IN THE CONSTITUTIONAL COURT OF

CCT:100/09 NGHC Case no:11678/06

In the matter between:

STEPHEN SEGOPOTSO TONGOANE First Applicant

PHAHLELA JOAS MUGAKULA Second Applicant

MORGAN MOGOELELWA Third Applicant

RECKSON NTIMANE Fourth Applicant and

THE NATIONAL MINISTER FOR AGRICULTURE & LAND AFFAIRS First Respondent

THE NATIONAL MINISTER FOR PROVINCIAL & LOCAL GOVERNMENT Second Respondent

THE OF EASTERN CAPE Third Respondent

THE PREMIER OF FREE STATE Fourth Respondent

THE Fifth Respondent

THE PREMIER OF KWAZULU-NATAL Sixth Respondent

THE Seventh Respondent

THE PREMIER OF NOTHERN CAPE Eighth Respondent

THE Ninth Respondent

THE Tenth Respondent

THE PREMIER OF WESTERN CAPE Eleventh Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Twelfth Respondent

THE CHAIRPERSON OF THE NATIONAL 2

COUNCIL OF PROVINCES Thirteenth Respondent

THE NATIONAL HOUSE OF TRADITONAL LEADERS Fourteenth Respondent

AFFIDAVIT OPPOSING APPLICATION FOR LEAVE TO APPEAL

I, the undersigned,

MOGORISI DANIEL MOLUSI

do hereby make oath and state that:

1. I am a Deputy State Attorney in the employ of the Department of Justice

and Constitutional Development. I am the attorney of record both in this

matter and in the High Court proceedings.

2. I am duly authorised to depose to this affidavit on behalf of the second

and fourteenth respondents (“respondents”).

3. The facts deposed to herein, save where the contrary appears from the

context, are within my personal knowledge and are to the best of my

belief true and correct. Where I make legal submissions in this affidavit,

I do so on the advice of the legal representatives of the respondents. 3

4. In this affidavit, I will deal with grounds for the application for leave to

appeal, briefly address the averments made in the affidavit in

support of the application for leave to appeal, the respondents’

contentions in the Court a quo and provide an analysis of the

High Court judgment.

5. This notice to oppose has been filed out of time. To the extent that this

may not represent compliance with this Court rules, I ask that such non-

compliance be condoned. The applicants are not in any way prejudiced

thereby. In any event the senior registrar has already issued directions

regarding further prosecution of this matter.

6. RELIEF SOUGHT IN THE MAIN APPLICATION

6.1 The applicants, inter alia, sought an order declaring the provisions of

sections 5 and 20 of the Traditional Leadership and Governance

Framework Act1 (“the Framework Act”) to be unconstitutional and

invalid. Alternatively, declaring that the word “role” in section 20 is to be

read whenever it appears as “customary”, “non-governmental role”.

Ledwaba J in the Court a quo dismissed prayers 1, 3 and 4 of the notice

of motion. The decision resulted in this application for leave to appeal.

1 41 of 2003. 4

6.2 Ledwaba J also made an order that the judgment be referred to this

Court for confirmation in terms of section 167(5) of the

Constitution2.

6.3 The applicants seek leave to appeal against the judgment of

Ledwaba J, who dismissed part of the relief sought in the Court a quo and the grounds for leave to appeal are set out in the affidavit in

support of the application.

7. BRIEF BACKGROUND

7.1 The matter was brought by four applicants each representing four

communities namely, Kalkfontein, Makuleka, Mayaeyane and Dixie.

The respondents opposed the application in the Court a quo.

7.2 The applicants sought relief to have parts of the CLARA as well as

sections 5 and 20 of the Framework Act declared unconstitutional.

The applicants contended that the two Acts give traditional leaders

undemocratic and unprecedented powers.

7.3 The applicants further contended that the Acts undermine land rights

under customary law and gender equality and introduce a fourth-tier

phere of government. The applicants contended further that CLARA is

2 Act 108 of 1996 5

unconstitutional as it does not secure their land rights as required by

section 25 (6) of the Constitution.

