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 Primogeniture 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 title 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
order of succession, 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
hereditary monarchy 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