DETERMINATIONS ON THE POSITION OF THE PARAMOUNT CHIEFS INDEX DESCRIPTION PAGES 1. DETERMINATION ON THE POSITION OF THE 2-25 PARAMOUNT CHIEF OF BATLOKWA BA MOTA 2. DETERMINATION ON THE POSITION OF THE 26-43 PARAMOUNT CHIEF OF BAKWENA BA MOPELI 3. DETERMINATION ON THE POSITION OF THE 44-66 PARAMOUNT CHIEF OF ABATHEMBU BASERHODA 4. DETERMINATION ON THE POSITION OF THE 67-88 PARAMOUNT CHIEF OF AMAMPONDO ASENYANDENI 5. DETERMINATION ON THE POSITION OF THE 89-111 PARAMOUNT CHIEF OF NDZUNDZA-MABHOKO 6. DETERMINATION ON THE POSITION OF THE 118-136 PARAMOUNT CHIEF OF AMARHARHABE 7. DETERMINATION ON THE POSITION OF THE 137-153 PARAMOUNT CHIEF OF AMAGCALEKA 8. DETERMINATION ON THE POSITION OF THE 154-172 PARAMOUNT CHIEF OF ABATHEMBU BAKWADALINDYEBO 9. DETERMINATION ON THE POSITION OF THE 173-191 PARAMOUNT CHIEF OF AMAZULU 1 DETERMINATION ON THE POSITION OF THE PARAMOUNT CHIEF OF BATLOKWA BA MOTA INDEX NO. DESCRIPTION PAGE NO. 1. INTRODUCTION 3 1.1 Establishment of the Commission 3 1.2 Functions of the Commission 3-5 2. FOCUS 6-7 3. METHODOLOGY 6-9 4. CURRENT STATUS 10-11 5. HISTORICAL BACKGROUND 11 5.1 The emergence of the traditional leadership of 11-16 Batlokwa ba Mota 6. CUSTOMARY LAW AND CUSTOMS FOR 16 IDENTIFYING A SENIOR TRADITIONAL LEADER AND HEADMAN/HEADWOMAN FOR BATLOKWA 6.1 Succession to the traditional leadership of 16-19 Batlokwa 7. DETERMINATION 20 7.1 Issues to be determined 20 7.2 Analysis of Issues 20-22 7.3 Analysis of Evidence 23-24 8. CONCLUSION 25 2 DETERMINATION ON THE POSITION OF THE PARAMOUNT CHIEF OF BATLOKWA BA MOTA 1. INTRODUCTION 1.1 Establishment of the Commission 1.1.1 It is common cause that over the years the institution of traditional leadership has been undermined, distorted and eroded. In order to restore the dignity of this institution, in 2004 the State President of the Republic of South Africa appointed a Commission on Traditional Leadership Disputes and Claims (“the Commission”). 1.1.2 The Commission is established in terms of section 22(1) of the Traditional Leadership and Governance Framework Act 41 of 2003 (“the Framework Act”). 1.2 Functions of the Commission 1.2.1 In terms of section 25(1) of the Framework Act, the Commission operates nationally and has authority to decide on any traditional leadership disputes and 3 claims contemplated in section 25(2) and arising from any province. Accordingly, in terms of section 25(2)(a) of the Framework Act, the Commission has authority to investigate either on request or of its own accord the following: “(i) 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; (ii) a traditional leadership position where the title or right of the incumbent is contested; (iii) claims by communities to be recognised as traditional communities; (iv) the legitimacy of the establishment or disestablishment of „tribes‟; 4 (v) disputes resulting from the determination of traditional authority boundaries and the merging or division of „tribes‟; (vi) where good grounds exist, any other matters relevant to the matters listed in this paragraph, including considerations of events that may have arisen before 1 September 1927.” 1.2.2 When considering a dispute or claim, the Commission must consider and apply customary law and customs of the relevant community, as they were when the events occurred that gave rise to the dispute or claim (section 25(3)(a)). 1.2.3 In terms of section 25(4) the Commission has authority to investigate all traditional leadership claims and disputes dating from l September 1927, subject to subsection 25(2) (a)(vi). 5 2. FOCUS 2.1 The focus of this investigation is the position of the paramount chief of Batlokwa ba Mota, Lekunutu Cavandish Mota, as envisaged in section 28(7) of the Framework Act. It provides thus: “The Commission must in terms of section 25(2), investigate the position of paramountcies and paramount chiefs that had been established and recognised, and which were still in existence and recognised, before the commencement of th is Act, before the Commission commences with any other investigation in terms of that section.” 2.2 Having issued a determination that in terms of customary law and customs and the Framework Act, the paramountcy of Batlokwa ba Mota is not a kingship, this investigation focuses on the second part of section 28(7): the position of the paramount chief of Batlokwa ba Mota, Lekunutu Cavandish Mota (“the paramount chief”). 6 2.3 Section 8 of the Framework Act recognises three leadership positions within the institution of traditional leadership namely , kingship, senior traditional leadership and headmanship. The enquiry is whether the paramount chief holds any traditional leadership position in terms of the said provision. If so, what is the nature of the position. 