7.4 KALKFONTEIN FARMS

The Kalkfontein property consists of two farms known as Kalkfontein B

and C. Both farms were duly transferred to the Kalkfontein community

trust in terms of deed of transfer 7890/2008. Stephen Tongoane

(“Tongoane”), the first applicant alleged that the apartheid government

subsequently placed the land within the area of jurisdiction of the

Pungutsha tribal authority. The land was thereafter in 1978 placed

within the area of jurisdiction of the newly created Ndzundza

(Pungutsha) tribal authority. The Kalkfontein B and C farms were

transferred to community trust before the matter was adjudicated by the

Court a quo.

7.5 MAKULEKA COMMUNITY

7.5.1 Makuleke community occupied land known as Pafuri Triangle Limpopo

Province. The community was subjected to a forced removal and

placed under the jurisdiction of Mhinga tribal authority. Joas Phahlela

Mugakula (“Magakula”), the second applicant alleged that he was a

headman instead of being appointed as a traditional leader. 6

7.5.2 Mugakula further alleged that the Mhinga tribal authority has engaged in

a number of irregularities namely, abused its power and undermined the

security of their land tenure. The traditional council gives permission to

people as far as Venda to graze on their land without the consent of the

community. Furthermore, the headman allocated land to outsiders.

Mugakula contended further that CLARA would remove the land from

the control of the Makuleke community which is under the communal

property association (“CPA”) and placed under the control of Mhinga

tribal authority.

7.6 MAYAEYANE COMMUNITY

Mayaeyane community belongs to the Barolong Boo Ratlou ba ga

Makgobi of Makgobistad. The third applicant, Mogoelelwa contended

that the security of tenure of the Mayaeyane community had been

undermined by the activities of Peter Motsewakhumo, the headman

of Mayaeyane. Mogoelelwa pointed out the irregularities conducted

by the traditional authority. The traditional leader Sandyland

Motsewakhumo unilaterally allocated fields to his uncle, the headman

established a housing project on land for outsiders at a fee, and the

headman has given the Provincial Department of Public Works

permission to build a road without prior consultation. 7

7.7 DIXIE FARM

The fourth applicant, Rickson Ntimane (“Ntimane”), lived at Farm Dixie

240 KU, a distinct community with independent control in its own right

over the farm. The community exercised its rights in relation to the land

in terms of customary law. Ntimane contended further, that the Mnisi

tribal authority exercised jurisdiction over the farm even though the

Dixie community had no historical association with such a traditional

authority.

8. Ledwaba J dismissed prayers 1, 2 and 3 of the notice of motion.

9. APPLICANTS’ GROUNDS FOR LEAVE TO APPEAL

9.1 The applicants seek leave to appeal against the decision of the High

Court and, further contest the constitutionality of sections 5 and 20 of

the Framework Act which, according to them;

9.2 Confer governmental powers upon traditional councils which exceed

the constitutional space for traditional authorities in a republican

democracy, afforded them under Chapter 12 of the Constitution and; 8

9.3 Provide for the transfer of governmental power in a manner and to an

extent which is non-compliant with the mechanism envisaged in section

212(1) of the Constitution;

9.4 Traditional leaders were co-opted by the colonial and apartheid regimes

through a process of conferring statutory powers on them and

subjecting them to a system of statutory control;

9.5 Traditional leaders were, under apartheid, statutorily conferred with

governmental powers over African people in “black areas”, particularly

at local government level; Those powers and the statutory structures

within which they were exercised formed the building blocks of the

apartheid-era homeland system;

9.6 The interim Constitution in section 181 gave to traditional leaders a non-

governmental role in local government as ex officio members of

municipal councils; the interim Constitution preserved only those

residual roles customary functions which are not governmental in

nature;

9.7 The applicants raise further grounds that the final Constitution, and

Chapter 12 thereof, recognise traditional leaders in their residual,

customary roles after divestment of their governmental powers under 9

the interim Constitution and the Local Government Transition Act 209 of

1993. Chapter 12 of the Constitution does not allow for the exercise by

traditional authorities;

9.8 The applicants’ further ground is that the interim Constitution dismantled

the homeland system and removed governmental powers given to

traditional authorities at national and provincial level;

9.9 A further ground of appeal is that the impugned provisions of CLARA

and sections 5 and 20 of the Framework Act employ mechanisms for

the transfer of power other than national legislation; confer

governmental powers upon traditional councils; and in the case of

CLARA and section 20 of the Framework Act, do so outside of the local

sphere of government.

