognised as such, either

by himself or his traditional community, and that he

was therefore de jure without an heir at his death,

and that it devolved upon the heads of his family

and leading members of his tribe to appoint his heir,

and that the meetings of the family and the

traditional community held after the death of the

chief, were in accordance with custom.

9.10 As the Court pointed out that customary law, no

doubt that of the Valoyi Traditional Community as

well, will continue to evolve within the context of its Page 37 values and norms consistently with the

Constitution. Page 38

THE FINDINGS OF THE COURT A QUO

10. The court a quo considered the third question whether the

Royal family acted within the customs and traditions of the

Valoyi community. It confirmed the decision of the court of

first instance that the Royal family did not act in terms of the

customs and traditions of the Valoyi community in appointing

the First Applicant as Hosi. To arrive at this conclusion, the

court’s reasons were the following:

10.1 that the decision was ad hoc and cannot be regarded

as being in accordance with the customs and

traditions of the Valoyi Traditional Community (the

first reason);

10.2 that it was not suggested that the custom of

succession from a deceased Hosi to his children falls

foul of section 9 of the Constitution (the second

reason);

10.3 that the Royal family, according to the customs and

traditions of the Valoyi Traditional Community had

no power to elect the First Applicant to the position

of the new Hosi (the third reason);

Page 39

10.4 that a decision in 1996 to give chieftainship to the

First Applicant, who suffered a disqualification

which operated in 1968, has now being done away

with, amounts to a decision to elect a Hosi other

than the person entitled to succeed, is in conflict

with the customs and traditions of the Valoyi

Traditional Community and ignores the right of the

Respondent (the fourth reason);

10.5 that there is doubt that the Valoyi Traditional

Community can turn the clock back, but if they can,

such decision would be ad hoc and cannot be

regarded as in accordance with the customs and

traditions of the Valoyi Traditional Community (the

fifth reason);

10.6 that the First Applicant was elected a Hosi (the sixth

reason).

11. We submit that the findings and the reasons of the court a

quo are, with respect, wrong. This is so for the following

reasons:

11.1 that the appointment of the First Applicant stands

open to attack because it is ad hoc is, with respect,

wrong. All decisions of this nature, as we have Page 40

demonstrated in relation to foreign jurisdictions, are

precipitated by specific events and often are

intended to meet a particular challenge. In the case

of the Valoyi Traditional Community, the factors

that triggered the change were the legal and

Constitutional changes to the status of women.

This change is by definition a once off decision and

therefore ad hoc. We hope it does not have to

change.

11.2 The second reason that it was not suggested that

the appointment of the First Applicant falls foul and

offends against the equality provision. Indeed, the

contention on behalf of the Applicants was that the

claim by the Respondent in initiating the

proceedings was claim asserting the principle of

male primogeniture.

11.3 The third reason that the Valoyi Royal family had no

power, according to the customs and traditions of

the Valoyi Traditional Community, to appoint the

First Applicant as Hosi is, with respect, also wrong.

Firstly, there was no expert evidence as to what the

powers of the Valoyi Royal family are. Secondly,

there was no evidence that the Valoyi Royal family Page 41

cannot initiate that type of rule change. As we

demonstrated earlier, the question in Japan seems

also to initiate from the Royal family. Thirdly, the

rule change was not effected by the Valoyi Royal

family alone. The evidence shows that the rule

change went through all the recognised instruments

of authority within the Valoyi Traditional

Community. And lastly, there was no contention

that one or other formal requirement necessary for a

rule change was not observed.

11.4 The fourth reason that the appointment of the First

Applicant is in conflict with the customs and

traditions of the Valoyi Traditional Community, does

not recognise the living character of customary law,

it accepts as ossified the customary rules and

practices of a particular traditional community. The

courts have warned against this approach to

customary law. Further, there was at least

contending opinions on the applicable customary

practice of the Valoyi Traditional Community of the

respective parties. On the basis of onus which was

on the Respondent, the Respondent ought to have

failed.

Page 42

11.5 The fifth reason whether the Valoyi Traditional

Community could turn the clock back raised some

doubts. Without suggesting that the decision of the

Valoyi Traditional Community to appoint the First

Applicant as Hosi was retrospective, we submit that

there is no evidence that customary law cannot have

a retrospective effect. This reasoning has as its

origin the application of the common law. The Court

has warned against measuring customary law

against the common law.

