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.
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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