10. RESPONDENTS’ CONTENTIONS IN THE COURT A QUO

10.1 The respondents have constantly argued in the court a quo that the

Constitution recognises the role of traditional leaders in the

administration of the land. The intention of the Legislature was to

entrench the role of traditional leaders in the present South African

democratic dispensation. 10

10.2 The interim Constitution provided for ex officio status of the traditional

leaders in local government structures.3 This status was recognised

by this Court in African National Congress and Another v Minister

of Local Government and Housing, KwaZulu and Others. 4

10.3 The respondents contended that the powers of local government

were clearly spelt out in the Constitution. There can be no suggestion

that either CLARA or the Framework Act has indirectly conferred such

powers on traditional councils.

10.4 The final Constitution contains the following provisions:

“211(1) the institution, status and role of traditional leadership ,

according to customary law are recognised, subject to the

Constitution.

(2) A 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.

3 Section 182 of the Constitution of the Republic of South Africa Act 200 of 1993 4 1998 (3) SA 1 (CC) 11, paras 17, 18 and 19 11

(3) The courts must apply customary law when that law is

applicable, subject to the Constitution and any legislation

that specifically deals with customary law.

212(1)National legislation may provide for a role for traditional

leadership as an institution at local level on matters

affecting local communities.

(2) To deal with matters relating to traditional leadership, the

role of traditional leaders, customary law and the customs

of communities observing a system of customary law-

(a) national or provincial legislation may provide for the

establishment of houses of traditional leaders; and

(b) national legislation may establish a council of traditional

leaders”.

10.5 The respondents’ inter alia, placed reliance on the decision of this Court

in Ex Parte Chairperson of the Constitutional Assembly: In re

Certification of the Constitution of the Republic of South Africa.5

The institution, status and role of traditional leadership were recognized

by this Court. The Court said:

5 1996 (4) SA 744 (CC) at 834 F-G, para 197. 12

“In our view, therefore, the NT complies with CP XIII by giving express

guarantees on the continued existence of traditional leadership and the

survival of an evolving customary law. The institution, status and role of

traditional leadership are thereby protected. They are protected by

means of entrenchment in the NT and any attempt at inference would

be subject to constitutional scrutiny. The CA cannot be constitutionally

faulted for leaving the complicated, varied and ever-developing

specifics of how such leadership should function in the wider

democratic society, and how customary law should develop and be

interpreted, to future social evolution, legislative deliberation and

judicial interpretation.” (Underlining supplied)

10.6 The respondents contended strongly that the institution, status and role

of traditional leadership according to customary law are, therefore

recognised. The Constitution envisages the continued existence of

traditional authorities which may perform functions subject to any

applicable legislation and customs.6 It follows that the framers of the

Constitution realised the importance of traditional leadership. The

system will continue to exist as the majority of the people in the rural

areas still adhere to their customs and traditions. The words of Sachs J

in S v Makwanyane and Another7are apposite:

6 Section 211(2) of the Constitution 7 1995 (3) SA 391 (CC), paras 364-365. 13

“The secure and progressive development of our legal system

demands that it draws the best from all the streams of justice in

our country…”

10.7 The respondents contended further, that changes in customary law and

the composition of traditional authorities that took place through the

Framework Act is in line with the Constitution.

10.8 The respondents argued that the word “role” is derived from the

Constitution. Section 212(1) provides that “national legislation may

provide for a role for traditional leadership as an institution at local level

on matters affecting local communities”. This “role” would be

determined through legislative and other measures in line with the

Constitution. This role is also recognised in terms of section 211(1) of

the Constitution.