11.6 The sixth reason that the First Applicant was elected

a Hosi is wrong. This finding was initially made by

the court of first instance and confirmed by the

court a quo. There was no evidence that the First

Applicant was ever elected or that any elections held

preceding her appointment as Hosi. In any event,

the First Applicant was born of a Hosi. Page 43

QUESTIONS RAISED IN THE COURT’S DIRECTIONS

12. The Court has directed the parties to address the following

questions:

The First Question

12.1 Whether the Royal family has authority to develop

the customs and traditions of the Valoyi Traditional

Community so as to outlaw gender discrimination in

the succession to traditional leadership;

12.2 In the first place, gender discrimination is unfair

unless it is established that the discrimination is

fair. The question is whether discrimination on

grounds of gender in relation to succession to

traditional leadership can ever be held to be fair.

We have already addressed the reasons why male

primogeniture was preferred particularly with the

constraints placed on women in the pre-

constitutional era. Firstly women were perpetual

minors under customary law and had no proprietary

rights. This impediment or any other based on

gender are no more in our constitutional democracy.

Page 44

12.3 In the second place, we have demonstrated that the

power of any traditional community to change its

law is recognised by the Constitution, and that the

Valoyi Traditional Community can, indeed, amend

or develop its customs and practices.

12.4 In the third place, the decision of the court a quo

was arrived at, assuming in the First Applicant’s

favour, that the Valoyi Traditional Community can

undo male primogeniture.

12.5 In the final instance, the question is whether that

development or the customs and traditions of the

Valoyi Traditional Community vests with the Royal

family. We submit that the evidence shows that

ultimately the rule change was the change by the

Valoyi Traditional Community in its entirety. All the

structures of that community participated in that

rule change.

12.6 The Bevu judgment is sufficient precedent that such

a change of customary practice is competent.

Page 45

The Second Question

12.7 The second question is whether the Royal family

have the authority to restore the position of

Traditional Leadership from which it was removed

by reason on gender discrimination, even where the

discrimination occurred prior to the coming into

operation of the Constitution.

12.8 In the first place we have addressed the question

that the rule change was only initiated by the Royal

family, but was ultimately the rule changed by the

Valoyi Traditional Community. The Royal family

initiated the rule change, the Royal Council

accepted it, and the Tribal Council accepted it. It is

noteworthy that the Tribal Council is defined in very

inclusive terms in section 1 of the Framework Act.

12.9 Secondly, the Court has already held that

customary law is subject only to the Constitution.

There does not seem to be any reason why a

traditional community cannot make any decision in

relation to its own rules and practices, except where

such rules or practices are inconsistent with the Bill

of Rights. There can be no suggestion that restoring Page 46

the bloodline of Hosi Fofoza Mamitwa, offends any

provisions of the Bill of Rights.

12.10 Further, the proper recognition of the status of

customary law must accept that the Valoyi

Traditional Community can even decide to do away

with traditional leadership. To ask the question

whether doing away with traditional leadership is

consistent with the customs of the Valoyi Traditional

Community is a no question.

12.11 The most telling question must be if the Royal

family, in consultation with the Royal Council and

the Traditional Council, cannot change the

customary practices of the Valoyi Traditional

Community, then who can?

12.12 The question whether the impediment which is

sought to be addressed predates the Constitution

would, in our submission, be of no moment. There

is also no attempt that the First Applicant must

succeed Hosi Fofoza Mamitwa. Clearly if the

decision of the Traditional Community to appoint

the First Applicant is implemented, she will be

succeeding Hosi Richard Mamitwa.

Page 47

The Third Question

12.13 The third question is whether the Framework Act is

applicable to these proceedings.

12.14 We have submitted that the Framework Act is,

according to our interpretation, both prospective

and retrospective. Section 25 clearly posits the

nature of the claim in these proceedings within the

province of the Commission. Further, the section,

under sub-section 4, provides that the Commission

has the power to deal with claims arising as at 1

September 1927. This is such a claim.

12.15 It is instructive that the section 23 of the Framework

Act gives the President the power to appoint not

more than fifteen persons as members of the

Commission who are knowledgeable regarding

customs and the institution of Traditional

Leadership.

12.16 The reading of the Framework Act shows that the

Legislature intends that the disputes, such as the

one in the present proceedings, must be resolved in

a particular manner, and for that reason has Page 48

created a structure with the requisite expertise to

address these matters.