3. METHODOLOGY 3.1 The investigation was conducted as follows: 3.1.1 The Commission sent a letter dated 29 May 2008 to the paramount chief informing him how further investigation in terms of section 28(7) of the Framework Act was to be conducted; 3.1.2 Subsequently, a letter dated 1 August 2008 was sent to the paramount chief informing him of the hearing to be held on 26 August 2008. The hearing was intended to 7 afford the paramount chief the opportunity to present further evidence. 3.1.3 Attached to the letter were a set of questions to which the paramount chief was to respond in writing. He was expected to respond thereto on or before 24 August 2008. 3.1.4 The paramount chief indicated through a letter dated 28 August 2008 that he would be available to participate in the envisaged hearing. Attached to the letter were responses to the set of questions. 3.1.5 The Commission held a public hearing on 26 August 2008 in the Floreat Hall, Civic Centre, Bloemfontein where: (a) The paramount chief was given an opportunity to expand, explain or contextualize his responses; (b) The paramount chief was represented by Morena Pienaar Molefe. He placed on record that the paramount chief was not available and thus 8 requested a postponement of the hearing. It request was accepted; (c) The hearing was adjourned to 20 October 2008 but due to unforeseen circumstances, the hearing was further postponed to 1 December 2008. 3.1.6 A public hearing was accordingly held on 1 December 2008 where: (a) The paramount chief was given an opportunity to expand, explain and contextualize his responses ; (b) The paramount chief made a presentation; (c) The Commissioners were given an opportunity to ask clarity seeking questions; (d) After the presentation the paramount chief was given a cut-off date of December 2008 to make further inputs if he so desired. 4. 9 CURRENT STATUS 4.1 Lekunutu Cavandish Mota is the paramount chief of Batlokwa ba Mota, appointed as such in terms of section 2(1) of the Qwaqwa Administration Authorities Act, 6 of 1983, in August 1988. 4.2 As a transitional arrangement, section 28(1) of the Framework Act provides as follows: “Any traditional leader who was appointed as such in terms of applicable provincial legislation and was still recognised as a traditional leader immediately before the commencement of this Act is deemed to have been recognised as such in terms of section 9 or 11, subject to a decision of the Commission in terms of section 26.” 4.3 Section 28(7) enjoins the Commission to commence its investigation with the position of the existing and recognised paramountcies and paramount chiefs. 10 4.4 Determinations on the twelve existing paramountcies were issued over two days, 29 to 30 April 2008, at Kopanong Conference Centre in Benoni. In its determination on the paramountcy of Batlokwa ba Mota, the Commission made a finding that Batlokwa ba Mota paramountcy is not a kingship. 4.5 In issuing its determination, the Commission made it clea r that the determination focused only on the position of the paramountcy, to the exclusion of the position of the paramount chief of Batlokwa ba Mota. 4.6 In order to comply with section 28(7), it is therefore incumbent upon the Commission to investigate the position of the paramount chief of Batlokwa ba Mota. 5. HISTORICAL BACKGROUND 5.1 The emergence of the traditional leadership of Batlokwa Ba Mota 11 5.1.1 Lekunutu Cavandish Mota, the paramount chief of Batlokwa ba Mota, is a descendant of Mota, the younger brother to Sekonyela. Sekonyela was a leader of Batlokwa. 5.1.2 Sekonyela occupied the mountain fortress called Jwalaboholo, just outside Ficksburg. In November 1853 Moshweshwe attacked and defeated Batlokwa ba Sekonyela. Sekonyela fled with some of his followers to the present-day Bloemfontein. He later obtained land in the Herschel district in the Eastern Cape where he died in 1856. 5.1.3 Batlokwa dispersed: some went to Lesotho, others to Mount Fletcher and Herschel in the Eastern Cape whilst others remained at Jwalaboholo. 5.1.4 Mota, a younger brother to Sekonyela, was not at Jwalaboholo when Moshweshwe attacked. He arrived later, gathered survivors, left Jwalaboholo and settled around Bergville in Natal. He established a traditional community known as Batlokwa ba Mota. 12 5.1.5 Mota fathered three sons, Hlubi, Patso and Moropotsana (better known as Koos). They resided at Thintwapas. 5.1.6 At the insistence of Sir Theophilus Shepstone, the then Secretary of Native Affairs, Mota left Natal to settle at Sefate near Harrismith. In 1861, Mota moved back to Natal in Thintwapas and eventually settled at Escourt where he later died.