10.9 The respondents contended that the Constitution recognises the “roles”

of traditional leaders. As a result the Framework Act is the legislation

giving effect to these roles. The respondents argued that both the

CLARA through section 21(2), and the Framework Act, through sections

5 and 20 give effect to section 212(1), which states that “national

legislation may provide for a role for traditional leadership as an

institution at local level on matters affecting local communities”. 14

10.10 The respondents have demonstrated in their papers that traditional

leaders have been exercising a governmental role. Khosi Kutama in his

affidavit states other roles performed by traditional leaders. It was

contended further that the effect of Chapter 12 of the Constitution was a

restatement of some of the functions traditional leaders performed over

many years. The Minister of Justice and Constitutional Development

has, in terms of section 6 of Justices of the Peace and Commissioners

of Oaths Act,8 designated traditional leaders as Commissioners of

Oaths. This is, indeed, a commendable step.

10.11 Traditional courts continue to administer justice in the rural areas. The

Law Commission has released a discussion paper on “The

Harmonisation of the Common Law and Indigenous Law: Traditional

Courts and the Judicial Function of Traditional Leaders. The process

initiated by the South African Law Commission will eventually lead to

the enactment of national legislation giving powers to traditional

leaders to administer justice in line with the Constitution.

10.12 Furthermore, section 5 of the Remuneration of Public Office-Bearers

Act 20 of 1998 provides for the salaries and allowances of traditional

leaders to be determined by the President after consultation with the

Premier concerned. Salaries of traditional leaders are determined with

due regard to the “role, status, duties, functions and responsibilities” of

different traditional leaders. 8 Act No. 16 of 1963, Government Notice R1180 of November 17, 2000. 15

10.13 Section 5 enjoins the provincial and national government to promote

partnerships between municipalities and traditional councils. The

partnerships should be based on mutual respect and recognition of the

status and the roles of the respective parties.

10.14 The rationale for seeking to promote the principles of co-operative

governance between traditional leaders and local government, is

informed by the fact that traditional leaders from time immemorial

performed government function.

10.15 The entrenchment of the institution of traditional leadership was

recognised by this Court.9

10.15 I respectfully submit that the grounds for leave to appeal are without

any basis in law and therefore maintain the same stance as in the court

a quo. Furthermore, Ledwaba J found that sections 5 and 20 are not

unconstitutional.

10.16 I respectfully submit further that there is no basis for declaring that the

word “role” in section 20 should be read wherever it appears as

“customary, non-governmental role”. The word “role” flows from the

Constitution. The intention of the framers of the Constitution was that

9 Ex Parte: Chairperson of Constitutional Assembly : In re Certification of the Republic of South Africa 1996 (SA) 744 CC at 834 F-G, para 197. 16

national legislation (Framework Act) must provide a role for traditional

leadership at a local level. It must be understood that the Framework

Act only deals with the statutory role for traditional leadership. It does

not temper with traditional leadership as an institution.

11. ANALYSIS OF LEDWABA J’S JUDGMENT

11.1 Ledwaba J correctly referred to section 18 of the Local Government:

Municipal Structures Act10. It is clear that the section makes provision

for traditional leaders to participate in meetings of municipal Councils.

Ledwaba J had found further that the national legislation may provide a

role for traditional leadership as an institution at a local level11.

11.2 This is derived from co-operative government as provided in section 41

of the Constitution.

11.3 Furthermore, Ledwaba J accepted the fact that most of the communities

who occupy communal land administer customary law and their

traditional leaders still play an important part in the administration of the

land. Ledwaba J had correctly accepted that customarily, traditional

leaders played an important role in the administration of land12.

10 117 of 1998. 11 Ledwaba J’s judgment: page 39, paras 53 to 54. 12 Ledwaba J’s judgment: page 40, para 57. 17

11.4 Ledwaba J correctly rejected the argument that sections 5 and 20 of the

Framework Act are contrary to the provisions of section 212 (1) of the

Constitution. The Ledwaba J correctly found that the status and the role

of traditional leadership are recognised by the Constitution.13

12. I respectfully submit that the court a quo is correct in holding that

customarily traditional leaders played an important role in the

administration of land and further that the role of traditional leaders is

not unconstitutional.14

13. I now deal with allegations in the affidavit of THEMBEKA

NGCUKAITOBI, in support of the application for leave to appeal.

14. AD PARAGRAPH 1

The allegations contained in this paragraph are admitted.

15. AD PARAGRAPH 2

I deny that the allegations made by the applicants’ attorney are true and

correct.