12.17 Within the meaning of the Framework Act, it

appears that the powers of the Court would be

limited to review. The merits therefore of whether

the appointment of the First Applicant as Hosi of the

Valoyi Traditional Community is right or wrong,

would not arise.

12.18 The analysis of the academic writings also point to

courts being unsuited to properly deal with these

matters on their merits. The adversarial nature of

litigation does not lend itself comfortable with the

space within which customary disputes are

approached, handled and resolved.

12.19 Suttner argues that unfortunately the Legislature

has not taken adequate steps to ensure that the

judges of these courts are adequately trained for

their task. Neither Bantu law or a knowledge of an

African language is a compulsory requirement for

their minimum qualification.55

55 TW Bennett, A Sourcebook of African Customary Law for Southern Africa, pg 117 (Suttner[1970] 19 ICLQ 134-45 Page 49

The Fourth Question

12.20 The question is if the provisions of the Framework

Act are applicable, is the dispute related to the

restoration of Traditional Leadership the kind of

dispute that ought to be dealt with by the

Commission.

12.21 We understand the Framework Act to contemplate

two processes by which claims and disputes relating

to Traditional Leadership is handled. The first

category of claims and disputes must first be

resolved internally and in accordance with custom.

The second category are those claims and disputes

that must be referred to the Commission in terms of

section 25(2).

12.22 The first category of claims and disputes, if not

resolved, are to be referred to the relevant provincial

house of traditional leaders, which house must seek

to resolve the dispute in accordance with its internal

rules and procedures. If the dispute remains Page 50

unresolved, it is then referred to the Premier for

resolution.

12.23 We submit that the present dispute falls within the

ambit of the Commission in terms of section

25(2)(a)(i), alternatively (ii).

APPLICATION FOR CONDONATION

13. The Applicants failed to lodge the application for leave to

appeal on time. The affidavit supporting the application for

condonation points to the fact that the failure was as a result

of an incorrect opinion given to Applicants by counsel.

Though regrettable, we submit that the interest of justice

would require that condonation for late filing of the

application for leave to appeal be granted. Page 51

APPLICATION FOR LEAVE TO APPEAL

14. We have already canvassed the merits of the appeal and

submit that the Applicants have demonstrated good prospects

of success on appeal.

15. We submit further that the issues raised in this matter are

Constitutional matters of importance to the Valoyi Traditional

Community. We submit further that the tension amongst the

members of the community alluded to in the application for

leave to appeal would be best served by dealing with the

appeal on its merits.

16. We submit finally, that given the prospects on the appeal and

the reasons furnished why the findings of the court a quo is

open to challenge should weigh in favour of the application for

leave to appeal being granted. Page 52

APPROPRIATE RELIEF AND CONCLUSION

17. We submit that we have made out a proper case for the

appeal to be upheld on its merits.

18. In the event that the Court is disinclined to dispose of the

matter on its merits, we submit that the dispute falls to be

referred to the Commission in terms of section 21(1)(a) or (b)

of the Framework Act.

19. Whatever the outcome of the matter, we submit that an

appropriate cost order would be one that no order as to costs

is made. The constitutional importance of the matter clearly

shows that no party was frivolous or vexatious in the

prosecution of the matter.

DATED AT JOHANNESBURG ON THIS THE 16TH DAY OF APRIL 2007.

ADV. I A M SEMENYA SC ADV. S B S DLWATHI ADV. N I MAYET Page 53

AUTHORITIES

SOUTH AFRICAN AUTHORITIES

1. Bevu v Laduma 1900 N.H.C 22.

2. Sonti 1929 NAC (C&O) 23.

3. Mazibuko 1930 NAC (N&T) 143.

4. Maganu v Maganu 1938 NAC (T&N) 14.

5. Sijila v Masumba 1940 NAC (C&O) 42.

6. Du Plessis and Others v De Klerk and Another, 1996 (3) SA 850 (CC).

7. In Re Certification of the Constitution of the RSA, 1996 (4) SA 744.

8. Mthembu v Letsela and Another, 2000 (3) SA 867.

9. Alexkor Ltd and Another v The Richtersveld Community and Others, 2004 (5) SA 460 (CC).

10. Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC).

