In the Constitutional Court of South Africa
Total Page:16
File Type:pdf, Size:1020Kb
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA 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 PREMIER OF EASTERN CAPE Third Respondent THE PREMIER OF FREE STATE Fourth Respondent THE PREMIER OF GAUTENG Fifth Respondent THE PREMIER OF KWAZULU-NATAL Sixth Respondent THE PREMIER OF MPUMALANGA Seventh Respondent THE PREMIER OF NOTHERN CAPE Eighth Respondent THE PREMIER OF LIMPOPO Ninth Respondent THE PREMIER OF NORTH WEST 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.