13 Ledwaba J’s judgment: page 40, para 58. 14 Ledwaba J’s judgment: page 40, paras 57 and 58. 18

16. AD PARAGRAPHS 3 TO 7

The allegations herein are noted.

17. AD PARAGRAPHS 8 AND 9

The allegations herein are admitted.

18. AD PARAGRAPHS 10 TO 16

The allegations herein are noted.

19. AD PARAGRAPHS 17 TO 19

The allegations herein are admitted.

20. AD PARAGRAPH 20

Save to note the application, it is denied that there is legal basis for

leave to appeal to be granted. 19

21. AD PARAGRAPHS 21, 21.1 TO 21.2

The allegations in these paragraphs are denied.

22. AD PARAGRAPHS 24 TO 27

The allegations herein are admitted.

23. AD PARAGRAPH 28

The allegations herein are noted.

24. AD PARAGRAPHS 29 TO 43

The allegations herein are admitted.

25. AD PARAGRAPHS 44 TO 67

These paragraphs will be dealt with by other respondents.

26. AD PARAGRAPHS 72, 72.1 AND 72.2

The respondents deny the correctness of these arguments. 20

27. AD PARAGRAPHS 73 AND 74

The allegations in these paragraphs are admitted.

28. AD PARAGRAPH 75

The respondents deny the grounds relied upon and respectfully

submit that they are unfounded.

29. AD PARAGRAPH 76

The applicants have correctly abandoned the argument that the

quantum of powers conferred upon traditional authorities by CLARA

and sections 5 and 20 of the Framework Act creates a fourth-tier of

government. The respondents submit that the argument was in any

event ill-conceived.

30. AD PARAGRAPH 77

The allegations regarding the grounds for appeal are noted. 21

31. AD PARAGRAPHS 77.1 AND 77.2

31.1 The allegations in these paragraphs are denied.

31.2 As already indicated above the powers conferred on the traditional

authorities are recognised by the Constitution. Section 212(1) of the

Constitution states that national legislation may provide for a role of

traditional leadership. Ledwaba J correctly observed that these powers

are derived from the Constitution.15

32. AD PARAGRAPH 78

The allegations herein are noted.

33. AD PARAGRAPHS 78.1 TO 78.6

33.1 It is admitted that some of the traditional leaders were co-opted by the

colonial and apartheid regime. The Framework Act is an instrument

designed to transform the institution of traditional leadership.

33.2 This argument is irrelevant as it is common cause that from time

immemorial traditional leaders exercised governmental roles. It is

therefore misleading to state that the roles are customary role. As 15 Supra. 22

already indicated above, traditional authorities continue to exist in

terms of Schedule 6 item 2(1) and (2) of the Constitution.

34. AD PARAGRAPHS 78.8 TO 79

34.1 The allegations in these paragraphs are denied. I have already

dealt with this aspect above.

34.2. The applicants fail to appreciate the role of traditional leaders. The

section states that national legislation may provide for a role for

traditional leadership as an institution at local level on matters affecting

local communities.

35. AD PARAGRAPHS 80, 80.1 AND 80.2

35.1 The allegations in these paragraphs are denied.

35.2 There is no basis in law for this Court to grant the application for

leave to appeal.

36. TONGOANE’S AFFIDAVIT

I deny each and every allegation insofar as it is inconsistent with the

respondents’ affidavit. 23

37. The respondents ask this Court to refuse the application for leave to

appeal with costs, including the costs of two counsel. Alternatively, the

application falls to be dismissed accordingly.

______DEPONENT

SIGNED AND SWORN TO BEFORE ME AT PRETORIA ON THIS THE

DAY OF DECEMBER 2009 BY THE DEPONENT WHO HAS

ACKNOWLEDGED THAT SHE KNOWS AND UNDERSTANDS THE

CONTENTS OF THIS AFFIDAVIT; THAT SHE HAS NO OBJECTION TO

TAKING THE PRESCRIBED OATH AND THAT SHE CONSIDERS THE

PRESCRIBED OATH TO BE BINDING ON HER CONSCIENCE.

COMMISSIONER OF OATHS

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