Case CCT 84/2012
In the matter between:
JUSTICE MPONDOMBINI SIGCAU Applicant
and
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
THE COMMISSION ON TRADITIONAL
LEADERSHIP DISPUTES AND CLAIMS Second Respondent CHAIRPERSON OF THE COMMISSION ON
TRADITIONAL LEADERSHIP
DISPUTES AND CLAIMS Third Respondent ZANUZUKO TYELOVUYO SIGCAU Fourth Respondent MINISTER OF LOCAL GOVERNMENT
AND TRADITIONAL AFFAIRS Fifth Respondent PREMIER: EASTERN CAPE PROVINCE Sixth Respondent NATIONAL HOUSE OF
TRADITIONAL LEADERS Seventh Respondent EASTERN CAPE HOUSE OF
TRADITIONAL LEADERS Eighth Respondent IKUMKANI AMAMPONDO ASENYANDENI Ninth Respondent
FIRST, SECOND, THIRD AND FIFTH RESPONDENTS’
PRACTICE NOTE
Nature of the proceedings:
1. A review, in terms of s6 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) of:
1.1. a determination by the Second Respondent (“the Commission”) that, in terms of customary law, the customs of the amaMpondo and the provisions of the Traditional Leadership and Governance Framework Act 41 of 2003 (“the Act”), the Fourth Respondent is the rightful king (ikumkani) of amaMpondo aseQaukeni; and/or
1.2. the subsequent conduct of the First Respondent (“the President”), accepting the Commission’s findings and recognising the Fourth Respondent as the rightful king of amaMpondo.
Issues that will be argued:
2. The relevance of amendments to the Act, which took effect on 25 January 2010 – i.e. in the period between the Commission’s determination and the President’s subsequent action.
3. Whether the scheme of the Act required the Commission and the President to follow the procedural requirements of ss9 and 10 of the Act before making any determination as to the rightful king of amaMpondo
4. If ss9 and 10 of the Act did not apply, whether the Act can be challenged as being inconsistent with the recognition of customary law in ss211 and 212 of the Constitution.
5. Whether the Commission made any reviewable errors in arriving at factual findings underpinning its determination.
Portions of the record that are relevant:
6. See annexure to this practice note.
An estimation for the duration of oral argument:
7. The case can be fully argued within one (1) day
Summary of the First, Second, Third and Fifth Respondents’
argument:
8. The relevance of Amendments to the Act:
8.1. The Commission dealt with the dispute regarding the rightful king of amaMpondo in terms of the Act in its pre-Amendment form (“the Old Act”)
8.2. Although the President appears to have assumed that he was obliged to deal with the matter in terms of the Act in its post- Amendment form (“the New Act”), he should have dealt with it in terms of the Old Act. This did not, however, make any practical difference.
8.3. In terms of the Old Act, the President was merely required to
“implement” the decision of the Commission. In terms of the New Act the President had to make a decision based on the Commission’s recommendation. By applying the New Act, the President gave the Applicant the benefit of additional consideration, to which he was not entitled under the Old Act.
8.4. The Applicant fails to illustrate any basis on which he can exploit the transition from the Old Act to the New Act to attack the recognition of the Fourth Respondent as king of amaMpondo.
9. The relevance of ss9 and 10 of the Act.
9.1. The dispute regarding the rightful king of amaMpondo was one dealt with in terms of s25 of the Act. In such a case, the processes under ss9 and 10 are not only inapplicable, but would be incongruous.
10. Constitutional challenges to the Act:
10.1. It is unclear which provisions of the Act are still under attack, and the basis for that attack. As we understand it, the Applicant essentially appears to suggest that s211 and 212 of the Constitution would be violated if a king was appointed or removed in a process outside of ss9 and 10 of the Act (i.e.
one which was not dominated by the incumbent leadership).
This challenge is unsustainable.
10.1.1. Sections 211 and 212 of the Constitution envisage that the legislature must be given space to provide the detail of traditional leadership institutions and their powers.
10.2. The legislation does not exclude anyone from stating their views before the Commission; and does not exclude the application of customary law.
10.3. The Commission plays a special role to resolve disputes and correct distortions in customary institutions. This role would be impossible if the incumbent leaders were given an elevated role in choosing the rightful king.
11. Challenges to the Commission’s determination:
11.1. The Applicant’s attack impermissibly blurs the distinction between review and appeal.
11.2. In order to sustain his attack, the Applicant would have to demonstrate that the Commission acted irrationally, unreasonably or made a material error of fact.
11.3. The Applicant fails to prove any basis to set aside the Commission’s determination that the Fourth Respondent is the rightful king of amaMpondo.
12. The Applicant’s application for leave to appeal should be dismissed.
Alternatively, if leave is granted, the appeal should be refused. In either event, no award should be made as to costs.
Authorities on which the Respondent’s will place particular reliance:
13. Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) at para 195-197
14. Nxumalo v President of the Republic of South Africa and others, unreported judgment of the North Gauteng High Court (per Tuchten J) in case 3829/11, of 12 November 2012, at para 25 and 31
15. Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission; Transnet Ltd (Autonet Division) v Chairman, National Transport Commission 1999 (4) SA 1 (SCA) at para 15-19
16. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) at para 44-46
17. Democratic Alliance v President of the Republic of South Africa 2013 (1) SA 248 (CC) at para 32
ADV N ARENDSE SC
ADV D BORGSTRÖM
ADV T LUPUWANA Chambers
Cape Town and Pretoria 23 January 2013