LEGISLATION

1. The Constitution of South Africa, 1996.

2. Law of Evidence Amendment Act 45 of 1988.

3. Traditional Leadership and Governance Framework Act 41 of 2003.

Page 54

PUBLICATIONS

1. Bennett TW: Application of Customary Law in South Africa 1985.

2. Bennett TW, A Sourcebook of African Customary Law for Southern Africa, 1991.

3. Bennett TW, Customary Law in South Africa 2004.

4. Bekker PM, Inheemse reg – ‘n pleidooi vir die ontwikkeling van ‘n nuwe jurisprudensie – 2006 (69) THRHR pg 530.

5. Warner HW, A Digest of South African Native Civil Case Law, 1894- 1957.

Page 55

APPLICANT’S CHRONOLOGY OF RELEVANT EVENTS

ITEM DATE DESCRIPTION PAGE

1. 1948/05/26 Appointment of Fofoza Mamitwa 667

2. 1968/01/24 Letter from Baloyi Tribal Authority to the B.A Commssioner, Duiwelskloof 668

3. 1968/02/20 Letter from the Bantu Affairs Commissioner, Duiwelskloof to the Asst. Chief Bantu Affairs Commissioner, Sibasa 669

4. 1968/03/26 Letter from the Asst. Chief Bantu Affairs Commissioner, Sibasa, to the Bantu Affairs Commissioner Duiwelskloof 670

5. 1968/04/04 Letter from the Bantu Affairs Commissioner Duiwelskloof to Sibasa, to acting Chief R. Mamitwa 671

6. 1968/10/24 Letter from the Office of the First Minister 33

7. 1968/05/16 Letter from the Bantu Affairs Commissioner Duiwelskloof to the Asst. Chief Bantu Affairs Commissioner 672-673

8. 1968/10/24 Minute No. 1927 from the Office of the Prime Minister 651

9. 1980/09/11 &12 Notice of Motion and Founding Affidavit and Special Power to Summons and Defend Fofoza vs Richard 25-31

10. 1993 Orbituary Rosie Nwa-Phafula 22-24 11. 12. 1996/12/10 Letter from Chief R. Mamitwa to Phillia 700

13. 1996/12/22 Resolutions of a meeting of the Valoyi Royal Family 691

14. 1997/07/07 Letter from the Valoyi Tribal Authority to the Chief Magistrate, Ritavi 689

15. 1997/07/17 Letter confirming Tinyiko Phillia Shilubana Status 28-39

16. 1997/07/17 Letter to Valoyi Tribal Authority from R. Mamitwa et al 41

Page 56

ITEM DATE DESCRIPTION PAGE

17. 1997/08/05 Tribal Resolution of the Valoyi Tribe 691

18. 1997/12/04 Invitation from Northern Provincial Government to the Chief, Valoyi T/A 701

19. 1999/01/29 Letter to the Valoyi Tribal Authority from R. Mamitwa 44-45

20. 1999/02/25 Letter from the Valoyi Tribal Authority 691

21. 2001/10/07 Tsonga minutes and roll call of meeting of the Royal Council and translation 676-693

22. 2001/11/04 Minutes of the meeting of the Royal Family of Mahwahwa Mahlabezulu Rufus and Jackson and translation 677-696

23. 2001/11/20 Letter from Northern Province Local Government to the Secretary, Valoyi T/A 702

24. 2001/11/21 Letter from the Valoyi Tribal Authority to the District Control Officer, Ritavi 651

25. 2001/11/25 Minutes and roll call of meeting of the Royal Family, together with the Royal Council, Local Government structures and stakeholders of different organizations at Baloyi homestead 683-698

26. 2001/10/07 Minutes of the meeting of the Royal Council about the Valoyi Royal Family 692-693

27. 2001/12/02 Letter from the Valoyi Tribal Authority to the District Control Officer, Ritavi 652

28. 2002/01/06 Minutes of the meeting of Headmen and Councilors 652

29. 2002/02/24 Letter inviting members of T/A to meeting of Royal Council 68

30. 2002/04/13 Invitation and minutes of Royal Council meeting 69

31. 2002/07/03 Letter from Limpopo Provincial Government approving appointment of Shilubana 72

32. 2002/07/26 Minutes of meeting of Royal Council 68-71

33. 2002/09/16 Commencement of Proceedings TPD Sidwell Nwamita vs Tinyiko Phillia Shilubane 1

34. 2004/09/06 Judgment Swart J 600-623

35. 2004/11/12 Appeal Proceedings 627-650